A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning, Updated and Expanded Edition of <i>The Evolving Constitution</i> [Reprint 2019 ed.] 9780520340657

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A PRACTICAL

C O M P A N I O N TO T H E

CONSTITUTION

A PRACTICAL COMPANION TO THE CONSTITUTION How the Supreme Court Has Ruled on Issues from Abortion to Zoning J E T H R O

K.

LIEBERMAN

Updated and Expanded Edition of

THE EVOLVING

CONSTITUTION

U N I V E R S I T Y OF C A L I F O R N I A PRESS Berkeley

Los Angeles

London

The first edition of this book, The Evolving Constitution: How the Supreme Court Has Ruled on IssuesfromAbortion to Zoning, was published in 1992 by Random House. University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England © 1999 by Jethro K. Lieberman Library of Congress Cataloging-in-Publication Data Lieberman, Jethro Koller. A practical companion to the Constitution : how the Supreme Court has ruled on issues from abortion to zoning / Jethro K. Lieberman. p. cm. "Updated and expanded ed. of The Evolving Constitution" Includes bibliographical references and index. ISBN 0-520-21280-0 (pbk. : alk. paper) 1. Constitutional law—United States—Encyclopedias. 2. United States. Supreme Court. I. Lieberman, Jethro Koller. Evolving Constitution. II. Title. KF4548 .L54 1999 342.73'o2—dc2i 98-18427 CIP Rev. Printed in the United States of America 9 8 7 6 5 4 3 2 1 The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984.

For Jo, s.p.h.p. enduringly

CONTENTS

How to Use This Book

ix

The Constitution: A Guided Tour

I

Some Thoughts on Interpreting the Constitution

7

How the Supreme Court Hears and Decides Cases

15

TOPICS, A - Z

19

The Supreme Courts 1997-1998 Term

555

The Constitution of the United States

571

Concordance to the Constitution of the United States

585

Time Chart of the Justices of the Supreme Court

607

Biographical Notes on the Justices of the Supreme Court

617

Table of Cases

633

Further Reading

751

Notes

755

Acknowledgments

769

Index of Subjects and Names

771

About the Author

797

How to Obtain Supplements

799

H O W TO U S E T H I S

BOOK

This is a reference book on the Constitution, not a narrative history. It summarizes in a single, readable volume what the Constitution means as the United States Supreme Court sees it. This lofty ambition prescribes its own limitations, for although the Constitution is short, its official commentaries are long. No single volume can do justice to the richness of our constitutional history and the sheer profusion of constitutional analysis, even when narrowed to a single court. Since 1803, when Chief Justice John Marshall declared that judges may strike down federal laws that violate the Constitution, the Supreme Court has decided more than 7,500 cases focusing on or somehow dealing with the Constitution. Just to list their names is a forbidding exercise. For that reason, too, this book is not a conventional treatise. It does not dwell on the Courts justifications for its decisions or on the fine, even gossamer, distinctions that make the doctrinal path so tortuous. There is scarcely room even to list all the issues and controversies touching on the Constitution. There is certainly no room to tell all their stories in full. Moreover, because the Constitution is short and old, those who today seek the Constitution's shelter find their problems crowding under the protective shadow of a relatively few short sections. A handful of clauses account for the majority of cases that come to the courts today: the Due Process Clauses, the Equal Protection Clause, the First Amendment, the Fourth Amendment, the Sixth Amendment, and very few others. So diverse are the controversies that fall under these few clauses that a discussion tracking the Constitution's outline can be compared with the famous Saul Steinberg cartoon of the United States from the New Yorker's point of view—a swollen Manhattan and very little else. To overcome these difficulties to the extent possible, this book is arranged by topic. If you want to learn about the abortion controversy, look it up directly under "abortion," not under the more mysterious entry "Fourteenth Amendment." To be sure, this arrangement poses its own problems. Because so many issues are connected, a discussion by topic risks the Scylla of repetition or the Charybdis of discontinuity. Through a series of cross-references and typographical conventions, I have attempted to steer between these shoals. Here is how to use entries in the book. If you are new to the Constitution and its terminology, first read the short essay entitled The Constitution: A Guided Tour, beginning on page 1. This essay explains how the Constitution is structured and what it attempts to do. Second, read Some Thoughts on Interpreting the Constitution for an overview of why constitutional meaning is so hotly disputed. Turn to How the Supreme Court Hears and Decides Cases for a quick look at how the justices grapple with constitutional controversies. Then look up any topic. For example:

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HOW TO USE THIS B O O K A B O R T I O N . . . In 1973, in Roe v. Wade,2014 the Supreme Court held 7-2 that the fundamental right to PRIVACY, protected by the DUE PROCESS Clause of the FOURTEENTH AMENDMENT, is "broad enough to encompass" a qualified right to an abortion. Roe is one of the most notable instances of the use of the Fourteenth Amendment to protect a woman's right to act in her personal life without fear of prosecution. In effect, this line of reasoning, called SUBSTANTIVE DUE PROCESS, says that we retain some personal liberties with which the government may simply not interfere. . . . The discussion of each topic immediately follows its entry. Words in SMALL CAPITAL LETTERS indicate that a word or phrase in the discussion will be found as a separate entry. To avoid cluttering the pages, footnotes have been avoided; all bibliographic information and occasional comments appear in notes in the section beginning on page 755. An asterisk indicates that additional information concerning the entry may be found in the notes. The superscripted numbers in the text (such as that following Roe v. Wade above), whether or not attached to a case name, refer not to the backnotes but to numbered entries in the Table of Cases, beginning on page 633. There you will find a brief sketch of the case. Names of cases italicized in the text do not, as a rule, carry superscripted numbers., since those rases may be looked up d/roccly in the aipfcjijeircatfy arranged Table of Cases. A "see also" line at the end of a topic tells you where to find related topics that will help round out the discussion. See also: FOURTEENTH

AMENDMENT;

FUNDAMENTAL

INTERESTS,

RIGHTS, AND PRIVILEGES;

PRIVACY.

Occasionally the "see also" entry will direct you to a topic by concept rather than by name. For example, in the "see also" line under the entry "Bill of Rights" you are directed to "Amendments 1 through 10" and to "particular rights guaranteed by the first ten amendments." Such general descriptive terms are necessary to avoid the tedium of listing the dozens of such rights at that point. The entry for a topic may simply refer you to another topic. ABRIDGING

F R E E D O M OF S P E E C H , see: f r e e d o m of s p e e c h

Such cross-references contain no discussion but enable you to look for a topic under a variety of possible labels without having to know in advance what term I or the courts have chosen. The Index of Subjects and Names provides a more detailed method of finding particular topics. For production reasons, the Court's treatment of constitutional issues during its 1997-98 term is covered in a separate section, also arranged topically, beginning on page 555. Cases decided during this term are contained in the main case table. A dagger (t) at the end of an entry indicates that the topic is considered further in the section on the Court's 1997—98 term. Information about all cited cases is set out in the alphabetically and numerically ordered Table of Cases. A representative entry is as follows: 2014.

Roe v. Wade, 410 U.S. 113 (1973). 7-2, BLACKMUN. Concurrences: Burger, Douglas, Stewart. Dissents: White, Rehnquist. 66pp. Noted at: 13, 16, 19-22, 81a, nob, 125a, 254a, 262b, 309b, 315a, 349a, 378a, 407b, 476a, 489a.

Here, the initial number corresponds to the number used throughout the text to refer to the particular case. It is followed by the case name and the official citation to the United States Reports, available in any law library; 410 U.S. 113 means that Roe v. Wade can be found in volume 410 of the United States Reports beginning on p. 113. (Because the Court's own volumes have a production lag of a year or two, some of the most recent cases carry the West Publishing Company citation "S.Ct.") Then comes the Court's vote. The author of the majority opinion is in CAPITALS, and the names of those who wrote

HOW TO

USE THIS

BOOK

concurring and dissenting opinions (and, occasionally, die names of those not participating) follow. The number before "pp." is the total page length of all opinions written in that case. The final set of numbers following "Noted at" is an index to pages on which the case is cited or referred to in the text. Other sections of this book include the following: •

The Constitution of the United States. For the complete text of the Constitution and all amendments, see pages 571-584.

•

Concordance to the Constitution. To find a particular word or phrase used in the Constitution, consult the Concordance, beginning on page 585. Time Chart and Biographical Notes of the Justices. To see which justices served together, see the Time Chart of the Justices of the Supreme Court, beginning on page 607. For basic biographical information about each of the justices, see Biographical Notes on the Justices of the Supreme Court, beginning on page 617.

•

• •

Further Reading. For brief descriptions of other reading, consult the list of readings beginning on page 751. Index of Subjects and Names. For a detailed guide to names, concepts, references to justices quoted in the text, and so on, consult the index, beginning on page 771, which includes many individual names and other subjects not contained in the cross-references throughout the text.

A Word about What Is Not Contained in This Book Many legal, political, and social issues have constitutional dimensions. But to understand them fully, you must plumb below their constitutional surfaces. The Constitution is not the only law; Congress, the states, their subdivisions, regulatory agencies, and the courts give us plenty of other law to chew on. And since this is not a book about law in general or about specific policy issues, inevitably only parts of many stories are told here. The right to vote, for instance, is a constitutional topic; five amendments and several provisions in the main text of the Constitution deal with it. But purely constitutional issues about the right to vote have long since been resolved. Instead, the most difficult questions today arise under such laws as the federal Voting Rights Act. The reader will search in vain here for a narrative on voting and other major policy problems, because this is a volume about the Constitution and cases that arise under it, not about policy issues that happen to have constitutional dimensions. The Constitution obviously helps shape the policy debate, but it does not dictate in any detail how we must resolve our pressing problems. Many things are permitted under the Constitution but prohibited by other law. Moreover, constitutional law resides not only in Supreme Court decisions but also in the decisions of many other federal and state courts. For lack of space, not lack of significance, discussion of this vast branch of constitutional law is necessarily omitted. Likewise, the profusion of constitutional theories propounded by many scholars is almost wholly ignored, despite their relevance and their habit of turning up years later as the basis of many Supreme Court judgments. Finally, this book does not inquire whether the lower courts and the government abide by the Supreme Court's opinions, even though what happens is often quite different from what the Court says ought to happen. For these limitations I do not so much beg the reader's pardon as ask the reader's understanding—how big a book do you wish to hold in your hands?

Author's Note References to particular clauses in the Constitution are abbreviated as follows: Art. I-§8[2] refers to Article I, Section 8, Clause 2. Amendment i4-§i refers to Section 1 of the Fourteenth Amendment.

xi

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H O W T O USE T H I S

BOOK

To conserve space, many of the discussions about particular constitutional rights are written as if the Bill of Rights applied directly to the states. Technically, the Bill of Rights limits only the federal government; it does not apply to the states. Beginning in the late nineteenth century, however, the Supreme Court began to apply to the states individual rights contained in the Bill of Rights, by "incorporating" them into the Due Process Clause of the Fourteenth Amendment, which itself applies directly to the states. Through a long process of "selective incorporation" (discussed in detail under INCORPORATION DOCTRINE in this book), the Bill of Rights today has largely been absorbed in the Fourteenth Amendment and hence is equally applicable to the states and the federal government. Because it would be cumbersome in scores of essays to refer to "the Eighth Amendment right against cruel and unusual punishments, as incorporated in the Fourteenth Amendment," the fact of incorporation has largely been omitted.

THE CONSTITUTION: A GUIDED TOUR

The Constitution was a reaction to the states' unhappy experiences in the decade following the Declaration of Independence. Although loosely bound by the Articles of Confederation, the states were largely autonomous. The Continental Congress had few of the powers of a central government. It had no authority to tax. Though theoretically entrusted with the conduct of foreign relations, it could raise troops only with the greatest difficulty and could not control import and export duties. Because nine of the original thirteen states were required to agree on national legislation, Congress was largely paralyzed, unable to deal with serious national concerns. There was no executive authority to command troops and no central judiciary to enforce any laws that did manage to emerge from Congress. Real power lay in the states, and that meant mainly in the state legislatures. To many thoughtful observers, the state legislatures had become omnipotent and despotic: they confiscated property, enacted ex post facto laws, impaired contractual obligations, hindered the repayment of debts, and reversed the judgments of courts. Jealous of their prerogatives, the states coexisted uneasily. Trade wars, which sometimes even led to armed conflict, threatened what feelings of fellowship remained from the revolutionary fervor. Fearing anarchy between the states and despotism within, delegates to a trade convention in Annapolis in 1786 called on their states to send delegates to a new convention to deal with the problems of government in America. Congress endorsed the idea, and the Constitutional Convention was called for May 1787. Four months later the delegates emerged with the present Constitution—"the most wonderful work ever struck off at a given time by the brain and purpose of man," gushed Britain's Prime Minister William Ewart Gladstone on the Constitution's centennial. (For a history of the Convention, see C O N S T I T U T I O N A L C O N V E N T I O N OF 1 7 8 7 a n d C O N S T I T U T I O N , FRAMERS OF.)

Even with amendments, the Constitution is quite short—about 7,500 words altogether. Those words are divided among seven original articles, ratified in 1788, and twenty-seven amendments, ratified between 1791 and 1992. One of the articles (Article VII) is no longer pertinent, having to do with the original writing and ratification. One of the amendments (the Eighteenth, concerning Prohibition) no longer has any effect either, having been repealed by a later amendment (the Twenty-first). Broadly speaking, the Constitution establishes the federal government and structures the relationship between the central authority and the states. It does so by both conferring and limiting governmental power. Two fundamental principles lie at the heart of the Constitution: separation and limitation of powers. The principle of separated powers stems from the fear of despotism: to prevent the government from becoming tyrannical, power must be separated and divided among different branches of government. James Madison put it best. In Federalist 51, he wrote, "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls

2

THE C O N S T I T U T I O N : A G U I D E D TOUR on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." These auxiliary precautions were realized in the Constitution's separation of powers. Separation of Powers The Constitution separates the powers of government in several different ways. First, it recognizes three fundamental types of government power—-legislative, executive, and judicial—and in Articles I, II, and III vests these powers in three different branches: Congress, the president, and the judiciary. Second, the Constitution further divides the powers of two of these branches. Congress consists of a Senate and House of Representatives, whose members are elected by different sorts of constituencies. To enact legislation, both houses must agree on the wording of a bill. The federal judiciary is also divided. The Supreme Court has the power to hear appeals, and the lower federal courts have the power to try cases. Third, the Constitution prohibits members of the legislative branch from serving simultaneously in the executive branch (and, by tradition extending almost to the beginning, a member of neither of these branches may simultaneously serve as a federal judge). It also prevents the law from being politicized by giving life tenure to judges on the federal courts and prohibiting Congress from decreasing their salaries. Fourth, not all power resides in the federal government; the states have significant powers within a sphere closed to the federal government. And they have, through the electoral college and the basis of representation in the Senate (two senators from each state, regardless of population), a substantial influence on the election of the president and the shaping of federal law. Fifth, the Constitution bars one branch from exercising certain powers that properly belong to another branch. For example, Congress may not pass a "bill of attainder," a law that directs the executive to imprison a particular person. Judgment of guilt may be pronounced only by courts, not by Congress. The president may direct war, but only Congress may declare it. Sixth and finally, the Constitution reserves the ultimate power for the people, who may, by amending the Constitution itself and by voting for the president and members of Congress, take the public power from one set of hands and turn it over to another. Madison summarized what the Constitution would create: "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." Checks and Balances and the Sharing of Power As basic as separation of powers is, it is still not enough to foreclose the possibility of tyranny. The problem remains that unless the branches of government have some means of connecting to and dealing with each other, one branch might usurp all power. Madison found (again in Federalist 51) that "the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the others... . Ambition must be made to counteract ambition." It is a "policy of supplying, by opposite and rival interests, the defect of better motives," and it is "particularly displayed in all the subordinate distributions of power,

THE C O N S T I T U T I O N : A G U I D E D TOUR where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other." In short, unless the branches of government were to share power, they could not serve to check and balance each others powers. The Constitution achieves this checking and balancing function in several ways. The president, through the veto, has a major share in the legislative power to enact law. Because he may reject its enactments, Congress must heed the presidents agenda. In turn, the presidents checking power is itself checkable. Congress may, by a higher vote than originally (that is, two-thirds instead of a simple majority), overturn the veto. The veto power also works in reverse: although the president has the primary power of negotiating treaties and nominating government officials, the Senate may veto treaties and appointments. Likewise, the president has the primary responsibility for carrying out the laws, but Congress has considerable power to influence how government will operate through its power over the budget and its power to establish the various offices of the government. The courts, too, have a share in the power. They sit to apply the law in particular cases, and through their power to interpret the law and the Constitution itself (although the Constitution is less specific on that point), they can check both Congress's enactments and the president's enforcement policies. But both Congress and the president, in turn, may exert control over the courts. The president names all the federal judges (although the Senate may veto their appointment), and Congress may restrict the types of cases that the courts may hear. Finally, despite the president's power to appoint, Congress may remove any federal official, including members of the Supreme Court, through impeachment. Even this power is divided: the House may impeach, but only the Senate may convict. Checks and balances are not limited to powers within the federal government. The Constitution provides for checking and balancing between federal and state governments as well. Article IV declares that the United States must guarantee a "republican form" of government in each state, meaning that the federal government could act against any attempt to establish a dictatorship within any state. Far more important in practice is Article VI, which declares that the Constitution, federal law, and treaties are the "supreme law of the land," superseding any conflicting state law. This article ensures that the states may not act to undermine national law and policy. Limited Powers and Rights of the People The principle of limited powers stems from the premise that power resides in the people and that the federal government can have only those powers ceded to it by the people. The federal government is, therefore, a government of enumerated powers; it can act only through those powers delegated to it. The Constitution limits power in two ways: it specifically delegates only certain powers and it specifically prohibits the government from acting in certain ways. In general, the Constitution gives the federal government only those powers that ought to reside in a national government—power to establish uniform regulations of subjects that concern the nation as a whole (for example, a uniform currency, bankruptcy law, internal commerce, and a postal system) and the power to govern external relations (for example, defense, treaty making, and immigration and naturalization). Legislative powers not delegated to Congress are reserved to the states or are forbidden altogether. Likewise, the federal courts do not have authority to interpret the law whenever they feel like it; they may act only when a case is presented to them. Nor may they hear cases of any description whatever; the Constitution restricts the types that may be brought there. To secure individual rights, the Constitution as ratified in 1787 also directly prohibited the government from exercising certain powers. For example, it prohibits Congress from suspending the writ of habeas corpus, without which the government could jail anyone without having to give a reason or press charges; from enacting bills of attainder, through which particular individuals could be sent to prison; from passing ex post facto laws, which would punish a person for doing

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THE C O N S T I T U T I O N : A G U I D E D TOUR something that was lawful when it was done; and from granting titles of nobility, which prevents the creation of royalty and an official caste system. The states too are prohibited from enacting many of the same kinds of laws, and others as well, including laws that impair the obligation of contracts and laws that interfere with the national economy and foreign relations. Moreover, the states may not discriminate against citizens of other states, and they are bound to respect each other's laws and judicial rulings. But the limitation of power was only partly achieved in the original Constitution. The Bill of Rights and subsequent amendments were enacted to secure other basic rights. The twenty-seven amendments can be grouped, generally, into four categories: rights of the people (usually achieved by limiting the powers of government), voting, governmental structure, and governmental powers. The Fourteenth Amendment deserves special note because it radically changed the relationship between federal and state power; its ratification in 1868 may truly be called a second constitutional revolution. This amendment prohibits the states from depriving any person of life, liberty, or property without due process of law; and from denying any person the equal protection of the laws. Just as important, the Fourteenth Amendment granted Congress—and by implication, federal courts—the power to enforce these prohibitions, thereby giving the federal government what in time would become a sweeping power over state laws and policies. In capsule form, the amendments, grouped by subject, established the following constitutional principles and policies. R I G H T S OF T H E

PEOPLE

The Bill of Rights, comprising the first ten amendments to the Constitution, was ratified in 1791 to overcome the principal objection to the Constitution when it was first submitted to the states in 1788: its failure to guard against the abuse of people's rights. The first nine amendments limit the power of the federal government in many ways—and today, through incorporation into the Fourteenth Amendment, they limit the power of the states as well. Among the well-known rights delineated in the Bill of Rights are freedom of speech and press; the rights to exercise one's religion, to assemble and petition the government, to be exempt from arrest or searches without warrant, and to receive just compensation if private property is taken. It guarantees the right to speedy trial, to confrontation by accusers, and to trial by jury, as well as the rights against self-incrimination, double jeopardy, cruel and unusual punishment, and deprivation of life, liberty, or property without due process of law. Slavery was abolished in 1865 by the Thirteenth Amendment. The Fourteenth Amendment reformed the basic principle of citizenship and, as noted above, limited the power of the states to abuse the rights of the people. VOTING Several amendments clarified the right to vote and extended it to classes of people who had been denied access to voting booths in state and federal elections. The Fifteenth Amendment prohibits both the federal government and the states from denying anyone the right to vote because of race or color. The Nineteenth Amendment prohibits denying women the right to vote. The Twentythird Amendment grants the vote in presidential elections to residents of the District of Columbia. The Twenty-fourth Amendment abolished the poll tax. The Twenty-sixth Amendment lowered the voting age to eighteen. GOVERNMENTAL

STRUCTURE

The Tenth Amendment, the last of the Bill of Rights, restated the basic principle that a power not given to the federal government remains with the states or with the people. Several amendments

THE C O N S T I T U T I O N : A G U I D E D TOUR altered the plan in the 1787 Constitution for selecting the president and made certain other adjustments. The Twelfth Amendment dramatically altered the way the voting would be counted for the president in the electoral college. The Seventeenth Amendment required senators to be elected directly by the people in each state rather than being selected by the state legislatures. The Twentieth Amendment established new dates for the convening of Congress and the inauguration of the president and provided for the possibility that a president-elect might die before being sworn in. The Twenty-second Amendment limits a president to two terms of office. The Twentyfifth Amendment deals further with the death or disability of presidents and establishes, for the first time, the office of acting president. The Twenty-seventh Amendment limits the power of Congress to raise its members' salaries. GOVERNMENTAL

POWERS

The trio of Civil War amendments—the Thirteenth, Fourteenth, and Fifteenth—give Congress new national powers not provided in the original Constitution. Congress may act against slavery, peonage, and discriminatory enactments by the states. The Sixteenth Amendment granted Congress the power for the first time to enact a federal income tax. The Eighteenth Amendment, repealed nearly fifteen years after ratification, prohibited the manufacture, sale, or transportation of liquor in the United States "for beverage purposes" and gave Congress and the states the power to enforce it. The Twenty-first Amendment, which repealed Prohibition, allows states the power to continue to enforce a ban on liquor if they choose to do so. Various of the voting amendments also give Congress the power to enforce their provisions. That the United States still adheres, in significant ways, to a constitution written more than two centuries ago is quite remarkable. And it has done so in a no less remarkable way, by adroitly bending, twisting, and refashioning the constitutional clauses to fit its changing circumstances. No one contemplating the thirteen coastal states with their population of four million in 1787 could have imagined a continental union and then some, with interests and territories in and across oceans, that would govern a population more than sixty times larger through a network of laws and regulations beyond the capacity of anyone to fully fathom. The trials and errors of two centuries have led to several dramatic departures from the spirit of the original Constitution, if not from its text. High on any list must surely rank the growth of bureaucratic, regulatory government. Other features of modern constitutional life that doubtless would have bewildered the passionate people who wrote and ratified the Constitution are standing armies, immense federal and state budgets, powerful presidents, intrusive police presence, and the sweeping array of personal liberties that have been extracted from the few that were originally named. Five developments, in particular, largely explain the changes. The first and earliest was Chief Justice Marshall's bold declaration in Marbury v. Madison in 1803 that the Supreme Court may declare laws unconstitutional. This ruling created a system of judicial review more powerful than any other in the world. Second, and occurring nearly three-quarters of a century later, was the ratification of the Fourteenth Amendment, which imposed new limits on the states, limits that are subject to further clarification by both Congress and the federal courts. In the twentieth century, and mainly during the past forty years, the Supreme Court has "incorporated" into the Fourteenth Amendment's Due Process Clause most of the rights that once limited only the federal government. This process of incorporation has given the federal courts great power to supervise police and trial procedures once thought to be well outside federal jurisdiction. Third, the plasticity of the phrase "due process of law" has allowed the courts to control not merely legal procedures but also the substance of the laws that both the states and Congress may enact. A doctrine known as "substantive due process" has waxed and waned in different forms for

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THE C O N S T I T U T I O N : A G U I D E D TOUR more than a century, permitting the courts, at various times, to overturn the economic and social agendas of states and the nation. Once substantive due process condemned wage and hour laws, taxing policies, rate regulation, and other economic controls. Today substantive due process has given rise to a condemnation of laws thought to interfere with personal liberties, giving the courts power to declare, for example, a broad right of personal autonomy and privacy, including the right to abortion. Fourth, during the past forty-five years, a newly invigorated Equal Protection Clause has led to a great profusion of cases that have begun to remake the map of social relations—branding as unconstitutional not only racial discrimination, but laws that distinguish on the basis of sex, ethnicity, alienage, and other factors. Fifth, invention and industrialization have wholly remade our economy and business relationships, requiring Congress and the federal government to regulate in ways that the Framers could never have imagined. All of these constitutional developments have been achieved, or deemed necessary, or tolerated by the Constitution and by a restless population that brings its complaints and legal laments to the United States Supreme Court, continually demanding that it add to its ever-growing commentaries on this aging but living charter that shapes our lives still.

SOME T H O U G H T S O N I N T E R P R E T I N G THE CONSTITUTION

T h e Constitution of the United States is beguilingly—and misleadingly—short, tempting some to suppose that, unlike sacred texts, it can be read and understood by anyone. This error was most succinctly summed up by George M . Dallas, recognizable today more as the eponym of the Texas city than as vice president of the United States. Dallas wrote to his fellow citizens more than 150 years ago, " T h e Constitution in its words is plain and intelligible, and it is meant for the homebred, unsophisticated understandings of our fellow citizens."* He could not have been more mistaken. T h e Constitution is elusive, ambiguous, murky, and sometimes quite opaque. Many of its phrases were not fresh creations but were encrusted with history—for example, "due process of law." Other words and phrases have quite technical meanings accessible only to those schooled in legal arcana—"letters of marque and reprisal," even "common law." Parts of the text are narrow and specific (the age below which someone may not serve as president); other parts are broad and tantalizingly general ("equal protection of the laws"). In short, even if the Framers had not been practically deified within a generation of their handiwork, the Constitution of the United States inevitably would have come to be just like a sacred text, its meaning knowable only through some human, and fallible, means of interpretation. In deciding what the Constitution means, we must first grapple with the question, Whose meaning are we seeking? T h e meaning of the Framers—that is, are we concerned primarily with what those who wrote it had in mind? Or someone else's meaning—our own, for example? This basic question has no ready answer, and so it has remained the subject of fundamental debate for two centuries. It has no clear answer because the Framers themselves didn't supply one in the most obvious place: the Constitution itself. T h e Constitution is silent on the question of how to interpret itself. It does not say, for example, "In resolving disputes over the meaning of this Constitution, choose that meaning intended by the drafters." Likewise, it does not say, "Interpret the words to fit the current situation." Further difficulties abound. Suppose, for the moment, that we agree the Constitution should be interpreted according to the original intent—the intent of those who drafted it. Just exactly whose intent must we ascertain? And how do we uncover what that intent was? One obvious answer to the first question is that we should consult the intent of the Framers. After all, they wrote it. If a word or phrase has any meaning, it must have the meaning intended by the persons who put it there. But no sooner do we state this obvious proposition than an equally obvious objection arises. There were fifty-five delegates to the Constitutional Convention. T h e actual words were chosen by a five-member committee on style. Did the stylists, by using particular words, alter the meaning of what had been discussed by all, or at least by many others? Did all those voting in favor of particular concepts—ex post facto law, for example—agree not

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SOME T H O U G H T S O N INTERPRETING THE

CONSTITUTION

only on what those concepts meant generally but also on how the terms selected to express those concepts should be interpreted when a difficult case came up? For example, suppose Congress enacts a retroactive tax law. Does requiring a taxpayer to fork over money on income made some months before the law was enacted violate the Ex Post Facto Clause? The answer is by no means obvious. It is a commonplace that words are frequently chosen as compromises to skirt hard problems, such as the problem of securing unanimity on every part of every proposal being considered. Legislators "fuzz up" their language every day to get votes for their bills. It is precisely because the language is "open," without any specific, hard-and-fast meaning, that legislators are willing to vote for it. So it is with the Constitution. Many of its phrases are obscure, we may be reasonably certain, precisely because there was no specific meaning on which everyone voting for them agreed. So whose meaning do we select as the constitutional meaning—delegate As or delegate B's? The meaning given to the Constitution by this faction of delegates or that one? Moreover, why settle on the Framers as the people whose intent should govern? They merely proposed the language of the Constitution. Those who ratified it might more properly be supposed to have the crucial intent about its meaning. If they understood a phrase to connote something different from what the Framers thought, doesn't it make more sense to interpret the Constitution today by their meaning? After all, they were the ones who made it binding law. It is this distinction between the Framers' and the Ratifiers' intent that explains James Madison's seemingly contradictory statements that, on the one hand, judges should interpret the Constitution by looking "to the sense in which [it] was accepted and ratified by the nation" and, on the other hand, the intentions of the Framers "could never be regarded as the oracular guide in expounding the Constitution."* Even if we agree to interpret according to the meaning of somebody back in 1787, how do we learn what the meaning was? Do we look up constitutional words and phrases in a late eighteenthcentury dictionary? Perhaps we should consult the political treatises, histories, and works of philosophy that the Framers read so that we can learn what words and phrases were current and how they were generally used. Historians must surely look to these sources, but they do not yield the precise meanings that would result in inevitable conclusions. We do have two more likely sources of meaning to which we can turn. One is The Federalist Papers, those enduring, brilliant essays by Madison, Alexander Hamilton, and John Jay. But they were writing as partisans, advocates for ratification in New York and Virginia. Furthermore, their purpose was more to convince a doubting public of the necessity of a particular kind of federal union than to explore in detail the reaches of every constitutional word. The Federalist Papers were, in short, political documents, not legal ones, and they too suffer from the defect that they express the authors' beliefs and not those of all the delegates, much less the beliefs of those who were shortly to ratify. The other principal source is the collection of Constitutional Convention notes of James Madison, who exhaustively chronicled most of the debates during that hot 1787 summer in Philadelphia. But they were not published until 1840, four years after his death, and by then much constitutional groundwork had already been laid in the courts. Moreover, Madison's notes, like The Federalist Papers, do not ultimately yield the detail we might crave in uncovering the meaning of many elusive phrases, for they cover, at most, only one-fifth of the debates in Philadelphia. Besides, what we really should wish to know is what the Framers or the Ratifiers thought about the question of interpretation itself. If we are to be bound by their intent, then how they intended later generations to go about interpreting the text should be the crucial inquiry. Did the Framers or Ratifiers intend us to interpret "broadly" or "narrowly"? Even more to the point, did they wish us to be bound by their intent or not? The drafters might quite wisely have held that they could not possibly resolve all future questions and so they—and we—would have to rely on

SOME T H O U G H T S O N I N T E R P R E T I N G THE C O N S T I T U T I O N the good judgment of later generations to work out matters case by case. Unfortunately, we know next to nothing about what the Framers thought of this question concerning their intent. And we know nothing whatsoever about how the Ratifiers felt. There are two other, related difficulties in interpreting according to original intent. One is that on many issues of utmost concern to us, the Framers had no intent because they did not conceive— could not have conceived—the problems that would confront this astonishing American people, whose technology and economy would transform the world. The Framers gave Congress the power to regulate interstate, but not local, commerce. In 1985 the Supreme Court ruled in Russell v. UnitedStates that the Commerce Clause gives Congress the power to outlaw arson in a two-story apartment building in Chicago. Is arson of a local apartment building included in interstate commerce? Can anyone suppose that such a problem was on the minds of the Framers? We certainly have no evidence for it. A second difficulty is that the Framers may have been mistaken in their "intent"—mistaken, that is, in believing that the words they chose embraced their intent. This is not as paradoxical as it may seem. Suppose, as Thomas Jefferson once wrote, "all men are created equal." Suppose, further, that these words had been placed in the Constitution (in fact, of course, they were not put there). Could we have refuted a slave who sought emancipation by saying, "Well, Jefferson didn't really intend to free the slaves"? Perhaps he personally did not so intend, but it will snap the Constitution beyond repair, or at least utility, to argue that the phrase "all men are created equal" (or some similar set of words) should not apply to slavery. If Jefferson had focused on the gulf between his noble sentiment and his ownership of slaves, he might have yielded to the inconsistency and either changed his phrase or manumitted his slaves.* If one does not focus on the discrepancy, it is entirely possible to hold inconsistent positions, but one of them must surely be mistaken. We engage in logical inconsistences all the time—when, for example, we rail against taxes but expect the government to provide us with ever-growing services. So it is not enough to ask, "What did the Framers intend about issue X or problem Y?" We must ultimately ask what they intended by the phrases that purport to govern that issue or problem. Jefferson might truly have intended, had he thought grandly about it, that all persons are truly created equal and that someday a more humane world would surely act upon that knowledge, interpreting the phrase for what it really means, and not as he, a prisoner of his age, circumscribed it. By the same token, we ought to be equally suspicious of arguments that the Constitution really does mean anything that people in power (justices of the Supreme Court) wish it to mean. It is no more sensible to permit Justice X to say that white means black than it is for Framer Y to say that black means white. If we are to have any sort of ordered society, we must live under a Constitution whose words are neither shrunk to an invisible point nor stretched along an infinite line. How, then, can we go about responsibly interpreting the Constitution? Over the years, the Supreme Court has followed several methods, influenced by shifts in the political mood and the temper of the justices. Because moods and tempers will vary endlessly, the debate over the propriety of interpretation will endure as a hallmark of democratic government. The most significant approaches to interpreting the Constitution are noted briefly here.

Interpretations from Intent The debate over intent, as we have seen, will never be settled because intent itself is always difficult, and sometimes impossible, to discern. Still, the Court may adhere to some presumed intent of the Framers if it supposes its obligation is to do so. Many of the liveliest constitutional controversies today revolve around the claim that the Framers did or did not intend a certain result. For example, the debate over the separation of church and state centers on what the Framers intended

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by the words "establishment of religion." Did they really mean to erect a "wall of separation" between church and state, in Jefferson's words, or did they mean only to prevent the state from preferring one church over another? Interpretations from Logic Although constitutional analysis is scarcely an exercise in formal logic, some principles or axioms can fairly be invoked to deduce certain results. The Constitution is largely silent about most of the daily concerns of life. To confine the government strictly to those powers specifically mentioned would make governing impossible; it would defeat the purposes for which the explicit powers were granted. For example, the Constitution does not say that Congress may pass criminal laws or provide penalties for those who violate the laws it does enact. To be sure, the Necessary and Proper Clause gives Congress power to fill in the gaps. But even without it, Chief Justice John Marshall reasoned in McCulloch v. Maryland, no one ever doubted that Congress has the power to "punish any violation of its laws," even though "this is not among the enumerated powers of Congress." Even Thomas Jefferson, a strict constructionist who believed that a power didn't exist if the Constitution didn't name it, overcame his scruples in entering into the Louisiana Purchase, despite the Constitution's silence about the power of the federal government to acquire territory. As Madison said in Federalist44, "Had the Constitution [omitted the Necessary and Proper Clause], there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included."

Interpretations from Purpose Closely related to interpretation from logic is interpretation from purpose. The subject of one of the most heated debates in the nation's early years was whether Congress had the power to create a national bank. When the issue came before the Supreme Court in 1819, Chief Justice Marshall upheld Congress's authority under its power to make all laws necessary and proper to carry into effect its other powers. He declared that the Necessary and Proper Clause must be interpreted in light of the Constitution's purposes: "The subject is the execution of those great powers on which the welfare of a nation essentially depends. . . . This provision is made in a Constitution intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs. . . . We must never forget that it is a constitution we are expounding." His decision in McCulloch v. Maryland still stands as one of the most eloquent defenses of a broad reading of the Constitution. Interpretations from Structure The Constitution nowhere uses the phrase "separation of powers." But the structure of its text, placing legislative power in Article I, executive power in Article II, and judicial power in Article III, is the primary basis for inferring the constitutional doctrine. Interpretations from Context One question in McCulloch v. Maryland was what the words in the Necessary and Proper Clause really mean. Does "necessary" mean only that which is "indispensable"? Or could it mean that which is merely "convenient" or "useful"? Chief Justice Marshall noted the ambiguity of the word: "[I]t has not a fixed character peculiar to itself. It admits of all degrees of comparison.... [A] thing

SOME T H O U G H T S ON INTERPRETING THE C O N S T I T U T I O N may be necessary, very necessary, absolutely or indispensably necessary." The answer, he discovered, lay in another clause, which prohibits a state from imposing certain duties "except what may be absolutely necessary for executing its inspection laws." When Congress wanted to use "necessary" in the sense of "indispensable," it knew how to do so. It did not do so in the Necessary and Proper Clause, Marshall noted; the word is used in different senses and its meaning must be discerned from context. Interpretations from Canons of Construction In Marbury v. Madison, Chief Justice Marshall confronted the question of whether Congress could enlarge the "original jurisdiction" of the Supreme Court. Nothing in the literal language prohibits Congress from doing so. Marshall disagreed, observing that Article III specifically assigns a few types of cases to the Court's original jurisdiction and all others to its appellate jurisdiction. If Congress could override these assignments, then the clause would "have no operation at all." Following a canon of construction—that is, a rule by which courts have historically construed legal instruments—Marshall said, "It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such a construction [allowing Congress to reassign jurisdiction] is inadmissible." This approach is not always consistently followed. For example, the Court later held that the Counterfeiting Clause (Art. I-§8[6]) is superfluous since Congress could achieve under the Necessary and Proper Clause all that it could achieve under the specific grant of power to punish counterfeiting. Interpretations from Plain Meaning Regardless of the Framers' intent, the Court has often insisted that if a constitutional phrase has a "plain meaning," it is to be applied according to that meaning. For example, in abolishing slavery the Framers of the Thirteenth Amendment had in mind black slaves. In 1873 the Court said in the Slaughter-House Cases that "[Although] negro slavery alone was in the mind of Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void." Interpretations from History The Seventh Amendment guarantees the right to a jury trial in "suits at common law." Does the Seventh Amendment mean to include only suits that were among the types of "common law" cases known in 1789, or does it include suits that are within later extensions of the common law? The historical view would seem to suggest the former. A suit to enjoin a neighbor from playing with dynamite in the basement is not a suit at common law because it would not have been so when the Constitution was ratified. At first glance, such a result may seem to fit nicely with a theory of original intent. Surely the drafters of the Bill of Rights did not mean to include types of suits of which they were unaware or that were not then triable by jury. But things are not so simple. Historically, the common law has been, and continues to be, variable, evolutionary. For nearly a millennium it has been a system permitting courts to make law. The common law has changed over time because that is its very nature. Neither history nor original intent can sensibly tell us to overlook the evolutionary feature of the common law; its capacity for change is as much a part of the historical record as are the cases recognized two hundred years ago. So when a tenant sues for damages under federal antidiscrimination law, defending against a landlord's attempt to evict him, is a jury necessary? The common law knew no such proceeding. In Pernell v. Southall Realty, the Court held the Seventh Amendment applicable: "[T]rial by jury

il

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[is required] in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action at equity or admiralty." But what of a case in which the Occupational Safety and Health Administration seeks to impose monetary fines on a company for violating its regulations? This, too, was unknown to the common law and sounds like the sort of inquiry "traditionally enforced" in a common law proceeding. In Atlas Roofing Co. v. Occupational Safety and Health Review Commission, however, the Court held otherwise. Interpretations from Considerations o f Judicial E c o n o m y Some decisions may be understood as influenced by the limited resources of the courts. For example, if the Supreme Court had adhered faithfully to the doctrine of separate but equal, by which racially segregated facilities were said to be constitutionally permissible if the facilities were equal, the courts would have been required to examine tens of thousands of schools, restaurants, theaters, and other facilities and would have had to develop a set of criteria for determining the meaning of equality in each instance. In gross, that is an impossible task, and Brown v. Board of Education and later decisions may be understood at least in part as the Court's declaration that any rule short of an outright ban on segregation would have been impossible to enforce. For similar reasons, the Courts enunciation of the Sixth Amendment right to the effective assistance of counsel must strike any fair-minded observer as fanciful or even hypocritical if viewed solely as a matter of doctrine, since the Court has fashioned a rule permitting defendants to remain behind bars when their lawyers have made all sorts of mistakes. Lacking the stomach to order the states and federal government to fund public defender programs at sufficient levels, the Court has had to rely on a "harmless error" rule and a rather strained understanding of what constitutes ineffective assistance of counsel; otherwise court dockets would be overwhelmed with questions of whether lawyers had prepared adequately and employed suitable trial strategies.

Interpretations from Necessity and Experience In Missouri v. Holland, a case testing whether the federal government's treaty power could supplant the power of a state to control migratory birds (a question not much on the minds of George Washington, James Madison, and company), Justice Oliver Wendell Holmes wrote in 1920, "When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Interpretations from Precedent Most decisions of the Court rest on precedent, as outgrowths of earlier decided cases. In ruling on whether a new set of circumstances fits within a constitutional provision, the Court often refers to its earlier cases and reasons from them. In certain cases, it looks to what the First Congress did and to whether the precedent set by that Congress has generally been followed. Criticism of particular cases is often misguided because the critic overlooks the fundamental approach of case-bycase adjudication. Often it is only in hindsight that we can see the Court groping toward a more general solution to a difficult set of problems. The Court's rationale in Brown v. Board of Education was attacked initially because it was limited and raised as many problems as it settled. But within

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a decade it became clear that the Court was settling on a broader rule. Likewise, the Court's initial privacy rulings may be attacked as made up out of whole cloth. Dissenting in Griswold v. Connecticut, the 1965 birth control case, Justice Potter Stewart said that he could find no "general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided" by the Supreme Court. But eight years later, in Roe v. Wade, Stewart concurred in the judgment that laws against abortion violate a woman's right to privacy, because later cases made it clear that the real basis of Griswold was the unconstitutionality of invading a person's liberty, which is protected by the Constitution, and not a pure right of privacy, which is not. Though not absolute, the lure of precedent is very strong. Many justices who might not originally have accepted a constitutional doctrine wind up adhering to it because it has become a settled expectation of daily life. The most telling example is, of course, Roe v. Wade, adhered to by Courts with justices appointed largely by presidents who had sworn to overturn it. To focus on any single approach to interpreting the Constitution is to falsify historical reality. Few cases favor one approach and exclude others. Nor do the justices often announce that they are following one approach or another. Their interpretive methods are usually implicit and masked. Moreover, the entire enterprise of interpreting the Constitution is at best ramshackle. Because precedents are collected in books, and now in data banks, we can observe the "evolution" of constitutional thought through a complete fossil record. Every constitutional decision published by the United States Supreme Court sits in all but the most modest law libraries, and each is instantaneously retrievable by anyone with a computer, a modem, and the funds to go online. This lush growth of the constitutional forest means that the Court must often engage in attempting to reconcile the unreconcilable, to fit together a pattern of cases decided at different times for different reasons by different justices with different agendas. One may legitimately puzzle why inferences drawn in one field are not permitted in another. For example, the Court has said that the Speech and Debate Clause, which immunizes members of Congress from lawsuits, also embraces their staff employees because it is impossible to carry on legislative business today without staff. On the other hand, the Court refused to follow this logic in the search and seizure arena, holding in Smith v. Maryland that people have no reasonable expectation of keeping private the telephone numbers they dial, even though, as Justice Thurgood Marshall pointed out in dissent, "unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance." Often a decision will hinge on the severity of the facts and circumstances, forcing the Court to adopt a doctrine that it might otherwise have avoided. For example, a debate rages over whether the Eighth Amendment prohibits criminal sentences disproportionate to the crime. In a 1991 case, Harmelin v. Michigan, Justice Antonin Scalia said there is no warrant in the Constitution or in history for a rule of proportionality. But a majority of the Court decreed otherwise, at least for sentences that are "grossly disproportionate" to the crime. Justice Byron R. White noted that the Constitution does condemn "excessive fines" and said that it would not be "unreasonable to conclude that it would be both cruel and unusual to punish overtime parking by life imprisonment." Since legislative majorities rarely do grossly disproportionate things, the general rule is that if a legislature has voted for it, it is not grossly disproportionate. But when an aberration occurs, even those who are strict constructionists will find a way to rule against it. Even Scalia agrees that the death penalty may not be used except for murder. We return, therefore, where we began. There can never be a fixed, unyielding meaning to the Constitution for the same reason that the Constitution endures. It remains a charter of shimmering truths and obscurities that will ever be tailored to our own purposes, no matter how much genius is devoted to proving that the One True Way should yield some other result.

13

H O W T H E SUPREME C O U R T HEARS A N D D E C I D E S CASES

We associate the Constitution with the United States Supreme Court because for two hundred years the Court has been its authoritative interpreter. But the Supreme Court does not issue rulings willynilly. A few years ago, a Washington journalist wrote that "by ninth grade . . . I heard about the Constitution of the United States. . . . I thought of the Supreme Court as something like a group of Super Bad guidance counselors who were always there to give an opinion on teen problems. I used to send the Court letters posing 'constitutional questions' that bugged me: 'Should wrestling coaches really be teaching psychology?'"* Had one of the justices replied, the ninth-grader would have learned that no pronouncement about the Constitution has any legal effect unless it is the ruling of a court in a case that has properly come before it. A justice would not have told the student what he or she thought about wrestling coaches, because federal judges do not give their opinions to just anyone who seeks constitutional enlightenment. You cannot write a letter to procure an opinion, for the Constitution itself dictates that courts remain silent unless they are ruling in an actual case. It may seem to the bleary-eyed scanner of newspaper headlines that sooner or later everything is hauled into court and branded a constitutional issue. But relatively few cases ever come before the Supreme Court, and few of those cases are constitutional. However, when it does decide constitutional cases, its rulings are often momentous. In the 1996-97 term (the last full term with reported statistics before this edition went to press), the Court issued written opinions in only 101 cases of the 7,602 petitions and appeals before it. Of written opinions, 45 dealt with constitutional issues. In almost all the other cases, the Court either denied or dismissed petitions for review or permitted the parties to withdraw their appeals and petitions. The Court granted review in less than 3 percent of the cases appealed.* With very few exceptions, the Supreme Court is an appellate court. It hears appeals of cases decided in lower federal and state courts; it does not try cases by hearing witnesses and gathering evidence. Which types of cases it may hear are determined by federal law; which particular cases the Court ultimately hears it decides for itself. Under the Constitution, Congress may prescribe the kinds of cases to be heard in the federal courts, including the Supreme Court. In the nations early years, Congress gave the federal courts relatively limited jurisdiction, far less than that allowed by the Constitution itself, so that some types of cases could not get into the courts (for further details, see COURTS, CONGRESSIONAL

CREATION

AND

CONTROL

OVER and JURISDICTION). Also, until relatively

recently,

Congress told the Supreme Court that litigants with certain types of cases were automatically entitled to have their cases reviewed on appeal. But since 1988 the Court has been given complete control over its docket; the justices themselves decide which cases they will hear of the thousands that pour in. The justices generally look for cases that raise important constitutional issues, for cases that have received conflicting treatment in the lower federal courts of appeals, and for cases that raise important questions of statutory or regulatory interpretation. In selecting cases, the Court may hear appeals from both federal courts of appeals and state supreme courts.

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H O W THE SUPREME C O U R T HEARS A N D DECIDES

CASES

The Court traditionally begins its term on the first Monday in October and usually concludes the term's business by the end of June, when a flurry of decisions is often released at the very last moment. Occasionally the Court sits longer or is forced to return for a case of paramount importance. For example, in United States v. Nixon, the Court heard oral argument on July 8,1974, concerning whether the president could constitutionally be required to turn over confidential tape recordings in a federal criminal case, and it handed down its extraordinary decision on July 24. Even when the Court is recessed over the summer, a litigant may apply to a particular justice for relief under certain circumstances. Nothing in the Constitution or federal statutes dictates how the justices go about deciding the cases they have chosen to hear. The procedures they use are set by the Court itself and have evolved over many years. For decades the Court has followed the "Rule of Four": if four justices decide to hear a case (in the technical parlance, if they decide to grant a "writ of certiorari," an order to a lower court to send up the record of a case), then the case will be heard. In every case the justices hear, arguments are submitted first in written briefs. Each case is then argued orally. Oral arguments are open to the public. In the Court's early years, oral argument in important cases could sometimes last for days. No longer. Today each side is allotted thirty minutes to present its case. In most cases, the advocates barely begin to make their arguments when they are peppered with questions from the raised, irregularly shaped bench. (The Supreme Court does not sit in panels, as most other appellate courts do; all the justices sit for each case.) When the advocate has five minutes left, an amber light at the podium winks on. When time has expired, amber turns to red, and the lawyer must stop. The justices do not decide the case immediately. Each week, at a conference of the justices, every argued case is discussed and tentative votes are taken. The conference discussion is closed to everyone but the nine justices. Indeed, the conference of the justices is one of the most secret meetings in a town full of secret meetings. Unlike most other meetings in Washington, however, what occurs there is leakproof. By long tradition, the senior justice in the majority assigns the task of writing the opinion to one of the justices. If the chief justice is in the majority, he is the senior justice. If the chief justice is in the minority, the senior justice in the majority is the one who has served longest on the bench. The writer may take one week to several months to circulate the majority opinion, and during that time, in reaction to the opinion itself or as a result of the persuasion of another justice, votes may change. The Court's decision is never certain until it is printed and announced publicly. After oral argument the justices may hold a case for as long as they wish, although almost all argued cases are decided by the end of the term. Occasionally the justices may direct the parties to reargue the case. For example, Brown v. Board of Education, the seminal school desegregation case, was reargued a year after it first came before the Court. But once the Court publicly announces its ruling, the case is decided. Justices may change their minds often while the opinions are circulating privately between their chambers, but once published, the decisions are final and the case is at an end. That does not mean, however, that the constitutional or other issues are necessarily settled. Every issue is always open for reargument in later cases; changed parties, changed circumstances, and changed courts often lead to changed conclusions. That is why, for example, abortion has been so active a topic on the Court's calendar a quarter century after Roe v. Wade. The Supreme Court remains what it has always been—the most powerful constitutional court in the world.

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ABORTION Historically, control of abortion procedures and the power to ban abortion were left to the states. Despite that power, state laws criminalizing abortion date only to the latter part of the nineteenth century; before then it was not a crime to perform or have an abortion. By the mid-twentieth century, however, a majority of states prohibited abortion, although most of them provided an exception when a pregnancy endangered the mothers life. In 1973, in Roe v. Wade, the Supreme Court held 7 - 2 that the fundamental right to PRIVACY, protected by the DUE PROCESS Clause of the FOURTEENTH AMENDMENT, is "broad enough

to encompass" a qualified right to an abortion. Roe is one of the most notable instances of the use of the Fourteenth Amendment to protect a woman's right to act in her personal life without fear of prosecution. In effect, this line of reasoning, called SUBSTANTIVE DUE PROCESS, says

that we retain some personal liberties with which the government may simply not interfere. For sixteen years the Court adhered to this fundamental principle and even strengthened it. In 1989, however, it was cast in wide doubt, without quite being cast aside, by a 5-4 vote in Webster v. Reproductive Health Services. Finally, in 1992, the Court explicitly reaffirmed "the essential HOLDING" of Roe, though modifying its approach, in Planned Parenthood of Southeastern Pennsylvania v. Casey, again in a 5-4 decision. Roe overturned a Texas statute that forbade procuring or attempting to procure an abortion except to save the mother's life. Roe said that the right to an abortion is not absolute; the state's COMPELLING INTEREST in the mother's health

and potential life of the fetus permits some regulation. Trisecting pregnancy, Justice Harry A.

Blackmun announced a threefold rule. In the first trimester, the decision to abort resides solely with the woman and her physician, apparently because available medical evidence showed that abortion procedures at this stage are safer than childbirth. The ruling did permit the states to specify that only a licensed physician could perform an abortion, a position the Court, as recently as 1997, seems to have maintained. 1469 In the second trimester, the state may establish further regulations, if they are narrowly drawn to promote the state's interest in the mother's health. In the final trimester, when the fetus is normally considered viable (that is, capable of "meaningful life" outside the womb), the state may assert its interest in the potential fetal life by proscribing abortion except when necessary to protect the mother's health. One significant effect of Roe was the holding that a fetus is not a "person" within the constitutional use of that term in the Fourteenth Amendment, and hence is not entitled to the process due all living persons whenever the government threatens life, liberty, or property. Roe inflamed public opinion as few modern issues have, and the contentious and anguished debate continues unabated. Critics have charged the 7 - 2 majority (Justices Byron R. White and William H. Rehnquist dissenting) with exercising, in Justice White's words, "raw judicial power." But until 1989 a wavering majority held firm in numerous decisions against legislative attempts to burden the first-trimester right to an abortion. In a COMPANION

CASE, the C o u r t struck

down Georgia requirements that abortions be performed in hospitals accredited by special committees (not applicable to other surgical procedures),

20

ABORTION that two other physicians and a hospital staff committee approve the abortionist's decision to go ahead, and that the abortion be "necessary."639 The Court ruled that after the first trimester, states may neither ban saline amniocentesis as a means of abortion 1874 nor demand that all abortions be performed in full-service hospitals.30 Similarly, the Court struck down statutes requiring women to wait twenty-four hours after consenting to an abortion and doctors to detail to their patients the surgical techniques of abortion and the stages of fetal development.30 In an early case the Court held that states may require women to consent in writing and hospitals to keep records of abortions performed.187'' But in a 1986 case, having grown impatient with the blizzard of devices legislators were inventing to burden the woman's choice, a 5-4 majority held that Pennsylvania's informed consent and reporting statute was fatally defective.2340 That law required the attending physician to tell the woman about the possible physical and psychological detriments of abortion and about all medical risks, and to discuss financial benefits available following childbirth, including the father's responsibility. The statute directed the physician also to give the woman reading material that described the anatomical characteristics of the fetus at two-week intervals and that urged the woman to talk with various public and private agencies offering assistance during pregnancy and after childbirth. Said Justice Blackmun, "All this is, or comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks." The hospital reporting requirements were unconstitutionally intrusive in requiring that the woman show her method of payment, personal history, and reasons for deciding to have an abortion—records that would all be available for public copying. Many states reacted to Roe with laws requiring the woman to obtain consent from her spouse or parents. The Court has voided all spousal consent statutes 1874 but has upheld parental consent statutes within limits not yet clearly spelled out, on the grounds that children do not possess constitutional rights equal to those of adults. The Court has held that an "immature" girl may be refused an abortion unless both parents consent, but the law must permit prompt judicial approval of an abortion, even though the parents fail to consent, when the abortion is in her best interest. 177 A state law may also require a minor pregnant girl to obtain the consent either of a parent

or a juvenile court judge. 1873 The state may demand that a doctor notify the parents of a minor girl before performing the abortion.965 In a pair of cases in 1990, the Court continued to equivocate on the burden to be imposed on minor daughters. Both cases involved statutes requiring parental notice, as opposed to consent. In a case arising from Minnesota's 1981 abortion statute, the Court held that the state could not constitutionally prohibit a doctor from performing an abortion on a minor girl until at least forty-eight hours after both parents have been notified.' 070 Speaking for the 5-4 majority, Justice John Paul Stevens said that in the "ideal family setting," a child's "notice to either parent would normally constitute notice to both." The state should not presume that any one parent is incompetent to provide for a daughter's wellbeing. Moreover, when a family is "dysfunctional" (because of divorce or an abusive parent), the requirement that both parents be notified has been shown to be "positively harmful to the minor and her family." In that same case, however, a different majority of five (Justice Sandra Day O'Connor was the swing vote) upheld a "judicial bypass" of the law, under which a minor daughter can avoid notifying both parents only by obtaining a court order permitting the doctor to proceed. In 1997 the Court reaffirmed its bypass rules, upholding a Montana law that permits the courts to withhold notification to parents on a showing that notification is not in the best interest of the pregnant girl; it is not constitutionally required that notice to parents be waived whenever it can be shown that the abortion is in her best interest. 1276 In the other 1990 case, which arose from a 1985 Ohio abortion statute, a 6—3 majority upheld another limitation on the ability of a minor daughter, unwilling to notify even one parent, to get an abortion. She must prove in juvenile court by "clear and convincing evidence" that she has sufficient maturity to decide to have an abortion without notifying a parent; that one of her parents has engaged in a "pattern" of physical, sexual, or emotional abuse against her; or that notice would not be in her best interests.1742 The court must hold a hearing no later than five days after the girl files her suit and must announce its decision as soon as the hearing concludes; otherwise, the abortion may proceed. The statute contains a limited appeal procedure. The Court has confined the right to an abortion, whether for a minor or an adult, to a

ABORTION woman's legal freedom to choose. This right does not carry with it any implicit further right to economic resources to carry out the abortion. T h e Court has consistently held that nothing in the Constitution limits the power of the states and the federal government to decide what medical procedures to fund. As a result, neither the states nor the federal government has to pay for nontherapeutic abortions. 1 4 1 4 , 1 8 8 2 A state may refuse to pay for an abortion even if it is subsidizing maternity and childbirth costs for the indigent, 1 4 1 4 , 168 and even if the attending physician has certified that the abortion is necessary to preserve the mother's life or health. 1004, 2 5 4 8 In sustaining the Hyde Amendment, the Court explicitly approved a funding cutoff even "in instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians." 2 5 4 8 And in the 1989 Webster case the Court upheld a Missouri statute that prohibits abortions in any public facility.

there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability." Taken on its face, that language appeared to overrule Roe, as the dissenting justices (Blackmun, Stevens, William A. Brennan, and Thurgood Marshall) said, and as Justice Antonin Scalia, in concurrence, urged to his colleagues. As Justice Blackmun put it, "If the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute [in Roe] fail to pass muster?" But Justice O'Connor, also concurring, saw no conflict between Webster and Roe because the burden of the tests imposed by law on the woman will be slight (they are simple to administer and relatively cheap) and because the state required the tests at a reasonable time in the pregnancy and only for the purpose of determining whether the fetus is viable, the condition under which even Roe said that states could ban abortions.

To the consternation of "pro-choice" advocates (in the lexicon of the 1980s, those who favor a woman's right to abortion) and to the delight of "pro-life" advocates (those who would ban abortion), the Court also upheld in Webster a section of the Missouri law that requires physicians to perform a battery of medical tests. Doctors who believe the woman to be twenty or more weeks pregnant must check "gestational age, weight, and lung maturity" to determine whether the fetus is viable. The purpose of the provision is to permit the state to ban abortions at the earliest possible time under Roe, except for the most compelling reasons.

When the Court agreed to hear a challenge to provisions of the Pennsylvania abortion law in its 1991-92 term, many observers thought that Roe might finally be overturned. Since Webster, two new Republican appointees, David H. Souter and Clarence Thomas, had taken their seats on the Court. To the surprise of many, an unusual PLURALITY OPINION jointly signed by Justices Sandra Day O'Connor, Anthony M . Kennedy, and David Souter, backed by Justices Harry A. Blackmun and John Paul Stevens, provided a majority of five to uphold the core of Roe. The plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey restated the three parts of Roe that retain vitality: (1) before viability, a woman may choose to have an abortion "without undue interference from the state"; (2) the state may restrict abortions after viability, assuming that the law grants exceptions to preserve the mother's life and health; and (3) the state has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus." But the plurality swept away Roe's "trimester framework," in which the state's power to restrict abortion increased during each succeeding three-month period, and substituted an "undue burden" test by which a law will be struck down only if its purpose is to place "a substantial obstacle in the path of a woman's choice."

T h e Missouri provision appeared to contradict Roe's trimester rule. Under Roe, the first twenty-four weeks were beyond the state's control. In that period, only the woman and her doctor participate in the decision of whether or not to abort. But the Missouri law, which says a fetus could be viable by the twentieth week, allowed the state to begin to intrude on the woman's decision at that point, essentially a month earlier than under Roe. While denying that the Court was required to rethink Roe, because the state did not claim the power to ban all abortions, a plurality of three justices—Rehnquist, White, and Anthony M . Kennedy—did conclude that they saw no reason that "the State's interest in protecting potential human life should come into existence only at the point of [fetal] viability, and [no reason] that

In the Pennsylvania law at issue, a majority of seven justices upheld provisions requiring that the woman certify in writing that she has been

21

22

A B R I D G I N G THE FREEDOM OF SPEECH warned of the risks of both abortion and childbirth, told the age of the fetus, and notified of the availability of printed material describing alternatives to abortion. Except for emergencies, no abortion may be performed less than twenty-four hours before she receives this "informed consent." This same majority reaffirmed previous cases in upholding a parental consent rule for girls under the age of eighteen with a "judicial bypass" procedure. It also upheld a requirement that abortion facilities maintain certain medical records and report certain information, including the names of referring physicians. But the Court struck down, 5—4, the requirement that no abortion could be performed unless the woman submitted a signed statement that she had notified her spouse. That provision posed an undue burden, the majority said, because "[f]or the great many women who are victims of abuse inflicted by their husbands, . . . a spousal notice requirement enables the husband to wield an effective veto over his wife's decision." Four dissenters—Chief Justice William Rehnquist and Justices Byron R. White, Antonin Scalia, and Clarence Thomas—said that Roe was wrongly decided and should be overruled outright. Concurring with the plurality, Justice Blackmun, the author of Roe, noted that "just when so many expected the darkness to fall, the flame has grown bright" and praised the joint plurality opinion as "an act of personal courage and constitutional privilege." He plaintively concluded his concurrence by stating that the distance between the majority and the dissent "is but a single vote," and added, "I am 83 years old. I cannot remain on this Court forever." He retired two years later. See also: CERTIORARI, WRIT OF; FUNDAMENTAL INTERESTS,

RIGHTS,

AND

KLUX KLAN ACT; PICKETING;

PRIVILEGES; STARE

A B R I D G I N G T H E FREEDOM OF see: f r e e d o m of s p e e c h

KU

DECISIS.

SPEECH,

A B S E N T M E M B E R S This term in Art. I-§5[i] refers to members of Congress absent from the House or Senate chambers during formal business. Neither the Constitution nor any law requires members to be present at all times, but each house may penalize members who are absent. A B S E N T E E V O T I N G There is no constitutional right to an absentee ballot as such, 1 4 8 6 but

a state that makes absentee voting available to some must make it available to all. The Court held unconstitutional a New York state policy denying absentee ballots to suspects awaiting trial and persons serving jail time for misdemeanors. Under New York law, these persons were eligible to vote. The state's denial was a violation of the EQUAL PROTECTION CLAUSE because it permitted people jailed outside but not inside the county of their residence to register and vote. 1 7 2 8 ABSOLUTE from suit

IMMUNITY,

see:

immunity

A B S O L U T I S M In constitutional discussion, "absolutism" refers not to dictatorship but to the theory, pressed most vigorously by Justice Hugo L. Black, that the FIRST AMENDMENT absolutely forbids government from interfering with speech or the press—that is, no one should be prosecuted or sued for anything said or published. Reading the FREE SPEECH CLAUSE strictly, Black said that the words "Congress shall make no law . . . abridging FREEDOM OF SPEECH" mean exactly what they say: no law. Black, who was often joined by Justice William O. Douglas, would have dismissed all prosecutions for obscenity and for incitement to crimes, as long as the defendants were engaged only in speaking or publishing. But, especially in his later years, Black distinguished sharply between speech and conduct with a speech component, such as marching and demonstrations, which he thought could be reasonably regulated. The theory of an absolute right to free speech has never commanded a majority. See also: BALANCING;

SYMBOLIC

SPEECH.

A B S T E N T I O N D O C T R I N E Although it has distinct constitutional overtones, the abstention doctrine is commanded not by the Constitution but by a legal doctrine called COMITY, the judicial respect for the jurisdiction of other courts. The doctrine itself has no precise definition. In fact, commentators have found different abstention doctrines used to permit federal courts to avoid answering constitutional questions. Justice Felix Frankfurter first announced the doctrine in the Pullman case in 1941. 1 9 3 4 The Railroad Commission of Texas required railroads to put a conductor in charge of sleeping cars, but the Pullman Company routinely used porters when only one sleeping car was involved. In those

ACADEMIC days in Texas, porters were black and conductors white. The order meant more jobs for whites at the expense of blacks. There were two issues. Pullman asserted that the order violated several constitutional provisions (the EQUAL PROTECTION

CLAUSE, the DUE

the C O M M E R C E

PROCESS

Clause,

CLAUSE), a s s u m i n g the

and Com-

mission had the authority to issue the order in the first place. If it had no authority, then the ruling could not be enforced—and the court could avoid ruling on the constitutional questions. The Pullman Company sued in federal district court, which held that the Texas laws did not allow the commission to issue the order. The Supreme Court reversed, saying that it was not for the federal court to decide that issue. It should have abstained from exercising jurisdiction until the plaintiffs could secure a ruling from the Texas courts. In practice, the abstention doctrine has many exceptions. For example, the federal courts need not abstain if the state law would be unconstitutional on any interpretation998 or if the state law is clear in a particular case. 1665 A major problem with the doctrine is the expensive delays it can cause. Some cases have required the litigants to wait years between the ruling that the court must abstain and the eventual decision on the merits of the case. Because of such difficulties, the Supreme Court during the 1960s tended to frown on this type of abstention in civil rights and civil liberties c a s e s , 1 2 3 ' 2 5 6 6 although more recent decisions suggest that even in these cases abstention may sometimes be appropriate.2063 A second type of abstention, known as "Younger" abstention, from the 1971 case Younger v. Harris, prohibits federal courts from staying—that is, blocking—state proceedings, a practice Congress first prohibited in 1793. But federal judicial policy on the issue has wavered. 2362 In Younger the Court held that a federal court may not enjoin state criminal prosecutions. The question of whether the state was acting unconstitutionally could be heard in the state court as part of the prosecution itself (and ultimately on appeal in the Supreme Court). The Younger doctrine, however, has grown far beyond the bounds of its original case. It even can result in dismissal of a federal suit filed before the state prosecution has begun, as long as no "proceedings of substance on the merits have taken place in the federal court." 1061 In such situations, the federal courts usually dismiss the case.

FREEDOM

In administrative, or Burford, abstentions, from the 1943 case Burford v. Sun Oil Company, the Supreme Court has said that it makes more sense to have the state courts review challenges to state administrative proceedings, since they are usually "an integral part of the regulatory process."33 However, when the issue is strictly a claim for money DAMAGES, the federal courts may not abstain, even though the issues are intertwined with state regulatory proceedings. 1924 Another type of abstention is limited to questions of EMINENT DOMAIN when the underlying state law is unclear. 1375 Under

DIVERSITY

JURISDICTION,

federal

courts may hear claims based on state law when the parties are citizens of different states. Cases involving domestic relations have been a customary exception to this federal exercise of power to decide state questions. Spouses may not obtain a DIVORCE or resolve ALIMONY or custody issues in federal court. In 1992 the Court held that federal courts need not abstain from hearing money damages suits involving family members.76 The Court has also held that federal courts must defer to state courts when the state courts are acting in a timely manner to resolve constitutional and statutory issues in reapportioning congressional and state legislative districts. 958 Reapportionment is primarily the responsibility of the states, whether through their legislatures or their courts. Unless it can be shown that the branches of state government will fail to perform their constitutional obligation in a timely fashion, "a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it." Finally, under the Rooker-Feldman abstention doctrine, 2026, 6 3 5 as the Court summed up in a 1994 case, "a party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States District Court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." 1171 See also: ANTI-INJUNCTION MENT

OF

POLITICAL

COURTS;

DIVERSITY

JUDICIAL

REVIEW;

ACTS;

APPORTION-

DISTRICTS;

JURISDICTION;

DISTRICT ERIE

STATE LAW, MEANING

RULE; OF.

ACADEMIC FREEDOM "Academic freedom" has several meanings, some of which have received constitutional protection. One sense of the term is freedom of a school or teacher from state

23

24

ACCESS T O

BALLOT

control. Another, quite different sense is freedom of a teacher from coercion by the institution itself. Often, constitutional protection depends on whether the school is public or private. Public and private elementary and secondary schools and public colleges may be regulated in many ways—in employment practices, health policies, accreditation standards, and the like. Private colleges are also subject to state and federal regulation, especially when they accept federal and state funds, which almost all do. However, in Regents of the University of California v. Bakke, Justice Lewis F. Powell emphasized the freedom of a university to select its student body, though that freedom does not extend to selection on strictly racial grounds. The Constitution supports academic freedom most strongly in the arena of speech and thought. Teachers may not be fired or otherwise punished for expressing their opinions. In 1957 the Supreme Court for the first time gave First Amendment shelter to a teacher's views. A Marxist lecturer had been convicted of contempt for refusing to answer the New Hampshire attorney general's questions about his political opinions and about what he had said in college lectures. The Supreme Court reversed, citing the right to "academic freedom and political expression." 2 2 8 5 In several LOYALTY OATH cases, the Court subsequently emphasized the "transcendent value" 1 2 3 1 of academic freedom—the freedom of teachers from state censorship and demands for political conformity. Academic freedom protects against more than state prosecution. In public colleges, at least, it protects against dismissal. For many years, employment in public colleges was characterized as a "privilege," and the states had often conditioned teaching jobs on "proper" opinions and statements by teachers both in and out of the classroom. But with the demise of the RIGHTPRIVILEGE DISTINCTION, the Court has said that a state may not fire a teacher for exercising First Amendment rights. 1846 The situation is less clear in private schools, since without STATE ACTION the First Amendment does not apply. Academic freedom is generally broader for colleges and universities than for secondary schools. Concurring in the 1957 case, Justice Felix Frankfurter noted "four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." 2285 This sense of academic freedom for

the institution does not necessarily protect the individual instructor. A current debate centers on the rights of instructors denied tenure to gain access to secret tenure review files to see why they were rejected. The Supreme Court rejected a university's claim that it had an absolute privilege against disclosure of these records. If the rejected tenure applicant asserts a valid legal claim (for example, race or sex discrimination), the files must be made available. 2420 ACCESS TO BALLOT There is no general constitutional right to run for office—at least no one has ever recognized a need for one, since no state has ever banned elections. (Such a ban would presumably run afoul of the REPUBLICAN FORM OF GOVERNMENT clause.) But historically states have severely handicapped minorparty candidates' access to the ballot, despite an obligation under the EQUAL PROTECTION CLAUSE to treat candidates equally. Defining "equal" is the principal problem. The states are entitled to reasonably limit the number of names on a ballot, but not by conditioning access solely on whether a candidate can afford a filing fee. 1384 Nor may the states condition access on race. For example, a Louisiana ballot listing candidates by race was held unconstitutional.72 It is more difficult to articulate a satisfactory constitutional theory for sustaining or overturning state laws and policies not related to wealth or race, many of them obviously outrageous,* that freeze out some candidates altogether. The requirements for qualifying for local, state, and national ballots are a standing reproach to constitutional principles, although it is expensive to expose them in court and difficult to attack them all at once. Some policies, reasonably employed, may be unexceptionable—such as residency restrictions and party affiliation. The Court has upheld DURATIONAL

RESIDENCY

REQUIREMENTS

of

five1203 and seven 2277 years. But one major impediment to inclusion on a ballot is the requirement that the candidate demonstrate a degree of popular support. Laws that provide automatic placement on the ballot to major-party candidates and require lesser-party candidates to file petitions may be upheld if reasonable. For example, the Supreme Court upheld a Georgia law requiring all candidates who wish to run in a general election but who did not win a primary election to file petitions from registered voters equal in number to 5 percent of those who voted

ACCESS TO PRISONS A N D PRISONERS in the previous election. Candidates from parties receiving more than 20 percent of the vote in the previous election are excused from having to gather the petitions. 1167 The Court has also sustained laws, common in most states, that prohibit a person running for office from appearing on the ballot as the candidate of more than one party. 2349 However, sometimes the legal scheme is so complicated that it keeps all but the two major parties off the ballot. The Supreme Court struck down such an Ohio scheme, 2542 and it voided an Illinois law requiring independent candidates to obtain signatures from twenty-five thousand voters statewide; these petitions had to include at least two hundred voters from 50 of the states 102 counties. 1592 The Court noted that the effect of this law was that voters in the 49 most populous counties, containing almost 94 percent of the voters, could not form a new party under the law. The Court also struck down another Ohio law that required an independent candidate for president to file public notice of his candidacy eight months before the general election, whereas the major-party candidates did not have to do so for several more months. 70 The law was aimed at keeping off the ballot third-party candidates such as John Anderson, who ran against Jimmy Carter and Ronald Reagan in 1980. It is unconstitutional to print the major-party candidate's names on absentee ballots while leaving off the names of independents.61 And a complex Illinois law designed to make it difficult to organize a new political party was struck down as an unconstitutional burden on the right to run for office because it discriminated between building parties to run district and statewide races and because it unconstitutionally denied a party label to those running with the party's blessings.1709 On the other hand, the Court upheld a Washington State law that kept from the ballot any minor-party candidate who had not received at least 1 percent of the primary votes. 1614 See also: ABSENTEE VOTING,

RIGHT

VOTING;

TERM

TO; WRITE-IN

LIMITATION;

VOTE.

A C C E S S T O B R O A D C A S T I N G With limited though important exceptions, the Supreme Court has rejected government orders to broadcasters to grant air time to particular persons who would like access to their vast audiences. In Red Lion Broadcasting Co. v. Federal Communications Commission, the Court in 1969 approved the so-

called fairness doctrine requiring broadcasters to give free time for replying to personal attacks on the air or for responding to political editorials. The Court did not establish a general constitutional right to access; it said rather that the F C C may impose such a requirement and may revoke it if it chooses. Four years later, in Columbia Broadcasting System v. Democratic National Committee, the Court rejected the claim that the Constitution requires radio and television networks to sell political parties time to air dissenting views on controversial social and political matters. But the Court did hold in 1981 that the F C C may revoke the broadcast license of a station that refuses to permit a legally qualified candidate for federal office to buy broadcast time; the Court emphasized that it was upholding this right to access as a narrow exception to the general rule against a right of access.418 See also: BROADCASTING, EQUAL

TIME,

MENT; FREEDOM OF SPEECH; PRESS; RIGHT

REGULATION

BROADCASTERS;

FIRST

OF;

AMEND-

FREEDOM OF THE

TO REPLY.

A C C E S S T O C O U R T S , see: c o u r t s , cess to A C C E S S T O E V I D E N C E , see: access to

ac-

evidence,

A C C E S S TO G O V E R N M E N T D O C U M E N T S , see: f r e e d o m of i n f o r m a t i o n ; g o v e r n m e n t d o c u m e n t s , c o n f i d e n t i a l i t y of A C C E S S TO INFORMATION, see: f r e e d o m of i n f o r m a t i o n ; g o v e r n m e n t docum e n t s , c o n f i d e n t i a l i t y of; t r i a l , p u b l i c A C C E S S T O P R E S S , see: f r e e d o m the press; right to reply

of

ACCESS TO PRISONS AND PRISONERS Prisoners retain some but not all constitutional rights. Regulations reasonably necessary to maintain order and security in prison, to prevent escape, to aid in rehabilitation, and to punish will be upheld. But a pervasive system of censoring prisoners' mail may be constitutionally impermissible. In one leading case, the Court prohibited prison authorities from censoring incoming and outgoing letters that "unduly complain [ed]" or "express [ed] inflammatory . . . views or beliefs" or were "otherwise inappropriate." 19 ' 2 On the

2S

26

A C C E S S TO PRIVATE PROPERTY other hand, the Court approved a prison regulation that barred prisoners from soliciting each other to join a prisoners' union or from receiving bulk mailings about unions from outside the prison walls. That regulation, the Court said, was reasonably calculated to avoid disorder." 8 9 And whatever a prisoners right to communicate with others, the Court has said that there is no constitutional right of others, in particular the press, to gain access to prisoners in face-to-face interviews, especially when alternative means are available for prisoners to communicate with the outside world (for example, through mail and visits with family, friends, and clergy). 1 8 1 7 ' 2 0 8 1 ACCESS public

TO

PRIVATE

forum;

public

PROPERTY, function;

see: shop-

ping centers, access to ACCESS TO PUBLIC

P L A C E S , see:

pub-

lic f o r u m A C C E S S T O S C H O O L S , see: p u b l i c f o r u m A C C E S S TO

SHOPPING

CENTERS,

see:

shopping centers, access to A C C E S S TO T R I A L , see: t r i a l , p u b l i c A C C O U N T OF T H E R E C E I P T S A N D E X PENDITURES OF ALL PUBLIC MONEY Article I-§9 [7] requires the U.S. government to account publicly for receipts and expenditures. Public accounting comes from the Office of Management and Budget, through the annual U.S. budget and a plethora of other documents (although a BUDGET itself is not required under this or any other constitutional provision). The Supreme Court has never interpreted this provision, although questions have arisen about the government's expenditures on the Central Intelligence Agency; the budget of the CLA, as of this writing, is secret and remains unpublished. The Court dismissed a 1974 challenge to the secrecy of the C I A budget by holding, 5-4, that the taxpayer who filed suit lacked STANDING. 1987 ACCUSATION, NOTICE AND SPECIF I C I T Y O F Anyone charged with a crime has a SIXTH AMENDMENT right "to be informed of the nature and cause of the accusation." The purpose of this provision is threefold: to permit the defendant to prepare an adequate defense, to protect against the possibility of a second prosecu-

tion on the same charge, and to tell the trial court whether the government has stated a legally sufficient case. Usually, the constitutional notice comes in the form of an INDICTMENT or INFORMATION. In a leading nineteenth-century case, the Court invalidated a federal prosecution in which the indictment charged that the defendants intentionally interfered with certain citizens in their "free exercise and enjoyment . . . of the several rights and privileges granted and secured to them by the constitution." In effect, the prosecutors merely repeated the language of the criminal law under which the defendants were charged. The Court said that the prosecutors must give particulars; that is, they must state which rights and privileges the defendants were being accused of interfering with. 564 An indictment also must allege specific facts relating to the crime. If the defendant is accused of burning down a building, the notice must say which one ("a building on the northwest corner of Main and South streets"). 399 The requirement of specificity covers any legally relevant circumstance. For example, it is a federal misdemeanor for a congressional witness to refuse to answer "any question pertinent to the . . . [subject] under inquiry." A person may not be indicted for failing to answer a question that does not state the subject of the inquiry because the trial court cannot decide whether the questions asked of the witness were "pertinent." 2047 The Sixth Amendment right to notice applies to both federal and state prosecutions.1760,1931 A C C U S A T O R I A L S Y S T E M In the United States, criminal defendants are investigated and brought to trial through an accusatorial criminal justice system. Under this system, familiar to anyone who has watched L.A. Law, Law and Order; or any of the countless other dramas about trials, the prosecution and defense of a case are in the hands of the lawyers. The judge's role is to hold both the government and the defense to the rules of evidence and trial procedure. The criminal justice system in most other countries is based on the "inquisitorial" principle. The judge plays a much greater role in investigating the case and in shaping the governments trial strategy, and the defendant has fewer opportunities to consult his or her lawyer or avoid talking to the police and prosecutors. In our accusatorial system, it is up to the government to prove the defendant guilty, and the government bears a difficult burden: to prove guilt "beyond a REASONABLE DOUBT." It is not

ACTION the defendant's j o b to prove his or her innocence.

doctrine is an exercise o f the Court's power to de-

In inquisitorial systems, there is no PRESUMP-

clare general

TION OF INNOCENCE: the defendant bears the

l a w — f o r the United States. Congress could pre-

burden of proving that he or she did not c o m m i t

sumably repeal the doctrine if it chose to do so.

law—in

this case,

international

the crime. T h e accusatorial system rests as m u c h

In 1 9 7 6 a plurality o f four justices said that the act

on

the

of state doctrine should not apply when the chal-

Constitution, which does not explicitly create or

lenged foreign acts are "purely commercial" (for

require it. However, many provisions in the Bill

example, if a foreign government repudiated a

o f Rights,

contract to buy or sell a commodity). But a C o u r t

centuries-old

custom

including

as it does on

the right against SELF-

INCRIMINATION, the assistance of counsel, the

majority has not yet been mustered for that

right to a speedy and public trial, and the prohi-

proposition. 4 3

bition against DOUBLE JEOPARDY, would stand

T h e act of state doctrine does not apply unless

in the w a y o f any state that wished to adopt an in-

the court is being asked to hold that an official

quisitorial system.

act of a foreign country is unlawful. In a recent

See also: COMPULSORY PROCESS; COUNSEL, ASSISTANCE

OF;

TRIAL, PUBLIC;

ACCUSED

As

PROCEDURAL

DUE

PROCESS;

TRIAL, SPEEDY; TRIAL BY JURY.

used in the SIXTH

.

AMEND-

MENT, "accused" refers to the person w h o is charged with a crime and will be brought to trial. T h e term is somewhat broader than "defendant," which ordinarily refers to the accused in court. A person suspected o f being involved in a crime is not "accused"

until

formally arrested or

ar-

raigned.

case, a U . S .

company

charged

that

another

American company had bribed Nigerian officials to secure a construction contract. Bribery is a criminal act under Nigerian law. T h e trial court dismissed the complaint under the act of state doctrine, saying that a U . S . court cannot be asked to determine "the motivation o f a sovereign act which would result in embarrassment to the sovereign." T h e Supreme C o u r t reinstated the lawsuit, holding that the act o f state doctrine does not bar lawsuits that may embarrass foreign governments;

the question

in the case was

not

whether the bribe was illegal, but simply whether it was offered and accepted. 2 4 5 2

ACQUISITION citizens and ACT state

OF

OF

CITIZENSHIP,

see: See also: FEDERAL

citizenship

STATE

doctrine,

first

DOCTRINE formally

T h e act of

recognized

in

ACTING

COMMON LAW.

PRESIDENT

T h e term "acting pres-

ident" is relatively new, having been added to the

1 8 9 7 , 2 3 9 6 holds that the courts of the United

constitutional

States may not question the "validity o f the pub-

AMENDMENT in 1967 to deal with presidential

lic acts a recognized foreign sovereign

disability, although the TWENTIETH

power

commit[s] within its own territory." 1 4 1 T h i s doc-

lexicon

in the TWENTY-FIFTH AMEND-

MENT says that a vice president may "act as pres-

trine bars private litigants from seeking DAM-

ident" if a president fails to be chosen by the start

AGES for injuries done to them by the laws of an-

o f a new term. Whenever the president declares

other

that he is unable to discharge the powers and du-

nation.

For

example,

when

foreign

governments expropriate companies or other pri-

ties of office, the vice president "immediately" as-

vately held property, the owners may not seek

sumes the office as acting president. T h e declara-

compensation in U . S . courts by arguing that the

tion of inability can be made instead by the vice

expropriation

LAW.

president and a majority of the cabinet. N o pres-

Likewise, a marriage lawfully contracted in an-

ident has ever formally invoked this provision, al-

violates INTERNATIONAL

other country may not be attacked in a U . S .

though Vice President G e o r g e Bush in effect

court as null and void on the ground that mar-

served as acting president for about eight hours in

riage between those two particular people would

1986, under the terms o f an informal agreement,

not be permitted anywhere in the United States.

when

Strictly speaking, the act o f state doctrine is not

surgery.

President

Reagan

underwent

cancer

constitutionally based, although it has, in Justice J o h n M . Harlan's words, "constitutional under-

A C T I O N , see: c a u s e of a c t i o n ;

pinnings" arising out of the SEPARATION

ment,

OF

POWERS. 1 4 1 M o r e realistically, the act of state

state

affirmative action

govern-

obligations

of;

27

28

ACTIVISM A C T I V I S M , see: j u d i c i a l a c t i v i s m A C T U A L M A L I C E , see: m a l i c e AD VALOREM T A X E S , Export Clauses

see:

Import-

A D D I C T I O N Making it a crime to "be addicted to the use of narcotics" violates the Cruel and Unusual Punishment Clause of the E I G H T H A M E N D M E N T , according to a Supreme Court ruling in 1962. 2009 The Eighth Amendment prohibits punishing someone for "mere status" as an addict, in the absence of showing that the person had bought, sold, or used narcotics in the state. In a later case involving alcoholism, the Court said that the meaning of the rule against punishing addiction is that it is cruel and unusual to punish someone for doing what he or she is powerless not to do. 1897 See also: PUNISHMENT,

CRUEL AND

UNUSUAL.

A D E Q U A T E S T A T E G R O U N D S Many appeals to the Supreme Court from state supreme court decisions raise questions of both federal and state law. Since the Supreme Court does not have jurisdiction to hear appeals of cases presenting state issues only, which part of the case, if any, may the Supreme Court review? If the case was decided wholly upon "adequate state grounds"—that is, under state law, without requiring an interpretation of federal law or the Constitution—the Supreme Court may not hear an appeal at all. In 1945 Justice Robert H. Jackson explained the basis of the rule as follows: "Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." 1049 The Supreme Court sometimes looks for ways to avoid exercising federal jurisdiction—cases involving the A B S T E N T I O N D O C T R I N E , for example—and the adequate state grounds rule seems to be another ideal rationale for that result. But in some recent decisions the Court has turned the rule on its head to permit it to hear cases it would otherwise be powerless to review. In Michigan v. Long, the police had searched the defendant's car, and on appeal the Michigan Supreme Court

found that the search violated the defendant's rights against unreasonable S E A R C H A N D S E I Z U R E . Most of the state court's discussion of the issues centered on the FOURTH A M E N D M E N T , a federal constitutional question. The Supreme Court has both the constitutional power and the legal authority to review whether the Michigan court had correctly interpreted the federal constitutional rules governing search and seizure. But at the end of its opinion, the Michigan Supreme Court noted that the search was invalid under the state constitution as well. Said the state court, "We hold, therefore, that the deputies' search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution, and Art. I § I I of the Michigan Constitution." Did that mean the case rested on adequate state grounds that would preclude a Supreme Court review? The Court said no. Justice O'Connor announced a new rule: Unless the state court unmistakably declares that its decision was based on an adequate and independent state ground, the Supreme Court "will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so." In short, unless the state court says something like, "We really mean it," the Supreme Court will feel free to review. In the 1983 Long case, the new rule allowed the Supreme Court to use the case as a vehicle for narrowing the scope of the federal constitutional right—the reason, critics charge, that the Burger Court changed the understanding of the adequate state grounds rule. But state courts can avoid the impact of this rule by clearly and plainly stating that the basis of their decision was the state law. The Court has applied this "plain statement" rule to procedural questions as well. The problem here is that a state court might refuse to enforce a litigant's federal rights because the litigant failed to meet a filing deadline or to raise the issue in a certain manner. For example, suppose a defendant in a state prosecution objects to a confession introduced against him at trial on the ground that it was coerced, a violation of the FIFTH A M E N D M E N T . And suppose the state court rules that it will not consider the defendant's argument because he did not raise it soon enough. May the Supreme Court hear an appeal on whether the state violated the Fifth Amendment? Until the 1980s the Court had said that it could not review the case if the state's procedural ground for refusing to consider the federal question was

ADMINISTRATIVE AGENCIES A N D "fair" and "substantial." 2 5 3 7 ' 1 0 4 4 This was a hard test for defendants to overcome. In 1985 the Court, following Long, said that such cases are reviewable unless the state court "clearly and expressly" says that it is basing its decision on a state procedural requirement. 3 5 8 , 1 0 0 6 But even clearly basing a decision on a state procedural rule will not necessarily prevent the Court from reviewing. In a 1991 case, a Georgia murder defendant who had been sentenced to death appealed on the ground that the state prosecutor had unconstitutionally excluded blacks from the jury. T h e state supreme court said that it could not consider this argument because the defendant did not raise the issue at the appropriate time. But the Georgia Supreme Court announced the rule governing timing after the conviction, and it was now attempting to apply the rule retroactively to bar appeal. Such a retroactive application of a procedural rule, said Justice David Souter for a unanimous Court, "does not even remotely satisfy" the requirement that to be an adequate and independent state ground barring appeal in the Supreme Court, the state rule must have been "firmly established and regularly followed" as of the time it is invoked. Since it had not been established at all before the defendant's trial, the rule could not be invoked to defeat the defendant's federal constitutional rights. 794 See

also:

OPINIONS;

ABSTENTION HABEAS

DOCTRINE; CORPUS;

ADVISORY

JUDICIAL

AC-

ENEMIES,

see:

TIVISM.

ADHERING treason

TO

THEIR

ADJOURNMENT, EFFECT T I O N , see: p o c k e t v e t o ADJOURNMENT, TIME adjournment

ON

LEGISLA-

OF, see: t i m e

of

ADMINISTRATIVE AGENCIES AND BUR E A U C R A T I C G O V E R N M E N T The United States government only remotely resembles the structure outlined by the Framers in the Constitution. The notion that so much detailed lawmaking could come from a bureaucracy largely insulated from the people and even from the executive branch would have been, one supposes, occasion for some merriment. Not that administrative government was unknown in their time. The Confederation Congress had created a

BUREAUCRATIC

GOVERNMENT

small bureaucracy that carried on the real work of the government.* The Framers understood that the kind of administration these early civil servants carried out was necessary, but the constitutional reference in Art. II-2[i] to the "principle officer in each of the executive departments" suggests that the Framers considered that the administrative arm would always be subordinate to the central parts of the government. Had they realized that these assistants and deputies, and in time thousands of other administrators, would be wielding considerable legislative, executive, and judicial authority, they surely would have placed some restraints in the Constitution itself. Instead, a powerful administrative state and a network of legal and political controls have grown up both despite and because of the Constitution's silence. The agencies over which the president has the most control are the departments that directly constitute the executive branch: the cabinet or executive departments (State, Treasury, Justice, Defense, and the others). The president nominates the cabinet secretaries and assistant secretaries (subject to Senate confirmation) and may fire them at will. He has considerable power to shape the policies and even operations of executive departments; he is, after all, the chief executive. Congress may provide that violation of a regulation be punished exactly as if it were an enactment of Congress, 1 2 5 1 including criminal penalties. 949, 2 4 8 But the penalties must be stated in the congressional statute authorizing the regulation; the administrative agency may not invent a new punishment or enlarge one set out in the law. 1 2 6 6 However, there is another sort of federal agency, the "independent" administrative agency, such as the Federal Trade Commission and the Securities and Exchange Commission, that is not mentioned in the Constitution. The president appoints their heads or members but has little if any power to intervene directly in their policies or decisions. And, except in rare instances, the president has no power to remove agency heads. These agencies, and many others within the traditional executive departments, have an amalgam of powers to make rules (a legislative function), to investigate cases (an executive function), and to hold hearings and assess fines and other penalties (a judicial function). In varying degrees, the independent agencies have, therefore, considerable power to declare, enforce, and interpret law. For example, much detail in the federal tax law comes not from Congress but from regulations written by the Internal Revenue Service and the Treasury

29

30

ADMINISTRATIVE

HEARINGS

Department. The Federal Reserve Board is entrusted with a great deal of power over the economy; the "Fed" and its chief are legally independent from the president. The National Labor Relations Board oversees union elections and collective bargaining, largely under rules of its own making. The Court has held that unless there is evidence of bias in a particular case, legislative, executive, and judicial functions may be constitutionally combined in a single agency.2573 Administrative agencies are not limited to issuing rules of general applicability, such as rules concerning gas mileage for automobiles or product labeling requirements. Agencies may also issue orders to particular persons, much as a court might issue an injunction. In dozens of cases since the late nineteenth century, the Supreme Court has approved the general principle of administrative jurisdiction over private persons and entities—railroad rate regulation, 1138, 1 6 7 5 , 64 orders by the secretary of war to remove bridges obstructing navigation,2398 orders by the secretary of labor to deport aliens found to be "undesirable residents," 1415, 2 3 5 1 and decisions by the Federal Communications Commission to grant or deny licenses to particular applicants for radio and television stations. 1636 In an important sense, therefore, the independent agencies have become a fourth branch of government. Yet because the Constitution creates, in name, only three branches of government, the administrative bureaucracy must belong somewhere, so we conventionally locate it in the executive branch. The Constitution provides f o r SEPARATION

OF

POWERS

but

grants

the

head of the executive branch, the president, relatively slight legal power to direct the workings of indépendant agencies, though the president has considerable political control through the power of appointment. The agencies are subject to both political and legal control by Congress, to the extent that Congress can find the energy and time to deal with them. Congress creates the agencies, provides operating rules, and funds them. Their power to act comes from Congressional delegation of power. Congress oversees agencies in part through annual appropriations hearings and in part through policy hearings. If a majority of its members is disposed to doing so, Congress can override any particular agency rule. If the Internal Revenue Service says, "We interpret the home office deduction to be limited to the following

kinds of expenses," Congress may pass a new law, overriding the administrative rule. If the Federal Trade Commission says, "Used car dealers must post the mileage of their cars in three-foot-high red letters," Congress may intervene to nullify the ruling. (But Congress may not overturn the decision in an administrative case heard by the agency.) Since it is politically impossible to oversee every rule and every action of all the agencies, for nearly fifty years Congress resorted to a LEGISLATIVE V E T O , b y w h i c h o n e h o u s e c o u l d u n i -

laterally overturn an agency rule. In 1983 the Supreme Court said that legislative vetoes are unconstitutional. 1125 Administrative agencies are subject also to JUDICIAL REVIEW. A s organs o f the g o v e r n m e n t ,

they must observe constitutional limitations. For example, the Immigration and Naturalization Service may not simply order a person to be deported, without first affording a hearing on whether there are grounds to do so. 2585 Likewise, agencies are bound by federal law and may be held to account in the courts for acting outside the scope of the authority given them in federal statutes. In recent years, the notion of an independent administrative power—that is, a fourth branch within the federal government—has come under fierce attack. Although the Court in the 1980s overturned some major policies on that ground, 2 4 7 , 1 1 2 5 it has consistently rejected the assertions of many presidents that they are constitutionally entitled to supervise every action of every agency or executive official even if Congress has decreed otherwise. With Chief Justice Rehnquist writing the opinion in the 8-1 decision upholding the powers of independent counsels 1599 and joining the 8-1 decision in a case upholding the power of the U.S. Sentencing Commission, 1574 it seems unlikely that the Court will seriously erode the historical position of administrative agencies and the administrative state. See also: ADMINISTRATIVE

HEARINGS;

TRATIVE LAW; APPOINTMENT POWER; DELEGATION

AND

ADMINISREMOVAL

DOCTRINE;

EXECUTIVE

HEARINGS

Federal a d -

BRANCH.

ADMINISTRATIVE

ministrative agencies are bound by the PROCEDURAL DUE PROCESS r e q u i r e m e n t s o f the FIFTH

AMENDMENT that apply to court cases (just as

ADMINISTRATIVE LAW state agencies are bound by the procedural due process requirements of the FOURTEENTH AMENDMENT). In general, before an administrative agency can deprive a particular person of life, liberty, or property, it must hold a fair hearing before an impartial hearing officer. 2585 However, agencies need not hold a hearing at the same stage of each type of proceeding, as long as the aggrieved party can be heard before a final order becomes effective. 1764 In special circumstances, a judicial hearing even after the final order may suffice. For example, the emergency seizure of adulterated foods and drugs 1 7 1 2 and the suspension of a drivers license for refusal to take a breath test when the driver is suspected of being drunk 1407 may be accomplished before a hearing.245 In rare circumstances, the Court has approved administrative action without any hearing. A controversial instance was the Courts 5—4 1961 decision in Cafeteria Workers,354 permitting the summary exclusion of a cook from a naval base on security grounds without her even being informed of the basis of the charges against her, and without her being given a chance to rebut. Although the Constitution controls the outer contours of the administrative process, it is too blunt an instrument to detail the ways in which the many dozens of agencies should do their jobs. In 1946 Congress enacted the Administrative Procedure Act (APA), the basic law governing how agencies are to issue rules and regulations and to hold hearings. The act provides for impartial hearing officers, termed "administrative law judges," to hear administrative cases involving particular individuals or companies. The act also provides for appeal procedures within the agencies and from the agencies to the federal courts. Judicial review is not guaranteed in every proceeding. Under the APA, if Congress commits a matter to the discretion of an agency, a court may not review the agency's exercise of that discretion. A simple example is the discretion of the U.S. Postal Service to issue commemorative stamps; the decision to celebrate one person rather than another belongs to the Postal Service, not the courts. Likewise, decisions about rates, charges, and tolls established by rate-setting agencies are within the administrative discretion of the agency; a court may not recalculate the rates. 1793 An agency's findings of fact are ordinarily unreviewable in court if the findings are supported by "substantial evidence." But courts may review and overturn any administrative action that is

"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See also:

ADMINISTRATIVE

REAUCRATIC LAW;

ALIENS;

HEARING; TION;

DEPORTATION;

LIBERTY;

PRIVILEGE

DISTINCTION.

ADMINISTRATIVE and

BU-

ENTITLEMENTS; AND

LOYALTY-SECURITY DUE

AND

ADMINISTRATIVE

IMMIGRATION

PROCEDURAL

search

AGENCIES

GOVERNMENT;

PROCESS;

NATURALIZAPROGRAMS;

PROPERTY;

RIGHT-

INSPECTIONS,

see:

seizure

ADMINISTRATIVE

L A W

"Administrative

law"

has two distinct meanings. It can refer either to that body of law, including the ADMINISTRATIVE PROCEDURE ACT, that controls the operations and conduct of administrative agencies or to the rules and regulations that the agencies themselves promulgate. In the first sense, although it has constitutional components, administrative law is largely a question of statutory law. Most judicial decisions in the area are concerned with whether agencies followed the requisite legal procedures and acted within the scope of their authority. Constitutional components include issues of DELEGATION DOCT R I N E a n d the necessity o f J U D I C I A L

REVIEW.

In the second sense, administrative law is the body of rules and regulations promulgated by administrative agencies and the body of their written decisions in cases they hear. Federal agencies issue thousands of rules yearly under authority from Congress. They are published in the Code of Federal Regulations, now hundreds of volumes long. Their outpouring is often the subject of political bluster. In early 1992, President Bush made a show of ordering federal agencies under presidential control to cease for three months from issuing new regulations that might retard economic recovery—even though for nearly twelve years, first as the head of President Reagan's task force on federal regulations and then as chief executive, Mr. Bush had every opportunity to devise a more lasting solution to the problem of regulatory growth. Once promulgated in final form, federal rules and regulations have the force and effect of law. If they are consistent with the statutory purpose in delegating power to the agency to make them, the courts may not upset them merely because the courts would have written the rules differently. 2105 See also:

HEARING.

31

32

ADMINISTRATIVE PROCEDURE ACT ADMINISTRATIVE PROCEDURE ACT Enacted in 1946, the federal Administrative Procedure Act (APA) was designed to bring order to a field that had become increasingly tangled and confusing as Congress multiplied the number of federal agencies and the ways in which they operated. Among other things, the APA requires agencies to publish notice of proposed rules in the daily Federal Register and to make decisions and other information available to the public. The APA lays out a general scheme for most agencies for making and issuing regulations: they must notify the public of their intention, publish a copy of the proposed regulations, and provide an opportunity for interested persons to comment orally or in writing. Some rulemaking procedures require trial-like hearings. Many agencies administer on a case-by-case basis rather than by general rule making. The APA requires independent hearing officers, now called "administrative law judges," to preside over the agencies' dockets; it also requires an agency to provide appeals from these hearings to the agency heads. But so myriad are the ways in which the administrative agencies operate that the APA has not succeeded in bringing uniformity to the field. Moreover, during the past twenty-five years the courts have been increasingly active in opening agency proceedings, limiting their scope and ensuring that they adhere to their own rules. Without "constitutional constraints or extremely compelling circumstances," however, the courts may not make up rules but must leave agencies "free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." 2437

federal courts exclusive jurisdiction to hear admiralty and maritime cases. That jurisdiction is quite broad, 1663 permitting the federal courts to develop a uniform national law over the whole range of maritime commerce and the shipping industry, including marine insurance, ship charters, collisions, contracts to carry goods, personal injuries while at sea or on navigable waterways, suits by merchant seamen for wages, salvage rights, and many other matters. The Supreme Court has ruled that Congress has the constitutional power to change admiralty and maritime law under the second part of the NECESSARY AND PROPER CLAUSE, which gives Congress the power to make all laws necessary and proper for carrying into execution "all other powers vested . . . in the government of the United States or in any department or officer thereof." 338 This power is separate from Congress's power to regulate interstate and foreign commerce. 845

ADMINISTRATIVE REGULATIONS, a d m i n i s t r a t i v e law

Because admiralty and maritime law is federal, states may not expand or decrease it. In the absence of federal law, states may punish crimes on navigable waterways within their jurisdictions. 1422 But a major tension has existed between the states and Congress over the extent to which maritime law covers some types of cases. In Southern Pacific Co. v. Jensen, a New York longshoreman was killed by hitting his head as he drove his loading truck out of the cargo hold of a ship and onto the dock. The company and his fellow workers were held blameless. His family had no remedy because the maritime law did not then permit recovery for death without fault. The state of New York, however, had enacted a workers' compensation system under

see:

A D M I N I S T R A T I V E S E A R C H , see: s e a r c h and seizure ADMIRALTY AND MARITIME JURISDICT I O N Article III-§2 extends judicial power to federal courts in "all cases of admiralty and maritime jurisdiction." One of the principal purposes of the Constitutional Convention was to eliminate obstacles to a national commerce occasioned by conflicting local rules governing the transportation of goods—particularly over the oceans and the nations waterways. In the Judiciary Act of 1789, the First Congress gave the

Although the early cases suggested that the admiralty jurisdiction should be limited to the high seas and to "tidal waters," 2332 eventually the Court concluded 2326 that any navigable body of water is within the jurisdiction, 2329 ' 2325 even if it is artificial 252 or made navigable only by improvement. 79 A 1995 case suggests just how sweeping the admiralty jurisdiction is. The Court held, 7 - 0 , that the flooding of a building caused by a barge that damaged a freight tunnel running under the Chicago River is within the admiralty jurisdiction, even though the barge was fastened to the river bottom and was used as a work platform, and even though the building damage did not occur until months after the barge damaged the freight tunnel. 1168 The claim satisfied both the "location" and "connection with maritime activity" tests.

ADOPTION AND CUSTODY

which injured workers or their families were entitled to a predetermined payment without having to prove fault. The question was whether the state workers' compensation scheme constitutionally could apply to someone killed while working on a ship that sailed in navigable waters. In a 5-4 decision, the Supreme Court said no. The case prompted Congress to enact the Jones Act in 1920, giving crew members the right to sue for injuries negligently inflicted. Congress further enacted the Longshoremen's and Harbor Workers' Compensation Act in 1927, giving injured workers and their families compensation for accidents on the job. The interplay between federal and state laws governing accidents and injuries is highly complex and beyond the scope of this book, but in 1970 the Court simplified matters somewhat by reversing a long line of cases and finally holding that family members may sue for wrongful death under the general maritime law, even in the absence of a congressional enactmen t. 1594 See also: JUDICIAL

POWER

OF

THE

UNITED

STATES. ADMISSION

OF A L I E N S , see:

ADMISSION TO THE BAR, s e e ;

aliens lawyers

ADMISSION TO THE UNION Article IV-§3[i] gives Congress the exclusive power to admit new states to the UNION, although states may not be carved up and recombined unless the legislatures of the affected states consent. By long tradition, though not by constitutional command,* all states are admitted to the Union on equal footing, exercising all the powers held by the original states.1885 In 1911 the Supreme Court struck down an attempt by Congress to force Oklahoma to relocate its state capital as a condition of admission, on the ground that all states retain the exclusive power to decide where their capital cities will be. 551 ADOPTION

AND

CUSTODY

OF

CHIL-

DREN The right to adoption and custody and the procedures involved are generally matters of state, not federal, concern. In most cases, the determining issue is the "best interest of the child," and that is a matter of fact for the trial court to determine. It is not a constitutional requirement; in 1994, in a case involving the arrest of juvenile ALIENS, the Court held 7 - 2 that there is no con-

OF C H I L D R E N

stitutional right to a custody arrangement that is in the "best interest of the child." 1968 But the "best interest" may not be decided on an impermissible constitutional ground, such as race. In Palmore v. Sidoti, a custody battle arose when a white mother with custody of her daughter married a black man. The girl's father sued for custody, and the judge granted it, revoking the mother's custody because, "despite the strides that had been made in bettering relations between the races in the country, it is inevitable that [the daughter] will, if allowed to remain [with the interracial couple], suffer from the social stigmatization that is sure to come." The Supreme Court unanimously reversed. While admitting the possibility of such stigma, Chief Justice Warren Burger said, "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. [The] effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody." In recent years the issue of a natural father's rights has arisen in adoption cases, usually when the mother has remarried and wishes her new husband to adopt her child. In one such case a closely divided Court struck down a New York state law that permitted the mother of an illegitimate child, but not the father, the right to refuse consent to a child's adoption. 351 The law, said the 5-4 majority, violated unwed fathers' equal protection right because there was no showing of any substantial relationship between the preference given to the mothers and the state's interest in promoting adoptions of illegitimate children. But not every impediment to adoption will be upheld on this ground. In a 1983 case, for example, a father who had never made any effort to see or support his out-of-wedlock two-year-old child filed a paternity suit to have himself declared the real father. Unbeknownst to him, the mother had remarried and the couple was separately proceeding to adopt the girl. When the father found this out, he sued to overturn the adoption, claiming that the state had violated his right to DUE PROCESS because it was obligated to notify him. The Court rejected his claim and upheld the adoption, pointing out that by simply mailing a postcard he could have listed his name with the state's "putative father's registry," which would have notified him when an adoption proceeding began. 1320

33

34

A D O P T I O N OF T H E

CONSTITUTION

See also: DIVORCE;

EQUAL PROTECTION

LAWS;

ILLEGITIMACY;

FAMILIES;

OF THE

RACIAL

DIS-

CRIMINATION.

A D O P T I O N OF T H E CONSTITUTION, see: C o n s t i t u t i o n , r a t i f i c a t i o n o f ADULT

BOOKSTORES

AND

THEATERS

Municipalities have long struggled with the vexing problem of so-called adult bookstores and movie theaters, establishments that exhibit or sell explicit sexual materials. The question is whether such places may be closed down or, if not, to what degree the municipality may regulate their methods of operation and location. Because it has proved impossible to define OBSCENITY AND PORNOGRAPHY precisely, governments are caught between the desire to rid themselves of what, at a minimum, they hold to be offensive displays that lower the tone of their communities, and the c o m m a n d o f the FIRST AMENDMENT

that government refrain from molesting nonobscene speech, even if offensive. One approach has been to create certain zones within the community for adult theaters. In Young v. American Mini Theatres, Inc., the Court in 1976 upheld a Detroit ordinance that severely circumscribed the places where theaters showing sexually explicit movies could be located. N o adult theater could be located within five hundred feet of any residential area or within one thousand feet of any two other regulated uses, including other adult theaters, adult bookstores, cabarets, restaurants or other establishments selling liquor on the premises, hotels, motels, pawnshops, pool halls, secondhand stores, shoeshine parlors, and taxi dance halls. The effect of the ordinance was to force adult theaters to disperse throughout the city. The Court reasoned that Detroit was not trying to regulate the content of the performance or to engage in PRIOR RESTRAINT, but rather to prevent the deterioration of neighborhoods that follows when adult theaters concentrate in a single area. Ten years later the Court approved an ordinance of Renton, Washington, that had the opposite effect: to concentrate all adult theaters into a particular section of town. Renton's ordinance prohibited adult theaters from locating within a thousand feet of any residence, church, park, or school. The Court said that the ordinance was not aimed at the content of the movies but was designed primarily to curb the "secondary effects" of such theaters, such as crime, declining prop-

erty values, and deterioration of the areas in which general retail trade was conducted. 1969 Another approach to adult theaters has been to license their operation, but licensing tends to present problems concerning prior restraint. In 1990, in a case whose reasoning was murky because the justices were so divided, the Court invalidated a Dallas ordinance requiring all sexually oriented businesses to obtain a license from the chief of police, after first getting approval from the municipal fire, health, and building departments. The ordinance was defective because the public officials had no time limit within which they had to decide whether to grant a license and because there was no provision for judicial review of any denial of a license. 829 A bookseller may not be convicted of selling an obscene work if he did not actually know its contents. Otherwise, a bookseller would risk criminal prosecution for stocking any of tens of thousands of titles. 2173, 2 6 0 5 For similar reasons, the government may not order the removal of books or films from a sellers inventory on the basis of a prior determination that the works were obscene; sellers are always entitled to relitigate the question of whether the works are obscene and to an independent appeal of any decision against them. 1 5 0 1 See also: NUDITY; SPEECH;

OFFENSIVE

AND

INDECENT

ZONING.

A D U L T E R Y , see: s e x u a l f r e e d o m A D V E R T I S I N G , R I G H T TO, see: c o m mercial speech; professionals, advert i s i n g by A D V I C E A N D C O N S E N T Article II-§2[z] conditions the presidents power to make treaties and to appoint major federal officials on obtaining the "advice and consent" of the Senate. Treaties require a two-thirds affirmative vote; nominations require a majority vote. The provision today operates solely to give the Senate the power to check the president's actions; the "advice" part of the requirement became moribund very early on. Four months after assuming office, President Washington appeared personally before the Senate to seek its advice in negotiating an Indian treaty. But the Senate referred the discussion to a committee, and Washington departed in a huff. N o president since 1789 has formally sought advice from the Senate on treaty negotia-

A F F E C T E D W I T H A PUBLIC I N T E R E S T tions or nominations, although the political giveand-take surrounding many treaties may substitute in a sense for the constitutional requirement. For nominations, the advice and consent clause has become almost wholly reversed in meaning. Except for cabinet positions, major diplomatic posts, and Supreme Court seats, the practice today is for senators from the president's party to "nominate"—that is, to give the president a list of people whom they approve for federal jobs and judicial seats in their areas—and to have the president in effect consent to those names by nominating them. All such nominees must still be formally approved by the full Senate. ADVISORY O P I N I O N S The federal courts are not constitutionally permitted to render advice, only to decide cases. Although in the early 1790s several justices responded by letter* to legal inquiries from President Washington, 1020 Chief Justice John Jay and the associate justices in 1793 declined to answer several questions put to them by Secretary of State Thomas Jefferson involving the constitutional implications of delicate foreign policy matters. Jay declared that the federal courts had no power to give advisory opinions, that is, opinions on legal questions not presented formally in the course of a lawsuit. In his letter to Jefferson, Jay cited the "lines of separation" in the Constitution "between the three departments of the government" and noted that "the power given by the Constitution to the President, of calling on the heads of departments for opinions [Art. II, Sect, 2], seems to have been purposely as well as expressly united to the executive departments."* This early extrajudicial comment against extrajudicial commentary served as precedent for the principle that the courts lack power to hear a n y issues that are n o t real CASES OR C O N T R O -

VERSIES. Three major policy reasons underlie the Court's refusal to render informal advice: (1) The advice may not be taken; hence the finality of the Court's pronouncements will be weakened. (2) An advisory opinion may cause the parties to be lax in briefing and arguing if the issue ultimately is adjudicated formally before the courts. (Chief Justice John Jay's informal advice, in his response to a letter from President Washington in [790, that it is unconstitutional to require the justices to travel from court to court* was rejected by Chief Justice John Marshall when the question came up in a lawsuit thirteen years later.) 2265 (3) Advisory opinions would permit the Court to decide constitutional questions that they could con-

ceivably avoid in an actual case, thus creating constitutional precedents for issues that might be both legally and politically unnecessary to decide. So doing is bad practice both legally and democratically. See also: DECLARATORY ADVOCACY, OF,

LIMITATIONS

see: subversive

AFFECTED

JUDGMENT.

WITH

A

ON

RIGHT

advocacy

PUBLIC

INTEREST

First used by the Supreme Court in the Granger Cases1612 in 1877, the phrase "affected (or "clothed") with a public interest" has to do with government regulation that results in property b e i n g taken w i t h o u t J U S T C O M P E N S A T I O N . In

the 1877 case, the question was whether Illinois could set the rates charged by the owners of grain silos. In agreeing that the state could, Chief Justice Morrison Waite cited an earlier English case based on the notion that if the business "becomes a practical monopoly, to which the citizen is compelled to resort," the state could regulate. 2161 This doctrine was later used by justices who sought to curb the powers of the early twentieth-century regulation-minded legislatures to permit the Court to strike down state laws that regulated an industry's prices, rates, or conditions of service on the ground that they violated the protesting company's right to DUE PROCESS. The Court never succeeded in defining adequately which businesses were and which were not affected with a public interest. In 1923 Chief Justice William Howard Taft listed a classification scheme more puzzling than enlightening. The categories, he said, were three: (1) businesses the legislature had declared must serve the public (such as common carriers and public utilities), (2) businesses that had historically been regulated (keepers of inns, grist mills), and (3) "businesses which though not public at their inception may be fairly said to have risen to be such . . . in consequence to some government regulation." 25792 It was never clear which businesses would fit into this last category. The formula led the Court to sustain laws regulating stockyards, 543 tobacco warehouses, 2367 and fire insurance rates 864,20 but to strike down laws fixing gasoline prices 2543 and regulating sellers of ice 1670 as the sentiments of a changing group of justices dictated. Under critical attack that grew fierce as legislatures took to enacting more and more regulatory policies in the wake of the Depression, the Court finally wrote

35

36

AFFECTING COMMERCE the doctrine's obituary in 1934 in Nebbia v. New York, declaring that price control was thenceforth to be considered nothing other than the states exercise of its POLICE POWER and that "the courts are both incompetent and unauthorized to deal with the wisdom of the policy adopted or the practicability of the law enacted to forward it." In short, the validity of business regulation now hinges on the reasonableness of the regulation, not the nature of the business. AFFECTING

COMMERCE,

see.

com-

m e r c e , effects on AFFIRMANCE

BY AN EQUALLY

DIVIDED

SUPREME COURT Occasionally, the vote on a particular case is a tie, either because the Court is not at full strength or because a justice has recused himself from considering the case. The effect of a tie vote is to affirm the decision of the lower court "by an equally divided Court." A case so decided has no precedential value. 2322,1656 A F F I R M A T I O N , see: o a t h or a f f i r m a t i o n A F F I R M AT IVE A C T I O N

"Affirmative action"

is the name given to a controversial set of policies that rests on the proposition that government may constitutionally take race or some other suspect class into account as long as in so doing it intends to benefit one group rather than harm another. Affirmative action developed first in the courts. Following BROWN V. BOARD OF EDU-

CATION, which invalidated racial segregation in public schools, the courts were faced with the difficult task of dismantling a deeply entrenched system of dual schools. It became clear that taking the race of schoolchildren into account could not be avoided if states and local school districts were to draw plans to eliminate segregation. When North Carolina passed a law mandating "color-blindness" in drawing school district lines, the Court unanimously overturned the law because it impeded local efforts to design districts that eliminated dual school systems.1715 As long as it genuinely sought to redress official discrimination, a government plan in which racial classification played a part would not be struck down. By the 1960s, spurred particularly by President Johnson's call for an end to centuries of discrimination, the federal and state governments and many private businesses searched for ways to go beyond race-neutral policies of "equal opportunity" to improve the lot of blacks in employment

and education. The common image was that centuries of oppression could not be remedied simply by declaring, finally, that henceforth all were to play on a level field. Programs that gave preferences by race—and later by sex, ethnic origin, and other minority attributes—emerged from legislatures and corporate personnel offices, often spurred by government pressure and lawsuits. The constitutional question that arose was whether, consistent with the EQUAL PROTECTION CLAUSE, government, including courts, may consider race in public programs and policies other than in redressing past discriminatory acts. Because private employers and schools are not bound by the command of equal protection, the question of "private" affirmative action often turns on the meaning of ANTIDISCRIMINATION LEGISLATION. Mainly in the Civil Rights Act of 1964, but in other laws as well, Congress has explicitly prohibited discrimination on the basis of race, sex, national origin, and religion, and has also outlawed the use of quotas. These laws apply to both private institutions and public entities receiving federal funds. Many of the cases arising under the Civil Rights Act do not raise constitutional issues but are noted here nevertheless because they are integral to the continuing debate on affirmative action (or, as it is sometimes pejoratively put, "reverse discrimination"). The Court first considered affirmative action in the much-heralded case of Regents of the University of California v. Bakke in 1978. The Medical School of the University of California at Davis set aside sixteen of one hundred places for minority applicants. Minority applicants were eligible to apply for all one hundred places, white applicants for only eighty-four places. Allan Bakke, a white applicant, was refused admission even though his test scores were considerably higher than those of some successful minority applicants. The school justified its policy on four grounds: (1) to reduce the "historic deficit" of groups traditionally disfavored in medical schools and the profession, (2) to counter the effects of past discrimination, (3) to increase the number of doctors who would serve minority communities, and (4) to obtain the "educational benefits that flow from an ethnically diverse student body." Although the Court ordered Bakke to be admitted, because of an unusual split among the justices it did not reject outright the use of racial criteria. Four justices said that Title VI of the Civil Rights Act of 1964 bars race from being considered in admitting students to schools accepting

AFFIRMATIVE A C T I O N federal funds. Another block of four said that race may be considered, under both Title VI and the Equal Protection Clause. Justice Lewis F. Powell was the swing vote. Because he believed the medical school's particular program was constitutionally flawed, Powell sided with the first group of four in ruling that Bakke must be admitted. At the same time, he agreed with the second group of four justices that race may be considered as one factor among many in admissions programs. Justice Powell rejected the school's first justification outright: "Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. . . . [The school's] explicit racial classification . . . tells applicants who are not Negro, Asian, or 'Chicano' that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, they are never afforded the chance to compete with applicants from the preferred groups for the special admission seats." Instead, Justice Powell said, a school may consider race as but one among many elements in deciding whom to admit: The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive. . . . Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. . . . This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a "plus" on the basis of ethnic background . . . would have no basis to complain of unequal treatment under the 14th Amendment. Since 1978 the Court has walked a constitutional tightrope in its other affirmative action cases. One that garnered immense public attention in 1979 was United Steelworkers v. Weber. The Court held that a private company's voluntary affirmative action plan to recruit more black workers did not violate the 1964 Civil Rights Act. The union and the company had collectively bargained to set aside 50 percent of the openings in a training program for black employees until their numbers were proportional to the number of blacks in the local community. But this ruling

did not bear on whether equal protection would permit a similar plan by a public body. In 1984 and 1986 the Court made it clear that there are constitutional limits to voluntary affirmative action plans when it overturned attempts to favor affirmative action over seniority. In the 1984 case a lower court had ordered the Memphis Fire Department to retain newly hired minority firefighters over more senior whites in an economic downturn. 766 The 1986 case involved a Michigan school board's layoff policy giving minority teachers preference. In a collective bargaining agreement with a teacher's union, the school board agreed to lay off teachers by seniority, except when necessary to maintain a certain proportion of minority teachers. The plan led to the dismissal of some white teachers with more seniority than minority teachers who were retained. In Wygant v. Jackson Board of Education, Justice Powell's plurality opinion stressed that there had been no showing of past discrimination and that preferring one person to another solely on the basis of race violates equal protection. He also noted that affirmative action in hiring imposed a lesser burden on rejected candidates than race-conscious layoffs, which "impose the entire burden of achieving racial equality on particular individuals." In two other cases in 1986 the Court rejected the claim of the Reagan administration that raceconscious plans can never be used to benefit people who were not personally discriminated against, at least when it is proven that a union or company was in fact guilty of discriminating against potential employees on the basis of race. 1352 ' 1 3 5 1 But these were close cases that hinged on statutory as well as constitutional considerations. And in 1989 the Court suggested that a case is not over merely because a company and a group of employees have voluntarily agreed to settle it through an affirmative action plan. The Court held that nonminority employees who are affected by the voluntary plan may go back to contest it if they were not parties to the original suit. 1444 For a time, the Court appeared to distinguish between the power of the federal government and that of the states to employ affirmative action programs. In 1980 the Supreme Court sustained the federal Public Works Employment Act, which required contractors to hire minority businesses for at least 10 percent of every public works project.824 Congress defined a minority business enterprise as one in which a majority of the equity

37

38

AFFIRMATIVE

ACTION

is owned by "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, [or] Aleuts." The justices did not reach consensus on why such a "set-aside" is constitutional. Bitterly dissenting, Justice Stevens pointed to the "slapdash" features of the program and to the central problem in all such laws: "[0]ur statute books will once again have to contain laws that reflect the odious practice of delineating the qualities that make one person a Negro and make another white."

rejected the strict scrutiny test and held that the equal protection component of the FIFTH AMENDMENT does not overcome Congress's

In a later decision, a Richmond, Virginia, plan to do substantially the same thing in city construction projects was invalidated in 1989. 1988 Under Richmond's program, prime contractors were required to subcontract at least 30 percent of the dollar value of any city construction project to minority businesses, specified, in language plucked straight from the federal law, as "black, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts." By a 6-3 vote, the Court in Richmond v. J.A. Croson Company said that all racial classifications are to be held to the high standard of STRICT SCRUTINY—that it must be established whether the government has a COMPELLING INTEREST that can be served only by classifying on an otherwise forbidden basis. The Court held that Richmond did not. There was no showing of particular discrimination within Richmond against minority contractors. Nor was Richmond's plan "narrowly tailored" to the people who might have been injured by past discrimination; certainly Eskimos and Aleuts were not within that class. Writing for the majority, Justice O'Connor left open affirmative action plans that are aimed at redressing past constitutional wrongs: "[N]othing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction."

In 1995, in a case of major significance, a sharply divided Court overruled the broadcast license case. For the first time, the Court held that all race-based action by the federal government is subject to strict scrutiny. Speaking for a bare majority of five, Justice Sandra Day O'Connor declared in Adarand Constructors, Inc. v. Pena that the same rule applies to all such federal programs. The plaintiff, a subcontractor in Colorado, objected to the federal government's program of giving financial incentives to hire subcontractors controlled by "socially and economically disadvantaged individuals," determined in large part on the basis of race. The plaintiff had submitted the low bid to serve as a subcontractor for building the guardrail portion of a federal highway construction project, but the prime contractor hired a minority firm because it would receive additional compensation for doing so. Justice O'Connor said that three general propositions controlled governmental racial classifications: (1) skepticism: "any preference based on racial or ethnic criteria must necessarily receive a most searching examination"; (2) consistency: the standard of review does not depend "on the race of those burdened or benefited by a particular classification"; and (3) congruence: the same equal protection standard of review applies to actions by the states and the federal government. "Taken together," she said, "these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny." Summarizing the Court's holding, Justice O'Connor said that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests."

A year after Croson., a closely divided Court reaffirmed the power of Congress to classify by race in licensing broadcasters, suggesting a constitutional difference between the United States and the states in seeking to improve the lot of groups that by government decree were once generally disadvantaged. The Federal Communications Commission awarded broadcast licenses to minority applicants under a policy that Congress had specifically approved. Under the F C C s policies, minority ownership and management is considered a plus among many factors evaluated in awarding broadcast licenses. Writing for the 5-4 majority, Justice William J. Brennan

C O M M E R C E POWER to regulate interstate e c o -

nomic activity when the race-conscious classification bears a "substantial relationship" to an "important interest" that Congress has the power to address. 1521 The majority specifically stated that the test for upholding a state affirmative action plan (strict scrutiny) will be tougher than a federal one (heightened scrutiny).

AGGRAVATING CIRCUMSTANCES Since the lower courts had measured the federal highway program by the wrong standard, the case was remanded to see whether the program can meet the more exacting test announced by this decision. Pointing to the "unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups," Justice O'Connor took some pains to "dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'" Race-based affirmative action programs might continue to be upheld to correct "pervasive, systematic, and obstinate discriminatory [governmental] conduct." Concurring generally with the majority opinion, Justice Antonin Scalia said that in his view the majority erred if it suggested that government can ever have a "compelling interest in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction. . . . Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. . . . In the eyes of government, we are just one race here. It is American." See also: SET-ASIDES;

SUSPECT

CLASS AND

CLAS-

SIFICATION.

AFFIRMATIVE burden

DEFENSES,

see:

age discrimination laws: the Age Discrimination in Employment Act of 1967, which prohibits employers from discriminating against persons between the ages of forty and seventy, and the Age Discrimination Act of 1975, which prohibits discrimination against people on the basis of age in any program receiving federal financing. See also: SUSPECT

CLASS AND

CLASSIFICATION.

A G E O F M A J O R I T Y The age at which a child becomes an adult depends on state law and is not controlled by the Constitution, except in relation to

voting.

The

TWENTY-SIXTH

AMENDMENT

prohibits the states and the federal government from raising the voting age above eighteen. AGE REQUIREMENTS FOR HOLDING F E D E R A L O F F I C E T h e Constitution lists only three age requirements for holding federal office: representatives must be twenty-five, senators must be thirty, and the president and vice president must be thirty-five. Although the Supreme Court has never ruled directly on the point, the weight of precedent is that members of Congress and the president and vice president need not have attained the constitutionally required age on election day, but on the day they will be sworn into office.

proof, AGE REQUIREMENTS

of

F O R V O T I N G , see:

age of m a j o r i t y AFFIRMATIVE O B L I G A T I O N S OF GOVE R N M E N T , see: g o v e r n m e n t , a f f i r m a tive obligations of AGE CLASSIFICATIONS, crimination

see:

age

dis-

A G E D I S C R I M I N A T I O N Laws that classify by age do not create a suspect class and are not subject to STRICT SCRUTINY. For example, the Court upheld a Massachusetts law requiring uniformed state police officers to retire on their fiftieth birthdays. 1456 Even though the law might be imperfect, it nevertheless is rationally related to the states objective of ensuring that the public is furnished with physically fit officers and does not, therefore, unconstitutionally discriminate. Likewise, the Court upheld a federal law retiring Foreign Service personnel when they turn sixty, even though it permits other federal employees covered by the Civil Service system to retire at age seventy. 2430 Congress has enacted two major anti-

A G G R A V A T I N G C I R C U M S T A N C E S Capital cases require a separate hearing, after conviction, to consider aggravating circumstances that might lead the jury to impose, and mitigating circumstances that might lead it to reject, the DEATH PENALTY. The legislature must set out the types of aggravating circumstances the jury may consider. 940 "An aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." 2626 The law cannot be vague; the circumstance must be specified under a standard sufficiently clear and objective to guide the decision and to permit an appellate court to rationally review the sentence.' 466 In an Idaho case, a prisoner who had already confessed to killing twenty-six people brutally killed a fellow inmate and was sentenced to death after the sentencing judge considered as

39

40

AGGRAVATING

CIRCUMSTANCES

an aggravating circumstance that he "exhibited utter disregard for human life." The defendant asserted on appeal that the statutory phrase "utter disregard" is unconstitutionally vague. The Court disagreed, holding that the Idaho courts had sufficiently narrowed the meaning of the phrase to encompass "acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded, pitiless slayer."81 The term "cold-blooded" is not subjective, Justice Sandra Day O'Connor said, because it refers to one "who kills without feeling or sympathy," which is a fact about a defendant's state of mind that can be inferred from the surrounding circumstances. O'Connor also declared that this aggravating circumstance provides a principled basis for distinguishing between those who do and do not deserve the death penalty. An aggravating circumstance that would apply "to every defendant eligible for the death penalty" is unconstitutional because it would not serve to narrow the class of defendants eligible for the death penalty. Calling it a close question, O'Connor concluded that not every capital defendant would fit within the terms "cold-blooded" and "pitiless," since some exhibit feelings, killing "with anger, jealousy, revenge, or a variety of other emotions." The dissenters vehemently disagreed, viewing the term "cold-blooded" as incapable of being applied in a consistent and meaningful way. Justice Harry A. Blackmun noted that the courts in this very case had concluded that the defendant had killed in an "excessive violent rage," a fact impossible to reconcile with the conclusion that he was cold-blooded, if cold-blooded means, as the majority said, "without feelings." There must be sufficient evidence to support the aggravating circumstances, although "a death sentence supported by at least one valid aggravating circumstance need not be set aside . . . simply because another aggravating circumstance is . . . insufficient by itself to support the death penalty."2626 On the other hand, if a reviewing court finds insufficient evidence of one circumstance, a reassessment may sometimes be necessary even if other aggravating circumstances were present. In a Florida case, the sentencing judge accepted the jury's recommendation of death when it found several aggravating factors, including killing in a "cold, calculated, and premeditated manner." The Florida Supreme Court later held that there was insufficient evidence to support the contention that the crime

was committed in a cold manner. However, that court also held that the jury's error on this issue was harmless, and it affirmed the death penalty. The Supreme Court reversed on the ground that the Florida procedure violated the EIGHTH AMENDMENT because it also permitted the trial judge to weigh the "coldness" of the criminal conduct but did not require the higher courts to consider directly whether the judges error in doing so was harmless. The Court remanded the case with instructions that the Florida courts decide whether the trial judge, beyond a REASONABLE DOUBT, would have imposed the sentence even without considering the coldness of the crime. 2190 Similarly, in a Virginia case, a murder defendant was sentenced to death after prosecutors presented two aggravating circumstances: the "vileness" of his crime and unrebutted psychiatric testimony that he demonstrated "a high probability of future dangerousness." But because the prosecutors failed to provide the indigent defendant with the assistance of an independent psychiatrist, required under its 1985 decision in Ake v. Oklahoma, the Court earlier had remanded the case to the Virginia Supreme Court to reconsider the sentence. That court invalidated the dangerousness aggravating circumstance but upheld the death sentence on the ground that the valid vileness aggravating circumstance necessarily excused the constitutional error in admitting the psychiatric evidence. A unanimous Court held that although invalidating an "aggravator does not necessarily require that a death sentence be set aside," it does not always preclude reconsidering a death sentence either. In this case, the aggravator was invalid because the defendant had been unable to present evidence that might have rebutted the states psychiatrist, and the jury's view might thus have been skewed by erroneous information. The Court remanded the case to the state courts to consider whether the sentence should be reexamined under the HARMLESS ERROR rule. 2376 If state law requires that the aggravating circumstances be weighed against mitigating circumstances, and also requires a sentencing judge to take into account the recommendation of the jury, then it is unconstitutional for either the judge or jury to consider in the balance an aggravating circumstance that is legally invalid. 719 T h e DOUBLE JEOPARDY Clause is not vio-

lated by considering evidence at the sentencing hearing of conduct amounting to an aggravating

ALIEN A N D SEDITION ACTS circumstance that was already considered at

AIRPORT

trial. 2092

seizure: airport

See abo: DELEGATION

DOCTRINE;

SENTENCING.

A G R E E M E N T OF STATES, see: C o m p a c t Clause

COMMERCE,

EFFECTS

ON;

TAXING

POWER.

A I D A N D C O M F O R T , see: t r e a s o n A I D TO R E L I G I O U S I N S T I T U T I O N S , see: religious establishment AIR F O R C E , see: a r m e d

forces

see:

search

cating

and

stops

AIRPORTS, STATE REGULATION see: p r e e m p t i o n ; p u b l i c f o r u m ALCOHOLIC

A G R I C U L T U R E , R E G U L A T I O N O F Until the 1940s the Court held agricultural production to be beyond the reach of Congress's COMMERCE POWER because, like MANUFACTURING, growing crops and raising livestock were considered local activities. Even then, however, Congress could regulate price fixing and other restraints of trade in the livestock industry or in grain trading, for example, because they fell under the STREAM OF COMMERCE DOCTRINE. 2 2 8 7 ' 4 5 0 But when, in the middle of the Great Depression, Congress sought in the Agricultural Adjustment Act of 1933 to boost farm prices by controlling agricultural production through a taxing scheme, the Court in 1936 held that the law violated the TENTH AMENDMENT. 3 3 7 Two years later Congress enacted the second Agricultural Adjustment Act, which authorized the secretary of agriculture to set marketing quotas; the Court sustained the law in 1939 on the ground that Congress has the power to regulate interstate sales. 1608 In 1942 the Court upheld the Agricultural Marketing Agreement Act of 1937, which permitted the secretary to set minimum milk prices in various milk marketing areas, even those entirely within a particular city or state. 2600 The Court said that Congress could regulate even intrastate prices as long as they have an effect on interstate commerce. That same year a provision was sustained that permitted the secretary to regulate production of wheat to be consumed entirely on the growers farm. Against the argument that this was a wholly intrastate activity, the Court responded that the effect on interstate commerce was plain because "home-grown wheat. . . competes with wheat in commerce." 2 5 2 7 See also:

STOPS,

BEVERAGES,

see:

OF,

intoxi-

liquors

ALCOHOLISM,

PUNISHMENT

FOR,

see:

addiction ALIBI DEFENSE, see: criminal proceedings

discovery

in

A L I E N A N D S E D I T I O N A C T S The Alien and Sedition Acts of 1798 were really four separate acts—the Alien Act, the Alien Enemies Act, the Naturalization Act, and the Sedition Act—all prompted by Federalist fears of war with France and potential subversion by French and Irish citizens living in the United States. Under the Alien Act, the president could deport any alien who was "dangerous to the peace and safety of the United States." Under the Alien Enemies Act, aliens could be jailed or banished during war. The Naturalization Act lengthened the residency requirement for citizenship from five to fourteen years. The Sedition Act made it a crime for anyone, including citizens, to write or publish "any false, scandalous, and malicious writing" against the president, Congress, or the government in general. These acts sparked the earliest debate in the nation's history after ratification of the Constitution about the constitutionality of congressional enactments. The Federalists, led by President John Adams, defended the Sedition Act by taking a narrow view of the FIRST AMENDMENT. The Republicans, led by, among others, Vice President Thomas Jefferson, excoriated the administration's prosecution of the Sedition Act. Ten Republican writers were convicted and sent to jail. Jefferson secretly wrote a series of resolutions adopted by the Kentucky legislature, as did Madison for Virginia. These resolutions argued that Congress had acted unconstitutionally by invading the powers of the states and that, in particular, the First Amendment directly prohibited Congress from legislating on matters of speech and press. The outcry affected the presidential election of 1800, hastening the demise of the Federalist party and contributing to Jefferson's election. Jefferson pardoned those convicted, and all but

41

42

ALIENS the Alien Enemies Act soon expired. The Supreme Court never heard a case raising the constitutionality of any of these laws, and the issues lay dormant until World War I, when Congress again enacted espionage and sedition laws that finally led to a long line of cases deali n g w i t h SUBVERSIVE A D V O C A C Y . See also: CRIMES,

COMMON LAW;

TION, INTERPOSITION, TION; SEDITIOUS

NULLIFICA-

AND SECESSION;

SEDI-

LIBEL.

ALIENS An "alien" is a person who is not a citizen of the United States. Until recently, aliens could find very little shelter in the Constitution, even though in formal terms most constitutional rights are guaranteed to "persons" and not limited to citizens. Under Art. I-§8[4], Congress has absolute power over the admission of aliens into the country; the Constitution imposes no limitations on that power. 1739, 7 6 3 Nonresident aliens—those who are not actually residing in the United States—are entitled to none of the protections of the Bill of Rights, including the PROCEDURAL DUE PROCESS right to a hearing. 1244 In one egregious case, a Hungarian national who had lived with his wife and family in upstate New York as a permanent resident alien for twenty-five years left the country to see his ailing mother. On his return, the attorney general barred his entry, citing secret evidence for the exclusion and granting no hearing. The attorney general's decision effectively incarcerated him on Ellis Island,* and the Supreme Court denied that his due process rights had been violated. 2133 When an adult alien is arrested on suspicion of being deportable, the ATTORNEY GENERAL

has wide discretion under federal law to determine whether and on what terms the adult should be released from incarceration pending a HEARING. The problem is different when potentially deportable alien juveniles are arrested unaccompanied by adults. In a case involving the validity of federal rules regulating the release of such juveniles, the Court declared that there is no constitutional right "to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or governmentselected child-care institution" when no parent or close relative is available.1368 Aliens residing in the United States are entitled to the protections of both the FIFTH and the

FOURTEENTH AMENDMENTS.

decades,

ignoring

the

For

many

EQUAL PROTECTION

CLAUSE, the Court approved state laws that gave citizens greater rights than aliens to pursue jobs and other interests. For example, the Court upheld a Pennsylvania law limiting the right of aliens to develop natural resources1807 and an Ohio law prohibiting aliens from operating poolrooms. 1746 But in 1948, in Takahashi v. Fish & Game Commission, the Court began to shift direction. In voiding a California law that denied commercial fishing licenses to resident aliens, the Court gave two reasons: an emerging equal protection rationale that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits," and a FEDERALISM objection that it is up to Congress, on admitting aliens to the United States, to determine what limits, if any, to place on their ability to work. Since Congress has done nothing to discourage aliens from working, any state restriction violates the SUPREMACY CLAUSE by conflicting with superior federal policy. Occasionally since then the Court has struck down laws on supremacy grounds, 2354 but generally since the early 1970s, the Court has overturned restrictive state laws on equal protection grounds, concluding in Graham v. Richardson that alienage, like race, is a suspect class requiring STRICT SCRUTINY whenever a state discriminates between aliens and citizens. Graham held that states may not deny welfare benefits to aliens. The Court then struck down a Connecticut law prohibiting resident aliens from practicing law,948 a Puerto Rico law against aliens seeking to become licensed civil engineers,731 and in Sugarman v. Dougall a New York law denying permanent positions to aliens in the state's competitive civil service. But Sugarman opened a wide exception to the emerging general rule against classifications by alienage. Justice Harry A. Blackmun's majority opinion said that in appropriate circumstances, states may require citizenship as a qualification for holding public office, including "elective or important non-elective executive, legislative and judicial positions." The reason, he said, is that "officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government." In 1978 the Court approved New York's denial of employment to aliens as state troopers.791 The next year it agreed that a state may refuse employment as elementary and secondary school teachers to aliens who could be but do not seek to be naturalized.55 It likewise upheld a

A M B A S S A D O R S , POWER TO APPOINT A N D California law barring resident aliens from applying for the job of "deputy probation officer, Spanish-speaking."352 But the public jobs must have some significant impact on the public. The Court struck down a Texas law barring aliens from becoming notaries public. 186 Although the states may not recklessly discriminate against resident aliens, it might seem that they have more room to maneuver against illegal aliens, though any person within a state, whether lawfully present or not, is entitled to a minimum of due process and cannot be jailed or deported without a hearing. 2608,1263 But a state may not deny all benefits merely because of a person's status as illegal alien. In one celebrated case in 1982, the Court ruled that Texas could not refuse to provide free public education to "undocumented school-age children," minor children of aliens who had unlawfully crossed the border.' 879 Congress has greater power to discriminate against aliens than do the states. Although striking down a particular regulation of the federal Civil Service Commission that barred jobs to resident aliens, the Court acknowledged that "overriding national interests may provide a justification for a citizenship requirement in the federal service [though] an identical requirement may not be enforced by a state."985 In addition, Congress may refuse to let nonpermanent resident aliens receive Medicare benefits and may require resident aliens to have lived continuously in the country for five years before becoming eligible for benefits. 1459 See also: CITIZENS AND CITIZENSHIP; TION; SUSPECT CLASS AND

DEPORTA-

CLASSIFICATION.

ALIMONY Whether to award alimony following DIVORCE and how much to award is a matter for the states and is not governed by the federal Constitution. But the Court did strike down as violating the EQUAL

PROTECTION

CLAUSE

an

Alabama law that permitted wives to obtain alimony from husbands but forbade the courts from awarding alimony to husbands in proper cases.1771 ALL

DELIBERATE

SPEED

T h e phrase

"all

deliberate speed" was used at the suggestion of Justice Felix Frankfurter in the second BROWN V. BOARD OF E D U C A T I O N s c h o o l d e s e g r e g a t i o n

case in earlier Holmes tion in

1955. Frankfurter took it from a much opinion by Justice Oliver Wendell on a wholly different issue.2442 The quesBrown II was what remedy the Court

RECEIVE

would grant the successful litigants seeking an end to enforced segregation in the public schools. Rather than ordering southern school systems to desegregate immediately, the Court said that they should begin to move toward desegregation "with all deliberate speed," a vague phrase intended to forestall certain measures of defiance by southern states had they been told to reverse their deeply entrenched policies instantly. Frankfurter's compromise did not work. Massive resistance was the order of the day, inflaming racial politics in the United States for more than a generation. Ten years after the decision, only 2 percent of southern black children attended integrated schools. Five years after that, in 1969, the Supreme Court finally abandoned its wayward formula, ordering still-resisting school boards to integrate "at once." 40 See also: SEGREGATION

AND

INTEGRATION.

O F S T A T E S Article I-§IO forbids states from entering into "any treaty, alliance, or confederation." The Court recognized this clause in holding that the Civil War confederation of southern states had no legal existence. 2535 Today, because the clause forbids the states from conducting foreign relations, the Court has held that the federal government, not the states, may control offshore resources.380 ALLIANCES

AMBASSADORS,

POWER

TO

APPOINT

AND RECEIVE A major source of the president's power to conduct U.S. foreign policy is the Art. II-§2[2] power to appoint "ambassadors and other public ministers and consuls" and the Art. II-§3 power to "receive ambassadors and other public ministers." From the power to receive has come the understanding that the president alone may determine when to recognize a foreign government and when to break relations with it. The Supreme Court has never pronounced on this long-held principle. WTien five senators sought to challenge President Carter's termination of a U.S. defense pact with Taiwan, the Court dismissed the case. Dissenting, Justice William Brennan thought the Court should have decided the case and upheld the president's sole authority to abrogate the treaty as "a necessary incident to Executive recognition of the Peking government." It is, he said, "firmly establish [ed] that the Constitution commits to the President alone the power to recognize, and withdraw recognition from, foreign regimes."900

43

44

A M E N D M E N T S TO THE

CONSTITUTION

In the early days of the nation, presidents appointed ambassadors, subject to Senate approval, without any legislation creating particular embassies or offices. Ambassadors were paid out of general funds placed at the president's discretion "for the expenses of foreign intercourse." Only in 1855 did Congress specify grades of ambassadorial appointments and qualifications of their holders. Although Art. II expressly requires that the Senate confirm ambassadors and other public ministers and consuls, a policy sanctioned by custom as far back as 1795 permits presidents to name special or personal diplomatic agents without submitting their names to Congress. Modern examples were President Truman's appointment of Averell Harriman as "ambassador at large" and President Nixon's dispatching of Henry Kissinger as a personal representative on a number of delicate diplomatic missions. A M E N D M E N T S TO THE

CONSTITUTION

Of some ten thousand amendments introduced in Congress since 1789, only twenty-seven have been ratified to become part of the Constitution.* The first twelve were ratified within a few years of the original Constitution: the Bill of Rights (Amendments 1-10) in 1791,

ratified during the next ten years: voting rights for District of Columbia residents (TWENTYTHIRD AMENDMENT, 1961); abolition of the poll

tax

(TWENTY-FOURTH

AMENDMENT,

1964); presidential disability (TWENTY-FIFTH AMENDMENT, 1967), and a general lowering of the voting age (TWENTY-SIXTH AMENDMENT,

1971). Finally, the TWENTY-SEVENTH AMENDMENT, limiting the power of Congress to vote itself salary increases, was ratified in 1992. In more than two centuries, six other amendments were approved by Congress and sent to the states but not ratified. One was part of the original Bill of Rights and would fix the ratio of representatives to the population. Others that failed included an amendment to deprive of citizenship anyone who accepted a title of nobility from a foreign country (proposed in 1811), an amendment to prohibit Congress from ever abolishing slavery (proposed in 1861), the Child Labor Amendment (proposed in 1924), the Equal Rights Amendment (proposed in 1972, expired in 1982), and an amendment to provide the District of Columbia with representation in Congress and to repeal the Twenty-third Amendment (proposed in 1978, expired in 1985).

TION (EIGHTEENTH AMENDMENT, 1919), a n d

Under Art. V, by a two-thirds vote in each house, Congress may propose an amendment to the states and may specify whether the states are to ratify it in their legislatures or by special convention. In all but one instance, ratification has been by state legislatures. (The Twenty-first Amendment, repealing Prohibition, was ratified in special state conventions.) Three-fourths of the states must ratify, meaning that today thirtyeight states are necessary to place an amendment into the Constitution. Another method of amending specified in Art. V is for the legislatures of two-thirds of the states to "call a convention for proposing amendments." No such convention has ever been called. However, in the 1970s a convention to propose a balancedbudget amendment came close to fruition; at one time or another thirty-six states supported it.

women's suffrage (NINETEENTH AMENDMENT, 1920). Three unrelated amendments were ratified during the next forty years: the "lame duck" amendment, shortening the end of the congressional and presidential terms (TWENTIETH AMENDMENT, 1933); the repeal of Prohibition (TWENTY-FIRST AMENDMENT, 1933); and presidential term limitation (TWENTY-SECOND AMENDMENT, 1951). A more active period of amending began in 1961, with four amendments

The states may not demand a special referendum by the people to ratify an amendment sent to the state legislatures.1018 Once the last state necessary for ratification has approved the amendment, no further legal action is required by Congress or the president. Until relatively recently, states notified the U.S. secretary of state, who proclaimed the amendment a part of the Constitution. Today that function is performed by the Archivist of the United States. But the

the ELEVENTH AMENDMENT in 1795, and the

TWELFTH AMENDMENT in 1804. More than sixty years passed before the trio of Civil War amendments were ratified, between 1865 and 1 8 7 0 . T h e FOURTEENTH AMENDMENT

(1868),

in particular, brought a fundamental change in the relationship between the states and the federal government and empowered courts to expand significantly the range of Americans' personal liberties. Progressive and populist reform movements sparked the next wave of amendments, nearly half a century later: income tax (SIXTEENTH AMENDMENT, 1913), direct election of senators (SEVENTEENTH AMENDMENT, 1913), PROHIBI-

AMICUS CURIAE amendment becomes effective on the date of ratification, not on the date of the proclamation.629 Article V leaves open whether Congress may impose time limits on ratification. In Coleman v. Miller, the Court held that questions about ratification are "nonjusticiable" and within the complete control of Congress. Most modern amendments have required the states to ratify within seven years; on average amendments have been ratified within eighteen months. Ratification of the Twenty-seventh Amendment in 1992 is the major exception to this rule: it was one of the articles of the original Bill of Rights proposed in 1789. Ten of the original twelve articles were ratified by 1791. An eleventh article was presumed dead, but because the Bill of Rights contained no time limit, it was revived in the 1980s and declared a part of the Constitution in 1992, when several additional states suddenly ratified it. Whether the Court will abstain from all questions involving congressional control is still open. In 1972 Congress sent to the states the Equal Rights Amendment, requiring it to be ratified within seven years. In 1979, with the amendment having not gained assent of three-quarters of the states, Congress voted by less than a two-thirds majority to extend the time for ratification by another three and a half years. Because the amendment eventually failed, the issue of Congress's power to extend in such a manner became moot—and the issue remains unsettled. Another unresolved question is whether a state may legally rescind its ratification before an amendment is ratified by the requisite number of states. Congress will probably decide this issue. Another set of major open issues revolve around conventions called by the legislatures of two-thirds of the states. For example, in the battle over the balanced-budget amendment, some states limited their call for a convention to that single question. Other states have asked in much broader terms for a convention that might consider many other issues. In this situation, may Congress refuse to call a convention on the grounds that the states have not asked for the same thing? And may Congress determine the rules under which such a convention will operate? Most commentators suppose that Congress has considerable power to shape the convention, but so far the issue remains hypothetical. Only one provision in the Constitution may not be amended: the requirement that each state send two senators to the U.S. Senate. Two other provisions were unamendable until 1808. One,

Art. I-§9[i], dealing with importing of slaves, is now moot. The other, Art. I-§9[4], dealing with DIRECT TAXES, was rendered largely irrelevant by the Sixteenth Amendment. AMERICAN

CIVIL

LIBERTIES

UNION

Along with the NAACP's Legal Defense Fund, the American Civil Liberties Union (ACLU) is one of the oldest private organizations devoted to litigating on behalf of constitutional rights. Founded in 1920, at a time when the federal government was suppressing free speech and seriously violating the FOURTH AMENDMENTS

provision against unreasonable SEARCH AND SEIZURE, the ACLU pledged to challenge governmental intrusions on the people's civil liberties—those rights generally protected by the Bill o f Rights and the DUE PROCESS and EQUAL PROTECTION

CLAUSES o f the

FOURTEENTH

AMENDMENT. The organization has been active in many celebrated trials, including the suit against the U.S. Customs Bureau for banning James Joyce's masterpiece Ulysses, the prosecution o f the SCOTTSBORO BOYS CASE, and the PENTAGON

PAPERS

CASE.

Headquartered

in

New York, with affiliated offices in every state, ACLU lawyers participate in thousands of trials and administrative hearings every year. Condemned over the years as subversive and even as a "criminals lobby," the ACLU's successes in court, before legislatures, and in the arena of popular opinion have spawned a host of "public interest" litigation organizations, both liberal and conservative, that promote political and legal agendas through TEST CASES. AMERICAN Indian

INDIANS, see:

Indians

and

tribes

AMICUS CURIAE Amicus curiae is a Latin phrase meaning "friend of the court." In important cases on appeal, the outcome of which may affect many different interests beyond those of the immediate parties, particular groups (environmental organizations, district attorneys, state attorneys general, public interest litigators such as the AMERICAN

CIVIL LIBERTIES

UNION, and

the like) are often permitted to present their own briefs on how APPELLATE COURTS should rule. No one has the right to appear as "amicus"; courts grant the opportunity case by case. The Court rarely permits any amicus other than the United States (that is, when the United States is not a party to the case) to present ORAL ARGUMENT.

45

46

AMNESTY AMNESTY,

see:

pardons,

c o m m u t a t i o n s , and

reprieves,

amnesties

to a cask tapped at both ends; and

North

Carolina, between Virginia and South Carolina, to a patient bleeding at both arms."* T h e solu-

AMONG

THE

SEVERAL

STATES

The

tion to the bitter trade wars was national action,

phrase "among the several states" appears in f o u r

but the Confederation Congress was powerless.

places in the Constitution: Art. I-§2.[3], Art. I-

Maryland and Virginia agreed jointly to navigate

§8 [3], Sect. 2 o f the Fourteenth A m e n d m e n t ,

the Chesapeake Bay and its tributaries, and they

and the Sixteenth A m e n d m e n t . In the sense o f

invited Delaware and Pennsylvania to join the

apportionment o f members of Congress and fed-

pact. In 1786 ten states selected delegates to at-

eral taxes, it describes h o w the country is to be

tend a trade convention in Annapolis, Maryland.

divided up. In the sense of Congress's power to

In September, for various reasons, delegates f r o m

regulate commerce, its more modern phrasing is

only five states appeared, and no quorum ever

INTERSTATE COMMERCE.

materialized. T h e delegates disbanded, but not before recommending to their home legislatures

AMPLIFIERS, see: noise

that a new convention be called to begin the sec-

regulation

ond M o n d a y of the following M a y in ANCESTRY, see; racial

discrimination

Phil-

adelphia to investigate "important defects in the System of the Federal G o v e r n m e n t . . . of a nature

ANCILLARY

JURISDICTION

Ancillary ju-

risdiction is the power of a federal court to hear a claim even though no federal law gives it the authority to do so. T h e courts usually exercise this power under their DIVERSITY

JURISDIC-

so serious" that a new constitution might need to be framed. Heeding the call, Congress endorsed the proposal, and the CONSTITUTIONAL CONVENTION OF 1 7 8 7 received official sanction.

TION, which applies when two parties in a legal dispute involving state law are citizens of differ-

A N N E X AT I O N Although it is no longer a seri-

ent states. Suppose the defendant, w h o is being

ous concern, the question o f constitutional au-

sued by a driver f r o m another state for an auto-

thority to annex foreign territory was a lively

mobile accident, asserts that the fault was really

issue in the 1840s, following the Texas revolution

that of his neighbor. Ordinarily, the defendant

against Mexico and the establishment o f the in-

could not bring a claim against the neighbor in

dependent Lone Star Republic in 1836. Some ar-

federal court because they are residents of the

gued that Art. IV-§3

same state. Under the federal court's ancillary ju-

States from entering into an annexation treaty

prohibited

the

United

risdiction, the defendant may bring a "third-

with an independent nation, although the ex-

party claim"—that is, sue the neighbor—so that

press language of the section says no such thing.

all questions of liability can be resolved in the

Texas was eventually admitted through a joint resolution enacted by a majority vote in both

single case.

houses. See also: JURISDICTION;

PENDENT

JURISDICTION.

A N O N Y M I T Y , R I G H T TO ANIMAL

SACRIFICE,

see:

freedom

of

Under a state law

prohibiting distribution of any handbill without the name and address of whoever

religion

prepared,

printed, or sponsored it, a California defendant ANNAPOLIS

CONVENTION

Despite

the

was convicted for passing out handbills urging

peace treaty it signed with its former colonies,

shoppers to boycott merchants w h o

Great Britain continued to menace American

nated

shipping, and the states could not agree on a

struck down the ordinance, holding that the law

in e m p l o y m e n t

discrimi-

practices.. T h e

Court

uniform means o f dealing with the British navy.

went much further than it needed to and that

Just as bad, states with natural advantages were

anonymity is protected by the FIRST AMEND-

penalizing their neighbors. As James

MENT: "Anonymous

Madison

put it, some states, "having no convenient ports

pamphlets, leaflets, bro-

chures and even books have played an important

for foreign commerce, were subject to be taxed by

role in the progress o f mankind. Persecuted

their neighbors, through whose ports their com-

groups and sects from time to time throughout

merce was carried on. N e w Jersey, placed be-

history have been able to criticize oppressive prac-

tween Philadelphia and N e w York, was likened

tices and laws either anonymously or not at

A N T I - I N J U N C T I O N ACTS all. . . . [F]ear o f reprisal might deter perfectly

premacy. Curiously, both lay claim to the label

peaceful discussion o f public matters o f impor-

"FEDERALISM." In its original meaning, the term

t a n c e . " 2 2 9 1 For similar reasons, the C o u r t voided

referred to the principle of state supremacy in a

an O h i o law against circulating anonymous cam-

c o m m o n union. But those w h o took the name

paign literature. 1 4 9 5 T h e C o u r t noted that the

"Federalists" subtly altered the meaning o f feder-

state m a y not plausibly assert an interest in pro-

alism, identifying it as a method o f governing

viding the identity o f speakers so that the elec-

through a central government and the states.

torate could better assess the information

T h e Federalists saw the need for greater central

in

campaign literature, since "the identity of the

power. T h e y supported the Constitution

speaker is no different f r o m other components of

it strengthened the power of Congress and cre-

because

the d o c u m e n t s content that the author is free to

ated an executive capable o f acting on behalf of

include or exclude."

the entire nation, while at the same time retaining state sovereignty and state control over the

See also: FREEDOM OF

OF INFORMATION;

FREEDOM

SPEECH.

central

government.

Their

opponents,

now

known as the "Anti-Federalists," countered that the real meaning of federalism should be state

ANTIDISCRIMINATION

LEGISLATION

authority, not national authority, over individu-

T h e Constitution contains several prohibitions

als, and that only the states, not the new central

against discrimination

government,

(the t w o

PRIVILEGES

should have the power to

raise

AND IMMUNITIES clauses, the EQUAL PROTEC-

armies and taxes. T h e y were especially alarmed

TION

at the lack o f state equality in Congressional rep-

CLAUSE, the voting amendments),

but

they are too general to cover every form o f dis-

resentation.

crimination and inequality. Moreover, except for

Representatives would depend on

the THIRTEENTH AMENDMENT, they prohibit

they wanted each state to have an equal vote, as

Representation

in the H o u s e

of

population;

only governmental, not private, discrimination.

in the Senate. T h e Anti-Federalists insisted that

T o eliminate invidious private discriminations,

one of the gravest deficiencies in the Constitution

legislation has been necessary. Federal antidis-

submitted to the people for ratification was the

crimination laws have been enacted under the

absence of a BILL OF RIGHTS. In state after state

several powers given Congress under the Civil

they pressed their case, deriding the Federalist

War amendments; state antidiscrimination laws

claim

fall within

POWER o f the state.

granted Congress the power to interfere with the

Antidiscrimination laws take two forms. S o m e

people's rights, there should be no reason to sup-

create new substantive rights—for example, for-

pose that it should do so.

the POLICE

bidding employers to discriminate in hiring and promotion, and barring restaurants, hotels, and theaters

from discriminating

against

patrons.

Others confer jurisdiction on courts and procedural rights on victims of discrimination to permit them to remedy violations of existing antidiscrimination laws in court. Antidiscrimination policies have also been created by presidential EXECUTIVE ORDER;

for example,

President

Johnson's executive order in 1965 required all federal contractors to eliminate discriminatory

that

since

the

C o n s t i t u t i o n had

not

Although they were wrong in denying that a large republic could be self-governing, the AntiFederalists were right in worrying about the absence of restraints on government. T h e i r chief contribution to the ratification was their demand for a bill of rights. T h e y forced the Federalists to promise that if the Constitution were ratified, the first order of business in the new Congress would be to draft a set of amendments guaranteeing the people's rights.

employment practices and to take AFFIRMATIVE ANTI-INJUNCTION ACTS

ACTION to seek out qualified minorities.

State courts have

historically possessed the power to issue an INSee also: CIVIL

RIGHTS

LEGISLATION;

FREEDOM

STATE

CASES; OF

RIGHTS

JUNCTION to prevent certain acts f r o m taking

ASSOCIATION;

place. Federal courts have not. Although occa-

CIVIL

sionally the federal courts have claimed INHER-

ACTION.

ENT POWERS to issue injunctions, 6 2 5 there is litANTI-FEDERALISTS

T w o warring principles

tle question that Congress can limit the federal

lay at the heart o f the debate over ratification o f

courts' power to do so. As early as 1789, and

the need f o r a

again in a 1793 enactment, Congress forbade fed-

stronger central power; the other was state su-

the C o n s t i t u t i o n . O n e

was

eral courts from issuing stays to state courts in all

47

48

A N T I M A J O R I T A R I A N I S M

cases except bankruptcy. T h a t policy,

though

wavering and somewhat

porous w i t h

tions, 2 3 6 2 ,

'

1 5 7 6 , 2434


176' 1 1 8 4 ' l 3 4 4 ' 1818, 2301 (.jjg Court announced in Teague v. Lane that it would adhere to the position Harlan had advocated: a "new" constitutional rule will be applied to any cases still on direct appeal, but not to habeas corpus appeals of final state court decisions, with two limited exceptions. One exception is for a new rule that says that the particular defendant or what he did is constitutionally beyond the reach of criminal law. The second exception is a new rule recognizing a procedural right "without which the likelihood of an accurate conviction is seriously diminished." A rule that merely makes it more likely that a conviction will be accurate is not within this exception.2079 "A federal court engages in a three-step process" to apply Teague.1277 First, it must determine the date when the defendants conviction became final.415 Second, it must "[s]urve[y] the legal landscape as it then existed" 918 and "determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." 2055 Third, if the defendant is seeking the benefit of a new rule, the court must determine whether the relief sought falls within either of Teague s exceptions.879 Determining what it means to feel "compelled by existing precedent" calls for an exceedingly fine judgment. The Court has said that even though a rule is a logical consequence of a prior rule, it is nevertheless "new" unless it was "dic-

tated" by the prior rule. 1835 A rule is new if it is a proposition that "was susceptible to debate among reasonable minds." 340 Following these flexible standards, the Court ruled in 1990 that a 1981 decision requiring police to cease questioning a suspect in custody who demands to see a lawyer did not "dictate" the rule announced in 1988 that the police must also cease interrogation of a suspect who has requested a lawyer in connection with a separate, unrelated investigation.340 Therefore, the Court refused to apply the 1988 rule retroactively; it upheld the conviction of a defendant who was questioned despite his request for a lawyer on an unrelated charge. Other new-rule decisions in the 1990s give flavor to the doctrine. In 1981, in Bullington v. Missouri, the Court had declared that a defendant who had been sentenced to life imprisonment after a "trial-like" capital sentencing proceeding could not later be sentenced to death on retrial after his original conviction was overturned. Several years later, a Missouri judge sentenced a defendant as a persistent offender without first considering proof that he had committed prior crimes. At a later hearing, the state introduced the requisite evidence and the defendant was resentenced. In a habeas proceeding, a federal appellate court reversed, citing Bullington for the proposition that the resentencing violated the DOUBLE JEOPARDY Clause. The Supreme Court reversed, 8-1; to hold that a noncapital sentence could not be enhanced under the same circumstances as in Bullington would amount to a new rule. 415 Hence the resentencing was sustained. The Court turned down a Missouri murder defendants claim in a federal habeas proceeding that a state appellate court was required to hear an appeal of her conviction. After she had been convicted and while her motion for a new trial was pending, the defendant, who had been free on bail, "took flight to a neighboring county." On recapture, she was sentenced to life imprisonment. She sought direct appeal, but the state appellate court refused, citing "Missouri's wellestablished fugitive dismissal rule which provides that a defendant who attempts to escape justice after conviction forfeits her right to appeal." In her federal habeas appeal, the Court of Appeals held that Missouri's failure to grant her an appeal violated her right to DUE PROCESS. The Supreme Court unanimously dismissed the appeal because the holding by the Court of Appeals that due process requires a recaptured fugitive to be granted an appeal was a new rule.891

NEWSPAPERS A 5-4 majority rejected a defendant's claim that he should be permitted in his first federal habeas petition to argue that he was denied due process because a prosecutor failed at the outset of the trial to provide notice of certain incriminating evidence that would be used at the capital sentencing phase should he be found guilty. Instead, the prosecutor gave notice only one day before the sentencing phase. A holding that due process requires more than a day's notice of evidence to be used would be a new rule. 926 Speaking for four dissenters, Justice Ruth Bader Ginsburg said that "[b]asic to due process in criminal proceedings is the right to a full, fair, potentially effective opportunity to defend against the states charges"; since the defendant asserted that he was denied such an opportunity, he did not need to point to any new rule to make out his claim. He should therefore have been permitted to argue his case for a new sentencing. The following were also held to be new rules: changes in the types of instructions given jurors at the sentencing phase of a murder case concerning mitigating evidence, 918 jury instructions later declared unconstitutional in an unrelated case that permitted the jury in a murder case to disregard the defendant's state of mind and therefore overlook the possibility of convicting him on a lesser charge of manslaughter, 879 a judge's consideration of an advisory jury's recommendation of the death penalty based on an improper weighing of aggravating and mitigating circumstances, 1277 and the requirement "that a capital defendant be permitted to inform his sentencing jury that he is parole-ineligible if the prosecution argues that he presents a future danger." 1 7 3 3 The Court has not sided with the prosecutors in every claim that the retroactive application of a constitutional decision is a new rule. A Mississippi couple was shot to death during an armed robbery of their home. One of the robbers, who did not fire the fatal shots, was convicted of felony murder and sentenced to death after the jury was instructed that it could consider certain aggravating factors, including that the crime was committed in a "heinous, atrocious or cruel" manner. T h e Mississippi judge did not define this phrase. After the defendant's appeals failed and his conviction became final, the Supreme Court decided in other cases that such phrases as Mississippi used to determine AGGRAVATING CIRCUMSTANCES are unconstitutionally vague. On federal habeas review, the state argued that to grant the defendant a new sentencing

hearing would be to apply a new rule. The Court disagreed, holding that even though there were differences between the Mississippi sentencing process and those cases that led to the Court's vagueness rule, they were not sufficiently different from procedures that the Court had condemned in other decisions handed down before the defendant's conviction. Moreover, the fact that the Mississippi aggravation standard was phrased in words different from those in cases predating the conviction was not sufficient to constitute the application of a new rule. Mississippi lawmakers and the courts should have known that the law was defective. 2262 Despite the Court's predilection for finding new rules in the uses to which the courts put the Supreme Courts constitutional rulings, it has held that federal courts are not constitutionally required to reject habeas corpus review under Teague v. Lane if the state failed to object in the lower courts to the retroactive application of a new rule. 2092 N E W S T A T E S , see; s t a t e , f o r m a t i o n new N E W S G A T H E R I N G Under AMENDMENT guarantee of

of

the FIRST FREEDOM OF

SPEECH and FREEDOM OF THE PRESS, anyone is

free to ask questions and conduct investigations to report the news. The Constitution does not shield someone who commits crimes to uncover information—there is no constitutional right, for example, to break into an office in the search for news—but there is a constitutional right to publish or broadcast information about public affairs that the government prefers to remain secret. 1686 The right to gather news does not mean that the government must cooperate or provide access to whatever official documents or other newsworthy information the press desires, although the Supreme Court has held that, except in the rarest circumstances, the trial of a criminal case must be open to the public, including the press. 1989 See also: ACCESS GAG

ORDER;

RESTRAINT;

TO PRISONS

PENTAGON RIGHT

TO

AND

PAPERS

PRISONERS; CASE;

PRIOR

KNOW.

NEWSMAN'S PRIVILEGE, porter's privilege

see:

re-

N E W S P A P E R S , see: c o n t e m p t ; f r e e d o m of the press

319

320

NEWSRACKS N E W S R A C K S , see: c o m m e r c i a l NINETEENTH AMENDMENT

speech

Until 1838 no

state permitted women to vote in any elections. In that year Kentucky approved female voting in school elections, and that limited right spread to some other states. But a comprehensive right to vote did not develop. In 1875 the Supreme Court foreclosed one potential avenue to women's suffrage, holding that the right to vote is not one of the PRIVILEGES AND IMMUNITIES guaranteed by the FOURTEENTH AMENDMENT. 1 5 6 2 T h e first

state in which women gained the right to vote was Wyoming, in 1869, but during the next fortyfive years only ten other states followed suit. Finally, after an intense political campaign following World War I, Congress proposed the Nineteenth Amendment, the women's suffrage amendment, on June 4, 1919, and by August 18, 1920, it was ratified. By its terms the Nineteenth Amendment applies to both men and women, denying the United States and all states the power to discriminate in voting on the basis of sex. The Court has heard only one case touching on the Nineteenth Amendment, holding in 1937 that a Georgia POLL TAX law did not discriminate against men by giving women a partial exemption.269 See also: VOTING, RIGHT TO. N I N T H A M E N D M E N T The Ninth Amendment is the great paradox of the Constitution. The most telling argument against the Constitution during the ratification debates was that it did not contain a BILL

OF

RIGHTS. T h e

Con-

stitution's proponents disingenuously argued that for two reasons no listing of rights was necessary. First, since the new federal government was one of limited and ENUMERATED POWERS

only, it would lack the authority to enact laws that violate people's rights. Second, since it would be impossible to list all rights, the omission of some from a Bill of Rights might be interpreted as conferring a power on Congress to enact laws invading the unlisted rights. These arguments were weak, as the ANTI-FEDERALISTS quickly pointed out. T h e

NECESSARY

AND

PROPER

CLAUSE, to which the Anti-Federalists also objected, could well bestow on Congress ample power to invade the people's rights. Moreover, the proposed Constitution did list some rights—-for example, the right to be free of ex post facto laws and bills of attainder. But by the Federalists' very

own argument, that demonstrated the necessity for a Bill of Rights, since the Constitution omitted most other rights that everyone agreed the people ought to retain. Recalling these debates a year later, James Madison introduced in the First Congress as part of the proposed Bill of Rights a rule of interpretation that became the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, do not conclude from how the Constitution is written that there are no rights beyond those listed. For those who fear the antimajoritarian tendency of JUDICIAL REVIEW, the N i n t h A m e n d -

ment potentially poses a severe problem. For despite all the palaver about broad or STRICT CONSTRUCTION and the wisdom of abiding by the ORIGINAL INTENT of the Framers, it is clear

that the Constitution itself contemplates rights that lie wholly outside its text. Even worse, historians of the period* have shown that the rights the Framers contemplated were "natural rights," those "created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice."* These are the broad rights of NATURAL LAW. Madison believed that natural law embraced even FREEDOM OF SPEECH, and it was the one significant

right eventually incorporated into the Bill of Rights that Madison had initially omitted.* In short, the Ninth Amendment is an invitation to the judicial declaration of unenumerated rights, "the repository for natural rights, including the right to pursue happiness and the right to equality of treatment before the law."* For 175 years the Ninth Amendment lay dormant, if not forgotten. Although a few justices referred to it in passing,2406 no one ever remotely suggested it as the basis for upholding a claim to an unenumerated right. For the first century, it was unnecessary to do so, since the Bill of Rights did not apply to the states and Congress enacted few laws that violated the kinds of rights that might be sheltered in the Ninth Amendment. Thereafter, the Court found other avenues— primarily through DUE PROCESS—to unenumerated rights. Then, in 1965, the Court in Griswold v. Connecticut proclaimed a right of marital PRIVACY, a right not explicitly listed in the Constitution. In his majority opinion, Justice

N O - K N O C K ENTRY William O. Douglas referred to the Ninth Amendment, among others, to justify the Courts striking down an anti-CONTRACEPTION law. But it w a s the C O N C U R R I N G

OPINION

of Justice

Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William J. Brennan, that put the Ninth Amendment into constitutional discourse. Goldbergs point was that the Ninth Amendment strongly supports the view that the LIBERTY protected by due process "is not restricted to rights specifically mentioned in the first eight amendments." Griswold unleashed a torrent of discussion. In the next fifteen years alone more than 1,200 cases in the lower courts raised Ninth Amendment issues.* Except for a solitary glancing reference in 1980, the Supreme Court has not returned to j t 1989 However, Professor Charles L. Black has suggested that the Court should not hesitate to discern and protect unnamed rights "closely analogous or functionally similar to a named right." For example, the FIFTH AMENDMENT says that no person may "be twice put in jeopardy of life or limb." It does not say that a person may be tried but once if the only penalty is a jail sentence. Yet the C o u r t has interpreted the D O U B L E JEOPARDY

provision to apply under these circumstances—a result, Black concludes, entirely consistent with the Ninth Amendment.* See also: BILL OF ATTAINDER;

EX POST

FACTO

CLAUSES.

NO

RELIGIOUS

TEST,

see:

religious

test NOBILITY, TITLES

OF, see: title

of

no-

bility N O I S E R E G U L A T I O N Although it is limited in some cases by the FIRST AMENDMENT, legislatures possess the unquestioned power to regulate noise levels in factories and other workplaces in the interests of worker health and safety. The same power exists to regulate noise in the community at large. In 1943 the Court struck down a municipal ordinance prohibiting anyone from knocking on the doors of peoples homes to distribute literature. The city said the ordinance was a means of protecting night-shift workers from being awakened during the day. The Court said the ban was a "naked restriction of the dissemination of ideas." 1442 Five years later the Court struck down an ordinance requiring anyone op-

erating a sound truck to obtain permission from the chief of police, because the ordinance provided no limit on the chief's discretion to deny a permit. 2057 But in 1949 the Court upheld an ordinance banning sound trucks or other amplified vehicles that "emit . . . loud and raucous noises." Although there was no majority opinion, the Court seemed to say that to protect the public streets all amplifiers capable of loud noises could be banned, even though on a particular occasion the loudspeaker was neither raucous nor loud. 1256 In 1989 the Court upheld a New York City ordinance requiring city technicians to control the sound level at concerts in Central Park, against a claim by musicians that denying them the use of their own technicians and sound systems interfered with their rights to FREEDOM OF SPEECH.2470 See also: LESS

RESTRICTIVE

MEANS; PERMIT SYSTEM;

ALTERNATIVE

OR

SOLICITATION.

N O - K N O C K E N T R Y A no-knock entry occurs when police enter a suspects home without first announcing their intention to enter, either to arrest the suspect or to search the premises. The Federal Code of Criminal Procedure requires federal law enforcement officials to announce themselves before entering. In 1995 the Court unanimously held for the first time that although the FOURTH AMENDMENT does not dictate a rigid rule requiring police always to announce their presence before entering premises to be searched, the COMMON LAW knock-and-announce rule forms part of the inquiry into whether the search was reasonable.2557 Justice Clarence Thomas concluded that "the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering." Consequently, "in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment." Not every entry, therefore, requires an announcement. Whether police are obliged to announce before entry depends on "countervailing law enforcement interests," for example, threat of violence. The Court declined to "attempt a comprehensive catalog of the relevant countervailing factors," leaving the list to be compiled case by case as each arises in the lower courts. In 1997 the Court rejected a claim that "when [the police are] executing a SEARCH WARRANT in a felony drug investigation" the Fourth Amendment "permits a blanket exception to the knock-and-announce requirement." 1 9 8 2 t

321

322

NOMINATIONS See

also:

ARREST

SEARCH AND

AND

ARREST

WARRANT;

SEIZURE.

N O M I N A T I O N S , see: a p p o i n t m e n t removal power

and

Notice is also required of any proceeding undertaken by the government in which an indi-

N O N D E L E G A T I O N D O C T R I N E , see: d e l egation doctrine NONOBSCENE PLICIT

BUT

EXPRESSION,

and indecent

SEXUALLY see:

duration. Since the proper information was published in the Federal Register, the beneficiaries had no constitutional grounds to complain of the lack of notice. 1399

EX-

offensive

speech

N O N R E S I D E N T S , see: r e s i d e n c e N O R T H W E S T O R D I N A N C E The Northwest Ordinance of 1787 was enacted by the Confederation Congress, before the Constitution was ratified, to govern territory constituting the eventual states of Illinois, Indiana, Michigan, Ohio, and Wisconsin. The ordinance established the fundamental precedent that the continental territories of the United States would eventually be admitted into the UNION as full-fledged STATES. It included a plan by which the territories could apply for statehood if they reached a certain population size and adopted a constitution providing for a REPUBLICAN FORM OF GOVERNMENT. The Northwest Ordinance was the first national law to contain specific rights as limitations on the powers of government, including many of the familiar provisions of the BILL OF R I G H T S , s u c h as T R I A L BY J U R Y , J U S T C O M -

PENSATION for property taken by EMINENT DOMAIN, a ban on cruel and unusual PUNISHMENT, and the requirement of procedural regularity known in the Bill of Rights as DUE PROCESS. The ordinance also included the forerunner of t h e C O N T R A C T C L A U S E a n d b a r r e d SLAVERY a n d

involuntary servitude from the territory and from any states later formed from it. N O T I C E Notice is a fundamental requirement of DUE PROCESS. A law enacted in secret or a regulation unpublished by an administrative agency would clearly be unconstitutional. Reacting in part to just such a concern, Congress in 1935 enacted the Federal Register Act, requiring all executive orders, rules, and regulations having legal effect to be published in the daily Federal Register. In 1986 the Supreme Court dismissed the request that a disaster relief program be reopened because the government's news releases did not adequately inform potential beneficiaries of its terms and

vidual's life, LIBERTY, or PROPERTY may be ad-

versely affected. When prosecutions are brought or lawsuits filed, notice is rarely an issue because the INDICTMENT or legal complaint will notify the defendant that a case is pending. The Court struck down a New York law that permitted trust companies to manage individual trusts jointly and to advertise in newspapers when making periodic payments to individual beneficiaries. The right to receive earnings was extinguished for each beneficiary who did not make a claim. The Court said that a newspaper ad is sufficient notice to beneficiaries whose names and addresses the trustee did not have. But notice must be sent by mail to each individual beneficiary whose name and address was known to the trustee. 1609 See

also:

FICITY

ACCUSATION, OF;

BUREAUCRATIC DOCTRINE;

NOTICE

ADMINISTRATIVE GOVERNMENT;

FORFEITURE;

AND

SPECI-

AGENCIES FAIR

SERVICE OF

AND

WARNING PROCESS;

VAGUENESS.

N O T I C E OF A C C U S A T I O N , see: a c c u s a t i o n , n o t i c e a n d s p e c i f i c i t y of N O X I O U S P R O D U C T S In 1903 the Supreme Court held that Congress could constitutionally ban from INTERSTATE COMMERCE any noxious product—that is, a product that would harm the public in any way. 427 In 1918 the Court interpreted this doctrine as a restraint on federal power, holding that if a product itself was not inherently harmful, Congress could not prohibit commerce in it. 984 In 1941 the Court finally abandoned the notion that Congress was limited to banning only noxious products, holding that the question of who may engage in what kind of interstate commerce is solely for Congress to determine. 585 See also:

NATIONAL

POWER; PROHIBITION

POLICE OF

POWER;

POLICE

COMMERCE.

N U D I T Y Whether nudity can be banned depends on whether it is a form of expression protected by the FIRST AMENDMENT. Depictions of

the nude body are constitutionally protected as long as they are not obscene. Therefore, the state

NULLIFICATION, INTERPOSITION, AND SECESSION may not ban books and magazines with nonob-

See aho:

OBSCENITY

scene photographs o f nudes. Likewise, a city may

FENSIVE

AND

not prohibit drive-in movie theaters f r o m show-

SPEECH.

AND PORNOGRAPHY;

INDECENT

SPEECH;

OF-

SYMBOLIC

ing films with nonobscene nudity, even if the screen is visible to a passerby on the street. 7 1 5 But

NULLIFICATION, INTERPOSITION,

because certain types o f films may have a delete-

SECESSION

rious effect on the neighborhood, the Supreme

are the discredited theories that the states may de-

C o u r t has upheld ZONING ordinances that dis-

clare laws enacted by Congress unconstitutional.

perse "adult" theaters around t o w n 2 6 1 7 or that force them into particular areas in

town.1969

Nullification and

AND

interposition

T h e term "nullification" was first introduced by Thomas Jefferson, who

secretly drafted

the

"Live" nudity poses a somewhat different prob-

Kentucky Resolution condemning the Federalists

lem because it is less clear that it is a f o r m o f ex-

for enacting the ALIEN AND SEDITION ACTS in

pression. Public indecency laws prohibiting pub-

1798.

lic nudity are constitutional because they are

Madison used in the Virginia Resolution to the

aimed

"Interposition"

was

the

word

James

reflecting

same effect. Jefferson's and Madison's point was

"moral disapproval o f people appearing in the

that the states must act to quash unconstitutional

nude a m o n g strangers in public p l a c e s . " 1 5 5

enactments since at the time there was no insti-

at conduct,

not expression,

But since some forms of conduct are them-

tution that could authoritatively interpret the

dancing—the

Constitution. Five years later C h i e f Justice J o h n

question has frequently arisen to what degree the

Marshall assigned the task of JUDICIAL REVIEW

selves expression—for example,

states may ban public nudity when it is "expressive

to t h e S U P R E M E C O U R T in M A R B U R Y V. M A D I -

conduct." T h e rule for nudity on stage in a dra-

SON. T h e Alien and Sedition Acts expired in

matic performance is the same for photographs

1801, so their constitutionality was never tested.

and movies: it may not be banned unless it is obscene.

2205

But the rule for nude dancing is not the

But the theory that the states could legitimately d e f y federal law did not die.

same. T h e battle is usually fought over nude danc-

In 1828 J o h n C . Calhoun o f South Carolina

ing in bars. In 1975 the C o u r t said that under cer-

advanced the thesis of a "concurrent majority": a

tain circumstances, the "customary 'barroom' type

majority within a state could veto federal actions,

of nude dancing" is entitled to constitutional pro-

thereby avoiding tyranny by the national major-

tection. 6 5 0 Nevertheless, the C o u r t ruled in 1972,

ity. In 1832 South Carolina protested two national

the TWENTY-FIRST

AMENDMENT permits the

tariffs by enacting a Nullification Ordinance pro-

states to prohibit simulated sexual activities or

hibiting on pain of CONTEMPT certain appeals to

movies o f them, and live topless dancing in bars

the Supreme C o u r t and an enforcement act pro-

and other establishments licensed to sell liquor,

viding a damage remedy against federal officials

even if none of the pictures or dances are obscene

w h o arrested South Carolinians for failing to pay

in the constitutional s e n s e . 3 7 2 ' 6 5 0 , 1 6 8 4 (In 1996 the

the tariffs. President A n d r e w Jackson met the cri-

C o u r t expressly "disavowed" its 1972 contention

sis head on, branding the Nullification Act as

that the Twenty-first A m e n d m e n t was necessary

treason and pushing through a Force Act that au-

to empower the states to ban "grossly sexual exhi-

thorized him to send in troops to put d o w n open

bitions in premises licensed to serve alcoholic bev-

disobedience.

erages"; states, the C o u r t held, have independent

C a l h o u n continued agitating for his interposi-

power to do so. 8 0 2 ) In a 1991 case the C o u r t , in a

tionist views, advocating statewide quarantines

South

Carolina

backed

down.

5 - 4 decision, with no majority opinion, held that

against mail carrying antislavery propaganda. For

the states may ban nude dancing in places other

several years, some states did actively interfere

than bars under a general law barring nudity in

with the delivery o f the U . S . mail.

public places. A plurality of three justices said that

T h o u g h southern states were the more persis-

"nude dancing . . . is expressive conduct within

tent proponents of nullification and put the the-

the outer perimeters o f the First A m e n d m e n t ,

ory to its ultimate test during their attempted se-

though . . . only marginally s o . " 1 5 5 Even so, they

cession, resolved only by the Civil War, northern

and two concurring justices voted to uphold an

states coo presumed to override federal law. T h e

Indiana requirement that a dancer may not dance

most notable instance occurred when an aboli-

wholly nude for customers of an adult entertain-

tionist editor, Sherman M . Booth, helped rescue

ment theater, but must wear "pasties" and a G -

a fugitive slave in Wisconsin and was promptly

string. 1 5 5

arrested for violating the federal Fugitive Slave

323

324

N U M B E R OF FREE

PERSONS

Act. T h e Wisconsin courts took the position that

reacted to Brown v. Board of Education with the

the act was unconstitutional. Twice they released

SOUTHERN MANIFESTO. Segregationist politi-

Booth in HABEAS CORPUS proceedings, the sec-

cians raced to the microphones to proclaim an

ond time even though Booth had been convicted

absolutist state SOVEREIGNTY. Senator James

in federal court of violating the act. In 1859,

O . Eastland of Mississippi said, " O n May 17,

speaking through Chief Justice Roger B. Taney,

1954, the Constitution of the United States was

the Supreme Court reaffirmed the supremacy of

destroyed because the Supreme Court disre-

federal law, and the Wisconsin Supreme Court

garded the law and decided integration was

ultimately backed down. 3

right. . . . You are not required to obey any court

In announcing their secession, southern states

which passes out such a ruling. In fact, you are

in i860 and 1861 relied on the "compact theory"

obligated to defy it."* The Court responded in

of the UNION, which held that the United States

1958531 and i960 334 with the declaration that

was in effect a contract among states from which

"interposition is not a constitutional doctrine. If

a state could withdraw whenever it chose.

taken seriously, it is illegal defiance of constitu-

President Abraham Lincoln set the constitutional

tional authority."

tone for the Civil War and the Reconstruction that followed in his assessment that secession was simply "the essence of anarchy." T h e states, he said, "have their status in the Union, and they

See also: DAMAGES; REPUBLICAN ERNMENT; PREMACY

STATES

AND

FORM OF

GOV-

STATEHOOD;

SU-

P E R S O N S , see:

free

CLAUSE.

have no other legal status." Congress and the Supreme Court relied on this premise in later leg-

NUMBER

islation and cases that treated the states not as

persons

OF

FREE

having seceded but as having had rebellious and corrupt governments. Echoes of nullification and

NUMBER interposition

reappeared in the 1950s, when southern states

OF

SUPREME

COURT

JUS-

T I C E S , see: S u p r e m e C o u r t , n u m b e r of j u s t i c e s

o OATH,

L O Y A L T Y , see: l o y a l t y

oath

O F O F F I C E Article Vl-§3 requires all members of Congress and state legislatures, executive officers of both the United States and the states, and all judges, state and federal, to take an oath to support, or to affirm their support of, the Constitution. According to Alexander Hamilton in Federalist 27, the oath was intended to incorporate all state officials "into the operations of the national government as far as its just and constitutional authority extends" to render them "auxiliary to the enforcement" of federal law. The clause figured in a 1966 case overturning the exclusion of Julian Bond from the Georgia House of Representatives.230 Bond had criticized the war in Vietnam. The Georgia House excluded Bond on the ground that his remarks showed he could not conscientiously take an oath to support the Constitution. The Supreme Court said that Bond's remarks were protected under his F R E E D O M OF SPEECH and that they did not conflict with any assertion of fidelity to the Constitution. Exclusion from an elected position for remarks that the candidate is constitutionally entitled to make violates the FIRST A M E N D M E N T . The only American official required to take a different oath is the president. Article II-§i[8] requires that every president 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." Although by its terms this clause says that every president must swear the oath before entering office, it has never been assumed to be legally binding. Historically, presidents-elect take the oath of office at an inauOATH

guration ceremony and do not presume to exercise the powers of office until then. But when a president dies in office, the vice president succeeds to and is invested with the powers of the office from that moment, even before he has officially taken the oath. The OATH OR AFFIRMATION Clause applies only to holders of state or federal office. Congress and the states have sometimes imposed an oath requirement on their employees and on people seeking licenses from the government. After the Civil War, the Supreme Court struck down both federal and state requirements that lawyers swear a T E S T OATH that they had not participated in the R E B E L L I O N against the U N I O N on the ground that such requirements amounted to an unconstitutional BILL OF A T T A I N D E R . 8 4 2 , 5 6 9 After World War II the federal government and many states required as a condition of holding a public job that their employees take a LOYALTY OATH. Although for a time the Court sustained some of these oaths, eventually it held that most of them violated the First Amendment or were void because of V A G U E N E S S . One odd case, never overruled but questionable in view of the Courts position on loyalty oaths, was handed down in 1890. A territorial government required every prospective voter to swear that he was neither a polygamist nor a member of any organization that advocated polygamy and that he would not "in any manner whatever" advocate anyone to commit polygamy. The Court upheld this anti-Mormon law as a means of stamping out the practice.592 Since simple M E M B E R S H I P IN P O L I T I C A L 702 O R G A N I Z A T I O N S may not be prohibited and advocacy that does not amount to incitement of an imminent lawless act may not be punished,260

326

OATH OR AFFIRMATION it is unlikely that such a voter's oath would be upheld today. See also: OFFICE AND OFFICERS.

OATH OR A F F I R M A T I O N The requirement that officials take an OATH OF OFFICE is tempered by the alternative that they affirm their support of the Constitution. The word "affirmation" was added to Art. VI-§3 to respect the sensibilities of Quakers, who are bound by religious belief to refrain from swearing any oath. O B I T E R D I C T U M , see: d i c t u m O B L I G A T I O N OF C O N T R A C T S

Under the

CONTRACT CLAUSE o f A r t . I-§IO[I], no state

may pass any "law impairing the obligation of contracts." The policy underlying this clause was a principal impetus of the CONSTITUTIONAL CONVENTION OF 1787. Many state legislatures had enacted laws abrogating the rights of creditors to collect their debts. SHAYS'S REBELLION in 1786 and 1787, which aimed at stopping the courts from foreclosing on farmers' mortgages, alarmed many state leaders and convinced them that both constitutional and military power was necessary to protect the rights of creditors. But the constitutional clause protecting their rights was obscurely worded. Although the Framers may have supposed its meaning was clear, the history of the clause at the hands of the Court suggests otherwise. The Framers chiefly meant to bar states from nullifying contracts between private parties, but the clause first came to the Court's attention in cases dealing with grants or contracts made by the states themselves. In 1810, in Fletcher v. Peck, Chief Justice John Marshall held that the Georgia legislature could not revoke grants of land that it had made to several land companies. In 1812 the Court used the clause to strike down the repeal of a New Jersey land tax exemption. 1662 And in the famous Dartmouth College Case587 the Court prohibited New Hampshire from enlarging Dartmouth's board of trustees, holding that the 1769 royal charter was a contract that delegated exclusive power to the trustees to fill board vacancies. Shortly after deciding Dartmouth, the Court gave the clause the meaning that the Framers probably intended when it struck down a New York BANKRUPTCY law that discharged debtors of any further existing debt on the surrender of their property to creditors.2267

However, over Marshall's dissent, the Court in 1827 held that states could pass prospective bankruptcy legislation, since parties who enter into contracts always do so with the tacit understanding that they will be bound by existing contract law. 1741 In other words, the Contract Clause prohibits the states from impairing the obligation of existing contracts, not from barring the making of contracts in the future or from subjecting them to rules governing remedies for breaches that occur after the law is passed. By the 1830s the Court made it clear that a state may regulate or even revoke grants and charters as long as it reserved the right to do so in the original grant. In the Charles River Bridge Case in 1837, one bridge company with a charter from Massachusetts protested the state's granting of a charter to another company to build a competing bridge, claiming that it had been granted a monopoly. Chief Justice Roger B. Taney said that no grant of a monopoly appeared in the original charter, and that the Court would not only refrain from inferring one but would hold any ambiguity in a charter against the company "and in favor of the public." 437 From this case the Court fashioned a general rule that the Contract Clause does not override "the [POLICE POWER] of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; [and] this power can neither be abdicated nor bargained away, and is inalienable even by express grant." 1 1 2 Even if a corporate charter promised that a state would refrain from exercising its power of EMINENT DOMAIN to take corporate property, the state always remains constitutionally free to do so, as long as it pays JUST COMPENSATION.2508 A company chartered to operate a lottery cannot complain under the Contract Clause when the state later outlaws lotteries.2253 Similarly, private parties may not prevent a state from enacting a law in the interests of health, safety, or welfare simply by making a contract to do that which the later regulation prohibits. To regulate or ban harmful activities, a state may always prohibit people from entering into certain kinds of private contracts—for example, gambling, prostitution, a n d consumption of INTOXICATING BEVERAGES.

Just because contracts for the sale of beer were lawful when made does not prevent the state from later prohibiting beer sales.238 The question remains what constitutes an "obligation." In the 1934 Mortgage Moratorium

OBSCENITY AND Case1078 the Court distinguished between the obligation and the remedy. To forestall a wave of farm foreclosure sales at the height of the Depression, Minnesota passed a law permitting farmers to stay on their farms, even if they could not pay the mortgage, as long as they paid a "reasonable part" of the fair rental value of the property. The moratorium was limited to two years. Then a farmer would have to pay what was owed under the mortgage. In upholding the law, Chief Justice Charles Evans Hughes for a 5-4 majority said that the law did not repudiate the debt or destroy the contract but rather temporarily relieved the debtor from full enforcement. The bank or other creditor was authorized to take title if the farmer failed to redeem during the two-year period. For four decades the Court rejected all Contract Clause claims. Then, in 1977, it upheld such a challenge to an attempt by New Jersey to repudiate a state covenant to bondholders that it would not use Port Authority revenues to subsidize rail passengers. The Court held that the state's repeal of its covenant was neither "reasonable" nor "necessary." For a 6-3 majority, Justice Harry Blackmun said that "a state cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend the money to promote [another public interest]." 2416 In 1978 the Court applied the Contracts Clause to invalidate a Minnesota law that retroactively altered the terms of a private pension agreement. 49 But in the 1980s the Court once again relaxed its scrutiny of regulatory laws that interfered with contractual obligations. In 1983 it announced a three-part test in determining whether to uphold a challenge under the Contract Clause. (1) A court first must determine whether the law substantially impairs a contractual relationship. If so, (2) the state "must have a significant and legitimate public purpose" to regulate. If so, (3) the state's adjustment of the contractual obligations must be based on "reasonable conditions" and be "of a character appropriate to the public purpose." 709 But that test may be dispensed with if an asserted impairment really results only incidentally from "a generally applicable rule of conduct." Alabama increased its tax on oil and natural gas taken from wells in the state and forbade producers from passing the increase on to purchasers. The Exxon Corporation sued to bar enforcement of the law, because it had existing contracts permitting tax increases to be passed along. The Court rejected Exxon's argument, since the Alabama law was not aimed at Exxon's

PORNOGRAPHY

or anyone else's contracts but was a rule generally applicable to everyone and was "designed to advance a broad societal interest." 732 The Contract Clause is a limitation only against the states. Congress has explicit power to enact uniform bankruptcy legislation under Art. I-§8[4]. Nevertheless, in 1934 and 1935 the Court read the Contract Clause into the DUE PROCESS Clause of the FIFTH AMENDMENT.

In the 1934 case, the

Court struck down as a violation of due process a federal law that abrogated private contracts for war risk insurance. 1396 The 1935 case concerned a federal farm mortgage act similar to Minnesota's, under which federal bankruptcy courts could hold off creditors for five years, allowing bankrupt farmers to stay in possession and to pay a reasonable rent set by a court, and then to redeem the farm at an appraised value. Despite its holding in the Mortgage Moratorium Case, the Supreme Court unanimously struck down this law because the interference with the farmers' existing obligations was too drastic. 1374 But in 1937 the Court largely recanted, upholding a modified version of the law that the Court deemed less restrictive of the creditors' rights. 2598 See also: RETROACTIVITY;

OBLIGATIONS

OF

YAZOO LAND

SCANDAL.

GOVERNMENT,

see:

g o v e r n m e n t , a f f i r m a t i v e o b l i g a t i o n s of OBSCENITY

AND

PORNOGRAPHY

In

1957 the Court held 7 - 2 , speaking through Justice William J . Brennan, that obscenity is a f o r m o f LOWER-VALUE SPEECH that the FIRST

AMENDMENT does not protect. 2 0 3 7 T h a t generalization is practically useless, however, since the question in that case, as in almost every other such case, is whether the condemned work really is obscene; if it is not, then of course it is entitled to First Amendment protection. The excruciating constitutional difficulty with obscenity, therefore, is not whether it is protected but how to recognize it. Until the 1930s, American courts judged a work to be obscene if it had a tendency "to deprave or corrupt those whose minds are open to such immoral influences."* This test permitted the states to censor all sorts of literary works, including those of contemporary novelists such as Stephen Crane, Walt Whitman, Theodore Dreiser, and Mark Twain; classical writers such as Rabelais and Voltaire; straightforward sex hygiene books; and works of such scientific thinkers as Sigmund Freud. The test for obscenity permitted

327

328

OBSCENITY AND

PORNOGRAPHY

censorship of an entire work because of a single suggestive passage, regardless of the author's intent or the effect of the work as a whole. This rule was finally toppled by a decision of federal District Judge John Munro Woolsey in 1933 to allow James Joyce's Ulysses to be imported and sold in America.* But there was still no general constitutional rule, and in the name of obscenity, censorship boards could ban almost anything they disliked. The Police Board of Censorship in Chicago once held obscene a Walt Disney movie on the vanishing prairie because it showed a buffalo giving birth, and the censorship board of a southern town banned a movie as obscene because it depicted black and white schoolchildren playing together.* In the 1957 case the Court held that whether a work may be banned as obscene depends on "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interests." This definition meant that scenes of racially mixed schoolchildren could never be banned as obscene, and presumably meant that nature films were likewise protected. But it solved few real problems, since what the Court meant by "appealing to a prurient interest" was highly obscure. "Prurient" refers to "lustful desire." How does a work "appeal" to a lustful desire? And what is a contemporary community standard? What a jury thinks or what any five of the nine justices of the Supreme Court think? One thing became certain: whatever a state might ban as obscene, it assuredly may not censor a work simply because it deals with a sexual theme. 1237 In 1962 the Court said that the work must be "patently offensive," 1425 and in 1964 it added that censors must prove that it lacks "redeeming social importance."" 50 In the 1960s the Warren Court greatly narrowed the definition, requiring the censor to pass a three-pronged test. To be legally obscene, a plurality said in a case involving the eighteenthcentury novel Fanny Hill, the dominant theme of the work taken as a whole must (1) appeal to prurient interest in sex, (2) be "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters," and (3) be "utterly without redeeming social value." 1512 Although this was not wholly a majority view, the practical effect was that only hard-core pornography could be stopped. And not even hard-core pornography can be banned in the privacy of

one's home. In Stanley v. Georgia, the Court rejected a Georgia law criminalizing the knowing "possession of obscene matter."2234 What was once shocking and by common consent could surely have been banned became by the 1970s almost passe. However, in the 1970s a changing Court retrenched somewhat. In 1971 and 1973 the Court limited the reach of the private possession case, holding that the right to view concededly obscene materials at home is not a bar to federal laws against mailing obscene works1962 or to purchasing them.2389 In 1973, in Miller v. California, the Burger Court undertook to reshape obscenity law by announcing a new test of whether a work is obscene: (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. For any work to be judged obscene, the state must first have enacted an obscenity law that spells out what may not be depicted. It may not rely on vague standards such as "conduct that is vile, base, lewd, and offensive." Each state must specify in detail what body parts and specific acts may not be shown. Moreover, only "ultimate sexual acts" may be forbidden. A state could not outlaw depictions of people kissing, and N U D I T Y alone does not make a work obscene.715 As with many Supreme Court tests, the Miller rules raised more questions than they answered. One major issue is whether the jury has absolute discretion to determine whether each of the test's subparts has been met. The jury may determine for itself whether the work appeals to the "prurient interest."1888 But, said the Court in a moment of notable opaqueness, "prurient" does not refer to "material that provoked only normal healthy sexual desires" but only to "sexual responses over and beyond those that would be characterized as normal."282 The jury has great but not "unbridled discretion" to determine whether a work is "patently offensive." In a case just one year after Miller, a Georgia jury found the movie Carnal Knowledge patently offensive and obscene; but Justice William H. Rehnquist reversed, holding that there are "substantive constitutional limitations" on what a jury may find patently offensive and that courts may review a jury's findings. That a work deals with sex is not

O C C U P A T I O N , RIGHT TO PURSUE enough to make it patently offensive. Since the camera never focused on the actors' bodies during what the audience understood to be sexual moments, it did not "depict or describe" ultimate sexual acts and hence could not constitutionally be found obscene." 66 The jury may apply its own notions of "contemporary community standards" and may rely on standards of its local community; jurors need not try to ascertain a single national community standard.982 However, the "average person" applying those community standards must be drawn solely from the adult population. The jury may not apply a standard of what is suitable for children.1867 The Court has refused to allow the jury to determine under a local community standard whether a work has serious "value." Otherwise, a single local community anywhere in the United States could translate its disapproval into a judgment of literary worthlessness that could censor the book throughout the country >888 D e S pi t e every attempt to fashion and refine a tool to separate sexual trash from the permissibly erotic, the Court has probably never been more perspicuous than Justice Potter Stewart, who in a celebrated line in 1964 said that he doubted he could ever "succeed in intelligibly" defining hard-core pornography, "[b]ut I know it when I see it." 1 1 5 0 And that, of course, is just the problem. If a work is obscene, the state may ban it even if it is sold or shown only to consenting adults. In a case decided along with Miller, the Court held 5-4 that the state may outlaw the showing of hard-core pornographic films, even if the "adult theatre" is clearly labeled and warns viewers of what kinds of movies it shows.1798 Why people have a constitutional right to watch hard-core pornography in their homes but not in local movie theaters has never been explained. Despite the confusion over adult obscenity, the Court has forged a much greater consensus on the problem of pornography for children and child pornography. In 1968 the Court upheld a New York law that forbids selling to minors under seventeen years of age material considered obscene for them, even if not obscene for adults, as long as it is "utterly without redeeming social importance for minors."881 In 1982 the justices unanimously agreed in New York v. Ferber that there is no free speech protection for depictions of children engaged in sexual activities, even if the pictures are not obscene under Miller. Works that may be banned under Ferber need not be

patently offensive and need not appeal to the prurient interest of the average person. Nor must the work be considered as a whole; the whole work may be banned even if only a portion involves child pornography. The Ferber rule is limited to works that visually depict children— photographs and movies-—and may not be used to ban merely verbal descriptions. Even though the law would bar some depictions that the state presumably has no interest in preventing—for example, a National Geographic photograph of children in a foreign culture—the Court would not overturn the law as applied to a real child pornographer. In 1990 the Court held that the state may outlaw the mere possession of child pornography even in the privacy of one's home.,774a Since truly obscene works are not constitutionally protected, not only may the state criminally punish those who traffic in them, but it may also confiscate the works to prevent further showing or distribution. Seizure of books and films, which presents a different set of difficult problems, is discussed under the heading PRIOR RESTRAINT. See also: ADULT BAIL TIONS,

AND

BOOKSTORES

FINES;

AVOIDANCE

PORNOGRAPHY;

OF;

THEATERS;

RES

QUES-

FEMINISM

OFFENSIVE

SPEECH; PANDERING;

AND

CONSTITUTIONAL AND

AND

INDECENT

JUDICATA.

OCCUPATION, RIGHT TO

PURSUE

From

time to time the Supreme Court has declared in passing that "the right of the individual to . . . engage in any of the common occupations of life" is protected by the DUE PROCESS Clause of the FOURTEENTH AMENDMENT1525 and that qualifications for employment "must have a rational connection with the applicant's fitness or capacity" to do the job. 2103 But the Court has rarely paused to invalidate the burdens that the states often saddle on people seeking to practice even common occupations. In the SLAUGHTERHOUSE CASES in 1873 the Court dismissed out of hand the notion that a law forcing butchers in New Orleans to shut down their slaughterhouses and work for a state-chartered private monopoly was an interference with the right to work. In 1947 the Court upheld another Louisiana law that had the practical effect of permitting riverboat pilots to deny a license to anyone other than their relatives and friends. 1254 When the Court has upset restrictions on the right to work at certain jobs, the reason has

329

330

O C C U P A T I O N TAX almost always been that the state has deprived

was AFFECTED

the j o b seeker of some

constitutional

W h e n the C o u r t withdrew f r o m the business of

right, such as FREEDOM OF SPEECH or FREEDOM

second-guessing the economic decisions of legis-

OF ASSOCIATION, 2103

latures, it ignored the widespread abuse o f licens-

other

EQUAL PROTECTION OF

WITH

A PUBLIC

INTEREST.

THE LAWS, 2374 or PRIVILEGES AND IMMUNITIES

ing laws by which one occupational group makes

under A r t . I V - § 2 [ i ] . 2 2 7 9 ,

it more difficult for competitors to operate.

2400

O n rare occasions

the C o u r t has upset a protective scheme per-

In an important 1955 case, the C o u r t upheld an

mitting an organization to prevent competitors

Oklahoma law regulating the business of opti-

f r o m w o r k i n g , 8 6 9 but more often it upholds

cians, forbidding them from, among other things,

laws that impose absolute prohibitions against

duplicating or even replacing lenses in frames un-

doing certain w o r k by all but people specially

less the customer has a prescription f r o m an op-

licensed to do so, even w h e n the licensing re-

tometrist or ophthalmologist. Reciting the many

quirements are irrational, as w h e n a lawyer-

inconsistencies and even "needless, wasteful re-

d o m i n a t e d legislature passed a law barring any-

quirement[s]" of the law, the C o u r t nevertheless

one but lawyers f r o m engaging in the business

upheld it because "it is for the legislature, not the

o f debt adjuster. 7 5 9

courts, to balance the advantages and disadvan-

See also: OCCUPATIONAL LICENSING;

PUBLIC

EMPLOYMENT.

Congress has enacted var-

ious tax laws aimed at occupations that it wishes to outlaw. In 1935 the Court struck down a special federal excise payable by anyone w h o conducts a business in violation of a state law, because the excise was intended as a prohibition rather than a real tax.

But in 1937 the Court reversed course and

upheld such taxes, even though it seemed plain that the real purpose was not to raise revenue but to stamp out intrastate commerce

2195

In the 1950s

the C o u r t upheld excise tax laws aimed at gambling and the narcotics business. 1 2 0 2 , 2 0 7 0 However, in 1968 and 1971 the C o u r t ruled as a violation of the FIFTH AMENDMENT right against SELFINCRIMINATION

and industrial conditions. 2 5 5 1 In 1963 it upheld a Kansas law that prohibited anyone but lawyers

O C C U PAT IO N T A X

523

tages" of particular policies that regulate business

certain provisions of occupa-

tional tax laws requiring the gambler or seller of narcotics to register and make admissions that could lead to state p r o s e c u t i o n .

1428,2408

from engaging in the "business of debt adjusting." 7 5 9 O n l y when the state actually delegates its power to one group o f professionals to regulate its competitors does the regulatory scheme violate DUE PROCESS. 869 Attacking protectionist occupational licensing laws under the DORMANT COMMERCE CLAUSE would probably be equally unavailing. Beginning roughly around the time of Andrew Jackson's presidency, the states abandoned the field o f occupational licensing. W h e n at the turn of the century they began to impose competency requirements on certain professionals, such as doctors and related practitioners, the obvious purpose was to protect the public health and safety. A doctor licensed in one state had no legal standing to practice medicine in another state, despite the FULL FAITH AND CREDIT Clause and the obvious effect that such requirements had on INTERSTATE COM-

See also: TAXATION OF INTERSTATE COMMERCE;

MERCE, in part because what these practitioners

TAXATION-REGULATION

did appeared to constitute professional services,

DISTINCTION.

not commerce. By careless analogy, the health and states

safety rationale was extended to all sorts of fields

control entry into all fields of professional en-

far removed from the professional services of the

deavor and m a n y nonprofessional ones. O n l y

"learned professions." Even though the Supreme

journalism and the ministry are protected by the

Court has since held that professionals are subject

FIRST AMENDMENT. T h e usual method of con-

to the antitrust laws, and hence are engaged in

trol is to require practitioners to obtain a license.

interstate commerce, 8 9 6 the Court has not even

S o m e forms o f licensing require the applicant to

hinted that states have anything less than carte

demonstrate practical competence; others require

blanche to license occupations as they wish.

OCCUPATIONAL

LICENSING

The

registration and the payment of a fee. T h o u g h the C o u r t occasionally struck down a licensing law

OFFENSE, see: psychic

harm

during the period in which it upheld ECONOMIC DUE PROCESS, 1 6 7 0 even then it would often up-

OFFENSES AGAINST THE

hold such laws on the ground that the occupation

TIONS, see:

piracy

LAW

OF

NA-

OFFENSIVE A N D OFFENSES

AGAINST

THE

UNITED

STATES Article II-§2[i] empowers the president to grant pardons for all "offenses against the United States" except in cases of impeachment. This provision refers to any act made criminal by federal law, including criminal CONTEMPT,955 regardless of the penalty that may be imposed. See

also:

PARDONS,

TIONS, AND

OFFENSIVE

REPRIEVES,

COMMUTA-

AMNESTIES.

AND

INDECENT

SPEECH

T h e FIRST A M E N D M E N T , the S u p r e m e

Court

once said, protects speech that "may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea." 2307 Despite the wide berth that the government must give to speech that most of the community may think dangerous, the Court has also said that certain categories of LOWER-VALUE SPEECH m a y be regulated. T h e

state may not prohibit the expression of offensive, indecent, or even immoral ideas, but it may certainly outlaw some forms of offensive, indecent, and immoral conduct. The trick, therefore, is to distinguish between advocacy and a grunt. That many or even most people are repulsed by an idea, that an idea may profoundly offend a significant group in the community, is not a ground for CENSORSHIP. When the state of New York refused to license the movie Lady Chatterley's Lover because it advocated adultery, a proposition the censors found immoral, the Court held that the state's refusal was unconstitutional. 1237 Likewise, when the New York courts held that a movie may be banned as "sacrilegious," because it supposedly "treated [a particular religion] with contempt, mockery, scorn and ridicule," the Supreme Court reversed, holding that "the state has no legitimate interest in protecting any or all religions from views distasteful to them." 1 1 9 8 Although in 1952 the Court did uphold a GROUP LIBEL law prohibiting any publication that "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy," 170 the decision has probably been repudiated by a host of later cases, making the task of regulating off e n s i v e HATE SPEECH a d i f f i c u l t o n e .

Offensive and indecent speech often has the narrower connotation of vulgar language. During the past two decades the Court has greatly broadened the scope of constitutional protection for common vulgarities. In 1971

INDECENT

SPEECH

Justice John M. Harlan, speaking for a 6-3 majority, held that California could not constitutionally punish a young man for walking in the corridors of the Los Angeles County courthouse wearing a jacket emblazoned with the words "Fuck the Draft." 481 In essence, said Harlan, the state, acting as the guardian of public morality, wished to "excise . . . one particular scurrilous epithet from the public discourse." People who did not want to look at the jacket could avert their eyes. True, the immediate consequence of free speech "may often appear to be only verbal tumult, discord, and even offensive utterance." But the realm of public discourse is broad and protects "linguistic expression [that] . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well." In short, said Harlan, since "the state has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us," it may not pick and choose words to suppress, for there is no "ascertainable general principle" to dictate a stopping point short of ultimate purity. It is "often true that one man's vulgarity is another's lyric." In 1972 the Court summarily vacated the convictions of three people in incidents involving the use of common street vulgarities. In the first case the defendant had spoken heatedly at a school board meeting.2031 In the second the defendant shouted at policemen who were arresting her son, 1332 and in the third the defendant had ranted about certain policemen in highly unflattering terms.297 The laws under which the defendants were convicted prohibited, among other things, "indecent" and "offensive" language in public and "obscene or lascivious language or word in any public place, or in the presence of females." Although there was no majority opinion, it seems clear from these cases, and from a decision the following year overriding a university's expulsion of a graduate student for publishing a pamphlet using coarse language,1796 that vulgarity as such does n o t a m o u n t to the k i n d o f F I G H T I N G

WORDS

that may be the basis for an arrest. Notwithstanding the general principle against censoring vulgarity, the Court in a 5-4 decision upheld the power of the Federal Communications Commission to regulate indecent radio broadcasts.740 A New York radio station aired comedian George Carlins twelveminute monologue entitled "Filthy Words," in which he repeatedly used seven common "curse

331

332

OFFICE AND

OFFICERS

words and swear words" that, he said, "you definitely wouldn't say ever." Carlin was attempting to make a serious point about the use of language, but the F C C said the monologue was indecent because it was broadcast on a Wednesday afternoon when children might be listening. In upholding the FCC's authority to sanction radio stations for such programs, the majority emphasized that the case depended entirely on the "context." It refused to rule out the use of the words during a late-night broadcast. Dissenting, Justice William J. Brennan lamented the "acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain." Context was significant also in a school case in which a principal suspended a high school student for nominating a fellow student before a schoolwide assembly in a speech laced with sexually suggestive euphemisms, even though the words themselves were not coarse. The Court upheld the suspension 7-2. This time Brennan concurred, saying that school officials were simply attempting to "prevent disruption of school educational activities."188 In recent years the Court has indicated that it continues to recognize a significant constitutional distinction between obscene and merely indecent expression. In 1989 the Court unanimously rejected a provision in the Communications Act that bars indecent telephone messages. Congress had acted against "dial-aporn" telephone services, through which a caller could listen to a "sexually-oriented prerecorded telephone message." "Sexual expression which is indecent but not obscene is protected by the First Amendment," said Justice Byron R. White, who noted the difference between a public radio broadcast and a message confined to a willing caller. The desire to protect children from such messages, he said, does not justify a total ban on nonobscene communications. 2054 In 1997 a 7 - 2 majority struck down the Communications Decency Act, by which Congress had hoped to block "indecent" and "patently offensive" material from reaching children on the Internet. 1966 The Court rejected the law because it was, in effect, a complete ban on a range of speech of serious social and scientific value—for example, information a parent might send by e-mail to a college-age child about birth control and a public interest groups posting of medical information about AIDS.f

See also: ADULT BOOKSTORES CABLE

TELEVISION;

SPEECH

ON; OBSCENITY

PSYCHIC

HARM;

AND

SPEECH,

CONTENT OF; SYMBOLIC OFFICE

AND

AND

INTERNET,

OFFICERS

THEATERS;

FREEDOM

OF

PORNOGRAPHY;

REGULATION

OF

SPEECH. T h e Constitution

uses the terms "office" and "officers" fifty-four times, in most cases referring to particular offices, such as those of the president, Congress, or the judiciary. But in certain clauses the Constitution uses the terms generically and opaquely to refer to different classes of federal officials. Article I-§6[z] distinguishes without defining civil office and any office. Article I-§9[8] refers to an "office of profit or trust," Art. I-§3 [7] to an OFFICE OF H O N O R , T R U S T OR PROFIT, A r t . II-§2.[2.J to i n -

ferior officers, Art. II-§3 to "all the officers of the United States," Art. II-§4 to civil officers, and Art. VI-§3 to "all executive and judicial officers" and to "any office or public trust." Amendment i4-§2 refers to "executive and judicial officers of a state," Amendment i4-§3 distinguishes between "civil" and "military" office, and Art. II-§2[i] and Amendment 2j-§4[i, 2] address "principal officers o f the E X E C U T I V E D E P A R T M E N T S . "

The Supreme Court has rarely been called on to construe the main term or explore the differences among its variations. In general, the Court has said that the "term embraces the ideas of tenure, duration, emolument, and duties." 1012 Whether a particular person holds an office in the constitutional sense depends on the purpose in asking. For purposes of the EMOLUMENTS CLAUSE the term "office" may mean something different from the term when used in connection w i t h the A P P O I N T M E N T A N D REMOVAL POWER

of the president or the impeachment power of Congress. Officers in the constitutional sense do not exhaust the category of people who may be on the federal payroll. Employees who are not officers are those people appointed by inferior officers.863 Regardless of the nature of the office, Congress has constitutional authority under the NECESSARY A N D PROPER CLAUSE to create all

federal offices and establish the qualifications for all officers other than those of Congress itself, the president, the vice president, and the federal judiciary. Even these officers are subject to congressional control, since salaries and perquisites of office must always be established by federal law. Congress may regulate the conduct of all federal offices, except to the extent that autonomy is granted in the Constitution itself. Congress does

ONE PERSON, ONE VOTE not violate the appointment power when it saddles someone already holding office with additional duties, since in so doing Congress is not creating a new office but merely regulating an existing one. 2 1 4 4 Under the Hatch Act, Congress has barred all federal employees except a narrow group of "policy determining" officers from being actively involved in political campaigns. The Supreme Court upheld the act, rejecting the assertion that it violates the FIRST, FIFTH, NINTH, a n d T E N T H AMENDMENTS. 2 4 0 6 ' See also: APPOINTMENT CIVIL OFFICE MENT OFFICE

AND

AND REMOVAL POWER;

AND CIVIL

OF GOVERNMENT OFFICERS;

2407

the law was aimed at preventing fraud. The same principle applied to imported butter substitutes. The Court upheld a Massachusetts law banning shipment of yellow oleomargarine from other states, even if the oleomargarine was still in the original package. 1 8 7 8 But the Court did not permit states to ban outright the sale of interstate oleomargarine, no matter how it was colored, 2 1 0 1 and it struck down a New Hampshire law banning the sale of all oleomargarine not colored pink. 497 Today these cases are curiosities. See also: DORMANT COMMERCE CLAUSE;

OFFICERS;

IMPEACH-

STATE

OFFICIALS;

INFERIOR

DOCTRINE.

PATRONAGE;

MILK;

ORIGINAL

INTERPACKAGE

PUBLIC

EMPLOYMENT.

O F F I C E OF H O N O R , T R U S T OR PROFIT The phrase "office of honor, trust or profit" appears in Art. I-§3[7] as a description of the offices an impeached federal official is disqualified from holding in the future. The term has never been judicially defined but presumably refers not only to political appointment but also to any federal government employment. The phrase compares to the ones in Art. I-§9[8] and Art II-§2[i] prohibiting the holder of an "office of profit or trust" from accepting any gift, title, or office of any kind from a foreign country or from serving in the ELECTORAL COLLEGE. Again, this phrase has not been construed, but presumably the omission of the word "honor" in the latter clause would permit someone holding a purely honorary office, such as a former president, to accept a gift or title from a foreign monarch, as President Ronald Reagan did in receiving an honorary knighthood from Queen Elizabeth in 1989. O F F I C E OF T R U S T OR P R O F I T , see: office of honor, t r u s t or profit O F F I C E H O L D I N G , see: office a n d cers; term limitation

COMMERCE;

offi-

O L E O M A R G A R I N E At the turn of the century, the states had a difficult time understanding the purpose of nonfat butter and enacted many laws against various forms of margarine, or oleomargarine as it was then called. Despite many decisions under the doctrine of ECONOMIC DUE PROCESS voiding state laws regulating business, the Court sustained an Ohio ban on oleomargarine colored yellow 390 on the ground that

O L Y M P I C S , U S E O F N A M E The Supreme Court upheld a federal law giving the U.S. Olympic Committee the exclusive right to use the word "Olympics" and related symbols, sustaining an INJUNCTION against the G a y Olympic Games from using the word in their name or advertising. 2068 O N E MAN, O N E V O T E , see: o n e p e r s o n , one vote O N E P E R S O N , O N E V O T E "The conception of political equality from the DECLARATION OF INDEPENDENCE to Lincoln's Gettysburg Address, to the FIFTEENTH, SEVENTEENTH, a n d NINE-

TEENTH AMENDMENTS can mean only one thing—one person, one vote." 927 So said the Court in 1963, overturning Georgia's COUNTY UNIT SYSTEM. The following year the Court adopted one person, one vote as the test for determining the constitutionality of legislative apportionment. 1 9 7 1 Since then the Supreme Court and lower federal courts have remade political geography by applying the test in hundreds of cases from around the country. T h e courts have been toughest on disparities in federal legislative districts, invalidating in one case a reapportionment plan in which the largest district exceeded the mathematically precisely equal district by only 2.43 percent; the Court accepted a plan requiring a difference of only 0.086 percent between the largest district and the ideal district. 2521 In districting for state legislatures the courts have been a bit more lenient, permitting disparities to allow legislative districts to conform to some existing political boundaries, such as counties. 1413 The reapportionment cases continue, as the Court demonstrated in 1989 when it unanimously struck down the time-honored

333

334

O N E STEP AT A TIME New York City Board of Estimate in which the population range was 78 percent between the most and least populous boroughs. 2 1 9 See also: APPORTIONMENT OF POLITICAL DISTRICTS.

O N E S T E P AT A T I M E challenged

under

the

Laws are sometimes

EQUAL

PROTECTION

CLAUSE for criminalizing certain activities while permitting closely related activities to continue. For example, an Oklahoma law forbade opticians from selling eyeglasses, including a plain frame without lenses, unless the customer had a prescription from an ophthalmologist or optometrist. The law made an exception for sellers of ready-to-wear glasses, such as sunglasses. Thus, a department store could sell nonprescription sunglasses but opticians could not. In 1955, speaking for a unanimous Court, Justice William O. Douglas upheld the discrimination, saying that the legislature may "take one step at a time" in reforming evils in a particular field.2551,1486 O P E N F I E L D S D O C T R I N E , see: s e a r c h and seizure: open fields doctrine O P I N I O N O F T H E C O U R T A courts opinion is a statement of the reasons for the decision. Without judicial opinions our legal system would be wholly different, for cases would have no value as PRECEDENT and there would be no body of constitutional or any other type of law. Opinion writing is an ancient tradition in the COMMON LAW system, but it is not explicitly commanded by the Constitution or by statute. On occasion the Supreme Court issues PER CURIAM decisions without opinion, affirming or reversing the decision of the lower court or dismissing the case. Until John Marshall was appointed Chief Justice, it was a common practice for each justice of the Supreme Court to write an opinion in each case. Marshall amplified the institutional voice of the Court by writing, or assigning to another justice the task of writing, a single majority opinion of the Court. Justices are not bound to keep silent if they disagree with the opinion of the Court. They may agree with the outcome but disagree with the reasons and therefore write a CONCURRING OPINION. They may disagree with the outcome and write a DISSENTING OPINION. Or they may disagree and merely record their vote as dissenting. When there is no single majority opinion, but enough justices agree on an out-

come to resolve the case, the largest bloc of justices to agree on a common reason file a PLURALITY OPINION.

O P I N I O N OF T H E PRINCIPAL OFFICER, see: e x e c u t i v e b r a n c h ; office a n d officers O P I N I O N - F A C T D I S T I N C T I O N In 1974 in an important libel case, Justice Lewis F. Powell said, "Under the FIRST AMENDMENT there is no such thing as a false idea." 866 He meant that no one may be prosecuted or sued for expression of political, social, scientific, artistic, religious, moral, or economic ideas. The expression of mere opinion is protected by the First Amendment. However, false factual statements are not protected simply by being couched in the language of opinion. A daily newspaper sports columnist said that a high school wrestling coach had lied under oath during an investigation into a disturbance at the school gym. Defending against the coach's libel suit, the newspaper's parent company said that the columnist had merely been stating his opinion. The Court rejected the contention that a libel court must always first inquire into whether a statement was opinion or fact and dismiss any suit involving opinions. When a speaker says "[I]n my opinion, Mayor Jones is a liar," Chief Justice William H. Rehnquist said, "he implies a knowledge of facts which lead to the conclusion that Jones told an untruth." Rehnquist distinguished this "false" kind of opinion from a true form of opinion that would not be actionable: "In my opinion Mayor Jones shows abysmal ignorance by accepting the teaching of Marx and Lenin."' 5 3 8 See also: LIBEL AND SLANDER. O R A L A R G U M E N T Oral argument is the colloquy between judges and lawyers in CASES OR CONTROVERSIES. Although lawyers argue motions (or requests) before trial judges, oral argument is usually done before APPELLATE COURTS. It is the lawyers only opportunity to discuss the case directly with the judges who will decide it. Since argument occurs after the judges have had an opportunity to read the BRIEF, the lawyer is usually peppered with questions and has little time to make a direct, uninterrupted presentation. Skilled advocates welcome questions, because through them the lawyers can learn how and why the issues are troubling the judges and

ORIGINAL INTENT can explain how the positions they are advocating will resolve the judges' doubts. In the early years, oral argument in the Supreme Court could go on for days and was a high form of entertainment for the fashionable, upper-class audience who would attend carefully to the rhetorical flourishes of the nation's leading advocates. Today, because of its crowded docket, the Court allots each side only thirty minutes. The Court hears oral argument in four cases on certain Mondays, Tuesdays, and Wednesdays during fourteen weeks between October and April. The justices hold a conference within a day or two after hearing argument to take a preliminary vote, which will often decide the case. See also: CONFERENCE,

ORDER,

JUDICIAL.

RESOLUTION,

OR

VOTE

The

Constitution decrees that a bill can become law only when both houses of Congress have passed it and it has been presented to the president for signature. But what is a bill? Suppose Congress labels a piece of legislation by some other name, passes it, and announces that it is law without PRESENTMENT. Anticipating this dodge, Art. I-§7[3] says that, in addition to bills, "every order, resolution, or vote" must also be presented to the president before it can take effect, just as in the case of a bill. But in a bit of ambiguous wording, the clause says that the president is to receive all orders, resolutions, and votes "to which the concurrence of the Senate and House of Representatives may be necessary," except a vote on adjournment. Taken literally, the language would mean that whenever a member of Congress moves to amend a pending bill, the president must have the opportunity to approve it before it could take effect. To give this clause its literal meaning would quickly paralyze the government. The Court has read the language to mean that the president must be presented only with legislative "output" intended to become law, however it was originally labeled. In 1798 the Court held that congressional voting on resolutions proposing amendments to the Constitution need not be presented to the president, 1074 because under Art. V, approval of constitutional amendments is for the states, not the president. However, the Court has held that resolutions authorizing congressional vetoes of administrative action are subject to this provision; a unilateral LEGISLATIVE V E T O is u n c o n s t i t u t i o n a l . 1 1 2 5

ORDERED

LIBERTY

In 1937 the C o u r t

re-

jected the argument for total incorporation—that

e v e r y r i g h t e n u m e r a t e d i n t h e BILL OF RIGHTS as

a prohibition against conduct by the federal government applies equally to conduct by the states. But, said the Court, some essential rights are equally applicable. Justice Benjamin N. Cardozo coined the paradoxical phrase "ordered liberty" to describe the principle of balance by which the Supreme Court could decide whether or not to require the states to be bound by these rights. He wrote that only if a right is "of the very essence of a scheme of ordered liberty" does the DUE

PROCESS

Clause

of

the

FOURTEENTH

AMENDMENT require the states to respect it. Among such rights, he said, were "freedom of thought and speech" because they are "the matrix, the indispensable condition, of nearly every other form of freedom." But some rights, he said for the Court, were not of the essence of ordered liberty—for example, the right to be free of DOUBLE JEOPARDY.1789 Although Justice Hugo L. Black agreed with Cardozo's formulation in 1937, a decade later he began a bitter war against the phrase and the method of analysis that Cardozo proposed. The Court overruled Cardozo's conclusion about double jeopardy in 1969, 1 8 3 but it has never wavered from his conclusion that the Fourteenth Amendment does not require total incorporation, and the Court continues to refer to "ordered liberty." See

also:

INCORPORATION

DOCTRINE;

NAT-

URAL LAW.

ORIGINAL

INTENT

I n 1 9 8 5 , in a s p e e c h to

the American Bar Association, Attorney General Edwin Meese III called for "a jurisprudence of original intention." It was time, he said, for the justices of the Supreme Court to return to "the [Framers'J original meaning of constitutional provisions," which are "the only reliable guide for judgment."* Meese's speech raised a storm that has not yet abated, rousing historians, judges, constitutional scholars, and others to ponder whether original intent is a meaningful concept and how it might be ascertained. Deciding constitutional cases according to the Framers' intent has a surface appeal, for if it is possible it saves us from unelected judges wandering around looking for values to impose on us. That the Court has almost never in its history founded any large part of its decisions on original intent should, however, give pause to those in search for it. Two problems, one conceptual and one practical, immediately stand in the way: Did the

335

336

ORIGINAL

JURISDICTION

Framers themselves intend that the judges be

clusions of constitutional historians w h e n the

bound by their intent? T h e Constitution does not

conclusions contradict judicial prejudices.*

say so. If the Framers did not intend it, then a jurisprudence

original

intention

is

not

Still greater difficulties might ensue if we

a

could discover the aims o f the Original Intenders.

doctrine at all but a political

T h a t is because the Constitution speaks in short

predilection and, at that, only one among many.

phrases, and the intent of its makers may have

constitutional

of

Meese himself offered no proof that the Framers

had little to do with the phrase actually chosen.

believed in original intent, and it is safe to say

Take

that the historians disagree.* Subsidiary to this

AMENDMENT says that in all federal COMMON

main conceptual problem is the question

of

LAW suits, the parties shall have the right to a jury

whose intent—the intent of the delegates to the

"where the value in controversy shall exceed

this

simple

example.

The

SEVENTH

CONSTITUTIONAL CONVENTION OF 1787 or,

twenty dollars." O f course, the dollar amount is

since the Constitution achieves its legal status

so clear that judges would say there is no reason

from its ratification by the "sovereign people,"

to look beneath the words for the intent. But the

the intent o f the Ratifiers? T h e evidence seems

amount is also so inherently arbitrary that we

striking that James Madison, the undisputed in-

might well wonder what the intent could possibly

tellectual father o f the Constitution, believed that

have been. Suppose we could conclude that the

if later interpreters were to look at someone's in-

Original Intenders meant by twenty dollars a

tent, it was not to his or his colleagues' in

rather high threshold, rather than the ludicrously

Philadelphia but to the intent o f those w h o rati-

low threshold it appears to be today. Suppose

fied the document in the thirteen state conven-

twenty dollars in 1787 was the equivalent o f one

tions. O n e reason Madison decided to leave his

thousand or even five thousand dollars in our

notes on the Convention unpublished until after

money. W h a t , then, does "intent" tell us? T h a t

his death was to avoid judicial attempts to plumb

the words "twenty dollars" do not really mean

the Framers' minds.*

twenty dollars? T h a t

the Original

Intenders

T h e practical problem is how to go about un-

meant to make it difficult, not easy, to get a jury?

covering the intent of people w h o lived in an age

A jurisprudence o f original intentions might well

separated from ours by the gulf o f two centuries.

tell

T h e most detailed records we have, Madison's

Constitution, a result with which no Supreme

notes, "are far from a verbatim record o f what was

C o u r t justice today would agree.

us

to

ignore

the

plain

words

of

the

said in the Convention."* The Federalist Papers

So despite the continued agitations over orig-

were essentially advocacy pieces by only three of

inal intent, it seems likely that the C o u r t will

the delegates, whose job was to persuade the peo-

continue, as it has through the past two centuries,

ple to ratify. Moreover, uncovering the "intent" of

to decide cases with only an occasional nod to the

any one person is a difficult job for a highly

Original Intenders when convenient, but other-

skilled historian. Trying to uncover what the hun-

wise to reach results that accord with its philo-

dreds o f delegates to the ratifying conventions

sophical predilections and the reigning culture o f

thought each constitutional clause meant is im-

the moment.

possible, both because good records no longer exist, if they ever did, and for the more important reason that on many of the major controversies o f our age, we can be reasonably sure that the "Original Intenders" had no intent at all. T h e y contemplated neither a modern technology nor a

See also: CONSTITUTION, TIONAL MADISON'S NATURAL

LIVING;

INTERPRETATION; NOTES LAW;

ON

NINTH

CONSTITU-

IN TERP RE TIVISM; THE

CONSTITUTION;

AMENDMENT;

STRICT

CONSTRUCTION.

modern bureaucracy, with all their opportunities

ORIGINAL

for good and ill.

two types o f JURISDICTION, original and appel-

Furthermore, judges are not historians, and

JURISDICTION

Courts

have

late. Original jurisdiction is the power o f a court

the "law office histories" which they often con-

to try a case, to hear testimony and review evi-

struct from snippets of diaries and essays are far

dence offered to uncover the facts o f the matter.

from the subtle reconstructions that would yield

In the federal system, the trial courts are the

true history. In short, judges simply are not

United States DISTRICT COURTS. Article III-

equipped to act also as historians, and the record

§2[i] limits federal jurisdiction to certain kinds of

is fairly clear that they do not accept the con-

cases, and under Art. III-§i Congress may deter-

OTHER PUBLIC MINISTERS mine which of these types o f cases may be heard

Marshall announced the original package doc-

by trial courts. Article III-§2.[2.] confers original

trine, which he thought w o u l d resolve these dif-

jurisdiction on the S u p r e m e C o u r t in a narrow

ficulties.

range o f cases, those affecting foreign ambas-

state taxation, he held, as long as they remain

Imported goods remain exempt f r o m

sadors and diplomats and those in w h i c h a state

unsold and kept in a warehouse in the original

is a party, although this clause does not bar

package in which they were imported. 2 9 4

Congress f r o m vesting CONCURRENT JURISDIC-

when the imported goods are mixed with "the

But

TION in the lower federal courts to hear suits in-

mass of property in the country," they lose their

volving d i p l o m a t s . 2 3 6 , 6 7 Since ambassadors have

"distinctive character as an import." T h e original

DIPLOMATIC IMMUNITY, they m a y not be sued

package doctrine remained good law for nearly

at all in their official capacities, nor f o r political

150 years. Its principal utility to importers lay in

and historical reasons do they file suits as plain-

their being able to avoid general property taxes

tiffs. Because the ELEVENTH AMENDMENT bars

laid on the assessed value of a company's prop-

suits in federal court against states when brought

erty on a fixed day of each year. As long as the

by individuals, the only remaining classes of cases

imported goods remained in the original pack-

that can be tried in the Supreme C o u r t are those in

ages, their value could not be t a x e d . 1 3 8 3

which one state is sued by another state or by the

For a time the C o u r t also used the original

United States. T h e C o u r t occasionally hears such

package doctrine to bar one state from regulating

cases, although it has often said that "our original

goods imported from a sister state. For example,

jurisdiction should be invoked sparingly." 2 4 2 5

notwithstanding a PROHIBITION

W h e n a case is to be tried in the Supreme

law, a state

could not prohibit a company from importing

C o u r t , the justices do not sit as a panel o f trial

from another state and then selling liquor in its

judges with a jury. Instead, they appoint a SPE-

original p a c k a g e . 1 3 2 1 T h e C o u r t overruled this as-

CIAL MASTER to hear the evidence and write a re-

pect of the original package doctrine in 1 9 3 5 1 3 3

port. T h e y then consider objections to the re-

and in 1976 finally dispatched the rest of it, hold-

port on questions o f law, just as they do in

ing that states may tax goods imported from

hearing cases under their APPELLATE JURISDIC-

abroad, even though the goods remain in their

TION. U n d e r Art. III-§2.[z] Congress may di-

original packages, as long as the tax is non-

minish the types of appellate but not original

discriminatory.

1530

cases the S u p r e m e C o u r t may hear. Under MARBURY v. MADISON Congress may not expand the

OTHER

Court's

may,

the delegates to the CONSTITUTIONAL CONVEN-

however, grant concurrent jurisdiction to the

TION OF 1 7 8 7 papered over their deep disagree-

original jurisdiction.

Congress

PERSONS

O n e of the ways by which

federal district courts to hear cases that fall

ment over the issue of SLAVERY was to sidestep the

within the Supreme C o u r t s original jurisdic-

w o r d in the Constitution itself. In Art. I-§2[3]

t i o n . 2 3 6 T h e C o u r t has declined to try m a n y re-

the euphemism employed was "other persons,"

cent environmental cases involving disputes be-

stating w h o counted, and by h o w much, in ap-

tween cities and states because the technical

portioning DIRECT TAXES and representation in

facts and issues could be sorted out more expe-

Congress. T h e clause was superseded by Sect. 2 of

ditiously in the district c o u r t s . 1 1 1 9 State courts

the FOURTEENTH AMENDMENT.

m a y also have concurrent original jurisdiction over cases that could be heard in the Supreme

See abo: THREE-FIFTHS

RULE.

Court.1748 See

also:

COMMERCE

CLAUSE;

ORIGINAL PACKAGE DOCTRINE

T h e IM-

HABEAS

DORMANT CORPUS.

OTHER

PUBLIC

MINISTERS

The

term

"other public ministers" is coupled with ambassadors in Arts. II and III and by historical con-

PORT-EXPORT CLAUSES bar states from taxing

vention, though not by any decision o f

the

Supreme Court. T h e term has been assumed to

goods imported from abroad. If the clauses meant

mean "all officers having diplomatic functions,

literally what they say, the states would confront in-

whatever their title or designation."*

tractable difficulties in determining to what degree commodities

made from imported

could be taxed. In 1827 C h i e f J u s t i c e

goods John

See also: AMBASSADORS, POWER TO APPOINT AND

RECEIVE.

337

338

OVERBREADTH OVERBREADTH

DOCTRINE Suppose that a

example, the Court upheld a Los Angeles ordi-

state law prohibits "all picketing" and that the po-

DOCTRINE

nance prohibiting anyone from posting a sign on

lice have arrested a group o f antiwar protesters for

public property. 465 T h e Court said that the chal-

beating bystanders over the head with placards.

lengers, a political group that wished to affix cam-

M a y the protesters challenge their arrests and

paign posters on utility poles, could not show how

convictions under this law? It is clear that their

the law prohibited any other expression entitled to

conduct could be punished and that they would

FIRST AMENDMENT protection. Nevertheless, the

have no basis to challenge convictions under a

new "substantial overbreadth doctrine" continues

more narrowly drawn law that outlawed "physical

to have vitality. O n this ground the C o u r t struck

assault during any demonstration." But because

down a law prohibiting films with nudity from

the law under which they were charged is over-

being shown in public drive-in theaters, 715 a law

broad—that

barring charities from soliciting contributions un-

is, because it condemns

activities

protected by the Constitution—the C o u r t would

less they devoted three-quarters of their receipts to

strike it down because of its CHILLING EFFECT.

charitable purposes, 2087 a law permitting police to

T h e overbreadth doctrine says that "the very

arrest citizens for annoying them, 1 0 8 8 a municipal

existence of some broadly written statutes may

ordinance prohibiting anyone from engaging in all

have such a deterrent effect on free expression that

"First Amendment activities" in the Los Angeles

they should be subject to challenge even by a party whose own conduct may be unprotected."

465

It

has been invoked to strike down a range of laws, including prohibitions o f peaceful picketing 2 3 4 1 and promotional advertising by an electric util-

International Airport terminal, 209 and a ban on indecent communications on the Internet. 1 9 6 6 See

also:

HATE

PORNOGRAPHY;

CRIMES;

OBSCENITY

PRIOR RESTRAINT;

AND

STANDING.

ity; 4 1 9 a LOYALTY OATH requiring public employees to swear that they were not members of certain

O V E R I N C L U S I V I T Y , see:

political organizations; 1 2 3 1 denials o f passports 80

under- and

classifications,

overinclusive

or public jobs 2 0 0 1 to members of organizations listed as subversive by the attorney general; and

OVERRULING

bans on the use of "abusive language," 9 0 6 anony-

clines to follow the reasons that led it to decide

mous handbilling, 2 6 3 5 and live entertainment. 2 0 8 5

an earlier case in a particular way, it is said to

W h e n the Supreme C o u r t de-

Ordinarily, an overbroad law will be struck down

overrule its prior decision. B y doing so, it is an-

"on its face," meaning that it may not be used

nouncing that it is deciding a similar case in a

again. If the legislature wishes to punish the bad

different way. According to one count, the C o u r t

conduct, it must enact a new, narrower law.

has overruled more than 275 o f its decisions since

Rejection on the ground of overbreadth contrasts

1790.* T h e power to overrule is an inherent part

with the more usual practice of reversing a con-

o f the JUDICIAL

viction, because the law was applied unconstitu-

STATES. In overruling a precedent, the C o u r t

tionally in the particular case, without being

does not actually disturb the result in the partic-

POWER

OF

THE

UNITED

struck down altogether. But an overbroad statute

ular case overruled. It simply announces that it

need not necessarily be wholly invalidated. In a

wrongly decided the case and henceforth will not

1985 case, f o r example,

follow the disapproved reasoning.

the C o u r t

found a

Overruling

Washington State obscenity law overbroad but re-

should be distinguished from reversing.

fused to invalidate it because the activity of the

the C o u r t reverses the decision of a lower court,

person challenging it was constitutionally pro-

it changes the result in that case.

When

tected. Therefore, said the C o u r t , it would simply reverse the conviction. In effect, the C o u r t s deci-

See abo: STARE

DECISIS.

sion carved out of the law the unconstitutional feature, leaving the constitutional parts intact. 2 8 2 In 1973 the Court announced what appeared to

OVERT

ACTS

Under the TREASON

clause,

Art. III-§3[i], no one may be convicted of treason

be a major limitation of the overbreadth doctrine.

unless at least two witnesses testify "to the same

Laws

overt act," defined as going to war against the

that

sweep

more

broadly

than

the

Constitution allows will be upheld unless they are

United States or giving "aid and comfort" to en-

"substantially" overbroad, in cases in which the per-

emies of the country. T h i s provision ensures that

son may constitutionally be convicted for, or barred from undertaking, his particular conduct.

281

For

people cannot be convicted o f treason merely f o r speaking out in opposition to national policy.

P A L M E R R A I D S For about six months beginning in November 1919, U.S. Attorney General A. Mitchell Palmer, prompted by the postWorld War I "Red Scare," ordered federal law enforcement officials to raid the homes and offices of thousands of presumed radicals, most of them ALIENS whom Palmer wanted to deport. The searches were fundamentally lawless, conducted without arrest or SEARCH WARRANTS and without PROBABLE CAUSE to suspect the detainees of having committed any crime. A raid on January 2, 1920, in thirty-three cities netted five thousand arrested people, two thousand of whom were subsequently released without charges. Federal officials committed many other flagrant violations of the Constitution, even as it was then construed: defendants were denied the right to consult with their own lawyers, and convictions were obtained without witnesses. One indirect constitutional consequence of these raids was a decision in early 1920 that federal prosecutors may not make copies of unlawfully seized books and papers and use the copies to obtain an INDICTMENT

Ralph Ginzburg, publisher of Eros magazine and other publications, in large part because he "pandered" to the "erotic interests" of customers by giving his magazine and books "salacious appeal," including mailing them from Middlesex, New Jersey; Blue Balls, Montana; and Intercourse, Pennsylvania. The Court's theory was that in a close case, evidence that sellers of sexually explicit materials intended to engage the libidinous instincts of their buyers may be used to persuade a jury that the works really are obscene. Justice Hugo L. Black dissented, stating that the result of the newly concocted pandering rule is that a jury may find guilty a person who mails nonobscene material because it "may not find him or his business agreeable." T h e concept of pandering was mentioned in only five subsequent obscenity cases, the last in 1978. 1 8 6 7 See also: OBSCENITY

AND

PORNOGRAPHY.

PAPER

MONEY, see: c u r r e n c y ,

power

over

federal

from a GRAND J U R Y . 2 1 5 3 See also: ARREST OF

THE

AND ARREST

POISONOUS

TREE;

WARRANT;

FRUIT

SEARCH

AND

SEIZURE.

PAMPHLETEERING, RIGHT TO, see: permit system; prior restraint; solicitation P A N D E R I N G In 1966, in Ginzburg v. United States, an uncommonly silly decision that ran counter to the permissive trend of the day, the Court upheld a pornography conviction of

P A R A D E S A state may not order a private group organizing a public parade "to include among the marchers a group imparting a message the organizers do not wish to convey." 1 1 0 7 T h e case involved the St. Patrick's Day-Evacuation Day Parade in Boston, observed annually since at least 1776. Since 1947 the city has granted a permit to a private organization, the South Boston Allied War Veterans Council, to stage the parade, which has attracted as many as twenty thousand marchers and one million observers. In 1992 a number of gay, lesbian, and bisexual descendants of Irish immigrants

339

340

PARDONS, REPRIEVES, COMMUTATIONS, AND AMNESTIES formed GLIB, "to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals" by marching in the parade. Under a court order, a G L I B contingent marched uneventfully in the 1992 parade. In 1993, again refused admission to the parade by the council, G L I B won the right to participate under the state's PUBLIC ACCOMMODATIONS law, under which it is illegal to deny admission to any person on the basis of sexual orientation to "any place . . . which is open to and accepts . . . the patronage of the general public and . . . whether or not it be . . . a boardwalk or other public highway." The Massachusetts Supreme Judicial Court upheld the trial court's determination that the parade is "not an exercise of [the council's] constitutionally protected right of expressive association" but is instead "an open recreational event." In reversing that conclusion, Justice David H. Souter concluded that "parades are . . . a form of expression, not just motion" and "the protected expression that inheres in a parade is not limited to its banners and songs" but to messages that can be carried by the very fact of including or excluding groups that stand for various propositions. Moreover, the public accommodations law was "applied in a peculiar way." The council did not "exclude homosexuals as such"; they could have marched "as a member of any group that the council has approved to march." The issue was not, in other words, whether it would be permissible to exclude all homosexual individuals, but whether GLIB must be admitted "as its own parade unit carrying its own banner." If so, the effect of ordering its admission under the public accommodations law would be to declare "the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals [under the public accommodations law] with a message would have the right to participate in [the council's] speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the FIRST AMENDMENT, that a speaker has the autonomy to choose the content of his own message." See also: DEMONSTRATORS AND DEMONSTRATIONS;

FREEDOM

OF

SPEECH.

PARDONS, TIONS,

AND

REPRIEVES, AMNESTIES

COMMUTAUnder

Art.

II-§[i] the president has the power to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment." When the pardon power first came before the Supreme Court, Chief Justice Marshall followed English doctrine, declaring that a pardon is an "act of grace," a private though official act of the president. The person to whom a pardon is offered must agree to accept it for it to take effect. 2563 The Court seemed to affirm this view in 1915, when a witness before a federal GRAND JURY refused to testify on the ground that so doing might tend to incriminate him. President Woodrow Wilson offered the witness a full pardon, but the witness still declined to testify, asserting that accepting the pardon would imply guilt. The Supreme Court unanimously agreed that the witness could not be forced to accept the pardon or testify.320 The pardon power extends to all federal offenses, including criminal, but not civil, CONTEMPT. 955 Neither the president nor Congress may pardon the commission of state crimes. The effect of a pardon is to annul all punishments—jail sentences, fines, forfeitures, and other penalties, including disqualifications from holding office 842 —and to restore all civil rights, 250 except that a fine already paid into the U.S. Treasury may not be returned unless Congress separately appropriates the funds to do so. 1 2 4 5 A pardon does not necessarily wipe out all record of the offense. If the pardon was issued before conviction, then "in the eye of the law the offender is as innocent as if he had never committed the offense." 842 But if the pardon was bestowed after conviction, a court may take into account the pardoned felon's record when sentencing for a later conviction. 397 The president may commute a defendant's sentence, substituting a lighter for a heavier penalty, without requiring the defendant's consent. 193 The president's power to commute is constitutionally based, and Congress may not limit it by general legislation. The president may impose an independent condition in commuting the new sentence, as long as the condition does not itself violate the Constitution. 2091 For example, the Court approved the president's commutation of a military death sentence to life imprisonment without possibility of parole, even though the Uniform Code of Military

PARKS, R I G H T TO SPEAK IN Justice provides that that possibility may never be foreclosed. Only the president may pardon a particular person; 2 4 1 2 but both the president, through proclamations, 1241 and Congress, by law, may issue general amnesties to entire classes of people. 301 A congressional amnesty may provide for all fines to be excused. 2327 Both pardons and amnesties may be bestowed any time after the offense is committed, even before indictments are issued, 842 and possibly without identification or even full knowledge of what the crimes were. President Gerald R. Ford in his notorious pardon of his predecessor asserted the authority to exonerate Richard M. Nixon for all crimes that "may have been committed." But no pardon may be issued before a crime is committed because such authority would confer the power to ignore law altogether. Blanket amnesties have a long lineage in American history. George Washington issued the first in 1795, followed by others in 1800 (John Adams), 1801 (Thomas Jefferson), 1815 (James Madison), 1863 (Abraham Lincoln), 1865, 1867, and 1868 (Andrew Johnson), and 1902 (Theodore Roosevelt). In 1974 President Ford proclaimed a conditional amnesty for Vietnam War deserters and draft evaders, requiring them to perform alternative public service in return for the pardon. See also: IMMUNITY

FROM PROSECUTION;

FICE AND OFFICERS;

PARENTAL

RIGHTS

TEST

have a qualified right to have mentally disturbed children committed to institutions, 1797 to withdraw children from school after a certain age if the parents adhere to an established and religious way of life, 2569 and to be provided with notice if a minor daughter plans to have an ABORTION.965' I 8 7 3 ' l070 - 1 7 4 2 But the state retains a COMPELLING INTEREST in the w e l f a r e

of children and may terminate the rights of natural parents if the state demonstrates, by "clear and convincing evidence," that they are mistreating their child or are unfit because they have exhibited "permanent neglect." 2077 Despite the seriousness of a termination proceeding, the state need not in every instance provide indigent parents with a lawyer to represent them. 1 2 9 1 But it may not deny an impoverished parent the right to appeal a judicial order forever terminating parental rights to her children by requiring her to pay court fees she cannot afford. 1 4 0 2 Although the Court has not had occasion to rule directly on the issue, the state presumably could not constitutionally remove a child from the natural parents in the absence of abuse simply because it would be "in the best interests of the child" to be placed elsewhere. 2180 See also: ADOPTION DREN; AND

OATH.

AND

RESPONSI-

The power of parents over their children's upbringing and welfare is broad but not absolute. For example, in certain states parents

SURGERY,

PATERNITY;

AND CUSTODY

TESTS;

MACY; JUVENILES,

OF-

B I L I T I E S In a pair of cases in the mid-i9ios, the Court first announced a SUBSTANTIVE DUE PROCESS right for parents to raise a family in accordance with their values. The Court struck down a Nebraska law forbidding children from being taught foreign languages 1525 and an Oregon law requiring children to attend public school and prohibiting parochial and private schools. 1864 At least in the absence of some emergency, the state has no power to interfere "with the LIBERTY of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

BLOOD

RIGHTS FORCED;

QUALIFIED

OF

FAMILIES; OF;

CHIL-

ILLEGITIMEDICATION

PARENTS,

FOSTER;

RIGHTS.

P A R E N T S , FOSTER Foster parents have a lesser right than natural parents to retain custody of their children. In 1977 the Supreme Court unanimously upheld a state procedure providing that for children who have been in foster care for less than eighteen months, the state need give only ten days' advance notice that it intends to remove the children. As long as the foster parents may confer with the social services agency before the removal, the child may be taken from their home, provided that the agency thereafter holds a full-scale adversary HEARING and that judicial review is available. 2180 The rights of natural parents may not be terminated without a preremoval judicial hearing. 2077 See also: PARENTAL RIGHTS AND

RESPONSIBIL-

ITIES.

P A R K S , R I G H T TO lic

forum

SPEAK

IN, see:

pub-

341

342

PAROLE P A R O L E There is no general constitutional right to parole—that is, a release from imprisonment before the full sentence has been served out—even if a state has established a general parole system. 938 Many states have a system of indeterminate sentencing under which judges sentence defendants to a range of time to be served, leaving it up to administrative parole boards to determine when, if at all, the prisoners may be released. Because this system in effect entrusts a considerable power over sentences to administrators, the Court has held that under some circumstances DUE PROCESS entitles prisoners to some kind of a HEARING on whether they are entitled to be paroled. When the law requires a parole board to order a prisoner to be released unless he has violated disciplinary rules, then the prisoner has a "protectable expectation of parole" entitling him at least to a meeting with the parole board and to be informed of the reasons for denial of parole. 938 Likewise, a prisoner may not be denied "good-time credit," which would permit him to be released early, unless the prison authorities give him advance notice of the charges, the opportunity to call witnesses and present evidence (except when prison discipline will be undermined), and a written statement of the facts and reasons for the decision to reduce good-time credit. 2579 However, when an individual has already been paroled and is living in society, the parole board may not revoke the parole without both a preliminary hearing and a formal adversary hearing, including appointed counsel in some instances. 1600 This preliminary hearing requirement holds regardless of the name the state attaches to a program for releasing prisoners before their sentence has been completed; Oklahoma could not, by releasing some prisoners before their time for parole was due under a "preparole conditional supervision program," simply reincarcerate without holding a hearing. 2 6 1 8 When parole is to be revoked because the defendant has been convicted of a second crime, the revocation is usually automatic and no lawyer need be appointed to represent the defendant at the revocation proceeding. On the other hand, when the facts that would legitimate revocation are sharply disputed, a lawyer is necessary. 831 ! See also: COUNSEL, FACTO CLAUSES;

ASSISTANCE

OF; EX

POST

PROBATION.

P A R T Y A party to a lawsuit is a person, corporation, business, association, political entity, or other body whose legal claims are at stake in the case. T h e party bringing a lawsuit is the plaint i f f ; the party against whom the suit is filed is the defendant. Depending on the circumstances, there can be many plaintiffs and defendants in any case. See also: JURISDICTION; SERVICE

OF

IN

WARRANTS,

see:

PARTIES;

P A S S P O R T S , R I G H T T O There is no absolute constitutional right to a passport, but on two occasions the Supreme Court has ruled against the U.S. government when it refused to issue passports to individual citizens. In the first case, in 1958, the Passport Office denied a passport because the applicant failed to submit an affidavit saying that he had never been a member of the Communist Party. T h e Court ordered the office to issue a passport. To avoid dealing with the constitutional issue, the Court read the passport law narrowly, holding that Congress had not delegated the secretary of state authority to require such affidavits. But along the way the 5 - 4 majority declared a fundamental right to travel as part of the LIBERTY

protected

by

the

FIFTH

AMEND-

MENT.1221

In 1964 the Court struck down on constitutional grounds a provision in the Subversive Activities Control Act of 1950 that automatically denied passports to those with MEMBERS H I P IN P O L I T I C A L O R G A N I Z A T I O N S l i s t e d as

subversive by the attorney general. 80 However, the next year the Court upheld a State Department rule drastically restricting travel to Cuba on an American passport. 2 6 2 9 A n d when the State Department revoked the passport of Philip Agee, a former C I A agent, because he was noisily revealing the names of active American intelligence agents in cities throughout Europe, the court upheld another regulation permitting the secretary of state to revoke a passport if the activities of someone traveling abroad are causing serious damage to national security or foreign policy, distinguishing a broad freedom to travel within the United States from a more restricted right to travel abroad. 9 7 2 See also: ATTORNEY

PARTICULARITY search warrant

POLITICAL

PROCESS.

TUTIONAL

GENERAL'S

QUESTIONS,

TRAVEL, RIGHT

TO.

LIST;

AVOIDANCE

CONSTIOF;

PATRONAGE PATENT

CLAUSE

Article I-§8[8] empowers

solely for reasons of patronage. T h e case involved

Congress to establish a national patent system to

the dismissals of holdover Republican employees

give inventors an exclusive right for a limited

of an Illinois county s h e r i f f s office by a newly

time to exploit their inventions. Under the 1952

elected Democratic sheriff. 7 0 5 Only

Patent Act, inventors may obtain a seventeen-

making" officials may be dismissed because of

year m o n o p o l y

their party affiliation, a 5 - 4 majority agreed. In

over their inventions.

The

"policy-

Constitution provides only one standard for the

1980, in rejecting the attempt of a Democratic

issuance of patents—that they "promote the

county public defender to fire Republican assis-

progress of science and the useful arts." Most

tant public defenders, a 6 - 3 majority said that

patent questions arise under the federal act, but

whether a public employee may be fired for pa-

the Supreme Court has found that two consti-

tronage reasons depends on "whether the hiring

tutional consequences flow from the standard

authority can demonstrate that party affiliation

given in Clause 8. O n e is that patents may be is-

is an appropriate requirement for the effective

sued only for new and useful inventions. 1 0 8 6

performance of the public office involved." 2 6 2 In

Under the present law, the invention must be

dissent, Justice Lewis F. Powell stressed long-

"nonobvious" to a person skilled in the field in

standing patronage practices that "helped build

which the invention was made. Otherwise, a

stable political parties." In 1990 a 5 - 4 majority

patent would have the effect of removing "exis-

extended the patronage cases still further, hold-

tent knowledge from the public domain," and

ing that the patronage limitations apply also to

doing so would scarcely promote any sort of

most other employment-related decisions, in-

progress. 9 1 9 T h e

conse-

cluding transfers, promotions, and hiring. 2 0 5 0 In

quence is that a researcher may not patent the

1 9 9 6 , in t w o C O M P A N I O N C A S E s , t h e C o u r t e x -

other constitutional

discovery of a law of nature and thereby gain ex-

tended the rule to independent contractors. In

clusive right to all devices that take advantage of

one case a trucking service that had been provid-

it. To be patentable, a discovery must be em-

ing towing services in two Illinois counties for

bodied in some invention. 8 2 6 Once a patent is

thirty years alleged that it was removed from the

granted, the government may not itself use the

rotation list when it refused to contribute to the

invention or revoke the patent without paying JUST

COMPENSATION.1154

If an invention

or

mayor's reelection campaign. T h e Court held, 7 - 2 , that such a removal violated the company's OF A S S O C I A T I O N . 1 7 3 4

manufacturing process is not patentable under

FREEDOM

federal law, the states may not use their "unfair

case, Wabaunsee County (Kansas) terminated a

I n t h e Other

competition" laws to prevent other manufactur-

trash hauler's contract because the hauler was an

ers from making or using it. 2 3 1

outspoken critic of the county board of commissioners. T h e Court held that the cancellation was

See abo: AUTHORS CONTROVERSIES; CRETS;

WRITINGS

AND INVENTORS; PREEMPTION; AND

CASES OR TRADE

SE-

DISCOVERIES.

an unconstitutional condition and violated the haulers FREEDOM OF SPEECH. 2 1 1 T h e county objected that giving independent contractors a constitutional right in such a situation would as

PATERNITY

W h e n the state files a paternity

a practical matter threaten to "ossify government

suit, DUE PROCESS requires it to pay for blood

contracting practices." To this objective, Justice

tests if the putative father is too poor to a f f o r d

Sandra Day O ' C o n n o r announced "a nuanced

them, because the tests might help establish

approach." She said that "[t]o prevail, [the con-

that he is not the father and should not be or-

tractor] must show that the termination of his

dered to support the c h i l d . 1 3 4 8 T h e Supreme

contract was motivated by his speech on a mat-

C o u r t has not had occasion to say whether this

ter of public concern, an initial showing that re-

rule applies also in private suits filed by a

quires him to prove more than the mere fact that

child's mother. In such private suits, paternity may be established by a "preponderance of the evidence."1996

1976

that

minated him. If he can make that showing, the Board will have a valid defense if it can show, by

See abo: ILLEGITIMACY;

PATRONAGE

he criticized the Board members before they ter-

PROOF, STANDARD

OF.

T h e Supreme Court decided in

under

the

FIRST

AMENDMENT

non-civil service employees may not be fired

a preponderance of the evidence, that, in light of their knowledge, perceptions, and policies at the time of the termination, the Board members would have terminated the contract regardless of his speech. . . . T h e Board will also prevail if it

343

344

PEACE, B R E A C H OF can persuade the District Court that the County's legitimate interests as a contractor, deferentially viewed, outweigh the free speech interests at stake." See also: PUBLIC TIONAL

PEACE, the

EMPLOYMENT;

UNCONSTITU-

CONDITIONS.

BREACH

OF,

see:

breach

of

peace

PEACEABLY dom

of

TO

ASSEMBLE,

see:

free-

assembly

PENDENT

JURISDICTION

Sometimes

the C o u r t overturned on ELEVENTH PENALTY-SUBSIDY

DISTINCTION

The

federal income tax code bars tax-exempt status to charitable organizations that engage in lobbying or political activities. Taxation with Representation of Washington, a taxpayers' public interest group, was denied charitable status because it actively lobbied for changes to the tax laws. It asserted that the denial violated its FIRST AMENDMENT rights because Congress was conditioning a government benefit on the organization's surrendering a constitutional right to lobby. In an opinion by Justice William H. Rehnquist, the Supreme Court held that the government had not imposed a penalty on but rather had merely denied a SUBSIDY to lobbying organizations. Tax exemptions and tax deductibility are forms of subsidy, in effect cash grants to particular taxpayers. There is no constitutional right to a subsidy, and the government may select among recipients as long as it does not "discriminate invidiously" so as to "aim at the suppression of dangerous ideas." 1957 The Court did find such suppression in 1984, when it overturned a federal law prohibiting any public broadcasting station using public funds from airing political editorials or endorsing candidates. The effect of the law was to force the stations to forgo a core First Amendment right to voice their opinions in order to obtain public funding for any of their programs. 739 The Court also overturned as a violation of FREEDOM OF THE PRESS an Arkansas sales tax law that taxed general-interest magazines but exempted newspapers and various types of journals. 92

a

federal case involves a closely related claim under state law. A federal court is permitted to decide the state claims on a theory of pendent jurisdiction, appropriate, according to the Supreme Court, whenever both claims "derive from a common nucleus of operative fact." 2 4 0 3 By deciding both claims the court can achieve judicial economy and spare the parties the need for "bifurcated proceedings." Pendent jurisdiction is not an absolute. The Court has held that under the Federal Arbitration Act, some claims must be arbitrated and may not be heard by courts. 1 6 0 2 , 6 0 5 And in an important case in 1984 AMEND-

MENT grounds the extension of pendent jurisdiction to suits in federal courts against state officials asserting violations of rights under state law. 1 8 2 2 t

PENTAGON

PAPERS

CASE

In J u n e 1 9 7 1 the

New York Times and the Washington Post began to publish excerpts from a classified Defense Department study, officially titled "History of U.S. Decision-Making Process on Viet Nam Policy" but popularly known as the Pentagon Papers. The newspapers obtained the documents from a former Defense Department official, Daniel Ellsberg. A day after publication began, Attorney General John N. Mitchell ordered government lawyers to take the newspapers to court to restrain further articles, claiming grave national harm. By undermining peace negotiations, the government asserted, publication of the excerpts would prolong the war and risk the death of many soldiers. Federal district courts decided against the government, but two U.S. courts of appeals issued temporary restraining orders against further publication pending appeal. The Supreme Court agreed to hear the cases less than two weeks after the first article appeared, heard argument the next day, and decided against the government four days after that. In a 6-3 PER CURIAM decision in New York Times Co. v. United States, the Court held that the government had not met its "heavy burden of showing justification for the enforcement" of a PRIOR R E S T R A I N T a g a i n s t t h e p r e s s .

Each of the justices wrote separate CONCURSee

abo:

MENT

FREEDOM SPEECH;

CRIMINAL

AND

OF CONTENT STITUTIONAL

GOVERN-

RING o r DISSENTING OPINIONS. J u s t i c e H u g o L .

PUNISHMENT,

Black said that "every moment's continuance of the INJUNCTIONS" amounted to "a flagrant, indefensible, and continuing violation of the FIRST AMENDMENT." Justice William O. Douglas

OF PETITION; LOBBYING;

CIVIL;

SPEECH,

OF; SPENDING CONDITIONS.

REGULATION

POWER;

UNCON-

PEOPLE OF THE SEVERAL agreed, adding that no law prohibited the newspapers from publishing the articles and that the government has no implied or inherent power to obtain injunctions against the press. Justice William J. Brennan, also concurring, said that the only exceptions to the rule against prior restraint occur when the disclosure would immediately imperil the security of troops engaged in or about to be engaged in battle. Justice Potter Stewart said that the responsibility for maintaining secrecy "must be where the power is"; the president, not the courts, must keep classified information secret. If it LEAKS out, the courts may not stop the presses. Justice Byron R. White agreed with Brennan and Douglas that no law authorized injunction and that the government had not met its burden, and he added that the government had gone down the wrong route. Instead of seeking injunctions, it should have sought INDICTMENTS against those who leaked the information. Justice Thurgood Marshall espied a SEPARATION OF POWERS problem "for this Court to use its power of CONTEMPT to prevent behavior that Congress has specifically declined to prohibit." Dissenting, Justice John Marshall Harlan, pointing to the "almost irresponsibly feverish" attitude of the Court in deciding the cases so hurriedly, said that the president is entitled to much greater leeway in seeking to block matters dealing with FOREIGN AFFAIRS. T h e Court may independently review whether the material against which an injunction is sought deals with foreign affairs and whether the secretary of defense had personally assessed the risks; if so, the courts should refrain from redetermining "the probable impact of disclosure on the national security." Also dissenting, Justice Harry Blackmun wanted the Court to remand the cases to the lower courts to develop standards through a BALANCING that would say when the press could be enjoined, because the "First Amendment, after all, is only one part of an entire Constitution." Chief Justice Warren E. Burger dissented solely because "we literally do not know what we are acting on"; he contended that the Court should have extended the temporary restraining orders until the lower courts could conduct a full trial on the merits. See also: COURT

OF APPEALS,

AND INHERENT

POWERS.

U.S.;

IMPLIED

striking down Connecticut's CONTRACEPTION law, Justice William O. Douglas was faced with the problem of finding a distinct right to marital intimacy in the face of a constitutional silence. Nowhere does the Constitution use the word "privacy." So Douglas cobbled a privacy right out of several constitutional doctrines under the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments that, he said, amount to "zones of privacy," including FREEDOM OF ASSOCIATION, parental rights, the ban on the quartering of soldiers, and the right against u n r e a s o n a b l e SEARCH A N D SEIZURE a n d S E L F -

INCRIMINATION, among many others. T h e specific guarantees in the BILI. OF RIGHTS, Douglas said, "have penumbras, formed by emanations from those guarantees that help give them life and substance," which establish a right of privacy protected generally from government intrusion. Douglas took this tack to avoid being criticized for making an o p e n - e n d e d S U B S T A N T I V E DUE PROCESS d e c i -

sion that he and other justices had long condemned earlier courts for making in cases involving economic regulation, including LOCHNER

V.

NEW

YORK.

By

pointing

to

penumbras, Douglas was trying to show that there are specific constitutional provisions, not the vague DUE PROCESS Clause, that shelter the right of married couples to use birth control. Griswold was one of the rare instances in which Justice Hugo L. Black parted company with Douglas in a civil liberties case. Black denounced Douglas's technique of substituting "for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in [meaning]," thereby "diluting or expanding a constitutionally guaranteed right." See also: CIVIL NATURAL

RIGHTS

LAW;

AND CIVIL

NINTH

RENTAL

RIGHTS

STRICT

CONSTRUCTION.

AND

PEOPLE,

Ninth

RIGHTS

LIBERTIES;

AMENDMENT;

PA-

RESPONSIBILITIES;

P E O N A G E , see: i n v o l u n t a r y

PEOPLE

PENUMBRA T H E O R Y In Griswold V. Connecticut, the controversial 1965 PRIVACY case

STATES

RETAINED

servitude BY,

see:

Amendment OF T H E S E V E R A L S T A T E S

Article

I-§2[l] says that the "people of the several states" shall elect members of the House of Representatives. By this phrase the Framers meant that

345

346

PER

CURIAM

representatives from each state are to be elected by the people in that state. In 1964 the Supreme Court read the phrase to mean "that as nearly as is practicable one mans vote in a congressional election is to be worth as much as another's."2504 See also: APPORTIONMENT TRICTS;

ONE PERSON,

OF POLITICAL

DIS-

ONE VOTE.

PER CURIAM A per curiam opinion (Latin for "by the court") is a very brief unsigned opinion that usually simply declares in whose favor the case is decided—for example, one affirming the lower court's decision for the appellant, or reversing and remanding the case to the lower court to reconsider its decision in light of the Court's opinion in some other recently decided case. Per curiam opinions are usually reserved for cases in which the law is settled and there is no reason for an extended discussion. Sometimes, however, as in the PENTAGON PAPERS C A S E , it is u s e d b e c a u s e n o n e o f the j u s -

tices can agree on a reason for the decision, even though there is a majority for a certain result. Justices occasionally file concurring and dissenting opinions. See also:

HOLDING.

PEREMPTORY C H A L L E N G E During jury selection, the parties are entitled to "strike," or exclude, biased persons from the jury. In addition to these exclusions "for cause," most state courts and the federal courts permit the parties a certain number of peremptory challenges— that is, the right to strike a potential juror for any reason or for no reason at all. In 1965 the Supreme Court for the first time addressed the problem of peremptory challenges against jurors of a certain race. It held that if a prosecutor uses peremptory challenges to exclude blacks "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be," the practice violates equal protection. 2282 But the Court refused to find a constitutional problem in striking blacks in a particular case. As a consequence, it was nearly impossible to show racial bias in a prosecutor's use of peremptory challenges. In 1986 the Court overruled itself. In Batson v. Kentucky the Court said that prosecutors may not, even in a particular case, "challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the state's case

against a black defendant." In 1991 the Court went further, holding that a person of another race may challenge racially motivated peremptory challenges; that is, the prosecutor may not challenge blacks even if a white is being tried. 1898 Also in 1991 the Court forbade racially based peremptory challenges even in civil trials in which the government is not one of the parties, on the ground that exercising peremptory c h a l l e n g e s is STATE A C T I O N b e c a u s e the state

created the challenge system.690 In 1992 the Court pushed this line of cases still further in a case in which white defendants moved to strike black jurors in a racially charged assault case; the Court held that it is unconstitutional for a defendant as well as a prosecutor to use peremptory challenges in a racially biased manner.860 And in 1994 the Court added sex discrimination to the list, holding that gender-based peremptory challenges violate equal protection. 1143 However, the Court has not invalidated discrimination on any basis other than race, sex, or national origin. Though there was no clear majority, it refused to reverse the conviction of a Hispanic defendant whose prosecutor struck several Hispanic jurors because their ability to speak Spanish might lead them to disregard the official English translations of the testimony of Spanishspeaking witnesses. A plurality opinion held that peremptory challenges under these circumstances do not constitute racial discrimination. 1051 To rebut a prima facie case of racial discrimination in exercising a peremptory challenge, the proponent must give a race-neutral explanation, but not necessarily an explanation that is persuasive or even plausible. In a 7 - 2 PER CURIAM decision, the Court upheld a prosecutor's striking from the jury panel in a robbery prosecution two black men with the explanation that one had long hair and was unkempt and that both had mustaches and "goatee type" beards that he found "suspicious." 1923 The lower federal court had held that to rebut a charge of discrimination, the race-neutral explanation must be plausible. The Court held that this view misapprehended the three-part test of Batson: (1) The opponent of the challenge must first make out a prima facie case of racial discrimination. (2) The proponent must then rebut with any race-neutral explanation. (3) Only then must the trial court determine whether the side opposing the peremptory challenge has shown purposeful racial discrimination. Purposeful discrimination might then be shown by the implausibility of the race-neutral

PERMIT SYSTEM explanation. But in this case, because the trial

PERMIT

court had determined that the prosecutor was

S u p r e m e C o u r t has decided a series o f cases in-

SYSTEM

Beginning

in

1938,

the

not motivated by any discriminatory intent, the

volving the efforts o f municipalities to ban or

potential jurors were permitted to be struck, and

regulate the use o f public streets and parks by

the conviction was affirmed. In a broad dissent,

groups o f people f o r demonstrations, picketing,

Justice J o h n Paul Stevens objected that the effect

meetings, and distribution o f pamphlets

of the decision was to permit a purportedly race-

other literature. Because the public has an inter-

and

neutral explanation to stand even if the reason

est in the use o f its streets and other public

given had nothing to do with the pending case,

places, the C o u r t has long recognized that m u -

a pretext that w o u l d permit any intelligent pros-

nicipalities

ecutor to sidestep Batson.

M A N N E R R E S T R I C T I O N S o n d e m o n s t r a t o r s ' ac-

may

impose TIME,

PLACE,

AND

cess, despite the FREEDOM OF ASSEMBLY. But PERJURED

TESTIMONY

Perjured

testi-

m o n y is unlawful but not unconstitutional, unless the prosecutor in a criminal trial knows that the evidence o f f e r e d through a prosecution witness is f a l s e . 1 5 8 5 T h e prosecutor is constitutionally obligated under DUE PROCESS to correct false statements. T h e falsehood need not bear directly on the guilt o f the defendant. For example, a conviction must be overturned w h e n the prosecutor does not correct the false statement o f an accomplice of the defendant that he had been promised nothing for his testimony w h e n in fact the prosecutor had promised him consideration in his o w n case to f o l l o w .

1631, 873

In another case, a witness had been sexually involved with a w o m a n whose husband murdered her because o f her infidelities. T h e prosecutor knew o f the relationship but told the witness not to volunteer the information, so at trial the witness claimed the relationship was wholly casual. Even though the false testimony at most impeached the credibility o f the witness, the conviction was contaminated by the perjury and could not stand. 3 8 In 1986 the C o u r t held that the SIXTH AMENDMENT right to effective assistance o f counsel in a criminal prosecution was not violated w h e n an appointed lawyer refused to cooperate w i t h his client's desire to c o m m i t perjury on the witness s t a n d .

1697

T h e lawyer

told the defendant that if he c o m m i t t e d perjury, the lawyer w o u l d tell the judge about it and then seek to w i t h d r a w f r o m the case.

Chief

those restrictions must be evenhanded and may not be based on the message of the particular g r o u p . 1 6 9 6 O n e c o m m o n m e t h o d of regulation is to require demonstrators to obtain a permit f r o m the chief o f police, mayor, or other municipal agency authorizing each particular use o f the public spaces. A permit system without standards to guide the administrative official violates the right against PRIOR RESTRAINT implicit in the FIRST A M E N D M E N T .

In the 1938 case a G r i f f i n , Georgia, ordinance prohibited anyone from distributing "circulars, handbooks, advertising, or literature o f any kind . . . without first obtaining written permission f r o m the C i t y M a n a g e r s . " A Jehovah's Witness passed out religious pamphlets without a permit. T h e C o u r t unanimously reversed her conviction, holding the ordinance INVALID ON ITS FACE because it gave the city manager unbridled discretion to withhold permits f o r any reason or no reason at a l l . 1 3 7 9 But in a 1941 Jehovah's Witness case involving eighty-eight

marchers,

the C o u r t upheld convictions resulting f r o m a parade d o w n a city street in the absence of a required permit because the permit system

re-

quired the licensing authority to grant or deny permits in a nondiscriminatory manner, taking into account only such things as overlapping parades, the risk o f disorder, and the time o f the demonstration. 5 4 8 T h e C o u r t has adhered to this distinction. In 1969 the C o u r t unanimously struck d o w n a

Justice Warren E. Burger said that since the

B i r m i n g h a m , Alabama, permit law that autho-

lawyer had not breached but had abided by the

rized the city to deny parade permits if in the

code o f professional responsibility, his actions in

city's

deterring the defendant f r o m c o m m i t t i n g per-

safety, health, decency, g o o d order, morals, or

jury

convenience require that [the permit] be re-

did

not

violate

the d e f e n d a n t ' s

Sixth

A m e n d m e n t rights.

"judgment

the

public

welfare,

peace,

fused. " 2 1 4 6 B i r m i n g h a m officials had pointed to the ordinance to deny permits to a civil rights

See also: PROCEDURAL RIGHTS OF CRIMINAL

DE-

march led by Martin Luther K i n g , Jr., and other

FENDANTS and cross-references listed there; PROSE-

ministers. S u m m i n g up the constitutional rule,

CUTORIAL MISCONDUCT;

Justice Potter Stewart said that "a law subjecting

TESTIFY, RIGHT TO.

347

348

PERSON A N D

PERSONHOOD

the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority is unconstitutional." In 1992 the Court struck down an ordinance of Forsyth County, Georgia, that empowered the county administrator to impose a fee to a maximum of one thousand dollars depending on the cost of maintaining public order. In practice, the county had no standard for determining how much to charge (some groups were charged nothing, the Girl Scouts were charged five dollars, and a white supremacist group was charged one hundred dollars). Moreover, the county took into account the content of a group's message. The cap of one thousand dollars on the fee did not save the ordinance, said Justice Harry A. Blackmun for a 5-4 majority: "A tax based on the content of speech does not become more constitutional because it is a small tax." 798 Permit systems often raise two related questions: (1) When demonstrators parade without first requesting a permit, does their failure to ask for one preclude them from challenging the system itself? If they are being prosecuted for violating the ordinance, they may raise the defense that the ordinance is invalid on its face. 1 3 7 9 On the other hand, if demonstrators have been enjoined from marching, they may not violate the INJUNCTION with impunity but must contest it in court. 2460 And a 1953 case suggests that when demonstrators have actually applied for and been denied a permit, they may not avoid a conviction for going ahead and marching anyway. They should first contest the denial in court, even if the denial was wholly arbitrary. 1891 However, this principle may not have survived a series of later cases that make timeliness an important factor in any licensing scheme involving expressive activities. 811 (2) Do those affected by a standardless permit system have STANDING to contest the system, even if they have not yet asked for a permit or the agency has not yet denied them one? In 1988 in a suit involving permits for newspaper vending machines on city streets, the Court held 6-3 that a newspaper could challenge the law "on its face," even though the publisher had not yet suffered any injury by it. 1 2 7 3 See also: TIONS; ences

DEMONSTRATORS FREEDOM

listed

REGULATION

there;

AND

OF SPEECH PUBLIC

OF CONTENT

DEMONSTRA-

and cross-re fer-

FORUM; OF.

SPEECH,

PERSON

AND

PERSONHOOD

The

Constitution uses the word "person" or "persons" forty-six times and the word "people" nine times. "Person" usually refers to an officeholder, but sometimes it has more particular meanings. In several instances, it means any individual human being—for example, in the TREASON Clause of Art. III-§3[i], the EXTRADITION Clause of Art. IV-§2[2], and the Citizenship Clause of the FOURTEENTH AMENDMENT. T h e

Constitution

distinguishes between a person and a "natural born citizen" in Art. II-§i [5]. The references to "other persons" in Art. I-§2[3] and "such persons" and "each person" in Art. I-§9[i] are allusions to slaves; the Framers were too delicate or too embarrassed to use the term SLAVERY in the Constitution. In three clauses "people" means those eligible to vote; in the others it refers generally to the whole population of a state or of the nation. But the Constitution's failure to state a general theory of personhood has allowed the Supreme Court at three vastly different historical epochs to develop the term in possibly contradictory ways. In 1857, in Dred Scott v. Sandford, Chief Justice Roger B. Taney gratuitously and disastrously said that the "people of the United States" could never constitutionally include blacks as a race, meaning that blacks could be neither citizens nor holders of constitutional rights. The first sentence of the Fourteenth Amendment was written and ratified precisely to overrule Taney's wretched conclusion. For purposes of citizenship at birth, therefore, "person" means any human being, not one of a particular race or national ancestry. Under the Fourteenth Amendment, constitutional protections for "persons" are not limited to citizens. DUE

PROCESS

and

EQUAL

PROTECTION

OF

THE LAWS include all persons, "without regard to any differences of race, of color, or of nationality." 2616 Constitutionally, in other words, we are one common humanity. Somewhat astonishingly, for these same purposes the Court has not confined the designation "person" to human beings. One of the most far-reaching constitutional pronouncements the Court has ever made was that personhood encompasses CORPORATIONS and other legal entities, so that the constitutional protections of the Fourteenth Amendment apply to ordinary businesses as well as to people. The issue was never truly explored, and the reasons for the conclusion were never set forth in an OPINION OF THE

PICKETING C O U R T . * I n s t e a d , d u r i n g ORAL A R G U M E N T in

an 1886 case, Chief Justice Morrison R. Waite told the lawyers that they need not debate whether the Equal Protection Clause applies to corporations because, he said for his colleagues, "We are all of the opinion that it does." 2074 Perhaps the only corporate entities not considered persons under the Fourteenth Amendment are municipal corporations—towns, cities, counties, and the like—which have neither due process nor equal protection rights against their states. 1690 The question of personhood also lies at the center of the most divisive modern social issue in the country—ABORTION. In Roe v. Wade the Supreme Court expressly declined to hold that a fetus is a person, for such a conclusion would of course have led the Court to uphold state abortion laws, since the decision to take another's life is always subject to state control. Instead, the 7 - 2 majority developed a different theory of personhood—that of the autonomy each woman has over her body. Although the Court modified the Roe framework in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey, the majority did not disturb its earlier conclusion that the fetus is not a person. See also: OFFICE AND OFFICERS;

THREE-FIFTHS

RULE. PERSONAL right

MOBILITY,

see:

travel,

to

PERSONHOOD,

see:

person

and

per-

sonhood

PETIT JURY A petit jury is a trial jury, historically consisting of twelve jurors, as distinct from

a

GRAND

JURY,

usually

consisting

of

twenty-three members. See also: JURY AND JURORS, PETITION, FREEDOM of

IMPARTIALITY

OF, s e e :

OF.

freedom

petition

PEYOTE, see: f r e e d o m

of

religion

P I C K E T I N G Picketing is a form of protest, often but not necessarily in labor disputes, in which people hold placards with messages intended to influence the opinions and actions of passersby on the streets. In the labor context, picketers often hope to deter passersby from pa-

tronizing the stores or offices of those they are picketing. In 1940, after years of constitutional hostility toward labor picketing, the Supreme Court for the first time struck down a state antipicketing law that prohibited all forms of peaceful picketing. 2341 Disseminating information about a labor dispute, said the Court, is "within that area of free discussion" guaranteed b y the FIRST A M E N D M E N T . B u t the C o u r t s o o n

reassessed the breadth of its ruling, and eventually concluded that even peaceful labor picketing may be enjoined or regulated as a CLEAR A N D PRESENT DANGER if it h a s a " s o l e , u n l a w -

ful immediate objective" to violate the labor laws.868 In 1980 the Court showed that it was prepared to interpret the unlawful objective test broadly, in holding that the National Labor Relations Board could prohibit a peaceful picket urging consumers to refrain from buying nonunion products sold by someone not a party to the dispute. 1643 The Court held that the picketers were "coercing" or "signaling" neutrals to engage in practices that violate the labor laws. The picketers said they were only peacefully asking individual consumers not to make purchases, decisions that each individual concededly is lawfully entitled to make. However, in 1988 the Court distinguished "handbilling" from picketing and upheld the right of construction union members, in a dispute over wages, to pass out leaflets at the entrance to a mall in "an attempt to persuade customers not to shop" in any of the stores there.606 Although even peaceful labor picketing is now subject to sharp limitations, "public issues" picketing has been given broader constitutional protection. In 1982 the Court unanimously upheld the right of black citizens in Mississippi to BOYCOTT white merchants, even though there were sporadic outbursts of violence, because the principal purpose of the picketing was "to change the social, political, and economic structure of a local environment" that had long violated blacks' civil rights. 1628 In the right circumstances, the states may regulate political picketing under narrowly drawn laws, for unlike the publication of IDEAS, which may not be regulated, picketing is "speech plus"—that is, speech mixed with conduct. But the states may not discriminate among types of picketing on the basis of the political views expressed or the content of the message. In 1972 the Court unanimously struck down a

349

350

PICKETING Chicago ordinance prohibiting anyone from picketing within one hundred fifty feet of a school but permitting "peaceful picketing of any school involved in a labor dispute." The Court said Chicago could have banned all picketing near schools, but it may not select certain kinds of messages for official approval. 1884 In 1988 the Court invalidated a District of Columbia ordinance that barred picketing within five hundred feet of a foreign embassy if the "sign tends to bring the foreign government into 'public odium' or 'public disrepute."' 232 Protesting the policies of foreign nations by carrying signs near their embassies is "classically political speech" that may not be banned outright when there is a LESS R E S T R I C T I V E A L T E R N A T I V E O R M E A N S

available, such as a law against intimidating and harassing foreign officials. But also in 1988 the Court approved a restriction on "focused picketing" of a private residence. After protesters, in a group as large as forty, had picketed the residence of an abortion doctor several times within a few weeks, a Milwaukee suburb adopted an ordinance barring picketing of homes. Justice Sandra Day O'Connor said that the ordinance was narrowly drawn to get at the exact evil—harassing people where they live—and that the protesters had many other channels of communication open to them. 816 The dissenters agreed that the town could regulate the time and manner of the picketing but thought that picketers carrying a political or social message on a public street could not be barred from ever doing so. In a significant 1994 case the Court upheld major portions of a Florida court's INJUNCTION against abortion clinic protesters while striking down other provisions because they limited more than necessary the protestors' right to speak. 1 "" 2 The protestors, some of whom belonged to Operation Rescue, had noisily picketed an abortion clinic near Melbourne, Florida, and in 1992 they were enjoined from interfering with patients' access to the clinic or otherwise abusing patients or staff. Complaining that the injunction had little practical effect on the protestors' activities to the detriment of patients, the clinic obtained a broader injunction. The state court determined that the protestors had been slowing traffic into the clinic's driveways and congregating on the paved street immediately in front of the clinic. Sometimes as many as four hundred people would sing, chant, and shout through bullhorns, distressing patients

during surgery and later in recovery. The protestors also picketed the homes of workers, shouted at passersby, rang neighbors' doorbells, and occasionally confronted employees' minor children at home alone. The second injunction prohibited the protestors from engaging in various activities, including entering or blocking the clinic premises and picketing anywhere on the public right-of-way or private property within a thirty-six-foot buffer zone next to the clinic. Protestors were also enjoined from making noise during certain hours on Mondays through Saturdays within three hundred feet of the clinic; from "physically approaching anyone seeking the services of the clinic"; from picketing or making noise in front of employees' homes; from harassing employees, staff, physicians, and anyone entering or leaving the clinic; and "from encouraging, inciting, or securing other person to commit any of the prohibited acts." The protestors challenged the injunction on several First Amendment grounds. In Madsen v. Women's Health Center, Inc., the Court held that despite affecting those who happened to espouse a particular view, the injunction itself was aimed at neither the content of the picketers' speech nor the viewpoint they espoused but instead was designed to deter certain specific forms of conduct. Because the injunction embraced a traditional PUBLIC FORUM, the ordinary standard of review would be whether the claimed restrictions on speech were "narrowly tailored to serve a significant governmental interest." But because injunctions "carry greater risks of censorship and discriminatory application than do general ordinances," the Court majority determined that a "somewhat more stringent application of general First Amendment principles" was called for—namely, "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Under that standard, the Court upheld the thirty-six-foot buffer zone in front of the clinic, particularly because it was designed to overcome the failure of the first, less restrictive injunction. But it struck down the thirty-six-foot zone applied to the back and side of the clinic because patients and staff did not need to cross through that area to go inside and because there was no showing that picketing within that area blocked traffic. The Court also upheld the noise restrictions: "The First Amendment does not demand that patients at a medical facility undertake

PLEA B A R G A I N I N G Herculean efforts to escape the cacophony of political protests." But the majority struck down a provision banning the showing of "images." Had the order been limited to signs that threatened patients or their families, it might have been upheld, but this was a "blanket ban on all images observable," including those that were not in and of themselves threatening; moreover, to allay the distress the images might cause patients, it would be easy enough for the clinic to draw curtains across its windows. T h e Court also struck down the prohibition against physically approaching within three hundred feet any person seeking the clinic's services, because it swept up even peaceful, though uninvited, conversations. The Court likewise voided the threehundred-foot zone around employees' residences because nothing in the record suggested "that a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could [not] have accomplished the desired result" of ensuring the "well-being, tranquility, and privacy of the home." In 1997, applying the Madsen rule that an injunction may not burden more speech than necessary to serve a significant governmental interest, the Court upheld an injunction providing for fifteen-foot "fixed buffer zones" around an abortion clinic's doorways, driveways, and parking lot entrances into which protestors may not intrude and striking down "floating" fifteenfoot zones around people and vehicles seeking to enter the clinic. 2088 See also: CIVIL DEMONSTRATORS

RIGHTS

AND

CIVIL

AND

LABOR AND LABOR LAWS; PUBLIC LICITATION; AND MANNER

SYMBOLIC

LIBERTIES;

DEMONSTRATIONS; SPEECH;

FORUM; TIME,

SO-

PLACE,

RESTRICTIONS.

P I R A C Y Article I-§8[io] empowers Congress to "define and punish piracies and felonies committed on the high seas, and offenses against the LAW OF NATIONS." This is one of the few express grants of congressional power to write criminal laws. The Framers generally accepted the principle that the United States as an independent nation was bound by INTERNATIONAL LAW, and so the national legislature, not the states, should be the competent authority over these matters. Although Congress may define with particularity what constitutes piracy or offenses against the law of nations, the Court in

1820 upheld a law punishing "the act of piracy, as defined by the law of nations." 2 1 8 3 During World War II the Court maintained this position, approving a law that subjected to military trials "offenders or offenses that . . . by the law of war may be triable by . . . military commissions," without spelling out in any clearer detail what those offenses are. 1 9 2 7 Under this clause, "high seas" is interpreted quite broadly, so that Congress can reach offenses committed on U.S. ships even when they are anchored in foreign ports. 8 2 7 Congress need not say that it is acting under this clause to enact a valid law punishing crimes under international law, as long as the law does deal with an international offense. O n this ground, the Court upheld a federal law punishing the counterfeiting in the United States of foreign government securities. 89 See also: DESIGN

PLAIN

VIEW

PROTECTION.

DOCTRINE,

see:

search

and seizure: plain view PLATTER, doctrine

S I L V E R , see: s i l v e r

platter

P L E A , see: a r r a i g n m e n t ; g u i l t y plea b a r g a i n i n g

plea;

P L E A B A R G A I N I N G Most criminal cases in the United States never go to trial. Instead, the defendant and prosecutor bargain over the plea: the defendant agrees to plead guilty to a charge less serious than that with which the prosecutor actually charged him, and the prosecutor agrees to recommend a less serious sentence. In 1970 the Supreme Court upheld the basic constitutional authority of the state to engage in plea bargaining, 259 and in several cases since then it has underscored the importance of the practice for keeping the criminal justice system afloat. On the one hand, if the state agrees to a plea bargain, the prosecutor's office must abide by it; a new prosecutor may not refuse to accept the defendant's agreement to plead to a lesser charge. 2076 On the other hand, since the practice results from bargaining, the prosecutor is entitled to drive a hard bargain: it is constitutional for the prosecutor to threaten the ACCUSED with the maximum possible charges unless the accused relinquishes the right to a trial and pleads to a lesser charge. 2044 Likewise, the prosecutor may threaten to and actually reindict

3SI

352

P L E A D I N G T H E FIFTH the accused on even more serious charges unless the accused pleads guilty to the original charge. 2 3 5 At the same time, the Court has insisted that a GUILTY PLEA must be voluntary; a defendant who does not understand the charge may later insist on going to trial. 1 0 3 8 See also: ARRAIGNMENT; PLEADING

THE

TRIAL, RIGHT

FIFTH

TO.

"Pleading

the

Fifth" refers to the refusal of a defendant or witness to testify at a trial or other public hearing, including one before a legislative committee, on the ground that the answers to the questions may tend to incriminate him, in violation of the right against SELF-INCRIMINATION found in the FIFTH AMENDMENT. A witness may refuse to testify only if to answer risks criminal prosecution. A witness granted IMMUNITY FROM PROSECUTION 301 or who has accepted a pardon is in no legal danger of prosecution and so may not plead the Fifth. Whether a witness pleading the Fifth may be retaliated against depends on the circumstances. In 1956 the Court overturned the dismissal of a public college teacher who pleaded the Fifth before a Congressional investigating committee. 2 1 6 9 However, if the questions that the witness refuses to answer are relevant to assessing whether he or she continues to be qualified to hold a job, refusal to answer at an investigation by the employing agency may constitute grounds for firing.1325 A licensing agency may not revoke a license solely because a person being investigated by the agency—for example, a lawyer haled before a disciplinary committee of the bar—refuses to cooperate with the investigation. 2221 Nor may a police department fire a police officer who refuses to waive his right against self-incrimination during an official investigation, although the department could insist that he forfeit his job for refusing to answer "questions specifically, directly, and narrowly relating to the performance of his official duties." 840 In other words, public employees may be forced to testify about their own duties, but if they answer from fear of being fired, they may not later be criminally prosecuted. 848 See

also:

PARDONS,

TIONS, AND PLESSY

REPRIEVES,

COMMUTA-

AMNESTIES.

V. FERGUSON

I n 1883, in the CIVIL

RIGHTS CASES, the Supreme Court struck down a federal law barring RACIAL DISCRIMINATION

in P U B L I C A C C O M M O D A T I O N S . A l t h o u g h t h e

law was aimed at discriminatory acts by private individuals, the Court's apparent retreat from the purposes that animated the FOURTEENTH AMENDMENT emboldened the states to place a public imprimatur on racial segregation. In 1887 Florida passed the first of many "Jim Crow" laws (the name derived from a line in an 1820s minstrel song), establishing SEPARATE BUT EQUAL railroad passenger cars for blacks and whites. Jim Crow laws spread quickly through the South. In 1891 a group of black citizens organized a Citizens' Committee to Test the Constitutionality of the Separate Car Law and solicited funds for a lawsuit. In 1892 they set in motion an elaborate plot to bring a TEST CASE to court. Homer Adolph Plessy, a man who was one-eighth black (one of his eight great-grandparents was black) and who could easily have passed for white, climbed aboard the East Louisiana Railroad in N e w Orleans and sat in the white-only coach. Alerted to the scheme, the conductor requested that he move to the black car. When Plessy refused, a train detective arrested him. Thus a case was instigated that would reach the Supreme Court in 1896. Plessy's lawyer, Albion W. Tourgee of New York, argued that the question was not whether the facilities were in fact equal, as the Louisiana Supreme Court had justified its ruling against Plessy, but whether a state may "label one citizen as white and another as colored in the common enjoyment" of daily activities. Tourgee insisted that in prohibiting SLAVERY, the THIRTEENTH AMENDMENT bans not merely ownership of people but also "a caste, a legal condition of subjection to the dominant class." That the railroad law imposed just that, Tourgee said, was amply demonstrated by the exemption for black nurses attending white children: dependent blacks could sit in white cars, but nonservile blacks could not. This law reeked of dominance and oppression. "Justice is pictured blind and her daughter, the Law, ought at least to be color-blind," Tourgee said. T h e C o u r t did not agree. In Plessy v. Ferguson, a 7 - 1 majority held that under the EQUAL P R O T E C T I O N C L A U S E , states m a y m a k e

classifications as long as they are reasonable, and what is reasonable depends on the "established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and preservation of the public peace and good order." In other words, the people may do

P O I S O N O U S TREE just as they please, since they will never deviate from their own usages, customs, and traditions. T h e railroad law, said Justice Henry B. Brown, promoted racial peace. Those who drafted the Fourteenth Amendment, he concluded, "could not have intended to abolish distinctions based on color." It was not the law that "stamps the colored race with the badge of inferiority," said Brown, but their own feelings about it. To Justice Brown's abject surrender to racial fear in an opinion full of sociological nonsense, Justice John Marshall Harlan responded in one of the great dissents in American constitutional history. Plainly the law was designed to put the state's seal of supremacy on the white race. But "in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. . . . It is difficult to reconcile [the boast that we are the freest society] with a state of law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens. . . . The thin disguise of equal accommodations' . . . will not . . . atone for the wrong this day done. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case." Harlan was undoubtedly correct. Plessy paved the way for rigid racial segregation in almost every facet of life in many southern states. Not until BROWN V. BOARD OF EDUCATION in 1954 did the Court begin the formal OVERRULING of Plessy, an effort that today is largely constitutionally complete. See

also:

TION,

AFFIRMATIVE

AS COLOR-BLIND;

INTEGRATION;

OPINION

CONSTITU-

SEGREGATION

SOCIOLOGICAL

AND SOCIAL SCIENCE

PLURALITY

ACTION;

AND

FOOTNOTE

EVIDENCE.

For a judicial opin-

i o n to b e a n O P I N I O N OF T H E C O U R T , a m a -

jority of justices must agree with the reasons given for the HOLDING. When a majority agrees on the result but not on the reasons, several different opinions may be written. The opinion with which the largest number of justices concur is known as the plurality opinion. Although it has precedential value, it is considerably weaker than a majority opinion, since a later

Court may be less disposed to be bound by it under STARE DECISIS. P O C K E T V E T O T h e president's power to veto legislation is ordinarily not absolute: Congress may override a veto by a two-thirds vote in each house. But in one instance the president has an absolute veto, called a "pocket veto." Under Art. I-§7[2], the president has ten days (not counting Sunday) to decide whether to veto a bill passed by Congress and presented to him for signature. If he does not sign it within ten days, the bill becomes law, unless Congress has adjourned, thereby making it impossible for the president to return the bill. When a bill dies in this manner, the president is said to keep it in his pocket. The pocket veto provision was adopted to prevent Congress from manipulating its recesses so that a president could never return a bill while Congress was in session. The question is what constitutes an adjournment. A two-day recess? The end of the first session of a Congress? T h e end of a Congress? (A Congress lasts two years, the term length of members of the House; a session of Congress lasts one year.) In the Pocket Veto Case, Congress had adjourned its first session fewer than ten days after passing a bill. T h e Court said that the word "adjournment" is not limited to a final adjournment at the end of a particular Congress; it means any adjournment that prevents the president from returning the bill within the allotted time. In the only other Supreme Court case on this clause, the Court said that the pocket veto clause applies only when Congress as a whole has adjourned, not when one house only has done so, so that a bill can be returned during a three-day recess of the Senate. 2 5 9 7 These days the clause serves little practical function, since regardless of official recesses or adjournments between sessions, congressional committees may meet and congressional employees may be delegated the duty of receiving presidential veto messages. Incidentally, Congress need not be in session for a bill signed by the president to become law, as long as it is signed within ten days after the a d j o u r n m e n t . 1 2 6 7 , 6 9 6 See also: VETO POWER.

POISONOUS TREE, poisonous tree

see:

fruit

of

the

353

354

POLICE, R E G U L A T I O N POLICE,

OF In scores of

eral government; all of which can be most ad-

concrete situations the C o u r t has held that the

REGULATION

vantageously exercised by the states themselves.

BILL OF RIGHTS

OF

imposes substantive limita-

INSPECTION LAWS, QUARANTINE LAWS, health

tions on police actions, especially those involv-

laws of every description, as well as laws for reg-

confessions

ulating the internal commerce of a state . . . are

obtained in violation of the right against SELF-

ing SEARCH

AND

SEIZURE

and

component parts of this mass." In 1827 Marshall

INCRIMINATION. Individual police officers may

dubbed the totality of state legislative power the

be sued for DAMAGES in federal court for viola-

"police power." 2 9 '' " T h e traditional police power

tion of a person's constitutional rights.

1582

But

of the States," the Supreme C o u r t has said as re-

the C o u r t has shied away from blanket attacks

cently as 1991, "is defined as the authority to

on police departments as a whole. In a key 1 9 7 6

provide

case, Rizzo v. Goode, the C o u r t overturned a fed-

m o r a l s . " 1 5 5 In fact, as the C o u r t has held at var-

for

the

public

health,

safety,

and

eral trial court's order to city officials to draft a

ious times, it is even broader: it permits the

"comprehensive program for dealing adequately

states to enact regulations that foster "public

with civilian complaints"

convenience or the general welfare and prosper-

citywide program

against an asserted

of mistreatment

and

even

ity," so that, for example, a law requiring rail-

brutality in law enforcement. T h e C o u r t held

roads to drain their roadbeds to avoid water

that the case presented no case or controversy

damage to adjacent privately owned land is well

because there were no allegations of misconduct

within the police power. 4 ' 17

against specific plaintiffs.

W h i l e the interests encompassed by the po-

In 1983, in a case that was to have chilling

lice power are numerous, there are restraints on

implications a decade later, the C o u r t similarly

state

refused to hear a case involving the use of

CLAUSE, the COMMERCE CLAUSE, and the DUE

"choke

Police

PROCESS Clause of the FOURTEENTH AMEND-

Department. T h e plaintiff had been subjected

MENT. Until after the Civil War, the C o u r t re-

holds"

by

the

Los

Angeles

legislative

activity

in the

CONTRACT

to a choke hold when stopped for a motor vehi-

lied chiefly on the concept of the DORMANT

cle infraction. H e sued both for damages and to

COMMERCE CLAUSE to prevent the states from

restrain the department from using choke holds

enforcing regulations that interfered with IN-

in such circumstances thereafter. Justice Byron

TERSTATE COMMERCE. W i t h the rapid indus-

R. White, for a 6 - 3

trialization after the Civil War, the C o u r t signif-

majority, held that the

plaintiff lacked STANDING because it was un-

icantly undercut the Contract Clause. By 1878

likely that he would "suffer future injury from

the C o u r t announced a general principle that

the use of choke holds by police officers." Such

the states may not bargain away their police

a case could be heard only if someone could

power; in other words, a contract with a corpo-

plead and show that the police always

ration granting a monopoly or promising not to

used

choke holds unnecessarily or that the department ordered them to do s o . See also: CASES OR

1369

regulate is not binding. 2 3 8 This understanding of the police power was both

CONTROVERSIES.

boon and bane to American

business.

Because the C o u r t viewed the police power as adaptable to changing times, states could "legis-

POLICE

INTERROGATION,

see:

self-

incrimination

late so as to increase [their] industries, . . . develop [their] resources, and . . . add to [their] wealth and prosperity." 1 4 8 A t the same time, the

LEGISLATIVE

increasing bulk of regulations impinged in one

POWER of Congress, powers of the states are not

way or another on the autonomy of business to

POLICE

POWER

Unlike the

limited by the principle of ENUMERATED POW-

operate outside the watchful eye of the state.

ERS. Under the Constitution, the states retain

T h e question was whether such exercises of the

full authority to legislate in any field and to

police power unconstitutionally interfered with

achieve any objective, subject only to the limita-

private PROPERTY rights. T h e JUST COMPENSA-

tions imposed in the Constitution

TION Clause of the FIFTH AMENDMENT bars

1824, in Gibbons

itself.

In

v. Ogden, C h i e f Justice John

the federal government from "taking" property

Marshall referred to "that immense mass of leg-

without paying for it, but the C o u r t had said in

islation, which embraces every thing within the

1833 that the Fifth Amendment does not apply

territory of a state, not surrendered to the gen-

to the states. 1 5 9 W i t h

the ratification of the

POLITICAL CONVENTIONS Fourteenth Amendment in 1868, the possibility arose that a similar restriction would limit the states. At first the Court specifically denied, in the S L A U G H T E R - H O U S E C A S E S in 1873, that the new amendment was intended to have any such effect. But changing attitudes and a changing bench eventually led the Court to a radical new theory: a S U B S T A N T I V E D U E P R O C E S S limitation on the states' police powers. In 1897 the Court formally "incorporated" the Just Compensation Clause into the Fourteenth Amendment. 452 However, this brake on legislation was not limited to the classic form of outright appropriation of property but covered every form of regulation that interfered in some way with business not A F F E C T E D W I T H A P U B L I C I N T E R E S T . As a consequence, the Court took upon itself the power to strike down exercises of the police power that seemed to it to invade property interests, defeat V E S T E D R I G H T S , or interfere with F R E E D O M O F C O N T R A C T . Eventually the Supreme Court reversed course, holding in Nebbia v. New York in 1934 that state economic laws are presumptively valid and that the courts may not invalidate them as long as they have "a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory." But as it has turned out, the Court has not accorded a P R E S U M P T I O N OF C O N S T I T U T I O N A L I T Y to every kind of state law enacted in the interests of public health, safety, welfare, and morals. Under the PREFERRED famous

POSITION d o c t r i n e set o u t in

CAROLENE

PRODUCTS

the

FOOTNOTE

F O U R , the Court has scrutinized especially closely police power enactments that seem to infringe on rights enumerated in the BILL OF RIGHTS. See also: ECONOMIC RATION

DOCTRINE;

POWER;

PREEMPTION;

ING

OF PROPERTY;

DUE

PROCESS;

INCORPO-

NATIONAL

POLICE

PUBLIC

MORALS;

TAK-

ZONING.

P O L I T I C A L A C T I V I T Y The right to engage in political activities lies at the core of the Constitution. The Constitution establishes a representative democracy, which means both that the people must be free to elect their representatives and that the people's voices may not be stilled when their representatives are deliberating on policy. The right to vote necessarily implies the right to form P O L I T I C A L P A R T I E S , to participate in political campaigns, and to run

for office. All these rights find shelter in the voting provisions and amendments and in the F I R S T A M E N D M E N T S protection of F R E E D O M OF

SPEECH,

FREEDOM

OF

ASSEMBLY,

FREE-

D O M OF P E T I T I O N , a n d F R E E D O M OF A S S O C I -

From these same provisions derive the rights to editorialize and to comment freely on candidates and elected officials and to engage in ATION.

LOBBYING.

These rights are nearly absolute for the citizenry generally but apply less to public employees, some of whose political interests may be subordinated to the requirements of P U B L I C EMPLOYMENT. For example, under the Hatch Act, federal employees are forbidden to "take any active part in political management or in political campaigns." The Supreme Court upheld the act and regulations banning employees from running for office, serving as members of a party nominating convention, soliciting votes by mail, distributing campaign literature, and otherwise engaging in any active role on behalf of candidates or parties in an election. 2406 But public employees do not forfeit all political rights. The Court has struck down most forms of political P A T R O N A G E hiring and firing, and in the L O Y A L T Y O A T H cases it has made clear that except in extreme cases employees may retain M E M B E R S H I P IN P O L I T I C A L O R G A N I Z A T I O N S without being fired. See

also:

ACCESS

NANCING; RIGHT

LIBEL

TO BALLOT; AND

CAMPAIGN

SLANDER;

FI-

VOTING,

TO.

P O L I T I C A L C O N V E N T I O N S Saying that "the states themselves have no constitutionally mandated role" to play in choosing political party nominees for public office, the Supreme Court has held in several cases that political party conventions, not the courts, are the appropriate forums for resolving disputes arising over whether a delegate has been properly elected to cast a vote at a political convention. 545 Only the convention may determine whom to seat, even if the delegates choose to unseat other delegates properly elected under a state winner-take-all primary. 1727 "A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution," the Court has held, pointing to the F R E E D O M OF A S S O C I A T I O N . At the core of this freedom is the right to advocate political

355

356

POLITICAL

EXPENDITURES

views and candidates, which "necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only." 617 See also: ACCESS TO BALLOT; OFFICE AND FICERS;

POLITICAL

PRIMARIES;

OF-

VOTING,

RIGHT TO. POLITICAL

EXPENDITURES

I n 1 9 7 6 the

Court recognized for the first time that political expenditures—money spent to promote candidates—constitute a form of FREEDOM OF SPEECH

protected

by

the

FIRST

AMEND-

MENT. 312 Congress may not curb a person's expenditure of money on candidates independent of the candidate's own efforts or those of the candidate's party. But the Court did uphold general restrictions on how much candidates or parties may spend. See also: CAMPAIGN

FINANCING.

POLITICAL PARTIES One major political development that the Framers missed but should have anticipated was the rise of the political party. Perhaps because everyone assumed George Washington's election as the first president, the factions that very shortly became active had not yet been fully organized as discrete partisan organizations. In any event, the Framers were extremely chary of acknowledging the role of partisan politics, and the Constitution says nothing about political parties. Madison extolled the Constitution because of it, saying in Federalist 10 that it was designed chiefly to avoid the "mischiefs of faction." In his farewell address in 1797, Washington warned specifically of the dangers of "the spirit of party." But by then political parties were already forming, and in due course they would create a political system for nominating and electing the president and other officials about which the Constitution was wholly silent. The constitutional question throughout our history, therefore, has been the degree to which the party system may be regulated. Of the most profound importance was the development of a fairly stable two-party system. This came about largely independently of the law. Although the Constitution does not require that two parties dominate the political scene at any one time, the virtual lack of governmental authority over the election process helped ensure the rise of the two-party system. Because of their constitu-

tional role in the ELECTORAL COLLEGE, the states recognized the advantage of a winnertake-all system under which a candidate for president receives all of a state's electoral votes. This system politically encouraged a two-party system, since splinter parties would find it almost impossible ever to secure the electoral votes of a single state, much less the votes of enough states to elect a president. And since so much of even local politics turns on ties to the national party system, the United States for the most part has sustained a centrist government. So rooted has the two-party system become that the Supreme Court has exalted to the status of a COMPELLING INTEREST a state's interest in the stability secured through a two-party system. It upheld a state law prohibiting any candidate from running independently if he was affiliated with any other party during the previous twelve months, although the state may not impose a longer time limit than that on the right of party renegades to run independently.2256 Following this position, the Court also said that states could not set early deadlines for independent candidates to put their names on the ballots because otherwise those dissatisfied with what happens at a political convention would be barred from running in opposition. 70 The Court also upheld a Washington State law requiring each major party to establish a statewide committee consisting of two committee members from each county. The state committee has the power to call conventions, to provide for the election of delegates to national conventions, and to fill vacancies on the party ticket. In 1976 the state Democratic Party decided to add new members to the legally required state committee that had served for years as the central governing body of the state party. When a challenge arose to the composition of the expanded state committee, the Court upheld the original state law, saying that the states have a legitimate interest in ensuring that the nomination process is fair and orderly. The Court recognized that a political party has the constitutional right to conduct its purely internal affairs as it sees fit, but it noted that the state did not compel the Democratic Party of Washington to use the state-mandated committee as its central governing arm. It could choose another institutional mechanism, but it could not transfer the legal authority of the state committee to another body not established as the law requires. 1429

POLITICAL QUESTION Nevertheless, because political parties lie at the heart of the political activities protected by the FIRST

AMENDMENT,

the C o u r t

has

sanctioned,

violates

m e n t _2171,2308

the

DOCTRINE

FIFTEENTH

AMEND-

been

extremely deferential to party activities at POLITICAL CONVENTIONS that involve the actual selection of nominees. However, under the FIF-

See also: ACCESS

TO BALLOT;

VOTING,

RIGHT

TO.

T E E N T H a n d N I N E T E E N T H AMENDMENTS, the

POLITICAL

right to equal voting means that the parties may

1 8 0 3 , i n M A R B U R Y V. M A D I S O N , t h e v e r y c a s e i n

not d e n y access to POLITICAL

PRIMARIES

on

the basis of race, national origin, or sex. And for the obvious reasons that political parties are about politics and the expression of political beliefs is protected under FREEDOM OF SPEECH, the states may not bar political parties from permitting non-party members to vote in the party's primary 2293 or from endorsing a particular candidate running in a party primary. 724 In 1991 the Court refused to decide a controversy arising under a provision in the California state constitution prohibiting parties from endorsing, supporting, or opposing candidates for elected nonpartisan local offices. The Republican County Central Committee sued for a DECLARATORY JUDGMENT

that the

ban

violated its First Amendment rights. But the Court held 6-3 that the case was not justiciable; there was no showing of a "live dispute," since the party could not point to any threat by a state official to enforce the prohibition on endorsements. 1965 See

also:

ACCESS

NANCING; CIABILITY; ITY;

TO BALLOT;

FREEDOM

CAMPAIGN

OF ASSOCIATION;

PATRONAGE;

FIJUSTI-

POLITICAL

ACTIV-

RIPENESS.

POLITICAL

PRIMARIES

The

Supreme

Court has repeatedly made sweeping pronouncements about the constitutional rights of P O L I T I C A L PARTIES as p r i v a t e o r g a n i z a t i o n s

to

be free of state supervision under a general FREEDOM

OF

ASSOCIATION.

Since

the

Con-

stitution limits the government, not private activities, the Court faced a certain difficulty in dealing with whites-only primaries. In 1935 it even held that a party primary is a private affair from which blacks could be constitutionally excluded by the party itself, 957 though not by state law. 1702 But in cases in 1944 and 1953 it reversed course, overruling its earlier decision and holding that primary elections, no matter how constituted or organized, are so intimately enmeshed with STATE ACTION that any exclusion of participation by race, no matter how

QUESTION

DOCTRINE

In

which the Supreme Court first claimed for itself the power to determine the constitutionality of federal legislation, Chief Justice John Marshall said that "[t]he province of the [Supreme Court] is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court." This is the premise of the political question doctrine, that the Supreme Court has no constitutional basis to hear cases involving the exercise of discretionary powers by other branches of government. A simple example is the pardon power of the president. The Court may not review the presidents refusal to pardon a convicted criminal, since the decision is solely for the president. The Court actually first applied the doctrine, though not by name, seven years before Marbury when it refused to decide whether the government had violated a treaty obligation. 2473 In 1827 it held that the president and Congress had unreviewable discretion over when the militia should be called into service. 1441 Largely because few controversies not involving people's rights are ever brought to court, the Court has had relatively few occasions to dismiss claims on the ground that they present an unreviewable political question. In recent years it has even overruled itself and held that some formerly unreviewable questions were within its reach. The major political question committed to other branches is the Art. IV-§4 guarantee of a R E P U B L I C A N F O R M OF G O V E R N M E N T f o r e a c h

state. The Court has also come close to saying that the president's exercise of FOREIGN AFFAIRS POWER is beyond review. Certainly the questions of who is a duly accredited diplomatic agent to the United States, 128 which foreign governments to recognize, 1791 and who is the actual ruler of a foreign nation" 9 2 are exclusively for the president. So too are the issues of whether a nation has the authority to enter into a treaty obligation with the United States 640 and

357

358

POLITICAL

SUBDIVISIONS

whether a treaty has lapsed because the foreign nation has lost its independence. 2306 Congress, not the Court, has the final say on whether a constitutional amendment has been ratified. 490 Congress and the president are the final authorities on whether a war has begun or concluded. 505 ' 2590 ' , 3 8 7 ' 1 3 0 6 Most issues relating to federal control over I N D I A N S A N D I N D I A N T R I B E S are political questions beyond the scope of the Court's constitutional authority. Until the 1960s the Court consistently held that questions of apportioning legislative and other districts were political. Even grotesquely malapportioned legislatures were beyond constitutional reach in the courts. But in 1962 the Court overruled previous decisions, holding in Baker v. Carr that apportionment of state legislatures is a justiciable issue that may be heard in the courts (as can federal apportionment issues2409). Baker v. Carr signaled a narrowing of the political question doctrine, and the Court soon began to order the redrawing of congressional and state legislative districts. The doctrine, Justice William J. Brennan said, arises out of the Supreme Court's relationship to the other federal branches, not to the state governments. Summing it up, Brennan said the political question doctrine would be applied in one of the following six circumstances: (1) when there is a "textually demonstrable commitment to another branch," (2) when the courts have no standards they can discover and use to resolve the dispute, (3) when the courts cannot decide without a policy determination that properly belongs to the political branches, (4) when the courts would have to show great disrespect for coordinate branches of government, (5) when there is "an unusual need" to adhere to a "political decision already made," or (6) when considerable embarrassment might result if different branches of government pronounced different views on the same issue. 130 The Court found no political question bar to its decision that a state legislature may not exclude a duly elected member because of his expression of political views. 230 And in 1969, despite Brennan's conclusion that the doctrine limits the Court's power to hear disputes involving other federal branches, the Court held that it did not apply when Congress sought to exclude Representative Adam Clayton Powell, Jr., for financial misdealing, because the Constitution expressly states only narrow grounds under which Congress may do so. 1894 In 1973 the

Court applied the doctrine to bar courts from inquiring into how National Guard troops are trained and disciplined, both because this is about the clearest example of a governmental action intended to be left to the political branches and because the courts are probably less competent to judge in this area than any other. 877 In 1990 the Court refused to defer to Congress in judging whether a revenue bill was unconstitutional because it was enacted first by the Senate, in violation of Art. I-§7[i], which requires all bills raising revenue to originate in the House. 1613 See also: APPORTIONMENT TRICTS;

COMMITMENT

JUSTICIABILITY; MUTATIONS,

POLITICAL

OF POLITICAL TO OTHER

PARDONS, AND

DIS-

BRANCHES;

REPRIEVES,

COM-

AMNESTIES.

SUBDIVISIONS

The

Consti-

tution does not speak about cities, towns, counties, or other forms of municipal government, such as school and water boards. The only governmental units mentioned in the Constitution are the United States itself, the states, foreign nations, and the Indian tribes. Cities and other local units of government are political subdivisions of the state, and the distinction is constitutionally significant. "We are a nation not of city-states but of States," the Court said in 1982 in holding cities, but not states, subject to federal antitrust laws. 512 Because municipalities are creatures of the state, actions of a political subdivision are for most purposes like actions of a state—constitutionally valid if they are legitimate for a state, but unconstitutional otherwise. 2400 Although private C O R P O R A T I O N S enjoy certain constitutional protections from state and federal legislation, municipalities do not. Cities, the Supreme Court said in 1907, are "created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. . . . The state, therefore, at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or part with another municipality, repeat the charter and destroy the corporation." 1104 Attempts to press the C O N T R A C T C L A U S E into service to prevent the state from reassigning one municipality's property and contractual obligations to another have been unavailing. A

PORTS state may move a county seat, even if the residents of the old seat had donated land and obligated themselves through bonds to build public buildings. 1692 On the same ground, no municipal officeholder has a constitutional right to the office if the state chooses to repeal the office, revoke or change its duties, or lower its salary. 342, 1 5 6 7 States entirely at their whim may change the duties of local officials and determine whether they are to be elected or appointed. 2 1 9 3 And although the ELEVENTH AMENDMENT bars federal courts from entertaining suits against the states, it does not prohibit federal suits against municipalities. 1579 Likewise, the F O U R T E E N T H A M E N D M E N T pro-

vides cities no constitutional protection from state direction. For example, the state may direct that cities recompense property owners for destruction resulting from riots, even though the city was not responsible for the damage. 445 Notwithstanding the general discretion of the states over its political subdivisions, the Constitution does impose some restraints. A city may not be mapped geographically to deny certain people the right to vote. 903 In a line of decisions since 1964 1 9 7 1 involving APPORTIONMENT

OF

POLITICAL

DISTRICTS,

the

Court

has held that elections to most political offices must be by districts of equal populations. For a time, the Court suggested that cities were immune under the TENTH AMENDMENT from federal control over their hiring and wage practices, holding in National League of Cities v. Usery that Congress may not "directly [impair] their ability to structure integral operations in areas of traditional governmental functions." But in 1985 the Court overruled National League of Cities, holding in Garcia v. San Antonio Metropolitan Transit Authority that it is impossible to define "traditional" governmental functions and so it would leave the issue to Congress. See also:

DORMANT

TERSTATE

COMMERCE;

COMMERCE VOTING,

CLAUSE; RIGHT

people from registering. In 1937 the Supreme Court upheld the poll tax against a challenge under

the

EQUAL

CLAUSE.269

PROTECTION

After a struggle in Congress that lasted more than a quarter century, the battle against the poll tax was partly won by ratification of the TWENTY-FOURTH AMENDMENT, which bars any state from conditioning voting in federal elections on payment of a tax. Two years later the Court struck down all remaining poll taxes in state and municipal elections by ruling that the poll tax denies the class of impoverished voters

the

EQUAL

PROTECTION

OF

THE

LAWS.1000

See also: VOTING, RIGHT TO.

P O L Y G A M Y Polygamy, the practice of having multiple spouses, has never been permitted under American law. Because it was a tenet of Mormonism, a federal law against polygamy in U.S. TERRITORIES was attacked as violating the F I R S T A M E N D M E N T r i g h t o f F R E E D O M OF R E L I -

GION. The Court distinguished belief from practices, holding that Congress, and therefore the states as well, have the power to regulate antisocial practices. 1972 "Crime is not the less odious because sanctioned by what any particular sect may designate as 'religion,'" the Court said in a decision upholding a federal law requiring voters to forswear membership in any order that advocates polygamy.592 The Mormon church underwent a doctrinal change abjuring polygamy, which remains unlawful to this day in every state. See also: FREEDOM OATH

OF

OF BELIEF;

MARRIAGE;

OFFICE.

P O L Y G R A P H T E S T I N G , see: in c r i m i n a l p r o c e e d i n g s POPULAR eignty

SOVEREIGNTY,

discovery

see:

sover-

IN-

TO.

justiciabil-

P O R N O G R A P H Y , see: f e m i n i s m a n d pornography; obscenity and pornography

P O L L T A X The poll tax was a "head tax" imposed as a condition in many states on the "privilege" of voting. Although nominally a nondiscriminatory tax, in modern parlance it was regressive and discouraged the poorest

P O R T S Article I-§9 [6] prohibits Congress from giving preferences to the ports of one state over those of another, either by enacting tougher regulations or imposing higher taxes. But the Court has held that this clause does not prohibit Congress from conferring benefits or detriments

POLITICAL ity

T H I C K E T , see:

359

360

POSSE C O M I T A T U S on particular ports or a class of ports, as long as the benefits and burdens do not depend on the states in which they are located. For example, Congress may appropriate funds to build lighthouses and docks in certain ports only and to improve particular harbors. 1 8 3 1 , 2 1 9 9 The Court upheld an Interstate Commerce Commission tariff that established a higher rate for ferry services east across the Mississippi than for those traveling west. Because the charges depended on economic factors, and not the geographic location of the ports, it did not matter that a port in one state was benefited more than a port in another state. 1 3 7 6 The clause applies only to Congress. It does not bar the states from imposing differential regulations on their ports, 1 5 9 7 and Congress may constitutionally empower the states to regulate harbor pilots, even though the pilot regulations may burden out-of-state ports more heavily. 2336 See also: DORMANT TERSTATE

COMMERCE

CLAUSE;

IN-

COMMERCE.

P O S S E C O M I T A T U S A posse comitatus (Latin for "power of the county") is a group of citizens summoned to aid in law enforcement, usually to round up a suspect. In constitutional terms, the question has been whether the president may order the use of federal troops to quell domestic violence, whether as a posse comitatus or not. In 1792 Congress authorized the president to use either the MILITIA or the ARMED FORCES to put down rebellions that could not be suppressed through ordinary judicial proceedings. In 1827 the Supreme Court held that the question of necessity was the president's alone.' 44 ' Thereafter, in disturbances surrounding enforcement of the Fugitive Slave Act, President Franklin Pierce asserted the authority to entrust military forces to the command of U.S. marshals for use as part of the posse comitatus. In 1878 Congress enacted the Posse Comitatus Act, barring the use of soldiers as any part of the posse comitatus, unless Congress has specifically authorized their use. The act has since been extended to the other military services and is legislative recognition of the fundamental principle that civilian affairs are off limits to U.S. military services. However, in the 1871 Force Act, portions of which continue to this day, Congress expressly authorized the president to call up military forces when state authorities are powerless or refuse to put down

violence that interferes with the exercise of the peoples constitutional rights. It was this provision that President Dwight D. Eisenhower invoked during the Little Rock, Arkansas, school desegregation crisis in 1958, and that presidents have used since to restore order after urban rioting. P O S T O F F I C E Article I-§8[7] grants Congress the power to establish post offices and post roads. For nearly a century a minor debate ensued over the breadth of the postal power. Does the clause limit Congress merely to designating existing buildings and roads as post offices and roads, or may Congress appropriate funds to build roads and office buildings? In 1876 the Supreme Court opted for the broader construction, holding that the federal government could exercise its power of EMINENT DOMAIN to acquire land on which to build a post office. 1 2 4 8 The postal power includes the power to prevent any interference with the carrying of the mail, 11 '* 9 a power broad enough, the Court held in 1981, to sustain a federal law prohibiting anyone from depositing circulars without postage into anyone's mailbox. 2413 Because the postal power is federal, the states may not directly abridge it. In 1845 the Court held that the states may not tax vehicles carrying the mail on its roads, 2 1 1 5 nor may a state convict a mail truck operator for driving in the state without a state driver's license." 7 5 The major constitutional difficulty that has arisen under the Postal Clause is the extent of federal power to bar the mail to those who would use it for harmful purposes. The Court held in 1878 that Congress could bar the mailing of literature on lotteries 1149 and in 1902 that Congress could prohibit the mailing of any fraudulent solicitations or advertisements, 1917 a line of decisions that it has followed to the present day in upholding laws against many forms of business fraud conducted in part through the mail. But "Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province." 701 Thus federal power over the mail is subject to the FIRST AMENDMENT prohibition against general CENSORSHIP. As Justice Oliver Wendell Holmes said in a DISSENTING OPINION in 1921 that has now largely been adopted, "The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right

PRAYER A N D BIBLE R E A D I N G to use our tongues." So in 1946 the Court rejected a post office contention that it could exclude Esquire from the mail on the grounds that the magazine's articles were vulgar and in poor taste.992 And in 1965 the Court invalidated a law permitting the post office to hold up "communist political propaganda" and forward it only when the addressee specifically notified the department that he wished to receive it. 1 2 7 9 This was the first time the Supreme Court ever struck down a federal law for violating the First Amendment. However, Congress may legitimately allow recipients to tell the postal service not to forward a certain type of mail, so that under federal law the postal service may constitutionally maintain a list of recipients who do not wish to receive obscene or sexually oriented mail. 2039 P O S T R O A D S , see: p o s t o f f i c e P O V E R T Y , see: w e a l t h and discrimination POWERS, SEPARATION r a t i o n of p o w e r s

classification

OF, see: s e p a -

P R A C T I C E O F LAW, see: l a w y e r s P R A Y E R A N D B I B L E R E A D I N G In 1962 the Supreme Court for the first time encountered the issue of a prayer written by a state agency to be recited in the public schools. The case arose in New York, where the state Board of Regents wrote the following "nondenominational" prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." A local school board ordered that the regents' prayer be used daily in each classroom. The New York courts upheld the prayer as long as the school respected a parent's desire that the child not say it. The Supreme Court held 6—1 that any prayer, even a nondenominational voluntary prayer, is unconstitutional because it is "wholly inconsistent with the ESTABLISHMENT CLAUSE." 710 Praying is a religious activity, and the Establishment Clause says that it "is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government." In 1963 the Court struck down a Pennsylvania requirement that the public school day

open with the reading of "at least ten verses from the Holy Bible." A local school interpreted the law in mandating that students read in unison from the Bible and recite the Lord's Prayer, although a written note from a parent could excuse any child from the Bible reading or from attending the session. In Abingtort School District v. Schempp Justice Tom Clark for an 8-1 majority held that whether a law is valid under the Establishment Clause depends on whether there is "a secular legislative purpose and a primary effect that neither advances nor inhibits religion." The Bible reading and prayer failed both parts of the test. The Bible reading (the King James version was used) was not undertaken as a course of study in history or the sociology of religion; it was undertaken as a religious exercise and it obviously was intended to further religion itself. Justice Clark emphasized that the decision did not prohibit "the study of the Bible or of religion, when presented objectively as part of a secular program of education. " The Court was saying, rather, that a state may not require or permit a public school itself to engage in religious activities, which is what every demand for school participation in prayer amounts to. Since schoolchildren remain free to this day to pray independently during any free moment in school, the many constitutional amendments introduced (but not passed) in Congress since the early 1960s reflect a clear contempt for the principle that government not involve itself in religious undertakings. In 1985 the Court struck down an Alabama "voluntary prayer" law authorizing schools to set aside a minute for private meditation or prayer. 2464 The Alabama legislature had amended a previous law allowing a minute simply for meditation. The Court held that the new Jaw, specifically adding the prayer provision, had no secular purpose at all and noted that the law's sponsor had declared his proposal was an "effort to return voluntary prayer" to the schools. Since the earlier law already provided students that right, by setting aside a minute of silence, the new law was intended "to convey a message of State endorsement and promotion of prayer." But a neutral moment-of-silence law, in the absence of a suggestion from teachers that students use it to pray, would probably be constitutional and could be used for prayer by teachers and children alike. In a related vein, the Court struck down PER CURIAM a Kentucky law ordering public schools

361

362

PREAMBLE to post a copy of the Ten Commandments on the walls of each classroom, even though the state insisted that its purpose was secular and not religious. The 5-4 majority disagreed, finding no secular legislative purpose, since the Ten Commandments are "undeniably a sacred text in the Jewish and Christian faiths." 2252 In 1992 the Court adhered to this principle, holding that prayers offered as part of a public school ceremony are forbidden by the Establishment Clause. 1308 For many years school authorities in Providence, Rhode Island, had invited members of the clergy to offer prayers at middle and high school graduation ceremonies, giving them a pamphlet prepared by the National Conference of Christians and Jews entitled "Guidelines for Civic Occasions," which recommended that prayers be written with "inclusiveness and sensitivity." The Court held that the graduation prayer practice is unconstitutional because "government involvement with religious activity . . . is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school." The state argued that it was appropriate to mark the ceremony with a recognition "that human achievements cannot be understood apart from their spiritual essence." The flaw in that argument, said Justice Anthony M. Kennedy for a 5-4 majority, is that it requires those who object to prayers to absent themselves from a major social occasion. The state agreed, and said that it was appropriate for them to do so. But, said Kennedy, "[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to statesponsored religious practice." The dissenters objected to the Courts overturning two centuries of American historical experience with prayers recited at the beginning of innumerable state occasions, including the inaugurations of presidents. The Court did uphold the practice of the Nebraska legislature of starting each legislative day with a prayer conducted by a Presbyterian chaplain on the legislative payroll. Even though this practice is clearly inconsistent with the LEMON TEST for determining whether state conduct violates the Establishment Clause, the Court did not overrule the test but made an exception because of the long historical traditionof legislative prayers. 1435 See

also:

SCHOOLS,

RELIGIOUS RELIGION

IN.

ESTABLISHMENT;

PREAMBLE The Constitution's Preamble neither confers nor limits governmental power. 1 1 5 1 Adopted in September 1787, after the delegates to the Constitutional Convention had agreed on the substantive provisions, the Preamble states three important tenets. The first is that the Constitution derives ultimately from the people in their entirety, not from the states. 1 4 8 3 , 4 5 6 , 1 4 4 0 An early version of the Preamble began, "We, the people of the states of . . . ," followed by a list of the thirteen states. The draftsman, Gouverneur Morris, changed it to read, "We, the people of the United States." A second tenet, shown in the Preambles recitation of purposes, is that government is established to serve human ends. In many cases the Court has referred to the Preamble as a guide to interpreting the scope of a power granted. The third tenet is perhaps more a faith expressed in the present tense: "We the people do ordain and establish the Constitution"—a reminder, if we choose to make something of it, that the Constitution is not simply a document that was established by a collection of people remote from us in time but one that is continually ordained and established by the people. See also: CONSTITUTIONAL

CONVENTION

OF

1787.

PRECEDENT This book is about precedent, the previous judicial rulings that serve as a guide to resolving future constitutional and legal disputes. The COMMON LAW legal system is fundamentally based on precedent, the notion that the law develops through the slow accretion of HOLDINGS that constitute authoritative interpretations of constitutional provisions and other laws. Whether the courts are bound by their precedents is another question, discussed separately under STARE DECISIS. PREEMPTION

U n d e r the SUPREMACY CLAUSE

federal law preempts—that is, supersedes— inconsistent state law. In preemption cases the courts must determine whether the federal law was intended to supplant state law, not whether Congress has the power to do so. As long as Congress has enacted a law under one of its ENUMERATED POWERS, inconsistent state laws are invalid. If Congress expressly states that it is preempting a field, the courts will give effect to that declaration. Likewise, as Chief Justice John Marshall noted in Gibbons v. Ogden in 1824, if

PREFERRED P O S I T I O N federal law permits an action that state law pro-

Likewise, the C o u r t has held that the federal

hibits, the C o u r t must disregard the state law.

labor laws preempt state damage suits f o r harms

But w h e n federal law does not explicitly say that

caused by organizational PICKETING. 2 0 6 6

it supersedes state law and there is no obvious

Federal policies as disparate as those dealing

conflict, the C o u r t follows certain general prin-

w i t h espionage, bankruptcy, and patents a n d

ciples in deciding whether to give federal law

copyrights m a y lead to p r e e m p t i o n . T h e C o u r t

preemptive effect.

invalidated

a Pennsylvania

law

prohibiting

T h e C o u r t usually begins with a presump-

SEDITION against the U n i t e d States because

tion that " C o n g r e s s did not intend to displace

the S m i t h A c t , the federal antisubversion law,

state l a w s , " 1 4 5 1 although the presumption runs

preempts

the other way w h e n state laws affect INDIANS

struck d o w n a provision in the U n i f o r m M o t o r

AND INDIAN T R I B E S . 1 6 6 4 T h e C o u r t s tests f o r

Vehicle S a f e t y Responsibility A c t , a law en-

state

espionage

laws.1827

It

also

whether Congress intended to preempt include

acted in several states that permits a state to

(i) h o w pervasive the scheme o f federal regula-

suspend the license o f any driver w h o fails to

tion is, (2) whether the federal law touches "a

pay a m o n e t a r y j u d g m e n t f o r causing a t r a f f i c

field in which the federal interest is so d o m i -

accident, even if the failure to pay stems f r o m

nant" that it w o u l d make no sense to let state

the driver's bankruptcy. T h e C o u r t held, 5 - 4 ,

laws on the same subject stand, and (3) whether

that the license suspension

the state policy w o u l d produce a result inconsis-

defeats the purpose o f the b a n k r u p t c y law to

unconstitutionally

tent with the objective of the federal l a w . 1 9 8 0

let debtors start f r e s h . 1 8 3 7 Federal patent and

Even if Congress has not intended to fully dis-

copyright laws preempt state u n f a i r c o m p e t i -

place state regulation of a specific area, state law

tion laws; a state may not prevent the c o p y i n g

is preempted to the extent that it actually con-

o f designs that are too trivial to q u a l i f y f o r fed-

flicts with the federal l a w — i f , for example, it

eral p r o t e c t i o n . 2 " 6 ,

513

w o u l d be physically impossible to c o m p l y with

In a case o f potentially great significance to

both federal and state regulations 7 8 8 or if fol-

the cigarette industry, the Supreme C o u r t held in

lowing the state law would impede the objec-

1992 that the Federal Cigarette Labeling

tives o f the federal l a w . 1 0 6 4 T h e s e tests are so

Advertising Act, passed by Congress in 1965 to re-

general that it is impossible to fit the cases into

quire manufacturers to post warnings on cigarette

and

clear patterns, but s o m e random examples give

packages about health hazards from smoking,

the flavor o f the Court's preemption jurispru-

does not preempt state laws permitting smokers

dence. Although the federal A t o m i c E n e r g y Act

to sue manufacturers for DAMAGES

preempts state laws governing safety standards

f r o m cancer and other diseases contracted f r o m

in building nuclear reactors and was intended to

smoking. 4 6 1 In a multipart decision with which

p r o m o t e nuclear power, the C o u r t held that it

different blocs of justices took issue, Justice J o h n

resulting

does not preempt state power to regulate the sale

Paul Stevens held that the federal law preempts

and transmission o f electricity generated by nu-

claims based on a failure o f manufacturers to

clear facilities licensed by the A t o m i c Energy

warn, but not claims based on express warranties,

C o m m i s s i o n . T h e states m a y even impose a

fraudulent misrepresentations, intentional fraud

m o r a t o r i u m on building new nuclear p l a n t s . 1 7 8 2

in concealing evidence o f deleterious effects, and

Federal antitrust laws do not preempt state laws

conspiracies a m o n g companies to misrepresent or

requiring businesses to engage in restraints o f

conceal significant facts about health hazards, al-

t r a d e , 1 8 0 1 but similar municipal ordinances are

lowing smokers and former smokers, and the

preempted.1270

In

another

case,

the

Court

struck d o w n a local noise ordinance prohibiting

states themselves, to file such suits across the country.

jet flights f r o m leaving the B u r b a n k , California, airport between

11

P.M. and 7 A . M . 3 1 7

though the Federal Aeronautics A c t did

Even not

PREFERRED FREEDOMS, see:

preferred

position

specifically state that it was preempting all local noise rules, the C o u r t held that the safety poli-

PREFERRED

cies o f the federal law required the

Federal

C o u r t in the late 1930s repudiated the ECO-

Aviation Administration to have complete au-

NOMIC DUE PROCESS dogma, it said that the

thority over takeoffs and landings, leaving noth-

constitutionality

ing f o r states or

nomic interests would be tested by a rationality

municipalities

to

regulate.

POSITION

W h e n the Supreme

of legislation

involving

eco-

363

364

PREGNANCY standard: unless the law was arbitrary and irrational, it would be upheld. But even as the Court was withdrawing from close scrutiny of economic and social policy making by the legislatures, it signaled that it would examine a different set of laws more closely—namely, those that interfered with fundamental rights. In 1938 in the CAROLENE

PRODUCTS

FOOTNOTE

FOUR,

Justice

Harlan Fiske Stone declared that the Court might thenceforth be less willing to indulge in the presumption that laws are constitutional when they appear on the surface to fall "within a specific prohibition of the Constitution," in particular, the p r o h i b i t i o n s in the BILL OF R I G H T S . In 1 9 4 2

Stone, then chief justice, first used the phrase in a case involving a municipal tax imposed on itinerant peddlers, including sellers of religious literature. Stone said that the FIRST AMENDMENT does not prohibit only laws that discriminate against speech. Rather, the Constitution puts the FREEDOM OF SPEECH a n d FREEDOM OF RELI-

GION in a preferred position and bars taxes that interfere with those freedoms. 1 1 9 0 In several cases throughout the 1940s a majority of the Court persisted in declaring a preferred position for First Amendment freedoms. In 1949 Justice Felix Frankfurter condemned the concept, saying that the preferred position of freedom of speech is a "mischievous phrase" that "has uncritically crept into some recent opinions." To Frankfurter "preferred position" was a "deceptive formula," because the constitutionality of a law ought not to be doubted simply because in some way it touches on communications. 1 2 5 6 By the 1950s, with new justices on the Court, the preferred position doctrine was invoked far less frequently, and by the 1960s it was obviously no longer true that the Court was preferring First Amendment freedoms above others. Without depreciating the high place of the First Amendment in the Constitutional scheme, the activist Warren Court began invigorating many other provisions in the BILL OF RIGHTS by incorporating them into the FOURTEENTH AMENDMENT. Today, although the phrase is not often heard, it remains true that laws trenching on basic issues o f C I V I L R I G H T S A N D C I V I L

LIBERTIES

are scrutinized far more closely than laws that regulate economic relationships. See also: FUNDAMENTAL AND PRIVILEGES; PRESUMPTION

OF

INTERESTS,

INCORPORATION

RIGHTS, DOCTRINE;

CONSTITUTIONALITY.

PREGNANCY, see:

abortion

PREJUDICIAL PUBLICITY Prejudicial publicity about a criminal defendant may violate the DUE PROCESS right to a fair trial. T h e Court first confronted the issue in a 1961 case in which so much publicity about the defendant had been published that 90 percent of the potential jurors had formed some opinion of the defendant's guilt and two-thirds of the actual jurors began the trial believing the defendant guilty. Under those circumstances, the Court said, it would override the trial judge's finding that the jurors were to be believed in saying that they could render an impartial verd i c t . 1 1 4 0 In 1963 the Sup reme Court overturned a death sentence and conviction because the judge refused to change trial VENUE in a case in which a local Louisiana television station three times broadcast the defendant's filmed confession to an audience consisting of more than a third of the parish population. 1 9 9 0 In 1964 the Supreme Court reversed the conviction of the Texas commodities swindler Billy Sol Estes because the pretrial hearings were televised and seen by people who became jurors in the very case. 7 2 2 And in 1966 it reversed the conviction of Dr. Sam Sheppard because the judge had permitted the trial to become a "media circus" in which Sheppard was subjected to "massive, pervasive, and prejudicial publicity" that grossly interfered with his right to a fair trial. 2 1 4 0 What emerged from these cases is a general rule that when a significant portion of potential jurors are exposed to highly prejudicial information inadmissible at trial, the trial judge must reject potential jurors' assurances that they can be impartial. Whether the degree of prejudice reaches that level depends on the "totality of circumstances," including the heinousness of the crime and the community's reaction to it. If the prejudice is not so overwhelming, then a reviewing court should accept the judge's determination that the jurors' assertions of impartiality were believable except for "manifest error"—for example, if the trial judge failed to ask any of the jurors about the possibility of prejudice. But the number and type of questions to be asked lie within the trial judge's discretion. 1 6 0 6 Notwithstanding the unconstitutionality of prejudicial publicity, criminal defendants have no absolute right against the televising of their trials. In 1981 the Court upheld a Florida policy

PRESIDENT, E L E C T I O N A N D TERM OF of televising that is carefully worked out to respect the defendants' rights.428 See also: FREE PRESS-FAIR TRIAL,

FAIRNESS

OF;

TRIAL; GAG ORDER;

TRIAL,

PUBLIC;

VOIR

DIRE.

Court's decision in 1983 striking down the LEGISLATIVE VETO. In criminal law, a presentment

is in effect an INDICTMENT, brought at the initiative o f the GRAND JURY rather than o f the

prosecutor. PRESIDENT, DEATH, RESIGNATION,

PRELIMINARY

HEARING,

press-fair trial; trial, PREPONDERANCE

OF

see: proof, s t a n d a r d

see:

free

public THE

EVIDENCE,

EXECUTIVE POWER in essence confers an

inher-

ent power to act in the public interest, the Court has rebuffed the claim when put that starkly, as it showed in rejecting President Harry S. Truman's assertion that he could seize the nation's steel mills without congressional authorization.2623 However, on many occasions it has quite broadly construed the president's implied powers under the vague language of Art. II.

PARDONS, REPRIEVES,

presidential

OR suc-

PRESIDENT,

ELECTION

AND

TERM

OF

The Constitution as ratified in 1788 provided for the indirect election of the president through

of

AND INHERENT

O F , see:

cession

P R E R O G A T I V E The British crown had numerous powers, known as "prerogatives," exercisable unilaterally and without Parliament's consent. In his Second Treatise on Civil Government, John Locke wrote that prerogative is the power "to act according to discretion without the prescription of the law and sometimes against it." This leading English liberal, from whom the American revolutionaries learned the fundamental lesson that governments derive their just powers from the consent of the governed, believed that kings should have this unbounded prerogative, since it was "impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public."* The delegates to the CONSTITUTIONAL CONVENTION OF 1787 declined to invest the president with prerogative powers, instead distributing to Congress many of the powers exercised by the kings. Although presidents have repeatedly pressed the claim that the grant of

See also: IMPLIED

DISABILITY

POWERS;

COMMUTATIONS, AND

AMNESTIES; PRESIDENT, INHERENT POWER OF.

P R E S E N T M E N T Under Art. I-§7[2,3], every bill or Other ORDER, RESOLUTION, OR VOTE

that Congress has enacted to become law must be presented to the president for signature or veto. Congress's failure to comply with the Presentment Clauses was a partial basis for the

the ELECTORAL COLLEGE. Unlike the present

system, though, Art. II-§i[3] provided that the electors, appointed as the state legislatures determined, would vote for two people, without specifying which one of the two was to be president. The one with a majority would become president, and the one with the next highest number of votes would become vice president. This system was wholly unsuitable to a system of partisan political nominations, and worked well only twice: to confirm the election of George Washington as president in 1788 and 1792. By the 1796 elections it was already beginning to break down; in 1800 it led to near paralysis when Thomas Jefferson and Aaron Burr won an equal number of electoral votes. The election was thrown to the House of Representatives, still in Federalist hands, where it took thirty-seven ballots to select Jefferson, the Republican. A major problem was apparent. If parties continued to nominate only one set of candidates without specifying which was the candidate for president, the election was almost certain to be thrown each time to the House of Representatives. And if the opposing party controlled the House, chaos might ensue. Dissatisfaction with the impasse was so widespread that in 1804 the states ratified the TWELFTH AMENDMENT, which requires elec-

tors to specify the persons for whom they are voting for president and vice president. This change is essentially the system used for presidential elections, at least formally, to this day. If no one has a majority, then the House, with one vote per state, chooses among the top three vote-getters in the electoral college. Twenty-six votes (that is, one more than half) are necessary for election. This procedure has been invoked but once, in the 1824 election, when four candidates were nominated after the two-party system

365

366

PRESIDENT, IMMUNITY

OF

broke down. John Quincy Adams, son of the first Federalist president, was elected, even though he had received fewer electoral votes than Andrew Jackson. Only if there were a serious enough third-party bid for president to keep the electoral vote for each candidate below a majority would the House again be the agent for choosing the president. Article II-§I[I] specifies a four-year term for president and vice president, but the Constitution originally set no limit on how many terms a person could serve. George Washington set an important precedent in deciding against running for a third term in 1796. The tradition lasted until 1940, when Franklin D. Roosevelt, in the face of an impending war, announced for and won a third term, following that by a fourth-term victory in 1944. Determined to avoid domination of the White House by a popular Democratic president, the Republicancontrolled Congress proposed the TWENTYS E C O N D A M E N D M E N T , r a t i f i e d in 1 9 5 1 , w h i c h

barred more than two full terms for anyone elected in his own right or two and one-half terms for anyone first succeeding to the office as vice president on the death or resignation of the president. Ironically, the amendment arrived just in time to prevent a still popular President Dwight D. Eisenhower from making a third run for the White House in i960. In the mid-1980s there was some talk of repealing the Twentysecond Amendment to let President Ronald Reagan run again, but nothing came of it, and the two-term tradition now seems firmly ensconced in the Constitution. See also: POLITICAL

PRESIDENT,

PARTIES.

IMMUNITY

OF

T h e issue o f

whether the president is immune from judicial process has a long history but until recently had relatively few answers. Thomas Jefferson insisted that not only was the president immune but so were EXECUTIVE BRANCH officials, such as the secretary of state. Jefferson denounced Chief Justice John Marshall's conclusion in MARBURY v. MADISON that executive officials not only could be sued but could be ordered to perform ministerial acts. Historically, cabinet officers have been sued in their official capacities. In 1867 the Supreme Court declared that the president himself was immune from judicial process. Without hearing the merits, it dismissed a lawsuit seeking to enjoin President Andrew

Johnson from enforcing the post-Civil War Reconstruction Acts. 1566 From time to time, executive officials have also maintained that they cannot be criminally prosecuted as long as they remain in office, or that they must be impeached before they can be tried. The argument was pressed, for example, by Vice President Spiro T. Agnew before he resigned in disgrace in 1973. But the constitutional position of subordinate officers may be different from that of the president.346 To date, the Court has given two definitive, and possibly contradictory, answers to the question of presidential immunity. In a suit against President Richard M. Nixon for firing an Air Force civilian "whistle blower," the Court held that presidents are absolutely immune from liability for civil DAMAGES in connection with official acts. 1701 In other words, the courts are legally obliged to dismiss any damage suit filed against the president in his capacity as president, without considering the merits of the allegations. However, in United States v. Nixon the Court held that the president is not above the law, in the sense that a court may legally order him to produce necessary documents in a criminal prosecution. Whether the president may be tried, before being impeached, for crimes committed in the course of official duties remains an open question. In 1997, in Clinton v. Jones, a widely headlined case, the Court unanimously and conclusively decided for the first time that the president is not immune from civil suits for misconduct unrelated to any official duties as president. The case arose when a former employee of the state of Arkansas filed a sexual harassment suit against President Bill Clinton, asserting that he had made "abhorrent" sexual advances to her while he was governor of Arkansas in 1991. Two days before a three-year STATUTE OF LIMITATION expired, she filed suit charging, among other things, intentional infliction of emotional distress and deprivation of constitutional rights under Sect. 1983 of the federal civil rights laws. Denying the charges, President Clinton secured a lower court ruling staying the trial until his term as president expires—invoking, in effect, a doctrine of "temporary immunity." Speaking for the Court, Justice John Paul Stevens rejected the stay and saw no SEPARATION OF POWERS d i f f i c u l t y : " T h e liti-

gation of questions that relate entirely to the unofficial conduct of the individual who happens

PRESIDENT, I N H E R E N T P O W E R OF to be the President poses no perceptible risk of misallocation of either judicial power or executive power." Justice Stevens saw no serious risk that rejecting the claim of immunity will subject the president to "a large volume of politically motivated harassing and frivolous litigation," since the courts have power to sanction and deter such suits. N o r was there any reason to suppose that a trial would burden the president or make it difficult to carry on his official duties; certainly the president's lawyers made no such showing, and it is the president who "bears the burden of establishing its need." Said Stevens, " O u r decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place. We assume that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person, though he could elect to do so." Stevens noted, finally, that although the Constitution provides the president with no immunity, Congress may, if it chooses, "respond with appropriate legislation . . . providing for the deferral of civil litigation to accommodate important public interests." See

also:

FROM

EXECUTIVE

PRIVILEGE;

IMMUNITY

SUIT.

PRESIDENT, INHERENT POWER OF Article II vests in the president the EXECUTIVE POWER without defining its scope. As exercised by kings, executive power was vast and virtually unconfined by law, often known as royal PREROGATIVE. Given the rich history of royal prerogative, it is remarkable that the Framers devoted almost no time to discussing the words "executive power." The opening sentence of Art. II established, rather, that the office of chief executive would be filled by one person, not several people, as had been suggested; it also settled on the title "President." Succeeding sections of Art. II enumerate specific powers of the president, and the question is whether the executive power is restricted to the powers enumerated or is the source of a much broader, unconfined power. Unlike Art. I, which vests only some LEGISLATIVE POWER in Congress, Art. II vests in the president "the" executive power—that is, all, not a part of it.

In 1793 Hamilton defended Washington's NEUTRALITY

PROCLAMATION

in the w a r

be-

tween France and England on the ground that it was within the president's executive power. Madison charged that Hamilton's position amounted to reestablishing royal prerogative.* The argument has been repeated many times in our history, especially during moments of crisis. Lincoln asserted sweeping power to conduct a war, including the power to suspend HABEAS CORPUS. Later war presidents—especially Woodrow Wilson, Franklin D . Roosevelt, Harry S. Truman, and Richard Nixon—claimed similarly sweeping powers. Thomas Jefferson swallowed his own STRICT CONSTRUCTION sentiments and agreed to the Louisiana Purchase, believing that it was good to double the size of the country even though it might have been unconstitutional. Theodore Roosevelt, summing up the idea of inherent power, said, "I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the president unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws."* The extent of the executive power has waxed and waned in cases before the Supreme Court. Chief Justice John Marshall in MARBURY V. MADISON said that "the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to this country in his political character, and to his own conscience." T h e Civil War Supreme Court concurred with Lincoln's conception of the WAR POWER, 1911 and although after the war it rejected military trials of civilians, 1 5 4 8 it also refused to permit injunctions to be issued against the president, a doctrine that has blossomed into a full-scale immunity of the president today from civil suits for any official actions. 1 7 0 1 In 1890 the Court upheld the president's inherent authority to assign bodyguards to federal judges, 1 6 4 9 and in 1895 the power of the president to seek injunctions in railroad strikes, even though in each case no law of Congress gave him any authority to do so. 608 The Court also upheld the EXECUTIVE ORDER imposing a curfew on American citizens of Japanese ancestry during World War II, although the Court said that its constitutionality rested on joint action of Congress and the president.' 066

367

368

PRESIDENT, POWERS A N D

DUTIES

OF

But in 1952 the Court drew some sort of line in the STEEL S E I Z U R E CASE. President T r u m a n

claimed the inherent power to seize the nation's steel mills on the eve of a national steelworkers' strike. The Supreme Court, 6-3, denied the power. In a f a m o u s CONCURRING

OPINION,

Justice Robert H. Jackson said that an "emergency" power inherent in the president without Congressional approval "either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction." In 1971 President Nixon claimed the power, even without a federal law authorizing it, to seek an injunction against the publication of secret war papers. In the PENTAGON

PAPERS

CASE,

the

Supreme Court, again 6-3, held that to do so would be an unconstitutional PRIOR RESTRAINT. A l t h o u g h the PER CURIAM decision

was maddeningly terse, several of the concurring justices made it clear that no prior restraint could ever be justified without a carefully drafted law authorizing the executive to seek injunctions under narrow circumstances. The following year the Court, this time unanimously, disapproved Nixon's argument that he had inherent authority to place wiretaps in the offices of domestic organizations on national security grounds. 2411 The most that can be gleaned from the episodic nature of the cases that reach the Supreme Court is that under the loose, vague powers specifically listed in Art. II, the president will be given wide constitutional berth in exerc i s i n g t h e F O R E I G N A F F A I R S POWER a n d rela-

tively less room to govern on his own in the domestic sphere. But whatever else it is, the executive power is not limitless, as Richard Nixon explicitly acknowledged when he bowed to the Supreme Court's decision in United States v. Nixon that he must turn over the tapes that would destroy his presidency. See also: JAPANESE-AMERICAN RELOCATION; ISLATIVE

VETO;

PRESIDENT, ARATION

IMMUNITY

PRESIDENT,

POWERS OF

EXCLUSION FROM

AND

POWERS;

SUIT;

IMMUNITY DUTIES

VETO

AND LEGOF;

OF;

SEP-

POWER;

WAR

POWER.

PRESIDENT,

POWERS

AND

DUTIES

OF

When George Washington assumed office in New York on April 30, 1789, he had so little to

do that he took to advertising in the newspapers "visits of compliment" between two o'clock and three o'clock on Tuesdays and Thursday afternoons. He hosted dinners at four on Thursdays for government officials and their families, "levees" for men of the general public on Tuesdays at three, and tea on Friday evenings for anyone "properly attired."* It has been considerably more than a century since any president could legitimately lavish his time on nonofficial duties, so demanding has the job become. The change is the consequence of political, historical, and economic forces, not constitutional ones. A s the possessor o f the EXECUTIVE the

APPOINTMENT

AND

REMOVAL

POWER, POWER,

and the power to require the written opinion of the principal officers of the government, the president is the head of the United States government—a small role when the government was small and an immense role as the government has become ever larger. As COMMANDER IN CHIEF, the president is in charge of the ARMED FORCES. The president has the chief (though not the sole) role in conducting foreign affairs, through the appointment and removal power, the power to receive AMBASSADORS, and the power to make treaties. The appointment and removal power gives the president the political clout to staff the government and the courts and thereby to effect major policy changes. The president's power to "recommend" legislation to Congress permits strong presidents to dominate even the shaping of legislation, presumably a task for Congress. For all the hollow assertions by recent presidents that Congress is to blame for large deficits, for the better part of the twentieth century it has been the president, not Congress, who proposed the national budget. The president is, of course, constitutionally entitled to propose a deficit-free budget whenever he pleases. Finally, Art. II-§3 commands the president to "take care that the laws be faithfully executed." Though written in the form of a duty, presidents have derived from these eight words considerable power. They imply that the president may delegate duties imposed on the executive and act through administrative officers. 2531 However, the Faithful Execution Clause does not vest the power to act exclusively in the president. In the 1830s Andrew Jackson insisted that Congress could never impose specific legal duties on subordinate executive officials but must look only

PRESIDENTIAL SUCCESSION to the president to carry out the law. The Supreme Court quite strongly disagreed, holding that Congress may direct government officials to carry out the law in certain ways, not subject to any presumed power in the president to veto their actions or to direct that they act in ways other than required by law. 1 2 1 9 The requirement to carry out the laws inescapably carries with it the power to interpret the law, and it helps underwrite the massive delegation of LEGI S L A T I V E POWER to the e x e c u t i v e .

In one notorious case a century ago, the Supreme Court even held that the clause confers on the president the power to enforce law other than that which has expressly been declared by Congress. The question was whether the president, through the attorney general, could order a U.S. marshal to protect a justice of the Supreme Court against a death threat and whether the marshal could lawfully kill the potential assassin. The Court agreed that the order was valid and that the shooting could not be prosecuted under state murder laws.'649 It has long been assumed, though never definitively adjudicated, that the president may supervise enforcement of the federal criminal laws, directing federal prosecutors to seek INDICTMENTS or to refrain from doing so, although the power is not unlimited. Both in United States v. Nixon in 1974 and in Morrison v. Olson in 1988, the Court held that under certain circumstances Congress may vest in special federal prosecutors authority to prosecute that is unreviewable on the merits by the president. See

also:

DELEGATION

DOCTRINE;

AFFAIRS

POWER;

IMPLIED

POWERS;

IMPOUNDMENT;

AND JUDICIAL

OFFICE AND OFFICERS;

PRESIDENT,

POWER

AND

OF;

TREATIES

TREATY

FOREIGN INHERENT REVIEW; INHERENT POWER;

WAR POWER.

PRESIDENTIAL

SUCCESSION

Article

II-§i[6] says that if the president leaves office other than at the expiration of his term, the "powers and duties" of the office "shall devolve" on the vice president. Whether the vice president could assume the higher office as president, or simply as some sort of ACTING PRESIDENT, was unsettled until the death of William Henry Harrison in 1841, one month into his term. Harrison's vice president, John Tyler, insisted that the Constitution made him president, not acting president, and the precedent stuck. More

than

a

century

incorporated

later

the

tradition

in the T W E N T Y - F I F T H

was

AMEND-

MENT. Still other gaps remained, and these were p l u g g e d b y the T W E N T I E T H A M E N D M E N T a n d

the Twenty-fifth Amendment. The Twentieth Amendment, ratified in 1933, specifies that if the president-elect dies before assuming office, the vice president-elect becomes president. If for some reason the president has not been chosen, the vice president—elect is to "act as president" until a president is chosen. Congress may specify in a general law who shall act as president if neither president nor vice president has been chosen, or if both the sitting president and vice president shall have died, resigned, been removed, or become unable to serve, until the constitutionally elected president takes office. Congress enacted a presidential succession act in 1948, specifying that the next in line is the Speaker of the House of Representatives, followed by the president pro tem of the Senate, and then proceeding through the list of CABINET officers. The Twenty-fifth Amendment, ratified in 1967, provides that the vice president becomes the president if the president resigns rather than dies. It also permits Congress by a majority vote to confirm the presidents nomination of a vice president when a vacancy occurs in that office, as has happened during forty of the past two hundred years. Finally, it establishes a mechanism to determine how to proceed should a president be disabled, as also has happened several times during our history. James Garfield, for example, was in a coma for eighty days after his assassination until he died; Woodrow Wilson was almost wholly incapacitated from a stroke for eighteen months at the end of his second term, and his duties were apparently largely assumed by his wife, Edith Wilson. Under the Twenty-fifth Amendment, the president may either declare his inability in writing, or the vice president and a majority of cabinet officers may declare that the president is unable to discharge the duties of office. The vice president then becomes acting president, until the president declares, again in writing, that he is no longer disabled. But the vice president and a majority of the cabinet may override that declaration by notifying Congress that the disability continues. Congress then has twenty-one days to decide the issue. It takes a vote of two-thirds in each house to maintain the vice president as acting president. Otherwise the president will regain his office.

369

370

PRESS, F R E E D O M OF PRESS, FREEDOM

OF, s e e : f r e e

f a i r t r i a l ; f r e e d o m of t h e

press-

press

ticular limitation w o u l d protect against a corruption o f the system; f o r example, by someone marrying a dying person just to collect govern-

P R E S S , T A X A T I O N OF, s e e : f r e e d o m the

of

ment benefits. N o t to allow such conditions or presumptions w o u l d require a vastly compli-

press

cated and expensive system o f hearings to deterlaw

mine case by case whether abuse o f a standard

may declare a presumption that any gift o f prop-

had occurred. T h e C o u r t concluded that due

erty a person makes within six years o f his death

process does not require the government to hold

was really made "in contemplation o f death" to

individualized hearings in such cases. S o al-

PRESUMPTION,

IRREBUTTABLE

A

avoid an estate tax. If the law refuses to permit

though the six-year presumption in the estate

the person against w h o m the presumption ap-

tax might continue to be unconstitutional, the

plies to show that it is false—that the gift o f

legislature may surely make irrebuttable some

property really was freely intended as a g i f t -

shorter period to avoid the difficult issue o f

then the presumption is said to be irrebuttable.

proving the intent o f someone w h o is dead at

T h e C o u r t occasionally has held irrebuttable

the time o f the hearing.

presumptions unconstitutional as a violation o f PROCEDURAL DUE PROCESS, because in effect

See also: HEARING;

PRESUMPTIONS.

they forbid a litigant f r o m proving an ultimate fact that will determine the outcome o f the case.

PRESUMPTION

In 1931 the C o u r t held the gift presumption un-

ITY

constitutional, 2 0 9 5 and in the 1970s it struck

PENALTY

down a number o f presumptions used to limit

punishment laws come to the Supreme C o u r t

the conferring o f government benefits or other

with a "presumption o f validity." 9 4 0 Generally,

rights. For example, it invalidated an irrebut-

though not consistently, the C o u r t has accorded

table presumption that an illegitimate father is

the benefit of the doubt to any law attacked as

In

1976, cases,

OF

in

one

CONSTITUTIONALo f its m a n y

the C o u r t

said that

DEATH capital

unfit and may not gain custody o f his c h i l d . 2 2 3 5

unconstitutional. O f t e n when the justices have

It also overturned a rule that conclusively pre-

strong doubts about the constitutionality o f a

sumed that a student is a nonresident o f the

particular measure, they will interpret the law in

state and must pay higher tuition if at the time

such a way as to avoid the constitutional issues.

of application for admission her address was out

However, during some eras the C o u r t , while

of state. T h e C o u r t said that the student must

perhaps paying lip service to the presumption,

be allowed to show that she is a bona fide resi-

behaved as if certain classes o f laws were pre-

dent of the state. 2 4 4 9 T h e C o u r t also struck

sumptively unconstitutional; for example, eco-

down an irrebuttable presumption that every

n o m i c laws felled during the era o f ECONOMIC

pregnant school teacher is unfit to continue

DUE PROCESS. O n l y occasionally w o u l d such a

teaching and must take unpaid maternity leave

law escape the Court's constitutional axe, and

f o u r or five months before delivering, 4 7 1

and

one that barred f o o d stamps to any household containing someone eighteen years or older w h o was claimed as a dependent on a federal income tax return the year before by someone ineligible for f o o d stamps.

621

But in 1975 the C o u r t re-

fused to overturn a federal requirement that to obtain

Social

Security

survivors'

benefits

a

spouse must have been married more than nine months to a covered worker. N o t to allow the government to insist on such presumptions, said Justice William H . Rehnquist, " w o u l d turn the doctrine . . . into a virtual engine o f destruction for countless legislative judgments" which had long been thought constitutional. 2 4 9 8 In the f u ture, the question is whether Congress or state legislatures could rationally conclude that a par-

then only because o f some highly particularized showing

of

need,

as t h r o u g h

a

BRANDEIS

B R I E F . 1 6 1 1 In 1938 the C o u r t reversed course, holding that it would not pronounce an econ o m i c regulation unconstitutional unless there was a showing that it could not rest "upon some rational basis within the knowledge and experience o f the legislators," 4 0 5 a showing almost impossible to make. But at the same time the C o u r t began to speak o f the PREFERRED POSITION of FIRST AMENDMENT

rights, and al-

though it did not say that laws merely touching on freedom of expression or religion w o u l d be overruled, it did suggest that they w o u l d be examined more searchingly than other kinds o f legislation claimed to be unconstitutional. As the C o u r t said in a 1963 case, "Any system o f

PRESUMPTIONS P R I O R R E S T R A I N T o f e x p r e s s i o n c o m e s t o this

Court bearing a heavy presumption against its constitutional validity." 145 In 1944, in Korematsu v. United States, the Court declared that it would subject to STRICT SCRUTINY laws that classified on the basis of race. Since then laws characterized as invidiously discriminating on the basis of race, sex, national origin, and alienage have been pressed for greater justification than other types of laws. Likewise, under a conception

of SUBSTANTIVE

DUE

PROCESS,

presumed innocent of other crimes is constitutionally required "only if the circumstances created a genuine risk that the jury would conclude, from factors other than the State's evidence, that the defendant had committed other crimes." 616 See also: HARMLESS

PROOF,

TRIAL, FAIRNESS

PRESUMPTION

L I B E R T Y a n d PRIVACY to h i g h e r s t a n d a r d s

final j u d g m e n t ;

or

justification than other laws, leading to the inescapable conclusion that although the Court may begin by presuming laws constitutional, it does not presume that they must all meet the same burden of justification. also:

CAROLENE

PRODUCTS

FOUR; CONSTITUTIONAL ANCE

OF;

INVIDIOUS

AVOID-

DISCRIMINATION;

TIONAL BASIS OR RELATIONSHIP

PRESUMPTION

FOOTNOTE

QUESTIONS,

RA-

TEST.

OF I N N O C E N C E

T h e pre-

sumption of innocence has deep roots in the COMMON LAW. As commonly understood, the presumption means that the burden is on the government to prove at trial that the ACCUSED is guilty; the accused has no burden to prove innocence. In 1979 the Supreme Court said that the presumption of innocence is required by DUE PROCESS and requires the judge or jury "to judge an accused's guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody or from other matters not introduced as proof at trial." 175 The presumption of innocence obviously does not preclude the state from taking a suspect into custody or even, the Supreme Court has ruled, from holding the suspect in PREVENTIVE

DETENTION

pending

OF;

FORFEITURE;

REASONABLE

DOUBT;

OF.

the

Court has held laws interfering with people's

See

BURDEN

ERROR;

trial.2059

The Supreme Court has held that at trial the presumption of innocence bars the state from keeping a defendant in prison clothing, since "the constant reminder of the accused's condition" in identifiable attire might unfairly affect a juror's judgment about the defendants guilt. 721 But the presumption of innocence "disappears," the Court said, "once the defendant has been convicted fairly in the guilt phase of the trial." 616 During the sentencing phase, an instruction to the jury that a defendant is to be

OF

REGULARITY,

proof, burden

see:

of

PRESUMPTIONS Much of the legal system operates by presumptions; because one fact can be more easily proven than another, the provable fact is presumed to demonstrate the existence of the less easily proven fact. A simple example is contained in drinking age laws. The law presumes that people under a certain age cannot hold their liquor. A prosecutor need show only that the person the bartender served was younger than the legal drinking age. The prosecutor need not show that the underage drinker was an irresponsible drinker, and the bartender may not defend by showing that the person he served really could hold her liquor. The Court has held that statutory presumptions—the legislatures declaration that a prosecutor may prove an element of a crime by proving some other fact with which it is closely connected—are consistent with DUE PROCESS as long as it can "be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." In so saying the Court upset a conviction obtained when the jury was permitted to infer knowledge that marijuana was unlawfully imported from proof that the defendant possessed it. 1 3 0 0 What constitutes a strong enough connection between provable and presumed fact cannot be summed up in a formula. For example, the Court upheld an inference that a moonshiner was "carrying on" or helping to carry on the illegal manufacture of liquor simply because he was found on the site of an illegal still, 833 but it struck down the presumption that a person found at the site had possession, custody, or control of the still. 2022 To convict someone of the more serious charge of controlling the still, the prosecutors must actually prove the fact. Similarly, the Court distinguished between presumptions of knowledge concerning

371

372

PRETRIAL

DISCLOSURE

the importation of heroin and cocaine, upholding a presumption that a possessor of heroin knew it was imported but rejecting the same presumption for cocaine, since much cocaine is processed domestically.2385 The Court also upheld presumptions that the possessor of recently stolen goods knew they were stolen since he could not satisfactorily explain how he obtained them156 and that a person who failed to return a rental car intended to steal it.394 On the other hand, the state may not mandate a presumption that a person intends the ordinary consequences of his voluntary acts because the state might then be relieved of its burden of proving each element of the crime.2073 Presumptions are important ingredients in civil cases as well, and the Court has judged them by a due process standard of essential fairness that varies with the importance of the interest at stake. Presumptions that deal with economic and business relationships will be upheld as long as they are reasonable and do not absolutely foreclose the person against whom they are invoked from proving his case. 142 When important constitutional interests are at stake, however, the Court will look more closely into whether the presumption is arbitrary and whether the defendant has a fair chance to present a defense against it. For example, the unfitness of natural parents to retain custody of their children may not be presumed by making generalizations about the parents' behavior; instead, the parents must be shown to be actually unfit in the circumstances.2077 On the other hand, in 1989 the Court upheld a California presumption that the child born to a married couple was sired by the husband. The law refused to permit the trial court to be swayed by blood tests showing a probability of 98.07 percent that someone else was the father. 1527 See

also:

PRESUMPTION,

IRREBUTTABLE;

PROOF, BURDEN OF. PRETRIAL

DISCLOSURE,

order; prejudicial

PREVENTIVE

see:

gag

publicity

DETENTION

Preventive de-

tention is the locking up of people suspected of being dangerous and likely to commit harmful criminal acts. Stated that starkly, preventive detention is undoubtedly unconstitutional, since people may be deprived of their LIBERTY only after committing criminal acts, except for those

who are mentally deranged and thus subject to commitment to mental institutions. The government rarely has enacted a general policy of imprisoning dangerous people, although in the Internal Security Act of 1950, Congress did provide for preventive detention of people likely to engage in espionage or sabotage. The provision was repealed in 1971 without being tested. However, since people arrested are often jailed before being prosecuted, the question has arisen to what degree dangerous defendants may be kept in jail before trial. Read literally, the Bail Clause of the EIGHTH

AMENDMENT

might

seem to require that every person held in jail be offered the opportunity to make bail, since the clause says that "excessive bail shall not be required." In 1951 the Court observed that the "right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . [Otherwise] the PRESUMPTION OF INNOCENCE, secured only after

centuries of struggle, would lose its meaning." 2227 Nevertheless, the Court concluded in 1952 that the Eighth Amendment does not require that bail be set in every instance, but that the courts may not set excessively high bail in cases specified by the legislature as requiring bail.401 Still, the consensus seemed to be that bail could be denied only to prevent a suspect from fleeing the jurisdiction to avoid standing trial at all or from interfering with a potential witness or juror. In 1987, in United States v. Salerno, the Court upheld the federal Bail Reform Act of 1984, permitting people accused of certain violent federal crimes to be held in jail without bail upon a showing that there is no other way to ensure the safety of the community. The Court said that this kind of pretrial detention is not "punishment for dangerous individuals" but a means of "preventing danger to the community!,] . . . a legitimate regulatory goal." The Court justified its conclusion by noting that (1) the act applies only to the most dangerous types of crimes, (2) the detainee is entitled to a prompt hearing at which the government must convince the judge by "clear and convincing evidence" that there is no other way to ensure the community's safety, (3) the length of detention is limited by the requirements of the Speedy Trial Act that the trial itself begin promptly, and (4) the detainee must be housed separately from convicted defendants.

PRIOR RESTRAINT In 1997 the Court upheld a law permitting state authorities to civilly commit "sexual predators" on a showing of both "mental abnormality" and potential danger. 1205 See also: BAIL AND FINES; PAROLE; AND

PROBATION;

CIVIL

COMMITMENT;

PUNISHMENT,

CRUEL

UNUSUAL.

PREVIOUS CONDITION

OF

SERVITUDE

S e c t i o n 1 o f the F I F T E E N T H A M E N D M E N T p r o -

hibits the United States or any state from denying or abridging the right to vote "on account of race, color, or previous condition of servitude." The phrase refers to SLAVERY, abolished four years earlier under the THIRTEENTH AMEND-

istrative official to limit prices, but the Court also approved a novel limitation on an affected person's right to appeal a price or rent ceiling. Only

the

EMERGENCY

COURT

OF

APPEALS

could hear challenges to the price administrator's decisions, and the Court agreed that Congress could strip the federal DISTRICT COURTS of the power to hear this kind of case. 1 3 5 5 Moreover, said the Court, Congress could constitutionally bar a defendant accused of violating a rent order from arguing at trial that it was unlawful, since the only permissible means of challenging an order was to file an independent suit in the Emergency Court. 2 6 0 6 See also: EMERGENCY POWERS; RENT CONTROL.

MENT.

P R I C E A D V E R T I S I N G , see: speech PRICE

AND

WAGE

commercial

CONTROLS

the a s c e n d a n c y o f E C O N O M I C D U E

During PROCESS,

the Supreme Court struck down many state and federal policies designed to boost wages and control prices, although it had upheld some price controls under an emergency theory of the WAR POWER203 and federal railroad rate regulation, even of intrastate rates, under Congress's COMMERCE

POWER.1090

In

1934

the

Court

began to back away from its stern refusal to recognize broad constitutional authority in the legislatures to deal with economic problems by constructing both floors for and ceilings on prices and wages. Like any other form of regulation, the Court said in Nebbia v. New York, price control "is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt." 1 6 5 2 In 1937 the Court upheld minimum wage laws. 2506 Just how sweeping a power the Court finally conceded to the legislatures was shown in the World War II price control cases. In early 1942 Congress enacted the Emergency Price Control Act, establishing the federal Office of Price Administration and empowering it to fix maximum prices and rents that were "generally fair and equitable." In 1944, in Yakus v. United States, the Court upheld the law, despite a lone dissent by Justice Owen J. Roberts, who argued that the decision effectively overruled the DELEGATION DOCTRINE set forth only nine years earlier in the S I C K C H I C K E N C A S E . 1

Not

only did it uphold the raw power of an admin-

P R I E S T - P E N I T E N T P R I V I L E G E , see: evidentiary privileges PRIMARY right to PRINCIPAL officers

ELECTIONS,

see:

voting,

O F F I C E R S , see: o f f i c e

and

P R I O R R E S T R A I N T In the sixteenth century the British press could publish only if licensed to do so. The government could thereby control the press by censoring what it disapproved before publication. The freedom from licensing was what William Blackstone meant in the 1760s when he said in his famous Commentaries on the Law of England that FREEDOM OF THE PRESS "consists in laying no previous restraints upon publication." Today FREEDOM OF SPEECH and the press are understood far more broadly, but the Court regards prior restraints as constitutionally more objectionable than many other forms of government interference with freedom of expression. The Court's first major pronouncement came in 1931 in Near v. Minnesota, when it overturned a state law permitting the courts to "abate"—that is, close down—as a public nuisance any "malicious, scandalous and defamatory newspaper or other periodical." The law had been used to enjoin the publishers of a Minneapolis newspaper that carried inflammatory articles linking the police chief and other public officials to local gangsters. The INJUNCTION was against any future publication of such articles. A 5-4 majority held that the Minnesota law constituted a prior restraint, and therefore

373

374

PRIOR

RESTRAINT

violated the FIRST AMENDMENT, because to avoid prosecution thereafter the publishers would have to either go out of business or in essence submit articles to the court for clearance or risk punishment for CONTEMPT. Said Chief Justice Charles Evans Hughes, "This is the essence of censorship." Not prior restraint but "subsequent punishment for such abuses as may exist is the appropriate remedy," he said. However, in the intervening sixty years the Court has considerably narrowed the possibility of subsequent punishments as well. The Near decision left open the possibility of restraining the press in "exceptional cases": "a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." That these circumstances are narrow indeed was demonstrated forty years later when a 6-3

majority

in

the

PENTAGON

PAPERS

CASE 1686 refused to permit the lower courts even to consider an injunction against the New York limes and the Washington Post for publishing excerpts from a secret history of the Vietnam War, despite the government's claim that publication would endanger national security, lead to soldiers' deaths, and prolong the war. The strong constitutional presumption against prior restraints is not limited to publications that deal with public officials or pressing political issues. The Court has overturned an injunction against a community organization's distribution of literature attacking a real estate broker for block-busting activities, 1768 a GAG ORDER against publication of an accused person's confession before trial, 165 '' and a ban on the placing of "for sale" and "sold" signs on a person's front lawn. 1345 The rule against prior restraints is central to decisions involving a municipal PERMIT SYSTEM, through which a mayor, police chief, or licensing agency exercises uncontrolled discretion to decide who may hold a public meeting or distribute literature in public places. 1379 Likewise, an EX PARTE INJUNCTION against a protest meeting was held to constitute an unconstitutional prior restraint.407 In 1988 the Court struck down an ordinance giving a mayor complete discretion to decide annually whether to renew a license to place news racks on city sidewalks. 1273 Despite its broad condemnation of prior restraints, the Court has repeatedly held that one type of publication, obscene writings and films, may be restrained beforehand. Because OBSCEN-

ITY AND PORNOGRAPHY are not constitutionally

protected, the government need not wait until they are circulated to punish their purveyors.2348 But the doctrine of no prior restraints has had a significant impact on the means by which the government may restrain such publications through censorship boards. In 1965 the Court struck down a Maryland licensing scheme that essentially put the burden on the movie exhibitor to prove that a work was nonobjectionable and that specified no time limit within which a court had to review a decision against issuing a license. The Court held that the censor, not the exhibitor, must bear the burden of proving obscenity; that only a court, not an administrative agency, may issue a final order against exhibition; and that the decision to issue a license or to go to court to seek an order against the film must be undertaken within a very brief period.811 Fifty days is too long, especially when the law imposes no require ment that the courts decide promptly.2302 The Court has applied these principles to a variety of circumstances, striking down, because it provided no "rigorous procedural safeguards," a Chattanooga, Tennessee, ordinance that permitted a city auditorium board to refuse to license a production of the musical Hair 2205 and a Dallas licensing ordinance for sexually oriented businesses because the licensor had an unlimited time in which to decide whether or not to issue the license.829 On the other hand, the FORFEITURE of business assets, including theaters, bookstores, and books and films, of a dealer in "adult entertainment" convicted on seventeen counts of obscenity, is not subject to a claim of unconstitutional prior restraint; nor need the government first prove that each of the films and books is obscene before seizing them. The Court held that the forfeiture was not a prior restraint, since the defendant remains "perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials; he just cannot finance these enterprises with assets derived from his prior racketeering offenses."40 For the dissenters, Justice Anthony M. Kennedy insisted that the forfeiture was a prior restraint of the nonobscene materials forfeited, because they were seized and destroyed without any HEARING having been held on whether they were illegal, and that, regardless of the label, the risk that all of a person's publications could be forfeited because one publication might be found obscene has a strong chilling effect on speech.

PRISONERS' RIGHTS A different issue has arisen in connection with demonstrations and PICKETING in front of abortion clinics. Reacting to the "in your face" tactics of certain "pro-life" abortion protest groups, several courts have issued detailed injunctions specifying where on the streets and near clinic entrances protestors may stand and how they may interact with patients and others entering and leaving the clinics. In 1994 the Court held that such injunctions are not prior restraints if they are content neutral, are aimed at the prior unlawful conduct of the protestors, and leave open alternative channels of communication. 1412 See abo:

ADULT

BLACKLISTING;

BOOKSTORES

AND

THEATERS;

SOLICITATION.

PRISON,

PICKETING

picketing

of

OF,

P R I S O N S E N T E N C E , see:

see:

jail,

sentencing

P R I S O N E R S ' R I G H T S In 1871 the Virginia Supreme Court declared that a prisoner has no constitutional rights but is "for the time being the slave of the state."* As overblown as the statement may have been in theory, it perhaps approached truth in practice. Today, however, although the constitutional rights of prisoners are relatively restricted, the Court has said that "[t]here is no iron curtain drawn between the Constitution and the prisons of this country." 2 5 7 9 The justices have said repeatedly that the courts should defer to the judgment of prison officials in making and enforcing prison routines and discipline. 565 For example, prisoners have no FOURTH AMENDMENT right to be free of unreasonable SEARCH AND SEIZURE, so prison authorities may conduct shakedown searches for weapons and drugs whenever they please. 1 0 9 5 Prisoners have no constitutional right to be incarcerated in a particular prison. Prison officials have absolute discretion to order a prisoner transferred, without any sort of HEARING, to another prison, either within the state 1 5 0 8 or in another state,' 7 5 7 even though the new prison has worse conditions. The Court also overturned decisions of lower courts ordering an end to "double-celling"—putting two prisoners in a cell designated for one—because the practice is not overly harsh in a world of limited resources and "cannot be said to be cruel and unusual under contemporary standards." 1 7 5 ' 1 9 7 7

On the other hand, the EIGHTH AMENDMENT'S ban on cruel and unusual punishment prohibits prison authorities from maintaining conditions that "involve the wanton and unnecessary infliction of p a i n . " " 1 3 In 1978 the Court upheld a lower court's conclusion that the Arkansas prison system as a whole was "a dark and evil world completely alien to the free world"—including mass starvation, sadistic discipline, ruthless overcrowding in punitive isolation cells, sickening working conditions, and toleration of vicious attacks by prisoners on each other, including murder. The decade-long litigation finally ended when the Court sustained an order prohibiting prison authorities from sending anyone into an isolation cell for longer than thirty days. Arkansas prison officials did not even bother to appeal other parts of the lower court's order, agreeing that the other conditions were constitutionally repulsive." 1 3 In a 1992 case two Louisiana state penitentiary security officers placed a prisoner in handcuffs and shackles, and while one held him the other punched him in the mouth, eyes, chest, and stomach. A prison supervisor who watched the beating told the others "not to have too much fun." T h e prisoner suffered minor bruises and swelling, loosened teeth, and a cracked dental plate. T h e court of appeals held that the prisoner had suffered no Eighth Amendment violation because he could not show "significant" injury resulting "directly and only from the use of force that was clearly excessive to the need." Although the appeals court agreed that the force the guards used was objectively unreasonable (because no force at all was called for), that the conduct was excessive, and that it inflicted wanton pain, it held that because the prisoner's injuries were "minor," requiring no medical attention, there was no constitutional violation. The Supreme Court reversed, holding that "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . whether or not significant injury is evident." 1 0 9 3 Although "not every malevolent touch by a prison guard gives rise to a federal cause of action," force that is more than minimal may. It is cruel and unusual deliberately to ignore a prisoner's current 720 and even potential medical needs; for example, a prisoner may challenge a continuing exposure to second-hand smoke. To prevail at trial, a prisoner must show not only that the scientific evidence establishes

37S

376

PRIVACY the likelihood of serious future harm to his health but also two additional elements: (i) that prison officials "are deliberately indifferent to his plight" and (2) that "society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate."' 030 Even though prisoners' rights may be diminished by the needs of the prison, DUE PROCESS prohibits arbitrary discipline unrelated to institutional requirements. For example, prison regulations may not deny inmates the right to marry.2384 A prisoner may not be deprived of credit for good behavior without notice of the violation with which he is being charged and an opportunity to defend against it, including the right to call witnesses and present documentary evidence, but not the right to confront or crossexamine adverse witnesses.2579 Somewhat contradictorily, the Court has held that the state may deny good-time credits on the basis of quite meager evidence2278 and that despite the right to a hearing the prisoner is not entitled to be represented by a lawyer.166 Hearings required for other types of deprivation can be quite "skeletal." For example, a prisoner may be sent to solitary confinement with only a very informal opportunity to rebut the charges1058 (and without the opportunity to call witnesses to rebut evidence presented by the authorities2072), and no hearing at all is required for denial of parole938 or commutation of sentence.519 Prisoners are not constitutionally entitled to lawyers to pursue discretionary appeals, 915,1621 but they do have a constitutional right of access to courts to contest their convictions, including a reasonable right of access to adequate1330 law libraries2621 or to consult with someone trained in law.239 Although prison authorities may transfer an inmate at will to another penal institution, they do not have an unrestricted right to transfer a prisoner to a mental institution. The inmate must be given the opportunity to demonstrate at a trial-type hearing that he is not suffering from the mental illness that the law requires as a condition for transfer.2448 Prisoners also have a constitutional interest in not being forced to take antipsychotic drugs, but the hearing need not be adversary and may be held before independent medical professionals to determine whether the prisoner is suffering from a mental

condition for which the drugs would be effective.2478 Prisoners have F I R S T A M E N D M E N T rights consistent with the need for institutional order, but a regulation may restrict FREEDOM OF REL I G I O N a n d F R E E D O M O F S P E E C H " i f it is r e a -

sonably related to legitimate penological interests." So a prison may prohibit inmates from corresponding with each other2384 and limit visits and correspondence by outsiders.1912, 2081 But the prison may not grant religious privileges to one denomination and deny them to another.534' 565 There is an equal protection right not to be segregated by race, though that right can be overcome on a showing that institutional security and discipline make racial segregation necessary.1307 Prisoners have a right against guards' unauthorized and intentional taking of their property, although the remedy need be only the right to file a civil lawsuit for the value of the property.1095 But there is no due process right to a remedy if prison officials are merely negligent in depriving a prisoner of life, liberty, or property, though the state at its discretion may grant prisoners a right to file a civil suit against the state for such losses.584, 589 See also: CONSTITUTIONAL ASSISTANCE

OF; COURTS,

PROTECTION SURGERY,

TORTS; ACCESS

COUNSEL, TO;

OF THE LAWS; MEDICATION FORCED;

PUNISHMENT,

PROCESS

CRUEL AND

THAT

IS

EQUAL AND DUE;

UNUSUAL.

P R I V A C Y The Supreme Courts idea of privacy is one of the oddest conceptions in all constitutional law, although the Constitution nowhere uses the word itself. The one provision that does deal with privacy, the F O U R T H A M E N D M E N T , prohibits the government from engaging in "unreasonable searches and seizures," but the Court has inexplicably concluded, for example, that people do not have a "reasonable expectation of privacy" in the telephone numbers they dial, and therefore police need not obtain a SEARCH W A R R A N T in asking the telephone company to record those numbers.2179 A vastly different conception of privacy—personal autonomy to act in ways unconstrained by government intrusion—is nowhere mentioned in the Constitution, yet the Court has blessed ABORTION, for example, as a privacy interest partly beyond the power of government to control.

PRIVACY In constitutional law, privacy has three independent strands: (i) the government's interest in the private, secret, and intimate details of a person's life; (z) the government's interest in protecting people from invasions of privacy by news media and other individuals; and (3) the individual's interest in personal autonomy. 1. The first strand is largely discussed under SEARCH AND SEIZURE headings as well as under INVESTIGATORY

POWERS

OF

LEGISLA-

T U R E a n d F R E E D O M OF A S S O C I A T I O N . It a l s o

concerns compilations of information about an individual's personal life. In 1977 the Court declined to see any constitutional difficulty in a New York law requiring doctors to supply and the state to maintain in a central computer file the names and addresses of all patients receiving prescriptions for hazardous but legal drugs, including amphetamines and opium derivatives. Patients sued to bar the data bank from listing their names, charging that their vulnerability to being identified invaded a constitutional "zone of privacy." Observing that the law prohibited disclosing patients' identities, Justice John Paul Stevens said for a unanimous Court that the data bank does not, on its face, "pose a sufficiently grievous threat" to an individual's interest "in avoiding disclosure of personal matters" or "in independence in making certain kinds of important decisions." 2512 2. Beginning about a century ago, and sparked by a famous article co-authored by Louis D. Brandeis,* states began to recognize a CAUSE OF ACTION against invasions of privacy by the press. Privacy invasion laws take different forms. Some are limited to the right not to have one's picture used to advertise products without consent; others more broadly protect against the publication of private facts about oneself. But following its decision in the libel case, New York Times v. Sullivan, the Court extended its logic to the privacy arena, holding that under the FIRST AMENDMENT nondefamatory factual inaccuracies in a news story about a person's involvement in a matter of serious public interest may not be the basis for a DAMAGES award, 2346 at least if the reporter acted without actual MALICE.386 Whether this principle applies only to PUBLIC FIGURES AND OFFI-

CIALS or more broadly to anyone caught up in a public event remains open to question. But the Court has held that the state may not permit a rape victim to recover damages when a television station reported her name, having as-

certained her identity from public court records and open court proceedings; 549 nor may a sexual assault victim recover damages from a newspaper for publishing her name, obtained from a press release issued by the sheriff's department. 789 However, a federal district judge has no First Amendment right to disclose information lawfully obtained that a suspect's phones had been wiretapped when a law prohibited disclosure to those who might impede the wiretap. 26 Said Chief Justice William H. Rehnquist for a unanimous Court, "Government officials in sensitive confidential positions may have special duties of nondisclosure." The Court has been little more patient with claims that a person's privacy has been invaded by subjection to unwanted and offensive information. In 1952 the Court upheld a decision of a District of Columbia agency permitting radios on municipal buses, despite the argument that the music and news would invade the privacy of the CAPTIVE AUDIENCE of riders.' 919 In 1969, in Cohen v. California, the Court rejected a claim that a person wearing a vulgarity on the back of his jacket in a Los Angeles County courthouse could be convicted for BREACH OF THE PEACE. To the argu-

ment that the vulgar word would disturb the tranquility of passersby, the Court said that onlookers could simply avert their eyes. Similarly, the Court struck down a New York Public Service Commission order to a private utility company to refrain from enclosing leaflets discussing controversial topics with customers' utility bills. Again the Court rejected the rationale that the state could spare the sensibilities of customers who might not want to read what the utility wrote. 522 On the same grounds, the Court invalidated a federal ban on the mailing of unsolicited contraception advertisements.227 However, the Court did uphold, in the name of privacy, a federal law permitting the recipient of unsolicited sexually oriented literature to have the postal service force the mailer to remove the recipients name from its mailing list.2039 And despite a general right to engage in peaceful PICKETING, the Court upheld a municipal ordinance barring "focused picketing" that targeted a particular person's residence.816 3. The third and most paradoxical strand of the privacy doctrine has provoked the greatest controversy, largely because the term "privacy" is a misnomer for what is really being protected. In Griswold v. Connecticut in 1965, the Court struck down the state's anticontraception law. In this major SUBSTANTIVE DUE PROCESS ruling,

377

378

P R I V A C Y E X P E C T A T I O N S IN A U T O M O B I L E S Justice William O. Douglas held that the law, which prohibited the use of CONTRACEPTION even by married couples, "concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." The zone of privacy is an aspect of the LIBERTY protected by the DUE PROCESS Clauses of the FIFTH a n d FOURTEENTH AMENDMENTS. T h e

interest protected in Griswold was, in a sense, privacy, since the immediate concern was the fear of police intrusion into the intimacy of the marital bedroom, but the decision was in fact much broader. In striking down a law against the use of contraceptives, the Court was really declaring a right to personal autonomy over one's body and a liberty to act in certain ways, which became abundantly clear when in Roe v. Wade the Court recognized a constitutional right to abortion and in other decisions developed a general right to procreation. In the name of privacy the Court also upheld the right to possess and read obscene materials in the privacy of one's home, 2 2 3 4 even though there is no right to buy 2 3 8 9 or mail 1 9 6 2 obscenity. Although these cases seemed to add up to a general constitutional right to SEXUAL FREEDOM, the Court has not gone quite that far, as it demonstrated in 1986 in upholding a state ban on homosexual relations. 243 If these cases were really about privacy, the Court would not have let the state dictate what consenting adults can in fact do in the privacy of their homes. See also: FAMILIES; SCENITY

AND PORNOGRAPHY;

INDECENT LIC

SPEECH;

MORALS;

SONAL;

FREEDOM OF BELIEF; PENUMBRA

PUBLICITY,

REPRODUCTIVE

OB-

OFFENSIVE

AND

THEORY;

PUB-

RIGHT

TO

PER-

RIGHTS.

P R I V A C Y E X P E C T A T I O N IN A U T O M O B I L E S , see: s e a r c h a n d s e i z u r e : a u t o mobiles PRIVATE P R O P E R T Y , see: e m i n e n t d o main; just compensation; property; t a k i n g of p r o p e r t y P R I V A T E R I G H T O F A C T I O N Ordinarily, a person who is harmed when someone violates the law may sue the lawbreaker. But that is not a constitutional requirement, and the law does not always permit such suits. T h e question arises frequently when Congress or a federal adminis-

trative agency creates legal duties without specifically stating who may sue for their violation. For example, the Federal Trade Commission Act prohibits businesses from engaging in deceptive acts or practices, but only the Federal Trade Commission may sue to enforce the act. A deceived consumer has no private right of action against the lawbreaker. In 1964 the Supreme Court began to liberally infer private rights of actions in federal statutes. 1 1 4 4 But in 1979 the Court retrenched, saying it would infer private rights to sue only when Congress had fairly clearly manifested such an intent. 2 3 6 3 , 2 2 8 1 T h e Court has occasionally inferred a direct right to sue by those who have been injured by unconstitutional actions of government officials; this is the doctrine of CONSTITUTIONAL TORTS.

When a private right of action is implied, all "appropriate remedies" are permissible unless Congress expressly says otherwise. T h e Court upheld a private suit for money DAMAGES against a Georgia county school system for failing to take action against a high school teacher and coach who subjected a female student to a continuing course of sexual harassment in violation of federal law, even though the damage remedy was not specified in the law. 807 See also: ADMINISTRATIVE REACRATIC SUIT;

GOVERNMENT;

AGENCIES AND BUIMMUNITY

FROM

STANDING.

PRIVATE R I G H T - P U B L I C RIGHT DIST I N C T I O N T h e private right-public right distinction is the Supreme Court's arcane attempt to explain how administrative agencies may constitutionally adjudicate legal disputes. T h e Constitution seems to say that CASES OR CONTROVERSIES must be decided by courts that conform to the requirements of Art. Ill, such as life tenure for judges. But Congress has frequently empowered administrative courts—those that do not conform to Art. I l l — t o resolve legal controversies. T h e Court has upheld the power of administrative agencies to decide workers' compensation claims 5 6 3 but has rejected the power of a BANKRUPTCY COURT to hear a claim involving breach of contract. 1 7 2 0 T h e difference, according to a plurality opinion in 1982, is that workers' compensation claims are public rights created by Congress, whereas breach of contract claims are private rights created by state law. An Article I adminis-

PRIVILEGES A N D trative court may be assigned to adjudicate public rights but not private rights. See also: ADMINISTRATIVE REAUCRATIC COURTS;

ARTICLE THE

III

POWER

OF

TION;

JURISDICTIONAL

TIONAL

AGENCIES AND BU-

GOVERNMENT; UNITED

ARTICLE

COURTS;

I

JUDICIAL

STATES;

JURISDIC-

AND

CONSTITU-

FACTS.

PRIVATE S C H O O L S , RIGHT TO

ATTEND

In 1928 the Supreme Court struck down an Oregon law requiring all children between eight and sixteen years of age to attend a public school. The Court held that in barring parents from sending their children to private schools the law violates SUBSTANTIVE DUE PROCESS by

"unreasonably interfer[ing] with the LIBERTY of parents and guardians to direct the upbringing and education of children under their control." 1 8 6 4 PRIVILEGE AGAINST SELF-INCRIMINAT I O N , see: s e l f - i n c r i m i n a t i o n P R I V I L E G E VS. R I G H T , see: ilege distinction PRIVILEGED

FROM

ARREST,

right-priv-

see:

im-

m u n i t y , m e m b e r s of C o n g r e s s PRIVILEGES,

see:

leges; reporter's

evidentiary

privi-

privilege

P R I V I L E G E S A N D I M M U N I T I E S Article IV-§z[i] says that the "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Sometimes known as the Comity Clause, this murky language has four possible meanings: (1) Congress must treat everyone equally, (2) every state must treat its own citizens equally, 1 4 9 6 (3) citizens carry the citizenship rights of their own state when they go to another state, 626 or (4) a state may not favor its own citizens by discriminating against nonresidents who come within its borders. T h e last view is the one that has s t u c k . 1 8 ' 3 This clause, the Supreme Court said in 1948, "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." 2 3 5 7 (The clause encompasses the rights of citizens, not corporations' 4 3 or other business entities. 1 8 1 3 , 1 0 3 7 ) T h e clause does not say

IMMUNITIES

what rights a state must guarantee to its own citizens; 257 it simply says that a state may not deny fundamental rights to citizens from other states if it grants them to its own. In the leading pronouncement on what was fundamental, Justice Bushrod Washington, in a case he heard while riding circuit and not in the Supreme Court, said in 1823 that these rights include "protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety[,]. . . [t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise . . . and an exemption from higher taxes or impositions than are paid by the other citizens of the state." 5 3 7 Justice Washington denied that the clause prohibited the states from enacting GAME LAWS to preserve the natural resources of a state, and the Supreme Court followed his lead until the late 1970s, when the protectionist position was overthrown under the DORMANT COMMERCE CLAUSE theory.1099

The Court has looked to the Privileges and Immunities Clause in several modern cases to strike down legislation discriminating between residents and nonresidents in matters of fundamental right. In 1973 the Supreme Court invalidated a law prohibiting a non-Georgian from obtaining an ABORTION in Georgia because the state could not prove that the law would conserve scarce public hospital resources. 639 An Alaska law that preferred residents to nonresidents for work on the oil pipelines was struck down because the state could not demonstrate that nonresident pipeline workers were a "peculiar source of evil" or that the law was closely tailored to deal with it. 1 0 6 0 Nonresidents may be taxed on the income they make within the state, but they may not be denied exemptions allowed to state residents. 2369 Holding that the right to practice law is a fundamental right, the Court has voided state rules prohibiting nonresidents from being admitted to the bar 2 2 7 9 , 2 2 8 0 ' 1 5 4 and blocked a city from limiting a certain percentage of city construction jobs to city residents, at least in the absence of proof that grave economic problems of the inner city would be corrected by the hiring rule. 2400 However, not every discrimination touches on a fundamental right. T h e Court upheld a Montana elk hunting tax that was higher for nonresidents than for residents. Whatever rights may be fundamental,

379

380

PROBABLE

CAUSE

said Justice Harry Blackmun, "elk hunting by nonresidents in Montana is not one of them." 1 3 2 And some discriminations can be justified. For example, nonresidents doing business in the state644 or driving on the state highways 1055 can be sued by serving a summons on a state official even though residents must be served directly. A second and related "Privileges or Immunities" Clause in the FOURTEENTH AMENDMENT says that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." However, five years after the Fourteenth Amendment was ratified, the Supreme Court killed the clause with a single blow. In the SLAUGHTER-HOUSE CASES,2168 a 5 - 4 majority

said that the clause refers only to privileges of national, not state, citizenship. These rights, as the Court later listed them, are very narrow, including, for example, the right to travel across the country, to petition Congress, and to vote in national elections. 2390 But as Justice Stephen J. Field noted in a stinging dissent, the Court made the clause a "vain and idle enactment," since the Constitution already protected those rights against state intrusion. Justice Hugo L. Black's view eighty years later was that the Privileges or Immunities Clause was intended to make the first eight amendments to the Constitution applicable to the states. Black's view has considerable cogency, but only once has this clause had any constitutional effect: in 1948 the Court struck down a law prohibiting a native-born minor from having his parent, a Japanese resident alien who was ineligible to become a citizen, purchase property in his name. 1777 (On one earlier occasion the Court had used the clause to invalidate a law, but it overruled itself five years later. 4 9 2 , 1 4 1 0 )t See also: IMMUNITY TION

FROM SUIT;

INCORPORA-

DOCTRINE.

PROBABLE

CAUSE

The

FOURTH

AMEND-

MENT says that neither an arrest warrant nor a SEARCH WARRANT may be issued except on a showing of "probable cause." In essence, a judge may not issue a warrant unless the police have adequate grounds for believing that a person has committed the crime for which they are seeking to arrest him 1 0 4 5 or that the places they wish to search contain specific items connected to the crime. 1009 In many situations, police may proceed without a warrant, but even so they still

need probable cause to arrest, search, or seize possessions.424 Without it, any resulting evidence will be excluded from trial, with one significant exception: if a warrant is ultimately found to be defective because the police lacked probable cause in obtaining it, the evidence may be admitted if the police in good faith reasonably believed the warrant was valid. 1324 What constitutes probable cause depends, as the word suggests, on what, under the circumstances, the police may reasonably deduce from knowledge of certain facts. There is no formula for determining how probable the cause for suspicion must be: the Court has said that the rule calls for "more than bare suspicion" and "less than evidence which would justify . . . conviction." 275 In one case the Court said that the police did not have probable cause when an informant told them that a man named Toy who operated a laundry on a certain street had heroin, because many laundry operators named Toy worked on the block and the informer gave no reason to single out the man the police arrested.2584 A mere conclusion, in the absence of facts, cannot amount to probable cause,25 so that the statement that a person has a general criminal reputation (for example, is "known" as a gambler) cannot serve either as the basis for obtaining a warrant or arrest. 2222 Unlawfully seized evidence may not serve as the basis for probable cause. Therefore, the police may not arrest someone without probable cause, seize evidence that establishes the crime, and justify the arrest on the basis of the evidence. 2148 Likewise, probable cause does not arise on either the mere refusal of a person to identify himself 2 9 9 or his failure to claim innocence when found in the presence of a suspect whom the police do have probable cause to arrest.627 Probable cause to search or arrest must be particularized: a valid tip that drugs are being sold in a bar does not entitle the police, without further cause, to search everyone in the bar. 2612 Frequently at issue is the reliability of an informant's tip. The inquiry is twofold: whether the information itself is adequate to support a reasonable suspicion and whether the police have sufficient reason to believe that the informant himself is credible. A wholly anonymous tip without much detail is likely to be unreliable. At one time, the Court required the reliability of both the evidence and the informer to be independently shown, 25, 2 2 2 2 but in 1983 the Court replaced this "two-pronged" test

PROCEDURAL with a "totality of the circumstances" test. 1120 When the police are dealing with a known informant whose information has been highly accurate in the past, probable cause is clearly established. 1480 And when the informant provides details of sufficient quantity and quality about the criminal activity, there can be reasonable confidence that the information was reliable when at least part of the informant's story is corroborated before the arrest or search. 661 The Court has said that one particularly credible source of information is that stemming from observations of fellow police officers; no independent corroboration is necessary.2435 Probable cause is also established when an arrest is based on a request from police in other cities for assistance in arresting a suspect. 2523 Another factor contributing to probable cause is a "deliberately furtive gesture": if the police see a person holding a "highly suspicious object" and then attempting to hide it from their view, probable cause for arrest is established. 2148 In search cases probable cause frequently depends on the time that has elapsed between the commission of the crime and the moment of the search. The Court held that there was no probable cause to search a hotel for alcohol when the report of an illegal sale was three weeks old. 2128 When the police have arrested someone without first obtaining a warrant, the suspect is entitled to a prompt HEARING to determine whether the police had probable cause to make the arrest.865 But if the report on which the police relied turns out to be false, the resulting search or arrest is not unlawful if the police had probable cause to accept the report as truthful when they received it. 1045 See

also:

TIVITY;

CONSTITUTIONAL SEARCH

AND

TORTS; SEIZURE:

RETROACSTOP

AND

FRISK.

PROBATION There is no constitutional right to be placed on probation. But when S E N T E N C ING is deferred and a convicted defendant is put on probation, D U E PROCESS entitles him to a H E A R I N G and to be represented by counsel if he is charged with, and could go to jail for, violating probation. 1514 However, when sentence has already been imposed but suspended, and the violation of probation consists of a conviction for a second offense, no lawyer or hearing is necessary. But if the probationer denies having violated a condition of probation or if he can offer

DUE PROCESS

reasons that might justify continuing probation, a lawyer might be required.831 If he violates probation by failing to pay a fine that, through no fault of his own, he cannot pay, the sentencing court must consider alternatives to jail. 169 Since probation is a form of criminal punishment, the probation department may search the probationer's home without a SEARCH WARRANT and even without PROBABLE C A U S E , as long as there are reasonable grounds for believing that the home contains something violating the terms of probation. 1095 See also:

COUNSEL,

ASSISTANCE

OF;

PAROLE.

PROCEDURAL DUE PROCESS Procedural due process is the central constitutional idea that government must act according to regular and known procedures—that is, that government, no less than the citizenry, must be lawabiding. Both the F I F T H and F O U R T E E N T H AMENDMENTS command the federal government and the states to refrain from arbitrary and capricious behavior that might deprive a particular person of life, L I B E R T Y , or P R O P E R T Y . This requirement, enforced through procedural due process, prevents "unjustified or mistaken deprivations" and promotes "participation and dialogue by affected individuals in the decisionmaking process." 1437 D U E PROCESS in general contains a substantive as well as a procedural component. The Court has said, for instance, that the state may never incarcerate a person who has done no wrong and poses no danger to himself or to others. 1731 Not even the most scrupulous procedure will justify the government's doing so. By contrast, procedural A ue process entitles you to a day in court (or a HEARING before some official tribunal) to argue that you should not be dealt with in a certain way or that you deserve a remedy for harm already done, but it does not guarantee you a positive outcome. Indeed, even when your case is a sure loser, you are still entitled to be heard. Procedural due process is not just about any procedures but about fair ones, designed to lead to an impartial and just resolution of the controversy. A court that decided cases by tossing a coin would clearly be violating procedural due process, no matter how much the government publicizes the coin tossing approach or how rigorously the government adheres to it. Because fairness depends on circumstances, procedural

381

382

P R O C E D U R A L R I G H T S OF C R I M I N A L

DEFENDANTS

due process is a flexible concept ranging f r o m

CRIMINAL DEFENDANTS;

the stringent requirements o f an adversary hear-

OF; RES JUDICATA; STANDING; STATE ACTION;

PROOF, STANDARD

ing in criminal prosecutions to the highly infor-

TRIAL, RIGHT TO.

mal procedures permitted when a public school principal decides to suspend a student for mak-

PROCEDURAL

ing trouble in the playground. B u t in all cases

DEFENDANTS

the two chief requirements are NOTICE o f the

RIGHTS—the

claim and an o p p o r t u n i t y to be h e a r d . 2 3 9 0

EIGHTH

RIGHTS

OF

CRIMINAL

Four articles of the BILL OF

FOURTH,

FIFTH,

AMENDMENTS—and

SIXTH, the

and

FOUR-

T h e government need not o f f e r a due process

TEENTH AMENDMENT provide criminal defen-

hearing whenever it acts, and legislatures are not

dants with a significant battery o f procedural

b o u n d to observe procedural due process. As the

rights unlike those o f any other criminal justice

Supreme

system in the world. Taken together, the rights

Court

observed

in

1915,

general

statutes, such as tax laws, may "affect the person

spelled out in these various constitutional pro-

or property of individuals, sometimes to the

visions establish an ACCUSATORIAL SYSTEM of

point o f ruin, without giving them a chance to

justice, which puts the burden of proving guilt

be h e a r d . " 1 9 0 Likewise, an administrative agency

on the government. O f t e n when the government

promulgating a general regulation is not consti-

fails to observe these constitutional limitations,

tutionally required to a f f o r d a hearing unless the

the defendant's conviction will be reversed, and

regulation is really an order directed at a par-

sometimes the defendant will even be let go.

ticular person or small g r o u p o f p e o p l e . 7 8 7 , 1 3 6 2

Critics o f police procedures divide into

Fair procedures are due, rather, only when

philosophical

camps.

One,

two

following Justice

the government action threatens a particular

Oliver Wendell Holmes, w o u l d saddle the gov-

person's life, liberty, or property. C r i m i n a l pros-

ernment with the burden o f its official lawless-

ecutions obviously implicate these interests, be-

ness, in particular in the f o r m of the EXCLU-

cause the penalty could be death (deprivation o f

SIONARY RULE. " W e have to choose," Holmes

life), imprisonment (deprivation o f liberty), or a

said in 1928, "and for m y part I think it is a lesser

fine (deprivation o f property). Procedural fair-

evil that some criminals should escape than that

ness in prosecutions is a large issue because the

the

defendant's interests are protected not only by

part."1761

the D u e Process Clause but also by m a n y provi-

Cardozo, when he was chief judge of the N e w

sions

in

the

FOURTH,

Fifth,

SIXTH,

Government On

should

play

an

ignoble

the other hand, Benjamin

N.

and

York C o u r t of Appeals in 1926, said that the ex-

EIGHTH AMENDMENTS. Procedural due process

clusionary rule means that "the criminal is to go

is as significant in a civil courtroom as in a crim-

free because the constable has blundered."*

inal trial. So, f o r example, a state may not authorize

an administrative

official to

garnish

wages or attach property unless there has first been a judicial h e a r i n g . 2 1 8 7 In recent years, a third category o f procedural due process concerns has arisen in connection with the termination of government benefits or the imposition o f burdens by the government in a noncriminal trial setting. T h e procedural question in these cases is twofold: has the government harmed or interfered with a liberty or property interest, and if so, what procedures must it a f f o r d the complaining party? T h e s e issues are dealt with under the separate headings PROCESS RIGHTS and PROCESS THAT IS DUE.

Until the 1960s the issue of the criminal defendant's procedural rights excited relatively little public notice because the Constitution had a small role to play in local police operations, although the C o u r t occasionally denounced some state trials as so fundamentally unfair as to amount to a violation of DUE PROCESS, independent of the specific guarantees in the Bill o f Rights. But when the C o u r t began to "incorporate"

the m a n y

procedural

rights

into

the

Fourteenth A m e n d m e n t , it stirred a lively public debate that continues unabated. Critics o f the Court's solicitude for criminal defendants should consider that in a very real sense the constitutional restraints on police and judicial actions protect the innocent far more than the guilty. A

See also: ADMINISTRATIVE AGENCIES AND BU-

moment's thought about the criminal justice

REAUCRATIC GOVERNMENT;

systems in communist nations should suggest

HEARINGS;

EVIDENCE;

ATTACHMENT; OBLIGATIONS

ADMINISTRATIVE

GARNISHMENT

GOVERNMENT,

AND

that the central evil was the pervasive power of

AFFIRMATIVE

the government to lock up its enemies without

OF; PROCEDURAL RIGHTS OF

the rudiments of a fair trial as we understand the

PROCESS RIGHTS term. T h e procedural rights guaranteed in the

cedures k n o w n to those w h o deal with them. All

U.S.

courts have rules o f procedure, setting forth

Constitution

ensure that

the

innocent,

whether or not social malcontents and enemies

such things as timetables, the means o f invoking

of the state, will not likely even be brought to

JURISDICTION, and permissible types o f pretrial

trial, m u c h less convicted, f o r crimes they d i d

discovery. For the federal courts, the task o f de-

not c o m m i t or for conduct that is not criminal.

vising these rules is within the LEGISLATIVE POWER, but as long ago as 1815 C h i e f Justice

See

ACCUSATION,

also:

FICITY

OF;

REST

ADDICTION;

AND ARREST

BILL

OF

OF

OF;

PENALTY; INGS;

EX POST PRESS-FAIR

FUNDAMENTAL BY ASSOCIATION;

JURY

ASSISTANCE AND

RULE;

RANDA

V. ARIZONA;

DONS,

REPRIEVES,

AMNESTIES; PLEA

PREJUDICIAL NOCENCE; ERS'

RIGHTS;

DUE

OF; PROOF,

JURY;

indigents access to courts in certain kinds of cases. 2 2 5 ,

1465

But strict adherence to seemingly

arbitrary deadlines does not violate due process.

COUNSEL;

INDE-

fendant, convicted by a federal jury on d r u g

IMPARTIALITY

OF;

charges, has no due process right to have the

UNA-

trial court consider or grant a post-verdict m o -

SIZE;

JURY

tion o f acquittal when the motion was filed one

MI-

day beyond the time limit set by the Federal

PAR-

Rules o f C r i m i n a l Procedure. 3 9 8 T h e defendant

AND

asserted that he was legally innocent, that there

TESTIMONY;

was insufficient evidence to sustain the convic-

RULES; ENTRY;

THE

DETENTION; CAUSE;

FIFTH;

tion, and that the trial court has "inherent su-

OF IN-

pervisory power" to ensure that justice is done.

PRISON-

T h e C o u r t disagreed, holding that because the

PROBATION;

Federal Rules o f C r i m i n a l Procedure explicitly

BURDEN

set deadlines, the trial court had no jurisdiction

PROOF,

PROPORTIONALITY

after the deadline, and to suppose that the w o r k -

OF SENTENCE;

PROSECUTORIAL

DISCRETION;

ing o f a meaningful deadline amounted to a due

PROSECUTORIAL

MISCONDUCT;

PUNISHMENT,

process violation w o u l d be "to fashion a new due

CRIMINAL

CIVIL;

CRUEL

process right out of thin air," which the C o u r t

AND TORY

AND

UNUSUAL; LAWS;

WARRANT; ING;

RIGHT TIES

AND

DOUBT;

REGULA-

SEIZURE;

SEARCH

SELF-INCRIMINATION; THE

RIGHT

PLACE TO;

OF;

TRIAL,

DOCTRINE;

SENTENC-

CONSCIENCE

DOCTRINE;

TRANSCRIPTS, TRIAL,

PUNISHMENT,

REASONABLE SEARCH

SHOCK

PLATTER

OF;

In 1996 the C o u r t ruled 7 - 2 that a criminal de-

RULE;

PRESUMPTION

PROCESS;

STANDARD

example, they may not by imposing fees deny

INSANITY

PLEADING

PROBABLE

PROCEDURAL

do not o f f e n d "some principle o f justice so

DOCTRINE;

PERJURED

PREVENTIVE

the

rooted in the traditions and conscience o f our

COMMUTATIONS,

PUBLICITY;

upheld

vise their o w n procedural rules as long as they

FROM

NO-KNOCK

BARGAINING;

the C o u r t

TO;

IMMUNITY

MIRANDA

PAROLE;

VETO, and

people as to be ranked as f u n d a m e n t a l . " 2 1 8 9 For

McNABB-MALLORY

EVIDENCE

ISLATIVE

judges' power to do s o . 2 1 4 7 States are free to de-

EN-

HABEAS

JURY

LINEUP;

a committee o f federal judges, subject to a LEG-

POISONOUS

GRAND

OF;

JURORS,

ASSIS-

PLEA;

OF

EVIDENCE

DISCRIMINATION;

MERE

OF THE

ERROR;

originally promulgated in 1938, were devised by

FREE

INCORPORATION

JURY

NIMITY;

ACCESS

EXTRADITION;

GUILTY

rules. 2 4 8 9 T h e Federal Rules of C i v i l Procedure,

TEST; DEATH

TESTING;

FAIRNESS;

HARMLESS

TOXICATION, FENSE;

DRUG

FRUIT

TREE;

INEFFECTIVE

to the courts themselves the power to write the

FINES;

PROCEED-

EVIDENCE,

CLAUSES;

PROSECUTION;

LAW;

IN CRIMINAL

GUILT

CORPUS;

AR-

COUNSEL,

JEOPARDY;

TRIAL;

J o h n Marshall held that Congress may delegate

AND

COMMON

EVIDENCE;

FACTO

BAIL

BLOOD;

DISCOVERY

DOUBLE

SPECI-

BREATHALYZER

CRIMES,

TRAPMENT;

AND

ARRAIGNMENT;

WARRANT;

ATTAINDER;

CORRUPTION TANCE

NOTICE

TEST;

SUPPRESSION TO; TRIAL, TRIAL, SPEEDY;

VAGUENESS;

SILVER HEARING;

FAIRNESS

PUBLIC;

OF; TRIAL,

TWO-SOVEREIGNVICTIM

IMPACT

STATEMENTS.

declined to do. See also: COURTS,

CIVIL

ACCESS

PROCEEDINGS;

PROCEEDINGS; PROCEDURAL PROCESS;

PROCESS

ERIE DUE

STATUTE

TO; DISCOVERY

DISCOVERY RULE;

RIGHTS

IN

CRIMINAL

PRESUMPTIONS;

PROCESS; OF

IN

SERVICE

OF

LIMITATION.

In

a

CONCURRING

OPINION, Justice Felix Frankfurter once wrote that PROCEDURAL DUE PROCESS consists of the

PROCEDURAL

RULES

OF

COURTS

"right to be heard before being c o n d e m n e d [by

Central to the idea o f DUE PROCESS is that gov-

the government] to suffer grievous loss o f any

ernmental institutions must operate under pro-

kind."1186 The

thought

is as

philosophically

383

384

PROCESS

RIGHTS

noble as it is constitutionally wrong. Though it is certainly true that a person may not be convicted of a crime without a trial, historically without asking permission of a court the government has deprived people of many benefits whose loss would indeed be felt as "grievous"—for example, the loss of a driver's license, a government job, or a welfare check. But the license, job, and check were considered privileges to which no one is constitutionally entitled. Besides government actions, many governmental omissions or failures to act might lead some people to conclude that they had suffered grievous losses—perhaps the U.S. Postal Service's failure to pick the "right" likeness of Elvis Presley for a postage stamp. In a simpler age of few government benefits, the issue might seem academic, but in a "welfare state" era, when the government is the dispenser of largess without which our lives would be wholly transformed, how to ascertain what is a constitutionally protected interest is a large problem. The Due Process Clauses themselves refer to life, LIBERTY, and PROPERTY. In a celebrated article in 1964 Charles Reich, then a professor at Yale Law School, suggested that many forms of government benefits, which he termed ENTITLEMENTS, were embraced by the terms "life," "liberty," and "property" and should therefore receive at least enough constitutional recognition to require the government to hold a HEARING before terminating them.* In 1970, in Goldberg v. Kelly, the Supreme Court, referring to Reich's article, for the first time said that one type of government benefit—welfare payments—was a form of property that could not be terminated without a "due process hearing." The case was heralded as a "due process revolution," but in fact, with some perhaps surprising exceptions, the Court has fairly narrowly limited the kinds of interests included within the terms "life," "liberty," and "property." Only those acts or omissions through which the government intends to infringe life, liberty, or property are constitutional deprivations. If a prison guard unintentionally but negligently injures a prisoner, no constitutional right has been infringed, and the state need provide the prisoner neither hearing nor remedy, not even the remedy of a lawsuit for DAMAGES after the fact. 584 ' 589 Whether an interest is constitutionally protected depends not on how important it is to the individual but on its nature: is it a liberty or property interest?221 The "right" Elvis stamp may

be very important to some people, but they have neither a liberty nor a property interest in the government's choosing correctly. Liberty interests have been held to be implicated when, in addition to physical restraint, such as imprisonment, the government seeks to commit an adult to a mental institution14 or to permit a parent to commit a child over the child's objection; 1797 withdraw early-release credits from a prisoner; 2579 revoke parole 1600 or probation; 831 transfer a prisoner involuntarily to a mental institution;2448 administer antipsychotic drugs to a prisoner;2478 spank a schoolchild; 1126 fire an employee because he or she has exercised a FIRST AMENDMENT right to express an opinion; 1846 fire an employee in such a way as to seriously foreclose future employment opportunities—for example, by announcing publicly the person's incompetence;477 terminate the rights of natural parents to custody of their children; 2077 suspend or revoke a driver's license; 173 deport a resident alien; 1693 and suspend a student from school. 912 A considerable debate has raged over whether a liberty interest is infringed when the government libels an individual. The Court seems to have said that when a defamation triggers some other injury, such as the loss of a job or a legal incapacity to buy liquor, then a liberty interest is involved; otherwise it is not. 1 8 1 2 The process rights due prisoners are skeletal. For example, no liberty interest is involved when a prison refuses to permit inmates to receive visitors, as long as no state law specifically grants the right. 1225 In 1983 the Court had suggested that a court could infer from general prison regulations that the state had created a liberty interest not independently grounded in the Due Process Clause. 1058 In 1995 the Court retreated from this position in holding that a prison does not automatically invade a prisoner's liberty interest whenever it imposes a punitive restraint on him for violating a disciplinary code. 2072 A sharply divided Court denied the prisoner's claim that he had a process right to call a witness to rebut the state's evidence that sent him to solitary confinement for thirty days. Chief Justice William H. Rehnquist said that the 1983 case had produced two adverse consequences: it made states wary of codifying "prison management procedures in the interest of uniform treatment" because they might then be interpreted as giving prisoners full-scale procedural rights to contest punishment for every infraction; and it caused courts to become in-

P R O C E S S T H A T IS D U E volved in the day-to-day management of prisoners in ruling on whether a particular regulation did or did not create a liberty interest that in turn would trigger a procedural due process right. States may create liberty interests, Rehnquist said, but "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force [for example, arbitrary transfer to a mental hospital], nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." The dissenters noted that disciplinary confinement can pose significant hardships, by depriving prisoners of privileges for potentially protracted periods and by diminishing prospects for parole. The Court determines the meaning of liberty directly from the Constitution. In determining what constitutes a property interest, however, the Court has generally supposed that courts must look to see whether Congress or the states have created some sort of entitlement. Again, the issue is troublesome only in connection with government jobs or benefits, since ordinary possessions—land, homes, automobiles, and other personalty—are well understood to be included within the term "property." There does appear to be an understanding of what is a constitutionally protected interest: a government benefit, such as a payment or a job, is a property interest only if the law creating it establishes criteria that the claimant appears to meet for continuing to receive the benefit. 893, 196 So, for example, a teacher hired on a oneyear contract expressly stating that it confers no tenure has no constitutionally protected entitlement to renewal, 221 but when a teacher has worked many years on contracts constantly renewed so that there is a "de facto" tenure system, he or she has a property interest in further renewals. 1846 Among other types of property interests, the Court has discerned welfare benefits,893 certifications and licenses to run a business 1726 and to practice a profession, 2043 and government jobs that expressly grant some form of security.96 But if the government job is declared to be "at the will and pleasure" of the supervising authority, then there is no property interest. 196 In declaring these various interests to be aspects of liberty or property, the Court has declared nothing more than that some form of

procedural due process is necessary to take it away. See also: BITTER RIGHTS;

WITH THE SWEET;

PROCESS THAT IS DUE;

RIGHT-PRIVILEGE TUTIONAL

DISTINCTION;

CONDITIONS;

VESTED

PRISONERS' REPUTATION; UNCONSTIRIGHTS.

PROCESS THAT IS DUE The nature and timing of the HEARING required when the government has invaded or threatens to invade an interest protected by DUE PROCESS is a constitutional question. The courts are not bound by state or federal law declaring the procedures to be used unless they protect the individual more than the constitutional minimum. Even though the states or Congress may define a PROPERTY interest, they may not limit the procedural safeguards in terminating it. 472 For example, when the state hires an employee to work at the "will" of his supervisor, the employee has no property interest in the job and can be fired without explanation. But if the state hires someone on a contract that says he or she may be fired only for cause, the state may not then refuse to give the reasons for the firing or forbid anyone to contest it. When PROCESS RIGHTS are affected, the appropriate procedure must be determined. Despite the profusion of cases involving government benefits, the Court has been relatively stingy in requiring the full blown adversary trial necessary in criminal prosecutions or ordinary civil litigation. Rather, the Court has employed a BALANCING test, weighing three factors: the private interest affected by what the government does; the risk that a particular procedure will erroneously deprive the individual of his interest, and the value of any additional procedures in minimizing that risk; and the government's interest, including the administrative burden and cost, in having to comply with additional procedures. 1460 Among the procedural questions weighed in this balance are whether a hearing must be held before the deprivation or may be held afterward; and whether the claimant is entitled to confront and cross-examine witnesses, to be heard in person, 741 to be represented by a lawyer, and to prior NOTICE and discovery. Among the rights, benefits, or statuses that may not be terminated without a prior hearing are welfare benefits, 893 a natural parent's custody of children, 2077 and the prohibition against involuntary transfer of prison inmates to mental institutions. 2448 In these situations, the

385

386

P R O C E S S T H A T IS D U E administrative hearing must be full and formal, with advance notice; an opportunity to appear, present evidence, and make oral argument; a right to confront and cross-examine witnesses; full disclosure of the evidence; a right to an attorney; and a decision based on the evidence that states the reasons for its conclusions and is made by an impartial decision maker. In other cases, the hearing held before the deprivation may be quite informal. For example, to suspend a student from school for up to ten days a principal need only notify the student of the pending decision and give the student a chance to tell his story. 912 Suspension of a driver's license also requires a prerevocation hearing, but the procedures may be far less formal than when the state wishes to terminate welfare benefits. 173 In some instances, the government may dispense with the requirement of a hearing altogether, though not without some informal "procedure." For example, the Court said that the only process due a public medical school student on the verge of being dismissed was notice to her of her academic difficulties and a fair set of oral and written examinations administered by the faculty from which they could conclude that she had failed. 212 A government utility must devise procedures, but not necessarily a hearing, to determine whether a customer's service may rightly be terminated. 1515 In many other types of cases the Court has held that the only process due is an after-the-fact or postdeprivation hearing—for example, in withdrawals of Social Security disability and welfare benefits, 1460 public employment dismissals,96 suspension of public employees without pay when they are accused of a crime, 875 seizure of ships thought to be carrying contraband,361 and posting of notices in connection with a federal mine inspection.2343 In still other situations, the Court has even determined that procedural due process is satisfied without any special hearing, before or after the loss, as long as the aggrieved person may file an ordinary civil suit for DAMAGES in court—for example, when a prisoner alleges that his property was intentionally destroyed by a guard 1095 and when a student is spanked in school. 1126 But a state may not foreclose all possibility of relief for an unlawful action. In a rare situation the Court unanimously declared that Georgia's refusal to refund taxes illegally collected from a federal pensioner was an unconstitutional "bait and switch" that denied the

pensioner an appropriate remedy. 1960 The suit was one of many that followed in the wake of the Court's 1989 holding in Davis v. Michigan Dept. of Treasury that states may not tax federal pension benefits if they do not also tax state pension benefits, and its 1990 holding in McKesson Corp. v. Division of Alcoholic Beverages that such unconstitutionally collected taxes must be refunded. The Georgia state court first denied a refund, despite a state law guaranteeing a refund of illegally assessed taxes, on the ground that the refund law did not apply when the law originally raising the tax was unconstitutional. The state courts denied a refund a second time after the Supreme Court had remanded the case for reconsideration in light of the 1990 tax case. The Georgia Supreme Court then denied relief a third time, explaining that Georgia law offered a "predeprivation" proceeding under which the taxpayer could have withheld the contested tax and challenged its validity. Since leaving the remedy for unconstitutional tax collection exclusively to a predeprivation hearing has been held to be constitutional, the pensioner's failure to withhold payment of the tax and to avail himself of the procedure was fatal to his case, the Georgia court said. But, Justice Sandra Day O'Connor responded, although Georgia could offer an exclusive predeprivation hearing, an exclusive postdeprivation hearing, or a combination of the two, what it could not do "is to reconfigure its scheme, unfairly, in midcourse." In effect, Georgia had first tempted the taxpayer to pay, promising a postdeprivation refund proceeding if the tax proved to be unlawfully collected. But in then ruling that that law did not apply, the Georgia courts in effect tricked the taxpayer. The state court took away a "clear and certain" postdeprivation remedy, leaving the pensioner with no remedy at all, since the time to avail himself of the predeprivation remedy of withholding the tax was no longer practically available. The state violates due process when it first holds out that the predeprivation remedy is nonexclusive and then later declares, when it is too late, that that predeprivation remedy really was exclusive.! See also: ACCESS

TO COURTS;

TANCE OF; GARNISHMENT PROCEDURAL DANTS; TO.

RIGHTS

SEVENTH

COUNSEL,

AND

OF CRIMINAL

AMENDMENT;

ASSIS-

ATTACHMENT; TRIAL,

DEFENRIGHT

PROOF, B U R D E N O F PROCLAMATION OF NEUTRALITY, neutrality

see:

proclamation

PROCREATION, rights

see:

reproductive PROHIBITION

P R O D U C T I O N , see: i n t e r s t a t e merce; manufacturing PROFANITY,

see:

sive and indecent PROFESSIONAL

blasphemy;

com-

offen-

speech

S P O R T S , see:

PROFESSIONALS,

baseball

ADVERTISING

BY

Until the 1970s the Court had never indicated any constitutional objection to state regulation of advertising for professional services. Court rules in every state, however, forbade advertising by lawyers, and the semiofficial codes of ethics of doctors and other professionals also barred them from using commercial messages to attract patients or clients. In 1955 the Court expressly approved an Oklahoma law barring eye care professionals from advertising the sale of lenses and frames. 2 5 5 1 But in 1976 the Court struck down a Virginia law prohibiting pharmacists from advertising the prices of prescription drugs 2 4 4 6 and the following year voided an Arizona law against the advertising of "routine legal services." 1 6 3 Since then the Court has struck down other laws that prohibit professional advertising that is neither actually nor inherently misleading, 1 9 3 0 but it has upheld restrictions on the use of trade names by professionals—for example, Texas State Optometrists, or TSO—because they might mislead the public by suggesting that a doctor in one office works in another. 8 1 5 See also: COMMERCIAL SPEECH; CUPATIONAL

LICENSING;

PROHIBITION, erages

a prohibition is not a substitute for an appeal, and the courts issue them sparingly at their discretion in appropriate cases.

LAWYERS;

OC-

SOLICITATION.

see: i n t o x i c a t i n g

bev-

P R O H I B I T I O N , W R I T O F A writ of prohibition is an order from a higher court to stop hearing a case that lies beyond the lower court's JURISDICTION. Congress has granted the Supreme Court the power to issue writs of prohibition to both lower federal courts and state courts. T h e U.S. COURT OF APPEALS may issue the writ to U.S. DISTRICT COURTS. T h e writ of

OF

COMMERCE

The

COMMERCE POWER authorizes Congress to regulate commerce between the states. But may Congress prohibit the shipment of particular goods across state lines? The power to prohibit was debated for exactly one century, beginning in 1841, when Henry Clay warned that if Congress had this power, it could do away with the interstate slave trade by the simple expedient of outlawing the shipment of slaves from state to state. 956 Those who opposed the power saw lurking in it the means by which Congress could move beyond economic regulation and impose its moral vision on the country. Strict federalists believed that the authority to regulate morals was not an attribute of the national LEGISLATIVE POWER but was reserved to the states in the exercise of their POLICE POWER. But in 1903, in the Lottery Case,427 after two rearguments, the Court held 5 - 4 that Congress could ban the carrying of lottery tickets for sale or distribution from one state to another. Justice John Marshall Harlan found that nothing in the Constitution gives anyone the right to carry from one state to another "that which will harm the public morals." In 1913 the Court sustained the Mann Act, sometimes called the White Slave Act, prohibiting the transportation of a woman across state lines for prostitution or any other immoral purpose. 1 0 2 7 However, the Court drew the line in the Child Labor Case 984 in 1918, denying that Congress had the power to prohibit goods from shipping in INTERSTATE COMMERCE if produced by children under sixteen who were forced to work more than a specified number of hours or at certain times of the day. The Court said that the critical difference between child labor and the other forms of commerce was that the goods children produced were not themselves harmful. T h e Court overruled the Child Labor Case in 1941, expressly and definitively holding that Congress may prohibit whatever it pleases from being shipped in interstate commerce. 5 8 5 See also:

CHILD

POWER; TENTH

LABOR;

NATIONAL

POLICE

AMENDMENT.

P R O O F , B U R D E N O F In criminal trials, DUE PROCESS requires that the government prove

387

388

PROOF, S T A N D A R D OF the guilt o f the ACCUSED. 2 5 6 4 '

721

'

2073

T h e de-

over money, the plaintiff w o u l d have the burden

fendant need not prove innocence; indeed, the

o f proving that the defendant owed it, but the

defendant need o f f e r no p r o o f at all and is enti-

defendant w o u l d have the burden o f proving a

tled to an acquittal if the government fails to

claim that he had already paid.

c o m e forward with evidence establishing beyond a

REASONABLE

DOUBT

all

elements

of

the c r i m e — t h a t is, every fact required to show that

the

defendant

charged.1610,

990

committed

the

See also: PROOF, STANDARD OF; TRIAL, COMPETENCE TO

STAND.

crime

B u t this stringent burden

of

PROOF,

STANDARD

OF

T h e standard o f

proof does not mean that the government must

proof refers to the weight o f the evidence re-

prove the absence o f mitigating factors, for ex-

quired to rule in favor of one party at trial or an

ample, insanity or "extreme emotional distur-

administrative hearing. Just as in everyday life

bance" of the defendant. T h e state need not

people require different degrees of proof for dif-

prove the defendant sane; it may require the de-

ferent sorts o f actions, so different kinds o f legal

fendant, if he wishes to escape conviction, to

interests require higher or lower standards o f

bear the burden o f proving that he was insane

proof. For example, it doesn't take m u c h evi-

w h e n he committed the c r i m e . 1 8 1 1 Likewise, the

dence to persuade most people to bring an u m -

state may impose on the defendant the burden

brella in case of rain—perhaps the meteorolo-

o f proving i n c o m p e t e n c e . 1 5 0 9

gist's brief report on the morning n e w s — b u t it

Burdens can shift. For example, a K e n t u c k y "persistent felony o f f e n d e r " SENTENCING

law

increases sentences f o r repeat criminals but permits defendants to challenge the prior convictions on which the enhanced sentence rests. In one such challenge the defendant asserted that the state bore the burden o f proving that the GUILTY PLEA he had entered to an earlier charge was knowing and voluntary. T h e prosecutor introduced copies o f the previous convictions and a "plea of guilty" f o r m that the defendant had signed at the first trial, in w h i c h he acknowl-

takes considerably more proof to persuade most people to put snow chains on their tires. M o s t legal cases are w o n or lost by a "preponderance o f the evidence." In the Court's words, that standard "simply requires the trier o f fact to believe that the existence of a fact is more probable than its nonexistence before [he] may f i n d in favor o f the party w h o has the burden to persuade the [judge] of the fact's existence." 2 5 6 4 Congress and the states are generally free to set whatever standards they w i s h . 2 4 3 1 But in some instances the Constitution sets limits.

edged that he understood the charges and was

T h e highest standard of p r o o f — t h a t is, the

waiving various rights, but the records did not

highest degree o f probability—is constitution-

contain transcripts o f the trial proceedings. T h e

ally required in criminal prosecutions. B o t h fed-

C o u r t unanimously held that under these cir-

eral and state prosecutors must prove their cases

cumstances, the burden of p r o o f had shifted to

beyond a REASONABLE DOUBT; 2 5 6 4 every ele-

the defendant to show that the convictions were

ment o f the crime must be proved by that stan-

i n v a l i d . 1 8 0 0 T o require otherwise, said Justice

dard.1610

Sandra D a y O ' C o n n o r , w o u l d in effect permit a

A defendant may not be required to prove by

defendant to appeal a conviction years later,

"clear and convincing evidence" that he is in-

d o i n g damage to the deeply rooted "presump-

competent to stand trial; the lesser "preponder-

tion o f regularity" that attaches to a FINAL

ance of the evidence" standard is required. 5 3 3

JUDGMENT. Moreover, she said, the state is not

T h e risk o f an erroneous decision is higher if the

required to prove the validity o f the prior con-

defendant is put to the higher standard and "the

victions by "clear and convincing" evidence; the

consequences [for the defendant] . . . are dire,"

"preponderance o f evidence" standard is suffi-

whereas the consequences to the state if the de-

cient.

fendant is merely malingering are "modest." A t

In civil cases, the plaintiff has the burden o f

most the state must tolerate a delay; it can al-

proof, although the plaintiff's standard of proof

ways detain the defendant to detect malingering

is less than a prosecutor's; in most civil cases the

or to determine at a later date whether he has re-

burden is on the plaintiff to show that his case is

gained sufficient competence to stand trial.

more probable than not. However, the plaintiff

T h e "clear and convincing" standard is reproceedings 1 4

does not necessarily have the burden o f proof on

quired in CIVIL COMMITMENT

every issue in the trial; for example, in a dispute

and in proceedings to permanently terminate a

PROPERTY, A B A N D O N E D natural parent's custody of children. 2077 But a mother seeking support payments need not prove paternity of the father by anything more than preponderance of the evidence. 1996 In 1990, in Cruzan v. Director, Missouri Dept. of Health, the RIGHT TO DIE case, the Court held that a state may require proof by clear and convincing evidence that a person in a persistent vegetative state wished to die rather than be maintained on life support systems. Without such proof the state need not constitutionally accede to a parental request that the support be terminated. In a federal HABEAS CORPUS hearing, a prisoner fighting a death sentence is entitled to be resentenced only by showing "by clear and convincing evidence that but for constitutional error at his [original] sentencing hearing, no reasonable juror would have found him eligib l e f o r the DEATH P E N A L T Y . " 2 0 8 0 See also: PROOF, BURDEN OF; TAKING OF PROPERTY;

TRIAL, COMPETENCE

TO STAND.

PROPERTY The Constitution uses the word "property" four times. Article IV-§3[2] refers to property belonging to the United States and gives Congress the power to regulate and dispose of federal possessions. The JUST COMPENSATION

C l a u s e of the FIFTH

AMENDMENT

re-

quires that the government compensate owners for any property taken under the power of EMINENT

DOMAIN

or

otherwise.

The

DUE

PROCESS Clauses of both the Fifth and FOURTEENTH AMENDMENTS prohibit the federal government and the states from depriving any person of property without due process of law. But the Constitution is silent about what constitutes property. In a definition with which the Framers were conversant, Sir William Blackstone said that the "right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world." For Blackstone, property was that which a person could use to the complete exclusion of anyone else, "save only by the laws of the land." This last condition suggests a circularity that often infects constitutional considerations of property rights. For if owners may do as they please with their property, except to the extent that the law limits their right to do so, property appears to be wholly subject to the state. The Supreme Court has come close to this position in interpreting the Just Compensation Clause, holding in the main that only if an owner has

been wholly deprived of the use of property must the government compensate. A law or regulation that merely interferes with one aspect of someone's ownership or possession is not a TAKING OF P R O P E R T Y .

The meaning of property under the Due Process Clauses has varied. During the reign of ECONOMIC

DUE

PROCESS,

the

Court

con-

strued property to mean not merely a thing itself but the capacity of the thing to earn money. For example, states were not permitted to regulate the rates of businesses not AFFECTED WITH A PUBLIC INTEREST. But by the late 1930s the Court backed away from this interpretation, freeing government to regulate property as it chooses, short of depriving the owner of its use altogether. Beginning in the 1970s the Court took a renewed interest in the meaning of property as it tried to sort out what kinds of interests the states could deprive individuals of without affording them some sort of HEARING. In general, the Court has indicated that beyond the obvious—a person's rights to land and other real property and to tangible personal property, and certain rights to intangibles, such as corporate dividends that accrue from ownership of stock—a "property interest" is an interest recognized by law. If a state law or regulation gives someone an expectation to continue holding the interest—for example, a public job or a welfare benefit—then it is property that the state may not take away or terminate without giving the employee or beneficiary an opportunity to be heard, t See also: LIBERTY; THAT

IS

DUE;

PROCESS PUBLIC

RIGHTS;

PROCESS

PROPERTY;

VESTED

RIGHTS.

PROPERTY, A B A N D O N E D Most states have laws requiring property unclaimed for a long time to ESCHEAT (that is, to be turned over) to the state or to previous owners. The Supreme Court has upheld these laws, many of which give very little protection to people about to lose their property, against attacks that they violate the owners' DUE PROCESS rights. For example, New York was permitted to take life insurance proceeds if private beneficiaries failed within seven years to claim any money due, even though the life insurance company and the actual funds were located outside New York. 520 Likewise, states may seize unclaimed shares of a

389

390

PROPERTY Q U A L I F I C A T I O N S FOR VOTERS corporation and unpaid dividends, even though

schemes. For example, the C o u r t upheld against

the last owners lived out o f state and the divi-

a SEX DISCRIMINATION challenge a Florida law

dends were held out o f state. 2 2 2 9 T h e C o u r t has

granting a

also approved an Indiana law that returned to

emption to widows but not to w i d o w e r s . 1 2 0 1

their original owners interests in coal, oil, gas, or

T h e C o u r t also upheld an O h i o law exempting

other minerals if they had not been used in

nonresidents w h o store property in local ware-

five-hundred-dollar

property tax ex-

twenty years. T h e law required neither the state

houses f r o m a tax imposed on residents storing

nor the person about to regain the rights to no-

property there. 4 8 T h e C o u r t reasoned that the

tify those whose rights were about to e x p i r e . 2 3 1 2

state was permitted to attract out-of-state busi-

PROPERTY Q U A L I F I C A T I O N S FOR VOT-

tion was a rational means o f doing so. Property

ness to its warehouses and that the tax exempERS

From the very beginning o f nationhood,

most states imposed a property qualification on voters. O n l y white male adults w h o o w n e d a certain value o f land could vote in local, state, and even

federal elections.

Nothing

in

the

Constitution barred the states f r o m conditioning voting on ownership, nor did express language

in

change

the three C i v i l War the

constitutional

amendments

understanding.

However, in 1966 the C o u r t struck d o w n the POLL TAX and in so doing swept away property qualifications as well. T h e

Court

under the EQUAL PROTECTION

held

that

CLAUSE

the

states may not condition voting on "wealth or affluence or payment o f a fee" because "wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral p r o c e s s . " 1 0 0 1 Since then, the C o u r t has struck d o w n laws limiting voting in school elections to people w h o own property in the district or have children in the s c h o o l s , 1 2 5 7 as well as laws limiting to property owners the right to vote on referenda involving revenue b o n d s 4 6 2 and general obligation b o n d s . 1 8 6 0 However, states m a y use

taxes may be used as the basis for providing public education, even if the amounts provided differ a m o n g school districts because of the difference in property values between the districts. 2 0 6 5 But gross disparities in the taxes paid by residents o f the state can violate equal protection. In 1989 the C o u r t overturned a Pennsylvania practice o f taxing owners on assessments made at the time o f sale but failing to reappraise neighboring unsold property. 4 5 In an age o f inflation, the result was that purchasers o f property were being taxed at rates between eight and thirty-five times higher than those w h o had held their property for ten years. However, in 1992 in an 8 - 1 decision, the C o u r t turned aside an equal protection challenge to California's Proposition 13, a 1978 amendment to the state constitution under which the property tax on residences is set at 1 percent o f a home's value, and the state may not increase the tax by more than 2 percent each year. For residences acquired before 1978 the value o f the h o m e is set at the amount the tax authorities assessed in 1975. For residences acquired later, the value is basically the purchase price. T h e huge inflation in property values

property qualifications w h e n the impact of the

since 1 9 7 8

election will fall predominantly on the property

homes will be taxed m u c h more heavily than

owners. If, for example, an election is held to

comparable residences purchased earlier. T h e

decide whether to create local water storage

plaintiff, w h o purchased a home in 1988 f o r

districts 1 0 6 and to name their boards o f direc-

$ 1 7 0 , 0 0 0 , showed that she paid the same tax as

tors, 2 0 6 2 the state may allocate votes proportion-

the owner o f a $ 2 . 1 million M a l i b u beachfront

ate to the n u m b e r of acres o w n e d . 1 3 5

home and five times the tax on comparable

ensures

that

recently

purchased

homes on her street. Nevertheless, said Justice

See also: VOTING, RIGHT TO.

H a r r y A . B l a c k m u n , the California tax system does not violate the Equal Protection Clause be-

PROPERTY

TAX

States have broad but not

absolute constitutional

discretion

to

impose

cause it is not "palpably a r b i t r a r y . " 1 7 0 7 Court

upheld

California's justifications

The for

property taxes, but that power is limited b y the

Proposition 1 3 — t h a t it tended to preserve the

EQUAL

DUE

stability o f local neighborhoods by discouraging

PROCESS Clause of the FOURTEENTH AMEND-

frequent sales and that a new buyer has a lesser

PROTECTION

CLAUSE,

the

MENT, and the COMMERCE CLAUSE. U n d e r the

interest in avoiding higher taxes than does an

Equal Protection Clause the S u p r e m e C o u r t has

existing owner, w h o might be forced to sell in

conceded

order to pay a sharply increased tax. Dissenting,

the states considerable

leeway

in

granting exemptions in a variety o f property tax

PROPERTY T A X Justice John Paul Stevens said that "[i]t is irrational to treat similarly situated persons differently on the basis of the date they joined the class of property owners." Due process limitations on the power of states to tax property center on the issue of where the property is located. If the property, whether land or tangible personal property, is wholly located within the state, it may be taxed, even if the owner lives out of state.409 If the property is wholly out of state, the legislature may not tax it. 2399 The hard questions arise, usually in connection with business assets, when property occasionally moves through a state and when it is partly located in many states. For example, a state may not tax the value of ships owned by foreign corporations merely because they arrive in ports of the state. Only the state in which the business is incorporated may tax, at least if a ship is not regularly enough in one place for it to constitute its "tax home." 2208 On the other hand, a state may tax an airline's entire fleet, even though the planes are not continuously present in the state, if the state is their "home port" and the company maintains its headquarters there. 1723 When part of an out-ofstate business's property is regularly in a state, such as railroad cars that travel on tracks traversing the state, the state may tax the cars proportionately to the whole. 1869 Different methods of apportioning the property value are allowed," 8 3 , 9 3 0 but in every case it must be established that the property has sufficient connection with the taxing state. 1775 When the property moves, the Court assesses each case on its facts, holding in one instance that an airline could be taxed on the proportionate value of the planes that land in the state when the company makes eighteen scheduled stops per day. It presumably could not be taxed if its planes occasionally stopped in a state to refuel but not as a part of scheduled service. 261 A closely related issue is the power to tax intangible property: corporate securities, dividends, mortgages, bank deposits, and the like. In a sense taxability turns on location, since it is always debatable where an intangible essence, like a share of ownership in a foreign corporation, actually exists. The Court has given different answers in a number of cases that are difficult to reduce to a single generalization. For example, it has approved a state's taxing a mortgage on land within the state, even though the mortgage instrument was held by a nonresident

out of state. 2078 It has also upheld a tax on bank deposits owned personally by a resident, even though the bank was out of state and the funds derived from a business conducted entirely out of state.764 It struck down a tax on property held in trust in another state, the income of which was paid to a resident.285 But in a significant ruling that has endured, the Court in 1897 upheld state taxes on intangible property of corporations, including "all corporate franchises and all contracts, privileges, and goodwill of the concern." 10 This principle has permitted states to impose a proportionate tax on the total value of foreign companies doing business in the state. In another significant decision upholding state taxing authority, the Court sustained a North Dakota tax on the intangible property of the Cream of Wheat Company. Cream of Wheat was incorporated in North Dakota, but all its property, tangible and intangible, was located elsewhere. The company protested that upholding the tax would subject it to double taxation, since the state in which its property was located obviously could tax it as well. The Court retorted that the Fourteenth Amendment does not prohibit double taxation." 560 However, double taxation may be barred under the Commerce Clause. The due process question is whether the property has sufficient connection with the state. The interstate taxation question is whether a state property tax interferes with INTERSTATE COMMERCE. If it does, the Court will invalidate the tax even if the state has sufficient contacts with the property to tax it under due process. For example, a company may not be taxed by its incorporating state on all its property if most of it is rarely in the state and is subject to being taxed proportionately by other states. "Otherwise," the Court said, "there would be multiple taxation of interstate operations and the tax would have no relation to the opportunities, benefits, or protection which the taxing state gives those operations." 2230 A property tax exemption for charitable institutions has been held to violate the D O R M A N T C O M M E R C E C L A U S E because it "exclude[d] organizations operated principally for the benefit o f nonresidents" o f the state; "as a practical matter, the statute encourages affected entities to limit their out-of-state

clientele,

and

penalizes

the

principally nonresident customers o f businesses catering to a primarily interstate m a r k e t . " 3 8 5

391

392

P R O P O R T I O N A L I T Y OF S E N T E N C E See also: EDUCATION, PORT

CLAUSES;

RIGHT

ORIGINAL

TO;

IMPORT-EX-

PACKAGE

DOC-

TRINE; TAXATION OF INTERSTATE

COMMERCE;

WEALTH

DISCRIMINA-

CLASSIFICATION

AND

TION. PROPORTIONALITY

OF

SENTENCE

The idea that the punishment should fit the crime has a lineage as old as the MAGNA CARTA. A century ago Justice Stephen J. Field argued, in dissent, that the EIGHTH AMENDMENT condemns "all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged." 1 7 3 8 A majority accepted Field's view in 1910 in overturning a fifteen-year hard-labor sentence of a defendant convicted of falsifying minor public documents. The hard labor was to be served with chains on the ankles in a brutal Philippine prison. After release the convicted man was to be subjected to perpetual surveillance and a permanent loss of all civil and political rights. 2497 Until recently, most of the debate over proportionality centered on capital punishment. Although the DEATH PENALTY as such is not disproportionate when imposed on a murderer, the Court has ruled that capital punishment is unconstitutionally disproportionate when meted out for rape that did not lead to death 485 and for felony murders when the defendant himself neither intended that anyone be killed nor did the killing. 7 1 1 Most states permit the judge or jury to weigh the circumstances before imposing capital punishment. The Court has mandated certain procedural safeguards, so that some degree of proportionality is built into even the death penalty, but it has said that "comparative proportionality reviews" are not constitutionally required. Courts reviewing death penalty sentences need not assess whether a death sentence handed down in one case was proportionate to sentences handed

down

in other

murder

1922

cases. When the sentence is imprisonment or a monetary fine, the Court has been much less open to the claim that the punishment is disproportionate to the crime, although Justice Lewis F. Powell did suggest in a CONCURRING OPINION in 1986 in Bowers v. Hardwick that a long prison sentence for a "private, consensual act of sodomy" might well be cruel and unusual because disproportionate to the crime. Recently the Court has also held that the Excessive Fines

Clause requires some sort of proportionality test. 42, 1 1 8 The Court has declined to find recidivist statutes generally unconstitutional. Recidivist laws impose stiffer sentences on a person convicted of a felony if he has a record than on a person convicted of the identical crime for the first time. In 1980, in Rummel v. Estelle, the Court upheld, 5-4, a mandatory sentence of lifetime imprisonment for a Texas defendant convicted of obtaining $120.75 by false pretenses, a crime Texas regards as a felony because the amount obtained exceeded $50. He had been convicted twice before of similar felonies, the first time of fraudulently using a credit card to obtain groceries worth $80 and the second time of passing a forged check in the amount of $28.36. Justice William H. Rehnquist for the majority declined to view the sentence as disproportionate to the crime since society is entitled to determine how harsh a sentence is necessary to deter repeat offenders. In 1982 the Court similarly upheld a sentence of forty years for possession and distribution of nine ounces of marijuana valued at about two hundred dollars. 1 1 1 2 However, in 1983, in Solent v. Helm, a different 5-4 majority did invoke the principle of proportionality to strike down a lifetime prison sentence for a defendant who had been convicted of minor nonviolent crimes, including passing a bad check in the amount of $100. The difference in result hinged on the reality of the lifetime sentence. In Rummel the defendant was eligible for parole in twelve years. In Solem there was no possibility of parole, so the reality of a life sentence led the Court to reject the principle that proportionality can never apply to felony prison sentences. T h e criteria used for determining whether a sentence is disproportionate were "the gravity of the offense and the harshness of the penalty; the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions." In 1991 a new 5-4 majority upheld a mandatory lifetime prison sentence without possibility of parole for the crime of possessing 650 grams of cocaine. 999 In his majority opinion, Justice Antonin Scalia declared that the proportionality of a sentence should never be a constitutional consideration, but only Chief Justice Rehnquist agreed. The other seven justices said that even in noncapital cases, a sentence grossly disproportionate to the offense is unconstitutional.

PROSECUTORIAL DISCRETION See

also:

BAIL

AND

FINES;

FORFEITURE;

three years, to i d e n t i f y the d e f e n d a n t s ' race

a n d to explain h o w it d e c i d e d to prosecute Some those cases. T h e g o v e r n m e n t refused to c o m Thoughts on Interpreting the Constitution, p. 7.

PUNISHMENT,

CRUEL

AND

UNUSUAL;

ply w i t h the order, s u p p l y i n g an a f f i d a v i t exP R O S E C U T I O N , S E L E C T I V E , see: ecutorial

pros-

p l a i n i n g that the factors present in the case were consistent w i t h the J u s t i c e D e p a r t m e n t ' s

discretion

general criteria f o r p r o s e c u t i o n , i n c l u d i n g the PROSECUTORIAL

It

DISCRETION

has

a m o u n t o f cocaine, the n u m b e r o f sales o f

long been assumed that prosecutors have w i d e

drugs and

discretion to decide w h i c h cases to prosecute,

dence that w o u l d be used to c o n v i c t . T h e trial

firearms,

a n d the q u a n t i t y o f evi-

and the Supreme

generally

c o u r t dismissed the charges, and the federal

unreceptive to the claim that the prosecutor's o f -

appeals c o u r t a f f i r m e d , saying that the thresh-

fice violates the EQUAL PROTECTION CLAUSE

o l d facts were s u f f i c i e n t to t h r o w the burden

in selecting certain defendants or types o f crimes

o n t o the g o v e r n m e n t o f d i s p r o v i n g the d e f e n -

to prosecute: "unequal application" o f a law fair

dants' c l a i m . In an 8 - 1 decision the S u p r e m e

on its face is permissible "unless there is shown

Court

an element of intentional or purposeful discrim-

C h i e f J u s t i c e W i l l i a m H . R e h n q u i s t held that

i n a t i o n . " 2 1 8 8 T h u s the C o u r t upheld the govern-

it is the d e f e n d a n t s ' b u r d e n to present "clear

ment's policy o f prosecuting as draft evaders

e v i d e n c e " that a prosecutor has violated equal

Court

has been

o n l y those people w h o advised the Selective

reversed

and

reinstated

the

charges.

p r o t e c t i o n , n o t the government's burden

to

Dis-

prove that it has n o t . 9 5 T h a t evidence, in a race

cretion is necessary for several reasons: lack o f

case, " m u s t s h o w that similarly situated indi-

resources to prosecute every crime that is c o m -

viduals o f a d i f f e r e n t race were not

mitted, acts that by consensus are criminalized

c u t e d . " In other w o r d s , to prove an abuse o f

Service that they had failed to register.

2490

prose-

f o r symbolic value only (such as adultery), and

discretion a m o u n t i n g to a v i o l a t i o n o f equal

the need to take into account all the circum-

p r o t e c t i o n , it is not s u f f i c i e n t to s h o w that all

stances in particular cases. Prosecution might do

or most d e f e n d a n t s charged w i t h a particular

more damage than g o o d in some s i t u a t i o n s — f o r

c r i m e are o f one race; it is necessary to show

declines to press

that there are perpetrators o f other races o f the

charges, w h e n a grant o f i m m u n i t y w o u l d make

same types o f c r i m e w h o m the g o v e r n m e n t has

an o f f e n d e r into an i n f o r m a n t , and when the

declined to p r o s e c u t e . 2 8

example,

when

the victim

crime is m i n o r and the o f f e n d e r offers full restitution.

T h o u g h they have discretion,

prosecutors

m a y not act vindictively. For example, w h e n a

Nevertheless, selective p r o s e c u t i o n

"delib-

d e f e n d a n t after conviction has the right to re-

erately based u p o n an u n j u s t i f i a b l e standard

trial, the prosecutor m a y not retaliate " b y sub-

such as race, religion, or other arbitrary classi-

stituting a m o r e serious charge f o r the original

fication"1778

Equal

o n e , " since the k n o w l e d g e that the prosecutor

Protection C l a u s e , a l t h o u g h n o such case has

would

violate

the

c o u l d d o so w o u l d seriously deter the d e f e n -

ever reached the C o u r t . In 1 9 9 6 d e f e n d a n t s

dant f r o m exercising his legal rights. 2 0 0 B u t the

charged w i t h a d r u g and

prosecutor

firearms

conspiracy

s o u g h t to dismiss their i n d i c t m e n t s on

may

substitute

a more

serious

the

charge if the first trial has not yet been con-

g r o u n d that the federal prosecutors had tar-

vened and the d e f e n d a n t exercises a right to be

geted t h e m f o r p r o s e c u t i o n because they were

tried in a d i f f e r e n t c o u r t . 9 0 8 A n o t h e r possible

black. T h e y o f f e r e d as p r o o f an a f f i d a v i t pre-

attack on prosecutorial discretion stems f r o m

pared by a "paralegal specialist" w o r k i n g f o r

the long n o n e n f o r c e m e n t o f particular criminal

the O f f i c e o f the Federal Public D e f e n d e r that

laws. M a n y such laws lie d o r m a n t and are c o m -

s h o w e d that in every o n e o f the t w e n t y - f o u r

m o n l y u n d e r s t o o d to be " d e a d , " or in legal par-

c o m p a r a b l e cases closed by that o f f i c e in 1 9 9 1 ,

lance,

the d e f e n d a n t w a s black. O n the basis o f this

t h o u g h the legislature has not repealed them.

study, the d e f e n d a n t s s o u g h t to c o m p e l the

T h e question is whether a prosecutor m a y re-

g o v e r n m e n t to disclose statistics bearing

to

have

fallen

into

desuetude,

even

on

vive such a law by prosecuting a case under it.

similar cases, a n d the trial c o u r t ordered the

T h e C o u r t has said that the prosecutor m a y do

government

so because laws remain laws until repealed by

firearms

to

provide

a list

of

all

joint

a n d c o c a i n e cases d u r i n g the previous

the legislature. 6 3 4

393

394

PROSECUTORIAL MISCONDUCT See also: DOUBLE JEOPARDY; PROSECUTION;

RIGHTS,

IMMUNITY WAIVER

OF;

FROM SEN-

TENCING.

P R O S E C U T O R I A L M I S C O N D U C T Public prosecutors are bound by DUE PROCESS to observe certain standards of conduct in the prosecution of their cases. They may not knowingly present PERJURED TESTIMONY; nor may they suppress evidence favorable to the defendant when requested 258 or evidence that is obviously exculpatory, even if not requested. 27 Prosecutors are permitted to act tough in PLEA BARGAINING with the defendant. Although every state has rules governing out-of-court statements that would "have a substantial likelihood of materially prejudicing" a trial, prosecutors routinely hold press conferences but are almost never called to task, whereas now and then defense lawyers who talk about their clients are. 858 Both federal 2610 and state 1 1 2 4 prosecutors are immune from private damage suits for their misconduct. Although they may in theory be disciplined by state authorities, they rarely are.*

fense may "avoid further bombardment of their sensibilities simply by averting their eyes." Despite these pronouncements, there is no general principle that bars the state from outlawing acts that give merely psychic offense. Perhaps the most noteworthy example of the Court's reluctance to create a broad principle was its holding in Bowers v. Hardwick in 1986 that there is no constitutional bar to a state law criminalizing homosexual relations between consenting adults in the privacy of their homes. The 5-4 majority was unable to point to any concrete harm against which the state was legislating except a general sense that the conduct was "immoral," in other words, that it offended most people deeply. The Court has also sustained ordinances banning public displays of signs and other messages in the "esthetic interest" of avoiding "visual clutter." 465 The disparity between the Court's occasionally broad statements condemning laws against psychic harm and its deviant holdings stems in large part from the Court's (and everyone else's) inability to define "harm" in any general way.* See also:

See also: DAMAGES; PROCEEDINGS;

DISCOVERY

PROSECUTORIAL

IN

CRIMINAL

DISCRETION.

P R O S T I T U T I O N , see: n a t i o n a l p o l i c e p o w e r ; p r o h i b i t i o n of c o m m e r c e PROTECTION OF T H E LAWS, equal p r o t e c t i o n of the laws

see:

P S Y C H I C H A R M The Supreme Court has occasionally declared that under DUE PROCESS and FIRST AMENDMENT principles the state may not lock up or otherwise punish people simply because their appearance or behavior offends others. In holding in 1975 that the state may not "fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different," a unanimous Court said that "[o]ne might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty." 1 7 3 1 The Court expressed similar sentiments in striking down VAGRANCY laws 476 and a conviction for BREACH OF THE PEACE of a man wearing a vulgarity on the back of his jacket, 481 saying that those who take of-

DRESS

CODES;

MENTAL

PERSON AND PERSONHOOD;

DISTRESS;

PICKETING;

VACY; PUBLIC MORALS; SEXUAL

PRI-

FREEDOM.

P U B L I C A C C O M M O D A T I O N S A public accommodation is a privately owned restaurant, hotel, theater, or other establishment open to the public generally. In 1883, in the CIVIL RIGHTS CASES, 2160 the Supreme Court struck down a federal law that prohibited owners from engaging in RACIAL DISCRIMINATION in public accommodations. Congress enacted the law under its power to enforce the FOURTEENTH AMENDMENT, which prohibits the states from d e n y i n g EQUAL P R O T E C T I O N

OF T H E

LAWS.

But the Equal Protection Clause applies only to STATE ACTION, the Court ruled, not to private acts of discrimination; therefore, Congress had no authority to tell owners they could not discriminate. Ninety years later, in the Civil Rights Act of 1964, Congress tried a new approach, this time meeting success in the Court, by using its COMMERCE POWER to prohibit discrimination in public accommodations connected to INTERSTATE COMMERCE. The Court upheld the act's public accommodations provisions in two major cases, one involving an Atlanta hotel that catered to out-of-state travelers 1024 and the other, a local Birmingham restaurant that spent

PUBLIC EMPLOYMENT a considerable s u m on meat imported

from

u n a n i m o u s l y agreed that a teacher could not be fired f o r m a k i n g critical statements to her prin-

other s t a t e s . 1 2 1 0

cipal See abo: SEGREGATION

AND

INTEGRATION.

in

private. 8 8 4

In

1983

the C o u r t

dis-

tinguished protected speech about matters o f public concern f r o m unprotected speech about

PUBLIC CIAL and

ACTS,

RECORDS,

PROCEEDINGS,

see:

AND

JUDI-

matters o f concern only within the employee's

full

faith

office. In the particular case, an assistant district

credit

attorney in N e w Orleans was upset w h e n her boss, District Attorney H a r r y C o n n i c k , trans-

PUBLIC

B U I L D I N G S , see: p u b l i c

prop-

erty

ferred her to a new position. She circulated a questionnaire to various members o f the staff "concerning o f f i c e transfer policy, o f f i c e morale,

DEBT, see: d e b t of t h e

PUBLIC

United

States

the need f o r a grievance committee, the level o f confidence in supervisors, and whether employees felt pressured to w o r k in political

cam-

Justice

paigns." Fired for insubordination, she claimed

Oliver Wendell H o l m e s , then sitting on the

that the discharge was due solely to her circula-

Massachusetts S u p r e m e Judicial C o u r t , insisted

tion o f the survey, which involved matters o f

PUBLIC

In

EMPLOYMENT

1892

em-

public concern. In a 5 - 4 decision Justice Byron

ployees could be suspended simply because they

R . W h i t e disagreed, holding that the entire

w o r k e d f o r the federal or a state government:

episode "reflect[ed] one employee's dissatisfac-

that the constitutional

rights o f public

" T h e petitioner m a y have a constitutional right

tion with a transfer and an attempt to turn that

to talk politics," H o l m e s said, " b u t he has no

displeasure into a cause célèbre. . . . T h e First

constitutional

policeman."*

A m e n d m e n t does not require a public o f f i c e to

Holmes's position has not stood the test of time.

be run as a roundtable f o r employee complaints

right

to

be

a

In two major areas the C o u r t has declared that

over internal o f f i c e a f f a i r s . " 5 2 1 In a subsequent

the C o n s t i t u t i o n m a y not be ignored when an

case without a clear majority, a four-justice plu-

individual takes a government job. T h e FIRST

rality said that in the interests of "effectively

AMENDMENT shields many, though not all, as-

achieving its goals," the government may disci-

sociations and expressions o f opinions by gov-

pline an employee for unprotected disruptive

ernment workers. DUE PROCESS provides a lim-

speech and base its decision on what it reason-

ited

ably understood the employee to have said; it is

right

to

challenge

a

discharge

at

a

unnecessary for the government employer to

HEARING.

In a series o f decisions during the late 1950s and 1960s, the C o u r t narrowly limited the gove r n m e n t s authority to use a LOYALTY OATH as the basis for hiring or firing. In 1 9 7 2 it declared that individuals m a y not be refused government jobs because o f h o w they have exercised their constitutional r i g h t s .

1846

T h i s principle does not

hold an evidentiary hearing to determine what the employee actually said. 2 4 8 4 O n the other hand, the C o u r t also held that a clerk in a county sheriff's office, hearing that President R o n a l d Reagan had been shot, could not constitutionally be fired for saying, " I f they go for him again, I hope they get h i m . " 1 9 4 5 Because the e m -

deprive the government o f all authority to deal

ployee played no "confidential, policymaking,

w i t h speech or activities o f employees that may

or public contact role," it did not matter that

interfere with efficient performance o f the job.

the remark was controversial. It dealt with a

In such cases, the p r o b l e m "is to arrive at a bal-

matter o f public concern, and the sheriff had

ance between the interests of the [employee], as

not shown that the clerk's statement " h a d inter-

a citizen, in c o m m e n t i n g upon matters o f pub-

fered w i t h the public f u n c t i o n i n g of the o f f i c e . "

lic concern and the interest o f the state, as an

Dissenting, Justice A n t o n i n Scalia said that " n o

employer, in p r o m o t i n g the efficiency o f the

law enforcement agency is required by the First

public services it performs through its employ-

A m e n d m e n t to permit one of its employees to

ees."1861

'ride w i t h the cops and cheer f o r the robbers."'

Employing

this BALANCING

test in

1968, the C o u r t concluded that a public school

A sharply divided C o u r t struck d o w n a pro-

teacher could not be fired for sending to the

vision o f the federal Ethics in G o v e r n m e n t A c t

local newspaper a letter critical of the school

that prohibited federal employees f r o m accept-

board's financial d e a l i n g s . 1 8 6 1 In 1 9 7 9 the C o u r t

ing honoraria for making speeches or writing ar-

395

396

PUBLIC FIGURES A N D O F F I C I A L S tides. 1648 The law would have prohibited a Virginia mail handler for the U.S. Postal Service from giving lectures on the Quaker religion, and would have denied an aerospace engineer at the Goddard Space Flight Center from receiving one hundred dollars per lecture for talks on black history. The government sought to justify the ban on the ground that the honoraria "interfere[d] with the efficiency of the public service." While in some instances a ban might prevent high officials from misusing their authority by accepting money, the law swept much too broadly; there was no claim or showing that the "vast rank and file of federal employees below grade GS-16" were in a position to do or had ever done so. Moreover, the law banned receipt of payment for expressive activities only; it did not prevent federal employees from being paid for serving on corporate boards or for consulting, for example. Singling "out expressive activity for special regulation heightens the Government's burden of justification," a burden that the government failed to meet, in part because the law had what concurring Justice Sandra Day O'Connor called a "patchwork nature." For example, the law permitted a government employee to receive compensation for a series of three articles or a chapter in a book on a topic unrelated to the job, but not if the employee put the same points into a single published article. The Court has delivered a mixed message about the rights of employees to belong to organizations. In the 1960s it said that an employee c o u l d n o t b e fired f o r M E M B E R S H I P IN P O L I T I -

CAL ORGANIZATIONS presumed to be subversive except under very limited circumstances. Likewise, in a series of PATRONAGE cases beginning in 1976, the Court has held that applicants may not be denied public jobs and that public employees may not be fired on the basis of their political party affiliations, again except under narrow circumstances. But the Court has sustained the federal Hatch Act, which prohibits federal employees from actively participating in political campaigns.2406 In a unanimous opinion Justice White said the Court would not disturb Congress's judgment that the government could not operate "effectively and fairly" unless partisan activities by its employees were curbed. Since the limitations were not aimed at any particular party and do not limit the right of employees to express their opinions or to vote, the act does not offend the First Amendment.2407

Whether an applicant or an employee is entitled to a public job, or at least to challenge the decision not to hire or to fire, is a difficult question that turns on the particular circumstances in each case. In 1972 the Court held that a jobholder has no right to a hearing when the job is terminated if he had no "legitimate claim of entitlement to it." 221 A public school may decline to rehire a teacher serving on a one-year contract because nothing in the contract gave him any sort of tenure right; the school need give neither reason nor hold a hearing under these circumstances. The Court also held that a police officer is not entitled to a hearing before being terminated for insubordination, "causing low morale," and "conduct unsuited to an officer," even though he is classified as a nonprobationary "permanent employee," if the state law permits him to be fired at the will of a responsible municipal supervisor.196 However, a hearing would have been required before discharge if there had been a claim that the employee was fired for exercising a constitutional right. Even though an employee may have a legitimate claim of entitlement to a public job—and hence a property interest in it—there is nevertheless no constitutional right to a full-scale adversary hearing before termination. The employee is "entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story," but nothing more.472 See also: FREEDOM RIGHTS; LEGE

OF ASSOCIATION;

PROCESS THAT IS DUE; DISTINCTION;

PROCESS

RIGHT-PRIVI-

UNCONSTITUTIONAL

CONDITIONS.

PUBLIC

FIGURES

AND

OFFICIALS

In

1964, in New York Times v. Sullivan, the Supreme Court ruled that public officials could not recover DAMAGES for libel unless they could show that the defendant had published a falsehood with "actual MALICE." The plaintiff in Sullivan was a chief of police. What other public officials fall within the rule? In several cases during the succeeding decade, the Court essentially said that the term embraces anyone elected or appointed to public office, including municipal judges,846 county attorneys,1043 deputy sheriffs, 2224 state legislators,934 police captains,2347 and even candidates for public office. 1580 But not all public employees are public officials. For example, the actual-malice rule does not

PUBLIC FORUM apply in the case of a public university professor. 1110 In 1967 the Court extended the logic of Sullivan to public figures, private individuals who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." 573 By this definition, said the Court, a well-known university football coach and a retired army general who was politically active are public figures.109 The Court seemed at first to be suggesting that anyone thrust into the limelight by public events, however unwillingly, is a public figure.2030 But in 1974 the Court drew back a bit, holding that public figures include only those people who by dint of their own efforts and intentions "have assumed roles of especial prominence in the affairs of society." A lawyer is not a public figure simply because the newspapers report on one or even many of his clients,866 and neither is a socialite involved in a highly publicized divorce,2345 a person convicted of CONTEMPT for failing to testify years earlier at a GRAND JURY hearing,2581 or a scientist who published the results of publicly funded research. 1110 See also: LIBEL AND SLANDER;

OFFICE AND OF-

FICERS.

PUBLIC F I N A N C E , see: power; spending power

borrowing

PUBLIC F O R U M Public forum is the Supreme Court's name for the public places where people may congregate to exchange views and speak their minds. In 1895 Justice Oliver Wendell Holmes, then serving on the Massachusetts Supreme Judicial Court, discerned no constitutional objection to laws banning or limiting public speaking in a highway or public park. Such a law "is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house."* The Supreme Court affirmed. 594 Not until 1939 did the Court reconsider, and then it struck down a PERMIT SYSTEM that gave unbridled discretion to city officials over the streets and parks, which "time out of mind have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."971 Since then the Court has frequently been called on to determine which other places qualify as part of the public forum. That it deter-

mines a particular place to be a public forum does not mean that members of the public are then free to speak however and whenever they please. The government may impose reasonable TIME,

PLACE,

AND

MANNER

RESTRICTIONS

on the assembly or speech; otherwise, unbearable and unending noise, massive demonstrations that would tie up traffic, and general rowdiness would be unstoppable. But in the guise of regulating the manner of using the public forum, the government may not bar the public from it altogether. In addition to streets and public parks, the Court has held that public libraries (subject to time, place, and manner restrictions293) and sidewalks in general are part of the public forum. 939 For example, the Court overturned a District of Columbia ordinance banning the display of flags and political placards on the sidewalk in front of the Supreme Court building 916 and another ordinance banning certain political signs within five hundred feet of an embassy.232 In these "quintessential public forums," Justice Byron R. White summarized, the government may not ban public communication. Any time, place, or manner restriction must be "content-neutral, . . . narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." 1845 In a case the Court itself denoted as "rare," a 5-3 majority held that a quintessential public forum, an area one hundred feet outside a polling booth, may be closed to electioneering on election day as a necessary means to ensure the integrity of the election process.331 Beyond the traditional public forum, the Court has considered two other categories: 1. Public property that the government has "opened for use by the public as a place for expressive activity," even though not constitutionally required to do so. These so-called "limited public forums" include public theaters,2205 public fairgrounds, 1028 and school facilities that are opened generally to student group activities.2528 In a limited public forum, the government may close the forum or limit speech by content to preserve the purposes of the limited forum. But it may not discriminate among viewpoints. Thus the Court unanimously upheld the right of a church group to use school facilities after hours for religious purposes because the school permitted use of the facilities for other non-school-affiliated activities when school is not in session.1278 A local evangelical church

397

398

PUBLIC

FUNCTION

wished to use the school facilities to show a sixpart film about family and child-rearing issues from the perspective of traditional Christian values. The subject of the film—family values— was permissible, and the school would have permitted civic and social groups to use the schools to present lectures on family values; the church's "exhibition was denied solely because the film dealt with the subject from a religious standpoint." A public university is also a limited public forum. The Court held, 5-4, that the University of Virginia may not refuse to permit part of a mandatory student activity fund to be used to pay printing costs of a newspaper published by an independent Christian student organization, when it used the fund to pay for publications that discussed religion from other perspectives.2029 2. Public property that the government has not openedfor public use. Beyond the ordinary time, place, and manner restrictions on public gatherings, the government may prohibit communications in "nonpublic forums" altogether, as long as the expression is not suppressed merely because the public officials oppose the speaker's viewpoint. Among the places held to be nonpublic forums are jailhouse grounds; 13 advertising space on municipally owned buses; 1316 military bases,939 including their public streets, as long as the base commander does not selectively permit members of the public to speak there;790, 3 5 home mailboxes; 2413 grounds adjacent to any school building; 928 the interoffice mail system within a school system; 1845 public utility poles; 465 and even certain sidewalks, depending on their location. In a 1990 case the Court held that the sidewalks in front of a U.S. Post Office in Maryland are a nonpublic forum, even though sidewalks generally are public forums, because the sidewalk in question was part of postal service property leading from a parking lot to the front door and because the post office had not "dedicated" the sidewalk to public uses, although the public could of course use the sidewalk to enter the building. 1249 The Court also upheld a federal EXECUTIVE ORDER limiting the types of charities that may participate in a charitable fundraising campaign within federal office buildings, holding that the forum in question was not public buildings but access to a nonpublic charitable solicitation.538 In 1992 the Court held for the first time that at least some parts of airport terminals operated by public authorities are not public forums and

thus may limit expressive activities conducted there. Two cases arose when the International Society for Krishna Consciousness, a religious group that solicits funds in public places, challenged a ban on the SOLICITATION of funds and the dissemination of all literature inside the terminals at New York's John F. Kennedy International Airport, LaGuardia Airport, and Newark International Airport. Chief Justice William H. Rehnquist said that an airport terminal historically has neither been dedicated to public activities nor had as a principal purpose the "free exchange of ideas." Rather, it is designed "to process and serve air travelers efficiently." Since an airport terminal is not a public forum, restrictions on solicitation need only be reasonable, and a regulation prohibiting the disruptions caused by active solicitation is surely reasonable in preventing delays of even a few minutes and the potential for duress and fraud that can be practiced on the unwary, the physically handicapped, and children. 1134 However, in a C O M P A N I O N CASE testing the v a l i d i t y o f

the ban on the distribution and sale of literature in the terminals, the Court came out the other way, holding the ban unconstitutional. Several justices who concurred in Rehnquist's conclusion that solicitation is not protected did not agree with his reasoning. They held that some parts of airport terminals are public forums and open to public discussion but that a ban on solicitation is reasonable in light of its purposes. However, a ban on the distribution and sale of literature is quite different, because it serves none of the purposes proffered to justify the solicitation ban. It is not difficult to take a pamphlet out of someone's hands or to pass the offer by. As Justice Anthony M. Kennedy put it, "[T]o prohibit distribution of literature for the mere reason that it is sold would leave organizations seeking to spread their message without funds to operate." A prohibition against the sale of literature would prevent those "who lack access to more sophisticated media the opportunity to speak. " 1 3 0 5 t See also: DEMONSTRATORS TIONS;

SOLICITATION;

OF CONTENT

PUBLIC

AND

DEMONSTRA-

SPEECH,

REGULATION

OF.

FUNCTION

B y long-standing con-

sensus, constitutional limitations apply only to STATE ACTION—that is, to enactments of legislatures, decisions of courts, or acts of administra-

PUBLIC MORALS tive agencies and public officials. The police may not search through your desk without a SEARCH WARRANT, but a visiting guest may do so with constitutional impunity. Notwithstanding the general rule, the Supreme Court has carved out a narrow exception. When a private party is exercising a public function, the Constitution applies as if the actor were a public entity. The public function rationale has been applied clearly in only two situations: political primaries, though c o n d u c t e d b y private POLITICAL PARTIES, m a y

not exclude voters on the basis of race; 2308 and a "company town" may not prohibit people from distributing literature on its streets.1434 In Marsh v. Alabama, the company town case, the Gulf Shipbuilding Corporation owned all the land that constituted Chickasaw, Alabama, a suburb of Mobile. A deputy county sheriff served as the town's policeman and was paid by Gulf. Other businesses rented stores on a "business block," and the United States used one of the buildings as a post office from which six postal employees delivered the mail. A Jehovah's Witness came onto the public shopping street, stood near the post office to distribute religious literature, and was warned that the street was private. She was convicted of trespass. The Court reversed, holding that the "more an owner, for his advantage opens up his property for use by the public in general, the more do his rights become circumscribed by the . . . constitutional rights of those who use it." The state may not permit a private town to govern its residents free of constitutional limitations. In 1968 a 5-4 majority extended the rationale of Marsh to private shopping centers, holding that union members may not be convicted of trespass for peacefully PICKETING a supermarket in a privately owned mall. 54 In 1972 the Court refused to extend the public function rationale to antiwar picketers who wished to distribute leaflets in a private shopping center. 1349 In 1976 the Court overruled the 1968 shopping center case, holding that a shopping center is not like a company town, and the owners may exclude picketing and distribution of literature at their discretion. 1092 However, the Court unanimously ruled in 1980 that a state may grant a more expansive right under its own constitution than required by the U.S. Constitution, and that state-mandated right of access to private malls does not constitute an u n c o n s t i t u t i o n a l T A K I N G OF P R O P E R T Y . 1 9 1 5

The Court has consistently declined to extend the public function doctrine. In rejecting the claim that a public utility company may not terminate service without providing the customer a HEARING, the Court said that providing electrical service is not a public function because such services are not "traditionally exclusively reserved to the State."n4s The Court similarly declined to find a public function in a state law permitting a warehouse to sell off the goods of an owner who had failed to pay a storage fee. 773 It has, however, denied private litigants the power to exercise peremptory challenges to potential jurors on the basis of race, essentially because the private lawyer is performing a function established by the state.690 See also: JURY DISCRIMINATION; DUE

PROCESS;

PROCESS

THAT IS DUE; TO;

SHOPPING

PROCEDURAL

RIGHTS;

PROCESS

CENTERS,

ACCESS

SOLICITATION.

PUBLIC

INTEREST

institutional

LITIGATION,

see:

litigation

PUBLIC MORALS Populist reform couched in the name of public morality is a political force as old as the country. SLAVERY, Prohibition, CHILD

LABOR,

PORNOGRAPHY,

ABORTION,

OBSCENITY

CONTRACEPTION,

and

AND DI-

VORCE have been among their targets. The United States Reports are replete with statements by the Supreme Court that the states' POLICE POWER includes the power to regulate conduct injurious to public morals. "The traditional police power of the States," the Supreme Court said in 1991 in its most recent recapitulation of this theme, "is defined as the authority to provide for the public health, safety, and morals." 155 If an offense against morality also causes a more palpable harm, there can be no constitutional difficulty in regulating or outlawing it. In the PUBLIC ACCOMMODATIONS cases, the

Court said that Congress may regulate on the basis of moral judgments as long as it exercises a power given it by the Constitution. For example, it may deal with the disruptive effect of racial d i s c r i m i n a t i o n u n d e r the COMMERCE CLAUSE. 1 0 2 4

Conversely, if an act is deemed immoral solely because it offends a tenet of someone's religion, the religion clauses of the FIRST AMENDMENT forbid the state from prohibiting it. The state may not punish someone who refuses to worship on the Sabbath, for instance.

399

400

PUBLIC

OFFICERS

More equivocal are cases in which the activity is widely believed to "corrupt" society in general but is not provably harmful to someone in particular. The primary example is in the area of sexual activity and expression. In upholding a Georgia law against homosexual sodomy, the Court said that the law "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the DUE PROCESS Clause, the courts will be very busy indeed." 2 4 3 In explaining why a state may prevent consenting adults from watching obscene films, the Court said that it "accepted that a legislature could legitimately act on [the conclusion there is a connection between antisocial behavior and obscene material] to protect 'the social interest in order and morality.'"^ 7 9 8 Whatever the philosophical merits of the Court's rationale, these offenses did not suffer from the vice of VAGUENESS; the offenses were enacted under a power to protect public morals but were specifically defined. However, when a state purports to outlaw "any act injurious to public morals," without further definition, the law violates due process. 1 6 2 4 See also: RELIGIOUS FREEDOM;

PUBLIC

SUNDAY

ESTABLISHMENT; CLOSING

SEXUAL

LAWS.

O F F I C E R S , see: office a n d

of-

ficers P U B L I C P R O P E R T Y Congress has power under Art. IV-§2[3] to "make all needful regulations" and to "dispose" of United States property. In 1840, in a challenge to Congress's power to lease mines on federal property, the argument was raised that leasing is not the same as disposing. T h e Court disagreed, holding that the form of disposal, whether temporary or permanent, is entirely in Congress's hands. 9 2 2 Since then the clause has been broadly construed to give Congress plenary power over federal lands and buildings. Congress may eject settlers and withdraw grazing rights on public lands, 1 3 4 0 transfer public lands to Indian tribes and delegate to the president the authority to do so, 2 1 6 3 and block state policies in order to protect wild animals on federal l a n d s . 1 2 4 2 In the Tennessee Valley Authority case the Court held that Congress has power to authorize T V A to sell electricity because to "dispose" of potential electrical energy it could construct dams and build generating and transmitting equipment. 1 0 5 The states may

not tax federal lands. 2 4 2 9 In 1982 the Court relied on this clause to permit the Department of Health, Education, and Welfare to donate a building that had housed a U.S. military hospital to a private religious college. When a group of taxpayers sued, charging that the giveaway violated the ESTABLISHMENT CLAUSE, the Court dismissed the case, saying that the taxpayers had no STANDING to contest any disposal under this clause since they were not personally harmed. 2 4 2 8 P U B L I C P U R P O S E D O C T R I N E , see: e m inent domain P U B L I C S A F E T Y , see: p o l i c e

power

P U B L I C S C H O O L S , see: v a r i o u s categories under schools

sub-

P U B L I C T R I A L , see: t r i a l , p u b l i c P U B L I C U S E , see: e m i n e n t

domain

P U B L I C U T I L I T Y R E G U L A T I O N Under the Public Utility Holding Company Act of 1935, the parent holding companies of most of the nation's gas and electric utilities were required to register with the Securities and Exchange Commission. In 1938 the Court upheld the registration requirements and a provision barring utility companies from using the mails for any purpose if they failed to register. 701 Thereafter the Court sustained as an exercise of Congress's COMMERCE POWER the "death sentence" provision of the act, which essentially permits the government to terminate utility companies not properly serving local communi-

t y 17. >,62 See also: RATE REGULATION; LATION

UTILITIES,

REGU-

OF.

PUBLICITY, PREJUDICE IN CRIMINAL T R I A L S , see: gag o r d e r ; p r e j u d i c i a l publicity PUBLICITY,

RIGHT

TO

PERSONAL

A

circus performer whose act consisted of shooting himself out of a cannon sued a television station for broadcasting a tape of his entire act. T h e station asserted a FIRST AMENDMENT right to show its tape as a news event. T h e Supreme Court held that the station had no protected

PUNISHMENT, CRIMINAL A N D CIVIL free speech interest under these circumstances. The states may protect a person's right to be paid for his performances by authorizing suits against those who invade what was termed a "right to personal publicity." This was not an instance in which a damage suit would prevent the public from gaining access to expression; rather, the right to personal publicity simply determines "who gets to do the publishing." 2625 See also:

DAMAGES.

PUERTO

RICO,

CONSTITUTIONAL

STATUS OF Puerto Rico is a constitutional anomaly, neither state nor territory. Its inhabitants are citizens of the United States under a 1917 federal law. The Puerto Rican Federal Relations Act of 1950, ratified in a Puerto Rican referendum in 1952, vests the power of local selfgovernment in Puerto Ricans. The Supreme Court has concluded that for most purposes Puerto Rico should be accorded "the degree of autonomy and independence normally associated with a State of the Union," 7 3 1 but it has no voting representation in Congress. Ruling case by case, the Court has made the major constitutional restraints against government power applicable

to

TION

THE

OF

Puerto

Rico—EQUAL

LAWS,731

PROTEC-

PROCEDURAL

DUE

P R O C E S S , 3 6 1 SEARCH A N D S E I Z U R E , 2 3 5 9 a n d t h e freedoms

guaranteed

by

the

FIRST

AMEND-

MENT.140, 700 Nevertheless, under its power over U.S. TERRITORIES, Congress may "treat Puerto Rico differently from States so long as there is a rational basis for its actions." 1007 See

also:

REFERENDUM

STATES AND PUNISHMENT,

AND

INITIATIVE;

STATEHOOD. CRIMINAL

AND

CIVIL

Whether the government may inflict a burden or detriment on a particular individual may depend on whether it has imposed a punishment. B o t h the EIGHTH A M E N D M E N T b a n o n cruel

and unusual punishments and the EX POST FACTO

CLAUSES

apply

only

to

punishments

meted out following conviction in a criminal prosecution. For example, neither preventive detention of an ACCUSED before trial 2059 nor the deportation of an alien for acts not unlawful at the time they were done 996 are punishments. Likewise, not every burden is a punishment for purposes

of

the

DOUBLE

JEOPARDY

Clause,

which prohibits multiple punishments for the same offense. 2423

In situations involving other constitutional limitations, the Court has distinguished between criminal and civil penalties. A law imposing a burden on a named person or small class of people is not an unconstitutional BILL OF ATTAINDER unless the burden is a punishment. In addition to death, imprisonment, EXPATRIATION, forfeitures, and punitive fines, the Court has held that a legislative ban on a particular person's holding a job is a punishment. But a law depriving former president Richard M. Nixon of his official papers was held not to be a punishment and hence not a bill of attainder, 1699 nor is a law stripping deported aliens of their right to old-age benefits because of membership in the Communist Party.778 A jail term imposed for CONTEMPT is punishment if it is imposed for contumacious behavior in court, but a jail term imposed for civil contempt—for example, when a person refuses to testify though required to do so by law—is not a punishment and therefore not subject to the constitutional provisions dealing with punishment. For instance, the president may pardon criminal but not civil contempt. Even though Congress has classified a fine as a civil penalty, unless it directly relates to the government's loss and is not simply retributive or deterrent, it is actually a criminal punishment. So if a person has already been convicted and sentenced for filing $16,000 in inflated Medicare claims, a later $130,000 civil fine is really a punishment and constitutes an unconstitutional double jeopardy. 977 A judge-ordered civil contempt fine is a criminal punishment if it is large and intended neither to coerce the defendant into complying with a particular order nor to compensate a complainant for any loss incurred, but was intended instead to punish for actions that occurred outside the courtroom. 1135 A FORFEITURE is a punishment if the value of the property seized bears no relation to the injury caused society, and it is subject to the limitations of the Excessive Fines Clause. 1 1 8 But civil forfeiture, the Court has said, "is a remedial civil sanction [directed against property], distinct from potentially punitive . . . civil penalties such as fines. . . . [Civil forfeitures] are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct. . . . Forfeiture . . . encourages property owners to take care in managing their property and ensures that they will not permit that property to be used for illegal

401

402

P U N I S H M E N T , CRUEL A N D

UNUSUAL

purposes" and "serves the additional nonpuni-

victed in state or federal court o f having c o m -

tive goal o f ensuring that persons do not profit

mitted crimes. 2 0 0 9 It is not applicable to other

f r o m their illegal a c t s . " 2 4 2 3 In the particular case

penalties, forfeitures, or losses inflicted on peo-

just quoted, the C o u r t permitted the forfeiture

ple by government, not even corporal punish-

o f the defendant's h o m e , "which had been used

ment of schoolchildren by t e a c h e r s 1 1 2 6 or de-

to facilitate the manufacture and distribution o f

portation of aliens. 9 9 6 N o r is it applicable to

marijuana. Dissenting, Justice J o h n Paul Stevens

conditions facing people committed to mental

said that while he saw no constitutional d i f f i -

institutions 2 6 2 0 or to jails awaiting t r i a l . 1 7 5 B u t

culty in the civil forfeiture of illicit proceeds and

the clause is applicable to conditions o f confine-

contraband, forfeiture o f a h o m e is punitive. H e

ment in prison other than those formally part o f

pointed out

a sentence for a c r i m e . 2 5 6 0

that the C o u r t

majority

relied

"heavily" on early cases "that involved the forfeiture o f vessels whose

entire mission

2. Until early in the twentieth century, the

was

C o u r t judged whether a punishment was un-

unlawful and on the Prohibition-era precedent

constitutionally cruel and unusual by looking to

sustaining the forfeiture of a distillery-—a prop-

see how closely it resembled the punishments o f

erty that served no purpose other than the m a n -

which the Framers disapproved: tortures such as

ufacture o f illegal spirits. Notably, none o f these

drawing and quartering,

cases involved the forfeiture o f a h o m e as a f o r m

burning alive, and beheading. T h e C o u r t there-

o f punishment for misconduct that occurred

fore upheld death by firing s q u a d 2 5 3 2 and by

therein. C o n s i d e r h o w drastic the remedy w o u l d

e l e c t r o c u t i o n , 1 2 1 8 since these forms o f capital

have been if Congress in 1931 had authorized the

punishment do not resemble the barbarisms

forfeiture of every h o m e in which alcoholic bev-

that the Framers wished to eliminate. In 1 9 1 0

erages were c o n s u m e d . "

the C o u r t reinterpreted

disemboweling

the Eighth

and

Amend-

In 1994 the C o u r t held that a tax can be a

ment, holding that it has an "expansive and vital

criminal punishment. M o n t a n a imposed a tax

character" f r o m which can be drawn meanings

on possession and storage of drugs. Because it

more attuned to modern sensibilities. 2 4 9 7

was assessed only if a crime was committed,

1958 the C o u r t reversed the sentence of a mili-

In

payable only after all state and federal fines and

tary court-martial stripping a World War II de-

forfeitures had been paid, a m o u n t i n g to " m o r e

serter of his American citizenship. T h e condi-

than eight times the drugs' market value," and

tion

levied "on

destruction o f the individual's status in orga-

'possession' o f goods that no longer

of

statelessness

represents

"the

total

exist and that the taxpayer never lawfully pos-

nized society [and] is a f o r m o f punishment

sessed," the tax has "an unmistakable punitive

more primitive than t o r t u r e . " 2 3 7 2 T h e

character. " 6 2 2 t

also struck d o w n as cruel and unusual a criminal

Court

conviction and penalties for the mere status o f See

also:

MENT;

BAIL

PLEADING

FINES;

DELEGATION

JEOPARDY; PRIEVES,

AND

DOCTRINE;

FORFEITURE; COMMUTATIONS, THE FIFTH;

PUNISHMENT,

CRUEL

CIVIL

being a drug addict. 2 0 0 9 But despite m a n y chal-

DOUBLE

lenges, the C o u r t has never held that capital

PARDONS, AND

PROCESS AND

COMMIT-

RE-

AMNESTIES; THAT IS

DUE;

UNUSUAL.

punishment is in itself cruel and unusual. 3. Punishments that by their nature are not cruel and unusual may become so because they are grossly disproportionate to the acts they are meant to punish or because of the ways in w h i c h

PUNISHMENT,

CRUEL

AND

UNUSUAL

they are administered. In a f e w cases the C o u r t

T h e EIGHTH AMENDMENT prohibits the inflic-

has applied a rule of PROPORTIONALITY

tion o f "cruel and unusual punishments." Issues

SENTENCE to bar serious punishments for rela-

OF

arising under this clause fall into four categories:

tively minor c r i m e s — f o r example, hard labor

(1) what constitutes a punishment, (2) what

with ankle chains for fifteen years f o r the crime

punishments by nature are cruel and unusual,

of falsifying public d o c u m e n t s 2 4 9 7 or life impris-

(3) whether some punishments are allowable

onment with no possibility o f parole f o r minor,

only in certain cases, and (4) whether actual

nonviolent offenses such as passing bad checks

prison practices or only judicial sentences are

for small a m o u n t s . 2 1 9 2 In 1 9 7 2 the C o u r t held

governed by the clause.

that capital punishment was cruel and unusual

1. T h e S u p r e m e C o u r t has ruled that the

as applied in several states because of the arbi-

clause applies only to punishments o f those con-

trary and even "freakish" manner in w h i c h juries

PUNITIVE DAMAGES imposed it. 828 Many years earlier, however, the Court had upheld as not cruel and unusual a state's decision to hold a second electrocution when the electric chair malfunctioned the first time, injuring but not killing the prisoner. 1373 4. In 1978 the Court held that "confinement in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards." 1 1 1 3 In a 1992 case the Court held, 7-2, that "[w]hen prison officials maliciously and sadistically use force to cause harm [to a prisoner] , contemporary standards of decency always are violated . . . [and the beating constitutes cruel and unusual punishment] whether or not significant injury is evident." 1093 See also: DEATH PENALTY; PUNISHMENT,

CRIMINAL

PRISONERS' AND

RIGHTS;

CIVIL.

PUNITIVE DAMAGES In civil lawsuits the plaintiff normally seeks to recover an award of money, known as DAMAGES, to compensate for the injury suffered. The damage remedy is not intended to punish the defendant but to recompense the plaintiff. However, in certain civil cases, usually those in which willful behavior or "gross negligence" is involved, the jury may award the plaintiff punitive damages as a means of punishing the defendant for wanton misconduct. Because the law leaves to the judge and jury the size of punitive damages awards in any case, the question has arisen whether the lack of a guiding standard violates constitutional limitations. In 1989 the Supreme Court held that the Excessive Fines Clause of the EIGHTH AMENDMENT does not bar punitive damage awards as long as "the government neither has prosecuted the action nor has any right to receive a share of the damages awarded." 304 In 1990 the Court held, 7 - 1 , that the COMMON LAW method of assessing punitive damage awards has been so uniformly upheld that it cannot be considered "so inherently unfair as to deny due process and be per se unconstitutional." However, punitive damages are not wholly immune from DUE PROCESS attack. Expressing concern about punitive damages that "run wild," the Court said in 1991 that if a jury has unlimited discretion to impose punitive damages, an award disproportionate to the magnitude of the offense might be unconstitutional. In the case the Court upheld an award by a jury instructed that it had discretion to take into account the "character and the degree of the wrong," especially because the

award was subject to state court review to ensure that it did "not exceed an amount that will accomplish society's goals of punishment and deterrence." 1783 The Court subsequently struck down a state constitutional provision that barred the courts from reviewing the amount of punitive damages awarded by juries. 1081 In 1993 the Court refused to upset a punitive damage award in the face of a challenge that the amount was so high—526 times higher than the amount of actual damages awarded—that it violated the defendant's due process rights. 2391 The Court held that the test for excessiveness is not whether the award is excessive solely in relation to the harm that actually occurred, but whether it is excessive in relation to the potential harm. Although the defendant caused actual harm of only $19,000 by engaging in fraud in connection with oil and gas rights, its "pattern of behavior 'could potentially cause millions of dollars in damages to other victims'"; hence a $10 million punitive damage award was not excessive. In 1996 the Supreme Court for the first time struck down a punitive damage award in a state civil suit on the ground that its amount was "grossly excessive," thus violating the Due Process Clause. In BMW of North America, Inc. v. Gore, Justice John Paul Stevens for a 5—4 majority reversed an award of $2 million to an Alabama plaintiff to whom a car dealer had failed to disclose that a supposedly new $40,000 B M W had in fact been repainted. A jury determined that the repainting reduced the value of the car by 10 percent, or $4,000. The punitive damage award, which brought national headlines, was thus five hundred times the amount of the loss. The car distributor testified that its national policy was to repaint and sell as new any cars damaged in manufacture or transportation to the dealer if the cost of repair was less than 3 percent of the suggested retail price. Because the cost of repainting the plaintiff's car was about $600, the distributor did not disclose the damage or repair to the dealer. The plaintiff discovered the repainting when, without having personally noticed any problem, he took the car to a refinisher to make his car look "snazzier than it would normally appear" and the refinisher detected the repainting. Justice Stevens held that the award violated "[ejlementary notions of fairness . . . that a person receive fair notice not only of the conduct that will subject him

403

404

PURE F O O D A N D D R U G LAWS to punishment but also of the severity of the penalty that a State may impose." Three "guideposts" indicated that BMW did not receive adequate notice: reprehensibility, disparity between the harm and the award, and the "difference between this remedy and the civil penalties authorized or imposed in comparable cases." First, said Justice Stevens, the conduct was scarcely reprehensible. The harm was "purely economic"; the repainting did not affect performance or safety or even appearance; BMW was not indifferent to health and safety; no state required disclosure when the repair cost was less than 3 percent, the policy BMW had adopted; and there was no evidence of bad faith. In short, this case "exhibit [ed] none of the circumstances ordinarily associated with egregiously improper conduct." Second, the general rule is that punitive damages must bear a reasonable relationship to the harm actually suffered. Though no mathematical formula marks the constitutional line (sometimes, indeed, a low compensatory award might justify a high punitive one, when the act was particularly egregious or the actual damages are hard to detect), the courts in the past have approved ratios in the amount of four to one and even ten to one, but never five hundred to one. At the least, "the award must surely 'raise a suspicious judicial eyebrow.'" Third, due process is offended when the punitive award is "substantially greater than the statutory fines available in Alabama and elsewhere for similar malfeasance." The maximum civil penalty under Alabama law for a deceptive trade practice is $2,000; other states have authorized fines as high as $10,000. Justice Stevens concluded that "we are not prepared to draw a bright line marking the limits of a constitutionally acceptable punitive damages award. . . . [But in this case] the grossly excessive award imposed . . . transcends the constitutional limit." The Court ruled on a side issue as well. The original jury punitive damages award was $4 million. The award was premised in large part on the number of cars that had been repainted in states other than Alabama. The state supreme court held that this tainted the verdict, and it cut the award in half. The Supreme Court agreed that the method the jury followed unconstitutionally burdened INTERSTATE COMMERCE. A "state may not impose economic sanctions on violators of its laws with the intent

of changing [a wrongdoers] lawful conduct in other States." The dissenters objected strongly to the tenor of the majority's decision to strike down the award while providing no guidelines to trial courts or reviewing courts. Justice Ruth Bader Ginsburg said that the Court "is not well equipped for this mission." Moreover, "the Court will work at this business alone.... It will be the only federal court policing the area. The Court's readiness to superintend state court punitive damage awards is all the more puzzling in view of the Court's longstanding reluctance to countenance review, even by courts of appeals, of the size of verdicts returned by juries in federal district court proceedings." See abo: BAIL AND FINES; PUNISHMENT, AND

PURE

CRUEL

UNUSUAL.

FOOD

food and

AND

drug

DRUG

LAWS,

see:

regulation

PURPOSE

OF

tent, and

purpose

LAW,

PURPOSE-IMPACT

see:

motive,

DISTINCTION

in-

The

Constitution manifests distrust of government in several significant ways, among them the d o c t r i n e o f SEPARATION OF POWERS a n d the

principle that the LEGISLATIVE POWER is limited and that Congress may act only under its ENUMERATED POWERS. But those powers are

nevertheless so broad that the question repeatedly has been raised whether the Constitution prohibits Congress or state legislatures from passing laws with an illegitimate purpose. In 1810, in Fletcher v. Peck, Chief Justice John Marshall said that the Court could not constitutionally be concerned with legislators' motives. But in 1819, in McCulloch v. Maryland, he said that Congress could not pass a law to accomplish an unconstitutional purpose under the "pretext" of exercising one of its powers. Historically, the Court has applied Marshall's pretext rationale quite selectively. For example, in striking down a Congressional ban on interstate shipments of goods produced by child labor,984 the Court said that Congress's purpose was to invade the powers of states (over regulations of the workplace), even though the law was written in the form of a PROHIBITION OF COMMERCE that was entirely within Congress's

PURPOSE-IMPACT D I S T I N C T I O N power.427 But the very next year the Court upheld Congress's power to tax narcotics sales,652 even though the clear purpose of the tax was to regulate drug usage in the states, just the kind of regulatory power the Court had earlier said Congress did not possess.126 In the arena of civil rights, however, the Court has said for more than a century that when a law or a government action on its face is nondiscriminatory, the courts must look to its underlying purpose to determine its constitutionality. In Yick Wo v. Hopkins in 1886 the Court confronted a San Francisco ordinance requiring commercial laundries to be housed only in stone or brick buildings unless the Board of Supervisors granted an exception. On its face, the law did not discriminate against any class of people. In practice, however, the board granted exceptions for wooden buildings only to non-Chinese laundry operators. The Court held that the board's exceptions policy v i o l a t e d the EQUAL PROTECTION CLAUSE, be-

cause the discriminatory effect of the policy was manifest and the board had offered no reason for the disparity in result. Therefore, said the Court, the inescapable conclusion was that the board's purpose was "hostility to the race and nationality to which the [Chinese laundry operators] belong." A purpose to discriminate on racial grounds is unconstitutional. Since then the Court has often, though not always, found an unconstitutional purpose underlying neutral laws when the state can give no plausible explanation for the discriminatory impact. In 1915 the Court struck down an Oklahoma voter registration requirement that all persons must pass a literacy test except those whose ancestors had been eligible to vote in 1866, before the FIFTEENTH A M E N D M E N T — t h e

equal voting rights amendment—was ratified.962 The law had the effect of permitting all illiterate whites and no illiterate blacks to vote. The Court saw plainly that the only purpose of the law was to evade the commandment of the Fifteenth Amendment. In 1964 the Court struck down a Prince Edward County, Virginia, scheme under which all public schools were closed and all-white private schools were supported with public tax dollars.945 Although the state could decide to let a county abandon its public schools and help fund private ones, it could not do so when the only reason was to avoid desegregation.

However, when a law has a discriminatory impact but a nondiscriminatory purpose, the Court is unlikely to find a constitutional violation. In 1976, in Washington v. Davis, a District of Columbia qualifying test for police officers resulted in the failure of many more black than white applicants. The exam tested verbal and reading facility and was developed by the U.S. Civil Service Commission for nationwide use. The Court held that because the test was "reasonably related to the requirements of the police recruit training program" and was not designed or operated "to discriminate against otherwise qualified blacks," the department could constitutionally continue to use it. The question, then, is what will suffice as proof that a law neutral on its face but with a disproportionate impact on a racial group had INVIDIOUS

DISCRIMINATION

as its purpose.

The Court has said the answer depends on the circumstances. In some cases—for example, that of the Chinese laundry operators and the systematic exclusion of blacks from all juries 2258 —the answer is that impact alone makes the inference statistically indisputable. But in other, more equivocal cases the Court has refused to draw the inference. In 1971, for instance, it allowed Jackson, Mississippi, to close down its municipal swimming pools after being ordered to desegregate them, because the city had no affirmative duty to operate pools and there was evidence that the closing was motivated, at least in part, by the fear of violence and the loss of revenues—constitutional, nondiscriminatory purposes. 1790 Justice Lewis F. Powell said in a 1977 case that to determine whether the legislature or administrator has intended to discriminate the courts might look to the "historical background of the decision"; the "specific sequence of events leading up to the challenged decision," including sudden departures from normal procedures; and the statements made by legislators or administrators when the decision was made.93 Applying these principles in 1979, the Court refused to disturb a Massachusetts law that "overwhelmingly" favors male applicants to civil service jobs because of an absolute lifetime VETERANS' PREFERENCE. Although few female applicants were veterans, the Court concluded that the state acted evenhandedly to favor veterans, not men. 1848 In contexts other than equal protection, the Court also has held to the principle that neutral

405

406

PURSUIT OF

HAPPINESS

laws are valid unless a purpose to discriminate can be shown. For example, voting laws do not violate the Fifteenth A m e n d m e n t solely because they have a disproportionate impact. 1 5 7 7 But the C o u r t has also concluded that even though the courts may not void neutral laws without proof of discrimination, under its power to enforce equal voting rights Congress may require states to amend their voting laws and policies solely because of the impact that they have on minority groups. 2 0 2 3

See also: CIVIL RIGHTS DE FACTO-DE INTENT, TION;

PURSUIT

AND

CIVIL

LIBERTIES;

DISTINCTION;

AND PURPOSE; SEGREGATION

STATISTICAL RIGHT

JURE

EVIDENCE,

RACIAL AND USE

MOTIVE, DISCRIMINAINTEGRATION;

OF;

VOTING,

see:

happi-

TO.

OF

ness, pursuit

HAPPINESS, of

a QUALIFICATIONS FOR O F F I C E The Constitution prescribes few formal qualifications for holding federal office and none for holding state office. Under Art. I-§2[2] members of the House of Representatives must be at least twentyfive years of age and have been citizens of the United States for no less than seven years on the day they take the OATH OF OFFICE. A similar rule for senators in Art. I-§3 [3] requires that members-elect be at least thirty years of age and citizens for nine years. These clauses also provide that all members of Congress must have been residents of the states from which they were chosen on the day elected. Under Art. II-§i [5] the president of the United States must be a "natural-born citizen," with the exception of early presidents born before the United States was created; they were required to be citizens. Presidents must be at least thirty-five years old and have resided at least fourteen years in the United States. Under the TWELFTH AMENDMENT the vice president must meet the same qualifications. Although these are the only formal qualifications, the Constitution prescribes a few disqualifications. Under the TWENTY-SECOND AMENDMENT presidents may serve only two full terms. The maximum any president may serve is ten years; a vice president who succeeds to the office on the death or resignation of the president and then serves less than two years may be reelected to two full terms. Under Art. I-§6[2] no sitting member of Congress may serve in the EXECUTIVE BRANCH. Under Art. II-§i[2] no member of Congress or of the executive branch may serve in the ELECTORAL COLLEGE. Section 3 of the FOURTEENTH AMENDMENT disqualifies from any federal or state office a person who after taking an oath of either federal or state office "en-

gaged in insurrection or rebellion" against the United States; however, Congress may remove this disability by a two-thirds vote. See also: CITIZENS AND CITIZENSHIP.

QUALIFIED from

IMMUNITY,

see:

immunity

suit

QUALIFIED RIGHTS A right that may be limited under certain circumstances is known as a "qualified right." It is not a constitutional term, although it has had constitutional recognition, most famously in Roe v. Wade, the ABORTION case, in 1973. The Court held that a woman has a qualified right to terminate her pregnancy. The right is nearly absolute during the first trimester, but the state may regulate the abortion procedure after the end of the first trimester. In the third trimester, there is no constitutional right to abortion at all. Similarly, the Court has held that the press has a qualified right to be present during the VOIR DIRE examination of jurors for a criminal trial. 1902 The press may be barred from the hearing on a showing "that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Other rights generally stated to be absolute are often in fact qualified by circumstances. For example, the right to travel is obviously qualified by a prison sentence, and the state may also burden the right to travel by imposing penalties on parents who flee to escape paying support obligations for their children." 8 8 QUARANTINE LAWS To prevent the spread of disease, states may enact quarantine laws that prevent certain crops, animals, or other goods from being exported or imported,

407

408

Q U A R T E R I N G OF S O L D I E R S

even though the laws will interfere with INTER-

homes for the use o f military personnel, but only

STATE COMMERCE. T h e C o u r t has sustained a

if Congress first enacts a law prescribing whose

ruling of a state sanitation commission barring

homes are to be requisitioned and in what m a n -

anyone f r o m bringing cattle, horses, or mules

ner. T h i s is the only right in the BILL OF RIGHTS

into the state during an anthrax e p i d e m i c . 1 2 3 6

that has apparently never been violated. T h e

Similarly, it upheld a law prohibiting the sale o f

Supreme C o u r t has never heard a case testing the

condensed milk not made f r o m unadulterated

meaning of the T h i r d A m e n d m e n t .

m i l k , 1 0 2 6 a ban on cattle imported without a health certificate f r o m the state of o r i g i n , 1 5 6 3

QUASI-SUSPECT

and a law requiring cosmetics to be registered

class and

classification

QUORUM

A quorum is the m i n i m u m number

with state health officials to determine their safety. 2 4 0 However, health laws m a y not exclude products " b e y o n d what is necessary for any proper quarantine."2182

In

1978

the

Court

struck d o w n a N e w Jersey law that forbade landfill operators f r o m importing solid and liquid garbage into the state. T h e usual quarantine laws require the destruction o f all toxic products, whether imported or h o m e m a d e , because the danger to health lies in the product itself. B u t the N e w Jersey law was not concerned with the health hazards f r o m domestic wastes, which could be d u m p e d without limit in domestic landfills.

The

law

therefore

discriminated

against interstate c o m m e r c e . 1 8 5 7

CLASS,

see:

suspect

of people legally sufficient to transact official business. Article I-§5[i] provides that for Congress to enact laws and conduct other business, a q u o r u m is a simple

majority.

Under

the

TWELFTH

AMENDMENT, when the election of the president has

been

thrown

into

the

House

of

Representatives, a quorum of two-thirds of the states is necessary; representatives from at least thirty-four states must be present. W h e n

the

Senate selects a vice president, a quorum is twothirds of all senators, or sixty-seven. T h e C o u r t has occasionally been called on to determine whether a congressional investigating committee can validly issue a subpoena without a quorum (yes 3 0 7 ' or whether perjury can be committed be-

See also: CAME LAWS.

fore a committee lacking a quorum (no 4 5 7 ), but its QUARTERING

OF S O L D I E R S

AMENDMENT provides that during

T h e THIRD peacetime

answers were not based on constitutional interpretation.

soldiers may not be quartered in anyone's h o m e without the owner's consent. In time o f war, the

QUOTAS, RACIAL, see: racial

United

nation

States c o u l d

presumably

requisition

discrimi-

R A C E , C L A S S I F I C A T I O N B Y Until the ratification of the FOURTEENTH AMENDMENT in 1868, the Constitution did not even theoretically bar laws that classified people by their race. Although the EQUAL PROTECTION CLAUSE was clearly intended to prohibit racially discriminatory classifications, its purpose was not realized until decades later. The Courts most grievous failure to bar racial classifications came in 1896 in PLESSY V. FERGUSON, when it announced the SEPARATE BUT EQUAL doctrine, approving legally enforceable segregation of the races. This acquiescence in laws embodying racial classifications was foreshadowed in several opinions of the Court and buttressed in several later ones. Nearly fifty years later, with the declaration in BROWN V. BOARD OF EDUCATION that segregated schooling was unconstitutional, the Court signaled a larger development: that any law invidiously classifying on racial ground would likewise be struck down. The Court actually announced this constitutional conclusion a decade earlier in Korematsu v. United States, ironically upholding the JAPANESE-AMERICAN EXCLUSION AND RELOCATION while announcing that racial classifications are suspect and require courts to subject them to "rigid scrutiny." By the 1960s the Court was firmly committed to the task of rooting out racial classifications in laws and the administration of public policy, including laws prohibiting MISCEGENATION1382 and cohabitation of interracial married couples, 1502 child custody awards based solely on the race of the parent, 1 7 9 2 laws requiring a candidate's race to be listed on the ballot,72 and laws requiring separate listings by race on various types of public records, such as tax rolls. 2292 In short, any racial classification enacted for an invidious purpose or that cannot be justified by the most COMPELLING INTEREST is invalid. In 1995 the Court declared that "any person,

of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny." 12 Few racial classifications aside from the benign use of race to remedy past acts of discrimination will ever be sustained. A rare example is the racial segregation of prisoners when it becomes overwhelmingly necessary to maintain order. 1307 See also: AFFIRMATIVE ACTION; INVIDIOUS DISCRIMINATION; PURPOSE-IMPACT DISTINCTION; RACIAL DISCRIMINATION; SEGREGATION AND INTEGRATION. RACE, C O L O R , OR P R E V I O U S C O N D I TION OF S E R V I T U D E This descriptive phrase is located in the FIFTEENTH AMENDMENT, which denies the states and the federal government power to abridge the right to vote on any of these bases. The phrase covers a person's national origins as well. See also: VOTING, RIGHT TO. R A C I A L B A L A N C E , see: a f f i r m a t i v e a c tion; racial discrimination; segregation and integration R A C I A L D I S C R I M I N A T I O N Ratified in 1868, the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT soon proved no deterrent to blatantly discriminatory acts directed against former slaves. However, when a law strictly enacted a glaring inequality, the Court dutifully struck it down—for example, in 1880 a West Virginia law excluding all blacks from criminal juries, 2258 in 1914 a law forbidding blacks from using the only dining car on a railroad, 1473 and in 1917 a law that forbade blacks from moving onto a 409

4io

RADIO block more than half of whose residents were white.308 But these were feeble straws in a very gentle wind. In 1896, in PLESSY V. FERGUSON,

the Court engrafted onto the Equal Protection Clause the doctrine of SEPARATE BUT EQUAL,

which would leave large sections of the country wholly segregated for more than half a century. Following its decision to end segregated schools in BROWN V. BOARD OF E D U C A T I O N in 1 9 5 4 , t h e

Court began to strike down not only official segregation but also diverse sorts of laws that classified by race and racial laws and practices that discriminated in a wide spectrum of political and legal activities, including voting, jury service, political candidacy, and MARRIAGE. No less important, the Court undertook a dramatic rereading of federal power—congressional, executive, and judicial—to enact laws and carry out policies designed to end racial discrimination. Particularly noteworthy were the Court's decisions that a court may not enforce a racially RESTRICTIVE COVENANT, that through the COMMERCE POWER Congress may prohibit discrimination in PUBLIC

ACCOMMODATIONS,

that

the

THIR-

TEENTH AMENDMENT gives Congress the direct power to outlaw private refusals to deal with members of another race, and that the FIFTEENTH AMENDMENT gives Congress sweeping power to eliminate racial discrimination in voting. Much more heatedly debated is the doctrine of AFFIRMATIVE ACTION, which grew out of the unexceptionable observation that it would be necessary for the courts to take race into account to remedy a past act of purposeful discrimination. Whether racial classifications are "benign" except when used in a judicial remedy for past acts of discrimination remains very much an open question. If preferences could be granted on a racial basis simply to improve the lot of a particular group, then the command of the Equal Protection Clause—that states may not deny to "any person" the equal protection of the laws—would be thwarted. As the Court has repeatedly said, equal protection is for individual persons, not for abstract groups. 1958 Along the way, certain enduring principles have been fashioned that seem relatively impervious to the considerable shifts of political values and temperament on the Supreme Court during the past half century. Invidious explicit racial discrimination is unconstitutional. A statute is also unconstitutional if, though it appears neutral, it was enacted to discriminate. But a law not intended to discriminate is not unconstitutional

merely because it has a disparate impact on different races.2476 Finally, the Equal Protection Clause bars discrimination against a person of any race, not only blacks. Though the Fourteenth Amendment was ratified as a primary means of protecting those who had been slaves, the Court has long recognized that "if a law should be passed [discriminating against] all naturalized Celtic Irishmen" the Equal Protection Clause would be no less violated.2258 Moreover, Congress has power under the Thirteenth Amendment to prohibit discrimination not only against blacks 1187 but also against whites in general 1489 and nonblack minorities. 2129,2058 See abo: ACCESS TO BALLOT; CIVIL RIGHTS CIVIL

LIBERTIES;

FACTO-DE DERING;

JURE JURY

CIVIL

RIGHTS

GERRYMAN-

DISCRIMINATION;

MISCEGENA-

DISCRETION;

IMPACT

RACE,

DISTINCTION;

BY; REFERENDUM STRICT

AND

SUSPECT

VOTING,

RIGHT

PURPOSE-

CLASSIFICATION

AND INITIATIVE;

INTEGRATION;

SCRUTINY;

SIFICATION;

DE

DISTINCTION;

TION; PROSECUTORIAL

TION

AND

CASES;

SEGREGA-

STATE

ACTION;

CLASS AND

CLAS-

TO.

R A D I O , see: a c c e s s t o b r o a d c a s t i n g ; b r o a d c a s t i n g , r e g u l a t i o n of RANDOM S T O P S , see: s e a r c h and seizure: r a n d o m stops and checkpoints R A P E , see: d e a t h p e n a l t y RATE R E G U L A T I O N In 1877 the Supreme Court declared, in Munn v. Illinois, that the states' POLICE POWER includes the power to regulate the rates of public utilities—in that case, the rates of grain elevators. With the reasonableness of the rates, said Chief Justice Morrison Waite, the courts are not concerned. That the power "may be abused . . . is no argument against it. For protection against abuses by legislatures the people must resort to the polls." But as the legislatures increasingly turned to regulating railroad rates, the Courts resolve to avoid rate cases weakened. In 1886 Waite himself said that a state may not set a rate that is confiscatory—that is, so low that it amounts to a TAKING OF PROPERTY without JUST

COMPENSATION.1935

By 1890

Waite

had died and a new Court was ready to retreat wholesale from the confident assertion in Munn. "The reasonableness of rates . . . is eminently a

R A T I O N A L BASIS O R R E L A T I O N S H I P TEST question for judicial investigation," the Court now said. 453 By 1898 it had embarked on the FAIR VALUE FALLACY, holding that a utility is entitled to a fair return on the value of its property, determined ultimately by the courts. 2185 At the same time, the cases were not uniformly hostile to the rate setters. The Court declared that it was not the business of the courts to set rates or to revise the orders of rate-setting administrative agencies, as long as the rates set are fair and reasonable under the circumstances; 1951, 1 1 3 7 nor were the courts generally entitled to "reexamine and weigh

two hundred members in the House of Representatives or a ratio larger than 1:50,000. The states failed to ratify the proposed amendment, leaving Congress free to decide for itself how many House seats there should be, as long as the 1:30,000 ratio is observed. In 1929 Congress set the number of representatives at 435. As a consequence, House seats are reallocated every ten years following the CENSUS. The current ratio of representation is about 1: 610,000.

all the evidence" considered by the rate author-

TEST

ity

2067

See also: ADMINISTRATIVE REAUCRATIC

AGENCIES

GOVERNMENT;

PUBLIC

INTEREST;

PUBLIC

UTILITY

RATIFICATION,

AFFECTED

ECONOMIC

DUE

AND

BU-

WITH A PROCESS;

REGULATION. see:

amendments

the Constitution; Constitution,

to

ratifi-

of

RATIFIERS' tional

BASIS

INTENT,

see:

constituintent

RATIO OF REPRESENTATION Article I-§2[3] specifies that each member of Congress should represent no fewer than thirty thousand constituents. In 1789, in what would have been the First Amendment had it been ratified, Congress sent to the states along with the BILL OF RIGHTS an amendment that required a change in the minimum ratio when the population grew sufficiently that the House of Representatives would consist of more than one hundred members. The ratio would go to 1:40,000 until the House grew to two hundred members, when the ratio would become 1:50,000. Under this proposed amendment there could never thereafter be fewer than

RELATIONSHIP

DUE

PROCESS

in the

1930s, it advanced a new test for determining whether a law runs afoul of the Due Process Clause. In 1934 Justice Owen J. Roberts, speaking for a 5-4 majority upholding a law regulating the price of milk, said that due process demands "only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained." 1652 In 1938 Justice Harlan Fiske Stone said in United States v. Carotene Products that "regulatory legislation affecting ordinary commercial transactions" is constitutional unless it fails to rest "upon some rational basis within the knowledge and experience of the legislators." Since then, the Court has never invalidated a state economic or business regulation on the ground that it was irrational or lacked a substantial relationship to its purpose. The rational basis test is used also for determining the validity of legislative classifications under the EQUAL PROTECTION

interpretation; original

OR

When the Supreme Court repudiated the

doctrine of ECONOMIC

However, in 1920 the Court flip-flopped. In the Ben Avon case1749 it said that DUE PROCESS requires a court independendy to reassess any evidence presented to an agency to support a rate claimed by the railroad or other utility to be confiscatory. Not until 1944 did the Court finally return almost to the point where it began, holding that the method of rate setting was for the legislatures and the agencies they create, not for the courts,747 although it did not recant the power to set aside a wholly unreasonable rate. Swept away were cases decided over more than forty years in which the Court attempted to pluck from the Constitution particular formulas for setting fair rates.

cation

RATIONAL

CLAUSE. T h e C o u r t has said that a

"statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." 1 4 9 3 A state "has no obligation to produce evidence to sustain the rationality of a statutory classification." 1029 In judging legislation under this test, the Court refuses even to let the law's opponent offer proof that it does not serve its intended purpose, as long as the legislature "could rationally have decided" that the law would promote its objective. 1559 "A legislative choice," the Court has said, "is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." 738 Moreover, "rational distinctions may be made with substantially less than mathematical exactitude." 1667 The Court has been almost, but not quite, as deferential to economic legislation under equal

4ii

412

READERS' RIGHTS protection as under due process. It has upheld 1456 MANDATORY RETIREMENT laws, apparendy discriminatory O C C U P A T I O N A L LICENSING laws, 2551 ' 759 discriminatory SUNDAY CLOSING L A W S , 1 4 9 3 distinctions among types of aged needy people receiving federal "comfort allowances,"2107 laws limiting the amount a family can receive in child welfare benefits,582 distinctions for purposes of receiving federal food stamps between households with closely related people and those containing distantly related or unrelated people,1397 laws barring former drug users from holding nonsafety public jobs, 1682 laws making it politically difficult to build low-rent housing,1158 and filing fees required to be paid by indigents to seek bankruptcy protection1258 and to contest the denial of welfare benefits.1773 On the other hand, purporting to apply the rational basis test, the Court has occasionally struck down laws because the burdens placed on certain groups of people were discriminatory and irrational. But the Court's reasoning in many of these cases seems to be closer to the S T R I C T SCRUTINY that it reserves for laws classifying on the basis of race or some other suspect class. For example, it struck down as irrational a law distinguishing among types of illegitimate children for purposes of receiving Social Security disability benefits,1169 a state property tax system that disproportionately taxed property on the basis of when it was sold rather than on its true value,45 and a zoning ordinance that effectively forbade the construction of a group home for the mentally retarded but that permitted the operation of, among other things, hospitals, sanitariums, and nursing homes for convalescents or the aged.470 See also: CABLE MENT;

TELEVISION;

CLASSIFICATIONS,

INCLUSIVE;

ECONOMIC

LEGITIMACY;

ONE STEP AT A TIME;

READERS'

AND

COMMIT-

AND

OVER-

DISCRIMINATION;

CLASS AND CLASSIFICATION; FICATION

CIVIL

UNDER-

WEALTH

IL-

SUSPECT CLASSI-

DISCRIMINATION.

RIGHTS

The

FIRST

AMEND-

is ordinarily viewed as protecting the rights of those who speak and publish, as the principles of FREEDOM OF SPEECH and FREEDOM OF T H E PRESS seem clearly to imply. Is there a correlative right of listeners and readers to receive information? In a sense, the right to speak and the right to hear may be opposite sides of the same coin, or even opposite edges of the same MENT

side. If the government tells a newspaper, "You have the right to publish but no one has the right to read what you print, so the police are going to impound your edition to keep anyone from seeing it," a classic PRIOR RESTRAINT would be the result. But it often makes sense as well to talk of an independent right of readers and listeners. For example, in 1965 the Court struck down a federal law requiring the post office to refrain from delivering "communist political propaganda" unless the addressee specifically requested each piece of mail after being notified of its arrival.1279 In one of the first COMMERCIAL SPEECH cases, the Court permitted consumers to challenge a law prohibiting pharmacists from advertising prices of prescription drugs.2446 The Court spoke of the consumers' right to receive the information, even though the law did not bar any particular consumer from calling up a drugstore to inquire. And in a case the dimensions of which remain to be seen, the Court tentatively concluded that the right of public school students to read books in the school library means that school authorities may not remove books claimed to be offensive if they intend by doing so to deny students "access to ideas" with which the authorities disagree.216 The right of readers and listeners to receive information unfiltered by the government is different from their right to obtain information that others wish to withhold. See also: RIGHT TO KNOW.

REAPPORTIONMENT, ment

of political

R E A S O N OF STATE

see:

apportion-

districts

Reason of state or, as it

is sometimes known, raison d'état, is the political doctrine that the state may do whatever it must to ensure its survival. Derived from Machiavelli and long used by totalitarian governments, the reason-of-state doctrine is fraught with peril to democratic institutions. It has no constitutional basis, but neither has the Court rejected it altogether, at various times allowing considerations of N A T I O N A L SECURITY to lead it to narrow interpretations of constitutional limitations. Concurring in Dennis v. United States, the 1951 communist conspiracy case, Justice Felix Frankfurter suggested that one reason to uphold convictions under the Smith Act was that the courts must forswear upsetting political decisions about the "outcome of [contending] forces," since the government, not the courts, has

REASONABLE DOUBT "knowledge of the topmost secrets of nations." On the other hand, the Court rejected President Harry S. Truman's assertion that in the national interest he had the inherent EXECUTIVE POWER

to seize the nations steel mills because of a threatened strike2623 and President Richard M. Nixon's insistence that the president may order foreign intelligence wiretaps free of constitutional restraints.2411 See

also:

SEARCH

IMPLIED AND

ELECTRONIC

AND

SEIZURE:

INHERENT

POWERS;

WIRETAPPING

SURVEILLANCE;

STEEL

AND SEIZURE

CASE.

REASONABLE

DOUBT

T h e SIXTH A M E N D -

MENT2271 and DUE PROCESS2564 require that guilt in a criminal prosecution be proven in every element of the crime beyond a "reasonable doubt." This highest standard of proof in the legal system does not mean absolute certainty but the certainty that comes from excluding unreasonable, fanciful doubts. In 1990 the Court held unconstitutional a jury instruction that was deficient because it did not clearly call for finding guilt beyond a reasonable doubt. The instruction was "[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty? The Court said that the italicized words rendered the instruction unconstitutional, because words such as "substantial" and "grave" "suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard."355 In a 1994 case the Court was presented with a similar claim. One of the juries was instructed that reasonable doubt is "not a mere possible doubt; because everything related to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." The other jury was instructed that a reasonable doubt

"is an actual and substantial doubt, arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the state, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture." The defendants urged that the phrases "moral evidence," "moral certainty," and "actual and substantial doubt" were too nebulous. This time the Court upheld the instructions.2439 Justice Sandra Day O'Connor noted that when used in the late eighteenth century, "moral evidence" contrasted with "demonstrable" evidence, the latter referring to logical derivations and the former to evidence of things that "take place among things actually existing." Though troubled by the possibility that in the abstract a modern jury would not understand the term, she insisted that the phrase in the context of the instruction as a whole gave it a plain enough and correct meaning. Likewise, the words "substantial doubt" were qualified by what followed, so that they connoted "existence rather than magnitude of the doubt." Concurring, Justice Anthony M. Kennedy said that the reference to the phrase "moral evidence" is "quite indefensible"; this "unruly term," he suggested, ought to be eliminated, though it was not fatal in the cases presented. In assessing the voluntariness of a confession, a mere preponderance-of-the-evidence standard will do, although the states may require a higher standard if they wish. 1315 Likewise, the reasonable doubt standard is unnecessary at a SUPPRESSION HEARING to determine whether evidence seized by the police must be excluded from trial,1462 whether MIRANDA RULES have been violated,501 and whether leads that derived from an unlawfully obtained confession turned up evidence that would inevitably have been discovered and therefore be admissible at trial even though the confession must be excluded.1698 However, the Court has held that when a witness identifies a suspect at an unconstitutional LINEUP, the prosecutor must prove with "clear and convincing" evidence, a standard higher than preponderance of the evidence, that the witness's in-court identification of the suspect was not tainted by having picked the suspect out at the lineup.2455 Although the reasonable doubt standard is ordinarily used to benefit the defendant, it sometimes favors the prosecution. For example, in a HABEAS CORPUS proceeding, a fed-

eral court may not overturn a DEATH PENALTY unless no judge or jury could have found beyond

413

414

REASONABLENESS

OF

SEARCH

a reasonable doubt that the evidence was sufficient to warrant i t . 1 3 3 1 See

also:

COUNSEL,

SIONARY

RULE;

STANDARD

or even appointed public officials f r o m office. Unlike impeachment, through which the legisla-

ASSISTANCE

HARMLESS

OF;

ERROR;

EXCLUPROOF,

OF.

ture may remove public officials, there is no implication in a recall that the officeholder has engaged in criminal w r o n g d o i n g .

Because

the

Constitution specifies the duration o f terms for

REASONABLENESS

OF

SEARCH,

see:

search and seizure: reasonableness

elected federal officials, it presumably w o u l d be unconstitutional for Congress or the states to pass

of

a law permitting recall elections for themselves,

Section 3 of the FOURTEENTH

APPOINTMENT AND REMOVAL POWER would

the president, or the vice president. Likewise, the REBELLION

AMENDMENT disqualifies federal, state, and mil-

preclude a recall procedure f o r federally ap-

itary officeholders w h o have sworn an oath to

pointed officials; federal judges serve

support the Constitution from ever holding any

good behavior" and may be removed only by im-

"during

civil or military office of the United States or of

peachment. T h e issue of recall for federal officials

any state or from serving in the ELECTORAL

has never arisen in the C o u r t .

COLLEGE if they engaged in insurrection or rebellion against the United States or aided an

See also: IMPEACHMENT OF GOVERNMENT OF-

enemy of the United States. T h i s section was in-

FICIALS;

tended

to exclude Confederates w h o

TION.

against

the

Union

in

the C i v i l

War

fought

OFFICE AND OFFICERS;

TERM

LIMITA-

from

Congress and all state and federal offices. T h e

RECESS A P P O I N T M E N T S

Supreme C o u r t has never been called on to inter-

the president is empowered to "fill up all vacan-

pret this section, but the lower courts concluded

cies" in federal offices that may "happen" when

that it is not self-executing and Congress must

the Senate is recessed. A person named under a

enact legislation to give it effect.* Because the

"recess appointment" takes office immediately,

Under Art. II-§2[3]

framers of the Fourteenth A m e n d m e n t did not

but the tenure of office lasts only until the next

intend disqualification necessarily to be perma-

session o f Congress ends. Although the clause

nent or universal, but rather to ensure the imme-

seems to say that a recess appointment may be

diate security of the nation, Sect. 3 empowers

made only if the vacancy occurred during the re-

Congress to remove the disability by a two-thirds

cess, the Supreme C o u r t has never quarreled with

vote in each house. Congress exempted m a n y

an understanding since the 1820s that presidents

people from the disqualification even before the

may fill up any vacancies that "happen to exist,"

Fourteenth A m e n d m e n t was ratified, and in 1869

even if the office was actually vacated while the

Congress enacted amnesty bills restoring office

Senate was in session. If the person is to remain

holding rights to more than one thousand former

in office beyond the end o f the next session, he or

Confederates. At the urging of President Ulysses

she must win Senate confirmation.

S. Grant, Congress in 1872 exempted everyone

Recess appointees do not always succeed. For

covered by Sect. 3 except senators and representa-

example, in 1795 President George Washington

tives of the Thirty-sixth

Thirty-seventh

named J o h n Rutledge chief justice o f the United

Congresses, federal judges, U . S . military officers,

and

States under a recess appointment. Rutledge took

heads of EXECUTIVE DEPARTMENTS, and for-

his seat immediately, but the Senate failed to con-

eign ministers w h o had engaged in rebellion.

firm him and he was forced to leave the Supreme

Disqualification against even these people was re-

C o u r t in 1796. T h e recess appointment power is

moved in 1898. Section 3 has not been resorted to

sometimes adroitly used to circumvent the con-

since then.

stitutional confirmation procedure.

See also: OFFICE AND OFFICERS.

See also: APPOINTMENT OFFICE AND

REBUTTABLE

PRESUMPTION,

sumption, irrebuttable;

see:

AND REMOVAL POWER;

OFFICERS.

pre-

presumptions

RECESS OF C O N G R E S S

T h e decision to re-

cess or adjourn sessions of Congress is for Congress RECALL

Recall is a procedure used in m a n y

alone to make, except that under Art. I-§5[4] both

states through which voters may remove elected

houses must agree to a recess of more than three

REEXAMINATION CLAUSE days, and under Art. II-§3 the president may determine when to adjourn Congress if the houses disagree. This power has never been exercised. Under this same clause, the president may convene special sessions of the whole Congress or either house, and on many momentous occasions presidents have done so. For example, President Franklin D. Roosevelt convened Congress the day after the attack on Pearl Harbor on December 7, 1941. R E C I D I V I S T S T A T U T E S , see: proof, b u r d e n of; p r o p o r t i o n a l i t y of s e n t e n c e RECOGNITION diplomatic

OF

NATIONS,

see;

recognition

R E D I S T R I B U T I O N OF W E A L T H A N D I N C O M E The constitutionality of government policies that redistribute wealth and income was once seriously doubted. The Supreme Courts many ECONOMIC DUE PROCESS cases rested in part on the proposition that it was illegitimate for the states to transfer wealth in the guise of laws regulating rates that could be charged or conditions under which labor could be employed. By limiting the number of hours an employee could work, the law was said to unconstitutionally skew the actual or natural price of wages in favor of the employee. In essence, the proponents of this view held that the law effected a TAKING OF PROPERTY without JUST COMPENSATION. It was this

theory that Justice Oliver Wendell Holmes lambasted in his famous dissent in LOCHNER V. NEW YORK, insisting that the Constitution does not embody any particular economic theory. With the death of economic due process in the late 1930s, constitutional restraints on redistribution policies came to an end. See also: INCOME ING

POWER;

TAX; SPENDING

WEALTH

POWER;

CLASSIFICATION

TAXAND

DISCRIMINATION.

R E D I S T R I C T I N G , see: of p o l i t i c a l d i s t r i c t s

apportionment

REDRESS OF G R I E V A N C E S , d o m of petition

see:

free-

R E E X A M I N A T I O N C L A U S E A sharply divided Court ruled that a federal appellate court can indirectly review for excessiveness a federal jury's award of money DAMAGES in a DIVERSITY

JURISDICTION case, consistent with the SEVENTH AMENDMENTS command that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the COMMON LAW."849 The case centered on a federal jury award to a photographer for the loss of three hundred original color transparencies of war footage. The photographer lent the slides to the Center for Humanities, a New York organization, to make an educational videotape. The center agreed to return the original slides but lost them. The center conceded liability for the loss but could not agree on the amount. Although the value was to be determined entirely by reference to state law, the photographer took the center to federal court under its diversity jurisdiction, since he was not a citizen of New York. The jury awarded $1,500 per slide, $450,000 in all. On appeal, the U.S. COURT OF APPEALS determined that the award was excessive because it "deviates materially from what would be reasonable compensation," a determination state appeals courts are permitted to make under state law. The federal appeals court ordered a new trial, unless the photographer would accept a reduced $100,000 award. The "deviates materially" standard, a change from the older New York law, was enacted in 1986 to reduce the range of jury awards. The question in this case was whether the ERIE RULE requirement that federal courts apply the substantive law of the state (which would require federal appeals court to reassess the jury verdict) conflicts with the command of the Seventh Amendment that the federal courts may not reexamine a jury verdict. Was New York's "deviates materially" standard a substantive rule? Speaking for a majority of five, Justice Ruth Bader Ginsburg agreed that it was, since in application it was clearly intended to and in fact did affect the outcome of jury awards. Not to follow it would likely allow larger jury awards in cases in federal court than in state courts, a result contrary to the teaching of Erie. However, following this rule could force federal appeals courts to reexamine jury verdicts—here, by taking into account matters such as the skill and earnings level of the photographer and the uniqueness of the photographs. To give that much authority to the federal appeals court would violate the Seventh Amendment, which is an independent constitutional rule binding on federal courts. Justice Ginsburg found a way out of the dilemma by pointing to a long-established practice of reviewing district court decisions for "abuse

415

416

REFERENDUM AND

INITIATIVE

of discretion." Such review is consistent with the Reexamination Clause because the federal appellate court is not reexamining the jury's verdict but is considering whether the trial court abused its discretion in deciding whether to reduce the award, and if so, by how much. Justice Ginsburg concluded that "the principal state and federal interests can be accommodated," though at the price of not directly following the New York procedure. Because the Seventh Amendment bars the federal appeals court from directly considering the "deviates materially" standard, the Court assigned that duty to the federal trial court: "New York's dominant interest can be respected, without disrupting the federal system, once it is recognized that the federal district court is capable of performing the checking function, i.e., that court can apply the State's 'deviates materially' standard in line with New York case law evolving under [the state's procedural code]. . . . District court applications of the 'deviates materially' standard would be subject to appellate review under the standard the Circuits now employ when inadequacy or excessiveness is asserted on appeal: abuse of discretion." See also: APPEAL. REFERENDUM

AND

INITIATIVE

E a r l y in

the 1992 presidential campaign, non-party candidate Ross Perot suggested that through some form of electronic linkup the people might be consulted directly about laws to be enacted. The procedure of having the people register their approval or disapproval of legislative enactments is known as a "referendum." The child of the Progressive movement, the referendum and its sibling, the "initiative," were born in the early twentieth century to provide a direct-democracy alternative to hidebound legislatures. In an initiative, citizens bypass their legislatures altogether and vote directly for laws through measures placed on a ballot by a sufficient number of voter signatures. Perot hinted at a federal initiative procedure by calling for a constitutional amendment barring Congress from passing tax laws, leaving taxation to the people directly. In 1912 the Supreme Court turned aside a constitutional challenge to state referendums and initiatives u n d e r t h e G U A R A N T E E C L A U S E . 1 7 8 5 '

1747

Since then, many states have established referenda for many issues, submitting to the voters, for example, the decisions of whether to authorize bonds for construction projects and whether

to restructure municipal governments. In general, the Court has upheld the use of the referendum and initiative at the state and municipal levels as a device for deciding issues of particular concern to those permitted to vote in them, even when the outcome does not depend on a bare majority or even on a single majority vote. For example, the Court sustained a law requiring a 60 percent majority to approve the incurring of bond debt within a political subdivision. 909 Distinguishing the principle of ONE PERSON, O N E V O T E , t h e C o u r t n o t e d t h a t t h e

requirement of a supermajority to decide a particular issue is not the same as weighted voting to choose legislative representatives. The Court also upheld a New York procedure by which a county charter can be adopted only if separate majorities of city and noncity residents within the county agree. 1358 Voters may approve or veto ZONING changes through a referendum, as long as the general electorate as a whole is polled on whether a particular change should take effect. 682 But the Court has rejected a system by which neighbors as a whole were empowered to vote on a particular zoning variance by someone with an interest adverse to theirs.2481 The latter decision resembles the Court's rulings under different constitutional provisions that a state may not delegate power to a church to determine whether liquor licenses should be allocated 1289 or to one group of professionals to determine whether to license competitors.869 The referendum and initiative constitute STATE

ACTION.

The

people

are

collectively

bound by the same constitutional restraints that bind the representative institutions of governm e n t , i n c l u d i n g DUE PROCESS a n d EQUAL PROT E C T I O N OF T H E L A W S . 1 9 6 3 T h e C o u r t s a w n o

equal protection difficulty in a referendum procedure to approve or reject decisions of local authorities to build low-income housing. 1158 But when the voters of Akron, Ohio, amended their city charter to provide that a majority of voters must approve any enactment by the city council regulating real estate transactions on the basis of "race, color, religion, national origin or ancestry," the Court held that this initiative violated equal protection because the city charter amendment made it more difficult, on racial lines, to enact some kinds of real estate policies than others. 1103 A referendum or initiative procedure at the federal level would be unconstitutional because BICAMERALISM

and PRESENTMENT

would

be

lacking if the people were asked to approve a law

RELEASED TIME directly. Article I - § 7 [ 2 , 3] explicitly requires both

machinery o f production—have been dealt with

houses o f Congress to enact a bill, which must be

more harshly in various administrative regula-

submitted directly to the president, not to the

tions. T h e C o u r t has upheld the application o f

people, f o r a p p r o v a l .

these laws under certain circumstances to people

1125

See also: LEGISLATIVE VETO; POLITICAL SUBDIVISIONS; ING,

REPRESENTATION;

RIGHT

VETO POWER; VOT-

TO.

w h o neither intended to violate the laws nor had any awareness o f wrongdoing. In a leading case, the C o u r t in 1975 upheld the conviction o f the chief executive officer of a national retail food chain for failing to supervise his subordinates, to

R E G I S T R A T I O N , C O M P E L L E D , see: c o n scription; war

power

w h o m he had delegated the responsibility o f ensuring that foodstuffs stored in the company's warehouses were safe from contamination by ro-

REGULATION, agencies ment;

see:

and

administrative

bureaucratic

administrative

Commerce

dents. T h e U . S . Food and D r u g Administration notified the company that its f o o d was being con-

Dormant

taminated in violation o f the Federal Food, D r u g ,

regula-

and Cosmetic Act. T h e C E O was aware of the

Clause; economic

tion; interstate property;

law;

govern-

of

FDA's letter but mistakenly relied on subordi-

dis-

nates to deal with the problem. C h i e f Justice

commerce; taking

taxation-regulation

Warren E. Burger said that even though the C E O

tinction

had no personal knowledge o f his subordinates' adminis-

failure to remedy the unsanitary conditions, he

bureaucratic

could be held criminally responsible for it. " I n

R E G U L A T O R Y A G E N C I E S , see: trative

agencies

and

the interest o f the larger good it puts the burden

government

of acting at hazard upon a person otherwise inREGULATORY

LAWS

Although not strictly

on a constitutional basis, the Supreme C o u r t has

nocent but standing in responsible relation to a public d a n g e r . " 1 7 9 9

distinguished among ordinary criminal laws and

T h e requirement o f a guilty m i n d has a con-

laws aimed at regulating and ameliorating the

stitutional dimension when a particular constitu-

conditions of an interdependent, industrial soci-

tional guarantee is implicated. For example, in

ety. Convictions under ordinary criminal laws,

1959

such as those against murder and theft, generally

AMENDMENT it is unconstitutional to convict a

the C o u r t

said that

under

the

FIRST

require that the defendant have knowledge o f

bookseller for possessing an obscene book with-

wrongdoing, or, as it is called, a "guilty m i n d . "

out showing that he knew the contents to be ob-

Interpreting a federal law against theft of government property, the Supreme C o u r t reversed the conviction o f a man w h o took spent b o m b casings f r o m an uninhabited site in Michigan

scene.2173 See also: ADMINISTRATIVE REGULATION;

POLICE

LAW;

ECONOMIC

POWER.

that the A i r Force used as a target range and that O n rare occasions an appellate

local hunters used to shoot deer. Believing the

REHEARING

property abandoned and o f no use to anyone, the

court may agree at a party's urging to reconsider

defendant salvaged the casings for their scrap

its decision. Under its rules, the Supreme C o u r t

value, but the trial court refused to let the jury

will accept a petition to rehear a case only when a

consider his state o f mind. In effect, the trial

majority o f justices votes to do so, and that rarely

judge said that anyone would be guilty of theft

happens. A case is sometimes reheard when there

for picking up and taking

w a s a n A F F I R M A N C E BY AN EQUALLY

home

something

DIVIDED

belonging to someone else, even though reason-

SUPREME COURT. Since a 4 - 4 vote has no prece-

ably

dential value but simply leaves the lower court's

believing

the thing abandoned.

Justice

Robert H . Jackson explained that as usually un-

decision undisturbed, the return of an ill justice

derstood, an act is a crime only when constituted

or the arrival of a newly appointed one may lead

" f r o m concurrence o f an evil-meaning mind with

to a more satisfactory resolution of the case.

an evil-doing h a n d . " 1 5 9 8 However, some kinds o f "public welfare of-

RELEASED

TIME

T h e phrase "released time"

fenses"—actions that endanger people in the use

refers to the practice in many schools of permitting

o f such things as food, drugs, highways, and the

students to attend religious instruction

during

417

418

RELIGION, DEFINITION

OF

school hours. In 1948 the Court struck down, under the ESTABLISHMENT CLAUSE, an Illinois law allowing religious teachers to come into public schools to give religious instruction during regular school hours. The program was unconstitutional, said Justice Hugo L. Black, because tax-supported property was used for religious purposes and because students compelled by law to attend school were released from their secular classes on condition that they attend religious classes and not for other purposes. 1123 But four years later, in an opinion by Justice William O. Douglas, the Court sustained a New York City policy of releasing public school students during the school day to go to religious centers for religious instruction. 2632 Douglas denied that there was any evidence of "coercion to get public school students into religious classrooms" and suggested it would be unconstitutional for a public school teacher to coerce a student into taking religious instruction. Dissenting, Justice Felix Frankfurter sardonically noted that there was no proof of coercion because the lower courts had refused to let those who objected to the practice offer any. Also dissenting, Justice Robert H. Jackson noted that rather than shortening the school day, school authorities were suspending school time for one purpose only— religious exercises. Those who did not wish to participate in religious activities were forced to remain in school. The program, said Jackson, was thus palpably a preference for religion: "The day that this country ceases to be free for irreligion it will cease to be free for religion—except for the sect that can win political power." See also: RELIGIOUS ESTABLISHMENT; RELIGION

SCHOOLS,

IN.

R E L I G I O N , D E F I N I T I O N O F The ESTABLISHMENT CLAUSE prohibits public schools from teaching the divinity of Christ or Allah. It does not stand in the way of teaching the theory of quantum physics or evolution. Why the schools may teach scientific dogma but not religious dogma depends on the constitutional meaning of religion. The short answer is that there is none, or at least the Court has never given a satisfactory one. Religious claims are pressed in many contexts—SOLICITATION of funds, CONSCIENTIOUS OBJECTION to military combat, ritual practices, living arrangements, and educational curricula, to name just a few. In practice, whether a particular claim is religious de-

pends entirely on the circumstances. In the conscientious objector cases, the Court avoided constitutional decisions by interpreting federal law broadly enough to cover many sorts of religious convictions, both theistic and nontheistic. 2121 In Wisconsin v. Yoder the Court held that an entire way of life may constitute a religion for some purposes. In the evolution cases, the Court held that unconstitutional religious proselytizing in the schools cannot be avoided simply by labeling a doctrine "creation science." 691 See also: LEMON TEST; RELIGIOUS

ESTABLISH-

MENT.

R E L I G I O N , F R E E D O M OF, see: f r e e d o m of religion; religious e s t a b l i s h m e n t ; s c h o o l s , r e l i g i o n in RELIGIOUS BELIEF, SINCERITY AND T R U T H OF The truth of religious belief or doctrine is not constitutionally open to question. In the leading case, adherents of the "I Am" cult were indicted for fraudulently soliciting funds by mail. Their SOLICITATION letters asserted that they were "divine messengers" and had attained a "supernatural . . . power to heal." The Supreme Court refused to let the jury consider the truth or falsity of the beliefs they preached. Justice William O. Douglas said that "heresy trials are foreign to our Constitution"; people "may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs." 1 3 7 In other words, whether a belief is true may not constitutionally be questioned, but whether it is believed is subject to proof. For example, under CONSCIENTIOUS OBJECTION laws, a draftee could escape combat service if his "religious training and belief" led him conscientiously to oppose "war in any form." 2 1 2 1 The question of whether the religious teaching is true may not be raised, but whether the draftee actually was convinced that war is wrong is obviously an issue. Without a test for sincerity, anyone could claim conscientious objector status, just as anyone could escape a fraud conviction by insisting that his claims are religiously based. Dissenting in the mail fraud case, Justice Robert H. Jackson would not have permitted an inquiry into either sincerity or belief because they cannot realistically be separated: "How can the government prove these persons knew something to be false which it cannot prove to be false?" Moreover, faith itself is often held in the face of

RELIGIOUS ESTABLISHMENT considerable doubt. The deepest religious conviction is often of this sort: "I admit that the proposition I am advancing sounds crazy, but I believe it anyway." Nevertheless, the constitutional distinction between truth of the belief and sincerity in the belief seems well established. The principle that belief is not open to judicial investigation has led the Court to deny courts the power to adjudicate fights for control of church property on the basis of which warring faction represents the "true" church. To do so would require the courts to make judgments about doctrine, and that they are constitutionally forbidden to do. 1 2 1 2 Instead, courts must look to church rules. If the church has a governing body, then its decision is determinative; if the church operates congregationally by majority vote, then the majority may determine who is to control. 1900 Courts may not set aside a church's defrocking of its bishop despite his claim that the church violated its own rules. 2126 Despite this general conclusion, the Court said in 1979 that in the absence of proof to the contrary, the state may apply a presumption that the majority of the congregation is entitled to decide the issue. 1194

aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions. . . . Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." 729 Despite the clarity and vigor of Black's summary, the dissenters heatedly replied "exactly so"—and came to the opposite conclusion about the constitutionality of paying for parochial school transportation.

most

Since then, in determining whether laws or government programs are consistent with the Establishment Clause, the Court has followed the three-pronged LEMON TEST, which says that a law or program does not violate the Establishment Clause if its primary purpose is secular, if its principal effect neither aids nor inhibits religion, and if government and religion are not excessively entangled. Establishment claims have come to the Court in cases involving government aid to parochial schools, RELEASED TIME programs in schools,

o b v i o u s p u r p o s e o f the E S T A B L I S H M E N T CLAUSE

PRAYER AND BIBLE READING in p u b l i c institu-

was to prevent the government from declaring an official church in which people must worship and to which they must tithe, either privately or through tax subsidies. Today there is no danger that the government will decree a religious establishment. The question is what more the Establishment Clause accomplishes. The Framers meant to sever religion and government, believing that the people could better achieve their secular purposes through the state and their religious purposes through independent churches. Writing to the Danbury (Connecticut) Baptist Association in 1802, President Thomas Jefferson said that the First Amendment built "a wall of separation between church and state." His statement remains the central metaphor for interpreting the clause, but it suggests as many questions as answers.

tions, controls over school curricula, government celebration of holidays and display of RELIGIOUS SYMBOLS, and government accommodation of certain religious preferences. In recent years Justice Sandra Day O'Connor has proposed to ask, instead of whether the law has a primarily secular purpose, "whether the government intends to convey a message of endorsement or disapproval of religion." 1394 The endorsement test has sparked considerable discussion, especially in cases dealing with religious symbols. The Court has also apparently carved out an exception to the Lemon test when a practice has had long historical acceptance. For example, the Court has approved the practice of the Nebraska legislature of paying a chaplain of a single denomination to offer prayers at the start of legislative days. 1435 The justices have also approved the custom of celebrating Christmas with certain symbols, 1394 though the historical evidence is somewhat shaky and the Court's position may be better understood as a refusal to upset millions of people by reversing such long-standing traditions as the United States motto ("In God We Trust") for purely symbolic gains.

See also: NEUTRAL PRINCIPLES;

RELIGIOUS

PRESUMPTIONS.

ESTABLISHMENT

The

In 1947, in a case approving public funds for bus transportation to and from all elementary schools, both public and parochial, Justice Hugo L. Black, speaking for a sharply divided Court, said that the Establishment Clause "means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which

419

420

RELIGIOUS HOLIDAYS, GOVERNMENT CELEBRATION In a clash between the Establishment Clause and the Free Speech Clause arising out of a controversy over the funding of a public university's student activities, the Free Speech Clause was found to be paramount.2029 In the words of dissenting Justice David H. Souter, the Court "for the first time approves direct funding of core religious activities by an arm of the state." The slim majority saw no Establishment Clause bar to authorizing funds from a mandatory student activity fee for a newspaper published by a Christian students' organization because the governmental program—the student activities fund that supported a wide variety of other student organizations—was religiously neutral. The Court distinguished the student fees "from a tax levied for the direct support of a church or group of churches." The tax would be unconstitutional, but the fee simply reflects the reality of student expression, which "is an integral part of the University's educational mission." The majority importantly noted that "the disbursements from the fund go to private contractors for the cost of printing that which is protected under the Speech Clause of the First Amendment. This is a far cry from a general public assessment designed and effected to provide financial support for a church." The Court noted the distinction between a student publication and a religious institution, raising the question, not settled by this case, whether the student activity fund might also have to subsidize a student prayer service. Finally, the program reflected governmental neutrality in other sense: "The program respects the critical difference 'between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.'" (The free speech aspect of this case is discussed

OF

The Court did strike down a special New York law under which a politically powerful religious sect, the Satmar Hasidim, was delegated the power to establish its own public school. 217 The district was, said Justice Souter, "the reflection of a religious criterion for identifying the recipients of civil authority." Moreover, there can be "no assurance that the next similarly situated group seeking a school district of its own will receive one," since the district "did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a general law." In other words, the scheme amounted to preference for one religious group among many. In the 1990s, newly empowered conservative voices are pushing for changes to traditional Establishment Clause doctrine. Perhaps the most hotly contested battleground is over whether the Establishment Clause bars state policies that benefit any or all religions or only those programs that discriminate among religions. Some years ago William F. Buckley declared that the First Amendment "was not designed to secularize American life" but to guard against a national preference for one religion.* Buckley's sentiment suggests the trap into which the Court might walk. The Establishment Clause has nothing to do with "secularizing" American life. To the contrary, it makes the government impotent to do so by denying the government any role in religion at all, leaving Americans free individually and within their churches to live lives as religious as they please—and on their own terms. See abo: CHAPLAINS; EVOLUTION,

DELEGATION

TEACHING

LIGION; GOD, REFERENCES UMENTS;

RELIGION,

BELIEF,

DOCTRINE;

OF; FREEDOM

DEFINITION

SINCERITY

OF RE-

TO IN PUBLIC AND

OF;

u n d e r the h e a d i n g PUBLIC FORUM.)

GIOUS

Speaking for the four dissenters, Justice Souter saw the issue in radically different terms, insisting that the student newspaper at issue "did not merely discuss religion or even approve of religion but was rather "a straightforward exhortation to enter into a relationship with God as revealed in Jesus Christ" and was "nothing other than the preaching of the word." And it is that, said Justice Souter, which the Establishment Clause forbids: "Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money."

RELIGIOUS HOLIDAYS, GOVERNMENT

TRUTH

DOCRELIOF;

CELEBRA-

TION OF; RELIGIOUS SYMBOLS, RIGHT TO DISPLAY; SCHOOLS,

RELIGION

IN; SUNDAY

CLOS-

ING LAWS.

RELIGIOUS

HOLIDAYS,

GOVERNMENT

C E L E B R A T I O N OF In 1984 the Supreme Court approved, 5-4, a municipal "observance of the Christmas holiday season" without a single word of constitutional justification. Rather, Chief Justice Warren E. Burger's majority opinion simply stated the conclusion that towns around the country, in common with "Congress and Presidents," have "taken note of a significant

RELIGIOUS SYMBOLS, R I G H T TO DISPLAY historical religious event long celebrated in the Western World" and that to celebrate Christmas is a "legitimate secular purpose."1394 The majority was concerned with the display of RELIGIOUS SYMBOLS, but the question that might have been asked is whether, under the ESTABLISHMENT CLAUSE, government has any business celebrating religious holidays, even one "acknowledged in the Western World for 20 centuries." Concurring, Justice Sandra Day O'Connor said that even though they may have "religious aspects," public holidays have "cultural significance" and celebrating them is a "legitimate secular purpose." As presidents, the two men most responsible for the Establishment Clause, Thomas Jefferson and James Madison, refused to proclaim even such secular national holidays as Thanksgiving because they believed that so doing unconstitutionally entangled state and church. RELIGIOUS

LIBERTY,

see:

freedom

of

religion

RELIGIOUS

SCHOOLS,

see:

private

schools, right to attend; schools, gion

reli-

in;

RELIGIOUS

SYMBOLS,

RIGHT

TO

DIS-

PLAY That the United States was founded by deeply religious people is indisputable. But the consequence of the tradition on which their devotion was based has led to difficult problems at the intersection of church and state—particularly in the symbolism that religious adherents have successfully affixed to the secular arms of the government. For two centuries the motto of the United States has been "In God We Trust." Most presidents, but not Thomas Jefferson or James Madison, have proclaimed Thanksgiving as a specifically religious holiday, asking Americans to give thanks to God for the bounty of the land. Both the Senate and the House have long employed religious chaplains, paid out of public funds. In recent times the Pledge of Allegiance acquired the words "under God" to describe the presumed belief of the nation. In view of these latent and blatant symbols, the Court was understandably reluctant in 1984 to declare unconstitutional a municipal display of a crèche in a Christmas display in downtown Pawtucket, Rhode Island. Speaking for a 5-4 majority, Chief Justice Warren E. Burger in Lynch v.

Donnelly held that there is a secular purpose for the crèche—a nativity scene depicting the infant Jesus, Mary, Joseph, angels, shepherds, kings, and animals, ranging in height from five inches to five feet—namely, a depiction of the "historical origins" of Christmas. Burger denied that the primary effect of the display was to benefit religion, though he acknowledged that there was an "indirect, remote, and incidental benefit." In a sentence devoid of self-awareness, Burger said that displaying this palpably religious symbol "is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as 'Christ's Mass.'" Throughout his opinion, Burger refers to Christmas as "the Holiday," in a perhaps unconscious imitation of the Framers' strategy of avoiding using the word SLAVERY in the Constitution. To outlaw the crèche, Burger said, would be a "stilted overreaction to our history" and would require the Court to acknowledge that a "host of other forms of taking official note of Christmas" violate the Establishment Clause. This the majority was unwilling to do. Concurring, Justice Sandra Day O'Connor said that the government's celebration of the holiday "generally is not understood to endorse" its religious content. She begs the question. Only in a society acculturated by the constant and overwhelming cultivation of the holiday could its religious significance be presumed secular. So common an event is difficult for a majority to view as an endorsement precisely because it is so familiar. The majority ignored the trial testimony of the town's mayor, who said that the purpose of displaying the crèche was to "keep 'Christ in Christmas.'" Dissenting, Justice William J. Brennan lamented that the majority's superficial conclusion that the symbols at the heart of Christianity are no different from Santa Claus or his reindeer "is not only offensive to those for whom the crèche has profound significance, but insulting to those who insist . . . that the story of Christ is in no sense a part of 'history.'" Lynch was a precursor. In 1989 Justice Harry Blackmun was the swing vote between two sets of four justices who produced two different 5-4 conclusions about religious symbols. This time the Court rejected the display of a crèche because it stood by itself on the Grand Staircase of the Allegheny County (Pennsylvania) courthouse, but upheld the display of a menorah next to a Christmas tree and a sign "saluting liberty" near the City-County Building.44 The crèche was held

421

422

R E L I G I O U S TEST to violate the Establishment Clause because it

ties and discussion, it violates the Establishment

was donated by a Catholic organization and sat in

Clause to deny a permit to the K u Klux Klan to

a prominent public space unadorned by jolly

erect an unattended cross during the Christmas

Santas or other decorations. Beginning in 1982,

season. 392 T h e public square in Columbus, Ohio,

the city displayed a menorah, symbol of the

had been used by a diverse assortment of groups,

Jewish holiday Chanukah, which usually falls

including homosexual rights organizations, the

near Christmas, alongside the annual Christmas

K u Klux Klan, and the United Way, and had held

tree display. T h e joint display was held to be

various unattended displays, including a lighted

nothing more than the celebration of two holi-

Christmas tree, a privately sponsored menorah,

days, and hence under Lynch secular and consti-

and arts festival booths. T h e city claimed that a

tutional.

permit for the cross would constitute an endorse-

T h e Court, or some segment of it, has devel-

ment of religion. Justice Antonin Scalia held that

oped a theory of secular religiousness. In a sen-

the display was private religious speech and was

tence of spooflike quality,

said,

protected by the First Amendment equally with

"Although the Christmas tree represents the secu-

secular speech. A plurality of four justices said

Blackmun

lar celebration of Christmas, its very association

that when the religious expression is private, there

with Christmas (a holiday with religious dimen-

can never be a violation of the Establishment

sions) makes it conceivable that the tree might be

Clause in a PUBLIC FORUM. Three other justices,

seen as representing religion when displayed next

concurring in the result, believed there could be

to an object associated with Jewish religion."

times when, in the words of Justice Souter, "an

Only a Christian could consider a Christmas tree

intelligent observer may mistake private, unat-

only conceivably religious or perhaps only secu-

tended religious displays in a public forum for

larly religious.

government speech endorsing religion." T h e issue

Dissenting, Justice John Paul Stevens noted that many Christians profoundly abhorred the use of the crèche "as an aid to commercialization of Christ's birthday" and many Jews equally deplored the use of the menorah. Quite aside from whether the municipality was endorsing any reli-

of what to do, then, remains unsettled. Where the Court will go with its perplexing analysis of religious symbols remains a mystery. See also: LEMON

TEST; RELIGIOUS

ESTABLISH-

MENT.

gion or religion in general, Stevens said that the Establishment Clause was meant to prevent pub-

RELIGIOUS

lic bodies from fomenting disagreements over the

British claim to religious toleration was hypocrit-

TEST

The

eighteenth-century

use of religious symbols. Moreover, Justice

ical. T h e Toleration Act of 1696 provided tolera-

Stevens noted, the net effect of the Court's deci-

tion only for Protestants, and any Christian who

sion must seem very odd to people unversed in

renounced the faith was rendered incapable of

the "intricacies of Establishment Clause jurispru-

holding public office. In the colonies, only Rhode

dence," for the Court must seem clearly to be

Island was open to all. Pennsylvania, the most lib-

preferring a Jewish symbol over a Christian one.

eral of the other colonies, denied citizenship or

Speaking for himself and three others, Justice Anthony M . Kennedy disagreed that the crèche display was unconstitutional. He worried that the decision would lead the Court to act as a censor, condemning the "orthodox" in favor of the secular in celebrating religious holidays and leaving "the only Christmas the state can acknowledge" one "in which references to religion have been

civil rights to those who refused to "acknowledge the being of a G o d . . . [who is] the rewarder of the good and punisher of the wicked." T h e state required officeholders to swear an oath that they believed the whole of the Bible was divinely inspired. North Carolina denied office to any who would not swear belief in the truth of Protestantism.

a result he branded

Under the moral and political leadership of

Kennedy did agree that certain

Thomas Jefferson and James Madison, the states

kinds of symbols used in certain ways would

after the Revolution began to rethink the link be-

clearly be unconstitutional—for example, "the

tween church and state. Jefferson's Virginia

held to a m i n i m u m , " "Orwellian."

permanent erection of a large Latin cross on the roof of city hall." In 1995 the Court held that when a city declares a public square to be open to public activi-

Statute of Religious Liberty in 1786 explicitly broke the link, declaring public office open to all, independent of religious belief. T h e Framers embodied this principle in Art. VI-[3], prohibiting

REMOVAL P O W E R the federal government from requiring any "religious test" as a qualification to any "office or public trust under the United States." N o cases have ever arisen under this clause, which applies only to federal office holding, although the Court did consider a related question when it struck down a provision in the Maryland state constitution in 1961 that required a prospective notary public to swear a belief in the existence of God. The Court invalidated this last of the state religious test clauses under the F I R S T A M E N D M E N T . 2 3 5 8 In 1978 the Court struck down under the Free Exercise Clause a Tennessee law barring the clergy from holding state office, 1 4 8 4 a reverse form of a religious test. See also: FREEDOM OFFICERS;

OF RELIGION;

RELIGIOUS

OFFICE

AND

ESTABLISHMENT.

R E M A N D When a higher court's ruling requires further action in a case, the higher court remands the case to the lower court—for example, when a conviction is reversed because of an inadequate jury instruction. The lower court's further disposition of the case may then, under appropriate circumstances, be appealed anew. On rare occasions, the Supreme Court has used the writ of C E R T I O R A R I to vacate a judgment and remand a case to a lower court without conducting a full-scale review. This " G V R order"—grant, vacate, remand—forces the lower court more fully to consider necessary issues that it had ignored before the Supreme Court expends its own scarce resources on a full hearing. 2 2 6 8 , 1 2 9 8 For example, when a federal C O U R T OF A P P E A L S , hearing an appeal in a case brought under the DIV E R S I T Y J U R I S D I C T I O N , apparently ignored and contradicted a recent decision by the state's supreme court on a point of state law, even though the parties brought the state courts controlling ruling to the federal court's attention, the Supreme Court issued a G V R order to force the federal appellate court to reconsider its ruling. 1 3 6 7 R E M E D Y , R I G H T T O There is no general constitutional right to a judicial remedy for injuries caused by other individuals or by the government, despite Chief Justice John Marshall's suggestion to the contrary in Marbury v. Madison. On several occasions the Court has held that "when [the United States] creates rights in individuals against itself, [it] is under no obligation to provide a remedy through the courts." 1 2 0 , 6 1 2 O f course, much of the law is concerned with pro-

viding remedies for harms, and so the question does not often arise whether the failure to provide a remedy is unconstitutional. The long-standing doctrine of S O V E R E I G N I M M U N I T Y bars suits against the government for official acts unless the government consents. Federal civil rights laws contain a major exception to this nonconstitutional, but nevertheless firmly entrenched, policy by providing for suits in federal court against state officials who deprive a person of federal constitutional rights. Through the doctrine of CONS T I T U T I O N A L T O R T S the Court has also inferred a limited right to sue federal officials for DAMA G E S when they violate someone's constitutional rights. But not every harm committed by public officials is compensable under these theories. In 1986 the Court held that it is not a constitutional violation for a state to act negligently, and any resulting harms may be redressed only through state lawsuits. But the Constitution does not require that the state allow such suits. So if the injury was caused by a state official who is immune from suit, the injured party will have no remedy at all. 5 8 4 , 5 8 9 See also: EQUITY MENT, NITY

CIVIL AND

RIGHTS

AFFIRMATIVE FROM SUIT;

PROCESS

AND

EQUITABLE

RIGHTS;

CIVIL

OBLIGATIONS PROCEDURAL

STATE

LIBERTIES;

REMEDIES;

GOVERNOF;

DUE

IMMUPROCESS;

ACTION.

R E M O V A L O F C A S E S Some types of cases fall within the C O N C U R R E N T J U R I S D I C T I O N of both federal and state courts. Congress has provided that many such cases brought initially in state courts may be removed—that is, transferred—to federal court. For example, when a citizen of one state sues the citizen of another in state court, the defendant may invoke the D I V E R S I T Y J U R I S D I C T I O N of the federal courts and have the case removed there. Both civil and criminal cases may be removed under appropriate circumstances. When a state prosecuted a federal internal revenue agent who had killed a man in the course of his official duties, the Court held removal proper to permit the agent to assert federal justification for the killing and to block the state's attempt to hinder the enforcement of federal law. 2 3 0 3 t See also: JURISDICTION.

R E M O V A L P O W E R , see: and removal power

appointment

423

424

RENT C O N T R O L R E N T C O N T R O L The Supreme Court has upheld many different types of rent control laws, beginning after World War I, when it sustained under the WAR POWER a federal law limiting the amount by which landlords could raise rents and conferring on tenants the right to remain in possession as long as they paid the rent. 203 During 2606 and after 1 3 3 8 World War II, the Court sustained similar national rent control regulations, dismissing the case of one landlord who complained that the rent ceiling prevented him from obtaining a fair return on the value of his property. 245 The end of the war did not terminate Congress's war power over rents. 2590, 7 7 5 However, a law that prohibited making "any unjust or unreasonable rate or charge" was invalidated for violating DUE PROCESS u n d e r the FIFTH A M E N D M E N T because it

was too vague to give notice of what rates would violate it. 1 2 6 5 Retroactive rent regulations have been upheld to bar eviction of a tenant against whom an eviction judgment had been rendered before the rent control law was enacted. 777 A federal rent control agency may order a landlord to refund rents already collected if the increase in rent had not been officially approved. 2591 In 1988 the Court signaled that it might be willing to rethink the basic constitutionality of rent control laws because they constitute a T A K I N G OF PROPERTY w i t h o u t J U S T C O M P E N -

SATION. A San Jose, California, ordinance permitted an annual rent increase to be rolled back if, in addition to other conditions, it was an "economic and financial hardship" on the present tenant. Although finding no due process or equal protection difficulty, the Court speculated that such a law might be an unconstitutional taking. It declined to consider the issue because the law had never actually been enforced against any landlord. 1 8 2 1 Dissenting, Justice Antonin Scalia insisted that the law is unconstitutional because the hardship of a tenant is not the landlords fault, and if the town wishes to aid poor tenants it should not put the burden solely on landlords. In 1992, presented with another rent control law, the Court remained unwilling to strike it down. A California statute prohibited operators of mobile home parks from refusing to rent space to a new owner when a mobile home is sold. The law was enacted to prevent new owners from losing the value of their investment by being put out, since the cost of moving a mobile home is significant. A local ordinance in the city of Escondido prohibited rent increases without the sanction of the city council. Operators of parks in Escondido

asserted that the effect of the two laws deprived them of the full use of their property and that they were therefore entitled to just compensation. Their theory was that the two laws gave mobile home owners a right to the property at a price below market value; sellers of mobile homes can realize a premium in value, but owners of the parks cannot. The Court unanimously disagreed, holding that the laws do not take the owners' property but merely regulate its use and that many other forms of land regulation in effect transfer wealth from one group to another. Since the laws do not "compel a landowner to suffer the physical occupation of his property," there was no unconstitutional taking. 2 6 1 3 See also: EQUAL PROTECTION

OF THE LAWS;

PRICE AND WAGE CONTROLS;

RATE

TION;

RETROACTIVITY;

REGULA-

RIPENESS;

VAGUE-

NESS.

R E P E L I N V A S I O N S , see: invasion R E P O R T E R ' S P R I V I L E G E Most witnesses to events that become the subject of official government investigations or legal proceedings are obliged to tell what they saw or what they know when appearing before a GRAND JURY or in court. The COMMON LAW recognizes "testimonial privileges," so that, for example, spouses may not be compelled to testify against each other, and doctors, lawyers, and the clergy may not be required to reveal the confidences they receive. U n d e r the FIFTH A M E N D M E N T , a n

ACCUSED

has a constitutional right against SELF-INCRIMINATION and so may not be compelled to testify at all when being investigated or prosecuted. The Court has also recognized limited FREEDOM OF ASSOCIATION a n d FREEDOM OF SPEECH privi-

leges against revealing certain kinds of information to government investigators. But the Court has never agreed that FREEDOM OF THE PRESS confers on reporters a privilege to withhold the identities of their sources. In 1972 it specifically rejected the claims of three journalists that they had a FIRST AMENDMENT right to withhold information from a grand jury. 263 For a 5-4 majority, Justice Byron R. White conceded that compulsory testimony might tend to dry up certain sources who would fear their names leaking out. But White said that the public interest in pursuing and prosecuting crimes must take precedence over the public interest in "possible future news about crime from undisclosed, unverified

REPRESENTATION sources." To cries of alarm that the press will be undermined, White noted that no such privilege has ever been conceded and yet for two centuries "the press has flourished." White was careful to note that NEWSGATHERING is entitled to some First Amendment protection and that bad-faith investigations, such as official harassment "undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification." He also made clear that the Court's decision did not prevent Congress or the states from enacting "shield laws" that give reporters a legal right to refuse to answer certain questions. In 1978 the Court refused to accord journalists and editors any special privilege against a police search of the newsroom for evidence that the reporters and photographers had gathered of crime committed by others. 2634 And in 1979 the Court held that journalists are not privileged in LIBEL AND SLANDER suits from answering questions about their state of mind while writing their stories. 1050 See also: INVESTIGATORY

POWERS

OF

LEGISLA-

TURE.

when the attachment procedures are constitutionally deficient that the private creditor may be sued in federal court. 1 3 8 9 See also: GARNISHMENT

Property stored in a warehouse may be sold without a court order for failure to pay storage costs. 773 It is only when state officials such as sheriffs are used to attach a debtor's property and

ATTACHMENT.

REPRESENTATION The Constitution established representation as the fundamental political principle, but it says next to nothing about the type of representation or the responsibilities of representatives to their constituents. Members of the House of Representatives are chosen by state and allocated by population, but the Constitution is silent about how individual members are to be chosen, beyond the requirement in Art. I-§2[i] that people qualified to vote in elections for the state legislature are entitled to vote for members of the House. Each state may determine for itself whether to require a single representative to be elected from separate districts or to permit the statewide electorate to vote for multiple members. Likewise, whether to have winner-take-all elections or some form of proportional representation is a political issue for the states as long as the method does not discriminate against voters on a basis

R E P O S S E S S I O N In 1972 the Supreme Court ruled that whenever a state law gives a creditor the right to repossess any "significant property interest," the debtor is entitled to NOTICE and a HEARING before being deprived of its use. 821 But in 1974 the Court held that as long as certain procedural protections are guaranteed, a court may order property to be seized without first giving the debtor a hearing. Prehearing seizure orders are valid, the Court said, if (1) the creditor demonstrates before a neutral magistrate, not a court clerk, that there are reasonable grounds to believe the property may be repossessed; (2) the creditor supplies adequate security to recompense the debtor should the creditor be mistaken; and (3) a prompt postrepossession adversary hearing is held, at which the creditor must bear the burden of proof. 1 5 7 5 In 1991 the Court seemed to backtrack, holding in a case in which a man's house was attached as part of a civil suit for assault and battery that the states may not permit real estate to be attached without a prior hearing, except in rare circumstances. 518

AND

forbidden

by

the

EQUAL

PROTECTION

CLAUSE or b y the FIFTEENTH or NINETEENTH

AMENDMENT. Article I-§3[i] originally gave the choice of senators to the state legislatures, but in 1913

the

SEVENTEENTH

AMENDMENT

estab-

lished popular voting within each state. Being elected, the president is said to be a representative o f t h e p e o p l e , b u t t h e E L E C T O R A L C O L L E G E is a

fundamentally different representative system. The Constitution is even more opaque about the requirement of representation at the state level. Article I-§2[i] implies that the state legislatures must consist of elected representatives. Since all state houses are elected bodies, the issue has never been tested. In 1966 the Court upheld a Georgia election law permitting the state legislature to elect the governor when no candidate got a majority of the popular vote. The logic of the decision seems to suggest that elections, as such, are not a prerequisite for every major political office. 8 0 1 The Court also upheld a Puerto Rican procedure permitting a political party to fill a vacant seat in the legislature caused by the departure of one of its members. 2 0 1 3 Because representation is fundamental, decisions made by nonrepresentative institutions are often thought to be suspect: decisions by unelected judges are said to be anti- or countermajoritarian, even though they may sometimes seem to protect

425

426

R E P R E S E N T A T I O N , D I S T R I C T OF C O L U M B I A those whom "political processes ordinarily to be relied upon" 405 fail to protect. Moreover, "representative" often cannot be equated with "legitimate," since many of the actual operations of Congress and the executive branch are far from representative. The platitude that voters may, after all, always "throw the rascals out" when representatives vote unwisely in the legislative chambers is naive, since much of what gets enacted is effectively insulated from electoral wrath. See also: APPORTIONMENT

OF POLITICAL

TRICTS;

CHECKS AND BALANCES;

ANISM;

MULTIMEMBER

ELECTION

OFFICE AND OFFICERS;

RATIO OF

TION;

REPUBLICAN

SEPARATION

OF

OF POWERS; VOTING,

REPRESENTATION, LUMBIA,

FORM

see:

DISTRICT

District

of

DISTRICTS; REPRESENTAGOVERNMENT;

OF

TO.

CO-

Columbia,

c o n s t i t u t i o n a l s t a t u s of REPRESENTATIVES

IN C O N G R E S S ,

C o n g r e s s , m e m b e r s of;

see:

qualifications

for office R E P R I E V E S , see: pardons, reprieves, c o m m u t a t i o n s , and amnesties R E P R I S A L , see: l e t t e r s of m a r q u e

See also: FAMILIES; RIGHTS, UAL

FUNDAMENTAL

AND PRIVILEGES;

INTERESTS,

ILLEGITIMACY;

SEX-

FREEDOM.

DIS-

MAJORITARI-

RIGHT

led in two directions: to an almost absolute right to CONTRACEPTION for anyone, whether or not an adult and whether or not married, and to a broad right to ABORTION. As presently construed, the fundamental right to procreation clearly prohibits compulsory limitation of family size, a policy encouraged or enforced in some countries.

and

reprisal R E P R O D U C T I V E R I G H T S The right to reproduce implies the right both to beget and bear children and to refrain from doing so. Though this right is not mentioned in the Constitution, the Supreme Court has declared procreation a fundamental right under SUBSTANTIVE DUE PROCESS. It was not always so. In 1927 the Court upheld a Virginia law requiring sterilization of mentally defective institutionalized persons. In a widely quoted—and deplored—sentence, Justice Oliver Wendell Holmes said that "three generations of imbeciles are enough." 309 But in 1944, in an opinion by Justice William O. Douglas, the Court struck down an Oklahoma law requiring sterilization of persons convicted of three felonies comprising MORAL TURPITUDE, except for embezzlement.

Douglas noted that the sterilization law "involves one of the basic civil rights" and said the law was a "clear, pointed, unmistakable discrimination" that v i o l a t e d EQUAL PROTECTION OF T H E L A W S . 2 1 6 5

Then, in Griswold v. Connecticut in 1965, the Court announced a broad right to PRIVACY, which soon

R E P U B L I C A N FORM OF G O V E R N M E N T Article IV-§4 says that the "United States shall guarantee to every state in this union a republican form of government." The Supreme Court has consistently declared that issues arising under this clause are to be settled politically, not judicially. The leading case is Luther v. Borden, which arose when a popular and violent uprising in Rhode Island for a time claimed to have replaced the legally elected government.* The question was whether the head of a government posse, which raided the home of an opponent of the original government, could be sued for trespass. The posse asserted that the raid was authorized by the lawful government and hence was not trespass. The homeowner asserted that the popular uprising had ousted the original government; hence the raid was not legally authorized and therefore was trespass. Chief Justice Roger B. Taney said that the issue was a political question and that it was constitutionally up to Congress to decide whether to intervene. Since Congress had done so by an act of 1795 that gave the president authority to call out the MILITIA to suppress an insurrection in any state, it was therefore for the president to decide whether an insurrection had actually occurred and whether it should be quelled by force. After the Civil War, Georgia asserted that Reconstruction legislation was unconstitutional because the state had a republican form of government and that Congress was therefore powerless to deal with its government structure. The Court responded that the clause did not act as a restriction on Congress but rather gave it power to act. 861 In 1912 the Court rejected the contention that political devices such as the REFERENDUM AND INITIATIVE, by which people can

make law directly, violate the clause. 1 7 8 5 , 1 7 4 7 See also: COMMITMENT JUSTICIABILITY; TRINE; HOOD.

TO OTHER

POLITICAL

POSSE COMITATUS;

BRANCHES;

QUESTION

DOC-

STATES AND

STATE-

RES J U D I C A T A R E P U T A T I O N When a person's reputation is wrongly sullied, the constitutional ramification depends on whether the defamation was caused by a private individual or the government. When the libel or slander results from erroneous statements of a private person, including newspapers and the broadcast media, the actual-MALLCE rules first enunciated in New York Times v. Sullivan apply: unless the defendant knew that the statement was false, or acted in reckless disregard of whether or not it was false, PUBLIC FIGURES A N D OFFICIALS may not recover D A M A G E S . When the government defames, a different issue arises. State officials may be sued in federal court for violating a persons federal rights. In 1971 the Court considered a suit in which a police chief, acting under a Wisconsin habitual drunkard law, posted a notice in all the town's liquor stores that a particular woman was not permitted to buy or receive liquor for one year. The chief acted unilaterally, without first giving the putative drunkard an opportunity to be heard. The Supreme Court held that an interest in one's "good name, reputation, honor, or integrity" is an aspect of LIBERTY protected by the F O U R T E E N T H A M E N D M E N T and that the failure to provide N O T I C E and hold a H E A R I N G violated her right to P R O C E D U R A L D U E PROCESS. She could therefore sue in federal court for damages.2566

However, in 1976 the Court significantly backtracked in Paul v. Davis, a case arising when a police chief, without first providing notice or holding a hearing, distributed to local merchants a man's name and photograph in a sheaf of "active shoplifter" materials. The man had been arrested, but the charges were dismissed. This time the Supreme Court dismissed the lawsuit, holding that the government invades no constitutional liberty interest when the only consequence of its action is injury to reputation. The Court distinguished the Wisconsin and other earlier cases on the ground that in those cases the government had infringed or extinguished an additional right of the injured persons, for example, by depriving the woman of her common right to obtain liquor. The upshot of Paul v. Davis is that the government need not provide a hearing before releasing stigmatizing information about a person, although state law may (but need not) independently permit a damage suit for libel against the government official. In 1991 the Court extended Paul, holding that the government may release information about a person's job performance without a hearing even when the result may well

be that he will be denied credentials required to continue working for the federal government.2150 See also: LIBEL AND SLANDER;

PROCESS

RIGHTS;

REMEDY, RIGHT TO.

JUDICATA Res judicata (Latin for "the thing has been decided") is an old COMMON LAW principle that bars further litigation of an issue about which a court has rendered a final decision in a dispute between the parties. Although it is not a constitutional term, the Court has accorded it nearly constitutional status, akin to the D O U B L E J E O P A R D Y rule barring reprosecution of a defendant for the same offense. The Court has held that '"principles of public policy and of private peace' dictate that the matter not be open to relitigation every time there is a change in the law," 66 ' 751, 1 0 1 1 so res judicata applies even when a new constitutional interpretation would have changed the result in an earlier case.454 RES

An issue is not res judicata if it was decided in some other case not involving one of the parties. The Court reversed an Alabama procedure under which a bookseller could be criminally convicted of selling obscene materials if caught with any book or magazine in inventory that had been adjudged obscene at a prior civil hearing unrelated to the defendant. The Alabama law prohibited the bookseller from relitigating the issue of the work's obscenity, since there was another party to "represent" the work at the earlier obscenity determination. In an opinion by Justice William H. Rehnquist, the Court unanimously concluded that under the FIRST A M E N D M E N T a later court and jury in an unrelated proceeding must decide the issue fresh. 1501 But the Court pointed to res judicata to prohibit the federal government and an Indian tribe from relitigating the issue of water allocation when the government had previously represented the tribe and other people with an interest in the water allocation.1658 In 1996 the issue arose whether res judicata should apply when, although the parties in the second suit were different, their interests were the same as those of the parties in an earlier litigation. Taxpayers were contesting an Alabama county's occupational tax. The state contended that the suit was barred by res judicata because in an earlier suit involving similarly situated employees subject to the tax, the county's position was upheld. Since the same legal issues had already been litigated and since the parties' interests were substantially identical,

427

428

RESERVED

POWERS

the state supreme court agreed and dismissed the suit. The Court unanimously reversed.1981 Justice John Paul Stevens noted that the parties to the first suit provided no NOTICE to the litigants in the second case "that a suit was pending which would conclusively resolve their legal rights," nor did the first parties purport to be suing as a class on behalf of all such other taxpayers. The county responded that if the second group were permitted to proceed, it would be subject to repeated constitutional attacks, making the county fiscally unstable. Justice Stevens said that when a person is seeking to bar the county from collecting "personal funds," there can be no res judicata bar, although the state courts are certainly entitled to look to the earlier case as precedent for subsequent ones. See also: RETROACTIVITY;

RESERVED

POWERS,

power; Tenth

STARE

DECISIS.

see:

spending

See also: APPORTIONMENT TRICTS; ARM

CITIZENS

STATUTE;

RIGHT

TO;

SERVICE

VOTING,

RESIDENTIAL

OF POLITICAL

DIS-

CITIZENSHIP;

LONG-

OF PROCESS;

TRAVEL,

RIGHT

TO.

P I C K E T I N G , see: p i c k e t -

ing RESIDENTIAL

SIGNS,

see: v i s u a l

clut-

ter RESIGNATION presidential RESOLUTION, or

OF T H E P R E S I D E N T , see: succession see:

order,

resolution,

vote

RESPONSIBILITY

OF

see: g o v e r n m e n t ,

affirmative

GOVERNMENT, obliga-

t i o n s of

Amendment RESTRICTIVE

RESERVED

AND

RIGHTS,

see:

Ninth

Amendment

RESIDENCE The concept of residence is pliable. It takes its meaning from the legal benefit or burden sought to be gained or avoided. For purposes of voting, residence is determined by the law of the state in which the person seeks to vote. Most states look to whether a person maintains a permanent home there to which he or she returns after a temporary absence. This form of residence is often known as "domicile." But not every state has so commonsensical a policy. Under Texas law George Bush could call the Lone Star State his legal residence simply by renting a hotel room and declaring an "intention" to make it his home someday, even though it is plain that while he was president he actually lived in the District of Columbia and Maine. Under the PRIVILEGES

AND

IMMUNITIES

Clause, residence and citizenship are practical

COVENANT

A

restrictive

covenant is an agreement in a deed prohibiting the landowner from using the property in a certain way. For example, restrictive covenants in the deeds of neighbors may bar each of them from maintaining a certain kind of business on the premises or from erecting more than two floors on a dwelling. Restrictive covenants of this type are enforceable and present no constitutional difficulty. But until 1948 the courts also upheld racially restrictive covenants barring owners from selling to buyers of a certain race or religion. The racial covenant became widespread after 1917, when the Court invalidated racially exclusionary ZONING laws that segregated blacks into certain neighborhoods.308 The courts enforced the covenants by permitting homeowners to sue to enjoin neighbors from voluntarily selling to black buyers. In 1948, in Shelley v. Kraemer, the Court killed all racially restrictive covenants by ruling that they are judicially unenforceable under the

equivalents. To determine DIVERSITY JURISDIC-

EQUAL PROTECTION CLAUSE, since an INJUNC-

TION, the Court has distinguished between domicile and residence. A person temporarily residing in one state is not a citizen2276 but can become one merely by moving to a different state and declaring an intention to remain there indefinitely.2552 In recent years, the Court has found constitutional limitations on state authority to deny resident status to newcomers through DU-

TION against the sale of a home to enforce a racial covenant amounts to STATE ACTION that unconstitutionally discriminates solely on the basis of race. Even though the Equal Protection Clause does not apply in its terms to the federal government, the Court held in a COMPANION CASE that the courts may not enforce racial covenants in the District of Columbia on the ground that it would violate "public policy of the

RATIONAL RESIDENCY REQUIREMENTS.

RETROACTIVITY United States" to permit federal courts to enforce agreements constitutionally unenforceable in state courts. 1106 In 1953 the Court extended the principle to bar a homeowner's suit for DAMAGES against a neighbor who violated a racially restrictive covenant. Otherwise, the majority said, a damage suit would be an indirect means of blocking sales to blacks on purely discriminatory grounds. 160 Many deeds still contain racially restrictive covenants, but as a consequence of these cases, the covenants are legally meaningless. RESULT-ORIENTED see: neutral

JURISPRUDENCE,

principles

RETARDATION,

see:

mental

retarda-

tion RETIREMENT,

see:

mandatory

retire-

ment

RETROACTIVITY Whether a retroactive law or rule can constitutionally have legal effect depends almost entirely on the particular circumstances in which it is to be applied. Despite some popular misconceptions, the Constitution precludes legal retroactivity in only one area—criminal p u n i s h m e n t . T h e EX POST FACTO CLAUSES

of Art. I bar the federal government and the states from punishing conduct that was not unlawful when it was undertaken. But as early as 1798 the Supreme Court upheld retroactive laws that do not have penal effect. 357 The Court has frequently upheld Congress's custom of making tax laws retroactive by, for example, declaring their effective date to be the beginning of the year in which they were enacted.305, 588 In 1994 the Court unanimously held that it is constitutional to apply retroactively an amendment to the federal estate tax law, resulting in the disallowance of a deduction that otherwise could have been taken.402 The Court has distinguished retroactive gift taxes, though, striking down a law imposing a tax on recipients in whom the property had wholly vested before the tax was enacted. 2421 Laws that limit a person's enjoyment of property or other legal rights acquired before the law was enacted are constitutional. In 1976, for example, the Court upheld a federal law requiring coal mining companies to pay disability benefits to workers suffering from black lung disease, even though they had quit their jobs before the law was passed.2424 BANKRUPTCY laws frequently operate to extinguish prior contractual commit-

ments, and the Court has upheld them. 993 In 1989 the Court upheld a federal law imposing a user fee on claimants who won awards from the Iran-United States Claims Tribunal, including those whose awards were rendered before the fee law was enacted. 2220 In general, the Court applies a general presumption against the retroactive operation of statutes. In 1994, for example, the issue was the retroactivity of a provision in the 1991 Civil Rights Act that extended the right to trial by jury and to compensatory and punitive damages in cases of sexual harassment on the job. A woman whose claim for back wages was dismissed by a judge before the 1991 law was enacted sought a new trial because her appeal was still pending when the new provisions became effective. In an 8-1 decision, Justice John Paul Stevens held that the Court would "decline to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent"—which, the Court concluded, Congress had not done in the 1991 Civil Rights Act—and unless there was some other reason that would compel a retroactive result. A jury trial, for example, might be required for all cases not yet tried at the time the law took effect, even though the conduct that is the subject of the lawsuit preceded the law. But the jury trial requirement was coupled with the right to collect punitive damages, and "retroactive imposition of punitive damages would raise a serious constitutional question." 1280 In a case decided the same day, the Court extended the same reasoning to a case in which two black employees asserted that they were fired from their jobs because of their race. Before their trial began, the Supreme Court had decided in Patterson v. McLean Credit Union that a federal civil rights law under which they were suing applied only to discrimination in hiring, not firing. The trial court held that the employees' claims were not covered by the law. While their appeal was pending, Congress enacted the 1991 Civil Rights Act, and the employees insisted that Congress's intention was to overturn the Supreme Court's understanding of the earlier law and to restore the right to sue for discriminatory discharge. Interpreting the new law, the Court disagreed that Congress had intended to do so; the Court held that it would not presume an intent to act retroactively, although Justice Stevens did conclude that in this case Congress could have imposed the restorative statute retroactively if it had chosen to do so and clearly manifested its intent. 1997 The Court has

429

430

REVENUE also declined to give retroactive effect to certain noncriminal decisions interpreting federal statutes. 444,784 Judicial decisions frequently operate retroactively. For example, the courts may apply new rules to the parties before them. Ordinarily a court's announcement of a new rule that applies to the parties is the essence of the COMMON LAW and has no constitutional consequences. State courts occasionally refuse to apply such rules to the parties in the case to avoid the unfairness of retroactivity. But federal courts are generally precluded from following this policy, since the effect of announcing a rule change for the future is in essence an unconstitutional advisory opinion. 2257 A new rule cannot change the result in a case that has resulted in a FINAL J U D G M E N T , b u t it m a y

often be applied to cases still pending. Unlike its presumption against statutory retroactivity in pending cases, the Court has held that its own decisions on matters of federal law must be given retroactive effect in pending cases. In 1989, in Davis v. Michigan Dept. of Transportation, the Court held that states may not constitutionally tax retirement benefits paid by the federal government if they do not also tax retirement benefits paid by the state or by one of its subdivisions. To comply with the result in Davis, Virginia repealed an exemption in its income tax law for retired state employees. It also permitted retirees to seek refunds but limited what pensioners could recover to amounts withheld from them during the three previous years. The Virginia Supreme Court held that the Davis case need not be applied retroactively; hence it was permissible for the state to limit the amount of refunds. The Court reversed. Said Justice Clarence Thomas for a 7 - 2 majority, "When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule." 1000 Likewise, in 1995 the Court unanimously held that the Ohio Supreme Court violated the SU-

motor vehicle accident that occurred four years before the decision in Bendix, the Ohio Supreme Court said that the Bendix ruling applied only to cases arising after 1988. The Supreme Court held that any new rule announced by the Supreme Court must be applied to all pending cases, whether or not the events in question occurred before the new rule was announced. 1974 Retroactivity of decisions involving procedures in criminal prosecutions became a major problem for the Court beginning in the mid1960s. The Court has ruled that any constitutional rule relating to the conduct of criminal prosecutions must be applied retroactively to all cases not yet final when the rule is announced. 1895 But the issue is much more tangled when prisoners seek through HABEAS CORPUS review to take advantage of new constitutional interpretations decided after their direct appeals have become final. This issue is discussed under the h e a d i n g NEW RULE.

In rare cases the Court has found that the consequences of a court's retroactive decision violates DUE PROCESS. For example, in a leading 1930 case a bank had sued to enjoin enforcement of a Missouri county tax that it said was being assessed in an unconstitutionally discriminatory manner. The Missouri Supreme Court dismissed the suit, holding that because the bank failed to pursue an appeal before the state tax commission in a timely fashion, it was barred from complaining in a later lawsuit. In an earlier case, the state supreme court had ruled that the tax commission could not consider the type of case it was now changing its mind to say the bank should have presented. The state court's second decision retroactively barred the bank from obtaining any legal relief, saying in effect, "you waited too long to take advantage of a remedy that we are just now announcing you had." For a unanimous Court, Justice Louis D. Brandeis declared that the consequence of the state court's ruling was unconstitutionally to deny to the bank "the only remedy ever available for the enforcement of its right to prevent the seizure of its property." 276 t

PREMACY CLAUSE in r e f u s i n g to a p p l y retroac-

See also: ADEQUATE STATE GROUNDS;

tively the rule in Bendix Autolite Corp. v. Midwesco Enterprises, Inc., a 1988 case in which the Court had struck down a state law giving Ohio residents an unlimited amount of time to sue out-of-state, but not in-state, defendants in tort cases. The Ohio court refused to follow the Court's ruling because the case arose from a

OPINIONS; EXHAUSTION OF REMEDIES; ITY;

OBLIGATION

OF

CONTRACTS;

ADVISORY FINALVESTED

RIGHTS.

REVENUE,

see:

Clause; income taxing

power

General tax; spending

Welfare power;

R I G H T T O BE I N F O R M E D R E V E N U E S H A R I N G , see: g r a n t s in a i d ;

judgment about the constitutional question. In

spending

so doing, it reversed the state court, holding that

power

the FIRST AMENDMENT prohibits an absolute R E V E R S E D I S C R I M I N A T I O N , see: affirmative action; racial discrimination; segregation and integration R E V I E W , T I M I N G O F A party unhappy with the course of a trial may not suddenly ask the Supreme C o u r t to review the proceedings. Under federal law, the Supreme Court may hear an appeal from lower court decisions only at certain times and under certain circumstances. T h e most important rule is that the Court may hear state appeals only from the highest court in which a decision may legally be rendered. If there is a higher state court that has legal authority to consider an appeal, the litigant must first appeal to that court, even if it is extremely unlikely that the court will hear the case. Even then, the Court may review only "final judgments," meaning that the state court case must have come to an end. However, the Court has carved out several general exceptions to this final judgment rule. For example, the Alabama Supreme Court upheld the constitutionality of a state law prohibiting newspapers from printing an editorial about a proposition on the ballot on election day. It then sent the case back to trial, so technically the case was not at an end. But the newspaper conceded that it had written the editorial, so it was clear that it would be convicted and would then appeal the constitutional question. Under those circumstances, the Court held that the state court's ruling on the constitutional issue was final and could be appealed. T h e Court then held that the Alabama court was wrong on the constitutional issue, thus ending the need for a trial. 1 5 5 1 Even if the litigant would not necessarily lose at trial, a state court's ruling on a federal question can be appealed before the case has ended. T h e Mississippi Supreme Court upheld a state law against printing the names of rape victims in newspapers and remanded the case to trial. Since the newspaper might win on other, nonfederal grounds at trial, it could be argued that there was no need for an appeal in the U.S. Supreme Court until the jury rendered its verdict. T h e Court held, however, that since under those circumstances there could be no appeal at all in the U.S. Supreme Court, a faulty constitutional ruling would be left intact. T h e Court ruled that it could review immediately the state court's final

ban on printing a crime victim's name. 5 4 9 See abo:

ABSTENTION

STATE GROUNDS; MOOT NESS; ULATION

DOCTRINE;

FINALITY;

JUDICIAL

PRIVACY; RIPENESS;

OF CONTENT

REVISION, COUNCIL of R e v i s i o n

ADEQUATE REVIEW;

SPEECH,

REG-

OF.

OF, see:

Council

R E V O L U T I O N , R I G H T O F Although it was a necessary antecedent to the Constitution, revolution is understandably not a right protected by the Constitution, even though the DECLARATION OF INDEPENDENCE says that the people have a right and duty to "throw o f f " any government that seeks "to reduce them under absolute despotism." Because the Constitution itself is a better answer to tyranny than revolution, there is no need for a constitutional right of revolution, which would surely turn the Constitution into a "suicide pact," as Justice Robert H . Jackson once lamented might be the tendency of the Court's "doctrinaire logic" in free speech cases. 2 3 0 7 Through SEPARATION OF POWERS, equal voting rights, a n d w i d e s p r e a d CIVIL RIGHTS AND CIVIL LIBERTIES,

including

the FIRST

AMENDMENT

freedoms of expression and FREEDOM OF ASSOCIATION, the Constitution is designed to check the "long train of abuses and usurpations" to which despots are wont. RIGHT AGAINST SELF-INCRIMINATION, see: s e l f - i n c r i m i n a t i o n R I G H T OF R E V O L U T I O N , t i o n , r i g h t of

see:

revolu-

R I G H T OF T H E P E O P L E TO KEEP A N D BEAR A R M S , see: a r m s , r i g h t to k e e p and bear RIGHT TO A SPEEDY AND PUBLIC T R I A L , see: t r i a l , public; t r i a l , s p e e d y R I G H T TO ASSEMBLE, see: f r e e d o m assembly

of

R I G H T T O BE I N F O R M E D , s e e : a c c u s a t i o n , n o t i c e a n d s p e c i f i c i t y of; g o v e r n m e n t d o c u m e n t , c o n f i d e n t i a l i t y of;

431

432

R I G H T TO C O N T R A C T readers' rights; right to know; to reply

right

R I G H T TO C O N T R A C T , see: f r e e d o m of contract R I G H T T O C O U N S E L , see: c o u n s e l , a s s i s t a n c e of R I G H T T O D I E Whether there is a constitutional right to die has never been squarely decided. In the much discussed case Cruzan v. Director, Missouri Dept. of Health, the Supreme Court said in 1990 that "for purposes of this case, we assume that . . . a competent person [has] a constitutionally protected right to refuse lifesaving hydration and nutrition." 566 The issue in Cruzan was not about whether a hospital must honor a patients unequivocally expressed desire to die. The problem was that the patient herself was in a persistent vegetative state and unable to express any desire. The issue was how much evidence it would take to prove that, when competent to do so, the patient had stated her wish that the hospital should "pull the plug" under these circumstances. The Supreme Court upheld Missouri's requirement that her wish to be refused treatment be shown by "clear and convincing evidence." Cruzan did not discuss a hypothetical right of a conscious and functioning person to commit suicide directly—by taking an overdose of drugs, for example—and it is extremely unlikely that the Court's right-to-die D I C T U M will be held to have encompassed such a situation. See also: ASSISTED

SUICIDE,

ICATION AND SURGERY, DARD OF;

RIGHT

FORCED;

TO;

MED-

PROOF,

STAN-

VACCINATION.

R I G H T TO E D U C A T I O N , see: e d u c a t i o n , right to R I G H T TO E M P L O Y M E N T , see: o c c u p a tion, right to pursue; public employment R I G H T T O K N O W As conventionally viewed, the freedoms of expression guaranteed by the F I R S T A M E N D M E N T protect the right of speakers to have their say and the right of readers and listeners to read and hear what's being said. A third possible right, only weakly developed and potentially destructive of the other two rights, is the

right to know—that is, the right to the knowledge that someone else possesses. In 1980, for the first time, the Court held that there is a constitutional right to attend a criminal T R I A L , in essence upholding a right of access to certain government information. 1989 But there is no such general right, although Congress has the power to order government files opened and to some degree has done so in the Freedom of Information Act. There have also been scattered decisions that imply a right to know. For example, the Court spoke of a right to acquire knowledge when it struck down a law prohibiting the teaching of foreign languages to children 1525 and when it invalidated a law criminalizing the mere possession of pornographic literature in the home. 2234 But a right-to-know doctrine would be treacherous if held to embrace an enforceable right or power to demand certain kinds of information. In a 1961 case, there was a fleeting suggestion that a Wisconsin law requiring every lawyer in the state to join and pay dues to the state bar was permissible because, among other reasons, people of the state have the right to know where their lawyers stand on certain issues.1294 The Court made little of the suggestion; but broadly extended, such a notion would seriously infringe fundamental notions of P R I V A C Y . It might also seriously impinge on freedom of the press. If people have the right to know what candidates for political office are thinking on certain issues, then perhaps the state has the power to order newspapers to publish interviews or even articles by the candidates. In 1974 the Court said that a Florida R I G H T T O REPLY law that had such an effect clearly violated the First Amendment. 1526 In 1978 the Court hinted at a right to obtain information superior to the right of broadcasters to deliver it. In an astounding statement in the Case of the Seven Dirty Words,740 the Court said that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder."740 Who here is the intruder? The Court seems to conceive of radio broadcasts as a fixed natural resource like water that the state may purify before it comes into the home, rather than the active product of a speaker constitutionally entitled to talk. In effect, the Court is saying that the public has a right to cer-

RIGHTS, W A I V E R OF tain kinds o f programming. T h e people's right is

discriminated on the basis o f "viewpoint": only

to turn o f f the radio.

those groups seeking to raise funds to oppose the

See also: FREE PRESS-FAIR TRIAL; FREEDOM OF SPEECH; FREEDOM OF THE PRESS; OFFENSIVE AND INDECENT SPEECH; READERS' RIGHTS. RIGHT TO

P E T I T I O N , see: f r e e d o m

of

petition

P R O C R E A T E , see:

RIGHT TO

re p r o d u c -

rights

RIGHT

TO

right to RIGHT

fore the commission were permitted access to the envelopes. 1 7 8 1 R I G H T T O T R A V E L , see: t r a v e l , r i g h t t o R I G H T T O T R I A L , see: t r i a l , r i g h t

R I G H T T O P R I V A C Y , see: p r i v a c y

tive

utility's position in rate-making proceedings be-

TO

R I G H T T O V O T E , see: v o t i n g , r i g h t

to

RIGHT

see:

TO

WELFARE

BENEFITS,

welfare benefits, right PUBLICITY,

see:

publicity,

personal REPLY

RIGHT

TO

right to Although

the

FIRST

to

WORK,

to

see:

occupation,

pursue

RIGHT-PRIVILEGE

DISTINCTION

Until

AMENDMENT permits the government to provide

the 1970s it was generally assumed that what the

a right of ACCESS TO BROADCASTING media, the

government gave in jobs or benefits it could take

Supreme C o u r t has taken a dim view o f state laws

away, free o f constitutional restraints. T h e gov-

granting access to newspapers and private mail-

ernment benefit was a "privilege," not a right.

ings. In 1974 the C o u r t unanimously struck down

Justice Oliver Wendell Holmes declared this dis-

a Florida right-to-reply law that required newspa-

tinction in his epigram in 1892 while still on the

pers to provide political candidates attacked in

Massachusetts Supreme Judicial Court: " T h e pe-

their pages with equal space to respond to criti-

titioner may have a constitutional right to talk

c i s m . 1 5 2 6 Florida argued that its law was justified

politics, but he has no constitutional right to be a

by the need to ensure the "free flow o f informa-

policeman," meaning that the policeman could

tion." But since no law prevented political candi-

be fired for expressing his views.* Beginning in

dates from saying whatever they wanted, the real

the 1950s in several LOYALTY OATH cases, the

purpose o f the law was to enable candidates to

C o u r t blunted the government's blanket claim to

reach the newspaper's audience and to foster a "re-

fire employees for exercising political rights. B y

sponsible press." T h e Florida law was a subde at-

the 1970s the distinction had collapsed. As Justice

tempt to legislate a RIGHT TO KNOW. C h i e f

Potter Stewart put it in a 1972 case, "[E]ven

Justice Warren E. Burger noted that although a re-

though a person has no 'right' to a valuable gov-

sponsible press is a desirable goal, the Constitution

ernmental benefit and even though the govern-

does not require it, and the First Amendment bars

ment may deny him the benefit for any number

any attempt by the government to guarantee it.

of reasons, there are some reasons upon which the

FREEDOM OF THE PRESS means freedom from

government may not rely." 1 8 4 6 These reasons in-

any attempt by government to tell editors how to

clude a desire by the government to infringe an

do their jobs. A m o n g other things, the require-

employee's

ment of equal space would limit the freedom of

SPEECH.

or

beneficiary's

FREEDOM

OF

the newspaper to determine how to make up its pages and would multiply lawsuits in determining

See

what in fact is "equal" and what constitutes an at-

PROCESS RIGHTS; PROCESS THAT IS DUE; PUB-

tack sufficient to warrant compulsory space.

LIC EMPLOYMENT; UNCONSTITUTIONAL

In 1986 the C o u r t held, 5-3, that a state pub-

also:

PENALTY-SUBSIDY

DISTINCTION; CON-

DITIONS; VESTED RIGHTS.

lic service commission could not constitutionally The

Constitution's

order a privately owned utility c o m p a n y to in-

RIGHTS,

clude in the envelope containing its monthly cus-

guarantee of a right does not mean that you are

WAIVER

OF

tomer newsletter a mailing f r o m an advocacy

bound to take advantage o f it. You have a right to

group opposing the utility's position on public is-

speak but may keep quiet. W h e n accused of a

sues. T h e commission's order unconstitutionally

crime, you have the right to a TRIAL BY JURY and

433

434

RIGHTS IN WARTIME proof beyond a REASONABLE DOUBT, but you may waive those rights by pleading guilty. Waiver questions frequently occur in criminal cases, and the Court has made clear that although waiver is permissible, an ACCUSED may not be held to have waived rights inadvertently. Waiver must be voluntary and "knowing, intelligent [and] done with sufficient awareness of the relevant circumstances and likely consequences." 259 As long as the waiver is knowing and voluntary, a person may even waive a right to contest a death sentence under a law not yet shown to be constitutional, as the Court ruled in upholding Gary Gilmore's desire to be executed. 880 The standard for assessing whether a person has constitutionally waived the right to counsel and the right to trial by pleading guilty is the same as the competency standard for standing trial—namely, whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him." 8 9 0 The Court rejected the argument that the standard of competency for waiving right to counsel and for pleading guilty should be higher than the mental competence required to stand trial with the assistance of counsel.

there was a waiver at all. For example, signing a contract permitting a seller to "take back" goods if the buyer defaults is not a waiver of a right to notice and a hearing. 821 But if a contract is the product of negotiation "carried on by corporate parties with the advice of competent counsel" and if it explicitly recites that no notice or hearing is necessary for REPOSSESSION, then waiver has been demonstrated. 577 Cases sometimes arise in which the police unlawfully arrest a suspect, who then sues for DAMAGES under federal civil rights laws. Should the courts enforce an agreement between prosecutor and defendant dropping both the pending criminal charges and the damages case—in essence, a waiver of the defendant's right to sue under the civil rights laws? In 1987 the Court said that it depends on the circumstances. The problem is that the situation may be inherently coercive: the threat of criminal charges will often prompt a defendant to avoid them by dropping the civil case. But if the prosecutor can demonstrate that the agreement was voluntary and not the "product of an abuse of the criminal process," it can be enforced. 1 6 9 1

A person may waive a constitutional right by deed as well as by word. When a judge said in open court that he intended to talk in private to a juror seated in a criminal case to determine whether the juror's objectivity had been undermined, the Court treated the defendants' failure to object or to demand to be present as a waiver of their DUE PROCESS right. 832 The Court also treated a woman's failure to appear at a custody hearing or to discuss the case with a lawyer assigned to represent her in a separate criminal case as a waiver of her right to a lawyer in a proceeding to terminate her parental rights. 1291 The Court said that a defendant who pleads not guilty by reason of insanity has waived his right to insist that the government use a high standard of proof at a CIVIL COMMITMENT proceeding that he was mentally ill. 1 1 9 3

RIGHTS IN WARTIME The Supreme Court has broadly adhered to the principle that citizens and residents of the United States, except for enemies, are entitled to all constitutional rights during wartime except when caught in the actual theater of military operations. 1548, 6 6 8 With the exception of the Civil War, the United States has been almost wholly free of such conditions, so the Court has had almost no opportunity to put flesh on the bones of this constitutional doctrine. However, the courts are less likely to uphold the principle under the stress of war itself; thus the Court approved the JAPANESE-AMERICAN

Arrested alien juveniles may waive their right to a preliminary hearing on the Immigration and Naturalization Service's initial determination that they are deportable, and on its decision over custody arrangements, as long as the juveniles will be given a hearing if they request one. 1 9 6 8 Before determining whether the waiver was voluntary and knowing, it must be shown that

See also: CIVIL PLEADING

EXCLUSION

THE

AND

RIGHTS

AND

CIVIL

LIBERTIES;

FIFTH.

RELOCATION

in I 9 4 4 , 1 2 5 3

a

ruling considered dubious to the point of worthlessness today. After World War I, the Court affirmed convictions for speeches and publications held to violate the Espionage Act. Said Justice Oliver Wendell Holmes, "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." 2089 But the sweeping nature of Holmes's interdiction of speech has not stood the test of time. 260 Enemies

RIPENESS are entitled to little constitutional protection. Enemy property, even if owned by a citizen, may b e seized free o f the J U S T C O M P E N S A T I O N quirement

of

the

FIFTH

re-

AMENDMENT.2151

Enemies themselves are not entitled to the trial p r o t e c t i o n s o f the SIXTH A M E N D M E N T a n d m a y

be tried independently by military tribunals. 1927 See also: TAKING OF PROPERTY;

RIGHTS

RETAINED

BY

WAR POWER.

THE

PEOPLE,

see: N i n t h A m e n d m e n t R I P E N E S S Although a constitutional issue might be within a court's JURISDICTION, the Supreme Court will refrain from hearing it until the dispute between the parties has advanced, or ripened, sufficiently to present a concrete case or controversy. Concerns about ripeness usually surface when people wish to challenge a law before it is applied to them. In 1947 the Court declined to consider the claims of federal civil servants that the Hatch Act was unconstitutional. The act prohibited them from engaging in certain political activities; but the Court said that since the employees were only considering doing so, their claim would not be ripe until they actually engaged in the forbidden activities and the government then actually prosecuted one of them. 2406 Similarly, the Court dismissed a claim that federal regulations granting the status of permanent residence to illegal ALIENS conflicted with the Immigration Reform and Control Act of 1986, because the suit was against the rules in general, before anyone was directly affected by a particular application. 1967 Without waiting for an issue to ripen, the courts might frequently be called upon to issue ADVISORY OPINIONS about hypothetical occurrences. However, legal ripeness cannot be determined as a farmer would examine fruit. Since a court m a y issue a D E C L A R A T O R Y J U D G M E N T w h e n a

particular action is threatened, the ripeness doctrine ultimately gives the Court discretion to select among the many types of cases that present claims of potential harm. In a 1961 birth control case, the Court declined to resolve the issue because there was no showing that the physician who had been consulted by a married couple about CONTRACEPTION had any real fear of prosecution. 1881 But in a 1973 Georgia ABORTION case, the Court heard and decided a case favoring a constitutional right of doctors to perform abortions on the ground that the law

"chilled and deterred" them from practicing medicine, even though no one of them had been threatened with prosecution.639 In 1991 the Court declined to consider an attack on a provision in the California constitution prohibiting POLITICAL PARTIES from endorsing candidates in certain nonpartisan elections because, Justice Anthony M. Kennedy said, there was no "live dispute," since there was evidence that some parties had violated the provision and not suffered for it. 1965 However, the Court decided Bowers v. Hardwick, the homosexual sodomy case, even though the prosecutor declined to seek an INDICTMENT. The Court declined to rule on whether the army's surveillance of politically active civilian groups violated their FIRST AMENDMENT rights because, Chief Justice Warren E. Burger said, the protesters alleged only a "subjective chill" and did not claim "specific present objective harm or a threat of specific future harm." 1 2 7 1 On the other hand, the Court heard an appeal in a case challenging a law limiting liability should a nuclear power plant explode, even though none had done so and the likelihood was remote.665 Refusing to hear the case until claims were riper, the Court said, might forever deter the development of nuclear power because unless the Court could rule one way or the other immediately, operators would fear that they might lose the protection of the liability-limiting law. The Court has had several occasions to consider whether claims were ripe that a regulatory scheme diminished the value of an owner's property sufficiently to amount to a TAKING OF PROPERTY. The general rule is that if owners have not availed themselves of administrative remedies, such as seeking variances that would avoid the impact of the regulation on their property values, then the case is not ripe. 1068 ' 2554 But when an agency has finally determined what use may be made of the land and has "no discretion to exercise over [the owner's] right to use her land," the case is ripe and can go forward. 2270 A suit may go forward if part of a claim is ripe. A South Carolina ZONING law prohibited the construction of single-family homes on beachfront property. Before an owner's suit seeking compensation for the loss of his property values could be resolved, the state legislature amended the law to permit a state agency to issue "special permits." The state argued that the pending suit should be dismissed as unripe because the owner might after all be entitled to construct a home on

435

436

RULE OF

FOUR

the property. The Court held that the issue was justiciable and not barred under the ripeness doctrine because the state supreme court had decided the issue against the owner for past deprivation of the right to build. 1386 The Supreme Court said it could review the decision that the owner was entitled to no compensation for the years before the amendment was enacted. Only if the state court itself had concluded the matter was not yet ripe would the Supreme Court have refrained from hearing the case. The parties cannot avoid dismissal of an unripe claim by agreeing not to raise the ripeness issue. Because an unripe claim does not present a case or controversy, courts are constitutionally bound to dismiss it and may therefore consider the issue on their own. 1 9 6 7 1 See also: CASES OR CONTROVERSIES; BILITY; MOOTNESS;

JUSTICIA-

STANDING.

RULE OF FOUR Under a well-established custom of the Supreme Court, whenever four justices think that a writ of CERTIORARI should be granted, the Court will agree to review the case, even though the majority thinks appeal is unsuitable. 2017 But the Rule of Four does not require the Court to decide the case in any particular way or even to decide it at all, if after ORAL ARGUMENT a majority thinks otherwise. 1677 The rule does not prohibit one or more of the four from changing their minds, permitting the Court to dismiss the appeal without hearing argument;329 and occasionally the Court appears to have deviated from its tradition in dismissing, on a 5-4 vote, a writ of certiorari as "improvidently granted." 2370 Sometimes the rule is disregarded altogether; in 1980 four justices dissented to the denial of certiorari in two DEATH PENALTY cases, indicating that the majority refused to consider the appeals despite the rule. 660,2510 RULE OF LAW In the revolutionary year 1776, Thomas Paine wrote in his Common Sense "that in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other."* In Paine's sense, the rule of law means that the government, no less than the citizenry, must be law-abiding, a constitutional concept encapsulated in many constitutional principles, including PROCEDURAL DUE

Supreme Court upheld not merely the rule of law but the principle of the rule of law, against President Richard M. Nixon's claim that the Constitution grants the chief executive plenary power to do as he wills and that he can be challenged in only two ways: at the ballot box or by impeachment. The Court answered that the president was bound by the law. Similarly, the Court in 1997 ruled that President Bill Clinton's status as chief executive would not serve to immunize him from a charge of sexual harassment that allegedly occurred before he became president.473 See also: ENUMERATED OF GOVERNMENT HERENT STARE

POWERS;

OFFICIALS;

IMPEACHMENT

IMPLIED AND IN-

POWERS; PRESIDENT,

IMMUNITY

OF;

DECISIS.

RULE-MAKING

POWER, see:

delegation

doctrine

RULES

OF ITS P R O C E E D I N G S

Under Art.

I-§5[2] each house of Congress "may determine the rules of its proceedings." Except in rare circumstances, this clause commits to the houses of Congress power beyond judicial scrutiny to adopt whatever "parliamentary rules" they choose, as long as they do not "ignore constitutional restraints or violate fundamental rights." 139 Because the Senate is a "continuing body," its rules remain in force until the Senate changes them, whereas the House is reconstituted every two years and must therefore readopt its rules at the beginning of each new Congress. 1494 When the impact of a rule or congressional procedure affects a private right, the Supreme Court has held that the courts may intervene. For example, the Court interpreted the Senate's confirmation rules, concluding that they did not permit the Senate to reconsider a vote to confirm an appointment to a federal administrative agency, and so the confirmed nominee was entitled to hold the office. 2184 On the other hand, the Court reversed a perjury conviction for testimony before a House committee on the ground that no QUORUM was present, even though, as four dissenting justices noted, House rules say that once a committee quorum has been established, its continuance is presumed until someone calls attention to its absence.457 See also: ADMINISTRATIVE

PROCESS, SEPARATION OF POWERS, a n d J U D I -

REAUCRATIC GOVERNMENT;

CIAL REVIEW. In United States v. Nixon, the

CERS.

AGENCIES

AND

OFFICE AND

BUOFFI-

SAFETY

REGULATIONS,

see:

police

school rules. Although the child has a "LIBERTY interest" in avoiding a beating, the C o u r t held

power

that DUE PROCESS does not require the school to SAILORS,

RIGHTS

courts and

OF,

see:

military

hold a HEARING before inflicting corporal punishment since any excessive force or punishment

justice

wrongly imposed can be dealt with in an afterSALARIES, TAXATION tax; taxing

OF, see:

income

the-fact l a w s u i t . 1 1 2 6

power SCHOOLS,

SALARY

PROTECTION

JUDGES,

see:

income

OF

FEDERAL

Compensation

DISCRIMINATION

tuition grants and

BY,

see:

vouchers

Clause; SCHOOLS, FOREIGN LANGUAGES

tax

I N To

express its distaste over American peace negotiaSALES state

TAXES,

see: t a x a t i o n

of

inter-

tions with G e r m a n y after World War I, Nebraska enacted a law prohibiting the teaching o f G e r m a n

commerce

and all other modern languages except English in SANTA

C L A U S , see: religious

right to

symbols,

all public and private schools in the state. In a 1913 opinion that represented a linchpin in the

display

series of modern SUBSTANTIVE DUE PROCESS SCHOOL Bible

PRAYER,

see:

prayer

and

cases, Justice James McReynolds invalidated the law, holding that the concept of LIBERTY in-

reading

cludes "not merely freedom from bodily SCHOOLS,

ACCESS

TO,

see:

public

forum SCHOOLS,

re-

straint" but also the right to carry on m a n y commonplace activities, including the acquisition of "useful k n o w l e d g e . " 1 5 2 5

ARMBANDS

IN,

niles, r i g h t s of; s y m b o l i c

see:

juveSCHOOLS,

speech

dents'

FREE

SPEECH

IN,

see:

stu-

rights

S C H O O L S , B U S I N G T O , see: b u s i n g SCHOOLS, RELIGION SCHOOLS, COMPULSORY see: e d u c a t i o n ,

ATTENDANCE,

I N O n e of the major

arenas o f contention under the ESTABLISHMENT CLAUSE is the extent to which the states may pro-

compulsory

vide m o n e y or other forms of aid that benefit reSCHOOLS, IN

CORPORAL

PUNISHMENT

In 1977 the Supreme C o u r t turned aside a

challenge to the established custom in

many

ligion,

either

in

public

or private

schools.

Litigation over these issues dates back to 1947, w h e n the C o u r t upheld a N e w Jersey law that

school systems o f permitting teachers or school

permitted school districts to reimburse parents of

disciplinarians to spank students for violations o f

children attending public and parochial schools 437

438

SCHOOLS, RELIGION

IN

for bus transportation to and from the schools. A sharply divided Court upheld the law, discerning in the transportation program a legitimate purpose of extending benefits to all citizens regardless of religious belief. 729 Justice Hugo L. Black compared free busing to other services to which religious institutions are entitled, such as police and fire protection. Justice Robert H. Jackson's strongly worded dissent noted that the law provided reimbursements only for public and Catholic parochial schools and specifically excluded other schools, making the payment a benefit for a particular religion. The Court did not reconsider the question of state aid until twenty years later, when it sustained a New York program under which public school districts were required to lend secular textbooks to all schoolchildren, including those attending religious and nonreligious private schools. 2 ' 4 This time Justice Black dissented, declaring the law to be "a flat, flagrant, open violation" of the Establishment Clause because it was a step toward the government's picking up the tab for a religious school's total budget. In addition, as Justice William O. Douglas forcefully pointed out, the system was operated in such a way that religious educators had considerable freedom to choose textbooks that bore definite religious messages. "There is nothing ideological about a bus," Douglas said, or "about a school lunch, or a public nurse, or a scholarship," but a textbook "is the chief. . . instrumentality for propagating a particular religious creed." In 1971, in Lemon v. Kurtzman, the Court struck down a Pennsylvania law reimbursing religious schools for the cost of teachers' salaries, textbooks, and instructional materials in secular subjects. It also struck down a Rhode Island policy of paying nonpublic elementary school teachers a 15 percent salary supplement. The "cumulative impact" of these programs, Chief Justice Warren E. Burger concluded, "involves excessive entanglement between government and religion" because the state would have to undertake a general and enduring "surveillance" of what is taught in the secular subjects in the parochial schools to prevent public money from being used to propagate religious faith. However, in that same year the Court upheld federal grants available to all public colleges for constructing buildings and facilities to be used exclusively for secular pur2344

poses. Although it approved the lending of textbooks to religious schools, 214 the Court drew the line in

1977 at lending maps, tape recorders, and many other instructional devices and materials. In that same case it rejected a policy of reimbursing transportation expenses for religious students taking field trips, distinguishing them from buses to and from home. 2580 Other distinctions seem equally baffling. If a religious school prepares state-mandated tests, the state may not reimburse schools for the costs of administering them. 1326 But if the state prepares the examinations, it may reimburse the costs of administration.508 The Court upheld PROPERTY TAX exemptions for religious institutions2468 but refused to permit states to rebate tuition payments and provide income tax deductions or credits for the cost of religious schooling. 507 States may provide speech and hearing diagnostic services in religious schools 2580 and even pay for a sign-language interpreter for a deaf child in a parochial school, 2631 but they may not provide full-time public employees to teach remedial and advanced subjects on the premises of these same schools. 1510 These apparently inconsistent conclusions may be explained by the amorphous LEMON TEST that the Court employs to sort out constitutional from unconstitutional extensions of aid: does the program have a secular purpose, is its primary effect secular, and does it excessively entangle church and state? On these questions, the most fair-minded people may differ, perhaps much to their own chagrin. The Court did manage to agree unanimously that a program providing financial aid for vocational rehabilitation to the handicapped is constitutional when the recipient has sole discretion over how to use the tuition funds, including attending a Christian college to become a "pastor, missionary, or youth director." 2576 The problem is that many of the state aid cases can be looked at in divergent ways. On the one hand, as Chief Justice William H. Rehnquist said in the case permitting public funds to pay for a sign-language interpreter in a sectarian school, the benefit at issue "is part of a general government program that distributes benefits neutrally to any child qualifying as 'handicapped' . . . without regard to the 'sectarian-nonsectarian,' or 'public-nonpublic nature' of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a governmentpaid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." 2631 On the other hand, as Justice Harry A. Blackmun said in dissent, "our

SCHOOLS, SINGLE-SEX cases make clear that [public funds may not be used to furnish] the medium for communication of a religious message. . . . [A] state-employed sign-language interpreter would serve as the conduit for [the child's] religious education, thereby assisting [the religious school] in its mission of religious indoctrination." In 1997 a sharply divided Court acknowledged the inconsistency in its case law and in Agostini v. Felton overruled two earlier decisions that had barred public teaching assistance in parochial schools. In 1985 the Court ruled that the Establishment Clause barred New York City, under a congressionally mandated program, from having public school teachers provide remedial education in parochial schools to disadvantaged children. 24 At the same time the Court also struck down a similar Michigan school district program of providing both remedial and "enrichment" courses in parochial schools. 2 1 0 2 In the Michigan case, the Court was concerned about the risk that the public school teachers might "subtly (or overtly) conform their instruction to the [pervasively sectarian] environment in which they [taught]." In the New York case, the Court concluded that an additional factor—the school board's requirement that the activities of the public school teachers be "monitored" to prevent their being used to teach religious precepts—would excessively entangle the public authorities in religious issues. But in the ensuing dozen years the Court had modified its seemingly rigid stance. In 1993, for example, it disavowed the view that the Establishment Clause absolutely bars a public employee from working in a religious school; "such a flat rule, smacking of antiquated notions of'taint,' would indeed exalt form over substance." 2 6 3 1 Also during that time, the Court "departed from the rule . . . that all government aid that directly aids the educational function of religious schools is invalid." 2 3 As long as the government allocates assistance or services "on the basis of criteria that neither favor nor disfavor religion"—for example, by providing tuition assistance or remediation to all students—the Establishment Clause is not violated simply because some of that aid will benefit students attending religious schools. The Establishment Clause is violated by government aid only if it "advances" religion. The Court's "three primary criteria [for] evaluating] whether government aid has the effect of advancing religion" are whether it "result[s] in governmental indoctrination; define[s] its recipients by

reference to religion; or create[s] an excessive entanglement." 23 Sending public school teachers into parochial schools does not excessively entangle them in religion, nor do occasional unannounced visits to the parochial school classrooms by public supervisors to check on whether teachers are hewing to their secular subjects. Whether Agostini v. Felton will result, in the words of dissenting Justice David H. Souter, in "direct state aid to religious institutions on an unparalleled scale" remains, of course, to be seen. A different issue is whether school authorities may bar religious groups from meeting in public schools. In 1948 the Court voided a RELEASED TIME program under which secondary school children were permitted to leave classes early to attend religious worship in the schools during school hours. 1 1 2 3 But in 1981 the Court said that public colleges could constitutionally grant facilities to students wishing to meet voluntarily for religious purposes as long as the school provides access to its buildings to all sorts of other voluntary student groups. 2528 In 1990 the Court upheld the federal Equal Access Act, requiring public secondary schools receiving federal funds to let student religious groups use school premises to the same extent that it permits other "noncurriculum" groups, such as a scuba diving club, to use t h e m . 2 5 " See also: CONSTITUTIONAL ANCE

OF; EVOLUTION,

AND BIBLE

QUESTIONS, TEACHING

OF;

AVOIDPRAYER

READING.

S C H O O L S , RIGHT TO A T T E N D PRIVATE, see: p r i v a t e s c h o o l s , r i g h t to a t t e n d S C H O O L S , S E A R C H IN, see: s e a r c h a n d seizure: schools S C H O O L S , S I N G L E - S E X The Supreme Court has never squarely decided whether the states may operate single-sex schools, but it seems unlikely that any such school will withstand challenge under the EQUAL PROTECTION CLAUSE. In 1982 the Court held that the School of Nursing at the Mississippi University for Women could not constitutionally exclude men. 1 5 6 8 The majority concluded that the state failed to advance an "exceedingly persuasive justification" for its decision to exclude a male registered nurse working in Columbus, Mississippi, where the school is located. The question was whether the state had an "important governmental objective."

439

440

SCHOOLS,

SINGLE-SEX

It is not permissible, said Justice Sandra Day O'Connor, simply to separate men and women or to exclude one as innately inferior. Mississippi asserted that its admissions policy was designed to compensate for previous discrimination against women. But, of course, there was no discrimination against women in the field of nursing; to the contrary, the single-sex policy simply perpetuated the old stereotype that only women are fit for nursing. Moreover, because the school was prepared to admit the male nurse as an auditor, it conceded that having a man in the classroom was no distraction. Excluding men therefore would achieve no educational goal. In the widely discussed 1996 case United States v. Virginia, the Court, 8-1, struck down Virginias policy of admitting only men to the Virginia Military Institute (VMI), a four-year public college. This decision did not declare all public single-sex higher education unconstitutional, but it reaffirmed the rule that a state must have an "exceedingly persuasive justification," throwing in doubt the constitutionality of remaining single-sex public colleges. VMI was founded in 1839 to prepare men for leadership roles as "citizen-soldiers," an undertaking that has led to considerable success; many of its alumni have become generals, members of Congress, and leading business executives. Its alumni remain loyal, with "the largest per-student endowment of all public undergraduate institutions in the Nation." V M I uses a rigorous "adversative method" of instruction "to instill physical and mental discipline in its cadets and impart to them a strong moral code." This method features "[pjhysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values." Between 1988 and 1990 about 350 women had inquired about admission, but the college responded to none. In 1990 the United States sued. The district court found that with adequate recruiting, VMI could enroll women to constitute at least 10 percent of its entering class—"a sufficient 'critical mass' to provide the female cadets with a positive educational experience." Nevertheless, said the district court, Virginia had demonstrated an "exceedingly persuasive justification" for the single-sex college, since substantial benefits flow from "a single-gender environment, be it male or female" and since the men-only policy gave diversity to Virginia's college system (the state's fourteen other colleges and universities are coeducational).

The appeals court reversed, holding that a "policy of diversity which aims to provide an array of educational opportunities, including single-gender institutions, must do more than favor one gender." Although accepting that "some women can meet the physical standards now imposed on men" and that neither VMI's goal nor its instruction "is inherently unsuitable to women," the appeals court upheld the trial court's finding that "at least these three aspects of VMI's program—physical training, the absence of privacy, and the adversative approach—would be materially affected by coeducation." The appeals court remanded so that the district court could select a remedy: admit women, establish a comparable institution for women, or abandon state support and make VMI a private institution. Virginia proposed to establish and pay for a parallel program called Virginia Women's Institute for Leadership (VWIL), to be located at Mary Baldwin College, a private school for women. There are major differences between the two schools and the two programs. Mary Baldwin (with an endowment of $19 million) admits students with an average SAT score 100 points below the average at VMI (with an endowment of $131 million); Mary Baldwin has many fewer Ph.D.'s on the faculty than does VMI and offers a smaller range of degrees; VMI's military model was determined to be "wholly inappropriate" for VWIL, including the adversative method; and although the VMI Alumni Association said that it would open its job network to VWIL graduates, "those graduates will not have the advantage afforded by a VMI degree." Nevertheless, the district court upheld Virginia's plan, and the court of appeals affirmed, holding that it should "deferentially" review the state's purpose in operating the two single-sex programs and that a single-sex college education "may be considered a legitimate and important aspect of a public system of higher education." Speaking for a majority of seven (Justice Clarence Thomas did not participate), Justice Ruth Bader Ginsburg held that Virginias exclusion of women from VMI violated the Equal Protection Clause and that the two-program system could not remedy the violation. Although sex is not a "proscribed classification"—there are enduring physical differences between the sexes that do not exist between the races, and therefore some distinctions in the law are permissible-—"artificial constraints on an individual's opportunity" can-

S C O T T S B O R O BOYS CASE not be tolerated. Though it was undisputed that some students benefit from single-sex education and that educational diversity can serve a public good, there was no showing that V M I was founded to accomplish these purposes or that the state ever even had such purposes. The courts need not "automatically" accept an unproven "benign" justification for a "categorical exclusion." To the contrary, the history of higher education in Virginia shows, for example, that there was fierce resistance to the admission of women to the state's "flagship school, the University of Virginia, founded in 1819"; indeed, the University did not admit women until 1970. Moreover, the claim that the adversative method will work only for men rested on "typically male or female 'tendencies.'" The "average" female student might not choose the adversative method but neither would many men. Equal protection principles do not permit the state to "rely on 'overbroad' generalizations to make 'judgments about people that are likely to . . . perpetuate historical patterns of discrimination.'" Turning to the state's proposed remedy, Justice Ginsburg declared that "Virginia chose not to eliminate, but to leave untouched, VMI's exclusionary policy." Its justification rested on the conclusion, in the words of the state's curriculum planners, that the adversative method "would not be effective for women as a group." But this is just a "generalization about 'the way women are,'" shown by Virginia's inability to assert the parallel proposition "that VMI's method of education suits most men." VMI was not founded for "most men" but for those who would thrive from its rigors. Likewise, Virginia must institute an equal program not for women as a group but for those women who would "do well under [the] adversative model," who would attend V M I given the opportunity, who "are capable of all of the individual activities required of V M I cadets," and who "can meet the physical standards [VMI] now impose[s] on men." For these women, the many differences between the programs make it clear that V W I L is scarcely comparable to V M I but is rather a "pale shadow" of VMI's "range of curricular choices and faculty stature, funding, prestige, alumni support, and influence." Beyond question, said Justice Ginsburg, quoting from the Court's 1950 decision in Sweatt v. Painter, V M I '"possesses to a far greater degree' than the V W I L program 'those qualities which are incapable of objective measurement but which make for greatness in a . . .

school,' including 'position and influence of the alumni, standing in the community, traditions and prestige.' . . . Women seeking and fit for a VMI-quality education cannot be offered anything less, under the States obligation to afford them genuinely equal protection." The lone dissenter, Justice Antonin Scalia, delivered a withering retort to the majority, which he branded "this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy—so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States—the old one—takes no side in this educational debate, I dissent." The Court's function, Justice Scalia said, "is to preserve our society's values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. . . . [W]hatever abstract tests we may choose to devise, they cannot supersede—and indeed ought to be crafted so as to reflect—those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts." Tracing the history of government support for single-sex military education, he concluded that it "is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politicssmuggled-into-law." SCIENCE

AND

USEFUL

ARTS,

see:

Patent Clause SCOTTSBORO

BOYS

CASE

In 1931 a fight

broke out between nine black youths and a group of whites, including two girls, on a freight train traveling through northeastern Alabama. A posse stopped the train and took the nine black boys into custody. One of the white girls told the sheriff that her companion had been raped by each of

441

442

S E A R C H A N D SEIZURE the blacks. The boys were held in a jail in Scottsboro (hence the name that has stuck ever since), and a lynching was prevented only because the Alabama National Guard was called out. Two weeks later, in a trial that started and finished in a single day, eight of the nine were convicted in this small town while nearly ten thousand people waited in the streets outside the courthouse. As the "trial" began, the judge refused to appoint counsel but "jawboned" two lawyers, one not a member of the Alabama bar, to nominally assist the defendants. The Scottsboro boys were sentenced to death. An appeal reached the Supreme Court, which reversed. The trial, said Justice George Sutherland in Powell v. Alabama, was utterly lacking in DUE PROCESS because ignorant, illiterate youths, surrounded by a mob, could not possibly have a fair HEARING without the assistance of counsel. This was the first time that the Court had reversed a criminal conviction because of the states failure to provide a basic procedural necessity. In a capital case, everyone is entitled to a lawyer whether requested or not. At the retrial, the court appointed a New York lawyer, Samuel S. Leibowitz, for the boys. He discovered that the girl who claimed to have been raped was in fact a well-known prostitute apparently traveling on the train with a customer. She had fabricated the rape story to cover up her crossing a state line illegally. Nevertheless, an Alabama jury reconvicted the Scottsboro Boys, and they were imprisoned, ultimately to be pardoned decades later. See also:

COUNSEL,

DURAL RIGHTS

ASSISTANCE

OF CRIMINAL

OF;

PROCE-

DEFENDANTS.

S E A R C H A N D S E I Z U R E T h e FOURTH A M E N D -

MENT'S prohibition against "unreasonable searches and seizures" has ancient roots, summed up in the English maxim "Every mans house is his castle." But in the 1760s the British government disdained the right against unreasonable searches and authorized "writs of assistance," under which a British agent could enter any home or building to search for smuggled goods on which customs duties had not been paid. The writs were issued even though the agents offered no reasonable grounds for believing that the goods were in any particular place. The writs did not state what was being searched for, did not name the people suspected of having contraband, and were valid indefinitely. Abuse of these writs was a primary goad to the Revolutionary War, and at the ratifying conventions in 1787 and 1788

the people did not forget. The Fourth Amendment was the result. Unfortunately, the Fourth Amendment's two clauses are far from clear. The first clause says that the people have the right to be secure "in their persons, houses, papers, and effects" against unreasonable searches and seizures. The second clause says that a SEARCH WARRANT may not be issued without probable cause and without "particularly describing the place to be searched, and the persons or things to be seized." Whether the two clauses must be read together or are independent has been the crux of the debate. If they are read together, then any search conducted without a warrant is by that very reason unreasonable. If read separately, some reasonable searches may be conducted without warrants, and the warrant restrictions apply only to those searches requiring warrants. At one time the Court connected the clauses closely, so that all but a few warrantless searches were considered unreasonable. That connection is now severed, and exceptions to the warrant requirement have multiplied. Cases involving the law of search and seizure are numerous and wondrously variegated. Doctrine has changed as justices come and go. The Burger Court (1969-86) wrote opinions in 130 search and seizure cases. Since the issue first arose in 1925, the Court has considered the problem of automobile searches in 90 cases. The profusion of cases arises largely because differences in circumstance dictate differences in outcome, since "the touchstone of the fourth Amendment is reasonableness." 783 "Eschew[ing] bright-line rules," the Court has said that "reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances." 1745 The Court first considered the Fourth Amendment in 1886. Comparing an order to give up private papers to SELF-INCRIMINATION, the Court held that the Fourth Amendment precluded a court from enforcing an order to turn over physical evidence. 249 In 1914 the Court announced the exclusionary rule: in federal prosecutions, unlawfully seized evidence must be excluded from trial. 2496 Until 1949 the Fourth Amendment was assumed not to apply to the states, but in that year the Court unanimously concluded that freedom from unreasonable searches and seizures is a fundamental right that the DUE PROCESS C l a u s e o f t h e F O U R T E E N T H

AMENDMENT makes applicable to the states. 2578 The Court declined to apply the exclusionary rule to the states, holding that they had other

S E A R C H A N D SEIZURE: AIRPORT STOPS methods o f enforcing the right, but the C o u r t re-

SEARCH

versed itself in 1 9 6 1 . 1 4 2 6 As a result, most o f the

TIVE

Court's search and seizure rulings have come in

generally assumed that if administrative officials

the last three decades.

were conducting routine inspections and not in-

T h e constitutional problem o f search

and

AND

SEIZURE:

INSPECTIONS

vestigating

ADMINISTRA-

Until the 1960s it was

a particular

crime,

the

FOURTH

seizure has four parts: (1) W h a t does "probable

AMENDMENT did not apply. In 1967 the Court re-

cause" mean? (2) W h a t constitutes a "search" or a

versed itself, holding that a building code inspector

"seizure"? (3) Under what circumstances

must

must obtain a SEARCH WARRANT to inspect a

warrants be obtained? (4) W h a t are the legal con-

h o m e 3 8 3 or commercial building 2 1 2 0 for code vio-

sequences

or

lations. T h e rule was extended in 1978 to work-

seizure? Questions 1 and 4 are discussed under the

place inspections by agents of the Occupational

h e a d i n g s PROBABLE CAUSE a n d EXCLUSIONARY

Safety and Health Administration. 1 4 3 6 T h e occu-

RULE. Question 3 is discussed in the various sub-

pational law was so open-ended, permitting in-

headings that follow.

spections o f almost every workplace, that it would

o f an

unconstitutional

search

As to question 2, to determine whether the

be unreasonable to leave inspections to the com-

police have made a search or seizure, the C o u r t

plete discretion of the agency. But building on ear-

looks to the interest protected by the Fourth

lier cases permitting warrantless inspections of par-

A m e n d m e n t . In 1928 it suggested that the inter-

ticular industries, such as liquor 4 9 9 and

est was a person's private property: a warrant

the Court ruled in 1982 that some kinds of war-

firearms,197

w o u l d be necessary to search a persons home but

rantless administrative inspections are permissible

not to tap his phone, since no property interest is

when the property is subject to close federal regu-

invaded when the police listen in on a telephone

lation, such as mining. 6 4 8 Entry into buildings to

c a l l . 1 7 6 1 Since then the C o u r t has substantially

fight fires is permissible without warrants of any

modified its views. Today the premise is that

kind, since the fire itself makes the entry reason-

the Fourth A m e n d m e n t protects a person's PRI-

able, and if firefighters discover evidence of arson,

VACY. 2 4 7 1 Because the Fourth A m e n d m e n t pro-

the plain view doctrine permits them lawfully to

tects "people, not places," the root question is

seize it. However, to return to the scene to check

whether a person has an "expectation o f privacy"

for further evidence requires a warrant. 1 5 3 4 A pub-

on which he may reasonably rely. 1 2 0 9 T h a t expec-

lic employee's office may be searched without a

tation does not depend on having a property in-

warrant or probable cause as long as the purpose of

terest in the space that the police invade. For ex-

the search was work related rather than "investiga-

ample, an office worker has a privacy right in an

t o r y . " 1 7 3 2 In 1987 the C o u r t said that inspectors

office shared with others, even though he owns

need not obtain warrants to inspect automobile

neither office nor p a p e r s . 1 4 2 3 "Expectation of pri-

junkyards. T h e inspections were part of an admin-

vacy" is not an artificial judicial rule but a reflec-

istrative scheme to combat automobile theft. T h e

tion o f life: what areas o f their lives do people in

Court held that even though evidence o f criminal-

fact expect to remain private? T h e highest expec-

ity may turn up during such inspections, they were

1815

valid because this was a civil inspection system; the

People have a m u c h lesser expectation of privacy

state need not address every social problem exclu-

tation is in the privacy of one's h o m e .

39,1554,

in, say, their a u t o m o b i l e s . 9 0 , 2 0 3 5 T h e y have an in-

sively through the criminal law. 1 6 7 1 T h e Court has

termediate expectation of privacy in their lug-

also upheld random boarding of vessels either at

gage. 4 2 1 A n overnight guest has a constitutionally

sea or in port by customs inspectors to check doc-

protected interest in the privacy o f a friend's

umentation, even without suspicion of illegali-

h o m e 1 5 6 1 but not in a friend's car. 1 9 4 1 Ultimately,

ties. 2 4 4 0

almost every case turns on its own facts. A b o u t the most that can be said in summary is that peo-

See also: SEARCH AND SEIZURE:

PLAIN

VIEW.

ple's homes remain their castles, but otherwise the C o u r t has largely concluded that we live in

SEARCH AND SEIZURE: AIRPORT

goldfish bowls, t

To stop and frisk, the police ordinarily must be

STOPS

able to articulate a reason to suspect wrongdoing. See also: ARREST AND ARREST TANCE, CORPUS;

WRIT MERE

OF;

DRUG

EVIDENCE

ASSIS-

But the C o u r t has approved police stops of sus-

HABEAS

pected drug couriers at airports based on a profile

NO-KNOCK

consisting of factors each of which, taken sepa-

WARRANT; TESTING; RULE;

ENTRY; various subcategories listed below.

rately, may be i n n o c e n t . 2 1 9 1

443

444

SEARCH AND SEIZURE: AUTOMOBILES See also: SEARCH

AND

SEIZURE:

STOP

AND

FRISK. SEARCH

AND

SEIZURE:

AUTOMOBILES

Search of automobiles was an early exception to the usual requirement of a SEARCH WARRANT. In 1925 the Court ruled that as long as a law enforcement official has PROBABLE CAUSE to believe an automobile contains evidence that can constitutionally be seized, he can dispense with a warrant because an automobile, unlike a home, can move.408 Since then, the Court has decided more than ninety automobile search cases, and the resulting rules are accessible only to the specialist. In general, the Court has concluded that the public has a reduced expectation of privacy in automobiles; therefore, many types of searches that would require warrants if the police were searching a home are not required for automobiles. As long as the police have probable cause, they may, without warrants, search interior areas of cars, including glove compartments and spaces under the seats; 1941 however, they may not search the passengers unless there is independent probable cause to arrest them. 627, 2 6 1 2 Warrantless searches of closed containers may not be conducted just because the police find them in automobiles,421 but if there is probable cause to search the automobile, police may also search the container without a warrant. 2035 Likewise, if the police have probable cause to search a closed container in the car, they may do so even if they have no warrant to search the car itself.365 When police impound a car, they may inventory its contents, including closed containers, and any incriminating evidence found may constitutionally be used at trial.500 Mobile homes placed in a parking lot may be searched as though they were automobiles.368 If the police have probable cause to believe a car contains contraband, they are not required to obtain a warrant simply because they might have time to do so. 1824 In 1996 a unanimous Court held that if the police have probable cause to believe that a motorist has violated a traffic law, they may temporarily detain the motorist without violating his right against unreasonable searches, even if "a reasonable officer would [not] have been motivated to stop the car by a desire to enforce the traffic laws." 2525 In the particular case, the police grew suspicious of a truck waiting at a stop sign. When the driver spotted the police, he committed a minor moving violation by turning right without signaling and driving away at an "unreasonable

speed." The police pulled the truck over and saw two plastic bags of crack cocaine. The occupants were arrested and a search of the car turned up "several types of illegal drugs." The defendants moved to suppress the evidence because the police had neither probable cause nor reasonable suspicion to believe that they had drugs; the officer's stated reason for stopping the vehicle—to warn the driver about his traffic violation—was purely a pretext. Justice Antonin Scalia said that the constitutional reasonableness of a traffic stop does not depend on the actual motivation of the arresting officers. As long as there is probable cause, as there always will be with an actual traffic violation, it is irrelevant that the police would have ignored the violation in the absence of a suspicion of other criminal wrongdoing. The Court has also ruled that when the police have lawfully stopped a vehicle they may "as a matter of course order the driver" 1825 as well as passengers1452 to exit pending completion of the stop, whether or not the police suspect any offense to have been committed other than the traffic violation. If the police then develop probable cause to search the driver or passengers for some other offense—such as a vial of drugs falling to the ground as a passenger exits—the subsequent search and seizure is constitutional. SEARCH

AND

SEIZURE:

BORDER

SEARCHES It has been accepted since 1789 that customs and other law enforcement officials may stop people at the border to inspect their persons and possessions without PROBABLE CAUSE or any reasonable grounds to suspect wrongdoing. 1943 But the search must be at or near the border. A roving patrol looking for illegal aliens may not stop an automobile twenty miles from the border without probable cause to believe that their prey is in the car.51 Border inspectors may stop cars just to ask a few questions or check papers if they have some rational basis to suspect that illegal aliens are inside; however, the ethnic appearance of the passengers is not a sufficient reason.274 If the border guards have a reasonable suspicion based on objective facts that a person crossing the border has committed a crime, they may stop him for more than a few minutes even without a warrant. In one case, the Court upheld a day-long detention of a person suspected of having swallowed the narcotics he was smuggling across the border.1584 SEARCH SEARCHES

AND

SEIZURE:

CONSENT

T h e FOURTH A M E N D M E N T r i g h t

S E A R C H A N D S E I Z U R E : I N C I D E N T T O ARREST to be free from unreasonable searches and seizures

SEARCH AND SEIZURE: EXECUTION

may be waived. If the police show up at your

W A R R A N T S , see: n o - k n o c k

OF

entry

door and ask to search your quarters, you may consent to their doing so. But the consent must

SEARCH

be freely given; the prosecution has the burden of

C U I T S T A N C E S " Exigent circumstances" are ex-

showing that consent was voluntary. 3 1 5 A third

ceptional circumstances that permit the police to

party may consent to the search if he had some

search without a warrant. T h e Court has identi-

authority over the place or thing to be searched;

fied several types of exigent circumstances: search

you may validly authorize the police to search for

incident to arrest, 2496 searches of automobiles on

evidence pinning a crime on your roommate, for

the roadways, 408 "hot pursuit" of suspects who

instance.

1462

AND

SEIZURE:

EXIGENT

CIR-

T h e search will be upheld even if the

flee into buildings, 2471 BLOOD TESTS to deter-

police are mistaken about the authority of the

mine whether a driver is intoxicated, 2097 and stop-

third party to consent, as long as the belief was

and-frisk detention of suspicious individuals. 2309

reasonable." 2 2 But neither a hotel night clerk 2 2 5 5

T h e concept of exigent circumstances is open-

nor a landlord 4 3 4 may validly consent to the

ended; such searches may proceed whenever the

search of a suspects hotel room or apartment.

police reasonably believe that they may "protect or

In 1991 the Court declined to hold that a police

preserve life or avoid serious injury." 1 5 5 4

request to search through a bus passengers luggage

See

is always coercive. As a means of interdicting drug

also:

SEARCH

AND

SEIZURE:

STOP

AND

FRISK.

traffic, the Broward County, Florida, police department randomly boards buses and asks permission to search luggage. In this case, even though

SEARCH AND

the police had no reason to believe that a particu-

AND

lar passenger had drugs, they asked permission to

1967 the Court overturned the MERE EVIDENCE

OTHER

SEIZURE: OBJECTIVE

FINGERPRINTS EVIDENCE

In

search after advising him that he could refuse. He

RULE, which had prohibited police from seizing

consented; they searched and found cocaine. On

evidence connecting the suspect to the crime,

appeal the Florida Supreme Court concluded that

other than actual contraband, weapons or tools

a person in his situation would never really feel free

used to commit the crime, or the "fruits" of the

to refuse permission because of the close quarters

crime, such as stolen goods. 2 4 7 1 Since then the

of the bus. T h e Supreme Court rejected this no-

Court has ruled in a number of cases that finger-

tion, holding that whether there is coercion depends on the particular circumstances in each case.

prints, 596 blood, 2 0 9 7 skin and fingernail scrapings, 5 7 0 and voice and handwriting samples 630

T h e Fourth Amendment does not require a flat

may all be taken. However, not every type of use-

rule that consent may never be freely given by pas-

ful evidence may be seized. T h e Court said that

sengers on a bus. 7 8 2 Similarly, a lawfully seized de-

police may not force a suspect to undergo surgery

fendant—for example, stopped by the police for

with general anesthesia in a hospital to remove a

speeding—need not "be advised that 'he is free to

bullet from his chest. 2 5 6 5

go' before his consent to search will be recognized as voluntary." 1 7 4 5

S E A R C H A N D S E I Z U R E : H O M E V I S I T S In 1971 the Court approved a welfare inspection sys-

SEARCH

CORPORATE

tem under which welfare recipients forfeit their

R E C O R D S Seizure of papers is fraught with con-

benefits if they refuse to admit caseworkers who

stitutional

the

appear at the door to conduct a home visit. T h e

FIFTH

Court suggested that this was not a search in the

FOURTH

AND

SEIZURE:

difficulties,

not

only

under

AMENDMENT

but

Under

the

A M E N D M E N T ' S b a n o n S E L F - I N C R I M I N A T I O N as

well. Nevertheless, the Court permits papers to be seized under a warrant issued with probable cause to believe that they contain evidence of a crime— for example, fraudulent land transactions. 74

constitutional sense, even though evidence that might cause recipients to lose benefits could be used against them in later proceedings. 2603 SEARCH

AND

SEIZURE:

INCIDENT

TO

A R R E S T There has always been an exception to SEARCH

AND

SEIZURE:

ELECTRONIC

the

FOURTH

AMENDMENTS

warrant

require-

and

sei-

ment for searches "incident to an arrest." If the

zure: wiretapping and electronic

sur-

police have valid grounds to arrest, then they may

SURVEILLANCE, veillance

see:

search

search. T h e controversy turns on what they may

445

446

S E A R C H A N D SEIZURE: L I A B I L I T Y FOR I L L E G A L S E A R C H search. Through the 1960s the Court permitted wide-ranging searches once a suspect was arrested, including every nook and cranny of his home. 2546 Then, in 1969, the Court narrowed the permissible perimeter: police could search through anything within the arrestee's "immediate control." For example, they could search his person and the room in which he was located, including drawers and the like, to prevent him from using weapons. But police could not intrude into other rooms without a valid search warrant. 455 So, for example, a warrantless search that lasted four days and combed through an arrestee's entire house was unconstitutional. 1554 In 1990, however, the Court modified its approach again and held that the police may undertake a "protective sweep" of the premises where the arrest was made, as long as they have a "reasonable belief" that a dangerous person might be lurking there. 1448 Since an arrestee has an expectation of privacy in luggage, the police may take it but may not search it without a warrant. 421 But a seemingly broad exception to this rule permits the police to inventory an arrestees effects, including a shoulder bag, without a warrant; and if criminal evidence is uncovered, it may be used at trial. 1 1 2 1 In a 1991 case, Alameda County (California) police in a patrol car rounded a corner and saw several youths "huddled around" a parked car. When the youths saw the police they started to run. The police gave chase. One of the youths ran down an alley and did not notice an officer in pursuit. At the last moment, seeing the officer almost on top of him, the youth threw something onto the pavement. The officer tackled the youth, handcuffed him, and on radioing for help discovered that the object was crack cocaine. At a juvenile proceeding, the youth claimed that the cocaine had been unlawfully seized because it was the fruit of an unreasonable "seizure" of the youth himself. His theory was that the officer was exhibiting a show of force by chasing him, and that that amounted to a seizure. The Court held, 7—2, that the chase was not a seizure, that the cocaine was abandoned by the fleeing youth, and that it could therefore be used in evidence. 371 SEARCH

AND

SEIZURE:

LIABILITY

FOR

ILLEGAL S E A R C H Under federal civil rights laws, municipal police 1582 and even the city itself' 5 7 9 may be sued for violating an individual's FOURTH A M E N D M E N T rights. T h i s law is n o t a p -

plicable to federal law enforcement officials, but

in 1971, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court held that the Fourth Amendment itself permits individuals injured by unconstitutional searches to file suits for DAMAGES against the officials who carried out the search. There was some suggestion that such suits might provide a reasonable deterrent to police lawlessness so that the EXCLUSIONARY

RULE

could

be

abolished.

Though weakened, the exclusionary rule still applies in both state and federal court for violations of the Fourth Amendment. The Court has partially limited the Fourth Amendment right to sue. A federal law enforcement official may have a suit against him dismissed on showing that it was objectively reasonable for him to believe there was probable cause or an "exigent circumstance" to search, even if the warrantless search is later held unconstitutional.71 See also: CIVIL RIGHTS AND CIVIL CONSTITUTIONAL

TORTS;

LIBERTIES;

IMMUNITY

SUIT; SEARCH AND SEIZURE: EXIGENT

FROM CIRCUM-

STANCES. SEARCH AND SEIZURE: NEUTRAL

MAG-

I S T R A T E T h e FOURTH AMENDMENT does n o t

say who is empowered to issue warrants. The Supreme Court has repeatedly said that when warrants are required, they are to be issued only by a "judicial o f f i c e r . " 1 3 1 1 2 0 9 ' 2 4 1 1 There would be no point at all in having a warrant if the police could search whenever in their own judgment they have evidence that would lead a judicial officer to issue one. The evidence must be presented to a "neutral and detached magistrate." 1179 The magistrate need not be a judge with the independence of a federal judge appointed under Art. III. For example, city clerks supervised by judges may issue warrants. 2130 But the issuer cannot be a person engaged in law enforcement, such as the attorney general, for then he cannot be neutral; 530 nor may he be paid for each warrant issued, for then he is not detached. 517 SEARCH

AND

SEIZURE:

OPEN

FIELDS

D O C T R I N E In 1924 the Court held that certain "open fields," such as vacant lots and pastures, are not protected by the FOURTH AMENDMENT and that the police may search them without obtaining a warrant or even having probable cause. 1057 Even fenced fields fall within the open fields doctrine, except for areas immediately adjacent to a person's home. 1 7 5 9

S E A R C H A N D S E I Z U R E : S T O P A N D FRISK This rule has been applied to garbage left on the street, permitting police to rummage through it without a warrant or probable cause. 370 Likewise, police may inspect an open field from low-flying helicopters, and whatever they see may be admitted at trial. 785 SEARCH

AND

SEIZURE:

PLAIN

VIEW

If

the police are lawfully in a place where evidence of criminal wrongdoing is in "plain view," they may seize it without a search warrant—for example, marijuana lying exposed in a college dormitory in which the police were lawfully standing. 247 '' The discovery of objects in plain view need not be inadvertent; that is, they need not be things the police did not expect to find. When the search warrant authorizes the police to search only for stolen goods, but the police see the robbery weapons in plain sight, the seizure is lawful. 1 0 8 5 Plain view does not connote merely things that can be seen; the plain view rule applies also to evidence detected by touch, so that the police may seize even "nonthreatening contraband detected during a patdown search of the sort permitted by Terry v. Ohio."1560 SEARCH

AND

SEIZURE:

PRISONS

The

FOURTH AMENDMENT does not apply to prison cells. Prison authorities may search inmates' cells at will. Random "shakedown" searches may be conducted without any policy set forth by which guards will undertake them.' 095 Similarly, probation authorities need neither warrant nor probable cause to conduct administrative searches of a probationer's home. 947 SEARCH STOPS

AND

AND

SEIZURE:

CHECKPOINTS

RANDOM T h e FOURTH

AMENDMENT provides practically no protection to drivers caught in a roadblock. In 1990 the Court upheld sobriety checkpoints at which police may stop any car passing along the road at a fixed point to check for signs of intoxication, without any reasonable grounds to believe that any particular driver is drunk.' 5 3 5 If the police gain a reasonable belief that weapons may be present, they may stop and frisk and seize any weapons found in the places where weapons would ordinarily be placed. 1532 They may also seize any evidence found in plain view. 2315 The Court has also upheld fixed checkpoint stops of automobiles at the border to question passengers, even though the authorities have no reason to believe that illegal aliens are inside. 1447

See also: SEARCH AND SEIZURE: SEARCH

AND

AND SEIZURE: SEARCH

SEIZURE: STOP AND

AND

PLAIN

AUTOMOBILES; VIEW;

SEARCH

FRISK.

SEIZURE:

SCHOOLS

School officials need neither warrants nor probable cause to search school grounds, as long as they have reasonable grounds to believe that the student has violated the law or school rules. In one case, a student was accused of violating a nosmoking rule. The Court held that a search of her purse was valid, and the illegal drugs found inside were admissible in juvenile proceedings. 1661 SEARCH

AND

SEIZURE:

STANDING

TO

C O N T E S T Suppose that, fearing detection, a drug dealer hurriedly stuffs drugs into his companion's purse and that, without probable cause or a warrant, the police search it and find the drugs. May the prosecutor offer into evidence the drugs so seized? Even though the search of the companion was unconstitutional, the drug dealer has no constitutional ground to complain, since he had no expectation of privacy in her purse, and therefore no STANDING to contest the validity of the search. 1947 In general, therefore, search and seizure rules will be applied only if the search violates an interest of the person against whom the evidence will be used. 39, 1 9 4 1 The Court rejected the "co-conspirator exception" to this principle employed by a federal appeals court. The lower court's theory was that a co-conspirator had standing to contest a search "if he has either a supervisory role in the conspiracy or joint control over the place or property involved in the search and seizure." The Court unanimously disagreed, holding that no defendant can gain a property interest or have a legitimate expectation of privacy in any object or place simply because he is in a conspiracy with someone who does have such an interest. 1787 SEARCH

AND

SEIZURE:

STOP

AND

FRISK When a police officer's suspicion about someone's behavior falls short of the constitutional requirement of probable cause to arrest, the Court has permitted a lesser form of search and seizure. For example, an experienced police officer may see characters suspiciously "casing" a store as if they were planning to rob it. The FOURTH AMENDMENT, said Chief Justice Earl Warren in 1968, permits the officer to "stop and frisk" these not-quitesuspects if they cannot give an immediate and reasonable account of themselves. Any weapons

447

448

S E A R C H A N D SEIZURE: W I R E T A P P I N G A N D E L E C T R O N I C S U R V E I L L A N C E discovered in the frisk may be seized and the suspect arrested.2309 But the officer may not rely on generalized suspicions; he must be able to specifically articulate the circumstances that gave rise to his suspicions.542 So, for example, a persons mere appearance in a high crime area is not a reasonable ground to stop and frisk,299 nor is a person's ethnic appearance.274 See also: SEARCH AND SEIZURE:

SEARCH AND

AND

SEIZURE:

ELECTRONIC

AIRPORT

STOPS.

WIRETAPPING

SURVEILLANCE

Wire-

tapping is eavesdropping on telephone conversations. The constitutional question is whether evidence gathered by wiretapping (or other forms of electronic surveillance) is subject to the FOURTH AMENDMENT'S prohibition against unreasonable search and seizure, requiring the government to obtain a search warrant after first showing probable cause to believe that a crime has been committed. When the issue first came before the Supreme Court in 1928, in Olmstead v. United States, Chief Justice William Howard Taft held for the 5-4 majority that the police did not need a warrant because intercepting a phone conversation was neither a physical trespass of a persons home nor a seizure of tangible property. In a bitter dissent that has since become the basic constitutional rule, Justice Louis D. Brandeis said, "The makers of our Constitution . . . conferred, as against the government, the right to be let alone. . . . Every unjustifiable intrusion upon the privacy of the individual, by whatever means employed, must be deemed a violation of the Fourth Amendment." Is placing a "bug" in someone's home or office subject to the Fourth Amendment if bugging the premises requires a physical trespass? In a 1942 case, the Court said there was no trespass because the bug was placed on one side of a party wall and in no way intruded into the room from which it plucked out conversations.897 But when officials, without a warrant, pushed a "spike mike" into the wall to make contact with a heating duct so that it could broadcast conversations, there was an unconstitutional trespass. 2152 By the late 1960s the Court had reconsidered, holding that the Fourth Amendment protects people, not places; therefore the relevant issue is not whether there has been some intrusion into a wall but whether there is some expectation of privacy. Overruling Olmstead, the Court held that people do expect that their telephone conversations and conversa-

tions in a room will be private. 1209 The result is that wiretapping and other forms of electronic surveillance are now subject to the Fourth Amendments warrant requirement (and are also regulated by federal statutes). New technologies pose related issues. For example, the police may, without a warrant, install a beeper on a car to follow it along the public roads, 1246 but they need a warrant to install a beeper in a private residence to know whether a particular object is continuously present. 1206 Somewhat mysteriously, the Court held that since there is no expectation of privacy in the phone numbers that a person dials, the police may surreptitiously install a device to record those numbers without obtaining a warrant. 2179 See also: NATIONAL

SEARCH

AND

SECURITY.

SEIZURE:

WITH

AND

W I T H O U T W A R R A N T S Whenever practicable, the police must obtain "advance judicial approval of searches and seizures through a warrant procedure," the Court said in the 1960s. 2309 In essence, its v i e w o f t h e FOURTH

AMENDMENT

then was that only in exceptional cases could the PROBABLE C A U S E a n d w a r r a n t r e q u i r e m e n t s b e

dispensed with. In the 1990s that general outlook seems greatly altered. The Court has determined that in a wide variety of circumstances it is not practicable to obtain a warrant. With the exception of searching a person's home, the warrant rule today has more exceptions than inclusions. Among other circumstances now excepted from the rule are random drug testing; random stops and checkpoints; administrative searches in many industries, factories, and offices; schools; and automobiles on the road. When reviewing a lower court's determination that police had sufficient cause to search without a warrant, the appeals courts should not be "deferential" but should independently reassess the lower court's legal conclusion. 1769 The Fourth Amendment states "a strong preference" for warrants to authorize searches, the Court has said, and if a reviewing court gave less scrutiny to the reasons supporting a warrantless search than they need to give to a judge or magistrate when applying for a warrant, the police would have no incentive ever to seek one. At the same time, the reviewing court must "give due weight to inferences drawn from [the] facts by resident judges and local law enforcement officers" and "to a trial court's finding that the officer was credible and

SECOND-CLASS CITIZENSHIP the inference was reasonable." T h e C o u r t noted

RIGHTS. Despite the seemingly broad language

that "to a layman the sort o f loose panel below

protecting the "right of the people to keep and

the back seat arm rest in the automobile . . . may

bear arms," the Supreme C o u r t in its rare con-

suggest only wear and tear, but to [the officer],

structions o f the amendment has narrowly con-

w h o had searched roughly 2 , 0 0 0 cars for nar-

fined it so that Congress has been free to impose

cotics, it suggests that drugs may be secreted in-

restrictions on gun ownership and sales. T h e Second A m e n d m e n t applies only to the federal

side the panel." See also: DRUG TESTING; SEARCH AND SEIZURE: ADMINISTRATIVE ZURE:

SEARCHES;

AUTOMOBILES;

RANDOM

STOPS

AND SEIZURE:

AND

SEARCH AND

SEARCH

SEI-

AND

SEIZURE:

CHECKPOINTS;

SEARCH

government and does not prevent the states from enacting

any

gun

INCIDENT

TO

ARREST,

search and seizure: incident to SEARCH WARRANT

see: arrest

W h e n a search warrant is

required under the FOURTH AMENDMENT, it must describe with particularity "the place to be searched, and the persons or things to be seized." Police may

legislation

they

See also: ARMS, RIGHT TO KEEP AND BEAR.

SCHOOLS.

SECOND-CLASS SEARCH

control

please. 1 9 0 4

not lawfully seize something

not

specifically listed in the warrant, unless they are lawfully on the premises and spot evidence of a crime that is in plain view.

530

A warrant to search

for and seize obscene materials may not simply authorize police to look for "obscene" books. T h e items must be particularized so that the magistrate issuing the warrant can be certain that the police have probable cause to believe they will find the materials and so that it can be determined later whether what they find squares with what they 1430

said they would find.

T h e C o u r t invalidated a

seizure o f two thousand books and pamphlets

CITIZENSHIP

In theory, a

person either is or is not an American citizen; the Constitution formally recognizes only one class of citizenship. Said C h i e f Justice J o h n Marshall in 1824, "A naturalized citizen . . . becomes a m e m ber of the society, possessing all the rights o f a native citizen, and standing . . . on the [constitutional]

footing of a native."1774

Citizenship

Clause

of

the

Before

the

FOURTEENTH

AMENDMENT was ratified in 1868, this sentiment was never entirely true: free blacks were denied equal benefits of citizenship in many northern states. (Under DRED SCOTT v. SANDFORD, this discrimination

was formally justified by

the

anomaly that free blacks were not entitled to citizenship at all.) Today there are three ways in which some citizens differ, two because of explicit constitutional provisions and one because o f a constitutional obscurity. 1.

Under Art. II-§i [5] only "natural born" citi-

under a warrant that broadly authorized the tak-

zens may be president. Naturalized citizens,

ing o f writings "concerning the C o m m u n i s t Party

then,

of T e x a s . " 2 2 3 3 A good-faith mistake in a warrant

Constitution does not define "natural born,"

may

not

serve

as

president.

The

may sometimes be excused. T h e C o u r t upheld a

and the issue sometimes surfaces when a po-

search of an apartment mistakenly listed as the

tential candidate turns out to have been born

only one on the third floor of the building when

abroad to American parents. Under federal

it turned out that there were t w o . 1 4 5 0

law, such a person is a citizen from birth. But it is unclear whether the citizenship derives

See also: EFFICIENCY; PLAIN

SEARCH AND

SEIZURE:

VIEW.

from birth or naturalization. Section I of the Fourteenth A m e n d m e n t says that any person "born or naturalized in" the United States is a

SEAT

OF

UNITED

THE

GOVERNMENT

STATES,

see:

OF

THE

District

of

C o l u m b i a , c o n s t i t u t i o n a l s t a t u s of S E C E S S I O N , see: nullification, sition, and

interpo-

secession

citizen. A person born abroad was, of course, not "born in" the United States, so it is possible that such a person is naturalized, by virtue o f the law conferring citizenship at birth, and hence is ineligible to run for president. T h e issue has never reached the Supreme C o u r t . 2. Persons convicted o f crimes may suffer the

SECOND AMENDMENT

T h e Second A m e n d -

ment was ratified in 1791 as part o f the BILL OF

loss o f important

incidents of

citizenship,

such as the right to vote. T h e THIRTEENTH

449

450

SECRECY AMENDMENT

explicitly

exempts

prisoners

f r o m the abolition o f INVOLUNTARY SERVI-

SECURITY security

PROGRAMS,

see:

loyalty-

programs

TUDE.

3. Naturalized citizens may lose their citizenship in ways not applicable to citizens born in the United States. Under federal law, a person born abroad to one parent who was an American citizen becomes an American citizen at birth but forfeits his citizenship if he fails to live continuously in the United States during any five-year period between his fourteenth and twenty-eighth birthdays. The Supreme Court upheld Congress's power to create such a conditional citizenship: "[W]hile it lasts, [citizenship,] although conditional, is not 'second-class.'"2015 However, the Court struck down laws divesting a naturalized citizen of citizenship for voting in foreign elections22 and for living continuously for three years in his former country. Native-born citizens may not be deprived of their citizenship in this manner, the Court said: "[T]he rights of citizenship of the native born and of the naturalized person are of the same dignity and coextensive."2098 The Court has adhered to this notion in striking down under the EQUAL PROTECTION CLAUSE several state durational residency laws that provide greater benefits to longtime residents than to those newly arrived. In 1982, for example, the Court invalidated as irrational an Alaska law that doled out dividends to residents from its sale of oil and other natural resources, the amount varying with the length of residence. The states are not permitted, said Chief Justice Warren E. Burger, "to divide citizens into expanding numbers of permanent classes."2630 The Court similarly voided laws granting tax exemptions and a VETERANS' PREFERENCE to only those Vietnam veterans who were residents of the states before a certain date. 1 0 8 2 ' 1 1 5 See also: ALIENS;

CITIZENS

AND

DEPORTATION;

DURATIONAL

QUIREMENTS;

EXPATRIATION;

AND

Klan

see:

free

press-fair

trial;

order;leaks

SECTION tion;

RE-

IMMIGRATION

NATURALIZATION.

SECRECY, gag

CITIZENSHIP;

RESIDENCY

1983, s e e : c i v i l r i g h t s

immunity

from

suit;

legisla-

Ku

Klux

Act

SECURITIES

L A W S , see: t a k e o v e r

laws

S E D I T I O N Sedition is a lesser form of TREASON. It encompasses subversive activities that tend to undermine the government or the authority of the state. Since the espionage and sedition trials after World War I, the crucial difficulty has been to distinguish between seditious actions and constitutionally protected speech. Most sedition laws, including the original Sedition Act of 1798, criminalized the advocacy of sedition, as well as sedition itself. For half a century, between 1919 and 1969, the Supreme Court struggled to draw a line, at first rejecting Justice Oliver Wendell Holmes's CLEAR AND PRESENT DANGER test in favor of the theory that if a particular speech or publication has a tendency, even if not immediate, to lead to lawless violence, the speaker may be punished. These doctrines were aired chiefly in cases involving criminal SYNDICALISM a n d C O M M U N I S M A N D T H E C O M M U -

NIST PARTY, until the Court in 1969, in Brandenburg v. Ohio, declared that mere advocacy, unless directed toward inciting and likely to produce "imminent lawless action," is protected under the FIRST AMENDMENT. Laws against seditious actions, such as actual physical violence, remain constitutional. However, in 1956 the Supreme Court declared that the anticommunist Smith Act, which criminalized seditious advocacy, preempted all state sedition laws, so that only federal enforcement is allowed. 1827 See also: PREEMPTION;

SEDITIOUS

LIBEL;

SUB-

VERSIVE ADVOCACY.

S E D I T I O U S LIBEL Seditious libel was defined at COMMON LAW as any oral or written attack on the king or his government. Centuries ago, seditious libel was considered the equivalent of TREASON and was punishable by torture and death. When treason came to be understood as engagement in OVERT ACTS to produce a consequence inimical to the realm, punishment for seditious libel was limited to fines and imprisonment. In 1735 the ZENGER trial in New York established the fundamental principle that a true statement could not be punished as a seditious libel, no matter how vociferous the criticism of the government. In 1791, with the ratification of the BILL OF RIGHTS, the constitutional issue was whether any form of seditious libel survived the FIRST AMENDMENT. In 1798 the Federalists pushed the

SEGREGATION AND INTEGRATION Sedition Act through Congress to still criticism of President John Adams's policies. The act forbade publication of any false, scandalous, and malicious statements about Congress or the president. The act was denounced by Adams's opponents, and when Thomas Jefferson became president he pardoned several editors convicted under it. The law lapsed in 1801 and never was put to the test in the Supreme Court. The question of seditious libel did not arise again until after World War I, when several federal convictions were obtained under the Espionage Act for speeches and publications that at bottom were nothing more than what we might today consider relatively mild criticism of the government. The Supreme Court upheld the government, provoking the classic dissent of Justice Oliver Wendell Holmes in 1919 in Abrams v. United States: "I wholly disagree with the argument of the government that the First Amendment left the common law as to seditious libel in force." Inventing the CLEAR AND PRESENT DANGER test, Holmes insisted that no one could be punished for words alone unless they were likely to cause people imminently to act lawlessly. In 1964, in New York Times v. Sullivan, the Court said that actual MALICE must be shown in civil defamation lawsuits against public officials and noted that although the Sedition Act was never tested, "the attack upon its validity has carried the day in the court of history." In 1964, in Garrison v. Louisiana, the Court reversed a conviction of the New Orleans district attorney, James Garrison, for "criminal libel," the practical equivalent of seditious libel. Garrison, who gained fame for investigating President Kennedy's assassination, denounced local judges as lazy and corrupt. Although the Garrison case does not necessarily preclude seditious libel suits if the speaker knowingly and falsely defames a public official, as a practical matter the crime of seditious libel is dead. See also: CRIMINAL LIBEL; PUBLIC FIGURES AND OFFICIALS;

SEDITION;

SEGREGATION

AND

SUBVERSIVE

ADVOCACY.

INTEGRATION

In

the CIVIL RIGHTS CASES in 1883, the S u p r e m e

Court denied that Congress had the constitutional authority to prohibit private acts of RACIAL DISCRIMINATION. Nevertheless, the Court agreed that such acts were legally wrong and that the states should provide a remedy. But in 1896, in PLESSY V. FERGUSON, the C o u r t officially ap-

proved racial segregation, turning its back on its own prior statements and on the central meaning o f the F O U R T E E N T H A M E N D M E N T . T h e C o u r t ' s

primary justification was that the EQUAL PROTECTION CLAUSE required absolute equality only for political and civil rights, such as voting and the right to enter contracts. It did not require equality for "social rights," such as riding on railroads, the central issue in the case. Instead, as long as the state provided SEPARATE BUT EQUAL facilities, the Constitution was satisfied. One conundrum was why, if equal protection did not embrace social rights, facilities needed to be equal at all. Why not just deny blacks the right altogether to ride on railroads? Another mystery is how the Court could square separate but equal with FREEDOM OF CONTRACT. For example, in 1908 the Court upheld a law that prohibited voluntary interracial education. Justice Rufus Peckham, the author of LOCHNER V. NEW YORK, the archetypal decision upholding a liberty to contract, saw no inconsistency in holding that a law merely regulating the terms of an employment agreement between a worker and his employer is unconstitutional, whereas a law prohibiting blacks from entering contracts for admission to colleges that also enroll whites was perfectly constitutional.184 Plessy created an officially segregated southern America, from schools and neighborhoods down to black and white telephone booths, cemeteries, brothels, and even, in some states, Bibles to swear in witnesses in court. In 1927 the Supreme Court extended Plessy to formally uphold school segregation.904 In 1938, however, the Court was presented with a different kind of case. The segregated University of Missouri Law School, the only law school in the state, refused to admit a black student but offered him funds to attend a law school out of state. He insisted on his right to attend a Missouri law school equally with whites, and the Supreme Court now agreed. Since no out-of-state school taught Missouri law, the education he was offered was clearly separate and unequal. 1572 The Court's decision ordering Missouri to provide the black student with a legal education helped prompt the NAACP to found its Legal Defense and Education Fund and to name Thurgood Marshall its general counsel. Marshall became the chief architect of the litigation strategy that would dismantle America's official apartheid. Marshall brought a series of education cases, each designed to point out the futility of the separate but equal dogma. For example, in

451

452

SEGREGATION AND INTEGRATION 1950 the Court agreed that a hastily established black law school in Texas was scarcely the equal of the venerable University of Texas Law School. Marshall shrewdly chose to challenge segregation in a law school, because the justices would know firsthand the difference between a quality legal education and an inferior one. 2284 In 1954 the Court reached beyond the task of sorting out case by case whether a particular school was the equal of another and held in the epochal BROWN V. BOARD OF EDUCATION that

separate is inherently unequal. Though Brown purported to rest its conclusion only in the context of education, it quickly became clear that the Court was embarked on the far more ambitious project of striking down every facet of official segregation. Between 1954 and 1963 the Court, with almost no discussion, struck down laws requiring segregation of beaches,1467 buses,852 golf courses, 1076 public parks, 1668 and municipal restaurants.2383 In 1963, in a case involving a segregated public courtroom, the Court declared that it "is no longer open to question that a state may not constitutionally require segregation of public facilities." 1180 Having pronounced legally mandated segregation unconstitutional, the more difficult question was how to desegregate. Clearly it was not sufficient simply to nullify state laws requiring segregation, for that would simply leave segregated schools and other institutions in place. In 1955 the Court declared that the states should proceed with ALL DELIBERATE SPEED toward dismantling the discriminatory dual school systems.291 For fifteen years the Court left the process to the lower courts. The major constitutional theme was that the courts had power to oversee desegregation plans for school systems that had deliberately engaged in segregation in the past. But that did not necessarily mean they should order schools integrated merely because there was racial imbalance. The key question was whether a discriminatory purpose accounted for the school systems as they then existed. In 1968 the Court presaged a major shift, holding that "freedom of choice" had not worked and that the lower courts should begin exercising their power to achieve results.932 In 1969 a unanimous Court rejected its own "all deliberate speed" timetable, holding that this much abused guideline was no longer constitutionally permissible.40 In 1971 the Court went even further, for the first time speaking of the need to achieve better racial balance and discussing the kinds of re-

medial steps, including BUSING, to which the courts might need to resort to end segregated school systems.2283 The Court also turned its attention to northern segregation, declaring that when it can be shown that one part of a school district had been deliberately segregated, a desegregation order might be appropriate for the entire district, 1230 though the Court refused to permit /»if/district remedies if only one of the districts had been shown to have deliberately segregated its schools. 1549 Proving deliberate segregation in the North was more difficult than in the South, since racial discrimination was a result of administrative practice rather than statutory enactments. In 1979 the Court said that a showing that the schools were intentionally segregated in 1954 would serve as prima facie evidence that a dual system twenty-five years later was an outgrowth of those policies, permitting the courts to order sweeping changes.601 As recently as 1990 the Court affirmed broad power in the lower courts to continue to devise plans to end the legacy of separate but equal school systems, holding that the federal courts have the power to order school districts to raise the necessary taxes to accomplish an ambitious plan and to enjoin state authorities from enforcing laws that prohibit taxes from being raised. 1570 The Court also upheld remedial power to hold the city ofYonkers, New York, in CONTEMPT for failing to abide by a decree addressing segregated housing, but it struck down a portion of the trial judge's contempt order against individual city council members who had refused to vote for the necessary implementing legislation.2213 In 1991 the Court said that a federal court INJUNCTION directing compliance with a desegregation plan does not last forever. If it can be shown that a school district has lived up to the plan for a reasonable period of time, and the "vestiges of past discrimination" have been eliminated, the court's JURISDICTION over the school system must come to an end. 218 That is true even if there is little resulting integration and even if the students in the present schools do not score well as measured by national norms; desegregation plans may not be used for extraneous purposes, such as stemming "white flight" across school district lines. The issue is, rather, "whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable." 1571 Concurring in this conclusion, Justice Clarence Thomas observed that "[i]t never ceases to amaze

SELF-INCRIMINATION

me that the courts are so willing to assume that anything that is predominantly black must be inferior. . . . When a district court holds the State liable for discrimination almost 30 years after the last official state action, it must do more than show that there are schools with high black populations or low test scores. Here, the district judge did not make clear how the high black enrollments in certain schools were fairly traceable to the State of Missouri's actions. I do not doubt that Missouri maintained the despicable system of segregation until 1954. But I question the District Court's conclusion that because the State had enforced segregation until 1954, its actions, or lack thereof, proximately caused the 'racial isolation' of the predominantly black schools in 1984... . Brown did not say that 'racially isolated' schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. . . . The point of the Equal Protection Clause is not to enforce strict race-mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color." Dissenting, Justice Ruth Bader Ginsburg noted that the majority's stress on the seven years that the remedial programs had been in place paled next to the two centuries and more "of firmly entrenched official discrimination," which made "the experience with the desegregation remedies ordered by the District Court . . . evanescent." The first remedial order correcting the effects of de jure segregation was not issued until 1985, thirty-one years after Brown. "Given the deep, inglorious history of segregation in Missouri, to curtail desegregation at this time and in this manner is an action at once too swift and too soon." If some aspects of a desegregation plan are not yet implemented, however, a court need not relinquish all jurisdiction; it may continue to supervise unfinished tasks while ending supervision over aspects that are completed. 813 Moreover, the lower courts may continue to have an affirmative obligation to restrict student choice or otherwise seek a particular racial balance in higher education, not just secondary and elementary schools, if the racial imbalance they are seeking to change is attributable to actions of the state in perpetuating its prior segregated school system.796 The continuing debate, it seems clear, will turn on the difficult factual issue of whether present school conditions were caused by intentionally discriminatory actions of the state, often but not always in the increasingly distant past.

See

also: AFFIRMATIVE

FACTO-DE TION;

JURE

ACTION;

PURPOSE-IMPACT

OLOGICAL

FOOTNOTE

EVIDENCE;

BUSING;

DISTINCTION;

STATE

DE

MISCEGENA-

DISTINCTION; AND

SOCI-

SOCIAL

ACTION;

SCIENCE

VOTING,

RIGHT

TO.

S E I Z U R E , see: s e a r c h a n d

SELECTIVE ley

seizure

EXCLUSIVENESS,

See:

Coo-

doctrine

SELECTIVE corporation

SELECTIVE cutorial

INCORPORATION,

see:

in-

doctrine

PROSECUTION,

see:

prose-

discretion

SELECTIVE

SERVICE

ACT,

see:

con-

see:

trea-

scription

SELF-EXECUTING ties and t r e a t y

SELF-HELP

TREATIES,

power

REMEDIES,

see:

reposses-

sion

SELF-INCRIMINATION The right against self-incrimination, protected by the FIFTH A M E N D M E N T , is c e n t r a l t o t h e A C C U S A T O R I A L

SYSTEM of criminal justice: together with the PRESUMPTION

OF

INNOCENCE,

the

right

against self-incrimination ensures that the state must bear the burden of prosecution. The Fifth Amendment says that no person "shall be compelled in any criminal case to be a witness against himself." The surface meaning is relatively limited: the state may not force a defendant to testify in a criminal prosecution against his will. The clause seems to allow the possibility that the state could force a suspect to confess before trial, but that unduly harsh reading has never been accepted. PLEADING THE FIFTH has come to mean that no official organ of the state may exact a statement from anyone, whether or not formally ACCUSED, that might ultimately lead to criminal penalties in the same or some other legal proceeding. A witness may decline to testify on the grounds of self-incrimination in a civil proceeding, 1475 before a GRAND JURY,544 or when called by a legislative committee2485 or an administrative agency.952 The Fifth Amendment applies to both federal and state prosecutions.1421

453

454

SELF-INCRIMINATION This "privilege," as it is often called, confers a right that is at once both broader and narrower than its text seems to suggest. On the one hand, the word "compel" has been read broadly. A witness may not be held in CONTEMPT for refusing to testify and must be free as well of other official sanctions, including loss of public employment,848- 8 4 0 , 2 3 9 7 of a public license, 2221 or of the right to do business with the state. 1312 But if the only "penalty" that might occur is loss of face, humiliation, or disgrace, and not an actual prosecution, the witness may not be excused from testifying. Therefore, a witness who receives IMMUNITY

FROM

PROSECUTION

m a y be

com-

pelled to testify. 301 On the other hand, the phrase "witness against himselF' has been read relatively narrowly. During the past quarter century the Supreme Court has underscored many times that the Fifth Amendment protects only what it terms "testimonial" evidence—knowledge possessed by the person himself, whether locked in his head or among his private papers. But it does not prevent the police from putting a person in a LINEUP, making him speak certain words to hear the sound of the voice, or demanding fingerprints or handwriting and blood samples.2097' 2455 ' 1 0 7 7 Nor does it exempt a persons accountant from releasing incriminating tax records.770 Determining what is testimonial can involve fine lines: a driver stopped by the police for involvement in an accident may not refuse to give his name and address;366 but in a 1990 case the Court said that when police stopped an apparently drunk driver on the road, they could demand that he answer routine booking questions, including his age, but they could not demand that he state the date of his sixth birthday. 1826 The right against self-incrimination is personal. It may be claimed only by a person who himself might be at risk for testifying. It may not be claimed on behalf of another, including a corporation; a custodian of corporate records may not resist a subpoena directed to the corporation on the ground that the records might incriminate him, nor may a corporation plead the Fifth. 2 5 2 2 , 9 7 4 The privilege must be claimed. A person who begins to testify without indicating that he fears incrimination may not suddenly refuse to testify further. 2019 A defendant who takes the stand in his own behalf may not claim the right against self-incrimination and refuse to answer particular questions on cross-examination that bear on his direct testimony.301 But if the defendant refuses to take the stand, the prosecutor may not com-

ment to the jury about the defendant's refusal to do so. 944 And if the defense asks, the judge must instruct the jury to give no weight whatsoever to the defendant's failure to take the stand. 412 To avoid any adverse effect that might arise from the exercise of the Fifth Amendment right, the Court has said that a prosecutor may not even tell the jury that a defendant who has offered an alibi at trial refused to say anything when originally questioned by the police.659 The rule "rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." 2457 However, the prosecutor may use the defendant's silence before arrest to impeach his later testimony 1165 and even his silence after arrest if Miranda warnings have not been given.780 Considerable confusion has arisen over the connection between the Fifth Amendment and the tax laws, which require taxpayers to file informational returns. The Court has made it clear that those engaged in unlawful business activities have no right to refrain from filing tax returns on the ground that doing so would call to the government's attention the illegal nature of their earnings. 2272, 844 Nevertheless, laws that require particular people suspected of criminal activity to file registration statements do violate the privilege. The Court struck down on this ground a federal law requiring members of the Communist Party to register with federal authorities, because the answer to any of the many questions on the form might lead to prosecution. 36 It also voided on the same ground a number of tax laws requiring people engaged in certain illegal activities to file special forms and pay a special tax. 1428 These same principles underlie the Courts controversial rulings governing police interrogation of suspects and confessions. Until its decision in 1965 holding the Fifth Amendment applicable to the states, 1421 the Court measured the admissibility of confessions in prosecutions under DUE PROCESS standards. The general rule was that confessions were admissible only if voluntary, meaning that coerced confessions must be excluded. 1084 In 1936 the Court for the first time held this rule applicable to the states, in a case in which Mississippi authorities beat confessions out of suspects with ropes and studded belts.295 But until the 1960s a confession was not considered coerced or involuntary merely because the suspect was not warned of his right to remain silent. 1899

SENATORIAL COURTESY Instead, the Court engaged in a BALANCING test, in which it judged from the "totality of circumstances" in scores of cases whether the police had overreached and thus coerced the suspect or had merely encouraged him to speak the truth.568 Coercion was not limited to physical torture; prolonged questioning and isolation in jail could be just as coercive.423 So could threats to take a woman's children from her 1400 or to bring an invalid wife into the station house 2018 if the suspect did not cooperate and sign a confession. By the 1960s it was becoming clear that something more was needed. Once the Court began to think about a more useful means of determining voluntariness, the path to the MIRANDA RULES was relatively quick. In 1964, in Escobedo v. Illinois, the Court for the first time held that a confession was involuntary solely because the police refused to let a suspect speak with his lawyer, despite repeated requests and despite the lawyers presence at the police station. Finally, in 1966, in MIRANDA V. ARIZONA the Court arrived at the rule, familiar from countless police dramas, that a confession is constitutionally involuntary and hence inadmissible at trial unless the police have advised the suspect that he has the right to remain silent (this is the Fifth Amendment right), that any statement may be used against him, and that he has the right to a lawyer, appointed for him if he cannot afford his own. Miranda provoked both a political storm and a vast body of further interpretations. If Miranda eliminated the tedious and often impossible task of discerning whether a confession was coerced in the constitutional sense, it imposed a new burden on the Court: to ascertain under what circumstances Miranda would apply. For example, one line of cases has now made clear that the Miranda rules are applicable only when the suspect is "in custody." If he is under arrest, even if not formally, the Miranda rules apply. 1770 But questioning a suspect in his own home, when he is not charged and will not be arrested, is not custodial. 171 Whether a suspect is in custody does not depend on the subjective views of the interrogator but on the "objective circumstances of the interrogation," that is, "how a reasonable man in the suspect's shoes would have understood his situation." 2238 Unless communicated to the person being questioned, "an officers evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview." Another set of questions is raised when the suspect asserts his rights. If he refuses to speak

until he has consulted with a lawyer, the police must thereafter refrain from questioning him until the lawyer has arrived.692 But a suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity,. . . the officers [need not] stop questioning the suspect." 598 Also, if the suspect at first says he wishes not to speak, without asking for a lawyer, the police may warn him anew of his rights and attempt to question him again. 1533 The suspect may waive his rights, but whether the waiver itself was voluntary is a separate constitutional question that has prompted numerous cases. 1 7 1 3 , 1 5 9 5 Involuntary confessions are inadmissible in court, but confessions that violate the Miranda rules may be used for certain limited purposes. For example, if the defendant takes the stand and denies committing the crime, his station house confession, inadmissible because he had not been read his rights, may nevertheless be used to show that he was lying on the stand. 1005 But a confession can still be involuntary for reasons other than failure to follow the Miranda rules (one obtained by torture, for example), and this other type of involuntary confession may not be used to impeach. 1554 The Court has fashioned a "public safety" exception to Miranda. If the police have arrested a suspect and ask about the location of a weapon that the suspect may have just discarded, the failure to warn does not preclude the use at trial of the defendant's statement or the weapon itself. The police should not be put in the position of having to make split-second decisions about whether the suspect will cooperate with the police after being warned. 1673 t See also:

COUNSEL,

SIONARY

RULE;

FROM PROSECUTION; MERE EVIDENCE SEARCH OTHER HEARING;

AND

ASSISTANCE

HARMLESS

EXCLUIMMUNITY

McNABB-MALLORY

RULE; SEIZURE:

OBJECTIVE

OF;

ERROR;

PLEADING

RULE;

THE

FIFTH;

FINGERPRINTS

AND

EVIDENCE;

TWO-SOVEREIGNTIES

SUPPRESSION DOCTRINE.

S E N A T E , see; C o n g r e s s , m e m b e r s of; C o n g r e s s , p o w e r s of; G r e a t C o m p r o mise; Seventeenth A m e n d m e n t SENATORIAL and consent

COURTESY,

see:

advice

455

456

SENATORS S E N A T O R S , see: C o n g r e s s , of; q u a l i f i c a t i o n s f o r o f f i c e

members

S E N T E N C I N G Judges and juries have unusually wide discretion to impose sentences. Many sentencing laws specifically provide for indeterminate sentences to prison (for example, fifteen years to life), and many others allow the judge to determine the term of imprisonment or amount of the fine from a range prescribed by the legislature. A judge cannot with absolute discretion pluck a sentence from thin air; the legislature must prescribe at least a range. The Supreme Court has said that DUE PROCESS imposes few restrictions on what the judge may consider in passing sentence. Presentence reports may contain much information that would have been inadmissible at trial. 2539 But the information must be "materially true," and a mistake of "constitutional magnitude"—for example, a statement in a presentence report that a defendant had been convicted of an earlier crime when in fact the prior proceeding was constitutionally flawed—entitles the defendant to a resentencing. 2375 A judge may also consider his or her own belief that the defendant had lied during the trial and may therefore impose a harsher sentence. 929 But the race of the defendant may never be considered. 1478 Several cases have dealt with the issue of judicial vindictiveness for a defendants exercising the right to retrial. A judge may not punish a defendant who insists on his right to a new trial by handing down a harsher sentence at the second trial than was passed after the first one. 1 7 1 4 This rule, not surprisingly, has developed many twists and turns: for example, if the defendant was originally sentenced after a GUILTY PLEA, which he then withdrew, the judge may award a heavier sentence at a later trial. 32 If a defendant has served time following conviction and then is retried because of errors in his first trial, he must receive credit for time already served in the new sentence to avoid the possibility that he would have to serve more than the maximum time allowed by law; the second sentence, however, may be heavier than the first.1714 The usual rule is that sentences are not appealable, 653 but the legislature may constitutionally permit prosecutors to do so in most instances. 628 Under federal sentencing laws, the trial judge may impose a sentence below the statutory minimum, at the request of the government, to reward a defendant who has substantially cooperated in an ongoing investigation or prosecution. Suppose

a defendant cooperates but a prosecutor refuses to make a "substantial assistance" motion. May judges on their own sentence defendants below the minimum? The Supreme Court held that judges may not do so unless the government asks, but they may hold a hearing and grant a remedy "if they find that the refusal was based on an unconstitutional motive"—for example, because of the defendants race or religion. But a mere allegation that a defendant has substantially cooperated is insufficient to trigger court review whenever the prosecutor chooses not to ask the court for leniency on the defendant's behalf. 2456 The penalty for many types of convictions is an "enhanced" sentence if the felon has prior convictions of a certain sort, such as for violent crimes or drug offenses. At a federal sentencing proceeding, the only constitutional basis for challenging the validity of the prior convictions is a SIXTH AMENDMENT claim that the felon was denied the right to counsel. 575 The Court found an exception to this rule in holding that a misdemeanor conviction that did not lead to a prison term could be used to enhance by fifteen months the sentence of a defendant later convicted of a separate offense, even though the defendant had not been represented by a lawyer at the misdemeanor trial. The Court rejected the claim that "due process requires a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime." 1 6 9 5 A sentence may be enhanced because of criminal conduct for which the defendant was acquitted at trial, as long as the conduct was proved by a preponderance of the evidence. 2488 See

also:

PENALTY; PAROLE;

COUNSEL, DOUBLE

PROBATION;

PROPORTIONALITY EVIDENCE, BY JURY;

SEPARATE

ASSISTANCE JEOPARDY; PROOF,

BUT

DEATH CRIMES;

BURDEN

OF SENTENCE;

USE OF; TESTIFY, VICTIM

OF; HATE

RIGHT

OF;

STATISTICAL TO;

TRIAL

IMPACT

STATEMENTS.

EQUAL

In PLESSY V. FER-

GUSON the Supreme Court gave a constitutional imprimatur to official segregation of the races by upholding a Louisiana law requiring "separate but equal" railroad cars for blacks and whites. T h e separate but equal doctrine originated in an opinion of Massachusetts Chief Justice Lemuel Shaw in an 1849 case holding that Boston school segregation was constitutional, despite a provision in the Massachusetts state constitution

SEPARATION OF POWERS declaring that "all men are born free and equal." Shaw agreed that "all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law." But he shrank at the implications of his statement, and concluded mysteriously that the rights to which any person is entitled "depend on laws adapted to their respective relations and conditions."* A law decreeing separate schools did not offend the constitution, as long as the schools were equal. Shaw did not trouble to inquire whether the schools were in fact equal or even how that equality could be measured. Neither did the Plessy Court. N o t until the 1930s did the Supreme Court begin to consider the actual equality of conditions. Long before any constitutional standard could emerge—and perhaps because no such standard is possible—the Court struck the doctrine a fatal b l o w in BROWN V. BOARD OF E D U C A T I O N

by

concluding that "separate" itself can never be "equal." See also: MISCEGENATION; TION; SEGREGATION SEPARATION

see:

religious

OF

AND

RACIAL

DISCRIMINA-

INTEGRATION.

CHURCH

AND

STATE,

establishment

S E P A R A T I O N OF P O W E R S Separation of powers is one of the deepest political principles of the Constitution, the core protection against tyranny. Safety lies in power divided, ambition checking ambition. T h e Constitution secures the separation of powers in two ways. Under Art I-§6[2] no sitting member of Congress may hold any post in the executive branch. This single clause differentiates the American national government from the British, where cabinet ministers are all members of Parliament. This clause separates only Congress and the executive branch. Formally it does not preclude a member of the executive from simultaneously holding judicial office, and there is a fleeting precedent for such an occurrence: John Marshall continued as John Adams's secretary of state after having been confirmed as chief justice of the United States, and even served a single day into the Jefferson administration. The Constitution is silent on whether members of state government may simultaneously serve in the federal government, and here too there is odd precedent: in the 1790s Roger Sherman served as both U.S. senator and mayor of New Haven, Connecticut; and in the 1930s Governor Huey Long of

Louisiana was, for a brief time, simultaneously a U.S. senator. The Constitution also requires that the legislative, executive, and judicial branches of the federal government exercise different powers. This rule derives partly from the text of the Constitution and partly from its structure. Article I places the LEGISLATIVE POWER exclusively in Congress. Article II bestows the EXECUT I V E POWER o n the president, a n d A r t . I l l c o n -

fers the JUDICIAL POWER on the Supreme Court and whatever lower federal courts Congress creates. But because the Constitution does not define these powers or mark their boundaries with any precision, the doctrine of separation of powers is porous and difficult to define. The issue of separation of powers usually arises in one of two situations: encroachment on one branch's power by another branch, or delegation of one type of power to another branch. T h e 1952 STEEL SEIZURE CASE illustrates encroachment. The Court said that President Harry S. Truman had overstepped his powers because in seizing the nations steel mills he was exercising a legislative power. Bowsher v. Synar, which in 1986 struck down the Balanced Budget and Emergency Deficit Control Act (popularly known as Gramm-Rudman-Hollings), illustrates the delegation problem. The Court said that separation of powers was violated because Congress attempted to assign an executive power to a legislative branch official. Under the law, the comptroller general of the United States was assigned the power to reconcile budget deficit estimates by the Office of Management and Budget, an executive branch agency, and the Congressional Budget Office. The comptroller general's recommendations on what budget items to slash would be transmitted to the president, who was obligated to reduce the budget by those amounts. The Court reached two conclusions. Determining how to cut the budget under the act is an executive function. The comptroller general is not an executive official, even though appointed by the president, because Congress retains the power to fire him. Since the comptroller general is therefore a creature of Congress, he cannot carry out an executive function. Another type of encroachment occurs when Congress attempts to dictate the outcome of a case in court. More than a century ago the Court declared that Congress may not do so in the guise of limiting the Supreme Court's jurisdiction. 1241 In 1992 the Court confronted a federal timber law

457

458

SERVICE OF

PROCESS

that changed the rules governing the extent of timber cutting and harvesting. This change undercut the legal basis of a suit that had been filed by environmental organizations against the U.S. Forest Service and the Bureau of Land Management. The groups asserted that the law violated separation of powers because it purported to tell the courts how to decide pending cases. The Supreme Court disagreed, noting that Congress did not direct the courts on what facts to find or how to apply the old law. Rather, Congress changed the law, substituting new legal standards under which the cases were to be decided. Since Congress may always change the law, there was no separation of powers problem.2008 In a somewhat different vein, the Court in 1983

voided

the

LEGISLATIVE

VETO,

a

device

by which one or both houses of Congress could unilaterally veto a rule, regulation, or decision of an executive branch agency or department. The Court held that in so doing Congress was acting legislatively, which requires BICAMERALISM and PRESENTMENT to the president, features absent in the usual legislative veto. 1125 The case excited considerable comment for its very oddity. The power to issue a rule or regulation is a legislative power delegated to an agency. The Court was saying, in essence, that in the name of separation of powers, Congress is free to delegate to the executive but not to itself. This case, therefore, was really about the ways a branch may exercise its power. On the other hand, in an opinion that in some ways contradicts the Legislative Veto Case, the Court upheld the power of Congress to create the o f f i c e o f I N D E P E N D E N T C O U N S E L , a special

prosecutor appointed by the federal courts who is largely unanswerable to the president. The case means that the executive power presumably vested by the Constitution wholly in the president may be delegated elsewhere.1599 In 1989 the Court also upheld a congressional delegation of rule-making authority to the U.S. Sentencing Commission, an agency located in the judicial branch and consisting partly of federal judges. 1574 The commission has the authority to issue mandatory sentencing guidelines for use in federal prosecutions. The Court concluded that separation of powers permits one branch to share in the power of another, and that the danger of presidential interference in this judicial agency— the president has the power to remove the judges from the commission "for good cause"—is too remote to pose any constitutional difficulty, even though, of course, it was precisely this difficulty

in the comptroller generals case that led the Court to strike the budget balancing law. Separation of powers is a vital constitutional doctrine, greatly in need of clarification. See also: ACT TRATIVE

OF STATE

AGENCIES

ERNMENT;

DOCTRINE;

AND

ADVISORY

ADMINIS-

BUREAUCRATIC OPINIONS;

MENT AND REMOVAL POWER; ARMED CHECKS

AND

BALANCES;

OTHER BRANCHES; CLARATORY TRINE;

JUDGMENT;

DELEGATION

POWERS;

IMPOUNDMENT; OF LEGISLATURE;

TO

OF REVISION;

IMPLIED

POWERS

AND

DEDOC-

INHERENT

INVESTIGATORY JUDICIAL

LINE-ITEM

VETO;

PRESIDENT,

POWERS AND DUTIES

COURT, JURISDICTION

FORCES;

COMMITMENT

COUNCIL

FINALITY;

GOV-

APPOINT-

PENTAGON

REVIEW;

PAPERS OF;

CASE;

SUPREME

OF; WAR POWER.

SERVICE OF PROCESS For a court to determine the legal rights of the parties, it must have JURISDICTION both over the particular subject of the dispute and over the parties themselves. Under DUE PROCESS, no person is subject to a court's jurisdiction unless he or she has been made a party to the suit. Jurisdiction depends, in part, on NOTICE, and notice is usually provided through "service of process." Personal service is the best way to notify a potential defendant because it provides actual notice through the official papers handed to him that he is being sued. Under the usual circumstances, personal service is constitutionally required.1487 Since a court usually has no jurisdiction over parties outside the state in which it sits, personal service ordinarily is effective only when the defendant is in the state. But personal service is not the only constitutional means of obtaining personal jurisdiction. Under some circumstances, service may be obtained through the mail 830 or even by posting. However, service that does not reasonably guarantee actual notice is constitutionally defective. For example, the Court held invalid the practice of posting notices on the doors in an apartment complex because the evidence showed that children often removed them before the occupant could find them.935 Service may be made on agents appointed for that purpose, and all states require as a condition of doing business that out-of-state companies designate an agent to receive process. In 1988 the Court held that a state may not deny the protection o f a S T A T U T E OF LIMITATION

to

a company not doing or registered to do business in the state. The state wanted to deny the com-

SEVENTEENTH AMENDMENT pany the statute o f limitation to coerce it into

which is owned by minorities, defined in turn as

designating an agent so that it w o u l d be subject

"citizens o f the United States who are Negroes,

to suits in the state's courts. 1 8 0

Spanish-speaking, Orientals, Indians, Eskimos, and

W h e n a federal court is hearing a case within

Aleuts." T h e Supreme Court upheld the set-aside

its DIVERSITY JURISDICTION, it is not constitu-

provision in 1980 against a challenge that it violated

tionally b o u n d by a states strict rules governing

EQUAL PROTECTION OF THE LAWS. Chief Justice

service o f process but must apply the federal rules

Warren E. Burger's PLURALITY OPINION said that

instead, even though they make it easier for the

Sect. 5 of the FOURTEENTH AMENDMENT em-

plaintiff to serve the defendant. 9 9 1

powers Congress to enforce the amendments equal protection guarantee, and that Congress had "abun-

See abo: LONG-ARM

STATUTE.

dant historical basis" to conclude that "traditional procurement practices" perpetuated the effects of

SERVICE

OR

LABOR

Under Art.

IV-§2[3]

the owner o f a slave, euphemistically referred to as a person "held to service or labor," was constitutionally empowered to go anywhere to seize a runaway. T h e law o f the state to which the slave had fled provided n o protection, since the slave owner was entitled to do in the other state whatever the laws of his own state permitted him to do to recapture his possessions. T h e Supreme C o u r t held that state laws that interfered with such seizures violated this clause,

1907

although a state

law that penalized people harboring slaves was permissible.

1588

fugitive

T h i s clause was abol-

ished by the THIRTEENTH AMENDMENT. See abo:

long-standing discrimination against minorities in the construction trades. Burger said that the means Congress chose were constitutional because the use of racial and ethnic criteria were no broader than necessary to accomplish Congress's mission of eliminating the vestiges of discrimination. 824 In 1989 the Court ruled, 6-3, that a similar plan adopted by Richmond, Virginia, failed the STRICT SCRUTINY test. 1 9 8 8 Municipalities do not enjoy Congress's Fourteenth Amendment power to redress societywide discrimination. Richmond failed to identify the extent of discrimination in the construction industry or to show that its plan was aimed at remedying that discrimination. Moreover, in using the same definition as Congress, Richmond had put onto its legislative books the desire to set aside funds

SLAVERY.

for Eskimos and Aleuts, w h o m it could hardly be SERVITUDE, tude;

see:

involuntary

servi-

claimed

had

been

discriminated

against

in

Richmond, Virginia. T h e Court left open the possi-

slavery

bility of set-asides on a proper showing that actual SESSION OF C O N G R E S S sion w h e n

Congress is in ses-

it assembles to conduct

business.

Under the TWENTIETH AMENDMENT, it must assemble on January 3 each year, unless it changes the date by law. Historically, a particular C o n gress lasts for two years, between elections for the House o f Representatives, and is numbered sequentially since the First Congress in 1789. Each Congress has two sessions, denoted the First and Second. Under Art. I-§5(4] a session lasts until Congress officially adjourns. Whether Congress is in session has a bearing on the president's VETO POWER and on his power to make RECESS APPOINTMENTS.

1990 the Court approved another congressional setaside program, this one permitting some radio and television broadcast stations to be transferred from their present owners to minority-controlled firms. T h e sharply divided Court concluded that Congress has power to promote broadcast "diversity" under a "heightened scrutiny" standard. 1 5 2 1 But the Court overruled this decision in 1995, holding that all racebased classifications in the law are subject to the much tougher strict scrutiny test. 12 T h e majority suggested, without specifically holding, that unless necessary to remedy a specific act of discrimination against members of a racial or ethnic minority, a setaside established for their benefit would be uncon-

See abo: RECESS OF

SET-ASIDES

discrimination was taking or had taken place. In

CONGRESS.

In the Public Works Employment

Act of 1977, Congress required that 10 percent of

stitutional. See

abo:

IMPACT

AFFIRMATIVE

ACTION;

PURPOSE-

DISTINCTION.

grants for certain public construction projects be set aside for "minority business enterprises." A minority

SEVENTEENTH

business is defined as a business at least 50 percent of

teenth A m e n d m e n t , proposed by Congress on

AMENDMENT

T h e Seven-

459

460

S E V E N T H AMENDMENT May 13, 1912, and ratified on April 8, 1913, provides for the direct election of senators. Under Art. I-§3[i] senators were not popularly elected but were chosen by the state legislatures. To the Framers this was an important ingredient of FEDERALISM, providing the states with a check on Congress. But by the late nineteenth century, numerous scandals involving the buying and selling of Senate seats and political delays in filling seats led many states to devise nominating systems that informally amounted to direct elections. By the time the Seventeenth Amendment was proposed, twenty-nine states, as a practical matter, had left the election of senators to the people anyway, not to the legislatures. The amendment simply ratified the practice.

SEVENTH

AMENDMENT

The

Seventh

Amendment provides for jury trials in certain federal civil cases. Late in the CONSTITUTIONAL CONVENTION OF 1 7 8 7 , the delegates noted that they had forgotten to provide for jury trials, but an attempt to add it to Art. Ill failed. The state ratifying conventions particularly recommended that such a right be added, and it was among James Madison's original proposals in Congress in 1789. The right does not extend to every civil matter but only to those traditionally denominated as suits at COMMON LAW. It is noteworthy as one of only two places where the Constitution mentions a dollar amount—the right to a civil jury is guaranteed whenever the amount in controversy exceeds twenty dollars. (Article I-§9[i] allowed Congress to tax up to ten dollars for every slave imported into the country.) T h e Seventh Amendment is one of the very few provisions in the BILL OF RIGHTS never incorporated into the FOURTEENTH AMENDMENT, and so it does not apply to the states. See also: APPEAL; REEXAMINATION

INCORPORATION CLAUSE;

TRIAL BY

DOCTRINE; JURY.

S E X D I S C R I M I N A T I O N In 1873, five years after the FOURTEENTH AMENDMENT was ratified, Justice Joseph P. Bradley, in a case denying women the right to practice law, said that "[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . This is the law of the Creator." 2 5 7 As late as 1961 the Court upheld a law making jury service mandatory for men and optional for women. 1 0 9 1

In 1948 the Supreme Court sustained a law barring women from serving as bartenders unless they were wives or daughters of male owners. The states, said Justice Felix Frankfurter, may certainly draw "a sharp line between the sexes. . . . The Constitution does not require legislatures to reflect sociological insight." 892 By the early 1970s, however, a vast social upheaval finally reached the C o u r t , with the EQUAL RIGHTS AMENDMENT

hovering in the background. In 1971 the Court struck down an Idaho law that required probate courts to choose male family members over females in the administration of estates. The Court concluded that mere administrative convenience does not justify a sex-based distinction (the rule eliminated hearings in the probate courts to select the administrator.) 1954 Two years later the Court struck down a federal law automatically giving male members of the ARMED FORCES an allowance for wives but requiring female members to prove the dependency of their husbands. 818 A plurality led by Justice William Brennan said that classifications based on sex are "inherently suspect" and must pass the STRICT SCRUTINY test. However, that position did not gain a majority; the concurring judges reached the same result under the weaker test. In 1976 the Court finally declared a new intermediate scrutiny test: "To withstand constitutional challenge . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." 552 This was the first case in which the victim of the discrimination was the male. The Court then struck down an Oklahoma law prohibiting the sale of 3.2% beer to males under twenty-one years of age but permitting females eighteen years or older to purchase it. The purpose of the law was to deter drunk driving, surely an important objective, but as Justice Brennan noted, the law allowed males to drink the beer; they just could not legally buy it. This strange disparity was surely not "substantially related" to eliminating accidents caused by intoxication. Since then the Court has considered a number of challenges to sex classifications, striking many but upholding some. For example, it upheld the limitation of draft registration to males, 2036 laws granting VETERANS' PREFERENCE in ways that benefited mostly men, 1 8 4 8 STATUTORY RAPE laws punishing underage males but not females, 1 5 2 8 PROPERTY TAX exemption laws discriminating between widows and widowers, 1 2 0 1 a Navy personnel policy al-

SHAYS'S R E B E L L I O N lowing female officers more time to avoid mandatory discharge,2093 a law permitting pregnancy disability to be excluded from a state's disability insurance system, 853 and federal Social Security old-age benefits programs that slightly favor women. 364 On the other hand, the Court has struck down jury exclusion laws that permit women to avoid mandatory service, 2298,672 a single-sex public nursing school 1568 and an all-male public military college,2445 a law requiring males but not females to pay alimony, 1771 a law forcing widowers but not widows to prove dependence on the deceased spouse to receive death benefits, 2503 a law requiring pregnant school teachers to leave their classrooms four and five months before delivery regardless of their ability to work, 471 and a host of ILLEGITIMACY laws dealing unequally with the mothers and fathers of the children. The seeming difference in result stems from the openendedness of the intermediate scrutiny test that is applied: what is "important" and "substantially related" is always a question of judgment about the particular circumstances. See also: ABORTION; OF CHILDREN; PEREMPTORY

ADOPTION

AND

AGE Of MAJORITY; CHALLENGE;

SEX; SUSPECT CLASS AND

SCHOOLS,

CUSTODY FAMILIES;

engage in sex, whether married or not, rarely comes before the Court largely because the states do not enforce these laws. But in its most recent pronouncement on the issue, the Court upheld, 5-4, the Georgia antisodomy law as applied to a homosexual couple. Although the statute expressly condemns sodomy even if committed by a heterosexual married couple, the Court stressed that it was deciding only that homosexuals have no constitutional right to engage in sexual relations. 243 The upshot is that the states remain free, within some limits, to define the boundaries of sexual behavior. Since 1961 more than half the states have repealed their antisodomy laws, and it is clear that if they choose, the states may extend specific protection against discrimination on the basis of sexual preference or orientation. See also: MARRIAGE; STATUTORY

REPRODUCTIVE

RIGHTS;

RAPE.

SEXUAL OFFENDERS, mitment

see: c i v i l

com-

S E X U A L O R I E N T A T I O N , see: h o m o s e x uality; sexual freedom

SINGLE-

CLASSIFICATION.

S E X U A L F R E E D O M The sexual permissiveness of modern times is almost entirely a result of changing social mores and hardly at all of any constitutional conclusions about personal LIBERTY. Although the Supreme Court has established a fundamental right to marital intimacy, procreation, ABORTION, and access to CONTRACEPTION, it has never squarely held that the Constitution protects the right of consenting adults to engage in sexual activity. The Court may have indirectly held that the state may not punish sexual relations between unmarried heterosexuals. In Eisenstadt v. Baird in 1972 the Court struck down a law prohibiting the distribution of contraceptives to unmarried couples, reasoning that the law interferes with a right to PRIVACY. Presumably, a constitutional right to use contraceptives necessarily includes the right to use them in a certain way. Nevertheless, the Court has shied away from the central issue. Most states once did, and many states still do, outlaw adultery, fornication, and what were once quaintly termed "unnatural" sexual acts. The question of a persons freedom to

S E X U A L P R E F E R E N C E , see: h o m o s e x u ality; sexual freedom S E X U A L L Y E X P L I C I T E X P R E S S I O N , see: I n t e r n e t , f r e e d o m of s p e e c h o n ; o b scenity and pornography; offensive and indecent speech S H A Y S ' S R E B E L L I O N After the Revolutionary War, a depression threatened the very lives of many small farmers. Foreclosures mounted, and in many states popular movements prompted the legislatures to enact relief measures, including laws staying foreclosures and excusing debt. The Massachusetts legislature refused every entreaty to do so, and in 1786 farmers besieged the local courts to prevent foreclosures from being carried out. In September Daniel Shays, a farmer and former army captain, organized a military force bent on seizing a military arsenal. Shays's Rebellion failed, but the attempt frightened many members of the establishment, leading to insistent demands for legal reform and remedies. Three weeks after Shays's movement collapsed, Congress passed a resolution calling for the CONSTITUTIONAL CONV E N T I O N OF 1 7 8 7 .

461

462

SHIELD LAWS SHIELD lege

LAWS,

see: r e p o r t e r ' s

privi-

S H I P S , see: a d m i r a l t y a n d m a r i t i m e jurisdiction; transportation S H O C K T H E C O N S C I E N C E T E S T Beginning in 1947, a debate in the Supreme Court erupted over the extent to which the FOURT E E N T H A M E N D M E N T " i n c o r p o r a t e d " t h e BILL

OF RIGHTS. Justice Hugo L. Black insisted that Sect. 1 of the Fourteenth Amendment was intended to do just that and that judges ought not be free to consult their personal predilections to determine whether DUE PROCESS might require the states to observe other, unenumerated rights. Countering Black's thesis, Justice Felix Frankfurter said that the Court must determine in each case whether a right is "implicit in the concept of ORDERED LIBERTY" so that its violation by the state would be unconstitutional. In a 1952 case, Rocbin v. California, the Court was presented with a conviction based on evidence taken when the suspect's stomach was pumped. Acting on a tip, police broke into the suspect's room and saw capsules on a nightstand by the bed. The suspect swallowed them. The police handcuffed their man and took him to a local hospital, where doctors forced a tube down his throat, forcing him to vomit up what turned out to be capsules containing morphine. Did the forced stomach pumping violate due process? Frankfurter said that it did but that the conclusion did not rest on "our merely personal and private notions." Instead, he said that the police did "more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. It is conduct that shocks the conscience." Justice Black concurred in the Court's reversal of the conviction, but protested the conscience-shocking "test" as permitting wholly open-ended discretion by judges to nullify whatever they personally abhor, t See also: INCORPORATION LAW; PROCEDURAL

DOCTRINE;

RIGHTS

NATURAL

OF CRIMINAL

DE-

FENDANTS.

S H O P P I N G C E N T E R S , A C C E S S T O In 1968 a sharply divided Supreme Court held that states may not employ trespass laws to bar peaceful labor union picketing of a store in a private shopping center.54 The shopping center was performi n g a PUBLIC F U N C T I O N a n d i n s o d o i n g w a s i n

effect an arm of the state, which under the FIRST AMENDMENT may not limit anyone's right to express an opinion. The decision created a right of access to private shopping centers and other such quasi-public places. But in 1972 the Court retrenched, distinguishing the labor union's picketing from that of a protest group that wanted to distribute antiwar leaflets in a shopping center. The union's picketing was related to one of the stores in the first shopping center. The stores in the antiwar case were wholly unrelated to the subject of the protest, and therefore the protesters could be barred by the shopping center owners. 1349 In 1976 the Court came full circle and overruled its 1968 decision. Employees of a warehouse owned by a store in a shopping center but located elsewhere picketed the store in a labor dispute and were ousted. The Court now held that the shopping center was not performing a public function and the owners therefore had no constitutional obligation to let anyone distribute anything. 1092 However, in 1980 the Court ruled that although the federal Constitution does not require it, neither does it prohibit such distribution if a state independently by law says that private shopping malls must allow members of the public to distribute literature on the shopping center grounds. 1915 See also: PUBLIC

FORUM.

S I C K C H I C K E N C A S E In 1933 President Franklin D. Roosevelt signed into law the National Industrial Recovery Act, terming it "the most important and far-reaching legislation ever enacted by the American Congress." At the heart of the act was a congressional delegation of power to the president to establish codes of fair competition for any trade or industry in INTERSTATE COMMERCE. Between August 1933 and February 1935 the National Recovery Administration, the president's agent in formalizing the codes, drew up more than seven hundred industrial codes and issued more than eleven thousand administrative orders. Critics charged that the N R A was a cover for industry to engage in wholesale violations of the antitrust laws. Challenges to the act came to court, and one of them quickly reached the Supreme Court. It involved the Live Poultry Code, which applied only to the New York metropolitan area and covered solely the sale of kosher chicken. Under Jewish religious law, chickens had to be purchased live and slaughtered following a religious ritual. The poultry code required

SIXTEENTH AMENDMENT "straight killing": a wholesale customer purchasing at the slaughterhouse could not pick out the best birds for slaughter but was required instead to take the contents of a coop or half-coop. The straight killing rule was designed to prevent the widespread practice of selling diseased chickens: if a favored customer could not select the healthy chickens, the wholesaler would have no incentive to buy sick birds. Four brothers operating the A.L.A. Schechter Live Poultry Market were convicted of violating the code by selling several tons of tubercular chickens below market price and by ignoring the straight killing requirement. For selling a single sick chicken, they faced a three-month jail term and a seven-thousand-dollar fine. Their appeal raised two points: (i) the National Industrial Recovery Act, as applied to them, was beyond the COMMERCE POWER because their sales of chickens occurred wholly within a single state. The stream of commerce in the chickens had come to rest in Brooklyn. (2) Congress's delegation to the president to establish the code was unconstitutional because it was a wholesale grant o f the LEGISLATIVE

POWER,

reserved b y

Art.

I-§I[I] to Congress. In A.L.A. Schechter Poultry Corp. v. United States, the Court agreed with both contentions. As a result, the National Recovery Administration died. The Schechter case was an important factor in Roosevelt's decision to move forward with his ill-fated COURT-PACKING PLAN. The commerce part of the decision has long since been overruled. See also: DELEGATION COMMERCE

DOCTRINE;

STREAM

OF

DOCTRINE.

S I L E N C E OF D E F E N D A N T , incrimination

see:

self-

S I L E N C E S O F T H E C O N S T I T U T I O N The Constitution says that Congress has the power to regulate commerce but is mum on what the states may do if Congress has not acted. Justice Robert H. Jackson once noted the judicial consequence of this gap in widely quoted words: "Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution." 966 From one of its silences—what power the states have to regulate commerce in the absence of congressional regulation—the Court has constructed an entire body of law generally known as the DORMANT C O M M E R C E CLAUSE.

SILVER power

COIN,

see:

currency,

federal

over

S I L V E R P L A T T E R D O C T R I N E In 1914 the Supreme Court announced the EXCLUSIONARY RULE, forbidding courts from considering evidence that federal law enforcement officials obtained unlawfully. 2496 But if state officials obtained evidence in a manner that violated the SEARCH

AND

SEIZURE

provisions

of

the

FOURTH AMENDMENT a n d turned it over to fed-

eral prosecutors, the Court permitted the evidence to be used, as long as federal officials did not participate in the search 347 or press state officials to conduct the search on their behalf. 837 Surveying the cases in 1949, Justice Felix Frankfurter dubbed this loophole in the exclusionary rule the "silver platter" doctrine: the rules prohibited evidence to be used if federal officials "had a hand" in an unlawful search but permitted it to be used if it had been handed to the federal government "on a silver platter." 1391 When the doctrine was fashioned in the 1920s, the Fourth Amendment did not apply to the states, so the police were not violating the Constitution no matter how lawless their searches. Since any kind of unlawfully seized evidence could be admitted at state trials, the states could also use evidence unconstitutionally seized by the federal government, 2559 unless it had been suppressed in a federal proceeding. 1949 But in 1949 the Fourth Amendment was finally held to apply to the states, even though the Court did not at the same time extend the exclusionary rule to state proceedings. 2578 That ruling made the silver platter doctrine untenable, because it meant that the federal government could profit from constitutional violations by state officials. The Court finally abolished the doctrine in i960. 7 0 4 In 1976, however, the Court resurrected it for civil cases, holding that under certain circumstances evidence unlawfully seized by state officials may be used in federal civil proceedings such as tax assessments, as long as federal officials were not involved in the seizure. 1160 S I N C E R I T Y OF R E L I G I O U S BELIEF, see: r e l i g i o u s belief, s i n c e r i t y and t r u t h of S I T - I N , see: t r e s p a s s S I X T E E N T H A M E N D M E N T The Sixteenth Amendment, proposed by Congress on July 12,

463

464

S I X T H AMENDMENT 1909, and ratified on February 3, 1913, removed the constitutional obstacle to the federal INCOME TAX that the Supreme Court had decreed in 1895 1887 in holding that such a tax is a direct tax required under Art. I-§9[-4] to be apportioned by states. The practical effect of the 1895 decision was to make it legislatively impossible to raise an income tax. The Sixteenth Amendment simply lifts from the laying of a federal income tax the insuperable burden of the apportionment and enumeration requirements. See abo: APPORTIONMENT

OF TAXES;

DIRECT

TAXES.

S I X T H a m e n d m e n t The Sixth Amendment provides several important rights to the accused in criminal prosecutions. These include the right to a speedy and public trial by an impartial jury, to be informed of the nature of the accusation, to confront adverse witnesses in open court, to obtain favorable witnesses to testify in defense, and to have the assistance of counsel. Some of these rights were well established under British law at the time of the American Revolution; others were accepted only grudgingly. All are crucial bulwarks against tyranny. The Sixth Amendment is now applicable to the states as well as the federal government, having been incorporated right by right into the DUE PROCESS Clause of the FOURTEENTH AMENDMENT. See also: ACCUSATION, FICITY

OF;

FRONTATION SISTANCE

AND

SPECI-

PROCESS;

CON-

WITH WITNESSES;

OF;

INEFFECTIVE

NOTICE

COMPULSORY

COUNSEL,

INCORPORATION

ASSISTANCE

AND JURORS, IMPARTIALITY

OF COUNSEL; OF; JURY

JURY

DISCRIM-

INATION; JURY SIZE; JURY UNANIMITY; PUBLIC;

AS-

DOCTRINE;

TRIAL,

TRIAL, SPEEDY; TRIAL BY JURY.

S L A N D E R , see: l i b e l a n d s l a n d e r SLAUGHTER-HOUSE

CASES

In

1869

the

Louisiana legislature was bribed into giving the Crescent City Live-Stock Landing and SlaughterHouse Company a monopoly of the slaughtering business in New Orleans. A thousand butchers were forbidden from slaughtering animals on their own premises. Instead, all such business had to be done on the premises of the Crescent City Company. The butchers went to court, arguing that the company's legal monopoly violated the FOURTEENTH AMENDMENT by depriving each butcher of the right "to purchase products, or to carry on trade, or

to maintain himself and his family by free industry." In 1873 the Supreme Court rejected the butchers' every argument, dealing a death blow to the new Privileges or Immunities Clause of the amendment and denying that DUE PROCESS or EQUAL PROTECTION OF THE LAWS have any connection with economic matters beyond protecting those who were once slaves. The Fourteenth Amendment, the Court declared, was not to become "a perpetual censor upon all legislation of the states on the civil rights of their own citizens." This was a famous wrong prediction. Within thirty years the Court would be doing precisely what it denied it had the power to do in the Slaughter-House Cases. But for the moment it refused to find any due process prohibition on a state's economic legislation, a position it affirmed eleven years later when a new Louisiana legislature turned the table on the Crescent City monopoly. Ten years after the Slaughter-House Cases the legislature repealed the monopoly law, and Crescent City argued that it had been deprived of its due process right to the exclusive slaughtering trade in New Orleans. In 1884 the Court unanimously upheld the law's repeal. 336 See also: ECONOMIC DUE

PROCESS.

SLAVERY Slavery was a big problem for the Constitution makers. Those who profited by it insisted on protecting it; those who loathed it dreaded even more the prospect that to insist on its abolition would mean that the Constitution would die aborning. So the Framers reached a compromise, of sorts. The words "slave" and "slavery" would never be mentioned, but the Constitution would safeguard the "peculiar institution" from the abolitionists. The document that emerged from the CONSTITUTIONAL CONVENTION OF 1787 contained ten provisions dealing with slavery, an indication of how significant the Framers perceived the problem to be: 1. Art. I-§2[3], the "federal number" clause apportioning House seats by population, counting "other persons" (that is, those who were not "free persons") as three-fifths of a person. 2. Art. I-§2[ 3 ], apportioning direct taxes the same as the apportioning of representatives, so that the total slave population could not be taxed. 3. Art. I-§8[i5], granting Congress power to call up the MILITIA to suppress insurrections, including slave rebellions.

S O C I O L O G I C A L FOOTNOTE AND SOCIAL SCIENCE EVIDENCE 4. Art. I-§9[i], prohibiting Congress from banning the slave trade before 1808 and permitting a head tax on slaves of up to ten dollars. 5. Art. I-§9 [4], redundantly prohibiting a direct tax not based on the federal census as provided for in Art. I-§2[3]. 6. Art. I-§9[5], prohibiting Congress from taxing exports from any state, a provision included in part to prevent Congress from taxing the slave trade out of existence. 7. Art. I-§io[2], prohibiting the states from taxing exports and thus from taxing the products of slave labor. 8. Art. IV-§i[3], prohibiting states from emancipating fugitive slaves. 9. Art. IV-§4, requiring the federal government to protect the states against domestic violence, including slave insurrections. 10. Art. V, making the slave trade and direct tax provisions unamendable. Unlike any other issue in American history, the slavery question dominated political and constitutional thinking for decades; never since has any single issue so exercised the population at large or for so long a time—not segregation, not ABORTION, not WATERGATE. Constitutional disputation was the stuff of pamphleteering, street argument, vigilantism, and occasional rioting—day after day, year after year, until finally, in 1865, the defeated southern states joined the Union in ratifying the THIRTEENTH AMENDMENT. The sprawling body of constitutional law governing slavery and, in this one instance, the general supremacy of state over federal law, were relegated to the history books. See also: BADGES OF SLAVERY AND CITIZENS

AND

CITIZENSHIP;

SERVITUDE;

CIVIL

AND CIVIL LIBERTIES;

DRED SCOTT

FORD;

SERVITUDE;

INVOLUNTARY

COMPROMISE; TION,

AND

NULLIFICATION, SECESSION;

TION; SEGREGATION

RACIAL

RIGHTS V. SANDMISSOURI

INTERPOSIDISCRIMINA-

AND INTEGRATION;

SER-

VICE OR LABOR.

S M O K I N G There is no constitutional right to smoke. Regulation of smoking and control of tobacco are well within the states' POLICE POWER and the federal COMMERCE POWER. Massive lawsuits in the 1990s by the states against tobacco companies are based on statutory and COMMON LAW principles. See also: CIGARETTE ADVERTISING;

PREEMPTION.

S O C I A L D A R W I N I S M T h e most explicit adoption of social Darwinism as a constitutional requirement was in Coppage v. Kansas, in which the Court insisted that it is "impossible to uphold FREEDOM OF CONTRACT and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights." It was this sentiment that Justice Oliver Wendell Holmes had earlier denounced in his famous epigram in LOCHNER V. NEW YORK: "The Fourteenth Amendment does not enact Mr. Herbert Spencers Social Statics." Spencer, a wellknown British sociologist, was the creator of the concept of social Darwinism. See also: ECONOMIC DUE

SOCIAL power

SECURITY,

PROCESS.

see:

spending

SOCIOLOGICAL FOOTNOTE AND SOC I A L S C I E N C E E V I D E N C E One of the criticisms of Chief Justice Earl Warrens opinion in BROWN V. BOARD OF EDUCATION was of a footnote to contemporary sociological and psychological studies that, said Warren, demonstrated the harm that segregation causes to the discriminated class. Segregationists charged that the studies were simply wrong. Integrationists fretted about the same thing: suppose the studies were wrong? Or suppose someone could demonstrate worse harm from desegregating? The legitimacy of the Courts apparent reliance on controversial studies did not begin with Warren and Broum. Indeed, Browns antithesis, PLESSY V. FERGUSON, was awash with sociological blather. Sociological assumptions undoubtedly underlie much of the law, especially when large changes are begged of the Court in the name of the Constitution. In 1948 Justice Felix Frankfurter justified a law against women working as barmaids by noting that despite changing mores, the "Constitution does not require legislatures to reflect sociological insight, or shifting social standards." 892 But that is simply to say that the Constitution will then be rooted in someone else's sociological insight, as indeed Frankfurter's very opinion betrays. In any event, the Court continues to cite social science evidence to buttress its opinions in a variety of cases. In the 1973 school property tax case, Justice Lewis F. Powell discussed sociological research into the impact of spending on the quality of education to show that differences in spending

465

466

S O L D I E R S , Q U A R T E R I N G OF on school districts within a state do not necessarily violate the Equal Protection Clause. 2065 In 1990, in a case involving the Confrontation Clause of the SIXTH A M E N D M E N T , the 5 - 4 m a j o r i t y cited "the

growing body of academic literature documenting the psychological trauma suffered by child abuse victims" to soften the meaning of the Clause from mandatory face-to-face confrontation to merely a preference for face-to-face confrontation. 1449 See also: STATISTICAL

EVIDENCE,

SOLDIERS, QUARTERING t e r i n g of

USE OF.

OF, see: q u a r -

soldiers

SOLDIERS,

RIGHTS

courts and

justice

OF,

see:

military

S O L I C I TAT I O N Face-to-face or direct-mail solicitation is a principal means of communication. In a variety of contexts, the Supreme Court has held that most forms of solicitation enjoy FIRST AMENDMENT protection. The constitutional doctrine had its origins in cases dealing with the rights of the people to gather and distribute literature in the PUBLIC FORUM—public parks and the streets. The solicitation cases began with the Court's holding in 1943 that a town may not prohibit people from ringing doorbells and handing out pamphlets door to door. 1 4 4 2 The town had argued that the ordinance was necessary to prevent disturbances to people on night shifts who wished to sleep and had used the ordinance to prosecute a Jehovah's Witness who had handed out religious tracts. The Court said that a flat ban was impermissible because less restrictive alternatives were available to solve the problem. For example, the town could criminalize repeated visits by solicitors who had been advised by the homeowner that the intrusion was unwelcome. The right to ring bells is not absolute. In 1951 the Court sustained an ordinance prohibiting magazine salesmen from calling on people at home unless the homeowner had consented in advance. 266 The difference in outcome turned largely on the difference between handing out religious literature and trying to make a commercial sale. But even commercial solicitation is entitled to constitutional protection against an ordinance that required solicitors to obtain a city permit before asking people to join dues-paying 2243 J organizations. The Court has also struck down antisolicitation ordinances on the ground of VAGUENESS.

For example, it is unconstitutional to require solicitors to get advance police permission to go from house to house on behalf of a "recognized charitable [or] political campaign or cause" because it is impossible to say with certainty what is "recognized." 1 1 1 6 In 1980 the Court, in an 8-1 decision, broadly upheld the right of solicitors to go door to door and to ask for contributions from people on the streets. The ordinance barred any solicitation by charities that did not devote at least three-quarters of their receipts to "charitable purposes," not including administration expenses. Few charitable organizations could meet that test, including most "public interest" groups. The Court held that the town's asserted interests were not strong enough to justify the intrusion on the First Amendment rights of organizations to talk to people and raise funds to spread their messages. 2087, 2 " 8 , 1 9 9 2 The Court struck down another ordinance under the ESTABLISHMENT CLAUSE. The law required religious organizations to register with city officials before soliciting funds, unless they received more than half their funding from members. In a challenge by the Reunification Church (headed by the Reverend Moon), the Court said that by favoring older, more established churches, this law clearly discriminated among religions, a direct violation of the prohibition against RELIGIOUS ESTABLISHMENT.1290

The Court has also found constitutional limitations on the power of states to regulate the extent to which LAWYERS and other professionals may solicit business. In NAACP v. Button, the Court struck down a Virginia rule of court that precluded N A A C P lawyers and staff members from holding public meetings about desegregation cases and inviting members of the public to serve as plaintiffs. Although the rules against general forms of "ambulance chasing" are still valid, 1750 the Court has struck down some court rules that prohibited lawyers from conducting a direct-mail campaign targeted at potential plaintiffs in specific classes of cases. 2131 In 1993 the Court overturned Florida's ban on "directed, in-person uninvited solicitation" by accountants seeking new business, holding that the law "threatens societal interests in broad access to complete and accurate commercial information." 686 The Florida rule prohibited any communication that invites an immediate oral response, either at the door or on the telephone. In 1995, on the other hand, a sharply divided Court upheld a Florida regulation that prohibits personal-injury lawyers from mailing within thirty days of an acci-

S O U T H E R N MANIFESTO dent targeted solicitations to represent the accident victims or their relatives.786 The majority said that the regulation met the Central Htuison-COMMERCIAL SPEECH test. Dissenting, Justice Anthony M . Kennedy asserted that the real interest at stake was "protecting the reputation and dignity of the legal profession." But it begs the question whether the practice at issue sows such disrespect. And "to the extent the bar seeks to protect lawyers' reputations by preventing them from engaging in speech some deem offensive, the State is doing nothing more . . . than manipulating the public's opinion by suppressing speech that informs us how the legal system works. . . . This, of course, is censorship pure and simple." Moreover, at the very time that lawyers are prohibited from soliciting such clients, agents of the parties who may have caused the accidents, including "their lawyers, investigators, and adjusters, are free to contact the unrepresented persons to gather evidence or offer settlement." Justice Kennedy noted the irony of the Court's "orderting] a major retreat from the constitutional guarantees for commercial speech in order to shield its own profession from public criticism. . . . There is no authority for the proposition that the Constitution permits the State to promote the public image of the legal profession by suppressing information about the profession's business aspects." See also: ANONYMITY, TIVE ALTERNATIVE TEM;

TIME,

PLACE,

RIGHT TO; LESS OR MEANS; AND

RESTRIC-

PERMIT

MANNER

5TS-

RESTRIC-

TIONS.

SOLICITOR GENERAL The U.S. solicitor general represents the federal government in the Supreme Court, overseeing the briefs, arguing the most important cases himself on behalf of the United States, and assigning other cases to his staff or to other government lawyers across the country. The office was established in 1870, and until 1953 the solicitor general was the second-ranking official of the Department of Justice. Since then, with the addition of deputies to the ATTORNEY GENERAL, the solicitor general is fourth-ranking. Because he is empowered to decide whether to appeal a ruling adverse to the United States in the lower courts, the solicitor general is the principal federal litigation strategist. SON OF SAM LAW In 1992 the Supreme Court unanimously overturned New York State's so-called Son of Sam law, which barred convicted

criminals from profiting from their crimes by selling publication or film rights to their stories. The name derives from an expression used by David Berkowitz, a serial killer convicted in New York. Simon & Schuster, the publisher of Wiseguy, the book on which the film Goodfellas was based, was ordered by the state Crime Victims Board to account for moneys paid to the protagonist, Henry Hill, and to remit to the board all amounts owed to Hill but unpaid, to be held for the account of any victims of Hill's crimes. The issue was whether the law imposed a "financial burden on speakers because of the content of their speech," a condition the Court has repeatedly held to be unconstitutional. The Court agreed that the law did exactly that, since it applied to only one specified type of content, works about a person's own crimes. 2 1 5 8 Although states have a substantial interest in providing restitution to victims of crimes and barring criminals from profiting from their crimes, it may not do so in an unconstitutional manner. The law was not narrowly tailored to achieve its objectives. First, it sought to compensate victims with income derived only from "storytelling" rather than from any of a criminal's other assets. Second, it defined persons subject to the law quite broadly; it included "any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted." This definition, the Court said, would have permitted the state to escrow the royalty income of Martin Luther King, Jr., Malcolm X, and Bertrand Russell, among others. Third, the law also swept up the earnings from autobiographies of "prominent figures" who at the end of careers included brief recollections of childhood crimes, even though the STATUTE OF LIMITATION had long since run. In short, the states may not single out "speech on a particular subject for a financial burden that it places on no other speech and no other income." This case did not affect the Court's earlier conclusion that the CIA may recover book profits of a former employee who breached a contract not to publish without permission. 2186 New York enacted a narrower Son of Sam law in 1992; more than forty other states have enacted similar laws. See also: SPEECH,

REGULATION

OF

CONTENT

OF. S O U N D T R U C K S , see:

noise

regulation

SOUTHERN MANIFESTO In 1956 ninety-six southern members of Congress issued an impas-

467

468

S O V E R E I G N IMMUNITY sioned statement denouncing the Supreme Court f o r its decision in BROWN V. BOARD OF E D U C A -

TION, decreeing an eventual end to school desegregation. This Southern Manifesto proclaimed that the southern states were not constitutionally bound to abide by the Court's decision and bid the citizens to "resist forced integration by any lawful means." The Southern Manifesto summarized, rather than activated, the deep wellspring of loathing for the Court's decision to end the long reign of SEPARATE BUT EQUAL, though the clarity of its argument doubtless contributed to the southern strategy of massive resistance and the long delays in taking even the first tentative steps toward restoring civil rights to a people long disenfranchised. See also: JUDICIAL TERPOSITION,

REVIEW; NULLIFICATION,

AND

IN-

SECESSION.

S O V E R E I G N I M M U N I T Y Sovereign immunity is the doctrine that the government may not be sued in its own courts unless it consents. This doctrine is not found in the Constitution but has been upheld as inherent in the legal system and was first enunciated by the Supreme Court in 1793. 456 Since at least 1882, the Court has held that a suit against a federal officer is a suit against the United States and is barred under sovereign immunity if the remedy sought would affect the legal relations of the United States or its property. 1309, 2 2 3 6 But if the officer is acting unlawfully or beyond the scope of his authority, the suit may be maintained. 1855 When the government establishes a corporation to carry out a program, the government does not pass on its immunity to the corporation, which therefore may be sued. 1 2 1 5 In the Federal Tort Claims Act of 1946, Congress waived sovereign immunity of the United States so that people injured by the torts of federal employees—in driving accidents and the like—could recover DAMAGES in federal court. The act permits recovery to the extent that the law of the state where the injury occurred would hold a private person liable for the injury. In the Intentional Tort Amendment Act of 1974, Congress waived sovereign immunity for such wrongs as false arrest and assault, but continued to exclude common law deceit, defamation, interference with contractual relations, and misrepresentation. In 1950 the Court ruled that

Court has adhered as recently as 1987, 1 1 8 5 despite protests from some members of the Court that the result has been a heap of inconsistencies that has not really kept the government out of court.* Although the constitutional text does not seem hospitable to a claim of sovereign immunity by the states, the Court has read such a requirement into the ELEVENTH AMENDMENT, barring suits in federal court by citizens against their own states, thereby mirroring the rule for the federal government.994 See also: CONSTITUTIONAL

TORTS;

FROM SUIT; STATES, IMMUNITY FEDERAL

IMMUNITY

FROM SUIT IN

COURT.

S O V E R E I G N T Y At the CONSTITUTIONAL CONVENTION OF 1787 and afterward at the ratifying conventions, the ANTI-FEDERALISTS had a special worry: how to preserve the sovereignty of the states against the encroachments of a new central government. Federalists thought the Constitution answered this question through its careful enumeration of powers granted to the federal government and the various political controls the states could exercise in the selection of national leaders. But the issue was worrisome enough that the TENTH AMENDMENT, the final article of the BILL OF RIGHTS, redundandy reminded the nation that whatever powers the federal government did not have, the states retained. Still, deeper thinkers saw a profound paradox in all this: how could two separate and supposedly "sovereign" legislatures—Congress and the state legislatures— govern the same geographic territories? Everyone knew, because all the philosophers said so, that sovereignty ultimately could reside in but one place; that was its very nature. James Wilson provided the answer at the Philadelphia ratifying convention: In the United States, only the people are sovereign, and the people may delegate portions of their sovereign power to whatever sets of governments they choose to create.* It was for this reason that the Preamble begins "We the People." And it was for this reason, too, that the Constitution in Art. V provides for a means of amending itself. See also: AMENDMENTS TION;

TO THE

CHECKS AND BALANCES;

SEPARATION

OF POWERS;

NITY; STATES, IMMUNITY

CONSTITUFEDERALISM;

SOVEREIGN

IMMU-

FROM SUIT IN FED-

ERAL COURT.

m e m b e r s o f the A R M E D FORCES m a y n o t sue the

government for injuries occurring in the course of their service, 758 an absolute rule to which the

S P E C I A L M A S T E R Because of severe time demands or the extraordinary amount of

SPEECH, R E G U L A T I O N OF C O N T E N T OF documents that must be sifted through to uncover the facts in some cases, courts sometimes appoint special masters to assist in duties that would overwhelm the judges. T h e Supreme Court uses special masters in cases invoking its ORIGINAL JURISDICTION, such as boundary and water disputes between the states. The special master assembles the evidence and writes an advisory opinion or decree, which the Court at its discretion may adopt, modify, or reject. SPECIAL dent

SPEECH, cial

PROSECUTOR,

see:

indepen-

see:

commer-

counsel COMMERCIAL,

speech

SPEECH, FREEDOM

FROM

PAYING

FOR

OTHERS' Despite the general FREEDOM OF ASSOCIATION, some associations between people are legally compelled—compulsory education, the draft, and memberships in certain kinds of organizations. For example, under labor laws that operate in many states, employees must pay dues to unions. Lawyers must belong—that is, pay dues—to "integrated bars," statewide bar associations. T h e question arises whether the organizations to which the dues are paid may advocate political positions contrary to those of dissenting members. The question was first presented in the mid-1950s but the Court ducked it, 1 9 3 7 ' u 2 7 , 1 2 9 4 finally squarely reaching the constitutional issue in 1977 in a case involving a school union. The Court held that the union could not require dissenting members to subsidize the union's "ideological activities" unrelated to collective bargaining. Compulsory contributions to someone else's political activities violate FREEDOM OF BELIEF.4 In 1990 the Court unanimously ruled that the State Bar of California may not spend the money of nonconsenting members on ideological or political activities unrelated "to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the state." 1 2 1 6 In 1991 the Court returned to the union setting and was divided only on the issue of whether the union was limited to spending its dissenters' money on duties imposed on it by law. A plurality held that the union could compel dues to be spent on "legislative lobbying or other union political activities," even though not required to do so by law, but only to the extent that those activities related to "contract ratifica-

tion and implementation." 1 3 1 8 Eight of the justices were clear that unions may not spend money against their members' wishes on political campaigns and the like. An open question concerns the system by which a portion of the dues will be returned to the dissenting union member. Neither a proportionate refund nor an unexplained advance reduction is constitutionally sufficient, the Court has said. Instead, the organization must provide a "prompt decision by an impartial decisionmaker" to determine how much money the member may deduct from dues. 451 In 1995 the Court left open the question whether a public university student charged an activity fee may demand a pro rata refund "to the extent the fee is expended for speech to which he or she does not subscribe." 2029 In 1997 a sharply divided Court rejected the claim of a California fruit grower that a federal agricultural marketing order assessing a fee to cover the costs of, among other things, a generic advertising campaign for various California fruits amounted to compelled speech. 886 The majority said that the advertising campaign conveyed no message with which the grower disagreed, distinguishing cases in which the persons objecting were "require[d] to repeat an objectional message out of their own mouths," 2 5 0 9 directed to "use their own property to convey an antagonistic ideological message," 2593 "force[d] . . . to respond to a hostile message when they 'would prefer to remain silent,'" 1 7 8 1 or "require[d] . . . to be publicly identified or associated with another's message." 1 9 1 5 See abo:

CONSCRIPTION;

EDUCATION,

COM-

PULSORY. S P E E C H , F R E E D O M O F , see: f r e e d o m

of

speech SPEECH,

REGULATION

OF

CONTENT

OF At the core of FREEDOM OF SPEECH and FREEDOM OF THE PRESS is the principle that the government may not criminalize or interfere with expression on the basis of its content or viewpoint. A law that banned the expression of views about environmentalism or the philosophies of political leaders would clearly be unconstitutional, as would a law permitting only kind things to be said about the president. But the simplicity of this generalization belies two major difficulties. One difficulty stems from the proposition that the FIRST AMENDMENT favors only

469

470

SPEECH, R E G U L A T I O N OF C O N T E N T

OF

certain kinds of speech. The kinds that it favors it protects absolutely, but the kinds that it disfavors are entitled to little or no protection. The second difficulty is that laws enacted for reasons other than regulating what a person says may have an unintended or unavoidable side effect on speech. At what point must a law not aimed at speech be voided because of its impact on speech?

tributing campaign materials within one hundred feet of the entrance to a polling place on election day. 331 The treasurer of a political campaign charged that this "campaign-free zone" violated her freedom of speech. In upholding the law, Justice Harry A. Blackmun noted that it affected "three central concerns" of the First Amendment: "regulation of political speech, reg-

Over the years the Supreme Court has suggested that certain kinds of LOWER-VALUE SPEECH are unworthy of full First Amendment protection. One of the major free speech battlegrounds has been over whether this proposition is true and, if so, which kinds of speech fall within the disfavored category. From time to time, this lesser-breed category has included SUBVERSIVE A D V O C A C Y , LIBEL A N D S L A N D E R ,

OBSCENITY

ulation o f speech in a PUBLIC FORUM, and reg-

ulation based on the content of the speech." Since the law on its face was aimed at the content of political speech, it could be upheld only if necessary to serve a compelling state interest and narrowly drawn to achieve that end. Reciting a long history of voter fraud and intimidation that led to the establishment of private election booths, Blackmun held that the states have

A N D P O R N O G R A P H Y , HATE S P E E C H , F I G H T I N G

a COMPELLING

WORDS, OFFENSIVE AND INDECENT

tegrity of elections. Considering the alternative means of controlling fraud and intimidation (such as criminal laws against such conduct), the Court concluded that none are as effective as the simple expedient of providing a zone within which electioneering must stop.

SPEECH,

COMMERCIAL SPEECH, and speech amounting to BREACH OF THE PEACE. With the exception of obscenity and pornography, during the past thirty years it has developed that regulations aimed at even these types of speech will not be sustained. The Court has held that in striking at them as types of speech, the government is aiming at content. This conclusion is largely true even for obscenity and pornography. Although the Court continues to assert that the First Amendment provides no shield for the obscene and pornographic, its insistence seems mainly a fig leaf, for it has consistently whittled away at what may constitutionally be so labeled. An Indianapolis ordinance banned a certain kind of pornography that showed the subordination of women but did not apply to sexually graphic material that dealt with women as equals of men. This is viewpoint discrimination. In a PER CURIAM decision the Court struck the ordinance.57 An example of impermissible content regulation was a Michigan law prohibiting the sale of any book to the general reading public that might have a deleterious effect on the states youth. The Court unanimously invalidated the law because a state may not reduce the level of reading matter to that which is suitable only for children.341 Likewise, a state may not make it a crime for a newspaper to publish an editorial on election day urging its readers to vote a certain way on the issues. 1551 Occasionally the Court has upheld laws bearing directly on the content of speech. In 1992, for example, it upheld a Tennessee law that prohibits anyone from soliciting votes or displaying or dis-

INTEREST

in e n s u r i n g t h e i n -

The problem of the regulation with incidental effects on speech is more intractable because the situations are so various that it is impossible to articulate a general formula for resolving the conflict between the government and speech interests. Nevertheless, when a law or regulation has the effect of discriminating against expression on the basis of its content or the viewpoint expressed, the Court is likely to strike it down. For example, Chicago banned all PICKETING within 150 feet of any school except for "peaceful picketing of any school involved in a labor dispute." The Court unanimously struck down this ordinance because "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." 1884 Unlike permissible TIME, PLACE, AND MANNER RESTRICTIONS, which might constitutionally have prohibited any picketing near the school during school hours, the Chicago ordinance discriminatorily banned certain kinds of ideas altogether—that is, picketing dealing with anything other than school disputes. In the interest of eliminating "visual pollution," a San Diego ordinance severely limited the kinds of displays that could be mounted on outdoor billboards. Most types of messages were forbidden, but among the exceptions were advertisements for products sold on the premises, "for sale" signs,

SPEEDY T R I A L signs giving the time and temperature, historical markers, and religious symbols. Two difficulties lurk in this list of exceptions: they generally elevate commercial over noncommercial messages and they pick and choose even among noncommercial messages. A picture of a crèche could legally be displayed; a political message from a concerned citizen could not be. This was unconstitutional content discrimination, according to a PLURALITY OPINION.1522

In a 1988 case, a District of Columbia regulation prohibited anyone from displaying a sign within five hundred feet of a foreign embassy that would tend to cast the foreign government into "public disrepute." This was not viewpoint discrimination because it was not aimed at a particular set of politics—for example, against this kind of country or that one. But it was content-based because, said Justice Sandra Day O'Connor, "the government has determined that an entire category of speech— [signs] critical of foreign governments—is not permitted." 232 Although the government does have genuine interests in protecting foreign embassies, it has n o C O M P E L L I N G I N T E R E S T in sheltering f o r -

eign diplomats from politically distressing signs; in any event, the means chosen were not "narrowly tailored" to accomplish its purposes. An existing law would presumably work just as well—namely, a federal law against intimidating or harassing foreign officials. A final example is a federal law that prohibited any broadcast station from airing editorials if it received funds from the Corporation for Public Broadcasting. This, too, the Court held to be impermissible content regulation. 739 See also: CONTENT NATION;

AND VIEWPOINT

HATE SPEECH;

AL-

PENALTY-SUBSIDY

DIS-

TERNATIVE

OR MEANS;

TINCTION;

PERMIT SYSTEM;

SOLICITATION;

AND

SEDITIOUS

SON OF SAM LAW;

POWER; SYMBOLIC

SPEECH

DISCRIMI-

I.ESS RESTRICTIVE

LIBEL;

SPENDING

SPEECH.

CONDUCT,

see:

symbolic

speech SPEECH

AND

DEBATE

CLAUSE

Article

I-§6[i] says that members of Congress may "not be questioned in any other place" for any speech or debate delivered in either house of Congress. On its face, the Speech and Debate Clause seems to immunize members of Congress from LIBEL AND SLANDER suits. This was certainly the intention of the Framers, who knew well the long history of royal attempts to silence their parlia-

mentary critics. The clause requires dismissal of any suit for injuries caused by "legitimate legislative activity," not merely formal debate, because its purpose is to protect members "not only from the consequence of litigations results but also from the burden of defending themselves." 2305 The Court has interpreted the meaning of "legislative activity" broadly. Members voting to hold a witness in CONTEMPT could not be sued because their erroneous vote led to the witness's false imprisonment, since voting is integral to the legislative function. 1 2 3 4 The courts may not enjoin a congressional committee from subpoenaing bank records as part of an investigation, no matter what the motive for the investigation was. 683 Not even allegations that a Senate committee chairman was conspiring with state officials to violate people's civil rights may be heard in court. 646 When a congressional committee issued a libelous report that the superintendent of documents printed and offered for sale, a suit was dismissed against the committee and staff members, but the Court permitted it to go forward against the superintendent because, as an EXECUTIVE BRANCH official, he was not covered under the clause.641 Distinguishing the dissemination of materials within Congress and circulation of materials outside, the Court permitted a libel suit against a senator for defamatory statements in a constituent newsletter. Even though press releases and newsletters are valuable tools for communicating with the public, they are not essential to the legislative function. 1 1 1 0 When general criminal laws are at issue, the Court reads the clause considerably more narrowly, holding in one leading case that the clause does not immunize from prosecution a senator who was bribed to vote in a certain way, since taking a bribe is "no part of the legislative process or function." 272 Likewise, a GRAND JURY may inquire into how a senator acquired classified military documents and what arrangements he made to have them published. 923 Until the early 1970s the Court had held that the clause immunizes only the members themselves but not employees of Congress. 1894 But in 1972 it held that in view of the "complexities of the modern legislative process" it is "literally impossible" to carry on legislative functions without the help of aides, and that therefore the clause will be interpreted to immunize aides as long as their conduct is of the type protected by the clause. 923 S P E E D , see; all d e l i b e r a t e S P E E D Y T R I A L , see; t r i a l ,

speed speedy

471

472

S P E N D I N G POWER SPENDING POWER The power of the federal government to spend public money has never been questioned as long as the expenditures have been made to further one of Congress's ENUMERATED POWERS, either express or implied. But for nearly a century and a half the question was left open whether under Art. I-§8[i] Congress could appropriate money for the general welfare, unconnected to any particular grant of power listed in Sect. 8. On one side of the debate was James Madison, who in Federalist 41 said that the authority o f the GENERAL WELFARE CLAUSE, "to

pay the debts and provide for the common defence and general welfare of the United States," was a redundancy, amounting to nothing more than the power to pay for the programs that Congress could otherwise establish. On the other side of the debate was the staunch nationalist Alexander Hamilton, who said in Federalist 30 and 34 that the General Welfare Clause was a separate grant of power, entitling Congress to spend money for any other purpose, as long as it was in the general welfare of the nation. With such a power, Congress could spend money on roads and other "internal improvements," a practice that it began early without significant opposition. Since many of its expenditures could doubtless be justified under its other powers, especially its power over INTERSTATE COMMERCE, the issue did not loom large until the New Deal, when Congress enacted a number of programs using federal money to induce people to act in certain ways. For example, under the Agricultural Adjustment Act, which established a crop support program, the government paid farmers to reduce their planting to boost farm prices. In 1936 the Court reviewed this act and determined, first, that Hamilton had been correct—the General Welfare Clause grants Congress independent power to spend; and, second, that the act was unconstitutional for another reason: it "invades the reserved rights of the states" because the TENTH AMENDMENT prohibits Congress from regulating agricultural production. 337 That Tenth Amendment theory was shortly to be discredited and overruled, but its conclusion about the spending power has remained intact. In 1937,

in two COMPANION

CASES,

the

Court upheld the Social Security Act on the ground that it is for the general welfare of the nation, despite the novelty of its features. The act taxed payrolls of businesses with eight or more employees. But if the employers state enacted an unemployment fund, subject to criteria, specified

by Congress, then the employer was entitled to a credit of 90 percent of the payroll tax. In effect, Congress was pressuring businesses all across the country to pressure the states to create unemployment compensation schemes that would raise money and be paid into a fund held by the secretary of the treasury. The act was challenged as unconstitutionally coercing the states, but Justice Benjamin N. Cardozo, for a 5-4 majority, said that there was no coercion in the constitutional sense: the states were free not to establish any unemployment program. The consequence then would simply be that the U.S. Treasury would collect a tax, and the tax itself was entirely within Congress's power.2248 In the second case, Cardozo spoke for a 7 - 2 majority that upheld the old-age benefits aspect of Social Security, under which the federal government taxes both employers and employees, holds the money in trust, and pays it out when the employees retire. This program is unquestionably for the general welfare, Cardozo said, and it was manifestly clear that such a program could be sensibly undertaken only by the federal government, since each state might fear putting itself at a disadvantage if it alone were to impose an unemployment tax. 1031 These cases provide the constitutional justification for the vast profusion of federal GRANTS IN AID and revenue-sharing programs of the past half century. Moreover, the Court has confirmed the power of Congress to condition a grant on the state's performing certain acts, including enactment of laws that Congress could not pass directly. In 1947 the Court upheld a provision in the Hatch Act that conditioned Oklahoma's receipt of federal highway money on its willingness to remove from office a member of the state highway commission. 1751 In 1987 the Court sustained a federal law requiring the secretary of transportation to withhold highway funds from any state that failed to raise its minimum drinking age to twenty-one years. South Dakota protested that since Congress clearly had no power directly to raise the drinking age in the state, it should not be permitted to accomplish the same thing indirectly. The Court disagreed, holding that the only limitation on the spending power is coercing the states to do something that is in itself unconstitutional. Since it is clearly constitutional to raise the drinking age, Congress's method is legitimate under the Spending Clause. 2202 In 1991 a sharply divided Court concluded for the first time that this same principle permits a federal agency to restrict the speech of recipients of

STANDING federal funds. 2049 Under a regulation of the Department of Health and Human Services, family planning centers that received federal funds were prohibited from "encouraging], promoting] or advocating] ABORTION as a method of family planning." In effect, the regulation said that doctors and staff at family planning centers receiving federal funds could neither talk about abortions with their patients nor refer them to abortion counselors who would talk to them about an abortion option. For the majority, Chief Justice William H. Rehnquist said that this was not an abridgment of speech because the government was merely declining to spend its money in a certain way; it is choosing to subsidize one form of family planning rather than another. To the argument that the ban on talking about abortion penalizes doctors for their opinions, Rehnquist responded that the government was not denying a benefit to doctors because of what they would say; rather, the government was "simply insisting that public funds be spent for the purposes for which they were authorized." The dissenters saw the matter quite another way, arguing that the regulation discriminates against the content of speech because it prohibits a particular subject from being discussed. It also discriminates against the doctors' viewpoint because they remain free to talk against abortion; they just may not speak in favor. See

also:

SUBSIDY

GOVERNMENT DISTINCTION;

OF CONTENT

SPEECH; SPEECH,

OF; TAXING

PENALTYREGULATION

POWER.

S P O R T S , see: b a s e b a l l SPOUSAL

P R I V I L E G E S , see: e v i d e n t i a r y

privileges S T A N D A R D O F P R O O F , see: p r o o f , s t a n dard

of

STANDARD

OF

WEIGHTS

SURES, see: w e i g h t s STANDARDS,

and

AND

MEA-

measures

JUDICIALLY

MANAGE-

A B L E , see: j u s t i c i a b i l i t y

STANDING A lawsuit may not just be filed by anyone to sue for anything. For example, your dislike of the colors on postage stamps does not give you standing to sue the U.S. Postal Service. The standing doctrine is one aspect of the CASES OR

CONTROVERSIES

requirement of Art.

III-

§z[i] that determines whether the federal courts may

exercise

the JUDICIAL

POWER

U N I T E D S T A T E S . As t h e C o u r t has

OF

THE

interpreted

this provision, a plaintiff must demonstrate that he (a) suffered an actual injury of the type for which a court may give relief (b) by some action of the defendant and that (c) the court will be able to redress the injury. This is a constitutional rule, and Congress may not circumvent it by conferring on a particular person or group of people the right to sue if they would not otherwise have standing.885 Complicating the search for standing is a set of "prudential" standing rules, not rooted in the Constitution, that Congress may alter if it chooses. These rules require that (a) the defendant violated the plaintiff's legal right, not someone else's; (b) the plaintiff's injury is somehow differentiated from those of all other people; and (c) the injury is of a type that the law or constitutional provision in question was designed to protect. In the typical lawsuit, these conditions are always satisfied. For one thing, most people do not go out of their way to sue unless they are being injured by someone they can identify, and they are not likely to press on when they learn that there is no law to provide them with a remedy. But in certain classes of cases filed by taxpayers grousing about government expenditures or by public interest groups challenging government policies, the standing issue can pose difficult problems. Unfortunately, as the Supreme Court itself has said, "Generalizations about standing to sue are largely worthless as such." 110 Ordinarily, a taxpayer has no standing to sue the federal government for carrying out an arguably unconstitutional program on the ground that it wastes the public's money. The classic case was that of a taxpayer in the early 1920s who wanted to enjoin the federal government from providing funds for a maternity welfare program. The Court dismissed the suit, saying the taxpayer had failed to show any "direct injury." 820 The consequence of this "taxpayer standing" doctrine is to put beyond judicial reach most direct constitutional challenges to the exercise of the government's SPENDING POWER and to leave the allocation of federal funds in the political realm. Similarly, a "citizen suit" lacks standing if the injury asserted is simply the plaintiff's interest in having the government act constitutionally; for example, a citizen may not maintain a suit charging a violation o f the INCOMPATIBILITY CLAUSE

by members of Congress.2094 In 1968, however,

473

474

STANDING the Court opened a small hole in the closed door of taxpayer and citizen suits, holding that a suit may proceed if the plaintiff alleges that the government is spending federal money unconstitutionally to support a program that violates the ESTABLISHMENT CLAUSE.774

The Court has denied standing in cases in which a plaintiff challenges the government's decision to give benefits to someone else. For example, a group of indigent patients were denied treatment at certain hospitals that were receiving federal tax benefits. The patients sued the Internal Revenue Service to stop the hospitals from receiving the benefits. The Court said the indigents had no standing to sue since they could not show that a loss of tax benefits would prompt the hospitals suddenly to begin treating them. 2157 Standing requires a threat to a concrete, particular interest, not to a generalized interest shared by all. Hence, voters lack standing to challenge a redistricting plan that they allege is an unconstitutional racial gerrymander if they do not live in the district. The Court rejected the argument that "anybody in the state" has standing to litigate such a claim; plaintiffs must show that "they, personally, have been subjected to a racial classification." 1021 But to have standing a party need not be a member of the class against which an unconstitutional law discriminates. For example, an Ohio law exempting certain sellers of natural gas from state sales and USE TAXES arguably violated the DORMANT COMMERCE CLAUSE b y discriminat-

ing among classes of sellers. General Motors Corporation, which purchased gas from a nonexempt seller, was forced to pay the tax. The Court held that General Motors had standing to contest the validity of the tax. 856 Organizations as such ordinarily do not have standing to sue on behalf of an undifferentiated public interest that they seek to vindicate. The Court held that the Defenders of Wildlife, a conservation group, lacks standing to challenge a rule issued by the Secretary of the Interior stating that the department would apply the Endangered Species Act to federal activities only within the United States and not to activities beyond its borders. 1390 The group asserted it was injured because the effect of the rule would be to permit certain species to become extinct at a faster rate. Recognizing the legal right to assert a "desire to use or observe an animal species, even for purely aesthetic purposes," the Court held that the claim was nevertheless barred because the conservation group could not show that its interest, or the par-

ticular interests of its members, were directly affected differently from those of everyone else. In recent years, the Court has enunciated a three-part test for associational standing. An organization may sue on behalf of its members if they individually have standing, if the suit concerns a matter in which it is interested as an organization, and if the participation of individual members in the suit is not necessary either to pursue the claim or to gain the relief. 1102 The Court held that an association of general contractors has standing to challenge, under the Equal Protection Clause, a program involving minority SET-ASIDES for municipal construction contracts in Jacksonville, Florida. 1719 The city argued that the contractors' association had no standing because it could not show that any one of its members would have received a contract but for the provision giving preference to "minority business enterprises" in 10 percent of the city's contracts for construction. To establish contracting, Justice Clarence Thomas said, the association "need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis." As long as the three Art. Ill requirements are met, Congress may confer standing on citizens to sue for violations of particular federal laws, although what constitutes an "injury in fact" and whether it is a consequence of the defendant's conduct can only be determined case by case.181 Congress may also confer standing on an association to sue for damages for members. In the Worker Adjustment and Retraining Notification Act, Congress gave unions the authority to sue for damages on behalf of workers when an employer fails to notify employees within sixty days of closing a plant or imposing a mass layoff. A union sued Brown Shoe Company under this law, seeking back pay for workers it alleged had been laid off in violation of the notification rule. Brown Shoe asserted that the law was unconstitutional because the cases or controversies requirement of Art. Ill prohibits Congress from conferring standing on an association to sue for individual members' damages. The Court unanimously disagreed and upheld the law.2401 The constitutional dispute centered on the third part of the associational standing test, since workers would have had standing to sue on their own and one of the unions primary purposes is protecting the jobs and pay of workers. But since workers would not all have suffered the same injury, a suit for damages arguably required the participation of individual workers in the

STARE DECISIS lawsuit to assert their individual damages. The Court concluded that the third part of the test is a "prudential," not a constitutional, requirement; that is, it is a rule imposed by the Court, not the Constitution, and may be overridden by Congress. The Court recognized that the third part of the test does have value. For example, it may serve to sharpen and clarify the issues when those with individual injuries step forward to press their own cases. But in many types of situations, "particular relationships . . . are sufficient to rebut the background presumption . . . that litigants may not assert the rights of absent third parties." Thus, the Court concluded, the third part of the test "is best seen as focusing on these matters of administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution." Recently, some members of Congress have sued the executive branch, alleging that a law enacted by Congress and signed by the president injured them as members of Congress. Some lower courts have found standing, but the Supreme Court has not.* In a 1997 case the Court dismissed a suit filed by members of Congress challenging the LINE-ITEM VETO act. Four senators and two representatives asserted essentially that the act "diluted" their voting power in Congress because it unconstitutionally enhanced the presidents power to "cancel" spending provisions on which they would vote. The Court held, 7-2, that the members did "not have a sufficient personal stake' in this dispute and have not alleged a sufficiently concrete injury"; the injury was not to them as individuals, but "the institutional injury they allege is wholly abstract and widely dispersed, and their attempt to litigate this dispute at this time and in this form is contrary to historical experience."19'10 Ordinarily, a plaintiff may not challenge a government action that is violating someone else's rights, but in certain instances the Court has permitted a plaintiff to do so. The injury need not be solely economic. The Court allowed a suit to go forward in which the plaintiffs alleged that as users of the outdoors in the Northwest, their enjoyment of nature would be seriously injured by railroad rates set by a federal agency, since the rates would deter the use of recycled goods, which in turn would have a baneful effect on the environment.2 " ° t See also: JUSTICIABILITY; TRINE;

SEARCH

CONTEST; MERCE;

AND

TAXATION VAGUENESS.

OVERBREADTH DOC-

SEIZURE: OF

STANDING

INTERSTATE

TO COM-

STARE DECISIS Stare decisis (Latin for "stand by what is decided") is the general principle of COMMON LAW courts that later judges are bound by the decisions of their predecessors. It is one of the principal reasons that the Supreme Court's opinions are so long, so forbidding, and usually so strange to the lay reader. Stare decisis saddles judges with historical baggage that they must take along on every constitutional trip. A judge may not come to each case fresh and say, "How should I decide this one?" Rather, stare decisis commands the judge to say, "What does the past tell me about how I should decide this one?" Stare decisis is not a rule of the Constitution and is not even a law; it is rather a deeply entrenched policy that judges breach when necessary. In the Supreme Court, at least, stare decisis is a misleading account of how cases are decided. To be sure, to a great degree, the Court does respect its precedents. For example, MIRANDA V. ARIZONA persists, despite a long campaign by presidents who appointed justices who might have been supposed antagonistic to it. But like many seminal cases, Miranda has not survived unscathed. The Court has reinterpreted it and hedged it with qualifications. Over the long haul, in other words, the Court may evolve a doctrine quite different from what went before without ever explicitly OVERRULING a previous case. On the other hand, the Court has on many celebrated occasions dramatically overruled its precedents. The school desegregation case BROWN V. BOARD OF EDUCATION, for instance, essen-

tially overruled a fifty-eight-year-old precedent, PLESSY V. FERGUSON. T h e stated ground for

doing so was not just that it was now fifty-eight years later or that there were different justices on the Court, but that social and economic conditions themselves had greatly changed in the interim, so that what was once considered a legally unimportant interest—schooling—had been transformed into one of the most important interests. In Erie Railroad v. Tompkins the Court overruled a ninety-six-year-old precedent because it was convinced that the earlier Court had made a fundamental error that was especially hurtful to a modern economy. In its constitutional jurisprudence, the Supreme Court possesses the only real power to correct its own errors or to adjust for changing conditions. Slow change has always been accepted. What has excited considerable controversy is the practice of a Court, infused with new justices, suddenly overruling precedents of only a few years'

475

476

STATE, A D M I S S I O N T O T H E U N I O N standing. In 1944 Justice Owen J. Roberts, in a case reversing the Courts nine-year-old holding in a "white primary" case, lamented that the Courts recent decisions were akin to "the same class as a restricted railroad ticket, good for this day and train only." 2 1 7 1 In 1991 the Court overruled two precedents, less than four years old, concerning

VICTIM

IMPACT

STATEMENTS.

"Power, not reason, is the new currency of this Court's decisionmaking," charged Justice Thurgood Marshall, in what turned out to be his final term. 1 8 1 4 But as Chief Justice William H . Rehnquist responded, the overruled cases were "decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions. . . . [T]hey were wrongly decided." A major issue in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court's 1992 ABORTION decision, was whether stare decisis required the Court to adhere to Roe v. Wade, decided nineteen years earlier. Three justices who might have voted the other way had they been on the Court in 1973—Sandra Day O'Connor, Anthony M . Kennedy, and David H . Souter—concluded that it did. In deciding whether to overrule Roe, they said the questions are whether Roes "central rule has been found unworkable," whether it could be struck down without "serious inequity" to those who have relied on the right to an abortion or "significant damage" to the stability of society, and whether its underpinnings have become "somehow irrelevant or unjustifiable in dealing with the issue it addressed." The Court held that the answer to each of these questions must be no. "An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant." Moreover, to overrule Roe with no reason other than a change in Court membership would seriously erode the Court's legitimacy, for it would be seen as compromising with "social and political pressures having, as such, no bearing on the principled choices the Court is obliged to make." Like the decision in 1954 in Brown v. Board of Education, Roe decided an "intensely divisive controversy"; only with the "most convincing justification," which is absent in the abortion controversy, could the Court overrule itself without appearing to "surrender to political pressure." In so

doing, it would undermine the only basis of its constitutional authority and "the Nations commitment to the rule of law." The bitter dissenters noted, among other things, that Brown v. Board of Education was itself an overruling of a misguided earlier decision, not a case rooted in any policy of stare decisis. See also: ERIE RULE; VOTING, RIGHT TO.

STATE, A D M I S S I O N TO T H E U N I O N , see: a d m i s s i o n to the U n i o n STATE, AS MARKET PARTICIPANT, market participant doctrine STATE, A U T H O R I T Y authority

see:

OF, see: e x e c u t i v e

STATE, COMPELLING INTEREST see: c o m p e l l i n g i n t e r e s t

OF,

S T A T E , F O R M A T I O N O F N E W Article IV-§3 [r] empowers Congress to admit new states into the UNION. The Constitution is silent about any conditions that Congress may exact in return for granting a territory statehood. At the CONSTITUTIONAL

CONVENTION

OF

1787

the

Framers refused to adopt provisions that would have required all states to be admitted on a basis of exact equality. Nevertheless, that is the settled interpretation: "Equality of constitutional right and power is the condition of all the states of the union, old and new," 7 1 6 regardless of how the territory came to be acquired or who settled the region. In 1911 the Supreme Court struck down a congressional directive to the newly admitted state of Oklahoma that it refrain from moving the location of its capital city. Where a state chooses to situate its capital is a matter of SOVEREIGNTY possessed equally by all states, said Justice Horace Lurton, and Congress may not interfere. 551 Congress may not admit states with powers less than those enjoyed by the original thirteen. 1885 As soon as a state is admitted, congressional enactments that applied to the area when it was a territory lapse altogether, unless the state readopts them. 1 8 4 2 However, on the eve of its admission to the Union, a state may make binding contracts with the federal government. For example, a promise not to tax certain lands held by the United States and later granted to a railroad was held not to be a condition infringing state sovereignty. 2245

STATE A C T I O N S T A T E , I N J U N C T I O N A G A I N S T , see: s t a t e s , i m m u n i t y f r o m s u i t in f e d e r a l court

roads, and the like. The question confronting the Supreme Court was whether Congress had the power to enact such civil rights laws. The law was defended under Congress's power to enforce the

S T A T E , I N S T R U M E N T A L I T I E S O F An instrumentality of a state is an activity owned and operated by the state or one of its political subdivisions, such as a municipal transit system or a public utility. In the days when the TENTH AMENDMENT was seen as a barrier against

FOURTEENTH A M E N D M E N T ' S c o m m a n d that the

C o n g r e s s ' s e x e r c i s e o f t h e C O M M E R C E POWER,

whether a particular activity was an instrumentality of the state and hence immune from certain federal taxes or regulations was an important question. With the demise of the Tenth Amendment as an effective shield against Congress, the issue has become less important. Whether an entity is a state instrumentality continues to be an issue when someone attempts to sue in federal court, for under the ELEVENTH AMENDMENT states are immune from federal suit under certain circumstances. In 1997 the Court held that the University of California is such an instrumentality and may not be sued in federal court for breach of contract. 1959 See also: IMMUNITY, INTERGOVERNMENTAL; STATES,

IMMUNITY

FROM SUIT

IN

FEDERAL

COURT.

S T A T E , O B L I G A T I O N N O T T O IMPAIR C O N T R A C T , see: o b l i g a t i o n of c o n tracts S T A T E , S U I T S A G A I N S T , see: s t a t e s , i m m u n i t y f r o m s u i t in f e d e r a l c o u r t S T A T E A C T I O N State action is the rule that constitutional restraints and limitations may be applied only to things that the government does, not to actions of private individuals. If you eat a piece of your sister's Halloween candy, that is not a TAKING OF PROPERTY f o r w h i c h she is entitled to J U S T COMPENSATION ( a l t h o u g h she m i g h t h a v e

you prosecuted for theft). The sometimes baffling problem is how to detect whether the state had a constitutionally significant hand in whatever injury is being sued for in a particular case. The state action doctrine has had its greatest impact in the area of race relations, beginning w i t h the CIVIL RIGHTS CASES in 1883. In t h e

Civil Rights Act of 1875, Congress outlawed "priv a t e " acts o f d i s c r i m i n a t i o n i n PUBLIC A C C O M -

MODATIONS—theaters, restaurants, hotels, rail-

states n o t d e n y a n y p e r s o n the EQUAL PROTECTION OF T H E LAWS. J u s t i c e J o s e p h P. B r a d l e y ex-

plained that this argument was flawed because in all these cases it was not the state that was denying admission to black patrons; it was private owners and their agents. Congress could pass corrective laws only against actions that the state took. Bradley's central point, and one that has plagued constitutional law ever since, is that the Constitution does not care about state inaction. This seminal decision was grievously flawed and has caused doctrinal confusion ever since. If a city provides fire and police protection for white residents and refuses to provide these services for black residents, it may not have "acted," since a refusal to lift a finger is not an action in Bradley's sense, but it is surely denying blacks the "equal protection of the laws." As Justice John Marshall Harlan noted in his eloquent dissent, the states had long required places of public accommodation to provide their services to all comers. By failing to insist that these places refrain from RACIAL DISCRIMINATION, the states were denying equal protection. Nevertheless, the distinction between action and inaction stuck. In addition to other consequences, this perverse reading made it constitutionally difficult, for a very long time, to hold state officials responsible for their acquiescence in mob lynchings. Though narrowing the meaning of "action," a word not contained in the Constitution at all, the Court has expanded the meaning of "state." In the easiest cases—when a law requires segregated facilities—it is obvious that the state has acted. State action applies also to administrative regulations and practices, 2616 to state officials acting in an official capacity,2444, 1 6 , 1 0 9 1 to courts, 2138 and even to referendum votes of the entire community. 1963, 1 1 0 3 Congress has the power to outlaw the actions of even private individuals for violating others' constitutional rights, if the private individuals were conspiring with state officials in doing so. 1906 Perhaps most astonishing, a criminal defendant is a "state actor" when exercising a PEREMPTORY

CHALLENGE

to

determine

the

composition of the jury that will sit in judgment of him. 860 Because the jury system exists solely through the state, and because the state through its courts gives legal effect to peremptory

477

478

STATE A C T I O N challenges, jury selection is inextricably a state function. Even though the state's interest is opposed to that of the defendant, "in exercising a peremptory challenge, a criminal defendant is wielding the power to choose a quintessential government body." The term "state action" is not confined to laws enacted or conduct undertaken by states or their subdivisions. The question sometimes arises whether an entity is a part of the federal government such that constitutional limitations apply to it. In 1995 the Court held that Amtrak (the National Railroad Passenger Corporation) is an agency or instrumentality of the United States, so that an artist whose lease on billboard space was canceled by the railroad because his work was "political" could seek relief in federal court for vio l a t i o n o f his F R E E D O M OF S P E E C H . 1 3 0 3

The difficult cases are those in which the state encourages or cooperates in some manner with private individuals. Under its PUBLIC FUNCTION analysis, the Court held that a company town was equivalent to the state, when the manager of a town owned entirely by a private company ejected a Jehovah's Witness from the main street and refused to permit her to distribute literature. 1434 By this finding, the Court could apply the FIRST AMENDMENT to the case. If the prop-

erty had been considered wholly private, the First Amendment would have been irrelevant, since it does not offend the Constitution for you to tell your neighbor not to say certain things on your land. But the Court has sharply limited the public function doctrine to situations in which the private actor is carrying out all of the functions that would normally be carried on by the state. The Court refused, for example, to find that a private shopping mall is a state actor. 1092 On the other hand, a municipality may not avoid the Constitution's strictures by handing part of itself over to private managers. The Court refused to view as private a public park in Macon, Georgia, originally created for whites only, that the city turned over to private owners so that it could remain segregated.727 The Court also found constitutionally objectionable primary elections in which blacks were not permitted to vote, even primaries conducted under entirely private auspices.2308 Another form of state action is state involvement in or connection with an otherwise private activity. The clearest example was shown in Shelley v. Kraemer, in which the Court struck down

racially

RESTRICTIVE

COVENANTS

be-

cause the only means of enforcing them would be the courts, which would involve a branch of government in an action based solely on racial discrimination. The Court also found state action when a private restaurant that leased space from a public parking authority refused to serve black patrons. Although the parking authority had no rule requiring the restaurant to discriminate, it was enough that it tolerated the discrimination and profited to some degree from the restaurant's activities.332 But the mere fact of state regulation or licensing is not necessarily sufficient to transform the regulated industry or the licensee into a state actor. The Court said that merely holding a state liquor license does not make a private club an arm of the state, 1593 nor does the states regulation of an electrical utility subject the utility to the procedural requirements of the Due Process Clause, even though the state is extensively involved in setting the utility's tariffs and rules of operation. 1148 If the state authorizes a warehouse to sell its customers private property when they fail to pay storage costs, the warehouse does not become a state actor by disposing of the property legally under the law. 773 The receipt of government money from the state does not make a private entity into a public one. The Court refused to view a private nursing home as a state actor just because it received Medicaid reimbursements, even though the law extensively regulated the manner in which the home could operate.206 An institution, such as a private school, that obtains almost all its funding from public sources does not thereby become an arm of the state, any more than a government contractor would be. 1964 But the Constitution does not prohibit a state from refusing to award a construction contract unless the contractor promises to refrain from engaging in discriminatory acts; states have ample authority under their POLICE POWER to directly regulate or outlaw private acts of discrimination. In 1988 the Court was presented with an interesting twist on the usual state action case: could the National Collegiate Athletic Association (NCAA) be considered a state actor in imposing or calling for sanctions against Jerry Tarkanian, longtime basketball coach at the University of Nevada at Las Vegas? Under pressure from the NCAA, the public university suspended Tarkanian for improprieties. Tarkanian sued, alleging that the N C A A was sufficiently enmeshed in the university's decision to suspend him that it should be considered a state actor. If

STATE O F W A R it was a state actor, then it violated his PROCEDURAL DUE PROCESS rights by failing to give him a hearing. The Court, 5-4, disagreed, holding that the NCAA's policing of its rules governing the conduct of sporting events does not make it a state actor; nor was its involvement with the university sufficient, since, far from actively cooperating, the university had for the most part resisted the NCAA's demands that Tarkanian be disciplined. 1637 See abo:

CIVIL

NISHMENT MENT,

RIGHTS

AND

LEGISLATION;

ATTACHMENT;

AFFIRMATIVE

PROCESS

THAT IS DUE;

INTEGRATION;

SHOPPING

GAR-

GOVERN-

OBLIGATIONS

OF;

SEGREGATION

AND

CENTERS,

STATE

APPORTIONMENT,

STATE

of political

CITIZENSHIP,

see:

S T A T E L E G I S L A T U R E S State legislatures are bound by many constitutional limitations, such as the prohibition against ex post facto laws in

appor-

A r t . I - § i o [ i ] a n d the DUE PROCESS a n d EQUAL

districts

PROTECTION

see: c i t i z e n s

and

citizenship STATE

see:

COMPACTS,

Compact

Clause STATE

CONSTITUTIONAL

Supremacy STATE

see:

LAW,

Clause

COURTS,

see:

judicial

proce-

d u r e in s t a t e c o u r t s STATE

EMPLOYEES,

FEDERAL

LAW

AP-

P L I E D T O , see: f e d e r a l i s m ; i n t e r s t a t e commerce; Tenth A m e n d m e n t STATE

GROUNDS,

ADEQUATE,

see:

INDEPENDENT adequate

AND state

grounds STATE

LAW, INTERPRETATION

LAW,

CLAUSES

MEANING

OF

OF,

tee:

States

I n the

1789

Judiciary Act, Congress told federal courts that in DIVERSITY JURISDICTION cases they must look to state law to decide the case. But what does "law" mean? In 1842, in Swift v. Tyson, Justice Joseph Story answered that only a state statute counted. A court decision was not a law, and the federal courts were not bound by it. The Supreme Court reversed this notion nearly a hundred years later in Erie Railroad v. Tompkins. In hearing diversity cases, federal judges may not ignore the

of

the

FOURTEENTH

AMENDMENT. But state legislatures are not clones of Congress and do not have to use the legislative procedures set forth in Art. 1 . 1 7 4 7 They are bound, instead, by their state constitutions, most of which do in fact incorporate SEPARATION OF POWERS and other federal constitutional principles. In one respect state legislatures are bound not to resemble Congress. The Supreme Court has ruled that representation in each house of the state legislature must be by population. The principle of Senate representation—two senators per state—may not be translated to an equal number of state senators per county or other geographic region unless the populations in those regions are equal. See also: APPORTIONMENT DISTRICTS; STATE O F T H E

judicial power of the U n i t e d STATE

See also: ERIE RULE.

ACCESS

TO; TRESPASS.

tionment

rulings of state courts either about the meaning of a legislative enactment or about a COMMON LAW rule. But suppose the law is unclear or neither the state legislature nor the state supreme court has spoken. In 1991 the Supreme Court said that when that happens a federal COURT OF APPEALS is not bound by the decision of the federal trial judge on what the law of the state probably is. The Supreme Court said that appeals courts have independent authority to determine for themselves what the state courts probably would say if presented with the question. 2061

EX POST FACTO UNION

OF

POLITICAL

CLAUSES.

T h e president is b i d -

den by Art. II-§3 " from time to time [to] give Congress information of the state of the Union." In modern times the explicit requirement has become a moment of high ceremony, with the president appearing before a joint session of Congress in late January every year to give the State of the Union address in prime time. Placed in a clause dealing with the president's relations with Congress, the State of the Union mandate is a useful reminder that presidents and Congress are expected to work together. See also: PRESIDENT, POWERS AND DUTIES OF. STATE

OF W A R , see: w a r , s t a t e

of

479

480

STATE P O L I C E P O W E R STATE power

POLICE

POWER,

see:

police

S T A T E S , I M M U N I T Y FROM S U I T IN F E D E R A L C O U R T As ratified, Art. III-§2[i] ex-

COMMERCE, Clause

STATES to suits between a state and a citizen of another state. In 1793 the Supreme Court accepted such a suit under its ORIGINAL JURISDICTION, 456 exciting immense fears throughout the country, for it had not occurred to the states that their SOVEREIGN IMMUNITY against suit could be overcome by the simple expedient of suing in the courts of a different sovereign—the United States. Within less than two years, the states ratified the ELEVENTH AMENDMENT, which appears to withdraw from federal judicial power suits "commenced or prosecuted" between states and citizens. But the amendment ultimately accomplished far less than many had hoped, for it has scarcely kept states and state officials out of federal court. For one thing, said Chief Justice John Marshall in an appeal arising from a state court, the Eleventh Amendment does not bar federal review of a state case, since it was a continuing case that the state had instituted, not one that had been "commenced or prosecuted" originally in federal court. 484 This was a fateful decision, for without it the Supreme Court might have been unable to enforce the commands of the SUPREMACY CLAUSE and bind the states into a single nation. In 1824 Marshall discovered an essentia] loophole in the amendment, providing a way to restore considerable federal judicial power over state acts. His theory was simple: a state officer is not a state, and so in the appropriate circumstances, a suit against state officials rather than states may be brought to federal court. 1 7 7 4 Likewise, a governmental entity created under the COMPACT CLAUSE is not a state entity entitled to Eleventh Amendment immunity unless it is specifically structured so as to be cloaked with the immunity of the states that created it and Congress has assented. 1056

t e n d e d t h e J U D I C I A L POWER OF T H E

STATE R E G U L A T I O N OF see: D o r m a n t C o m m e r c e STATE rights

SOVEREIGNTY,

STATE T A X A T I O N

STATEMENT see: a c c o u n t

see:

AND

states'

OF C O M M E R C E ,

t a x a t i o n of i n t e r s t a t e STATEHOOD, hood

see:

states

and

ACCOUNT

state-

CLAUSE,

of the r e c e i p t s and

p e n d i t u r e s of all p u b l i c

see:

commerce

ex-

money

S T A T E S , D I S P U T E S B E T W E E N Under Art. III-§2[i, 2] the Supreme Court has ORIGINAL JURISDICTION to hear cases involving "controversies between two or more states." From their earliest days, states brought the Court their boundary disputes. In 1838 the Court held that determining boundaries is not a political question but a legal issue. 1975 Construing the word "controversy" liberally, the Court has determined that many other types of disputes between states are justiciable and that the clause permits the Court to determine the rule for decision in the absence of any settled principle, congressional enactment, or multistate compact; examples are disputes over control and use of common waterways, 1 2 0 4 breach of contract claims, 1 2 2 3 breach of an interstate compact, 2 4 4 3 claims to the inheritance tax on a deceased persons estate, 2316 and the collection of unclaimed intangible property. 2318 On occasion the Court has declined to hear cases on the ground that the issues were not justiciable. For example, it refused to consider Alabama's suit to enjoin nineteen other states from enacting laws prohibiting the sale of goods made by convicts 31 or Louisiana's suit against Texas to reform the administration of its quarantine laws. 1 3 7 1 Also, the Court will not hear original suits filed by a state on behalf of its individual citizens. 1455 Many such suits may be heard in state courts or in the lower federal courts and then appealed to the Supreme Court. See also: COMPACTS AMONG STATES, QUESTION

DOCTRINE.

POLITICAL

UNITED

By the late nineteenth century the JURISDICTION of the federal courts had been greatly expanded, including, for the first time, power to hear claims of unconstitutional actions by the states against their own citizens. The Eleventh Amendment says nothing about such suits; by its terms, only suits brought by citizens of other states or countries are barred. Yet in Hans v. Louisiana, in a feat of some prestidigitation, Justice Joseph E Bradley said that even though the amendment does not say that a state is immune from suit by its own citizens in federal court, it should mean that. The drafters did not

STATES, I M M U N I T Y F R O M S U I T I N F E D E R A L C O U R T include that happenstance in the Eleventh Amendment because they never supposed that anyone would ever try it. The Court also held that states may not be sued in admiralty and maritime cases, even though the amendment seems to permit it. 1689 Rather perplexingly, in view of this apparent policy judgment, the Court in 1979 upheld the constitutional power of the California courts to entertain a suit by a California citizen against the state of Nevada.1657 Notwithstanding the Eleventh Amendment, the states may waive their immunity and consent to be sued in federal courts if they choose.964 But if a state asserts immunity upon being hauled into federal court, it may immediately appeal the courts refusal to dismiss the suit on that ground, even though ordinarily a case can be appealed only after FINAL JUDGMENT. Otherwise, if the state had to go to trial just to show that it should not have been brought to trial in the first place, the benefits of the immunity would be lost.1921 The largest loophole in the Eleventh Amendment involves Marshall's notion about suits against state officials. In 1908, in Ex parte Young, the Court held that the attorney general of Alabama could be sued in federal court to enjoin him from enforcing an unconstitutional law or violating a federal law. The fiction on which this decision rested was that if the act was found to be unconstitutional, it was no act of the state, so the suit must therefore be against the state official as an individual committing an illegal act. The doctrine of Ex parte Young does not embrace every conceivable suit against state officials, however. In 1997 the Court refused to permit the Coeur d'Alene tribe to sue Idaho state officials in federal court for rights to submerged lands and lake beds within the reservation. Although in form the suit charged state officials with violating tribal property rights, in reality, a sharply divided Court ruled, the suit presented "particular and special circumstances" that justified an exception from Young, since it was aimed at divesting the state of its sovereign control over lands lying beneath navigable waters. 1118 The Court has also held, 5-4, that suits may not be heard in federal court against state officials alleged to have violated state law.1822 The word "state" does not extend to PO1341 L I T I C A L S U B D I V I S I O N S , so that counties and 1605 school boards, among others, may be sued in federal court regardless of the amendment. The amendment is more porous still, for the Court has sustained the power of Congress by statute to supersede the Eleventh Amendment

under its later-created power to enforce the F O U R and to subject states, even in their official capacity, to suits in federal court for violating the fundamental rights protected in the Fourteenth Amendment.772 In 1989 the Court suggested in Pennsylvania v. Union Gas Co. that Congress may, under the COMMERCE P O W E R , rescind the Eleventh Amendment altogether and subject states to federal damage suits, at least if Congress manifests its intention to do so in unmistakable terms.1829 But in 1996, in a case that may portend a dramatic shift in the constitutional understanding of F E D E R A L I S M , a sharply divided Court overruled Union Gas and held that the Eleventh Amendment bars Congress from authorizing Indian tribes to sue states in federal court to enforce laws enacted under Congress's power to regulate commerce "with the Indian tribes."2124 In the 1988 Indian Gaming Regulatory Act, Congress devised a policy to regulate gambling activities on Indian tribal lands. Under the law, gambling is authorized only when it conforms to a compact between the tribe and the state in which the tribe is located. The law imposed on the states a good-faith duty to negotiate with the tribes, which were permitted to sue a state in federal court to enforce the duty. In Seminole Tribe of Florida v. Florida, Chief Justice William H. Rehnquist, writing for a 5-4 majority, held that the Eleventh Amendment prevents Congress from exercising the Indian Commerce Clause to TEENTH AMENDMENT

abrogate a state's SOVEREIGN IMMUNITY. T h e

Court held further that the doctrine of Ex parte Young cannot be used in this instance to sue a state official in federal court. The chief justice said that Congress may abrogate a state's sovereign immunity only under its power to enforce the provisions of the Fourteenth Amendment. Dissenting, Justice John Paul Stevens said that "[t]he importance of the majority's decision to overrule [ Union Gas\ cannot be overstated. The majority's opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy." Justice Stevens termed the majority opinion an "affront . . . of shocking

481

482

STATES, T A X A T I O N BY character . . . to a coequal branch of our Government." The chief justice responded that the dissents "conclusion is exaggerated both in its substance and its significance" since, first, a state's officials may still be enjoined in federal court from carrying out ongoing illegal actions and, second, "it has not been widely thought that the federal antitrust, bankruptcy, or copyright statutes abrogated the States' sovereign immunity . . . [and the] Court never has awarded relief against a State under any of those statutory schemes." In 1997, with Justice Stevens writing the opinion, the Court unanimously dismissed a suit against the University of California on Eleventh Amendment grounds. A New York resident sued the university in federal court for breach of contract to employ him at a university laboratory in connection with a federal energy project. The Court held that although in name the suit was not against the state, the aim of the suit was to secure a money judgment from the state, since the university is an instrumentality of and funded by the state. 1959 Nor did it matter that the U.S. Department of Energy had agreed to indemnify the university for any judgments rendered against it in performing the contract. The issue is not where the ultimate legal responsibility for payment lies; rather, it is whether the defendant is an instrumentality of the state that determines its amenability to suit in the federal courts.t See abo: ADMIRALTY TION;

AND MARITIME

JURISDIC-

DAMAGES.

STATES, TAXATION by s t a t e s

BY,

see:

taxation

STATES AND STATEHOOD After the Revolutionary War, the former colonies became states, independent sovereignties. The very word "state" was chosen not only to connote their coequal status in the family of nations, but also to mark them as republics and distinguish them from monarchies. Though the states viewed themselves as legally independent, not merely from England but from each other, in fact they were bound by too many ties to suppose that they could maintain separate existences. From the very beginning, they were closely allied through the Continental Congress and then in the ARTICLES OF CONFEDERATION. Even so, real governmental power lay with each state. The national government was an agent of the states, created by compact and alterable at the will of the states.

By defining the meaning of UNION, the Constitution gave the states a distinctively different juridical status. They were no longer independent or sovereign, even in theory, but were meshed into a distinctively new federal system, in which governmental power is assigned to the state or federal government by function and in which a system of CHECKS AND BALANCES gives each some measure of control over the other. The SUPREMACY CLAUSE awards the final say to the federal government if the exercise of state and federal power conflicts, but federal power is limited, and the states have a significant hand in forming the federal government (more so originally than after the ratification of the SEVENTEENTH AMENDMENT).

Under the "equal footing" doctrine, the states are legal equals; new states, the Court has held, enter the Union on the same footing as the original states, and whatever attributes of SOVEREIGNTY the original states possessed before ratification of the Constitution are equally possessed by all later states. 1885 The states are not linked solely through their relationship with the federal government. The FULL FAITH A N D C R E D I T a n d P R I V I L E G E S A N D

IMMUNITIES requirements of Art. IV link the states directly and obligate them to act toward all Americans as part of a common nation. The Constitution assumes stability of the states as juridical entities. A state's borders are not transient lines but fixed; under Art. IV-§3[i] they are unalterable unless both the state and Congress consent to a change. Once a new state is admitted by Congress to the Union, it assumes full legal equality with all other states, and its statehood is perpetual; Congress may not rescind its vote or repeal the admission. Though the Constitution does not explicitly declare any principle of equality, the Supreme Court has consistently assumed one. 1 8 4 2 During the Civil War President Abraham Lincoln was careful to maintain that the Confederate states had not dissolved or reverted to territorial status but had maintained their status as states. When, at war's end, provisional governments were established in the defeated Confederate states, it was not because they had lost their capacity to govern but because their governments were held to have been corrupted, a decision that Congress may make under the GUARANTEE C L A U S E . 2 3 2 0

Time has worn away the degree of constitutional independence that the Court once conceded to the states under the TENTH AMEND-

STATISTICAL MENT. Under a theory of "reserved powers," the Court held in many cases from the end of the Civil War until the beginning of World War II that the Tenth Amendment imposed constitutional limitations on the power of Congress to interfere with certain state functions and powers. That theory died in 1941, 5 8 5 was briefly resurrected in the mid-1970s, and is clinging to a shadow life in the 1990s. The current understanding is that Congress may not direct the states to enact laws 1 6 7 6 or their officials to execute federal laws, 1 9 1 0 but it may indirectly pressure states to carry out federal policy by, for example, conditioning federal spending on state compliance with federal mandates. 2202 While the change in relationship between the states and the federal government is related to changing constitutional doctrines, it is more sensibly explained by the immense changes to the economy and technology of the nation, awakening Congress to its COMMERCE POWER in ways undreamed of by the Framers but in accord with the control they provided for from the very beginning. See also: COMPACT

CLAUSE;

MERCE

EXECUTIVE

CLAUSE;

FEDERALISM; MENTAL;

MARKET

OBLIGATION POWER; STATE,

INSTRUMENTALITIES PUTES

BETWEEN;

COMMERCE; RIGHT

TERM

because blacks were excluded from the jury, the Court looked at the history of jury selection in the state and held that the fact that for more than a generation no black person had ever been called, even though a substantial number were legally qualified, was evidence of RACIAL DISCRIMINATION in jury selection. 1 7 1 0

DOCTRINE; SPENDING STATE, MEAN-

STATES, OF

DIS-

INTERSTATE

LIMITATION;

TRAVEL,

TO.

S T A T E S ' R I G H T S "States' rights" is not a constitutional term but a political slogan, employed in various forms throughout American history to suggest that the states possess SOVEREIGNTY over certain matters—mostly having to do with SLAVERY, race relations, and police procedures—and that in those areas the states are superior even to federal law and the decisions of the Supreme Court. In its more extreme forms, the doctrine of states' rights has always been a doctrine advocating the power of an entrenched group to repress less favored groups. Under the SUPREMACY CLAUSE, the position of ardent states' rightists simply collapses, as it has historically, though not without bitter struggle and wistful hopes even to this day. See

also:

SOUTHERN

FEDERALISM; MANIFESTO;

JUDICIAL TENTH

In the classic 1886 case Yick Wo v. Hopkins, Chinese laundry operators in San Francisco were arrested for operating their businesses in wooden buildings. A city ordinance required that all laundries be situated in brick or stone buildings unless the board of supervisors consented to a variance. The board consented to variances for non-Chinese laundry owners but refused consent to hundreds of Chinese laundrymen. T h e Supreme Court held that from these facts alone it could infer a policy "applied and administered by public authority with an evil eye and an unequal hand."

INTERGOVERN-

OF; STATE LAW, TAXATION

A

In 1935, overturning the conviction of one of

OF NEW;

ING OF; STATE LEGISLATURES;

OF

t h e d e f e n d a n t s in the S C O T T S B O R O BOYS C A S E

CONTRACTS;

FORMATION

USE

COM-

PARTICIPANT

OF

EVIDENCE,

statute or administrative policy that is neutral on its face does not necessarily violate the EQUAL PROTECTION CLAUSE even though it affects racial groups differently. To show a constitutional violation, there must be proof that the legislation or policy has a discriminatory purpose. Proving legislative or administrative intent is often difficult, and so the question arises whether statistical evidence is sufficient to prove discrimination. The answer is: sometimes.

AUTHORITY;

DORMANT

IMMUNITY,

STATISTICAL

E V I D E N C E , USE OF

REVIEW;

AMENDMENT.

And in more recent JURY DISCRIMINATION cases, the Court has been willing to entertain statistics to shift the burden of proof: once a significant disparity has been shown between the number of members of a particular group who could be called and the number who were actually called, the state must then demonstrate that it was not discriminating. 4 1 6 In the 1989 SETASIDES case, the Court, while striking down the minority construction law, said that an inference of discriminatory exclusion from government contracting business might be drawn if there is shown "a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually [so] engaged." 1 9 8 8 On the other hand, the Court rejected a massive statistical study purportedly demonstrating racial discrimination in DEATH PENALTY decisions in Georgia, saying that the study did not demonstrate racial bias in

483

484

STATUTE OF

LIMITATION

the particular case. 1478 In legislative apportionment cases, the Court has sometimes accepted statistical evidence 2519 and sometimes not. 1 5 7 7 In general, as Justice William Brennan said in a SEX DISCRIMINATION case, "proving broad sociological propositions by statistics is a dubious business," 552 though it is sometimes the only evidence possible. See also: DE FACTO-DE

JURE

TION; PURPOSE-IMPACT

DISCRIMINA-

DISTINCTION.

S T A T U T E O F L I M I T A T I O N A statute o f l i m -

itation is a legal deadline for filing lawsuits. Plaintiffs who fail to file within the time period forfeit the right to do so thereafter. The Supreme Court has rarely struck down a statute of limitation for being unreasonably short under DUE PROCESS, nor has it found any problem if a state decides to shorten an existing statute. 2514 But the statute must operate reasonably. A state may not use a statute of limitation to bar legal relief when the state itself was the cause of delay. In a 1982 case, an Illinois administrative agency dismissed an employment discrimination claim because it had failed to schedule a required HEARING within the legally mandated period, thus depriving the claimant of any remedy. The Supreme Court unanimously held that a state may not deprive a person of a legal claim in such a manner. 1359 The Court has also occasionally found fault with statutes of limitation in ILLEGITIMACY cases. It voided in 1982 a Texas law requiring illegitimate children seeking child support from fathers to file suits before their first birthday, 1553 in 1983 a Tennessee two-year statute of limitation; 1862 and in 1988 a Pennsylvania six-year statute,467 all on the equal protection ground that there was no corresponding statute of limitation for marital children. See also: EQUAL PROTECTION ERIE RULE; JUDICIAL COURTS; STATUTORY

OF THE LAWS;

PROCEDURE

IN

STATE

RETROACTIVITY. RAPE

In

1981

the

Supreme

Court upheld statutory rape laws against a SEX DISCRIMINATION challenge.1528 Statutory rape is the crime of having sexual relations with a minor girl, even if she consents. The California law in question set the age of consent at eighteen. A seventeen-year-old boy was convicted of having intercourse with a girl under the age of eighteen. The question was whether the law violated the EQUAL

PROTECTION

CLAUSE

in

providing

punishment for the boy only. A sharply divided Court found no constitutional violation. The purpose of the law, to prevent teenage pregnancy, was a legitimate one and the law was a rational way of accomplishing that end. Even though the law places a burden on males not shared by females, there was no suggestion that males because of past discrimination needed special protection from the courts, that the gender classification was made for administrative convenience, or that the law rested on any sexual stereotypes. Instead, the law simply reflected the common understanding that females were already far more burdened with the consequences of sexual intercourse and pregnancy, and therefore the deterrent effect of the law could be limited to males. STAY OF EXECUTION A stay of execution is a judicial order postponing enforcement of a JUDGMENT pending APPEAL. Stays may be granted by all federal courts in appropriate circumstances. Under federal law, stay applications to the Supreme Court are made to the individual justice assigned to supervise the particular judicial circuit in which the case is pending. In controversial cases, the individual justice will frequently poll his colleagues to see whether at least four justices think the stay should be issued. A litigant may appeal to the entire Court if an individual justice denies a stay. A stay of execution also refers to an executive decision to delay a death sentence. In recent years, the Supreme Court has been extremely reluctant to grant stays of execution to permit condemned prisoners to make HABEAS CORPUS appeals.204, 902 In 1983, in Barefoot v. Estelle, the Court set out procedures for lower courts to use in determining whether to grant a stay of execution pending a habeas appeal. First, the prisoner must obtain a "certificate of probable cause to appeal." Such a certificate should be issued only on a "substantial showing" that the prisoner was denied a federal right. If it is issued, then, second, the court of appeals must give the prisoner an opportunity to address the merits of his claim; the court of appeals "is obligated to decide" it. 847 If an execution is scheduled before the court can hear the appeal, it must issue a stay of execution. The appeals courts may consider both the merits of an appeal and the request for a stay simultaneously, following "summary procedures," and may "render a single opinion deciding both the merits and the motion" for a stay. If the court of appeals has denied a stay, the

STRICT C O N S T R U C T I O N Supreme Court will not automatically issue a stay of execution while it decides whether to hear an appeal. The motion for a stay must show "a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of CERTIORARI . . there must be a significant possibility of reversal of the lower courts decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed."

the president seizure power in an earlier labor law but decided against it. See also: EMINENT INHERENT

SEIZURE

CASE

AND

INHERENT

STERILIZATION,

see:

reproductive

rights AND

FRISK,

see:

search

and

seizure: stop and frisk

S T E A M B O A T S , see: t r a n s p o r t a t i o n STEEL

IMPLIED

PRESIDENT,

POWER OF.

STOP See also: RULE OF FOUR.

DOMAIN;

POWERS;

In A p r i l 1952 steel

unions were poised to call a strike against the nation's steel mills. Afraid that the strike would cripple the national security in the midst of the war in Korea, President Harry S. Truman ordered Charles Sawyer, secretary of commerce, to "seize" the steel mills, operate them as government property, and negotiate new contracts with the union. T h e president claimed the power to seize and operate the mills under his inherent power as chief executive, including his power as COMMANDER IN CHIEF. He could point to no clause in the Constitution specifically granting seizure power, or to any law authorizing him to do so. In less than two months, the time it took to get the case to the Supreme Court, the steel companies regained their mills. In Youngstoum Sheet dr Tube Co. v. Sawyer the Court declared, 6-3, that the president has no inherent authority to seize private property. In a famous concurring opinion, Justice Robert H . Jackson explained that the presidents power fluctuates and depends on how much Congress has underwritten it. If Congress authorizes the president to act, then his power is at its zenith. Had Congress authorized the seizure, the Court would have presumed Truman's actions to be constitutional, and the steel companies would have had a difficult burden of proof to overcome. However, when Congress has been silent, then there is a "zone of twilight" in which the president and Congress may have concurrent power to act. Finally, when the president acts against the expressed or implied will of Congress, his power is at its "lowest ebb," for then all that exists is an inherent power, minus whatever power Congress could give him. In the Steel Seizure Case, the Court noted that Congress had debated giving

STREAM

OF

COMMERCE

DOCTRINE

In

the late nineteenth century the Supreme Court took a narrow view of Congress's COMMERCE POWER, holding that certain antitrust laws and regulations of working conditions were unconstitutional because Congress had no power to regulate local activities. But it found an exception for activities that, while local if considered in isolation, were actually part of a "stream" or "current" of commerce carried on between the states. In 1905 Justice Oliver Wendell Holmes upheld the power of the government to enjoin price fixing by meat dealers because although the prices were fixed in a single location, the commodity in fact began its journey in one state and almost always ended it in another, by way of the stockyard where brokers arranged its sale and transit. This typical, "constantly recurring course" is a "current of commerce," and the purchase of catde is a part of that current. 2287 Congress followed up Holmes's metaphor in the Packers and Stockyards Act of 1921, regulating working conditions, charges, and fraudulent practices by meat packers. The Court upheld the law, finding that the packers were engaged in INTERSTATE COMMERCE since the stockyards "are but a throat through which the current flows" and the packers' work is "only incident to this current from the west to the east." The sales of meat do not stop the flow but facilitate the current. 2228 See also: ANTITRUST LAWS, ITY OF; COMMERCE,

EFFECTS

CONSTITUTIONALON;

ECONOMIC

REGULATION.

S T R I C T C O N S T R U C T I O N Those who advocate strict construction believe that the words of the constitutional text should be given no broader meaning than they will bear and that no meaning outside the words themselves is responsible or appropriate. Broad or liberal constructionists, by contrast, suppose that the meaning of

485

486

STRICT SCRUTINY the words cannot fully determine the outcome of cases, because in so many instances the words themselves provide no guide. What is an "unreas o n a b l e " SEARCH A N D SEIZURE? W h a t is an "es-

tablishment of religion"? At a minimum, the interpreter must look to history, and that already implies an interpretation beyond the four corners of the document. The debate between strict and broad constructionists is as old as the Republic. In the first years of the Washington administration, Thomas Jefferson (strict) and Alexander Hamilton (broad) battled over the basic powers of the government, Jefferson holding that the Constitution gave the federal government relatively little room in which to maneuver and Hamilton finding ample constitutional legitimacy for a far-reaching national government. Yet when Thomas Jefferson, as president, was presented with the land deal o f a l i f e t i m e , the LOUISIANA PURCHASE, h e

overcame doubts that he lacked constitutional authority to make it. In recent political discourse, "strict constructionist" is often a synonym for "conservative." But there is no sound correlation between constitutional interpreters who would stick to the text and political views about what the text means. Liberals can read closely, conservatives broadly. Justice Hugo L. Black, generally regarded as a leading liberal politician and jurist, believed himself to be a strict constructionist; he scorned the idea that judges were competent or authorized to draw new rights out of the DUE PROCESS clauses. Conservative justices at the end of the last century read wildly between the lines to create constitutional theories that were certainly no part of the constitutional text. As descriptive terms, "strict" and "broad" do not define how a justice will or ought to approach the interpretive task. Perhaps they could be refashioned as descriptors of a problem far less discussed: to what degree should judges confine their opinions to the specific facts of the case at hand? "The Court sustains this legislation by assuming two deviations from the facts of this particular case," stormed Justice Robert H. Jackson in the School Bus Transportation Case-,729 "first, it assumes a state of facts the record does not support, and secondly, it refuses to consider facts which are inescapable on the record." The Supreme Court Reports are strewn with laments and tongue-lashings like Jackson's about the failure of the majority or the dissenters to think through the facts of the case to be decided. 729

Since justices have authority to interpret the Constitution only through the cases before them, it might be a useful exercise to measure their strictness from now on by how faithful they are to that which gives them the power to decide. See also: CASES OR CONTROVERSIES; TUTION,

LIVING;

PRETATION;

INTER-

INCORPORATION

IN TERPRE TIVISM; ORIGINAL

CONSTI-

CONSTITUTIONAL

INTENT;

TEST; SUBSTANTIVE

NEUTRAL SHOCK THE DUE

DOCTRINE; PRINCIPLES; CONSCIENCE

PROCESS.

STRICT S C R U T I N Y In determining whether a law affecting a suspect class violates the EQUAL P R O T E C T I O N CLAUSE, the courts p r o b e the l a w

far more closely than when an ordinary classification is at stake. This more searching inquiry into the justification for the law is called "strict scrutiny," a term first used by Justice William O. Douglas in 1942 in a case calling for the sterilization of certain convicted felons. 2 1 6 5 The strict scrutiny test has been variously stated, but in a recent form the Supreme Court has said that a law that classifies on the basis of race or ethnic origins m u s t be " necessary to p r o m o t e a compelling

state

interest."670 The strict scrutiny test is also used to evaluate claims that a SUBSTANTIVE DUE PROCESS right has been violated and to judge the validity of the government's regulation of the content of speech. 2386 In cases involving "quasisuspect" classes, such as laws based on sex, the Court requires an "intermediate" or "heightened" scrutiny test. To withstand invalidation, a classification based on sex must "serve important governmental objectives and must be substantially related to achievement of those objectives." 552 The heightened scrutiny test is used in other contexts as well; for example, a contentneutral INJUNCTION against an abortion clinic may "burden no more speech than necessary to accomplish its objective." 1 4 1 2 Since it is impossible to quantify the difference between "necessary" and "important" or "compelling" and "substantially related," the cases must be consulted to gain a sense of what kinds of classifications will survive each type of scrutiny. Indeed, the tests may simply be taken as convenient labels for the Courts ultimate decision to strike down a law or not. Classifications subjected to strict scrutiny do not survive. The Court has rejected all laws invidiously discriminating on the basis of race or ethnic origin. Benign race classifications, such as pres u m a b l y arc e m b o d i e d in AFFIRMATIVE A C T I O N

SUBPOENA POWER programs, have also been struck down as the Court in the 1990s has subjected them to strict scrutiny as well. 12 Some classifications based on sex have survived. When neither a suspect nor a quasi-suspect class is at issue, the Court uses the RATIONAL

BASIS

OR

RELATIONSHIP

When the inquiry is whether a law's means are rationally related to its ends, the legislature need not have expressed a particular purpose in the text of the law; the law is constitutional as long as the means are rationally related to "any state of facts [that] reasonably may be conceived to justify it." 1 4 9 3 By contrast, the intermediate and strict scrutiny tests do not "permit [the courts] to supplant the precise interests put forward by the State with other suppositions."686 The courts must consider the actual interests proffered by the state to justify the challenged law; they may not search for a rationalization that will permit the law to stand. The various levels of scrutiny have been criticized, often sternly, by various members of the Court. Justice Sandra Day O'Connor went out of her way in the 1995 SET-ASIDES case to "dispel the notion that strict scrutiny is strict in theory, but fatal in fact,'" 1 2 though so it has almost invariably proven to be. In the Virginia Military Institute SEX DISCRIMINATION case,2445 Justice Antonin Scalia took a broad swipe at intermediate scrutiny: "We have no established criterion for 'intermediate scrutiny . . .,' but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content-neutral restrictions that place an incidental burden on speech, 2386 to disabilities attendant to illegitimacy, 1553 and to discrimination on the basis of sex." 552 He asserted that to reach its result in the 1994 abortion clinic PICKETING case, 1412 the Court employed not an "intermediate" but an "intermediate-intermediate scrutiny" test. Justice Thurgood Marshall suggested that in equal protection cases the Court junk its labels and own up to what it in fact does—namely, "appl[y] a spectrum of standards [that] clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending . . . on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn." See also: AFFIRMATIVE

ACTION;

GERRYMANDERING;

ALIENS;

MENTAL

PURPOSE-IMPACT

DISTINCTION;

DISCRIMINATION; CONTENT

SPEECH,

OF; SUSPECT

RETARDATION; RACIAL

REGULATION

CLASS AND

OF

CLASSI-

FICATION.

TEST,

which most statutory classifications pass.

ANCING;

DISCRIMINATION;

BAL-

INVIDIOUS

S T U D E N T S ' RIGHTS Students have a mixed bag of constitutional rights. The Supreme Court has held that the FIRST A M E N D M E N T

protects

high school students who peacefully wear black armbands to protest a war.2350 But students do not have absolute freedom to speak as they please. The Court upheld a school's disciplining of a student who gave a "lewd" school election speech to a high school audience.188 The Court also upheld the right of public school authorities to censor student newspapers;1022 however, it recognized a higher degree of constitutional protection for student speech in colleges, holding in 1973 that a public university may not expel a student for using "indecent language" in the student newspaper.1796 Students in public high schools and colleges have the right to meet for religious purposes if the schools open their campuses to other outside groups. 2528,215 Students also have a right to prevent school authorities from depleting school libraries of materials the authorities consider "offensive," if the motivation for removing the books is to censor ideas.216 Students have limited procedural rights when school authorities wish to discipline them for infractions of school rules. A student may not be suspended, even for a brief time, without at least an informal HEARING at which the student is notified of the charge and offered the opportunity to rebut it. 912 Students have a LIBERTY interest in being free of undeserved corporal punishment, but the Court refused to require schools to hold any kind of hearing before a student is physically beaten, because, the Court said, after-the-fact lawsuits are sufficient remedies for any wrongs done. 1126 See also; ACADEMIC COMPULSORY; PROCESS SCHOOLS, SUBJECT tion

of

RIGHTS; RELIGION OF

FREEDOM;

JUVENILES, PROCESS

EDUCATION, RIGHTS THAT

IS

OF; DUE;

IN.

COMMERCE,

see:

prohibi-

commerce

SUBPOENA POWER A subpoena is a court order requiring a witness to come forward to testify or to produce documentary or other tangible evidence for inspection in court, either before or during trial. Subpoenas are issued at the behest of

487

488

SUBSIDY parties, though the court has discretion to refuse to issue the subpoena if the subpoenaed witness can show a reason why he should not be called—for example, the irrelevance of his testimony, the existence of EVIDENTIARY PRIVILEGES, or the consti-

tutional right against SELF-INCRIMINATION. Failure to comply with a lawful subpoena is punishable as CONTEMPT. T h e SIXTH AMENDMENT

affords criminal defendants COMPULSORY PROCESS—that is, power to subpoena favorable witnesses. The Sixth Amendments right to CONFRONTATION WITH WITNESSES may require the

government to subpoena other witnesses for trial. S U B S I D Y There is no general constitutional obligation for the government to spend money on behalf of individuals, even if the funds are necessary to further the exercise of a constitutional right. The Supreme Court has held, for example, that neither DUE PROCESS nor EQUAL PROTECTION OF THE LAWS requires the govern-

ment to subsidize an ABORTION for an indigent woman through the Medicaid program, even though that medical insurance program pays for other medical services.1004 The only major exception to this general policy is that when the government has restricted a person's LIBERTY by confining him in a penal or other institution, it must meet certain due process standards of maintenance and treatment.2620

certain way. A very few rights are substantive. For example, the government may not prohibit you from speaking your mind or worshiping as you choose. But most of the important aspects of life—the right to marry and raise a family, the right to work and pursue a calling—are not enumerated in the Constitution. The Framers had fought a revolution in part to secure fundamental human rights. Because they believed that a government of ENUMERATED POWERS would not abuse the peoples nat-

ural rights if it was not given the power to do so, the document prepared at the CONSTITUTIONAL CONVENTION OF 1787 listed scarcely any rights at all. The ratifying conventions showed that this was a serious error, and the result was the BILL OF RIGHTS,

including

the

little-read

NINTH

AMENDMENT, which says that government should not assume that the people have forfeited rights just because the Constitution does not list them. In the early years of the Supreme Court, the justices occasionally talked as if the government could be restrained on "general [natural law] principles which are common to our free institutions," without pinning the restraint to any language in the Constitution.779 But so free-floating a theory was inconsistent with the meaning of a written Constitution. Instead, the Court pressed into service the DUE PROCESS Clauses of the FIFTH and FOURTEENTH AMENDMENTS. These

See also: GOVERNMENT, GATIONS TION; TIONAL

OF;

AFFIRMATIVE

PENALTY-SUBSIDY

SPENDING

POWER;

OBLI-

DISTINC-

UNCONSTITU-

CONDITIONS.

clauses were intended to brake the power of government to carry out certain acts without following the law; in other words, they acted as procedural reins on government. But then, beginning perhaps with DRED SCOTT V. SANDFORD, in

SUBSIDY-PENALTY penalty-subsidy SUBSTANTIAL see;

DISTINCTION,

see:

distinction RELATIONSHIP

rational

basis

SUBSTANTIVE

DUE

or

TEST,

relationship

test PROCESS

The

Constitution spells out certain rights of the people and certain restraints on government power. Most of the rights and most of the restraints are procedural: you are entitled to a fair trial before being locked up, you may not be compelled to be a witness against yourself, and your home may not be searched unless the police obtain a

which Chief Justice Roger B. Taney said that a person's property right in his slave cannot be extinguished simply by the slave's act of moving to a free state, the Court began to see that due process might involve more than procedure. Not only could the Court tell the government, "You may not do this unless you do it in the proper way"; it could tell the government, "You may not do this at all." The latter proposition is the doctrine of substantive due process. The Court began to use this line of reasoning in the late nineteenth century, mostly in cases concerning the power of government to regulate business, economic activities, and property rights. This use of substantive due process, known as ECO-

SEARCH WARRANT. T h e Constitution does not

NOMIC DUE PROCESS, was roundly criticized as

say that the government may not lock you up or search your home, only that they must do so in a

giving judges carte blanche to impose their policy views on the people and had exhausted itself by the

SUBVERSIVE A D V O C A C Y time of the New Deal, when President Franklin D. Roosevelt's many appointments to the Supreme Court killed it. But substantive due process itself did not die. In the early years of this century, the Court cautiously discerned other, noneconomic rights that it held to be fundamental and beyond the power of government. Many of these are constitutionally familiar, because the Court took substantive limitations in the Bill of Rights—for example, FREEDOM OF S P E E C H — a n d held that they restrain the states no less than the federal government. But some substantive rights had no anchor in the text. In 1923 the arch-conservative Justice James McReynoids declared for the Court that Nebraska could not forbid the teaching of foreign languages to children. 1525 The acquisition of knowledge is part of the LIBERTY possessed by every person and the state may not constitutionally interfere with it. Until the 1960s there were few substantive due process decisions, partly because the post-New Deal justices were uncomfortable with the thought of judges declaring what amounted to natural rights. Occasionally a case would crop up—notably, Justice William O. Douglas's decision striking down an Oklahoma law permitting the sterilization of some but not all three-time losers. 2165 Although he based his decision on the EQUAL PROTECTION C L A U S E , he spoke of basic liberty, fundamental rights, and basic civil rights. In 1965, again speaking through Douglas, the Court revived substantive due process in a significant way, striking down Connecticut's birth control law and announcing, in Griswold v. Connecticut., a fundamental right to PRIVACY. Douglas strained to show that the right to privacy could actually be found in the Constitution, and he cited penumbras, offshoots or tendrils of other constitutional rights. The somewhat surreal quality of Griswold can be explained by Douglas's resistance to being seen as an advocate of substantive due process, for he was one of Roosevelt's original appointees and a sworn enemy of economic due process. Eight years and some privacy decisions later, the Court handed down Roe v. Wade, the most inflammatory substantive due process decision of the century. And the doctrine is not likely to disappear. Perhaps mindful of the public outcry during the Senate hearings over Robert Bork's nomination to the Supreme Court, the most recent justices have said that they cannot conceive of a Constitution without some notion of a right to privacy.

Even so, substantive due process is a relatively limited doctrine. It does not, under any understanding so far expressed, permit the courts to strike down in the name of constitutional freedom anything they suppose to be fundamentally unfair. The debate over whether the space program or antipoverty spending is a higher national priority remains a political issue. The only due process for decisions such as these is the ballot box.t See also: CONTRACEPTION;

PENUMBRA

ORY; PROCEDURAL

OF CRIMINAL

FENDANTS; IS DUE;

RIGHTS

PROCESS RIGHTS; PROPORTIONALITY

REPRODUCTIVE

RIGHTS;

PROCESS OF

SEXUAL

THEDETHAT

SENTENCE; FREEDOM.

S U B V E R S I V E A C T I V I T I E S , see: s e d i t i o n S U B V E R S I V E A D V O C A C Y Advocating one's ideas and beliefs is the central concern of the Free Speech and Free Press clauses of the FIRST A M E N D M E N T . It is also one of the most politically contentious areas of constitutional debate, because advocacy is not confined to ideas with which most of us agree. Society would be anemic indeed if it allowed us to minister only to the believing or preach only to the converted. Ultimately, the right to advocate our beliefs is the heart of a free society. "If there is any principle of the Constitution," said Justice Oliver Wendell Holmes, "that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate." 2108 But precisely because passionate advocacy can stir so many to hatred, the right to advocate positions that frighten or disgust the community has long been a constitutional battleground. The issue centers on the right to advocate unlawful conduct, to incite people to act unlawfully, and to promote highly unpopular ideas that might promote radical political and social change. The problem is as old as the Republic. In 1798 Congress enacted the Sedition Act, which outlawed statements or publications critical of the government. The law soon expired, and it would be nearly a century and a quarter before the constitutionality of SEDITION laws reached the Supreme Court. The federal Espionage Act of 1917 prohibited interference with military recruitment and outlawed attempts and conspiracies to cause insubordination in the ranks. Agitators were prosecuted

489

4?o

SUBVERSIVE

ADVOCACY

for speeches and pamphlets that were said to violate the act. The Court heard several appeals in 1919. In one of them, the conviction rested on a leaflet that argued against conscription, urged people to assert their constitutional rights, and blamed the war on Wall Street. In Schenck v. United States Justice Oliver Wendell Holmes affirmed the conviction for a unanimous Court. In ordinary times, Holmes said, the defendant may have been within his constitutional rights to say what he did, but not in wartime, when the words helped further a conspiracy to interfere with the war effort. Holmes said that the test was whether the words were of such a nature and used in such a w a y as t o "create a C L E A R A N D P R E S E N T D A N -

GER that they will bring about the substantive evils that Congress has a right to prevent."

demning laws that punish the expression of any thought not imminently likely to cause serious harm. During the Smith Act prosecutions of COMM U N I S M A N D T H E C O M M U N I S T PARTY in t h e

early 1950s, the Court adopted a watered-down version of the clear and present danger test, holding, essentially, that even speech highly unlikely to realize its objective, or unlikely to reach it anytime in the near future, may be punished if the harm that might be caused is great enough. 619 By the late 1950s the Court took a more subtle look at the subversive advocacy laws and the evidence used to sustain convictions, and it began to qualify its earlier broad pronouncements. For example, it held unconstitutional laws that penalized mere MEMBERSHIP

IN P O L I T I C A L

ORGANIZA-

Holmes affirmed similar convictions in other cases decided at the same time, 8 1 7 , 6 0 7 but several months later he was suddenly in dissent. In Abrams v. United States the Court was presented with a conviction under an amendment to the Espionage Act. Whereas the original act prohibited certain actions, the law now prohibited certain kinds of speech—anything that would incite resistance to the United States during the war. The majority again affirmed, but Holmes wrote one of his most celebrated dissents. Setting forth

TIONS; only "knowing" and "active" membership in an organization devoted to lawlessness could expose the member to conviction.2083 As late as 1961, though, the Court insisted that "present advocacy of future action for violent overthrow," as well as "advocacy of immediate action to that end" could constitutionally be punished. 2611 But in the 1960s the Court struck down a number of subversive conspiracy convictions on a variety of nonconstitutional and occasionally constitutional grounds.

his

Finally, in 1969, the Court adopted a strong version of Holmes's clear and present danger test. The leader of a motley Ku Klux Klan "rally" on a farm in Ohio was convicted under the state criminal syndicalism law for advocating the "duty . . . of violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform." The rally consisted of twelve hooded figures and several television camera operators. There were no spectators. The speaker rather laconically notified his television audience that the Klan intended to march on Washington to demand rights for the "Caucasian race" and that if Washington did not respond, "it's possible that there might have to be some revengeance [sic\ taken." In a PER CURIAM opinion, the Court unanimously overruled Whitney and reversed the conviction, announcing the following rule: A state may not forbid "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." 260 A speaker urging a mob to attack a government building "right now," or to storm a jail cell to lynch the prisoner may be prosecuted for his speech. But ugly, detestable "advocacy of

MARKETPLACE

OF

IDEAS

metaphor,

Holmes said that now the government was punishing the expression of opinion, and opinion that stood no chance of being acted upon. Moreover, there was no showing that by the publication "of a silly leaflet" this "unknown man" had any intention of causing the injuries at which the law was aimed. For the next fifty years the issue relating to subversive advocacy was whether it was consistent with FREEDOM OF SPEECH to prohibit any statement, no matter how unbelievable or unlikely to cause harm, that just might tend to incite someone into carrying out an unlawful and violent act that could harm the security of the nation or a state. In a series of criminal SYNDICALISM cases, the Court declined to follow even the clear and present danger test. In Gitlow v. New York it held instead that certain kinds of subversive advocacy could be punished regardless of whether they could conceivably cause any harm. In 1927, in Whitney v. California, the Court essentially sustained the notion o f GUILT BY ASSOCIATION. It

was in this case that Justice Louis D. Brandeis penned the most powerful plea for expressive freedom in the annals of judicial opinions, con-

SUNDAY C L O S I N G LAWS illegal action at some indefinite future time" 1 0 5 4

on that day were enacted early in colonial history.

is constitutionally protected. "Lets take back

Although compulsory worship laws today would

America!" and "Your time will come!" are not

unquestionably

prosecutable utterances. For the moment at least,

CLAUSE, the Court has been much more charita-

violate the

ESTABLISHMENT

the law of subversive advocacy has been constitu-

ble toward laws regulating commercial and other

tionally settled.

activities on Sunday. In 1900 the Court refused to

See also: BLACKLISTING; FREEDOM OF ASSOCIATION;

LIBEL

SECURITY

AND

SLANDER;

LOYALTY-

PROGRAMS.

strike as a violation of DUE PROCESS a state law that prohibited barbering on Sundays. 1 8 5 3 At that time, the religion clauses of the FIRST AMENDMENT were not thought to be applicable to the states, but by 1961, when the Court heard chal-

SUCCESSION

TO

OFFICE

D E N T , see: p r e s i d e n t i a l

OF

PRESI-

succession

lenges to three Sunday "blue laws," the First Amendment had been "incorporated" into the FOURTEENTH

S U F F R A G E , see: v o t i n g , right to

AMENDMENT, a n d so the ques-

tion was primarily whether such laws represent a RELIGIOUS ESTABLISHMENT or interfere with

SUICIDE,

see: a s s i s t e d

suicide,

right

to; right to die

t h e F R E E D O M OF R E L I G I O N .

T h e cases concerned discount stores in shopping malls open seven days a week and stores

S U I T S AT C O M M O N

LAW, see: trial

by

jury

owned by Orthodox Jews who for religious reasons could not open their stores on Saturday. Even though the Sunday laws were motivated by

T h e Supreme Court

religious concerns, their current use was secular,

does not decide every case with a full opinion or

said Chief Justice Earl Warren. They "provide a

even after having heard ORAL ARGUMENT.

uniform day of rest for all citizens." That the day

SUMMARY

OPINION

Sometimes it issues a summary opinion, a short

chosen, Sunday, has particular significance for

PER CURIAM decision or order with little expla-

Christians does not defeat the state's secular in-

nation of the reasons for its conclusion. Although

terest, since the fact remains that "Sunday is a day

a case decided summarily is not entitled to as

apart from all others." 1 4 9 3 Moreover, the closing

great a precedential value as cases decided with

laws do not force a religious belief on anyone;

full opinions, it is nevertheless binding "until

they merely make the practice of certain religious

such time as the Court informs [the lower courts]

beliefs more expensive. T h e FREE

that [it is] not." 1 0 6 1 Individual justices frequently

CLAUSE does not invalidate laws that indirectly

EXERCISE

dissent from the Court's decision to dispense

burden the practice of a person's religion. To pro-

with oral argument and to dispose of cases sum-

vide an exemption for people who observe the

marily. For example, four justices objected to the

Sabbath on a different day would be to defeat the

Court's "indefensible" determination to dismiss

purpose of providing a uniform day of quiet in

Senator Barry Goldwater's suit against President

the community, although a state could provide an

J i m m y Carter when Carter decided to recognize

exemption if it chose for people who worship on

mainland China and break o f f diplomatic rela-

a different day. 264 But a state may not give a per-

tions with Taiwan. Five justices thought the case

son an absolute right against dismissal from a job

was nonjusticiable because it raised a political

for refusing to work on the Sabbath. Connecticut

question or was not yet ripe for resolution, but

reformed its Sunday laws, permitting a wide vari-

the dissenters thought the case was so obviously

ety of businesses to remain open. T h e revised law

important that oral argument should have been

said that an employer could not fire a worker who refused to work on Sunday or any other day

heard. See also: JUSTICIABILITY; TION

POLITICAL QUES-

DOCTRINE.

SUMPTUARY

claimed as the Sabbath. In 1985 the Supreme Court invalidated this law as an impermissible religious establishment. 2342

L A W S , see: dress

codes

T h e Sunday closing laws were also challenged u n d e r EQUAL P R O T E C T I O N OF T H E LAWS, s i n c e

they defied commonsense understanding of what SUNDAY

CLOSING

L A W S Laws compelling

Sunday worship and prohibiting certain activities

could and could not be sold. In one state, fish could

be sold wholesale but not retail

on

491

492

SUPPRESSION H E A R I N G Sundays. In another state, the sale of all merchandise was banned except retail sales of tobacco products, confectioneries, milk, bread, fruits, gasoline, greases, drugs and medicines, and newspapers and periodicals—there goes the neighborhood. But the Court said that the states have wide discretion to determine how much quiet they wish to provide and that the distinctions were not wholly irrational. See also: LEMON

SUPPRESSION

TEST.

HEARING

A

suppression

hearing is a judicial HEARING before trial to consider whether a confession to be used in a criminal prosecution was voluntarily made. In 1964 the Supreme Court held that a suppression hearing is a constitutional necessity, striking down the New York procedure in which the voluntariness of a confession was left to the jury. 1146 Instead, the Court held, the state must permit the judge to make a preliminary determination. If he finds the confession involuntary, then it may not be presented to the jury. If he finds it voluntary, the jury may hear it; but the defendant is entitled to present evidence of coercion, either to impeach the confessions credibility or to raise before the jury the question of its voluntariness.558 The judge need not find the confession voluntary beyond a REASONABLE DOUBT at the suppression hearing; a preponderance of the evidence is a sufficient standard of proof. 1315 Suppression hearings are also used to determine the constitutionality of a SEARCH A N D SEIZURE. Sometimes the defendant will take the stand at a suppression hearing, and the Court has ruled that in so doing he does not forfeit his right against SELF-INCRIMINATION. Any testimony he gives at the suppression hearing may not be used at trial, and he may not be compelled to take the stand before the jury. 2155 See also: EXCLUSIONARY

SUPREMACY

CLAUSE

RULE.

At

the

CONSTITU-

1787, James Madison wanted Congress to have the power to negate state laws. The delegates rejected his proposal, and instead adopted the Supremacy Clause of Art. VI-[i]: "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." Without this clause, the nation might have fallen

T I O N A L C O N V E N T I O N OF

apart long ago, squabbling over the effects of conflicting laws and policies emanating from Congress and the states. The scope of the Supremacy Clause was set, as was that of so many other constitutional provisions, by Chief Justice John Marshall. In McCulloch v. Maryland he established that the Supremacy Clause bars the states from taxing the United States or any of its instrumentalities. In Gibbons v. Ogden he established that although a state may have the power to pass a certain law, the law has no legal effect if it conflicts in some way with a law that Congress is empowered to enact. The rule that federal law overrules state law applies to all levels of state law, including not only legislative enactments but also state constitutions and judicial opinions. The concept of federal legal supremacy raises two different sorts of questions: what constitutes federal "law," and what constitutes a "conflict"? Plainly, federal statutes are laws in this sense, as are treaties to which the Senate has consented. State laws that conflict with federal treaties or federal laws implementing those treaties are void. 1569 Regulations promulgated by federal administrative agencies are supreme, and the Court has said that the very existence of a federal agency's power to regulate, even though unexercised, may indicate that the states must refrain from acting. In other words, if a federal agency decides not to regulate, the courts will take that as a decision that there should be no regulation by states either.91 A difficult question has occasionally arisen over what weight a local state court must give to a lower federal court's pronouncement when the two confront similar issues. The Court has never resolved the issue. But it is central to the Supremacy Clause that the Supreme Court's construction of federal law or the Constitution is binding on the states.531 In regard to the second question, many laws may conflict below the surface. In sorting out whether a state law actually conflicts with federal law, the federal courts have served as the primary umpires. Article VI-[3] requires not merely federal officers but also all state officers, including judges at every level, to take an oath to support the federal Constitution. This clause was intended to be more than merely ceremonial. The Framers assumed that many federal laws and programs would have to be carried out by state officials, and the Judiciary Act of 1789 so empowered state courts. In adjudicating cases, however, state judges are not free to disregard relevant federal

SUPREME COURT laws on the ground that they are "foreign" to the state, in the same way that the law of Mexico or Canada is foreign to the United States. In 1947 the Court confirmed that the relationship between the federal government and the states is not the same as that between nations in the international arena. Under a wartime federal price control act, a buyer who was overcharged could recover DAMAGES equal to three times the overcharge. The law permitted suit in federal or state court. A Rhode Island court confronted with such a suit refused to award the triple damages because, it said, under rules of international law, a court is not obligated to enforce a "penal" statute, which it held the federal price control act to be. Said Justice Hugo L. Black for a unanimous Court, "We cannot accept the basic premise [of] the Rhode Island Supreme Court . . . that it has no more obligation to enforce a valid penal law of the United States than it has to enforce a penal law o f . . . another country." Federal law is also the law of Rhode Island, and the state courts must enforce it when required to in particular cases.2311 In 1989, in Davis v. Michigan Dept. of Treasury, the Court held that a state may not constitutionally tax retirement benefits of federal employees if it did not tax those of state workers. Retired federal employees in Virginia sued to recover sums they had paid under a similar law. The Virginia Supreme Court held that under state law it was unnecessary to apply the Davis rule to any events that occurred before Davis was announced—in short, that the Davis rule need not be applied retroactively. The Court ruled that the Supremacy Clause requires the state to follow the federal rule, which requires retroactive application of Davis. Said Justice Clarence Thomas for a 7-2 majority: "Whatever freedom state courts may enjoy to limit the retroactive operation of their own interpretations of state law, . . . cannot extend to their interpretations of federal law." 1000 t See

also:

ADMINISTRATIVE

BUREAUCRATIC IMMUNITY,

SUPREME

TENTH

AND

FEDERALISM;

INTERGOVERNMENTAL;

OR AFFIRMATION; TIVITY;

AGENCIES

GOVERNMENT; PREEMPTION;

OATH RETROAC-

AMENDMENT.

COURT

The

United

States

Supreme Court is the only court established by the Constitution. Article III-§i vests the JUDICIAL POWER OF T H E U N I T E D STATES " i n o n e

Supreme Court." In Federalist 78, Alexander Hamilton said that the judiciary, having neither

sword nor purse, "will always be the least dangerous" branch. It seemed, instead, to be the invisible branch. When the federal government moved to Washington from Philadelphia in 1800, no provision had been made for housing the justices. Indeed, the architects had forgotten about the Supreme Court altogether. So an east basement room of the Capitol was hurriedly prepared. During the next decade, because of renovations and other exigencies, the Court found itself in the library once occupied by the House of Representatives and then, to avoid the library's draft on winter days, in Long's Tavern. Finally, in 1810, the Court convened in a basement room, designed especially for the Court, under the Senate chamber. The War of 1812 interrupted proceedings, and the Court again moved, this time with Congress, and even settled into a rented house, until it finally returned to the restored basement chamber in 1819. Chief Justice Marshall announced the opinion in the Dartmouth College case on the day he and his brethren returned to the Capitol. There the Court stayed until i860. During the Civil War the Court moved to the old Senate chamber on the Capitol's first floor. In these quarters it remained for seventy-five years. The courtroom itself was capacious, but the justices' adjacent space was miserably cramped, and none had private office space. The Court did not get a permanent home until 1935, when a huge marble building at One First Street, Northeast, in Washington, D.C., opened for business. Its elaborate facades and monumental interior spaces have led critics to label it a "marble palace" and a "marble mausoleum." Chief Justice Harlan Fiske Stone called it "almost bombastically pretentious." It was, he said "wholly inappropriate for a quiet group of old boys such as the Supreme Court." The justices would be, said one of them, "nine black beetles in the Temple of Karnak." The Supreme Court building provides each justice with a three-room office suite, and it also contains many ornate rooms for library space, conferences, staff offices, and other private and public functions. The courthouse was built at a cost of less than ten million dollars, probably fifteen times less than what it would cost to build today. Indeed, so efficient were its contractors that they actually returned to the treasury ninety-four thousand dollars of the funds appropriated for its construction and furnishings—an astonishing

493

494

SUPREME COURT, J U R I S D I C T I O N

OF

feat, at least to a modern society accustomed to the inexorable law of "cost overruns."* See

also:

GOOD

CONFERENCE,

BEHAVIOR;

DICTION;

SUPREME

OF; SUPREME

JUDICIAL;

JUDICIAL

COURT,

COURT, NUMBER

DURING

REVIEW;

JURIS-

JURISDICTION OF

JUSTICES;

Time Chart of the Justices of the Supreme Courtf Biographical Notes on the Justices of the Supreme Court; How the Supreme Court Hears and Decides Cases.

SUPREME

COURT,

JURISDICTION

OF

Under Art. III-§2[2] the Supreme Court has O R I G I N A L J U R I S D I C T I O N over cases affecting diplomats and in which a state is a party. This provision is the only self-executing grant of jurisdiction in the Constitution; that is to say, the Supreme Court is empowered to hear such cases whether or not Congress approves. 1222 That was the essential point of Marbury v. Madison; Congress may neither enlarge nor diminish the class of cases that the Supreme Court may hear as a trial court. The Court's original jurisdiction is not exclusive, however; Congress may assign these cases to other courts as well. The Supreme Court has A P P E L L A T E J U R I S over all categories to which the J U D I C I A L POWER OF T H E U N I T E D S T A T E S extends but "with such exceptions and under such regulations as Congress shall make." Because Art. III-§i grants Congress complete discretion over whether or not to establish the lower federal courts, Congress's power to bestow on them only limited jurisdiction has always been assumed. The Court has explicitly ratified this view, as long ago as 1812, 1096 again in the mid-nineteenth century, 413, 2 1 3 7 and as recently as 1966. 2200 From 1789, when the lower federal courts were established, Congress has in fact refrained from conferring all permissible jurisdiction. For instance, the first federal courts had no F E D E R A L Q U E S T I O N J U R I S D I C T I O N . Congress assumed that cases raising claims under federal law would be heard in state courts. A larger debate has arisen over the breadth of Congress's power to control the Supreme Courts appellate jurisdiction. Could Congress, for example, divest the Court of jurisdiction to hear appeals in abortion or in school prayer cases? Initially, in 18x0, Chief Justice John Marshall said that the Supreme Court has the complete constitutional jurisdiction unless Congress limits it, 675 but by mid-century the Court had taken the opDICTION

posite view: it has no appellate jurisdiction except what Congress decides to confer, within the limits of Art. III. 1 6 1 If Congress decides to choke off jurisdiction, the Court is powerless to hear the case. That, at least, was the Court's conclusion in 1868, in Ex parte McCardle. Following the Civil War, army courts were busily trying civilians accused of antiwar activism. In 1866 the Supreme Court had ruled one such trial unconstitutional. 1548 In 1868 a similar case arose against William McCardle, an antiblack Mississippi publisher who preached violent opposition to the Reconstruction. The publisher sought his release from military confinement through a writ of HABEAS C O R P U S , and the case was argued in the Court. But angered at the 1866 decision and alarmed that the Court might take the opportunity to curb other Reconstruction policies, Congress withdrew jurisdiction from the Court in all habeas corpus cases, including cases then pending. The Court upheld Congress's control over its appellate jurisdiction and dismissed McCardle's appeal. Congress later restored the Courts jurisdiction in habeas cases. Since that time, the issue of whether Congress may simply cut off the Court's jurisdiction in any particular class of cases has never been squarely presented, and the Court has expressed occasional doubts that McCardle remains good law.887 But the Court has held that Congress may not, in the guise of limiting jurisdiction, dictate how a case is to be decided. In an 1872 case Congress attempted to deny jurisdiction to hear cases involving enemy property captured during the Civil War. The courts had ruled that a presidential pardon entitled a former Confederate claimant to indemnification. Congress decreed that a presidential pardon had the opposite effect and that the courts must dismiss such cases. The Supreme Court held, in effect, that Congress was unconstitutionally violating the S E P A R A T I O N OF P O W ERS by prescribing how the courts must rule in pending cases.' 241 During the past several decades, Congress has periodically confronted bills abolishing the Court's appellate jurisdiction in controversial topics of the day, including desegregation, A B O R T I O N , apportionment of state legislatures, and school prayer. Popular sentiment for High Court review of all constitutional questions has so far kept these bills from passing. How the Court would rule if Congress attempted to limit its jurisdiction probably depends on exactly what Congress would say. A law repealing the Courts

SUSPECT CLASS A N D C L A S S I F I C A T I O N jurisdiction to review PATENT CLAUSE cases would undoubtedly be upheld, but a law repealing the Courts right to hear cases involving the rights of blacks, women, or ALIENS might well f a i l as a v i o l a t i o n o f t h e EQUAL

PROTECTION

CLAUSE. But it is this direct power over the Supreme Courts jurisdiction, a leading commentator has argued, that gives legitimacy to the Courts rulings.* It cannot be charged that unelected judges act undemocratically in making constitutional rulings, because Congress implicitly permits them to do so and may terminate their power at its will. If the Court has jurisdiction to hear a case, must it decide the case? In 1821 Chief Justice John Marshall said, "It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. . . . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution." 484 Despite Marshall's bold words, the Court ducks many more cases than it accepts, largely by refusing to grant a writ of CERTIORARI. In one oftencited MISCEGENATION case, the Court refused to hear an appeal by a person convicted of having entered an interracial marriage, not because there could be any doubt of how the Court should rule, but presumably because it was wary of fanning the political firestorm that had greeted its d e c i s i o n in BROWN V. BOARD OF

EDUCATION

the year before.' 6 ' 0 See also: ABSTENTION STATE

GROUNDS;

LITICAL

DISTRICTS;

QUESTIONS, MENT;

TATIONS,

ADEQUATE

OF;

FINAL

JURISDICTION;

PARDONS,

PO-

STARE

NUMBER

JUDGMAJORI-

REPRIEVES,

AND AMNESTIES;

COURT,

OF

CONSTITUTIONAL

AVOIDANCE

FINALITY;

TARIANISM;

SUPREME

DOCTRINE;

APPORTIONMENT

COMMUDECISIS.

OF

JUS-

TICES The Constitution does not say how many justices must serve on the Supreme Court. The number is for Congress to decide. In the Judiciary Act of 1789, Congress decreed that the Supreme Court should consist of the chief justice of the United States and five associate justices. In 1801 Congress provided that one of those seats should lapse when the next vacancy occurred, but that law was repealed the following year. In 1807 Congress increased the number of associate justices to six, in 1837 to eight, and in 1864 to nine.

This was the largest number ever to sit on the Court. In 1866, to bar President Andrew Johnson from making appointments to the Court, Congress reduced the number to six and forbade Johnson from appointing any replacements until retirements or deaths brought the number of sitting justices to that number. When Ulysses S. Grant became president in 1869, Congress raised the number of associate justices back to eight, where it has stood ever since, producing a ninemember Supreme Court (the chief justice and eight associate justices). In his COURT-PACKING PLAN, President Franklin D. Roosevelt urged Congress to increase the number of associate justices to a maximum of fourteen, but Congress rejected the idea. SUPREME

Supremacy

LAW

OF

THE

LAND,

see:

Clause

SURGERY, s e e ; m e d i c a t i o n a n d s u r g e r y , forced SURVEILLANCE When the government undertakes surveillance of particular people suspected of criminal activity, the FOURTH AMENDMENT

provisions

governing

SEARCH

AND

SEIZURE regulate the lengths to which law enforcement officials can go. It is less clear constitutionally how far the government may go simply to "keep a watch" on various organizations, gathering generalized data about groups thought to threaten public order. Direct interference with political activities would clearly violate the FIRST AMENDMENT, but there is no general rule against government investigation. In 1972 the Supreme Court turned aside a challenge to the army's surveillance of "lawful and peaceful civilian activities." The plaintiffs asserted that the very fact of intelligence gathering about legal domestic groups was unconstitutional because of the CHILLING EFFECT. The Court held, 5-4, that the case was not ripe and therefore had to be dismissed. The mere fear that the army might at some unknown future date misuse the information it was gathering was insufficient to demonstrate "specific present objective harm" or a "threat of specific future harm." 1 2 7 1 See also: JUSTICIABILITY; SUSPECT

CLASS

RIPENESS.

AND

CLASSIFICA-

TION

When laws are challenged under the

EQUAL

PROTECTION

CLAUSE,

the

Supreme

49S

496

SUSPENSION

CLAUSE

Court scrutinizes their purpose and operation by different tests, according to the type of classification laid out in the law. The Court pays the closest attention and subjects the law to the most searching scrutiny when it encounters what it has termed a "suspect class." A class is suspect if the legislature or administrative agency has fastened on an innate or immutable characteristic that a person has no power to change, such as race or ethnic origin. The concept of suspect class was e n u n c i a t e d in 1 9 4 4 in the J A P A N E S E - A M E R I C A N EXCLUSION A N D RELOCATION case. A s J u s t i c e

Hugo L. Black put it, "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect." 1253 Since the 1950s the Court has held that legal classifications based on race, national or ethnic origin, or alienage are suspect a n d are s u b j e c t to S T R I C T S C R U T I N Y . W i t h rare e x c e p t i o n s ( m o s t l y AFFIRMATIVE

ACTION

cases), no classification based on race or national origins has been upheld in nearly half a century. Many classifications based on a person's status as an alien have been stricken as well. The Court has refused to view sex as a suspect class, somewhat surprisingly since sex is no less immutable than race. Instead, since the early 1970s it has seen sexbased classifications as "quasi-suspect" and tested their constitutional validity by a "heightened scrutiny" standard. Another class accepted as quasi-suspect is ILLEGITIMACY. But the Court has r e f u s e d to find M E N T A L R E T A R D A T I O N , age,

or poverty classifications to be quasi-suspect. Critics of these labels point out that there is only one Equal Protection Clause, not three, and that the tests employed for each of these classifications are highly manipulable. See also: AGE DISCRIMINATION; ALIENS; ECONOMIC DISCRIMINATION; TION

BY;

SEX

CLASSIFICATION

RACE,

DISCRIMINATION; AND

CLASSIFICAWEALTH

DISCRIMINATION,

S U S P E N S I O N C L A U S E , see: h a b e a s c o r pus SWEEPING CLAUSE, and P r o p e r C l a u s e

see:

Necessary

S Y M B O L I C S P E E C H Not every communication is made through "pure" speech—words spoken or written. Conveying messages effectively often requires something more. Heckling a speaker from the back of a crowd is much less noticeable than holding up a huge placard that can

be seen on nightly television. Demonstrating contempt for a political regime often takes the form of a hunger strike. Outrage at some public policy is often much better expressed by displaying a popular symbol defaced in a pertinent way. Many people marching sends a message far more effectively, one may suppose, then writing a letter to the editor. The question in each case is the degree to w h i c h the FIRST A M E N D M E N T shelters

this symbolic speech—the use of symbols and even certain behavior or conduct. The Supreme Court first recognized a constitutional right to symbolic speech in 1931 in the Red Flag Case.2265 California outlawed the displaying of a red flag to symbolize "opposition to organized government." The Court struck down the law because it interfered with "the opportunity for free political discussion." In 1968, in United States v. O'Brien, the draft card burning case, the Court established a test for determining when a law regulating conduct is constitutionally deficient because it interferes with the "communicative aspect" of the conduct. The defendants stood on the steps of a Boston courthouse and burned their draft cards before live television cameras and a sizable audience. "Knowingly" mutilating or destroying a draft card was a federal offense. O'Brien asserted that burning his card was the only real way to get people to listen to his antiwar message and that the First Amendment protected his "communication of ideas by conduct." He was arrested and convicted. The Supreme Court affirmed his conviction. Chief Justice Earl Warren rejected the notion that "an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." But even if it is speech, in some sense, Warren said, a government regulation will be upheld if (1) it deals with an area in which the government has constitutional power to act, (2) it furthers an "important or substantial governmental interest," (3) the governmental interest is unrelated to suppressing ideas or expression, and (4) the incidental restriction on the expression is no greater than is essential to further the government's interest. Applying the analysis, Warren said that Congress clearly had power to create and regulate a military draft, that the law regulating draft cards furthered the operation of the military registration system, and that the law was no broader than it had to be. Finally, Warren rejected O'Brien's contention that the law was specifically aimed at suppressing protest. Unlike the Red Flag Case, the draft card

SYNDICALISM law on its face dealt "with conduct having no connection with speech." The Court will not strike down an "otherwise constitutional statute" because the legislators may have had an "illicit" motive. It does not matter what the purpose of the legislators was if the purpose of the law is not related to suppressing speech. In 1969 the Court did reject a government ban on symbolic conduct, holding that a Des Moines, Iowa, public school could not constitutionally prohibit high school students from wearing black armbands to symbolize their protest of the war. This time the Court saw the policy as aimed directly at conduct "akin to pure speech." 2350 In a series o f

highly

controversial

FLAG

BURNING

AND DESECRATION cases, the Court has upheld the symbolic speech claims of people who burned American flags on the streets or used them in ways that many people found offensive. In cases decided between the early 1970s and 1990, the Court consistently determined that the government's only interest was in deterring the ideas being communicated and that government has no constitutional interest in deterring or punishing messages, no matter how offensive. The Court refused to upset a National Park Service regulation prohibiting sleeping in public parks in a case in which a large group of people protesting the plight of the homeless sought permission to camp in public spaces in Washington, D.C. 4 6 6 The Park Service authorized the demonstrators to use the park space and even to construct tents to symbolize the desperate living conditions of the homeless. But it refused to permit the demonstrators to sleep overnight in the tents. The service said it was permissible to pretend to sleep but not to actually sleep. The Court assumed that sleeping was expressive conduct but, even so, it held that under O'Brien the regulation was justifiable. The Park Service applied the regulation to everyone, there were other ways the homeless demonstrators could deliver their message, and the regulation was no broader than it had to be to preserve park spaces. People who sleep in the parks in tents will inevitably do more damage than people who are there temporarily. Conduct that is properly labeled "symbolic speech" should be distinguished from conduct that merely accompanies speech, although sometimes the two are difficult to differentiate. A writer has every constitutional right to deliver his manuscript to a publisher, no matter what it says, but he has no constitutional right to deliver it in his car at one hundred miles an hour.

Demonstrators have rights to gather in public places, and even to march, and the very fact of their massing together may be part of their message, just as PICKETING is entitled to constitutional protection. But as some justices have from time to time observed, speech mingled with conduct is "speech plus," 1627 and the government may regulate the noncommunicative aspects of that conduct under reasonable TIME, PLACE, AND MANNER RESTRICTIONS. INTEREST;

DEMON-

STRATORS

See

also:

AND DEMONSTRATIONS;

NUDITY;

SPEECH,

REGULATION

OF

SYMBOLS,

REGULATION

OF.

SYMBOLS,

COMPELLING

REGULATION

CONTENT

OF

OF;

T h e r e is n o

general constitutional rule governing the use and regulation of symbols. The right to use a symbol depends on the symbol and the purpose to which it is put. If the symbol is being used for p o l i t i c a l p u r p o s e s , the FIRST A M E N D M E N T p r o -

hibits the government from interfering. For exa m p l e , in FLAG B U R N I N G A N D

DESECRATION

cases, the Court has denied Congress or the states p o w e r t o b l o c k S Y M B O L I C S P E E C H .

But

the Court upheld an act of Congress bestowing on the U.S. Olympic Committee the exclusive rights to use the word "Olympic," essentially on the t h e o r y that u n d e r the C O M M E R C E

POWER

Congress may secure rights to TRADEMARKS.2068 U n d e r the C O P Y R I G H T CLAUSE C o n g r e s s

may

provide copyright protection to artists and designers who create and sell original symbols. U n d e r the E S T A B L I S H M E N T CLAUSE the g o v e r n -

ment itself may be precluded from using or displaying certain symbols if they tend to create a RELIGIOUS

ESTABLISHMENT.

SYNDICALISM In the aftermath of World War I, thirty-three states enacted "criminal syndicalism" laws, aimed at those who advocated "crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform." Many of the criminal syndicalism laws were broad, prohibiting not merely direct advocacy but cooperation with syndicalists by joining their organizations, attending their meetings, printing their literature, or even speaking up in favor of acts of criminal syndicalism. Many of these laws survived constitutional attack. When the California Criminal Syndicalism Act was upheld in Whitney v. California, Justice Louis D. Brandeis attacked laws that violated the

497

498

SYNDICALISM CLEAR AND PRESENT D A N G E R test: " F e a r o f se-

rious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. . . . Even advocacy of [lawbreaking], however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on." In 1927 the Court overturned a conviction under the Kansas syndicalism law because the prosecutor failed to show that the defendant had advocated anything illegal.771 In

1937 the Court held that no one may be convicted under a syndicalism law for attending a peaceful meeting of the Communist Party.613 Finally, in 1969, the Court overruled the Whitney case, holding the Ohio criminal syndicalism law unconstitutional and ending a half century of prosecutions against rabble-rousers and purveyors of hateful speech.260 See also: COMMUNISM AND THE PARTY; MARKETPLACE SUBVERSIVE

OF IDEAS;

ADVOCACY.

COMMUNIST SEDITION;

D u r i n g the 1980s many

the noise f r o m U . S . military aircraft consistently

states amended their corporation laws to blunt

flying low over a farm next to the airport made

TAKEOVER

LAWS

the wave o f mergers and acquisitions o f locally in-

farming impossible, the C o u r t held that the gov-

corporated businesses by out-of-state companies.

ernment had effected a taking, even though it

In 1980 the Supreme C o u r t unanimously rejected

laid no claim to the land itself. 4 1 7 Similarly, in a

a Florida law that prohibited out-of-state banks

rare case in which Justice Oliver Wendell Holmes

and

and Louis D . Brandeis were on opposite sides,

bank

holding

companies

from

owning

Florida investment advisory businesses on the

the C o u r t held in 1920, in an opinion by Holmes,

ground that it violated the DORMANT

COM-

that a Pennsylvania law banning subsurface coal

MERCE CLAUSE because it intended to "protect

mining was an unconstitutional taking. T h e min-

[local] citizens from outside c o m p e t i t i o n . " 1 3 2 9 In

ing company sold land to homeowners while

1982 the C o u r t struck down portions o f the

reserving the right to mine below the surface. T h e

Illinois Business Take-over Act, which severely

homeowners agreed not to sue the mining com-

curbed the ability of an outside business to tender

pany for any resulting damages. T o prevent col-

for the stock of Illinois corporations, because the

lapse o f the homes, the state legislature then

burden on INTERSTATE COMMERCE outweighed

barred all mining, depriving the company of the

any local benefits. 6 8 7 But in 1987 it sustained an

fruits of its bargain. T h i s law rendered useless the

Indiana law making the acquisition of voting

company's only property interest. As laudable as

rights dependent on the majority vote o f disin-

the legislature's objective was, such a burden

terested stockholders. T h e C o u r t discerned no

should be placed on society at large, by requiring

discrimination against interstate commerce since

the government to reimburse the c o m p a n y for

the law applies whether or not the purchasers are

the loss o f its rights, rather than on the company

domiciled in Indiana. Since Indiana target com-

alone.1832

panies are regulated solely by the Indiana law,

But not every exercise of the POLICE POWER to

there is no danger o f inconsistent regulations bur-

benefit the public can be regarded as a taking for

dening interstate commerce. 5 6 7

which just compensation must be paid. Almost

See also:

every regulation interferes to some extent with

BALANCING.

someone's property interests, and if every effect must be compensated, harmdoers could charge the

T A K I N G OF P R O P E R T Y

Under its power o f

public

for

refraining

from

causing

injuries.

EMINENT DOMAIN, the government may take a

Therefore, regulations that merely diminish the

person's private property as long as it pays JUST

value of property or interfere with its full enjoy-

COMPENSATION. In constitutional terms, prop-

ment are rarely invalidated.

erty has been "taken" when the government takes

C o u r t upheld a Virginia law requiring the destruc-

For example,

the

over a parcel of or legal interest in land, ousting

tion of a certain type of red cedar tree because it

the owner and claiming title, even if the interest

was diseased and threatened the states apple or-

is quite s m a l l , 1 1 9 or w h e n it destroys the property or severely impairs its utility. For example, when

chards, even though the tree owners were not compensated for their losses. 1 5 4 3 Other impairments to 499

500

T A K I N G OF PROPERTY property held to be constitutional include the destruction of property by military operations during wartime, 1784 ' 382 damage to buildings occupied by federal troops to quell a local riot,1635 a regulation prohibiting further use of a profitable dump site to protect the neighborhood,894 destruction of fishnets to prevent the extinction of certain fisheries,1299 a ban on the sale of eagle feathers already in a commercial inventory,75 and an amendment to a pension law that had adverse financial consequences for a company beyond those called for in private agreements concerning its pension plans.515 In 1987, in another coal mining case, the Court sustained a regulation under which the companies were not barred from mining all their coal. Instead, they were required to leave in place half the coal, or 2 percent of their total supply, under certain structures to prevent them from subsiding. This was not comparable to the deprivation that would result from a taking, and the law was obviously designed to protect the "public interest in health, the environment, and the fiscal integrity of the area."1232 In a decision of particular importance to real estate developers and municipalities, the Court upheld New York City's landmark preservation law, which prohibits owners, without the city's consent, from altering the exterior of buildings designated as landmarks. The law was applied to prevent the construction of a multistory office tower on top of Grand Central Terminal in midtown Manhattan.1819 But when the state renders property valueless, it cannot avoid paying compensation simply by saying that it was trying to stamp out some conduct it has decided is undesirable. A South Carolina law prohibited the prior purchaser of certain beachfront property from constructing single-family homes, even though the adjacent property had such homes. A state court held that the law rendered the land valueless. The state argued that it nevertheless was not bound to pay just compensation because the law was not a taking of property but a regulation of a "noxious use" on the property. The Court held that the state must pay unless it can demonstrate that the regulation against building simply restated some prohibition against a use that was never "part of [the owner's] title to begin with." 1386 In 1982 the Court held, in Nollan v. California Coastal Commission, that when the government authorizes "permanent physical occupation" of private property, just compensation is required— for example, when a municipal ordinance permits a cable television company to install cable in pri-

vately owned rental buildings.1366 The Court also held that a state may not demand that beachfront property owners allow the public to walk across their property in return for permission to build a larger home on the beach unless the state is willing to pay for the intrusion on the property. It said that there was no connection between the purpose to be served by the zoning ordinance— control over structures near the water—and the interests of beachcombers to walk where they please.1706 In 1994, answering a question left open by Nollan, a sharply divided Court held that when a city conditions the approval of a building permit on the dedication of a portion of property to some public purpose, the "required degree of connection between the exactions imposed by the city and the projected impacts of the development" is "rough proportionality."645 In that case, the city planning commission of Tigard, Oregon, required a store owner, as a condition of a permit to expand her store and parking lot, to dedicate a portion of her land for a public greenway along a creek that flowed through the property to minimize flooding and for a public pedestrian and bicycle path to ease traffic congestion in the central business district. The store owner asserted that the town's demands were unrelated to her proposed development and therefore constituted an uncompensated taking of her property. Chief Justice William H. Rehnquist agreed, holding that under the UNCONSTITUTIONAL CONDITIONS doctrine, "the government may not require a person to give up a constitutional right— here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit." Rehnquist agreed that the first part of the test in such cases was met: an "essential nexus" exists between the "legitimate state interest" (here, preventing flooding and reducing traffic congestion) and the permit condition (deeding a portion of the property to establish the greenway and path). But the city flunked the second part of the test: "whether the degree of the exactions demanded by the city's permit conditions" are roughly proportional "to the projected impact of [the owner's] proposed development." The chief justice explained that (1) the city might have required her to maintain privately a portion of her property in a manner that would reduce flooding, but forcing her to give an easement to "recreational visitors trampling along" did not "sufficiently relate" to the city's interest in

T A X A T I O N BY STATES reducing flooding, and (2) the city failed to demonstrate that the store expansion would generate an increase in pedestrian and bicycle traffic sufficient to justify the dedicated path. Although "no precise mathematical calculation is required, . . . the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated." When a regulation is so severe that it constitutes a taking, the state must pay for the loss, even if only temporary. Nor may the state avoid the requirement of just compensation simply by repealing the regulation. 767 See also: ESCHEAT; RENT

CONTROL;

PROPERTY,

RIPENESS;

ular bracket pay at the same higher rate throughout the country. 1247 The federal government may impose an estate tax on community property, even though relatively few states have community property. As long as the tax is the same in states that do have community property, the tax is uniform. 760 In 1983 the Court even upheld an exemption from a windfall profit tax on crude oil limited to oil produced in Alaska. The Court rationalized the seeming lack of uniformity by reasoning that Congress was using "Alaskan oil" as a descriptive term for oil that was costly to extract; an exemption related to excessive costs does not lack uniformity. 1916 See also: DIRECT TAXES.

ABANDONED;

ZONING.

TAX COURT The United States Tax Court is an Article I court, that is, a legislative court. Its judges do not have life tenure but serve for fifteen years. It hears challenges to Internal Revenue Service determinations that individual taxpayers owe additional taxes. Its decisions may be appealed to the U . S . COURT OF APPEALS. See also: ARTICLE I COURTS.

T A X A T I O N , see: a p p o r t i o n m e n t of taxes; c o m m e r c e , foreign; commuter tax; taxes; direct taxes; estate General W e l f a r e Clause; immunity, intergovernmental; Import-Export Clauses; income tax; occupation tax; poll t a x ; p r o p e r t y tax; spending power; standing; taxation, constitut i o n a l l i m i t a t i o n s on; t a x a t i o n by s t a t e s ; t a x a t i o n of i n t e r s t a t e c o m m e r c e ; t a x a t i o n of m o t o r v e h i c l e s ; taxation-regulation distinction; taxation w i t h o u t r e p r e s e n t a t i o n ; t a x i n g p o w e r ; use t a x e s TAXATION, CONSTITUTIONAL

LIMITA-

T I O N S ON Article I-§8[i] says that all indirect federal taxes must be "uniform throughout the United States." The clause does not seem to mean what it says. The Supreme Court has held that "uniformity" does not mean that each person must pay at the same rate. The clause does not bar the progressive income tax; people earning higher incomes may be required to pay at a higher rate, as long as all millionaires in a partic-

T A X A T I O N BY STATES The states have broad but not absolute power to tax residents and nonresidents with property or business interests in the state. Both the DUE PROCESS and EQUAL PROTECTION

CLAUSES

o f the

FOURTEENTH

AMENDMENT bar wholly arbitrary taxes or taxes that arbitrarily discriminate. The courts may not invalidate a tax solely on the grounds that it is "excessive." 2250, 1 8 7 0 A tax may provide benefits for people other than those paying it, so that residents of a town that receives from the state less revenue than it paid out in INCOME TAX is constitutional. 583 Nineteenth-century cases held that a state may not raise a tax to put to private uses. For example, the Court struck down a municipal tax because the proceeds were used to induce a bridge manufacturer to relocate its factory in the city. 1350 But the definition of a "public purpose" has long since been expanded. The Court has repudiated the notion that taxing for such programs as unemployment compensation is private because the money goes to particular individuals. 404 Today it is extremely unlikely that a court would strike down a tax because it was not levied for a public purpose. In 1976, for instance, the Supreme Court upheld a tax on mining companies for payment to employees who contracted black lung disease, including workers who fell ill before the tax law was passed. 2424 Because taxation depends on an infinite variety of factors, tax laws invariably depend on classifications. The Court has been exceedingly generous to the states in upholding classifications, usually through exemptions, claimed to be discriminatory: "[The state] may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the

soi

502

TAXATION

OF FOREIGN

COMMERCE

property of charitable institutions. It may impose different specific taxes upon various trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner." 1 7 8 The Court today is even more lenient than the Court of many decades ago. For example, in 1928 the Court rejected a state policy of taxing taxicabs owned by corporations but not by individuals. 1 9 2 5 The Court overruled that conclusion in 1973. 1 3 1 9 However, the state may not discriminate among corporations solely on the basis of their state of incorporation. States may not, for instance, deny foreign corporations licensed to do business in the state an exemption from certain taxes that similar domestic corporations enjoy. 2 5 2 6 ' 1 5 2 3 Taxpayers have no right to be heard about the fairness of any general tax, fixed in amount or rate, enacted by the state legislature or municipal council, and applicable throughout the state or city. 2388 But if the tax depends on an assessment, the taxpayer has a right at some point to contest the fairness of the assessment. 969 Special assessments by particular taxing boards for particular benefits may not be made without first granting the taxpayer a right to present evidence and arguments. 1 3 6 2 Because it is a general principle that late payments of a tax may be penalized, many states require a taxpayer to assert any constitutional challenges after the tax is paid. In 1990 the Court upheld state power to deny legal relief before a tax is paid, but held that a state must then provide a forum in which the tax may be contested; if the tax turns out to be invalid, the state must not only refrain from collecting it but must refund the amounts unconstitutionally received. 1499 See also: COMMUTER DOM OF THE PRESS; ERNMENTAL; PROPERTY COMMERCE; TAXATION

TAX; ESTATE IMMUNITY,

OCCUPATION TAX;

TAXATION

TAX;

FREE-

INTERGOV-

TAX;

POLL

TAX;

OF

INTERSTATE

USE TAXES. OF

FOREIGN

COMMERCE,

see: c o m m e r c e , f o r e i g n ; e x p o r t s TAXATION

OF

INTERSTATE

COMMERCE

The constitutionality of state taxes that affect INTERSTATE COMMERCE has a long and tangled history; hundreds of cases have reached the Supreme Court since the 1820s. A summary of the diverse holdings is unnecessary as well as im-

possible, for, as the Court said in 1946, "in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts." 8 1 2 In 1873, in the State Freight Tax Case,1950 the Court struck down a Pennsylvania tax assessed on all freight carried through the state. Since TRANSPORTATION is an act of commerce, when the commerce travels from state to state, it is not under state control. This principle held up in varying degrees until well into the twentieth century, but it was riddled with a host of subprinciples and exceptions. For example, a tax on the production of a commodity, even if ultimately destined for interstate shipment, is not a tax on interstate commerce. 1 0 8 3 Goods stopped in transit so that work could be performed on them lost their interstate character, 857 unless they were unavoidably detained through no fault of the shipper. 479 Once goods are offered for sale in the destination state, they may be taxed there, 680 but not if the tax is imposed on goods made out of state when competing home-state goods are not taxed. 2502 For many years the Court applied a special rule in the so-called Drummer Cases, involving goods brought into the state following a contract of sale with an out-of-state vendor. Typically, a company's agent would "drum up" business by traveling throughout his sales territory with samples, take the customer's order, and send the sales contract to the out-of-state seller, which would then ship the purchased goods to the buyer. Such sales were held to be entirely in interstate commerce and could not be taxed. 2 0 0 0 ' 1 1 0 0 The rule of the Drummer Cases was gradually extended, so that even products that had to be assembled in the taxing state were held to be beyond its taxing power. 359 But with one significant exception, the rule was weakened to the vanishing point during the Depression. The true principle, the Court said in 1937, is "equality." The Court sustained a Washington State law that taxed goods imported from other states but exempted all goods on which a like tax had already been paid. This did not burden interstate commerce, said Justice Benjamin N . Cardozo, because "the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates." 1 0 4 2 There is no rational distinction between goods sold after they arrived in the state, which could be taxed, and goods that arrived after having first been sold by contract with an out-of-state company. The Court therefore upheld general taxes

T A X A T I O N OF INTERSTATE C O M M E R C E on purchasers of consumption goods, regardless

Massachusetts

of where the goods originated. 1 4 9 2

Agriculture on all fluid milk sold by dealers,

T h e one significant exception concerns taxa-

Department

of

Food

and

whether in state or out of state, to Massachusetts

tion of purchases from out-of-state mail-order

milk retailers. T h e assessment was then distributed

houses. If the customer orders through catalogues

to Massachusetts dairy farmers to prevent them

by telephone or the mails, and the company main-

from being forced out of business because of de-

tains no offices or agents in the taxing state, the

clining market share brought on largely by lower

out-of-state seller may not be required to collect a

costs of out-of-state dairy farmers. Speaking for a

sales tax. 1 6 3 4 Despite some expectation to the con-

7 - 2 majority, Justice John Paul Stevens held that

trary, in 1992 the Court refused to back away from

the assessment unconstitutionally

this rule, holding that any attempt to collect a tax

against interstate commerce: "Its avowed purpose

under these circumstances constitutes an unconsti-

and its undisputed effect are to enable higher cost

tutional burden on interstate commerce.

1926

If there is a significant difference in the types

discriminates

Massachusetts dairy farmers to compete with lower cost dairy farmers in other States. The 'pre-

of sellers or the methods of distribution of a

mium payments' are effectively a tax which makes

product or service, sales and uses taxes may be

milk produced out of State more expensive.

imposed on one type of out-of-state seller and

Although the tax also applies to milk produced in

not on the other. In 1997 the Court upheld an

Massachusetts, its effect on Massachusetts produc-

Ohio exemption from its general sales and use

ers is entirely (indeed more than) offset by the sub-

taxes on sellers of natural gas for domestic utili-

sidy provided exclusively to Massachusetts dairy

ties regulated by the state who sell natural gas to

farmers. Like an ordinary tariff, the tax is thus ef-

individual consumers.

fectively imposed only on out-of-state prod-

856

In 1959, wearied after decades of intensely

ucts." 2 5 0 7

scrutinizing taxing schemes to determine whether

Fourth and finally, a tax that affects interstate

they had a "direct" or "indirect" impact on inter-

commerce is valid only if the taxing state "has giv-

state commerce, the Court announced a new

en anything for which it can ask return" 1634 (that is,

principle: a nondiscriminatory tax proportioned

provides some benefits to the interstate commerce).

to the actual business done in the state may be as-

On this ground the Court struck down a North

sessed against a company whose business is solely

Carolina "intangibles tax" imposed on that "frac-

in interstate commerce. 1 7 2 1 In 1977 the Court

tion of the value of corporate stock owned by

listed four factors that are essential in determin-

North Carolina residents inversely proportional to

ing the validity of such taxes." 4

the corporations exposure to the State's income tax

First, the activity to be taxed must have at

law." 825 A corporation whose business was entirely

least a minimal connection with the taxing state.

done within the state would pay a corporate in-

A n out-of-state seller has such a connection, for

come tax on all of its income and would therefore

example, if it has retail outlets, property, or a sales

owe no intangibles tax. The more the business of

agent in the state. 1 6 3 9 '

the corporation was done out of state, the lower the

2231

Second, the tax must be apportioned to the business

done

in

the state. T h e

Dormant

percentage of corporate income tax imposed on its earnings and the higher the intangibles tax, so that

Commerce Clause does not dictate any particular

"[s]tock in a corporation doing no business in

formula, as long as it is rational. 9 9 , 5 6 But a state

North Carolina . . . would be taxable on 1 0 0 % of

may tax the proportionate share of the total earn-

its value." The intangibles tax facially discriminated

ings of a company doing business both in and out

against interstate commerce. Nevertheless, the state

of the state only if the company's activities are

insisted that the tax could be upheld because it

"unitary"—that is, if all its business is the same,

compensated for burdens that the interstate busi-

no matter where located. If a company maintains

ness imposed within the state and "is fairly related

separate and independent lines of business, the

to the services provided by the State." T h e state ar-

state may not tax the income of activities that are

gued that the intangibles tax compensates for access

not carried on in the state. 47

that foreign corporations have to the states capital

Third, the tax must not discriminate, meaning

markets. The Court rejected this argument because

that it may not impose a heavier burden on the

the state maintains its capital markets largely

out-of-state goods or activities than on those of

through securities regulation and accompanying

local competitors. 1 6 5 9 , 2 3 9 2 T h e Court struck down

fees, not through corporate income

an assessment levied by the commissioner of the

Moreover, for various reasons, the intangibles tax

taxation.

503

504

T A X A T I O N OF MOTOR V E H I C L E S on interstate commerce was not roughly equivalent to the income tax paid by North Carolina corporations, nor was the activity taxed by the intangibles tax (stock ownership) substantially equivalent to the activity involved in the corporate income tax (income). Following these four general rules, the Court upheld a sales tax imposed in Oklahoma on the price of a bus ticket for travel out of state.1753 Employing the four-part test, Justice David H. Souter held that the tax (i) has a nexus with Oklahoma, the state of purchase and in which the service originates; (2) is fairly apportioned, because if every other state applied such a tax, no sale would ever incur more than a single tax; (3) does not discriminate against out-of-state enterprises or interstate activity generally; and (4) is fairly related to the services provided by the state, since it is assessed on a sale that occurs entirely within the state and is measured by the value of that sale. Similarly, the Court upheld a municipal "head tax" on commercial airline passengers who board flights at airports within a city's jurisdiction.728 Such a levy is reasonable, the Court later said, "if it (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce."1722 See also:

COMMUTER

INCOME

TAX;

MOTOR

VEHICLES;

TAXATION

TAX;

PROPERTY

OF

USE

OCCUPATION TAX;

TAXATION

TAX; OF

TAXES.

MOTOR

VEHICLES

Because motor vehicles pose a constant danger to others on the highways and even to the highways themselves, the states may constitutionally impose a tax on vehicles passing through the state in the course of INTERSTATE COMMERCE, as long as the tax is based on some reasonable measure of their highway use,65 such as truck capacity,468 mileage driven in the state, 1136 and even fair market value of the vehicle.391 See also: TAXATION

TAXATION

OF INTERSTATE

WITHOUT

COMMERCE.

REPRESENTA-

TION The colonists' loathing of taxes imposed by a Parliament whose members they could not choose was a root cause of the American Revolution. A central principle of the Constitution is that there should be no federal taxation that has not been approved by a body of representatives elected by the people. Article I-§7[i] expresses this principle by requiring that all federal

tax laws originate in the House of Representatives. In 1990 the Supreme Court held that a bill creating a "special assessment" for a crime victims fund need not originate in the House because it was not intended to raise revenue for the general treasury. 1613 Either house of Congress may originate a bill that establishes a particular governmental program and that incidentally raises money to support it. The principle of no taxation without representation does not apply to the states and has not prevented them from taxing the income of nonresidents who have no say in the scope or amount of the taxes assessed.2369 But a state may not impose a tax on nonresidents if it does not impose a like tax on residents. In 1975 the Court held that a New Hampshire commuter income tax assessed against out-of-state commuters, with no corresponding income tax on New Hampshire residents, violated the PRIVILEGES AND IMMUNI-

TIES Clause. 117 TAXATION-REGULATION

DISTINCTION

In 1922 the Supreme Court struck down the Child Labor Tax Law, which imposed a tax on the net profits of businesses employing child labor.126 Although disguised as a pure tax measure, the law was really a regulation that secured obedience through the penalty of a tax. Among other things, the Court noted that the tax had to be paid on total net profits even if only one child worked for the employer on one day out of the whole year, regardless of the size of the business. Moreover, the tax was payable only if the employer "knowingly" employed a child. An earnings tax ordinarily does not depend on the taxpayer's state of mind. Knowledge requirements are, however, common to the criminal law. This tax law, the Court ruled, was nothing more than a subterfuge to get around its earlier ruling that Congress could not regulate child labor.984 The Court distinguished the Child Labor Tax Case from cases in which the claim is that a tax is excessive. As long as Congress is empowered to tax a particular thing or activity, the Court said that the tax will not be invalidated because it is so onerous that it effectively discourages or prohibits the activ•ity24i}. 1481,652

In 1935 the Court did void a federal excise tax on conducting a retail liquor business in violation of state laws. The tax was a penalty, not a means of raising revenue.523 But the Court quickly backed away from this approach, upholding a tax on firearms dealers and saying that the justices

TENTH AMENDMENT would not speculate on the motives that led Congress to enact the law, as long as the measure was aimed at producing some revenue.2195 In 1953 the Court upheld a tax on professional gamblers who conduct their operations in violation of state laws. 1202 Among its requirements, the law specified that those subject to the act must register with the Internal Revenue Service. The Court held that the compulsory provisions did not violate the gamblers' right against SELF-INCRIMINATION, a holding overruled in 1968. 1428 See also: TAXING POWER.

TAXING POWER Under Art. I-§8[i] Congress is empowered to "lay and collect taxes, duties, imposts, and excises." This clause was designed to overcome a chief weakness of the Confederation— its inability to raise taxes. The taxing power conferred under this clause is sweeping. Except for a prohibition against taxing goods exported from the states and a mostly moribund requirement that DIRECT TAXES be apportioned according to population, the taxing power "reaches every subject" 1337 and "embraces every conceivable power of taxation."305 Congress's objective in assessing a tax may be other than to raise revenues, but as long as the tax raises revenues, its regulatory effect will almost never be unconstitutional. For example, under the taxing power Congress may enact protective tariffs on goods imported from abroad. 1145 Nevertheless, the Supreme Court has from time to time set certain constitutional limitations. Until the late 1930s the Court rejected congressional attempts to tax the salaries of state officials494 and even the salaries of federal judges,726 but it eventually repudiated this line of cases. 924,1737 The federal government may not tax state interests so as to impair state SOVEREIGNTY, even though the Court rarely finds impairments. For example, it upheld a federal tax on a state's sale of its mineral waters.1674 A century ago the Court objected to federal taxation of the interest on state or municipal bonds,1887 but over the years the Court has relaxed its hold on this principle and in 1988 overruled it outright.2197 Constitutional objections to a federal INCOME TAX were withdrawn when the SIXTEENTH AMENDMENT was ratified in 1913.

TELEVISING cial

OF

TRIALS,

see:

prejudi-

publicity

T E L E V I S I O N , see: a c c e s s t o

broadcast-

ing; b r o a d c a s t i n g , r e g u l a t i o n of; c a b l e television TEMPORARY cess

APPOINTMENT,

see:

re-

appointments

TENNESSEE public

VALLEY

AUTHORITY,

see:

property

TENTH AMENDMENT Sometimes known as the Reserved Powers amendment, this final article of the BILL OF RIGHTS reserves to the states or the people any "powers not delegated to the United States by the Constitution, nor prohibited by it to the states." It was added to quiet fears that the federal government would soon swallow the states. However, the Tenth Amendment does not really mark a line between federal and state powers. Congress rejected a proposal to reserve for the states all powers not expressly delegated to the United States. Had the word "expressly" been added, the Tenth Amendment might have developed a lasting importance. But in McCulloch v. Maryland, Chief Justice John Marshall said that the Constitution delegates more than narrow, expressly stated powers to Congress. It also entrusts to the federal government powers fairly implied from the ENUMERATED POWERS and powers necessary and proper to carry out federal objectives. Marshall's theory was that the Tenth Amendment blocks only those laws designed to invade state concerns and enacted under the pretext of an enumerated federal power.

From roughly the end of the Civil War until the late 1930s, the Supreme Court developed a doctrine that led it to strike down certain laws for unconstitutionally invading the reserved powers of the states. In 1871 the Court held that even though a federal income tax was valid, Congress could not tax the official salaries of state officers,494 a holding not overruled until 1939.924 In 1908, in the Employers' Liability Cases, a sharply divided Court nullified a federal law making all emSee also: cross-references listed under TAXATION. ployers engaged in INTERSTATE COMMERCE liable for negligence to employees, including those T A X P A Y E R ' S SUIT, see: s t a n d i n g carrying out purely intrastate activities. The reserved powers theory reached its apogee in 1918, TEACHING, see: a c a d e m i c freedom; when the Court expressly relied on the Tenth e v o l u t i o n , t e a c h i n g of Amendment to invalidate the federal CHILD

505

506

TENTH

AMENDMENT

LABOR law. It said that Congress was attempting to regulate the conditions of employment, a power reserved to the states,984 even though by prohibiting the shipment in interstate commerce of certain goods Congress was doing nothing more than the Court had previously approved.427 Between 1918 and 1941 the Court struck down several other congressional enactments on the same ground, including taxes on child labor, 126 sale of grain futures, 1062 sale of coal by certain producers, 410 and some agricultural products.337 But the Court began to back away from its reserved powers thesis in 1937, when it upheld the Social Security Act 2248 and the National Labor Relations Act, 1641 noting that Congress could regulate activities that affected interstate commerce, regardless of whether the states might do so in the absence of federal regulations. Finally, in 1941, Chief Justice Harlan Fiske Stone, on behalf of a unanimous Court, said the COMMERCE POWER is "complete in itself" and no state power may be invoked to limit it. The Tenth Amendment, Stone said, "states but a truism that all is retained which has not been surrendered."585 Not until 1976 did the Court again invoke the Tenth Amendment. In National League of Cities v. Usery the Court struck down a federal law regulating the hours and wages of certain state employees. It held that even though the law was within the commerce power, Congress could not impair certain "attributes of sovereignty," a principle that it drew from the Tenth Amendment even though the Tenth Amendment itself was not violated by the law. But in several cases in the early 1980s the Court backed away, 746,7,3 and in 1985 a 5-4 majority overruled Usery, because it could find no satisfactory judicial test for determining "integral operations in areas of traditional governmental functions." 839 In 1992 the Court once again revived the Tenth Amendment, holding that it prohibits Congress from directly ordering the states to carry out federal policy. 1676 The case grew out of federal attempts to deal with the growing problem of low-level radioactive waste disposal. In 1985 Congress established three mechanisms for cajoling the states into reaching a nationwide solution. The first was a set of monetary incentives for individual states to develop disposal sites. The second was a system of rules designed to permit states that act appropriately and quickly to deny access to their disposal sites for out-ofstate wastes. The third was a rule that transferred ownership of wastes to a state itself if by a certain

date it failed to dispose of wastes generated within its borders. Under this "take title" provision, once ownership was transferred, the state became liable for any damages suffered by the previous owner for the state's failure to take possession and dispose of the waste. In New York v. United States the Court upheld the first two provisions; Congress has ample authority under both the commerce power and the SPENDING POWER to cajole states into adopting certain policies. But the Court drew the line at the "take title" provision. "We have always understood," Justice Sandra Day O'Connor said, "that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts." Congress may regulate interstate commerce directly, but it may not "regulate state governments' regulation of interstate commerce." This conclusion follows from the Tenth Amendment, which incorporates the principle that certain powers are "an attribute of state sovereignty" that may not be exercised by Congress. "States are not mere political subdivisions of the United States. . . . Whatever the outer limits of [their] sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program." Congress may create national policies for disposing of radioactive wastes, it may preempt state legislation dealing with this concern, and it may even "hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes." But it may not "simply . . . direct the states to provide for the disposal of the radioactive waste generated within their borders." In 1997 a sharply divided Court followed this principle in striking down provisions of the federal Brady Handgun Violence Prevention Act of 1993, which directed state and local law enforcement officials to check the backgrounds of prospective handgun purchasers before gun dealers could sell them guns. 1910 In essence, the act "purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme." The five-justice majority saw no merit in the distinction between a federal enactment directed to the state itself, as in New York v. United States, and one directed to state officials. Said Justice Antonin Scalia, "To say that the Federal Government cannot control the State, but can

TERRITORIAL control all of its officers, is to say nothing of significance." See also: FEDERALISM; CLAUSE;

NECESSARY

AND

TAXATION-REGULATION

PROPER DISTINC-

TION.

TERM L I M I T A T I O N Disgust with incumbents began to translate in the 1990s into a political movement to impose a limit on the number of terms elected politicians may serve. T h e Constitution's only term limitation is cont a i n e d in the TWENTY-SECOND

AMENDMENT,

barring presidents from running for more than two full terms. Term limits imposed by states on their own offices is presumably constitutional. Many states have long restricted the length of time their governors may serve, and restrictions on the length of legislators' terms seem no different. But the rule for members of Congress is quite different. In 1995, in U.S. Term Limits, Inc. v. Thornton, a sharply divided Court declared unconstitutional state limitations on the number of terms members of Congress can serve, effectively voiding such laws in twenty-three states. The essence of the 5-4 decision was that the qualifications for holding office, listed in Art. I-§i [3] for the House of Representatives and Art. I-§3 [3] for the Senate, are "fixed," and the states may neither add to nor subtract from them. In an opinion by Justice John Paul Stevens the Court rejected, for a number of reasons, the argument that the TENTH AMENDMENT reserves power to the states to control qualifications to serve in Congress. For one thing, the power to set qualifications arises from the Constitution itself and hence could not have been part of the states' "original powers." For another, the Framers intended to divest the states of such power, placing within the Constitution the exclusive source of qualifications—a conclusion drawn from the unanimity of judicial and other commentary on the subject, the structure and text of the Constitution itself, the records of the CONS T I T U T I O N A L C O N V E N T I O N OF 1 7 8 7 ,

the d e -

bates over ratification, and state practice immediately after ratification. The Court noted that whereas the A R T I C L E S

OF

CONFEDERATION

set term limits, the Framers rejected a proposal to include a provision that would have required "rotation" in the House of Representatives. Moreover, it is a "fundamental principle of our representative democracy . . . 'that the people should choose whom they please to govern themselves.'" If the

COURTS

states could separately set qualifications, they would create a "patchwork" inconsistent with the Framers' vision of a uniform national legislature representing the whole people of the United States. Thornton arose from an amendment to the Arkansas constitution that excluded from the ballot the name of any person who had been elected to three or more terms in the House of Representatives or two or more terms in the Senate. The state argued that this provision did not in fact set qualifications for members but merely regulated candidates' ACCESS TO BALLOT, allowing them to run as write-in candidates and to serve if elected. The Court rejected the argument on the ground that it was but an indirect attempt to evade the principle that the states may not supersede or modify the qualifications for Congressional service contained in the Constitution. See

also:

FEDERALISM;

QUALIFICATIONS

FOR

OFFICE.

TERM OF C O U R T The Supreme Court's term begins on the first Monday in October and runs through the following June. Under extraordinary circumstances the Court may reconvene to hold ORAL ARGUMENT and render decisions between July and October. United States v. Nixon, the decision requiring President Richard M . Nixon to turn over the WATERGATE tapes in a federal prosecution, was heard and decided in July 1974, after the end of the Court's 1973-74 term. T h e Court's term is set by Congress, but not since it delayed the decision in MARBURY V. MADISON by postponing the term for a year has Congress manipulated the Supreme Court's term for political purposes. Requests for a STAY OF EXECUTION can be made to individual justices at any time. See also: SUPREME TERM

OF

members

COURT.

OFFICE,

see:

Congress,

of; p r e s i d e n t , e l e c t i o n

t e r m of; t e r m

and

limitation

T E R R I T O R I A L C O U R T S Territorial courts are ARTICLE I COURTS, or legislative courts. They operate in Guam, the Virgin Islands, and other U . S . TERRITORIES. The constitutionality of territorial courts was resolved in 1828, when Chief Justice John Marshall explained that under its Art. IV§3(2] authority to "make all needful rules and regulations" for U.S. territories, Congress could create

507

508

TERRITORIAL

EXPANSION

non—ARTICLE III COURTS to hear cases arising in them.60 Because judges of territorial courts need not be given life tenure, Marshall's decision enabled Congress to phase out the courts when the territories gained statehood and replaced them with their own court systems. TERRITORIAL

EXPANSION,

see:

Loui-

siana Purchase, constitutionality territories

of;

TERRITORIES Before the Constitution, in the early 1780s, the Continental Congress embarked on an ambitious plan to obtain for the United States as a whole the vast western lands claimed by several states. Congress's plan was to ready this territory for statehood; the Constitution carried it forward in Art. IV-§3[i], permitting new states to join the Union. Until U.S. territories become states, however, Congress has complete legislative authority over them under Art. IV-§3[2]. 2156 Congress may exercise its authority directly, just as though it were a state legislature, or it may delegate its authority to a territorial legislature.2461 Although the Constitution does not explicitly empower the federal government to acquire new territory, the LOUISIANA PURCHASE settled all political doubts. Chief Justice John Marshall many years later observed that territorial acquisition was undoubtedly constitutional under the treaty power and the WAR POWER.60 When in the late nineteenth century the United States began to acquire overseas territories that were not likely to become states, the question arose whether Congress was bound by constitutional restrictions in legislation affecting them. In a series of decisions dubbed the Insular Cases,658'602'649'1017 the Court held in 1901 that Congress may declare whether it wishes to "incorporate" a particular territory into the United States. If it does, the Constitution applies; otherwise, it does not. Incorporated territories are those that Congress intends someday to make states. The United States presently has no incorporated territories. Territories may also be organized or unorganized; that is, Congress may impose direct federal rule or permit territorial inhabitants to exercise a large measure of selfrule. Such is the case in PUERTO RICO, which Congress has declared to be a "commonwealth" of the United States—an unincorporated, organized territory that shares many of the attributes of statehood except that it does not send voting representatives to Congress.

See also: FOLLOWING STATEHOOD;

THE FLAG;

TERRITORIAL

STATES

AND

COURTS.

T E S T C A S E A test case is a dispute arranged with an eye to litigating specific issues. Unlike the situation in a COLLUSIVE SUIT, the parties in a legitimate test case have adverse interests. For example, Dred Scott v. Sandford, the famous case testing the limits of slavery before the Civil War, was a "rigged" case. The parties arranged the facts in a certain way to present the constitutional issue to the courts. Nevertheless, the legal claims of each party were adverse; had the Court ruled Dred Scott free, his owner could not have claimed that they had a side agreement not to be bound by the court ruling. Many wellknown constitutional decisions in the Supreme Court have resulted from carefully managed test cases, including the Supreme Court's first decision overturning a state law, in 1810 in Fletcher v. Peck; the invalidation of the federal CHILD LABOR law, in 1918 in Hammer v. Dagenhart; the upholding of the Social Security Act in 1937, in National Labor Relations Board v. Jones & Laughlin Steel Corp.; and the great school desegregation case in 1954, BROWN V. BOARD OF EDUCATION. The major business of several national public policy groups, including the AMERICAN

CIVIL LIBERTIES

UNION

and

the

NAACP Legal Defense Fund, has been to develop, sponsor, and litigate test cases. See also: CASES OR CONTROVERSIES; BILITY;

JUSTICIA-

RIPENESS.

TEST OATH After the Civil War, Congress and several states enacted laws conditioning the practice of certain professions on the taking of an oath that the practitioner had not acted in any way against the United States during the war. The Supreme Court struck down each such test oath as a BILL OF A T T A I N D E R . 8 4 2 '

569

See also: LOYALTY OATH; OATH OF OFFICE.

T E S T S , see: b a l a n c i n g ; c l e a r a n d

pre-

sent danger; c o m m e r c i a l speech; Dormant C o m m e r c e Clause; Lemon test; m i n i m u m contact test; strict scrutiny; r a t i o n a l basis or r e l a t i o n ship test; undue b u r d e n TESTIFY,

RIGHT

TO

The Court

unani-

mously held that the federal sentencing guide-

THREE-FIFTHS RULE lines do not unconstitutionally abridge a defendant's right to testify on her own behalf merely because they provide for an enhanced sentence if the defendant commits perjury.671 The defendant in a federal drug trial falsely denied any involvement in the purchase of drugs; on her conviction of the charges, the judge increased her sentencing level. The defendant asserted that permitting such an increase would interfere with the right to testify because the court might reflexively enhance a sentence whenever a defendant takes the stand and is later found guilty. The Court responded that this was not a realistic concern since the trial court "must make findings to support all the elements of a perjury violation in the specific case" whenever a defendant challenges a perjurybased sentence enhancement. Moreover, backing the requirement of sworn testimony with the threat of punishment for perjury "is as much a protection for the accused as it is a threat. All testimony, from third party witnesses and the accused, has greater value because of the witness' oath and the obligations or penalties attendant to it." See also:

PERJURED

TESTIMONIAL

TESTIMONY.

C O M P U L S I O N , see: s e l f -

incrimination

laws permitting and enforcing the subjugation of one human being by another, except for punishment of crime. The amendment also gave Congress the power to enforce its terms, the first addition to congressional powers since the original Constitution was ratified in 1787. Congress quickly passed the Civil Rights Act of 1866, extending citizenship to the former slaves and prohibiting RACIAL DISCRIMINATION of the kind embodied

in the burgeoning

BLACK

CODES.

Doubts that discriminatory acts amounted to slavery or involuntary servitude prompted the Reconstruction Congress to propose the FOURTEENTH and FIFTEENTH AMENDMENTS, also ex-

tending enforcement power to Congress. But the fervor of the late 1860s cooled by the time the constitutional issues reached the Supreme Court in the 1870s. Against a furious dissent by the first Justice John Marshall Harlan, the Court held in 1883, in the CIVIL RIGHTS CASES, that the federal government had no power under the Thirteenth or the Fourteenth Amendment to bar private acts of discrimination in PUBLIC

ACCOMMODATIONS.

Harlan

said

that racial animosities translated into discriminatory acts were precisely the BADGES OF SLAVERY AND SERVITUDE that the amendment was intended to prevent. In PLESSY V. FERGUSON in

1896 the Court saw no Thirteenth Amendment obstacle to a SEPARATE BUT EQUAL railroad car

T E X T B O O K S , see: s c h o o l s , r e l i g i o n

in

THIRD AMENDMENT The Third Amendment bars the QUARTERING OF SOLDIERS except during wartime when necessary for military reasons. The British government directed troops to take over the colonists' homes as necessary so that they would be on hand to enforce the tax laws. Quartering of soldiers was one of the colonists' many justifications in the DECLARATION OF INDEPENDENCE for their rebellion against the Crown. The amendment has apparently never been violated; no cases have ever reached the Supreme Court. THIRTEENTH

AMENDMENT

The

Thir-

teenth Amendment, proposed by Congress on January 31,1865, and ratified on December 6,1865, abolished SLAVERY and INVOLUNTARY

law. Legally enforced segregation of the races was held not to be a badge of slavery. In 1906 the Court struck down a federal law prohibiting conspiracies to deprive people of their employment on racial grounds. 1069 This crabbed reading of the Thirteenth Amendment lasted until 1968. In that year the Court overruled these earlier cases and upheld a provision in the century-old Civil Rights Act of 1866 that outlaws racial discrimination in the sale of property." 87 The Thirteenth Amendment is not limited to human subjugation, the Court said. It embraces also the incidents of slavery, especially including civil disabilities and incapacities founded on race. No less important, the Court conceded to Congress the authority to determine what constitutes a "relic of slavery" and to eliminate any such injustice.

SERVI-

TUDE throughout the country. The Thirteenth Amendment is self-executing, requiring no supporting legislation from Congress. It is the only amendment to act directly on the people and the states, prohibiting private acts of peonage as well as

See also: CITIZENS AND CITIZENSHIP; SEGREGATION AND INTEGRATION;

STATE

ACTION.

T H R E E - F I F T H S RULE In deciding how many seats each state was entitled to in Congress and

509

510

TIE VOTE what proportion of taxation could be assessed against the residents of each state, the Framers had to face up to how to categorize slaves. If they were "persons," they should count. If they were merely property, they should not. In arguing over tax issues in the Continental Congress, the southern states refused to concede that slaves were people, both to preserve their legal right to hold slaves and to keep their taxes down. Northern states sought full enumeration to make the tax burden square with reality. Slave-holding states objected that since property such as land, sheep, cattle, and horses did not count, why should their other property—slaves? Benjamin Franklin retorted, "Sheep will never make any insurrections."* In 1783 a committee of the Continental Congress proposed as a compromise that slaves be counted as three-fifths of a free person. The number, which became known as the "federal number," worked itself into Art. I-§2[3] four years later. "All other persons"—slaves—were to count as three-fifths of a free person for purposes of apportioning representation in Congress and direct federal taxation. "Free persons," including indentured servants, counted as whole persons. "Indians not taxed" were not counted at all. The number became moot with the ratification of the THIRTEENTH AMENDMENT.

TIE VOTE Under Art. I-§3U], the vice president is president of the Senate but has power to vote only to break a tie. There is no constitutional provision for tie votes in the House of Representatives; the House may provide by rule for that rare occurrence. By the Supreme Court's own rule, when the justices are evenly split the result is said to be an AFFIRMANCE BY AN EQUALLY D I V I D E D SUPREME COURT,

and

the decision of the lower court stands. TIME

OF

ADJOURNMENT

Under

Art.

I-§5[4] either house of Congress may adjourn for up to three days without the consent of the other house. Beyond three days, both houses must agree on to the same adjournment. If they do not agree on when or how long to adjourn, Art. II-§3 gives the president the extraordinary power to adjourn the houses "to such time as he shall think proper." This power has never been exercised. See also: RECESS OF

TIME, TIONS

PLACE, AND

CONGRESS.

MANNER

RESTRIC-

T h e p u b l i c has a FIRST A M E N D M E N T

right to gather in public places such as city streets, parks, and sidewalks to promote their views. But obviously the right cannot be absolute. Thousands of protesters do not have an unfettered right to march down Main Street whenever they please, or to erect tents in a public park to facilitate an extended stay there, or to cluster on a person's doorstep. To preserve the public peace and maintain the public spaces for their primary uses, the Supreme Court has upheld "time, place, and manner" restrictions on the right to assemble and broadcast messages, as long as the regulations are not aimed at the content of a message but reasonably control the manner in which it is delivered. 1696 Of course, what is reasonable necessarily depends on the circumstances in each case. Some types of regulations are void because they are unreasonable—for example, PERMIT SYSTEMS that give municipal authorities unbridled discretion to decide whether or not to let anyone gather at all. Other types of regulations depend on where they are employed. A ban on loud noises obviously functions differently when the speakers are attending a public carnival than when they are sitting in a public library. In a string of disparate cases over the years, the contours of the power to regulate free speech activities in the PUBLIC FORUM have emerged. The desire to avoid littering the city streets does not justify a flat ban on the distribution of leaflets and handbills, since the city may always penalize the litterers directly. 2099 But a ban on amplified sound trucks driving through the city streets is constitutional. 1 2 5 6 In 1988 the Court upheld an absolute ban on "focused picketing"—the targeting of a particular person's home for concentrated demonstrations. The Court stressed the various alternatives open to the picketers to propagate their message. 816 The Court also upheld a regulation curtailing the distribution at the Minnesota State Fair of any wares, including printed literature, except from rented booths on the fairgrounds. 1028 The International Society for Krishna Consciousness challenged the regulation on the ground that by limiting its ability to spread its message, the state was interfering with its FREEDOM OF SPEECH. But, said Justice Byron R. White, the First Amendment "does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." The restriction was upheld because it was contentneutral (it applied to everyone at the fair), served

TRADEMARKS

a significant government interest (to prevent dis-

T O P L E S S D A N C I N G , see: n u d i t y

order in a crowded and confined space), and left open "ample alternative channels for c o m m u n i -

T O T A L I N C O R P O R A T I O N , see: i n c o r p o -

cation" (the society's members could mingle with

ration

doctrine

the crowd and could hand out whatever they liked f r o m their booth). For similar reasons, the

T O W N S , see: p o l i t i c a l

subdivisions

C o u r t sustained a Los Angeles ordinance barring the posting of signs on public property, against

TRADE

the challenge of a political candidate w h o wished

sional trade names, aimed at eliminating decep-

NAMES

State regulation o f profes-

to affix campaign signs to public utility poles. 4 6 5

tion of the public, is consistent with the FIRST

As long as the time, place, or manner restriction

AMENDMENT. 8 1 5

is "narrowly tailored" to achieve the government's content-neutral interests, the C o u r t said in 1989,

See also: PROFESSIONALS, ADVERTISING BY.

the regulation need not be the least restrictive means o f doing so. 2 4 7 0

TRADE

See also: DEMONSTRATORS AND TIONS;

LESS RESTRICTIVE

MEANS;

SOLICITATION;

DEMONSTRA-

ALTERNATIVE

SYMBOLIC

OR

SPEECH;

VAGUENESS. TITLE

OF

NOBILITY

Article I-§9[8] pro-

ring titles o f nobility, such as knighthood. T h e clause stands today as a symbolic recognition that there are to be no degrees of citizenship or legal privilege among the people. T h e clause also prohibits any federal officeholder, without the consent o f Congress, f r o m accepting a title from a foreign government. T h i s clause does not apply to state officeholders or people not holding government office. A n amendment in 1812 proposed by Congress w o u l d have barred every citizen from accepting a title, but the states failed to rati f y it.

under

the

is patentable under the federal Patent Act but that, for some reason, was not patented. B u t the Court

allowed an exception

for a

chemical process that its inventor, in the interest of keeping it secret, had not patented. A c o m petitor discovered the inventor's trade secret f r o m former employees, w h o had agreed in writing not to reveal it. T h e C o u r t held that state trade secret laws are compatible with the Patent Act because they serve different interests. Failure to enforce contracts not to divulge trade secrets might lead to a reduction o f useful research, at least in areas in which certain industrial processes are doubtfully p a t e n t a b l e . 1 2 2 9 T h e C o u r t also upheld a state law that makes enforceable a licensee's royalty payment to an inventor, even if the invention ultimately failed to gain a patent, since the law neither induced anyone to refrain

See also; OFFICE OF HONOR, TRUST, OR PROFIT. TONKIN

Ordinarily,

legal protection to an invention or process that

Supreme

hibits the United States government from confer-

SECRETS

PREEMPTION doctrine, the states may not grant

GULF

of Tonkin

R E S O L U T I O N , see:

Gulf

Resolution

from

seeking

to withdraw

a patent

nor

caused

a useful idea f r o m the

anyone public

domain.97 See also: PATENT CLAUSE; WRITINGS AND DISCOVERIES.

TONNAGE

DUTIES

A

tonnage duty is a

charge on the privilege o f bringing a ship into port or keeping it there. Article I-§io[3] prohibits the states from charging any tonnage duties, regardless o f whether the charge is measured by the actual weight o f the ship. 4 7 5 But a charge for rendering services, such as piloting and towing, is not a tonnage duty, ship's t o n n a g e .

1786

529

even if measured by the

Harbor fees may be charged

only for services actually rendered;

2244

an annual

tax on boats measured by their tonnage is unconstitutional. 2 2 4 2 See also: IMPORT-EXPORT CLAUSES.

TRADEMARKS

In 1879 the Supreme

held in the Trade-Mark

Court

Cases that commercial

trademarks are not constitutionally entitled to patent protection since they are not WRITINGS AND DISCOVERIES and do not "depend upon novelty, invention, discovery, or any work of the brain." T h i s astonishing conclusion had no practical long-term consequence, since Congress has obvious power under the COMMERCE CLAUSE to enact federal laws protecting and regulating the use of trademarks used in INTERSTATE COMMERCE, as it has done in the Lanham Act. In

s11

512

TRADITION 1987 the Court upheld an act of Congress granting the U.S. Olympic Committee the exclusive use of the word "Olympic," in a challenge by a group wishing to stage the "Gay Olympic Games."2068 TRADITION, see: level of TRANSACTION nity f r o m

generality

IMMUNITY,

see:

immu-

prosecution

TRANSCRIPTS,

RIGHT

TO

In

1956

the

Supreme Court held on EQUAL PROTECTION CLAUSE grounds that the states may not refuse to provide an appeal of a criminal conviction merely because the defendant cannot afford to pay for the necessary trial transcript.946 Nor may the states refuse to pay for transcripts absent a trial judge's certification that "justice will thereby be promoted"718 or that the claim of errors is not "frivolous,"662 or if a public defender attests that the appeal is in vain. 1283 Indigent defendants are entitled to free transcripts in certain HABEAS 1364 CORPUS proceedings. The Court also overturned a New Jersey law requiring prisoners who are unsuccessful in their appeals to pay back the cost of transcripts provided them because the law was unequal: it did not require persons who received fines or suspended sentences in lieu of jail to reimburse the state if they lost their appeals.1993 A parent may not be denied the right to appeal an order terminating her parental rights because she cannot afford the cost of preparing records, including transcripts.1402 However, the right to a free transcript is not absolute. In a habeas corpus hearing, unlike in direct appeals, the right may be conditioned on the judges certification that the appeal is not frivolous and that the transcript is necessary to decide the case.1404 The Court also upheld North Carolina's refusal to provide a free trial transcript following a mistrial in a small town when the defendant was retried before the same judge, and the court reporter in the first trial was available to read back his notes well in advance of the new trial, thus permitting the defendant's lawyer to prepare for it.279 See also:

WEALTH CLASSIFICATION

AND

DIS-

CRIMINATION.

TRANSPORTATION In Gibbons v. Ogden in 1824, Chief Justice John Marshall held that INTERSTATE COMMERCE is not limited to buying

and selling but includes navigation and transportation from state to state. Because various forms of transport are subject to overlapping state and federal powers of regulation, the Supreme Court since the late nineteenth century has issued scores of rulings in cases pitting state safety regulations1041 against the federal interest in the unimpeded flow of interstate commerce.191 In some of the early cases, the Court sustained state regulations that seem dubious even by the DORMANT COMMERCE CLAUSE doctrines of the times. For example, Georgia was permitted to require engineers serving entirely on interstate railroads to take a licensing examination.2170 The Court sustained another Georgia law commanding railroads to construct posts near every railroad crossing and trains to blow their whistles and slow down as they passed the posts.2209 The impact on interstate commerce, the Court said, was indirect. The Court soon reversed itself when an interstate railroad managed to demonstrate that abiding by the law would turn a four-hour train ride into a ten-hour train ride from Atlanta to the South Carolina border. The facts plainly demonstrated a direct effect. By the 1920s the Court was moving away from the "direct-indirect" analysis, looking instead at whether the purpose of the law was safety or interference with competition. When the state of Washington denied a carrier a license to operate between Seattle and Portland because there was sufficient competition, the Court ordered the license to be issued, since this was parochial protectionism.310 The Court sustained a similar refusal by Ohio to license a carrier between Cleveland and Flint, Michigan, because the roads were so congested that additional traffic would create a safety hazard.256 These cases turned on how the laws purpose was characterized, but the Court soon turned to a very different BALANCING approach. In 1938 the Court sustained a South Carolina law limiting the size of trucks on its highways, even though nearly 90 percent of all trucks in the United States exceeded the maximum size. The Court was willing to grant the state considerable leeway in its judgment about safety hazards.2201 But by 1945 the Court's perception was changing. It overturned an Arizona law enacted in 1912 limiting the length of trains passing through the state. The Court noted that enforcement of the old law was a serious encumbrance to interstate commerce, since the trains pulling into Arizona had to stop and remove c«s. Moreover, the evi-

TREASON dence suggested that the law might promote rather than reduce accidents, since whatever safety was achieved through the use of smaller trains was offset by the greater number of trains passing through the state. 2206 To preserve an "efficient and economical" national railway system, Congress alone could prescribe necessary uniform standards. The states must let the trains roll. In 1959 the Court underscored this approach in striking down an Illinois law requiring interstate trucks to use a certain kind of mudguard, the use of which conflicted with regulations of forty-five other states. The effect of the law was to force truckers to abandon their vehicles and shift their cargoes when they reached the Illinois border. 191 The Court has continued to take a dim view of such state regulations. In 1981 it voided an Iowa law limiting freight truck length. 1207 The evidence of the state's safety interest was slight, but the impact on interstate commerce great; the purpose—at least in part—was to keep some traffic out of the state. Laurence H. Tribe says that this case "stands for the rule that under the commerce clause a state may not reduce the risks posed to its own citizens by the stream of commerce by diverting that stream out-of-state, thereby increasing the hazards to non-residents."* Eventually, Congress preempted the entire field by expressly authorizing larger trucks on all national highways. See abo: NAVIGATION AND NAVIGABILITY; EMPTION;

TAXATION OF MOTOR

PRE-

VEHICLES.

TRAVEL, RIGHT TO The right to travel has long had constitutional protection, even though no specific clause says it does. In the 1860s the Supreme Court declared that the PRIVILEGES AND IMMUNITIES clause of Art. IV guarantees everyone the right to come and go from state to state 1813 and that there is an inherent constitutional right to travel to the nations capital. 557 The Court followed these precedents in 1941 when it struck down California's "anti-Okie" law, forbidding anyone from bringing a nonresident into the state knowing that the other person was indigent. 694 The Court majority said that the COMMERCE CLAUSE bars any one state from attempting to "isolate itself from difficulties" common to all the states. The Court has adhered to the principle of interstate migration in several recent cases, striking down various DURATIONAL RESIDENCY REQUIREMENTS on the ground that imposing wait-

ing periods on newcomers for the receipt of benefits impairs the right to travel. In essence these cases stand largely for the proposition that the states may not erect barriers to migration. However, they do not bestow an absolute right on anyone to travel wherever he or she wishes under any circumstances. The Court upheld a State Department restriction on travel to Cuba during the early 1960s; 2629 and in 1981, distinguishing the right to travel in America from a lesser right to travel abroad, it upheld the revocation of the passport of a former Central Intelligence Agency operative who was barnstorming through Europe exposing his former colleagues.972 But the Court struck down a State Department regulation permitting the revocation of a passport if the bearer was a member of a group that he knew to be a "Communist organization" o n the ATTORNEY G E N E R A L ' S L I S T . 8 0 See also: KU KLUX KLAN ACT.

TREASON Article III-§3[i] confines the crime of treason to "levying war" against the United States or to "adhering to the enemies, giving them aid and comfort." No one accused of treason may be convicted unless two witnesses testify to the same overt act or the ACCUSED confesses in open court. This extraordinary concern for limiting the reach of treason prosecutions, when the Constitution is silent about other crimes, is the fruit of the Framers' fear of the centuries-old abuse of the law of treason by British authorities. Under the English Statute of Treason, a person could be executed for "compass [ing] or imagining] the death of our lord the King." This came to be known as "constructive treason" because a case could be constructed entirely by pointing to writings that merely questioned the king's authority rather than to actual traitorous acts intended to overthrow the king or the government. The Treason Clause was designed to prevent U.S. officials from prosecuting political disagreements as disloyalties to the nation. From the earliest days, the Supreme Court has been guided by the desire to keep treason prosecutions within narrow bounds. In 1807, in a case growing out of some mischief by Aaron Burr, Chief Justice John Marshall said that "levying war" did not mean the mere laying of plans to go to war "but the actual assembling of men for the treasonable purpose." 229 In 1945 the meaning of the second part of the clause came before the Court, which concluded that "adhering to"

513

514

TREASURY means that the accused has an intent to aid the enemy. Thus, merely criticizing the government, even out of sympathy for the enemy, is not treason if the speaker did not intend to betray the nation. 555 Moreover, the two-witness requirement means that both witnesses must testify to an overt act that amounts to treason, not merely to circumstantial evidence. However, two years later the Court muddled the issue in upholding a conviction of treason for the first time. The witnesses testified that the defendant had sheltered an enemy, his own son, and helped him purchase an automobile and obtain a job in a defense factory. In themselves, these were innocent acts, but the Court held that they gave aid and comfort to the enemy because other facts showed that the father knew his son was engaged in treasonous acts. 101 '' The Treason Clause does not bar Congress from providing punishment for acts dangerous to the national security that fall short of treason, but it does stand in the way of prosecutions for hostile thoughts, words, and even plans—so long as they remain on the drawing board.229 See abo: ATTAINDER OF TREASON;

CORRUPTION

OF BLOOD; OVERT ACTS. TREASURY

T h e T r e a s u r y is the

EXECUTIVE

BRANCH department that holds the funds of the United States. Under Art. I-§9[y] no disbursement may be made from the Treasury unless it has been authorized by Congress, either specifically or as part of a general program. 1740 See abo: APPROPRIATIONS TREATIES

AND

MADE BY LAW.

TREATY

POWER

Under

Art. II-§2[2] the president may negotiate treaties with foreign governments. For a treaty to have legal effect, the Senate must consent by a twothirds vote. Final approval depends on the president, who may still decline to ratify. 1573 Once ratified, treaties are the law of the land, and under the SUPREMACY CLAUSE any contrary state laws are preempted.2473 The treaty power is quite broad, permitting the federal government to accomplish what Congress might not have constitutional authority to do directly. In 1920, in Missouri v. Holland, the Supreme Court upheld a federal migratory bird law, enacted under the authority of a treaty negotiated with Canada. At that time the TENTH AMENDMENT was thought to bar Congress from regulating the hunting season for birds within the states, but Justice Oliver Wendell Holmes said that the Tenth Amendment

does not limit the treaty power. The bird treaty was aimed at preserving a valuable species, a result quite beyond the power of the states to achieve. Since the treaty was valid, so was any legislation enacted to implement it. Thirty years later, Missouri v. Holland alarmed isolationists who feared that if the United States signed the U.N. Charter and other international agreements, many constitutional limitations might be overridden. In the early 1950s Congress toyed with the so-called Bricker amendment, which would have denied any effect to a treaty that conflicts with the Constitution itself. The amendment failed by one vote in the Senate. Later, in 1957, the Supreme Court ruled in Reid v. Covert that "no agreement with a foreign nation can confer power on Congress, or on any other branch of government, which is free from the restraints of the Constitution." Treaties are not necessarily self-executing. They may depend for their legal effect on implementing legislation, and a long-established tradition, never denied by the Court, allows Congress to decide whether or not to appropriate funds or pass any other laws necessary to fulfill treaty obligations.803 In giving its consent, the Senate may attach conditions or reservations to the treaty. The president may decline to ratify in the face of the Senate's reservations. But if the president does ratify the treaty, the Senate's limitations bind the United States, though not the other signatories.805 Moreover, Congress has absolute constitutional discretion to abrogate a treaty simply by enacting a later law that conflicts with the treaty requirements.1023, 1 2 6 7 Conversely, a selfexecuting treaty supersedes any conflicting earlier federal or state laws. 803 ' 528 The power to negotiate treaties resides exclusively with the president.574 The president may also have the power to abrogate treaties, but the Court has never squarely decided this issue. In 1979 Senator Barry Goldwater sued President Jimmy Carter, asserting that the president had no power to withdraw DIPLOMATIC RECOGNITION of the Republic of China (Taiwan) in order to recognize the People's Republic of China (Beijing). The Court refused to decide the merits of the controversy.900 Four justices said that the case presented a nonjusticiable political question. A crucial fifth vote for dismissing Goldwater's complaint was based on the view that the case was not ripe for review. As a result, the president's decision to recognize mainland China was left intact. But whether it resides exclusively with

T R I A L , FAIRNESS OF Congress or the president or is shared by both,

if the law had been in force at the time of the ar-

the power to determine that a treaty has lapsed is

rest. 9 8 3

not for the courts.

438

See also: EXECUTIVE AGREEMENT; INDIAN

TRIBES;

INDIANS

JUSTICIABILITY;

QUESTION DOCTRINE;

AND

See also: PICKETING;

SEGREGATION

GRATION; SHOPPING

CENTERS,

AND

INTE-

ACCESS TO.

POLITICAL

PREEMPTION;

RIPENESS.

TRIAL,

COMPETENCE

TO

STAND

It is

unconstitutional to prosecute a person w h o is TREATMENT,

R I G H T TO

T h e r e is no gen-

eral constitutional right to health care. O n l y in one restricted setting has the Supreme C o u r t gingerly announced a limited right to treatment. W h e n a mentally handicapped person has been committed to an institution, the C o u r t has tentatively recognized a right to "minimally adequate or reasonable training to ensure safety and freed o m f r o m undue restraint." 2 6 2 0 See also: CIVIL COMMITMENT;

mentally incompetent to stand trial. A defendant is competent if he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against h i m . " 8 9 0 T h e state may impose the burden of proving

incompetence

on the defen-

d a n t , 1 5 0 9 but the state may not demand that he offer "clear and convincing evidence" of incompetence; he meets his burden by showing incom-

MENTAL

RETAR-

petence under the lesser "preponderance of the evidence" standard. " [ T ] h e defendant's funda-

DATION.

mental right to be tried only while competent TRESPASS

A trespass is an unauthorized in-

outweighs the State's interest in the efficient op-

trusion o n t o a person's property. Trespass laws

eration o f its criminal justice system." T h e risk of

ordinarily excite n o constitutional

attention.

an erroneous decision is higher if the defendant is

B u t they occasionally pose constitutional d i f f i -

put to the higher standard and "the consequences

culties w h e n used to infringe a FIRST AMEND-

[for the defendant] . . . are dire," whereas the con-

MENT

doc-

sequences to the state if the defendant is merely

trine, a municipality m a y not constitutionally

malingering are " m o d e s t . " 5 3 3 At most the state

use trespass laws against otherwise law-abiding

must tolerate a delay; it can always detain the de-

right. U n d e r the PUBLIC

FORUM

people gathered in the public streets or parks. In

fendant to detect malingering or to determine at

one rare case, the C o u r t reversed a trespass con-

a later date whether he has regained sufficient

viction against a religious proselytizer f o r hand-

competence to stand trial.

ing out leaflets in a town o w n e d entirely by private corporation.

Since

the corporation

was

p e r f o r m i n g a PUBLIC FUNCTION, p a s s e r s b y h a d

See also: PROOF, BURDEN OF; PROOF, STANDARD OF; RIGHTS,

WAIVER OF.

a free speech right to be t h e r e . 1 4 3 4 T h e r e is no such right to distribute literature or to picket in

T R I A L , F A I R N E S S OF

a private shopping m a l l , 1 0 9 2 but the states may

cific guarantees in the BILL OF RIGHTS governing

enact laws requiring private s h o p p i n g centers to

the P R O C E D U R A L

let people circulate political petitions or p a m -

FENDANTS, the C o u r t has said repeatedly that

phlets, in effect repealing trespass laws to that

DUE PROCESS requires courts to observe "that

extent.1915

RIGHTS

Quite aside from speOF C R I M I N A L

DE-

fundamental fairness essential to the very concept

A troublesome application of trespass laws arose in the 1960s when civil rights protesters

o f j u s t i c e . " 1 3 4 7 W h a t is fair depends always on the circumstances. 2 ' 8 9 O n e absolute requirement is

staged sit-ins in private restaurants and other

that the trial judge be impartial and disinterested.

PUBLIC

T h e C o u r t struck down the practice of an O h i o

ACCOMMODATIONS.

The

Court

re-

versed a number of trespass convictions on narrow grounds, in general suggesting that official policies o f segregation lay behind the owners' exclusionary practices, including the use o f trespass laws to enforce those p o l i c i e s . 1 8 5 1 ,

1360, 174

The

issue became m o o t after the enactment o f the Civil Rights Act o f 1964. T h e C o u r t held that the act required prosecutions to be dismissed against those w h o would have been entitled to be served

town in which the mayor served as the justice o f the peace and pocketed part o f the fines assessed against defendants he convicted in

court. 2 3 7 9

W h e n the judge might be biased against a defendant, even though the defendant himself was largely responsible for the judge's anger against him, fairness requires that someone else preside. 1 4 6 4 Even the "probability of unfairness" is enough to require a different judge hear the

515

516

T R I A L , PLACE

OF

case. 1 6 1 6 In other cases, the Court reversed convictions because a mob dominated the trial, 806, 1586 because PREJUDICIAL PUBLICITY poisoned the jurors' minds, 722 and even because, under the circumstances, the judge refused to remind the jury that the defendant was entitled to a PRES U M P T I O N OF I N N O C E N C E . 2 2 9 7 See also: CONTEMPT;

HARMLESS ERROR;

TIALITY

AND HEARING

OF JUDGES

JURY AND JURORS, TION AND

IMPARTIALITY

SURGERY,

CRIMINAL AND

FORCED;

OF;

IMPAR-

OFFICERS; MEDICA-

PUNISHMENT,

CIVIL.

T R I A L , PLACE OF Article III-§2[ 3 ] requires all federal criminal prosecutions to be held in the state where the crime was committed. However, this clause does not otherwise restrict the location of the trial. Under British law, criminal trials were held in the "vicinage," or neighborhood, of the crime, from which jurors would be drawn. The SIXTH AMENDMENT tightened the requirement, mandating a trial in the "district" within the state in which the crime occurred. What constitutes a district must be established by law. The term now means the federal judicial districts within which the U.S. DISTRICT COURTS are located in each state. Under the Vicinage Clause, an ACCUSED may not be tried in a district other than the one stated in the INDICTMENT to be the place where the crime occurred. 2060 Some crimes "occur" in more than one place: a conspiracy charge may be tried in any district in which an overt act occurred. 292 Mail fraud may be tried in the district to which the letter containing the fraudulent material was sent. 970 The Vicinage Clause does not prevent a judge from some other district to be assigned to conduct the trial in the district where the crime occurred. 1275 If a crime was committed in a federal territory or some place within the JURISDICTION of the United States other than a state, Congress has the sole power to determine where it may be tried 1 1 9 2 and may even designate the place of trial after the crime has occurred. 527 Neither the Art. Ill provision nor the Vicinage Clause of the Sixth Amendment applies to state prosecutions. However, DUE PROCESS may require a change of VENUE if pretrial PREJUDICIAL PUBLICITY would make the trial unfair. 1 1 4 0 ' 9 5 3 TRIAL, PUBLIC

T h e SIXTH A M E N D M E N T en-

titles an ACCUSED to a public trial. Trials have been open to the public in every American jurisdiction, federal and state, since the beginning of

the nation, and issues involving the closing of a courtroom have rarely arisen. The right guarantees access to the courtroom by interested persons, including the press, but it does not carry with it an entidement to film or televise a trial, 722 nor does it prohibit the judge from regulating the behavior of people in the courtroom, even by excluding disorderly and disruptive members of the audience. 2140 In 1979 the Court said that under rare circumstances the defendant may waive his right to public /wfrw/hearings, when the prosecutor and court agree.838 But in 1980 the Court held that under the FIRST AMENDMENT "a criminal case must be open to the public," unless the judge articulates an "overriding interest" in excluding observers. 1989 Even when a witness—such as, for example, a juvenile victim of a sex offense—might be harmed by having to testify in front of outsiders, a state law may not absolutely require closure; rather, the judge must be permitted to determine whether the circumstances warrant closing the court for that particular testimony.888 A blanket policy of closing preliminary hearings also violates the First Amendment: "If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." 1903 In 1993 the Court unanimously struck down a Puerto Rico rule of criminal procedure that bars the public from preliminary hearings to determine whether an accused felon should be held for trial. 700 The Puerto Rico Supreme Court concluded "that closed hearings are compatible with the unique history and traditions of the Commonwealth, which display a special concern for the honor and reputation of the citizenry, and that open hearings would prejudice defendants' ability to obtain fair trials because of Puerto Rico's small size and dense population." The Court rejected both arguments, holding that the sweeping policy favoring closing of the preliminary hearings violates the First Amendment. Hearings may be closed only case by case on a showing that "there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent" and that "reasonable alternatives to closure cannot adequately protect the defendants fair trial rights."

TRIAL, SPEEDY See also: FREE PRESS-FAIR

TRIAL; PREJUDICIAL

TRIAL,

RIGHT

TO

T h e C o n s t i t u t i o n twice

guarantees the right to TRIAL BY JURY in criminal prosecutions; both Art. III-§2[3] and the SIXTH AMENDMENT so declare. T h e SEVENTH AMENDMENT guarantees the right to a j u r y trial in federal civil suits at c o m m o n law. B u t these three provisions d o not stipulate every type o f dispute and do not determine whether every litigant w i t h a legal dispute is entitled to a day in court, even w i t h o u t a jury. T h e issue has arisen in three major areas: WORKERS'

COMPENSA-

TION, disputes involving certain types o f p u b licly created rights, and c o m p u l s o r y arbitration policies

in certain

regulated

industries.

The

S u p r e m e C o u r t has consistently upheld the constitutionality o f workers' compensation

laws,

w h i c h abolish a worker's right to sue the e m ployer in court in return for a no-fault recovery f r o m a worker's compensation tribunal. 8 7 T h e findings

o f the administrative tribunals

may

constitutionally be m a d e final, as long as there is s o m e evidence o f relationship between injury and w o r k . 2 3 4 Likewise, the C o u r t has long approved

STATES;

PRIVATE

TINCTION;

PUBLICITY.

initial

f a c t - f i n d i n g by

administrative

agencies under antitrust, securities, and m a n y other laws regulating trade a n d business practices as long as certain JURISDICTIONAL AND CONSTITUTIONAL FACTS may be reviewed independently in the c o u r t s .

563

T h e C o u r t has also

distinguished between private rights, such as contract rights, and rights created under public

TRIAL,

RIGHT-PUBLIC

TAKING OF

SPEEDY

RIGHT

DIS-

PROPERTY.

T h e SIXTH

AMENDMENT

entitles the ACCUSED to a "speedy and public trial." In 1967 this right was held to apply to criminal defendants in state as well as federal c o u r t s . 1 2 4 3 T h e speedy trial requirement applies only when a person has been formally accused or arrested and held for formal charges. 1 4 3 2 T h e governments slowness in investigating a crime or in presenting evidence to a GRAND JURY does not violate the requirement;

the

Sixth

A m e n d m e n t clock starts ticking only when the INDICTMENT has been handed d o w n , 1 4 0 5 unless prosecutorial bad faith can be shown that prejudiced the d e f e n d a n t . 1 3 7 8 Likewise, said the C o u r t in 1986, delay in appealing the dismissal o f an indictment is not a speedy trial violation, at least without a showing o f bad faith by the prosecut o r . 1 3 7 0 W h e n a state does not even try to gain custody o f a defendant w h o is imprisoned elsewhere for an unrelated crime, so that no trial can possibly be held, the speedy trial right has been violated. 2 1 7 6 W h e n federal authorities lost track o f an indicted drug trafficker w h o earned a college degree, married, f o u n d steady lawful work, and lived openly under his own name for six years before being " f o u n d , " the C o u r t held that the case must be dismissed because the delay was entirely attributable to the government; the longer the delay, the more inherent the prejudice to the defendant, because it would be that much more difficult to prepare a defense. 6 4 2

law, such as BANKRUPTCY. Generally speaking,

T h e speedy trial requirement prohibits prose-

disputes over private rights must be heard in

cutors from leaving criminal charges hanging: the

court; disputes over publicly created rights may

prosecutor may not move to release a suspect

be assigned to administrative tribunals, such as

from custody with unfettered discretion at any

the Article I b a n k r u p t c y c o u r t s . 1 7 2 0 But

later time to reinstate the charges. 1 2 4 3 N o r may

the

C o u r t has approved exceptions even to this pol-

the trial court indefinitely postpone

icy. For example, it upheld the p o w e r o f the

down a sentence. 1 8 8 6 In general, the C o u r t ap-

Commodity

a

plies a BALANCING test to determine a speedy

federal administrative agency, to decide certain

trial violation, looking to the length of and reason

Futures Trading C o m m i s s i o n ,

handing

be

for the delay and prejudice to the defendant. A

brought in state courts. T h e C o u r t reasoned that

deliberate delay will count heavily against the

w h e n Congress closely regulates a particular in-

prosecution. T h e absence of a witness might jus-

dustry, it may require that all related claims be

tify delay. C r o w d e d dockets and prosecutorial

heard in a c o m m o n f o r u m , even though not a

negligence lie somewhere

kinds

of

509

claims

that

ordinarily

would

in b e t w e e n . 1 5 3

But

Finally, the C o u r t has recently upheld

once a court determines that the right to a speedy

federal laws requiring that certain kinds o f dis-

trial has been violated, the charges must be dis-

putes be c o m m i t t e d to binding a r b i t r a t i o n . 2 3 3 5

missed. 2 2 6 4

court.

In 1 9 7 4 Congress enacted the Speedy Trial See also: ARTICLE

I

COURTS;

POWER

JUDICIAL

COURTS; OF

ARTICLE THE

III

Act, laying upon prosecutors a strict timetable.

UNITED

Observing the timetable will prevent dismissal

517

518

TRIAL, TELEVISING because

of

speedy

trial

OF concerns.

Another

But a defendant has no right to a jury in a single

statute, the Interstate Agreement on Detainers

prosecution when each of the charges is petty,

( I A D ) , is an interstate compact with the force o f

even though the potential aggregate sentence

both state and federal law that provides a na-

would exceed six m o n t h s . 1 3 3 4

tionally u n i f o r m m e t h o d of transferring prison-

At one time the C o u r t believed that a jury was

ers f r o m one jurisdiction to another for a crimi-

required only when a defendant was formally

nal trial, whether from state to state or f r o m

charged with a crime; more recently it has de-

federal to state authorities or vice versa. Under

clared that certain kinds of civil

that law, the prisoner must be tried within 1 2 0

punitive by nature—for example, revocation of

days o f being received in the jurisdiction

to

citizenship—require juries. 1 2 2 0 Until the 1960s

which he is transferred. A splintered C o u r t held

the C o u r t consistently refused to recognize the

proceedings

that a state prisoner may not assert in a federal

right in criminal CONTEMPT proceedings, but it

HABEAS

petition a violation o f his

decided otherwise in 1968. All but petty con-

statutory right under the I A D to be tried within

tempt charges must now be tried by a jury if the

the time period if he did not object to the trial

defendant wishes, whether in a state or federal

date at the time it was set and suffered no preju-

proceeding. 2 0 5 T h e right to a jury does not apply

dice because of the delay. T h e defendant asserted

in juvenile delinquency proceedings, even if a

he was entitled to relief because the time limit is

sentence of more than six months might re-

in effect a means o f "effectuat[ing] a [Sixth

sult. 1 4 9 8

CORPUS

A m e n d m e n t ] constitutional right" to a speedy

T h e right o f trial by jury is limited to a verdict

trial. Said Justice R u t h Bader G i n s b u r g for a 7 - 2

of guilt or innocence. T h e defendant has no right

majority, "a showing o f prejudice is required to

to have the jury decide the sentence, even when

establish a violation of the Sixth A m e n d m e n t

"the sentence

Speedy Trial Clause, and that necessary ingredi-

f a c t . " 1 5 0 4 Similarly, there is no

ent is entirely missing h e r e . " 1 9 5 3

turns on specific findings

of

constitutional

right to have a jury decide which assets are forfeitable. 1 3 3 6 But the jury must be permitted to

T R I A L , T E L E V I S I N G OF, s e e :

prejudicial

decide on every element o f the crime. T h e C o u r t unanimously held that when a defendant is

publicity

charged with making material false statements, TRIAL

BY

JURY

Article I I I - § 2 [ 3 ]

and

the

SIXTH AMENDMENT both guarantee a jury trial

the issue o f "materiality" is one for the jury to consider, not the judge. 8 5 0

in most, but not all, federal criminal prosecu-

In civil cases, the right to a jury trial is less

tions. T h e Supreme C o u r t has held that a jury is

sweeping. In federal suits at COMMON LAW, ei-

necessary when significant punishment may be

ther party may demand a jury trial if the amount

meted o u t 6 3 2 or when the crime is nonpetty. 6 3 3 In

in controversy is more than twenty dollars—an

1968 the C o u r t held the jury trial provisions ap-

amount that demonstrates the dangers of fixing

plicable to the states; 669 and in 1 9 7 0 it generalized

one generations economic expectations on an-

from its precedents to conclude that whenever

other's. In general, a suit at c o m m o n law is a suit

imprisonment for more than six months is au-

for DAMAGES or for certain other remedies, such

thorized, the crime is not petty and the defendant

as recovery of property. INJUNCTION suits are

is entitled to a j u r y . 1 3 4 A crime may be nonpetty, even though carrying a sentence o f six months or less, if large fines are at stake; but a traffic offense for which the m a x i m u m sentence is six months or less in jail, a one-thousand-dollar fine, suspension of a drivers license for ninety days, and mandatory driver's education training is petty and does not require a jury trial. 2 0 1

Driving

under the influence of alcohol in a federal park is a petty crime, even though in addition to a maxi m u m of six months in jail, a fine o f five thousand dollars, and a ninety-day suspension o f the license, the defendant can be compelled to attend an alcohol abuse course at his own expense. 1 6 2 9

the major type of case for which a jury is not required, because at the time the Constitution was written injunctions were awarded in a legal proceeding other than a c o m m o n

law

suit.1805

Admiralty and maritime cases likewise do not require a j u r y . 1 8 0 5 - 2 0 2 5 W h e n a new CAUSE OF ACTION or remedy is created, a jury trial is required as long as the right is "of the sort traditionally enforced" in c o m m o n law courts. These might include a damage suit for racial discrimination in the rental of housing, 1 8 4 3 ,

572

back pay awards

against unions for failing to represent a member fairly, and a bankruptcy trustee's right to recover money fraudulently distributed from the bank-

TUITION GRANTS AND VOUCHERS rupt estate. 440 ' 921 A patent holder is not entitled to a jury determination about the scope of a patent right; only the judge may interpret to what degree the patent covers a particular process or invention, but the jury determines whether the defendant infringed it. 1 4 3 3 When Congress enacts regulatory laws enforceable by fines assessed by administrative agencies and collectible in federal court, no jury is required. 113 Sometimes this rule leads to odd results. For example, the Court said in 1987 that although a jury is necessary in determining under the Clean Water Act whether a person is liable to pay a fine, the amount of the fine may be set without a jury. 2378 When a case involves both legal and equitable remedies, the legal claims must be tried first before a jury. 1 6 7 ' 5 7 8 ' 1 4 0 1 The Court has held in many cases that the Seventh Amendment does not outlaw various trial procedures, so that a judge may direct a verdict for the defendant on the ground that the plaintiff had insufficient evidence to prove his case835 or may even reverse a jury's verdict because of insufficient evidence. 187 Unlike the jury trial provision in the Sixth Amendment, the Seventh Amendment does not apply to state courts. 2462, 1 5 5 7 The parties may waive the right to a jury if they choose. 1040 Labeling a contempt fine as "civil" is not sufficient to avoid a jury trial on the issue of whether it was owed if it is simply a disguised criminal penalty. A court in Virginia enjoined two mine unions from engaging in unlawful and violent strike-related activities. After several hearings into whether the unions had violated the injunction, the judge held the unions in contempt and assessed what were termed "civil fines" amounting to fifty-two million dollars. The proceedings at which it was determined that the unions had violated the injunction were civil trials; although the judge required that the violations be proved beyond a reasonable doubt, he refused to permit a jury. A unanimous Court held that the fines were not civil but criminal, both because of their size and because they were intended neither to coerce the defendant into complying with a particular order nor to compensate for any loss incurred, but were intended instead to punish the unions. 1 1 3 5 Moreover, they were unrelated to disruptive behavior before the trial court or to a "simple, affirmative" act of contumacy. Since the fines were criminal, the unions had a right to a jury trial. Justice Harry A. Blackmun said that the Court's "decision concededly imposes

some procedural burdens on courts' ability to sanction widespread, indirect contempts of complex injunctions through noncompensatory fines." Nevertheless, judges retain their "longstanding authority . . . to adjudicate direct contempts summarily, and to enter broad compensatory awards for all contempts through civil proceedings. Because the right to trial by jury applies only to serious criminal sanctions, courts still may impose noncompensatory, petty fines for contempts such as the present ones without conducting a jury trial."t See also: ADMINISTRATIVE REAUCRATIC MARITIME

JURISDICTION;

IMPARTIALITY SIZE; JURY RIGHT

AGENCIES

GOVERNMENT; OF; JURY

UNANIMITY;

AND

ADMIRALTY JURY

AND

BUAND

JURORS,

DISCRIMINATION;

JURY

PATENT CLAUSE;

TRIAL,

TO.

TRIBAL INDIANS, Indian tribes

see;

Indians

and

T R O O P S , see: a r m e d f o r c e s T R U C K I N G , see: t r a n s p o r t a t i o n T U I T I O N G R A N T S A N D V O U C H E R S The states may not use public funds to pay the tuition of schoolchildren at private schools that discriminate in admission on the basis of race. In the aft e r m a t h o f BROWN V. B O A R D OF

EDUCATION,

some southern states permitted local school districts to close the public schools and even to transfer public school buildings to racially discriminatory private schools. In other cases the state paid tuition grants to white children withdrawn from public schools and sent to private schools that barred admission to blacks. The Court declared these tactics unconstitutional in 1964. 945 The Court also struck down, as a violation of the ESTABLISHMENT CLAUSE, tuition grants for at-

tendance at religious schools by the children of poor parents.507 The constitutionality of a general tuition voucher program, presently being pressed by many influential political leaders, has never been tested. Tuition vouchers paid on behalf of all school-age children might be upheld as a rational way to encourage the development of alternative means of education and as a spur to improvement of the public schools. But a system that tended to favor religious schools at the expense of public schools might well encounter fatal constitutional objections. The problem of tuition to racially discriminatory schools is now moot because the

519

520

TURBAN Court has ruled that private schools may not discriminate on racial grounds, whether or not they receive public revenue.20"45 T U R B A N , see: d r e s s

codes

TWELFTH A M E N D M E N T T h e Twelfth Amendment, proposed by Congress on December 9, 1803, and ratified on June 15, 1804, altered the ELECTORAL COLLEGE system for selecting the president. It was prompted by the impasse in the House of Representatives, which in 1804 required thirty-five ballots to elect Thomas Jefferson over Aaron Burr. The election was thrown into the House because the original mechanism set out in Art. II-§i [3] did not permit presidential electors to distinguish their votes between presidential and vice-presidential candidates. The Twelfth Amendment separated balloting for each office. If no candidate gains a majority of electoral votes, the House, voting by state, must then choose the president, and the Senate must choose the vice president. See also: PRESIDENT, ELECTION AND TERM OF; PRESIDENTIAL

SUCCESSION.

T W E N T I E T H A M E N D M E N T Under Art. I-§4[i] Congress may fix the date of elections to Congress. Under Art. I-§4[z] Congress was to meet on the first Monday each December, unless Congress fixed some other date. Since Congress declared federal election day to be the Tuesday after the first Monday in November, this clause meant that elected members of Congress might not begin their duties until thirteen months after they were elected. The Twentieth Amendment, proposed by Congress on March 2, 1932, and ratified on January 23, 1933, set the date for convening Congress on January 3 of each year. This provision effectively ended the "lame-duck" Congresses, in which members defeated for election in November could continue to vote until their successors took office later the following year. It was just such a lame-duck Congress that gave President John Adams the votes to appoint his "midnight judges" and that led to MARBURY V. MADISON. Lame-duck status now lasts from election day in November until the end of the congressional session, usually in December, but in no event later than January 2. T h e Twentieth Amendment also set January 20 as the date of the president's inauguration and made certain other

changes to the rules of PRESIDENTIAL SUCCESSION. See also: PRESIDENT, ELECTION AND TERM OF. T W E N T Y - F I F T H A M E N D M E N T The Twentyfifth Amendment, proposed by Congress on July 6, 1965, and ratified on February 23, 1967, establishes rules of PRESIDENTIAL SUCCESSION and provides for the first time for the temporary or permanent disability of the president. It also establishes the office of ACTING PRESIDENT. It was proposed in reaction to the assassination of President John F. Kennedy in 1963. See also: PRESIDENT, ELECTION AND TERM OF. T W E N T Y - F I R S T A M E N D M E N T The Twentyfirst Amendment, proposed by Congress on February 20, 1933, and ratified on December 5, 1933, ended the national embarrassment of PROHIBITION by repealing the EIGHTEENTH AMENDMENT. It is the only amendment ever to have been ratified in state conventions rather than by the state legislatures. It did more than simply repeal the formal national ban on INTOXICATING BEVERAGES, because it left power in the states to continue a statewide regime of alcohol regulation and even prohibition, subject to certain COMMERCE POWER constraints. 378 But even though ratified later, it does not "diminish the force" of the SUPREMACY CLAUSE, the EQUAL PROTECTION CLAUSE, the ESTABLISHMENT CLAUSE, or the FIRST AMENDMENT, nor does it permit the states to regulate truthful liquor advertising. 802 See also: COMMERCIAL SPEECH; VOLSTEAD ACT. TWENTY-FOURTH

AMENDMENT

The

Twenty-fourth Amendment, proposed by Congress on August 27, 1962, and ratified on February 4, 1964, abolished the POLL TAX for all federal elections. In 1965 under this amendment, the Court struck down a law giving federal voters in Virginia the choice between paying a poll tax or filing a residence certificate six months before the election. 998 Two years later the Court struck down on EQUAL PROTECTION CLAUSE grounds the requirement that state voters pay a poll tax. 1001 TWENTY-SECOND

AMENDMENT

The

custom that presidents run for only two terms

TYRANNY began with George Washington and endured until 1940, when President Franklin D. Roosevelt won a third term after the outbreak of World War II in Europe. The Twenty-second Amendment, proposed by Congress on March 21, 1947, two years after Roosevelt died, and ratified on February 27, 1951, incorporates Washington's precedent into the Constitution, limiting presidents to two full terms, or to no more than ten years if a vice president succeeded to the office with less than half the term of his predecessor remaining. By its terms, the amendment did not apply to the incumbent, Harry S. Truman, at the time of ratification. Truman chose not to run for a third term. See also: PRESIDENTIAL

SUCCESSION.

T W E N T Y - S E V E N T H A M E N D M E N T The Twenty-seventh Amendment says that no pay raise for members of Congress may take effect until after "an election of Representatives shall have intervened," meaning that members of Congress may not vote themselves raises but may raise the salaries of representatives and senators only in the succeeding Congress. This amendment is a constitutional oddity, proposed as the second of twelve articles in the original BILL OF RIGHTS in 1789 and ratified by three-quarters of the states 203 years later, in 1992. Ten of the twelve articles were ratified on December 5, 1791. But through the 1790s only six states ratified the Congressional pay raise amendment—Delaware, Maryland, North and South Carolina, Vermont, and Virginia. Not until 1873 did another state, Ohio, ratify it. Wyoming chimed in 105 years later, in 1978. Then, as dissatisfaction against Congress mounted in the 1980s, more and more states climbed aboard the sudden bandwagon. By May 1992 thirty-four states had ratified. During the first week in May four more states ratified. Michigan was the last, bringing the total to the requisite thirty-eight states. New Jersey ratified the amendment hours after Michigan, Illinois a few days later. In mid-May the archivist of the United States, Don W. Wilson, certified that the amendment had finally been made part of the Constitution as of May 7, 1992. See also: AMENDMENTS EMOLUMENTS

TO THE

on March 23, 1971, and ratified on July 1, 1971, fixes the minimum voting age at eighteen in all state and federal elections. Proposed in part as a reaction to the drafting of young men to serve in Vietnam who were not old enough to vote, the Twenty-sixth Amendment was ratified in 107 days, more quickly than any other amendment. See also: VOTING,

RIGHT

TO.

T W E N T Y - T H I R D A M E N D M E N T The Twentythird Amendment, proposed by Congress on June 17, i960, and ratified on March 29,1961, extends to residents of the District of Columbia the right to vote in presidential elections. The amendment deviates from the principle of allocating electoral votes by population. Even though the District has a population larger than that of thirteen of the fifty states, its votes in the ELECTORAL COLLEGE are limited to three, the num-

ber of electors possessed by the least populous state. The Twenty-third Amendment does not entitle the District to REPRESENTATION in either house of Congress. See also: STATES AND

STATEHOOD.

T W O - S O V E R E I G N T I E S D O C T R I N E Until 1964 a person could be convicted of a crime by one sovereign authority (for example, a state) on the basis of testimony he or she was compelled to give by another sovereign (for example, the federal government), despite the SIXTH AMENDMENT'S guarantee of a right against SELF-INCRIMINATION.974' 1 6 1 7 ' 7 5 4 This peculiar result was explained by a doctrine that the dangers posed by a second sovereign is of no constitutional concern to the first one. Under the twosovereignties doctrine, then, a state could grant a witness

IMMUNITY

FROM

PROSECUTION

and

force his or her testimony, knowing that the witness could then be prosecuted under federal law. The Supreme Court repudiated this doctrine in two 1964 cases, Murphy v. Waterfront Commission and Malby v. Hogan, holding that the right against self-incrimination extends to testimony that might tend to incriminate the witness under the laws of any JURISDICTION in the United States.

CONSTITUTION;

CLAUSE.

TWENTY-SIXTH AMENDMENT The Twenty-sixth Amendment, proposed by Congress

T Y R A N N Y , see: s e p a r a t i o n of p o w e r s

521

CONDITIONS

with caseworkers in their homes, rejecting the ar-

M o r e than a century ago Oliver Wendell Holmes,

UNCONSTITUTIONAL

gument that mandatory home visits violate the

then chief justice of the Massachusetts Supreme

FOURTH AMENDMENTS right to PRIVACY. 2 6 0 3

Judicial Court, upheld the state's power to restrict

A n d in 1987, against a claim that Congress may

a policeman's right to engage in political action:

not tell the states what laws to pass, the C o u r t up-

" T h e petitioner may have a constitutional right to

held a federal law authorizing the secretary o f

talk politics, but he has no constitutional right to

transportation to withhold 5 percent of federal

be a policeman."* Holmes's classic aphorism sug-

highway funds f r o m any state that permitted per-

gests that if the state has no obligation to provide

sons under twenty-one years o f age to purchase

a benefit, such as a job or welfare, it may confer the

liquor. 2 2 0 2 T h e C o u r t held that "the condition

benefit with strings attached—including the con-

imposed by Congress [raising the drinking age] is

dition that the recipient waive a constitutional

directly related to one o f the main purposes for

right. Holmes's logic would allow a state to deny

which highway funds are expended—safe inter-

welfare benefits to people w h o refuse to attend

state

church, or terminate unemployment benefits if the

Department of Health and H u m a n Services reg-

travel."

In

1991

the

Court

upheld

a

recipient criticizes state officials. But as the Court

ulation prohibiting family planning clinics re-

recognized in 1926, " I f the state may compel the

ceiving federal funds from discussing ABORTION

surrender of one constitutional right as a condition

with any clients. 2 0 4 9

of its favor, it may, in like manner, compel a sur-

But a condition unrelated to furthering the

render of all. It is inconceivable that guarantees

purpose o f the benefit is invalid. For example, a

embedded in the Constitution of the United States

city may tell its police officers how to dress for

may thus be manipulated out of existence." 8 1 9 In

work, but it may not hire or fire them for how

many situations during the past half century, the

they vote. A television station given public funds

Court has curtailed the assertion of such absolute

for programming may be told not to use them to

government power by invoking a doctrine known

furnish its offices lavishly but may not be told to

as "unconstitutional conditions." For example, a

refrain from editorializing or endorsing candi-

school board may not discharge a teacher for exer-

dates, activities that lie at the heart o f the First

cising his FIRST

A m e n d m e n t . 7 3 9 A state may not condition a

AMENDMENT

right to free

speech. 1 8 6 1 A state may not refuse to pay unemployment benefits to a Seventh-Day Adventist w h o rejects a job that requires her to sacrifice her religious faith by working on Saturday. 2 1 4 1 T h e doctrine of unconstitutional conditions does not preclude the government from imposing

PROPERTY TAX exemption on the filing o f an affidavit that the owner did not advocate forcible overthrow of the government: " T o deny an exemption to claimants w h o engage in certain forms of speech is in effect to penalize them f o r such s p e e c h . " 2 2 1 8

conditions reasonably related to the purpose of the benefit. In 1971, for example, the C o u r t sus-

See also: FREEDOM OF ASSOCIATION;

tained a N e w York law that conditions welfare

OF SPEECH;

payments on the recipients' willingness to meet

PUBLIC

PENALTY-SUBSIDY

EMPLOYMENT.

FREEDOM DISTINCTION;

UNION UNCONSTITUTIONAL

LAWS

In 1886 the

Court said that an unconstitutional law "is not a law; it confers no rights; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." 1724 The statement is true only in a narrow sense. A law has legal consequences until a court authoritatively declares it unconstitutional; to contest it you might have to stand trial and risk conviction and jail. In 1967 a narrowly divided Court ruled that a person who violates an injunction, even if it is unconstitutional, may be held in contempt for violating it. The proper course would have been to appeal the courts order. Said Justice Potter Stewart for the five-member majority, "[RJespect for judicial process is a small price to pay for the civilizing hand of law." 2460 Moreover, a ruling in one state or federal jurisdiction that a law is unconstitutional does not automatically negate the law elsewhere, and even a Supreme Court ruling that the law conflicts with the Constitution does not automatically void it. A ruling that the law is unconstitutional "as applied" in a particular case leaves the law available for proper application in another case. Even when the Court holds a law INVALID ON ITS FACE, it does not disappear; if, as occasionally happens, the Court reverses itself, the law in effect springs back to life. For example, in 1923 the Supreme Court invalidated a District of Columbia minimum wage law as a violation of DUE PROCESS,17 but in 1937 it reversed itself. 2506 To regulate wages, was Congress obliged to reenact the law, or would the one struck down in 1923 be revived? The Court has not ruled directly on the issue, but under a widely accepted opinion of the attorney general, the law came back into effect automatically.* In more than two centuries the Court has struck down as unconstitutional more than 125 federal laws and more than 1,200 state and municipal laws and ordinances.* That is not the sum of cases involving unconstitutionality. It does not include all those cases in which the executive branch or the states have been found to have acted unconstitutionally. UNDERINCLUSIVITY, tions, under- and

tee:

classifica-

overinclusive

U N D U E B U R D E N The Court adopted the term "undue burden" as a test for determining the constitutionality of a regulation affecting a

woman's right to an ABORTION. A regulation is unduly burdensome if it places "a substantial obstacle in the path of a woman's choice." 1875 In the 1992 case that announced this test, the Court rejected claims that the following requirements constituted undue burdens: certification by a woman seeking an abortion that she has been warned of the risks both of childbirth and abortion, told the age of the fetus, and notified about the availability of printed material describing alternatives to abortion; a delay of twenty-four hours after receiving this information; maintenance of certain records, including the names of referring physicians, by abortion clinics; and parental consent for girls under the age of eighteen, as long as a "judicial bypass" procedure is in place. The Court struck down as an undue burden a spousal notification rule. U N I O N The Union was not formed, in legal theory, when the Constitution was ratified. The Preamble to the Constitution speaks of forming "a more perfect Union," not a new one. Until after the Civil War, however, the nature of national union was clouded by two warring theories. The DECLARATION

OF

INDEPENDENCE

contained

both. It declared the colonies "free and independent states." It also described the colonists as "one people" and called the country in which they lived "the United States of America." In the Kentucky and Virginia Resolutions of 1798-99, James Madison and Thomas Jefferson held that the Union had been created by the sovereign states. According to this view, the states had created the central government and were alone competent to judge when it had breached the compact that had formed the Union. If the states chose to do so, they could, in Jefferson's word, "nullify" unauthorized acts of Congress. Opposing this view was that of the Federalists, who held that the Union had been called into being by the people of the United States, who divided power between the federal government and the states. The Federalists denied that the states could decree acts of the federal government unconstitutional; rather, the federal government was supreme within its sphere. In one form or another, the Madison-Jefferson compact theory was the basis for secessionist demands leading up to the Civil War and, like SLAVERY and the theory of secession, it perished in that war. Abraham Lincoln's assertion in his First Inaugural in 1861 that "the Union of these States is perpetual" had been upheld and has not been seriously

523

524

UNIONS challenged since. But that has not meant a collapse of the states into a central government; the constitutional theory of the United States has continued to require a union of states. As the Supreme Court said in a decision on Reconstruction policies in 1869, "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." 2320 See abo: NULLIFICATION,

INTERPOSITION,

AND

SECESSION.

U N I O N S , see: UNITED

labor

NATIONS,

unions see:

international

law U N I T E D S T A T E S The Constitution recites the name "United States of America" only once, in the Preamble. All other references are to the "United States," a name that had been used more than a decade earlier in the DECLARATION OF INDEPENDENCE. Although in ordinary usage the name "United States" refers to the nation as a whole, the Constitution also uses it in a more restricted sense, to distinguish a federal office or activity from a state one. Under the GUARANTEE CLAUSE, "United States" is used to signify Congress and the president, not the courts. 1 3 9 2 See also: OFFICE AND OFFICERS; SOVEREIGN IM-

MUNITY; references listed under "United States" in the Concordance to the Constitution of the United States. U N I T E D STATES C I R C U I T S , see: C o u r t of A p p e a l s f o r t h e F e d e r a l C i r c u i t UNITED trict

STATES

DISTRICTS,

see:

dis-

courts

UNREASONABLE SEARCH AND Z U R E , see: s e a r c h a n d s e i z u r e U N U S U A L P U N I S H M E N T S , see: ment, cruel and unusual

SEI-

punish-

U N W R I T T E N C O N S T I T U T I O N , see: n a t u r a l law; N i n t h A m e n d m e n t USE

IMMUNITY,

see:

immunity

from

prosecution U S E T A X E S A use tax is imposed by one state on the use of a product purchased in another.

States often impose use taxes, measured by the purchase price, to counterbalance the loss of revenues from consumers who buy goods out of state to avoid local sales taxes. Although out-ofstate sellers have occasionally suggested that such use taxes are unconstitutional as burdens on INTERSTATE COMMERCE, the Court has refused to invalidate use taxes simply on this ground. 1 0 4 2 But the use tax may not exceed the sales tax paid on goods bought out of state. Missouri imposed an "additional" use tax of 1.5 percent on the storage, use, or consumption of any personal property purchased outside the state. The tax was intended to equalize local sales taxes imposed by counties and cities. However, in 53 percent of the municipalities that imposed their own sales taxes, the sales tax was lower than the 1.5 percent use tax. The state courts rejected a DORMANT COMMERCE CLAUSE challenge to the use tax on the ground that since most of the dollar volume of sales in the state was in municipalities with a higher sales tax, the "overall effect of the use tax scheme across the State was to place a lighter aggregate tax burden on interstate commerce than on intrastate commerce." The Supreme Court unanimously disagreed, holding that a compensatory tax scheme is constitutional only if "the burdens imposed on interstate and intrastate commerce [are] equal." 1 0 7 In this case, whether the use tax equals or is lower than the sales tax was fortuitous, depending on where the Missouri customer bought the goods. "Where the use tax exceeds the sales tax, the discrepancy imposes a discriminatory burden on interstate commerce." A use tax may not be imposed on goods from other states if there is absolutely no connection between the state in which the tax will be imposed and the out-of-state seller. For example, if you purchase goods through catalogues mailed to you from out of state, your state may not impose a use tax if the seller maintains no local sales offices.1634 Nor may a state collect a use tax if the out-of-state seller solicits sales through local radio and newspaper advertising, even if the goods are delivered to purchasers in the sellers trucks. 1 5 4 5 But when an out-of-state seller places orders through employees traveling in the state or through brokers with in-state offices, the use tax is constitutional. 2112 Occasionally, the legitimacy of a use tax has been questioned on another basis. In a 1985 case, a Vermont law gave a use tax credit for sales taxes on out-of-state purchases of automobiles if the purchaser lived in Vermont and registered the car

U T I L I T I E S , T E R M I N A T I O N OF S E R V I C E there. The law denied the credit to people who lived outside the state when they bought the car but later moved to Vermont. T h e Court invalidated the law under the EQUAL PROTECTION CLAUSE.2547

the wholesale price of natural gas piped from state to state. 748 See also: COMMERCE MERCE CLAUSE;

See also: TAXATION OF INTERSTATE

USEFUL ARTS, see: P a t e n t

thority of the Federal Power Commission to set

COMMERCE.

Clause

U T I L I T I E S , R E G U L A T I O N OF In the late nineteenth century the Court used the FIFTH AMENDMENT to cripple the federal government's ability to regulate. 2185 Beginning early in the twentieth century, however, the Supreme Court began to change its mind and eventually made clear Congress's power to regulate utilities. In 1914 the Court upheld federal power over the transportation of oil and gas in pipelines. 1868 In 1927 it voided a state's regulation of the price of electricity to be sold to distributors out of state. 1 9 1 8 In 1936 it upheld the federal government's power, through the Tennessee Valley Authority, to build dams and generate and sell electricity. 105 And in 1942, overturning earlier cases limiting federal power to regulate utility rates, the Court upheld the constitutional au-

CLAUSE; DORMANT

FAIR VALUE FALLACY;

STATE COMMERCE;

COMINTER-

TAKING OF PROPERTY.

UTILITIES, TERMINATION OF SERV I C E Although electricity and other forms of power are now essential to civilized life, the government is not constitutionally obliged to provide these utilities to people who cannot afford them. Nor do private utility companies have any duty to provide a customer with a hearing before cutting off service for nonpayment. In 1974 the argument was pressed that when a state closely regulates private utility companies, the utility is performing a PUBLIC FUNCTION and must, as the state would be obliged to do if it were the supplier, give the customer a chance to explain before discontinuing service. The Court disagreed, holding that neither the act of supplying electricity nor the state's regulating of the electrical industry puts the utility into the shoes of the state. 1 1 4 8 See also: ENTITLEMENTS; TION.

HEARING;

STATE AC-

525

V A C A N C I E S , see: r e c e s s

appointments

V A C C I N A T I O N Since 1905, when the Court upheld a compulsory smallpox vaccination law, 1 1 5 1 the power of the state to compel inoculations against contagious diseases has not been questioned. As the Court later put it, even "the right to practice religion freely does not include liberty to expose the community . . . to communicable disease." 1909 See also: BLOOD SAMPLES; SURGERY,

MEDICATION

AND

FORCED.

V A G R A N C Y Vagrancy laws were used for centuries to cleanse the streets, as the Court said in an 1837 case, of "this moral pestilence of paupers, vagabonds, and possible convicts." 1468 Vagrancy laws were used by communities to imprison or banish beggars and the homeless. The Court first struck down a type of vagrancy statute in 1939, when it held as unconstitutionally vague a New Jersey statute that subjected "gangsters" loitering about the streets to fines and imprisonment. The law defined "gangster" as any "person not engaged in any lawful occupation, known to be a member of a gang consisting of two or more persons" who had been convicted three times of being disorderly. 1288 In 1972, in Papachristou v. City ofJacksonville, the Court invalidated a more general type of vagrancy law. Under a Jacksonville, Florida, ordinance, "vagrants" could be jailed if they met one of the following descriptions: "rogues and vagabonds, . . . dissolute persons who go about begging, . . . common night walkers, . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disor-

derly persons,. . . [and] persons able to work but habitually living upon the earnings of their wives or minor children." The descriptions were too vague to give adequate notice to violators about what activities could land them in jail. It also gave the police unfettered discretion to make arrests, w i t h o u t PROBABLE CAUSE as required b y the FOURTH A M E N D M E N T ,

a n d it m a d e criminal

many wholly innocent activities, such as walking down the street at night. Papachristou spelled the end of blunderbuss vagrancy laws, and the states' inability to find more precise language is no doubt one reason that begging is now so widespread in many urban areas. The Court also has struck down similar laws that punished people for standing around in a "manner annoying to passersby'"*76 and that permitted the police to demand "reliable" and "credible" identification of anyone who wanders along the streets. 1250 Not every form of street behavior is constitutionally protected. For example, the Court has upheld laws that prohibit public drunkenness. 1897 See also: VAGUENESS. V A G U E N E S S No society can be even minimally free if people do not know on what grounds they can be sent to jail. It would be no less tyrannical for the police to arrest the citizenry for violating secret laws than for them to arrest people wholly arbitrarily, without any law at all. FUNDAMENTAL FAIRNESS requires that

the law spell out what acts constitute criminal behavior; a vaguely worded law is as bad as no law at all. A statute prohibiting "all bad things that the legislature may constitutionally outlaw" is too vague to promote law-abiding behavior, either by the citizens or the police, and it would inhibit people from exercising their constitu-

VAGUENESS tional rights. It would also allow legislators to escape accountability by not specifying which actions they wish to forbid. In many decisions over the years, the Court has therefore invalidated under the DUE PROCESS Clauses o f the FIFTH a n d FOURTEENTH AMENDMENTS any law that

"either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." 516 Moreover, a "vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications." 928 In 1988 the Court held unconstitutionally vague the command that the jury could find as aggravating circumstances in DEATH PENALTY

cases that the defendant had acted in an "especially heinous, atrocious or cruel" manner.1''66 But in 1990 it held the phrase no longer vague when the state appellate court said that it means the infliction of mental anguish or physical abuse on the victim. 2467 There is no clear formula to determine when the language of a statute is "void for vagueness," but the courts have frequently upset laws on that ground for interfering with FREEDOM OF SPEECH. Many of the LOYALTY OATH cases were decided on that basis. The Court rejected an Arizona law, for example, that required teachers to take an oath that they would "by precept and example promote respect for the flag."123 A New Jersey ordinance specifying that door-to-door canvassers could work only for "a recognized charitable for] political campaign or cause" was struck down because no one could say what "recognized" meant." 1 6 A Massachusetts law prohibiting anyone from publicly treating the flag "contemptuously" was held invalid when a man was convicted for having sewn a small flag to his trousers.2175 A Cincinnati ordinance that prohibited three or more people from congregating on the streets if they were "annoying" passersby was also overturned.476 In these types of cases, the Court holds the statute INVALID ON ITS FACE, striking down the entire law, even though the legislature might have been able to prohibit the particular conduct in which the defendant was engaged by using more precise language. For example, a law that says you may not "annoy" someone on the street will always be vague because no test could ever determine in advance what might or might not annoy

a passerby. Therefore, the law is altogether invalid, even if a particular defendant was convicted under it for punching someone in the face, conduct that could have been prohibited under a more precisely worded statute. In other types of cases, the law itself might be sustained, even though a conviction obtained under it might be overturned on the ground that the law as applied is too vague. For example, the Court upheld the court-martial of an army captain for advising soldiers to disobey orders to go to Vietnam. 1803 He was convicted under articles of the Uniform Code of Military Justice, a law enacted by Congress, that prohibit "conduct unbecoming an officer and a gentleman" and "disorders and neglects to the prejudice of good order and discipline." In the abstract, those articles are extremely vague, but the Court said they were not vague as applied to the captain because over the years military authorities had made it clear that whatever else "conduct unbecoming" might mean, it certainly includes counseling troops to disobey orders. In other words, the army captain personally could not complain that he had no fair warning that his actions might result in a courtmartial. But suppose that the army decides to court-martial another officer for wearing a loud shirt on the base on his or her day off. A court might well conclude that the words "conduct unbecoming" are too vague in that instance to justify a conviction. Similarly, a merchant convicted of violating federal drug laws by selling "drug paraphernalia" asserted that the statute was unconstitutionally vague. In addition to listing fifteen items, including "bongs," "roach clips," and certain types of pipes used with illegal drugs, the statute was applied to multiple-use items such as scales and razor blades. An indictment based solely on sales of such items "may raise more serious concerns," but in this case, Justice Harry A. Blackmun wrote for a unanimous Court, the merchant "operated a full-scale 'head shop,' a business devoted substantially to the sale of products that clearly constituted drug paraphernalia." There is no need to upset the statute because it might be applied some day "to a legitimate merchant engaging in the sale of only multiple-use items." The "theoretical possibility [of prosecution] is of no due process significance unless the possibility ripens into a prosecution." 1890 A statute might be vague about how an inference should be drawn, but it is constitutional if it spells out the operative fact on which the infer-

527

528

VENUE ence will be based. T w o murder defendants ob-

o f them. Federal judicial rules permit venue to be

jected that their juries were required to consider

changed "for the convenience o f parties and wit-

unconstitutionally vague factors at the sentencing

nesses, and in the interest of justice." O n e reason

phase of their trials, including "the age o f the de-

for changing venue is PREJUDICIAL PUBLICITY

fendant at the time of the crime." Speaking for an

that might make it impossible for the defendant

8-1 majority, Justice A n t h o n y M . Kennedy held

to get a fair trial. A refusal to change venue when

that although it may be difficult to know which

the defendant has been subjected to massive pre-

way the relative youth or age o f the defendant

trial

should incline the jury, the age itself is an objec-

PROCESS. 1 9 9 0 Federal and state law, not

tive, knowable fact. 2 3 7 7

Constitution, govern venue in civil cases.

prejudicial

publicity

DUE

violates

the

Some arguably vague laws are upheld because

In a rare challenge to a state venue provision,

it may be impossible for a legislature to state the

a foreign corporation asserted that Montana's rule

prohibition or the people subject to it in any

violates the EQUAL PROTECTION CLAUSE be-

clearer way. For instance, the C o u r t sustained an

cause it distinguishes between domestic compa-

ordinance requiring the police to investigate cer-

nies, which may be sued only in the counties

tain people having "connections with criminal el-

where their principal places o f business are lo-

ements." 1 5 2 0 A n d the Court has consistently up-

cated, and companies doing business in the state

held OBSCENITY laws against a long-standing

but incorporated elsewhere, which may be sued

objection that the definitions of obscenity are too

in any county. T h e corporation asserted that since

vague. 1 7 9 8

it had a principal place o f business in the state, it

Outside the zone of constitutionally protected

should be treated just as the state treats home

rights, the C o u r t has acted more charitably to-

companies. T h e C o u r t unanimously upheld the

ward vague statutes, especially those that penalize

rule because it is not irrational for Montana to

for economic activities, and especially when the

determine "that a corporate defendant's home of-

particular persons tried under them can be ex-

fice is generally o f greater significance to the cor-

pected to understand them. For example, the

poration's convenience in litigation than its other

C o u r t upheld a law requiring truckers to "avoid,

offices; that foreign corporations are unlikely to

so far as practicable"

"con-

have their principal offices in Montana, and that

gested." 2 4 8 It sustained a law prohibiting compa-

Montana's domestic corporations will probably

nies, with intent to hurt competitors, from selling

keep headquarters within the State. " 3 2 4 t

routes that are

goods at "unreasonably low prices"; in the particular case, a company was selling goods below cost and there was abundant proof that it wished to destroy its competition. 1 6 3 8 A n d the C o u r t let stand a law that required merchants to obtain a license to sell goods "designed or marketed for use" with unlawful

drugs. 1 0 7 1

But it struck down a law

aimed at war profiteering that prohibited making "any unjust or unreasonable rate or charge" and setting "excessive prices" for necessaries. 483 ! See

also:

DEATH MORAL

AGGRAVATING

PENALTY;

FAIR

TURPITUDE;

OVERBREADTH

COURTS;

VERDICT, DIRECTED

TRIAL,

PLACE

OF.

Under certain circum-

stances, judges may supplant the jury by "directing the verdict." Directed verdicts occur most frequently

when

one

side

has

not

presented

sufficient evidence to carry its burden of proof so that, in legal terms, the jury could not rationally render a judgment for that side. In criminal prosecutions, a judge may direct a verdict for the de-

CIRCUMSTANCES; WARNING

See also: DISTRICT

fendant if the evidence is legally insufficient to es-

DOCTRINE;

tablish g u i l t — i f , for example, the prosecution has

DOC-

failed to offer evidence to prove one element o f the crime. But a judge may never direct a verdict

TRINE.

for the state in a criminal case, no matter how V E N U E "Venue" means the location o f the court where a trial may be held. Article III-§2[3] and the SIXTH

AMENDMENT

require that federal

strong the prosecutors case, for under the SIXTH AMENDMENT the defendant is entitled to TRIAL BY J U R Y . 2 2 1 5 '

1445

criminal trials be held in the particular district

See

where the crime was committed. "District" refers

OF; REASONABLE

also:

PRESUMPTIONS;

PROOF,

BURDEN

DOUBT.

to the geographic area in which a federal district court sits. W h e n a crime is committed in more

V E S S E L S , see: a d m i r a l t y a n d

than one district, the trial may be held in any one

jurisdiction;

transportation

maritime

VETO POWER VESTED

RIGHTS

T h e concept of "vested

rights" was recognized early in our constitutional history in the seminal case MARBURY V. MADISON. Chief Justice John Marshall declared that because William Marbury had been duly commissioned a judge, he had a vested right to the office that not even the president could deprive him of: "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." By "vested legal right," Marshall meant simply that when the law confers particular offices or benefits on particular people, the government may not legally divest them of those benefits. In two of his great opinions, Marshall extended the notion under the CONTRACT CLAUSE to interests in land and in corporate charters. In Fletcher v. Peck in 1810, he declared that Georgia could not revoke land grants once made. In Dartmouth College v. Woodward, he ruled that New Hampshire could not usurp the authority of a college board of trustees to transform a private college into a public one. But owners do not, merely by virtue of ownership, have a vested right to do whatever they please with their possessions. Although the government is prohibited from confiscating property without providing JUST COMPENSATION, the states and the federal government may regulate property uses to protect the public health, safety, and well-being. Moreover, because an ENTITLEMENT is legally vested only to the extent that the law says it is, many benefits of the modern welfare state may be rescinded. A legislature that funds unemployment or welfare benefits may also state the conditions under which they can be forfeited. 893

See also: ECONOMIC

DUE PROCESS;

HEARING;

PROCESS

PROCESS

IS

TAKING

RIGHTS; OF

THAT

DUE;

PROPERTY.

V E T E R A N S ' P R E F E R E N C E Many states grant preferences to veterans in obtaining such things as public employment. In 1979 the Court upheld a Massachusetts "absolute lifetime" preference to veterans for state civil service jobs. Qualifying veterans are placed ahead of any nonveterans in the applicant pool. A nonveteran woman challenged the law as unconstitutional SEX DISCRIMINATION because 98 percent of the veterans in the state were male. The Court re-

jected the challenge, holding that the law was not intended to discriminate against women, since the law "serves legitimate and worthy purposes," has a negative impact on many nonveteran men as well as women, and does benefit those women who are veterans.1848 In 1986 the Court held that a state may not limit a veterans' preference on the civil service list only to those veterans who were residents of the state on a certain date and deny the benefit to veterans who moved to the state later. Any preference must be given equally to all veterans.115

See also:

DURATIONAL

RESIDENCY

LEGISLATIVE,

see:

REQUIRE-

MENTS.

VETO,

legislative

veto V E T O , L I N E - I T E M , see: l i n e - i t e m

veto

V E T O , P O C K E T , see: p o c k e t v e t o

VETO POWER "Veto power" usually refers to the president's express power in Art. I-§7U] to prevent bills enacted by Congress from becoming law. It is central to the system of CHECKS AND BALANCES within the federal government. Without it, presidents would be much less able to influence legislation and might be far less inclined to enforce laws of which they disapprove. The power is considerable: in more than 200 years Congress has managed to override fewer than 7 percent of vetoed bills. The president may accept the bill or he may veto for any reason, although he must state his objections in a message to the house that originated the bill. Congress may override the president's veto by reenacting the bill in each house by a two-thirds majority. The Court has ruled that the override need be by only two-thirds of members present in each house, as long as there is a quorum; thus an override does not require two-thirds of the entire membership. 1573 In responding to a bill presented to him after enactment, the president has only two choices: to accept or to veto the bill in its entirety. Although some governors have a power under their state constitutions to veto particular portions they dislike in a bill, the president does not have a general LINE-ITEM VETO. The Court rejected a 1996 law authorizing the president to "cancel" tax and spending provisions in certain bills. 473a The president may also exercise a POCKET VETO by failing to sign

529

530

VICE PRESIDENT a bill within ten days after Congress has adjourned.f See also: LEGISLATIVE

VETO.

V I C E P R E S I D E N T "Not worth a pitcher full of warm spit" was how President Franklin D. Roosevelt's first vice president, John Nance Garner, characterized his office. The vice president has but two constitutional duties: under Art. I-§3[4] to preside over the Senate and cast a vote only in the event of a tie; and under Art. II-§i[6], as amended b y the TWENTIETH a n d TWENTY-FIFTH AMEND-

MENTS, to wait for the president to die, resign, or become disabled or removed from office. In practice, the vice president presides over the Senate only on ceremonial occasions or when a vote is expected to be close. The vice presidents agenda is usually determined by the needs of the president. In recent years vice presidents have been dispatched on foreign missions and as stand-ins to rally the party faithful in speeches across the country. Some vice presidents have assumed administrative responsibilities, overseeing presidential task forces and coordinating federal programs. See TIAL

also:

ELECTORAL

COLLEGE;

PRESIDEN-

SUCCESSION.

unknown to him at the time of a shooting in an armed robbery, a murdered convenience store clerk was immoral. "Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty." See

V I C T I M I M P A C T S T A T E M E N T S In 1987 and 1989 the Court disallowed prosecutors, during sentencing in a capital case, to offer evidence of the impact of the killing on the victim's survivors or to comment to a sentencing jury on the personal qualities of the victim. 233, 2 1 9 8 The Court's concern was that so-called victim impact evidence violates the EIGHTH AMENDMENT'S com-

mand against cruel and unusual punishment, because the evidence might permit a jury to decide "that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy." But in 1991 the Court abruptly overruled its previous decisions. 1814 Chief Justice William H. Rehnquist concluded that the Court had erred in supposing that evidence about the nature of the victim and the impact of the killing would lead "to the arbitrary imposition of the DEATH PENALTY." Dissenting, Justice John Paul Stevens said that such evidence "serves no purpose other than to appeal to the sympathies or emotions of the jurors," noting that no one would allow the defendant to offer evidence that,

PUNISHMENT, STARE

CRUEL

AND

UN-

DECISIS.

V I E T N A M W A R In hindsight, Congress's 1964 GULF

OF T O N K I N

RESOLUTION

was a flimsy

basis on which to rest presidential authority to wage war in Vietnam. It was not a declaration of war, although it authorized a military buildup to respond to attacks on U.S. vessels. Resisting the legality of orders to report for military service and challenging the war directly, many litigants during the Vietnam decade, roughly from 1965 to 1975, sought court rulings that the war was unconstitutional because undeclared. In every instance, the Supreme Court and most lower federal courts refused to hear the cases, principally on the grounds that the war presented nonjusticiable political questions and that SEPARATION OF POWERS precludes judicial involvement in issues that should be resolved through the political H process. 114 See

V I C I N A G E , see: t r i a l , p l a c e of

also:

USUAL;

also:

POLITICAL

WAR POWER;

QUESTION

WAR POWERS

DOCTRINE;

RESOLUTION.

VIEWPOINT DISCRIMINATION, see: content and viewpoint discrimination; public forum V I N D I C A T I O N OF CONSTITUTIONAL R I G H T S Whether and to what extent an individual is entitled to relief when the government violates or threatens to violate a constitutional right depends on the circumstances. Some constitutional rights are almost impossible to vindicate in court because of STANDING requirements: when the government violates the Constitution in a way that affects all citizens equally, the courts will not entertain a constitutional challenge. The only real exception is for claims that the government is violating the ESTABLISHMENT CLAUSE

in granting aid to religious institutions. If the unconstitutional government action is directed toward a particular person, on the other hand, there is considerably more justification for challenging it. A defendant being prosecuted for violating an unconstitutional law can always raise the issue of unconstitutionality. Sometimes it is possible to obtain a DECLARATORY JUDGMENT

VISUAL CLUTTER or an INJUNCTION before the government en-

VIRGINIA

forces a law or carries out a particular policy, if

viding the delegates to the CONSTITUTIONAL

PLAN OF

O n e of the major issues di-

the law or policy is plainly unconstitutional. For

CONVENTION

example, a person challenging a PERMIT SYSTEM

which

1787

was the method

that gives absolute discretion to municipal o f f i -

Congress. Understandably, the small states wished

cials to decide whether or not to let demonstra-

all states to be represented equally; the large states

tors march or hand out leaflets need not risk a

advocated representation according to population.

the people should

be represented

by in

prosecution but can go to court to enjoin opera-

In the Virginia Plan, E d m u n d Randolph pro-

tion o f the system. But litigants disobey court or-

posed that Congress consist o f two houses, whose

ders at their peril. Even an unconstitutional in-

members would represent the states in proportion

junction must be observed until a higher court

to their free populations. T h e lower house would

overturns it on appeal. 2 4 6 0 Under the ABSTEN-

be elected directly by the people; the upper house

TION DOCTRINE, a federal court may grant re-

would be chosen by the lower house from a list of

lief against an unconstitutional proceeding in a

candidates supplied by each state legislature. T h i s

state court only in limited circumstances. For ex-

plan was bitterly opposed by the smaller states,

ample, the federal courts will consider a challenge

since three states alone—Virginia, Pennsylvania,

to the enforcement o f allegedly unconstitutional

and Massachusetts—held nearly half the popula-

state laws if the challenge is made before the pros-

tion o f the country and could therefore have been

ecution was begun 6 4 7 but will not entertain a

expected to control Congress. T h e small states

challenge to a pending prosecution. 2 6 2 2 Ordin-

countered with the N e w Jersey Plan. Both were

arily, also, an individual may challenge the ac-

ultimately rejected in favor of the GREAT COM-

tions o f administrative agencies only after pursu-

PROMISE, which resulted in the present composi-

ing all possible appeals within the administrative

tion of Congress.

body. A criminal defendant may vindicate the constitutional right against

SELF-INCRIMINATION

and the right to be free o f an

VISUAL

CLUTTER

Although

municipalities

have a legitimate interest in the aesthetics o f their

unreasonable

surroundings, attempts to ban "visual clutter"

SEARCH AND S E I Z U R E by i n v o k i n g the EXCLU-

carrying messages is fraught with constitutional

SIONARY RULE, which requires unconstitution-

difficulties. In a 1981 case a San Diego ordinance

ally obtained evidence to be excluded from trial.

banned all billboards except for signs advertising

W h e n a courts action is being challenged as

products sold on the premises, government signs,

unconstitutional, the litigant's only avenue o f re-

signs advertising homes for sale or lease, shopping

lief is through appeal within either the federal or

mall signs, and temporary political

state system

Supreme

signs. T h e city sought "to eliminate hazards to

criminal

pedestrians and motorists brought about by dis-

and ultimately

to the

C o u r t . Following some prosecutions,

campaign

defendants may file HABEAS CORPUS petitions in

tracting sign displays" and "to preserve and im-

federal courts to challenge the constitutionality o f

prove the appearance of the city." T h e C o u r t re-

their convictions in state courts. But not every

frained from deciding whether an absolute ban

constitutional error committed in court will nec-

would have been upheld; Justice Byron R. W h i t e

essarily result in a reversal of a conviction: the

focused, instead, on the city's

HARMLESS

a m o n g types of speech, holding that regulations

ERROR

rule protects

government

f r o m being held responsible in many instances. U n d e r federal CIVIL RIGHTS LEGISLATION,

discrimination

dealing with the content o f messages abridge free s p e e c h . 1 5 2 2 In a 1984 case the city of Los Angeles

persons whose rights have been violated by un-

removed f r o m utility poles a number o f posters

constitutional actions o f state officials may file

pushing the election o f a candidate for the city

suits for DAMAGES or injunctions. U n d e r lim-

council. T h e

ited circumstances, individuals m a y sue federal

against posting signs on public property. Because

officials

for

committing

CONSTITUTIONAL

city acted under an

the ordinance was content-neutral,

ordinance aimed

at

eliminating "the visual assault on the citizens o f

TORTS.

Los Angeles presented by an accumulation of See also: ADMINISTRATIVE

AND

signs posted on public property," the C o u r t up-

EXHAUSTION

held the ban. 4 6 5 In 1994 the C o u r t unanimously

CONSTITUTIONAL

struck down a municipal ordinance that banned

AGENCIES

BUREAUCRATIC

GOVERNMENT;

OF REMEDIES;

IMPLIED

RIGHT OF ACTION.

most types o f residential signs. 1 2 6 9 Margaret R

531

532

VOID-FOR-VAGUENESS

DOCTRINE

Gilleo, a resident of Ladue, Missouri, installed an 8.5-by-n-inch sign in a window on the second floor of her home that read, "For Peace in the Gulf." Asserting that the proliferation of signs "would create ugliness, visual blight and clutter, tarnish the natural beauty of the landscape as well as the residential and commercial architecture, impair property values, substantially impinge upon the privacy and special ambience of the community, and cause safety and traffic hazards to motorists, pedestrians, and children," the city council adopted an ordinance generally banning signs on residential property but permitting those, such as for-sale signs, that fell within one of ten exemptions. In the earlier cases, the Court had held that a regulation could be constitutionally fatal if it either "restricts too little speech because its exemptions discriminate on the basis of the signs' messages" or because "they simply prohibit too much protected speech." The city insisted that its ordinance restricted neither too little nor too much speech but was designed to deal with various problems of posted signs and was not aimed at the content of messages. Display of signs under each of the exemptions in the ordinance (for example, churches could display organizational signs) would not defeat the purposes, since relatively few churches and other organizations would post signs, and relatively few houses would be for sale at once. Justice John Paul Stevens said that even assuming the validity of those arguments, the ordinance was nevertheless an unconstitutionally impermissible infringement of the FREEDOM OF SPEECH because the city "almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns. . . . They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression." The city said that this fell in the category of TIME, PLACE, AND MANNER restrictions. Stevens disagreed because "adequate substitutes" do not exist: "Displaying a sign from ones own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because

of their location such signs provide information about the identity of the 'speaker.' . . . A sign advocating 'Peace in the Gulf' in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a io-year-old child's bedroom window or the same message on a bumper sticker of a passing automobile." Moreover, "residential signs are an unusually cheap and convenient form of communication," having "no practical substitute" for poor people. Nor is there a more convenient way of reaching neighbors. Finally, "a special respect for individual liberty in the home has long been part of our culture and our law." Justice Stevens noted that cities are not "powerless" to deal with "ills" associated with signs. He particularly observed that in voiding a complete ban, the Court had not confronted "mere regulations short of a ban" or held "that every kind of sign must be permitted in residential areas," for example, signs displayed for a fee. See also: SPEECH, REGULATION OF;

OF

CONTENT

ZONING.

VOID-FOR-VAGUENESS

D O C T R I N E , see:

vagueness

VOIR DIRE Old French for "to speak the truth," voir dire is the questioning of the jury panel to determine fitness to serve at a trial. Under the SIXTH AMENDMENT right to an impartial jury, a prospective juror must be excluded if his "views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 2459 A potential juror may not be allowed to sit if he or she has formed an opinion about the case or has a particular bias against the parties or against the race or other characteristics of the parties. In cases raising the possibility of racial bias, the defendant is entitled to question members of the jury panel about their possible prejudice.978 But special questioning about racial attitudes is not required whenever defendant and victim are of different races or ethnic groups; 1995 whether special questioning is necessary is for trial judges to decide case by case. 2027 Challenges on grounds of bias or of inability to abide by the juror's oath are known as "for cause" challenges, which the parties usually may exercise as often as necessary. In addition, both prosecution and defense are entitled to a certain number of peremptory challenges to keep someone off the jury for no reason at all. However, in Batson v. Kentucky the Court

VOTING, RIGHT TO held that it is a violation of the EQUAL PROTECT I O N CLAUSE f o r a p r o s e c u t o r to s y s t e m a t i c a l l y

exclude blacks from a criminal jury through use o f the PEREMPTORY C H A L L E N G E . Failure to

in-

clude, no less than failure to exclude, people with certain views may be unconstitutional. In 1968 the Court held that prospective jurors with doubts about the legitimacy of the DEATH PENALTY may not be excluded from the jury, as long as they would consider imposing it in the appropriate case. 2572 See also: JURY OF; JURY

AND

JURORS,

T E E N T H A M E N D M E N T . I n 1 9 2 0 the C o u r t u p -

held the power of Congress to ban intrastate as well as interstate sale, possession, and use of intoxicating beverages.1976 However, when the repeal came in 1933, the power of Congress to enact Prohibition laws automatically lapsed, and the Volstead Act became void. 426 See also: INTOXICATING

MORAL

TURPITUDE."1105

Justice

William

H.

Rehnquist said that the provision was adopted expressly to disenfranchise blacks and that it continued to do so disproportionately to whites, violating the EQUAL PROTECTION CLAUSE. See also: DURATIONAL MENTS;

VOTING,

RESIDENCY

RIGHT

REQUIRE-

TO.

IMPARTIALITY

DISCRIMINATION.

VOLSTEAD ACT The Volstead Act was the basic federal law embodying Prohibition. It was enacted over President Woodrow Wilson's veto in 1919, nine months after ratification of the EIGH-

FIRST

have served their sentences.1986 However, the justices unanimously struck down a provision of the Alabama constitution that denied the franchise to persons convicted of "any crime . . . involving

BEVERAGES;

TWENTY-

AMENDMENT.

VOTER QUALIFICATIONS With the exception of the broad prohibitions against discrimination based on race, sex, wealth, and age, the Constitution does not set voter qualifications. Under Art. I-§z[i], anyone eligible to vote for the state legislative branch with the most members (state houses or state assemblies) must be allowed to vote in that state's elections for the U.S. House of Representatives. But determining voter qualifications in state elections is a question for each state. Until relatively recently, many states used LITERACY TESTS to determine voter eligibility. Although it was never expressly condemned under the Constitution, the literacy test was outl a w e d b y the V O T I N G R I G H T S ACT o f 1 9 6 5 . T h e

only other general disqualifications are those of residency and conviction for a felony. Restriction of the polls to state residents who have properly registered is permissible, but in a number of cases during the past two decades the Court has limited the power of the states to deny voting rights to residents who have not lived in the state for a requisite number of months.670 The Court has expressly upheld the power of a state to deny the right to vote to convicted felons even after they

VOTING, RIGHT TO The right to vote is one of the fundamental political principles on which the nation was founded. The English kings' denial of that right was one of the chief justifications for revolution given in the DECLARATION OF INDE-

PENDENCE. Nevertheless, the Constitution of 1787 does not expressly provide a right to vote, although in three places it sets out rules and a principle that together amount to such a right. Article I-§2[i] confers the right to vote for members of the House of Representatives on anyone eligible to vote for the most numerous branch of the legislature in each state. Article I-§4[i] says that states "shall" prescribe the "time, place, and manner" of holding elections for members of Congress. Article IV-§4 guarantees each state a "republican form of government," which presumably commands that public elections be held for state legislators.* The franchise has over the years gradually been extended to broader and broader classes of citizens, and the power of the states to restrict that franchise has been reduced. Indeed, more constitutional amendments concern suffrage than any other subject. Once hostile toward attempts to police restrictions on voting, the courts are now willing to "carefully and meticulously scrutinize" any infringement of voting rights. 1971 Immediately after the American Revolution, most states limited voting to white males over twenty-one years of age with a certain amount of property. Many states also required the voter to swear a belief in God. Even in the free states, blacks were effectively denied the right to vote. At mid-nineteenth century, only Maine gave blacks and whites equal access to the polls. And in DRED SCOTT

V.

SANDFORD,

the

Supreme

Court

erased even that meager possibility in ruling that blacks simply could not be citizens. After the Civil War, the trio of Civil Rights Amendments opened up the possibility of voting for blacks. By giving Congress power to enforce

533

534

V O T I N G , R I G H T TO THIRTEENTH

Court held that Congress had the constitutional

AMENDMENT presumably enabled Congress to

its antislavery provisions,

the

authority to lower voting for federal but not state

outlaw discriminatory state voting policies, but

elections. 1766 Fearing mass confusion from con-

Congress did not act for a century. Section 2 of

flicting age limits when both state and federal

the FOURTEENTH AMENDMENT, in fact, seemed

candidates would be on the ballot, Congress pro-

to suggest that a state could disenfranchise its

posed the TWENTY-SIXTH AMENDMENT, lower-

black citizens by agreeing to lower its representa-

ing the voting age to eighteen in all elections. It

tion in the U . S .

was ratified on July 1, 1971.

House of

Representatives.

Despite widespread infringements on the right of

All but one of these constitutional extensions

blacks to vote, this provision was never enforced.

of suffrage were quickly and quietly accepted. In

In 1870 Republicans apparently saw electoral ad-

the seventy-two years since the

vantage to their party of enfranchising former

Amendment was ratified, only one case asserting

Nineteenth

slaves and succeeded in ratifying the FIFTEENTH

a violation of any of the later amendments has

AMENDMENT, which prohibits the federal gov-

surfaced in the Supreme Court. When Virginia

ernment and the states from discriminating on

attempted in 1965 to hold on to its POLL TAX, the

the basis of "race, color, or previous condition of

Court struck down the law. 998 Only the Fifteenth

servitude."

Amendment was widely disregarded from its in-

Popular sentiment did not endorse the same policy for women. For about thirty years after the

ception; only recently has widespread enfranchisement of blacks been achieved.

Declaration of Independence, women voted in

The Court recognized by the early 1880s that

New Jersey, but a state constitutional amendment

state constitutions 1 6 5 0 and laws 2609 are unconsti-

in 1807 disenfranchised them; no other state had

tutional if they formally restrict the franchise to

ever contemplated the possibility of women's suf-

whites. For roughly the next eighty-five years,

frage. In 1838 Kentucky let women into the vot-

many states experimented with more subtle ways

ing booths for school elections. Not until 1869, in

of denying black suffrage—sometimes through

the Wyoming Territory, did women win the gen-

explicit laws written to take advantage of appar-

eral right to vote in all elections; even then, they

ent loopholes in the Fifteenth Amendment, and

did not gain the right to vote in a state until

more often through discriminatory administra-

Wyoming joined the Union in 1890. Neither po-

tion of voter registration schemes. From 1896 to

litical nor legal strategies translated into action.

1904, when Louisiana adopted literacy, property,

During the next quarter century only ten more

and poll tax qualifications, black registration fell

states followed Wyoming's lead, and several re-

from 130,334 to 1,342.*

stricted women's suffrage to certain elections

One of the earliest devices to be struck down

only. T h e Court turned down a bid to read into

was the GRANDFATHER CLAUSE, which permit-

the Privileges or Immunities

Clause of the

ted whites to avoid literacy requirements

to

Fourteenth Amendment a general right to vote,

which blacks were strictly held. T h e Court inval-

holding that voting was a privilege of state but

idated Oklahoma's grandfather clause in 1915. 962

not national citizenship.

1562

Pressure for a consti-

T h e following year, Oklahoma enacted a more

tutional amendment mounted during World War

subtle grandfather clause, which the Court only

I, when large numbers of women went to work.

got around to invalidating in 1939. 1 2 8 4

With President Wilson's endorsement and the

T h e white primary laws proved equally recal-

support of Republicans and some Democrats, the

citrant. Throughout the one-party South in the

N I N E T E E N T H A M E N D M E N T w a s r a t i f i e d in 19ZO,

first half of the twentieth century, the composi-

a half century after formal suffrage for blacks.

tion of elected posts was determined in the pri-

In 1961 voters in the District of Columbia,

maries, not in the general elections. T h e winner

disenfranchised in federal elections since the

of the Democratic primary was sure to be elected

District became the national capital, gained the

in the general election. Texas passed a law re-

right to vote in presidential elections with the rat-

stricting primaries to white voters, asserting that

ification of the T W E N T Y - T H I R D A M E N D M E N T .

In 1970, responding to cries about the unfair-

a primary is not an election and therefore the law did not violate the Fifteenth Amendment. In

ness of sending young men to war when they

1927 the Court invalidated the law on equal pro-

could not even vote for their national leaders,

tection grounds. 1 7 0 2 Texas responded by repeal-

Congress enacted a bill lowering the voting age to

ing the white primary law and enacting instead a

eighteen in all elections. Later that year, the

law delegating to the executive committees of po-

VOTING, RIGHT TO litical parties the authority to determine who could vote in primaries. This time the state argued that private political parties could not violate the equal protection clause, since it applies only to STATE ACTION. The Court invalidated this scheme also, holding that the executive committee had become an agent of the state.1700 Undaunted, Texas again amended the law, this time handing over the task of registering primary voters to the entire membership of the party. For a time, the Court was fooled by this subterfuge,957 but in 1941 it held that a primary is an election,469 and in 1944 it finally declared that whenever a political party operates primaries with the active cooperation of the state, it is an agent of the state.2171 The white primaries were almost dead. The Court administered the coup de grace in 1953,2308 when it voided still another Texas system. The Jaybird Democratic Association, a purely private political organization that excluded blacks, held its own primary in May. The Jaybirds had no official connection with the Texas Democratic Party, was not organized under state election laws, and did not use state funds or voting machinery. But for sixty years, with one exception, the winner of the Jaybird primary ran unopposed in the July Democratic primary and went on to win the November general election. This practice, too, the Court said, violates the Fifteenth Amendment. In addition to these long-standing legislative discriminations, state executives carried on an even longer-running policy of administrative discrimination, centered mainly on LITERACY TESTS. Congress finally outlawed these tests in the 1975 a m e n d m e n t s to the VOTING

RIGHTS

ACT.

Sporadically, the states and municipalities devised other, often unique methods of diluting the voting strength of blacks. The most famous example was the racial GERRYMANDERING of Tuskegee, Alabama. The town drew a border with twenty-eight sides to fence out the black residential sections. The Court invalidated the scheme in i960 on equal protection grounds.903 More recendy, the Court upheld lower-court rulings that an at-large election system for a rural Georgia county with a majority of black citizens was intended to and did dilute their voting power.2016 The Court signaled in 1976 that it is mainly concerned with the division between black and white representation and gives less credence to vot° ^ik'UOH c'r.'mp c^* other PTOUOS. '*• unhel:'

New York's redrawing of Brooklyn voting districts to guarantee black representation in the state legislature. To do so, the state had to split apart several white districts, including the thirtythousand-member Hasidic Jewish community. There was no single opinion to which a majority adhered, but the Court seemed to be saying that the redrawing, carried out to comply with the Voting Rights Act, was intended to benefit one group, not to harm the other. As whites, the Hasidic community as a group was "provided with fair representation," said Justice Byron R. White.2402 Ultimately, the general enfranchisement of the black community came about not through constitutional rulings of the Supreme Court but through a powerful, even revolutionary, piece of legislation: the Voting Rights Act. In 1982 the Court noted that "the right to vote, per se, is not a constitutionally protected right" and upheld a rule permitting a vacant seat in the Puerto Rico legislature to be filled by someone from the political party of the member whose seat was prematurely vacated.2013 In other words, there is no constitutional right that every legislator sitting in the legislature be elected by the voters; rather, the various amendments mean that whenever the voters do get to choose, the franchise must be equally open to all. Aside from the general problem of racial discrimination, in the past thirty years the Court has pursued a somewhat uneven course of striking down laws that limit certain types of elections to "interested voters." In 1965, for example, the Court upset a Texas law denying the vote to a member of the armed forces, who was a bona fide resident of the state.406 In 1969 the Court struck down a New York law restricting the franchise in New York City school district elections to people who owned or leased property in the district or had children enrolled in a local school.1257 In other decisions, the Court has invalidated laws limiting elections about municipal bonds to property owners.462, 1860 Somewhat inconsistently, however, it has upheld policies restricting to landowners the right to vote in water storage and reclamation district elections, and it has even permitted the voting to be apportioned by the amount of property—"one acre, one vote" rather than ONE PERSON, ONE VOTE. 2 0 6 2 '

135

The Court has also considered the problem of nonracial exclusions from party primaries. A closely divided Court upheld New York's "antiraidir^" law requ'-irp; vor?rs affili-st? *v!th •!

535

536

V O T I N G RIGHTS ACT party thirty days or more before a general election to be eligible to vote in that party's primary the following year. 2 0 2 8 T h e effect was to force voters to remain affiliated with a party for as much as eleven months. But the Court overturned an Illinois law barring anyone from voting in a party primary "if he has voted in the primary of any

he passes this test. He may be asked to recite the entire constitution, or explain the most complex provisions of state laws. And even a college degree cannot be used to prove that he can read and write. For the fact is that the only way to pass these barriers is to show a white skin.

other party within the preceding 23 months" be-

Congress responded with the Voting Rights

cause the law in effect '"locks' voters into a pre-

Act of 1965. In many ways it was the most radical

existing party affiliation from one election to the

CIVIL

next, and the only way to break the 'lock' is to

provisions were triggered in mostly

RIGHTS

LEGISLATION

ever e n a c t e d .

Its

southern

forgo voting" for two years. 1 2 6 1 In 1986 the C o u r t

states and political subdivisions with less than 50

invalidated a Connecticut law prohibiting any-

percent registration in 1964. T h e act suspended

one from voting in a party primary w h o was not

LITERACY TESTS, educational requirements, and

registered as a member of that party. T h e C o u r t

other obstacles to voter registration, and required

upheld the Republican Party's right to welcome

any state where tests were suspended to seek

nonregistered independents to vote in its pri-

clearance either from the attorney general or a

maries.

federal court before making any change to a vot-

229 ,

'

Finally, the C o u r t has specifically upheld the power of states to disenfranchise convicted felons, even after they have served their sentences. 1 9 8 6 T h e C o u r t based its conclusion on Sect. 2 of the Fourteenth A m e n d m e n t , which provides an exception for "participation in . . . crime" to the c o m m a n d that a state's denial o f the right to vote must lead to a decrease in its

congressional

representation. See

also:

VOTING;

APPORTIONMENT

DISTRICTS;

tended the act to all the states. Various registration tests, including literacy tests, were abolished, other triggering years were added, and the clearance provisions were extended to 2007. T h e act has spawned dozens o f cases interpreting its scope and reach, and few of them purely constitutional. For example, when a black candidate was elected to an Alabama county commission that had au-

ABSENTEE

BALLOT;

ing system that might abridge anyone's right to vote. Amendments in 1970, 1975, and 1982 ex-

CAMPAIGN

TO

thority to supervise the maintenance and con-

POLITICAL

struction of country roads, the holdover commis-

ACCESS

OF

sioners

changed

the

rules

by

which

the

FINANCING;

DURA-

TIONAL

RESIDENCY

REQUIREMENTS;

ELEC-

commission operated, so that the newly elected

TORAL

COLLEGE;

GUARANTEE

CLAUSE;

black member who would otherwise have had

ORDER,

RESOLUTION,

OR

SEVEN-

TEENTH

AMENDMENT;

VOTER

TIONS;

WRITE-IN

VOTE.

VOTING

RIGHTS

ACT

VOTE;

QUALIFICA-

roads in his district was assigned instead to oversee maintenance of the county courthouse. H e challenged the commission's rules as a RACIAL

Despite the Court's

willingness since the 1940s to disallow infringements of the rights of black voters, it was costly, time-consuming, and ultimately ineffective to resort to lawsuits. In 1965, reacting to violence in southern

considerable authority to spend public money on

voter registration

drives,

President

Lyndon B. Johnson told Congress Every device of which human ingenuity is capable has been used to deny [the right to vote]. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application. And if he manages to fill out an application, he is given a test. The registrar is the sole judge of whether

DISCRIMINATION

that

violated

the

Voting

Rights Act because the rule changes were not cleared by the Justice Department under the act's procedures. T h e C o u r t denied his claim, holding that only rule changes affecting voting are governed by the act. T h e changes within the commission "affected only the allocation of power among governmental officials. . . [and] had no impact on the substantive question whether a particular office would be elective or the procedural question how an election would be conducted.'"901 However, in cases testing whether the act itself is constitutional, the Court issued significant rulings affirming a very broad power of Congress to enforce the provisions o f the FIFTEENTH

AMENDMENT.

Against arguments that Congress may not declare

VULGARITY that state policies violate the antidiscrimination

alone may determine what the Constitution means.

rules of the Fifteenth and FOURTEENTH AMEND-

In 1997, however, the Court made it clear that

MENTS unless a court had first held them to do so,

Congress's power is limited to declaring remedies for

the Court held that Congress may "prohibit state ac-

governmental acts that violate the Fourteenth and

tion t h a t . . . perpetuates the effects o f past discrim-

Fifteenth Amendments, not to extending the con-

ination." 2 0 2 3 - 2 2 0 0 In essence, the Court seemed to be

stitutional rights the Court has said are embodied in

saying that it would defer to Congress's judgment

those amendments. 2 2 6

about the extent of the antidiscrimination policies of the Fourteenth and Fifteenth Amendments and

See

that Congress may read them more broadly than the

IMPACT DISTINCTION;

also:

GERRYMANDERING;

PURPOSE-

VOTING, RIGHT TO.

Court w o u l d . 1 2 " M a n y commentators suggested that this was a rare exception to the general rule, es-

VULGARITY,

poused in MARBURY V. MADISON, that the Court

cent

speech

see: o f f e n s i v e

and

inde-

537

WAGE

AND

HOURS

LEGISLATION,

employment

legislation

WAGE

PRICE

AND

price and wage WAITING idency

CONTROLS,

see:

see:

controls

P E R I O D , see: d u r a t i o n a l

res-

requirements

and enlarging the president's, both to ensure that the president would have the power, in Madison's words, "to repel sudden attacks" and to prevent Congress from interfering with the president's power to conduct the war as COMMANDER IN CHIEF once war had been declared.* In deploying troops, presidents have pointed to their power as commander in chief, their EXECUTIVE POWER, and delegations of congres-

W A I V E R OF C O N S T I T U T I O N A L see: r i g h t s , w a i v e r WALL

OF

RIGHTS,

of

SEPARATION,

see:

religious

establishment WAR,

CONSTITUTIONAL

see: r i g h t s in

RIGHTS

IN,

wartime

WAR, D E C L A R A T I O N OF Article I-§8[ll] gives Congress exclusive power to "declare war." Despite the seeming definitiveness of the grant, only five of all the wars or military operations in which the United States has engaged have been declared officially by Congress: the War of 1812, the Mexican War (1846-48), the SpanishAmerican War (1898), World War I (1917-18), and World War II (1941-45). A sixth, the quick rout of the Iraqis in Kuwait in 1991, was fought after Congress expressly authorized the president to commit troops to battle if Baghdad refused to withdraw. U.S. military forces entered other major wars, however, including the Korean War (1950-53) and the Vietnam War (1964-73), without explicit congressional declarations. As the war power was originally conceived at the CONSTITUTIONAL CONVENTION OF 1 7 8 7 ,

Congress was to have the sole power not merely to declare but "to make war." That provision was ultimately amended, narrowing Congress's role

sional authority to act. For example, in 1950, when he ordered U.S. troops to fight the North Koreans, President Harry S. Truman relied on a United Nations resolution, U.S. treaty obligations, and authority as commander in chief to protect American foreign interests. Because the Constitution divides war powers, giving Congress the power to declare war and the president the power to wage it, the issue ultimately has turned more on politics than constitutional law. Never in our history has the Supreme Court spumed a presidents decision to send troops into batde. As early as 1827 1441 and on many occasions thereafter, the Court has sustained such decisions. The first major test of the president's power to commit troops came in April 1861, when without seeking congressional approval, President Lincoln imposed a blockade of southern ports and seized several ships of neutral nations. Although Congress later ratified the blockade, the question remained whether the president had the independent power to initiate military action. Ruling 5-4 in the Prize Cases, the Court said it was not necessary for Congress to declare war because a state of war in fact existed: "If a war be made by invasion of a foreign nation, the president is not only authorized but bound to resist force, by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. . . . The president was bound to

WAR POWER meet [this greatest of civil wars] in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact." In recent times, including during the Vietnam era, the Court has refused to consider challenges to the president's power to commit troops without congressional authority. See

also:

DELEGATION

TONKIN

RESOLUTION;

POWER;

WAR POWERS

DOCTRINE; WAR,

GULF

STATE

OF;

OF WAR

tary trials of acts "against the law of war." 1927 After World War II the Court also upheld the conviction and death sentence of General Tomoyuki Yamashita, under whose command the Japanese forces in the Philippines committed innumerable atrocities. Yamashita asserted that he was being tried ex post facto, since there was no law prohibiting aggressive acts of war. The Court said essentially that the decision to try war leaders is the exclusive prerogative of the president and the military.2607

RESOLUTION. See also: EX POST FACTO

WAR,

STATE

OF

In international law, and

under many federal laws, a "state of war" permits many emergency measures that would otherwise be unlawful—including the power of the president to commit troops and to seize enemy property. The Court has made it clear that a state of war does not depend on a formal declaration of war. It may exist before a formal declaration and after military action has ceased; likewise, a state of war may have ceased even though a formal peace treaty has not been signed." 06 The Court is much more likely to scrutinize and even reject presidential actions or laws that touch on constitutional rights after a war has ended than during the war. As the Court noted in upholding a rent control law in 1948, "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the NINTH and TENTH AMENDMENTS as well." 2590 See

also:

WARTIME;

CLAUSES.

CONSTITUTIONAL

RIGHTS

IN

WAR POWER.

WAR CRIMES During World War II German saboteurs were caught in the United States. They were tried by a military tribunal and convicted for failing to wear insignia indicating their combatant status, even though no federal law required them to do so. The Court was unimpressed by the defendants' arguments that the lower court lacked JURISDICTION because it had been convened by presidential order, followed rules devised solely for the occasion, and convicted them of a crime not specifically established by federal law. The Court said that the trial was permissible under a federal law authorizing mili-

WAR POWER "War power" is a popular, not a constitutional, phrase, shorthand for a congeries of provisions that together endow the federal government with almost limitless power to wage hot wars and sweeping power to fight cold ones. Abraham Lincoln may have been the first to use the singular "war power" to refer to the various powers to combat an enemy;* the Supreme Court adopted the language in 1875.980 But relatively few constitutional decisions have emerged from the Supreme Court, and most of these have affirmed the power of one or the other or both branches of government. Only on rare occasions has the Court been called upon to resolve tensions between Congress and the president. Four major issues have arisen over the extent and location of the war power. First and easiest to answer is whether the war power is exclusively that of the federal government. Second is the breadth of the power. Third is the division of the power between Congress and the president. The fourth issue concerns the limits imposed by the Constitution not only on war making proper but on the domestic consequences of war policies. Alexander Hamilton was the earliest advocate of the now-accepted view that the war power must be a broad national power. As he argued in Federalist 23, "The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed." The Constitution clearly entrusts that power to the federal government. Clauses 9 and io of Art. I-§io prohibit the states from making treaties, keeping troops or ships in peacetime, or engaging in war, unless invaded. Four clauses of Art. I-§8—11, 12, 13, and 14—assign to Congress the power to declare war and to raise, provide for, and govern the armed forces. Article II appoints

539

540

WAR

POWER

the president commander in chief, and Art. IV-§4 commits the federal government to protect the states against invasion. In 1936 Justice George Sutherland said in a well-known passage of doubtful historical accuracy* that the war power is an inherent power of the federal government because the SOVEREIGNTY of Great Britain "passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America." 574 Contrary to the general notion that the federal government is one

the federal government Hamilton's unshackled power. 1338

phone and telegraph systems; to fix prices of foodstuffs; to set coal prices and regulate coal production; and many other powers. In World War II there were even more sweeping controls over the national economy. Consumer prices, including rents, were subject to regulation, as were commodity prices; many consumer goods were rationed. The president could seize war-related factories closed by strikes, censor radio communications, shift appropriated funds between federal departments and agencies, and recover "excess profits" under war production contracts. The constitutionality of most of these programs never reached the courts, but the Supreme Court took the opportunity to broadly uphold Congress's power to control profits when it compared the Renegotiation Act to the Selective Service Act: "The authority of Congress to authorize each of them sprang from its war powers. . . . Both acts were a form of mobilization. The language of the Constitution authorizing such measures is broad rather than restrictive . . . [placing] emphasis upon the supporting as well as upon the raising of armies." 1338

Whatever the theory, the war power as a whole has been the constitutional basis for an astonishing array of federal policies not directly connected to military operations during war. The courts have sustained almost all war power policies that Congress and the president have pursued in tandem. Despite many challenges, the Supreme Court has never rejected a federal CONSCRIPTION law, even in peacetime. During the Vietnam era, Chief Justice Earl Warren noted in United States v. O'Brien, the draft card burning case, "The power of Congress to classify and conscript manpower for military service is 'beyond question. " Once enlisted or commissioned, members of the armed forces may claim fewer constitutional protections, despite the Court's occasional denials that the United States government may ignore the constitutional rights of soldiers and sailors.2036 As the Court put it the year that American military involvement in Vietnam ended, "Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society]." 1803 During the major declared wars—World War I and World War II—Congress enacted controls over every facet of the economy. In World War I Congress delegated extensive power to the president to take over factories, railroads, and the tele-

Even in peacetime, the war power has been used to uphold an array of federal programs, such as the Tennessee Valley Authority, authorized by the National Defense Act of 1916. 105 The Atomic Energy Act, highway construction projects, the national space program, and even federal financial support for education have all been justified, without serious legal challenge, by the war power. The war power does not end when hostilities cease. As the Court has said, "[The war power] is not limited to victories in the field. . . . It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress."2249 Though no formula describes the boundaries of Congress's power to act after the shooting stops, it is not limitless; the Court considers the issue case by case. For example, the Court sustained a post-World War I Prohibition Act, enacted after the armistice was signed in 1918,981 but it rejected a rent control law in the District of Columbia in 1924 on the ground that the war emergency had ended.439 By a 5-4 vote, it upheld the president's decision to deport certain enemy aliens even after World War II had ended under delegated authority to deport during wartime. 1387 The most serious debates about the war power have arisen over the degree to which the president may commit troops in the absence of a formal

o f ENUMERATED POWERS, Sutherland asserted

that "the power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality." A less sweeping theory, with no less sweeping results, is that the explicit powers of Art. I and II, together w i t h t h e N E C E S S A R Y A N D PROPER C L A U S E , g i v e

WASTE DISPOSAL congressional declaration of war or otherwise act militarily under his power as commander in chief, without congressional authority, and the extent to which other constitutional provisions limit the reach of the war power. These subjects are treated in separate headings. See

abo:

ARMED

TRINE;

EXECUTIVE

POWER;

IMPLIED

MILITARY RIGHTS

FORCES; AND

COURTS IN

POWERS RESOLUTION;

FOREIGN

POWERS;

JUSTICE;

PIRACY;

STEEL

OF;

DOCAFFAIRS

INHERENT

AND

WARTIME;

WAR, DECLARATION

DELEGATION

POWER;

SEIZURE

WAR, STATE

WAR

CASE; OF; WAR

PRIZES.

W A R P O W E R S R E S O L U T I O N In 1973, over the veto of President Richard M. Nixon, who by then had been politically weakened by the spreading WATERGATE scandal, Congress passed the War Powers Resolution, by which it hoped to narrow the scope of presidential war making. The resolution says that the president may commit troops to battle in three situations only: (1) when Congress has declared war, (2) when Congress has specifically authorized troops to be deployed, or (3) when the United States has been attacked. If troops are deployed without a declaration of war, the president must report his actions to Congress within forty-eight hours and must withdraw the troops within sixty days unless Congress has either declared war or extended the period. At any time during the sixty days, Congress by concurrent resolution could order the troops withdrawn. This last provision, though never tested in court, seems clearly unconstitutional as a LEGISLATIVE V E T O . 1 1 2 5 Whether the War Powers

Resolution is otherwise constitutional has not yet been tested. Critics suggest that far from restricting the president, it may serve to give him a blank check to send troops into hostilities, for what constitutes an "attack" on the United States or its possessions is a large question, one that may forever be unanswered, at least in the courts. In 1982 President Ronald Reagan ignored the resolution in sending troops into Lebanon; Congress responded by authorizing troops to remain eighteen months. In 1986, ordering navy and air force planes to drop bombs on Libya, President Reagan consulted leaders, but not Congress as a whole, only three hours before the bombs fell. In late December 1989 President George Bush sent troops into Panama after the newly proclaimed head of government, Manuel Noriega, declared his country "to be in a state of

war" with the United States and after an off-duty U.S. soldier was killed at a roadblock. Although President Bush ignored the War Powers Resolution, most members of Congress said they supported the invasion. He ignored the War Powers Resolution again in 1990, when he sent massive numbers of troops to the Persian Gulf, although he ultimately secured congressional consent before beginning "Desert Storm," the brief war against Iraq to liberate Kuwait. In the give-andtake between Congress and the president, the issue presumably will remain controversial. W A R P R I Z E S War prizes are enemy properties captured during war, including military vessels, arms, and even possessions of civilian subjects of the enemy power. Property subject to capture and the manner of its disposition are exclusively for Congress to decide. 2 3 3 1 During the Civil War and the world wars, Congress enacted several laws specifying property that could be confiscated. Property of enemy nations or enemy aliens is not subject to the limitations of the JUST

COMPENSATION

Clause

in

the

FIFTH

AMENDMENT, even if that property is within the United States. 300 ' 4 2 0 ' 9 8 8 Even property of friendly aliens may be seized. 2 1 5 1 Federal law and treaties override international law of capture and prize, but in their absence the courts must apply international law to determine whether property may be seized. 2330 W A R R A N T , see: s e a r c h

warrant

WARRANTLESS S E A R C H , see: s e a r c h and seizure: with and without warrants WARRANTS, knock

EXECUTION

OF, see:

no-

entry

W A S T E D I S P O S A L In 1994 Justice Anthony M. Kennedy noted the "number of recent cases we have heard involving waste transfer and treatment." 3 "' 0 Problems of waste disposal have reached the Court as the states have scrambled more and more to find ways of managing the increasingly heavy production of toxic and other wastes throughout the country. In 1978, in Philadelphia v. New Jersey, the Court ruled that the COMMERCE CLAUSE prohibits a state from banning the importation of solid or liquid waste. A state may regulate its landfills to prevent clogging, but only if it regulates the rate at which all

541

542

WATER RIGHTS DISPUTES B E T W E E N STATES garbage may be dumped; states may not discriminate against outside waste. Building on the Philadelphia case, the Court in the 1990s has invalidated a number of protectionist waste schemes. The Court struck down an Alabama law imposing a special fee on hazardous wastes brought into the state for disposal. The fee did not apply to wastes deposited in hazardous waste facilities if they were generated within the state. Said an 8-1 majority, "No state may attempt to isolate itself from a problem common to the several states by raising barriers to the free flow of interstate trade." 442 Alabama sought to justify the fee by pointing to several local interests that could not be adequately served by nondiscriminatory alternatives, including conserving natural resources and reducing the overall flow of wastes traveling on the state highways. But the state failed to explain why all these interests would not be served equally by imposing a fee on in-state wastes. For similar reasons, the Court rejected a Michigan law that made it more difficult to dispose of wastes in any county if they were not generated there. Michigan argued that the law did not discriminate against INTERSTATE COMMERCE, since it burdened the disposal of wastes generated within as well as outside the state. A 7—2 majority disagreed. A state may not engage in protectionist activity "by curtailing the movement of articles of commerce through subdivisions of the state, rather than through the state itself." 795 Nor may states employ discriminatory taxes or fees in an attempt to sidestep direct regulation. Oregon imposed on operators of landfills a surcharge for disposing of wastes generated out of state. The fee for wastes generated in state was eighty-five cents per ton; the surcharge was two dollars and twenty-five cents per ton. Writing for a 7 - 2 majority, Justice Clarence Thomas held that "the surcharge patently discriminates against interstate commerce," even if it "merely recoups the costs of disposing of out-of-state waste in Oregon." 1 7 6 7 Laws that facially discriminate are almost always invalid; they can be upheld only if the surcharge "advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives." Oregon insisted that the surcharge was merely a "compensatory tax" by which shippers pay their "fair share" of costs imposed on Oregon when out-of-state wastes are disposed of in state. But to justify a tax as compensatory, the state must first identify the intrastate tax burden it seeks to compensate and then show that the out-of-state tax is roughly

proportional to, and does not exceed, the intrastate tax burden. In this case, such a showing could not be made. The tax on in-state waste was only a third of the tax imposed on out-of-state waste. To finance a nonhazardous solid-waste transfer station, the town of Clarkstown, New York, passed an ordinance requiring that all solid waste be deposited at the transfer station and that the hauler pay eighty-one dollars per ton for processing. The fee exceeded the cost of disposing of unsorted solid wastes on the private market. A private solid-waste processor within the town limits had been receiving bulk shipments of solid waste, sorting it, and then shipping it to other processing facilities. The ordinance now required it to take all nonrecyclable solid waste, which it had already sorted, to the town transfer station and to pay a fee that included the cost of sorting, rather than simply shipping it to other waste sites as it had been doing. For a 6—3 majority, Justice Anthony M . Kennedy held that the ordinance clearly affects interstate commerce because it "drives up the cost for out-of-state interests to dispose of their solid waste" and deprives out-of-state shippers of access to a local market, namely, the private processor. This effect is discriminatory, Justice Kennedy declared, because it "hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility." He concluded that "state and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities." 350 See also: DORMANT TION

OF

COMMERCE

INTERSTATE

CLAUSE:

COMMERCE;

TAXATENTH

AMENDMENT.

WATER RIGHTS DISPUTES BETWEEN S T A T E S , see: s t a t e s , d i s p u t e s b e t w e e n W A T E R G A T E Two substantial constitutional issues bubbled to the surface of the boiling pot of controversy and crisis that constituted the Watergate scandal. The Supreme Court's answer to one rendered moot any test of the other. On June 17, 1972, five men broke into Democratic headquarters in Washington, D . C . With the help of aggressive investigative reporting by Bob Woodward and Carl Bernstein of the Washington Post and the strict courtroom demeanor of the trial judge, John J. Sirica, the burglars were shown to be employees and agents of

WEALTH CLASSIFICATION AND DISCRIMINATION the Committee to Reelect the President. Responsibility for the break-in was ultimately traced to the highest officials of President Richard M . Nixon's campaign committee, including his former attorney general, John N . Mitchell.

cision, Nixon resigned, the first president ever to do so. The resignation made the impeachment proceedings unnecessary; the full House never did vote on them.

At the burglars' trial in early 1973, following the November elections that gave President Nixon a landslide, they recanted their guilty pleas, asserting that they had been coerced into keeping quiet and even into committing perjury. A Senate investigating committee, headed by North Carolina Democrat Sam J . Ervin, was quickly formed, and the nation sat astonished into the summer of 1973 as the daily televised hearings and the rapidly multiplying stories in the nation's newspapers produced mounting evidence of a White House campaign that included other unlawful break-ins, misuse of campaign funds, political spying, campaign law violations, and more. In that summer it was revealed that the White House had secretly tape-recorded many of the president's conversations; but when a special prosecutor subpoenaed the tapes, the president resisted. The special prosecutor pressed the issue in court.

TWENTY-FIFTH

Simultaneously with the court case over the tapes, the Judiciary Committee of the House of Representatives initiated impeachment proceedings. Both reached a climax in July 1974. The Supreme Court, hearing the case on an expedited basis, ruled 8 - 0 in United States v. Nixon (Justice William H. Rehnquist having recused himself) that although under most circumstances the president has an EXECUTIVE PRIVILEGE to keep his documents confidential, the right of the trial court to the requested tapes was even more important because the president could point to no specific danger that might result and both prosecution and defense could show a particular need for them. 1 7 0 4 That same month the House Judiciary Committee reported to the full House three articles of impeachment, following a ninemonth-long debate over whether the House could constitutionally impeach only for actual crimes or could impeach also for political corruption, overreaching, and breach of trust. The House committee voted to impeach on three counts: obstruction of justice, violation of citizens' constitutional rights, and refusal to hand over papers to the committee. The Court's opinion left him no room to maneuver. President Nixon capitulated, and it soon became clear that he had indeed been engaged in a cover-up. Within three weeks of the Court's de-

Watergate also prompted the first use of the AMENDMENT

for

presidential

and vice presidential succession. In October 1973 Vice President Spiro T. Agnew resigned in a bribery scandal, allowing President Nixon to name Representative Gerald R. Ford the first person ever to be appointed vice president of the United States. Ford became president upon Nixon's resignation, the only person ever to serve both as vice president and president without having been elected to either position. President Ford raised a further constitutional controversy when, a month after taking office, he pardoned President Nixon of all crimes he may have committed. See also: IMPEACHMENT FICIALS; TIONS,

PARDONS,

AMNESTIES;

OF-

COMMUTA-

PRESIDENT,

IMMU-

W A T E R W A Y S , see: b r i d g e s a n d ways

water-

NITY

AND

OF GOVERNMENT REPRIEVES,

OF.

WEALTH CLASSIFICATION AND DISC R I M I N A T I O N There is no general constitutional rule against "wealth discrimination"—laws or regulations affecting rich and poor differently. Poverty is not an inborn characteristic; neither the EQUAL PROTECTION CLAUSE nor any other

constitutional provision requires the government always to waive all costs of programs or benefits or to provide funds so that the poor can obtain goods or services that would otherwise be beyond their means. In large part, the Courts reluctance to construct a rule of equality of rich and poor is due to the relativeness of the terms. To say that the government may not condition benefits on the race of the recipient is one thing; the rule is easy to state and to administer. The difference between rich and poor, however, is not absolute but relative. By what standard could the courts determine when a person is so poor that he is constitutionally entitled to a benefit the rest of us must pay for?* The Court on some occasions, however, has announced a rule against wealth discrimination when fundamental rights would be conditioned on making payments beyond a person's means. Thus the Court declared a POLL TAX uncon-

543

544

WEAPONS stitutional on the ground that some people too poor to pay would be denied the franchise, 100 ' and it has struck down state laws that required indigent candidates to pay filing fees they could not afford. 3 1 4 ' 1 3 8 4 The Court has also created a partial constitutional right of access to courts and legal process. It has struck down rules requiring defendants to supply costly transcripts when appealing their criminal convictions, holding that the state must pay the cost;946- 2 0 0 3 declared on SIXTH AMENDMENT grounds, in the well-known case Gideon v. Wainwright, that states must appoint counsel to criminal defendants who cannot afford to hire their own lawyers; held that indigent defendants are entitled to free counsel whenever the states guarantee a right to appeal a conviction; 655 and voided, on DUE PROCESS grounds, a Connecticut court rule that barred people from seeking divorces unless they could pay filing fees. 225 The Court also ordered the state to pay the cost of a blood test for a defendant in a noncriminal paternity suit 1348 and to provide a psychiatrist to an indigent defendant to help prepare an insanity defense. 29 In 1996 the Court held that "before [a woman] is forever branded unfit for affiliation with her children," the state must waive an indigent's appellate court costs when she wishes to contest a judicial order terminating parental rights. 1402 This right of access to courts does not hold for every charge the state cares to make, nor does it open every court to indigent parties. The Court has declined to require that costs be waived in appeals not legally required (in many states the APPELLATE COURTS have discretion whether or not to hear an appeal). 2032 And in rejecting a claim that a fifty-dollar filing fee in bankruptcy cases is unconstitutional, the Court disavowed "an unlimited rule that an indigent at all times and in all cases has the right to relief without the payment of fees." 1258 Following the bankruptcy rather than the divorce ruling, the Court also sustained a twenty-five-dollar filing fee as a condition to an appeal when a state agency denied welfare benefits.1773 And in a series of cases, the justices have refused to recognize a general right to the assistance of counsel in civil cases; for example, an indigent mother is not constitutionally entitled to a lawyer in a hearing to determine parental status. 1291 In certain other limited areas the Court has overturned laws because of their impact on the poor. In one line of cases, it has barred extra im-

prisonment beyond the maximum sentence for defendants who could not afford to pay off monetary fines.2538, 2294 ' 169 It has voided laws that require long waiting periods before indigents moving into a state can avail themselves of welfare benefits. 2132, 1513 And it rejected a Texas law that refused free public education to children of illegal aliens. 1879 But the Court has rebuffed several major attempts to use poverty as a basis on which to force the government to provide benefits or satisfy important interests of the poor. For example, it has rejected a challenge to funding public education through property taxes raised by local school districts. 2065 Mexican-American parents in San Antonio, Texas, argued that this method of school funding violated equal protection because it meant that tax revenues in the poorer school districts would result in schools far inferior to those in much richer school districts. Speaking for a 5-4 majority, Justice Lewis F. Powell saw no merit in the wealth discrimination argument, because schoolchildren were not absolutely denied the right to an education (unlike defendants without transcripts, who were absolutely denied the right to an appeal) and because there was no reason to believe that the poor were clustered in only the poorer districts (many of the poor were in industrial districts with considerable school revenue from business taxes). The Court has denied any constitutional right to the "necessities" of life, even food and shelter. For example, it sustained a Maryland program that limited the amount of welfare benefits to families. 582 And in upholding an Oregon policy that made it easy for landlords to evict tenants who had failed to pay their rent, Justice White declared for the 5-2 majority that "[w]e do not denigrate the importance of decent, safe and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of [rent]." 1343 See also: ACCESS MENTS;

COUNSEL,

ASSISTANCE

TO; DURATIONAL EQUAL

PROTECTION

WELFARE BENEFITS,

WEAPONS, and bear

see:

OF;

RESIDENCY

RIGHT

arms,

COURTS, REQUIRE-

OF

THE

LAWS;

right

to

keep

TO.

WORK, RIGHT TO W E I G H T S A N D M E A S U R E S Congress has the power under Art. I-§8[5] to "fix the standard of weights and measures." If it chose, Congress could enact a bill converting the nation to the metric system of centimeters and grams (or some other system) from the traditional English measures of inches and pounds. W E L F A R E B E N E F I T S , R I G H T T O Welfare benefits are legislative choices, not constitutional commands. N o provision in the Constitution requires the states or the federal government to extend any form of financial or other assistance to people too poor to afford necessities of life such as food, shelter, and medical care.* Despite some hints in the late 1960s that it might strike down as a violation of the EQUAL PROTECTION CI.AUSE laws that reduced or eliminated necessities, 2132 the Court in 1970 rejected the notion outright. A Maryland program provided poor families with financial grants based on need but imposed a ceiling of $250 per month, regardless of family size or actual need. The ceiling was attacked as a violation of equal protection, because it invidiously discriminated against children in large, impoverished families who could not fend for themselves. Speaking for the 6-3 majority, Justice Potter Stewart said that the ceiling was reasonably aimed at encouraging employment and that a law is not unconstitutional "merely because the classifications made by its laws are imperfect. . . . The Constitution does not empower this C o u r t to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." 582 Moreover, the government is free to choose the types of benefits to be dispensed. For example, a state may decide to pay the expenses associated with childbirth or necessary operations, but refuse to fund abortions, either nontherapeutic 1 4 1 4 or medically necessary. 1004 The government may also decide to distribute benefits to certain groups of needy people and exclude others. For example, more financial assistance may be provided to families with aged or infirm members than to families with children, 1 1 6 2 survivors' benefits may be confined to widows and divorced wives and denied to the unmarried mothers of the children of deceased workers, 362 and Social Security payments may be reduced if the recipient is receiving workers' compensation but need not be if private insurance is being paid. 1 9 8 3

Nevertheless, the Court has discerned in the Constitution certain limitations on the government's power to pick and choose among broad classes of welfare recipients. For example, it violates equal protection for states to deny welfare benefits to resident aliens'' 20 and, in many cases, to determine eligibility for survivors' and other benefits by sex—reducing or refusing payments to husbands and fathers, for instance, but making them available to wives and mothers. 2499, 3 f ' 3 , 2 5 0 3 It violates the constitutional right to travel for states to refuse welfare payments to those citizens who have not yet lived in the state for at least one year. MÍ2 Once having been provided, welfare benefits for a particular recipient may not be arbitrarily terminated. In a significant 1970 case, Goldberg v. Kelly, the Court held 6-3 that before a state may terminate welfare benefits, it must first prove at an evidentiary HEARING that the recipient is ineligible. Said Justice J. William Brennan, "[T]ermination of aid pending resolution of the controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits." See

also:

DURATIONAL

MENTS;

RESIDENCY

GOVERNMENT,

TIONS

OF;

SEX

RIGHT

TO;

WEALTH

REQUIRE-

A EE IRMA TI VE

OBLIGA-

DISCRIMINATION;

TRAVEL,

DISCRIMINATION

AND

CLASSIFICATION.

WELL-REGULATED tia

MILITIA,

see:

mili-

WIRETAPPING, see: search and seizure: wiretapping and electronic surveillance WITNESS, RIGHT TO C O N F R O N T , confrontation with witnesses WITNESS

see:

immunity

WOMEN'S RIGHTS, see: brief; sex discrimination

Brandéis

from

IMMUNITY,

see:

prosecution

WOMEN'S right to

SUFFRAGE,

WORK, RIGHT TO, right to pursue

see:

see:

voting,

occupation,

545

546

WORKERS' COMPENSATION WORKERS'

COMPENSATION

Workers'

of candidates on the general election ballot. 3 1 9 A

compensation

is a no-fault insurance system

voter protested that the law infringed on his

through which employees receive payments to re-

F R E E D O M OF A S S O C I A T I O N

cover for job-related losses due to accident or ill-

SPEECH, but the Court said that Hawaii's rule

ness. N o w adopted in every state, workers' com-

did not unreasonably interfere with anyone's abil-

pensation

programs developed

and FREEDOM

OF

in the early

ity to run for office because getting onto a ballot

twentieth century to overcome serious deficien-

was relatively easy. Moreover, the rule served sig-

cies in the COMMON LAW negligence suit. At the

nificant purposes. For example, it averted "divi-

close of the nineteenth century, a worker could

sive sore-loser candidacies" by barring someone

not recover in suits against an employer if the

losing in a primary from mounting a last-minute

worker contributed to the accident himself, if the

write-in campaign.

accident was caused by the negligence of another employee, if the employee "assumed the risk" (for

See also: ACCESS

TO

BALLOT.

example, by working in a factory known to be dangerous), or if the employer was in no way at

WRITINGS,

fault. Workers' compensation eliminated all these

OF, see:

COMPELLED

DISCLOSURE

self-incrimination

defenses, but confined the worker's recovery to a specified schedule of benefits that was considerably lower than what a successful litigant might have recovered in a negligence action.

WRITINGS AND DISCOVERIES

"Writings"

and "discoveries" are the constitutional terms for the works of AUTHORS AND INVENTORS that

In a series of cases beginning in 1917, the Court

Congress is empowered to protect under the

upheld workers' compensation plans against claims

Copyright and Patent Clauses in Art. I-§8[8].

that both employer and employee were being de-

T h e term "writings" embraces far more than

prived of PROPERTY without DUE PROCESS of

novels or poems; it includes almost any form of

law. 1 6 8 0 - 1 6 0 4 , 8 7 Much more recently, the Court up-

creative expression, including paintings, pho-

held a federal law imposing similar liability on coal

tography, screenplays, dramas,

mine operators for the disabilities of workers from

musical

black lung disease who had retired before the law

"Writings" does not, however, include an idea

compositions,

and

choreography, sculptures.

was enacted. 2424 If a worker dies without survivors,

itself. A person who devises an idea—for exam-

the state may require the employer to pay the ben-

ple, a formula or accounting system—may not

efit to a special fund to rehabilitate disabled work-

copyright the formula or plan itself to prevent

ers. 2 1 3 6 The measure of compensation need not be

others from using it, although the author may

limited to loss of wages; mandatory awards for such

copyright a description of the idea. 1 3 1 To be

injuries as disfigurement are constitutional. 1678

copyrightable a writing must have some degree of originality. In 1991 the Court denied copy-

W R I T OF A S S I S T A N C E , see:

assistance,

right protection to a Kansas telephone company's "white pages," holding that a publisher

w r i t of

of a competing telephone directory could reW R I T OF C E R T I O R A R I , see:

certiorari,

produce the names, towns, and telephone numbers of the phone company's subscribers be-

w r i t of

cause these were uncopyrightable facts and were not organized in any original way. 7 5 3 Similarly,

W R I T OF E R R O R , see: e r r o r , w r i t of

"discoveries" means more—and less—than the WRIT beas

OF

HABEAS

CORPUS,

see:

ha-

ordinary

connotation

of the word. To

be

patentable, a discovery or invention must be

corpus

embodied in some tangible form. 2 0 4 1 For examW R I T OF M A N D A M U S , see:

mandamus,

ple, the recognition of a new physical law may not be patented, 8 2 6 nor may an inventor patent

w r i t of

a basic mathematical algorithm to prevent othWRIT

OF

PROHIBITION,

see:

prohibi-

tion, writ of

ers from using it. 9 1 3 An invention must be useful and "nonobvious," not a mere "gadget" that any "mechanic skilled in the art" could have

W R I T E - I N V O T E T h e Court upheld a Hawaii

created. 2 1 5 9 But within this rather loose stan-

law prohibiting voters from writing in the names

dard, Congress has broad power to determine

WRITINGS AND DISCOVERIES what kinds of inventions are patentable. T h e Patent Act says that "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" may be patented. Under this definition, the following kinds of things are patentable: a process for making products, such as steel; an apparatus to achieve a particular end, such as a motor or printing press; a partic-

ular product, such as a television, automobile, or telephone; and any useful rearrangement of elements, such as a metal alloy, not found in nature. The Court has held that even living organisms—in particular, a "genetically engineered" bacterium that can "eat" oil spills—may be patented. 5 0 6 See also: COPYRIGHT

CLAUSE;

PATENT

CLAUSE.

547

T h e term "X-rated" comes from

FIRST AMENDMENT would bar government at

Hollywood, not the Constitution. It was one of

any level from requiring books or films to carry a

the ratings devised by the Motion

X-RATED

Picture

"Surgeon General's warning" about their con-

Association of America to brand a movie unsuit-

tents, although the Supreme Court did uphold a

able for children. In its usual connotation, the X-

federal law requiring certain films produced by

rated film was pornographic, or at least sexually

foreign governments to be labeled "political pro-

explicit. In 1991 the rating system was changed;

paganda."15"

the equivalent today is N C - 1 7 . Film makers may

548

voluntarily agree to submit to ratings (television

See

networks agreed in 1997 to rate many of their

PORNOGRAPHY;

programs as well), but it seems clear that the

SPEECH.

also:

BLACKLISTING; OFFENSIVE

OBSCENITY AND

AND

INDECENT

—IT— Y A R M U L K E S , see: d r e s s YAZOO

LAND

codes

SCANDAL

In

X795

the

Georgia legislature sold to four land companies thirty-five million acres along the Yazoo River, comprising most of what today is Alabama and Mississippi, for two and one-half cents an acre. One of the land companies then resold much of the land to the New England Mississippi Company, which in turn parceled out the land to individual northern speculators. Within a year it became widely known that most of the Georgia legislators either had been bribed by the land companies or had been their partners. Georgia voters turned out most of these legislators in 1796, and their successors repealed the land grant law. Georgia then claimed that all Yazoo lands had reverted to the state with the repeal of the grant. Eventually the question reached the Supreme Court. In 1810, in Fletcher v. Peck, Chief Justice John Marshall held that the grant of land was a contract and that the state's attempt to rescind the deal violated the CONTRACT CLAUSE. This was the first time the Supreme Court held a state law unconstitutional. The motive of the legislators in voting for the land grants was not a reviewable issue, Marshall said. Good-faith purchasers, those not party to the fraud, were entitled to keep their land. Marshall did not comment on how anyone could have been a good-faith purchaser, since the extent of the corruption was widely known, and certainly by anyone sophisticated enough to have been investing in the Yazoo tracts.* See also: MOTIVE, YEAS A N D

INTENT,

AND

PURPOSE.

NAYS Yeas a n d nays are votes b y

members of Congress on pending bills or resolutions. In two places, Art. I specifies that members'

votes must be recorded. Article I-§5 [3] says that if one-fifth of the members demand it, the vote on a particular question before that house must be recorded in the J O U R N A L OF

PROCEEDINGS—

today called the Congressional Record. Article I-§ 7 [2] says that whenever either house is voting to override a presidential veto, the names of all members voting and how they each voted must be recorded. See also: VETO POWER. YELLOW-DOG

CONTRACTS

A yellow-dog

contract obligates workers, as a condition of employment, to resign from or pledge not to join a union. The term comes from an adage that the worker who signs one would have no more security than a yellow dog of unknown parentage. In the 1890s several states outlawed yellow-dog contracts, as did Congress in 1898, when it forbade their use by interstate railroads. In 1908 the Supreme Court struck down the federal law as a violation of "liberty of contract," in those days held to be protected by the DUE PROCESS Clause of the FIFTH AMENDMENT.6 The Court also said that Congress could not regulate employment contracts since an employee's membership in organizations was not a part of INTERSTATE COMMERCE. In 1915 the Court voided state laws against yellow-dog contracts, again on due process grounds, this time under the FOURTEENTH AMENDMENT.536

However, by the 1930s the Court began to backtrack. In finding in 1930 that union membership and interstate commerce are substantially connected in the railroad industry, it sustained the federal Railway Labor Act of 1926. 2 3 1 3 In 1932 Congress enacted the Norris-LaGuardia Act, prohibiting federal courts from enforcing any yellow549

550

YOUNGER A B S T E N T I O N D O C T R I N E dog contract. T h e C o u r t readily upheld the pro-

See also: LABOR AND LABOR LAWS;

vision under Congress's power to limit the JURIS-

UNIONS.

LABOR

DICTION of the lower federal courts. 1 2 9 6 Finally, in the National Labor Relations Act of 1935, Congress directly outlawed yellow-dog contracts, and

the C o u r t

sustained

the prohibition

in

1 9 3 7 . 1 6 4 1 Today yellow-dog contracts are unlawful throughout the United States.

YOUNGER

ABSTENTION

see: a b s t e n t i o n d o c t r i n e

DOCTRINE,

—z— ZENGER, TRIAL OF John Peter Zenger was the protagonist of the most famous American libel trial, now more than 250 years ago. Zenger was printer of the New-York Weekly Journal, first published in 1733. A German immigrant who knew little English, he was the front for a number of New York lawyers bent on attacking the corrupt administration of William Cosby, the colonial governor. Articles in the Journal were anonymous; only Zenger's name appeared on the masthead. After a year of merciless criticism, Cosby ordered Zenger arrested on November 17, 1734, on four counts of S E D I T I O U S L I B E L . For nine months Zenger was imprisoned on the third floor of the colonial city hall. Cosby hoped that the lengthy confinement would prompt Zenger to identify the editorialists, grand juries having twice refused to indict James Alexander, the real editor and Cosby's leading opponent. But Zenger established a journalistic tradition by keeping his mouth shut, risking a death sentence if convicted. Equally remarkable was Zenger's wife, Anna Catherine Maulin, a native of Holland, who risked her own neck to keep the paper going during her husband's imprisonment. Finally, on August 4, 1735, Zenger was brought to trial before James DeLancey, a Cosby stooge who forbade Alexander to represent Zenger. So Alexander brought in the distinguished Philadelphia lawyer, Andrew Hamilton. Under the law then prevailing, a libel jury's only function was to determine whether the defendant actually uttered or wrote the words of which he stood accused. Whether they were in fact libelous was a question for the judge to decide. Hamilton stunned the court by admitting that Zenger had printed the offending issues, but argued, contrary to the law of the day, that truth was a defense to a charge of libel. Appealing to the jury, Hamilton said

The question before the Court and you gentlemen of the jury is not of small nor private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying: No! It may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause. It is the cause of liberty; and I make no doubt but your upright conduct this day will . . . have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right—the liberty—both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth. DeLancey, the judge, told the jury it had nothing left to decide and directed the twelve men to retire and return with a verdict of guilty. To the general astonishment, the jury returned minutes later with the verdict "not guilty." Hamilton, for whom the phrase "Philadelphia lawyer" was coined, returned home with gun salutes from ships in the harbor. James Alexander published an account of the trial that circulated widely in England and America. Zenger's acquittal killed prosecutions for common law seditious libel, and was an important part of the intellectual background of the F I R S T A M E N D M E N T . It also helped establish the principle in American law that truth is a defense to any libel action, although that principle was codified only in 1798 in the Sedition Act.* See abo: DOM

OF

ALIEN

AND

SEDITION

ACTS;

FREE-

SPEECH.

Z O N I N G Zoning is the regulation of land use to further a community's safety, health, and wellbeing. Under zoning plans, municipalities and

552

ZONING other governmental bodies determine where residences and businesses may be located, the height and density of buildings, the number of people who may live at one location, the types of business that may be carried on in particular places, and even the aesthetic appearance of land and buildings. Comprehensive zoning codes first began to appear at the end of the nineteenth century, although some well-known zoning laws had been enacted much earlier. In 1869, for example, Louisiana enacted a law granting a monopoly of the slaughtering trade to a state-chartered corporation, the Crescent City Live-Stock Landing and Slaughter-House Company. The law forced New Orleans butchers to conduct their business at the Crescent City facilities. The Supreme Court brushed off assertions that the law unconstitutionally deprived butchers of their PROPERTY, holding that regulating the place of slaughtering animals was among the most frequent exercises of t h e states' P O L I C E

POWER.2168

The Supreme Court first directly upheld a comprehensive municipal zoning code in a 1926 case, Village of Euclid v. Ambler Realty, which concerned a suburb of Cleveland that had enacted a comprehensive plan creating zones within which property could be used only in certain ways. One zone was purely for residences; no businesses, retail stores, or even apartment houses were permitted. The owner of a tract of land asserted that it would have been worth ten thousand dollars had he been able to sell it for commercial uses, but since it was located in the residential zone, it was now worth but five thousand dollars. Arguing that the potential loss amounted to a deprivation of DUE PROCESS, he sought to enjoin the town from enforcing its zoning scheme. The Supreme Court sustained the zoning plan against this blunderbuss attack, saying that zoning plans in general are within the states' police power. But the Court said that constitutionality of zoning in the abstract did not mean that a particular plan might be constitutional when actually put into operation. Indeed, two years later the Court struck down an attempt by Cambridge, Massachusetts, to block a parcel of land from being used for industrial purposes because a tiny piece of it fell within the residential zone. A SPECIAL MASTER appointed by the local courts had concluded that enforcing the zoning regulation would make the property worthless and that exempting the tract from the regulation wo'ild not harm the city's interests. To insist on

enforcing the restriction without regard to the actual public safety, health, or welfare violates the FOURTEENTH

AMENDMENT.1655

Modern zoning regulations raise three distinct types of problems: first, they may constitute an unconstitutional TAKING OF PROPERTY; second,

they may abridge the FREEDOM OF SPEECH by prohibiting the display of messages on signs; and third, they may violate the EQUAL PROTECTION CLAUSE by excluding certain kinds of people, usually the poor, from choice locations. The Court has so far turned away claims of confiscation unless the regulation has denied owners complete use of their property. In the Grand Central Terminal case in 1978, for instance, the Court upheld New York City's Landmarks Preservation Law, under which a city commission denied Grand Central's owners permission to build an office tower because the new construction would be unaesthetic.1819 Zoning regulations aimed at unsightly billboards and other VISUAL CLUTTER have occasionally run afoul of the FIRST AMENDMENT. A

content-neutral ban aimed at minimizing "visual assault" from signs posted on public property may be constitutional.465 But an ordinance that discriminates among types of messages is not. 1522 Restrictions on posting signs on residential property are unlikely to be upheld. 1 3 4 5 , 1 2 6 9 Because zoning ordinances frequently regulate the density of populations in residential areas, they sometimes conflict with constitutional values favoring family relations and the equal right of all to live within a town. To ease traffic and other congestion, a small village on Long Island, New York, consisting of two hundred families, prohibited groups of more than two unrelated persons from living together. The Court found no constitutional impediment to the ordinance, in part because the town did not try to prevent friends from visiting, only from staying with each other. 176 On the other hand, the Court, 5-4, struck down an ordinance of East Cleveland, Ohio, that narrowly zoned its residential area so that only closely related family members could live in the same house. A grandmother was convicted of violating the ordinance because she lived with her son and two grandsons, who happened to be cousins. If the grandsons had been brothers, the ordinance would not have been violated. Justice Lewis F. Powell said that the zoning regulation violated S U B S T A N T I V E D U E PROCESS: " T h e t r a d i t i o n o f

uncles, aunts, cousins, and especially grandparents sharing a household along with parents and chil-

ZONING dren has [venerable] roots . . . deserving of constitutional recognition." 1 5 8 7 Although the Court seems to have limited this

several concerns, including safety of the residents and fears of neighbors. But, said Justice Byron R. White, the town's denial was basically irrational,

associational right to families, it has occasionally

because similar types of uses, including hospitals,

overturned zoning regulations that are not even-

sanitariums, and nursing homes for convalescents

handed. Under a Texas municipal zoning ordi-

and the aged, did not need a special permit. 4 7 0

nance, operators of group homes for the mentally retarded must obtain building permits. T h e town

See also: JUST

denied a permit to a prospective operator, citing

TROL.

COMPENSATION; RENT CON-

553

THE

SUPREME

COURT'S

A C C E S S T O B R O A D C A S T I N G , see: lic

pub-

CASES

1997-1998 T E R M

OR

CONTROVERSIES

Under the

federal Antiterrorism and Effective Death Penalty

forum

Act, a state that qualifies by providing counsel ADMIRALTY

AND

MARITIME

JURISDIC-

T I O N , see: s t a t e s , i m m u n i t y f r o m in f e d e r a l

suit

and certain other protections to capita) defendants can gain significant procedural advantages if a death-row prisoner files a federal HABEAS

court

CORPUS petition. When the California attorney ATTORNEY-CLIENT identiary

P R I V I L E G E , see: e v -

privileges

BAIL A N D FINES

death-row inmate filed a CLASS ACTION for a

For the first time, the Court

struck down a criminal fine as excessive under the EIGHTH AMENDMENT. A man bound for Cyprus was stopped at the Los Angeles

International

Airport, where customs inspectors discovered that he was carrying $357,000 in cash. It is a federal offense to leave the United States carrying more than $10,000

in

currency

without

declaring

the

amount. T h e penalty for violating the law is six months in jail, a $5,000 fine, and FORFEITURE of all the property "involved in" the offense. The government sought to recover the entire $357,000. A sharply divided Court held, in an opinion by Justice Clarence Thomas, that the forfeiture was a criminal punishment governed by the Excessive Fines Clause and that total forfeiture would be an excessive fine "because full forfeiture of [the defendant's] currency would be grossly disproportional to the gravity of the offense."

general indicated that the state intended to invoke the law's protections in appropriate cases, a

Justice Thomas

noted that the currency "was the proceeds of legal activity and was to be used to repay a lawful debt. Whatever his other vices, [the defendant] does not fit into the class of persons for whom the statute was principally designed: He is not a money launderer, a drug trafficker, or a tax evader."

,2Sa

DECLARATORY JUDGMENT that California did not qualify. T h e Supreme Court unanimously held that the suit did not present a constitutional case or controversy that could be heard in the federal courts. T h e prisoner could have litigated the same issue had he filed a habeas petition directly and responded in that suit to the state's claims that it qualified under the antiterrorism

act.

Instead, the prisoner sought a judgment about "the validity of a defense the State may, or may not raise in a habeas proceeding. . . . Any judgment in this action thus would not resolve the entire case or controversy as to any one [of the class members], but would merely determine a collateral legal issue governing certain aspects of their pending or future suits." See also: MOOTNESS;

CITIZENS

AND

357a

RIPENESS;

STANDING.

CITIZENSHIP

A federal

law distinguishes between the citizenship of children born out of wedlock depending on whether their mother or father was a U.S. citizen. T h e rule is that a child born abroad to a mother who is a U.S. citizen and an alien father is an American citizen at birth, whereas a child born abroad to a father who is a U.S. citizen and an alien mother

BEYOND

A

reasonable

REASONABLE doubt

DOUBT

see:

cannot be declared a U.S. citizen unless certain steps are taken to establish the paternal relation555

556

CLEMENCY ship before the child's eighteenth birthday. A Filipino national, born out of wedlock to a Filipino woman and an American serviceman, challenged the rule on grounds that it violated her r i g h t to EQUAI. P R O T E C T I O N OF T H E LAWS.

A divided Court upheld the rule, though without any majority support for the reason. Two justices thought that the rule satisfies rational-basis review; two thought that it satisfies heightenedscrutiny review; and two thought that the Court has no power to overturn the rule and grant the plaintiff citizenship, since only Congress has the power to do that. , 5 3 9 a

the line would otherwise divide ownership in the middle of certain buildings. Reviewing that recommendation, the Court rejected boundary lines inconsistent with the compact, holding that it lacked authority to adjust the lines because Congress had consented to the compact. As Justice David H. Souter explained, "[Ojnce a compact between States has been approved, . . . congressional consent 'transforms an interstate compact within [the Compact] Clause into a law of the United States . . . [and] no court may order relief inconsistent with its express terms.'" 1 6 5 9 3 CONFRONTATION WITH WITNESSES

CLEMENCY A divided Court upheld the Ohio clemency procedure, which provides for a clemency review within forty-five days of the scheduled date of execution of a prisoner sentenced to death. Under the clemency procedure, the Ohio Adult Parole Authority holds a hearing at which the condemned prisoner is entitled to speak, and before the hearing the prisoner may voluntarily request an interview with one or more of the parole authority members. The prisoner may not have counsel present at either the interview or the hearing. The Court held that DUE PROCESS does not require anything more than the notice and opportunity to be heard to be afforded the prisoner. The justices unanimously concluded, moreover, that the prisoner's right against SELF-INCRIMINATION was not violated, even though the clemency procedure did not permit the prisoner to be offered immunity for anything he said at either the interview or the hearing. 17453 COMPACT C L A U S E Settling a long-running dispute between New Jersey and New York over the ownership of Ellis Island, the Supreme Court awarded the lion's share of the island to New Jersey in a decision involving complex property and water-rights principles. Part of a larger boundary dispute, "now extending into the fourth century," this particular aspect of the dispute arose formally when New Jersey sought the a i d o f the C o u r t ' s ORIGINAL J U R I S D I C T I O N

to

determine ownership of landfill under an 1834 compact between the two states, ratified by Congress in the same year. The Court appointed a SPECIAL MASTER t o hear the d i s p u t e , a n d h e

recommended, among other things, that the boundary between the states be adjusted in a certain manner inconsistent with the compact for "reasons of practicality and convenience," since

In

a 1968 case, Bruton v. United States, the Court held that when two defendants are tried jointly for the same crime, an out-of-court confession by one that implicated the other cannot be introduced into evidence, since it would violate the s e c o n d d e f e n d a n t ' s SIXTH A M E N D M E N T right to

cross-examine witnesses against him. Left unsettled was whether it would be constitutional to use an out-of-court confession by one defendant implicating another if the second defendant's name was redacted (removed), leaving a blank space or the use of a word such as "deleted" in place of his name. A sharply divided Court held that when the redacted confession refers to the "existence" of the nonconfessing defendant by substituting a word such as "deleted" for the defendant's name, the Bruton rule requires that the confession be excluded. Said Justice Stephen G. Breyer for a 5—4 majority, "A juror who . . . wonders to whom the blank might refer need only lift his eyes to [the second defendant], sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judges instruction not to consider the confession as evidence against [the second defendant], for that instruction will provide an obvious reason for the blank." Moreover, "the obvious deletion may well call the jurors' attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession's accusation—once the jurors work out the reference." 9241 CONSTITUTIONAL

DOUBT

I n a c a s e in-

volving the constitutionality of a federal law providing an enhanced sentence for a deported alien who seeks to reenter the country unlawfully if he was deported after having committed crimes, the Court wrestled with the question of whether to interpret the statute to avoid a "constitutional

DOUBLE JEOPARDY doubt." In 1916, Justice Oliver Wendell Holmes said in passing that a "statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score."" 6 9 3 This doctrine of constitutional doubt, said Justice Stephen G . Breyer, "seeks in part to minimize disagreement between the Branches by preserving congressional enactments that might otherwise founder on constitutional objections. . . . [T]hose who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held unconstitutional . . . [and] the statute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled." In other words, a complex or murky statute might seem to pose constitutional difficulties before it is interpreted, but if after it is understood in context it does not "lead us to doubt gravely that Congress may authorize" the action spelled out in the statute, then the Court need not choose to interpret it in such a way that would avoid all doubts. Sharply dissenting, Justice Antonin Scalia, speaking on behalf of himself and three others, said that the rule is, rather, that whenever a statute has two possible meanings, one of which raises grave doubts about constitutionality, then the courts must choose the interpretation that avoids the doubts. 50a See also: REASONABLE

DOUBT.

CONSTITUTIONAL QUESTIONS, AVOIDA N C E OF,

see: c o n s t i t u t i o n a l

CONSTITUTIONAL TORTS, nity from suit COPYRIGHT,

doubt

see:

immu-

into an all-or-nothing choice between capital murder and innocence." If the death sentence is mandatory, then the trial becomes essentially a judgment about whether the defendant should be executed rather than a decision on whether all the elements of the crime had been proven beyond a REASONABLE

DOUBT. A Nebraska defendant,

charged only with and convicted of felony murder in the rape and stabbing death of a woman in her home, asserted that the jury should have been instructed to consider second-degree murder and manslaughter. He insisted that these crimes were lesser included offenses of felony murder. The Court disagreed and refused to extend the logic of the 1980 case. Both second-degree murder and manslaughter require a showing of culpable mental states. But felony murder does not; the crime is complete if the death occurs during the perpetration of specific enumerated felonies, including rape. If the state can prove intent to commit the underlying crime—the rape—then proof that the death occurred during or as a result of the rape is sufficient to establish felony murder. Seconddegree murder and manslaughter are therefore not lesser included offenses of felony murder. To require instructions in capital cases on offenses other than those charged would be, in the words of Justice Clarence Thomas, "not only unprecedented, but also unworkable" because "there would be no basis for determining the offenses for which instructions are warranted." Moreover, allowing defendants "to be convicted of homicide offenses that are not lesser included offenses of felony murder" would distort the trial, because it would permit the "jury to find beyond a reasonable doubt elements that the State had not attempted to prove, and indeed that it had ignored" during the trial, "hardly . . . a reliable result." 10833

see: t r i a l by j u r y See

D E A T H P E N A L T Y The Court held that nothing in the Constitution requires a jury to be instructed on offenses that the defendant might have committed but that were not charged or were not lesser included offenses of the charged crimes. In a 1980 capital case, the Court overturned an Alabama law that forbade a jury from being instructed on lesser included offenses in capital cases, even when the charged crime included lesser offenses and even though in noncapital cases juries were routinely given such instructions. 1 7 0 " T h e law was invalid because without such instructions a jury might be "forced

also:

CORPUS;

CASES

OR

MITIGATING

CONTROVERSIES;

HABEAS

CIRCUMSTANCES.

D O U B L E J E O P A R D Y After being convicted on drug charges, a California defendants prison sentence was doubled, as allowed by state law, because he had previously been convicted of a serious felony. The prosecutor introduced evidence at the sentencing proceeding that on appeal was determined to be insufficient to prove the nature of the earlier conviction beyond a REASONABLE DOUBT. The state supreme court ordered a new sentencing hearing. The defendant argued that a new hearing was barred by the Double Jeopardy

557

558

D U E PROCESS Clause. Although in Bullington v. Missouri the Court in 1981 had carved out an exception for capital cases "to the general rule that double jeopardy principles have no application in the sentencing context," a sharply divided Court refused to extend the exception, holding that a jury's deliberations on death bear the "hallmarks of the trial on guilt or innocence" and that these hallmarks are absent in noncapital sentencing proceedings.1579" D U E P R O C E S S , see: c l e m e n c y ; s t a t e m e n t s ; p r o c e s s t h a t is standing EIGHTH fines

AMENDMENT,

see: b a i l

false due;

and

E L E V E N T H A M E N D M E N T , see: r e m o v a l of c a s e s ; s t a t e s , i m m u n i t y f r o m s u i t in f e d e r a l c o u r t EQUAL PROTECTION,

see: s t a n d i n g

E V I D E N C E In a divided vote, the Court refused to invalidate a provision in the federal Military Rules of Evidence that all polygraph evidence must be excluded from courts martial. An airman at a U.S. Air Force base had volunteered to work as a drug informant. In that role he was required to undergo periodic drug testing and polygraph examinations. After being absent without leave, he was arrested and charged with a variety of offenses, including drug use, as determined by a recent drug test. The airman sought to introduce the results of a polygraph exam that indicated he was telling the truth when he said he had used no drugs since joining the air force. The court martial tribunal refused to permit this evidence, citing the federal rule, which states that "the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be introduced into evidence." The Court held that this rule "is a rational and proportional means of advancing the legitimate interest in barring unreliable evidence." 2087 " EVIDENTIARY P R I V I L E G E S In a case fraught with as much political as legal significance, the Court held 6-3 that the attorney-client privilege survives the death of the client, and a lawyer may refuse to reveal privileged informa-

tion obtained from the client before his death. The case involved Vincent W. Foster, Jr., the White House deputy counsel who committed suicide in 1993, just days after meeting with a lawyer in connection with the burgeoning investigation by the Office of Independent Counsel, headed by Kenneth Starr, into allegations that employees of the White House travel office had been unlawfully dismissed. Foster's lawyer took three pages of handwritten notes, and the Independent Counsel subpoenaed them, arguing that the attorney-client privilege does not protect a deceased client's confidential communications when relevant to a criminal proceeding. Writing for the majority, Chief Justice William H. Rehnquist saw "weighty reasons" to uphold the privilege. "Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel... . Clients may be concerned about reputation, civil liability, or possible harm to friends and family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime." 2285 " EXCESSIVE FINES,

see: b a i l a n d f i n e s

E X C L U S I O N A R Y R U L E Against sharp dissents, a majority of five justices, in an opinion by Justice Clarence Thomas, endorsed the view "that the State's use of evidence obtained in violation of the FOURTH AMENDMENT does not itself violate the Constitution." Rather, they said, the exclusionary rule is "a judicially created means of deterring illegal searches and seizures." Since it is judicially created, the Court may limit it to those situations in which it will most likely serve a purpose to deter. 1831 " See also:

PAROLE.

E X P O R T S For a unanimous Court, Justice Ruth Bader Ginsburg held that the Harbor Maintenance Tax, assessed on goods loaded at American ports for export abroad, is an unconstitutional export tax under the Export Clause, Art. I-9Î5]- The tax amounted to 0.125 percent of the value of the cargo, was collected by the Customs Service, and was deposited in a Harbor Maintenance Trust Fund to pay for harbor maintenance and development. The Customs Service argued that the tax was in reality a fee imposed on port users. But, said Justice Ginsburg, the tax failed the test for determining whether the

HABEAS CORPUS amount charged was "compensation for government-supplied services, facilities, or benefits." The tax was set on an ad valorem basis—as a percentage of the value of the goods; it bore no relation to the actual use of the harbor by the exporter. For a fee to be constitutional, it "must fairly match the exporters' use of port services and fecilities."24141

employee's silence an admission, for civil purposes, that he had engaged in the misconduct. 1268 '

E X T R A D I T I O N The Court unanimously held that state courts have no discretion to refuse to abide by the governor's warrant directing the extradition of a fugitive from another state, when the state from which he fled has properly sought extradition. A parolee in Ohio, learning that his parole was to be revoked, fled to New Mexico. Ohio sought extradition, and the governor of New Mexico issued a warrant for the fugitive's return. The fugitive sought a writ of HABEAS CORPUS in the New Mexico courts, which ordered him released from custody on the grounds that he was not a true fugitive, having shown that he had fled from Ohio under duress because he had reason to believe that the Ohio prison authorities had revoked his parole without DUE PROCESS and with the intention of causing him bodily harm once returned to prison. The Supreme Court held that the commands of the Extradition Clause are mandatory. "Claims relating to what actually happened in the demanding State, the law of the demanding State, and what may be expected to happen in the demanding State when the fugitive returns, are issues that must be tried in the courts of that State, and not in those of the asylum State." 16641

FULL

F A L S E S T A T E M E N T S Federal employees have no right to lie to investigators looking into allegations of employment-related misconduct; an agency may sanction employees who make false statements to an investigator questioning them about their alleged misconduct. The employees claimed that included in their FIFTH AMENDMENT right o f DUE PROCESS, which

guarantees a "meaningful opportunity to be heard," was "a right to make false statements with respect to the charged conduct." Writing for a unanimous Court, Chief Justice William H. Rehnquist held that Congress may constitutionally provide penalties for lying to federal investigators. An employee who fears his answers might expose him to criminal prosecution can always exercise his right against SELF-INCRIMINATION, although the agency might then infer from the

F O R F E I T U R E , see: bail a n d fines FREEDOM

OF

SPEECH,

see;

and indecent speech; public FAITH

AND

CREDIT

offensive forum The

Court

unanimously held that a state courts INJUNCTION barring a witness from testifying in a civil lawsuit does not prevent a court in another state from ordering the witness to testify in a suit unrelated to the case in which the injunction was issued. The injunction in question was issued as part of the settlement of a wrongful discharge suit brought against General Motors by a former employee, who had spent many years testing fuel line designs to prevent fires in GM cars and testifying for GM in product-liability cases. Under the settlement, the employee agreed to be enjoined from testifying against GM in matters involving product liability. A Michigan court issued the injunction. The settlement agreement also provided, however, that if any court ordered the employee to testify in a suit involving the company, GM could not sue the employee for violating the setdement. Thereafter, the employee was ordered to testify in a wrongful-death case involving an allegedly faulty fuel pump in a Chevrolet that caught fire in a roadway accident in Missouri. GM insisted that under the Full Faith and Credit Clause, the Missouri courts were required to honor the Michigan injunction. The Court said that although "Michigan's decree could operate against [the employee] to preclude him from volunteering his testimony," Michigan courts do not have "authority to shield a witness from another [state's] subpoena power in a case involving persons and causes outside Michigan's governance."131" GOVERNMENT and indecent

SPEECH,

see:

offensive

speech

G R A N D JURY, see: s t a n d i n g

H A B E A S C O R P U S After advice of counsel, a defendant pleaded guilty to "using" a firearm during the commission of a drug trafficking offense and was sentenced to nearly twelve years in prison. Four years later, he filed a petition for habeas corpus, alleging that his guilty plea had no

559

560

ILLEGITIMACY basis, since the firearm was in his bedroom and the drug trafficking took place in his garage. While the appeal was pending, the Supreme Court held that a conviction under the law against firearm use required a showing that the firearm was "actively] employ[ed]," not just sitting in a bedroom drawer. The lower courts refused to apply this ruling retroactively. Chief Justice William H . Rehnquist, for a 7 - 2 majority, rejected the argument that the prisoners petition was barred by the NEW RULE policy of Teague v. Lane. Teague dealt with new constitutional rules of procedure, whereas the Court's interpretation of the meaning of "use" was substantive. It has long been held that a GUILTY PLEA is constitutionally invalid unless it is "voluntary," "knowing," and "intelligent." If through no fault of his own the defendant did not understand the meaning of the charge to which he eventually pleaded guilty, then his plea would be invalid. But the retroactive application of the new meaning of "use" was not alone sufficient to permit habeas review, said the chief justice, since the defendant had "procedurally defaulted" by failing to raise the issue on his direct appeal. However, this defendant also argued that the erroneous guilty plea "resulted in the conviction of one who is actually innocent." The Court remanded the case to the lower courts to permit the defendant to present evidence to show that he was factually innocent of "using" the firearm in the sense required by the law. If he can demonstrate that he did not use the firearm, then the habeas petition can be heard and he will be permitted to present his argument in this collateral review that his plea was unknowing and unintelligent. If he can demonstrate that, then he will be entitled to withdraw the guilty plea and obtain a new trial. 2403 See also: CASES OR CONTROVERSIES; SUPREME

LAW OF THE

ILLEGITIMACY,

see:

MOOTNt'SS;

LAND.

citizens

and

citi-

zenship

rant requires that someone swear to facts sufficient to establish PROBABLE CAUSE to believe the suspect had committed the crime. Apparently, the facts charged were untrue, and after spending a night in jail, the suspect was released and the prosecutor agreed to drop the charges. The law did not require the prosecutor to swear to the facts; any competent witness could have done so. The Court held that in preparing the certification, and even in deciding which facts to include in it, the prosecutor was absolutely immune, but "testifying about facts is the function of the witness, not the lawyer," and therefore she is entitled to only qualified immunity. 1 2 0 2 ' In a separate decision, the Court unanimously applied to local legislators the long-standing rule that regardless of their motives, legislators are entitled to absolute immunity from civil suit for legislative acts. A Massachusetts municipal official sued the mayor and a member of the city council of Fall River when the city abolished the department of which she was the sole employee. She charged that her job was eliminated in retaliation for her position in a political quarrel over another city employee. The mayor and a city council member were held liable for damages, and the lower courts rejected their claim that voting for and signing the bill abolishing her job were legislative acts, reasoning that in "targeting" the law at the plaintiff, the city council member and mayor had acted "administratively." Writing for the Court, Justice Clarence Thomas said that "[wjhether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." The acts of the city council member and mayor were "quintessentially legislative." Even an executive official, such as a mayor, is entitled to legislative immunity when introducing a budget that called for eliminating a department and signing a bill into law accomplishing that goal, because these "were integral steps in the legislative process." 2263 In a third case, the Court held that plaintiffs, especially prisoners, suing executive officials for CONSTITUTIONAL

IMMUNITY

FROM

SUIT

A unanimous court

held that a prosecutor's absolute immunity from civil suit does not extend to the act of personally attesting to the truth of statements "under penalty of perjury" in an affidavit filed to secure an arrest warrant of a suspect in a burglary. A Washington State prosecutor had attested to the truth of certain facts in a "certification for determination of probable cause." Under state law, an arrest war-

TORTS

are not required,

in

responding to a motion by the public official for summary judgment, to prove by clear and convincing evidence that the public official was improperly motivated to interfere with the plaintiff's constitutional rights. Suppose a municipal official discharges an employee. If the layoff was prompted by the official's dislike of the employee's speaking out on matters of public concern, then the official violated the employees

MITIGATING CIRCUMSTANCES constitutional right to free speech, for which a

visions from the bill by notifying Congress of

civil damage suit might provide an appropriate

cancellations. T h e bill would become law when

remedy. O n the other hand, municipal officials

the president signed it, and the cancellations

are entitled to qualified immunity f r o m suit; if

would take effect when Congress thereafter re-

the official could point to a valid reason for the

ceived a special message from the president that

discharge, such as economic conditions requiring

he had disapproved the expenditures. A f t e r being

a layoff, the suit should be dismissed. T h e ques-

sent the Balanced Budget Act of 1997, President

tion that arises is h o w to protect the rights of

Clinton notified the Senate and House that he

both the plaintiff and the public official when

was canceling a provision that would have pre-

such a suit is filed. If the public official points to

vented N e w York State from having to return

a bona fide reason for taking the action and seeks

$ 2 . 6 billion to the federal treasury because of a

s u m m a r y j u d g m e n t — t h a t is, dismissal of the suit

dispute over federal subsidies already paid. T h e

because there are no genuine issues of fact—the

New

trial court may not assume that there is no gen-

poration sued, asserting that the

York

City

Health

and

Hospitals

Cor-

cancellation

uine issue of w r o n g f u l motive in the absence of

would force them to forfeit more than $ 1 0 mil-

clear and convincing evidence. Otherwise, said

lion. Similar claims were made by unrelated liti-

Justice J o h n Paul Stevens for a 5 - 4 majority, it

gants protesting other cancellations made by the

would be almost impossible to vindicate consti-

president. " I n both legal and practical effect,"

tutional rights under such circumstances. Rather,

said Justice Stevens, "the President has amended

when a plaintiff asserts that a public official has

two Acts o f Congress by repealing a portion of

acted with an improper motive, the trial court

each.

must protect "the substance o f the qualified im-

Constitution

munity defense . . . so that officials are not sub-

enact, to amend, or to repeal statutes." Even

[But

there]

is

no

provision

in

that authorizes the President

the Constitution

says nothing

the to

jected to unnecessary and burdensome discovery

though

or trial proceedings," while at the same time mak-

whether the president may unilaterally take "ac-

about

ing it possible for plaintiffs to obtain remedies for

tion that either repeals or amends parts of duly

the violations o f their federal rights. T h e trial

enacted statutes, [t]here are powerful reasons for

court might, for example, require the plaintiff to

construing constitutional silence . . . as equivalent

"put forward specific, nonconclusory factual alle-

to an express prohibition." T h e procedures set

gations" of improper motive to overcome the of-

out in the Constitution for enacting statutes

ficial's qualified immunity d e f e n s e . w , a

"were the product of the great debates and compromises that produced the Constitution itself.

INCOME TAX,

see: privileges

and

im-

munities

enact statutes may only 'be exercised in accord

JURY DISCRIMINATION, JUST COMPENSATION, JUSTICIABILITY,

see: standing see:

property

see: cases or

contro-

versies

with a single, finely wrought and exhaustively considered procedure.'" Justice Stevens said that laws giving the president discretion whether to spend money appropriated by Congress are distinguishable from the Line-Item Veto Act because unlike the act, they do not give the president "unilateral power to change the text of duly en-

LEGISLATIVE nity f r o m

Familiar historical materials provide abundant support for the conclusion that the power to

IMMUNITY,

see:

immu-

acted statutes.

suit LYING,

LINE-ITEM VETO

see: false

statements

Voting 6 - 3 , the C o u r t in

an opinion by Justice J o h n Paul Stevens struck

MITIGATING

down

a jury in a capital sentencing proceeding must be

the

Line-Item

Veto

Act,

passed

by

CIRCUMSTANCES

Although

Congress in 1996. Under the act, the president

permitted to consider relevant mitigating circum-

was empowered to "cancel in whole" three types

stances, and must do so whenever presented with

o f federal spending authorized by Congress in

such evidence, the court is not constitutionally

bills submitted to him for signature into law. If

required to instruct the jury on the concept of

certain conditions were met, the act permitted

mitigation or to tell jurors which particular miti-

the president in effect to strip the spending pro-

gating factors are defined by statute. A Virginia

561

562

MOOTNESS man was convicted of murdering his father, stepmother, and two brothers. At the sentencing phase, his lawyer presented mitigating evidence concerning his mental and emotional state, his age, and lack of prior significant criminal activity. The judge instructed the jury that for the DEATH PENALTY to be imposed, the prosecution had to prove that the conduct was "vile," and even if it found the conduct vile, the jury might still impose a punishment of life imprisonment if it found "from all the evidence that the death penalty is not justified." But the judge refused to instruct the jurors also that they must consider the defendant's evidence as mitigating factors to be taken into account. The defendant contended that his EIGHTH AMENDMENT right was violated because the judge failed to structure the manner in which the jury was to consider the evidence. For a 6-3 majority, Chief Justice William H. Rehnquist held that the jury had been afforded the opportunity to consider mitigating circumstances, as constitutionally required, and that the instruction as given "did not foreclose the jury's consideration of any mitigating evidence." The Eighth Amendment does not require "that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence." 3073 M O O T N E S S For a 6-3 majority, Justice Antonin Scalia held that a prisoner's petition for a writ of HABEAS CORPUS, seeking to overturn an order revoking his parole and sending him back to prison, must be dismissed as moot when he was released from prison after his sentence expired. Since he was no longer in prison and therefore no longer required parole, the CASES OR CONTROVERSIES requirement of Art. Ill could not be met. A judicial decision in his favor would not redress any continuing injury. 22193 NEW

RULE, see: h a b e a s

NO-KNOCK

ENTRY

corpus

In 1 9 9 7 , in Richards

v.

Wisconsin, the Court held that a no-knock entry into a home would not violate the FOURTH AMENDMENT if the police had a "reasonable suspicion" that "announcing their presence before entering would 'be dangerous or futile, or . . . inhibit the effective investigation of the crime.'" The question remained whether police should be held to a higher standard when property is destroyed during no-knoci. ":itry. Writing for a

Rehnquist held that the Fourth Amendment does not impose a higher standard. Acting on a tip from a reliable informant, the police received a no-knock warrant authorizing them to break into a home in search of a dangerous escaped prisoner. Believing that the garage might house weapons, the police broke a single garage window and pointed a gun in. As it turned out, the escaped prisoner was not in the house, but the owner, a convicted felon, unlawfully harbored guns in the house. At his trial for unlawful possession of the weapons, the homeowner asserted that the noknock warrant was unconstitutional because the police had not offered detailed reasons for breaking into the home and damaging property. The chief justice said that "the lawfulness of a noknock entry" does not depend "on whether property is damaged in the course of the entry." The existence of a "reasonable suspicion" that announcing entry would be dangerous or futile "depends in no way on whether police must destroy property in order to enter." 19422 OFFENSIVE

AND

INDECENT

SPEECH

The Court upheld a provision in the National Foundation on the Arts and Humanities Act that requires the National Endowment for the Arts, a federal agency, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public" in making grants to artists. Four "performance artists," including Karen Finley, who has performed in public by smearing her naked breasts with chocolate, were denied grants. They challenged the decency provision of the act as impermissibly viewpoint based and therefore a facial violation

of

the

FIRST

AMENDMENT.

Justice

Sandra Day O'Connor, speaking for the majority, rejected the plaintiffs' claim that the law bans artistic speech that "either fails to respect mainstream values or offends standards of decency." Rather, she said, the law "imposes no categorical requirement." It does not ban grants on grounds of indecency; instead, it merely requires the N E A to consider decency as one of the criteria in awarding grants. Moreover, the criteria set out in the law "do not silence speakers by expressly 'threaten[ing] censorship of ideas.'" It would be a different case if "the N E A were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints." That was not the claim here. Finally, "the Government niav allocate competitive funding

PROPERTY were direct regulation o f speech or a criminal

Justice Sandra D a y O ' C o n n o r held that although

penalty at stake." In a stinging

a state, in imposing a tax on nonresidents for in-

concurrence,

Justice A n t o n i n Scalia, joined by Justice Clarence

come earned in the state, may limit business de-

T h o m a s , blasted the majority for sustaining the

ductions to those that pertain to the income

law " b y gutting it." In their view, the law ex-

earned in the state, a state may not treat non-

the

business deductions of residents and nonresidents

grounds that the art for which f u n d i n g is sought

differently, especially alimony payments, since

pressly permits grants

to be denied

on

is indecent or offensive. T h e law "establishes con-

the "alimony obligation . . . cannot be viewed as

tent- and viewpoint-based criteria upon which

geographically fixed in the manner that other ex-

grant applications are to be evaluated. A n d that is

penses, such as business losses, mortgage interest

perfectly constitutional," since nothing in the law

payments, or real estate taxes might b e . " 1 , 9 0 a

prohibits the artists f r o m doing whatever they wish to do; "they are merely deprived o f the ad-

P R O C E S S T H A T I S D U E T h e Court held, PER

ditional satisfaction of having the bourgeoisie

CURIAM, that a Florida court ruling violated DUE

taxed to pay for it." Dissenting, Justice David H .

PROCESS in changing the settled understanding of

Souter said that even on the majority's tortured

the process by which a plaintiff could recover taxes

reading o f the provision in question, it would still

paid under an unconstitutional statute. Newsweek

be unconstitutional. T h e C o u r t would not likely

magazine had paid taxes for two years under a

uphold a statute that "required a panel to apply

statute that exempted newspapers. T h e

criteria . . . 'taking into consideration the superi-

Supreme C o u r t held that statute unconstitutional,

ority of the white r a c e ' ? " 1 6 , 8 a

and when the state revenue department refused to refund the taxes it had collected, Newsweek sued

See also: VAGUENESS. PARDONS, TIONS,

under a "post-payment" statute that had long been

REPRIEVES,

AND

COMMUTA-

AMNESTIES,

see:

clem-

ency PAROLE

used as a means o f recovering such taxes. But the Florida courts denied Newsweek recovery on the ground that under another state law it should have refused to pay the taxes and challenged the law

T h e C o u r t held, 5 - 4 , that the EXCLU-

SIONARY RULE does not apply to parole revocation hearings. Even if unlawfully obtained, evidence showing that the parolee violated the terms of parole (for example, by owning or possessing weapons) may be introduced at a hearing to determine whether parole should be revoked. 1 8 3 PENDENT

JURISDICTION

When

la

a case

originally filed in state court is removed to a federal court

Florida

because

the parties

raised federal

claims, the federal court may assess whether the evidence was sufficient to sustain a state administrative board's legal findings under state law, as long as the state and federal claims are so intertwined "that they form part of the same case or controversy.'" 1 " , 2 j

first. Unanimously reversing, the justices sent the case back to the state courts, stating,

"While

Florida may be free to require taxpayers to litigate first and pay later, due process prevents it from applying

this

requirement

to

taxpayers,

like

Newsweek, w h o reasonably relied on the apparent availability of a post-payment refund when paying the tax." 1 6 9 0 3 PROOF, from

STANDARD

OF, see:

immunity

suit

PROPERTY

In a case that might

eventually

prove to have an effect on the delivery of legal services for the poor, a sharply divided C o u r t held that interest earned on clients' funds held by lawyers in certain bank accounts is property of the client. Lawyers hold clients' money for varying amounts o f time in checking accounts to ex-

POLYGRAPH TESTING, see:

evidence

pedite transactions. Until 1980 federal law prohibited

PRIVILEGES

AND

IMMUNITIES

A

New

these accounts

from paying

interest.

W h e n the law changed, client funds were de-

York State tax law that effectively limited an in-

posited in an account that permitted both inter-

come tax exemption for alimony payments to res-

est and checking. O f t e n the amounts deposited

idents, and denied the exemption to nonresi-

are either nominal or held for a short enough

Immunities

time that the interest earned is insufficient to off-

Clause of Art. IV. Writing for a 6 - 3 majority,

set administrative costs. Every state but Indiana

dents, violates the Privileges and

563

564

PUBLIC

FORUM

quickly created programs through which such client funds are pooled in so-called IOLTA accounts (interest on lawyers trust account); the interest earned is paid to various organizations that provide legal services to the poor. In a suit challenging the IOLTA program in Texas, various people, including a businessman who frequently entrusts funds to lawyers in the state, asserted that the government was violating the FIFTH AMENDMENT by taking property without prov i d i n g JUST

COMPENSATION.

(Interest

earned

from bank accounts in which more than nominal sums were deposited or were held for more than a brief period accrue to the client and were not part of the case.) In holding that the IOLTA interest is property of the client, the Court did not address the remaining issues of whether the IOLTA program constitutes a taking of the property or whether just compensation had been provided. The Court remanded the case for the lower court to consider these questions. 18573 PUBLIC FORUM The Court held, 6-3, that a state-owned public television network is not a public forum and is not constitutionally required to invite an independent candidate for public office with little public support to appear on a program staging a debate between the two leading party candidates. "In most cases," said Justice A n t h o n y M . K e n n e d y , "the FIRST A M E N D M E N T

of its own force does not compel public broadcasters to allow third parties access to their programming." On the other hand, candidate debates present a "narrow exception" to the general rule, both because the viewpoints expressed are clearly those of the candidates, not the broadcaster, and because "in our tradition, candidate debates are of exceptional significance in the electoral process." Even though a public broadcast station is not a traditional public forum, or even a forum designated by the government generally open to all, a candidate debate is "a forum of some type," which the Court labeled a "nonpublic forum." The problem is to divine a rule that permits a station to limit access but not on the basis of the viewpoints expressed. If public stations were forced to open debates to all comers, they very likely might not hold debates at all: "In the 1996 congressional elections, it was common for 6 to 11 candidates to qualify for the ballot for a particular seat. . . . Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candi-

dates' views at all." But status as a nonpublic forum does not give a station "unfettered power to exclude any candidate it wished. . . . To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property." In the particular case, a congressional candidate was excluded, the Court concluded, "not because of his viewpoint but because he had generated no appreciable public interest." Dissenting, Justice John Paul Stevens noted that the majority had ignored "the standardless character of the decision to exclude" the candidate. In other

cases i n v o l v i n g

a PERMIT

SYSTEM,

the

Court has inveighed against regulations that give public officials uncontrolled discretion to decide who may speak. In this case, said Justice Stevens, "[n]o written criteria cabined the discretion of the [broadcaster's] staff. Their subjective judgment about a candidate's 'viability' or 'newsworthiness' allowed them wide latitude either to permit or to exclude a third participant in any debate." To be consistent with the First Amendment, the dissenters insisted, "access to political debates planned and managed by state-owned entities [must] be governed by pre-established, objective criteria."90" PUNISHMENT, CRIMINAL AND CIVIL

The

Court overruled its 1989 test in United States v. Halper for determining whether a federal sanction is civil or punitive under the Double Jeopardy Clause. Under Halper, a sanction was considered a criminal punishment if it served the traditional "goals of punishment"—retribution and deterrence. The Halper test "focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute 'punishment.'" It did not permit a threshold question of whether the sanction was in fact civil or criminal, and it required courts to look to the actual sanctions imposed in the case rather than to what the statute "on its face" prescribes. Since all civil penalties have some deterrent effect, the Halper test in practice led many courts to conclude that subsequent sanctions were necessarily criminal—hence barred by the Double Jeopardy Clause—even if Congress said otherwise. The Court declared that to determine whether a sanction is civil or criminal, the lower courts must look to Congress's purposes, whether declared explicitly or embodied in the statutory mechanism. Moreover, the test for as-

RIPENESS sessing whether a civil sanction is disproportionate to the acts charged depends on the nature of the sanction set out in the statute, not on the actual amount of a fine or other sanction imposed in the particular case. 1095a R E A S O N A B L E D O U B T A divided Court held that it is constitutionally permissible for a judge to determine by a preponderance of the evidence, rather than a jury by proof beyond a reasonable doubt, the existence of a fact that "increases the maximum penalty to which a criminal defendant is subject." A federal law criminalizes the return to the United States of an alien who has been deported. A subsection of the statute also greatly increases the sentence if the returning alien was deported for having been convicted of committing an "aggravated felony." The issue was whether it was necessary for the INDICTMENT charging him with the crime to state as an element that required proof the fact of the defendants having earlier been convicted of aggravated felonies. The indictment did not do so. The sentencing judge accepted a GUILTY PLEA; the defendant admitted having committed the felonies before being deported. But he claimed that he could not be given a longer jail sentence because the provision in the subsection providing for a longer sentence was really establishing a separate crime; since the indictment did not list all the elements of that crime, he could be sentenced, he said, only to the crime carrying the lighter sentence. Speaking for a five-member majority, Justice Stephen G . Breyer concluded that the "subsection is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime." Sentencing factors, such as recidivism, are not required to be proved beyond a reasonable doubt. 50 * See also: CONSTITUTIONAL

DOUBT.

R E M O V A L OF C A S E S The justices unanimously agreed that if a state case that may otherwise be removed to federal court contains a claim that is barred from being heard in the federal court under the ELEVENTH AMENDMENT, the case may still be removed, minus the barred claim. 2 5 6 9 3 R E T R O A C T I V I T Y In 1946 coal companies and the union, the United Mine Workers of America, created benefit funds to provide medical benefits

to miners and their families. Over the decades, the benefit plans continued, though their details changed from time to time. In 1974 Congress enacted the Employee Retirement Income Security Act, which mandated funding and vesting requirements for pension plans. But in the 1970s and thereafter coal mining declined, and the plans began to suffer financially. In 1992 Congress enacted the Coal Industry Retiree Health Benefit Act. Among other things, it required any coal company that ever signed an agreement obligating it to contribute to certain previous benefit plans established in 1950 and 1974 to contribute premiums to a new benefit plan in order to maintain payments to retired miners. Eastern Enterprises was in the coal business until 1965, when it sold its mining operations. Under the 1992 act, Eastern was obligated to pay premiums representing 1,000 retired miners who had worked for it before 1966. T h e premiums amounted to more than $50 million. Although there was no clear majority opinion, the Court held that the act in effect imposed an unconstitutional retroactive liability on the company. A plurality, though not a majority, of justices said that it amounted to an unconstitutional TAKING OF PROPERTY. Eastern left the coal business before the industry agreed to fund lifetime benefits for employees, and its liability under the act depends "solely on its roster of employees some 30 to 50 years before the statutes enactment, without any regard to responsibilities that Eastern accepted under any benefit plan the company itself adopted." Moreover, "the Coal Act substantially interferes with Eastern's reasonable investmentbacked expectations." In form the act appears to dictate "only the payment of future health benefits." But in reaching back half a century to attach liability to "the company's activities between 1946 and 1965, . . . [the act] nonetheless attaches new legal consequences to [an employment relationship] completed before its enactment," amounting to unconstitutional retroactivity. 6803 See also: PROCESS THAT IS DUE.

R I P E N E S S The Court rejected as unripe a Texas suit for DECLARATORY JUDGMENT that certain provisions of the Voting Rights Act do not apply to sections of the state code governing sanctions on local school districts that fail to meet educational achievement levels. The Voting Rights Act requires certain states to submit changes to laws that affect voting to the U.S. attorney general for

565

566

SEARCH A N D SEIZURE: POLICE

PURSUIT

"pre-clearance." Texas submitted its rules to the Justice Department, which responded that most of the rules did not affect voting for school districts and that pre-clearance was therefore unnecessary, but that "under certain foreseeable circumstances" two of the provisions might apply in the future. Texas sought a declaration in federal court that the Justice Department was wrong and that the rules would never require pre-clearance. Writing for a unanimous Court, Justice Antonin Scalia said that "Texas asks us to hold that under no circumstances can the imposition of these sanctions constitute a change affecting voting. We do not have sufficient confidence in our powers of imagination to affirm such a negative. The operation of the statute is better grasped when viewed in light of a particular application." 2321a Similarly, the Court unanimously dismissed as unripe a suit by the Sierra Club challenging a land and resource management plan by the U.S. Forest Service for Wayne National Forest in Ohio. The Sierra Club objected to the increased likeliness under the plan of logging in the forest, but the Court held that since the plan by itself conferred no legal right to cut any trees, it was too early for courts to consider the plan's legality. Only when the Forest Service proposes a particular site and a specific method of harvesting, and follows numerous procedural requirements that permit affected parties to challenge the plan and its implementation, can the courts focus on whether harm is actually threatened.17483 SEARCH

AND

SEIZURE:

POLICE

PUR-

SUIT Following precedent, the Court held that a high-speed police pursuit of a speeding vehicle does not amount to a seizure, so that the question of whether the police violated the rights of a passenger who died in an accident resulting from the chase cannot be answered under the reasonableness

standards

of

the

FOURTH

AMEND-

MENT.2054' See also: SUBSTANTIVE

DUE

PROCESS.

SELF-INCRIMINATION The Court held that the FIFTH

AMENDMENT

privilege against self-

incrimination does not apply when the only threat of prosecution is from outside the United States. A resident alien in the United States was suspected of being a Nazi war criminal, contrary to statements he made in his immigration application in 1961. The Office of Special Investigations, a division of the Justice Department, subpoenaed him to answer

questions at a deposition aimed at uncovering his activities during World War II. He refused to answer questions about his activities. Fearing he might be deported, he invoked the Fifth Amendment, asserting that his answers might subject him to criminal prosecution abroad. He could not be prosecuted in the United States for lying on his immigration application, since the time for prosecuting h i m under the STATUTE OF LIMITA-

TION had expired. The Court refused to extend its rationale in Murphy v. Waterfront Commission, a 1964 case that held that fear of prosecution on federal charges was sufficient to invoke the privilege against state demands for testimony. The majority said that the true rationale of Murphy was that "the state and federal jurisdictions were as one," and the federal government or a state could not be permitted to "whipsaw" a defendant by granting immunity, forcing the incriminating testimony, and then waiting for the other jurisdiction to prosecute. But that logic cannot be extended to embrace foreign jurisdictions, since many of these may not recognize the privilege, and thus any benefit to be gained by recognizing the privilege in the United States would be lost. The Court suggested that if it could be shown that the United States was acting in tandem with other countries to grant immunity "for the purpose of obtaining evidence to be delivered to nations as prosecutors of a crime common to both countries," then perhaps the Fifth Amendment should apply. But no such showing had or could have been made in the particular case.139* Separately, a prisoner sentenced to death objected to the Ohio clemency procedure, which guarantees a clemency review within forty-five days of the scheduled date of execution. Prisoners awaiting a death sentence may request an interview with parole board members and may speak at a parole board hearing. But they are not entitled to have a lawyer present at either meeting, and they may not request immunity for any testimony they give. The prisoner objected that in the interview he might be put to the choice either of answering questions that might incriminate himself on other crimes or of risking that his silence would be used against him. The Court unanimously held, in an opinion by Chief Justice William H. Rehnquist, that "a voluntary interview could [not] 'compel' [the prisoner] to speak. . . . But this pressure to speak in the hope of improving his chance of being granted clemency does not make the interview compelled." 1745 * See also: FALSE

STATEMENTS.

S T A T E S , I M M U N I T Y FROM S U I T IN F E D E R A L C O U R T SEVENTH

AMENDMENT,

see:

trial

by

jury S H O C K T H E C O N S C I E N C E T E S T In a decision rejecting a claim that a high-speed police chase violated the SUBSTANTIVE DUE PROCESS right of a motorcyclist who died while being chased, a majority of at least five justices agreed that the "shock the conscience test" announced in Rochin v. California is appropriate in determining when executive action amounts to a constitutional abuse of power. Though concurring in the result, Justice Antonin Scalia denounced the majority for revitalizing the concept of shocking the conscience, "a throw-back to highly subjective substantive-due-process methodologies." He sarcastically declared, quoting Cole Porter, that "today's opinion resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatma Ghandi, the Celophane of subjectivity." 20543 S T A N D I N G T h e Court held that a white defendant in a state prosecution has standing to challenge the selection of the grand jury foreperson on grounds of discrimination against black persons and on grounds that the exclusion of blacks violated the defendant's right of DUE PROCESS. The defendant was indicted for murder by an allwhite grand jury in Louisiana. He asserted that the indictment was constitutionally flawed because the process of selecting grand jury forepersons in the Louisiana parish was tainted by racial discrimination. His sole undisputed evidence was that no black person had served as grand jury foreperson between 1976 and 1993, even though more than 20 percent of registered voters were black. The grand jury foreperson is selected individually from the jury pool, not, as in most other states, from among the group of people already selected to serve on the grand jury. The Court held that "[rjegardless of his or her skin color, the accused suffers a significant injury in fact when the composition of the grand jury is tainted by racial discrimination," and so a defendant has standing to prove that such a discrimination actually occurred. The Court also declared that a defendant in this situation "has standing to litigate whether his conviction was procured by means or procedures which contravene due process." 3838 The Court also held that a group of voters had standing to challenge a Federal Election Commission (FEC) decision under the Federal

Election Campaign Act (FECA) not to list an organization as a "political committee," which would have required the committee to disclose lists of donors and contributions and other expenditures. Opponents of the American Israel Public Affairs Committee (AIPAC) asked the commission to declare A I P A C a "political committee" and to require disclosure. The commission refused to do so, viewing the act as defining political committees only if the organization's major purpose is the election of candidates rather than, as it found AIPAC's purpose to be, issuesoriented lobbying. AIPAC's opponents, registered voters, asked the federal court to overturn the FEC's determination not to proceed. On appeal, the Court resolved only the preliminary question of whether the voters had standing to bring the suit. The F E C A provides that "any person" believing the law has been violated may file a complaint with the F E C and that "any party aggrieved" by a commission decision to dismiss a complaint that that party filed may seek review in federal district court. "The injury of which [the voters] complain—their failure to obtain relevant information—is injury of a kind that F E C A seeks to address." This injury satisfies the "prudential standing" requirement. Moreover, the injury complained of is not an abstract interest—for example, an interest of all citizens that the law be followed—of the sort that the Court in prior cases had said would not confer standing. In this case, the Court said, the "harm is concrete, though widely shared," and that constitutes "injury in fact." 7 4 2 a See also: CASES OR CONTROVERSIES;

MOOTNESS;

RIPENESS.

S T A T E S , I M M U N I T Y FROM S U I T IN F E D E R A L C O U R T A salvage company that located a ship wrecked off the coast of California in 1865 filed a federal admiralty suit seeking rights to the wreck and its cargo. The state of California intervened, asserting that it had title to the sunken ship under the federal Abandoned Shipwreck Act of 1987 and that therefore the salvage company's suit was in effect an action against the state barred by the ELEVENTH AMENDMENT. The Supreme Court held that California does not have Eleventh Amendment immunity against the federal admiralty suit because the state did not have possession of the shipwreck; in effect the admiralty suit was a suit against the ship, not against the state, and therefore whether the salvage com-

567

568

SUBSTANTIVE DUE PROCESS pany is entitled to the ship and cargo may be adjudicated in federal court. 3683 See also: REMOVAL OF CASES.

S U B S T A N T I V E D U E P R O C E S S The Court unanimously, though for differing reasons, agreed that police did not violate the substantive due process rights of a youth who was killed after falling off the back of a motorcycle that led the police on a high-speed chase. When a speeding motorcyclist failed to heed a policeman's gestures to stop, the patrol car pursued at speeds of up to 100 miles per hour in a residential neighborhood. Rounding a sharp turn, the motorcycle tipped over, and the police car skidded at 40 miles an hour into the passenger, who had fallen off the back seat; he was thrown seventy feet and died at the scene. The deceased s family sued the policeman and the county, charging that in failing to follow departmental procedures, including not considering whether the seriousness of the offense warranted the high-speed pursuit, the policeman by his reckless actions violated their son's constitutional rights. The Court held that this was the wrong standard for determining whether there was a substantive due process violation. "Only the most egregious official conduct can be said to be arbitrary in the constitutional sense.'" The proper test is whether the policeman engaged in conduct that shocks the conscience, not whether he manifested "deliberate indifference to, or reckless disregard for, a person's right to life and personal security." Giving chase in this situation did not shock the conscience, said Justice David H. Souter for the majority. The policeman "was faced with a course of lawless behavior for which the police were not to blame." He did not cause the motorcycle to be speeding in the first instance, nor did he encourage the driver to flout the law. The policeman did not desire to cause harm to the driver or passenger but to stop a dangerous condition, and there was "no reason to believe that [his actions] were tainted by an improper or malicious motive." That he may have acted imprudently did not rise to the level of arbitrary executive action, which is the hallmark of a substantive due process violation. 2054 " See also: SEARCH SUIT;

AND

SEIZURE:

SHOCK THE CONSCIENCE

POLICE

PUR-

TEST.

S U P R E M E L A W O F T H E L A N D After being convicted of murder and sentenced to death in Virginia, a Paraguayan citizen filed a petition for

HABEAS CORPUS in federal district court, alleging that his right under the Vienna Convention on Consular Relations was violated because the authorities had failed to tell him that he was entitled to contact the Paraguayan Consulate. The federal district court and the Court of Appeals dismissed his claim because he had not originally raised it during the state court proceedings. Although he rejected his lawyers' advice and took the stand and confessed to the killing, and although D N A and other evidence overwhelmingly implicated him, the defendant asserted that had he consulted his consulate he would have pleaded guilty in return for an offer to be spared the DEATH PENALTY. H e

argued that even though the "procedural default doctrine" states that his failure to raise the issue in state court required that his habeas corpus petition be dismissed, he was nevertheless entitled to be heard because under the SUPREMACY CLAUSE, the Vienna Convention, as a treaty, is "the supreme law of the land" and "trumps the procedural default doctrine." The Supreme Court disagreed (on the very day of the scheduled execution), holding that a treaty is not supreme when a later act of Congress supersedes it. The Vienna Convention was ratified in 1969, but in 1996, before the habeas corpus petition was filed, Congress enacted the Antiterrorism and Effective Death Penalty Act, which declares that a prisoner asserting in a habeas petition that he is being held in violation of a treaty may not be heard unless he has first "develop [ed] the factual basis of [the] claim in State court proceedings." Any claim, whether arising under a treaty or the Constitution itself, "is subject to this subsequently-enacted [procedural default] rule." 2 6 6 ' TAKING

OF

P R O P E R T Y , see:

property;

retroactivity TAX

REFUNDS,

see:

process

that

is

due T R I A L B Y J U R Y The Court held that the SEVENTH AMENDMENT guarantees a jury trial on the issue of the amount of statutory DAMAGES to be awarded in a copyright infringement case. Under the federal Copyright Act, instead of proving the actual extent of the monetary loss caused by an infringement, a plaintiff may elect to recover socalled statutory damages, a sliding scale of between $500 and $zo,ooo. In a case involving the claim that a television station broadcast several T V series without permission of the copyright owner, the

VENUE federal trial judge refused to permit a jury to determine the amount of statutory damages and decided the issue himself. The Court of Appeals agreed with the trial judge, holding that statutory damages are "equitable in nature" and are therefore not the sorts of "legal rights" that the Seventh Amendment requires to be tried to a jury. Writing for a majority of eight, Justice Clarence Thomas reversed, holding that historically the "general rule" is that "monetary relief is legal" and that the "right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner." 7573

V A G U E N E S S In a case involving public grants to artists by the National Endowment for the Arts, four performers, denied grants under a provision of the federal law requiring the N E A to consider whether the art to be underwritten is either indecent or offensive, challenged the law as unconstitutionally vague. The Court disagreed, holding that in "the context of selective subsidies, it is not always feasible for Congress to legislate with clarity." Without some degree of vagueness, "all government programs awarding scholarships and grants on the basis of subjective criteria such as 'excellence'" would be unconstitutional. 16383

The Court separately held that the Seventh Amendment requires a plaintiff to be afforded the opportunity for a new jury trial if after a first trial the judge decides to reduce the jury's verdict as excessive. In the case, a woman had secured a jury verdict of $750,000 against Prince William County, Virginia. The trial court, after an appeal, recalculated and awarded her $50,000. She declined the award and sought a new trial. The Court of Appeals blocked a retrial and ordered the trial court to enter the lower amount as the final judgment. The Supreme Court held that in this situation, a plaintiff is entitled to reject the recalculated award and demand a new jury trial. 10573

VENUE A woman was charged with the federal crime of laundering money derived from cocaine sales. The cocaine was sold in Missouri, but the money laundering occurred entirely in Florida, and the launderer was not charged with participating in the drug distribution that generated the money. The government sought to try her in Missouri because much of the evidence linking her to the money was there. The Court unanimously declared that she could be tried only in Florida. Under Art. III-2[3] and the SIXTH AMENDMENT, the venue of a trial must be in the place where the crime was committed. 3523

569

T H E C O N S T I T U T I O N OF T H E U N I T E D

STATES

Note: Numbers in brackets have been added to identify paragraphs within sections; they are not part of the Constitution. Numbers in the Concordance following refer to articles, sections, and bracketed paragraph numbers. Thus, II-2[i] refers to Art. II, Sect. 2, Paragraph 1. Phrases or sentences in brackets have been repealed and are no longer operative. [PREAMBLE] 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 [1] 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. [2] 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. [3] [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, in such 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. [4] When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. [5] The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

572

T H E C O N S T I T U T I O N OF THE U N I T E D STATES Section } [i] 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. [2] 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.] [3] 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. [4] The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. [5] 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. [6] 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. [7] 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. Section 4 [1] 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. [2] 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 [1] 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. [2] 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. [3] 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. [4] 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 [1] 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.

T H E C O N S T I T U T I O N OF T H E U N I T E D STATES [2] 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. Section 7 [1] 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. [2] 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. [3] 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 [1] 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; [2] To borrow Money on the credit of the United States; [3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; [4] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; [5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; [6] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; [7] To establish Post Offices and post Roads; [8] 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; [9] To constitute Tribunals inferior to the supreme Court; [10] To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; [11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; [12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; [13] To provide and maintain a Navy; [14] To make Rules for the Government and Regulation of the land and naval Forces; [15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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574

T H E C O N S T I T U T I O N OF T H E U N I T E D STATES [16] 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; [17] 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 [18] 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 [1] 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, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. [2] 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. [3] No Bill of Attainder or ex post facto Law shall be passed. [4] [No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.] [5] No Tax or Duty shall be laid on Articles exported from any State. [6] 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. [7] 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. [8] 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 [1] 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. [2] 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 Controul of the Congress. [3] 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.

A R T I C L E II Section 1 [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

T H E C O N S T I T U T I O N O F T H E U N I T E D STATES [2] 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. [3] [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.] [4] 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. [5] 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 Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. [6] [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. [7] Before he enter on 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 [1] 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. [2] 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 herein otherwise provided for, and which shall be established by Law: but the

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T H E C O N S T I T U T I O N OF T H E U N I T E D STATES 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. [3] 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. Section j 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.

A R T I C L E 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 [1] 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.] [2] 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. [3] 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 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 5 [1] 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. [2] The Congress shall have Power to declare the Punishment ofTreason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. A R T I C L E 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 [1] The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

T H E C O N S T I T U T I O N OF T H E U N I T E D STATES [2] 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. [3] [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 1 [1] 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. [2] 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 construed 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 it's equal Suffrage in the Senate. ARTICLE VI [1] 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. [2] 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. [3] 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. ARTICLE VII [1] The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. [2] 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

577

578

THE C O N S T I T U T I O N OF THE U N I T E D

STATES

of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names, G ° . Washington-Presid'. and deputy from Virginia New Hampshire

John Langdon Nicholas Gilman

Massachusetts

Nathaniel Gorham Rufus King

Connecticut

Wm. Sand. Johnson Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil: Livingston David Brearley Wm. Paterson Jona: Dayton

Pennsylvania

B Franklin Thomas Mifflin Robt Morris Geo. Clymer Thos. FitzSimons Jared Ingersoll James Wilson Gouv Morris

Delaware

Geo: Read Gunning Bedford jun John Dickinson Richard Bassett Jaco: Broom

Maryland

James McHenry Dan of St Thos. Jenifer Danl Carroll

Virginia

John BlairJames Madison Jr.

North Carolina

Wm. Blount Richd. Dobbs Spaight Hu Williamson

South Carolina

Georgia

J. Rutledge Charles Cotesworth Pinckney Charles Pinckney Pierce Butler William Few Abr Baldwin Attest William Jackson Secretary

THE C O N S T I T U T I O N

OF T H E U N I T E D STATES

AMENDMENT I (December 15, 1791) 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. A M E N D M E N T II (December 15, 1791) 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. A M E N D M E N T III (December 1$, 1791) N o 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. A M E N D M E N T IV (December 15, 1791) 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. AMENDMENT V (December

15,1791)

N o 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; nor shall private property be taken for public use without just compensation. A M E N D M E N T VI (December i f , 1791) 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. A M E N D M E N T VII (December 15, 1791) 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.

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T H E C O N S T I T U T I O N OF T H E U N I T E D STATES A M E N D M E N T VIII (December 15,1791) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. A M E N D M E N T IX (December 11791) The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. AMENDMENT X (December 1791) 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. A M E N D M E N T XI (February 7,179$) 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. A M E N D M E N T XII (June is, 1804) 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 Vice-President; 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 office of President shall be eligible to that of Vice-President of the United States.

T H E C O N S T I T U T I O N OF T H E U N I T E D STATES A M E N D M E N T XIII (December 6,1865) Section j 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. AMENDMENT XIV (July 9, 1868) 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 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 two-thirds 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. A M E N D M E N T XV (February 3,18/0) 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. A M E N D M E N T XVI (February 3,191}) 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.

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THE C O N S T I T U T I O N OF T H E U N I T E D STATES A M E N D M E N T XVII (April 8, ip13) [1] 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 qualifications requisite for electors of the most numerous branch of the State legislatures. [2] 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. [3] 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. A M E N D M E N T XVIII (January 16,1919) [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.] A M E N D M E N T XIX (August 18,1920) [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 sex. [2] Congress shall have power to enforce this article by appropriate legislation. A M E N D M E N T XX (January 23,1933) 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 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

T H E C O N S T I T U T I O N OF T H E U N I T E D STATES 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. Sections Sections i 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 three fourths of the several States within seven years from the date of its submission. A M E N D M E N T XXI (December 5,1933) Section 1 The eighteenth article of amendment to the Constitution of the United States is hereby repealed. 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 j 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. A M E N D M E N T XXII (February 27, 1951) 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 three fourths of the several States within seven years from the date of its submission to the States by the Congress. A M E N D M E N T XXIII (March 29,1961) Section 1 [1] The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: [2] 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. Section 2 The Congress shall have power to enforce this article by appropriate legislation. A M E N D M E N T XXIV (January 23,1964) 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

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T H E C O N S T I T U T I O N OF THE U N I T E D STATES 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. AMENDMENT X X Y (February 10, 196-7) 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 [1] 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. [2] Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written 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. AMENDMENT XXVI (July 1,1971) 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. AMENDMENT XXVII (May 7,1992) No law, varying the compensation for the services of the Senator:: and Representatives shall take effect, until an election of Representatives shall have intervened.

CONCORDANCE TO THE OF T H E U N I T E D

CONSTITUTION STATES

For each word orphrase, references are to the constitutional article or amendment, section, andclause. Abridge the privileges or immunities of citizens of the United States, Am.14-1 Abridging the freedom of speech, Am.i Absence of the Vice President, I-3 [5] Absent Members, I-J[I] Absolutely necessary, I-io[z] Account of the receipts and expenditures, 1-9(7] According to Law, 1-3(7] According to the rules of the common law, Am.7 According to their respective numbers, Am.14-2 Accusation, Am.6 Accused, Am.6 Act accordingly, Am.20-3 Act as President, Am.20-3 Acted as President, Am.22-1 Acting as President, Am.22-1 Acting President, Am.25-3, Am.25-4(1], Am.25-4(2] Actual service in time of War, Am.5 Adhering to their Enemies, III-3 [1] Adjourn, I-5I4], II-3 Adjournment, 1-7(2], 1-7(3], H-3 Admiralty and maritime jurisdiction, III-2[i] Admitted by the Congress into this Union, IV-3 [1] Adoption of this Constitution, II-i [5], VI-i Advice and Consent, 11-2(2] Affirmation, 1-3(6], Il-ifr], VI-3, Am.4 Age, 1-2(2], Am.26-1 Age of thirty five Years, 11-1(5] Age of thirty Years, 1-3(3] Age of twenty five Years, 1-2(2] Agreement or Compact with another State, 1-10(3] Aid and Comfort, III-3(i] Aid of insurrection or rebellion, Am.14-4 Aid or comfort to the enemies, Am. 14-3 585

586

CONCORDANCE

TO THE

CONSTITUTION

All Cases, I-6(i] All other Officers, 11-2(2] All persons, A m . 1 2 , A m . 1 4 - 1

All such Cases, I-7[2] Alliance, I - i o [ i ] A m b a s s a d o r s , 11-2(2], II-3, I I I - 2 [ i ] , III-2[2] A m e n d m e n t , A m . 1 7 - 3 , Am.18-3, A m . 2 0 - 6 , A m . 2 1 - 1 , A m . 2 1 - 3 , A m . 2 2 - 2 , A m . 2 3 - 1 ( 2 ]

Amendments, V America, Preamble, II-i[i], VII-2 Among the several States, 1-8 [3] A n y person, II-x [5], A m . 5 , A m . 1 4 - 1 , A m . 2 2 - 1

Any State, I-2[ 4 ], I-3[2.], 1-9(5], I-10U], III-2.M, IV-zW, IV- 3 [i], VI-2, Am.14-1, Am.14-3, Am.14-4, Am.15-1, Am.17-2, Am.19-1, Am.21-2, Am.24-1, Am.26-1

Appellate jurisdiction, III-2[2] Application of the Legislature, IV-4 Application of the Legislatures, V Appoint, II-i[2], II-2[2], Am.20-2, Am.23-1(1] Appointed by the States, Am.23-1 [2] Appointed to any civil Office, 1-6(2] Appointment of the Officers, I-8[i6] A p p o i n t m e n t s , 1-3(2], 11-2(2], A m . 1 7 - 2 A p p o r t i o n e d , 1-2(3]

Apportioned among the several States, Am.14-2 Apportionment among the several States, Am.16 A p p r o p r i a t e legislation, A m . 1 3 - 2 , A m . 1 4 - 5 , A m . 1 5 - 2 , A m . I 8 - 2 , A m . 1 9 - 2 , A m . 2 3 - 2 , A m . 2 4 - 2 , Am.26-2

Appropriation of Money, I-8[I2] Appropriations made by Law, 1-9(7] Arising under this Constitution, III-2[i] A r m i e s , I-8[I2]

Arms, Am.2 Army, II-2[i] Arrest, 1-6 [1] Arsenals, 1-8(17] Article, A m . 1 8 - 3 , A m . 1 9 - 2 , A m . 2 0 - 5 , A m . 2 0 - 6 , A m . 2 1 - 1 , A m . 2 1 - 3 , A m . 2 2 - 1 , A m . 2 2 - 2

Articles exported, 1-9(5] Ascertained by Law, I-6[i], Am.6 Assemble, Am.i Assemble at least once in every year, Am.20-2 Assembled in Consequence of the first Election, 1-3(2] Assembling within forty-eight hours, Am.25-4(2] Assistance of counsel, Am.6 Assume the powers and duties of the office as Acting President, Am.25-4(1] Attainder ofTreason, 1-9(3], I - i o [ i ] , 111-3(2] Attainted, 111-3(2] Attendance, I-5 [1] Attendance at the Session, I-6(i] Authority of the United States, 1-6(2], VI-2 Authority of training the Militia, 1-8 [16] Authors and Inventors, 1-8(8]

C O N C O R D A N C E TO THE CONSTITUTION Bail, Am.8 Ballot, II-i[3], Am.12 Bankruptcies, 1-8 [4] Basis of representation, Am.14-2 Bear Arms, Am.2 Best of my Ability, II-i[7] Beverage purposes, Am.18-1 Bill, I- 7 [2], I- 7 [ 3 ] Bill of Attainder, I-9[3], I-io[i] Bills for raising Revenue, I-7U] Bills of Credit, I-io[i] Blessings of Liberty, Preamble Blood, III-3U] Born or naturalized in the United States, Am.14-1 Borrow Money on the credit of the United States, 1-8 [2] Both Houses, I-7[2], II-3, V, Am.25-2, Am.25-4[2] Both Houses of Congress, Am.25-2 Bound by Oath or Affirmation, VI-3 Bound to Service for a Term of Years, I-2[ 3 ], Bounties for services, Am.14-4 Branch of the State legislatures, Am.17-1 Breach of the Peace, 1-6 [1] Bribery, II-4 Buildings, 1-8 [17] By Law, I-2[3], I-4[i], 1-4(2], I-6(i], 1-9(7], II-i(6], II-z[z], III-2[3], Am.6, Am.14-4, Am.20-2, Am.20-3, Am.20-4, Am.25-4[i], Am.25-4(2] Call a Convention, V Called into the actual Service, II-2[i] Capital, or otherwise infamous crime, Am.5 Capitation, or other direct, Tax, 1-9(4] Captures on Land and Water, 1-8 [11] Cases affecting Ambassadors, other public Ministers and Consul, III-2[i], 111-2(2] Cases arising in the land or naval forces, Am. 5 Cases, in Law and Equity, III-2[i] Cases of admiralty and maritime jurisdiction, III-2[i] Cases of Impeachment, 1-3(7], H-2(i]> 111-2(3] Cases of Rebellion or Invasion, 1-9(2] Census, 1-9(4] Census or enumeration, Am.16 Certain rights, Am.9 Certificates, II-i[3] Certify, Am.12 Cession of particular States, 1-8 [17] Charged, IV-2(2] Chief justice, 1-3(6] Citizen, 11-1(5] Citizen of the United States, 1-2(2], 1-3(3], H-ifj] Citizens, III-2[i], IV-2[i], Am.11 Citizens of another State, III-2[i], Am.n

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C O N C O R D A N C E TO THE C O N S T I T U T I O N Citizens of different States, III-z[i] Citizens of the same State claiming Lands under Grants of different states, III-2[i] Citizens of the United States, l-i[z], Am.14-2, Am.15-1, Am.19-1, Am.24-1, Am.26-1 Citizens of the United States and of the State wherein they reside, Am.14-1 Citizens or Subjects of any Foreign State, Am.11 Civil Office under the Authority of the United States, 1-6(2] Civil Officers of the United States, II-4 Claim for the loss or emancipation of any slave, Am.14-4 Claim of the Party, IV-2[j] Claims of the United States, IV-3[2] Classes, I-3 [2] Coin, I-8W, 1-8[6], I - I O [ I ] Coin Money, I-8[j], I - I O [ I ] Collect taxes on incomes, Am.16 Color, Am. 15-1 Comfort, III-3U], Am. 14-3 Commander in Chief, II-2[i] Commerce, 1-9(6] Commerce . . . among the several States, 1-8(3] Commerce with foreign Nations, 1-8(3] Commerce . . . with the Indian Tribes, 1-8(3] Commission all the Officers, II-3 Commissions, 11-2(3] Common defence, Preamble, 1-8 [1] Common law, Am.7 Compact with another State, 1-10(3] Compel the Attendance of absent Members, I-5 [1] Compelled in any criminal case to be a witness against himself, Am.5 Compensation, I-6[i], II-i[6], III-i, Am. 27 Compulsory process for obtaining witnesses, Am.6 Concurrence of the Senate and House of Representatives, 1-7(3] Concurrence of two thirds, 1-5(2] Concurrence of two thirds of the Members present, 1-3(6] Concurrent power, Am.18-2 Condition of servitude, Am.15-1 Confederation, I - I O [ I ] , V l - i Confession, III-3 [1] Confirmation by a majority vote of both Houses of Congress, Am.25-2 Confronted with the witnesses against him, Am.6 Congress, I - I , I - 4 [ I ] , I - 4 H , I- 5 [ 4 ], I-7W, 1-8W, I-8[i6], I-8[I 7 ], I- 9 [i], I-iofi], II-iM, I I - I [ 4 ] , II-i[6], 11-2(2], II-3, III-i, III-2[2], III-2[3], III-3[2], IV-i, IV-3[i], IV-3U], V, Am.i, Am.13-2, Am.14-2, Am.14-3, Am.14-5, Am.15-2, Am.16, Am.18-2, Am.18-3, Am.19-2, Am.20-2, Am.20-3, Am.20-4, Am.21-3, Am.22-i, Am.22-2, Am.23-1(1], Am.23-i[2], Am.23-2, Am.24-1, Am.24-2, Am.25-2, Am.25-4(1], Am.25-4[2], Am.26-2 Congress of the United States, I-i, 1-2(3] Congress shall assemble, 1-4(2] Congress shall have Power, 1-8 [1] Connecticut, 1-2(3] Consent, 1-5(4], 1-8(17], H M , I - i o M , 1-10(3], 11-2(2], IV- 3 [i], V, VII-2, Am.3 Consent of Congress, 1-10(3]

CONCORDANCE

TO THE

CONSTITUTION

Consent of the Congress, I-9Î8], I-io[2] Consent of the Legislatures, IV-3I1] Consent of the other, I-5UJ Consent of the Owner, Am.3 Constitute Tribunals inferior to the supreme Court, 1-8 [9] Constitution, Preamble, I-8[I8], IL-ifo], I L - i f r ] , ILL-zfi], IV-3[2], V, VI-i, V I - 2 , Am.io, Am.14.-3, A m . 1 7 - 3 , A m . 1 8 - 3 , A m . 2 0 - 6 , Am.21-1, A m . 2 1 - 3 , A m . 2 2 - 2 Constitutional disability, Am.12 Constitutionally ineligible, Am.12 Construed, IV-3[2], A m . 9 , Am.n, A m . 1 7 - 3 Consuls, II-2[2], III-2[l], III-2[2] Continuance in Office, \-6{l\ Contracts, I - i o [ i ] Controul of the Congress, I-io[2] Controversies between two or more States, III-z[i] Controversies to which the United States shall be a Party, III-2[i] Convene both Houses, II-3 Convention, VII-2

Convention for proposing Amendments, V Conventions, V Conventions in the several States, Am. 21-3 Conventions of nine States, VII-i Conviction, II-4 Corruption of Blood, III-3[2] Counterfeiting, 1-8 [6] C o u r t , III-3 [ ï ]

Court of the United States, Am.7 Courts of Law, II-2[2] Credit of the United States, 1-8 [2] Crime, IV-2[2], A m . 5 , A m . 6 , Am.13-1, A m . 1 4 - 2 Crimes, II-4, III-2[3] Criminal case, Am. 5 Criminal prosecutions, Am.6 Cruel and unusual punishments, Am.8 Danger, Am.5 Date of its submission, A m . 2 0 - 6 Day on which they shall give their Votes, II-i [4] Death, Am.12 Death of any of the persons, Am.20-4 Death or resignation, Am.25-1 Death, Resignation, or Inability to discharge the Powers and Duties, II-i[6] Debate, I-6[i] Debts, 1-8[1], I - i o [ i ] , VI-i Debts incurred for payment of pensions and bounties for service, A m . 1 4 - 4 Debts, obligations and claims, A m . 1 4 - 4 December, 1-4(2] Declare War, 1-8 [11] Defence, Preamble, I-8[i], Am.6 Define and punish Piracies and Felonies, 1-8 [10]

VI-3,

VII-i,

Am.9,

589

590

C O N C O R D A N C E

TO THE

CONSTITUTION

Delaware, 1-2. [ 3 ] Delay, I-io[3] Delegated, Am.10 Delivered up, IV-2I2], IV-2[3] Delivery or use therein, Am.21-2 Demand of the executive Authority of the State, IV-2[2] Denied or abridged, Am.15-1, Am.19-1, Am.24-1, Am.26-1 Denied or abridged by the United States or by any State, Am.15-1 Deny or disparage, Am.9 Deny to any person within its jurisdiction, Am.14-1 Department, I-8[i8], Am.25-4[2] Departments, II-2[i], II-2I2], Am.25-4(1] Deprive any person of life, liberty, or property, Am.14-1 Deprived of Life, liberty, or property, Am.5 Desire of one fifth of those Present, I-5 [ 3 ] Died, Am.20-3 Different Day, 1-4(2] Direct Taxes, I-2[3] Disability, Am.12 Discharged from such Service or Labour, IV-2[3] Disorderly Behaviour, 1-5(2] Disparage, Am.9 Dispose of, IV-3 [ 2 ] Disqualification to hold and enjoy any Office of honor, Trust, I-3 [ 7 ] Distinct lists, Am.12 District, 1-8[17], Am.6, Am.23-1(2] District constituting the seat of Government, Am. 2 3 - 1 ( 1 ] Divided as equally as may be, 1-3(2] Dock-Yards, 1-8(17] Dollars, I-9U], Am. 7 Domestic Tranquility, Preamble Domestic Violence, IV-4 Drawn from the Treasury, 1-9(7] Due process of law, Am. 5 , Am.14-1 During the Time for which he was elected, 1-6(2] Duties, 1-8[1], 1-9(6], ¡ - 1 0 ( 2 ] Duties of their respective Offices, II-2[i] Duty, I- 9 [i], 1-9(51 Duty of Tonnage, 1-10(3] Each State, I-2[i], 1-2(3], 1-3W. WW. H-iM, II-i(3], IV-i, IV-2[i], Am.i2, Am.14-2, Am.17-1 Effects, Am.4 Eighteen years of age, Am.26-1 Elected, I-6[z], I I - I [ I ] , I I - I [ 6 ] Elected by the people thereof, Am.17-1 Elected to the office of the President, Am. 2 2 - 1 Election, 1-2(4], 1-3 M, Am.14-2, Am.17-2, Am.17-3, Am. 2 7 Election for President or Vice President, Am. 2 4 - 1 Election of President and Vice President, Am.23-1 [ 2 ] Elections, 1-4(1], I-5(i]

C O N C O R D A N C E TO THE CONSTITUTION Elector, II-i[i] Elector of President and Vice President, Am.14-3 Electors, I-i[i], II-i[2], II-i[3], II-i[4], Am.12, Am.14-2, Am.17-1, Am.23-i[2], Am.24-1 Electors appointed by a State, Am.23-i[2] Electors in each State, Am.17-1 Electors of the most numerous Branch of the State Legislature, I-2[i] Emancipation, Am.14-4 Emit Bills of Credit, I-IO[I] E m o l u m e n t , I-9[8], II-i(6] Emoluments whereof shall have been encreased, 1-6 [2] Employed in the Service of the United States, 1-8 [16] Enemies, III-3 [1], Am.14-3 Engage in War, I-io[3] Engaged in insurrection or rebellion, Am.14-3 Engagements entered into, VI-i Enter, clear, or pay Duties, I-9 [6] Enumeration, 1-2(3], I-9[4], Am.9, Am.16 Equal N u m b e r of Votes, II—1 [3] Equal protection of the laws, Am.14-1 Equal Suffrage in the Senate, V Equal to the whole N u m b e r of Senators and Representatives, II-i[2], Am. 23-1 [2] Equally divided, I-3 [4] Equity, III-z[i] Erection of Forts, Magazines, Arsenals, dock-Yards and Other, 1-8 [17] Escaping, IV-2[3] Establish Justice, Preamble Establish Post Offices and post Roads, 1-8 [7] Established by Law, II-2[2] Establishment of religion, Am.i Establishment of this Constitution, VII-i Ex post facto Law, I-9[3], I-IO[I] Exceptions, III-2[2] Excessive bail, Am.8 Excessive fines, Am.8 Excises, 1-8 [1] Exclusive Legislation, I-8[i7] Exclusive Right, 1-8 [8] Execute the Laws of the Union, 1-8 [15] Execution of his Office, II-1I7] Executive, 1-3(2], IV-4, VI-3 Executive and Judicial officers of a State, Am.14-2 Executive Authority, 1-2(4] Executive authority of such State, A m . 1 7 - 2 Executive department, Am.25-4(2] Executive Departments, II-2[i], Am.25-4(1] Executive or judicial officer of any State, Am.14-3 Executive Power, II-i [1] Exercise exclusive Legislation, 1-8(17] Expel a Member, 1-5(2] Expiration, 1-3(2]

591

592

C O N C O R D A N C E TO THE

CONSTITUTION

Expire at the End of their next Session, 11-2(3] Exportation, Am.18-1 Exported, 1-9(5] Exports, I-io[2] Extraordinary Occasions, II-3 Fact,

III-2[2]

Fact tried by a jury, Am.7 Failed to qualify, Am. 20-3 Failure to pay any poll tax or other tax, Am.24-1 Faithfully execute the Office, II-z [7] Faithfully executed, II-3 Felonies committed on the high Seas, 1-8 [10] Felony, I-6[i],

IV-2[2]

Fill u p all Vacancies, II-2.[3] Fines, Am.8 First Election, I-3[2] First Monday in December,

1-4(2]

Five highest on the List, II-i [3] Fix the Standard of Weights and Measures, 1-8 [5] Flee from Justice,

IV-2I2]

Foreign Coin, 1-8 [5] Foreign Power, 1-10(3] Foreign State, 1-9(8], Am.11 Foreign States, III-2[i] Forfeiture, III-3[z] Form of Government, IV-4 Forts, 1-8 [17] Forty-eight hours,

Am.25-4(2]

Four days, Am.25-4[2] Four Years,

II-I[I]

Fourteen Years, II-i[5] Fourth day of March, Am.12 Free exercise, Am.i Free Persons, 1-2(3] Free state, Am.2 Freedom of speech, Am.i From time to time, II-3 Full Faith and Credit, IV-i General Laws, IV-i General Welfare, Preamble, 1-8 [1] Georgia, 1 - 2 ( 3 ] Going to and returning from, 1-6 [1] Gold and silver Coin, I - I O ( I ] G o o d Behaviour, III-i Government, 1 - 8 ( 1 4 ] , I-8[i7], I - 8 [ I 8 ] , Il-ife], I V - 4 , Am.i, A m . 1 2 , A m . 2 3 - i [ i ] Government and Regulation of the land and naval Forces, 1-8(14] Government of the United States, 1 - 8 ( 1 7 ] , I-8[i8], Il-ife], A m . 1 2 , A m . 2 3 - i [ i ] G r a n d jury, Am.5

C O N C O R D A N C E TO THE C O N S T I T U T I O N

Grant Letters of Marque and Reprisal, I-8[n] Grievances, Am.i Guarantee to every State, IV-4 Habeas Corpus, I-9 [2] Heads of Departments, 11-2(2] Held to answer, Am.5 High Crimes and Misdemeanors, II-4 High Seas, 1-8 [10] Holding Elections, I-4.f1] Honor, Trust or Profit, 1-3(7] House, I-5[i], I-5[z], I-5[3l. I-jW. I-7W. Am. 3 House in which it shall have originated, I-7H House of Representatives, I-i, I-2[i], I-2[5], I-7U], 1-7(2], 1-7(3], II-i[3], Am.12, Am.20-4, Am.25-3 Houses, 1-5(4], I-6[i], II-3, V, Am.4, Am.25-2

Illegal and void, Am. 14-4 I m m i n e n t Danger, 1-10(3]

Impairing the Obligation of Contracts, I-IO[I] Impartial jury, Am.6 I m p e a c h m e n t , 1-2(5], 1-3(7], II-2[i], II-4, III-2[3]

Impeachments, I-3 [6] Importation, Am.18-1 Importation of such Persons, I-c>[i] Imports, I-io[2] Imposts, I-8[i], I-io[2] In consequence of appropriations made by law, 1-9(7] In consequence of the first election, 1-3(2] Inability, Am.25-4(2] Inability to discharge the Powers and Duties, II-i[6] Incomes, Am.16 Independence of the United States of America, VII-2 Indian Tribes, 1-8(3] Indians, 1-2(3] Indians n o t taxed, 1-2(3], Am.14-2 I n d i c t m e n t , 1-3(7], A m . 5

Infamous crime, Am.5 Inferior Courts, III-i Inferior Officers, 11-2(2] Information of the State of the Union, II-3 Informed of the nature and cause of the accusation, Am.6 I n h a b i t a n t of that State, 1-2(2], 1-3(3]

Inhabitant of the same State, II-i [3], Am.12 Inhabitants of such State, Am.14-2 Inoperative, Am.18-3, Am.20-6, Am.21-3, Am.22-2

Inspection Laws, I-IO[2] Insurrection or rebellion, Am.14-3, Am.14-4

Insurrections, 1-8(15] Intervened, Am. 27

593

594

C O N C O R D A N C E TO THE C O N S T I T U T I O N Intoxicating liquors, Am.18-1, Am.21-2 Invaded, I-io[3] Invasion, I-9I2], IV-4 Invasions, 1-8 [15] Inventors, 1-8 [8] Involuntary servitude, Am.13-1 January, Am.20-1, Am.20-2 Jeopardy of life or limb, Am. 5 Journal, I-7[2] Journal of its Proceedings, I-5I3] Judge of the Elections, Returns and Qualifications of its own, I-5[i] Judges, II-2[2], III-i Judges in every State, VI-2 Judges of the supreme Court, II-2[2] Judgment, l - f a ] , H b J Judicial officer of any State, Am.14-3 Judicial Officers, VI-3 Judicial officers of a State, Am. 14-2 Judicial Power, III-i, III-2[i], Am.n Junction of two or more States, IV-3 [ij Jurisdiction, III-2[i], III-2[z], IV-2f2], IV-3[i], Am.13-1, Am.14-1, Am.18-1 Jury, III-2t3], Am.5, Am.6, Am.7 Just compensation, Am.5 Justice, Preamble, IV-2[2] Keep and bear Arms, Am.2 King, I-9 [8] Land and naval Forces, I-8[i4] Lands, III-2[i] Law, I- 3 [ 7 ], I- 4 [i], I- 4 [2], I-7[2], I-9W- II-i[6], II-2[2], III-2[i], III-2[2], III-2[3], Am. 3 , Am.14-1 Law and Fact, III-2[2] Law impairing the Obligation of Contracts, I-io[i] Law of Nations, 1-8 [10] Law of the Land, VI-2 Law or equity, Am.n Law or Regulation, IV-2I3] Law respecting an establishment of religion, Am.i Laws, IV-i, IV-2[3], Am.21-2 Laws be faithfully executed, II-3 Laws of the Union, 1-8 [15] Laws of the United States, III-2[i], VI-2 Lay and collect Taxes, I-8[i] Lay and collect taxes on incomes, Am.16 Lay any Duty of Tonnage, I-iofj] Lay any Imposts or Duties, I-iofc] Least populous State, Am.23-1 [2] Legislation, I-8[i7], Am.13-2, Am.14-5, Am.15-2, Am.18-2, Am.19-2, Am.23-2, Am.24-2, Am.26-2 Legislative Powers, I-i

CONCORDANCE

TO THE

Legislative Powers herein granted, I-i Legislature, I-3U], I-3U], I-4[i], I-8[i7], II-i[z], IV-4, Am.14-2, Am.14-3 Legislature of any State, Am.17-2 Legislatures, V, VI-3, Am.17-1, Am.18-3, Am.20-6 Legislatures of three fourths of the several States, Am.22-2 Letters of Marque and Reprisal, I-8[N], I-IO[I] Levying War, III-3 [1] Liberty, Preamble, Am. 5 Life, liberty, or property, Am. 5, Am.14-1 Life of the Person attainted, 111-3(2] Life or limb, Am.5 Limb, Am.5 Limited Times, 1-8 [8] Liquors, Am.21-2 List of all the Persons voted for, II-i[3] Made in Pursuance thereof, VI-2 Magazines, 1-8 [17] Maintain a Navy, 1-8(13] Majority, I-jti], Am.25-4(1], Am.25-4(2] Majority of all the States, II-i [3], Am.12 Majority of the whole N u m b e r of Electors, II-i [3] Majority of the whole number of Electors appointed, Am.12 Make all Laws which shall be necessary and proper, 1-8 [18] Make no law, Am.i Make or alter such Regulations, I-4.f1] Make Rules concerning Captures on Land and Water, 1-8 [11] Make Rules for the Government and Regulation of the land, 1-8(14] Make Treaties, 11-2(2] Male inhabitants, Am.14-2 Manufacture, sale, or transportation of intoxicating liquors, Am.18-1 March, Am.12 Marque and Reprisal, I-8[N], I-IO[I] Maryland, 1-2(3] Massachusetts, 1-2(3] Measures, II-3 Meeting of the Legislature, 1-3(2] Member, I-jfc], 1-6(2], II-i[ 3 ] Member of any State legislature, Am.14-3 Member of Congress, Am.14-3 Members, I-2[i], 1-5(1], 1-5(2], II-i[3], Am.14-2 Members of either House, 1*5(3] Members of the Legislature, Am.14-2 Members of the several State Legislatures, VI-3 Members present, I-3 [6] Migration or Importation of such Persons, I-9(i] Military, Am.14-3 Militia, 1-8(15], 1-8[16], II-2[i], Am.2, Am.5 Ministers, II-3 Ministers and Consuls, 11-2(2]

CONSTITUTION

595

596

C O N C O R D A N C E TO THE

CONSTITUTION

Misdemeanors, II-4 Mode of Ratification, V Monday, I-4[2] Money, 1-8(2], 1-8[12], 1-9(7], I-IO[I] More perfect Union, Preamble More than once, Am.22-1 More than twice, Am.22-1 Names of the Persons voting for and against the Bill, 1-7(2] Natural born Citizen, II-i [5] Naturalization, 1-8(4] Naturalized in the United States, Am.14-1 Nature and cause of the accusation, Am.6 Naval Forces, 1-8(14], Am.5 Navy, I-8(I 3 ], H-2[i] Necessary, 1-7(3], I-8[i8], I-io[2], Il-ife], II-3, V, Am.2, Am.12 Necessary and expedient, II-3 Necessary and proper, 1-8 [18] Needful Buildings, 1-8(17] Needful Rules, IV-3U] Net Produce of all Duties and Imposts, I-io[2] New Hampshire, 1-2(3] New Jersey, 1-2(3] New States, IV-3 [1] New-York, 1-2(3] Nine States, VII-i Nine Years, 1-3(3] No law, Am. 1, Am. 27 No money shall be drawn from the Treasury, 1-9(7] No Person, 1-2(2], I-3W, 1-3(6], I-6(2], I- 9 [8], II-i[ 3 ], II-i( 5 ], III- 3 [i], IV-2[ 3 ], Aro.j, Am.12, Am.14-3, Am.22-1 No State, I-IO[I], I-IO(2], 1-10(3], V, Am.14-1 Nobility, 1-9(8], I-IO[I]

Nominate, 11-2(2] Nominate a Vice President, Am.25-2 Noon on the 20th day of January, Am.20-1 Noon on the 3d day of January, Am.20-1, Am.20-2 Nor shall any State, Am.14-1 North Carolina, I-2[ 3 ] Number of Electors, II-i[2], Am.23-i[2] Number of Representatives, 1-2(3] Number of Senators and Representatives, II-i[2] Number ofVotes, II-i [3], Am.12 Numbers not exceeding three, Am.12 Oath, 1-3(6], Am.14-3 Oath or Affirmation, 1-3(6], Il-ifr], VI-3, Am.4 Objections, 1-7(2] Obligation of Contracts, I-IO[I] October, Am.20-5

C O N C O R D A N C E TO THE C O N S T I T U T I O N Offence, Am.5 Offenses against the Law of Nations, I-8[io] Offenses against the United States, II-2[i] Office, 1-3(7], I - 6 M , 1-9(8], II-I[I], II-I[6], II-i[y], III-i, Am.14-3, Am.25-1, Am.25-4^], Am.25-4(2] Office of honor, Trust or Profit under the United States, 1-3(7] Office of [the] President, 1-3(5], II-i[5], Am.12, Am.22-1 Office of Profit or Trust, I-s>[8] Office of the Vice President, Am.25-2 Office o f T r u s t or Profit under the United States, II-i[2] Office or public Trust, VI-3 Officer, I-8[I8], II-2[i] Officer of the United States, Am.14-3 Officers, I-2[ 5 ], 1-3(5], 1-8[16], 11-2(2], II-3 Officers of the executive department, Am.25-4(2] Officers of the executive departments, Am.25-4[i] Officers of the United States, II-z[i], II-3, II-4 Offices, III-i O n c e in every Year, I-4[2], A m . 20-2 O n e fifth, 1-5(3] O n e third, 1-3(2] O n e thousand eight hundred and eight, I - 9 M , V O n e thousand seven hundred and eighty seven, VII-2 O n e Vote, II-i[3] O n e year f r o m the ratification, Am.18-1 O p e n Court, III-3 [1] O p i n i o n , in writing, II-2[i] Ordain and establish, III-i Ordain and establish this Constitution, Preamble Order, 1-7(3] Order, Resolution, or Vote, 1-7(3] Original jurisdiction, 111-2(2] O t h e r needful Buildings, 1-8(17] O t h e r Officers, 1-3(5] O t h e r person, Am.22-1 O t h e r Persons, 1-2(3] O t h e r public Ministers, II-3, III-2[i] O t h e r public Ministers and Consuls, 111-2(2] O u r Lord, VII-2 Overt act, III-3 [1] Owner, Am.3 Paid out of the Treasury of the United States, 1-6 [1] Papers, A m . 4 Pardons, II-2[i] Participation in rebellion, Am.14-2 Particularly describing the place to be searched, Am.4 Parts of States, IV-3(i] Party convicted, I-3 [7] Pay Duties, 1-9(6] Pay the Debts, 1-8 [1]

597

S98

CONCORDANCE

TO THE

CONSTITUTION

Payment of Debts, I-IO[I] Payment of pensions, Am.14-4 Peace, I-io[3] Penalties, I-5 [ij P e n n s y l v a n i a , 1-2(3] Pensions, Am.14-4

People, Preamble, I-2[i], Am.i, Am.2, Am.4, Am.9, Am.io, Am.17-2 People of the several States, I-2[i] People of the United States, Preamble Period for which he shall have been elected, II-I[6] Person, l-2[z], I- 3 [ 3 ], I-3(6], 1-6(2], I-9U], I I - i M . III-3W, I V - i f i ] , Am.iz, Am.22-1 Person held to Service or Labour, IV-2[3] Person holding an Office of Trust or Profit under the United States, II-i [2.] Person holding any Office of Profit or Trust, I-9 [8] Person holding any Office under the United States, 1-6 [2] Persons, 1-7(2], I-9U], I l - i f e ] , A m . 4 , Am.14-1, A m . 2 0 - 4

Persons or things to be seized, Am.4 Petition the Government for a redress of grievances, Am.i Piracies, 1-8 [10] P l a c e , 1-5(4], I - 6 [ i ] , I I I - 2 [ 3 ] , A m . 1 3 - 1

Place to be searched, Am.4 Places, 1-8[17], III-2[3]

Places of chusing Senators, I-4[i] Places purchased by the Consent of the Legislature, 1-8 [17] Poll tax, Am.24-1 Ports, I-9 [6] Possession of the United States, Am.21-2 Post Offices and post Roads, 1-8 [7] Posterity, Preamble Power, I-z[$], I - 3 [ 6 ] , I-8[I], II-I[I], II-2[I], « - 2 ( 2 ] , I I - 2 [ 3 ] , III-I, I I I - 2 [ i ] , I I I - 3 [ I ] , I I I - 3 U ] , I V - 3 [ 2 ] , A m . u , Am.13-2, Am.14-5, Am.15-2, Am.16, Am.18-2, Am.19-2, Am.23-2, Am.24-2, Am.26-2

Power of Impeachment, I-2[5] Power to enforce, Am.13-2, Am.14-5, Am.15-2, Am.18-2, Am.19-2, Am.23-2, Am.24-2, Am.26-2

Power to grant Reprieves and Pardons, II-2[i] Powers, 1-8 [18] Powers and Duties, II-i[6], Am.25-3, Am.25-4[i], Am.25-4[2] Powers and duties of his office, Am.25-3 Powers not delegated, A m . i o Powers vested by this Constitution in the Government, 1-8 [18] Preference, I-9[6] Prejudice any Claims, IV-3[2] Presence of the Senate and House of Representatives, II-i [3] Present, Emolument, Office, or Title, I-9 [8] Presented to the President, 1-7(2], 1-7(3] Presentment or indictment of a Grand jury, Am.5 Preserve, protect and defend the Constitution of the United States, II-I(7] President, 1-7(2], IL-IFO], IL-ITJ], II-I[6], II-2[l], 11-2(3], II-4, A m . 1 2 , A m . 1 4 - 2 , A m . 1 4 - 3 , A m . 2 0 - 1 , Am.20-3, Am.20-4, A m . 2 2 - i , Am.23-i[2], A m . 2 4 - i , Am.25-1, Am.25-2, Am.25-3, Am.25-4(i], Am.25-4(2]

President alone, 11-2(2]

C O N C O R D A N C E

TO THE

President elect, Am.20-3 President of the Senate, I-3 [4], II-i [3], Am.12 President of the United States, I-3M, 1-3(6], Il-ity] President of the United States of America, I I - I [ I ] President pro tempore, 1-3(5], Am.25-3, Am.25-4[i], Am.25-4(2] President shall resume the powers and duties of his office, Am.25-4[2] Press, Am.i Previous condition of servitude, Am.15-1 Previously ascertained by law, Am.6 Primary or other election, Am.24-1 Prince, I-$>[8] Principal Officer in each of the executive Departments, II-2[i] Principal officers, Am.25-4(1] Principal officers of the executive department, Am.25-4(2] Private property, Am. 5 Privilege, 1-9(2] Privileged from Arrest, 1-6 [1] Privileges and Immunities of Citizens in the several States, IV-2[i] Privileges or immunities of citizens of the United States, Am.14-1 Probable cause, Am.4 Proceedings, 1-5(2], 1-5(3] Produce of all Duties and Imposts, I-io[2] Profit, II-i[2] Profit or Trust, 1-9(8] Prohibiting the free exercise thereof, Am.i Promote the general Welfare, Preamble Promote the Progress of Science and useful Arts, 1-8(8] Property, Am.5 Property belonging to the United States, IV-3(2] Proportion to the Census, 1-9(4] Propose Amendments, V Prosecuted against, Am.n Prosecutions, Am.6 Protect each of them against Invasion, IV-4 Provide and maintain a Navy, 1-8(13] Provide for calling forth the Militia, ¡-8(15] Provide for organizing, arming, and disciplining, the Militia, 1-8 [16] Provide for the Case of Removal, Death, Resignation or Inability, II-i[6] Provide for the common defence, Preamble Provide for the common Defence and general Welfare, 1-8 (1] Provide for the Punishment of counterfeiting, 1-8(6] Public Acts, IV-i Public Acts, Records, and judicial Proceedings, IV-i Public danger, Am. 5 Public debt of the United States, Am. 14-4 Public Ministers and Consuls, II-2[2] Public Money, 1-9(7] Public Safety, 1-9(2] Public trial, Am.6 Published, 1-9(7]

CONSTITUTION

599

600

C O N C O R D A N C E TO THE C O N S T I T U T I O N Punish its Members for disorderly Behaviour, 1-5(2] Punishment, 1 - 3 ( 7 ] , 1-8 [6], III-3[2] Punishment for crime, Am.13-1 Punishment ofTreason, III-3 [2] Punishments, Am. 8 Qualification to any Office or public Trust, VI-3 Qualifications, I-2[i] Qualifications of its own Members, I-5U] Qualifications requisite for electors of the most numerous branch, Am.17-1 Quartered in any house, Am.3 Questioned, I-6[i] Quorum, I - J [ I ] , Il-IFE], A m . 1 2 Race, color, or previous condition of servitude, Am.15-1 Raise and support Armies, 1-8 [12] R a t i f i c a t i o n , V, V I I - i , A m . I 8 - i , A m . 2 0 - 5

Ratified, A m . 1 8 - 3 , A m . 2 0 - 1 , A m . 2 0 - 6 , A m . 2 1 - 3 , A m . 2 2 - 2 Ratified by the Legislatures of three fourths of the several States, V Rebellion, I - 9 [2.], A m . 1 4 - 2 , A m . 1 4 - 3 , A m . 1 4 - 4 Receipts and Expenditures, 1-9(7] Receive Ambassadors, II-3 Recess, 1 - 3 ( 2 ] Recess of the Senate, 11-2(3] Recommend to their Consideration, II-3 Reconsideration, 1 - 7 ( 2 ] Redress of grievances, Am.i Regular Statement and Account, 1 - 9 ( 7 ] Regulate Commerce, 1-8(3] Regulate the Value, 1 - 8 ( 5 ] Regulation, IV-2(3] Regulation of Commerce or Revenue, 1-9(6] Regulations, 111-2(2] Religion, Am.i Religious Test, VI-3 Remainder of such term, Am.22-1 Removal from Office, 1-3(7] Removal of the President from Office, II-i[6], Am.25-1 Removed from Office, II-4 Removed to the State having Jurisdiction of the Crime, I V - 2 [ 2 ] Repassed, I-7 [3] Repealed, Am.21-1 Repel Invasions, 1-8 [15] Representation, 1 - 2 ( 4 ] , H-ife], A m . 1 4 - 2 Representation from each state having one vote, Am.12 Representation of any State in the Senate, Am.17-2 Representative, 1 - 2 ( 2 ] , 1 - 2 ( 3 ] , I-6[2.], A m . 1 4 - 3 , A m . 2 4 - 1 Representatives, 1 - 2 ( 3 ] , W W . I - 6 [ i ] , Il-ifc], V I - 3 , A m . 1 4 - 2 , A m . 2 0 - 1 , Reprieves and Pardons, II-2[i] Reprisal, 1-8 [11]

A m . 2 3 - 1 [2],

Am.

27

C O N C O R D A N C E TO THE C O N S T I T U T I O N Republican Form of Government, IV-4 Reserved to the States, Am.10 Reside, Am.14-1 Resident within the United States, Il-if?] Resignation, 1-3(2], II-i[6], Am. 25-1 Resolution, I-y[3] Respecting an establishment of religion, Am.i Resume the powers and duties of his office, Am. 25-4.12] Retained by the people, Am.9 Returns, I-5[i] Revenue, 1-7(1], I-io[6] Revision and Controul of the Congress, I-io[2] Rhode-Island and Providence Plantations, 1-2(3] Right of choice, Am. 20-4 Right of citizens of the United States, Am.19-1, Am.24-1, Am.26-1 Right of citizens of the United States to vote, Am.15-1 Right of the people peaceably to assemble, Am.i Right of the people to be secure, Am.4 Right of the people to keep and bear Arms, Am.2 Right of trial by jury, Am.7 Right to a speedy and public trial, Am. 6 Right to vote, Am.14-2 Rights, Am.9 Roads, 1-8 [7] Rules and Limitations, I-y [3] Rules and Regulations, IV-3[2] Rules concerning Captures on Land and Water, 1-8 [11] Rules of its Proceedings, 1-5(2] Rules of the common law, Am.7 Safety, 1-9(2] Sale, or transportation of intoxicating liquors, Am.18-1 Same throughout the United States, II-1I4] Science and useful Arts, 1-8 [8] Sealed, II-i [3] Searches and seizures, Am.4 Seat of Government, Am.23-i[i] Seat of the Government, I-8U7], Am.12 Seat of the Government of the United States, II-i [3] Seats, I-3 [2] Secrecy, 1-5(3] Secure in their persons, houses, papers, and effects, Am.4 Secure the Blessings of Liberty, Preamble Securities and current Coin of the United States, 1-8 [6] Security of a free State, Am. 2 Senate, I-i, I- 3 [i], I-3W, I-3W. H M , I-7W, 1-7W. W W . H-i[ 3 ], II-2W, V, Am.12, Am.17-1, Am.17-2, Am.20-4, Am.25-3, Am.25-4(1], Am.25-4(2] Senator, I-3[1], 1-3(3], 1-6(2], Am.14-3, Am.17-3, Am.24-1 Senators, I-3[1], 1-3(2], I-4W, I-6[i], Il-ifc], 11-2(2], VI-3, Am.17-1, Am.20-1, Am.23-i[2], Am. 27 September, VII-2

601

602

C O N C O R D A N C E

TO THE

CONSTITUTION

Service, 1-2(3] Service of the United States, I-8[i6] Services, I-6[i], II-i[6], III-i, A m . 27 Services in suppressing insurrection or rebellion, Am.14-4 Services of the Senators and Representatives, Am. 27 Servitude, Am.15-1 Session, I-6[i], 11-2(3], Am.25-4[2] Session of Congress, I-5 [4] Seven years, 1-2(2], Am.20-6 Seven years from the date of its submission, Am.22-2 Seven years from the date of the submission hereof, Am.18-3, Am.21-3 Several States, I-2[i], 1-2(3], II-2.[x], IV-2[i], V, VI-3, Am.14-2, Am.16, Am.18-2, Am.18-3, Am.20-6, Am.21-3, Am.22-2 Sex, Am.19-1 Ships of War, I-io[3] Sign, I-7[2] Sign and certify, A m . 1 2 Silver Coin, I-IO[I] Six years, Am.17-1 Slave, Am.14-4 Slavery, Am.13-1 Smaller Number may adjourn from day to day, I-5[1] Soldier, Am.3 Sole Power to try all impeachments, 1-3(6] South Carolina, I-2[3] Speaker, I-2[5] Speaker of the House of Representatives, Am.25-3, Am.25-4[i], Am.25-4[2] Speech, A m . i Speech or Debate in either House, 1-6 [1] Speedy and public trial, A m . 6 Standard of Weights and Measures, I-8[5] State, I-2[2], I-2[ 3 ], 1-2[4], I-3[1], I - 3 W , I- 4 [I], 1-8[17], I- 9 ( 5 ], I- 9 [6], I-IO[I], I - i o f i ] , I-io[ 3 ], II-l[2], II-I[3], III-2[2], III-2[ 3 ], IV-I, IV-2[2], IV-2[ 3 ], IV- 3 [l], I V - 3 M , IV- 4 , VI-2, VI-3, Am.2, Am.6, Am.14-1, Am.14-2, Am.14-3, Am.14-4, Am.17-1, Am.17-2, Am.19-1, Am.23-i[2], Am.26-1 State and district wherein the crime shall have been committed, Am.6 State Legislature, I-2[i], Am.14-3 State legislatures, Am.17-1 State of the Union, II-3 Statement and Account, I-9 [7] States, 1-8[16], I-8[iy], I-9W, Il-ife], III-2[i], V I I - i , VII-2, A m . i o , Am.12, Am.18-3, Am.21-3, Am.22-2 Subject for the same offence, Am.5 Subject to Indictment, 1-3(7] Subject to the jurisdiction, Am.14-1, Am.18-1 Subject to their jurisdiction, Am.13-1 Subjects, III-2[i] Subjects of any Foreign State, A m . 1 1 Such other body as Congress may by law provide, Am.25-4^], Am.25-4(2] Suffrage, V Suit in law or equity, A m . 1 1

C O N C O R D A N C E

Suits at common law, Am.7 Sundays, 1-7(3] Support the Constitution, Am.14.-3 Support this Constitution, VI-3 Suppress Insurrections, 1-8 [15] Supreme and inferior Courts, III-i Supreme Court, 1-8(9], H-2(2], III-i, III-2[2] Supreme Law of the Land, Vl-2 Take Care that the Laws be faithfully executed, II-3 Taken for public use, Am.5 Tax, I-9U], 1-9(5], Am.24-1 Taxes, ¡-2(3] Taxes, Duties, Imposts and Excises, 1-8 [1] Taxes on incomes, Am.16 Temporary Appointments, 1-3(2], Am.17-2 Ten Days, 1-7(2] Ten dollars, 1-9(1] Ten Miles square, 1-8(17] Ten Years, 1-2(3] Tender in Payment of Debts, I-IO[I] Term, Am.17-3, Am.22-1 Term of four Years, II-I[I] Term of ten Years, 1-2(3] Term of the President, Am.20-3 Term within which this Article becomes operative, Am.22-1 Terms of Senators and Representatives, Am.20-1 Terms of the President and Vice President, Am. 20-1 Terms of their successors, Am.20-1 Territory, IV-3(2], Am.18-1, Am.21-2 Testimony of two Witnesses, III—3 [x] Thirty Thousand, 1-2(3] Three Classes, 1-3(2] Three days, 1-5(4] Three fifths of all other Persons, 1-2(3] Three fourths, V Three fourths of the several States, Am.20-6, Am.22-2 Three Years, 1-2(3] Time of Adjournment, II-3 Time of chusing the Electors, II-i(4] Time of Peace, 1-9(3], Am.3 Time of war, Am.3, Am.5 Times, Places and Manner of holding Elections, I-4(i] Title, 1-9(8] Title of Nobility, I-IO[I] Training the Militia, 1-8 [16] Tranquility, Preamble Transmit sealed, Am.12 Transportation of intoxicating liquors, Am.18-1 Transportation or importation, Am.21-2

TO THE

CONSTITUTION

603

604

C O N C O R D A N C E TO THE C O N S T I T U T I O N Treason, I-6[i], II- 4 , III-3[1], 111-3(2], IV-2[i] Treasury, I-6[i], I-9[7], I-io[2] Treasury of the United States, I-6[i], 1-9(7] Treaties, III-2[i], VI-2 Treaty, I-io[i] Trial, I- 3 ( 7 ], III-2[3] Trial by jury, Am.7 Tribunals, 1-8 [9] Tried by a jury, Am.7 Troops, 1-10(3] Trust, 1-9(8], II-i[2] Try all impeachments, 1-3(6] Twenty dollars, Am.7 Twenty-one days, Am.25-4(2] Twenty-one years of age, Am.14-2 Twice put in jeopardy, Am.5 Two highest numbers on the list, Am.12 Two thirds, I-3[6], 1-5(2], l-7[z], I- 7 [ 3 ], V Two thirds of the Senators, 11-2(2] Two thirds of the States, II-i [3] Two Years, 1-8 (12] Two years of a term, Am.22-1 Two-thirds of each House, Am.14-3 Two-thirds of the states, Am.12 Two-thirds of the whole number of Senators, Am.12 Two-thirds vote, Am.25-4(2] Unable to discharge the powers and duties of his office, Am.25-3, Am.25-4(1], Am.25-4[2] Unanimous Consent of the States present, VII-2 Under such Penalties as each House may provide, 1-5(1] Uniform Laws on the subject of Bankruptcies, 1-8 [4] Uniform Rule of Naturalization, 1-8(4] Uniform throughout the United States, 1-8 (1] Union, Preamble, 1-2(3], I-8[i5], II-3, lV- 3 [i], IV-4 United States, I-i, ¡-2(2], I-2[3], I- 3 (i], I-3UL 1-3(51.1-3(6], 1-3W- I-6[i], 1-6(2], 1-7(2], I-7M, I-8[1], 1-8(2], 1-8(4], 1-8(6], 1-8[16], I-8[i7], I-8[i8], 1-9(8], Uofr], Il-ifr], II-i[3], II-i(4], II-1(5], ii-i[6], 11-1(7], n-2[i]> 11-2(2], 11-3,11-4, m-i, III-2[i], 111-3(1], iv- 3 (2], iv- 4> VI-i, VI-3, VII-2, Am.7, Am.io, Am.11, Am.12, Am.13-1, Am.14-1, Am.14-2, Am.i4-3, Am.14-4, Am.15-1, Am.17-1, Am.18-1, Am.19-1, Am.21-1, Am.21-2, Am.23-i(i], Am.24-1, Am.26-1 United States of America, Preamble, II-i[i], VII-2 Unreasonable searches and seizures, Am.4 Use of the Treasury, I-io[2] Useful arts, 1-8(8] Vacancies, 1-2(4], I-3W, 11-2(3], Am.17-2 Vacancy in the office of the Vice President, Am.25-2 Vacated, 1-3(2] Valid, Am.17-3 Valid against the United States, VI-i Valid to all Intents and Purposes, V

C O N C O R D A N C E TO THE C O N S T I T U T I O N Validity of the public debt, Am.14-4 Value in controversy, Am.7 Varying the compensation, Am.27 Vessels, I-9 [6] Vest the Appointment, 11-2(2] Vested in a President of the United States of America, II-i[i] Vice President, 1-3(4], I-3[5], II-i[i], II-i[6], II-4, Am.12, Am.14-2, Am.14-3, Am.20-1, Am.20-4, Am.23-1(2], Am.24-1, Am.25-2, Am.25-3, Am.25-4[i], Am.25-4(2] Vice President elect, Am. 20-3 Vice President of the United States, I-3 [4], Am.12 Vice President shall become President, Am.25-1 Violation of the laws, Am. 21-2 Violence, IV-4 Virginia, 1-2(3] Void, Am.14-4 Vote, I-3[i], 1-3(4], 1-7(3], Am.12, Am.15-1, Am.19-1, Am.24-1, Am.26-1 Vote of two-thirds of each House, Am.14-3 Votes, II-i[3], II-i[ 4 ] Votes of both Houses, 1-7(2] War, 1-8[11], I- 9 [ 3 ], III-3W. Am.3, Am.5 Warrants, Am.4 Weights and Measures, 1-8(5] Welfare, Preamble, I-8[i] Well regulated Militia, Am.2 Whole Number of free Persons, 1-2(3], H-ifa], II-i(3], Am.I2, Am.14-2, Am.18-1(2] Whole number of persons, Am.14-2 Witness against himself, Am.5 Witnesses, III-3(i], Am.6 Writ of Habeas Corpus, 1-9(2] Writings and Discoveries, 1-8(8] Writs of Election, 1-2(4], Am.17-2 Written declaration, Am.25-3, Am.25-4(1], Am.25-4(2] Year of our Lord, VII-2 Yeas and Nays, 1-5(3], 1-7W

605

T I M E C H A R T OF T H E J U S T I C E S OF T H E S U P R E M E C O U R T

T h e following groupings of justices show the ch

ges in membership of the Supreme Court since

1789. A new grouping is given for each year in

lich a new justice (shown in italics) joined the

Court. Chief Justices are shown in bold. William Cushing

1789-90 John Jay

James Wilson

John Rutledge

John Blair

William Cushing

James Iredell

James Wilson

William Paterson

John Blair 1796-98 Oliver

1790-91

Ellsworth

John Jay

William Cushing

John Rutledge

James Wilson

William Cushing

James Iredell

James Wilson

William Paterson

John Blair

Samuel Chase

James Iredell (a new, sixth seat) 1798-99 1791-93

Oliver Ellsworth

John Jay

William Cushing

William Cushing

James Iredell

James Wilson

William Paterson

John Blair

Samuel Chase

James Iredell

Bushrod Washington

Thomas Johnson 1799-1800 Oliver Ellsworth

1793 - 9 5 John Jay

William Cushing

William Cushing

William Paterson

James Wilson

Samuel Chase

John Blair

Bushrod Washington

James Iredell

Alfred Moore

William Paterson 1801 - 0 4 1795-96 John Rutledge (recess appointment, firmed)

John uncon-

Marshall

William Cushing William Paterson 607

608

TIME CHART OF THE J U S T I C E S OF THE SUPREME C O U R T Samuel Chase Bushrod Washington Alfred Moore 1804-06 John Marshall William Cushing William Paterson Samuel Chase Bushrod Washington William Johnson 1806 - 0 7 John Marshall William Cushing Samuel Chase Bushrod Washington William Johnson Henry Brockholst Livingston 1807-11 John Marshall William Cushing Samuel Chase Bushrod Washington William Johnson Henry Brockholst Livingston Thomas Todd (a new, seventh seat) 1811-23 John Marshall Bushrod Washington William Johnson Thomas Todd Henry Brockholst Livingston Joseph Story Gabriel Duvall 1823-26 John Marshall Bushrod Washington William Johnson Thomas Todd Joseph Story Gabriel Duvall Smith Thompson 1826-28 John Marshall Bushrod Washington

William Johnson Joseph Story Gabriel Duvall Smith Thompson Robert Trimble 1829-30 John Marshall Bushrod Washington William Johnson Joseph Story Gabriel Duvall Smith Thompson John McLean 1830-35 John Marshall William Johnson Joseph Story Gabriel Duvall Smith Thompson John McLean Henry Baldwin 1835 John Marshall Joseph Story Gabriel Duvall Smith Thompson John McLean Henry Baldwin James M. Wayne 1836-37 Roger B. Taney Joseph Story Smith Thompson John McLean Henry Baldwin James M. Wayne Philip P. Barbour 1837-41 Roger B. Taney Joseph Story Smith Thompson John McLean Henry Baldwin James M. Wayne Philip P. Barbour

TIME C H A R T OF T H E JUSTICES OF T H E SUPREME C O U R T John Catron (a new, eighth seat) John McKinley (a new, ninth seat) 1841-45

Roger B. Taney Joseph Story Smith Thompson John McLean Henry Baldwin James M. Wayne John Catron John McKinley Peter V. Daniel 1845-46

Roger B. Taney John McLean Henry Baldwin James M. Wayne John Catron John McKinley Peter V. Daniel Samuel Nelson Levi Woodbury 1846-51

Roger B. Taney John McLean James M. Wayne John Catron John McKinley Peter V. Daniel Samuel Nelson Levi Woodbury Robert C. Grier 1851-53

Roger B. Taney John McLean James M. Wayne John Catron John McKinley Peter V. Daniel Samuel Nelson Robert C. Grier Benjamin R. Curtis 1853-57 Roger B. Taney John McLean

James M. Wayne John Catron Peter V. Daniel Samuel Nelson Robert C. Grier Benjamin R. Curtis John A. Campbell 1858-62

Roger B. Taney John McClean James M. Wayne John Catron Peter V. Daniel Samuel Nelson Robert C. Grier John A. Campbell Nathan A. Clifford 1862-63

Roger B. Taney James M. Wayne John Catron Samuel Nelson Robert C. Grier Nathan A. Clifford Noah H. Swayne Samuel F Miller David Davis 1863-64

Roger B. Taney James M. Wayne John Catron Samuel Nelson Robert C. Grier Nathan A. Clifford Noah H. Swayne Samuel F. Miller David Davis Stephen J, Field (a new, tenth seat) 1864-65

Salmon P. Chase James M. Wayne John Catron Samuel Nelson Robert C. Grier Nathan A. Clifford Noah H. Swayne

609

610

TIME C H A R T OF T H E J U S T I C E S O F T H E SUPREME C O U R T Samuel F. Miller David Davis Stephen J. Field

Joseph P. Bradley Ward Hunt

1874-77 1865-67 Morrison R. Waite Salmon P. Chase Nathan A. Clifford James M. Wayne Noah H. Swayne Samuel Nelson Samuel F. Miller Robert C. Grier David Davis Nathan A. Clifford Stephen J. Field Noah H. Sway ne William Strong Samuel F. Miller Joseph P. Bradley David Davis Ward Hunt Stephen J. Field (Note: Catron died in 186$ and Congress abol- 1877-80 ished his seat, reducing the number of justices to Morrison R. Waite nine) Nathan A. Clifford Noah H. Swayne Samuel F. Miller Stephen J. Field William Strong Joseph P. Bradley Ward Hunt John Marshall Harlan

1867-70 Salmon P. Chase Samuel Nelson Robert C. Grier Nathan A. Clifford Noah H. Swayne Samuel F. Miller David Davis 1880-81 Stephen J. Field Morrison R. Waite (Note: Wayne died in 186j and Congress abolNathan A. Clifford ished his seat, reducing the number of justices to Noah H. Swayne eight.) Samuel F. Miller Stephen J. Field Joseph P. Bradley 1870-72 Ward Hunt Salmon P. Chase John Marshall Harlan Samuel Nelson William B. Woods Nathan A. Clifford Noah H. Swayne 1881-82 Samuel F. Miller David Davis Morrison R. Waite Stephen J. Field Samuel F. Miller Stephen J. Field William Strong Joseph P. Bradley Joseph P. Bradley (a new, ninth seat) Ward Hunt John Marshall Harlan 1872-74 William B. Woods Salmon P. Chase Stanley Matthews Nathan A. Clifford Horace Gray Noah H. Swayne Samuel F. Miller 1882-88 David Davis Morrison R. Waite Stephen J. Field Samuel F. Miller William Strong

T I M E C H A R T OF T H E J U S T I C E S O F T H E S U P R E M E C O U R T Stephen J. Field Joseph P. Bradley John Marshall Harlan William B. Woods Stanley Matthews Horace Gray Samuel Blatchford 1888-89

Melville W. Fuller Samuel F. Miller Stephen J. Field Joseph P. Bradley John Marshall Harlan Stanley Matthews Horace Gray Samuel Blatchford Lucius Q.C. Lamar 1889-90 Melville W. Fuller Samuel F. Miller Stephen J. Field Joseph P. Bradley John Marshall Harlan Horace Gray Samuel Blatchford Lucius Q.C. Lamar David J. Brewer 1890-92 Melville W. Fuller Stephen J. Field Joseph P. Bradley John Marshall Harlan Horace Gray Samuel Blatchford Lucius Q.C. Lamar David J. Brewer Henry B. Brown 1892-93 Melville W. Fuller Stephen J. Field John Marshall Harlan Horace Gray Samuel Blatchford Lucius Q.C. Lamar David J. Brewer

Henry B. Brown George Shiras 1893-94 Melville W. Fuller Stephen J. Field John Marshall Harlan Horace Gray Samuel Blatchford David J. Brewer Henry B. Brown George Shiras Howell E. Jackson 1894-95 Melville W. Fuller Stephen J. Field John Marshall Harlan Horace Gray David J. Brewer Henry B. Brown George Shiras Howell E. Jackson Edward D. White 1895-98 Melville W. Fuller Stephen J. Field John Marshall Harlan Horace Gray David J. Brewer Henry B. Brown George Shiras Edward D. White Rufus W. Peckham 1898-1902 Melville W. Fuller John Marshall Harlan Horace Gray David J. Brewer Henry B. Brown George Shiras Edward D. White Rufus W. Peckham Joseph McKenna 1902-03 Melville W. Fuller John Marshall Harlan

611

612

T I M E C H A R T OF T H E J U S T I C E S OF T H E S U P R E M E C O U R T David J. Brewer Henry B. Brown George Shiras Edward D. White Rufus W. Peckham Joseph McKenna Oliver Wendell Holmes 1903-06 Melville W. Fuller John Marshall Harlan David J. Brewer Henry B. Brown Edward D. White Rufus W. Peckham Joseph McKenna Oliver Wendell Holmes William R. Day 1906-09 Melville W. Fuller John Marshall Harlan David J. Brewer Edward D. White Rufus W. Peckham Joseph McKenna Oliver Wendell Holmes William R. Day William H. Moody 1909-10 Melville W. Fuller John Marshall Harlan David J. Brewer Edward D. White Joseph McKenna Oliver Wendell Holmes William R. Day William H. Moody Horace H. Lurton 1910-11 Edward D. White (elevatedfromassociate justiceship) John Marshall Harlan Joseph McKenna Oliver Wendell Holmes William R. Day Horace H. Lurton Charles Evans Hughes

Willis Van Devanter Joseph R Lamar 1912-14 Edward D. White Joseph McKenna Oliver Wendell Holmes William R. Day Horace H. Lurton Charles Evans Hughes Willis Van Devanter Joseph R. Lamar Mahlon Pitney 1914-16 Edward D. White Joseph McKenna Oliver Wendell Holmes William R. Day Charles Evans Hughes Willis Van Devanter Joseph R. Lamar Mahlon Pitney James C. McReynolds 1916-21 Edward D. White Joseph McKenna Oliver Wendell Holmes William R. Day Willis Van Devanter Mahlon Pitney James C. McReynolds Louis D. Brandeis John J. Clarke 1921-22 William Howard Taft Joseph McKenna Oliver Wendell Holmes William R. Day Willis Van DeVanter Mahlon Pitney James C. McReynolds Louis D. Brandeis John J. Clarke 1922-23 William Howard Taft Joseph McKenna

TIME C H A R T OF THE JUSTICES OF THE SUPREME C O U R T Oliver Wendell Holmes Willis Van DeVanter Mahlon Pitney James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler 1923-25 William Howard Taft Joseph McKenna Oliver Wendell Holmes Willis Van DeVanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Edward T. Sanford 1925-30 William Howard Taft Oliver Wendell Holmes Willis Van DeVanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Edward T. Sanford Harlan Fiske Stone 1930-32 Charles Evans Hughes Oliver Wendell Holmes Willis Van DeVanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Harlan Fiske Stone Owen J. Roberts 1932-37 Charles Evans Hughes Willis Van DeVanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Harlan Fiske Stone

Owen J. Roberts Benjamin N. Cardozo 1937-38 Charles Evans Hughes James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Harlan Fiske Stone Owen J. Roberts Benjamin N. Cardozo Hugo L. Black 1938-39 Charles Evans Hughes James C. McReynolds Louis D. Brandeis Pierce Butler Harlan Fiske Stone Owen J. Roberts Benjamin N. Cardozo Hugo L. Black Stanley F. Reed 1939-40 Charles Evans Hughes James C. McReynolds Pierce Butler Harlan Fiske Stone Owen J. Roberts Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas 1940-41 Charles Evans Hughes James C. McReynolds Harlan Fiske Stone Owen J. Roberts Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Frank Murphy 1941-43 Harlan Fiske Stone (elevatedfrom associate justiceship)

613

614

TIME C H A R T OF THE J U S T I C E S OF THE SUPREME C O U R T Owen J. Roberts Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Frank Murphy James F. Byrnes Robert H. Jackson 1943-45 Harlan Fiske Stone Owen J. Roberts Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Frank Murphy Robert H. Jackson Wiley B. Rutledge 1945-46 Harlan Fiske Stone Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Frank Murphy Robert H. Jackson Wiley B. Rutledge Harold H. Burton 1946-49 Fred M. Vinson Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Frank Murphy Robert H. Jackson Wiley B. Rutledge Harold H. Burton 1949-53 Fred M. Vinson Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Robert H. Jackson Harold H. Burton

Tom C. Clark Sherman Minton 1953-55

Earl Warren Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Robert H. Jackson Harold H. Burton Tom C. Clark Sherman Minton

1955-56 Earl Warren Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Harold H. Burton Tom C. Clark Sherman Minton John Marshall Harlan 1956-57 Earl Warren Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Harold H. Burton Tom C. Clark John Marshall Harlan William J. Brennan 1957-58 Earl Warren Hugo L. Black Felix Frankfurter William O. Douglas Harold H. Burton Tom C. Clark John Marshall Harlan William J. Brennan Charles E. Whittaker 1958-62 Earl Warren Hugo L. Black

TIME CHART OF THE JUSTICES OF THE SUPREME COURT Felix Frankfurter William O. Douglas Tom C. Clark John Marshall Harlan William J. Brennan Charles E. Whittaker Potter Stewart 1962-65 Earl Warren Hugo L. Black William O. Douglas Tom C. Clark John Marshall Harlan William J. Brennan Potter Stewart Byron R. White Arthur Goldberg 1961-67 Earl Warren Hugo L. Black William O. Douglas Tom C. Clark John Marshall Harlan William J. Brennan Potter Stewart Byron R. White Abe Fortas 196J-69 Earl Warren Hugo L. Black William O. Douglas John Marshall Harlan William J. Brennan Potter Stewart Byron R. White Abe Fortas Thurgood Marshall 1969-70 Warren E. Burger Hugo L. Black William O. Douglas John Marshall Harlan William J. Brennan Potter Stewart Byron R. White

Abe Fortas Thurgood Marshall 1970-71 Warren E. Burger Hugo L. Black William O. Douglas John Marshall Harlan William J. Brennan Potter Stewart Byron R. White Thurgood Marshall Harry A. Blackmun 197^-75 Warren E. Burger William O. Douglas William J. Brennan Potter Stewart Byron R. White Thurgood Marshall Harry A. Blackmun Lewis F. Powell, Jr. William H. Rehnquist 1975-81 Warren E. Burger William J. Brennan Potter Stewart Byron R. White Thurgood Marshall Harry A. Blackmun Lewis F. Powell, Jr. William H. Rehnquist John Paul Stevens 1981-86 Warren E. Burger William J. Brennan Byron R. White Thurgood Marshall Harry A. Blackmun Lewis F. Powell, Jr. William H. Rehnquist John Paul Stevens Sandra Day O'Connor 1986-87 William H. Rehnquist (elevated from ciate justiceship)

asso-

615

616

TIME C H A R T OF THE JUSTICES OF THE SUPREME C O U R T William J. Brennan Byron R. White Thurgood Marshall Harry A. Blackmun Lewis F. Powell, Jr. John Paul Stevens Sandra Day O'Connor Antonin Scalia 1988-90 William H. Rehnquist William J. Brennan Byron R. White Thurgood Marshall Harry A. Blackmun John Paul Stevens Sandra Day O'Connor Antonin Scalia Anthony M. Kennedy 1990-91 William H. Rehnquist Byron R. White Thurgood Marshall Harry A. Blackmun John Paul Stevens Sandra Day O'Connor Antonin Scalia Anthony M. Kennedy David H. Souter

1991-93 William H. Rehnquist Byron R. White Harry A. Blackmun John Paul Stevens Sandra Day O'Connor Antonin Scalia Anthony M. Kennedy David H. Souter Clarence Thomas 1993-94 William H. Rehnquist Harry A. Blackmun John Paul Stevens Sandra Day O'Connor Antonin Scalia Anthony M. Kennedy David H. Souter Clarence Thomas Ruth Bader Ginsburg 1994William H. Rehnquist John Paul Stevens Sandra Day O'Connor Antonin Scalia Anthony M. Kennedy David H. Souter Clarence Thomas Ruth Bader Ginsburg Stephen G. Breyer

B I O G R A P H I C A L N O T E S ON T H E J U S T I C E S OF T H E S U P R E M E C O U R T

Dates following each name are years served on the Supreme Court. Chief Justices are denoted immediately after dates of service by "CJ." Colleges and law schools attended, as applicable, and family status follow the dates of birth and death. Primary occupations or businesses and last official position before joining the Supreme Court then follow. After the confirmation vote is the date of confirmation. If a justice retired or resigned it is noted, but no notation is given if a justice died in office. Following the date of confirmation is the name of the succeeding justice. Baldwin, Henry 1830-44 Born January 14, 1780, New Haven, CT; died April 21, 1844. Yale College; studied law privately. Married twice, one child. Lawyer; newspaper publisher; businessman. U.S. representative, Connecticut. Nominated by President Jackson; confirmed 41-2, January 6, 1830; replaced by Robert C. Grier. Barbour, Philip Pendleton 1836-41 Born May 25, 1783, Orange County, VA; died February 25, 1841. Attended one session at College of William and Mary; self-taught in law. Married, seven children. Lawyer. Judge, U.S. District Court of Eastern Virginia. Nominated by President Jackson; confirmed 30-11, March 15, 1836; replaced by Peter Vivian Daniel. Black, Hugo Lafayette 1937-71 Born February 27,1886, Harlan, AL; died September 25, 1971. Birmingham Medical College; University of Alabama Law School. Married twice, three children. Lawyer. U.S. senator, Democrat—Alabama. Nominated by President Franklin D. Roosevelt; confirmed 63-16, August 17, 1937; retired September 17, 1971; replaced by Lewis F. Powell, Jr. Blackmun, Harry Andrew 1970-94 Born November 12,1908, Nashville, IL. Harvard College; Harvard Law School. Married, three children. Lawyer; law professor. Judge, U.S. Court of Appeals for the Eighth Circuit. Nominated by President Nixon; confirmed 94-0, May 12, 1970; retired June 30,1994; replaced by Stephen G. Breyer. Blair, John, Jr. 1789-96 Born 1732, Williamsburg, VA; died August 31, 1800. 617

618

B I O G R A P H I C A L N O T E S O N THE J U S T I C E S College of William and Mary; Middle Temple, London. Married. Lawyer. Judge, Virginia Supreme Court of Appeals. Nominated by President Washington; confirmed by voice vote, September 26, 1789; resigned January 27, 1796; replaced by Samuel Chase. Blatchford, Samuel 1882-93 Born March 9,1820, New York, NY; died July 7,1893. Columbia College; read law privately. Married. Lawyer. Republican. Judge, Second Circuit of New York. Nominated by President Arthur; confirmed by voice vote, March 27,1882; replaced by Edward D. White. Bradley, Joseph P. 1870-92 Born March 14,1813, Berne, NY; died January 22,1892. Rutgers University. Married, seven children. Lawyer. Republican. Nominated by President Grant; confirmed 46-9, March 21,1870; replaced by George Shiras, Jr. Braudels, Louis Dembitz 1916-39 Born November 13, 1856, Louisville, KY; died October 5, 1941. Harvard Law School. Married, two children. Lawyer. Nominated by President Wilson; confirmed 47—22, June 1,1916; retired February 13,1939; replaced by William O. Douglas. Brennan, William Joseph, Jr.

1956-90

Born April 25, 1906, Newark, NJ. Died July 24,1997. University of Pennsylvania; Harvard Law School. Married twice, three children. Lawyer. Democrat. Associate justice, New Jersey Supreme Court. Recess appointment, President Eisenhower, October 16, 1956; nominated by President Eisenhower; confirmed by voice vote, March 19, 1957; retired July 20,1990; replaced by David H. Souter. Brewer, David Josiah 1889-1910 Born June 20,1837, Smyrna, Asia Minor; died March 28, 1910. Wesleyan College; Yale University; Albany Law School. Married twice. Lawyer. Judge, Federal Circuit Court for the Eighth Circuit. Nominated by President Harrison; confirmed 53-11, December 18,1889; replaced by Charles Evans Hughes. Breyer, Stephen G. 1994Born August 15, 1938, San Francisco, CA. Stanford; Oxford University; Harvard Law School. Married, three children. Professor, Harvard Law School. Judge, U.S. Court of Appeals for the First Circuit. Nominated by President Clinton; confirmed 87-9, July 29,1994. Brown, Henry Billings 1890-1906 Born March 2, 1836, South Lee, MA; died September 4, 1913. Yale College; briefly at Yale and Harvard law schools. Married twice.

B I O G R A P H I C A L N O T E S O N THE J U S T I C E S Lawyer. Republican. Judge, U.S. District Court of the Eastern District of Michigan. Nominated by President Harrison; confirmed by voice vote, December 29, 1890; retired May 28, 1906; replaced by William H. Moody. Burger, Warren Earl 1969-86 CJ Born September 17, 1907, St. Paul, MN; died June 25,1995. University of Minnesota; St. Paul College of Law (Mitchell College). Married, two children. Lawyer; law professor. Republican. Judge, U.S. Court of Appeals for the District of Columbia Circuit. Nominated chief justice by President Nixon to replace Chief Justice Earl Warren; confirmed 74-3, June 9, 1969; retired September 26, 1986; replaced by William H. Rehnquist. Burton, Harold Hitz 1945-58 Born June 22, 1888, Jamaica Plain, MA; died October 28, 1964. Bowdoin College; Harvard Law School. Married, four children. Lawyer. U.S. senator, Republican—Ohio. Nominated by President Truman; confirmed by voice vote, September 19, 1945; retired October 13, 1958; replaced by Potter Stewart. Butler, Pierce 1922-39 Born March 17,1866, Northfield, MN; died November 16, 1939. Carleton College. Married, eight children. Lawyer. County attorney, Ramsey County, MN. Nominated by President Harding; confirmed 61-8, December 21,1922; replaced by Frank Murphy. Byrnes, James Francis 1941-41 Born May 2,1879, Charleston, SC; died April 9,1972. St. Patrick's Parochial School; studied law privately. Married. U.S. Senator, Democrat—South Carolina. Nominated by President Franklin D. Roosevelt; confirmed by voice vote, June 12, 1941; resigned October 3, 1942; replaced by Wiley B. Rutledge. Campbell, John Archibald 1853-61 Born June 24,1811, Washington, GA; died March 12,1889. Franklin College (University of Georgia); U.S. Military Academy at West Point. Married, five children. Lawyer. Alabama state representative, sessions 1837, 1843. Nominated by President Pierce; confirmed by voice vote, March 25, 1853; resigned April 30, 1861; replaced by David Davis. Cardozo, Benjamin Nathan 1932-38 Born May 24,1870, New York, NY; died July 9,1938. Columbia College; Columbia Law School (no degree). Unmarried. Lawyer. Chief judge, New York State Court of Appeals. Nominated by President Hoover; confirmed by voice vote, February 24, 1932; replaced by Felix Frankfurter. Catron, John 1837-65 Born c. 1786, PA; died May 30, 1865.

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B I O G R A P H I C A L N O T E S O N THE J U S T I C E S Self-educated. Married. Businessman, lawyer. First chief justice of Tennessee Supreme Court of Errors and Appeals. Nominated by President Jackson to fill a newly created seat (later abolished by Congress); con firmed 28-15. Chase, Salmon Portland 1864-73 CJ Born January 13,1808, Cornish, NH; died May 7,1873. Dartmouth College. Married three times, six children. Lawyer. Republican. U.S. secretary of the treasury. Nominated chief justice by President Lincoln; confirmed by voice vote, December 6, 1864; replaced by Morrison R. Waite. Chase, Samuel 1796-1811 Born April 17,1741, Somerset County, MD; died June 19,1811. Tutored at home; studied law privately. Married twice, four children. Businessman; lawyer. Federalist. Chief judge, General Court of Maryland. Nominated by President Washington; confirmed by voice vote, January 27, 1796; replaced by Gabriel Duvall. Clark, Tom Campbell 1949-67 Born September 23, 1899, Dallas, TX; died June 13, 1977. University of Texas. Married, three children. Lawyer. Democrat. U.S. attorney general. Nominated by President Truman; confirmed 73-8, August 18, 1949; retired June 12, 1967; re placed by Thurgood Marshall. Clarke, John Hessin 1916-22 Born September 18,1857, Lisbon, OH; died March 22,1945. Western Reserve University. Unmarried. Lawyer. Judge, U.S. District Court for Northern District of Ohio. Nominated by President Wilson; confirmed by voice vote, July 24, 1916; resigned September 18, 1922; replaced by George Sutherland. Clifford, Nathan 1858-81 Born August 18,1803, Rumney, NH; died July 25,1881. Studied law privately. Married, six children. Lawyer. Democrat. Minister to Mexico. Nominated by President Buchanan; confirmed 26-23, January 12,1858; replaced by Horace Gray. Curtis, Benjamin Robbins

1851-57

Born November 4, 1809, Watertown, MA; died September 15, 1874. Harvard College; Harvard Law School. Married three times, four children. Lawyer. Whig. Massachusetts state representative. Nominated by President Fillmore; confirmed by voice vote, December 29, 1851; resigned September 30, 1857; replaced by Nathan Clifford. Cushing, William 1789-1810 Born March 1, 1732, Scituate, MA; died September 13, 1810. Harvard College; studied law privately. Married.

B I O G R A P H I C A L NOTES ON THE JUSTICES Lawyer. Delegate to electoral college. Nominated by President Washington; confirmed by voice vote, September 26, 1789; replaced by Joseph Story. Daniel, Peter Vivian 1841-60 Born April 24,1784, Stafford County, VA; died May 31, i860. College of New Jersey (Princeton University). Studied law privately. Married twice, two children. Lawyer. Democrat. Judge, U.S. District Court of Eastern Virginia. Nominated by President Van Buren; confirmed 22-5, March 2,1841; replaced by Samuel F. Miller. Davis, David

1861-77

Born March 9,1815, Cecil County, MD; died June 26,1886. Kenyon College; Yale Law School. Married twice, two children. Lawyer. Labor Reform. Judge, Illinois State Circuit. Nominated by President Lincoln; confirmed by voice vote, December 8,1862; resigned March 4, 1877; replaced by John Marshall Harlan. Day, William Rufus 1903-12 Born April 17,1849, Ravenna, OH; died July 9,1923. University of Michigan; University of Michigan Law School. Married, four children. Lawyer. Republican. Judge, U.S. Court of Appeals for the Sixth Circuit. Nominated by President Theodore Roosevelt; confirmed by voice vote, February 23,1903; resigned November 13, 1922; replaced by Pierce Butler. Douglas, 'William Orville 1939-75 Born October 16,1898, Maine, MN; died January 19,1980. Whitman College; Columbia Law School. Married four times, two children. Lawyer; law professor. Chairman, Securities and Exchange Commission. Nominated by President Franklin D. Roosevelt; confirmed 62—4, April 4, 1939; retired November 12,1975; replaced by John Paul Stevens. Duvall, Gabriel 1811-3$ Born December 6,1752, Prince Georges County, MD; died March 6,1844. Studied law privately. Married twice, one child. First comptroller of the U.S. Treasury. Nominated by President Madison; confirmed by voice vote, November 18, 1811; resigned January 14, 1835; replaced by Philip Barbour. Ellsworth, Oliver 1796-1800 CJ Born April 29, 1745, Windsor, CT; died November 26, 1807. College of New Jersey (Princeton University). Married, seven children. Lawyer; farmer. Federalist. U.S. senator, Connecticut. Nominated chief justice by President Washington; confirmed 21-1, March 4, 1796; resigned September 30, 1800; replaced by John Marshall. Field, Stephen Johnson 1863-97 Born November 4, 1816, Haddam, CT; died April 9, 1899. Williams College; studied law privately. Married.

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B I O G R A P H I C A L N O T E S O N THE J U S T I C E S Lawyer. Justice, California Supreme Court. Nominated by President Lincoln, confirmed by voice vote, March 10, 1863; retired December 1, 1897; replaced by Joseph McKenna. Fortas, Abe 1965-69 Born June 19, 1910, Memphis, T N ; died April 5,1982. Southwestern College; Yale Law School. Married. Lawyer; law professor. U.S. undersecretary of the interior. Married. Nominated by President Lyndon B. Johnson; confirmed by voice vote, August n, 1965; resigned May 14, 1969; replaced by Harry A. Blackmun. Frankfurter, Felix 1939—62 Born November 15,1882, Vienna, Austria; died February 22,1965. College of the City of New York; Harvard Law School. Married. Lawyer; law professor. Chairman, War Labor Policies Board. Nominated by President Franklin D. Roosevelt; confirmed by voice vote, January 17,1939; retired August 28, 1962; replaced by Arthur Goldberg. Fuller, Melville Weston 1888-1910 CJ Born February u, 1833, Augusta, ME; died July 4,1910. Bowdoin College; Harvard Law School. Married twice, eight children. Lawyer. Democrat. Illinois state representative. Nominated chief justice by President Cleveland; confirmed 41—20, July 20, 1888; replaced as chief justice by Edward D. White. Ginsburg, Ruth Bader 1993Born March 15, 1933, Brooklyn, NY. Cornell; Columbia Law School. Married, two children. Professor, Columbia Law School. Judge, U.S. Court of Appeals for the District of Columbia Circuit. Nominated by President Clinton; confirmed 96-3, August 3, 1993. Goldberg, Arthur Joseph 1962.-65 Born August 8, 1908, Chicago, IL; died January 19,1990. Northwestern University. Married, two children. Lawyer. U.S. secretary of labor. Nominated by President Kennedy; confirmed by voice vote, September 25,1962; resigned July 25, 1965; replaced by Abe Fortas. Gray, Horace 1881—1902 Born March 24,1828, Boston, MA; died September 15,1902. Harvard College; Harvard Law School. Married. Lawyer. Free Soil Party. Chief justice, Massachusetts Supreme Judicial Court. Nominated by President Arthur; confirmed 51-5, December 20, 1881; replaced by Oliver Wendell Holmes, Jr. Grier, Robert Cooper 1846-70 Born March 5, 1794, Cumberland County, PA; died September 25, 1870. Dickinson College. Married. Teacher; lawyer. Democrat. President judge, District Court of Allegheny County, PA.

BIOGRAPHICAL

NOTES O N THE JUSTICES

Nominated by President Polk; confirmed by voice vote, August 4, 1846; retired January 31, 1870; replaced by William Strong. Harlan, John Marshall

1877-1911

Born June i, 1833, Boyle County, KY; died October 14, 1911. Centre College; Transylvania University. Married, six children. Lawyer. Republican. Member, Louisiana Reconstruction Commission. Nominated by President Hayes; confirmed by voice vote, November 29,1877; replaced by Mahlon Pitney. Harlan, John Marshall

1955—71

Born May 20, 1899, Chicago, IL; died December 29, 1971. Princeton University; Rhodes scholar, Balliol College, Oxford University; New York Law School. Married, one child. Lawyer. Republican. Judge, U.S. Court of Appeals for the Second Circuit. Nominated by President Eisenhower; confirmed 71—11, March 16,1955; retired September 23,1971; replaced by William H. Rehnquist. Holmes, Oliver Wendell, Jr.

1901-31

Born March 8, 1841, Boston, MA; died March 6, 1935. Harvard College. Married. Lawyer; law professor. Republican. Chief justice, Massachusetts Supreme Judicial Court. Nominated by President Theodore Roosevelt; confirmed by voice vote, December 4,1902; retired January 12,1932; replaced by Benjamin N . Cardozo. Hughes, Charles Evans

1910-16,1930-41

CJ

Born April 11,1862, Glens Falls, NY; died August 27, 1948. Colgate University; Brown University; Columbia Law School. Married, three children. Lawyer; law professor. Governor of New York. Nominated by President Taft; confirmed by voice vote, May 2, 1910; resigned June 10, 1916; replaced by John H. Clarke; nominated chief justice by President Hoover; confirmed 52—26, February 13, 1930; retired July 1, 1941; replaced by Harlan F. Stone. Hunt, Ward

1873-81

Bom June 14, 1810, Utica, NY; died March 24, 1886. Union College; studied law privately. Married twice, two children. Lawyer. Republican. New York State commissioner of appeals. Nominated by President Grant; confirmed by voice vote, December 11, 1872; retired January 27, 1882; replaced by Samuel Blatchford. Iredell, James

1790-99

Born October 5, 1751, Lewes, England; died October 20, 1799. Schooled in England; read law privately. Married, three children. Lawyer. Member, North Carolina convention to ratify U.S. Constitution. Nominated by President Washington; confirmed by voice vote, February 10, 1790; replaced by Alfred Moore. Jackson, Howell Edmunds 1893-95 Born April 8, 1832, Paris, T N ; died August 8, 1895.

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B I O G R A P H I C A L NOTES O N THE JUSTICES West Tennessee College; University of Virginia; Cumberland University. Married twice, seven children. Lawyer. Whig. Judge, Federal Circuit Court for the Sixth Circuit. Nominated by President Harrison; confirmed by voice vote, February 18,1893; replaced by Rufus W. Peckham. Jackson, Robert Houghwout 1941—54 Born February 13, 1892, Spring Creek, PA; died October 9, 1954. Albany Law School; Chautauqua Institution. Married, two children. Lawyer. Democrat. U.S. attorney general. Nominated by President Franklin D. Roosevelt; confirmed by voice vote, July 7,1941; replaced by John Marshall Harlan. Jay, John 1789-95 CJ Born December 12,1745, New York, NY; died May 17,1829. King's College (Columbia University). Married, seven children. Lawyer. U.S. secretary of state. Nominated chief justice by President Washington; confirmed by voice vote, September 26,1789; resigned June 29, 1795; replaced by Oliver Ellsworth. Johnson, Thomas 1791-93 Born November 4, 1732, Calvert County, MD; died October 26,1819. Schooled at home; studied law privately. Married, eight children. Lawyer, businessman. Chief judge, General Court of Maryland. Nominated by President Washington; confirmed by voice vote, November 7, 1791; resigned February 1,1793; replaced by William Paterson. Johnson, William 1804-34 Born December 17,1771, Charleston, SC; died August 4,1834. College of New Jersey (Princeton University); studied law privately. Married, ten children. Lawyer. Republican. Judge, New Jersey Court of Common Pleas. Nominated by President Jefferson; confirmed by voice vote, March 24, 1804; replaced by James M. Wayne. Kennedy, Anthony McLeod 1988Born July 23, 1936, Sacramento, CA. Stanford University; London School of Economics; Harvard Law School. Married, three children. Lawyer, law professor. Judge, U.S. Court of Appeals for the Ninth Circuit. Nominated by President Reagan; confirmed 97-0, February 3,1988. Lamar, Joseph Rucker 1910-16 Born October 14, 1857, Elbert County, GA; died January 2, 1916. University of Georgia; Bethany College; Washington and Lee University. Married, three children. Lawyer. Democrat. Justice, Georgia Supreme Court. Nominated by President Taft; confirmed by voice vote, December 15,1910; replaced by Louis D. Brandeis. Lamar, Lucius Quintus Cincinnatus 1888-93 Born September 17, 1825, Eatonton, GA; died January 23,1893. Emory College. Married twice, four children. Lawyer; professor of metaphysics. Democrat. U.S. secretary of the interior.

B I O G R A P H I C A L NOTES O N THE JUSTICES Nominated by President Cleveland; confirmed 32-28, January 16, 1888; replaced by Howell Edmunds Jackson. Livingston, Henry Brockholst 1806-23 Born November 25, 1757, New York, NY; died March 18, 1823. College of New Jersey (Princeton University); studied law privately. Married three times, eleven children. Lawyer. Judge, New York State Supreme Court. Nominated by President Jefferson; confirmed by voice vote, December 17,1806; replaced by Smith Thompson. Lurton, Horace Harmon 1909-14 Born February 26,1844, Newport, KY; died July 12,1914. University of Chicago; Cumberland University Law School. Married, four children. Lawyer; banker; law professor; dean. Democrat. Judge, U.S. Court of Appeals for the Sixth Circuit. Nominated by President Tafit; confirmed by voice vote, December 20,1909; replaced by James C. McReynolds. Marshall, John 1801-3$ CJ Born September 24,1755, Germantown, VA; died July 6, 1835. Home educated; self-taught in law. Married, ten children. Lawyer. U.S. secretary of state. Nominated chief justice by President John Adams; confirmed by voice vote, January 27, 1801; replaced by Roger B. Taney. Marshall, Thurgood 1967—91 Born July 2,1908, Baltimore, M D ; died January 24, 1993. Lincoln University; Howard University Law School. Married twice, two children. Lawyer. U.S. solicitor general. Nominated by President Lyndon B. Johnson; confirmed 69-11, August 30, 1967; replaced by Clarence Thomas. Matthews, Stanley 1881-89 Born July 21,1824, Cincinnati, OH; died March 22,1889. Kenyon College. Married twice, eight children. Lawyer. U.S. senator, Republican—Ohio. Nominated by President Hayes (no action taken by Senate); renominated by President Garfield; confirmed 24-23, May 12, 1881; replaced by David J. Brewer. McKenna, Joseph 1898-19x5 Born August 10,1843, Philadelphia, PA; died November 21,1926. Benicia Collegiate Institute. Married, three children. Lawyer. Republican. U.S. attorney general. Nominated by President McKinley; confirmed by voice vote, January 21, 1898; retired January 5, 1925; replaced by Harlan F. Stone. McKinley, John 1837-51 Born May 1, 1780, Culpeper County, VA; died July 19, 1852. Self-taught in law. Married twice.

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B I O G R A P H I C A L N O T E S O N THE J U S T I C E S Lawyer. U.S. representative, Democrat—Alabama. Nominated by President Van Buren; confirmed by voice vote, September 25, 1837; replaced by John A. Campbell. McLean, John 1819-61 Born March 11,1785, Morris County, NJ; died April 4,1861. Privately tutored; read law privately. Married twice, eight children. Lawyer. Republican. U.S. postmaster general. Nominated by President Jackson; confirmed by voice vote, January 7,1829; replaced by Noah H. Swayne. McReynoIds, James Clark 1914-41 Born February 3, 1862, Elkton, KY; died August 24, 1946. Vanderbilt University; University of Virginia Law School. Unmarried. Lawyer; law professor. Democrat. U.S. attorney general. Nominated by President Wilson; confirmed 44-6, August 29, 1914; retired January 31, 1941; replaced by Robert H. Jackson. Miller, Samuel Freeman 1862-90 Born April 5,1816, Richmond, KY; died October 13, 1890. Transylvania University; studied law privately. Married twice, five children. Medical doctor; lawyer. Republican. Justice of the peace and member of court, Knox County, KY. Nominated by President Lincoln; confirmed by voice vote, July 16,1862; replaced by Henry B. Brown. Minton, Sherman 1949-56 Born October 20, 1890, Georgetown, IN; died April 9, 1965. Indiana University; Yale Law School. Married, three children. Democrat. Judge, U.S. Court of Appeals for the Seventh Circuit. Nominated by President Truman; confirmed 48-15, October 4,1949; retired October 15,1956; replaced by William J. Brennan, Jr. Moody, William Henry 1906-10 Born December 23, 1853, Newbury, MA; died July 2, 1917. Harvard College; Harvard Law School. Unmarried. Lawyer. Republican. U.S. attorney general. Nominated by President Theodore Roosevelt; confirmed by voice vote, December 12,1906; retired November 20,1910; replaced by Joseph R. Lamar. Moore, Alfred 1799-1804 Born May 21, 1755, New Hanover County, N C ; died October 15, 1810. Studied law privately. Married. Federalist. Judge, North Carolina Superior Court. Nominated by President John Adams; confirmed by voice vote, December 10, 1799; resigned January 26, 1804; replaced by William Johnson. Murphy, Francis William 1940—49 Born April 13, 1890, Harbor Beach, MI; died July 19, 1949. University of Michigan; Lincoln's Inn, London; Trinity College, Dublin. Unmarried. Lawyer. Democrat. U.S. attorney general.

B I O G R A P H I C A L N O T E S O N THE J U S T I C E S Nominated by President Franklin D. Roosevelt; confirmed by voice vote, January 15, 1940; replaced by Tom C. Clark. Nelson, Samuel 1845-71 Born November 10,1792, Hebron, NY; died December 13, 1873. Middlebury College. Married twice, four children. Lawyer. Democrat. Chief justice, New York Supreme Court. Nominated by President John Tyler; confirmed by voice vote, February 14,1845; retired November 28,1872; replaced by Ward Hunt. O'Connor, Sandra Day 1981Born March 26,1930, El Paso, T X . Stanford University; Stanford Law School. Married, three children. Lawyer. Judge, Arizona Court of Appeals. Nominated by President Reagan; confirmed 99—0, September 21, 1981. Paterson, William

1793-1806

Born December 24, 1745, County Antrim, Ireland; died September 9, 1806. College of New Jersey (Princeton University); studied law privately. Married twice, three children. Lawyer. Governor of New Jersey. Nominated by President Washington; confirmed by voice vote, March 4,1793; replaced by Henry B. Livingston. Peckham, Rufus Wheeler 1895-1909 Born November 8, 1838, Albany, NY; died October 24, 1909. Albany Boys' Academy; studied privately. Married, two children. Lawyer. Judge, New York Court of Appeals. Nominated by President Cleveland; confirmed by voice vote, December 9, 1895; replaced by Horace Harmon Lurton. Pitney, Mahlon 1912-22 Born February 5, 1858, Morristown, NJ; died December 9, 1924. College of New Jersey (Princeton University); studied law privately. Married, three children. Lawyer. Republican. Chancellor, New Jersey Court of Appeals. Nominated by President Taft; confirmed 50-26, March 13, 1912; retired December 31, 1922; replaced by Edward T. Sanford. Powell, Lewis Franklin, Jr. 1971—87 Born September 19, 1907, Suffolk, VA; died August 25,1998 Washington and Lee University; Washington and Lee Law School; Harvard Law School. Married, four children. Lawyer. President, American Bar Association. Nominated by President Nixon; confirmed 89-1, December 6,1971; retired June 26,1987; replaced by Anthony M. Kennedy. Reed, Stanley Forman 1938-57 Born December 31, 1884, Minerva, KY; died April 2, 1980. Kentucky Wesleyan College; Yale University; University of Virginia Law School; Columbia Law School; University of Paris. Married, two children.

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B I O G R A P H I C A L N O T E S O N THE J U S T I C E S Lawyer. Democrat. U.S. solicitor general. Nominated by President Franklin D. Roosevelt; confirmed by voice vote, January 25,1938; retired February 25, 1957; replaced by Charles E. Whittaker. Rehnquist, William Hubbs 1 9 7 1 - CJ Born October 1, 1924, Milwaukee, WI. Stanford University; Harvard University; Stanford Law School. Married, three children. Lawyer. Republican. Assistant U.S. attorney general, Office of Legal Counsel. Nominated by President Nixon; confirmed 68-26, December 10,1971; nominated chief justice by President Reagan; confirmed 65-33, September 17, 1986; replaced as associate justice by Antonin Scalia. 1930-45 Roberts, Owen Josephus Born May 2,1875, Germantown, PA; died May 17,1955. University of Pennsylvania; University of Pennsylvania Law School. Married. Lawyer; law professor. Republican. Special U.S. attorney to investigate and prosecute the Teapot Dome scandal. Nominated by President Hoover; confirmed by voice vote, June 2,1930; resigned July 31,1945; replaced by Harold H. Burton. Rutledge, John 1789-91 Born September 1739, Charleston, SC; died July 18,1800. Privately tutored; studied law in England. Married, ten children. Lawyer. Member, South Carolina convention to ratify U.S. Constitution. Nominated by President Washington; confirmed by voice vote, September 26, 1789; resigned March 5,1791; replaced by Thomas Johnson. (Later sworn in as chief justice August 12,1795, but not confirmed.) Rutledge, "Wiley Blount 1943-49 Born July 20,1894, Cloverport, KY; died September 10,1949. University of Wisconsin; University of Colorado. Married, three children. Lawyer; law professor; dean. Judge, U.S. Court of Appeals for the District of Columbia Circuit. Nominated by President Franklin D. Roosevelt; confirmed by voice vote, February 8, 1943; replaced by Sherman Minton. Sanford, Edward Terry 19x3-30 Born July 23,1865, Knoxville, T N ; died March 8,1930. University of Tennessee; Harvard College; Harvard Law School. Married, two children. Lawyer. Judge, U.S. District Court for the Middle and Eastern Districts of Tennessee. Nominated by President Harding; confirmed by voice vote, January 29, 1923; replaced by Owen J. Roberts. Scalia, Antonin 1986— Born March 11,1936, Trenton, NJ. Georgetown University; Harvard Law School. Married, nine children. Lawyer; law professor. Judge, U.S. Court of Appeals for the District of Columbia Circuit. Nominated by President Reagan; confirmed 98-0, September 17,1986. Shiras, George, Jr. 1890-1903 Born January 26, 1832, Pittsburgh, PA; died August 2, 1924.

B I O G R A P H I C A L NOTES O N THE JUSTICES Ohio University; Yale University; studied law at Yale Law School and privately. Married, two children. Lawyer. Republican. Nominated by President Harrison; confirmed by voice vote, July z6, 1892; retired February 23, 1903; replaced by William R. Day. Stevens, John Paul 1975Born April 20, 1920, Chicago, IL. University of Chicago; Northwestern University School of Law. Married twice, four children. Lawyer, law professor. Republican. Judge, U.S. Court of Appeals for the Seventh Circuit. Nominated by President Ford; confirmed 98-0, December 17, 1975. Stewart, Potter 1958-81 Born January 23, 1915, Jackson, MI; died December 7, 1985. Yale College; Yale Law School; Cambridge University. Married, three children. Lawyer. Republican. Judge, U.S. Court of Appeals for the Sixth Circuit. Received recess appointment by President Eisenhower, October 14, 1958; nominated by President Eisenhower; confirmed 70-17, May 5, 1959; retired July 3, 1981; replaced by Sandra Day O'Connor. Stone, Harlan Fiske 1915-46 CJ Born October 11, 1872, Chesterfield, N H ; died April 22,1946. Amherst College; Columbia Law School. Married, two children. Lawyer; law professor; dean. Republican. U.S. attorney general. Nominated by President Coolidge; confirmed 71—6, February 5, 1925; nominated chief justice by President Franklin D. Roosevelt; confirmed by voice vote, June 27,1941; replaced by Fred M. Vinson. Story, Joseph 1811-45 Born September 18,1779, Marblehead, MA; died September 10,1845. Harvard College; read law privately. Married twice, seven children. Lawyer. U.S. representative, Republican-Democrat—Massachusetts. Nominated by President Madison; confirmed by voice vote, November 18, 1811; replaced by Levi Woodbury. Strong, William 1870-80 Born May 6, 1808, Somers, CT; died August 19, 1895. Yale College. Married twice, seven children. Lawyer. Republican. Justice, Pennsylvania Supreme Court. Nominated by President Grant; confirmed by voice vote, February 18, 1870; retired December 14, 1880; replaced by William B. Woods. Sutherland, George 1922^-38 Born March 25, 1862, Buckinghamshire, England; died July 18, 1942. Brigham Young Academy; University of Michigan Law School. Married, three children. Lawyer. Republican. U.S. counsel, Norway-United States arbitration, The Hague. Nominated by President Harding; confirmed by voice vote, September 5,1922; replaced by Stanley F. Reed. Swayne, Noah Haynes i86z—81 Born December 7, 1804, Frederick County, VA; died June 8, 1884.

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B I O G R A P H I C A L NOTES O N THE JUSTICES Studied law privately. Married, five children. Lawyer. Republican. City councilman, Columbus, Ohio. Nominated by President Lincoln; confirmed 38-1, January 24, 1862; retired January 24, 1881; replaced by Stanley Matthews. Taft, William Howard 1921-30 CJ Born September 15, 1857; died March 8, 1930. Yale College; Cincinnati Law School. Married, three children. Lawyer. Republican. U.S. president; joint chairman, National War Labor Board. Nominated chief justice by President Harding; confirmed by voice vote, June 30, 1921; retired February 3, 1930; replaced by Chief Justice Charles Evans Hughes. Taney, Roger Brooke 1836-64 CJ Born March 17,1777, Calvert County, MD; died October 12,1864. Dickinson College; read law privately. Married, seven children. Lawyer. Federalist. U.S. secretary of the treasury. Nominated chief justice by President Jackson; confirmed 29-15, March 15, 1836; replaced by Salmon P. Chase. Thomas, Clarence 1991Born June 28,1948, Pin Point, GA. Immaculate Conception Seminary; Holy Cross; Yale Law School. Married twice, one child. Lawyer. Republican. Judge, U.S. Court of Appeals for the District of Columbia Circuit. Nominated by President Bush; confirmed 52-48, October 15, 1991. Thompson, Smith 1823-43 Born c. January 17, 1768, Dutchess County, NY; died December 18, 1843. College of New Jersey (Princeton University); studied law privately. Married twice. Republican. U.S. secretary of the navy. Nominated by President Monroe; confirmed by voice vote, December 19, 1823; replaced by Samuel Nelson. Todd, Thomas 1807-26 Born January 23, 1765, King and Queen County, VA; died, February 7,1826. Liberty Hall (Washington and Lee University); read law privately. Married twice, eight children. Lawyer. Chief justice, Kentucky Court of Appeals. Nominated by President Jefferson; confirmed by voice vote, March 3, 1807; replaced by Robert Trimble. Trimble, Robert 1826-28 Born November 17, 1776, Berkeley County, VA; died August 25, 1828. Bourbon Academy; Kentucky Academy; read law privately. Married, ten children. Lawyer. Judge, U.S. district court of Kentucky. Nominated by President John Quincy Adams; confirmed 27-5, May 9, 1826; replaced by John McLean. Van Devanter, Willis 1910—37 Born April 17, 1859, Marion, IN; died February 8, 1941. Indiana Asbury University (DePauw); University of Cincinnati Law School. Married. Lawyer. Republican. Judge, U.S. Court of Appeals for the Eighth Circuit.

BIOGRAPHICAL NOTES O N THE JUSTICES Nominated by President Taft; confirmed by voice vote December 15,1910; retired June 2,1937; replaced by Hugo L. Black. Vinson, Frederick Moore 1946-53 CJ Born January 22, 1890, Louisa, KY; died September 8, 1953. Centre College. Married, two children. Lawyer. U.S. secretary of the treasury. Nominated chief justice by President Truman; confirmed by voice vote, June 20, 1946; replaced by Earl Warren. Waitc, Morrison Remick 1874-88 CJ Born November 29, 1816, Lyme, CT; died March 23, 1888. Yale College. Married, five children. Lawyer. Republican. President, Ohio constitutional convention. Nominated chief justice by President Grant; confirmed 63-0, January 21, 1874; replaced by Melville W. Fuller. Warren, Earl 1953-69 CJ Born March 19, 1891, Los Angeles, CA; died July 9, 1974. University of California Law School. Married, six children. Lawyer. Republican. Governor of California. Nominated chief justice by President Eisenhower; confirmed by voice vote, March 1, 1954; retired June 23, 1969; replaced by Warren E. Burger. Washington, Bushrod 1798-1829 Born June 5, 1762, Westmoreland County, VA; died November 26, 1829. College of William and Mary; read law privately. Married. Lawyer. Member, Virginia convention to ratify U.S. Constitution. Nominated by President John Adams; confirmed by voice vote, December 20, 1798; replaced by Henry Baldwin. Wayne, James Moore 1835-67 Born c. 1790, Savannah, GA; died July 5, 1867. College of New Jersey (Princeton University); read law privately. Married, three children. Lawyer. U.S. representative, Democrat—Georgia. Nominated by President Jackson; confirmed by voice vote, January 9,1835; replaced by Joseph Bradley. Whittaker, Charles Evans 1957-62 Born February 22, 1901, Troy, KS; died November 26, 1973. University of Kansas City Law School. Married, three children. Lawyer. Republican. Judge, U.S. Court of Appeals for the Eighth Circuit. Nominated by President Eisenhower; confirmed by voice vote, March 19, 1957; retired March 31, 1962; replaced by Byron R. White. White, Byron Raymond 1962-93 Born June 8, 1917, Fort Collins, CO. University of Colorado; Rhodes scholar, Oxford University; Yale Law School. Married, two children. Lawyer. Deputy U.S. attorney general. Nominated by President Kennedy; confirmed by voice vote, April 11, 1962; retired June 28, 1993; replaced by Ruth Bader Ginsburg.

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B I O G R A P H I C A L N O T E S O N THE J U S T I C E S White, Edward Douglass 1894—19x1 CJ Born November 3, 1845, Parish of Lafourche, LA; died May 19, 1921. Mount St. Marys College; Georgetown College; studied law privately. Married. Lawyer. U.S. senator, Democrat—Louisiana. Nominated by President Cleveland; confirmed by voice vote, February 19, 1894; nominated chief justice by President Taft; confirmed by voice vote, December 12, 1910; replaced as chief justice by former President Taft. Wilson, James 1789-98 Born September 14,1742, Caskardy, Scotland; died August 21,1798. University of St. Andrews, Scotland; read law privately. Married twice, seven children. Lawyer; businessman. Member, Pennsylvania convention to ratify U.S. Constitution. Nominated by President Washington; confirmed by voice vote, August 21, 1798; replaced by Bushrod Washington. Woodbury, Levi 1846-51 Born December 22,1789, Francestown, NH; died September 4,1851. Dartmouth College; Tapping Reeve Law School. Married, five children. Lawyer. Democrat. U.S. secretary of the treasury. Nominated by President Polk; confirmed by voice vote, January 3,1846; replaced by Benjamin R. Curtis. Woods, William Burnham 1880-87 Born August 3,1824, Newark, OH; died May 14,1887. Western Reserve College; Yale College; studied law privately. Married, two children. Lawyer. Republican. Judge, Federal Circuit Court for the Fifth Circuit. Nominated by President Hayes; confirmed 39-8, December 21, 1880; replaced by Lucius Q.C. Lamar.

TABLE

OF

CASES

This table lists all cases in the U.S. Supreme Court from 1790 through 1998 discussed in this book. Cases decided by lower courts are covered in the Notes beginning on p. 755. This table is arranged alphabetically. Cases with descriptive names—for example, the Steel Seizure Case—are cross-referenced to their formal names. Cases beginning with "Estate of," "Ex parte," "In re," "Matter of," and other merely descriptive labels are indexed by the names of the parties, as are cases beginning with "City of," "State of," "Village of," "United States," and the like. Superscripted case numbers throughout the text refer to the number preceding the name of each case in this table. The case name is followed by its citation in the United States Reports. For example, 410 U.S. 113 refers to volume 410 of the United States Reports, p. 113. [Until 1881, Supreme Court cases also cited the reporter who compiled them; for example, 5 U.S. (1 Cr.) 137 (1803), the citation to Marbury v. Madison, refers to volume 1 of William Cranchs compilations.] The most recent cases, those decided after the 1995-1996 term, for which official citations have not yet been given, are cited instead by their location in the West Publishing Company's Supreme Court Reporter ("S.Ct.") series. Case citations are followed by the vote and by the justice who wrote the majority opinion (the name is in capital letters). Justices who wrote a concurring opinion and those who dissented, whether or not they wrote a dissenting opinion, are also listed. The number followed by "pp." is the length of all opinions in the Reports for each case. Numbers following "Noted at" indicate the pages where the case is referred to throughout the text, either by name or superscript number ("a" refers to the left column of the page, "b" to the right). Notation of concurrences or dissents is not intended to reflect the complexity of the voting coalitions in particular cases. In some cases, it is easy to determine the meaning of a 5-4 split: five justices were in the majority, and four dissented from the Court's judgment. But in many recent cases, it requires the considerable power of a tea leaf reader to discern who sided with whom and how, as the following notation of the justices' position in a 1991 case, Lehnert v. Ferris Faculty Assn., shows (the wording that follows is that of the Court itself): BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts, I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IVE, and IV-F, in which REHNQUIST, C.J., and WHITE and STEVENS, J J „ joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part. SCALLA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which O'CONNOR and SOUTER, J J „ joined, and in all but Part III-C of which KENNEDY, J., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part. 1.

A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935). 9-0, HUGHES. Concurrences: Cardozo, Stone. 60pp. Noted at: 131a, 140b, 255a, 373a, 462b—463a 2. Abington School District v. Schempp, 374 U.S. 203 (1963). 8-1, CLARK. Dissent: Stewart. 116pp. Noted at: 361b 633

634

T A B L E OF C A S E S 3.

Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). 9-0, TANEY. 21pp. Noted at: 208b, 221b, 324a 4. Abood v. Detroit Board of Education, 431 U.S. 209 (1977). 9-0, STEWART. Concurrences: Burger, Blackmun, Rehnquist, Stevens, Powell. 55pp. Noted at: 276b, 469a 5. Abrams v. U.S., 250 U.S. 616 (1919). 7-2, CLARK. Dissents: Holmes, Brandeis. 14pp. Noted at: 96b, 205b, 299a, 451a, 490a 6. Adair v. U.S., 208 U.S. 161 (1908). 7-1, HARLAN. Dissents: McKenna. Not voting: Moody. 32pp. Noted at: 199b, 549b 7. Adams v. Illinois, 405 U.S. 278 (1972). 5-2, BRENNAN. Concurrences: Burger, Blackmun. Dissents: Douglas, Marshall. Not voting: Powell, Rehnquist. 30pp. Noted at: 318a 8. Adams v. Milwaukee, 228 U.S. 572 (1913). 9-0, McKENNA. 14pp. Noted at: 306a 9. Adams v. Tanner, 244 U.S. 590 (1917). 5-4, McREYNOLDS. Dissents: McKenna, Brandeis, Holmes, Clarke. 27pp. Noted at: 160a 10. Adams Express Co. v. Ohio State Auditor, 166 U.S. 185 (1897). 9-0, BREWER. 41pp. Noted at: 391b 11. Adamson v. California, 332 U.S. 46 (1947). 5-4, REED. Dissents: Black, Murphy, Douglas, Rutledge. 77pp. Noted at: 157b, 245a, 245b, 315a 12. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 5-4, O'CONNOR. Concurrences: Scalia, Thomas. Dissents: Stevens, Souter, Ginsberg, Breyer. 75pp. Noted at: 38b, 409b, 459b, 487a 13. Adderley v. Florida, 385 U.S. 39 (1966). 5-4, BLACK. Dissents: Douglas, Warren, Brennan, Fortas. 16pp. Noted at: 260a, 398a 14. Addington v. Texas, 441 U.S. 418 (1979). 8-0, BURGER. Not voting: Powell. 16pp. Noted at: 90a, 265a, 384b 15. Addyston Pipe & Steel Co. v. U.S., 175 U.S. 211 (1899). 9-0, PECKHAM. 38pp. Noted at: 48a, 101b, 254b 16. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). 6-3, HARLAN. Concurrences: Black, Brennan. Dissents: Brennan, Douglas. 44pp. Noted at: 99b, 135b, 477b 17. Adkins v. Children's Hospital, 261 U.S. 525 (1923). 5-3, SUTHERLAND. Dissents: Taft, Sanford, Holmes. Not voting: Brandeis. 46pp. Noted at: 166a, 306a, 524a 18. Adler v. Board of Education, 342 U.S. 485 (1952). 6-3, MINTON. Dissents: Black, Frankfurter, Douglas. 26pp. Noted at: 291b 19. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937). 9-0, HUGHES. 18pp. Noted at: 81a, 139b 20. Aetna Life Insurance Co. v. Hyde, 275 U.S. 440 (1928). 9-0, BUTLER. 9pp. Noted at: 35b 21. Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986). 8-0, BURGER. Concurrences: Brennan, Blackmun, Marshall. Not voting: Stevens. 21pp. Noted at: 240a 22. Afroyim v. Rusk, 387 U.S. 253 (1967). 5-4, BLACK. Dissents: Harlan, Clark, Stewart, White. 41pp. Noted at: 179a, 450a 23. Agostini v. Felton, 117 S.Ct. 1997 (1997). 5-4, O'CONNOR. Dissents: Souter, Stevens, Ginsburg, Breyer. 33pp. Noted at: 166b, 282a, 439a, 439b 24. Aguilar v. Felton, 473 U.S. 402 (1985). 5-4, BRENNAN. Concurrence: Powell. Dissents: Burger, White, Rehnquist, O'Connor. 30pp. Noted at: 439a 25. Aguilar v. Texas, 378 U.S. 108 (1964). 6-3, GOLDBERG. Concurrence: Harlan. Dissents: Clark, Black, Stewart. 14pp. Noted at: 380b

TABLE OF C A S E S 26.

27. 28. 29. 30. 31. 32. 33. 34. 35.

36. 37.

38. 39.

40. 41. 42.

43.

44.

45. 46. 47. 48.

Aguilar, U.S. v., 515 U.S. 593 (1995). 8-1, 6-3, REHNQUIST. Concurrences: Stevens, Scalia. Dissents: Stevens, Scalia, Kennedy, Thomas. 25pp. Noted at: 377b Agurs, U.S. v., 427 U.S. 97 (1976). 7-2, STEVENS. Dissents: Marshall, Brennan. 25pp. Noted at: 144a, 394a Ah Sin v. Wittman, 198 U.S. 500 (1905). 8-1, McKENNA. Dissent: Peckham. 9pp. Noted at: 393b Ake v. Oklahoma, 470 U.S. 68 (1985). 8-i, MARSHALL. Concurrence: Burger. Dissent: Rehnquist. 24pp. Noted at: 40b, 544a Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). 6-3, POWELL. Dissents: O'Connor, White, Rehnquist. 60pp. Noted at: 20a Alabama v. Arizona, 291 U.S. 286 (1934). 9-0, BUTLER. Concurrence: Stone. 7pp. Noted at: 480a Alabama v. Smith, 490 U.S. 794 (1989). 8-1, REHNQUIST. Dissent: Marshall, npp. Noted at: 456a Alabama Public Service Commission v. Southern Railway, 341 U.S. 341 (1951). 9-0, VINSON. Concurrences: Frankfurter, Jackson. 15pp. Noted at: 23b Alaska S.S. Co., U.S. v., 253 U.S. 113 (1920). 9-0, DAY. 4pp. Noted at: 309a Albertini, U.S. v., 472 U.S. 675 (1985). 6-3, O'CONNOR. Dissents: Stevens, Brennan, Marshall. 28pp. Noted at: ^fa Alberts v. California, see Roth v. U.S. Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965). 8-0, BRENNAN. Concurrence: Black. Not voting: White. 16pp. Noted at: 109a, 302a, 454b Albright v. Oliver, 510 U.S. 266 (1994). 7-2, REHNQUIST. Concurrences: Scalia, Ginsburg, Kennedy, Souter. Dissent: Stevens. 51pp. Noted at: 123a Alcorta v. Texas, 355 U.S. 28 (1957). 9-0, PER CURIAM. 4pp. Noted at: 347a Alderman v. U.S., 394 U.S. 165 (1969). 7-1, 5-3, WHITE. Concurrences: Fortas, Harlan, Douglas. Dissents: Black, Stewart, Fortas, Harlan. Not voting: Marshall. 47pp. Noted at: 443a, 447b Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). 9-0, PER CURIAM. 3pp. Noted at: 43b, 374b, 452a Alexander v. Louisiana, 405 U.S. 625 (1972). 7-0, WHITE. Concurrence: Douglas. Not voting: Powell, Rehnquist. 20pp. Noted at: 133b Alexander v. U.S., 509 U.S. 544 (1993). 6-3, 5-4, REHNQUIST. Concurrence: Souter. Dissents: Kennedy, Blackmun, Stevens, Souter. 35pp. Noted at: 63a, 392b Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976). 5-4, WHITE. Concurrences: Stevens, Powell. Dissents: Marshall, Brennan, Stewart, Blackmun. 55pp. Noted at: 27b Allegheny County v. Greater Pittsburgh American Civil Liberties Union, 492 U.S. 573 (1989). 5-4 (various coalitions), BLACKMUN. Concurrences: O'Connor, Brennan, Stevens, Marshall, Kennedy. Dissents: Kennedy, Rehnquist, White, Scalia, Stevens, Brennan, Marshall. 107pp. Noted at: 282a, 421b Allegheny Pittsburgh Coal v. Webster County, 488 U.S. 336 (1989). 9-0, REHNQUIST. npp. Noted at: 159b, 390b, 412a Allgeyer v. Louisiana, 165 U.S. 578 (1897). 9-0, PECKHAM. 15pp. Noted at: 199b Allied-Signal, Inc. v. Director, Division of Taxation, 504 U.S. 768 (1992). 5-4, KENNEDY. Dissents: O'Connor, Rehnquist, Blackmun, Thomas. 28pp. Noted at: 503a Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959). 9-0, WHITTAKER. Concurrences: Brennan, Harlan. Not voting: Stewart. 12pp. Noted at: 390b

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TABLE OF CASES 49.

Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978). 6-3, STEWART. Dissents: Brennan, Marshall, White. 31pp. Noted at: 327a 50. Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981). 5-3, BRENNAN. Concurrence: Stevens. Dissents: Powell, Burger, Rehnquist. Not voting: Stewart. 39pp. Noted at: 87b 50a. Almendarez-Torres v. U.S., 118 S.Ct. 1219 (1998). 5-4, BREYER. Dissents: Scalia, Stevens, Souter, Ginsburg. 24pp. Noted at: 557a, 565a 51. Almeida-Sanchez v. U.S., 413 U.S. 266 (1973). 5-4, STEWART. Concurrence: Powell. Dissents: White, Burger, Blackmun, Rehnquist. 34pp. Noted at: 444b 52. Alvarez-Machain, U.S. v., 504 U.S. 655 (1992). 6-3, REHNQUIST. Dissents: Stevens, Blackmun, O'Connor. 34pp. Noted at: i8oa-b 53. Amadeo v. Zant, 486 U.S. 214 (1988). 9-0, MARSHALL. 15pp. Noted at: 223a 54. Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968). 6-3, MARSHALL. Dissents: Black, Harlan, White. 32pp. Noted at: 399a, 462a 55. Ambach v. Norwick, 441 U.S. 68 (1979). 5-4, POWELL. Dissents: Blackmun, Brennan, Marshall, Stevens. 22pp. Noted at: 42b 56. Amerada Hess Corp. v. New Jersey Division of Taxation, 490 U.S. 66 (1989). 8-0, BLACKMUN. Concurrence: Scalia. Not voting: O'Connor. 16pp. Noted at: 503a 57. American Booksellers Assn. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986). PER CURIAM, ipp. Noted at: 187a, 470a 58. American Communications v. Douds, 339 U.S. 382 (1950). 6-3, VINSON. Dissents: Frankfurter, Jackson, Black. 72pp. Noted at: 198b 59. American Federation of Labor v. American Sash and Door Co., 335 U.S. 538 (1949). 8-1, BLACK. Concurrences: Frankfurter, Rutledge. Dissent: Murphy. 5pp. Noted at: 276a 60. American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828). 7-0, MARSHALL. 36pp. Noted at: 58a, 290b, 508a 61. American Party of Texas v. White, 415 U.S. 767 (1974). 8-1, WHITE. Dissent: Douglas. 32pp. Noted at: 25a 62. American Power Co. v. Securities and Exchange Commission, 329 U.S. 90 (1946). 4-2, MURPHY. Concurrences: Frankfurter, Rutledge. Dissents: Frankfurter, Rutledge. Not voting: Reed, Douglas, Jackson. 39pp. Noted at: 400b 63. American Publishing Co. v. Fisher, 166 U.S. 454 (1897). 9-0, BREWER. 5pp. Noted at: 271b 64. American Trucking Assns. v. Atchison, Topeka & Santa Fe Railway, 387 U.S. 397 (1967). 6-3, FORTAS. Dissents: Black, Stewart, Harlan. 26pp. Noted at: 30a 65. American Trucking Assns. v. Scheiner, 483 U.S. 266 (1987). 5-4, STEVENS. Dissents: O'Connor, Rehnquist, Powell, Scalia. 41pp. Noted at: 504a 66. American Trucking Assns. v. Smith, 496 U.S. 167 (1990). 5-4, O'CONNOR. Concurrence: Scalia. Dissents: Stevens, Brennan, Marshall, Blackmun. 58pp. Noted at: 427b 67. Ames v. Kansas ex rel. Johnston, hi U.S. 449 (1884). 9-0, WAITE. 24pp. Noted at: 337a 68. Anastaplo, In re, 366 U.S. 82 (1961). 5-4, HARLAN. Dissents: Black, Brennan, Warren, Douglas. 34pp. Noted at: 109a 69. Anders v. California, 386 U.S. 738 (1967). 6-3, CLARK. Dissents: Stewart, Black, Harlan. 10pp. Noted at: 48b 70. Anderson v. Celebrezze, 460 U.S. 780 (1983). 5-4, STEVENS. Dissents: Rehnquist, White, Powell, O'Connor. 43pp. Noted at: 25a, 356b 71. Anderson v. Creighton, 483 U.S. 635 (1987). 6-3, SCALIA. Dissents: Stevens, Brennan, Marshall. 34pp. Noted at: 446b 72. Anderson v. Martin, 375 U.S. 399 (1964). 9-0, CLARK. 5pp. Noted at: 24b, 409a

TABLE OF C A S E S 73.

Andres v. U.S., 333 U.S. 740 (1948). 9-0, REED. Concurrences: Frankfurter, Burton. 30pp. Noted at: 271b 74. Andresen v. Maryland, 427 U.S. 463 (1976). 7-2, BLACKMUN. Dissents: Brennan, Marshall. 32pp. Noted at: 304a, 445a 75. Andrus v. Allard, 444 U.S. 51 (1979). 9-0, BRENNAN. Concurrence: Burger. 17pp. Noted at: 500a 76. Ankenbrandt v. Richards, 504 U.S. 689 (1992). 9-0, WHITE. Concurrences: Blackmun, Stevens, Thomas. 30pp. Noted at: 23b 77. Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993). 9-0, STEVENS. 10pp. Noted at: 239a 78. Apodaca v. Oregon, 406 U.S. 404 (1972). 5-4, WHITE. Dissents: Stewart, Brennan, Marshall, Douglas, upp. Noted at: 245b, 271b 79. Appalachian Electric Power Co., U.S. v., 311 U.S. 377 (1940). 6-2, REED. Dissents: Roberts, McReynolds. Not voting: Hughes. 58pp. Noted at: 32b, 315b 80. Aptheker v. Secretary of State, 378 U.S. 500 (1964). 6-3, GOLDBERG. Dissents: Clark, Harlan, White. 9pp. Noted at: 109a, 121b, 302a, 338a, 342b, 513b 81. Arave v. Creech, 507 U.S. 463 (1993). 7-2, O'CONNOR. Dissents: Blackmun, Stevens. 27pp. Noted at: 40a 82. Argersinger v. Hamlin, 407 U.S. 25 (1972). 9-0, DOUGLAS. Concurrences: Brennan, Stewart, Powell, Rehnquist. 42pp. Noted at: 128a, 246a, 308a 83. Arizona v. California, 373 U.S. 546 (1963). 6-3, BLACK. Dissents: Douglas, Harlan, Stewart. 100pp. Noted at: 140b 84. Arizona v. Evans, 514 U.S. 1 (1995). 7-2, REHNQUIST. Concurrences: O'Connor, Souter. Dissents: Stevens, Ginsburg. 35pp. Noted at: 176a 85. Arizona v. Fulminante, 499 U.S. 279 (1991). 5-4 (two four-justice plurality opinions dissenting in part from each other), WHITE, REHNQUIST. Concurrence: Kennedy (swing vote). Dissents from one block: White, Marshall, Blackmun, Stevens, Kennedy. Dissents from other block: Rehnquist, O'Connor, Souter, Scalia, Kennedy. 36pp. Noted at: 225b 86. Arizona v. Youngblood, 488 U.S. 51 (1988). 6-3, REHNQUIST. Concurrence: Stevens. Dissents: Blackmun, Brennan, Marshall. 23pp. Noted at: 173b 87. Arizona Copper Co. v. Hammer, 250 U.S. 400 (1919). 5-4, PITNEY. Concurrences: Holmes, Brandeis, Clarke. Dissents: McKenna, White, Van Devanter, McReynolds. 54pp. Noted at: 82a, 517a, 546a Arizona Employers' Liability Cases, see Arizona Copper Co. v. Hammer 88. Arizonans for Official English v. Arizona, 117 S.Ct. 1055 (1997). 9—0, GINSBURG. 22pp. Noted at: 166a, 264a, 309a 89. Arjona, U.S. v., 120 U.S. 479 (1887). 9-0, WATTE. 10pp. Noted at: 351b 90. Arkansas v. Sanders, 442 U.S. 753 (1979). 7-2, POWELL. Concurrences: Burger, Stevens. Dissents: Blackmun, Rehnquist. 20pp. Noted at: 443a 90a. Arkansas Educational Television Commission v. Forbes, 118 S.Ct. 1633 (1998). 6-3, KENNEDY. Dissents: Stevens, Souter, Ginsburg. 18pp. Noted at: 564b 91. Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375 (1983)7-2, BRENNAN. Dissents: White, Burger. 27pp. Noted at: 492b 92. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987). 7-2, MARSHALL. Concurrence: Stevens. Dissents: Scalia, Rehnquist. 17pp. Noted at: 207b, 344a

637

638

T A B L E OF C A S E S 93.

Arlington Heights, Village of v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). 6-3, POWELL. Concurrences: Marshall, Brennan. Dissents: Marshall, Brennan, White. 22pp. Noted at: 312a, 405b 94. Armstrong v. Manzo, 380 U.S. 545 (1965). 9-0, STEWART. 7pp. Noted at: 229a 95. Armstrong, U.S. v., 517 U.S. 456 (1996). 8-1, REHNQUIST. Concurrences: Ginsburg, Breyer (concurring statement by Souter). Dissent: Stevens. 28pp. Noted at: 393b 96. Arnett v. Kennedy, 416 U.S. 134 (1974). 5-4, REHNQUIST. Concurrences: Powell, Blackmun, White. Dissents: White, Douglas, Marshall, Brennan. 98pp. Noted at: 69a, 385a, 386a 97. Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979). 9-0, BURGER. Concurrence: Blackmun. npp. Noted at: 511b 98. Arver v. U.S., 245 U.S. 366 (1918). 9-0, WHITE. 25pp. Noted at: 259b 99. ASARCO v. Idaho State Tax Commission, 458 U.S. 307 (1982). 6-3, POWELL. Concurrence: Burger. Dissents: O'Connor, Blackmun, Rehnquist. 47pp. Noted at: 503a 100. Ash, U.S. v., 413 U.S. 300 (1973). 6-3, BLACKMUN. Concurrence: Stewart. Dissents: Brennan, Douglas, Marshall. 45pp. Noted at: 287b 101. Ashcraft v. Tennessee, 322 U.S. 143 (1944). 6-3, BLACK. Dissents: Jackson, Roberts, Frankfurter. 31pp. Noted at: 270a 102. Ashe v. Swenson, 397 U.S. 436 (1970). 8-1, STEWART. Dissent: Burger. 35pp. Noted at: 99a, 152a 103. Ashton v. Cameron County District, 298 U.S. 513 (1936). 5-4, McREYNOLDS. Dissents: Cardozo, Hughes, Brandeis, Stone. 31pp. Noted at: 131b 104. Ashton v. Kentucky, 384 U.S. 195 (1966). 9-0, DOUGLAS. Concurrence: Harlan. 7pp. Noted at: 133b, 134a 105. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936). 8-1, HUGHES. Concurrence: Brandeis. Dissent: McReynolds. 85pp. Noted at: 121a, 400a, 525a, 540b 106. Associated Enterprises v. Toltec Watershed Imp. District., 410 U.S. 743 (1973). 6-3, PER CURIAM. Dissents: Douglas, Brennan, Marshall. 9pp. Noted at: 390a 107. Associated Industries of Missouri v. Lohman, 511 U.S. 641 (1994). 9-0, THOMAS. 17pp. Noted at: 524b 108. Associated Press v. U.S., 326 U.S. i (1945). 6-3, BLACK. Concurrences: Reed, Douglas, Rutledge, Frankfurter. Dissents: Stone, Roberts, Murphy. 59pp. Noted at: 48a 109. Associated Press v. Walker, 388 U.S. 130 (1967). 5-4, WARREN. Concurrences: Black, Douglas. Dissents: Harlan, Clark, Stewart, Fortas. 44pp. Noted at: 284b, 397a no. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970). 7-2, DOUGLAS. Dissents: Brennan, White. 8pp. Noted at: 473b in. Atherton Mills v. Johnston, 259 U.S. 13 (1922). 9-0, TAFT. 3pp. Noted at: 309a 112. Atlantic Coast Line Railroad Co. v. City of Goldsboro, 232 U.S. 548 (1914). 9-0, PITNEY. 15pp. Noted at: 326b 113. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977). 8-0, WHITE. Not voting: Blackmun. 20pp. Noted at: 12, 519a 114. Atlee v. Richardson, 411 U.S. 911 (1973). PER CURIAM, ipp. Noted at: 530b 115. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986). 6-3, BRENNAN. Concurrences: Burger, White. Dissents: Stevens, O'Connor, Rehnquist. 28pp. Noted at: 450a, 529b

T A B L E OF C A S E S 116.

Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990). 6-3, MARSHALL. Concurrences: Brennan, Stevens. Dissents: Scalia, Kennedy, O'Connor. 36pp. Noted at: 79a, 127a 117. Austin v. New Hampshire, 420 U.S. 656 (1975). 7-1, MARSHALL. Dissent: Blackmun. Not voting: Douglas. 15pp. Noted at: 109b, 504b 118. Austin v. U.S., 509 U.S. 602 (1993). 9-0, BLACKMUN. Concurrences: Scalia, Kennedy, Rehnquist, Thomas. 28pp. Noted at: 63a, 392b, 401b 119. Babbitt v. Youpee, 117 S.Ct. 727 (1997). 8-1, GINSBURG. Dissent: Stevens. 8pp. Noted at: 172a, 247b, 499a 120. Babcock, U.S. v., 250 U.S. 328 (1919). 9-0, BRANDEIS. 5pp. Noted at: 423a 121. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). 6-3, WHITE. Dissents: Stevens, Rehnquist, O'Connor. 25pp. Noted at: 256b 122. Baender v. Barnett, 255 U.S. 224 (1921). 9-0, VAN DEVANTER. 4pp. Noted at: 129a 123. Baggett v. Bullitt, 377 U.S. 360 (1964). 7-2, WHITE. Dissents: Clark, Harlan. 24pp. Noted at: 23a, 109a, 291b, 527a 124. Bagley, U.S. v., 473 U.S. 667 (1985). 5-3, BLACKMUN. Dissents: Marshall, Brennan, Stevens. Not voting: Powell. 49pp. Noted at: 144b 125. Bailey v. Alabama, 219 U.S. 219 (1911). 7-2, HUGHES. Dissents: Holmes, Lurton. 31pp. Noted at: 259b 126. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). 8-1, TAFT. Dissent: Clarke. 24pp. Noted at: 86b, 405a, 504b, 506a 127. Baird v. State Bar of Arizona, 401 U.S. 1 (1971). 5-4, BLACK. Concurrence: Stewart. Dissents: Blackmun, White, Harlan, Burger. 21pp. Noted at: 109a, 198b, 278a 128. Baiz, In re, 135 U.S. 403 (1890). 9-0, FULLER. 29pp. Noted at: 108a, 357b 128a. Bajakajian, U.S. v., 118 S.Ct. 2028 (1998). 5-4, THOMAS. Dissents: Kennedy, Rehnquist, O'Connor, Scalia. 20pp. Noted at: 555a 129. Bakelite Corp., Ex parte, 279 U.S. 438 (1929). 9-0, VAN DEVANTER. 23pp. Noted at: 58a 130. Baker v. Carr, 369 U.S. 186 (1962). 7-2, BRENNAN. Dissents: Frankfurter, Harlan. 62pp. Noted at: 94b, 266b, 358a 131. Baker v. Selden, 101 U.S. 99 (1879). 9-0, BRADLEY. 9pp. Noted at: 546b 131a. Baker by Thomas v. General Motors Corp., 118 S.Ct. 657 (1998). 9-0, GINSBURG. Concurrences: Scalia, Kennedy. 17pp. Noted at: 559b 132. Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978). 6-3, BLACKMUN. Concurrence: Burger. Dissents: Brennan, White, Marshall. 35pp. Noted at: 211b, 380a 133. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935). 9-0, CARDOZO. 18pp. Noted at: 306a, 337b 134. Baldwin v. New York, 399 U.S. 66 (1970). 7-2, WHITE. Concurrences: Black, Douglas. Dissents: Burger, Harlan. 12pp. Noted at: 308a, 518a 135. Ball v. James, 451 U.S. 355 (1981). 5-4, STEWART. Concurrence: Powell. Dissents: White, Brennan, Marshall, Blackmun. 34pp. Noted at: 390a, 535b 136. Ball v. U.S., 470 U.S. 856 (1985). 7-0, BURGER. Concurrence: Stevens. Not voting: Powell. 13pp. Noted at: 151b 137. Ballard, U.S. v., 322 U.S. 78 (1944). 5-4, DOUGLAS. Dissents: Stone, Jackson, Roberts, Frankfurter. 18pp. Noted at: 134b, 201b, 418b

639

640

T A B L E OF C A S E S 138.

Ballew v. Georgia, 435 U.S. 223 (1978). 9-0, BLACKMUN. Concurrences: Stevens, White, Powell, Burger, Rehnquist, Brennan, Stewart, Marshall. 24pp. Noted at: 245b, 271a 139. Ballin, U.S. v., 144 U.S. 1 (1892). 9-0, BREWER, npp. Noted at: 262a, 436b 139a. Balsys, U.S. v., 118 S.Ct. 2218 (1998). 7-2, SOUTER. Concurrence: Stevens. Dissents: Ginsburg, Breyer. 28pp. Noted at: 566b 140. Balzac v. Porto Rico, 258 U.S. 298 (1922). 9-0, TAFT. Concurrence: Holmes. 17pp. Noted at: 401a 141. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). 8-i, HARLAN. Dissent: White. 75pp. Noted at: 27a 142. Bandini Petroleum Co. v. Superior Court, 284 U.S. 8 (1931). 9-0, HUGHES. 15pp. Noted at: 371b 143. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839). 8-1, TANEY. Dissent: McKinley. 88pp. Noted at: 379a 144. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). 7-0, MARSHALL. 31pp. Noted at: 147a 145. Bantam Books v. Sullivan, 372 U.S. 58 (1963). 8-1, BRENNAN. Dissent: Harlan. 25pp. Noted at: 69b, 371a 146. Barber v. Barber, 62 U.S. 582 (21 How.) (1858). 6-3, WAYNE. Dissents: Taney, Daniel, Campbell. 25pp. Noted at: 147b 147. Barber v. Page, 390 U.S. 719 (1968). 9-0, MARSHALL. Concurrence: Harlan. 8pp. Noted at: 173a 148. Barbier v. Connolly, 113 U.S. 27 (1885). 9-0, FIELD. 6pp. Noted at: 354b 149. Barclays Bank PLC v. Franchise Tax Board of California, 512 U.S. 298 (1994). 9-0, 7-2, GINSBURG. Concurrences: Blackmun, Scalia, O'Connor. Dissents: O'Connor, Thomas. 41pp. Noted at: 103b 150. Barefoot v. Estelle, 463 U.S. 880 (1983). 6-3, WHITE. Concurrence: Stevens. Dissents: Marshall, Brennan, Blackmun. 59pp. Noted at: 484b 151. Barenblatt v. U.S., 360 U.S. 109 (1959). 5-4, HARLAN. Dissents: Black, Warren, Douglas, Brennan. 58pp. Noted at: 64b, 109a, 311a 152. Barker v. Kansas, 503 U.S. 594 (1992). 9-0, WHITE. Concurrences: Stevens, Thomas. 8pp. Noted at: 237a 153. Barker v. Wingo, 407 U.S. 514 (1972). 9-0, POWELL. Concurrences: White, Brennan. 25pp. Noted at: 63(5-643, 517b 154. Barnard v. Thorstenn, 489 U.S. 546 (1989). 6-3, KENNEDY. Dissents: Rehnquist, White, O'Connor. 15pp. Noted at: 278a, 397b 155. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). 5-4, REHNQUIST. Concurrences: Scalia, Souter. Dissents: White, Marshall, Blackmun, Stevens. 37pp. Noted at: 169a, 323a, 354b, 399b 156. Barnes v. U.S., 412 U.S. 837 (1973). 6-3, POWELL. Dissents: Douglas, Brennan, Marshall, npp. Noted at: 372a 157. Barr v. Mateo, 360 U.S. 564 (1959). 5-4, HARLAN. Concurrence: Black. Dissents: Warren, Douglas, Stewart, Brennan. 29pp. Noted at: 239a 158. Barrett v. U.S., 423 U.S. 212 (1976). 7-2, BLACKMUN. Concurrence: White. Dissents: Stewart, Rehnquist. 20pp. Noted at: 313b 159. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). 7-0, MARSHALL. 8pp. Noted at: 68b, 185b, 244a, 354b 160. Barrows v. Jackson, 346 U.S. 249 (1953). 8-1, MINTON. Dissent: Vinson. 20pp. Noted at: 136a, 429a 161. Barry v. Mercein, 46 U.S. (5 How.) 103 (1847). 9-0, TANEY. 18pp. Noted at: 494b

TABLE OF CASES 162.

Bass, U.S. v., 404 U.S. 336 (1971). 5-2, MARSHALL. Separate statement: Brennan. Dissents: Blackmun, Burger. Not participating: Powell, Rehnquist (both having been confirmed only after oral argument). 21pp. Noted at: 103a, 181b 163. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). 5-4, BLACKMUN. Dissents: Burger, Powell, Stewart, Rehnquist. 54pp. Noted at: 105b, 387a 164. Batson v. Kentucky, 476 U.S. 79 (1986). 7-2, POWELL. Concurrences: White, Marshall, Stevens, O'Connor. Dissents: Burger, Rehnquist. 60pp. Noted at: 271a, 346a, 533b 165. Bauman v. Ross, 167 U.S. 548 (1897). 9-0, GRAY. 53pp. Noted at: 272a 166. Baxter v. Palmigiano, 425 U.S. 308 (1976). 7-2, WHITE. Concurrences: Brennan, Marshall. Dissents: Brennan, Marshall. 33pp. Noted at: 376a 167. Beacon Theatres v. Westover, 359 U.S. 500 (1959). 5-3, BLACK. Dissents: Stewart, Harlan, Whittaker. Not voting: Frankfurter. 20pp. Noted at: 519a 168. Beal v. Doe, 432 U.S. 438 (1977). 6-3, POWELL. Dissents: Brennan, Marshall, Blackmun. 17pp. Noted at: 21a 169. Bearden v. Georgia, 461 U.S. 660 (1983). 9-0, O'CONNOR. Concurrences: White, Burger, Powell, Rehnquist. 16pp. Noted at: 381b, 544b 170. Beauharnais v. Illinois, 343 U.S. 250 (1952). 5-4, FRANKFURTER. Dissents: Jackson, Douglas, Reed, Black. 55pp. Noted at: 218b, 227a, 331a 170a. Beck v. Alabama, 447 U.S. 625 (1980). 7-2, STEVENS. Concurrences: Brennan, Marshall. Dissents: Rehnquist, White. 24pp. Noted at: 557a 171. Beckwith v. U.S., 425 U.S. 341 (1976). 8-1, BURGER. Concurrence: Marshall. Dissent: Brennan. 11pp. Noted at: 455a 172. Bekins, U.S. v., 304 U.S. 27 (1938). 6-2, HUGHES. Dissents: McReynolds, Butler. Not voting: Cardozo. 28pp. Noted at: 65b 173. Bell v. Burson, 402 U.S. 535 (1971). 9-0, BRENNAN. Concurrences: Burger, Black, Blackmun. 9pp. Noted at: 97b, 154b, 229a, 286b, 384b, 386a 174. Bell v. Maryland, 378 U.S. 226 (1964). 6-3, BRENNAN. Concurrences: Douglas, Goldberg, Warren. Dissents: Black, Harlan, White. 121pp. Noted at: 515a 175. Bell v. Wolfish, 441 U.S. 520 (1979). 6-3, REHNQUIST. Dissents: Marshall, Stevens, Powell. 79pp. Noted at: 286b, 371a, 375a, 402b 176. Belle Terre, Village of v. Borass, 416 U.S. 1 (1974). 7-2, DOUGLAS. Dissents: Brennan, Marshall. 19pp. Noted at: 183a, 200b, 553b 177. Bellotti v. Baird (Bellotti II), 443 U.S. 622 (1979). 8-1, POWELL. Concurrences: Rehnquist, Stevens, Brennan, Marshall, Blackmun. Dissent: White. 35pp. Noted at: 20a, 273a 178. Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232 (1890). 9-0, BRADLEY. 8pp. Noted at: 502a 179. Belmont, U.S. v., 301 U.S. 324 (1937). 9-0, SUTHERLAND. Concurrences: Brandeis, Cardozo. 14pp. Noted at: 176b 180. Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988). 8-1, KENNEDY. Concurrence: Scalia. Dissent: Rehnquist. 13pp. Noted at: 64b, 150b, 430a, 459a 181. Bennett v. Spear, 117 S.Ct. 1154 (1997). 9-0, SCALIA. 15pp. Noted at: 474b

641

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TABLE OF 182.

CASES

Bennis v. Michigan, 516 U.S. 442 (1996). 5-4, REHNQUIST. Concurrences: Thomas, Ginsburg. Dissents: Stevens, Souter, Breyer, Kennedy. 32pp. Noted at: 193b 183. Benton v. Maryland, 395 U.S. 784 (1969). 7-2, MARSHALL. Dissents: Harlan, Stewart. 28pp. Noted at: 150b, 254b, 335b 184. Berea College v. Kentucky, 211 U.S. 45 (1908). 7-2, BREWER. Concurrences: Holmes, Moody. Dissents: Harlan, Day. 25pp. Noted at: 451b 185. Berman v. Parker, 348 U.S. 26 (1954). 9-0, DOUGLAS. 11pp. Noted at: 140b, 164b, 165a 186. Bernal v. Fainter, 467 U.S. 216 (1984). 8-i, MARSHALL. Dissent: Rehnquist. 12pp. Noted at: 43a 187. Berry v. U.S., 312 U.S. 450 (1941). 9-0, BLACK. 7pp. Noted at: 519a 188. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). 7-2, BURGER. Concurrence: Brennan. Dissents: Marshall, Stevens. 21pp. Noted at: 273a, 332a 189. Betts v. Brady, 316 U.S. 455 (1942). 6-3, ROBERTS. Dissents: Black, Douglas, Murphy. 26pp. Noted at: 127b 190. Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915). 9-0, HOLMES. 3pp. Noted at: 228b, 382a 191. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959). 9-0, DOUGLAS. Concurrences: Harlan, Stewart. 10pp. Noted at: 149b, 312a, 512b, 513a 192. Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). 9-0, CLARKE. 8pp. Noted at: 180a 193. Biddle v. Perovich, 274 U.S. 480 (1927). 8-0, HOLMES. Not voting: Taft. 8pp. Noted at: 340b 194. Bigelow v. Virginia, 421 U.S. 809 (1975). 7-2, BLACKMUN. Dissents: Rehnquist, White. 27pp. Noted at: 105a 195. Bishop v. U.S., 350 U.S. 961 (1956). 9-0, PER CURIAM, ip. Noted at: 251a 196. Bishop v. Wood, 426 U.S. 341 (1976). 5-4, STEVENS. Dissents: Brennan, Marshall, White, Blackmun. 22pp. Noted at: 69a, 286b, 385a, 396b 197. Biswell, U.S. v., 406 U.S. 311 (1972). 8-1, WHITE. Concurrence: Blackmun. Dissent: Douglas. 9pp. Noted at: 443b 198. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 6-3, BRENNAN. Concurrence: Harlan. Dissents: Burger, Black, Blackmun. 43pp. Noted at: 120b, 175b, 195a, 239a, 242a, 446b 199. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518 (1928). 6-3, BUTLER. Dissents: Holmes, Brandeis, Stone. 19pp. Noted at: 171b 200. Blackledge v. Perry, 417 U.S. 21 (1974). 7-2, STEWART. Dissents: Rehnquist, Powell. 18pp. Noted at: 393b 201. Blanton v. City of North Las Vegas, 489 U.S. 538 (1989). 9-0, MARSHALL. 8pp. Noted at: 518a 202. Blau v. U.S., 340 U.S. 159 (1950). 8-0, BLACK. Not voting: Clark. 3pp. Noted at: 217b 203. Block v. Hirsh, 256 U.S. 135 (1921). 5-4, HOLMES. Dissents: McKenna, Taft, Van Devanter, McReynolds. 36pp. Noted at: 164b, 373a, 424a 203a. Blockburger v. U.S., 284 U.S. 299 (1932). 9-0, SUTHERLAND. 6pp. Noted at: 151a 204. Blodget, In re, 502 U.S. 236 (1992). 9-0, PER CURIAM. Concurrences: Stevens, Blackmun. 8pp. Noted at: 223b, 484b

TABLE OF C A S E S 205. 206.

207. 208.

209. 210.

211.

212.

213.

214. 215.

216.

217.

218.

219. 220. 221.

222. 223. 224. 225.

Bloom v. Illinois, 391 U.S. 194 (1968). 7-2, WHITE. Concurrence: Fortas. Dissents: Harlan, Stewart. 22pp. Noted at: 123b, 518b Blum v. Yaretsky, 457 U.S. 991 (1982). 7-2, REHNQUIST. Concurrence: White. Dissents: Brennan, Marshall. 39pp. Noted at: 478b Blystone v. Pennsylvania, 494 U.S. 299 (1990). 5-4, REHNQUIST. Dissents: Brennan, Marshall, Blackmun, Stevens. 26pp. Noted at: 137b BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). 5-4, STEVENS. Concurrences: Breyer, O'Connor, Souter. Dissents: Scalia, Thomas, Ginsburg, Rehnquist. 61pp. Noted at: 136a, 403b Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987). 9-0, O'CONNOR. Concurrences: White, Rehnquist. 9pp. Noted at: 338b Board of County Commissioners of Bryan County, Oklahoma v. Brown, 117 S.Ct. 1382 (1997). 5-4, O'CONNOR. Dissents: Souter, Breyer, Stevens, Ginsburg. 23pp. Noted at: 94b, 122b, 135b, 274b Board of County Commissioners, Wabaunsee County v. Umbehr, 518 U.S. 668 (1996). 7-2, O'CONNOR. Dissents: Scalia, Thomas. 19pp. (fourteen additional pages of dissents follow O'Hare Truck Service, Inc. v. City of Northlakè). Noted at: 343b Board of Curators, Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978). 6-3, REHNQUIST. Concurrences: Powell, White, Marshall, Blackmun, Brennan. Dissents: Marshall, Blackmun, Brennan. 32pp. Noted at: 386a Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987). 7-0, POWELL. Concurrence: Scalia. Not voting: Blackmun, O'Connor. 13pp. Noted at: 197b, 200b Board of Education v. Allen, 392 U.S. 236 (1968). 6-3, WHITE. Dissents: Black, Douglas, Fortas. 35pp. Noted at: 282a, 438a Board of Education v. Mergens, 496 U.S. 226 (1990). 8-1, O'CONNOR. Concurrences: Kennedy, Scalia, Marshall, Brennan. Dissent: Stevens. 66pp. Noted at: 487b Board of Education, Island Trees School District v. Pico, 457 U.S. 853 (1982). 5-4, BRENNAN. Concurrences: Blackmun, White. Dissents: Burger, Powell, Rehnquist, O'Connor. 69pp. Noted at: 217a, 311b, 412b, 487b Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). 6-3, SOUTER. Concurrences: Blackmun, Stevens, Ginsburg, O'Connor, Kennedy. Dissents: Scalia, Rehnquist, Thomas. 66pp. Noted at: 420b Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991). 5-3, REHNQUIST. Dissents: Marshall, Blackmun, Stevens. Not voting: Souter. 32pp. Noted at: 76b, 452b Board of Estimate v. Morris, 489 U.S. 688 (1989). 9-0, WHITE. Concurrences: Brennan, Stevens, Blackmun. 17pp. Noted at: 334a Board of Governors v. Agnew, 329 U.S. 441 (1947). 9-0, DOUGLAS. Concurrences: Rutledge, Frankfurter, upp. Noted at: 67b Board of Regents v. Roth, 408 U.S. 564 (1972). 5-3, STEWART. Concurrence: Burger. Dissents: Douglas, Marshall, Brennan. Not voting: Powell. 29pp. Noted at: 384a, 385a, 396b Board of Trustees v. U.S., 289 U.S. 48 (1933). 9-0, HUGHES, upp. Noted at: 103a Board ofTrustees, State University of New York v. Fox, 492 U.S. 469 (1989). 6-3, SCALIA. Dissents: Blackmun, Brennan, Marshall. 21pp. Noted at: 106a, 282b Bob Jones University v. U.S., 461 U.S. >74 (1983). 8-1, BURGER. Concurrence: Powell. Dissent: Rehnquist. 49pp. Noted at: 202b Boddie v. Connecticut, 401 U.S. 371 (1971). 8-1, HARLAN. Concurrences: Douglas, Brennan. Dissent: Black. 23pp. Noted at: 129b, 148a, 383b, 544a

643

644

T A B L E OF C A S E S 226.

Boerne, City of v. Flores, 117 S.Ct. 2157 (1997). 6-3, KENNEDY. Concurrences: Stevens, Scalia. Dissents: O'Connor, Souter, Breyer. 30pp. Noted at: 95a, 115b, 204a, 537b 226a. Bogan v. Scott-Harris, 118 S.Ct. 966 (1998). 9-0, THOMAS. 8pp. Noted at: 560b 227. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983). 9-0, MARSHALL. Concurrences: Rehnquist, Stevens, O'Connor. 24pp. Noted at: 105b, 377b 228. Boiling v. Sharpe, 347 U.S. 497 (1954). 9-0, WARREN. 3pp. Noted at: 168b 229. Bollman, Ex parte, 8 U.S. (4 Cr.) 75 (1807). 4-1, MARSHALL. Dissent: Johnson. Not voting: Cushing, Chase. 62pp. Noted at: 221a, 264b, 513b, 514a 230. Bond v. Floyd, 385 U.S. 116 (1966). 9-0, WARREN. 22pp. Noted at: 325a, 358a 231. Bonito Boats v. Thunder Craft Boats, 489 U.S. 141 (1989). 9-0, O'CONNOR. 28pp. Noted at: 343a 232. Boos v. Barry, 485 U.S. 312 (1988). 5-3, O'CONNOR. Concurrences: Brennan, Marshall, Rehnquist, White, Blackmun. Dissents: Rehnquist, White, Blackmun. Not voting: Kennedy. 27pp. Noted at: 124b, 350a, 397b, 471a 233. Booth v. Maryland, 482 U.S. 496 (1987). 5-4, POWELL. Dissents: White, Rehnquist, O'Connor, Scalia. 25pp. Noted at: 530a 234. Booth Fisheries v. Industrial Commission, 271 U.S. 208 (1926). 9-0, TAFT. 4pp. Noted at: 517a 235. Bordenkircher v. Hayes, 434 U.S. 357 (1978). 5-4, STEWART. Dissents: Blackmun, Brennan, Marshall, Powell. 16pp. Noted at: 219b, 352a 236. Bôrs v. Preston, 111 U.S. 252 (1884). 9-0, HARLAN. Concurrences: Gray, Miller. 12pp. Noted at: 337a 237. Bose Corporation v. Consumers Union, 466 U.S. 485 (1984). 6-3, STEVENS. Concurrence: Burger. Dissents: White, Rehnquist, O'Connor. 35pp. Noted at: 284b 238. Boston Beer Co. v. Massachusetts, 97 U.S. 25 (1878). 9-0, BRADLEY. 9pp. Noted at: 326b, 354b 239. Bounds v. Smith, 430 U.S. 817 (1977). 6-3, MARSHALL. Concurrence: Powell. Dissents: Burger, Stewart, Burger, Rehnquist. 25pp. Noted at: 132a, 376a 240. Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937). 9-0, BRANDEIS. 8pp. Noted at: 408a 240a. Bousley v. U.S., 118 S.Ct. 1604 (1998). 7-2, 6-3, REHNQUIST. Concurrence: Stevens. Dissents: Scalia, Thomas, Stevens. 14pp. Noted at: 560a 240b. Bowen v. American Hospital Association, 476 U.S. 610 (1986). 5-3, STEVENS. Concurrence: (in judgment): Burger. Dissents: White, Brennan, O'Connor. Not participating: Rehnquist. 56pp. Noted at: 225a 241. Bowen v. Kendrick, 487 U.S. 589 (1988). 5-4, REHNQUIST. Concurrences: O'Connor, Kennedy, Scalia. Dissents: Blackmun, Brennan, Marshall, Stevens. 65pp. Noted at: 166b 242. Bowen v. Roy, 476 U.S. 693 (1986). 5-4, BURGER. Concurrences: Blackmun, Stevens, O'Connor. Dissents: White, O'Connor, Brennan, Marshall. 39pp. Noted at: 202b 243. Bowers v. Hardwick, 478 U.S. 186 (1986). 5-4, WHITE. Concurrences: Burger, Powell. Dissents: Stevens, Blackmun, Brennan, Marshall. 34pp. Noted at: 81a, 200b, 23ia-233a, 300b, 378a, 392a, 394b, 400a, 435b, 461b 244. Bowersock v. Smith, 243 U.S. 29 (1917). 9-0, WHITE. 7pp. Noted at: 265a

TABLE OF C A S E S 245.

Bowles v. Willingham, 321 U.S. 503 (1944). 8-1, DOUGLAS. Dissent: Roberts. 38pp. Noted at: 31a, 229b, 424a 246. Bowman v. Chicago & Northwestern Railway Co., 125 U.S. 465 (1888). 6-3, MATTHEWS. Dissents: Waite, Harlan, Gray. 60pp. Noted at: 251a 247. Bowsher v. Synar, 478 U.S. 714 (1986). 7-2, BURGER. Concurrences: Stevens, Marshall. Dissents: Blackmun, White. 72pp. Noted at: 30b, 138b, 177b, 281b, 457b 248. Boyce Motor Lines, Inc. v. U.S., 342 U.S. 337 (1952). 6-3, CLARK. Dissents: Jackson, Black, Frankfurter. 9pp. Noted at: 29b, 528a 249. Boyd v. U.S., 116 U.S. 616 (1886). 9-0, BRADLEY. Concurrences: Miller, Waite. 26pp. Noted at: 175b, 442b 250. Boyd v. U.S., 142 U.S. 450 (1892). 9-0, HARLAN. 9pp. Noted at: 340b 251. Boyde v. California, 494 U.S. 370 (1990). 5-4, REHNQUIST. Dissents: Marshall, Blackmun, Stevens. 23pp. Noted at: 138a 252. Boyer, Ex parte, 109 U.S. 629 (1884). 9-0, BLATCHFORD. 4pp. Noted at: 32b 253. Boykin v. Alabama, 395 U.S. (1969). 7-2, DOUGLAS. Dissents: Harlan, Black. 12pp. Noted at: 57a 254. Bracy v. Gramley, 117 S.Ct. 1793 (1997). 9-0, REHNQUIST. 8pp. Noted at: 145a 255. Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). 7-2, FIELD. Dissents: Davis, Clifford. 23pp. Noted at: 239a, 263a 256. Bradley v. Public Utilities Commission, 289 U.S. 92 (1933). 9-0, BRANDEIS. 7pp. Noted at: 126a, 512b 257. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873). 8-1, MILLER. Concurrences: Swayne, Field, Bradley. Dissent: Chase. 13pp. Noted at: 379b, 460a 258. Brady v. Maryland, 373 U.S. 83 (1963). 7-2, DOUGLAS. Dissents: Harlan, Black. 12pp. Noted at: 144b, 173b, 394a 259. Brady v. U.S., 397 U.S. 742 (1970). 9-0, WHITE. Concurrences: Brennan, Black. 17pp. Noted at: 57a, 351b, 434a 260. Brandenburg v. Ohio, 395 U.S. 444 (1969). 9-0, PER CURIAM. Concurrences: Black, Douglas. 12pp. Noted at: 62a, 97b, 218b, 235a, 291a, 299b, 325b, 434b, 450b, 490b, 498b 261. Braniff Airways, Inc. v. Nebraska State Board of Equalization & Assessment, 347 U.S. 590 (i954)7-2, REED. Concurrences: Black, Douglas. Dissents: Frankfurter, Jackson. 20pp. Noted at: 391a 262. Branti v. Finkel, 445 U.S. 507 (1980). 6-3, STEVENS. Dissents: Stewart, Powell, Rehnquist. 28pp. Noted at: 64a, 343b 263. Branzburg v. Hayes, 408 U.S. 665 (1972). 5-4, WHITE. Concurrence: Powell. Dissents: Douglas, Stewart, Brennan, Marshall. 87pp. Noted at: 174a, 207a, 279a, 424b 264. Braunfeld v. Brown, 366 U.S. 599 (1961). 6-3, WARREN. Concurrences: Harlan, Brennan, Stewart, Frankfurter. Dissents: Brennan, Stewart, Douglas. 17pp. Noted at: 98b, 202a, 491b 265. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993). 5-4, 6-3, SCALIA. Concurrences: Kennedy, Souter. Dissents: Souter, Stevens, Blackmun, O'Connor. 94pp. Noted at: 274b 266. Breard v. Alexandria, 341 U.S. 622 (1951). 6-3, REED. Dissents: Vinson, Black, Douglas. 29pp. Noted at: 466a 266a. Breard v. Greene, 118 S.Ct. 1352 (1998). 6-3, PER CURIAM. Concurrence: Souter. Dissents: Stevens, Breyer, Ginsburg. 6pp. Noted at: 568b

645

646

T A B L E OF C A S E S 267.

268. 269. 270. 271.

272. 273. 274.

275.

276. 277. 278. 279. 280. 281. 282.

283. 284. 285. 286. 287. 288. 289. 290.

Brecht v. Abrahamson, 507 U.S. 619 (1993). 5-4, REHNQUIST. Concurrence: Stevens. Dissents: White, Blackmun, Souter, O'Connor. 39pp. Noted at: 226a Breed v. Jones, 421 U.S. 519 (1975). 9-0, BURGER. 23pp. Noted at: 273b Breedlove v. Suttles, 302 U.S. 277 (1937). 9-0, BUTLER. 8pp. Noted at: 320a, 359b Breithaupt v. Abram, 352 U.S. 432 (1957). 6-3, CLARK. Dissents: Warren, Douglas, Black. 13pp. Noted at: 70b Brewer v. Williams, 430 U.S. 387 (1977). 5-4, STEWART. Concurrences: Marshall, Powell, Stevens. Dissents: Burger, White, Blackmun, Rehnquist. 55pp. Noted at: 128a Brewster, U.S. v., 408 U.S. 501 (1972). 6-3, BURGER. Dissents: Brennan, Douglas, White. 63pp. Noted at: 73b, 471b Bridges v. California, 314 U.S. 252 (1941). 5-4, BLACK. Dissents: Frankfurter, Stone, Roberts, Byrnes. 53pp. Noted at: 124a, 195b Brignoni-Ponce, U.S. v., 422 U.S. 873 (1975). 9-0, POWELL. Concurrences: Rehnquist, Douglas, Burger, Blackmun, White. 18pp. Noted at: 444b, 448a Brinegar v. U.S., 338 U.S. 160 (1949). 6-3, RUTLEDGE. Concurrence: Burton. Dissents: Jackson, Frankfurter, Murphy. 29pp. Noted at: 380b Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930). 8-0, BRANDEIS. Not voting: McReynolds. 10pp. Noted at: 430b Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837). 8-1, McLEAN. Concurrences: Thompson, Baldwin. Dissent: Story. 94pp. Noted at: 68b Briscoe v. LaHue, 460 U.S. 325 (1983). 6-3, STEVENS. Dissents: Brennan, Marshall, Blackmun. 45pp. Noted at: 239b Britt v. North Carolina, 404 U.S. 226 (1971). 7-2, MARSHALL. Concurrence: Blackmun. Dissents: Douglas, Brennan. 18pp. Noted at: 512a Britton, U.S. v., 108 U.S. 199 (1883). 9-0, WOODS. 9pp. Noted at: 133b Broadrick v. Oklahoma, 413 U.S. 601 (1973). 5-4, WHITE. Dissents: Douglas, Brennan, Stewart, Marshall. 32pp. Noted at: 338a Brockett v. Spokane Arcades, 472 U.S. 491 (1985). 7-2, WHITE. Concurrences: O'Connor, Burger, Rehnquist. Dissents: Brennan, Marshall. 20pp. Noted at: 264a, 328b Broderick's Will, In re, 88 U.S. (21 Wall.) 503 (1875). 7-2, BRADLEY. Concurrence: Swayne. Dissents: Clifford, Davis. 18pp. Noted at: 147b Bromley v. McCaughn, 280 U.S. 124 (1929). 6-3, STONE. Dissents: Sutherland, Van Devanter, Butler. 18pp. Noted at: 55a Brooke v. Norfolk, 277 U.S. 27 (1928). 9-0, HOLMES. 2pp. Noted at: 391b Brooks v. U.S., 267 U.S. 432 (1925). 9-0, TAFT. 8pp. Noted at: 254b Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964). 7-2, BLACK. Dissents: Clark, Harlan. 12pp. Noted at: 197b, 288b Brotherhood of Railway Clerks v. Allen, 373 U.S. 113 (1963). 8-1, BRENNAN. Dissent: Harlan. 18pp. Noted at: 198a Brown v. Allen, 344 U.S. 443 (1953). 6-3, REED. Dissents: Black, Douglas, Frankfurter. 118pp. Noted at: 222a, 223b, 266a Brown v. Board of Education, 347 U.S. 483 (1954). 9-0, WARREN. 14pp. Noted at: 12,16, 36a, J4b~7$b, 85b-86a, 94b, 136b, I44b-I45a, 161a, 168b, 169b, 262b, 266a, 307b, 317a, 353a, 409a, 410a, 452a, 457a, 465b, 468a, 475b, 476a, 495a, 508b, 519b

T A B L E OF C A S E S 291.

Brown v. Board of Education II, 349 U.S. 294 (1955). 9-0, WARREN. 7pp. Noted at: 43a, 75b, 452a 292. Brown v. Elliott, 225 U.S. 392 (1912). 8-1, McKENNA. Concurrences: Lurton, Hughes, Lamar. Dissent: Holmes. 13pp. Noted at: 516a 293. Brown v. Louisiana, 383 U.S. 131 (1966). 5-4, FORTAS. Concurrences: Brennan, White. Dissents: Black, Clark, Harlan, Stewart. 37pp. Noted at: 397b 294. Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827). 6-1, MARSHALL. Dissent: Thompson. 30pp. Noted at: 242a, 313a, 337b, 354b 295. Brown v. Mississippi, 297 U.S. 278 (1936). 9-0, HUGHES. 10pp. Noted at: 49a, 454b 296. Brown v. Ohio, 432 U.S. 1616 (1977). 6-3, POWELL. Concurrences: Brennan, Marshall. Dissents: Blackmun, Burger, Rehnquist. 12pp. Noted at: 151b 297. Brown v. Oklahoma, 408 U.S. 914 (1972). 6-3, PER CURIAM. Concurrence: Powell. Dissents: Burger, Blackmun, Rehnquist. ipp. Noted at: 73a, 188a, 331b 298. Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87 (1982). 6-3, MARSHALL. Concurrences: Blackmun, O'Connor, Rehnquist, Stevens. Dissents: O'Connor, Rehnquist, Stevens. 28pp. Noted at: 79a 299. Brown v. Texas, 443 U.S. 47 (1979). 9-0, BURGER. 8pp. Noted at: 380b, 448a 300. Brown v. U.S., 12 U.S. (8 Cr.) no (1814). 7-0, MARSHALL. 45pp. Noted at: 542b 301. Brown v. Walker, 161 U.S. 591 (1896). 5-4, BROWN. Dissents: Field, Shiras, Gray, White. 38pp. Noted at: 238a, 341a, 352a, 454a 302. Brown, U.S. v., 381 U.S. 437 (1965). 5-4, WARREN. Dissents: White, Clark, Harlan, Stewart. 42pp. Noted at: 67b, 109a 303. Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986). 6-3, MARSHALL. Concurrence: Blackmun. Dissents: Stevens, White, Rehnquist. 30pp. Noted at: 150a 304. Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989). 7-2, BLACKMUN. Concurrences: Brennan, Marshall, O'Connor, Stevens. Dissents: O'Connor, Stevens. 45pp. Noted at: 63b, 245b, 403a 305. Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916). 9-0, WHITE. 26pp. Noted at: 429a, 505a 306. Bruton v. U.S., 391 U.S. 123 (1968). 6-2, BRENNAN. Concurrences: Black, Stewart. Dissents: White, Harlan. Not voting: Marshall. 22pp. Noted at: 113b, 173a, 556b 307. Bryan, U.S. v., 339 U.S. 323 (1950). 5-2, VINSON. Concurrence: Jackson. Dissents: Black, Frankfurter. Not voting: Douglas, Clark. 26pp. Noted at: 408b 307a. Buchanan v. Angelone, 118 S.Ct. 757 (1998). 6-3, REHNQUIST. Concurrence: Scalia. Dissents: Breyer, Stevens, Ginsburg. 10pp. Noted at: 562a 308. Buchanan v. Warley, 245 U.S. 60 (1917). 9-0, DAY. 22pp. Noted at: 169b, 410a, 428b 309. Buck v. Bell, 274 U.S. 200 (1927). 8-1, HOLMES. Dissent: Butler. 8pp. Noted at: 169b, 303b, 426a 310. Buck v. Kuykendall, 267 U.S. 307 (1925). 8-1, BRANDEIS. Dissent: McReynolds. 10pp. Noted at: 126a, 512b 311. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). 9-0, 5-4, STEVENS. Concurrences: Scalia, Kennedy, Rehnquist, White, Souter. Dissents: Kennedy, Rehnquist, White, Souter. 33pp. Noted at: 239b

647

648

TABLE OF C A S E S 312.

313.

314. 315. 316. 317. 318.

319. 320. 321. 322. 323. 324. 325.

326.

327.

328. 329. 330. 331.

332.

333. 334.

Buckley v. Valeo, 424 U.S. 1 (1976). 6-2, 5-3 (various coalitions), PER CURIAM. Dissents: Burger, White, Marshall, Rehnquist, Blackmun. 292pp. Noted at: 51a, 78b, 79a, 162a, 216b, 249b, 356a Bullington v. Missouri, 451 U.S. 430 (1981). 5-4, BLACKMUN. Dissents: Powell, Burger, White, Rehnquist. 23pp. Noted at: 153a, 318b, 558a Bullock v. Carter, 405 U.S. 134 (1972). 7-0, BURGER. Not voting: Rehnquist, Powell. 15pp. Noted at: 545a Bumper v. North Carolina, 391 U.S. 543 (1968). 6-3, STEWART. Dissents: Black, White, Douglas. 20pp. Noted at: 445a Bunting v. Oregon, 243 U.S. 426 (1917). 5-3, McKENNA. Dissents: White, Van Devanter, McReynolds. 14pp. Noted at: 289b Burbank, City of v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973). 5-4, DOUGLAS. Dissents: Rehnquist, Stewart, White, Marshall. 31pp. Noted at: 168b, 363a Burch v. Louisiana, 441 U.S. 130 (1979). 6-3, REHNQUIST. Concurrences: Stevens, Brennan, Stewart, Marshall. Dissents: Brennan, Stewart, Marshall. 11pp. Noted at: 246a, 271b Burdick v. Takushi, 504 U.S. 428 (1992). 6-3, WHITE. Dissents: Kennedy, Blackmun, Stevens. 23pp. Noted at: 546b Burdick v. U.S., 236 U.S. 79 (1915). 8-0, McKENNA. Not voting: McReynolds. 17pp. Noted at: 340b Burford v. Sun Oil Co., 319 U.S. 315 (1943). 5-4, BLACK. Dissents: Frankfurter, Stone, Roberts, Reed. 34pp. Noted at: 23b Burke v. Barnes, 479 U.S. 361 (1987). 6-2, REHNQUIST. Dissents: Stevens, White. Not voting: Scalia. 6pp. Noted at: 309a Burks v. U.S., 437 U.S. 1 (1978). 8-0, BURGER. Not voting: Blackmun. 17pp. Noted at: 152b Burlington Northern Railroad Co. v. Ford, 504 U.S. 648 (1992). 9-0, SOUTER. 7pp. Noted at: 528b Burnham v. Superior Court, 495 U.S. 604 (1990). 9-0, SCALIA. Concurrences: White, Brennan, Marshall, Blackmun, O'Connor, Stevens. 35pp. Noted at: 268a, 283b Burns v. Reed, 500 U.S. 478 (1991). 9-0, 6-3, WHITE. Concurrences: Scalia, Blackmun, Marshall. Dissents: Scalia, Blackmun, Marshall. 29pp. Noted at: 239b Burns v. Wilson, 346 U.S. 137 (1953). 7-2, VINSON. Concurrences: Frankfurter, Jackson, Minton. Dissents: Black, Douglas, 19pp. Noted at: 304b Burns, U.S. v., 79 U.S. 246 (1871). 9-0, FIELD. 8pp. Noted at: 91b Burrell v. McCray, 426 U.S. 471 (1976). 6-3, PER CURIAM. Concurrence: Stevens. Dissents: White, Brennan, Marshall. 5pp. Noted at: 436a Burrow-Giles Lithographic Co. v. Sarony, in U.S. 53 (1884). 9-0, MILLER. 9pp. Noted at: 61b Burson v. Freeman, 504 U.S. 191 (1992). 5-3, BLACKMUN. Concurrences: Kennedy, Scalia. Dissents: Stevens, O'Connor, Souter. Not voting: Thomas. 38pp. Noted at: 397b, 470b Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 6-3, CLARK. Concurrence: Stewart. Dissents: Harlan, Frankfurter, Whittaker. 14pp. Noted at: 478b Bush v. Lucas, 462 U.S. 367 (1983). 9-0, STEVENS. Concurrences: Marshall, Blackmun. 25pp. Noted at: 123a Bush v. Orleans Parish School Board, 364 U.S. 500 (i960). 9-0, PER CURIAM. 2pp. Noted at: 324b

TABLE OF CASES 335.

Bush v. Vera, 517 U.S. 952 (1996). 5-4, O'CONNOR. Concurrences: O'Connor, Kennedy, Thomas, Scalia. Dissents: Stevens, Ginsburg, Breyer, Souter. 125pp. Noted at: 214a 336. Butcher's Union Slaughter-House v. Crescent City Live-Stock Landing Co., m U.S. 746 (1884). 9-0, BRADLEY. 15pp. Noted at: 464b 337. Butler, U.S. v., 297 U.S. 1 (1936). 6-3, ROBERTS. Dissents: Stone, Brandeis, Cardozo. 87pp. Noted at: 41a, 102a, 131a, 212a, 255a, 277b, 472a 338. Butler v. Boston & S. S.S. Co., 130 U.S. 527 (1889). 9-0, BRADLEY. 32pp. Noted at: 32b, 316b 339. Butler v. Goreley, 146 U.S. 303 (1892). 9-0, BLATCHFORD. 12pp. Noted at: 66a 340. Butler v. McKellar, 494 U.S. 407 (1990). 5-4, REHNQUIST. Dissents: Brennan, Marshall, Blackmun, Stevens. 15pp. Noted at: 318b 341. Butler v. Michigan, 352 U.S. 380 (1957). 9-0, FRANKFURTER. Concurrence: Black. 5pp. Noted at: 470a 342. Butler v. Pennsylvania, 51 U.S. (10 How.) 402 (1850). 8-1, DANIEL. Dissent: McLean. 32pp. Noted at: 359a 343. Butler v. Perry, 240 U.S. 328 (1916). 9-0, McREYNOLDS. 6pp. Noted at: n6b, 259b 344. Butterworth v. Smith, 494 U.S. 624 (1990). 9-0, REHNQUIST. Concurrence: Scalia. 8pp. Noted at: 216b 345. Buttfield v. Stranahan, 192 U.S. 470 (1904). 9-0, WHITE. 6pp. Noted at: 103a 346. Butz v. Economou, 438 U.S. 478 (1978). 5-4, WHITE. Concurrences: Rehnquist, Burger, Stewart, Stevens. Dissents: Rehnquist, Burger, Stewart, Stevens. 52pp. Noted at: 239a, 366b 347. Byars v. U.S., 273 U.S. 28 (1927). 9-0, SUTHERLAND. 6pp. Noted at: 463b 348. Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525 (1958). 6-3, BRENNAN. Dissents: Whittaker, Frankfurter, Harlan. 35pp. Noted at: 171b 349. Byrne v. Missouri, 33 U.S. (8 Pet.) 40 (1834). 7-0, MARSHALL. 3pp. Noted at: 68b 350. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994). 6-3, KENNEDY. Concurrence: O'Connor. Dissents: Souter, Rehnquist, Blackmun. 48pp. Noted at: 541b, 542b 351. Caban v. Mohammed, 441 U.S. 380 (1979). 5-4, POWELL. Dissents: Stewart, Stevens, Burger, Rehnquist. 36pp. Noted at: 33b 352. Cabell v. Chavez-Salido, 454 U.S. 432 (1982). 5-4, WHITE. Dissents: Blackmun, Brennan, Marshall, Stevens. 30pp. Noted at: 43a 352a. Cabrales, U.S. v., 118 S.Ct. 1772 (1998). 9-0, GINSBURG. 6pp. Noted at: 569b 353. Cady v. Dombrowski, 413 U.S. 433 (1973). 5-4, REHNQUIST Dissents: Brennan, Douglas, Stewart, Marshall. 32pp. Noted at: 162a 354. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). 5-4, STEWART. Dissents: Brennan, Warren, Black, Douglas. 16pp. Noted at: 31a 355. Cage v. Louisiana, 498 U.S. 39 (1990). 9-0, PER CURIAM. 3pp. Noted at: 413a 356. Calandra, U.S. v., 414 U.S. 338 (1974). 6-3, POWELL. Dissents: Brennan, Douglas, Marshall. 29pp. Noted at: 176a., 217b, 248b 357. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). 6-0, CHASE. Concurrences: Iredell, Paterson. 11pp. Noted at: 174b, 314b, 429a 357a. Calderon v. Ashmus, 118 S.Ct. 1694 (1998). 9-0, REHNQUIST. Concurrence: Breyer. 7pp. Noted at: 555b

649

650

T A B L E OF C A S E S 358.

Caldwell v. Mississippi, 472 U.S. 320 (1985). 6-3, MARSHALL. Concurrence: O'Connor. Dissents: Rehnquist, Burger, White. 33pp. Noted at: 29a, 138a 359. Caldwell v. North Carolina, 187 U.S. 622 (1903). 9-0, SHIRAS. 12pp. Noted at: 502b 360. Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559 (1917). 8-1, McKENNA. Dissent: McReynolds. 9pp. Noted at: 70b 361. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). 7-2, BRENNAN. Concurrences: White, Powell. Dissents: Douglas, Stewart. 33pp. Noted at: 193a, 386a, 401a 362. Califano v. Boles, 443 U.S. 282 (1979). 5-4, REHNQUIST. Dissents: Marshall, Brennan, White, Blackmun. 24pp. Noted at: 545a 363. Califano v. Goldfarb, 430 U.S. 199 (1977). 5-4, BRENNAN. Concurrence: Stevens. Dissents: Rehnquist, Burger, Stewart, Blackmun. 43pp. Noted at: 545b 364. Califano v. Webster, 430 U.S. 313 (1977). 9-0, PER CURIAM. Concurrences: Burger, Stewart, Blackmun, Rehnquist. 9pp. Noted at: 461a 365. California v. Acevedo, 500 U.S. 565 (1991). 6-3, BLACKMUN. Concurrence: Scalia. Dissents: White, Stevens, Marshall. 38pp. Noted at: 444a 366. California v. Byers, 402 U.S. 424 (1971). 5-4, BURGER. Concurrence: Harlan. Dissents: Black, Douglas, Brennan, Marshall. 55pp. Noted at: 454a 367. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). 6-3, WHITE. Dissents: Stevens, O'Connor, Scalia. 26pp. Noted at: 248a 368. California v. Carney, 471 U.S. 386 (1985). 6-3, BURGER. Dissents: Stevens, Brennan, Marshall. 23pp. No ted at: 444a 368a. California v. Deep Sea Research, Inc., 118 S.Ct. 1464 (1998). 9-0, O'CONNOR. Concurrences: Stevens, Kennedy. 11pp. Noted at: 568a 369. California v. Green, 399 U.S. 149 (1970). 8-1, WHITE. Concurrences: Burger, Harlan. Dissent: Brennan. 54pp. Noted at: 114a 370. California v. Greenwood, 486 U.S. 35 (1988). 6-2, WHITE. Dissents: Brennan, Marshall. Not voting: Kennedy. 21pp. Noted at: 447a 371. California v. Hodari D, 499 U.S. 621 (1991). 7-2, SCALIA. Dissents: Stevens, Marshall. 28pp. Noted at: 208a, 446a 372. California v. LaRue, 409 U.S. 109 (1972). 6-3, REHNQUIST. Concurrence: Stewart. Dissents: Douglas, Brennan, Marshall. 31pp. Noted at: 323a 373. California v. Roy, 117 S.Ct. 337 (1996). 9-0, PER CURIAM. Concurrence: Scalia. 4pp. Noted at: 226a 374. California v. Trombetta, 467 U.S. 479 (1984). 9-0, MARSHALL. Concurrence: O'Connor. 13pp. Noted at: 145a 375. California v. U.S., 320 U.S. 577 (1944). 5-4, FRANKFURTER. Dissents: Roberts, Black, Douglas, Murphy. 14pp. Noted at: 315b 376. California Dept. of Corrections v. Morales, 514 U.S. 499 (1995). 7-2, THOMAS. Dissents: Stevens, Souter. 28pp. Noted at: 175a 377. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). 7-0, DOUGLAS. Concurrences: Stewart, Brennan. Not voting: Powell, Rehnquist. 11pp. Noted at: 289a 378. California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980). 8-0, POWELL. Not voting: Brennan. 18pp. Noted at: 256b, 520b 379. California, U.S. v., 297 U.S. 175 (1936). 9-0, STONE. 15pp. Noted at: 237a

T A B L E OF C A S E S 380.

California, U.S. v., 332 U.S. 19 (1947). 7-2, BLACK. Dissents: Frankfurter, Reed. 24pp. Noted at: 43b, 98a 381. Callan v. Wilson, 127 U.S. 540 (1888). 9-0, HARLAN. 17pp. Noted at: 147a 382. Caltex, U.S. v., 344 U.S. 149 (1952). 7-2, VINSON. Dissents: Douglas, Black. 8pp. Noted at: 500a 383. Camara v. Municipal Court, 387 U.S. 523 (1967). 6-3, WHITE. Dissents: Clark, Harlan, Stewart. 18pp. Noted at: 63b, 443b 383a. Campbell v. Louisiana, 118 S.Ct. 1419 (1998). 9-0, 7-2, KENNEDY. Concurrences: Thomas, Scalia. Dissents: Thomas, Scalia. 10pp. Noted at: 384. 385. 386. 387. 388. 389. 390. 391. 392.

393.

394. 395.

396. 397. 398.

399. 400.

401. 402.

567a Caminetti v. U.S., 242 U.S. 470 (1917). 5-3, DAY. Dissents: McKenna, Clark, White. Not voting: McReynolds. 34pp. Noted at: 255a Camps Newfound/Owatonna, Inc. v. Town of Harrison, 117 S.Ct. 1590 (1997). 5-4, STEVENS. Dissents: Scalia, Rehnquist, Thomas, Ginsburg. 41pp. Noted at: 391b Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974). 8-1, STEWART. Dissent: Douglas. 11pp. Noted at: 377a Cantwell v. Connecticut, 310 U.S. 296 (1940). 9-0, ROBERTS. 14pp. Noted at: 97b, 133b, 198b, 201b, 245b Capital Broadcasting Co. v. Mitchell, 405 U.S. 1000 (1972). PER CURIAM, ipp. Noted at: 88a Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). 9-0, BRENNAN. 26pp. Noted at: 257a Capital City Dairy Co. v. Ohio, 183 U.S. 238 (1902). 9-0, WHITE. 12pp. Noted at: 333a Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950). 7-2, BLACK. Dissents: Frankfurter, Jackson. 20pp. Noted at: 504a Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995). 7-2, 4-3-2, SCALIA. Concurrences: Thomas, O'Connor, Souter. Dissents: Stevens, Ginsburg. 66pp. Noted at: 422b Caplin & Drysdale v. U.S., 491 U.S. 617 (1989). 5-4, WHITE. Dissents: Blackmun, Brennan, Marshall, Stevens. 19pp. Noted at: 128b, 193a, 279a Carella v. California, 491 U.S. 263 (1989). 9-0, PER CURIAM. Concurrences: Scalia, Brennan, Marshall, Blackmun. 11pp. Noted at: 371b Carey v. Population Services International, 431 U.S. 678 (1977). 7-2, BRENNAN. Concurrences: White, Powell, Stevens. Dissents: Rehnquist, Burger. 40pp. Noted at: 105b, 123a, 200b, 273a Cardinal Chemical Co. v. Morton International, Inc., 508 U.S. 83 (1993). 9-0, STEVENS. Concurrences: Scalia, Souter. 23pp. Noted at: 81b Carlesi v. New York, 233 U.S. 51 (1914). 9-0, WHITE. 9pp. Noted at: 340b Carlisle v. U.S., 517 U.S. 416 (1996). 7-2, SCALIA. Concurrences: Souter, Ginsburg, Breyer. Dissents: Stevens, Kennedy. 39pp. Noted at: 383b Carll, U.S. v., 105 U.S. 611 (1882). 9-0, GRAY. 3pp. Noted at: 26b Carlson v. Green, 446 U.S. 14 (1980). 7-2, BRENNAN. Concurrences: Powell, Stewart. Dissents: Burger, Rehnquist. 40pp. Noted at: 122b Carlson v. Landon, 342 U.S. 524 (1952). 5-4, REED. Dissents: Black, Frankfurter, Douglas, Burton. 46pp. Noted at: 63a, 174b, 372b Carlton, U.S. v., 512 U.S. 26 (1994). 9-0, BLACKMUN. Concurrences: O'Connor, Scalia. 17pp. Noted at: 429a

651

652

T A B L E OF C A S E S 403. 404. 405.

406. 407. 408. 409. 410.

411. 412.

413. 414. 415. 416.

417. 418. 419.

420. 421.

422. 423. 424. 425. 426.

Carmack, U.S. v., 329 U.S. 230 (1946). 9-0, BURTON. Concurrence: Douglas. 19pp. Noted at: 164b Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937). 5-4, STONE. Dissents: Sutherland, McReynolds, Van Devanter, Butler. 37pp. Noted at: 501b Carolene Products Co., U.S. v., 304 U.S. 144 (1938). 6-1, STONE. Concurrences: Black, Butler. Dissent: McReynolds. Not voting: Cardozo, Reed. 12pp. Noted at: 80a, 144b, 160b, 306a, 370a, 411b, 426a Carrington v. Rash, 380 U.S. 89 (1965). 8-1, STEWART. Dissent: Harlan. 13pp. Noted at: 535b Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175 (1968). 9-0, FORTAS. Concurrence: Black. 11pp. Noted at: 174a, 309b, 374a Carroll v. U.S., 267 U.S. 132 (1925). 9-0, TAFT. Concurrence: McKenna. 44pp. Noted at: 444a, 445a Carstairs v. Cochran, 193 U.S. 10 (1904). 9-0, BREWER. 8pp. Noted at: 391a Carter v. Carter Coal Co., 298 U.S. 238 (1936). 5-4, SUTHERLAND. Dissents: Hughes, Cardozo, Brandeis, Stone. 103pp. Noted at: 140b, 255a, 275a, 506a Carter v. Illinois, 329 U.S. 173 (1946). 5-4, FRANKFURTER. Dissents: Douglas, Murphy, Black, Rutledge. 14pp. Noted at: 48b Carter v. Kentucky, 450 U.S. 288 (1981). 8-1, STEWART. Concurrences: Powell, Stevens, Brennan. Dissent: Rehnquist. 23pp. Noted at: 454b Cary v. Curtis, 44 U.S. (3 How.) 236 (1845). 7-2, DANIEL. Dissents: Story, McLean. 31pp. Noted at: 494a Cash v. Culver, 358 U.S. 633 (1959). 9-0, STEWART. 6pp. Noted at: 128a Caspari v. Bohlen, 510 U.S. 383 (1994). 8-1, O'CONNOR. Dissent: Stevens. 16pp. Noted at: 318b Castaneda v. Partida, 430 U.S. 482 (1977). 5-4, BLACKMUN. Concurrence: Marshall. Dissents: Burger, Powell, Rehnquist, Stewart. 35pp. Noted at: 271a, 483b Causby, U.S. v., 328 U.S. 256 (1946). 7-2, DOUGLAS. Dissents: Black, Burton. 20pp. Noted at: 499a CBS, Inc. v. FCC, 453 U.S. 367 (1981). 6-3, BURGER. Dissents: White, Rehnquist, Stevens. 53pp. Noted at: 25b Centra] Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980). 8-1, POWELL. Concurrences: Brennan, Blackmun, Stevens. Dissent: Rehnquist. 48pp. Noted at: 282b, 291a, 338a, 467a Central Trust Co. v. Garvan, 254 U.S. 554 (1921). 8-0, HOLMES. Not voting: Taft. 16pp. Noted at: 541b Chadwick, U.S. v., 433 U.S. 1 (1977). 7-2, BURGER. Concurrence: Brennan. Dissents: Blackmun, Rehnquist. 24pp. Noted at: 443a, 444a, 446a Chae Chan Ping v. U.S., 130 U.S. 581 (1889). 9-0, FIELD. 30pp. Noted at: 87a, 236a Chambers v. Florida, 309 U.S. 227 (1940). 8-0, BLACK. Not voting: Murphy. 15pp. Noted at: 455a Chambers v. Maroney, 399 U.S. 42 (1970). 8-1, WHITE. Concurrences: Stewart, Harlan. Dissent: Harlan. 24pp. Noted at: 225b, 380b Chambers v. Mississippi, 410 U.S. 284 (1973). 8-1, POWELL. Concurrence: White. Dissent: Rehnquist. 30pp. Noted at: 109b Chambers, U.S. v., 291 U.S. 217 (1934). 9-0, HUGHES. 10pp. Noted at: 162a, 533a

T A B L E OF C A S E S 427.

428. 429. 430. 431. 432. 433. 434.

435. 436. 437. 438. 439. 440.

441. 442. 443.

444. 445. 446. 447. 448. 449. 450. 451.

Champion v. Ames, 188 U.S. 321 (1903). 5-4, HARLAN. Dissents: Fuller, Brewer, Shiras, Peckham. 54pp. Noted at: 254b, 290a, 313b, 322b, 387b, 405a, 506a Chandler v. Florida, 449 U.S. 560 (1981). 8-0, BURGER. Concurrences: Stewart, White. Not voting: Stevens. 29pp. Noted at: 365a Chandler v. Fretag, 348 U.S. 3 (1954). 9-0, WARREN. 8pp. Noted at: 128a Chandler v. Miller, 117 S.Ct. 1295 (1997). 8-1, GINSBURG. Dissent: Rehnquist. 14pp. Noted at: 155b Chandler-Dunbar Co., U.S. v., 219 U.S. 53 (1913). 9-0, LURTON. 29pp. Noted at: 315b Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 9-0, MURPHY. 6pp. Noted at: 72b, 187b, 206a, 284a, 290b Chapman v. California, 386 U.S. 18 (1967). 8-1, BLACK. Dissent: Harlan. 40pp. Noted at: 225b Chapman v. U.S., 365 U.S. 610 (1961). 8-1, WHITTAKER. Concurrences: Frankfurter, Black. Dissent: Clark. 13pp. Noted at: 445a Chapman, In re, 166 U.S. 661 (1897). 9-0, FULLER. Concurrence: Harlan. 12pp. Noted at: 179a Chappell v. Wallace, 462 U.S. 296 (1983). 9-0, BURGER. 10pp. Noted at: 123a, 305a Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420 (1837). 6-1, TANEY. Dissent: Story. 230pp. Noted at: 73b, 326b Charlton v. Kelly, 229 U.S. 447 (1913). 9-0, LURTON. 30pp. Noted at: 515a Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924). 9-0, HOLMES. Concurrence: Brandéis. 9pp. Noted at: 540b Chauffeurs, Teamsters and Helpers Local 391 v. Terry, 494 U.S. 558 (1990). 6-3, MARSHALL. Concurrences: Brennan, Stevens. Dissents: Kennedy, O'Connor, Scalia. 22pp. Noted at: 519a Cheff v. Schnackenberg, 384 U.S. 373 (1966). 7-2, CLARK. Dissents: Douglas, Black. 21pp. Noted at: 123b Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334 (1992). 8-1, WHITE. Dissent: Rehnquist. 19pp. Noted at: 542a Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). 5-2, MARSHALL. Concurrences: Johnson, Baldwin. Dissents: Thompson, Story. 79pp. Noted at: 247a Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). 9-0, STEWART. Concurrence: Douglas. 13pp. Noted at: 430a Chicago v. Sturges, 222 U.S. 313 (1911). 9-0, LURTON. 12pp. Noted at: 359a Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615 (1887). 8-0, WAITE. Not voting: Matthews. 10pp. Noted at: 209a Chicago & Alton Railroad v. Tranbarger, 238 U.S. 67 (1915). 9-0, PITNEY. 12pp. Noted at: 354b Chicago & G.T. Railway Co. v. Wellmann, 143 U.S. 339 (1892). 9-0, BREWER. 8pp. Noted at: 81a Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948). 5-4, JACKSON. Dissents: Douglas, Black, Reed, Rutledge. 16pp. Noted at: 189a Chicago Board ofTrade v. Olsen, 262 U.S. 1 (1923). 7-2, TAFT. Dissents: McReynolds, Sutherland. 43pp. Noted at: 41a Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986). 9-0, STEVENS. Concurrences: White, Burger. 20pp. Noted at: 469b

653

654

T A B L E OF C A S E S 452.

Chicago, Burlington & Quincy Railway Co. v. Chicago, 166 U.S. 226 (1897). 7-1, HARLAN. Dissent: Brewer. Not voting: Fuller. 37pp. Noted at: 157b, 164b, 244b, 245b, 3553 452a. Chicago, City of v. International College of Surgeons, 118 S.Ct. 523 (1997). 7-2, O'CONNOR. Dissents: Ginsburg, Stevens. 20pp. Noted at: 563a 453. Chicago, M. & S.P. Railway Co. v. Minnesota, 134 U.S. 418 (1890). 6-3, BLATCHFORD. Dissents: Bradley, Gray, Lamar. 16pp. Noted at: 160a, 411a 454. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1940). 9-0, HUGHES. 8pp. Noted at: 427b 455. Chimel v. California, 395 U.S. 752 (1969). 7-2, STEWART. Dissents: White, Black. 31pp. Noted at: 446a Chinese Exclusion Case, see Chae Chan Ping v. U.S. 456. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). 6-0, IREDELL. 61pp. Noted at: 163b, 362b, 468a, 480b 457. Christoffel v. U.S., 338 U.S. 84 (1949). 5-4, MURPHY. Dissents: Jackson, Vinson, Reed, Burton. 12pp. Noted at: 408b, 436b 458. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, City of, 508 U.S. 520 (1993). 9-0, KENNEDY. Concurrences: Scalia, Rehnquist, Souter, Blackmun, O'Connor. 61pp. Noted at: 203a 459. Cincinnati, City of v. Discovery Network, Inc., 507 U.S. 410 (1993). 6-3, STEVENS. Concurrence: Blackmun. Dissents: Rehnquist, White, Thomas. 37pp. Noted at: 106a 460. Cincinnati Soap Co. v. U.S., 301 U.S. 308 (1937). 9-0, SUTHERLAND. 16pp. Noted at: 55b 461. Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). 9-0, 7-2, 6-3 (various coalitions), STEVENS. Concurrences: Blackmun, Kennedy, Souter, Scalia, Thomas. Dissents: Blackmun, Kennedy, Souter, Scalia, Thomas. 53pp. Noted at: 363b 462. Cipriano v. Houma, 395 U.S. 701 (1969). 9-0, PER CURIAM. Concurrences: Black, Stewart, Harlan. 5pp. Noted at: 390a, 536b 463. Citizen Publishing Co. v. U.S., 394 U.S. 131 (1969). 8-1, DOUGLAS. Dissent: Stewart. 15pp. Noted at: 207a 464. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1980). 8-1, BURGER. Concurrences: Rehnquist, Marshall, Blackmun, O'Connor. Dissent: White. 22pp. Noted at: 79a, 197a 465. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). 6-3, STEVENS. Dissents: Brennan, Marshall, Blackmun. 43pp. Noted at: 105b, 338a, 338b, 394b, 398a, 511a, 531b, 552b City of—, see name of the city Civil Rights Cases, see Singleton, U.S. v. 466. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). 7-2, WHITE. Concurrence: Burger. Dissents: Marshall, Brennan. 29pp. Noted at: 497a 467. Clark v. Jeter, 486 U.S. 456 (1988). 9-0, O'CONNOR. 9pp. Noted at: 236a, 484a 468. Clark v. Poor, 274 U.S. 554 (1927). 9-0, BRANDEIS. 5pp. Noted at: 504a 469. Classic, U.S. v., 313 U.S. 299 (1941). 6-3, STONE. Dissents: Douglas, Black, Murphy. 43pp. Noted at: 535a 470. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). 6-3, WHITE. Concurrences: Stevens, Burger, Marshall, Brennan, Blackmun. Dissents: Marshall, Brennan, Blackmun. 46pp. Noted at: 145b, 303b, 412a, 553b 471. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). 7-2, STEWART. Concurrences: Douglas, Powell. Dissents: Rehnquist, Burger. 29pp. Noted at: 370a, 461a

T A B L E OF C A S E S 472.

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). 7-2, WHITE. Concurrences: Marshall, Brennan. Dissent: Rehnquist. 31pp. Noted at: 69a, 385b, 396b 473. Clinton v. Jones, 117 S.Ct. 1636 (1997). 9-0, STEVENS. Concurrence: Breyer. 24pp. Noted at: 366b, 436b 473a. Clinton v. New York, 118 S.Ct. 2091 (1998). 6-3, STEVENS. Concurrence: Scalia. Dissents: Scalia, O'Connor, Breyer. 41pp. Noted at: 287a, 529b, 561b 474. Clyatt v. U.S., 197 U.S. 207 (1905). 9-0, BREWER. Concurrence: McKenna. Dissent: Harlan. 17pp. Noted at: 259b 475. Clyde Mallory Lines v. Alabama, 296 U.S. 261 (1935). 9-0, STONE. 8pp. Noted at: 511a 476. Coates v. City of Cincinnati, 402 U.S. 611 (1971). 6-3, STEWART. Concurrence: Black. Dissents: White, Burger, Blackmun. 9pp. Noted at: 394a, 526b, 527a 477. Codd v. Velger, 429 U.S. 624 (1977). 5-4, PER CURIAM. Concurrence: Blackmun. Dissents: Brennan, Stevens, Marshall, Stewart. 18pp. Noted at: 384b 478. Coe v. Coe, 334 U.S. 378 (1948). 7-2, VINSON. Dissents: Frankfurter, Murphy. 7pp. Noted at: 148a 479. Coe v. Errol, 116 U.S. 517 (1886). 9-0, BRADLEY. 13pp. Noted at: 502b 480. Cohen v. Beneficial Loan Corp. 337 U.S. 541 (1941). 6-3, JACKSON. Dissents: Douglas, Frankfurter, Rutledge. 22pp. Noted at: 129b 481. Cohen v. California, 403 U.S. 15 (1971). 5-4, HARLAN. Dissents: Blackmun, Burger, Black, White. 13pp. Noted at: 73a, 80a, 188a, 331b, 377b, 394a 482. Cohen v. Cowles Media Co., 501 U.S. 663 (1991). 5-4, WHITE. Dissents: Blackmun, Marshall, Souter, O'Connor. 17pp. Noted at: 207a 483. Cohen Grocery, U.S. v., 255 U.S. 81 (1921). 8-0, WHITE. Concurrence: Pitney, Brandeis. Not voting: Day. 17pp. Noted at: 528a 484. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). 7-0, MARSHALL. 183pp. Noted at: 264a, 267b-268a, 480b, 495a 485. Coker v. Georgia, 433 U.S. 584 (1977). 6-3, WHITE. Concurrences: Brennan, Marshall, Powell. Dissents: Powell, Burger, Rehnquist. 39pp. Noted at: 137b, 392a 486. Cole v. Richardson, 405 U.S. 676 (1972). 4-3, BURGER. Concurrences: Stewart, White. Dissents: Douglas, Marshall, Brennan. Not voting: Powell, Rehnquist. 22pp. Noted at: 292a 487. Cole v. Young, 351 U.S. 365 (1956). 6-3, HARLAN. Dissents: Clark, Reed, Minton. 34pp. Noted at: 292b 488. Colegrove v. Green, 328 U.S. 549 (1946). 6-3, FRANKFURTER. Concurrences: Reed, Burton. Dissents: Black, Douglas, Murphy. 25pp. Noted at: 53a, 272b, 754 489. Coleman v. Alabama, 399 U.S. 1 (1970). 6-3, BRENNAN. Concurrences: Douglas, Black, White, Harlan. Dissents: Harlan, Burger, Stewart. 29pp. Noted at: 128a 490. Coleman v. Miller, 307 U.S. 433 (1939). 7-2, HUGHES. Concurrences: Black, Roberts, Frankfurter, Douglas. Dissents: Butler, McReynolds. 42pp. Noted at: 45a, 358a 491. Coleman v. Thompson, 501 U.S. 722 (1991). 6-3, O'CONNOR. Concurrence: White. Dissents: Blackmun, Marshall, Stevens. 53pp. Noted at: 223a, 249a

655

656

T A B L E OF C A S E S 492.

493. 494. 495. 496. 497. 498. 499. 500.

501.

502.

503.

504.

505. 506. 507.

508.

509. 510.

511. 512.

513.

Colgate v. Harvey, 296 U.S. 404 (1935). 6-3, SUTHERLAND. Concurrences: Stone, Brandeis, Cardozo. Dissents: Stone, Brandeis, Cardozo. 47pp. Noted at: 380a Colgrove v. Battin, 413 U.S. 149 (1973). 5-4, BRENNAN. Dissents: Douglas, Powell, Marshall, Stewart. 39pp. Noted at: 271a, 271b Collector v. Day, 78 U.S. (11 Wall.) 113 (1871). 8-i, NELSON. Dissent: Bradley. 15pp. Noted at: 185a, 237a, 505a, 505b Collins v. Hardyman, 341 U.S. 651 (1951). 6-3, JACKSON. Dissents: Burton, Black, Douglas. 14pp. Noted at: 94b Collins v. Harker Heights, City of, 503 U.S. 115 (1992). 9-0, STEVENS. 16pp. Noted at: 215a Collins v. New Hampshire, 171 U.S. 30 (1898). 6-2, PECKHAM. Dissents: Harlan, Gray. 5pp. Noted at: 333b Collins v. Youngblood, 497 U.S. 37 (1990). 9-0, REHNQUIST. Concurrences: Stevens, Brennan, Marshall. 15pp. Noted at: 175a Colonnade Catering Corp. v. U.S., 397 U.S. 72 (1970). 6-3, DOUGLAS. Dissents: Burger, Black, Stewart. 10pp. Noted at: 443b Colorado v. Bertine, 479 U.S. 367 (1987). 7-2, REHNQUIST. Concurrences: Blackmun, Powell, O'Connor. Dissents: Powell, Brennan. 21pp. Noted at: 444a Colorado v. Connelly, 479 U.S. 157 (1986). 6-3, REHNQUIST. Concurrences: Blackmun, Stevens. Dissents: Stevens, Brennan, Marshall. 32pp. Noted at: 413b Colorado Republican Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996). 7-2, 6-3 (various coalitions), BREYER. Concurrences: Kennedy, Rehnquist, Scalia, Thomas. Dissents: Kennedy, Rehnquist, Scalia, Thomas, Stevens, Ginsburg. 46pp. Noted at: 79a Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94 (1973). 7-2, BURGER. Concurrences: Stewart, White, Blackmun, Powell, Douglas. Dissents: Brennan, Marshall. 110pp. Noted at: 23b Columbus Board of Education v. Penick, 443 U.S. 449 (1979). 7-2, WHITE. Concurrences: Burger, Stewart. Dissents: Powell, Rehnquist. 76pp. Noted at: 137a Commercial Trust Co. v. Miller, 262 U.S. 51 (1923). 9-0, McKENNA. 7pp. Noted at: 358a Commissioner of Patents v. Chakrabarty, 444 U.S. 303 (1980). 5-4, BURGER. Dissents: Brennan, White, Marshall, Powell. 19pp. Noted at: 547b Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973). 6-3, POWELL. Concurrences: Burger, Rehnquist. Dissents: Burger, White, Rehnquist. 58pp. Noted at: 438b, 519b Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980). 6-3, WHITE. Concurrence: Stevens. Dissents: Blackmun, Brennan, Marshall. 26pp. Noted at: 438b Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986). 7-2, O'CONNOR. Dissents: Brennan, Marshall. 35pp. Noted at: 517a Communications Association v. Douds, 339 U.S. 382 (1950). 4-2, 3-3 (various coalitions), VINSON. Concurrences: Frankfurter, Jackson. Dissents: Frankfurter, Jackson, Black. Not voting: Douglas, Clark, Minton. 72pp. Noted at: 219a Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961). 5-4, FRANKFURTER. Dissents: Warren, Black, Douglas, Brennan. 201pp. Noted at: 107a, 302a Community Communications Co. v. City of Boulder, 455 U.S. 40 (1982). 6-3, BRENNAN. Concurrence: Stevens. Dissents: Rehnquist, Burger, O'Connor. 32pp. Noted at: 358b Compco Corp. v. DayBrite Lighting, Inc., 376 U.S. 234 (1964). 9-0, BLACK. Concurrence: Harlan. 6pp. Noted at: 143a, 363b

T A B L E OF C A S E S 514. 515.

516. 517. 518. 519.

520. 521. 522.

523. 524. 525.

526. 527. 528. 529.

530.

531. 532. 533. 534. 535. 536. 537.

Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977). 9-0, BLACKMUN. 16pp. Noted at: 503a Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602 (1993). 9-0, SOUTER. Concurrences: O'Connor, Thomas. 54pp. Noted at: 121b, 500a Connally v. General Construction Co., 269 U.S. 385 (1926). 9-0, SUTHERLAND. Concurrences: Holmes, Brandeis. 10pp. Noted at: 181b, 527a Connally v. Georgia, 429 U.S. 245 (1977). 9-0, PER CURIAM. 7pp. Noted at: 446b Connecticut v. Doehr, 501 U.S. 1 (1991). 9-0, WHITE. Concurrences: Rehnquist, Blackmun, Scalia. 31pp. Noted at: 425a Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981). 7-2, BURGER. Concurrences: Brennan, White. Dissents: Stevens, Marshall. 15pp. Noted at: 286b,376a Connecticut Mutual Life Insurance Co. v. Moore, 333 U.S. 541 (1948). 6-3, REED. Dissents: Frankfurter, Jackson, Douglas. 24pp. Noted at: 389b Connick v. Myers, 461 U.S. 138 (1983). 5-4, WHITE. Dissents: Brennan, Marshall, Blackmun, Stevens. 32pp. Noted at: 395b Consolidated Edison v. Public Service Commission, 447 U.S. 530 (1980). 7-2, POWELL. Concurrences: Marshall, Stevens. Dissents: Blackmun, Rehnquist. 27pp. Noted at: 377b Constantine, U.S. v., 296 U.S. 287 (1935). 6-3, ROBERTS. Dissents: Cardozo, Brandeis, Stone. 13pp. Noted at: 330a, 504b Continental Baking Co. v. Woodring, 286 U.S. 352 (1932). 9-0, HUGHES. 22pp. Noted at: 312a Continental Illinois National Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry„ 294 U.S. 648 (1935). 8-0, SUTHERLAND. Not voting: Brandeis. 38pp. Noted at: 66a Cook v. Hart, 146 U.S. 183 (1892). 9-0, BROWN. 13pp. Noted at: 180a Cook v. U.S., 138 U.S. 157 (1891). 9-0, HARLAN. 29pp. Noted at: 516a Cook v. U.S., 288 U.S. 102 (1933). 6-2, BRANDEIS. Dissents: Sutherland, Butler. Not voting: Van Devanter. 21pp. Noted at: 514b Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. (12 How.) 299 (1851). 7-2, CURTIS. Concurrence: Daniel. Dissents; McLean, Wayne. 22pp. Noted at: 126a, 148b, 149a, 511a Coolidge v. New Hampshire, 403 U.S. 443 (1971). 9-0, 5-4, STEWART. Concurrences: Harlan, Blackmun, Burger, Black, White. Dissents: Burger, Black, White, Blackmun, 85pp. Noted at: 449a Cooper v. Aaron, 358 U.S. 1 (1958). 9-0, PER CURIAM. Concurrence: Frankfurter. 26pp. Noted at: 266a, 324b, 492b Cooper v. Newell, 173 U.S. 555 (1899). 9-0, FULLER. 18pp. Noted at: 209a Cooper v. Oklahoma, 517 U.S. 348 (1996). 9-0, STEVENS. 22pp. Noted at: 388b, 515b Cooper v. Pate, 378 U.S. 546 (1964). 9-0, PER CURIAM. 2pp. Noted at: 376b Cooper, U.S. v., 4 U.S. (4 Dall.) 341 (1800). 6-0, CHASE. 2pp. Noted at: 57b Coppage v. Kansas, 236 U.S. 1 (1915). 6-3, PITNEY. Dissents: Holmes, Day, Hughes. 41pp. Noted at: 199b, 465b, 549b, Corfield v. Coryell, 6 F. Cas. 546 (No. 3230) (C.C.E.D. Pa. 1823). WASHINGTON (sitting on circuit). 10pp. Noted at: 210b, 379b

657

658

T A B L E OF C A S E S 538. 539. 540. 541. 542.

543.

Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788 (1985). 6-3, O'CONNOR. Dissents: Blackmun, Brennan, Stevens. 49pp. Noted at: 398a Cornell v. Coyne, 192 U.S. 418 (1904). 7-2, BREWER. Dissents: Fuller, Harlan. 23pp. Noted at: 179b Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987). 9-0, WHITE. Concurrences: Brennan, Marshall, Blackmun, O'Connor. 22pp. Noted at: 165b Cors, U.S. v., 337 U.S. 325 (1949). 5-4, DOUGLAS. Dissents: Frankfurter, Vinson, Jackson, Burton. 21pp. Noted at: 271b Cortez, U.S. v., 446 U.S. 544 (1980). 5-4, STEWART. Concurrences: Powell, Burger, Blackmun. Dissents: White, Brennan, Marshall, Stevens. 34pp. Noted at: 448a Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901). 9-0, BREWER. Concurrences: Harlan, Gray, Brown, Shiras, White, McKenna. 36pp. Noted at: 35b

544.

Counselman v. Hitchcock, 142 U.S. 547 (1892). 9-0, BLATCHFORD. 40pp. Noted at: 238a, 453b 545. Cousins v. Wigoda, 419 U.S. 477 (1975). 8-1, BRENNAN. Concurrences: Rehnquist, Burger, Stewart, Powell. Dissent: Powell. 21pp. Noted at: 355b 546. Cox v. Louisiana I, 379 U.S. 536 (1965). 5-4, GOLDBERG. Dissents: Black, Clark, White, Harlan. 16pp. Noted at: 91a, 141b 547. Cox v. Louisiana II, 379 U.S. 559 (1965). 5-4, GOLDBERG. Dissents: Black, Clark, White, Harlan. 28pp. Noted at: 91a, 167a, 192b, 196b 548. Cox v. New Hampshire, 312 U.S. 569 (1941). 9-0, HUGHES. 9pp. Noted at: 141b, 347b 549. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). 8-1, WHITE. Concurrences: Powell, Burger, Douglas. Dissent: Rehnquist. 44pp. Noted at: 207a, 216a, 377b, 431b 550. Coy v. Iowa, 487 U.S. 1012 (1988). 6-2, SCALLA. Concurrences: O'Connor, White. Dissents: Blackmun, Rehnquist. Not voting: Kennedy. 24pp. Noted at: 114a 551. Coyle v. Smith, 221 U.S. 559 (1911). 7-2, LURTON. Dissents: McKenna, Holmes. 20pp. Noted at: 33a, 476b 552. Craig v. Boren, 429 U.S. 190 (1976). 7-2, BRENNAN. Concurrences: Powell, Stevens, Stewart, Blackmun. Dissents: Burger, Rehnquist. 22pp. Noted at: 96a, 170a, 256b, 460b, 484a, 486b, 487a 553. Craig v. Harney, 331 U.S. 367 (1947). 6-3, DOUGLAS. Dissents: Jackson, Frankfurter, Vinson. 30pp. Noted at: 124a, 195b 554. Craig v. Missouri, 29 U.S. (4 Pet.) 410 (1830). 4-3, MARSHALL. Dissents: Thompson, Johnson, McLean. 55pp. Noted at: 68b 555. Cramer v. U.S., 325 U.S. 1 (1945). 5-4, JACKSON. Dissents: Douglas, Stone, Black, Reed. 76pp. Noted at: 514a 556. Cramp v. Board of Public Instruction, 368 U.S. 278 (1961). 9-0, STEWART. Concurrences: Black, Douglas. 10pp. Noted at: 109a, 291b 557. Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868). 6-2, MILLER. Dissents: Clifford, Chase. 15pp. Noted at: 513a 558. Crane v. Kentucky, 476 U.S. 683 (1986). 9-0, O'CONNOR. 9pp. Noted at: 492a 559. Crawford v. Los Angeles Board of Education, 458 U.S. 527 (1982). 8-1, POWELL. Concurrences: Blackmun, Brennan. Dissent: Marshall. 13pp. Noted at: 76b 559a. Crawford-El v. Britton, 118 S.Ct. 1584 (1998). 5-4, STEVENS. Concurrence: Kennedy. Dissents: Rehnquist, O'Connor, Scalia, Thomas. 21pp. Noted at: 561a

TABLE OF CASES 560. 561.

562.

563. 564. 565.

566.

567.

568. 569. 570.

571. 572. 573.

574.

575. 576. 577.

578.

579. 580. 581.

Cream of Wheat Co. v. County of Grand Forks, 253 U.S. 325 (1920). 9-0, BRANDEIS. 6pp. Noted at: 391b Crews, U.S. v., 445 U.S. 463 (1980). 9-0, BRENNAN. Concurrences: Powell, Blackmun, White, Burger, Rehnquist. 17pp. Noted at: 208a Crist v. Bretz, 437 U.S. 28 (1978). 6-3, STEWART. Concurrence: Blackmun. Dissents: Burger, Powell, Rehnquist. 26pp. Noted at: 152b Crowell v. Benson, 285 U.S. 22 (1932). 6-3, HUGHES. Dissents: Brandeis, Stone, Roberts. 73pp. Noted at: 270a, 378b, 517a Cruikshank, U.S. v., 92 U.S. 542 (1875). 8-1, WAITE. Dissent: Clifford. 28pp. Noted at: 26b, 94a, 196b Cruz v. Beto, 405 U.S. 319 (1972). 8-1, PER CURIAM. Concurrences: Blackmun, Burger. Dissent: Rehnquist. 11pp. Noted at: 375a, 376b Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). 5-4, REHNQUIST. Concurrences: O'Connor, Scalia. Dissents: Brennan, Marshall, Blackmun, Stevens. 42pp. Noted at: 59b, 301b, 389a, 432a CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987). 6-3, POWELL. Concurrence: Scalia. Dissents: White, Blackmun, Stevens. 32pp. Noted at: 499a Culombe v. Connecticut, 367 U.S. 568 (1961). 6-3, FRANKFURTER. Dissents: Harlan, Clark, Whittaker. 75pp. Noted at: 455a Cummings v. Missouri, 71 U.S. 277 (4 Wall.) 277 (1867). 5-4, FIELD. Dissents: Chase, Swayne, Davis, Miller. 56pp. Noted at: 325b, 508b Cupp v. Murphy, 412 U.S. 291 (1973). 7-2, STEWART. Concurrences: White, Marshall, Blackmun, Burger, Powell, Rehnquist. Dissents: Douglas, Brennan. 15pp. Noted at: 445a Curran v. Arkansas, 56 U.S. (15 How.) 304 (1854). 6-3, CURTIS. Dissents: Catron, Daniel, Nelson. 19pp. Noted at: 68b Curtis v. Loether, 415 U.S. 189 (1974). 9-0, MARSHALL. 10pp. Noted at: 518b Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). 5-4, HARLAN. Concurrences: Warren, Black, Douglas, Brennan, White. Dissents: Black, Brennan, Douglas, White. 45pp. Noted at: 284b, 397a Curtiss-Wright Export Corp., U.S. v., 299 U.S. 304 (1936). 7-1, SUTHERLAND. Dissent: McReynolds. Not voting: Stone. 30pp. Noted at: 140b, 192b, 241b, 514b, 540a Custis v. U.S., 511 U.S. 485 (1994). 6-3, REHNQUIST. Dissents: Souter, Blackmun, Stevens. 28pp. Noted at: 456b Cuyler v. Sullivan, 446 U.S. 335 (1980). 8-1, POWELL. Concurrences: Brennan, Marshall. Dissent: Marshall. 24pp. Noted at: 128a, 248b D.H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174 (1972). 8-0, BLACKMUN. Concurrences: Douglas, Marshall, Rehnquist. Not voting: Powell, Rehnquist. 17pp. Noted at: 434b Dairy Queen v. Wood, 369 U.S. 469 (1962). 4-3, BLACK. Concurrences: Stewart, Harlan, Douglas. Not voting: Frankfurter, White. 13pp. Noted at: 519a Dalton v. Specter, 511 U.S. 462 (1994). 9-0, REHNQUIST. Concurrences: Blackmun, Souter. 14pp. Noted at: 272a Dameron v. Brodhead, 345 U.S. 322 (1953). 7-2, REED. Dissents: Douglas, Black. 8pp. Noted at: 56b Dames & Moore v. Regan, 453 U.S. 654 (1981). 9-0, REHNQUIST. Concurrences: Stevens, Powell. 37pp. Noted at: 176b

659

660

T A B L E OF C A S E S 582. 583. 584. 585. 586. 587.

588. 589.

590. 591. 592. 593. 594. 595. 596. 597. 598. 599. 600. 601. 602. 603. 604. 605. 606.

Dandridge v. Williams, 397 U.S. 471 (1970). 6-3, STEWART. Dissents: Douglas, Marshall, Brennan. 58pp. Noted at: 412a, 544b, 545a Dane v. Jackson, 256 U.S. 589 (1921). 9-0, CLARKE. 12pp. Noted at: 501b Daniels v. Williams, 474 U.S. 327 (1986). 9-0, REHNQUIST. Concurrences: Blackmun, Stevens. 9pp. Noted at: 142b, 376b, 384a, 423b Darby Lumber Co., U.S. v., 312 U.S. 100 (1941). 9-0, STONE. 26pp. Noted at: 86b, 100a, 166a, 275a, 313b, 322b, 387b, 483a, 506a Darrington v. Bank of Alabama, 54 U.S. (13 How.) 12 (1851). 8-i, McLEAN. Dissent: Grier. 7pp. Noted at: 68b Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). 6-1, MARSHALL. Concurrences: Johnson, Livingston, Washington, Story. Dissent: Duvall. 198pp. Noted at: 326a, 529a Darusmont, U.S. v., 449 U.S. 292 (1981). 9-0, PER CURIAM. 10pp. Noted at: 429a Davidson v. Cannon, 474 U.S. 344 (1986). 6-3, REHNQUIST. Concurrence: Stevens. Dissents: Brennan, Blackmun, Marshall. 15pp. Noted at: 142b, 376b, 384a, 423b Davidson v. New Orleans, 96 U.S. 97 (1878). 9-0, MILLER. Concurrence: Bradley. 11pp. Noted at: 157a Davis v. Bandemer, 478 U.S. 109 (1986). 9-0, WHITE. Concurrences: Burger, O'Connor, Rehnquist, Powell, Stevens. 76pp. Noted at: 54b Davis v. Beason, 133 U.S. 333 (1890). 9-0, FIELD. 16pp. Noted at: 201b, 300b, 325b, 359b Davis v. Mann, 377 U.S. 678 (1964). 8-i, WARREN. Concurrences: Clark, Stewart. Dissent: Harlan. 16pp. Noted at: 53b Davis v. Massachusetts, 167 U.S. 43 (1897). 9-0, WHITE. 6pp. Noted at: 397a Davis v. Michigan Dept. of Transportation, 489 U.S. 803 (1989). 8-1, KENNEDY. Dissent: Stevens. 26pp. Noted at: 386b, 430a, 493a Davis v. Mississippi, 394 U.S. 721 (1969). 7-2, BRENNAN. Dissents: Stewart, Black. 10pp. Noted at: 445a Davis v. Passman, 442 U.S. 228 (1979). 5-4, BRENNAN. Dissents: Burger, Powell, Rehnquist, Stewart. 27pp. Noted at: 122b, 239a Davis v. U.S., 512 U.S. 452 (1994). 9-0, 5-4, O'CONNOR. Concurrences: Scalia, Souter. 25pp. Noted at: 455b Dawson v. Delaware, 503 U.S. 159 (1992). 8-1, REHNQUIST. Concurrence: Blackmun. Dissent: Thomas. 22pp. Noted at: 219b Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952). 8-1, DOUGLAS. Concurrence: Frankfurter. Dissent: Jackson. 8pp. Noted at: 166a Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979). 5-4, WHITE. Dissents: Rehnquist, Powell, Stewart, Burger. 19pp. Noted at: 452b De Lima v. Bidwell, 182 U.S. 1 (1901). 5-4, BROWN. Dissents: Gray, McKenna, Shiras, White. 220pp. Noted at: 508a De Veau v. Braisted, 363 U.S. 144 (i960). 6-3, FRANKFURTER. Dissents: Douglas, Warren, Black. 22pp. Noted at: 174b Dean Milk Co. v. Madison, 340 U.S. 349 (1951). 6-3, CLARK. Dissents: Black, Douglas, Minton. 11pp. Noted at: 150a, 192a, 282b, 306a Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985). 9-0, MARSHALL. Concurrence: White. 13pp. Noted at: 344b DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568 (1988). 8-0, WHITE. Concurrences: O'Connor, Scalia. Not voting: Kennedy. 21pp. Noted at: 72a, 121b, 349b

TABLE OF CASES 607. 608. 609. 610. 611. 612. 613. 614. 615. 616. 617. 618. 619.

620.

621.

622. 623. 624. 625. 626. 627. 628. 629. 630.

Debs v. U.S., 249 U.S. 211 (1919). 9-0, HOLMES, ipp. Noted at: 96b, 490a Debs, In re, 158 U.S. 564 (1895). 9-0, BREWER. 37pp. Noted at: 367b DeFunis v. Odegaard, 416 U.S. 312 (1974). 5-4, PER CURIAM. Dissents: Douglas, Brennan, White, Marshall. 38pp. Noted at: 81a, 309a Degen v. U.S., 517 U.S. 820 (1996). 9-0, KENNEDY. 9pp. Noted at: 193b DeGregory v. New Hampshire Attorney General, 383 U.S. 825 (1966). 6-3, DOUGLAS. Dissents: Harlan, Stewart, White. 5pp. Noted at: 109a DeGroot v. U.S., 72 U.S. (5 Wall.) 419 (1867). 8-0, MILLER. 15pp. Noted at: 58a, 423a Dejonge v. Oregon, 299 U.S. 353 (1937). 8-0, HUGHES. Not voting: Stone. 12pp. Noted at: 97b, 196b, 219a, 245b, 498a Delaware v. Van Arsdall, 475 U.S. 673 (1986). 7-2, REHNQUIST. Concurrence: White. Dissents: Marshall, Stevens. 35pp. Noted at: 225b Delo v. Blair, 509 U.S. 823 (1993). 6-3, PER CURIAM. Dissents: Blackmun, Stevens, Souter. 3pp. Noted at: 224a Delo v. Lashley, 507 U.S. 272 (1993). 7-2, PER CURIAM. Dissents: Stevens, Blackmun. 10pp. Noted at: 308b, 371a, 371b Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1981). 6-3, STEWART. Dissents: Powell, Blackmun, Rehnquist. 31pp. Noted at: 356a Demos v. Storrie, 507 U.S. 290 (1993). 7-2, PER CURIAM. Dissents: Stevens, Blackmun. 2pp. Noted at: 243a Dennis v. U.S., 341 U.S. 494 (1951). 6-2, VINSON. Concurrences: Frankfurter, Jackson. Dissents: Black, Douglas. Not voting: Clark. 99pp. Noted at: 62a, 97b, 109a, 299b, 302a, 412b, 490b Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, 518 U.S. 727 (1996). 7-2, 6-3, 5-4, BREYER. Concurrences: Stevens, Souter, O'Connor, Kennedy, Ginsburg, Thomas, Rehnquist, Scalia. Dissents: O'Connor, Kennedy, Ginsburg, Thomas, Rehnquist, Scalia. 112pp. Noted at: 77b Department of Agriculture v. Murry, 413 U.S. 508 (1973). 5-4, DOUGLAS. Concurrences: Marshall, Stewart. Dissents: Blackmun, Rehnquist, Burger, Powell. 19pp. Noted at: 370a Department of Revenue of Montana v. Ranch, 511 U.S. 767 (1994). 5-4, STEVENS. Dissents: Rehnquist, O'Connor, Scalia, Thomas. 42pp. Noted at: 151b, 402a DeShaney v. Winnebago County Social Services Dept., 489 U.S. 189 (1989). 6-3, REHNQUIST. Dissents: Brennan, Marshall, Blackmun. 24pp. Noted at: 215a, 215b, 273a Desist v. U.S., 394 U.S. 244 (1969). 6-3, STEWART. Dissents: Douglas, Harlan, Fortas. 26pp. Noted at: 318a Detroit Timber Lumber Co., U.S. v., 200 U.S. 321 (1906). 7-2, BREWER. Dissents: Harlan, McKenna. 20pp. Noted at: 47a Detroit, City of v. Osborne, 135 U.S. 492 (1890). 9-0, BREWER. 9pp. Noted at: 379a Di Re, U.S. v., 332 U.S. 581 (1948). 7-2, JACKSON. Dissents: Vinson, Black. 15pp. Noted at: 380b, 444a DiFrancesco, U.S. v., 449 U.S. 117 (1980). 5-4, BLACKMUN. Dissents: Brennan, White, Marshall, Stevens. 37pp. Noted at: 153a, 456a Dillon v. Gloss, 256 U.S. 368 (1921). 9-0, VAN DEVANTER. 10pp. Noted at: 45a Dionisio, U.S. v., 410 U.S. 1 (1973). 6-3, STEWART. Concurrence: Brennan. Dissents: Brennan, Douglas, Marshall. 18pp. Noted at: 445a

661

662

T A B L E OF C A S E S 631. 632.

633. 634. 635. 636. 637.

638. 639.

640. 641.

642. 643. 644. 645. 646. 647. 648. 649. 650. 651. 652.

653. 654.

DiSanto v. Pennsylvania, 273 U.S. 34 (1927). 6-3, BUTLER. Dissents: Brandeis, Holmes, Stone. 12pp. Noted at: 149b District of Columbia v. Clawans, 300 U.S. 617 (1937). 7-2, STONE. Concurrences: McReynolds, Butler. Dissents: McReynolds, Butler. 18pp. Noted at: 518a District of Columbia v. Colts, 282 U.S. 63 (1930). 9-0, SUTHERLAND, npp. Noted at: 518a District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). 8-0, DOUGLAS. Not voting: Jackson. 19pp. Noted at: 393b District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). 8-1, BRENNAN. Dissent: Stevens. 29pp. Noted at: 23b Dixon v. Love, 431 U.S. 105 (1977). 9-0, BLACKMUN. Concurrences: Stevens, Marshall, Brennan. 13pp. Noted at: 229a Dixon, U.S. v., 509 U.S. 688 (1993). 9-0, 6-3, 5-4, SCALLA. Concurrences: Rehnquist, O'Connor, Thomas, White, Stevens, Souter, Blackmun. Dissents: Rehnquist, O'Connor, Thomas, White, Stevens, Souter, Blackmun. 76pp. Noted at: 152a Dobbs v. Zant, 506 U.S. 357 (1993). 9-0, PER CURIAM. Concurrences: Scalia, Thomas. 7pp. Noted at: 138a Doe v. Bolton, 410 U.S. 179 (1973). 7-2, BLACKMUN. Concurrences: Burger, Douglas, Stewart. Dissents: White, Rehnquist. 44pp. Noted at: i9b-2oa, 379b, 435b Doe v. Braden, 57 U.S. (16 How.) 635 (1853). 9-0, TANEY. 25pp. Noted at: 357b Doe v. McMillan, 412 U.S. 306 (1973). 9-0, 6-3, 5-4, WHITE. Concurrences: Douglas, Brennan, Marshall, Burger, Blackmun, Rehnquist, Stewart. Dissents: Burger, Blackmun, Rehnquist, Stewart. 39pp. Noted at: 471b Doggett v. U.S., 505 U.S. 647 (1992). 5-4, SOUTER. Dissents: O'Connor, Thomas, Rehnquist, Scalia. 25pp. Noted at: 517b Dohany v. Rogers, 281 U.S. 362 (1930). 9-0, STONE. 8pp. Noted at: 272a Doherty & Co. v. Goodman, 294 U.S. 623 (1935). 9-0, McREYNOLDS. 6pp. Noted at: 380a Dolan v. City of Tigard, 512 U.S. 374 (1994). 5-4, REHNQUIST. Dissents: Stevens, Souter, Blackmun, Ginsburg. 41pp. Noted at: 500b Dombrowski v. Eastland, 387 U.S. 82 (1967). 8-0, PER CURIAM. Not voting: Black. 4pp. Noted at: 471b Dombrowski v. Pfister, 380 U.S. 479 (1965). 7-2, BRENNAN. Dissents: Harlan, Clark. 24pp. Noted at: 23a, 87a, 531a Donovan v. Dewey, 452 U.S. 594 (1981). 8-1, MARSHALL. Concurrences: Stevens, Rehnquist. Dissent: Stewart. 21pp. Noted at: 443b Dooley v. U.S., 182 U.S. 222 (1901). 5-4, BROWN. Dissents: White, Gray, Shiras, McKenna. 21pp. Noted at: 508a Doran v. Salem Inn, Inc., 422 U.S. 922 (1975). 8-1, REHNQUIST. Concurrence: Douglas. Dissent: Douglas. 13pp. Noted at: 323a Dorchy v. Kansas, 264 U.S. 286 (1924). 9-0, BRANDEIS. 6pp. Noted at: 275a Doremus, U.S. v., 249 U.S. 86 (1919). 5-4, DAY. Dissents: White, McKenna, Van Devanter, McReynolds. 10pp. Noted at: 405a, 504b Dorszynski v. U.S., 418 U.S. 424 (1974). 9-0, BURGER. Concurrences: Marshall, Douglas, Brennan, Stewart. 36pp. Noted at: 456a Douglas v. Alabama, 380 U.S. 415 (1965). 9-0, BRENNAN. Concurrences: Harlan, Stewart. 9pp. Noted at: 113b

TABLE OF CASES 655.

Douglas v. California, 372 U.S. 353 (1963). 6-3, DOUGLAS. Dissents: Harlan, Stewart, Clark. 14pp. Noted at: 48b, 128a, 544a 656. Douglas v. Green, 363 U.S. 192 (i960). 8-0, PER CURIAM. Not voting: Stewart. 2pp. Noted at: 48b 657. Dow v. Beidelman, 125 U.S. 680 (1888). 9-0, GRAY. 13pp. Noted at: 160a 658. Downes v. Bidwell, 182 U.S. 244 (1901). 5-4, WHITE. Concurrences: Shiras, McKenna. Dissents: Fuller, Harlan, Brewer, Peckham. 148pp. Noted at: 191b, 508a 659. Doyle v. Ohio, 426 U.S. 610 (1976). 6-3, POWELL. Dissents: Stevens, Blackmun, Rehnquist. 27pp. Noted at: 454b 660. Drake v. Zant, 449 U.S. 999 (1980). 5-4, PER CURIAM. Dissents: Brennan, Marshall, Stewart, White. 5pp. Noted at: 436a 661. Draper v. U.S. 358 U.S. 307 (1959). 8-i, WHITTAKER. Dissent: Douglas. 11pp. Noted at: 381a 662. Draper v. Washington, 372 U.S. 487 (1963). 5-4, GOLDBERG. Dissents: White, Clark, Harlan, Stewart. 29pp. Noted at: 48b, 512a 663. Dred Scott v. Sandford, 60 U.S. (2 How.) 393 (1857). 7-2, TANEY. Concurrences: Grier, Nelson, Daniel, Catron. Dissents: McLean, Curtis. 240pp. Noted at: 88b, 152b, 209a, 261a, 308b, 348b, 449b, 488b, 508b, 533b 664. Duke v. U.S., 301 U.S. 492 (1937). 9-0, SUTHERLAND. 3pp. Noted at: 249b 665. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978). 9-0, BURGER. Concurrences: Stewart, Rehnquist, Stevens. 45pp. Noted at: 435b 666. Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985). 5-4, POWELL. Concurrences: Burger, White. Dissents: Brennan, Marshall, Blackmun, Stevens. 47pp. Noted at: 285b 667. Duncan v. Henry, 513 U.S. 364 (1995). 8-1, PER CURIAM. Concurrence: Souter. Dissent: Stevens. 10pp. Noted at: 223a 668. Duncan v. Kahanamoku, 327 U.S. 304 (1946). 7-2, BLACK. Concurrences: Murphy, Stone. Dissents: Frankfurter, Burton. Not voting: Jackson. 54pp. Noted at: 91b, 221b, 300b, 305b, 434b, 669. Duncan v. Louisiana, 391 U.S. 145 (1968). 7-2, WHITE. Concurrences: Black, Douglas, Fortas. Dissents: Harlan, Stewart. 49pp. Noted at: 246a, 518a 670. Dunn v. Blumstein, 405 U.S. 330 (1972). 6-1, MARSHALL. Concurrence: Blackmun. Dissent: Burger. Not voting: Powell, Rehnquist. 34pp. Noted at: 158b, 486b, 533a 671. Dunningan, U.S. v., 507 U.S. 87 (1993). 9-0, KENNEDY. 12pp. Noted at: 509a 672. Duren v. Missouri, 439 U.S. 357 (1979). 8-i, WHITE. Dissent: Rehnquist. 21pp. Noted at: 271a, 461a 673. Durham v. U.S., 401 U.S. 481 (1971). 5-4, PER CURIAM. Dissents: Blackmun, Marshall, Burger, Stewart. 4pp. Noted at: 309a 674. Duro v. Reina, 495 U.S. 676 (1990). 7-2, KENNEDY. Dissents: Brennan, Marshall. 34pp. Noted at: 248a 675. Durousseau v. U.S., 10 U.S. (6 Cr.) 307 (1810). 7-0, MARSHALL. Concurrences: Livingston, Washington, Todd. 18pp. Noted at: 494a 676. Dutton v. Evans, 400 U.S. 74 (1970). 5-4, STEWART. Concurrences: Blackmun, Burger, Harlan. Dissents: Marshall, Black, Douglas, Brennan. 37pp. Noted at: 114a 677. Dyer v. Sims, 341 U.S. 22 (1951). 9-0, FRANKFURTER. Concurrences: Black, Reed, Jackson. 15pp. Noted at: 109b

663

664

TABLE OF CASES 678.

Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857). 8-i, WAYNE. Dissent: McLean. 20pp. Noted at: 304b 679. E.C. Knight Co., U.S. v., 156 U.S. 1 (1895). 8-1, FULLER. Dissent: Harlan. 46pp. Noted at: 48a, 101b, 254b 680. Eastern Air Transport Co. v. Tax Commission, 285 U.S. 147 (1932). 9-0, HUGHES. 7pp. Noted at: 502b 680a. Eastern Enterprises v. Apfel, n8 S.Ct. 2131 (1998). 5-4, 4-1-4, O'CONNOR. Concurrences: Thomas, Kennedy. Dissents: Stevens, Souter, Ginsburg, Breyer. 39pp. Noted at: 565b 681. Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961). 9-0, BLACK. 19pp. Noted at: 48a, 288b 682. Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976). 6-3, BURGER. Dissents: Powell, Stevens, Brennan. 27pp. Noted at: 416b 683. Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). 8-1, BURGER. Concurrences: Marshall, Brennan, Stewart. Dissent: Douglas. 28pp. Noted at: 471b 684. Eaton, U.S. v., 144 U.S. 677 (1892). 9-0, BLATCHFORD. 12pp. Noted at: 133b 685. Eaton, U.S. v., 169 U.S. 331 (1898). 9-0, WHITE. 22pp. Noted at: 250a 686. Edenfield v. Fane, 507 U.S. 761 (1993). 8-0, KENNEDY. Concurrence: Blackmun. Dissent: O'Connor. 21pp. Noted at: 466b, 487a 687. Edgar v. Mite Corp., 457 U.S. 624 (1982). 6-3, WHITE. Concurrences: Powell, O'Connor, Stevens. Dissents: Marshall, Brennan, Rehnquist. 43pp. Noted at: 499a 688. Edge Broadcasting Co., U.S. v., 509 U.S. 418 (1993). 7-2, WHITE. Concurrences: Souter, Kennedy. Dissents: Stevens, Blackmun. 25pp. Noted at: 106b 689. Edmond v. U.S., 117 S.Ct. 1573 (1997). 9-0, SCALIA. Concurrence: Souter. upp. Noted at: 122a, 249b 690. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). 6-3, KENNEDY. Dissents: O'Connor, Rehnquist, Scalia. 32pp. Noted at: 346b, 399b 691. Edwards v. Aguillard, 482 U.S. 578 (1987). 7-2, BRENNAN. Concurrences: Powell, White. Dissents: Scalia, Rehnquist. 62pp. Noted at: 174a, 312a, 418b 692. Edwards v. Arizona, 451 U.S. 477 (1981). 9-0, WHITE. Concurrences: Burger, Powell, Rehnquist. 15pp. Noted at: 455b 693. Edwards v. Balisok, 117 S.Ct. 1584 (1997). 9-0, SCALIA. Concurrence: Ginsburg. 6pp. Noted at: 123a 694. Edwards v. California, 314 U.S. 160 (1941). 9-0, BYRNES. Concurrences: Douglas, Jackson. 27pp. Noted at: 513a 695. Edwards v. South Carolina, 372 U.S. 229 (1963). 8-1, STEWART. Dissent: Clark. 16pp. Noted at: 73a, 141b, 233b 696. Edwards v. U.S., 286 U.S. 482 (1932). 9-0, HUGHES. 13pp. Noted at: 353b 697. Eichman, U.S. v., 496 U.S. 310 (1990). 5-4, BRENNAN. Dissents: Stevens, Rehnquist, White, O'Connor. 9pp. Noted at: 190b, 257b 698. Eisenstadt v. Baird, 405 U.S. 438 (1972). 6-1, BRENNAN. Concurrences: Douglas, White, Blackmun. Dissent: Burger. Not voting: Powell, Rehnquist. 35pp. Noted at: 125a, 461a 699. Eisner v. Macomber, 252 U.S. 189 (1920). 5-4, PITNEY. Dissents: Brandeis, Clarke, Holmes, Day. 50pp. Noted at: 243a 700. El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993). 9-0, PER CURIAM. 5pp. Noted at: 401a, 516b

T A B L E OF C A S E S 701. 702.

703. 704. 705.

706.

707.

708. 709. 710.

711.

712. 713.

714.

715.

716. 717. 718.

719.

720. 721.

Electric Bond Co. v. Securities and Exchange Commission, 303 U.S. 419 (1938). 8-i, HUGHES. Dissent: McReynolds. 25pp. Noted at: 360b, 400b Elfbrandt v. Russell, 384 U.S. 11 (1966). 5-4, DOUGLAS. Dissents: White, Clark, Harlan, Stewart. 12pp. Noted at: 109a, 219a, 292a, 302b, 325b Elk v. Wilkins, 112 U.S. 94 (1884). 7-2, GRAY. Dissents: Woods, Harlan. 29pp. Noted at: 236a, 247b Elkins v. U.S., 364 U.S. 206 (i960). 5-4, STEWART. Dissents: Frankfurter, Clark, Harlan, Whittaker. 19pp. Noted at: 463b Elrod v. Burns, 427 U.S. 347 (1976). 5-3, BRENNAN. Concurrences: Stewart, Blackmun. Dissents: Burger, Powell, Rehnquist. Not voting: Stevens. 43pp. Noted at: 343b Employers' Liability Cases, 207 U.S. 463 (1908). 5-4, WHITE. Concurrences: Day, Peckham. Dissents: Moody, Harlan, McKenna, Holmes. 79pp. Noted at: 505b Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U.S. 872 (1990). 6-3, SCALIA. Concurrences: Brennan, Marshall, Blackmun, O'Connor. Dissents: Brennan, Marshall, Blackmun. 29pp. Noted at: ma, 155a, 201a, 202b, 202b-203a Endo, Ex parte, 323 U.S. 283 (1944). 9-0, DOUGLAS. Concurrences: Murphy, Roberts. 28pp. Noted at: 261b Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983). 9-0, BLACKMUN. Concurrences: Powell, Burger, Rehnquist. 22pp. Noted at: 327a Engel v. Vitale, 370 U.S. 421 (1962). 6-1, BLACK. Concurrence: Douglas. Dissent: Stewart. Not voting: Frankfurter, White. 30pp. Noted at: 361a Enmund v. Florida, 458 U.S. 782 (1982). 5-4, WHITE. Concurrence: Brennan. Dissents: O'Connor, Burger, Powell, Rehnquist. 50pp. Noted at: 137b, 392a Epperson v. Arkansas, 393 U.S. 97 (1968). 9-0, FORTAS. 19pp. Noted at: 174a Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226 (1983). 5-4, BRENNAN. Concurrence: Stevens. Dissents: Burger, Powell, Rehnquist, O'Connor. 50pp. Noted at: 312a, 506a Erie Railroad v. Tompkins, 304 U.S. 64 (1938). 7-2, BRANDEIS. Concurrence: Reed. Dissents: Butler, McReynolds. 29pp. Noted at: 108b, 146b, 171b, 183b, 263b, 475b, 479a Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). 6-3, POWELL. Concurrence: Douglas. Dissents: Burger, Rehnquist, White. 20pp. Noted at: 323a, 328b, 338b Escanaba & Lake Michigan Transport Co. v. Chicago, 107 U.S. 678 (1883). 9-0, FIELD. 13pp. Noted at: 476b Escobedo v. Illinois, 378 U.S. 478 (1964). 5-4, GOLDBERG. Dissents: White, Clark, Stewart, Harlan. 22pp. Noted at: 128a, 307a, 455a Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214 (1958). 6-2, PER CURIAM. Dissents: Harlan, Whittaker. Not voting: Frankfurter. 3pp. Noted at: 48b, 512a Espinosa v. Florida, 505 U.S. 1079 (1992). 6-3, PER CURIAM. Dissents: Rehnquist, White, Scalia. 5pp. Noted at: 40b Estate of—, see name of the party Estelle v. Gamble, 429 U.S. 97 (1976). 8-i, MARSHALL. Concurrence: Blackmun. Dissent: Stevens. 21pp. Noted at: 215a, 375b Estelle v. Williams, 425 U.S. 501 (1976). 7-2, BURGER. Concurrences: Powell, Stewart. Dissents: Brennan, Marshall. 35pp. Noted at: 371a, 388a

665

666

TABLE OF C A S E S 722.

Estes v. Texas, 381 U.S. 532 (1964). 5-4, CLARK. Concurrences: Harlan, Warren, Douglas, Goldberg. Dissents: Stewart, Black, Brennan, White. 86pp. Noted at: 364b, 516a, 516b 723. Estin v. Estin, 334 U.S. 541 (1948). 7-2, DOUGLAS. Dissents: Frankfurter, Jackson. 14pp. Noted at: 148a 724. Eu v. San Francisco Democratic Committee, 489 U.S. 214 (1989). 8-0, MARSHALL. Concurrence: Stevens. Not voting: Rehnquist. 21pp. Noted at: 357a 725. Euclid, Village of v. Ambler Realty Co., 272 U.S. 365 (1926). 6-3, SUTHERLAND. Dissents: Van Devanter, McReynolds, Butler. 2pp. Noted at: 552a 726. Evans v. Gore, 253 U.S. 245 (1920). 7-2, VAN DEVANTER. Dissents: Holmes, Brandeis. 23pp. Noted at: ma, 505a 727. Evans v. Newton, 382 U.S. 296 (1966). 6-3, DOUGLAS. Dissents: Black, Harlan, Stewart. 27pp. Noted at: 478a 728. Evansville-Vanderburgh Airport Authority Dist. v. Delta Air Lines, Inc., 405 U.S. 707 (1972). 7-1, BRENNAN. Dissent: Douglas. Not voting: Powell. 20pp. Noted at: 504a 729. Everson v. Board of Education, 330 U.S. 1 (1947). 5-4, BLACK. Dissents: Jackson, Rutledge, Frankfurter, Burton. 74pp. Noted at: 172b, 245b, 419b, 438a, 486a 730. Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950). 6-2, DOUGLAS. Concurrence: Burton. Dissents: Jackson, Frankfurter. Not voting: Clark. 11pp. Noted at: 229a Ex parte—, see name of the party 731. Examining Board v. Flores de Otero, 426 U.S. 572 (1976). 8-1, BLACKMUN. Dissent: Rehnquist. 38pp. Noted at: 42b, 401a 732. Exxon Corp. v. Eagerton, 462 U.S. 176 (1983). 9-0, MARSHALL. 21pp. Noted at: 327b 733. Faretta v. California, 422 U.S. 806 (1975). 6-3, STEWART. Dissents: Burger, Blackmun, Rehnquist. 47pp. Noted at: 128b 734. Farmer v. Brennan, 511 U.S. 825 (1994). 9-0, SOUTER. Concurrences: Blackmun, Stevens, Thomas. 38pp. Noted at: 122b 735. Fauntleroy v. Lum, 2x0 U.S. 230 (1908). 5-4, HOLMES. Dissents: White, Harlan, McKenna, Day. 16pp. Noted at: 209a 736. Fay v. Noia, 372 U.S. 391 (1963). 6-3, BRENNAN. Dissents: Harlan, Clark, Stewart. 86pp. Noted at: 222b, 223a 737. Federal Baseball Club v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922). 9-0, HOLMES. 10pp. Noted at: 66b 738. Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307 (1993). 9-0, THOMAS. Concurrence: Stevens. 17pp. Noted at: 78a, 411b 739. Federal Communications Commission v. League of Women Voters, 468 U.S. 364 (1984). 5-4, BRENNAN. Dissents: Rehnquist, Burger, White, Stevens. 54pp. Noted at: 74b, 344a, 471a, 522b 740. Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978). 5-4, STEVENS. Concurrences: Powell, Blackmun. Dissents: Brennan, Marshall, Stewart, White. 55pp. Noted at: 74b, 253a, 331b, 432b 741. Federal Communications Commission v. WJR, 337 U.S. 265 (1949). 8-0, RUTLEDGE. Not voting: Murphy, 21pp. Noted at: 229b, 385b 742. Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471 (1994). 9-0, THOMAS. 17pp. Noted at: 122b 742a. Federal Election Commission v. Akins, 118 S.Ct. 1777 (1998). 6-3, BREYER. Dissents: Scalia, O'Connor, Thomas. 16pp. Noted at: 567b 743. Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986). 5-4, BRENNAN. Concurrences: O'Connor, Rehnquist. Dissents: Rehnquist, White, Blackmun, Stevens. 34pp. Noted at: 79a

TABLE OF C A S E S 744.

Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480 (1985). 5-4, REHNQUIST. Concurrence: Stevens. Dissents: White, Brennan, Marshall, Stevens. 41pp. Noted at: 78b 745. Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 (1982). 9-0, REHNQUIST. 14pp. Noted at: 79a 746. Federal Energy Regulatory Commission v. Mississippi, 456 U.S. 742 (1982). 5-4, BLACKMUN. Concurrences: Powell, O'Connor, Burger, Rehnquist. Dissents: Powell, O'Connor, Burger, Rehnquist. 55pp. Noted at: 506a 747. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944). 6-2, DOUGLAS. Dissents: Reed, Frankfurter. Not voting: Roberts. 29pp. Noted at: 160a, 181b, 270a, 411a 748. Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575 (1942). 9-0, STONE. 36pp. Noted at: 525b 749. Federal Trade Commission v. Gratz, 253 U.S. 421 (1920). 7-2, McREYNOLDS. Concurrence: Pitney. Dissents: Brandeis, Clarke. 22pp. Noted at: 140a 750. Federal Trade Commission v. Superior Court Trial Lawyers Assocation, 493 U.S. 411 (1990). 6-3, STEVENS. Concurrence: Blackmun. Dissents: Blackmun, Brennan, Marshall. 44pp. Noted at: 72a 751. Federated Department Stores, Inc. v. Moitié, 452 U.S. 394 (1981). 8-1, REHNQUIST. Concurrences: Blackmun, Marshall. Dissent: Brennan. 18pp. Noted at: 427b 752. Feiner v. New York, 340 U.S. 315 (1951). 6-3, VINSON. Dissents: Black, Douglas, Minton. 16pp. Noted at: 73a, 233a 753. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991). 9-0, O'CONNOR. Concurrence: Blackmun. 25pp. Noted at: 546b 754. Feldman v. U.S., 322 U.S. 487 (1944). 6-3, FRANKFURTER. Dissents: Black, Douglas, Rutledge. 16pp. Noted at: 521a 755. Felix, U.S. v., 503 U.S. 378 (1992). 9-0, REHNQUIST. Concurrences: Stevens, Blackmun. 10pp. Noted at: 151a 756. Felker v. Turpin, 518 U.S. 651 (1996). 9-0, REHNQUIST. Concurrences: Stevens, Souter, Breyer. 17pp. Noted at: 224a 757. Fellows v. Blacksmith, 60 U.S. 366 (1856). 9-0, NELSON. 7pp. Noted at: 247b 757a. Feltner v. Columbia Pictures Television, Inc., 118 S.Ct. 1279 (1998). 9-0, THOMAS. Concurrence: Scalia. 12pp. Noted at: 569a 758. Feres v. U.S., 340 U.S. 135 (1950). 9-0, JACKSON. Concurrence: Douglas. 12pp. Noted at: 468a 759. Ferguson v. Skrupa, 372 U.S. 726 (1963). 9-0, BLACK. Concurrence: Harlan. 8pp. Noted at: 330a, 330b, 412a 760. Fernandez v. Wiener, 326 U.S. 340 (1945). 7-2, STONE. Dissents: Douglas, Black. Not voting: Jackson. 27pp. Noted at: 501b 761. Ferreira, U.S. v., 54 U.S. (13 How.) 40 (1852). 8-0, TANEY. Not voting: Wayne. 14pp. Noted at: 58a 762. Ferri v. Ackerman, 444 U.S. 193 (1980). 9-0, STEVENS. 13pp. Noted at: 82a 763. Fiallo v. Bell, 430 U.S. 787 (1977). 6-3, POWELL. Dissents: White, Marshall, Brennan. 30pp. Noted at: 42a, 236b 764. Fidelity & Columbia Tr. Co. v. Louisville, 245 U.S. 54 (1917). 8-1, HOLMES. Dissent: White. 6pp. Noted at: 391b 765. Field v. Clark, 143 U.S. 649 (1892). 7-2, HARLAN. Dissents: Lamar, Fuller. 52pp. Noted at: 262a 766. Firefighters Local Union. No. 1784 v. Stotts, 467 U.S. 561 (1984). 6-3, WHITE. Concurrences: O'Connor, Stevens. Dissents: Blackmun, Brennan, Marshall. 61pp. Noted at: 37b, 309b

667

668

TABLE OF C A S E S 767. 768.

769. 770. 771. 772. 773. 774. 775. 776. 111. 778. 779.

780. 781.

782. 783. 784.

785.

786. 787. 788. 789.

790.

First Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987). 6-3, REHNQUIST. Dissents: Stevens, Blackmun, O'Connor. 38pp. Noted at: 501a First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). 5-4, POWELL. Concurrence: Burger. Dissents: White, Brennan, Marshall, Rehnquist. 61pp. Noted at: 79a, 127a, 206b First National Bank v. Fellows, 244 U.S. 416 (1917). 7-2, WHITE. Dissents: Van Devanter, Day. 16pp. Noted at: 135a Fisher v. U.S. 425 U.S. 391 (1976). 9-0, WHITE. Concurrences: Brennan, Marshall. 44pp. Noted at: 454a Fiske v. Kansas, 274 U.S. 380 (1927). 9-0, SANFORD. ipp. Noted at: 245b, 286a, 498a Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). 9-0, REHNQUIST. Concurrences: Brennan, Stevens. 15pp. Noted at: 165b, 481a Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). 6-3, REHNQUIST. Dissents: Marshall, Stevens, White. 31pp. Noted at: 399b, 425a, 478b Flast v. Cohen, 392 U.S. 83 (1968). 8-1, WARREN. Dissent: Harlan. 50pp. Noted at: 80b, 474a Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947). 9-0, DOUGLAS. Concurrence: Jackson. 3pp. Noted at: 424a Fleming v. Page, 50 U.S. (9 How.) 603 (1850). 8-1, TANEY. Dissent: McLean. 16pp. Noted at: 100b Fleming v. Rhodes, 331 U.S. 100 (1947). 8-1, REED. Dissent: Frankfurter. 11pp. Noted at: 424a Flemming v. Nestor, 363 U.S. 603 (i960). 5-4, HARLAN. Dissents: Black, Douglas, Brennan, Warren. 36pp. Noted at: 109a, 174b, 401b Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). 6-1, MARSHALL. Dissent: Johnson. 39pp. Noted at: 310b, 314b, 326a, 404b, 488b, 508b, 529a, 549a Fletcher v. Weir, 455 U.S. 603 (1982). 7-2, PER CURIAM. Dissents: Brennan, Marshall. 5pp. Noted at: 454b Flood v. Kuhn, 407 U.S. 258 (1972). 5-3, BLACKMUN. Concurrence: Burger. Dissents: Douglas, Marshall, Brennan. Not voting: Powell. 38pp. Noted at: 66b Florida v. Bostick, 501 U.S. 429 (1991). 6-3, O'CONNOR. Dissents: Marshall, Blackmun, Stevens. 23pp. Noted at: 445a Florida v. Jimeno, 500 U.S. 248 (1991). 7-2, REHNQUIST. Dissents: Marshall, Stevens. 9pp. Noted at: 442b Florida v. Long, 487 U.S. 223 (1988). 8-1, 5-4, KENNEDY. Concurrences: Blackmun, Brennan, Marshall. Dissents: Blackmun, Brennan, Marshall, Stevens. 27pp. Noted at: 430a Florida v. Riley, 488 U.S. 445 (1989). 5-4, WHITE. Concurrence: O'Connor. Dissents: Brennan, Marshall, Stevens, Blackmun. 24pp. Noted at: 447a Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). 5-4, O'CONNOR. Dissents: Kennedy, Stevens, Souter, Ginsburg. 38pp. Noted at: 467a Florida East Coast Ry., U.S. v., 410 U.S. 224 (1973). 6-2, REHNQUIST. Dissents: Douglas, Stewart. Not voting: Powell. 33pp. Noted at: 382a Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963). 5-4, BRENNAN. Dissents: White, Black, Douglas, Clark. 46pp. Noted at: 363a Florida Star v. B.J.F., 491 U.S. 524 (1989). 6-3, MARSHALL. Concurrence: Scalia. Dissents: White, Rehnquist, O'Connor. 30pp. Noted at: 216a, 377b Flower v. U.S., 407 U.S. 197 (1972). 6-3, PER CURIAM. Dissents: Blackmun, Rehnquist, Burger. 5pp. Noted at: 398a

TABLE OF C A S E S 791.

792.

793. 794. 795.

796. 797.

798. 799. 800. 801. 802.

803. 804.

805. 806. 807. 808.

809. 810. 811. 812. 813.

Foley v. Connelie, 435 U.S. 291 (1978). 6-3, BURGER. Concurrences: Stewart, Blackmun. Dissents: Marshall, Brennan, Stevens. 21pp. Noted at: 42b Fong Foo v. U.S., 369 U.S. 141 (1962). 7-1, PER CURIAM. Concurrence: Harlan. Dissent: Clark. Not voting: Whittaker. 6pp. Noted at: 152b Fong Yue Ting v. U.S., 149 U.S. 698 (1893). 6-3, GRAY. Dissents: Brewer, Field, Fuller. 66pp. Noted at: 142a Ford v. Georgia, 498 U.S. 411 (1991). 9-0, SOUTER. 15pp. Noted at: 29a Ford v. Wainwright, 477 U.S. 399 (1986). 5-4, MARSHALL. Concurrences: Powell, O'Connor. Dissents: O'Connor, White, Rehnquist, Burger. 37pp. Noted at: 137b, 251a Fordice, U.S. v., 505 U.S. 717 (1992). 8-1, WHITE. Concurrences: O'Connor, Thomas, Scalia. Dissent: Scalia. 46pp. Noted at: 453a Forrester v. White, 484 U.S. 219 (1988). 8-0, O'CONNOR. Not participating: Kennedy (having been confirmed only after oral argument). 12pp. Noted at: 239b Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). 5-4, BLACKMUN. Dissents: Rehnquist, White, Scalia, Thomas. 21pp. Noted at: 348a Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353 (1992). 7-2, STEVENS. Dissents: Rehnquist, Blackmun. 21pp. Noted at: 542a Fortson v. Dorsey, 379 U.S. 433 (1965). 8-i, BRENNAN. Dissent: Douglas. 55pp. Noted at: 312b Fortson v. Morris, 385 U.S. 231 (1966). 5-4, BLACK. Dissents: Douglas, Warren, Brennan, Fortas. 20pp. Noted at: 425b 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). 9-0, STEVENS. Concurrences: Scalia, Thomas, O'Connor, Rehnquist, Souter, Breyer. 51pp. Noted at: 88a, 107a, 256b, 323a, 520b Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829). 7-0, MARSHALL. 65pp. Noted at: 514b Foucha v. Louisiana, 504 U.S. 71 (1992). 5-4, WHITE. Concurrence: O'Connor. Dissents: Kennedy, Rehnquist, Thomas, Scalia. 56pp. Noted at: 90a Fourteen Diamond Rings v. U.S., 183 U.S. 176 (1901). 5-4, FULLER. Dissents: Gray, Shiras, White, McKenna. 11pp. Noted at: 514b Frank v. Mangum, 237 U.S. 309 (1915). 8-1, PITNEY. Dissent: Holmes. 41pp. Noted at: 48b, 222a, 270b, 516a Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992). 9-0, WHITE. Concurrences: Scalia, Rehnquist, Thomas. 19pp. Noted at: 280b, 378b Franklin v. Massachusetts, 505 U.S. 788 (1992). 9-0, O'CONNOR. Concurrences: Stevens, Blackmun, Kennedy, Souter, Scalia. 42pp. Noted at: 54b Frazee v. Employment Security Dept., 489 U.S. 829 (1989). 9-0, WHITE. 6pp. Noted at: 202a Free v. Bland, 369 U.S. 663 (1962). 7-0, WARREN. Not voting: Frankfurter, White. 9pp. Noted at: 71a Freedman v. Maryland, 380 U.S. 51 (1965). 9-0, BRENNAN. Concurrence: Douglas. 10pp. Noted at: 83a, 348a, 374b Freeman v. Hewitt, 329 U.S. 249 (1946). 6-3, FRANKFURTER. Dissents: Douglas, Murphy, Black. 48pp. Noted at: 502b Freeman v. Pitts, 503 U.S. 467 (1992). 9-0, KENNEDY. Concurrences: Souter, Scalia, Blackmun, Stevens, O'Connor. 52pp. Noted at: 453a

669

470

T A B L E OF C A S E S 814.

815.

816.

817. 818.

819. 820. 821.

822. 823. 824.

825. 826. 827. 828.

829.

830.

831. 832. 833. 834.

835.

Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991). 9-0, BLACKMUN. Concurrences: Scalia, O'Connor, Kennedy, Souter. 55pp. Noted at: 228a, 250a Friedman v. Rogers, 440 U.S. 1 (1979). 7-2, POWELL. Concurrences: Blackmun, Marshall. Dissents: Blackmun, Marshall. 28pp. Noted at: 105b, 387a, 511b Frisby v. Schultz, 487 U.S. 474 (1988). 6-3, O'CONNOR. Concurrence: White. Dissents: Brennan, Marshall, Stevens. 26pp. Noted at: 350a, 377b, 510b Frohwerk v. U.S., 249 U.S. 204 (1919). 9-0, HOLMES, ipp. Noted at: 96b, 490a Frontiero v. Richardson, 411 U.S. 677 (1973). 8-1, BRENNAN. Concurrences: Stewart, Powell, Burger, Blackmun. Dissent: Rehnquist. 16pp. Noted at: 161b, 460b Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583 (1926). 6-3, SUTHERLAND. Dissents: Holmes, Brandeis, McReynolds. 21pp. Noted at: 522a Frothingham v. Mellon, 262 U.S. 447 (1923). 9-0, SUTHERLAND. 42pp. Noted at: 473b Fuentes v. Shevin, 407 U.S. 67 (1972). 4-3, STEWART. Dissents: White, Burger, Blackmun. Not voting: Powell, Rehnquist. 37pp. Noted at: 434b Fuller v. Alaska, 393 U.S. 80 (1968). 7-2, PER CURIAM. Dissents: Black, Douglas. 3pp. Noted at: 318a Fuller, U.S. v., 409 U.S. 488 (1973). 5-4, REHNQUIST. Dissents: Powell, Douglas, Brennan, Marshall. 17pp. Noted at: 271b Fullilove v. Klutznick, 448 U.S. 448 (1980). 6-3, BURGER. Concurrences: Powell, Marshall. Dissents: Stewart, Rehnquist, Stevens. 105pp. Noted at: 37b, 459b Fulton Corp. v. Faulkner, 516 U.S. 325 (1996). 9-0, SOUTER. Concurrence: Rehnquist. 24pp. Noted at: 503b Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127 (1948). 7-2, DOUGLAS. Concurrence: Frankfurter. Dissents: Burton, Jackson. 11pp. Noted at: 343a, 547b Furlong, U.S. v., 18 U.S. (5 Wheat.) 184 (1820). 7-0, JOHNSON. 23pp. Noted at: 351b Furman v. Georgia, 408 U.S. 238 (1972). 5-4, PER CURIAM. Concurrences: Douglas, Brennan, Stewart, White, Marshall. Dissents: Burger, Blackmun, Powell, Rehnquist. 233pp. Noted at: 136a, 403a FW/PBS v. City of Dallas, 493 U.S. 215 (1990). 5-4, O'CONNOR. Concurrences: Brennan, White, Stevens, Scalia, Marshall, Blackmun, Rehnquist. Dissents: White, Rehnquist, Stevens, Scalia. 49pp. Noted at: 34b, 374b G.D. Searle & Co. v. Cohn, 455 U.S. 404 (1982). 6-3, BLACKMUN. Concurrences: Powell, Burger. Dissents: Powell, Burger, Stevens. 18pp. Noted at: 458b Gagnon v. Scarpelli, 411 U.S. 778 (1973). 8-1, POWELL. Dissent: Douglas. 14pp. Noted at: 381b, 384b, 425a Gagnon, U.S. v., 470 U.S. 522 (1985). 7-2, PER CURIAM. Dissents: Brennan, Marshall. 9pp. Noted at: 434a Gainey, U.S. v., 380 U.S. 63 (1965). 7-2, STEWART. Dissents: Black, Douglas. 26pp. Noted at: 371b Gallagher v. Crown Kosher Supermarket, 366 U.S. 617 (1961). 6-3, WARREN. Concurrences: Frankfurter, Harlan. Dissents: Brennan, Stewart, Douglas. 25pp. Noted at: 98b Galloway v. U.S., 319 U.S. 372 (1943). 6-3, RUTLEDGE. Dissents: Black, Douglas, Murphy. 40pp. Noted at: 519a

T A B L E OF C A S E S 836.

Galvan v. Press, 347 U.S. 522 (1954). 7-2, FRANKFURTER. Concurrence: Reed. Dissents: Black, Douglas. 13pp. Noted at: 109a 837. Gambino v. U.S., 275 U.S. 310 (1927). 9-0, BRANDEIS. 10pp. Noted at: 463b 838. Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979). 5-4, STEWART. Concurrences: Burger, Powell, Rehnquist, Blackmun. Dissents: Blackmun, Brennan, White, Marshall. 80pp. Noted at: 132b, 196a, 516b 839. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). 5-4, BLACKMUN. Dissents: Powell, Burger, Rehnquist, O'Connor. 60pp. Noted at: 185b, 237b, 275b, 359a, 506a 840. Gardner v. Broderick, 392 U.S. 273 (1968). 9-0, FORTAS. Concurrence: Black. 7pp. Noted at: 98b, 352a, 454a 841. Gardner v. California, 393 U.S. 367 (1969). 6-3, DOUGLAS. Dissents: Harlan, Stewart, Black. 7pp. Noted at: 48b 842. Garland, Ex parte, 71 U.S. (4 Wall.) 333 (1867). 5-4, WAYNE. Dissents: Miller, Chase, Swayne, Davis. 67pp. Noted at: 67b, 174b, 264a, 325b, 340b, 341a, 508b 843. Garner v. Board of Public Works, 341 U.S. 716 (1951). 5-4, CLARK. Concurrences: Frankfurter, Burton. Dissents: Frankfurter, Burton, Douglas, Black. 16pp. Noted at: 291b 844. Garner v. U.S., 424 U.S. 648 (1976). 9-0, POWELL. Concurrences: Marshall, Brennan. 21pp. Noted at: 454b 845. Garnett, In re, 141 U.S. 1 (1891). 9-0, BRADLEY. 18pp. Noted at: 32b 846. Garrison v. Louisiana, 379 U.S. 64 (1964). 9-0, BRENNAN. Concurrence: Black. 15pp. Noted at: 134a, 284b, 396b, 451a 847. Garrison v. Patterson, 391 U.S. 464 (1968). 9-0, PER CURIAM. 4pp. Noted at: 484b 848. Garrity v. State of New Jersey, 385 U.S. 493 (1967). 5-4, DOUGLAS. Dissents: Harlan, Clark, Stewart, White. 18pp. Noted at: 352a, 454a 849. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). 5-4, GINSBURG. Dissents: Stevens, Scalia, Rehnquist, Thomas. 55pp. Noted at: 415b 850. Gaudin, U.S. v., 515 U.S. 506 (1995). 9-0, SCALIA. Concurrence: Rehnquist. 22pp. Noted at: 518b 851. Gault, In re, 387 U.S. 1 (1967). 7-2, FORTAS. Concurrences: Black, White, Harlan. Dissents: Harlan, Stewart. 81pp. Noted at: 128a, 273b 852. Gayle v. Browder, 352 U.S. 903 (1956). PER CURIAM, ipp. Noted at: 452a 853. Geduldig v. Aiello, 417 U.S. 484 (1974). 6-3, STEWART. Dissents: Brennan, Douglas, Marshall. 22pp. Noted at: 461a 854. Geer v. Connecticut, 161 U.S. 519 (1896). 8-1, WHITE. Dissent: Harlan. 2pp. Noted at: 98a, n6b-ii7a, 211a 855. Gelpcke v. Dubuque, 68 U.S. (1 Wall.) 175 (1864). 8-1, SWANE. Dissent: Miller. Not voting: Taney. 46pp. Noted at: 171b 856. General Motors Corp. v. Tracy, 117 S.Ct. 811 (1997). 8-1, SOUTER. Concurrence: Scalia. Dissent: Stevens. 22pp. Noted at: 474a, 503a 857. General Oil Co. v. Crain, 209 U.S. 211 (1908). 8-1, McKENNA. Concurrences: Holmes, Harlan. Dissent: Moody. 26pp. Noted at: 502b 858. Gentile v. State Bar of California, 501 U.S. 1030 (1991). 5-4 (various coalitions), KENNEDY. Concurrence: O'Connor. Dissents: Rehnquist, White, Scalia, Souter, O'Connor. 53pp. Noted at: 278a, 394a 859. Geofroy v. Riggs, 133 U.S. 258 (1890). 9-0, FULLER. 15pp. Noted at: 147a

671

672

TABLE OF CASES 860. 861. 862. 863. 864. 865.

866.

867. 868. 869.

870.

871. 872. 873. 874.

875. 876. 877.

878. 879.

880.

881.

Georgia v. McCollum, 505 U.S. 42 (1992). 7-2, BLACKMUN. Dissents: O'Connor, Scalia. 29pp. Noted at: 346b, 477b Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867). 8-0, NELSON. Concurrence: Chase. 28pp. Noted at: 426b Gerende v. Board of Supervisors of Elections, 341 U.S. 56 (1951). 9-0, PER CURIAM. Concurrence: Reed. 2pp. Noted at: 291b Germaine, U.S. v., 99 U.S. 508 (1879). 9-0, MILLER. 5pp. Noted at: 332b German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914). 9-0, HARLAN. 13pp. Noted at: 35b Gerstein v. Pugh, 420 U.S. 103 (1975). 9-0, POWELL. Concurrences: Stewart, Douglas, Brennan, Marshall. 25pp. Noted at: 57b, 381a Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 5-4, POWELL. Concurrence: Blackmun. Dissents: Burger, Douglas, Brennan, White. 80pp. Noted at: 235a, 270a, 285a, 290b, 334b, 397a Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 7-0, MARSHALL. 238pp. Noted at: 101a, 103b, 115a, 148a, 254a, 315b, 354a, 362b, 492b, ji2a-b Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). 9-0, BLACK. 15pp. Noted at: 349b Gibson v. Berryhill, 411 U.S. 564 (1973). 9-0, WHITE. Concurrences: Burger, Marshall, Brennan. 18pp. Noted at: 229b, 240a, 330a, 330b, 416b Gibson v. Florida Legislative Committee, 372 U.S. 539 (1963). 5-4, GOLDBERG. Concurrences: Black, Douglas. Dissents: Harlan, Clark, Stewart, White. 45pp. Noted at: 259a Gibson v. U.S., 166 U.S. 269 (1897). 9-0, FULLER. 8pp. Noted at: 315b Gideon v. Wainwright, 372 U.S. 335 (1963). 9-0, BLACK. Concurrences: Clark, Harlan. 18pp. Noted at: 128a, 246a, 545a Giglio v. U.S., 405 U.S. 150 (1972). 7-0, BURGER. Not voting: Powell, Rehnquist. 5pp. Noted at: 347a Gilbert v. California, 388 U.S. 263 (1967). 9-0 (various other votes), BRENNAN. Concurrences: Warren, Black, Douglas, White, Harlan, Stewart, Fortas. Dissents: Warren, Black, Douglas, White, Harlan, Stewart, Fortas. 43pp. Noted at: 128a, 287a Gilbert v. Homar, 117 S.Ct. 1807 (1997). 9-0, SCALIA. 9pp. Noted at: 386a Gillette v. U.S., 401 U.S. 437 (1971). 8-1, MARSHALL. Concurrence: Black. Dissent: Douglas. 38pp. Noted at: 116a Gilligan v. Morgan, 413 U.S. 1 (1973). 5-4, BURGER. Concurrences: Blackmun, Powell. Dissents: Douglas, Brennan, Stewart, Marshall. 14pp. Noted at: 358b Gilman v. Philadelphia, 70 U.S. (5 Wall.) 713 (1866). 6-3, SWAYNE. Dissents: Clifford, Wayne, Davis. 31pp. Noted at: 315b Gilmore v. Taylor, 508 U.S. 333 (1993). 7-2, REHNQUIST. Concurrence: O'Connor, White. Dissents: Blackmun, Stevens. 33pp. Noted at: 318a, 319a Gilmore v. Utah, 429 U.S. 1012 (1976). 5-4, PER CURIAM. Concurrences: Burger, Powell, Stevens, Rehnquist. Dissents: White, Brennan, Marshall, Blackmun. 9pp. Noted at: 434a Ginsberg v. New York, 390 U.S. 629 (1968). 6-3, BRENNAN. Concurrence: Harlan. Dissents: Douglas, Black, Fortas. 45pp. Noted at: 273a, 329a

T A B L E OF C A S E S 882. 883. 884. 885. 886. 887. 888.

889. 890.

891. 892.

893.

894. 895. 896. 897. 898.

899. 900.

901. 902. 903. 904. 905.

Ginzburg v. U.S., 383 U.S. 463 (1966). 5-4, BRENNAN. Dissents: Douglas, Black, Harlan, Stewart. 39pp. Noted at: 339a Gitlow v. New York, 268 U.S. 652 (1925). 7-2, SANFORD. Dissents: Holmes, Brandeis. 21pp. Noted at: 62a, 97a, 158a, 245b, 291a, 490a Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979). 9-0, REHNQUIST. Concurrence: Stevens. 8pp. Noted at: 395b Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979). 7-2, POWELL. Dissents: Rehnquist, Stewart. 39pp. Noted at: 473b Glickman v. Wileman Brothers & Elliott, Inc., 117 S.Ct. 2130 (1997). 5-4, STEVENS. Dissents: Souter, Rehnquist, Scalia, Thomas. 27pp. Noted at: 469b Glidden Co. v. Zdanok, 370 U.S. 530 (1962). 7-2, HARLAN. Dissents: Douglas, Black. 76pp. Noted at: 58b, 128b, 494b Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982). 6-3, BRENNAN. Concurrence: O'Connor. Dissents: Burger, Rehnquist, Stevens. 27pp. Noted at: 132b, 196a, 216b, 282a, 516b Go-Bart Importing Co. v. U.S., 282 U.S. 344 (1931). 9-0, BUTLER. 15pp. Noted at: 250a Godinez v. Moran, 509 U.S. 389 (1993). 7-2, THOMAS. Concurrences: Kennedy, Scalia. Dissents: Blackmun, Stevens. 29pp. Noted at: 434a, 515b Goeke v. Branch, 514 U.S. 115 (1995). 9-0, PER CURIAM. 7pp. Noted at: 318b Goesaert v. Cleary, 335 U.S. 464 (1948). 6-3, FRANKFURTER. Dissents: Rutledge, Douglas, Murphy. 5pp. Noted at: 460b, 465b Gold Clause Cases, see Perry v. U.S. Goldberg v. Kelly, 397 U.S. 254 (1970). 6-3, BRENNAN. Dissents: Burger, Black, Stewart. 25pp. Noted at: 167a, 229a, 286a, 384a, 385a, 385b, 529a, 545b Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962). 7-0, CLARK. Not voting: Frankfurter, White. 8pp. Noted at: 500a Goldey v. Morning News, 156 U.S. 518 (1895). 9-0, GRAY. 9pp. Noted at: 268b Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). 8-0, BURGER. Not voting: Powell. 21pp. Noted at: 330b Goldman v. U.S., 316 U.S. 129 (1942). 6-3, ROBERTS. Dissents: Stone, Frankfurter, Murphy. 14pp. Noted at: 448a Goldman v. Weinberger, 475 U.S. 503 (1986). 5-4, REHNQUIST. Dissents: Brennan, Marshall, Blackmun, O'Connor. 30pp. Noted at: 154b, 202b Goldstein v. California, 412 U.S. 546 (1973). 5-4, BURGER. Dissents: Douglas, Brennan, Blackmun, Marshall. 34pp. Noted at: 126b Goldwater v. Carter, 444 U.S. 996 (1979). 9-0, PER CURIAM. Concurrences: Burger, Stewart, Marshall, Powell, Blackmun, Rehnquist. 12pp. Noted at: 43b, 143b, 514b Gomez v. Perez, 409 U.S. 535 (1973). 7-2, PER CURIAM. Dissents: Stewart, Rehnquist. 4pp. Noted at: 236a Gomez v. United States District Court, 503 U.S. 653 (1992). 7-2, PER CURIAM. Dissents: Stevens, Blackmun. 7pp. Noted at: 223b, 484b Gomillion v. Lightfoot, 364 U.S. 339 (i960). 9-0, FRANKFURTER. 10pp. Noted at: 212b, 359a, 536a Gong Lum v. Rice, 275 U.S. 78 (1927). 9-0, TAFT. 9pp. Noted at: 451b Gooch v. U.S., 297 U.S. 124 (1936). 9-0, McREYNOLDS. 5pp. Noted at: 313b

673

674

T A B L E OF C A S E S 906.

907. 908. 909. 910.

911. 912.

913. 914. 915. 916.

Gooding v. Wilson, 405 U.S. 518 (1972). 5-2, BRENNAN. Dissents: Burger, Blackmun. Not voting: Powell, Rehnquist. 19pp. Noted at: 338a Goodrich v. Ferris, 214 U.S. 71 (1909). 9-0, WHITE, npp. Noted at: 269a Goodwin, U.S. v., 457 U.S. 368 (1982). 7-2, STEVENS. Concurrence: Blackmun. Dissents: Brennan, Marshall. 24pp. Noted at: 393b Gordon v. Lance, 403 U.S. I (1971). 9-0, BURGER. Concurrence: Harlan. 8pp. Noted at: 416b Gordon v. U.S., 69 U.S. (2 Wall.) 561 (1865). 8-2, SUMMARY OPINION. Dissents: Miller, Field, ipp. [See Appendix, 117 U.S. 697 (1886) (Taney's previously unpublished opinion). 10pp.] Noted at: 58a Gore v. U.S., 357 U.S. 386 (1958). 5-4, FRANKFURTER. Dissents: Warren, Douglas, Black, Brennan. 13pp. Noted at: 151a Goss v. Lopez, 419 U.S. 565 (1975). 5-4, WHITE. Dissents: Powell, Burger, Blackmun, Rehnquist. 35pp. Noted at: 161b, 229b, 286b, 384b, 386a, 487b Gottschalk v. Benson, 409 U.S. 63 (1972). 6-0, DOUGLAS. Not voting: Stewart, Blackmun, Powell. 12pp. Noted at: 546b Gouled v. U.S., 255 U.S. 298 (1921). 9-0, CLARKE. 16pp. Noted at: 304a Gouveia, U.S. v., 467 U.S. 180 (1984). 8-1, REHNQUIST. Concurrences: Stevens, Brennan. Dissent: Marshall. 23pp. Noted at: 376a Grace, U.S. v., 461 U.S. 171 (1983). 9-0, 7-2, WHITE. Concurrences: Marshall, Stevens. Dissents: Marshall, Stevens. 19pp. Noted at:

397b Grady v. Corbin, 495 U.S. 508 (1990). 5-4, BRENNAN. Dissents: O'Connor, Scalia, Rehnquist, Kennedy. 37pp. Noted at: 152a, 283b 918. Graham v. Collins, 506 U.S. 461 (1993). 5-4, WHITE. Concurrence: Thomas. Dissents: Stevens, Souter, Blackmun, O'Connor. 62pp. Noted at: 318a, 319a 919. Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966). 7-0, CLARK. Not voting: Stewart, Fortas. 37pp. Noted at: 61b, 343a 920. Graham v. Richardson, 403 U.S. 365 (1971). 9-0, BLACKMUN. Concurrence: Harlan. 18pp. Noted at: 314a, 545b 921. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989). 6-3, BRENNAN. Concurrence: Scalia. Dissents: White, Blackmun, O'Connor. 62pp. Noted at: 519a Granger Cases, see Munn v. Illinois 922. Gratiot, U.S. v., 39 U.S. (14 Pet.) 526 (1840). 9-0, THOMPSON. 14pp. Noted at: 400a 923. Gravel v. U.S., 408 U.S. 606 (1972). 5-4, WHITE. Dissents: Douglas, Brennan, Marshall, Stewart. 27pp. Noted at: 471b 924. Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939). 7-2, STONE. Dissents: Butler, McReynolds. ipp. Noted at: 185a, 237a, 505a, 505b 924a. Gray v. Maryland, 118 S.Ct. 1151 (1998). 5-4, BREYER. Dissents: Scalia, Rehnquist, Kennedy, Thomas, npp. Noted at: 556b 925. Gray v. Mississippi, 481 U.S. 648 (1987). 5-4, BLACKMUN. Concurrence: Powell. Dissents: Scalia, Rehnquist, White, O'Connor. 31pp. Noted at: 270b 926. Gray v. Netherland, 518 U.S. 152 (1996). 5-4, REHNQUIST. Dissents: Stevens, Ginsburg, Souter, Breyer. 34pp. Noted at: 145a, 319a 927. Gray v. Sanders, 372 U.S. 368 (1963). 8-1, DOUGLAS. Concurrences: Stewart, Clark. Dissent: Harlan. 23pp. Noted at: 53b, 129b, 333b

917.

T A B L E OF C A S E S 928.

929. 930. 931. 932. 933. 934. 935. 936. 937.

938.

939.

940.

941.

942.

943. 944. 945. 946.

947. 948. 949. 950.

Grayned v. Rockford, 408 U.S. 104 (1972). 9-0, MARSHALL. Concurrences: Blackmun, Douglas. Dissent: Douglas. 21pp. Noted at: 398a, 527a Grayson, U.S. v., 438 U.S. 41 (1978). 6-3, BURGER. Dissents: Stewart, Brennan, Marshall. 18pp. Noted at: 456a Great Northern Railway v. Minnesota, 278 U.S. 503 (1929). 9-0, SUTHERLAND. 7pp. Noted at: 391a Green v. Chicago, B. & Q. Railway, 205 U.S. 530 (1907). 9-0, MOODY. 4pp. Noted at: 268b Green v. County School Board of New Kentucky, 391 U.S. 430 (1968). 9-0, BRENNAN. 13pp. Noted at: 452a Green v. U.S., 355 U.S. 184 (1957). 5-4, BLACK. Dissents: Frankfurter, Burton, Clark, Harlan. 36pp. Noted at: 152b Greenbelt Cooperative Pub. Assn. v. Bresler, 398 U.S. 6 (1970). 9-0, STEWART. Concurrences: White, Black, Douglas. 18pp. Noted at: 396b Greene v. Lindsey, 456 U.S. 444 (1982). 6-3, BRENNAN. Dissents: O'Connor, Burger, Rehnquist. 17pp. Noted at: 458b Greene v. Massey, 437 U.S. 19 (1978). 9-0, BURGER. Concurrences: Powell, Rehnquist. 9pp. Noted at: 152b Greene v. McElroy, 360 U.S. 474 (1959). 6-3, WARREN. Concurrences: Frankfurter, Harlan, Whittaker. Dissent: Clark. 51pp. Noted at: 292b Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979). 5-4, BURGER. Concurrence: Powell. Dissents: Powell, Marshall, Brennan, Stevens. 41pp. Noted at: 342a, 376a Greer v. Spock, 424 U.S. 828 (1976). 7-2, STEWART. Concurrences: Burger, Powell. Dissents: Brennan, Marshall. 45pp. Noted at: 56b, 397b, 398a Gregg v. Georgia, 428 U.S. 153 (1976). 7-2, POWELL. Concurrences: White, Burger, Rehnquist, Blackmun. Dissents: Brennan, Marshall. 73pp. Noted at: 39b, 137a, 138a, 370a Gregory v. Ashcroft, 501 U.S. 452 (1991). 5-4, O'CONNOR. Concurrences: White, Stevens. Dissents: White, Stevens, Blackmun, Marshall. 25pp. Noted at: 156a, 237b, 297a Gregory v. Chicago, 394 U.S. in (1969). 9-0, WARREN. Concurrences: Douglas, Stewart, White, Black. 2pp. Noted at: 141b Griffin v. Breckenridge, 403 U.S. 88 (1971). 9-0, STEWART. Concurrence: Harlan. 19pp. Noted at: 94b Griffin v. California, 380 U.S. 609 (1965). 7-2, DOUGLAS. Dissents: Stewart, White. 15pp. Noted at: 454b Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964). 9-0, BLACK. 17pp. Noted at: 405a, 519b Griffin v. Illinois, 351 U.S. 12 (1956). 5-4, BLACK. Concurrence: Frankfurter. Dissents: Burton, Minton, Reed, Harlan. 27pp. Noted at: 48b, 129b, 132a, 209b, 512a, 544a Griffin v. Wisconsin, 483 U.S. 868 (1987). 5-4, SCALIA. Dissents: Blackmun, Marshall, Brennan, Stevens. 23pp. Noted at: 447a Griffiths, In re, 413 U.S. 717 (1973). 7-2, POWELL. Dissents: Burger, Rehnquist. 16pp. Noted at: 42b, 169b, 278a Grimaud, U.S. v., 220 U.S. 506 (1911). 9-0, LAMAR. 17pp. Noted at: 29b Grisham v. Hagan, 361 U.S. 278 (i960). 7-2, CLARK. Dissents: Whittaker, Stewart. 3pp. Noted at: 305b

675

676

T A B L E OF C A S E S 951.

952. 953. 954. 955. 956.

957. 958. 959. 960. 961.

962. 963. 964. 965.

966. 967. 968. 969. 970. 971.

972. 973. 974.

Griswold v. Connecticut, 381 U.S. 479 (1965). 7-2, DOUGLAS. Dissents: Black, Stewart. 51pp. Noted at: 13,123a, 283a, 300a, 315a, 320a, 345a-b, 377b, 426a, 489a Groban, In re, 352 U.S. 330 (1957). 5-4, REED. Dissents: Black, Warren, Douglas, Brennan. 24pp. Noted at: 453b Groppi v. Wisconsin, 400 U.S. 505 (1971). 8-1, STEWART. Concurrences: Blackmun, Burger. Dissent: Black. 12pp. Noted at: 270b, 516a Grosjean v. American Press Co., 297 U.S. 233 (1936). 9-0, SUTHERLAND. 17pp. Noted at: 207b Grossman, Ex parte, 267 U.S. 87 (1925). 9-0, TAFT. 36pp. Noted at: 331a, 340b Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841). 5-2, THOMPSON. Dissents: McKinley, Story. Not voting: Catron, Barbour. 69pp. Noted at: 387a Grovey v. Townsend, 295 U.S. 45 (1935). 9-0, ROBERTS, ipp. Noted at: 357a, 536a Growe v. Emison, 507 U.S. 25 (1993). 9-0, SCALIA. 18pp. Noted at: 23b Gruber, Ex parte, 269 U.S. 302 (1925). 9-0, SUTHERLAND. 2pp. Noted at: 267b Guaranty Trust Co. v. York, 326 U.S. 99 (1945). 7-2, FRANKFURTER. Dissents: Rutledge, Murphy. 21pp. Noted at: 171b Guest, U.S. v., 383 U.S. 745 (1966). 5-4, STEWART. Concurrences: Clark, Black, Fortas, Harlan, Brennan, Warren, Douglas. Dissents: Harlan, Brennan, Warren, Douglas. 42pp. Noted at: 94a Guinn v. U.S., 238 U.S. 347 (1915). 8-0, WHITE. Not voting: McReynolds. 22pp. Noted at: 218a, 405a, 534b Gulf Fisheries Co. v. Maclnerney, 276 U.S. 124 (1928). 9-0, BRANDEIS. 4pp. Noted at: 179b Gunter v. Atlantic Coast Line Railroad Co., 200 U.S. 273 (1906). 8-1, WHITE. Dissent: Brown. 21pp. Noted at: 481a H.L. v. Matheson, 450 U.S. 398 (1981). 6-3, BURGER. Concurrences: Powell, Stewart, Stevens. Dissents: Marshall, Brennan, Blackmun. 57pp. Noted at: 341b H.P. Hood & Sons v. DuMond, 336 U.S. 525 (1949). 5-4, JACKSON. Dissents: Frankfurter, Rutledge, Black, Murphy. 99pp. Noted at: 104a, 463a Hadley v. Junior College District, 379 U.S. 50 (1970). 6-3, BLACK. Dissents: Burger, Harlan, Stewart. 22pp. Noted at: 54a Hafer v. Melo, 502 U.S. 21 (1991). 8-0, O'CONNOR. Not voting: Thomas, npp. Noted at: 239b Hagar v. Reclamation District, 111 U.S. 701 (1884). 9-0, FIELD. 15pp. Noted at: 161b, 502a Hagner v. U.S., 285 U.S. 427 (1932). 9-0, SUTHERLAND. 7pp. Noted at: 516a Hague v. CIO, 307 U.S. 496 (1939). 5-2, ROBERTS. Concurrences: Black, Stone, Reed, Hughes. Dissents: McReynolds, Butler. Not voting: Frankfurter, Douglas. 37pp. Noted at: 141a, 196b, 276a, 397a Haig v. Agee, 453 U.S. 280 (1981). 7-2, BURGER. Concurrence: Blackmun. Dissents: Brennan, Marshall. 41pp. Noted at: 342b, 513b Hale v. Bimco Trading Co., 306 U.S. 375 (1939). 9-0, FRANKFURTER. 6pp. Noted at: 251a Hale v. Henkel, 201 U.S. 43 (1906). 8-1, BROWN. Concurrences: Harlan, McKenna, Fuller. Dissent: Brewer. 47pp. Noted at: 454a, 521a

TABLE OF CASES 975. 976. 977. 978.

979. 980. 981. 982.

983.

984.

985.

986. 987. 988. 989. 990.

991. 992. 993. 994. 995. 996.

997.

Haley v. Ohio, 332 U.S. 596 (1948). 5-4, DOUGLAS. Dissents: Burton, Vinson, Reed, Jackson. 30pp. Noted at: 315a Hall v. Geiger-Jones Co., 242 U.S. 539 (1917). 8-1, McKENNA. Dissent: McReynolds. 21pp. Noted at: 70b Halper, U.S. v., 490 U.S. 435 (1989). 9-0, BLACKMUN. Concurrence: Kennedy. 19pp. Noted at: 401b, 564b Ham v. South Carolina, 409 U.S. 524 (1973). 7-2, REHNQUIST. Concurrences: Douglas, Marshall. Dissents: Douglas, Marshall. 11pp. Noted at: 270b, 532b Hamilton v. Alabama, 368 U.S. 52 (1961). 9-0, DOUGLAS. 4pp. Noted at: 128a Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875). 9-0, BRADLEY. 25pp. Noted at: 140b, 539a Hamilton v. Kentucky Distilleries Co., 251 U.S. 146 (1919). 9-0, BRANDEIS. 23pp. Noted at: 540b Hamling v. U.S., 418 U.S. 87 (1974). 5-4, REHNQUIST. Dissents: Douglas, Brennan, Stewart, Marshall. 66pp. Noted at: 329a Hamm v. Rock Hill, 379 U.S. 306 (1964). 5-4, CLARK. Concurrences: Douglas, Goldberg. Dissents: Black, Harlan, Stewart, White. 23pp. Noted at: 515b Hammer v. Dagenhart, 247 U.S. 251 (1918). 5-4, DAY. Dissents: Holmes, McKenna, Brandeis, Clarke. 31pp. Noted at: 86a, 102a, 255a, 275a, 313b, 322b, 387b, 404b, 504b, 506a, 508b Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). 5-4, STEVENS. Concurrences: Brennan, Marshall. Dissents: Rehnquist, Burger, White, Blackmun. 39pp. Noted at: 43a, 236b Hampton v. U.S. 425 U.S. 484 (1976). 9-0, TAFT. 2pp. Noted at: 167a Hancock v. Train, 426 U.S. 167 (1976). 7-2, WHITE. Dissents: Stewart, Rehnquist. 33pp. Noted at: 168b Handelsbureau La Mola v. Kennedy, 370 U.S. 940 (1962). 8-1, PER CURIAM. Dissent: Black. 4pp. Noted at: 541b Hangfarn v. Mark, 274 N.Y. 22, appeal dismissed, 302 U.S. 641 (1937). 9-0, PER CURIAM, ipp. Noted at: 82a Hankerson v. North Carolina, 432 U.S. 233 (1977). 8-0, WHITE. Concurrences: Blackmun, Burger, Marshall, Powell. Not voting: Rehnquist. 16pp. Noted at: 318a, 388a Hannah v. Plumer, 380 U.S. 460 (1965). 9-0, WARREN. Concurrences: Black, Harlan. 19pp. Noted at: 171b, 459a Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). 8-0, DOUGLAS. Concurrence: Frankfurter. Not voting: Jackson. 15pp. Noted at: 361a Hanover National Bank v. Moyses, 186 U.S. 181 (1902). 9-0, FULLER. 12pp. Noted at: 65b, 429b Hans v. Louisiana, 134 U.S. 1 (1890). 9-0, BRADLEY. Concurrence: Harlan. 21pp. Noted at: 468a, 480b Hansberry v. Lee, 311 U.S. 32 (1940). 9-0, STONE. Concurrences: McReynolds, Roberts, Reed. 14pp. Noted at: 95b Harisiades v. Shaughnessy, 342 U.S. 580 (1952). 6-2, JACKSON. Concurrence: Frankfurter. Dissents: Douglas, Black. Not voting: Clark. 22pp. Noted at: 401a, 402b Harlow v. Fitzgerald, 457 U.S. 800 (1982). 8-1, POWELL. Concurrences: Brennan, Marshall, White, Blackmun. Dissent: Burger. 30pp. Noted at: 239a

677

678

T A B L E OF C A S E S 998. 999.

1000.

1001. 1002. 1003. 1004.

1005. 1006.

1007. 1008. 1009.

1010.

1011. 1012. 1013.

1014. 1015. 1016. 1017.

1018. 1019. 1020.

Harman v. Forssenius, 380 U.S. 528 (1965). 9-0, WARREN. 17pp. Noted at: 23a, 520b, 534b Harmelin v. Michigan, 501 U.S. 957 (1991). 6-3, SCALIA. Concurrences: Kennedy, O'Connor, Souter. Dissents: Blackmun, Stevens, Marshall. 73pp. Noted at: 13, 392b Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993). 7-2, THOMAS. Concurrences: Scalia, Kennedy, White. Dissents: O'Connor, Rehnquist. 51pp. Noted at: 359b, 430a, 493a Harper v. Virginia State Board of Election, 383 U.S. 663 (1966). 6-3, DOUGLAS. Dissents: Black, Harlan, Stewart. 28pp. Noted at: 390a, 520b, 544a Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). 6-3, O'CONNOR. Dissents: Brennan, White, Marshall. 66pp. Noted at: 124b Harris v. Alabama, 513 U.S. 504 (1995). 8-i, O'CONNOR. Dissent: Stevens. 23pp. Noted at: 138a Harris v. McRae, 448 U.S. 297 (1980). 5-4, STEWART. Concurrence: White. Dissents: Brennan, Marshall, Blackmun, Stevens. 33pp. Noted at: 21a, 488a, 545a Harris v. New York, 401 U.S. 222 (1971). 5-4, BURGER. Dissents: Black, Brennan, Douglas, Marshall. 11pp. Noted at: 455b Harris v. Reed, 489 U.S. 255 (1989). 8-1, BLACKMUN. Concurrences: Stevens, O'Connor, Rehnquist, Scalia. Dissent: Kennedy. 33pp. Noted at: 29a Harris v. Rosario, 446 U.S. 651 (1980). 8-i, PER CURIAM. Dissent: Marshall. 6pp. Noted at: 401a Harris, U.S. v., 106 U.S. 629 (1883). 9-0, WOODS. 16pp. Noted at: 93b, 274a Harris, U.S. v., 403 U.S. 573 (1971). 5-4, BURGER. Concurrences: Black, Blackmun, Stewart, White. Dissents: Harlan, Douglas, Brennan, Marshall. 29pp. Noted at: 380a Harriss, U.S. v., 347 U.S. 612 (1954). 5-3, WARREN. Dissents: Douglas, Jackson, Black. Not voting: Clark. 24pp. Noted at: 181b, 288b Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294 (1917). 8-0, CLARKE. Not voting: Day. 6pp. Noted at: 427b Hartwell, U.S. v., 73 U.S. (6 Wall.) 385 (1867). 5-3, SWAYNE. Dissents: Miller, Grier, Field. 17pp. Noted at: 332b Hasting, U.S. v., 461 U.S. 499 (1983). 7-2, BURGER. Concurrences: Blackmun, Stevens, Brennan, Marshall. Dissents: Brennan, Marshall. 30pp. Noted at: 225b Haupt v. U.S., 330 U.S. 631 (1947). 8-1, JACKSON. Dissent: Murphy. 19pp. Noted at: 514a Havens, U.S. v., 446 U.S. 620 (1980). 5-4, WHITE. Dissents: Brennan, Marshall, Stewart, Stevens. 14pp. Noted at: 176a Hawaii Housing Authority v. MidkifF, 467 U.S. 229 (1984). 8-0, O'CONNOR. Not voting: Marshall. 17pp. Noted at: 165a Hawaii, Territory of v. Mankichi, 190 U.S. 197 (1903). 5-4, BROWN. Concurrence: McKenna. Dissents: Fuller, Harlan, Brewer, Peckham. 53pp. Noted at: 191b, 508a Hawke v. Smith, 253 U.S. 221 (1920). 9-0, DAY. npp. Noted at: 44b Hawker v. New York, 170 U.S. 189 (1898). 6-3, BREWER. Dissents: Harlan, Peckham, McKenna. 17pp. Noted at: 174b Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792). Apparently unanimous, though no decision actually reached. 7pp. Noted at: 35a, 81b, 188b, 264b

TABLE OF C A S E S 1021. 1022. 1023. 1024.

1025. 1026. 1027. 1028.

1029.

1030. 1031. 1032.

1033. 1034. 1035.

1036. 1037. 1038.

1039. 1040. 1041. 1042. 1043. 1044.

Hays, U.S. v., 515 U.S. 737 (1995). 9-0, O'CONNOR. Concurrences: Breyer, Stevens. 16pp. Noted at: 474a Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). 6-3, WHITE. Dissents: Brennan, Marshall, Blackmun. 31pp. Noted at: 273a, 487b Head Money Cases, 112 U.S. 580 (1884). 9-0, MILLER. 21pp. Noted at: 514b Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964). 9-0, CLARK. Concurrences: Black, Douglas, Goldberg. 53pp. Noted at: 255b, 313b, 394b, 399b Heath v. Alabama, 474 U.S. 82 (1985). 7-2, O'CONNOR. Dissents: Brennan, Marshall. 22pp. Noted at: 151a Hebe Co. v. Shaw, 248 U.S. 297 (1919). 6-3, HOLMES. Dissents: Day, Van Devanter, Brandeis. 11pp. Noted at: 306a, 408a Heck v. Humphrey, 512 U.S. 477 (1994). 9-0, SCALIA. Concurrences: Thomas, Souter. 27pp. Noted at: 123a, 387b Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981). 5-4, WHITE. Concurrences: Brennan, Marshall, Stevens, Blackmun. Dissents: Brennan, Marshall, Stevens, Blackmun. 26pp. Noted at: 397b, 510b Heller v. Doe by Doe, 509 U.S. 312 (1993). 6-3, 5-4, KENNEDY. Concurrence: O'Connor. Dissents: Blackmun, Souter, Stevens, O'Connor. 22pp. Noted at: 90b, 411b Helling v. McKinney, 509 U.S. 25 (1993). 7-2, WHITE. Dissents: Thomas, Scalia. 18pp. Noted at: 376a Helvering v. Davis, 301 U.S. 619 (1937). 7-2, CARDOZO. Dissents: McReynolds, Butler. 28pp. Noted at: 132a, 472b Helvering v. Gerhardt, 304 U.S. 405 (1938). 5-2, STONE. Concurrence: Black. Dissents: Butler, McReynolds. Not voting: Cardozo, Reed. 26pp. Noted at: 185a, 237a Helvering v. Horst, 311 U.S. 112 (1940). 6-3, STONE. Dissents: McReynolds, Hughes, Roberts. 10pp. Noted at: 243b Helvering v. Ind. L. Ins. Co., 292 U.S. 371 (1934). 8-1, BUTLER. Dissent: McReynolds. npp. Noted at: 243b Helvering v. National Grocery Co., 304 U.S. 282 (1938). 5-2, BRANDEIS. Dissents: McReynolds, Butler. Not voting: Cardozo, Reed. 14pp. Noted at: 243a Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940). 9-0, BLACK. 8pp. Noted at: 243a Hemphill v. Orloff, 277 U.S. 537 (1928). 9-0, McREYNOLDS. 15pp. Noted at-. 379a Henderson v. Morgan, 426 U.S. 637 (1976). 7-2, STEVENS. Concurrences: White, Stewart, Blackmun, Powell. Dissents: Rehnquist, Burger. 22pp. Noted at: 57a, 219b, 352a Henderson v. New York, 92 U.S. 259 (1875). 9-0, MILLER. 17pp. Noted at: 236a Henderson's Distilled Spirits, 81 U.S. (14 Wall.) 44 (1872). 6-3, CLIFFORD. Dissents: Field, Chase, Miller. 26pp. Noted at: 519a Hendrick v. Maryland, 235 U.S. 610 (1915). 9-0, McREYNOLDS. 16pp. Noted at: 312a, 512b Henneford v. Silas Mason Co., 300 U.S. 577 (1937). 7-2, CARDOZO. Dissents: McReynolds, Butler. 12pp. Noted at: 502b, 524b Henry v. Collins, 380 U.S. 356 (1965). 9-0, PER CURIAM. 3pp. Noted at: 396b Henry v. Mississippi, 379 U.S. 443 (1965). 5-4, BRENNAN. Dissents: Black, Harlan, Clark, Stewart. 22pp. Noted at: 29a

679

680

TABLE OF C A S E S 1045.

1046. 1047. 1048. 1049. 1050.

1051.

1052. 1053.

1054.

1055. 1056. 1057. 1057a. 1058.

1059. 1060. 1061.

1062. 1063. 1064. 1065. 1066.

Henry v. U.S., 361 U.S. 98 (1959). 7-2, DOUGLAS. Concurrence: Black. Dissents: Clark, Warren. 9pp. Noted at: 380a, 381a Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935). 9-0, McREYNOLDS. 6pp. Noted at: 268b Hepburn v. Ellzey, 6 U.S. (2 Cr.) 445 (1804). 6-0, MARSHALL. 9pp. Noted at: 147a Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1869). 5-3, CHASE. Dissents: Miller, Swayne, Davis. 37pp. Noted at: 135a Herb v. Pitcairn, 324 U.S. 117 (1945). 5-4, JACKSON. Dissents: Rutledge, Black, Douglas, Murphy. 21pp. Noted at: 28a Herbert v. Lando, 441 U.S. 153 (1979). 7-2, 6-3 (various coalitions), WHITE. Concurrence: Powell. Dissents: Brennan, Stewart, Marshall. 58pp. Noted at: 144b, 425a Hernandez v. New York, 500 U.S. 352 (1991). 6-3, KENNEDY. Concurrences: O'Connor, Scalia. Dissents: Blackmun, Stevens, Marshall. 19pp. Noted at: 346b Hernandez v. Texas, 347 U.S. 475 (1954). 9-0, WARREN. 8pp. Noted at: 271a Herrera v. Collins, 506 U.S. 390 (1993). 6-3, REHNQUIST. Concurrences: O'Connor, Kennedy, Scalia, Thomas. Dissents: Blackmun, Stevens, Souter. 57pp. Noted at: 224a Hess v. Indiana, 414 U.S. 105 (1973). 6-3, PER CURIAM. Dissents: Rehnquist, Burger, Blackmun. 7pp. Noted at: 272a, 491a Hess v. Pawloski, 274 U.S. 352 (1927). 9-0, BUTLER. 6pp. Noted at: 268b, 380a Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994). 5-4, GINSBURG. 34pp. Noted at: 480b Hester v. U.S., 265 U.S. 57 (1924). 9-0, HOLMES. 2pp. Noted at: 446b Hetzel v. Prince William County, Va., 118 S.Ct. 1210 (1998). 9-0, PER CURIAM. 3pp. Noted at: 569a Hewitt v. Helms, 459 U.S. 460 (1983). 5-4, REHNQUIST. Concurrence: Blackmun. Dissents: Blackmun, Stevens, Brennan, Marshall. 37pp. Noted at: 376a, 384b Hiatt v. Brown, 339 U.S. 103 (1950). 8-0, CLARK. Concurrence: Burton. Not voting: Douglas. 10pp. Noted at: 304b Hicklin v. Orbeck, 437 U.S. 518 (1978). 9-0, BRENNAN. 17pp. Noted at: 379b Hicks v. Miranda, 422 U.S. 332 (1975). 5-4, WHITE. Concurrence: Burger. Dissents: Stewart, Douglas, Brennan, Marshall. 26pp. Noted at: 23a, 491a Hill v. Wallace, 259 U.S. 44 (1922). 9-0, TAFT. Concurrence: Brandeis. 31pp. Noted at: 506a Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938). 8-0, BRANDEIS. Not voting: Cardozo. 20pp. Noted at: 183b Hines v. Davidowitz, 312 U.S. 52 (1941). 6-3, BLACK. Dissents: Stone, Hughes, McReynolds. 30pp. Noted at: 363a Hipolite Egg Co. v. U.S., 220 U.S. 45 (1911). 9-0, McKENNA. 16pp. Noted at: 192a, 254a Hirabayashi v. U.S., 320 U.S. 81 (1943). 9-0, STONE. Concurrences: Douglas, Murphy, Rutledge. 34pp. Noted at: ioob-ioia, 140b, 164a, 219a, 261a, 367b

TABLE OF C A S E S 1067.

1068. 1069. 1070.

1071. 1072. 1073. 1074. 1075. 1076. 1077. 1078.

1079. 1080. 1081.

1082.

1083. 1083a. 1084. 1085. 1086. 1087.

1088.

Hodel v. Irving, 481 U.S. 704 (1987). 9-0, O'CONNOR. Concurrences: Brennan, Marshall, Blackmun, Scalia, Rehnquist, Powell, Stevens, White. 31pp. Noted at: 172a Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981). 9-0, MARSHALL. Concurrences: Burger, Powell, Rehnquist. 44pp. Noted at: 168b, 435b Hodges v. U.S., 203 U.S. 1 (1906). 7-2, BREWER. Concurrence: Brown. Dissents: Harlan, Day. 38pp. Noted at: 509b Hodgson v. Minnesota, 497 U.S. 417 (1990). 9-0, 5-4 (various coalitions), STEVENS. Concurrences: O'Connor, Marshall, Brennan, Blackmun, Scalia, Kennedy. Dissents: Marshall, Brennan, Blackmun, Scalia, Kennedy, Rehnquist, White. 47pp. Noted at: 20b, 341b Hoffman Estates v. Flipside, 455 U.S. 489 (1982). 9-0, MARSHALL. Concurrence: White. 20pp. Noted at: 528a Hoke v. U.S. 227 U.S. 308 (1913). 9-0, McKENNA. 18pp. Noted at: 255a, 313b Holden v. Hardy, 169 U.S. 366 (1898). 7-2, BROWN. Dissents: Brewer, Peckham. 33pp. Noted at: 160a, 199b, 289b Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). 6-0, CHASE. 5pp. Noted at: 335a Holloway v. Arkansas, 435 U.S. 475 (1978). 6-3, BURGER. Dissents: Powell, Blackmun, Rehnquist. 22pp. Noted at: 249a Holmes v. Atlanta, 350 U.S. 879 (1955). 9-0, PER CURIAM, ipp. Noted at: 452a Holt v. U.S., 218 U.S. 245 (1910). 9-0, HOLT. 10pp. Noted at: 454a Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934). 5-4, HUGHES. Dissents: Sutherland, Van Devanter, McReynolds, Butler. 109pp. Noted at: 164b, 310b, 326b-327a Home Insurance Co. v. Dick, 281 U.S. 397 (1930). 9-0, BRANDEIS. 15pp. Noted at: m Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 (1913). 9-0, WHITE. 19pp. Noted at: 99b Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415 (1994). 7-2, STEVENS. Concurrence: Scalia. Dissents: Ginsburg, Rehnquist. 37pp. Noted at: 403 b Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985). 6-3, BURGER. Concurrence: Brennan. Dissents: Stevens, Rehnquist, O'Connor. 22pp. Noted at: 450a Hope Gas Co. v. Hall, 274 U.S. 284 (1927). 8-0, McREYNOLDS. Not voting: Taft. 6pp. Noted at: 502b Hopkins v. Reeves, 118 S.Ct. 1895 (1998). 8-i, THOMAS. Dissent: Stevens. 9pp. Noted at: 557b Hopt v. Utah, no U.S. 574 (1884). 9-0, HARLAN. 17pp. Noted at: 454b Horton v. California, 496 U.S. 128 (1990). 7-2, STEVENS. Dissents: Brennan, Marshall. 26pp. Noted at: 447a Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1850). 8-0, NELSON. Dissent: Woodbury. 25pp. Noted at: 342a Houchins v. KQED, Inc., 438 U.S. 1 (1978). 6-3, BURGER. Concurrence: Stewart. Dissents: Stevens, Brennan, Powell. 40pp. Noted at: 216b Houston v. Hill, 482 U.S. 451 (1987). 8-1, BRENNAN. Concurrences: Blackmun, Scalia, Powell, O'Connor. Dissents: Rehnquist, Powell, O'Connor. 31pp. Noted at: 338b

681

682

TABLE OF C A S E S 1089. 1090. 1091. 1092.

1093.

1094. 1095.

1095a.

1096. 1097. 1098.

1099. 1100. 1101. 1102. 1103. 1104. 1105. xio6.

1107. 1108. 1109. mo. mi.

Houston & Texas Central Rd. v. Texas, 177 U.S. 66 (1900). 9-0, PECKHAM. Concurrence: Brown. 38pp. Noted at: 68b Houston E. & W. Texas Ry. Co. v. U.S., 234 U.S. 342 (1914). 7-2, HUGHES. Dissents: Lurton, Pitney. 19pp. Noted at: ioib, 254b, 373a Hoyt v. Florida, 368 U.S. 57 (1961). 9-0, HARLAN. Concurrences: Warren, Black, Douglas. 13pp. Noted at: 460a, 477b Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976). 6-2, STEWART. Concurrences: Powell, Burger, White. Dissents: Marshall, Brennan. Not voting: Stevens. 37pp. Noted at: 399a, 462b, 478a, 515a Hudson v. McMillian, 503 U.S. 1 (1992). 7-2, O'CONNOR. Concurrences: Stevens, Blackmun. Dissents: Thomas, Scalia. 29pp. Noted at: 375b, 403a Hudson v. North Carolina, 363 U.S. 697 (i960). 9-0, STEWART. Dissents: Clark, Whittaker. 12pp. Noted at: 128a Hudson v. Palmer, 468 U.S. 517 (1984). 5-4, BURGER. Concurrences: O'Connor, Stevens, Brennan, Marshall, Blackmun. Dissents: Stevens, Brennan, Marshall, Blackmun. 42pp. Noted at: 229b, 375a, 376b, 381b, 386a, 447a Hudson v. U.S., 118 S.Ct. 488 (1997). 9-0, REHNQUIST. Concurrences: Scalia, Thomas, Stevens, Souter, Breyer, Ginsburg. 15pp. Noted at: 565a Hudson & Goodwin, U.S. v., 11 U.S. (7 Cr.) 32 (1812). 6-0, JOHNSON. Not voting: Washington. 3pp. Noted at: 133a, 263b, 494a Hudson Water Co. v. McCarter, 209 U.S. 349 (1908). 8-1, HOLMES. Dissent: McKenna. 9pp. Noted at: 98a Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976). 6-3, POWELL. Concurrence: Stevens. Dissents: Brennan, White, Marshall. 39pp. Noted at: 71b, 299a Hughes v. Oklahoma, 441 U.S. 322 (1979). 7-2, BRENNAN. Dissents: Rehnquist, Burger. 24pp. Noted at: 117a, 150a, 211b, 379b Hump Hairpin Co. v. Emmerson, 258 U.S. 290 (1922). 8-1, CLARKE. Concurrence: McReynolds. Dissent: Van Devanter. 6pp. Noted at: 502b Humphrey's Executor v. U.S., 295 U.S. 602 (1935). 9-0, SUTHERLAND. 31pp. Noted at: 52a, 131a Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). 8-0, BURGER. Not voting: Rehnquist. 22pp. Noted at: 150a, 192a, 474b Hunter v. Erickson, 393 U.S. 385 (1969). 8-1, WHITE. Dissent: Black. 13pp. Noted at: 416b, 477b Hunter v. Pittsburgh, 207 U.S. 161 (1907). 9-0, MOODY. 20pp. Noted at: 358b Hunter v. Underwood, 471 U.S. 222 (1985). 8-0, REHNQUIST. Not voting: Powell. 12pp. Noted at: 310a, 533b Hurd v. Hodge, 334 U.S. 24 (1948). 6-0, VINSON. Concurrence: Frankfurter. Not voting: Reed, Jackson, Rutledge. 13pp. Noted at: 429a Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). 9-0, SOUTER. 25pp. Noted at: 339b Hurtado v. California, no U.S. 516 (1884). 9-0, MATTHEWS. 23pp. Noted at: 157a, 217b, 245b, 248b Hustler Magazine v. Falwell, 485 U.S. 46 (1988). 8-0, REHNQUIST. Concurrence: White. Not voting: Kennedy. 12pp. Noted at: 227b, 303a Hutchinson v. Proxmire, 443 U.S. in (1979). 7-2, BURGER. Concurrence: Stewart. Dissents: Stewart, Brennan. 26pp. Noted at: 397a, 471b Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916). 9-0, BRANDEIS. 8pp. Noted at: 306a

TABLE OF C A S E S 1112.

1113.

1114. 1115. 1116.

1117.

1118.

1119. 1120.

1121. 1122. 1123. 1124. 1125.

1126.

1127.

1128. 1129.

1130.

1131.

Hutto v. Davis, 454 U.S. 370 (1982). 6-3, PER CURIAM. Concurrence: Powell. Dissents: Brennan, Marshall, Stevens. 19pp. Noted at: 392b Hutto v. Finney, 437 U.S. 678 (1978). 8-i, STEVENS. Concurrences: Brennan, Powell. Dissents: Powell, White, Rehnquist. 41pp. Noted at: 375b, 403a Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). 9-0, PECKHAM. 29pp. Noted at: 179b, 180a Hylton v. U.S., 3 U.S. (3 Dall.) 171 (1796). 6-0, CHASE. 14pp. Noted at: 53a, 144a Hynes v. Mayor of Oradell, 425 U.S. 610 (1976). 8-1, BURGER. Concurrences: Brennan, Marshall. Dissent: Rehnquist. 27pp. Noted at: 466b, 527a Ibanez v. Florida Dept. of Business and Professional Regulation, 512 U.S. 136 (1994). 9-0, 7-2, GINSBURG. Concurrence: O'Connor. Dissents: O'Connor, Rehnquist. 18pp. Noted at: 106b Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028 (1997). 5-4, KENNEDY. Concurrence: O'Connor. Dissents: Souter, Stevens, Ginsburg, Breyer. 31pp. Noted at: 481a Illinois v. City of Milwaukee, 406 U.S. 91 (1972). 9-0, DOUGLAS. 18pp. Noted at: 337a Illinois v. Gates, 462 U.S. 213 (1983). 6-3, REHNQUIST. Concurrence: White. Dissents: Brennan, Marshall, Stevens. 83pp. Noted at: 381a Illinois v. LaFayette, 462 U.S. 640 (1983). 9-0, BURGER. Concurrences: Marshall, Brennan. 10pp. Noted at: 446a Illinois v. Rodriguez, 497 U.S. 177 (1990). 6-3, SCALIA. Dissents: Marshall, Brennan, Stevens. 14pp. Noted at: 445a Illinois ex rel. McCollum v. Board of Education, Champaign County, 333 U.S. 203 (1948). 8-1, BLACK. Concurrences: Rutledge, Burton. Dissent: Reed. 54pp. Noted at: 418a, 439b Imbler v. Pachtman, 424 U.S. 409 (1976). 9-0, POWELL. Concurrences: White, Brennan, Marshall. 39pp. Noted at: 239b, 394a Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983). 7-2, BURGER. Concurrence: Powell. Dissents: White, Rehnquist. 47pp. Noted at: 30b, 67a, 112b, 161b, 177b, 242b, 281a, 335a, 417a, 458a, 541a In re—, see name of the party Ingraham v. Wright, 430 U.S. 651 (1977). 5-4, POWELL. Dissents: White, Brennan, Marshall, Stevens. 52pp. Noted at: 286b, 384b, 386a, 402b, 437b, 487b Insular Cases, see De Lima v. Bidwell, Dooley v. U.S., Downes v. Bidwell, Hawaii v. Mankichi International Assn. of Machinists v. Street, 367 U.S. 740 (1961). 5-4, BRENNAN. Concurrences: Douglas, Whittaker. Dissents: Whittaker, Frankfurter, Harlan, Black. 41pp. Noted at: 198a, 469a International Boxing Club, U.S. v., 348 U.S. 236 (1955). 7-2, WARREN. Concurrences: Burton, Reed. Dissents: Frankfurter, Minton. 17pp. Noted at: 66b International Brotherhood, Electrical Workers 501 v. National Labor Relations Board, 341 U.S. 694 (1951). 6-3, BURTON. Dissents: Douglas, Reed, Jackson. 12pp. Noted at: 71b International Business Machines Corp., U.S. v., 517 U.S. 843 (1996). 6-2, THOMAS. Dissents: Kennedy, Ginsburg. Not voting: Stevens. 38pp. Noted at: 179b, 242b International Harvester Co. v. Kentucky, 234 U.S. 579 (1914). 9-0, DAY. 10pp. Noted at: 268b

683

684

T A B L E OF C A S E S 1132. 1133. 1134.

1135. 1136. 1137. 1138. 1139. 1140. 1141.

1142. 1143.

1144. 1145. 1146. 1147. 1148. 1148a. 1149. 1150.

1151. 1152. 1153. 1154. 1155.

International Shoe Co. v. Pinkus, 278 U.S. 261 (1929). 6-3, BUTLER. Dissents: McReynolds, Brandeis, Sanford. 8pp. Noted at: 66a International Shoe Co. v. Washington, 326 U.S. 310 (1945). 9-0, STONE. 17pp. Noted at: 268b International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). 6-3, REHNQUIST. Concurrences: O'Connor, Kennedy, Blackmun, Stevens, Souter. Dissents: Souter, Blackmun, Stevens. 45pp. Noted at: 398b International Union, UMWA v. Bagwell, 512 U.S. 821 (1994). 9-0, BLACKMUN. Concurrences: Scalia, Ginsburg, Rehnquist. 27pp. Noted at: 401b, 519a Interstate Busses Corp. v. Blodgett, 276 U.S. 245 (1928). 9-0, STONE. 8pp. Noted at: 504a Interstate Commerce Commission v. Illinois Central R.R. Co., 215 U.S. 452 (1910). 8-1, WHITE. Dissent: Brewer. 28pp. Noted at: 411a Interstate Commerce Commission v. Louisville & Nashville R.R., 227 U.S. 88 (1913). 9-0, LAMAR. 11pp. Noted at: 30a Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987). 8-1, MARSHALL. Concurrence: Stevens. Dissent: Stevens. 14pp. Noted at: 248a Irvin v. Dowd, 366 U.S. 717 (1961). 9-0, CLARK. Concurrence: Frankfurter. 14pp. Noted at: 195b, 270b, 364b, 516a Irvine v. California, 347 U.S. 128 (1954). 5-4, JACKSON. Concurrence: Clark. Dissents: Douglas, Frankfurter, Black, Burton. 28pp. Noted at: 315a Itel Containers International Corp. v. Huddleston, 507 U.S. 60 (1993). 8-1, KENNEDY. Concurrence: Scalia. Dissent: Blackmun. 28pp. Noted at: 103a J. E. B. v. Alabama ex rel T. B., 511 U.S. 127 (1994). 6-3, BLACKMUN. Concurrences: O'Connor, Kennedy. Dissents: Rehnquist, Scalia, Thomas. 37pp. Noted at: 346b J. I. Case Co. v. Borak, 377 U.S. 426 (1964). 9-0, CLARK. 10pp. Noted at: 378b J. W. Hampton, Jr. & Co. v. U.S. 276 U.S. 394 (1928). 9-0, TAFT. 19pp. Noted at: 140a, 505a Jackson v. Denno, 378 U.S. 368 (1964). 5-4, WHITE. Dissents: Clark, Harlan, Stewart, Black. 73pp. Noted at: 270b, 492a Jackson v. Indiana, 406 U.S. 715 (1972). 7-0, BLACKMUN. Not voting: Powell, Rehnquist. 27pp. Noted at: 90a, 251a Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). 6-3, REHNQUIST. Dissents: Douglas, Brennan, Marshall. 30pp. Noted at: 399b, 478b, 525b Jackson v. Virginia, 443 U.S. 307 (1979). 8-0, STEWART. Concurrence: Stevens. Not voting: Powell. 33pp. Noted at: 222b Jackson, Ex parte, 96 U.S. 727 (1877). 9-0, FIELD. 10pp. Noted at: 360b Jacobellis v. Ohio, 378 U.S. 184 (1964). 6-3, BRENNAN. Concurrences: White, Douglas, Stewart, Black, Goldberg. Dissents: Warren, Harlan, Clark. 21pp. Noted at: 328a, 329a Jacobson v. Massachusetts, 197 U.S. 11 (1905). 7-2, HARLAN. Dissents: Brewer, Peckham. 22pp. Noted at: 362b, 526a Jacobson v. U.S., 503 U.S. 540 (1992). 5-4, WHITE. Dissents: O'Connor, Rehnquist, Kennedy, Scalia. 22pp. Noted at: 167b James v. Bowman, 190 U.S. 127 (1903). 6-2, BREWER. Dissents: Harlan, Brown. Not voting: McKenna. 16pp. Noted at: 93b James v. Campbell, 104 U.S. 356 (1881). 8-1, BRADLEY. Dissent: Miller. 30pp. Noted at: 343a James v. Dravo Contract Co., 302 U.S. 134 (1937). 5-4, HUGHES. Dissents: Roberts, McReynolds, Sutherland, Butler. 52pp. Noted at: 237a

TABLE OF CASES 1156.

1157.

1158.

1159.

1160. 1161.

1162.

James v. Illinois, 493 U.S. 307 (1990). 5-4, BRENNAN. Concurrence: Stevens. Dissents: Kennedy, Rehnquist, O'Connor, Scalia. 14pp. Noted at: 1763. James v. U.S., 366 U.S. 213 (1961). 6-3, WARREN. Concurrences: Black, Douglas, Harlan, Frankfurter, Clark, Whittaker. Dissents: Black, Douglas, Harlan, Frankfurter, Clark, Whittaker. 46pp. Noted at: 243b James v. Valtierra, 402 U.S. 137 (1971). 5-3, BLACK. Dissents: Marshall, Brennan, Blackmun. Not voting: Douglas. 9pp. Noted at: 412a, 416b James Daniel Good Real Property, U.S. v., 510 U.S. 43 (1993). 5-4, 9-0, KENNEDY. Concurrences: Rehnquist, Scalia, O'Connor, Thomas. Dissents: Rehnquist, Scalia, O'Connor, Thomas. 43pp. Noted at: 193a Janis, U.S. v., 428 U.S. 433 (1976). 6-3, BLACKMUN. Dissents: Brennan, Marshall, Stewart. 31pp. Noted at: 1763., 463b Japan Lines Ltd. v. County of Los Angeles, 441 U.S. 434 (1979). 8-1, BLACKMUN. Dissent: Rehnquist. 24pp. Noted at: 103a Japanese Immigrant Case, see Yamataya v. Fisher Jefferson v. Hackney, 406 U.S. 535 (1972). 5-4, REHNQUIST. Dissents: Douglas, Brennan, Marshall, Stewart. 48pp. Noted at: 545a

1163. 1164.

1165.

1166.

1167. 1168.

1169. 1169a. 1170. 1171.

1172. 1173. 1174.

1175.

Jehovah's Witnesses v. King County Hospital, 390 U.S. 598 (1968). 9-0, PER CURIAM, ipp. Noted at: 301a Jencks v. U.S., 353 U.S. 657 (1957). 7-1, BRENNAN. Dissent: Clark. Concurrences: Burton, Harlan. Not voting: Whittaker. 28pp. Noted at: 144a Jenkins v. Anderson, 447 U.S. 231 (1980). 7-2, POWELL. Concurrence: Stevens. Dissents: Marshall, Brennan. 24pp. Noted at: 454b Jenkins v. Georgia, 418 U.S. 153 (1974). 9-0, REHNQUIST. Concurrences: Brennan, Stewart, Marshall, Douglas. 13pp. Noted at: 49a, 329a Jenness v. Fortson, 403 U.S. 431 (1971). 9-0, STEWART. 12pp. Noted at: 25a Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock, 513 U.S. 527 (1995). 7-0, SOUTER. Concurrences: O'Connor, Thomas. Not participating: Stevens, Breyer. 30pp. Noted at: 32b Jimenez v. Weinberger, 417 U.S. 628 (1974). 8-1, BURGER. Dissent: Rehnquist. 13pp. Noted at: 412a Jin Fuey Moy, U.S. v., 241 U.S. 394 (1916). 7-2, HOLMES. Dissents: Hughes, Pitney. 9pp. Noted at: 557a Johnson v. Avery, 393 U.S. 483 (1969). 7-2, FORTAS. Dissents: Black, White. 20pp. Noted at: 132a Johnson v. De Grandy, 512 U.S. 997 (1994). 7-2, SOUTER. Concurrences: O'Connor, Kennedy. Dissents: Thomas, Scalia. 36pp. Noted at: 23b Johnson v. Eisentrager, 339 U.S. 763 (1950). 6-3, JACKSON. Dissents: Black, Douglas, Burton. 36pp. Noted at: 191b Johnson v. Fankell, 117 S.Ct. 1800 (1997). 9-0, STEVENS. 8pp. Noted at: 264a Johnson v. Louisiana, 406 U.S. 356 (1972). 5-4, WHITE. Concurrences: Blackmun, Powell. Dissents: Stewart, Brennan, Marshall, Douglas. 48pp. Noted at: 208a, 271b Johnson v. Maryland, 254 U.S. 51 (1920). 7-2, HOLMES. Dissents: Pitney, McReynolds. 7pp. Noted at: 185a, 360b

685

686

TABLE OF C A S E S 1176.

1177. 1178.

1179. 1180. 1181.

1182. 1183. 1184.

1185. 1186.

1187. 1188. 1189.

1190. 1191. 1192. 1193.

1194. 1195. 1196. 1197.

1198.

Johnson v. New Jersey, 384 U.S. 719 (1966). 7-2, WARREN. Concurrences: Clark, Harlan, Stewart, White. Dissents: Black, Douglas. 18pp. Noted at: 318a Johnson v. Robison, 415 U.S. 361 (1974). 8-1, BRENNAN. Dissent: Douglas. 30pp. Noted at: 116a Johnson v. Texas, 509 U.S. 350 (1993). 5-4, KENNEDY. Concurrences: Scalia, Thomas. Dissents: O'Connor, Blackmun, Stevens, Souter. 39pp. Noted at: 308b Johnson v. U.S., 333 U.S. 10 (1948). 5-4, JACKSON. Dissents: Vinson, Black, Reed, Burton. 8pp. Noted at: 446b Johnson v. Virginia, 373 U.S. 61 (1963). 9-0, PER CURIAM. 2pp. Noted at: 452a Johnson v. Zerbst, 304 U.S. 458 (1938). 6-2, BLACK. Concurrence: Reed. Dissents: McReynolds, Buder. Not voting: Cardozo. 12pp. Noted at: 127b Johnson and Graham's Lessee v. Mcintosh, 21 U.S. (8 Wheat.) 543 (1823). 7-0, MARSHALL. 62pp. Noted at: 247a Johnson Oil Co. v. Oklahoma, 290 U.S. 158 (1933). 9-0, HUGHES. 6pp. Noted at: 391a Johnson, U.S. v., 457 U.S. 537 (1982). 5-4, BLACKMUN. Concurrence: Brennan. Dissents: White, Burger, Rehnquist, O'Connor. 32pp. Noted at: 318a Johnson, U.S. v., 481 U.S 681 (1987). 5-4, POWELL. Dissents: Scalia, Brennan, Marshall, Stevens. 23pp. Noted at: 468a Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). 5-3, BURTON. Concurrences: Black, Frankfurter, Douglas, Jackson. Dissents: Reed, Vinson, Minton. Not voting: Clark. 90pp. Noted at: 69b, 383b Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). 7-2, STEWART. Dissents: Harlan, White. 71pp. Noted at: 62b, 93a, 94b, 410b, 509b Jones v. Helms, 452 U.S. 412 (1981). 9-0, STEVENS. Concurrences: White, Blackmun. 17pp. Noted at: 407b Jones v. North Carolina Prisoners' Union, 433 U.S. 119 (1977). 6-3, REHNQUIST. Concurrences: Burger, Stevens. Dissents: Stevens, Marshall, Brennan. 29pp. Noted at: 26a Jones v. Opelika, City of, 316 U.S. 584 (1942). 5-4, REED. Dissents: Stone, Black, Douglas, Murphy. 41pp. Noted at: 364a Jones v. Opelika, City of, 319 U.S. 103 (1943). 7-2, PER CURIAM. Dissents: Reed, Frankfurter. 2pp. Noted at: 97b Jones v. U.S., 137 U.S. 202 (1890). 9-0, GRAY. 23pp. Noted at: 357b, 516a Jones v. U.S., 463 U.S. 354 (1983). 5-4, POWELL. Dissents: Brennan, Marshall, Blackmun, Stevens. 34pp. Noted at: 90a, 251a, 434a Jones v. Wolf, 443 U.S. 595 (1979). 5-4, BLACKMUN. Dissents: Powell, Burger, Stewart, White. 27pp. Noted at: 317b, 419a Jones, U.S. v., 119 U.S. 477 (1886). 9-0, WAITE. 4pp. Noted at: 58a Jordan v. DeGeorge, 341 U.S. 223 (1951). 6-3, VINSON. Dissents: Jackson, Black, Frankfurter. 22pp. Noted at: 310a Jorn, U.S. v., 400 U.S. 470 (1971). 6-3, HARLAN. Concurrences: Burger, Black, Brennan. Dissents: Stewart, White, Blackmun. 24pp. Noted at: 152b Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). 9-0, CLARK. Concurrences: Reed, Frankfurter, Jackson, Burton. 46pp. Noted at: 70a, 82b, 331a

TABLE OF CASES 1199.

1200.

1201. 1202. 1202a. 1203. 1204. 1205.

1206.

1207.

1208.

1209.

1210. 1211. 1212.

1213. 1214. 1215. 1216. 1217.

1218. 1219.

J u Toy, U.S. v., 198 U.S. 253 (1905). 6-3, HOLMES. Dissents: Brewer, Peckham, Day. 27pp. Noted at: nib Julliard v. Greenman, see Legal Tender Cases Jurek v. Texas, 428 U.S. 262 (1976). 7-2, STEVENS. Concurrences: Burger, White, Rehnquist, Blackmun. Dissents: Brennan, Marshall. 18pp. Noted at: 138a Kahn v. Shevin, 416 U.S. 351 (1974). 7-2, DOUGLAS. Dissents: Brennan, Marshall. 11pp. Noted at: 390b, 460b Kahriger, U.S. v., 345 U.S. 22 (1953). 6-3, REED. Dissents: Frankfurter, Black, Douglas. 15pp. Noted at: 330a, 505a Kalina v. Fletcher, 118 S.Ct. 502 (1997). 9-0, STEVENS. Concurrence: Scalia. 11pp. Noted at: 560b Kanapaux v. Ellisor, 419 U.S. 891 (1974). 9-0, PER CURIAM, ipp. Noted at: 24b Kansas v. Colorado, 206 U.S. 46 (1907). 8-0, BREWER. Concurrences: White, McKenna. Not voting: Moody. 73pp. Noted at: 480a Kansas v. Hendricks, 117 S.Ct. 2072 (1997). 5-4, THOMAS. Concurrence: Kennedy. Dissents: Breyer, Stevens, Souter, Ginsburg. 28pp. Noted at: 89b, 90a, 373a Karo, U.S. v., 468 U.S. 705 (1984). 6-3, WHITE. Concurrences: O'Connor, Rehnquist, Stevens, Brennan, Marshall. Dissents: Stevens, Brennan, Marshall. 32pp. Noted at: 448b Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). 6-3, POWELL. Concurrences: Brennan, Marshall. Dissents: Rehnquist, Burger, Stewart. 45pp. Noted at: 149b, 513a Kastigar v. U.S., 406 U.S. 441 (1972). 5-2, POWELL. Dissents: Douglas, Marshall. Not voting: Brennan, Rehnquist. 31pp. Noted at: 238b Katz v. U.S., 389 U.S. 347 (1967). 7-1, STEWART. Concurrences: Douglas, Brennan, Harlan, White. Dissent: Black. Not voting: Marshall. 28pp. Noted at: 443a, 446b, 448b Katzenbach v. McClung, 379 U.S. 294 (1964). 9-0, CLARK. 12pp. Noted at: 255b, 313b, 395a Katzenbach v. Morgan, 384 U.S. 641 (1966). 7-2, BRENNAN. Dissents: Harlan, Stewart. 18pp. Noted at: 94b, 115a, 288a, 537a Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church of No. America, 344 U.S. 94 (1952.)8-1, REED. Concurrences: Frankfurter, Black, Douglas. Dissent: Jackson. 39pp. Noted at: 419a Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). 5-4, WHITE. Dissents: O'Connor, Blackmun, Stevens, Kennedy. 24pp. Noted at: 224a Keeton v. Hustler Magazine, 465 U.S. 770 (1984). 9-0, REHNQUIST. Concurrence: Brennan. 13pp. Noted at: 269a Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381 (1939). 9-0, FRANKFURTER. 17pp. Noted at: 468a Keller v. State Bar of California, 496 U.S. 1 (1990). 9-0, REHNQUIST. 17pp. Noted at: 198a, 278b, 469a Kelley v. Johnson, 425 U.S. 238 (1976). 6-2, REHNQUIST. Concurrence: Powell. Dissents: Marshall, Brennan. Not voting: Stevens. 19pp. Noted at: 154b Kemmler, In re, 136 U.S. 436 (1890). 9-0, FULLER. 14pp. Noted at: 402b Kendall v. U.S. ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838). 6-3, THOMPSON. Dissents: Barbour, Catron, Taney. 130pp. Noted at: 369a

687

688

TABLE OF CASES 1220. 1221. 1222. 1223. 1224. 1225.

1226. 1227. 1228.

1229.

1230.

1231.

1232. 1233.

1234. 1235.

1235a. 1236. 1237.

1238. 1239.

1240.

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). 5-4, GOLDBERG. Dissents: Stewart, Harlan, White, Clark. 76pp. Noted at: 179a, 518b Kent v. Dalles, 357 U.S. 116 (1958). 5-4, DOUGLAS. Dissents: Clark, Burton, Harlan, Whittaker. 28pp. Noted at: 121b, 342b Kentucky v. Dennison, 65 U.S. (24 How.) 66 (i860). 9-0, TANEY. 44pp. Noted at: 494a Kentucky v. Indiana, 281 U.S. 163 (1930). 9-0, HUGHES. 16pp. Noted at: 480a Kentucky v. Whorton, 441 U.S. 786 (1979). 6-3, PER CURIAM. Dissents: Stewart, Brennan, Marshall. 6pp. Noted at: 225b Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989). 6-3, BLACKMUN. Concurrence: Kennedy. Dissents: Marshall, Brennan, Stevens. 22pp. Noted at: 384b Kepner v. U.S., 195 U.S. 100 (1904). 5-4, DAY. Dissents: Holmes, White, McKenna, Brown. 38pp. Noted at: 152b Ker v. Illinois, 119 U.S. 436 (1886). 9-0, MILLER. 9pp. Noted at: 180a Kesler v. Department of Public Safety, 369 U.S. 153 (1962). 5-3, FRANKFURTER. Concurrence: Stewart. Dissents: Warren, Black, Douglas, Stewart. Not voting: Whittaker. 33pp. Noted at: 66a Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). 6-2, BURGER. Concurrence: Marshall. Dissents: Douglas, Brennan. Not voting: Powell. 30pp. Noted at: 511b Keyes v. Denver School District, 413 U.S. 189 (1973). 6-2, BRENNAN. Concurrences: Powell, Douglas. Dissents: Powell, Rehnquist. Not voting: White. 76pp. Noted at: 137a, 452b Keyishian v. Board of Regents, 385 U.S. 589 (1967). 5-4, BRENNAN. Dissents: Clark, Harlan, Stewart, White. 23pp. Noted at: 24a, 109a, 292a, 302b, 338a Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987). 5-4, STEVENS. Dissents: Rehnquist, Powell, O'Connor, Scalia. 51pp. Noted at: 500a Kidd v. Pearson, 128 U.S. 1 (1888). 9-0, LAMAR. 25pp. Noted at: 297a Kiernan v. Portland, see Pacific States Telephone & Telegraph Co. v. Oregon Kilbourn v. Thompson, 103 U.S. 168 (1881). 9-0, MILLER. 37pp. Noted at: 258a, 471b Kimball Laundry Co. v. U.S., 338 U.S. 1 (1949). 5-4, FRANKFURTER. Concurrence: Rutledge. Dissents: Douglas, Vinson, Black, Reed. 24pp. Noted at: 272a Kimmelman v. Morrison, 477 U.S. 365 (1986). 9-0, BRENNAN. Concurrence: Powell. 34pp. Noted at: 222b Kimmish v. Ball, 129 U.S. 217 (1889). 9-0, FIELD. 6pp. Noted at: 408a Kingsley International Pictures Corp. v. Regents of University of New York, 360 U.S. 684 (i959)9-0, STEWART. Concurrences: Black, Frankfurter, Douglas, Clark, Harlan, Whittaker. 25pp. Noted at: 124b, 235a, 328a, 331a Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (i960). 6-2, CLARK. Dissents: Harlan, Frankfurter. Not voting: Whittaker. 16pp. Noted at: 305b, 316b Kirby v. Illinois, 406 U.S. 682 (1982). 5-4, STEWART. Concurrences: Burger, Powell. Dissents: Brennan, Douglas, Marshall, White. 24pp. Noted at: 287b Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487 (1941). 9-0, REED. 12pp. Noted at: 209a

TABLE OF CASES 1241. 1242. 1243. 1244.

1245. 1246.

1247.

1248. 1249.

1250.

1251. 1252. 1253.

1254. 1255. 1256.

1257. 1258.

1259. 1260. 1261. 1262. 1263.

Klein, U.S. v., 80 U.S. (13 Wall.) 128 (1872). 7-2, CHASE. Dissents: Miller, Bradley. 23pp. Noted at: 341a, 457b, 494b Kleppe v. New Mexico, 426 U.S. 529 (1976). 9-0, MARSHALL. 18pp. Noted at: 168b, 400a Klopfer v. North Carolina, 386 U.S. 213 (1967). 9-0, WARREN. Concurrences: Stewart, Harlan. 14pp. Noted at: 246a, 517b Knauff, U.S. ex rel. v. Shaughnessy, 338 U.S. 537 (1950). 4-3, MINTON. Dissents: Jackson, Black, Frankfurter. Not voting: Douglas, Clark. 15pp. Noted at: 42a, 228b, 236b Knote v. U.S., 95 U.S. 149 (1877). 9-0, FIELD. 8pp. Noted at: 340b Knotts, U.S. v., 460 U.S. 276 (1983). 9-0, REHNQUIST. Concurrences: Brennan, Marshall, Blackmun, Stevens. 13pp. Noted at: 448b Knowlton v. Moore, 178 U.S. 41 (1900). 5-3, WHITE. Dissents: Brewer, Harlan, McKenna. Not voting: Peckham. 71pp. Noted at: 501b Knox v. Lee, see Legal Tender Cases Kohl v. U.S., 91 U.S. 367 (1875). 8-1, STRONG. Dissent: Field. 13pp. Noted at: 360b Kokinda, U.S. v., 497 U.S. 720 (1990). 5-4, O'CONNOR. Concurrence: Kennedy. Dissents: Brennan, Marshall, Stevens, Blackmun. 25pp. Noted at: 398a Kolender v. Lawson, 461 U.S. 352 (1983). 7-2, O'CONNOR. Concurrence: Brennan. Dissents: White, Rehnquist. 23pp. Noted at: 181b, 526b Kollock, In re, 165 U.S. 526 (1897). 9-0, FULLER. 12pp. Noted at: 29b, 140a Königsberg v. State Bar of California, 366 U.S. 36 (1961). 5-4, HARLAN. Dissents: Black, Warren, Douglas, Brennan. 46pp. Noted at: 198b, 278a Korematsu v. U.S., 323 U.S. 214 (1944). 6-3, BLACK. Dissents: Roberts, Murphy, Jackson. 35pp. Noted at: 96a, 100b—101a, 169b, 219a, 261a, 371a, 409a, 434b, 496a Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552 (1947). 5-4, BLACK. Dissents: Rutledge, Reed, Douglas, Murphy. 16pp. Noted at: 329b Kotteakos v. U.S. 328 U.S. 750 (1946). 6-2, RUTLEDGE. Dissents: Douglas, Reed. Not voting: Jackson. 31pp. Noted at: 225b Kovacs v. Cooper, 336 U.S. 77 (1949). 5-4, REED. Concurrences: Frankfurter, Jackson. Dissents: Black, Douglas, Rutledge, Murphy. 29pp. Noted at: 321b, 364a, 510b Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969). 6-3, WARREN. Dissents: Stewart, Black, Harlan. 21pp. Noted at: 390a, 535b Kras, U.S. v., 409 U.S. 434 (1973). 5-4, BLACKMUN. Concurrence: Burger. Dissents: Douglas, Brennan, Stewart, Marshall. 30pp. Noted at: 129b, 412a, 544a Kulko v. Superior Court of California, 436 U.S. 84 (1978). 6-3, MARSHALL. Dissents: Brennan, White, Powell. 19pp. Noted at: 269a Kurtz v. Moffitt, 115 U.S. 487 (1885). 9-0, GRAY. 19pp. Noted at: 304b Kusper v. Pontikes, 414 U.S. 51 (1973). 7-2, STEWART. Concurrence: Burger. Dissents: Blackmun, Rehnquist. 19pp. Noted at: 536a Kwock Jan Fat v. White, 253 U.S. 454 (1920). 9-0, CLARKE. 12pp. Noted at: 228b Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). 8-1, BURTON. Dissent: Minton. 13pp. Noted at: 43a, 142a

689

690

T A B L E OF C A S E S 1264.

1265. 1266. 1267. 1268.

1268a. 1269. 1270.

1271.

1272. 1273.

1274.

1275. 1276. 1277. 1278. 1279.

1280. 1281. 1282. 1283. 1284.

1285.

Kyles v. Whitley, 514 U.S. 419 (1995). 5-4, SOUTER. Concurrence: Stevens. Dissents: Scalia, Rehnquist, Kennedy, Thomas. 57pp. Noted at: 145a L. Cohen Grocery Co., U.S. v., 255 U.S. 81 (1921). 8-0, WHITE. Concurrences: Pitney, Brandeis. Not voting: Day. 17pp. Noted at: 424a L.P. Steuart & Brothers v. Bowles, 322 U.S. 398 (1944). 8-1, DOUGLAS. Dissent: Roberts. 10pp. Noted at: 29b La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899). 9-0, HARLAN. 78pp. Noted at: 353b, 514b Labine v. Vincent, 401 U.S. 532 (1970). 5-4, BLACK. Concurrence: Harlan. Dissents: Brennan, Douglas, White, Marshall. 27pp. Noted at: 235b LaChance v. Erickson, 118 S.Ct. 753 (1998). 9-0, REHNQUIST. 5pp. Noted at: 559b Ladue, City of v. Gilleo, 512 U.S. 43 (1994) 9-0, STEVENS. Concurrence: O'Connor. 18pp. Noted at: 53ib-532a, 552b Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978). 5-4, BRENNAN. Concurrences: Marshall, Burger. Dissents: Stewart, White, Rehnquist, Blackmun. 55pp. Noted at: 363a Laird v. Tatum, 408 U.S. 1 (1972). 5-4, BURGER. Dissents: Douglas, Marshall, Brennan, Stewart. 39pp. Noted at: 435b, 495b Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979). 6-3, STEVENS. Dissents: Brennan, Marshall, Blackmun. 19pp. Noted at: 239b Lakewood, City of v. Plain Dealer Publishing Co., 486 U.S. 750 (1988). 4-3, BRENNAN. Dissents: White, Stevens, O'Connor. Not voting: Rehnquist, Kennedy. 49pp. Noted at: 348a, 374a Lalli v. Lalli, 439 U.S. 259 (1978). 5-4, POWELL. Concurrences: Stewart, Blackmun, Rehnquist. Dissents: Brennan, White, Marshall, Stevens. 21pp. Noted at: 236a Lamar v. U.S., 241 U.S. 103 (1916). 8-0, WHITE. Not voting: McReynolds. 16pp. Noted at: 516a Lambert v. Wicklund, 117 S.Ct. 1169 (1997). 9-0, PER CURIAM. Concurrence: Stevens. 6 pp. Noted at: 20b Lambrix v. Singletary, 117 S.Ct. 1517 (1997). 5-4, SCALIA. Dissents: Stevens, Ginsburg, Breyer, O'Connor. 19pp. Noted at: 318a, 319a Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). 9-0, WHITE. Concurrences: Kennedy, Scalia, Thomas. 18pp. Noted at: 397b Lamont v. Postmaster General, 381 U.S. 301 (1965). 8-0, DOUGLAS. Concurrences: Brennan, Goldberg, Harlan. Not voting: White. 10pp. Noted at: 361a, 412b Landgraf v. USI Film Products, 511 U.S. 244 (1994). 8-1, STEVENS. Concurrence: Scalia. Dissent: Blackmun. 54pp. Noted at: 429b Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978). 9-0, BURGER. Concurrence: Stewart. 21pp. Noted at: 216a Landon v. Plasencia, 459 U.S. 21 (1982). 9-0, 8-1, O'CONNOR. Concurrence: Marshall. Dissent: Marshall. 20pp. Noted at: 236b Lane v. Brown, 372 U.S. 477 (1963). 9-0, STEWART. Concurrences: Harlan, Clark. 9pp. Noted at: 46b, 512a Lane v. Wilson, 307 U.S. 268 (1939). 6-2, FRANKFURTER. Dissents: McReynolds, Butler. Not voting: Douglas. 10pp. Noted at: 218a, 534b Lange, Ex parte, 85 U.S. (18 Wall.) 163 (1873). 7-2, MILLER. Dissents: Clifford, Strong. 43pp. Noted at: 151a

TABLE OF C A S E S 1286. 1287. 1288. 1289. 1290.

1291.

1292. 1293.

1294.

1295. 1296. 1297.

1298.

1299. 1300. 1301. 1302. 1303. 1304. 1305. 1306. 1307. 1308.

Lanier, U.S. v., 117 S.Ct. 1219 (1997). 9-0, SOUTER. 10pp. Noted at: 181b, 182a Lanza, U.S. v., 260 U.S. 377 (1922). 9-0, TAFT. 9pp. Noted at: 151a Lanzetta v. New Jersey, 306 U.S. 451 (1939). 9-0, BUTLER. 8pp. Noted at: 526a Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). 8-1, BURGER. Dissent: Rehnquist. 15pp. Noted at: 141a, 166b, 256b, 416b Larson v. Valente, 456 U.S. 228 (1982). 5-4, BRENNAN. Concurrence: Stevens. Dissents: White, Rehnquist, Burger, O'Connor. 45pp. Noted at: 134b, 466b Lassiter v. Department of Social Services, 452 U.S. 18 (1981). 5-4, STEWART. Concurrence: Burger. Dissents: Blackmun, Brennan, Marshall, Stevens. 42pp. Noted at: 128b, 129b, 341b, 434a, 544a Lassiter v. Northampton Election Board, 360 U.S. 45 (1959). 9-0, DOUGLAS. 9pp. Noted at: 288a Late Corporation of the Church of Jesus Christ of Latter-Day Saints, The v. U.S., 136 U.S. 1 (1890). 6-3, BRADLEY. Dissents: Fuller, Field, Lamar. 68pp. Noted at: 201b Lathrop v. Donohue, 367 U.S. 820 (1961). 7-2, BRENNAN. Concurrences: Harlan, Frankfurter, Whittaker. Dissents: Douglas, Black. 66pp. Noted at: 198a, 278a, 432b, 469a Lau v. Nichols, 414 U.S. 563 (1974). 5-4, DOUGLAS. Concurrences: White, Stewart, Burger, Blackmun. 10pp. Noted at: 161a Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938). 7-2, ROBERTS. Dissents: Butler, McReynolds. 19pp. Noted at: 48a, 132b, 264b, 276a, 550a Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971). 5-4, STEWART. Concurrence: Harlan. Dissents: Black, Douglas, Marshall, Brennan. 46pp. Noted at: 109a, 198b Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163 (1996). 7-2, 6-3, PER CURIAM. Concurrences: Stevens, Rehnquist. Dissents: Rehnquist, Scalia, Thomas. 30pp. (Nine of these pages include concurrences and dissents applicable also to Stutson v. U.S.) Noted at: 423a Lawton v. Steele, 152 U.S. 133 (1894). 6-3, BROWN. Dissents: Fuller, Field, Brewer. 11pp. Noted at: 500a Leary v. U.S., 395 U.S. 6 (1969). 9-0, HARLAN. Concurrences: Stewart, Warren, Black. 51pp. Noted at: 371b Leathers v. Medlock, 499 U.S. 439 (1991). 7-2, O'CONNOR. Dissents: Marshall, Blackmun. 16pp. Noted at: 207b Leavitt v. Jane L., 518 U.S. 137 (1996). 5-4, PER CURIAM. Dissents: Stevens, Souter, Ginsburg, Breyer. npp. Noted at: 84a Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995). 8-1, SCALIA. Dissent: O'Connor. 30pp. Noted at: 478a Lee v. Illinois, 476 U.S. 530 (1986). 5-4, BRENNAN. Dissents: Blackmun, Burger, Powell, Rehnquist. 28pp. Noted at: 113b Lee v. International Society for Krishna Consciousness, 505 U.S. 830 (1992). 5-4, PER CURIAM. Dissents: Rehnquist, White, Scalia, Thomas. 3pp. Noted at: 398b Lee v. Madigan, 358 U.S. 228 (1959). 7-2, DOUGLAS. Dissents: Harlan, Clark. 13pp. Noted at: 358a, 539a Lee v. Washington, 390 U.S. 333 (1968). 9-0, PER CURIAM. Concurrences: Black, Harlan, Stewart. 2pp. Noted at: 376b, 409b Lee v. Weisman, 505 U.S. 577 (1992). 5-4, KENNEDY. Concurrences: Blackmun, Souter, Stevens, O'Connor. Dissents: Scalia, Rehnquist, White, Thomas. 70pp. Noted at: 362a

691

692

TABLE OF CASES 1309. 1310. 1311. 1312. 1313. 1314.

1315.

1316.

1317. 1318.

1319. 1320. 1321. 1322. 1323.

1324.

1325.

1326.

1327. 1328. 1329. 1330.

Lee, U.S. v., 106 U.S. 196 (1882). 5-4, MILLER. Dissents: Gray, Waite, Bradley, Woods. 56pp. Noted at: 468a Lee, U.S. v., 455 U.S. 252 (1982). 9-0, BURGER. Concurrence: Stevens. 12pp. Noted at: 202a Lefkowitz, U.S. v., 285 U.S. 452 (1932). 9-0, BUTLER. 6pp. Noted at: 304a, 446b Lefkowitz v. Turley, 414 U.S. 70 (1973). 9-0, WHITE. Concurrences: Brennan, Douglas, Marshall. 16pp. Noted at: 454a Legal Tender Cases (Julliard v. Greenman), no U.S. 421 (1884). 8-1, GRAY. Dissent: Field. 50pp. Noted at: 135a, 316b Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457 (1870). 5-4, STRONG. Concurrence: Bradley. Dissents: Chase, Nelson, Clifford, Field. 225pp. Noted at: 71a, 135a Legislative Veto Case, see Immigration & Naturalization Service v. Chadha Lego v. Twomey, 404 U.S. 477 (1972). 4-3, WHITE. Dissents: Brennan, Douglas, Marshall. Not voting: Powell, Rehnquist. 19pp. Noted at: 413b, 492a Lehman v. City of Shaker Heights, 418 U.S. 298 (1974). 5-4, BLACKMUN. Concurrence: Douglas. Dissents: Brennan, Stewart, Marshall, Powell. 25pp. Noted at: 80a, 398a Lehmann v. U.S. ex rel. Carson, 353 U.S. 685 (1957). 7-2, WHITTAKER. Dissents: Black, Douglas. 7pp. Noted at: 142a Lehnert v. Ferris Faculty Assn., 500 U.S. 507 (1991). 5-4, BLACKMUN. Concurrences: Marshall, Scalia, O'Connor, Souter, Kennedy. Dissents: Scalia, O'Connor, Souter, Kennedy. 58pp. Noted at: 469b Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973). 9-0, DOUGLAS. 10pp. Noted at: 502a Lehr v. Robertson, 463 U.S. 248 (1983). 6-3, STEVENS. Dissents: White, Marshall, Blackmun. 28pp. Noted at: 33b Leisy v. Hardin, 135 U.S. 100 (1890). 6-3, FULLER. Dissents: Gray, Harlan, Brewer. 61pp. Noted at: 337b Leiter Minerals v. U.S., 352 U.S. 220 (1957). 8-1, FRANKFURTER. Concurrence: Douglas. Dissent: Douglas. 12pp. Noted at: 48a Lemon v. Kurtzman, 403 U.S. 602 (1971). 8-1, 8-0 (various coalitions), BURGER. Concurrences: Douglas, Black, Marshall, Brennan, White. Dissent: White. Not voting (partially): Marshall. 40pp. Noted at: 281b, 438a Leon, U.S. v., 468 U.S. 897 (1984). 6-3, WHITE. Concurrence: Blackmun. Dissents: Brennan, Marshall, Stevens. 32pp. Noted at: 176a, 380b Lerner v. Casey, 357 U.S. 468 (1958). 5-4, HARLAN. Concurrence: Frankfurter. Dissents: Warren, Douglas, Black, Brennan. 12pp. Noted at: 352a Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472 (1973). 8-1, BURGER. Concurrences: Douglas, Brennan, Marshall. Dissent: White, npp. Noted at: 438b Levitt, Ex parte, 302 U.S. 633 (1937). 9-0, PER CURIAM. 2pp. Noted at: 165a Levy v. Louisiana, 391 U.S. 68 (1968). 6-3, DOUGLAS. Dissents: Harlan, Black, Stewart. 5pp. Noted at: 235b Lewis v. BT Investment Managers, Inc., 447 U.S. 27 (1980). 9-0, BLACKMUN. 27pp. Noted at: 499a Lewis v. Casey, 518 U.S. 343 (1996). 8-1, 5-4, SCALIA. Concurrences: Thomas, Souter, Ginsburg, Breyer. Dissents: Souter, Ginsburg, Breyer, Stevens. 72pp. Noted at: 132a, 376a

T A B L E OF C A S E S 1331. 1332.

1333. 1334.

1335. 1336.

1337. 1338.

1339. 1340. 1341. 1342. 1343.

1344. 1345. 1346 1347. 1348. 1349. 1350. 1351.

1352.

1353.

Lewis v. Jeffers, 497 U.S. 764 (1990). 5-4, O'CONNOR. Dissents: Brennan, Marshall, Blackmun, Stevens. 23pp. Noted at: 413b Lewis v. New Orleans, 408 U.S. 913 (1972). 6-3, PER CURIAM. Concurrence: Powell. Dissents: Burger, Blackmun, Rehnquist. 13pp. Noted at: 73a, 188a, 331b Lewis v. U.S., 445 U.S. 55 (1980). 6-3, BLACKMUN. Dissents: Brennan, Marshall, Powell. 19pp. Noted at: 56b Lewis v. U.S., 518 U.S. 322 (1996). 7-2, O'CONNOR. Concurrences: Kennedy, Breyer. Dissents: Stevens, Ginsburg. 20pp. Noted at: 518b Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927). 9-0, SANFORD. 7pp. Noted at: 139a Libretti v. U.S., 516 U.S. 29 (1995). 8-i, O ' C O N N O R . Concurrences: Souter, Ginsburg. Dissent: Stevens. 30pp. Noted at: 518b License Tax Cases, 72 U.S. (5 Wall.) 462 (1867). 8-0, CHASE. 19pp. Noted at: 505a Lichter v. U.S., 334 U.S. 742 (1948). 7-2, BURTON. Concurrence: Murphy. Dissents: Douglas, Jackson. 62pp. Noted at: 140a, 424a, 540a, 540b Liggett Co. v. Baldridge, 278 U.S. 105 (1928). 7-2, SUTHERLAND. Dissents: Holmes, Brandeis. 5pp. Noted at: 160a Light v. U.S., 220 U.S. 523 (1911). 9-0, LAMAR. 16pp. Noted at: 400a Lincoln County v. Luning, 133 U.S. 529 (1890). 9-0, BREWER. 5pp. Noted at: 481a Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949). 9-0, BLACK. Concurrences: Frankfurter, Rutledge. 13pp. Noted at: 275a, 289b Lindsey v. Normet, 405 U.S. 56 (1972). 5-2, WHITE. Dissents: Douglas, Brennan. Not voting: Powell, Rehnquist. 37pp. Noted at: 48b, 215a, 229a, 233b, 544b Linkletter v. Walker, 381 U.S. 618 (1965). 7-2, CLARK. Dissents: Black, Douglas. 35pp. Noted at: 318a Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977). 9-0, MARSHALL. 14pp. Noted at: 192a, 374a, 552b Liparota v. U.S., 471 U.S. 419 (1985). 6-2, BRENNAN. Dissents: White, Burger. Not voting: Powell. 25pp. Noted at: 181b Lisenba v. California, 314 U.S. 219 (1941). 7-2, ROBERTS. Dissents: Black, Douglas. 25pp. Noted at: 209b, 515b Little v. Streater, 452 U.S. 1 (1981). 9-0, BURGER. 17pp. Noted at: 70b, 129b, 343a, 544a Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). 5-4, POWELL. Dissents: Marshall, Douglas, Brennan, Stewart. 36pp. Noted at: 399a, 462b Loan Assn. v. Topeka, 87 U.S. (20 Wall.) 655 (1874). 8-1, MILLER. Dissent: Clifford. 16pp. Noted at: 315a, 501b Local 28 of the Sheet Metal Workers' International Assn. v. E.E.O.C., 478 U.S. 421 (1986). 5-4, BRENNAN. Concurrences: Powell, O'Connor. Dissents: O'Connor, White, Rehnquist, Burger. 80pp. Noted at: 37b Local 93, International Assn. of Firefighters v. Cleveland, 478 U.S. 501 (1986). 6-3, BRENNAN. Concurrence: O'Connor. Dissents: White, Rehnquist, Burger. 44pp. Noted at: 37b Lochner v. New York, 198 U.S. 45 (1905). 5-4, PECKHAM. Dissents: Holmes, Harlan, White, Day. 32pp. Noted at: 160a, 165b, 199b, 289a-b, 345b, 415a, 451b, 465b

693

694

TABLE OF C A S E S 1354.

1355. 1356.

1357.

1358. 1359. 1360. 1361. 1362. 1363. 1364. 1365.

1366. 1367.

1368.

1369.

1370. 1371. 1372. 1373.

1374. 1375. 1376.

Locke, U.S. v., 471 U.S. 84 (1984). 6-3, MARSHALL. Concurrence: O'Connor. Dissents: Powell, Stevens, Brennan. 46pp. Noted at: 121b Lockerty v. Phillips, 319 U.S. 182 (1943). 9-0, STONE. 8pp. Noted at: 48a, 229a, 373b Lockett v. Ohio, 438 U.S. 586 (1978). 7-2, BURGER. Concurrences: Blackmun, Marshall, Rehnquist, White. Dissents: Rehnquist, White. 50pp. Noted at: 138a Lockhart v. Fretwell, 506 U.S. 364 (1993). 7-2, REHNQUIST. Concurrences: O'Connor, Thomas. Dissents: Stevens, Blackmun. 26pp. Noted at: 249a Lockport, Town of v. Citizens for Community Action at the Local Level, Inc., 430 U.S. 259 (1977). 9-0, STEWART. Concurrence: Burger. 15pp. Noted at: 416b Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). 9-0, BLACKMUN. Concurrences: Powell, Rehnquist. 23pp. Noted at: 484a Lombard v. Lousiana, 373 U.S. 267 (1963). 8-1, WARREN. Dissent: Harlan. 17pp. Noted at: 99b, 515a Lonchar v. Thomas, 517 U.S. 314 (1996). 9-0, BREYER. Concurrences: Rehnquist, Scalia, Kennedy, Thomas. 29pp. Noted at: 223b Londoner v. Denver, 210 U.S. 373 (1908). 7-2, MOODY. Dissents: Fuller, Holmes. 14pp. Noted at: 382a, 502a Long v. Ansell, 293 U.S. 76 (1934). 9-0, BRANDEIS. 8pp. Noted at: 57b, 237b Long v. District Court, 385 U.S. 192 (1966). 9-0, PER CURIAM. 4pp. Noted at: 48b, 512a Lopez, U.S. v., 514 U.S. 549 (1995). 5-4, REHNQUIST. Concurrences: Kennedy, Thomas. Dissents: Stevens, Souter, Breyer, Ginsburg. 96pp. Noted at: 102b, 256a Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). 6-3, MARSHALL. Dissents: Blackmun, Brennan, White. 38pp. Noted at: 500b Lords Landing Village Condominium Council of Unit Owners v. Continental Insurance Co., 117 S.Ct. 1731 (1997). 7-2, PER CURIAM. Dissents: Rehnquist, Breyer. 3pp. Noted at: 423a Los Angeles, City of v. Preferred Communications, Inc., 476 U.S. 488 (1986). 9-0, REHNQUIST. Concurrences: Blackmun, Marshall, O'Connor. 9pp. Noted at: 77a Los Angeles v. Lyons, 461 U.S. 95 (1983). 5-4, WHITE. Dissents: Marshall, Brennan, Blackmun, Stevens. 43pp. Noted at: 354a Lottery Case, see Champion v. Ames Loud Hawk, U.S. v., 474 U.S. 302 (1986). 5-4, POWELL. Dissents: Marshall, Brennan, Blackmun, Stevens. 25pp. Noted at: 517b Louisiana v. Texas, 176 U.S. 1 (1900). 9-0, FULLER. Concurrences: White, Harlan, Brown. 28pp. Noted at: 480a Louisville & Nashville Railroad Co. v. Schmidt, 177 U.S. 230 (1900). 9-0, WHITE. 10pp. Noted at: 268b Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). 5-4, REED. Concurrence: Frankfurter. Dissents: Burton, Douglas, Murphy, Rutledge. 23pp. Noted at: 403a Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). 9-0, BRANDEIS. 47pp. Noted at: 66a, 131a, 327b Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25 (1959). 6-3, FRANKFURTER. Dissents: Warren, Brennan, Douglas. 20pp. Noted at: 23b Louisiana Public Service Commission v. Texas & N.O.R. Co., 284 U.S. 125 (1931). 9-0, BUTLER, npp. Noted at: 360a

TABLE OF C A S E S 1377. 1378. 1379. 1380. 1381.

1382. 1383. 1384. 1385. 1386.

1387.

1388. 1389. 1390.

1390a. 1391.

1392. 1393. 1394.

1395.

1396. 1397. 1398.

Louisiana, U.S. v., 339 U.S. 699 (1950). 8-i, DOUGLAS. Dissent: Frankfurter. 8pp. Noted at: 98a Lovasco, U.S. v., 431 U.S. 783 (1977). 8-1, MARSHALL. Dissent: Stevens. 17pp. Noted at: 517b Lovell v. City of Griffin, 303 U.S. 444 (1938). 8-0, HUGHES. Not voting: Cardozo. 9pp. Noted at: 347b, 348a, 374a Lovett, U.S. v., 328 U.S. 303 (1946). 8-0, BLACK. Concurrences: Frankfurter, Reed. Not voting: Jackson. 28pp. Noted at: 67b, 109a Loving v. U.S., 517 U.S. 748 (1996). 9-0, KENNEDY. Concurrences: Stevens, Souter, Ginsburg, Scalia, O'Connor, Thomas. 32pp. Noted at: 101a, 141a Loving v. Virginia, 388 U.S. 1 (1967). 9-0, WARREN. Concurrence: Stewart. 12pp. Noted at: 200b, 300a, 308a, 409a Low v. Austin, 80 U.S. (13 Wall.) 29 (1873). 9-0, FIELD. 7pp. Noted at: 337b Lubin v. Panish, 415 U.S. 709 (1974). 9-0, BURGER. Concurrences: Douglas, Blackmun, Rehnquist. 15pp. Noted at: 24b, 544a Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). 6-3, WARREN. Dissents: Harlan, Stewart, Clark. 53pp. Noted at: 53b, 54a Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). 6-3, SCALIA. Concurrence: Kennedy. Dissents: Blackmun, Stevens, Souter (separate statement). 76pp. Noted at: 436a, 500a Ludecke v. Watkins, 335 U.S. 160 (1948). 5-4, FRANKFURTER. Dissents: Black, Douglas, Murphy, Rutledge. 27pp. Noted at: 166a, 358a, 540b Luftig v. McNamara, 373 F.2d 2664 (D.C. Cir.), cert, denied., 387 U.S. 945 (1967). PER CURIAM, ipp. Noted at: 220b Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982). 5-4, WHITE. Dissents: Burger, Powell, Rehnquist, O'Connor. 35pp. Noted at: 425b Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 7-2, SCALIA. Concurrences: Kennedy, Souter, Stevens. Dissents: Blackmun, O'Connor. 52pp. Noted at: 474a Lunding v. New York Tax Appeals Tribunal, 118 S.Ct. 766 (1998). 6-3, O'CONNOR. Dissents: Ginsburg, Rehnquist, Kennedy. 24pp. Noted at: 563b Lustig v. U.S., 338 U.S. 74 (1949). 5-4, FRANKFURTER. Concurrences: Black, Murphy, Douglas, Rutledge. Dissents: Reed, Vinson, Jackson, Burton. 10pp. Noted at: 463b Luther v. Borden, 48 U.S. (7 How.) 1 (1849). 8-1, TANEY. Dissent: Woodbury. 47pp. Noted at: 219a, 300b, 426b, 524a Lynce v. Mathis, 117 S.Ct. 891 (1997). 9-0, STEVENS. Concurrence: Thomas. 10pp. Noted at: 174b Lynch v. Donnelly, 465 U.S. 668 (1984). 5-4, BURGER. Concurrence: O'Connor. Dissents: Brennan, Marshall, Blackmun, Stevens. 60pp. Noted at: 419b, 421a, 421b Lynch v. Household Finance Corp., 405 U.S. 538 (1972). 4-3, STEWART. Dissents: White, Burger, Blackmun. Not voting: Powell, Rehnquist. 24pp. Noted at: 48a Lynch v. U.S., 292 U.S. 571 (1934). 9-0, BRANDEIS. 19pp. Noted at: 327b Lyngv. Castillo, 477 U.S. 635 (1986). 6-3, STEVENS. Dissents: Brennan, White, Marshall. 13pp. Noted at: 412a Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988). 5-3, O'CONNOR. Dissents: Brennan, Marshall, Blackmun. Not voting: Kennedy. 39pp. Noted at: 202b

695

696

T A B L E OF C A S E S 1399. 1400. 1401. 1402.

1403. 1404.

1405. 1406. 1407. 1408.

1409. 1410. 1411. 1412.

1413.

1414.

1415. 1416. 1417. 1418. 1419.

1420. 1421.

Lyng v. Payne, 476 U.S. 926 (1986). 8-1, O'CONNOR. Dissent: Stevens. 26pp. Noted at: 322b Lynumn v. Illinois, 372 U.S. 528 (1963). 9-0, STEWART, npp. Noted at: 455a Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990). 9-0, MARSHALL. Concurrences: O'Connor, Scalia. 9pp. Noted at: 519a M.L.B. v. S.L.J., 117 S.Ct. 555 (1996). 6-3, GINSBURG. Concurrence: Kennedy. Dissents: Rehnquist, Thomas, Scalia. 24pp. Noted at: 129b, 132a, 341b, 512a, 544a Mabry v. Johnson, 467 U.S. 504 (1984). 9-0, STEVENS. 8pp. Noted at: 219b MacCollom, U.S. v., 426 U.S. 317 (1976). 5-4, REHNQUIST. Concurrence: Blackmun. Dissents: Brennan, Marshall, Stevens, White. 24pp. Noted at: 512a MacDonald, U.S. v., 456 U.S. 1 (1982). 6-3, BURGER. Concurrence: Stevens. Dissents: Marshall, Brennan, Blackmun. 24pp. Noted at: 517b Mackenzie v. Hare, 239 U.S. 299 (1915). 9-0, McKENNA. 14pp. Noted at: 179a Mackey v. Montrym, 443 U.S. 1 (1979). 5-4, BURGER. Dissents: Stewart, Brennan, Marshall, Stevens. 30pp. Noted at: 31a, 73b Mackey v. U.S., 401 U.S. 667 (1971). 7-2, WHITE. Concurrences: Brennan, Marshall, Harlan. Dissents: Douglas, Black, 48pp. Noted at: 318a Mackin v. U.S. 117 U.S. 348 (1886). 9-0, GRAY. 7pp. Noted at: 131b Madden v. Kentucky, 309 U.S. 83 (1940). 7-2, REED. Concurrence: Hughes. Dissents: Roberts, McReynolds. npp. Noted at: 380a Madsen v. Kinsella, 343 U.S. 341 (1952). 8-1, BURTON. Dissent: Black. 31pp. Noted at: 101a Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994). 9-0, 5-4, REHNQUIST Concurrences: Souter, Stevens, Scalia, Kennedy, Thomas. Dissents: Stevens, Scalia, Kennedy, Thomas. 68pp. Noted at: 350a, 350b, 375a, 486b, 487a Mahan v. Howell, 410 U.S. 315 (1973). 5-3, REHNQUIST. Concurrences: Brennan, Douglas, Marshall. Dissents: Brennan, Douglas, Marshall. Not voting: Powell. 36pp. Noted at: 333b Maher v. Roe, 432 U.S. 464 (1977). 6-3, POWELL. Concurrence: Burger. Dissents: Brennan, Marshall, Blackmun. 27pp. Noted at: 21a, 545a Mahler v. Eby, 264 U.S. 32 (1924). 9-0, TAFT. 15pp. Noted at: 30a Maine v. Taylor, 477 U.S. 131 (1986). 8-1, BLACKMUN. Dissent: Stevens. 23pp. Noted at: 150a Maine v. Thiboutot, 448 U.S. 1 (1980). 6-3, BRENNAN. Dissents: Powell, Burger, Rehnquist. 37pp. Noted at: 93b Maine, U.S. v., 420 U.S. 515 (1975). 8-0, WHITE. Not voting: Douglas. 14pp. Noted at: 98a Malinski v. New York, 324 U.S. 401 (1945). 7-2, 5-4 (various coalitions), DOUGLAS. Dissents: Stone, Roberts, Reed, Jackson, Murphy, Rutledge. 39pp. Noted at: 315a Mallory v. U.S., 354 U.S. 449 (1957). 9-0, FRANKFURTER. 7pp. Noted at: 300b Malloy v. Hogan, 378 U.S. 1 (1964). 5-4, BRENNAN. Dissents: Harlan, White, Clark, Stewart. 37pp. Noted at: 238a, 245b, 307a, 453b, 454b, 52«

TABLE OF CASES 1422. 1423. 1424. 1425.

1426. 1427.

1428.

1429. 1430. 1431. 1432. 1433. 1434.

1435. 1436. 1437. 1438. 1439. 1440. 1441. 1442.

1443.

1444. 1445.

Manchester v. Massachusetts, 139 U.S. 240 (1891). 9-o, BLATCHFORD. 27pp. Noted at: 32b Mancusi v. DeForte, 392 U.S. 364 (1968). 6-3, HARLAN. Dissents: Black, White, Stewart. 14pp. Noted at: 443a Mandujano, U.S. v., 425 U.S. 564 (1976). 9-0, BURGER. Concurrences: Brennan, Marshall, Stewart, Blackmun. 46pp. Noted at: 217b Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962). 6-1, HARLAN. Concurrences: Black, Brennan, Warren, Douglas. Dissent: Clark. Not voting: Frankfurter, White. 51pp. Noted at: 328a Mapp v. Ohio, 367 U.S. 643 (1961). 6-3, CLARK. Dissents: Harlan, Frankfurter, Whittaker. 44pp. Noted at: 175b, 245b, 443a Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 6-o, MARSHALL. 44pp. Noted at: 5,11, 51b, 107b, 121a, 265b, 266a, 297a-298b, 323b, 357b, 366a, 367b, 423a, 494a, 507b, 520a, 529a, 537a Marchetti v. U.S., 390 U.S. 39 (1968). 7-1, HARLAN. Concurrences: Brennan, Stewart. Dissent: Warren. Not voting: Marshall. 22pp. Noted at: 330a, 454b, 505a Marchioro v. Chaney, 442 U.S. 191 (1979). 8-0, STEVENS. Not voting: Powell. 9pp. Noted at: 356b Marcus v. Search Warrants of Property at 104 E. 10th St., Kansas City, Mo., 367 U.S. 717 (1961). 9-0, BRENNAN. Concurrences: Black, Douglas. 22pp. Noted at: 449a Marigold, U.S. v., 50 U.S. (9 How.) 560 (1850). 9-0, DANIEL, npp. Noted at: 129a Marion, U.S. v., 404 U.S. 307 (1971). 9-0, WHITE. Concurrences: Douglas, Brennan, Marshall. 29pp. Noted at: 517b Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). 9-0, SOUTER. 21pp. Noted at: 519a Marsh v. Alabama, 326 U.S. 501 (1946). 6-3, BLACK. Concurrence: Frankfurter. Dissents: Vinson, Reed, Burton. 17pp. Noted at: 127a, 399a, 478a, 515a Marsh v. Chambers, 463 U.S. 783 (1983). 6-3, BURGER. Dissents: Brennan, Marshall, Stevens. 42pp. Noted at: 84b, 214b, 362a, 419b Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). 6-3, WHITE. Dissents: Stevens, Blackmun, Rehnquist. 33pp. Noted at: 443b Marshall v. Jerrico, Inc., 446 U.S. 238 (1980). 9-0, MARSHALL. 15pp. Noted at: 229b, 381b Marston v. Lewis, 410 U.S. 679 (1973). 6-3, PER CURIAM. Dissents: Marshall, Douglas, Brennan. 6pp. Noted at: 158b Martin v. District of Columbia Court of Appeals, 506 U.S. 1 (1992). 7-2, PER CURIAM. Dissents: Stevens, Blackmun. 4pp. Noted at: 243a Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). 7-0, STORY. 78pp. Noted at: 264a, 267b, 362b Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). 8-0, STORY. 21pp. Noted at: 357b, 360a, 538b Martin v. Struthers, City of, 319 U.S. 141 (1943). 6-3, BLACK. Concurrence: Murphy. Dissents: Reed, Jackson, Roberts. 17pp. Noted at: 321a, 466a Martin v. Walton, 368 U.S. 25 (1961). 6-2, PER CURIAM. Concurrence: Warren. Dissents: Douglas, Black. Not voting: Whittaker. 5pp. Noted at: 278a Martin v. Wilks, 490 U.S. 755 (1989). 5-4, REHNQUIST. Dissents: Stevens, Brennan, Marshall, Blackmun. 39pp. Noted at: 37b Martin Linen Supply Co., U.S. v., 430 U.S. 564 (1977). 8-1, BRENNAN. Concurrence: Stevens. Dissent: Burger. 20pp. Noted at: 152b, 528b

697

698

T A B L E OF C A S E S 1446. 1447. 1448.

1449. 1450. 1451. 1452. 1453. 1454. 1455. 1456. 1457. 1458. 1459. 1460. 1461. 1462.

1463. 1464. 1465. 1466. 1467. 1468. 1469. 1470. 1471.

Martinez v. California, 444 U.S. 277 (1980). 9-0, STEVENS. 9pp. Noted at: 82a Martinez-Fuerte, U.S. v., 428 U.S. 543 (1976). 7-2, POWELL. Dissents: Brennan, Marshall. 36pp. Noted at: 58a, 447a Maryland v. Buie, 494 U.S. 325 (1990). 7-2, WHITE. Concurrences: Stevens, Kennedy. Dissents: Brennan, Marshall. 18pp. Noted at: 446a Maryland v. Craig, 497 U.S. 836 (1990). 5-4, O'CONNOR. Dissents: Scalia, Brennan, Marshall, Stevens. 20pp. Noted at: 114a, 466a Maryland v. Garrison, 480 U.S. 79 (1987). 6-3, STEVENS. Dissents: Blackmun, Brennan, Marshall. 23pp. Noted at: 449a Maryland v. Louisiana, 451 U.S. 725 (1981). 8-1, WHITE. Concurrence: Burger. Dissent: Rehnquist. 47pp. Noted at: 363a Maryland v. Wilson, 117 S.Ct. 882 (1997). 7-2, REHNQUIST. Dissents: Stevens, Kennedy. 10pp. Noted at: 444b Maryland v. Wirtz, 392 U.S. 183 (1968). 7-2, HARLAN. Dissents: Douglas, Stewart. 23pp. Noted at: 166b Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964). 7-2, WARREN. Concurrence: Clark. Dissents: Harlan, Stewart. 21pp. Noted at: 53b Massachusetts v. Missouri, 308 U.S. 1 (1939). 8-o, HUGHES. Not voting: Butler. 20pp. Noted at: 480a Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). 8-1, PER CURIAM. Dissent: Marshall. 21pp. Noted at: 39a, 412a Massiah v. U.S., 377 U.S. 201 (1964). 6-3, STEWART. Dissents: White, Clark, Harlan. 13pp. Noted at: 128a, 307a Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991). 7-2, KENNEDY. Concurrences: White, Scalia. Dissents: White, Scalia. 33pp. Noted at: 285a Mathews v. Diaz, 426 U.S. 67 (1976). 9-0, STEVENS. 21pp. Noted at: 43a Mathews v. Eldridge, 424 U.S. 319 (1976). 7-2, POWELL. Dissents: Brennan, Marshall. 32pp. Noted at: 229b, 385b, 386a Mathews v. Lucas, 427 U.S. 495 (1976). 6-3, BLACKMUN. Dissents: Stevens, Brennan, Marshall. 29pp. Noted at: 235b Matlock, U.S. v., 415 U.S. 164 (1974). 6-3, WT-IITE. Dissents: Douglas, Brennan, Marshall. 25pp. Noted at: 413b, 445a Matter of-, see name of the party Mattox v. U.S., 156 U.S. 237 (1895). 6-3, BROWN. Dissents: Shiras, Gray, White. 24pp. Noted at: 113b Mayberry v. Pennsylvania, 400 U.S. 455 (1971). 6-3, DOUGLAS. Dissents: Burger, Harlan, Black. 15pp. Noted at: 124a, 240a, 515b Mayer v. Chicago, 404 U.S. 189 (1971). 9-0, BRENNAN. Concurrences: Burger, Blackmun. 13pp. Noted at: 132a, 383b Maynard v. Cartwright, 486 U.S. 356 (1988). 9-0, WT-IITE. Concurrences: Brennan, Marshall. 10pp. Noted at: 39b, 138a, 528a Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955). 9-0, PER CURIAM, ipp. Noted at: 452a Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837). 6-1, BARBOUR. Dissent: Story. 60pp. Noted at: 526a Mazurek v. Armstrong, 117 S.Ct. 1865 (1997)6-3, PER CURIAM. Dissents: Stevens, Ginsburg, Breyer. 7pp. Noted at: 19b McAllister v. U.S., 141 U.S. 174 (1891). 6-3, HARLAN. Dissents: Field, Gray, Brown. 28pp. Noted at: 58a McBoyle v. U.S., 283 U.S. 25 (1931). 9-0, HOLMES. 3pp. Noted at: 181b

T A B L E OF C A S E S 1472. 1473.

1474. 1475. 1476. 1477. 1478.

1479. 1480. 1481. 1482. 1483.

1484. 1485. 1486. 1487. 1488. 1489. 1490.

1491. 1492. 1493.

1494. 1495.

McBratney, U.S. v., 104 U.S. 621 (1881). 9-0, GRAY. 4pp. Noted at: 248a McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151 (1914). 9-0, HUGHES. Concurrences: White, Holmes, Lamar, McReynolds. 14pp. Noted at: 169b, 409b McCardle, Ex parte, 73 U.S. (6 Wall.) 318 (1868). 8-0, CHASE. 9pp. Noted at: 494b McCarthy v. Arndstein, 266 U.S. 34 (1924). 9-0, BRANDEIS. 9pp. Noted at: 453b McCarthy v. Madigan, 503 U.S. 140 (1992). 9-0, BLACKMUN. Concurrences: Rehnquist, Scalia, Thomas. 19pp. Noted at: 178b McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973). 9-0, MARSHALL. 18pp. Noted at: 248a McCleskey v. Kemp, 481 U.S. 279 (1987). 5-4, POWELL. Dissents: Brennan, Marshall, Blackmun, Stevens. 89pp. Noted at: 138a, 456a, 484a McCleskey v. Zant, 499 U.S. 467 (1991). 6-3, POWELL. Dissents: Marshall, Blackmun, Stevens. 63pp. Noted at: 223b McCray v. Illinois, 386 U.S. 300 (1967). 5-4, STEWART. Dissents: Douglas, Warren, Brennan, Fortas. 17pp. Noted at: 381a McCray v. U.S., 195 U.S. 27 (1904). 6-3, WHITE. Dissents: Fuller, Brown, Peckham. 38pp. Noted at: 504b McCready v. Virginia, 94 U.S. 391 (1877). 9-0, WAITE. 6pp. Noted at: 98a McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 7-0, MARSHALL. 122pp. Noted at: 10, 65a, 65b, 115a, 134b, i84b-i85a, 237a, 241a, 316a, 362b, 404b, 492b, 505b McDaniel v. Paty, 435 U.S. 618 (1978). 9-0, BURGER. Concurrences: Brennan, Marshall, Stewart, White. 28pp. Noted at: 201b, 423a McDermott v. Wisconsin, 228 U.S. 115 (1913). 9-0, DAY. 23pp. Noted at: 192a McDonald v. Board of Election, 394 U.S. 802 (1969). 9-0, WARREN. Concurrences: Harlan, Stewart. 10pp. Noted at: 334a McDonald v. Mabee, 243 U.S. 90 (1917). 9-0, HOLMES. 3pp. Noted at: 458b McDonald v. Pless, 238 U.S. 264 (1915). 9-0, LAMAR. 6pp. Noted at: 264b McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976). 7-2, MARSHALL. Dissents: White, Rehnquist. 24pp. Noted at: 94b, 410b McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281 (i960). 5-4, CLARK. Concurrences: Whittaker, Stewart. Dissents: Harlan, Whittaker, Frankfurter, Stewart. 6pp. Noted at: 305b McGee v. International Life Insurance Co., 355 U.S. 220 (1957). 8-0, BLACK. Not voting: Warren. 5pp. Noted at: 2693 McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33 (1940). 6-3, STONE. Dissents: Hughes, McReynolds, Roberts. 37pp. Noted at: 503a McGowan v. Maryland, 366 U.S. 420 (1961). 8-1, WARREN. Concurrences: Frankfurter, Harlan. Dissent: Douglas. 171pp. Noted at: 159a, 411b, 412a, 487a, 491b McGrain v. Daugherty, 273 U.S. 135 (1927). 8-0, VAN DEVANTER. Not voting: Stone. 48pp. Noted at: 258a, 436b Mclntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). 7-2, STEVENS. Concurrences: Ginsburg, Thomas. Dissents: Scalia, Rehnquist. 52pp. Noted at: 47a

699

700

TABLE OF CASES 1496. 1497. 1498.

1499. 1500. 1501.

1502. 1503. 1504. 1505. 1506. 1507. 1508. 1509.

1510.

1511.

1512.

1513.

1514. 1515. 1516. 1517. 1518.

McKane v. Durston, 153 U.S. 684 (1894). 9-0, HARLAN. 6pp. Noted at: 47b, 379a McKaskle v. Wiggins, 465 U.S. 168 (1984). 6-3, O ' C O N N O R . Dissents: White, Brennan, Marshall. 32pp. Noted at: 225b McKeiver v. Pennsylvania, 403 U.S. 528 (1971). 5-4, B L A C K M U N . Concurrences: Harlan, White, Brennan. Dissents: Brennan, Douglas, Black, Marshall. 45pp. Noted at: 273b, 518b McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990). 9-0, B R E N N A N . 35pp. Noted at: 386b, 502a McKinley v. U.S., 249 U.S. 397 (1919). 9-0, DAY. 3pp. Noted at: 56b McKinney v. Alabama, 424 U.S. 669 (1976). 9-0, REHNQUIST. Concurrences: Brennan, Marshall, Stewart, Blackmun. 24pp. Noted at: 34b, 49a, 427b McLaughlin v. Florida, 379 U.S. 184 (1964). 9-0, WHITE. Concurrences: Harlan, Stewart, Douglas. 15pp. Noted at: 307b, 409a McMann v. Richardson, 397 U.S. 759 (1970). 6-3, WHITE. Dissents: Brennan, Douglas, Marshall. 31pp. Noted at: 128a, 248b McMillan v. Pennsylvania, 477 U.S. 79 (1986) 5-4, REHNQUIST. Dissents: Marshall, Brennan, Blackmun, Stevens. 26pp. Noted at: 518b McMillian v. Monroe County, 117 S.Ct. 1734 (1997). 5-4, REHNQUIST. Dissents: Ginsburg, Stevens, Souter, Breyer. 13pp. Noted at: 123a McNabb v. U.S., 318 U.S. 332 (1943). 7-1, FRANKFURTER. Dissent: Reed. Not voting: Rutledge. 18pp. Noted at: 264b, 300b McPhaul v. U.S., 364 U.S. 372 (i960). 5-4, WHITTAKER. Dissents: Douglas, Warren, Black, Brennan. 15pp. Noted at: 259a Meacham v. Fano, 427 U.S. 215 (1976). 6-3, WHITE. Dissents: Stevens, Brennan, Marshall. 21pp. Noted at: 375a Medina v. California, 505 U.S. 437 (1992). 7-2, KENNEDY. Concurrences: O'Connor, Souter. Dissents: Blackmun, Stevens. 32pp. Noted at: 388a, 515b Meek v. Pittenger, 421 U.S. 349 (1975). 9-0, 6-3 (various coalitions), STEWART. Concurrences: Brennan, Douglas, Marshall, Burger, Rehnquist, White. Dissents: Brennan, Douglas, Marshall, Burger, Rehnquist, White. 47pp. Noted at: 438b Meese v. Keene, 481 U.S. 465 (1987). 5-3, STEVENS. Dissents: Blackmun, Brennan, Marshall. Not voting: Scalia. 32pp. Noted at: 69b, 548b Memoirs v. Massachusetts, 383 U.S. 413 (1966). 6-3, B R E N N A N . Concurrences: Black, Stewart, Douglas. Dissents: Clark, Harlan, White. 50pp. Noted at: 328a Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974). 8-1, MARSHALL. Concurrences: Burger, Blackmun, Douglas. Dissent: Rehnquist. 39pp. Noted at: 158b, 544b Mempa v. Rhay, 389 U.S. 128 (1967). 9-0, MARSHALL. 9pp. Noted at: 381a Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1 (1978). 6-3, POWELL. Dissents: Stevens, Burger, Rehnquist. 30pp. Noted at: 386a Menominee Tribe v. U.S., 391 U.S. 404 (1968). 7-2, DOUGLAS. Dissents: Stewart, Black. 13pp. Noted at: 247b, 248b Merrick v. N.W. Halsey & Co., 242 U.S. 568 (1917). 8-1, McKENNA. Dissent: McReynolds. 23pp. Noted at: 70b Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). 6-3, MARSHALL. Dissents: Stevens, Burger, Rehnquist. 61pp. Noted at: 150b

TABLE OF CASES 1519. 1520.

1521.

1522.

1523. 1524. 1525.

1526. 1527.

1528.

1529. 1530.

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). 6-3, W H I T E . Dissents: Brennan, Douglas, Stewart. 18pp. Noted at: 248a Mesquite, City of v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). 7-2, STEVENS. Concurrences: White, Powell. Dissents: White, Powell. 22pp. Noted at: 309b, 528a Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990). 5-4, B R E N N A N . Concurrence: Stevens. Dissents: O'Connor, Rehnquist, Scalia, Kennedy. 51pp. Noted at: 38b, 459b Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981). 6-3, W H I T E . Concurrences: Brennan, Blackmun. Dissents: Stevens, Burger, Rehnquist. 80pp. Noted at: 471a, 531b, 552b Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985). 5-4, POWELL. Dissents: O'Connor, Brennan, Marshall, Rehnquist. 33pp. Noted at: 502a Meyer v. Grant, 486 U.S. 414 (1988). 9-0, STEVENS. 15pp. Noted at: 79a Meyer v. Nebraska, 262 U.S. 390 (1923). 7-2, McREYNOLDS. Dissents: Holmes, Sutherland. 14pp. Noted at: 158a, 210a, 286a, 329b, 341a, 432b, 437b, 489a Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). 9-0, BURGER. Concurrences: Brennan, Rehnquist, White. 23pp. Noted at: 432b, 433a Michael H. v. Gerald D., 491 U.S. no (1989). 5-4, SCALIA. Concurrences: O'Connor, Kennedy, Stevens. Dissents: Brennan, Marshall, Blackmun, White. 54pp. Noted at: 182b, 283a, 283b, 371b Michael M. v. Superior Court, 450 U.S. 464 (1981). 5-4, REHNQUIST. Concurrences: Stewart, Blackmun. Dissents: Brennan, White, Marshall, Stevens. 39pp. Noted at: 460b, 484a Michaelson v. U.S., 266 U.S. 42 (1924). 9-0, S U T H E R L A N D . 29pp. Noted at: 264b Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976). 8-0, B R E N N A N . Concurrence: White. Not voting: Stevens. 27pp. Noted at: 179b, 242a, 337b

1531.

1532.

1533. 1534.

1535.

1536.

1537. 1538. 1539.

Michigan v. Jackson, 475 U.S. 625 (1986). 6-3, STEVENS. Concurrence: Burger. Dissents: Rehnquist, Powell, O'Connor. 18pp. Noted at: 128a Michigan v. Long, 463 U.S. 1032 (1983). 6-3, O ' C O N N O R . Concurrence: Blackmun. Dissents: Blackmun, Brennan, Marshall, Stevens. 40pp. Noted at: 28a-b, 263a, 447a Michigan v. Mosley, 423 U.S. 96 (1975). 7-2, STEWART. Concurrence: White. Dissents: Brennan, Marshall. 26pp. Noted at: 455b Michigan v. Tyler, 436 U.S. 499 (1978). 6-3, STEWART. Concurrences: Blackmun, White, Marshall, Stevens. Dissents: White, Marshall, Rehnquist. 20pp. Noted at: 443b Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). 6-3, REHNQUIST. Concurrence: Blackmun. Dissents: Brennan, Marshall, Stevens. 19pp. Noted at: 58a, 447a Middendorf v. Henry, 425 U.S. 25 (1976). 6-3, REHNQUIST. Concurrences: Powell, Blackmun. Dissents: Stewart, Marshall, Brennan. 48pp. Noted at: 304b Miles v. Graham, 268 U.S. 501 (1925). 8-i, McREYNOLDS. Dissent: Brandeis. 9pp. Noted at: m a Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). 7-2, REHNQUIST. Dissents: Brennan, Marshall. 21pp. Noted at: 334b Millard v. Roberts, 202 U.S. 429 (1906). 9-0, McKENNA. Concurrence: Harlan. 10pp. Noted at: 68b

701

702

TABLE OF 1539a.

1540. 1541. 1542.

1543. 1544. 1545. 1546. 1547. 1548.

1549.

1550. 1551. 1552. 1553.

1554.

1555. 1556. 1557. 1558. 1559. 1560.

1561.

CASES

Miller v. Albright, 118 S.Ct. 1428 (1998). 6-3, STEVENS. Concurrences: O'Connor, Kennedy, Scalia, Thomas. Dissents: Ginsburg, Souter, Breyer. 37pp. Noted at: 556a Miller v. California, 413 U.S. 15 (1973). 5-4, BURGER. Dissents: Douglas, Brennan, Stewart, Marshall. 34pp. Noted at: 270a, 328b Miller v. Florida, 482 U.S. 423 (1987). 9-0, O'CONNOR. 13pp. Noted at: 174b Miller v. Johnson, 515 U.S. 900 (1995). 5-4, KENNEDY. Concurrence: O'Connor. Dissents: Ginsburg, Stevens, Breyer, Souter. 50pp. Noted at: 213a Miller v. Schoene, 276 U.S. 272 (1928). 9-0, STONE. 9pp. Noted at: 499a Miller v. U.S., 78 U.S. (11 Wall.) 268 (1871). 6-3, STRONG. Dissents: Field, Clifford, Davis. 63pp. Noted at: 113b Miller Bros. Co. v. Maryland, 347 U.S. 340 (1954). 5-4, JACKSON. Dissents: Douglas, Warren, Black, Clark. 19pp. Noted at: 524b Miller, U.S. v., 307 U.S. 174 (1939). 8-0, McREYNOLDS. Not voting: Douglas. 10pp. Noted at: 56b Miller, U.S. v., 317 U.S. 369 (1943). 9-0, ROBERTS. 14pp. Noted at: 271b Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866). 9-0, DAVIS. Concurrences: Chase, Wayne, Swayne, Miller. 8pp. Noted at: 100b, 164a, 221a, 300b, 304b, 305b, 367b, 434b, 494b Milliken v. Bradley, 418 U.S. 717 (1974). 5-4, BURGER. Concurrence: Stewart. Dissents: Douglas, White, Brennan, Marshall. 98pp. Noted at: 452b Milliken v. Meyer, 311 U.S. 457 (1940). 9-0, DOUGLAS. 8pp. Noted at: 268a Mills v. Alabama, 384 U.S. 214 (1966). 9-0, BLACK. Concurrences: Douglas, Brennan. 10pp. Noted at: 431a, 470a Mills v. Duryee, 11 U.S. (7 Cr.) 481 (1813). 5-1, STORY. Dissent: Johnson. Not voting: Todd. 6pp. Noted at: 208b Mills v. Habluetzel, 456 U.S. 91 (1982). 9-0, REHNQUIST. Concurrences: O'Connor, Burger, Brennan, Blackmun, Powell. 16pp. Noted at: 236a, 484a, 487a Mincey v. Arizona, 437 U.S. 385 (1978). 8-1, STEWART. Concurrences: Marshall, Brennan, Rehnquist. Dissent: Rehnquist. 26pp. Noted at: 443a, 445a, 446a, 455b Miner v. Atlass, 363 U.S. 641 (i960). 6-3, HARLAN. Dissents: Brennan, Douglas, Stewart. 25pp. Noted at: 264b Minersville School District v. Gobitis, 310 U.S. 586 (1940). 8-1, FRANKFURTER. Concurrence: McReynolds. Dissent: Stone. 21pp. Noted at: 191a, 199a Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211 (1916). 9-0, WHITE. 12pp. Noted at: 271a, 519a Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983). 7-2, O'CONNOR. Concurrence: White. Dissents: White, Rehnquist. 30pp. Noted at: 207b Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981). 7-2, BRENNAN. Concurrence: Powell. Dissents: Powell, Stevens. 33pp. Noted at: 150b, 306a, 411b Minnesota v. Dickerson, 508 U.S. 366 (1993). 9-0, 6-3, WHITE. Concurrences: Scalia, Rehnquist. Dissents: Rehnquist, Blackmun, Thomas. 18pp. Noted at: 447a Minnesota v. Olson, 495 U.S. 91 (1990). 7-2, WHITE. Concurrences: Stevens, Kennedy. Dissents: Rehnquist, Blackmun. 11pp. Noted at: 443a

TABLE OF CASES

1562. 1563. 1564.

1565. 1566. 1567. 1568.

1569. 1570.

1571.

1572. 1573. 1574. 1575.

1576.

1577.

1578. 1579.

1579a.

1580.

1581. 1582.

Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875). 9-0, WAITE. 17pp. Noted at: 320a, 534a Mintz v. Baldwin, 289 U.S. 346 (1933). 9-0, BUTLER. 7pp. Noted at: 408a Miranda v. Arizona, 384 U.S. 436 (1966). 5-4, WARREN. Concurrence: Clark. Dissents: Clark, Harlan, Stewart, White. 110pp. Noted at: 301a, 306b, 455a, 475b Mireles v. Waco, 502 U.S. 9 (1991). 6-3, PER CURIAM. Dissents: Stevens, Scalia, Kennedy. 7pp. Noted at: 239b Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866). 9-0, CHASE. 27pp. Noted at: 366b Mississippi ex rel. Robertson v. Miller, 276 U.S. 174 (1928). 9-0, BUTLER. 6pp. Noted at: 359a Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). 5-4, O'CONNOR. Dissents: Burger, Blackmun, Powell, Rehnquist. 28pp. Noted at: 439b, 461a Missouri v. Holland, 252 U.S. 416 (1920). 9-0, HOLMES. 20pp. Noted at: 12,168a, 316b, 492b, 514a Missouri v. Jenkins, 495 U.S. 33 (1990). 9-0, WHITE. Concurrences: Kennedy, Rehnquist, O'Connor, Scalia. 49pp. Noted at: 171a, 250b, 452b Missouri v. Jenkins, 515 U.S. 70 (1995). 5-4, REHNQUIST. Concurrences: Thomas, O'Connor. Dissents: Souter, Ginsburg, Stevens, Breyer. 107pp. Noted at: 452b Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). 7-2, HUGHES. Dissents: McReynolds, Butler. 18pp. Noted at: 451b Missouri Pacific Railway Co. v. Kansas, 248 U.S. 276 (1919). 9-0, WHITE. 10pp. Noted at: 281a, 514a, 529b Mistretta v. U.S., 488 U.S. 361 (1989). 8-1, BLACKMUN. Dissent: Scalia. 67pp. Noted at: 30b, 140a, 140b, 458a Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974). 5-4, WHITE. Concurrence: Powell. Dissents: Stewart, Douglas, Marshall, Brennan. 37pp. Noted at: 212a, 425a Mitchum v. Foster, 407 U.S. 225 (1972). 7-0, STEWART. Concurrences: Burger, White, Blackmun. Not voting: Powell, Rehnquist. 19pp. Noted at: 48a Mobile v. Bolden, 446 U.S. 55 (1980). 6-3, STEWART. Concurrences: Blackmun, Stevens. Dissents: White, Brennan, Marshall. 49pp. Noted at: 406a, 484a Mondou v. New York, New Haven, & Hartford R.R. Co., 223 U.S. 1 (1912). 9-0, VAN DEVANTER. 59pp. Noted at: 82a, 101b Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). 7-2, BRENNAN. Concurrences: Powell, Stevens. Dissents: Rehnquist, Burger. 67pp. Noted at: 94b, 122b, 123a, 274a, 359a, 446a Monge v. California, 118 S.Ct. 2246 (1998). 5-4, O ' C O N N O R . Dissents: Stevens, Scalia, Souter, Ginsburg. 12pp. Noted at: 558a Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971). 7-2, STEWART. Concurrences: White, Black, Douglas. Dissents: Black, Douglas. 13pp. Noted at: 284b, 396b Monongahela Navigation Co. v. U.S., 148 U.S. 312 (1893). 7-0, BREWER. Not voting: Shiras, Jackson. 34pp. Noted at: 271b Monroe v. Pape, 365 U.S. 167 (1961). 8-1, DOUGLAS. Dissent: Frankfurter. 93pp. Noted at: 94b, 122b, 274a, 354a, 446a

703

704

T A B L E OF C A S E S 1583. 1584.

1585. 1586. 1587.

1588. 1589.

1590. 1591. 1592. 1593. 1594. 1595. 1596. 1597. 1598. 1599.

1600.

1601. 1602. 1603. 1604. 1605. 1606.

Montana v. Egelhoff, 518 U.S. 37 (1996). 5-4, SCALIA. Dissents: O'Connor, Stevens, Souter, Breyer. 43pp. Noted at: 257a Montoya de Hernandez, U.S. v., 473 U.S. 531 (1985). 7-2, REHNQUIST. Concurrence: Stevens. Dissents: Brennan, Marshall. 36pp. Noted at: 444b Mooney v. Holohan, 294 U.S. 103 (1935). 9-0, PER CURIAM. 13pp. Noted at: 48b, 157b, 347a Moore v. Dempsey, 261 U.S. 86 (1923). 7-2, HOLMES. Dissents: McReynolds, Sutherland. 17pp. Noted at: 48b, 49a, 157b, 516a Moore v. East Cleveland, 431 U.S. 494 (1977). 5-4, POWELL. Concurrences: Brennan, Marshall, Stevens. Dissents: Burger, Stewart, Rehnquist, White. 58pp. Noted at: 183a, 200b, 554a Moore v. Illinois, 55 U.S. (14 How.) 13 (1853). 8-1, GRIER. Dissent: McLean. 10pp. Noted at: 459a Moore v. Illinois, 408 U.S. 786 (1972). 9-0, 5-4, BLACKMUN. Concurrences: Marshall, Douglas, Stewart, Powell. Dissents: Marshall, Douglas, Stewart, Powell. 25pp. Noted at: 144b Moore v. Illinois, 434 U.S. 220 (1977). 9-0, POWELL. Concurrences: Rehnquist, Blackmun. 15pp. Noted at: 287b Moore v. Michigan, 355 U.S. 155 (1957). 5-4, BRENNAN. Dissents: Burton, Frankfurter, Clark, Harlan. 14pp. Noted at: 128a Moore v. Ogilvie, 394 U.S. 814 (1969). 7-2, DOUGLAS. Dissents: Stewart, Harlan. 9pp. Noted at: 25a Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). 6-3, REHNQUIST. Dissents: Douglas, Brennan, Marshall. 28pp. Noted at: 478b Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). 8-0, HARLAN. Not voting: Blackmun. 35pp. Noted at: 33a Moran v. Burbine, 475 U.S. 412 (1986). 6-3, O'CONNOR. Dissents: Stevens, Brennan, Marshall. 57pp. Noted at: 455b Morgan v. Illinois, 504 U.S. 719 (1992). 6-3, WHITE. Dissents: Scalia, Rehnquist, Thomas. 34pp. Noted at: 137b Morgan's Louisiana & T.R. & S.S. Co. v. Louisiana, 118 U.S. 455 (1886). 9-0, MILLER. 13pp. Noted at: 360a Morissette v. U.S., 342 U.S. 246 (1952). 8-0, JACKSON. Concurrence: Douglas. Not voting: Minton. 31pp. Noted at: 417a Morrison v. Olson, 487 U.S. 654 (1988). 7-1, REHNQUIST. Dissent: Scalia. Not voting: Kennedy. 80pp. Noted at: 30b, 51a, 52b, 65a, 246b, 249b, 250a, 369a, 458a Morrissey v. Brewer, 408 U.S. 471 (1972). 8-1, BURGER. Concurrences: Brennan, Marshall. Dissent: Douglas. 30pp. Noted at: 286b, 342a, 384b Morton v. Mancari, 417 U.S. 535 (1974). 9-0, BLACKMUN. 21pp. Noted at: 247b Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983). 6-3, BRENNAN. Dissents: Rehnquist, Burger, O'Connor. 36pp. Noted at: 344b Motes v. U.S. 178 U.S. 458 (1900). 9-0, HARLAN. 19pp. Noted at: 113b Mountain Timber Co. v. Washington, 243 U.S. 219 (1917). 5-4, PITNEY. Dissents: White, McKenna, Van Devanter, McReynolds. 28pp. Noted at: 546a Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). 9-0, REHNQUIST. 14pp. Noted at: 481a Mu'Min v. Virginia, 500 U.S. 415 (1991). 5-4, REHNQUIST. Concurrence: O'Connor. Dissents: Marshall, Blackmun, Stevens, Kennedy. 38pp. Noted at: 364b

TABLE OF C A S E S 1607. 1608. 1609. 1610. 1611. 1612. 1613. 1614. 1615. 1616. 1617. 1618. 1619. 1620.

1621.

1622. 1623. 1624.

1625. 1626. 1627.

1628. 1629. 1630. 1631.

Mugler v. Kansas, 123 U.S. 623 (1887). 8-1, HARLAN. Dissent: Field. 56pp. Noted at: 160a Mulford v. Smith, 307 U.S. 38 (1939). 7-2, ROBERTS. Dissents: Butler, McReynolds. 19pp. Noted at: 41a Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). 7-1, JACKSON. Dissent: Burton. Not voting: Douglas. 15pp. Noted at: 269a, 322b Mullaney v. Wilbur, 421 U.S. 684 (1975). 9-0, POWELL. Concurrences: Rehnquist, Burger. 23pp. Noted at: 388a, 388b Muller v. Oregon, 208 U.S. 412 (1908). 9-0, BREWER. 2pp. Noted at: 72a, 166a, 199b, 370a Munn v. Illinois, 94 U.S. 113 (1876). 7-2, WAITE. Dissents: Field, Strong. 42pp. Noted at: 35b, 82a, 159b, 160a, 160b, 410b Munoz-Flores, U.S. v., 495 U.S. 385 (1990). 9-0, MARSHALL. Concurrences: Stevens, O'Connor, Scalia. 26pp. Noted at: 358b, 504b Munro v. Socialist Workers Party, 479 U.S. 189 (1986). 7-2, WHITE. Dissents: Marshall, Brennan. 18pp. Noted at: 25a Munsingwear, Inc., U.S. v., 340 U.S. 36 (1950). 9-0, DOUGLAS. 6pp. Noted at: 309a Murchison, In re, 349 U.S. 133 (1955). 6-3, BLACK. Dissents: Reed, Minton, Burton. 10pp. Noted at: 516a Murdock, U.S. v., 284 U.S. 141 (1931). 9-0, BUTLER. 11pp. Noted at: 521a Murphy v. Ramsey, 114 U.S. 15 (1885). 9-0, MATTHEWS. 33pp. Noted at: 174b, 201b Murphy v. Waterfront Commission, 378 U.S. 52 (1964). 9-0, GOLDBERG. Concurrences: White, Stewart. 41pp. Noted at: 238a, 521a, 566b Murray v. Carrier, 477 U.S. 478 (1986). 7-2, O'CONNOR. Concurrences: Stevens, Blackmun. Dissents: Brennan, Marshall. 38pp. Noted at: 223a Murray v. Giarratano, 492 U.S. 1 (1989). 5-4, REHNQUIST. Concurrences: O'Connor, Kennedy. Dissents: Stevens, Brennan, Marshall, Blackmun. 32pp. Noted at: 128a, 376a Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856). 9-0, CURTIS. 15pp. Noted at: 58a, 156b Muskrat v. U.S., 219 U.S. 346 (1911). 9-0, DAY. 18pp. Noted at: 81a Musser v. State of Utah, 333 U.S. 95 (1948). 6-3, JACKSON. Concurrence: Black. Dissents: Rutledge, Douglas, Murphy. 8pp. Noted at: 400a Myers v. U.S., 272 U.S. 52 (1926). 6-3, TAFT. Dissents: McReynolds, Brandeis, Holmes. 9pp. Noted at: 52a, 230b, 241b NAACP v. Alabama, 357 U.S. 449 (1958). 9-0, HARLAN. 19pp. Noted at: 197b, 245b NAACP v. Button, 371 U.S. 415 (1963). 5-4, BRENNAN. Dissents: White, Harlan, Clark, Stewart. 56pp. Noted at: 197b, 200b, 288b, 466b, 497b NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). 9-0, STEVENS. 55pp. Noted at: 72a, 349b Nachtigal, U.S. v., 507 U.S. 1 (1993). 9-0, PER CURIAM. 6pp. Noted at: 518a Nairn v. Nairn, 350 U.S. 985 (1956). 9-0, PER CURIAM, ipp. Noted at: 307b, 495a Napue v. Illinois, 360 U.S. 264 (1959). 9-0, WARREN. 9pp. Noted at: 347a

705

706

T A B L E OF C A S E S 1632. 1633. 1634.

1635. 1636. 1637. 1638. 1638a. 1639.

1640. 1641.

1642. 1643.

1644. 1645.

1646.

1647. 1648.

1649. 1650. 1651.

1652.

Nardone v. U.S., 308 U.S. 338 (1939). 7-1, FRANKFURTER. Dissent: McReynolds. Not voting: Reed. 6pp. Noted at: 207b Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). 9-0, STONE. 20pp. Noted at: 139b National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753 (1967)6-3, STEWART. Dissents: Fortas, Black, Douglas. 14pp. Noted at: 503a, 503b, 524b National Board of YMCA v. U.S., 395 U.S. 85 (1969). 7-2, BRENNAN. Concurrences: Stewart, Harlan. Dissents: Black, Douglas. 15pp. Noted at: 500a National Broadcasting Co. v. U.S., 319 U.S. 190 (1943). 7-2, FRANKFURTER. Dissents: Murphy, Roberts. 49pp. Noted at: 30a, 74a, 74b, 140a National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179 (1988). 5-4, STEVENS. Dissents: White, Brennan, Marshall, O'Connor. 25pp. Noted at: 479a National Dairy Products Corp., U.S. v., 372 U.S. 29 (1963). 6-3, CLARK. Dissents: Black, Stewart, Goldberg. 10pp. Noted at: 528a National Endowment for the Arts v. Finley, 118 S.Ct. 2168 (1998). 8-1, O'CONNOR. Concurrence: Scalia. Dissent: Souter. 29pp. Noted at: 563a, 569b National Geographic Society v. California Board of Equalization, 430 U.S. 551 (1977). 7-0, BRENNAN. Concurrence: Blackmun. Not voting: Burger, Rehnquist. 10pp. Noted at: 503a National Labor Relations Board v. Fainblatt, 306 U.S. 601 (1939). 7-2, STONE. Dissents: McReynolds, Butler. 12pp. Noted at: 275b National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 5-4, HUGHES. Dissents: McReynolds, Van Devanter, Sutherland, Butler. 49pp. Noted at: 102a, 132a, 255b, 275a, 276a, 297a, 506a, 508b, 549b National Labor Relations Board v. Reliance Fuel Oil Co., 371 U.S. 224 (1963). 9-0, PER CURIAM. Concurrence: Black. 4pp. Noted at: 275b National Labor Relations Board v. Retail Store Employees Union, Local 1001, 447 U.S. 607 (1980). 6-3, POWELL. Concurrences: Blackmun, Stevens. Dissents: Brennan, White, Marshall. 18pp. Noted at: 71b, 349b National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469 (1941). 7-0, MURPHY. Not voting: Roberts, Jackson. 12pp. Noted at: 291a National League of Cities v. Usery, 426 U.S. 833 (1976). 5-4, REHNQUIST. Concurrence: Blackmun. Dissents: Brennan, White, Marshall, Stevens. 49pp. Noted at: 64b, 185 a-b, 237b, 275b, 359a, 506a National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1948). 5-4, JACKSON. Concurrences: Rutledge, Murphy. Dissents: Frankfurter, Reed, Vinson, Douglas. 64pp. Noted at: 146b, 147a National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). 5-4, KENNEDY. Dissents: Marshall, Brennan, Scalia. 32pp. Noted at: 155a National Treasury Employees Union, U.S. v., 513 U.S. 454 (1995). 6-3, 5-4, STEVENS. Concurrence: O'Connor. Dissents: O'Connor, Rehnquist, Scalia, Thomas. 50pp. Noted at: 396a Neagle, In re, 135 U.S. 1 (1890). 6-2, MILLER. Dissents: Lamar, Fuller. Not voting: Field. 99pp. Noted at: 367b, 369a Neal v. Delaware, 103 U.S. 370 (1881). 7-2, HARLAN. Dissents: Waite, Field. 39pp. Noted at: 534b Near v. Minnesota, 283 U.S. 697 (1931). 5-4, HUGHES. Dissents: Butler, Van Devanter, McReynolds, Sutherland. 42pp. Noted at: 245b, 373b-374a Nebbia v. New York, 291 U.S. 502 (1934). 5-4, ROBERTS. Dissents: McReynolds, Van Devanter, Sutherland, Butler. 58pp. Noted at: 36a, 160b, 306a, 355a, 373a, 411b

T A B L E OF C A S E S 1653.

Nebraska Dept. of Revenue v. Loewenstein, 513 U.S. 123 (1994). 9-0, THOMAS. 15pp. Noted at: 237a 1654. Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976). 9-0, BURGER. Concurrences: White, Powell, Brennan, Stewart, Marshall, Stevens. 79pp. Noted at: 195b, 207a, 211a, 216a, 309b, 374a 1655. Nectow v. Cambridge, 277 U.S. 183 (1928). 9-0, SUTHERLAND. 6pp. Noted at: 552b 1656. Neil v. Biggers, 409 U.S. 188 (1972). 8-0, 5-3, POWELL. Concurrences: Brennan, Douglas, Stewart. Dissents: Brennan, Douglas, Stewart. Not voting: Marshall, 16pp. Noted at: 36a 1657. Nevada v. Hall, 440 U.S. 410 (1979). 6-3, STEVENS. Dissents: Blackmun, Burger, Rehnquist. 34pp. Noted at: 100a, 481a 1658. Nevada v. U.S., 463 U.S. no (1983). 9-0, REHNQUIST. Concurrence: Brennan. 36pp. Noted at: 248b, 427b 1659. New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988). 9-0, SCALIA. npp. Noted at: 503a 1659a. New Jersey v. New York, 118 S.Ct. 1726 (1998). 6-3, SOUTER. Concurrence: Breyer. Dissents: Stevens, Scalia, Thomas. 36pp. Noted at: 71b, 556b 1660. New Jersey v. Portash, 440 U.S. 450 (1979). 7-2, STEWART. Concurrences: Brennan, Marshall, Powell, Rehnquist. Dissents: Burger, Blackmun. 22pp. Noted at: 238b 1661. New Jersey v. T.L.O., 469 U.S. 325 (1985). 6-3, WHITE. Concurrences: Powell, O'Connor, Blackmun. Dissents: Brennan, Marshall, Stevens. 61pp. Noted at: 447b 1662. New Jersey v. Wilson, 11 U.S. (7 Cr.) 164 (1812). 7-0, MARSHALL. 4pp. Noted at: 326a 1663. New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 47 U.S. (6 How.) 344 (1847). 9-0, NELSON. Concurrences: Taney, McLean, Wayne. 93pp. Noted at: 32b 1664. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). 9-0, MARSHALL. 20pp. Noted at: 363a 1664a. New Mexico ex rei. Ortiz v. Reed, 118 S.Ct. i860 (1998). 9-0, PER CURIAM. 3pp. Noted at: 559a 1665. New Motor Vehicle Board v. Orrin W. Fox Co., 439 U.S. 96 (1978). 8-1, BRENNAN. Concurrences: Marshall, Blackmun, Powell. Dissent: Stevens. 32pp. Noted at: 23a 1666. New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938). 7-2, ROBERTS. Dissents: McReynolds, Butler. 12pp. Noted at: 48a 1667. New Orleans v. Dukes, 427 U.S. 297 (1976). 8-0, PER CURIAM. Concurrence: Marshall. Not voting: Stevens. 10pp. Noted at: 159b, 218a, 411b 1668. New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54 (1958). 9-0, PER CURIAM, ipp. Noted at: 452a 1669. New Rider v. Board of Education, 480 F.2d 693 (10th Cir. 1973), cert, denied, 414 U.S. 1097 (i973)7-2. PER CURIAM. Dissents: Black, Douglas, ipp. Noted at: 273a 1670. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). 7-2, SUTHERLAND. Dissents: Brandeis, Stone. 50pp. Noted at: 35b, 160a, 330a 1671. New York v. Burger, 482 U.S. 691 (1987). 6-3, BLACKMUN. Dissents: Brennan, Marshall, O'Connor. 38pp. Noted at: 443b 1672. New York v. Ferber, 458 U.S. 747 (1982). 9-0, WHITE. Concurrences: Blackmun, O'Connor, Brennan, Marshall, Stewart. 35pp. Noted at: 329a 1673. New York v. Quarles, 467 U.S. 649 (1984). 5-4, REHNQUIST. Concurrence: O'Connor. Dissents: O'Connor, Marshall, Brennan, Stevens. 42pp. Noted at: 455b

707

708

T A B L E OF C A S E S 1674.

New York v. U.S., 326 U.S. 572 (1946). 7-2, FRANKFURTER. Dissents: Douglas, Black. 17pp. Noted at: 185a, 505a 1675. New York v. U.S., 331 U.S. 284 (1947). 7-2, DOUGLAS. Dissents: Jackson, Frankfurter. 2pp. Noted at: 30a 1676. New York v. U.S., 505 U.S. 144 (1992). 6-3, O'CONNOR. Dissents: White, Blackmun, Stevens. 70pp. Noted at: 168b, 483a, 506a, 506b 1677. New York v. Uplinger, 467 U.S. 246 (1984). 5-4, PER CURIAM. Concurrence: Stevens. Dissents: White, Burger, Rehnquist, O'Connor. 6pp. Noted at: 436a 1678. New York Central R.R. Co. v. Bianc, 250 U.S. 596 (1919). 8-1, PITNEY. Dissent: McReynolds. 7pp. Noted at: 546a 1679. New York Central R. R. Co. v. Hudson County, 227 U.S. 248 (1913). 9-0, WHITE. 18pp. Noted at: 315b 1680. New York Central R. R. Co. v. White, 243 U.S. 188 (1917). 9-0, PITNEY. 22pp. Noted at: 82a, 546a 1681. New York Central Securities Co. v. U.S., 287 U.S. 12 (1932). 9-0, HUGHES. 18pp. Noted at: 140a 1682. New York City Transit Authority v. Beazer, 440 U.S. 568 (1979). 5-4, STEVENS. Concurrence: Powell. Dissents: Powell, Brennan, White, Marshall. 44pp. Noted at: 412a 1683. New York State Club Assn. v. City of New York, 487 U.S. 1 (1988). 9-0, WHITE. Concurrences: O'Connor, Kennedy, Scalia. 21pp. Noted at: 198a, 200b 1684. New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). 7-2, PER CURIAM. Concurrence: Marshall. Dissents: Brennan, Stevens. 12pp. Noted at: 256b,323a 1685. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 9-0, BRENNAN. Concurrences: Black, Douglas, Goldberg. 44pp. Noted at: 130a, 134a, 284a, 296b, 377a, 396b, 427a, 451a 1686. New York Times Co. v. U.S., 403 U.S. 713 (1971). 6-3, PER CURIAM. Concurrences: Black, Douglas, Brennan, Stewart, White, Marshall. Dissents: Burger, Harlan, Blackmun. 50pp. Noted at: 112b, 279a, 319b, 344(5-3453, 368a, 374a 1687. New York Trust Co. v. Eisner, 256 U.S. 345 (1921). 9-0, HOLMES. 6pp. Noted at: 172b 1688. New York, City of v. Federal Communications Commission, 486 U.S. 57 (1988). 9-0, WHITE. 14pp. Noted at: 77a 1689. New York, Ex parte, 256 U.S. 490 (1921). 9-0, PITNEY. 14pp. Noted at: 481a 1690. Newark, City of v. New Jersey, 262 U.S. 192 (1923). 9-0, BUTLER. 5pp. Noted at: 349a 1690a. Newsweek, Inc. v. Florida Department of Revenue, 118 S.Ct. 904 (1998). 9-0, PER CURIAM. 2pp. Noted at: 563b 1691. Newton, Town of v. Rumery, 480 U.S. 386 (1987). 5-4, POWELL. Concurrence: O'Connor. Dissents: Stevens, Brennan, Marshall, Blackmun. 35pp. Noted at: 434b 1692. Newton v. Commissioners, 100 U.S. 548 (1879). 9-0, SWAYNE. 16pp. Noted at: 359a 1693. Ng Fung Ho v. White, 259 U.S. 276 (1922). 9-0, BRANDEIS. 10pp. Noted at: 142a, 228b, 270a, 384b 1694. Nice, U.S. v., 241 U.S. 591 (1916). 9-0, VAN DEVANTER. npp. Noted at: 248a 1695. Nichols v. U.S., 511 U. S. 738 (1994). 6-3, REHNQUIST. Concurrence: Souter. Dissents: Blackmun, Stevens, Ginsburg. 29pp. Noted at: 456b

T A B L E OF C A S E S 1696. 1697.

Niemotko v. Maryland, 340 U.S. 268 (1951). 9-0, VINSON. Concurrences: Black, Frankfurter. 28pp. Noted at: 347b, 510b Nix v. Whiteside, 475 U.S. 157 (1986). 9-0, BURGER. Concurrences: Brennan, Blackmun, Marshall, Stevens. 35pp. Noted at:

1698.

1699.

1700.

347a Nix v. Williams, 467 U.S. 431 (1984). 7-2, BURGER. Concurrences: White, Stevens. Dissents: Brennan, Marshall. 30pp. Noted at: 176a, 208a, 413b Nixon v. Administrator of General Services, 433 U.S. 425 (1977). 7-2, BRENNAN. Concurrences: White, Stevens, Blackmun, Powell. Dissents: Burger, Rehnquist. 136pp. Noted at: 67b, 178b, 401b Nixon v. Condon, 286 U.S. 73 (1932). 5-4, CARDOZO. Dissents: McReynolds, Van Devanter, Sutherland, Butler. 33pp. Noted at: 535a

1701.

1702. 1703.

1704.

1705. 1706.

1707. 1708.

1709. 1710. 1711. 1712. 1713.

1714.

1715. 1716.

Nixon v. Fitzgerald, 457 U.S. 731 (1982). 5-4, POWELL. Concurrence: Burger. Dissents: White, Brennan, Marshall, Blackmun. 69pp. Noted at: 239a, 366b, 367b Nixon v. Herndon, 273 U.S. 536 (1927). 9-0, HOLMES. 6pp. Noted at: 357a, 534b Nixon v. U.S., 506 U.S. 224 (1993). 9-0, REHNQUIST. Concurrences: Stevens, White, Blackmun, Souter. 31pp. Noted at: 108a, 241a, 272a Nixon, U.S. v., 418 U.S. 683 (1974). 8-0, BURGER. Not voting: Rehnquist. 34pp. Noted at: 16, 64a, 178a, 246b, 250a, 266b, 366b, 368a, 369a, 507b, 543a Noble v. Oklahoma City, 297 U.S. 481 (1936). 9-0, ROBERTS. 15pp. Noted at: 164b Nollan v. California Coastal Commission, 483 U.S. 825 (1987). 5-4, SCALIA. Dissents: Brennan, Marshall, Blackmun, Stevens. 43pp. Noted at: 500a, 500b Nordlinger v. Hahn, 505 U.S. 1 (1992). 8-1, BLACKMUN. Concurrence: Thomas. Dissent: Stevens. 41pp. Noted at: 390b Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240 (1935). 5-4, HUGHES. Dissents: McReynolds, Van Devanter, Sutherland, Butler. 4pp. Noted at: 135a, 214b Norman v. Reed, 502 U.S. 279 (1992). 7-1, SOUTER. Dissent: Scalia. Not voting: Thomas. 19pp. Noted at: 25a Norris v. Alabama, 294 U.S. 587 (1935). 8-0, HUGHES. Not voting: McReynolds. 13pp. Noted at: 483b North American Co. v. Securities and Exchange Commission, 327 U.S. 686 (1946). 6-0, MURPHY. Not voting: Reed, Douglas, Jackson. 25pp. Noted at: 400b North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908). 8-1, PECKHAM. Dissent: Brewer. 15pp. Noted at: 31a, 229a North Carolina v. Butler, 441 U.S. 369 (1979). 6-3, STEWART. Concurrence: Blackmun. Dissents: Brennan, Marshall, Stevens, npp. Noted at: 455b North Carolina v. Pearce, 395 U.S. 711 (1969). 7-2, STEWART. Concurrences: Harlan, Black, White. Dissents: Harlan, Black. 41pp. Noted at: 151a, 153a, 456a North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971). 9-0, BURGER. 4pp. Noted at: 36a North Dakota v. U.S., 460 U.S. 300 (1983). 7-2, STEWART. Concurrences: O'Connor, Rehnquist. Dissents: O'Connor, Rehnquist. 24pp. Noted at: 185a

709

710

T A B L E OF C A S E S 1717.

1718. 1719.

North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). 6-3, WHITE. Concurrences: Stewart, Powell. Dissents: Blackmun, Rehnquist, Burger. 20pp. Noted at: 212a North v. Russell, 427 U.S. 328 (1976). 7-2, BURGER. Concurrence: Brennan. Dissents: Stewart, Marshall. 19pp. Noted at: i6ib Northeastern Florida Chapter of Assoc. Gen'l Contractors of America v. Jacksonville, 508 U . S . 656 (1993).

1720.

1721. 1722. 1723.

1724. 1725. 1726. 1727.

1728.

1729. 1730. 1731. 1732.

1733. 1734.

1735. 1736.

1737. 1738.

7-2, THOMAS. Dissents: O'Connor, Blackmun. 23pp. Noted at: 474b Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 6-3, BRENNAN. Concurrences: Rehnquist, O'Connor. Dissents: Burger, White, Powell. 69pp. Noted at: 58b, 378b, 517a Northern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959). 6-3, CLARK. Dissents: Whittaker, Frankfurter, Stewart. 28pp. Noted at: 503a Northwest Airlines v. County of Kent, Michigan, 510 U.S. 355 (1994). 7-1, GINSBURG. Dissent: Thomas. Not voting: Blackmun. 28pp. Noted at: 504b Northwest Airlines v. Minnesota, 322 U.S. 292 (1944). 5-4, FRANKFURTER. Concurrences: Black, Jackson. Dissents: Stone, Roberts, Reed, Rutledge. 35pp. Noted at: 391a Norton v. Shelby County, 118 U.S. 425 (1886). 9-0, FIELD. 30pp. Noted at: 99b-iooa, 523a Noto v. U.S., 367 U.S. 290 (1961). 9-0, HARLAN. Concurrences: Brennan, Warren, Black, Douglas. 13pp. Noted at: 109a O'Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980). 8-1, STEVENS. Concurrence: Blackmun. Dissent: Brennan. 34pp. Noted at: 385a O'Brien v. Brown, 409 U.S. 1 (1972). 6-3, PER CURIAM. Concurrence: Brennan. Dissents: White, Douglas, Marshall. 16pp. Noted at: 355b O'Brien v. Skinner, 414 U.S. 524 (1974). 7-2, BURGER. Concurrences: Marshall, Douglas, Brennan. Dissents: Blackmun, Rehnquist. 14pp. Noted at: 22b O'Brien, U.S. v., 391 U.S. 367 (1968). 8-i, WARREN. Dissent: Douglas. 24pp. Noted at: nob, 116a, 282b, 311b, 496b, 540a O'Callahan v. Parker, 395 U.S. 258 (1969). 6-3, DOUGLAS. Dissents: Harlan, Stewart, White. 27pp. Noted at: 305a O'Connor v. Donaldson, 422 U.S. 563 (1975). 9-0, STEWART. Concurrence: Burger. 27pp. Noted at: 89b, 381b, 394a O'Connor v. Ortega, 480 U.S. 709 (1987). 5-4, O'CONNOR. Concurrence: Scalia. Dissents: Blackmun, Brennan, Marshall, Stevens. 40pp. Noted at: 443b O'Dell v. Netherland, 117 S.Ct. 1969 (1997). 5-4, THOMAS. Dissents: Stevens, Souter, Ginsburg, Breyer. 16pp. Noted at: 319a O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996). 7-2, KENNEDY. Dissents: Scalia, Thomas. 34pp. (Fourteen of these pages include dissents applicable also to Board of County Commissioners, Wabaunsee County v. Umbehr) Noted at: 198a, 343b O'Keeffe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359 (1965). 6-3, PER CURIAM. Dissents: Harlan, Clark, White. 14pp. Noted at: 270a O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). 5-4, REHNQUIST. Dissents: Brennan, Marshall, Blackmun, Stevens. 27pp. Noted at: 202b O'Malley v. Woodrough, 307 U.S. 277 (1939). 8-1, FRANKFURTER. Dissent: Butler. 23pp. Noted at: ma, 505a O'Neil v. Vermont, 144 U.S. 323 (1892). 7-2, BLATCHFORD. Dissents: Field, Harlan. 49pp. Noted at: 157b, 244b, 392a

T A B L E OF CASES 1739.

Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909). 9-0, WHITE. 24pp. Noted at: 42a

1740.

Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). 7-2, KENNEDY. Concurrences: White, Blackmun, Stevens. Dissents: Marshall, Brennan. 17pp. Noted at: 55b, 514a Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827). 4-3, J O H N S O N . Dissents: Washington, Thompson, Trimble. 157pp. Noted at: 326b Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990). 6-3, KENNEDY. Concurrence: Steven. Dissents: Blackmun, Brennan, Marshall. 24pp. Noted at: 20b, 273a, 341b Ohio v. Kovacs, 469 U.S. 274 (1985). 9-0, WHITE. Concurrence: O'Connor. 13pp. Noted at: 66a Ohio v. Roberts, 448 U.S. 56 (1980). 6-3, B L A C K M U N . Dissents: Brennan, Marshall, Stevens. 27pp. Noted at: 173a Ohio v. Robinette, 117 S.Ct. 417 (1996). 8-1, REHNQUIST. Concurrence: Ginsburg. Dissent: Stevens. 12pp. Noted at: 442b, 445a Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244 (1998). 9-0, 8-1, 4-4-1, REHNQUIST. Concurrences: O'Connor, Souter, Ginsburg, Breyer, Stevens. Dissent: Stevens. 14pp. Noted at: 556a, 566b Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927). 9-0, STONE. 6pp. Noted at: 42b Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). 9-0, WHITE. 6pp. Noted at: 416a, 426b, 479b Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930). 9-0, HOLMES. 6pp. Noted at: 143a, 337a Ohio Forestry Association, Inc. v. Sierra Club, 118 S.Ct. 1665 (1998). 9-0, BREYER. 9pp. Noted at: 566a Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920). 6-3, B L A C K M U N . Dissents: Brandéis, Holmes, Clarke. 13pp. Noted at: 270a, 411a Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978). 8-0, POWELL. Concurrences: Rehnquist, Marshall. Not voting: Brennan. 22pp. Noted at: 466b Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947). 5-2, REED. Concurrence: Frankfurter. Dissents: Black, Rutledge. Not voting: Murphy, Jackson. 21pp. Noted at: 472b Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941). 9-0, DOUGLAS. 27pp. Noted at: 164b Oklahoma Tax Commission v. Jefferson Lines, Inc., 514 U.S. 175 (1995). 7-2, SOUTER. Concurrence: Scalia. Dissents: Breyer, O'Connor. 33pp. Noted at: 504a Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993). 9-0, O ' C O N N O R . 15pp. Noted at: 248a Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929). 8-1, TAFT. Dissent: McReynolds. 16pp. Noted at: 58a Old Wayne Life Assn. v. McDonough, 204 U.S. 8 (1907). 9-0, HARLAN. 15pp. Noted at: 268b Olim v. Wakinekona, 461 U.S. 238 (1983). 6-3, B L A C K M U N . Dissents: Marshall, Brennan, Stevens. 22pp. Noted at: 375a Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 7-2, REHNQUIST. Dissents: Marshall, Burger. 22pp. Noted at: 248a Oliver v. U.S., 466 U.S. 170 (1984). 6-3, POWELL. Concurrence: White. Dissents: Marshall, Brennan, Stevens. 28pp. Noted at: 156a, 446b Oliver, In re, 333 U.S. 257 (1948). 7-2, BLACK. Concurrence: Rutledge. Dissents: Frankfurter, Jackson. 30pp. Noted at: 26b, 246a

1741. 1742.

1743. 1744. 1745. 1745a.

1746. 1747. 1748. 1748a. 1749. 1750.

1751.

1752. 1753. 1754. 1755. 1756. 1757. 1758. 1759.

1760.

7ii

712

TABLE OF C A S E S 1761. 1762. 1763.

1764. 1765. 1766.

1767. 1768. 1769. 1770.

1771.

1772. 1773.

1774. 1774a. 1775. 1776. 1777.

1778.

Olmstead v. U.S., 277 U.S. 438 (1928). 5-4, TAFT. Dissents: Brandeis, Holmes, Butler, Stone. 51pp. Noted at: 382b, 443a, 488a O'Neal v. McAninch, 513 U.S. 432 (1995). 6-3, BREYER. Dissents: Thomas, Rehnquist, Scalia. 22pp. Noted at: 226a Oneida, County of v. Oneida Indian Nation, 470 U.S. 226 (1985). 7-2, 5-4 (various coalitions), POWELL. Concurrences: Brennan, Marshall, Stevens, Burger, White, Rehnquist. Dissents: Brennan, Marshall, Stevens, Burger, White, Rehnquist. 48pp. Noted at: 247b Opp Cotton Mills v. Administrator, 312 U.S. 126 (1941). 9-0, STONE. 30pp. Noted at: 31a Order of United Commercial Travelers v. Wolfe, 331 U.S. 586 (1947). 5-4, BURTON. Dissents: Black, Douglas, Murphy, Rutledge. 56pp. Noted at: 88a Oregon v. Mitchell, 400 U.S. 112 (1970). 8-1, 6-3 (various coalitions), BLACK. Concurrences: Douglas, Brennan, White, Marshall, Stewart, Burger, Blackmun. Dissents: Douglas, Brennan, White, Marshall, Harlan, Stewart, Burger, Blackmun. 185pp. Noted at: 115a, 288a, 534b Oregon Waste Systems, Inc. v. Dept. of Environmental Quality, 511 U.S. 93 (1994). 7-2, THOMAS. Dissents: Rehnquist, Blackmun. 24pp. Noted at: 542a Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971). 8-1, BURGER. Dissent: Harlan. 9pp. Noted at: 374a Ornelas v. U.S., 517 U.S. 690 (1996). 8-1, REHNQUIST. Dissent: Scalia. 16pp. Noted at: 448b Orozco v. Texas, 394 U.S. 324 (1969). 6-2, BLACK. Concurrence: Harlan. Dissents: White, Stewart. Not voting: Fortas. 8pp. Noted at: 455a Orr v. Orr, 440 U.S. 268 (1979). 6-3, BRENNAN. Concurrences: Blackmun, Stevens. Dissents: Powell, Rehnquist, Burger. 33pp. Noted at: 43a, 461a Ortega, U.S. v., 24 U.S. (11 Wheat.) 467 (1826). 9-0, WASHINGTON. 3pp. Noted at: 143a Ortwein v. Schwab, 410 U.S. 656 (1973). 5-4, PER CURIAM. Dissents: Stewart, Douglas, Brennan, Marshall. 11pp. Noted at: 129a, 412a, 544a Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738 (1824). 6-1, MARSHALL. Dissent: Johnson. 166pp. Noted at: 65a, 449b, 480b Osborne v. Ohio, 495 U.S. 103 (1990). 6-3, WHITE. Concurrence: Blackmun. Dissents: Brennan, Marshall, Stevens. 46pp. Noted at: 329b Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169 (1949). 8-1, DOUGLAS. Dissent: Jackson. 7pp. Noted at: 391a Owen v. City of Independence, 445 U.S. 622 (1980). 5-4, BRENNAN. Dissents: Powell, Burger, Stewart, Rehnquist. 62pp. Noted at: 274a Oyama v. California, 332 U.S. 633 (1948). 6-3, VINSON. Concurrences: Black, Douglas, Murphy, Rutledge. Dissents: Reed, Jackson, Burton. 56pp. Noted at: 380a Oyler v. Boles, 368 U.S. 448 (1962). 5-4, CLARK. Concurrence: Harlan. Dissents: Warren, Douglas, Black, Brennan. 16pp. Noted at: 393a

1779. 1780. 1781.

Ozawa v. U.S., 260 U.S. 178 (1922). 9-0, SUTHERLAND. 21pp. Noted at: 236a Pace v. Alabama, 106 U.S. 583 (1883). 9-0, FIELD. 3pp. Noted at: 307b Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986). 5-3, POWELL. Concurrences: Burger, Marshall. Dissents: Rehnquist, White, Stevens. Not voting: Blackmun. 40pp. Noted at: 433b, 469b

TABLE OF C A S E S 1782.

1783.

1784. 1785. 1786. 1787. 1788.

1789. 1790.

1791. 1792. 1793. 1794. 1795. 1796. 1797.

1798.

1799. 1800. 1801. 1802. 1803.

1804.

Pacific Gas & Electric Co. v. State Energy Resources Conservation & Develop. Comm., 461 U.S. 190 (1983). 9-0, WHITE. Concurrences: Blackmun, Stevens. 40pp. Noted at: 363a Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991). 7-1, BLACKMUN. Concurrences: Scalia, Kennedy. Dissent: O'Connor. Not voting: Souter. 64pp. Noted at: 283b, 315a, 403b Pacific Railroad, U.S. v., 120 U.S. 227 (1887). 9-0, FIELD. 14pp. Noted at: 500a Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 151 (1912). 9-0, WHITE. 16pp. Noted at: 416a, 426b Packet Co. v. Keokuk, 95 U.S. 80 (1877). 9-0, STRONG. 10pp. Noted at: 511a Padilla, U.S. v., 508 U.S. 77 (1993). 9-0, PER CURIAM. 7pp. Noted at: 447b Palermo v. U.S., 360 U.S. 343 (1959). 9-0, FRANKFURTER. Concurrences: Brennan, Warren, Black, Douglas. 23pp. Noted at: 145a Palko v. Connecticut, 302 U.S. 319 (1937). 8-1, CARDOZO. Dissent: Butler. 10pp. Noted at: 157b, 210b, 244b, 335b Palmer v. Thompson, 403 U.S. 217 (1971). 5-4, BLACK. Concurrences: Burger, Blackmun. Dissents: Douglas, White, Brennan, Marshall. 57pp. Noted at: 405b Palmer, U.S. v., 16 U.S. (3 Wheat.) 610 (1818). 7-0, MARSHALL. 35pp. Noted at: 357b Palmore v. Sidoti, 466 U.S. 429 (1984). 9-0, BURGER. 6pp. Noted at: 33b, 409a Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309 (1958). 9-0, DOUGLAS. 11pp. Noted at: 31a Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). 8-1, HUGHES. Dissent: Cardozo. 61pp. Noted at: 140b Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). 7-0, DOUGLAS. Not voting: Powell, Rehnquist. 16pp. Noted at: 526a Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973). 6-3, PER CURIAM. Dissents: Burger, Rehnquist, Blackmun. 11pp. Noted at: 331b, 487b Parham v. J.R., 442 U.S. 584 (1979). 6-3, BURGER. Concurrences: Stewart, Brennan, Marshall, Stevens. Dissents: Brennan, Marshall, Stevens. 55pp. Noted at: 90b, 273a, 341b, 384b Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). 6-3, BURGER. Dissents: Douglas, Brennan, Stewart, Marshall. 24pp. Noted at: 329a, 400a, 528a Park, U.S. v., 421 U.S. 658 (1975). 6-3, BURGER. Dissents: Stewart, Marshall, Powell. 26pp. Noted at: 417b Parke v. Raley, 506 U.S. 20 (1992). 9-0, O'CONNOR. Concurrence: Blackmun. 20pp. Noted at: 188b, 388a Parker v. Brown, 317 U.S. 341 (1943). 9-0, STONE. 28pp. Noted at: 363a Parker v. Gladden, 385 U.S. 363 (1966). 8-1, PER CURIAM. Dissent: Harlan. 7pp. Noted at: 246a Parker v. Levy, 417 U.S. 733 (1974). 5-3, REHNQUIST. Concurrences: Blackmun, Burger. Dissents: Douglas, Stewart, Brennan. Not voting: Marshall. 57pp. Noted at: 56a, 305a, 527b, 540a Parratt v. Taylor, 451 U.S. 527 (1981). 8-1, REHNQUIST. Concurrences: Stewart, Blackmun, White, Powell, Marshall. Dissent: Marshall. 30pp. Noted at: 142b

713

714

TABLE OF CASES 1805. 1806. 1807. 1808.

1809. 1810.

1811. 1812.

1813. 1814.

1815.

1816. 1817.

1818. 1819. 1820.

1821.

1822. 1823. 1824. 1825. 1826.

Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830). 6-1, STORY. Dissent: McLean. 26pp. Noted at: 518b Patapsco Guano Co. v. North Carolina, 171 U.S. 345 (1898). 7-2, FULLER. Dissents: Harlan, White. 17pp. Noted at: 251a Patsone v. Pennsylvania, 232 U.S. 138 (1914). 8-1, HOLMES. Dissent: White. 9pp. Noted at: 42b Patsy v. Board of Regents, 457 U.S. 496 (1982). 8-1, MARSHALL. Concurrences: O'Connor, Rehnquist, White. Dissent: Powell. 41pp. Noted at: 178b Patterson v. Colorado, 205 U.S. 454 (1907). 7-2, HOLMES. Dissents: Harlan, Brewer. 22pp. Noted at: 205a Patterson v. McLean Credit Union, 491 U.S. 164 (1989). 5-4, 9-0, KENNEDY. Concurrences: Brennan, Stevens. Dissents: Brennan, Marshall, Blackmun, Stevens, 59pp. Noted at: 94b, 429b Patterson v. New York, 432 U.S. 197 (1977). 6-3, WHITE. Dissents: Powell, Brennan, Marshall. 36pp. Noted at: 251a, 388a Paul v. Davis, 424 U.S. 693 (1976). 5-3, REHNQUIST. Dissents: Brennan, Marshall, White. Not voting: Stevens. 43pp. Noted at: 286b, 384b, 427a Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869). 9-0, FIELD. 17pp. Noted at: 379a, 513a Payne v. Tennessee, 501 U.S. 808 (1991). 6-3, REHNQUIST. Concurrences: O'Connor, White, Kennedy, Scalia, Souter. Dissents: Marshall, Blackmun, Stevens. 60pp. Noted at: 122a, 476a, 530a Payton v. New York, 445 U.S. 573 (1980). 6-3, STEVENS. Concurrence: Blackmun. Dissents: White, Burger, Rehnquist. 48pp. Noted at: 57b, 443a Peck & Co. v. Lowe, 247 U.S. 165 (1918). 9-0, VAN DEVANTER. 10pp. Noted at: 179b, 242b Pell v. Procunier, 417 U.S. 817 (1974). 5-4, STEWART. Concurrence: Powell. Dissents: Douglas, Brennan, Marshall, Powell. 19pp. Noted at: 26a, 207a, 216b Peltier, U.S. v., 422 U.S. 531 (1975). 5-4, REHNQUIST. Dissents: Douglas, Brennan, Marshall, Stewart. 32pp. Noted at: 318a Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). 6-3, BRENNAN. Dissents: Rehnquist, Burger, Stevens. 49pp. Noted at: 500a, 552b Pennekamp v. Florida, 328 U.S. 331 (1946). 8-0, REED. Concurrences: Frankfurter, Murphy, Rutledge. Not voting: Jackson. 42pp. Noted at: 97b Pennell v. City of San Jose, 485 U.S. 1 (1988). 6-2, REHNQUIST. Concurrences: Scalia, O'Connor. Dissents: Scalia, O'Connor. Not voting: Kennedy. 23pp. Noted at: 424a Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1983). 5-4, POWELL. Dissents: Brennan, Stevens, Marshall, Blackmun. 78pp. Noted at: 344b, 481a Pennoyer v. Neff, 95 U.S. 714 (1877). 8-1, FIELD. Dissent: Hunt. 35pp. Noted at: 98a, 268a Pennsylvania v. Labron, 518 U.S. 938 (1996). 7-2, PER CURIAM. Dissents: Stevens, Ginsburg. 15pp. Noted at: 444a Pennsylvania v. Mimms, 434 U.S. 106 (1977). 6-3, PER CURIAM. Dissents: Stevens, Brennan, Marshall. 19pp. Noted at: 444b Pennsylvania v. Muniz, 496 U.S. 582 (1990). 8-0, 5-4 (various coalitions), BRENNAN. Concurrences: Rehnquist, White, Blackmun, Stevens, Marshall. Dissents: Rehnquist, White, Blackmun, Stevens, Marshall. 21pp. Noted at: 454a

TABLE OF C A S E S 1827. 1828.

1829.

1830. 1831.

1831a. 1832. 1833. 1834. 1835.

1836.

1837.

1838.

1839. 1840. 1841. 1842. 1843. 1844. 1845. 1846.

1847.

Pennsylvania v. Nelson, 350 U.S. 497 (1956). 6-3, WARREN. Dissents: Reed, Burton, Minton. 24pp. Noted at: 363b, 450b Pennsylvania v. Ritchie, 480 U.S. 39 (1987). 5-4, POWELL. Concurrence: Blackmun. Dissents: Brennan, Marshall, Stevens, Scalia. 40pp. Noted at: 112a Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). 5-4, BRENNAN. Concurrences: Stevens, White, Rehnquist, O'Connor, Scalia, Kennedy. Dissents: Scalia, Rehnquist, O'Connor, Kennedy. 57pp. Noted at: 481b Pennsylvania v. West Virginia, 262 U.S. 553 (1923). 6-3, VAN DEVANTER. Dissents: Holmes, McReynolds, Brandeis. 72pp. Noted at: 116b Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856). 8-1, NELSON. Concurrences: Wayne, Grier, Curtis. Dissent: McLean. 39pp. Noted at: 73b, 315b, 360a Pennsylvania Board of Probation and Parole v. Scott, 118 S.Ct. 2014 (1998). 5-4, THOMAS. Dissents: Stevens, Souter, Ginsburg, Breyer. 15pp. Noted at: 558b, 563a Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 8-1, HOLMES. Dissent: Brandeis. 30pp. Noted at: 499a Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956). 9-0, BLACK. 8pp. Noted at: 128a Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917). 9-0, HOLMES. 5pp. Noted at: 268b Penry v. Lynaugh, 492 U.S. 302 (1989). 9-0, 5-4 (various coalitions), O'CONNOR. Concurrences: Brennan, Marshall, Stevens, Blackmun, Scalia, Rehnquist, White, Kennedy. Dissents: Brennan, Marshall, Stevens, Blackmun, Scalia, Rehnquist, White, Kennedy. 58pp. Noted at: 137b, 138a, 223a, 304a, 318b Pentagon Papers Case, see New York Times Co. v. U.S. Perez v. Brownell, 356 U.S. 44 (1958). 5-4, FRANKFURTER. Dissents: Warren, Black, Douglas, Whittaker. 42pp. Noted at: 179a Perez v. Campbell, 402 U.S. 637 (1971). 5-4, WHITE. Concurrences: Blackmun, Burger, Harlan, Stewart. Dissents: Blackmun, Burger, Harlan, Stewart. 36pp. Noted at: 66a, 363b Perez v. Ledesma, 401 U.S. 82 (1971). 5-4, BLACK. Concurrences: Stewart, Blackmun, Brennan, White, Marshall. Dissents: Douglas, Brennan, White, Marshall. 55pp. Noted at: 139b Perez v. U.S., 402 U.S. 146 (1971). 8-i, DOUGLAS. Dissent: Stewart. 12pp. Noted at: 256a, 313b Perez, U.S. v., 22 U.S. (9 Wheat.) 579 (1824). 7-0, STORY. 2pp. Noted at: 152b Perkins v. Elg, 307 U.S. 325 (1939). 8-o, HUGHES. Not voting: Douglas. 26pp. Noted at: 179a Permoli v. Municipality No. 1, New Orleans, 44 U.S. (3 How.) 589 (1845). 9-0, CATRON. 22pp. Noted at: 476b, 482b Pernell v. Southall Realty, 416 U.S. 363 (1974). 9-0, MARSHALL. Concurrences: Burger, Douglas. 22pp. Noted at: n, 518b Perpich v. Dept. of Defense, 496 U.S. 334 (1991). 9-0, STEVENS. 13pp. Noted at: 306a Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983). 5-4, WHITE. Dissents: Brennan, Marshall, Powell, Stevens. 35pp. Noted at: 397b, 398a Perry v. Sindermann, 408 U.S. 593 (1972). 5-3, STEWART. Concurrence: Burger. Dissents: Marshall, Brennan, Douglas. Not voting: Powell. 13pp. Noted at: 24a, 384b, 385a, 395a, 433b Perry v. U.S., 294 U.S. 330 (1935).

715

716

T A B L E OF C A S E S

1848.

1849. 1850.

1851. 1852. 1853. 1854.

1855. 1856.

1857. 1857a. 1858. 1859. 1860.

5-4, HUGHES. Concurrence: Stone. Dissents: McReynolds, Van Devanter, Sutherland, Butler. 32pp. Noted at: 71a, 214b Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979). 7-2, STEWART. Concurrences: Stevens, White. Dissents: Marshall, Brennan. 33pp. Noted at: 405b, 460b, 529b Peters v. Hobby, 349 U.S. 331 (1955). 7-2, WARREN. Concurrences: Black, Douglas. Dissents: Reed, Burton. 27pp. Noted at: 292b Peters v. Kiff, 407 U.S. 493 (1972). 6-3, MARSHALL. Concurrences: White, Brennan, Powell. Dissents: Burger, Blackmun, Rehnquist. 21pp. Noted at: 271a Peterson v. City of Greenville, 373 U.S. 244 (1963). 8-1, WARREN. Concurrence: Harlan. Dissent: Harlan. 5pp. Noted at: 91a, 515a Peterson, Ex parte, 253 U.S. 300 (1920). 6-3, BRANDEIS. Dissents: McKenna, Pitney, McReynolds. 20pp. Noted at: 264a Petit v. Minnesota, 177 U.S. 164 (1900). 9-0, FULLER. 5pp. Noted at: 491b Petty v. Tennessee-Missouri Commission, 359 U.S. 275 (1959). 6-3, DOUGLAS. Concurrences: Black, Clark, Stewart. Dissents: Frankfurter, Harlan, Whittaker. 15pp. Noted at: 109b Philadelphia Co. v. Stimson, 223 U.S. 605 (1912). 9-0, HUGHES. 34pp. Noted at: 468a Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). 6-3, O'CONNOR. Concurrences: Brennan, Blackmun. Dissents: Stevens, Burger, White. 24pp. Noted at: 285a Philadelphia v. New Jersey, 437 U.S. 617 (1978). 7-2, STEWART. Dissents: Rehnquist, Burger. 17pp. Noted at: 150a, 211b, 408a, 541b Phillips v. Washington Legal Foundation, 118 S.Ct. 1925 (1998). 5-4, REHNQUIST. Dissents: Souter, Stevens, Ginsburg, Breyer. 15pp. Noted at: 564a Phillips Chemical Co. v. Dumas School District, 361 U.S. 376 (i960). 9-0, WARREN. Concurrence: Frankfurter. 12pp. Noted at: 237a Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). 8-1, REHNQUIST. Concurrence: Stevens. Dissent: Stevens. 49pp. Noted at: 95b Phoenix v. Kolodziejski, 399 U.S. 204 (1970). 6-3, WHITE. Concurrence: Black. Dissents: Stewart, Burger, Harlan. 15pp. Noted at: 390a,

1861. 1862. 1863. 1864. 1865. 1866. 1867.

1868. 1869.

535b Pickering v. Board of Education, 391 U.S. 563 (1968). 8-1, MARSHALL. Dissent: White. 22pp. Noted at: 64a, 395a, 523a Pickett v. Brown, 462 U.S. 1 (1983). 9-0, BRENNAN. Concurrence: O'Connor. 18pp. Noted at: 236a, 484a Pierce v. Creecy, 210 U.S. 387 (1908). 9-0, MOODY. 18pp. Noted at: 179b Pierce v. Society of Sisters, 268 U.S. 510 (1925). 9-0, McREYNOLDS. 27pp. Noted at: 161a, 272b, 286a, 341a, 379a Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). 9-0, STEWART. 10pp. Noted at: 64a, 149b Pink, U.S. v., 315 U.S. 203 (1942). 7-2, DOUGLAS. Dissents: Stone, Roberts. 54pp. Noted at: 143b Pinkus v. U.S., 436 U.S. 293 (1978). 8-1, BURGER. Concurrences: Stevens, Brennan, Stewart, Marshall. Dissent: Powell. 14pp. Noted at: 329a, 339b Pipe Line Cases, 234 U.S. 548 (1914). 8-1, HOLMES. Concurrence: White. Dissent: McKenna. 28pp. Noted at: 525a Pittsburgh C.C. & St. L. Ry. Co. v. Backus, 154 U.S. 421 (1894). 7-2, BREWER. Dissents: Harlan, Brown. 2pp. Noted at: 391a

TABLE OF CASES 1870. 1871. 1872. 1873.

1874.

1875.

1876. 1877.

1878.

1879.

1880. 1881.

1882. 1883. 1884.

1885. 1886. 1887.

1888.

1889.

Pittsburgh, City of v. Alco Parking Corp., 417 U.S. 369 (1974). 9-0, WHITE. Concurrence: Powell, upp- Noted at: 501b Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376 (1973). 5-4, POWELL. Dissents: Burger, Douglas, Stewart, Blackmun. 28pp. Noted at: 291a Pittsman v. Home Owners' Corp., 308 U.S. 21 (1939). 8-0, HUGHES. Not voting: Butler. 13pp. Noted at: 65a Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476 (1983). 6-3, 5-4, POWELL. Concurrences: Blackmun, Brennan, Marshall, Stevens, O'Connor, White, Rehnquist. Dissents: Blackmun, Brennan, Marshall, Stevens, O'Connor, White, Rehnquist. 30pp. Noted at: 20a-b, 341b Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). 6-3, 5-4, BLACKMUN. Concurrences: Stewart, Powell, White, Burger, Rehnquist, Stevens. Dissents: White, Burger, Rehnquist, Stevens. 53pp. Noted at: 20a Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 7-2, 5-4, O'CONNOR, KENNEDY, SOUTER. Concurrences: Stevens, Blackmun, Rehnquist, White, Scalia, Thomas. Dissents: Stevens, Blackmun, Rehnquist, White, Scalia, Thomas. 170pp. Noted at: 19a, 2ib-22a, 64a, 349a, 476a, 523b Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). 7-2, SCALIA. Concurrence: Breyer. Dissents: Stevens, Ginsburg. 57pp. Noted at: 189a Plessy v. Ferguson, 163 U.S. 537 (1896). 8-i, BROWN. Dissent: Harlan. 28pp. Noted at: 75a, 93a, 117b, 169a, 261a, 3528-3538, 409a, 410a, 45ia-b, 456b, 465b, 475b, 509b Plumley v. Massachusetts, 155 U.S. 461 (1894). 6-3, HARLAN. Concurrence: Jackson. Dissents: Fuller, Field, Brewer. 21pp. Noted at: 333b Plyler v. Doe, 457 U.S. 202 (1982). 5-4, BRENNAN. Concurrences: Marshall, Blackmun, Powell. Dissents: Burger, White, Rehnquist, O'Connor. 53pp. Noted at: 161b, 210a, 544b Pocket Veto Case, The, 279 U.S. 655 (1929). 9-0, SANFORD. 37pp. Noted at: 353b Poe v. Ullman, 367 U.S. 497 (1961). 5-4, FRANKFURTER. Concurrence: Brennan. Dissents: Black, Douglas, Harlan, Stewart. 59pp. Noted at: 435a Poelker v. Doe, 432 U.S. 519 (1977). 6-3, PER CURIAM. Dissents: Brennan, Marshall, Blackmun. 6pp. Noted at: 21a Pointer v. Texas, 380 U.S. 400 (1965). 9-0, BLACK. Concurrence: Goldberg. 15pp. Noted at: 113b, 173a, 246a Police Department of Chicago v. Mosley, 408 U.S. 92 (1972). 9-0, MARSHALL. Concurrences: Blackmun, Rehnquist, Burger, upp. Noted at: 124b, 350a, 470b Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). 8-i, McKINLEY. Dissent: Catron. 24pp. Noted at: 33a, 98a, 476b, 482b Pollard v. U.S., 352 U.S. 354 (1957). 5-4, REED. Dissents: Warren, Black, Douglas, Brennan. 16pp. Noted at: 517b Pollock v. Farmer's Loan & Trust Co., 157 U.S. 429 (1895), 158 U.S. 601 (rehearing) (1895). 7-2, FULLER. Dissents: White, Harlan. 14pp. 5-4 (rehearing), FULLER. Dissents: Harlan, Brown, Jackson, White. 114pp. Noted at: 55a, 144a, 237a, 463b, 505a Pope v. Illinois, 481 U.S. 497 (1987). 5-4, WHITE. Concurrences: Scalia, Blackmun. Dissents: Blackmun, Brennan, Stevens, Marshall. 22pp. Noted at: 225b, 328b, 329a Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986). 5-4, REHNQUIST. Dissents: Brennan, Stevens, Marshall, Blackmun. 36pp. Noted at: I03b-I04a, 105a, 291a

717

718

T A B L E OF C A S E S 1890. 1891. 1892. 1893.

1894. 1895. 1896. 1897.

1898. 1899. 1900.

1901. 1902.

1903. 1904. 1905. 1906. 1907.

1908. 1909. 1910.

1911. 1912. 1913.

Posters N' Things, Ltd. v. U.S., 511 U.S. 513 (1994). 9-0, BLACKMUN. Concurrence: Scalia. 18pp. Noted at: 527b Poulos v. New Hampshire, 345 U.S. 395 (1953). 7-2, REED. Concurrence: Frankfurter. Dissents: Black, Douglas. 32pp. Noted at: 348a Pounders v. Watson, 117 S.Ct. 2359 (1997). 7-2, PER CURIAM. Dissents: Stevens, Breyer. 6pp. Noted at: 123b Powell v. Alabama, 287 U.S. 45 (1932). 7-2, SUTHERLAND. Dissents: Butler, McReynolds. 32pp. Noted at: 79b, 127b, 157b, 245b, 44ib-442a, 483b Powell v. McCormack, 395 U.S. 486 (1969). 8-1, WARREN. Dissent: Stewart. 89pp. Noted at: 108a, 114b, 179a, 226b, 309b, 358a, 471b Powell v. Nevada, 511 U.S. 79 (1994). 7-2, GINSBURG. Dissents: Thomas, Rehnquist. 14pp. Noted at: 430b Powell v. Pennsylvania, 127 U.S. 678 (1888). 9-0, HARLAN. 10pp. Noted at: 199b Powell v. Texas, 392 U.S. 514 (1968). 5-4, MARSHALL. Concurrences: Black, Harlan, White. Dissents: Fortas, Brennan, Douglas, Stewart. 56pp. Noted at: 28a, 526b Powers v. Ohio, 499 U.S. 400 (1991). 7-2, KENNEDY. Dissents: Scalia, Rehnquist. 32pp. Noted at: 346b Powers v. U.S., 223 U.S. 303 (1912). 9-0, DAY. 14pp. Noted at: 454b Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440 (1969). 9-0, BRENNAN. Concurrence: Harlan. 13pp. Noted at: 419a Presley v. Etowah County Commission, 502 U.S. 491 (1992). 6-3, KENNEDY. Dissents: Stevens, White, Blackmun. 36pp. Noted at: 536b Press-Enterprise Co. v. Superior Court of California I, 464 U.S. 501 (1984). 9-0, BURGER. Concurrences: Blackmun, Stevens, Marshall. 22pp. Noted at: 196a, 207b, 216b, 407b Press-Enterprise Co. v. Superior Court of California II, 478 U.S. 1 (1986). 7-2, BURGER. Dissents: Stevens, Rehnquist. 29pp. Noted at: 196a, 207b, 216b, 516b Presser v. Illinois, 116 U.S. 252 (1886). 9-0, WOODS. 18pp. Noted at: 57a, 245b, 449b Price, U.S. v., 116 U.S. 43 (1885). 9-0, WAITE. 2pp. Noted at: 55b Price, U.S. v., 383 U.S. 787 (1966). 9-0, FORTAS. Concurrence: Black. 33pp. Noted at: 99b Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842). 9-0, STORY. Concurrences: Taney, Thompson, Wayne, Daniel. 135pp. Noted at: 208a, 459a Primus, In re, 436 U.S. 412 (1978). 8-1, POWELL. Concurrences: Blackmun, Marshall. 34pp. Noted at: 103b Prince v. Massachusetts, 321 U.S. 158 (1944). 5-4, RUTLEDGE. Dissents: Jackson, Roberts, Frankfurter, Murphy. 19pp. Noted at: 526a Printz v. U.S., 117 S.Ct. 2365 (1997). 5-4, SCALIA. Concurrences: O'Connor, Thomas. Dissents: Stevens, Souter, Ginsburg, Breyer. 41pp. Noted at: 316b, 483a, 506b Prize Cases, 67 U.S. (2 Bl.) 635 (1862). 9-0, GRIER. Dissents: Nelson, Taney, Catron, Clifford. 65pp. Noted at: 100b, 367b, 538b Procunier v. Martinez, 416 U.S. 396 (1974). 9-0, POWELL. Concurrences: Marshall, Brennan, Douglas. 33pp. Noted at: 25b, 376b Procunier v. Navarette, 434 U.S. 555 (1978). 7-2, WHITE. Dissents: Burger, Stevens. 20pp. Noted at: 239b

TABLE OF CASES 1914. 1915.

1916. 1917.

1918. 1919. 1920. 1921. 1922. 1923. 1924. 1925. 1926.

1927. 1928.

1929. 1930. 1931. 1932. 1933. 1934. 1935. 1936. 1937. 1938.

Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946). 8-0, RUTLEDGE. Concurrence: Black. Not voting: Jackson. 33pp. Noted at: 150b Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). 9-0, REHNQUIST. Concurrences: Blackmun, Marshall, White, Powell. 28pp. Noted at: 63b, 399a, 462b, 469b, 515a Ptasynski, U.S. v., 462 U.S. 74 (1983). 9-0, POWELL. 13pp. Noted at: 501b Public Clearing House v. Coyne, 194 U.S. 497 (1904). 8-1, BROWN. Concurrences: Brewer, White, Holmes. Dissent: Peckham. 20pp. Noted at: 360b Public Utilities Commission v. Attleboro Co., 273 U.S. 83 (1927). 8-1, SANFORD. Dissent: Brandeis. 10pp. Noted at: 525a Public Utilities Commission v. Pollak, 343 U.S. 451 (1952). 7-2, BURTON. Dissents: Black, Douglas. 19pp. Noted at: 80a, 377b Puerto Rico v. Branstad, 483 U.S. 219 (1987). 9-0, MARSHALL. Concurrences: O'Connor, Powell, Scalia. 12pp. Noted at: 180a Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). 8-1, WHITE. Concurrence: Blackmun. Dissent: Stevens. 14pp. Noted at: ¿fin Pulley v. Harris, 465 U.S. 37 (1984). 7-2, WHITE. Concurrence: Stevens, Dissents: Brennan, Marshall. 37pp. Noted at: 392a Purkett v. Elem, 514 U.S. 765 (1995). 7-2, PER CURIAM. Dissents: Stevens, Breyer. 16pp. Noted at: 346b Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996). 9-0, O'CONNOR. Concurrences: Scalia, Kennedy. 29pp. Noted at: 23b Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928). 6-3, BUTLER. Dissents: Holmes, Brandeis, Stone. 24pp. Noted at: 502a Quill Corporation v. North Dakota, 504 U.S. 298 (1992). 8-1, STEVENS. Concurrences: White, Scalia, Kennedy, Thomas. Dissent: White. 36pp. Noted at: 503a Quirin, Ex parte, 317 U.S. 1 (1942). 8-0, PER CURIAM. Not voting: Murphy. 11pp. Noted at: 56b, 100a, 351b, 435a, 539a R.A.V. v. St. Paul, 505 U.S. 377 (1992). 9-0, SCALIA. Concurrences: White, Blackmun, O'Connor, Stevens. 60pp. Noted at: 125a, 188a, 226b, 227b, 291b R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (1986). 9-0, BLACKMUN. 27pp. Noted at: 242b R.M.J., In re, 455 U.S. 191 (1982). 9-0, POWELL. 17pp. Noted at: 105b, 387a Rabe v. Washington, 405 U.S. 313 (1972). 9-0, PER CURIAM. Concurrences: Burger, Rehnquist. 5pp. Noted at: 26b, 246a Radovich v. National Football League, 352 U.S. 445 (1957). 6-3, CLARK. Dissents: Frankfurter, Harlan, Brennan. 12pp. Noted at: 66b Rahrer, In re, 140 U.S. 545 (1891). 9-0, FULLER. Concurrences: Harlan, Gray, Brewer, Waite. 21pp. Noted at: 148b Railroad Commission v. Pullman Co., 312 U.S. 496 (1941). 8-0, FRANKFURTER. Not voting: Roberts. 7pp. Noted at: 22b Railroad Commission Cases, 116 U.S. 307 (1886). 6-2, WAITE. Dissents: Harlan, Field. Not voting: Blatchford. 42pp. Noted at: 160a, 410b Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935). 5-4, ROBERTS. Dissents: Hughes, Brandeis, Stone, Cardozo. 63pp. Noted at: 102a, 255a Railway Employees' Dept. v. Hanson, 351 U.S. 225 (1956). 9-0, DOUGLAS. Concurrence: Frankfurter. 17pp. Noted at: 198a, 469a Railway Express Agency v. New York, 336 U.S. 106 (1949). 9-0, DOUGLAS. Concurrence: Jackson. 5pp. Noted at: 159a, 170a

719

720

TABLE OF CASES 1939. 1940.

Railway Labor Executives' Association v. Gibbons, 455 U.S. 457 (1982). 9-0, REHNQUIST. Concurrences: Mashall, Brennan. 21pp. Noted at: 65b Raines v. Byrd, 117 S.Ct. 2312 (1997). 7-2, REHNQUIST. Concurrence: Souter. Dissents: Stevens, Breyer. 18pp. Noted at: 287a, 475a

1941.

1942. 1942a. 1943.

1944. 1945.

1946. 1947.

1948. 1949. 1950. 1951. 1952. 1953.

1954. 1955. 1956. 1957. 1958.

1959. 1960.

Rakas v. Illinois, 439 U.S. 128 (1978). 5-4, REHNQUIST. Concurrences: Powell, Burger. Dissents: White, Brennan, Marshall, Stevens. 42pp. Noted at: 443a, 444a, 447b Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982). 6-3, MARSHALL. Dissents: Rehnquist, White, Stevens. 26pp. Noted at: 105a, 248a Ramirez, U.S. v., 118 S.Ct. 992 (1998). 9-0, REHNQUIST. 7 pp. Noted at: 562b Ramsey, U.S. v., 431 U.S. 606 (1977). 6-3, REHNQUIST. Concurrence: Powell. Dissents: Stevens, Brennan, Marshall. 27pp. Noted at: 444b Rands, U.S. v., 389 U.S. 121 (1967). 8-0, WHITE. Not voting: Marshall. 8pp. Noted at: 315b Rankin v. McPherson, 483 U.S. 378 (1987). 5-4, MARSHALL. Concurrence: Powell. Dissents: Scalia, Rehnquist, White, O'Connor. 24pp. Noted at: 395b Rapier, In re, 143 U.S. no (1892). 9-0, FULLER. 26pp. Noted at: 313b Rawlings v. Kentucky, 448 U.S. 98 (1980). 5-4, REHNQUIST. Concurrences: Blackmun, White, Stewart. Dissents: White, Stewart, Marshall, Brennan. 24pp. Noted at: 447b Ray v. Blair, 343 U.S. 214 (1952). 7-2, REED. Dissents: Jackson, Douglas. 22pp. Noted at: 163a Rea v. U.S., 350 U.S. 214 (1956). 5-4, DOUGLAS. Dissents: Harlan, Reed, Burton, Minton. 7pp. Noted at: 463b Reading Railroad v. Pennsylvania, 82 U.S. (15 Wall.) 232 (1873). 7-2, STRONG. Dissents: Swayne, Davis. 52pp. Noted at: 502b Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894). 9-0, BREWER. 51pp. Noted at: 411a Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969). 8-0, WHITE. Not voting: Douglas. 35pp. Noted at: 25a, 74b, 182a Reed v. Farley, 512 U.S. 339 (1994). 5-4, 6-3, GINSBURG. Concurrence: Scalia. Dissents: Blackmun, Stevens, Kennedy, Souter. 35pp. Noted at: 518a Reed v. Reed, 404 U.S. 71 (1971). 9-0, BURGER. 7pp. Noted at: 460b Reese, U.S. v., 92 U.S. 214 (1875). 7-2, REESE. Dissents: Clifford, Hunt. 43pp. Noted at: 93b Reeves, Inc. v. Stake, 447 U.S. 429 (1980). 5-4, BLACKMUN. Dissents: Powell, Brennan, White, Stevens. 25pp. Noted at: 299a Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983). 9-0, REHNQUIST. Concurrences: Blackmun, Brennan, Marshall. 15pp. Noted at: 344a Regents of the University of California v. Bakke, 438 U.S. 265 (1978). 5-4 (two four-justice pluralities dissenting from each other), POWELL (swing vote). One plurality: Brennan, White, Marshall, Blackmun. Other plurality: Stevens, Burger, Stewart, Rehnquist. 157pp. Noted at: 24a, 36b~37a, 112b, 410a Regents of the University of California v. Doe, 117 S.Ct. 900 (1997). 9-0, STEVENS. 6pp. Noted at: 477a, 482a Reich v. Collins, 513 U.S. 106 (1994). 9-0, O'CONNOR. 5pp. Noted at: 386b

TABLE OF CASES

1961.

1962.

1963. 1964. 1965.

1966.

1967.

1968.

1969.

1970. 1971. 1972. 1973. 1974. 1975. 1976.

1977. 1978. 1979. 1980. 1981. 1982. 1983.

Reid v. Covert, 354 U.S. 1 (1957). 6-2, BLACK. Concurrences: Frankfurter, Harlan. Dissents: Clark, Burton. Not voting: Whittaker. 90pp. Noted at: 191b, 305b, 514b Reidel, U.S. v., 402 U.S. 351 (1971). 7-2, WHITE. Concurrences: Harlan, Marshall. Dissents: Black, Douglas. 9pp. Noted at: 328b, 378a Reitman v. Mulkey, 387 U.S. 369 (1967). 5-4, WHITE. Dissents: Harlan, Black, Clark, Stewart. 28pp. Noted at: 416b, 477b Rendell-Baker v. Kohn, 457 U.S. 830 (1982). 7-2, BURGER. Concurrence: White. Dissents: Marshall, Brennan. 22pp. Noted at: 478b Renne v. Geary, 501 U.S. 312 (1991). 6-3, KENNEDY. Concurrence: Stevens. Dissents: White, Marshall, Blackmun. 38pp. Noted at: 357a, 435b Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997). 9-0, 7-2, STEVENS. Concurrence: O'Connor. Dissents: O'Connor, Rehnquist. 29pp. Noted at: 252a-253b, 332a, 338b Reno v. Catholic Social Services, 509 U.S. 43 (1993). 6-3, SOUTER. Concurrence: O'Connor. Dissents: Stevens, White, Blackmun. 43pp. Noted at: 435a, 436a Reno v. Flores, 507 U.S. 292 (1993). 7-2, SCALIA. Concurrences: O'Connor, Souter. Dissents: Stevens, Blackmun. 57pp. Noted at: 33a-b, 42a, 434a Renton, City of v. Playtime Theatres, Inc., 475 U.S. 41 (1986). 7-2, REHNQUIST. Concurrence: Blackmun. Dissents: Brennan, Marshall. 25pp. Noted at: 34a—b, 323a Republic Steel Corp., U.S. v., 362 U.S. 482 (i960). 5-4, DOUGLAS. Dissents: Harlan, Frankfurter, Whittaker, Stewart. 29pp. Noted at: 315b Reynolds v. Sims, 377 U.S. 533 (1964). 8-1, WARREN. Concurrence: Clark. Dissent: Harlan. 99pp. Noted at: 53b, 333b, 359a, 534b Reynolds v. U.S., 98 U.S. 145 (1879). 9-0, WAITE. Concurrence: Field. 24pp. Noted at: 134b, 200b, 201b, 359b Reynolds, U.S. v., 345 U.S. 1 (1953). 6-3, VINSON. Dissents: Black, Frankfurter, Jackson. 12pp. Noted at: 178a Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995). 9-0, BREYER. Concurrences: Scalia, Kennedy. 16pp. Noted at: 430b Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838). 8-1, BALDWIN. Concurrence: Barbour. Dissent: Taney. 98pp. Noted at: 316b, 480a Rhode Island v. Palmer, 253 U.S. 350 (1920). 7-2, VAN DEVANTER. Concurrences: McReynolds, White. Dissents: McKenna, Clarke. 57pp. Noted at: 533a Rhodes v. Chapman, 452 U.S. 337 (1981). 8-1, POWELL. Concurrences: Brennan, Blackmun, Stevens. Dissent: Marshall. 41pp. Noted at: 375a Rice v. Rehner, 463 U.S. 713 (1983). 6-3, O'CONNOR. Dissents: Blackmun, Brennan, Marshall. 32pp. Noted at: 248a Rice v. Rice, 336 U.S. 674 (1949). 5-4, PER CURIAM. Dissents: Jackson, Black, Douglas, Rutledge. 7pp. Noted at: 148a Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947). 7-2, DOUGLAS. Dissents: Frankfurter, Rutledge. 30pp. Noted at: 363a Richards v. Jefferson County, 517 U.S. 793 (1996). 9-0, STEVENS. 13pp. Noted at: 428a Richards v. Wisconsin, 117 S.Ct. 1416 (1997). 9-0, STEVENS. 7pp. Noted at: 321b, 562a Richardson v. Belcher, 404 U.S. 78 (1971). 6-3, STEWART. Dissents: Douglas, Marshall, Brennan. 19pp. Noted at: 545a

721

722

T A B L E OF C A S E S 1984. 1985. 1986. 1987.

1988.

1989.

1990. 1991. 1992.

1993. 1994. 1995. 1996. 1997. 1998. 1999. 2000. 2001. 2002. 2003. 2004. 2005. 2006. 2007. 2008.

Richardson v. McKnight, 117 S.Ct. 2100 (1997). 5-4, BREYER. Dissents: Scalia, Rehnquist, Kennedy, Thomas. 13pp. Noted at: 239b Richardson v. Perales, 402 U.S. 389 (1971). 6-3, BLACKMUN. Dissents: Douglas, Black, Brennan. 26pp. Noted at: 230a Richardson v. Ramirez, 418 U.S. 24 (1974). 6-3, REHNQUIST. Dissents: Douglas, Marshall, Brennan. 62pp. Noted at: 533b, 536a Richardson, U.S. v., 418 U.S. 166 (1974). 5-4, BURGER. Concurrence: Powell. Dissents: Douglas, Stewart, Marshall, Brennan. 42pp. Noted at: 26a Richmond v. J.A. Croson Company, 488 U.S. 469 (1989). 6-3, O'CONNOR. Concurrences: Stevens, Kennedy, Scalia. Dissents: Marshall, Brennan, Blackmun. 92pp. Noted at: 38a, 459b, 483b Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). 8-1, BURGER. Concurrences: White, Stevens, Brennan, Marshall, Stewart, Blackmun. Dissent: Rehnquist. 52pp. Noted at: 132a, 196a, 197a, 207b, 216b, 319b, 432b, 516b Rideau v. Louisiana, 373 U.S. 723 (1963). 7-2, STEWART. Dissents: Clark, Harlan. 11pp. Noted at: 195b, 364b, 528b Riggins v. Nevada, 504 U.S. 127 (1992). 7-2, O'CONNOR. Concurrence: Kennedy. Dissents: Thomas, Scalia. 29pp. Noted at: 301b Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988). 6-3, BRENNAN. Concurrences: Scalia, Stevens. Dissents: Stevens, Rehnquist, O'Connor. 34pp. Noted at: 466b Rinaldi v. Yeager, 384 U.S. 305 (1966). 8-1, STEWART. Dissent: Harlan. 7pp. Noted at: 48b, 512a Rio Grande Dam & Irrigation Co., U.S. v., 174 U.S. 690 (1899). 7-0, BREWER. Not voting: Gray, McKenna. 21pp. Noted at: 315b Ristaino v. Ross, 424 U.S. 589 (1976). 7-2, POWELL. Concurrence: White. Dissents: Marshall, Brennan. 11pp. Noted at: 532b Rivera v. Minnich, 483 U.S. 574 (1987). 8-1, STEVENS. Concurrence: O'Connor. Dissent: Brennan. 13pp. Noted at: 343a, 389a Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994). 8-1, STEVENS. Concurrence: Scalia. Dissent: Blackmun. 20pp. Noted at: 429b Riverside, County of v. McLaughlin, 500 U.S. 44 (1991). 5-4, O'CONNOR. Dissents: Marshall, Blackmun, Stevens, Scalia. 28pp. Noted at: 57b Rizzo v. Goode, 423 U.S. 362 (1976). 6-3, REHNQUIST. Dissents: Blackmun, Brennan, Marshall. 25pp. Noted at: 354a Robbins v. Shelby Taxing District, 120 U.S. 489 (1887). 6-3, BRADLEY. Dissents: Waite, Field, Gray. 14pp. Noted at: 502b Robel, U.S. v., 389 U.S. 258 (1967). 7-2, WARREN. Dissents: White, Harlan. 32pp. Noted at: 109a, 219a, 302a, 338a Robert Mitchell Furniture Co. v. Selden Breck Construction Co., 257 U.S. 213 (1921). 9-0, HOLMES. 4pp. Noted at: 268b Roberts v. LaVallee, 389 U.S. 40 (1967). 8-1, PER CURIAM. Dissent: Harlan. 5pp. Noted at: 544a Roberts v. Louisiana, 431 U.S. 633 (1977). 5-4, PER CURIAM. Dissents: Burger, Blackmun, Rehnquist, White. 17pp. Noted at: 137b Roberts v. Reilly, 116 U.S. 80 (1885). 9-0, MATTHEWS. 18pp. Noted at: 179b Roberts v. United States Jaycees, 468 U.S. 609 (1984). 9-0, BRENNAN. Concurrences: O'Connor, Rehnquist. 32pp. Noted at: 197b, 200a, 200b Robertson v. Baldwin, 165 U.S. 275 (1897). 7-i, BROWN. Dissent: Harlan. Not voting: Gray. 29pp. Noted at: 57a Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992). 9-0, THOMAS. 13pp. Noted at: 458a

TABLE OF C A S E S 2009.

Robinson v. California 370 U.S. 660 (1962). 7-2, STEWART. Concurrences: Douglas, Harlan. Dissents: White, Clark. 30pp. Noted at: 28a, 162a, 246a, 285b, 402b 2010. Robinson v. Neil, 409 U.S. 505 (1973). 9-0, REHNQUIST. Concurrences: Brennan, Douglas, Marshall. 7pp. Noted at: 317b 2011. Robinson, Ex parte, 86 U.S. (19 Wall.) 505 (1874). 8-1, FIELD. Dissent: Miller. 9pp. Noted at: 124a, 264a, 264b 2012. Rochin v. California, 342 U.S. 165 (1952). 8-0, FRANKFURTER. Concurrences: Douglas, Black. Not voting: Minton. 15pp. Noted at: 157b, 245a, 315a, 462a, 567a 2013. Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982). 9-0, BURGER. 14pp. Noted at: 425b, 535b 2014. Roe v. Wade, 410 U.S. 113 (1973). 7-2, BLACKMUN. Concurrences: Burger, Douglas, Stewart. Dissents: White, Rehnquist. 66pp. Noted at: 15, 18, 19-22, 81a, nob, 125a, 254a, 262b, 309b, 315a, 349a, 378a, 407b, 476a, 489a 2015. Rogers v. Bellei, 401 U.S. 815 (1971). 5-4, BLACKMUN. Dissents: Black, Douglas, Marshall, Brennan. 31pp. Noted at: 450a 2016. Rogers v. Lodge, 458 U.S. 613 (1982). 6-3, WHITE. Dissents: Powell, Rehnquist, Stevens. 41pp. Noted at: 535a 2017. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957). 6-3, BRENNAN. Concurrence: Burton. Dissents: Reed, Harlan, Frankfurter. 12pp. Noted at: 436a 2018. Rogers v. Richmond, 365 U.S. 534 (1961). 7-2, FRANKFURTER. Dissents: Stewart, Clark. 17pp. Noted at: 455a 2019. Rogers v. U.S., 340 U.S. 367 (1951). 5-3, VINSON. Dissents: Black, Frankfurter, Douglas. Not voting: Clark. 16pp. Noted at: 454a 2020. Roman v. Sincock, 377 U.S. 695 (1964). 8-1, WARREN. Concurrence: Clark. Dissent: Harlan. 18pp. Noted at: 53b 2021. Romano v. Oklahoma, 512 U.S. 1 (1994). 5-4, REHNQUIST. Concurrence: O'Connor. Dissents: Blackmun, Ginsburg, Stevens, Souter. 25pp. Noted at: 138a 2022. Romano, U.S. v., 382 U.S. 136 (1965). 9-0, WHITE. Concurrences: Black, Douglas, Fortas. 9pp. Noted at: 371b 2023. Rome v. U.S., 446 U.S. 156 (1980). 6-3, MARSHALL. Concurrences: Blackmun, Stevens. Dissents: Powell, Rehnquist, Stewart. 66pp. Noted at: 94b, 406a, 538a 2024. Romer v. Evans, 517 U.S. 620 (1996). 6-3, KENNEDY. Dissents: Scalia, Rehnquist, Thomas. 34pp. Noted at: 231b 2025. Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). 5-4, FRANKFURTER. Concurrences: Brennan, Warren, Black, Douglas. Dissents: Brennan, Warren, Douglas, Black. 36pp. Noted at: 518b 2026. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). 9-0, VAN DEVANTER. 5pp. Noted at: 23b 2027. Rosales-Lopez v. U.S., 451 U.S. 182 (1981). 6-3, WHITE. Concurrences: Rehnquist, Burger. Dissents: Stevens, Brennan, Marshall. 21pp. Noted at: 532b 2028. Rosario v. Rockefeller, 410 U.S. 752 (1973). 5-4, STEWART Dissents: Powell, Douglas, Brennan, Marshall. 20pp. Noted at: 309b, 536a 2028a. Rose v. Mitchell, 443 U.S. 545 (1979). 7-2, 6-3, 5-4, BLACKMUN. Concurrences: Rehnquist, Stewart. Dissents: Stewart, Powell, Rehnquist, White, Stevens. 49pp. Noted at: 222b

723

724

TABLE OF 2029.

2030.

2031. 2032. 2033. 2034. 2035.

2036. 2037.

2038.

2039. 2040. 2041. 2042. 2043.

2044.

2045.

2046. 2047. 2048. 2049.

2050.

CASES

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). 5-4, KENNEDY. Concurrences: O'Connor, Thomas. Dissents: Souter, Stevens, Ginsburg, Breyer. 81pp. Noted at: 398a, 420a, 469b Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). 5-3, BRENNAN. Concurrences: Black, White. Dissents: Harlan, Marshall, Stewart. Not voting: Douglas. 59pp. Noted at: 284b, 397a Rosenfeld v. New Jersey, 408 U.S. 901 (1972). 6-3, PER CURIAM. Dissents: Powell, Burger, Blackmun. 13pp. Noted at: 73a, 188a, 331b Ross v. Moffit, 417 U.S. 600 (1974). 6-3, REHNQUIST Dissents: Douglas, Brennan, Marshall. 22pp. Noted at: 48b, 128a, 129b, 544a Ross v. Oklahoma, 487 U.S. 81 (1987). 5-4, REHNQUIST. Dissents: Marshall, Brennan, Blackmun, Stevens. 18pp. Noted at: 271a Ross, In re, 140 U.S. 453 (1891). 9-0, FIELD. 28pp. Noted at: 191b Ross, U.S. v., 456 U.S. 798 (1982). 6-3, STEVENS. Concurrences: Blackmun, Powell. Dissents: White, Marshall, Brennan. 46pp. Noted at: 57b, 443a, 444a Rostker v. Goldberg, 453 U.S. 57 (1981). 6-3, REHNQUIST. Dissents: White, Brennan, Marshall. 57pp. Noted at: 56b, n6b, 460b, 540a Roth v. U.S., 354 U.S. 476 (1957). 6-3, BRENNAN. Concurrences: Warren, Harlan. Dissents: Harlan, Douglas, Black. 39pp. Noted at: 327b Roudebush v. Hartke, 405 U.S. 15 (1972). 5-2, STEWART. Dissents: Douglas, Brennan. Not voting: Powell, Rehnquist. 19pp. Noted at: 48a, 108a Rowan v. United States Post Office Department, 397 U.S. 728 (1970). 9-0, BURGER. 14pp. Noted at: 361a, 377b Royal Arcanum v. Green, 237 U.S. 531 (1915). 9-0, WHITE. 16pp. Noted at: 88a Rubber-Tip Pencil Co. v. Howard, 87 U.S. (20 Wall.) 498 (1874). 9-0, WAITE. 9pp. Noted at: 546b Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). 9-0, THOMAS. Concurrence: Stevens. 23pp. Noted at: 106b Ruffalo, In re, 390 U.S. 544 (1968). 8-0, DOUGLAS. Concurrences: Black, Harlan, White, Marshall. Not voting: Stewart. 13pp. Noted at: 385a Rummell v. Estelle, 445 U.S. 263 (1980). 5-4, REHNQUIST. Concurrence: Stewart. Dissents: Powell, Brennan, Marshall, Stevens. 45pp. Noted at: 351b, 392b Runyon v. McCrary, 427 U.S. 160 (1976). 7-2, STEWART. Concurrences: Powell, Stevens. Dissents: White, Rehnquist. 55pp. Noted at: 94b, 520a Rush v. Savchuk, 444 U.S. 320 (1980). 7-2, MARSHALL. Dissents: Brennan, Stevens. 15pp. Noted at: 269a Russell v. U.S., 369 U.S. 749 (1962). 7-2, STEWART. Dissents: Harlan, Clark. 46pp. Noted at: 26b Russell v. U.S., 471 U.S. 858 (1985). 9-0, STEVENS. 5pp. Noted at: 9 Rust v. Sullivan, 500 U.S. 173 (1991). 5-4, REHNQUIST. Dissents: Blackmun, Marshall, Stevens, O'Connor. 53pp. Noted at: 217a, 473a, 522b Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). 5-4, BRENNAN. Concurrence: Stevens. Dissents: Scalia, Rehnquist, Kennedy, O'Connor. 30pp. Noted at: 75b, 343b

TABLE OF C A S E S 2051.

Rutkin v. U.S., 343 U.S. 130 (1952). 5-4, BURTON. Dissents: Black, Reed, Frankfurter, Douglas. 17pp. Noted at: 243b 2052. Rutledge v. U.S., 517 U.S. 292 (1996). 9-0, STEVENS. 16pp. Noted at: 151b 2053. Ryder v. U.S., 511 U.S. 177 (1995). 9-0, REHNQUIST. 11pp. Noted at: 51a, 100a, 249b 2054. Sable Communications, Inc. v. Federal Communications Commission, 492 U.S. 115 (1989). 6-3, WHITE. Concurrences: Scalia, Brennan, Marshall, Stevens. Dissents: Brennan, Marshall, Stevens. 21pp. Noted at: 253b, 332a 2054a. Sacramento, County of v. Lewis, 118 S.Ct. 1708 (1998). 9-0, SOUTER. Concurrences: Kennedy, Breyer, Stevens, Scalia. 19pp. Noted at: 566a, 567a, 568a 2055. Saffle v. Parks, 494 U.S. 484 (1990). 5-4, KENNEDY. Dissents: Brennan, Marshall, Blackmun, Stevens. 17pp. Noted at: 223a, 318a 2056. Sage Stores Co. v. Kansas, 323 U.S. 32 (1944). 9-0, REED. Concurrences: Black, Douglas. 5pp. Noted at: 306a 2057. Saia v. New York, 334 U.S. 558 (1948). 5-4, DOUGLAS. Dissents: Frankfurter, Reed, Burton, Jackson. 15pp. Noted at: 321b 2058. Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987). 9-0, WHITE. Concurrence: Brennan. npp. Noted at: 95a, 314a, 410b 2059. Salerno, U.S. v., 481 U.S. 739 (1988). 6-3, REHNQUIST. Dissents: Marshall, Brennan, Stevens. 31pp. Noted at: 63a, 371a, 372b, 401a 2060. Salinger v. Loisel, 265 U.S. 224 (1924). 9-0, VAN DEVANTER. 15pp. Noted at: 516a 2061. Salve Regina College v. Russell, 499 U.S. 225 (1991). 6-3, BLACKMUN. Dissents: Rehnquist, White, Stevens. 19pp. Noted at: 479b 2062. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973). 6-3, REHNQUIST. Dissents: Douglas, Brennan, Marshall. 24pp. Noted at: 54a, 390a, 535b 2063. Samuels v. Mackell, 401 U.S. 66 (1971). 9-0, BLACK. Concurrences: Douglas, Brennan, White, Marshall, Stewart, Harlan. 10pp. Noted at: 23a 2064. Samuels v. McCurdy, 267 U.S. 188 (1925). 8-i, TAFT. Dissent: Butler. 16pp. Noted at: 174b 2065. San Antonio School District v. Rodriguez, 411 U.S. 1 (1973). 5-4, POWELL. Concurrence: Stewart. Dissents: Brennan, White, Douglas, Marshall. 132pp. Noted at: 156a, 161b, 170a, 209b, 390b, 466a, 544b 2066. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). 9-0, FRANKFURTER. Concurrences: Harlan, Clark, Whittaker, Stewart. 19pp. Noted at: 363b 2067. San Diego Land & Town Co. v. Jasper, 189 U.S. 439 (1903). 9-0, HOLMES. 9pp. Noted at: 411a 2068. San Francisco Arts & Athletics v. U.S. Olympic Committee, 483 U.S. 522 (1987). 5-4, POWELL. Concurrences: O'Connor, Blackmun. Dissents: O'Connor, Blackmun, Brennan, Marshall. 52pp. Noted at: 333b, 497b, 512a 2069. Sanabria v. U.S., 437 U.S. 54 (1978). 7-2, MARSHALL. Concurrence: Stevens. Dissents: Blackmun, Rehnquist. 27pp. Noted at: 152b 2070. Sanchez, U.S. v., 340 U.S. 42 (1950). 9-0, CLARK. 5pp. Noted at: 330a 2071. Sanders v. U.S., 373 U.S. 1 (1963). 7-2, BRENNAN. Dissents: Harlan, Clark. 32pp. Noted at: 222a 2072. Sandin v. Conner, 515 U.S. 472 (1995). 5-4, REHNQUIST. Dissents: Ginsburg, Stevens, Breyer, Souter. 34pp. Noted at: 376a, 384b

725

726

T A B L E OF C A S E S 2073.

Sandstrom v. Montana, 442 U.S. 510 (1979). 9-0, BRENNAN. Concurrences: Rehnquist, Burger. 18pp. Noted at: 371b, 388a 2074. Santa Clara County v. Southern Pacific Railway, 118 U.S. 394 (1886). 9-0, HARLAN. 23pp. Noted at: 127a, 349a 2075. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 8-1, MARSHALL. Concurrence: Rehnquist. Dissent: White. 35pp. Noted at: 247b 2076. Santobello v. New York, 404 U.S. 257 (1971). 9-0, 6-3. Concurrences: Douglas, Marshall, Brennan, Stewart. Dissents: Marshall, Brennan, Stewart. 12pp. Noted at: 219b, 351b 2077. Santosky v. Kramer, 455 U.S. 745 (1982). 5-4, BLACKMUN. Dissents: Rehnquist, Burger, White, O'Connor. 47pp. Noted at: 265a, 273a, 341a, 341b, 371b, 384b, 385b, 389a 2078. Savings Society v. Multnomah County, 169 U.S. 421 (1898). 6-2, GRAY. Dissents: Harlan, White. Not voting: McKenna. 11pp. Noted at: 391b 2079. Sawyer v. Smith, 497 U.S. 227 (1990). 5-4, KENNEDY. Dissents: Marshall, Brennan, Blackmun, Stevens. 20pp. Noted at: 223a, 318a 2080. Sawyer v. Whitley, 505 U.S. 333 (1992). 9-0, REHNQUIST. Concurrences: Blackmun, Stevens, O'Connor. 44pp. Noted at: 223b, 308b, 389a 2081. Saxbe v. Washington Post, 417 U.S. 843 (1974). 5-4, STEWART. Dissents: Powell, Brennan, Marshall, Douglas. 33pp. Noted at: 26a, 207a, 216b, 376b 2082. Saylor, U.S. v., 322 U.S. 385 (1944). 6-3, ROBERTS. Dissents: Douglas, Black, Reed. 8pp. Noted at: 162a 2083. Scales v. U.S., 367 U.S. 203 (1961). 5-4, HARLAN. Dissents: Black, Douglas, Brennan, Warren. 86pp. Noted at: 109a, 302a, 490b 2084. Scarborough v. U.S., 431 U.S. 563 (1977). 8-1, MARSHALL. Dissent: Stewart. 18pp. Noted at: 313b 2085. Schad v. Mt. Ephraim, 452 U.S. 61 (1981). 7-2, WHITE. Concurrences: Blackmun, Powell, Stewart, Stevens. Dissents: Burger, Rehnquist. 27pp. Noted at: 338a 2086. Schall v. Martin, 467 U.S. 253 (1984). 6-3, REHNQUIST. Dissents: Marshall, Brennan, Stevens. 57pp. Noted at: 63a, 273b 2087. Schaumburg v. Citizens for Better Environment, 444 U.S. 620 (1980). 8-1, WHITE. Dissent: Rehnquist. 25pp. Noted at: 338b, 466b 2087a. Scheffer, U.S. v., 118 S.Ct. 1261 (1998). 8-1, 5-4, THOMAS. Concurrences: Kennedy, O'Connor, Ginsburg, Breyer. Dissent: Stevens. 19pp. Noted at: 558a 2088. Schenck v. Pro-Choice Network of Western New York, 117 S.Ct. 855 (1997). 9-0, 8-1, 6-3, REHNQUIST. Concurrences: Scalia, Breyer. Dissents: Scalia, Kennedy, Thomas, Breyer. 28pp. Noted at: 351a 2089. Schenck v. U.S., 249 U.S. 47 (1919). 9-0, HOLMES. 6pp. Noted at: 96a, 189b, 434b, 490a 2090. Scheuer v. Rhodes, 416 U.S. 232 (1974). 8-0, BURGER. Not voting: Douglas. 19pp. Noted at: 239b 2091. Schick v. Reed, 419 U.S. 256 (1974). 6-3, BURGER. Dissents: Marshall, Douglas, Brennan. 25pp. Noted at: 340b 2092. Schiro v. Farley, 510 U.S. 222 (1994). 7-2, O'CONNOR. Dissents: Stevens, Blackmun. 27pp. Noted at: 41a, 153a, 319b 2093. Schlesinger v. Ballard, 419 U.S. 498 (1975). 5-4, STEWART. Dissents: Brennan, Douglas, Marshall, White. 24pp. Noted at: 461a 2094. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). 6-3, BURGER. Concurrence: Stewart. Dissents: Douglas, Marshall, Brennan. 32pp. Noted at: 243b, 473b

TABLE OF C A S E S 2095.

2096.

2097. 2098. 2099. 2100. 2101. 2102.

2103.

2104.

2105. 2106. 2107. 2108. 2109.

2110.

2111.

2112. 2113. 2114. 2115. 2116.

Schlesinger v. Wisconsin, 270 U.S. 230 (1926). 6-3, McREYNOLDS. Concurrence: Sanford. Dissents: Holmes, Brandeis, Stone. 13pp. Noted at: 370a Schlup v. Delo, 513 U.S. 298 (1995). 5-4, STEVENS. Concurrence: O'Connor. Dissents: Rehnquist, Scalia, Thomas, Kennedy. 54pp. Noted at: 224a Schmerber v. California, 384 U.S. 757 (1966). 5-4, BRENNAN. Dissents: Warren, Black, Douglas, Fortas. 23pp. Noted at: 70b, 445a, 454a Schneider v. Rusk, 377 U.S. 163 (1964). 6-3, DOUGLAS. Dissents: Clark, Harlan, White. 16pp. Noted at: 450a Schneider v. State, 308 U.S. 147 (1939). 8-1, ROBERTS. Dissents: McReynolds. 19pp. Noted at: 510b Schnell v. Davis, 336 U.S. 933 (1949). 9-0, PER CURIAM. 2pp. Noted at: 288a Schollenberger v. Pennsylvania, 171 U.S. 1 (1898). 7-2, PECKHAM. Dissents: Gray, Harlan. 29pp. Noted at: 333b School District of Grand Rapids v. Ball, 473 U.S. 373 (1985). 7-2, 5-4, BRENNAN. Concurrences: Burger, O'Connor. Dissents: White, Rehnquist, Burger, O'Connor. 29pp. Noted at: 439a Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957). 8-0, BLACK. Concurrences: Frankfurter, Clark, Harlan. Not voting: Whittaker. 20pp. Noted at: 329b, 330a Schweiker v. Chilicki, 487 U.S. 412 (1988). 6-3, O'CONNOR. Concurrence: Stevens. Dissents: Brennan, Marshall, Blackmun. 38pp. Noted at: 123a Schweiker v. Gray Panthers, 453 U.S. 34 (1981). 6-3, POWELL. Dissents: Stevens, Brennan, Marshall. 23pp. Noted at: 31b Schweiker v. McClure, 456 U.S. 188 (1982). 9-0, POWELL. 13pp. Noted at: 240a Schweiker v. Wilson, 450 U.S. 221 (1981). 5-4, BLACKMUN. Dissents: Powell, Brennan, Marshall, Stevens. 26pp. Noted at: 412a Schwimmer, U.S. v., 279 U.S. 644 (1928). 6-3, BUTLER. Dissents: Holmes, Sanford, Brandeis. 11pp. Noted at: 489b Scott v. Illinois, 440 U.S. 367 (1979). 5-4, REHNQUIST. Concurrence: Powell. Dissents: Brennan, Marshall, Stevens, Blackmun. 23pp. Noted at: 128a, 308a Scottsboro Boys Case, see Powell v. Alabama SCRAP, U.S. v., 412 U.S. 669 (1973). 8-0, 5-3 (various coalitions), STEWART. Concurrences: Douglas, Marshall, Burger, White, Rehnquist, Blackmun, Brennan. Dissents: Douglas, White, Burger, Rehnquist, Marshall. Not voting: Powell. 66pp. Noted at: 475a Screws v. U.S., 325 U.S. 91 (1945). 5-4, DOUGLAS. Concurrence: Rutledge. Dissents: Murphy, Roberts, Frankfurter, Jackson. 70pp. Noted at: 94a, 99b, 182a Scripto v. Carson, 362 U.S. 207 (i960). 8-1, CLARK. Dissent: Whittaker. 7pp. Noted at: 524b Seaboard Air Line Ry. v. Blackwell, 244 U.S. 310 (1917). 6-3, McKENNA. Dissents: White, Pitney, Brandeis. 6pp. Noted at: 149b Seagram & Sons v. Hostetter, 384 U.S. 35 (1966). 9-0, STEWART. 24pp. Noted at: 256b Searight v. Stokes, 44 U.S. (3 How.) 151 (1845). 8-i, TANEY. Dissent: McLean. 36pp. Noted at: 360b Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964). 9-0, BLACK. Concurrence: Harlan. 9pp. Noted at: 143a, 363b

727

728

TABLE OF 2117.

2118.

2119. 2120. 2121. 2122.

2123. 2124. 2125.

2126.

2127. 2128. 2129. 2130. 2131.

2132. 2133.

CASES

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). 9-0, POWELL. Concurrences: Brennan, Marshall. 19pp. Noted at: 211a Second Employers' Liability Cases, see Mondou v. New York, New Haven, & Hartford R.R. Co. Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984). 5-4, B L A C K M U N . Concurrence: Stevens. Dissents: Rehnquist, Burger, Powell, O'Connor. 39pp. Noted at: 466b Securities and Exchange Commission v. Sloan, 436 U.S. 103 (1978). 9-0, REHNQUIST. Concurrences: Brennan, Marshall, Blackmun. 25pp. Noted at: 309b See v. City of Seattle, 387 U.S. 541 (1967). 6-3, WHITE. Dissents: Clark, Harlan, Stewart. 6pp. Noted at: 443b Seeger, U.S. v., 380 U.S. 163 (1965). 9-0, CLARK. Concurrence: Douglas. 30pp. Noted at: n6a, 418b Segura v. U.S., 468 U.S. 796 (1984). 5-4, BURGER. Concurrence: O'Connor. Dissents: Stevens, Brennan, Marshall, Blackmun. 44pp. Noted at: 176a Selective Draft Law Cases, 245 U.S. 366 (1918). 9-0, WHITE. 25pp. Noted at: 116a, 305b Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 5-4, REHNQUIST. Dissents: Stevens, Souter, Ginsburg, Breyer. 142pp. Noted at: 481b Senn v. Tile Layers Protective Union, 301 U.S. 468 (1937). 5-4, BRANDEIS. Dissents: Butler, Van Devanter, McReynolds, Sutherland. 24pp. Noted at: 275a, 276a Serbian Eastern Orthodox Diocese for the U.S. & Canada v. Milivojevich, 426 U.S. 696 (1976). 7-2, BRENNAN. Concurrences: Burger, White. Dissents: Rehnquist, Stevens. 39pp. Noted at: 419a Service v. Dulles, 354 U.S. 363 (1957). 8-0, HARLAN. Not voting: Clark. 26pp. Noted at: 292b Sgro v. U.S., 287 U.S. 206 (1932). 7-2, H U G H E S . Concurrence: McReynolds. Dissents: Stone, Cardozo. upp. Noted at: 381a Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). 9-0, WHITE. 3pp. Noted at: 95a, 314a, 410b Shadwick v. City ofTampa, 407 U.S. 345 (1972). 9-0, POWELL. 10pp. Noted at: 161b, 446b Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988). 6-3, 5-4, BRENNAN. Concurrences: White, Stevens. Dissents: White, Stevens, O'Connor, Rehnquist, Scalia. 25pp. Noted at: 105b, 466b Shapiro v. Thompson, 394 U.S. 618 (1969). 6-3, BRENNAN. Dissents: Warren, Black, Harlan. 60pp. Noted at: 158b, 315a, 544b, 545a, 545b Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953). 5-4, CLARK. Dissents: Black, Jackson, Frankfurter, Douglas. 23pp. Noted at: 42a, 228b, 236b,

2134. 2135.

2136. 2137. 2138.

754 Shaw v. Hunt, 517 U.S. 899 (1996). 5-4, REHNQUIST. Dissents: Stevens, Ginsburg, Breyer, Souter. 52pp. Noted at: 2i3b-2i4a Shaw v. Reno, 509 U.S. 630 (1993). 5-4, O ' C O N N O R . Dissents: White, Blackmun, Stevens, Souter. 58pp. Noted at: 2i2b-2i3a, 214b Sheehan Co. v. Shuler, 265 U.S. 371 (1924). 9-0, SANFORD. 8pp. Noted at: 546a Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). 9-0, GRIER. 10pp. Noted at: 132b, 494a Shelley v. Kraemer, 334 U.S. 1 (1948). 6-0, VINSON. Not voting: Reed, Jackson, Rutledge. 22pp. Noted at: 169a, 233b, 428b, 477b, 478a—b

TABLE OF C A S E S 2139. 2140. 2141. 2142. 2143.

2144. 2145.

2146.

Shelton v. Tucker, 364 U.S. 479 (i960). 5-4, STEWART. Dissents: Frankfurter, Harlan, Whittaker, Clark. 21pp. Noted at: 302b Sheppard v. Maxwell, 384 U.S. 333 (1966). 8-i, CLARK. Dissent: Black. 31pp. Noted at: 195b, 270b, 364b, 516b Sherbert v. Verner, 374 U.S. 398 (1963). 7-2, BRENNAN. Dissents: Harlan, White. 26pp. Noted at: 98b, 202a, 202b 204a, 522a Sherrer v. Sherrer, 334 U.S. 343 (1948). 7-2, VINSON. Dissents: Frankfurter, Murphy. 14pp. Noted at: 148a Shillitani v. U.S., 384 U.S. 364 (1966). 6-2, CLARK. Concurrence: Black. Dissents: Harlan, Stewart. Not voting: White. 9pp. Noted at: 123b Shoemaker v. U.S., 147 U.S. 282 (1893). 9-0, SHIRAS. 40pp. Noted at: 333a Shreveport Grain & Elevator Co., U.S. v., 287 U.S. 77 (1932). 9-0, SUTHERLAND. Concurrences: Brandeis, Stone, Cardozo. 9pp. Noted at: 139b Shreveport Rate Case, see Houston E. & W. Texas Ry. Co. v. U.S. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). 8-0, STEWART. Concurrences: Black, Harlan. Not voting: Marshall. 18pp. Noted at:

2147. 2148.

2149. 2150.

2151. 2152. 2153. 2154.

2155.

2156. 2157. 2158.

2159. 2160.

347b Sibbach v. Wilson & Co., 312 U.S. 1 (1941). 5-4, ROBERTS. Dissents: Frankfurter, Black, Douglas, Murphy. 20pp. Noted at: 383b Sibron v. New York, 392 U.S. 40 (1968). 8-1, WARREN. Concurrences: White, Fortas, Harlan, Black. Dissent: Black. 43pp. Noted at: 309b, 380b, 381a Sick Chicken Case, see A.L.A. Schechter Poultry Corp. v. U.S. Siebold, Ex parte, 100 U.S. (10 Otto) 371 (1880). 7-2, BRADLEY. Dissents: Clifford, Field. 29pp. Noted at: 221b, 250a Siegert v. Gilley, 500 U.S. 226 (1991). 6-3, REHNQUIST. Concurrence: Kennedy. Dissents: Marshall, Blackmun, Stevens. 22pp. Noted at: 427b Silesian American Corp. v. Clark, 332 U.S. 469 (1947). 8-0, REED. Not voting: Vinson. 12pp. Noted at: 435a, 541b Silverman v. U.S., 365 U.S. 505 (1961). 9-0, STEWART. Concurrences: Douglas, Clark, Whittaker. 9pp. Noted at: 448a Silverthorne Lumber Co., Inc. v. U.S., 251 U.S. 385 (1920). 7-2, HOLMES. Dissents: White, Pitney. 8pp. Noted at: 339a Simmons v. South Carolina, 512 U.S. 154 (1994). 7-2, BLACKMUN. Concurrences: Souter, Ginsburg, O'Connor. Dissents: Scalia, Thomas. 32pp. Noted at: 138a Simmons v. U.S., 390 U.S. 377 (1968). 6-2, HARLAN. Concurrences: Black, White. Dissents: Black, White. Not voting: Marshall. 23pp. Noted at: 492a Simms v. Simms, 175 U.S. 162 (1899). 7-2, GRAY. Dissents: White, Peckham. 11pp. Noted at: 508a Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976). 9-0, POWELL. Concurrences: Stewart, Brennan, Marshall. 41pp. No ted at: 474a Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 U.S. 105 (1992). 8-0, O'CONNOR. Concurrences: Blackmun, Kennedy. Not voting: Thomas. 15pp. Noted at: 467b Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327 (1945). 9-0, JACKSON. Concurrences: Black, Douglas. 9pp. Noted at: 546b Singleton, U.S. v., 109 U.S. 3 (1883). 8-i, BRADLEY. Dissent: Harlan. 60pp. Noted at: 62b, 92b-93a, 115a, 169a, 216a, 255b, 352a, 477a, 509b

729

730

TABLE OF 2161. 2162. 2163. 2164. 2165.

2166.

2167. 2168.

2169.

2170. 2171. 2172. 2173. 2174. 2175.

2176. 2177. 2178. 2179. 2180. 218J.

21S2. 2183. 2184.

CASES

Sinking Fund Cases, 99 U.S. 700 (1878). 6-3, WAITE. Dissents: Field, Strong, Bradley. 70pp. Noted at: 35b Sioux Nation of Indians, U.S. v., 448 U.S. 371 (1980). 8-1, B L A C K M U N . Concurrence: White. Dissent: Rehnquist. 67pp. Noted at: 247b Sioux Tribe v. U.S., 316 U.S. 317 (1942). 8-0, BYRNES. Not voting: Stone. 15pp. Noted at: 400a Sistare v. Sistare, 218 U.S. 1 (1910). 9-0, WHITE. 20pp. Noted at: 208b Skinner v. Oklahoma, 316 U.S. 535 (1942). 9-0, DOUGLAS. Concurrences: Stone, Jackson. 12pp. Noted at: 210a, 259a, 310a, 426a, 486b, 489a Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989). 7-2, KENNEDY. Concurrence: Stevens. Dissents: Marshall, Brennan. 54pp. Noted at: 63a, 155a Skinner & Eddy Corp. v. U.S., 249 U.S. 557 (1919). 9-0, BRANDEIS. 14pp. Noted at: 178b Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). 5-4, MILLER. Dissents: Chase, Swayne, Bradley, Field. 89pp. Noted at: 11, 157a, 159b, 194b, 244a, 314b, 315a, 329b, 355a, 380a, 4Ô4a-b, 552a Slochower v. Board of Education, 350 U.S. 551 (1956). 5-4, CLARK. Concurrences: Black, Douglas. Dissents: Reed, Burton, Minton, Harlan. 17pp. Noted at: 109a, 352a Smith v. Alabama, 124 U.S. 465 (1888). 8-1, MATTHEWS. Dissent: Bradley. 18pp. Noted at: 149a, 512b Smith v. Allwright, 321 U.S. 649 (1944). 8-1, REED. Dissent: Roberts. 22pp. Noted at: 357b, 476a, 536a Smith v. Bennett, 365 U.S. 708 (1961). 9-0, CLARK. 7pp. Noted at: 48b Smith v. California, 361 U.S. 147 (1959). 8-1, B R E N N A N . Dissent: Harlan. 26pp. Noted at: 34b, 417b Smith v. Collin, 439 U.S. 916 (1978). 7-2, PER CURIAM. Dissents: Blackmun, White. 4pp. Noted at: 141b Smith v. Goguen, 415 U.S. 566 (1974). 6-3, POWELL. Concurrence: White. Dissents: Blackmun, Burger, Rehnquist. 39pp. Noted at: 190a, 527a Smith v. Hooey, 393 U.S. 374 (1969). 9-0, STEWART. Concurrences: Black, Harlan, White. 11pp. Noted at: 517b Smith v. Illinois, 390 U.S. 129 (1968). 8-1, STEWART. Concurrences: White, Marshall. Dissent: Harlan. 7pp. Noted at: 113b Smith v. Kansas Title & Trust Co., 255 U.S. 180 (1921). 6-2, DAY. Dissents: Holmes, McReynolds. Not voting: Brandeis. 36pp. Noted at: 65a Smith v. Maryland, 442 U.S. 735 (1979). 6-3, B L A C K M U N . Dissents: Stewart, Marshall, Brennan. 17pp. Noted at: 13, 376b, 448b Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977). 9-0, B R E N N A N . Concurrences: Stewart, Burger, Rehnquist. 47pp. Noted at: 341b Smith v. Phillips, 455 U.S. 209 (1982). 6-3, REHNQUIST. Concurrence: O'Connor. Dissents: Marshall, Brennan, Stevens. 36pp. Noted at: 144b Smith v. St. Louis and Southwestern Ry. Co. ofTexas, 181 U.S. 248 (1901). 6-3, McKENNA. Dissents: Harlan, Brown, White. 16pp. Noted at: 408a Smith, U.S. v., 18 U.S. (5 Wheat.) 153 (1820). 8-1, STORY. Dissent: Livingstone. 31pp. Noted at: 351b Smith, U.S. v., 286 U.S. 6 (1932). 9-0, BRANDEIS. 44pp. Noted at: 51b, 436b

T A B L E OF C A S E S 2185. 2186. 2187. 2188. 2189.

2190.

2191. 2192.

2193. 2194.

2195. 2196. 2197.

2198. 2199. 2200. 2201. 2202.

2203.

2204.

2205.

2206.

Smyth v. Ames, 169 U.S. 466 (1898). 9-0, HARLAN. 85pp. Noted at: 160a, 181a, 411a, 525a Snepp v. U.S., 444 U.S. 507 (1980). 6-3, PER CURIAM. Dissents: Stevens, Brennan, Marshall. 20pp. Noted at: 467b Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). 8-1, DOUGLAS. Dissent: Black. 15pp. Noted at: 211b, 229a, 315a, 382a Snowden v. Hughes, 321 U.S. 1 (1944). 7-2, STONE. Dissents: Douglas, Murphy. 19pp. Noted at: 393a Snyder v. Massachusetts, 291 U.S. 97 (1934). 5-4, CARDOZO. Dissents: Roberts, Brandeis, Sutherland, Butler. 42pp. Noted at: 315a, 383b, 515b Sochor v. Florida, 504 U.S. 527 (1992). 9-0, 8-1, 7-2, 6-3, 5-4 (various coalitions), SOUTER. Concurrences: O'Connor, Rehnquist, White, Thomas, Stevens, Blackmun, Scalia. Dissents: Rehnquist, White, Thomas, Stevens, Blackmun, Scalia. 28pp. Noted at: 40b Sokolow, U.S. v., 490 U.S. i (1989). 7-2, REHNQUIST. Dissents: Marshall, Brennan. 17pp. Noted at: 443b Solem v. Helm, 463 U.S. 277 (1983). 5-4, POWELL. Dissents: Burger, White, Rehnquist, O'Connor. 51pp. Noted at: 285b, 295a, 392b, 402b Soliah v. Heskin, 222 U.S. 522 (1912). 9-0, LAMAR. 3pp. Noted at: 359a Solorio v. U.S., 483 U.S. 435 (1987). 6-3, REHNQUIST. Concurrence: Stevens. Dissents: Marshall, Brennan, Blackmun. 33pp. Noted at: 305a Sonzinsky v. U.S., 300 U.S. 506 (1937). 9-0, STONE. 9pp. Noted at: 131b, 212b, 330a, 505a Sosna v. Iowa, 419 U.S. 393 (1975). 6-3, REHNQUIST. Dissents: White, Marshall, Brennan. 35pp. Noted at: 148b, 158b, 309b South Carolina v. Baker, 485 U.S. 505 (1988). 7-1, BRENNAN. Concurrences: Stevens, Scalia, Rehnquist. Dissent: O'Connor. Not voting: Kennedy. 29pp. Noted at: 185a, 237a, 505a South Carolina v. Gathers, 490 U.S. 805 (1989). 5-4, POWELL. Dissents: Burger, White, Rehnquist, O'Connor. 41pp. Noted at: 530a South Carolina v. Georgia, 93 U.S. 4 (1876). 9-0, STRONG, npp. Noted at: 360a South Carolina v. Katzenbach, 383 U.S. 301 (1966). 8-1, WARREN. Dissent: Black. 61pp. Noted at: 115a, 132b, 288a, 494a, 537a South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177 (1938). 7-0, STONE. Not voting: Cardozo, Reed. 20pp. Noted at: 312a, 512b South Dakota v. Dole, 483 U.S. 203 (1987). 7-2, REHNQUIST. Dissents: Brennan, O'Connor. 16pp. Noted at: 98b, 185b, 218a, 257a, 314a, 472b, 483a, 522b South Dakota v. Opperman, 428 U.S. 364 (1976). 5-4, BURGER. Concurrence: Powell. Dissents: Marshall, Brennan, Stewart, White. 33pp. Noted at: 162a South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984). 7-2, WHITE. Concurrences: Brennan, Powell, Burger. Dissents: Rehnquist, O'Connor. 22pp. Noted at: 148b, 299a Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). 5-4, BLACKMUN. Concurrence: Douglas. Dissents: Douglas, White, Burger, Rehnquist. 29pp. Noted at: 166b, 323a, 374b, 397b Southern Pacific Co. v. Arizona ex rei. Sullivan, 325 U.S. 761 (1945). 7-2, STONE. Dissents: Black, Douglas. 2pp. Noted at: 126a, 513a, 280a

731

732

TABLE OF

2207.

2208. 2209. 2210. 2211. 2212. 2213.

2214. 2215. 2216.

2217. 2218. 2219. 2219a. 2220. 2221.

2222. 2223. 2224. 2225.

2226. 2227. 2228. 2229.

CASES

Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). 5-4, McREYNOLDS. Dissents: Holmes, Pitney, Brandeis, Clarke. 51pp. Noted at: 32b, 118b, 277a Southern Pacific Co. v. Kentucky, 222 U.S. 63 (1911). 9-0, LURTON. 15pp. Noted at: 391a Southern Railway Co. v. King, 217 U.S. 524 (1910). 7-2, DAY. Dissents: Holmes, White. 15pp. Noted at: 149a, 512b Southern Railway Co. v. U.S., 222 U.S. 20 (1911). 9-0, VAN DEVANTER. 8pp. Noted at: 254b Spalding v. Vilas, 161 U.S. 483 (1896). 9-0, HARLAN. 16pp. Noted at: 239a Spalding & Bros. v. Edwards, 262 U.S. 66 (1923). 9-0, HOLMES. 5pp. Noted at: 179b, 242b Spallone v. U.S., 493 U.S. 265 (1990). 5-4, REHNQUIST. Dissents: Brennan, Marshall, Blackmun, Stevens. 24pp. Noted at: 264b, 452b Spano v. New York, 360 U.S. 315 (1959). 9-0, WARREN. Concurrences: Douglas, Black, Brennan, Stewart. 13pp. Noted at: 128a Sparf and Hansen v. U.S., 156 U.S. 51 (1895). 5-4, HARLAN. Dissents: Brewer, Brown, Gray, Shiras. 133pp. Noted at: 528b Spaziano v. Florida, 468 U.S. 447 (1984). 6-3, BLACKMUN. Concurrences: White, Rehnquist, Stevens, Brennan, Marshall. Dissents: Stevens, Brennan, Marshall. 44pp. Noted at: 137b Specht v. Patterson, 386 U.S. 605 (1967). 9-0, DOUGLAS. Concurrence: Harlan. 7pp. Noted at: 90a Speiser v. Randall, 357 U.S. 513 (1958). 8-1, BRENNAN. Concurrences: Black, Douglas. Dissent: Clark. 31pp. Noted at: 109a, 522b Spence v. Washington, 418 U.S. 405 (1974). 6-3, PER CURIAM. Concurrence: Douglas. Dissents: Rehnquist, Burger, White. 19pp. Noted at: 190a Spencer v. Kemna, 118 S.Ct. 978 (1998). 8-i, SCALIA. Concurrences: Souter, Ginsburg. Dissent: Stevens. 15pp. Noted at: 562a Sperry Corp., U.S. v., 493 U.S. 52 (1989). 9-0, WHITE. 15pp. Noted at: 429b Spevack v. Klein, 385 U.S. 511 (1967). 5-4, DOUGLAS. Concurrences: Warren, Black, Brennan, Fortas. Dissents: Harlan, Clark, Stewart, White. 20pp. Noted at: 98b, 352a, 454a Spinelli v. U.S., 393 U.S. 410 (1969). 6-3, HARLAN. Concurrence: White. Dissents: Black, Fortas, Stewart. 30pp. Noted at: 380b Springville v. Thomas, 166 U.S. 707 (1897). 9-0, FULLER. 2pp. Noted at: 271b St. Amant v. Thompson, 390 U.S. 727 (1968). 8-1, WHITE. Concurrences: Black, Douglas. Dissent: Fortas. 8pp. Noted at: 396b St. Louis v. Praprotnik, 485 U.S. 112 (1988). 7-1, 4-3-1, O'CONNOR, writing for plurality (Rehnquist, White, Scalia); concurrence in part and in judgment, BRENNAN, writing for plurality (Marshall, Blackmun). Dissent: Stevens. Not voting: Kennedy. 63pp. Noted at: 122a St. Louis, Iron Mt. & Southern Ry. Co. v. Taylor, 210 U.S. 281 (1988). 9-0, MOODY. Concurrence: Brewer. 15pp. Noted at: 140b Stack v. Boyle, 342 U.S. 1 (1951). 9-0, VINSON. 18pp. Noted at: 63a, 372b Stafford v. Wallace, 258 U.S. 495 (1922). 7-1, TAFT. Dissent: McReynolds. Not voting: Day. 34pp. Noted at: 102a, 254b, 485b Standard Oil Co. v. New Jersey, 341 U.S. 428 (1951). 5-4, REED. Dissents: Frankfurter, Jackson, Douglas, Black. 18pp. Noted at: 390a

TABLE OF C A S E S 2230. 2231. 2232.

2233. 2234.

2235.

2236. 2237.

2238. 2239. 2240. 2241.

2242. 2243. 2244. 2245.

2246. 2247. 2248.

2249. 2250. 2251.

Standard Oil Co. v. Peck, 342 U.S. 382 (1952). 7-2, DOUGLAS. Dissents: Minton, Black. 7pp. Noted at: 391b Standard Pressed Steel Co. v. Dept. of Revenue, 419 U.S. 560 (1975). 9-0, DOUGLAS. 5pp. Noted at: 503a Stanford v. Kentucky, 492 U.S. 361 (1989). 5-4, SCALIA. Concurrence: O'Connor. Dissents: Brennan, Marshall, Blackmun, Stevens. 45pp. Noted at: 137b, 273b Stanford v. Texas, 379 U.S. 476 (1965). 9-0, STEWART, npp. Noted at: 449a Stanley v. Georgia, 394 U.S. 557 (1969). 9-0, MARSHALL. Concurrences: Black, Stewart, Brennan, White. 16pp. Noted at: 235a, 238b, 378a, 432b Stanley v. Illinois, 405 U.S. 645 (1972). 5-2, WHITE. Dissents: Burger, Blackmun. Not voting: Powell, Rehnquist. 23pp. Noted at: 370a Stanley v. Schwalby, 162 U.S. 255 (1896). 9-0, GRAY. 29pp. Noted at: 468a Stanley, U.S. v., 483 U.S. 669 (1987). 5-4, SCALIA. Concurrence: O'Connor. Dissents: O'Connor, Brennan, Marshall, Stevens. 40pp. Noted at: 305a Stansbury v. California, 511 U.S. 318 (1994). 9-0, PER CURIAM. Concurrence: Blackmun. 10pp. Noted at: 455a Starns v. Malkerson, 326 ESupp. 234 (D. Minn. 1970), ajfd, 401 U.S. 985 (1971). PER CURIAM, ipp. Noted at: 158b State Board of Equalization v. Youngs Market Co., 299 U.S. 59 (1936). 8-0, BRANDEIS. Concurrence: Burton. Not voting: Stone. 6pp. Noted at: 256b State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523 (1967). 8-1, FORTAS. Dissent: Douglas. 19pp. Noted at: 147a State Freight Tax Case, see Reading Railroad v. Pennsylvania State of—, see name of the state State Tonnage Tax Cases, 79 U.S. (12 Wall.) 204 (1871). 9-0, CLIFFORD. 23pp. Noted at: 511a Staub v. City of Baxley, 355 U.S. 313 (1958). 7-2, WHITTAKER. Dissents: Frankfurter, Clark. 26pp. Noted at: 466a Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31 (1867). 9-0, CHASE. 5pp. Noted at: 511a Stearns v. Minnesota, 179 U.S. 223 (1900). 9-0, BREWER. Concurrences: White, Harlan, Gray, McKenna, Brown. 40pp. Noted at: 476b Steel Seizure Case, see Youngstown Sheet & Tube Co. v. Sawyer Steffel v. Thompson, 415 U.S. 452 (1974). 9-0, BRENNAN. Concurrences: Stewart, Burger, White, Rehnquist. 33pp. Noted at: 139b Stephens v. Cherokee Nation, 174 U.S. 445 (1899). 7-2, FULLER. Dissents: White, McKenna. 48pp. Noted at: 58a Steward Machine Co. v. Davis, 301 U.S. 548 (1937). 5-4, CARDOZO. Concurrences: Sutherland, Van Devanter. Dissents: Sutherland, Van Devanter, McReynolds, Butler. 71pp. Noted at: 98b, 132a, 212b, 472b, 506a Stewart v. Kahn, 78 U.S. (11 Wall.) 493 (1871). 9-0, SWAYNE. 15pp. Noted at: 540b Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). 6-3, ROBERTS. Dissents: Cardozo, Brandeis, Stone. 30pp. Noted at: 501b Stolar, In re, 401 U.S. 23 (1971). 5-4, BLACK. Concurrence: Stewart. Dissents: Blackmun, Burger, Harlan, White, npp. Noted at: 109a, 198b, 278a

733

734

TABLE OF C A S E S 2252. 2253. 2254.

2255. 2256. 2257. 2258. 2259. 2260. 2261.

2262. 2263. 2264. 2265. 2266. 2267. 2268.

2269. 2270. 2271. 2272. 2273. 2274. 2275.

Stone v. Graham, 449 U.S. 39 (1980). 5-4, PER CURIAM. Dissents: Burger, Blackmun, Stewart, Rehnquist. 9pp. Noted at: 362a Stone v. Mississippi, 101 U.S. 814 (1879). 9-0, WAITE. 8pp. Noted at: 326b Stone v. Powell, 428 U.S. 465 (1976). 6-3, POWELL. Concurrence: Burger. Dissents: Brennan, Marshall, White. 77pp. Noted at: 175b, 176a, 222b Stoner v. California, 376 U.S. 483 (1964). 8-1, STEWART. Concurrence: Harlan. Dissent: Harlan. 8pp. Noted at: 445a Storer v. Brown, 415 U.S. 724 (1974). 6-3, WHITE. Dissents: Brennan, Douglas, Marshall. 42pp. Noted at: 309b, 356b Stovall v. Denno, 388 U. S. 293 (1967). 6-3, BRENNAN. Dissents: Douglas, Fortas, Black. 14pp. Noted at: 287b, 430a Strauder v. West Virginia, 100 U.S. 303 (1880). 8-1, STRONG. Dissent: Field. 10pp. Noted at: 169b, 271a, 314a, 405b, 409b, 410b Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806). 9-0, MARSHALL. 2pp. Noted at: 147a Street v. New York, 394 U.S. 576 (1969). 5-4, HARLAN. Dissents: Warren, Black, White, Fortas. 41pp. Noted at: 190a, 257b Strickland v. Washington, 466 U.S. 668 (1984). 7-2, O'CONNOR. Concurrence: Brennan. Dissents: Brennan, Marshall. 52pp. Noted at: 128a, 249a Stringer v. Black, 503 U.S. 222 (1992). 6-3, KENNEDY. Dissents: Souter, Scalia, Thomas. 27pp. Noted at: 319b Stromberg v. California, 283 U.S. 359 (1931). 7-2, HUGHES. Dissents: Reynolds, Butler. 18pp. Noted at: 496b Strunk v. U.S., 412 U.S. 434 (1973). 9-0, BURGER. 6pp. Noted at: 517b Stuart v. Laird, 5 U.S. (1 Cr.) 299 (1803). 6-0, PATERSON. npp. Noted at: 35a Stump v. Sparkman, 435 U.S. 349 (1978). 6-3, WHITE. Dissents: Stewart, Marshall, Powell. 22pp. Noted at: 239b, 263a Sturges v. Crowinshield, 17 U.S. (4 Wheat.) 122 (1819). 7-0, MARSHALL. 87pp. Noted at: 66a, 145b, 326a Stutson v. U.S., 516 U.S. 193 (1996). 7-2, 6-3, PER CURIAM. Concurrences: Stevens, Rehnquist. Dissents: Rehnquist, Scalia, Thomas. 24pp. (Nine additional pages of concurrences and dissents follow Lawrence v. Chater) Noted at: 423a Sugar Trust Case, î î î E . C . Knight Co., U.S. v. Sugarman v. Dougall, 413 U.S. 634 (1973). 8-i, BLACKMUN. Dissent: Rehnquist. 16pp. Noted at: 42b Suitum v. Tahoe Regional Planning Agency, 117 S.Ct. 1659 (1997). 9-0, SOUTER. Concurrence: Scalia. 15pp. Noted at: 435b Sullivan v. Louisiana, 508 U.S. 275 (1993). 9-0, SCALIA. Concurrence: Rehnquist. npp. Noted at: 226a, 413a Sullivan, U.S. v., 274 U.S. 259 (1927). 9-0, HOLMES. 6pp. Noted at: 243b, 454b Sullivan, U.S. v., 332 U.S. 689 (1948). 6-3, BLACK. Concurrence: Rutledge. Dissents: Frankfurter, Reed, Johnson. 19pp. Noted at: 192a Sumner v. Shuman, 483 U.S. 66 (1987). 6-3, BLACKMUN. Dissents: White, Rehnquist, Scalia. 22pp. Noted at: 137b Sun Oil Co. v. Wortman, 486 U.S. 717 (1988). 8-0, 5-3, 6-2 (various coalitions), SCALIA. Concurrences: Brennan, Marshall, O'Connor, Rehnquist. Dissents: O'Connor, Rehnquist. Not voting: Kennedy. 33pp. Noted at: 209a

T A B L E OF C A S E S 2276. 2277. 2278.

2279. 2280. 2281. 2282.

2283. 2284. 2285. 2285a. 2286. 2287. 2288. 2289. 2290. 2291.

2292. 2293.

2294. 2295. 2296. 2297. 2298. 2299.

Sun Printing & Publishing Assn. v. Edwards, 194 U.S. 377 (1904). 7-2, WHITE. Dissents: Harlan, Peckham. 7pp. Noted at: 428a Sununu v. Stark, 420 U.S. 958 (1975). 8-0, PER CURIAM. Not voting: Douglas, ipp. Noted at: 24b Superintendent, Massachusetts Correctional Inst. v. Hill, 472 U.S. 445 (1985). 6-3, O'CONNOR. Concurrences: Stevens, Brennan, Marshall. Dissents: Stevens, Brennan, Marshall. 18pp. Noted at: 376a Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 8-1, POWELL. Concurrence: White. Dissent: Rehnquist. 23pp. Noted at: 278a, 330a, 379b Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988). 7-2, KENNEDY. Dissents: Rehnquist, Scalia. 13pp. Noted at: 278a, 379b Suter v. Artist M., 503 U.S. 347 (1992). 7-2, REHNQUIST. Dissents: Blackmun, Stevens. 31pp. Noted at: 378b Swain v. Alabama, 380 U.S. 202 (1965). 6-3, WHITE. Concurrences: Harlan, Black. Dissents: Goldberg, Warren, Douglas. 45pp. Noted at: 346a Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). 9-0, BURGER. 32pp. Noted at: 76a, 452b Sweatt v. Painter, 339 U.S. 629 (1950). 9-0, VINSON. 7pp. Noted at: 452a Sweezy v. New Hampshire, 354 U.S. 234 (1957). 7-2, WARREN. Dissents: Clark, Burton. 37pp. Noted at: 24a, 110a, 258b Swidler & Berlin v. U.S., 118 S.Ct. 2081 (1998). 6-3, REHNQUIST. Dissents: O'Connor, Scalia, Thomas. 11pp. Noted at: 558b Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842). 9-0, STORY. 23pp. Noted at: 146b, 171a, 183b, 479a Swift & Co. v. U.S., 196 U.S. 375 (1905). 9-0, HOLMES. 28pp. Noted at: 41a, 48a, ioi-io2a, 485b Taft v. Bowers, 278 U.S. 470 (1929). 9-0, McREYNOLDS. 15pp. Noted at: 243b Tagg Bros. & Moorhead v. U.S., 280 U.S. 420 (1930). 9-0, BRANDEIS. 26pp. Noted at: 140a Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948). 7-2, BLACK. Concurrences: Murphy, Rutledge. Dissents: Reed, Jackson. 22pp. Noted at: 42b Talley v. California, 362 U.S. 60 (i960). 6-3, BLACK. Concurrence: Harlan. Dissents: Clark, Frankfurter, Whittaker. 13pp. Noted at: 47a Tancil v. Woolls, 379 U.S. 19 (1964). 9-0, PER CURIAM, ipp. Noted at: 409a Tashjian v. Republican Party, 479 U.S. 208 (1986). 5-4, MARSHALL. Dissents: Stevens, Scalia, Rehnquist, O'Connor. 30pp. Noted at: 357a, 536a Tate v. Short, 401 U.S. 395 (1971). 9-0, BRENNAN. Concurrences: Black, Harlan, Blackmun. 7pp. Noted at: 544b Taylor v. Hayes, 418 U.S. 488 (1974). 7-2, WHITE. Dissents: Marshall, Rehnquist. 17pp. Noted at: 123b, 124a Taylor v. Illinois, 484 U.S. 400 (1988). 6-3, STEVENS. Dissents: Brennan, Marshall, Blackmun. 39pp. Noted at: m b Taylor v. Kentucky, 436 U.S. 478 (1978). 7-2, POWELL. Concurrence: Brennan. Dissents: Stevens, Rehnquist. 15pp. Noted at: 516a Taylor v. Louisiana, 419 U.S. 522 (1975). 8-1, WHITE. Concurrence: Burger. Dissent: Rehnquist. 21pp. Noted at: 270b, 271a, 461a Taylor v. Taintor, 83 U.S. (16 Wall.) 366 (1872). 4-3, SWAYNE. Dissents: Field, Clifford, Miller. Not voting: Davis, Hunt. npp. Noted at: 179b

735

736

T A B L E OF C A S E S 2300.

2301. 2302. 2303. 2304. 2305. 2306. 2307.

2308. 2309.

2310.

2311. 2312. 2313. 2314.

2315.

2316. 2317.

2318. 2319. 2320. 2321.

2321a.

Teague v. Lane, 489 U.S. 288 (1989). 7-2, O'CONNOR. Concurrences: White, Blackmun, Stevens. Dissents: Brennan, Marshall. 58pp. Noted at: 223a, 318a, 319b, 560a Tehan v. U.S. ex rel. Shott, 382 U.S. 406 (1966). 5-2, STEWART. Dissents: Black, Douglas. Not voting: Warren, Fortas. 14pp. Noted at: 318a Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968). 9-0, PER CURIAM. Concurrences: Black, Douglas, Harlan, Stewart. 4pp. Noted at: 374b Tennessee v. Davis, 100 U.S. 257 (1879). 7-2, STRONG. Dissents: Clifford, Field. 46pp. Noted at: 423b Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978). 6-3, BURGER. Dissents: Powell, Blackmun, Rehnquist. 61pp. Noted at: 166a Tenney v. Brandhove, 341 U.S. 367 (1951). 8-1, FRANKFURTER. Concurrence: Black. Dissent: Douglas. 16pp. Noted at: 471b Terlinden v. Ames, 184 U.S. 270 (1902). 9-0, FULLER. 21pp. Noted at: 358a Terminiello v. Chicago, 337 U.S. 1 (1949). 5-4, DOUGLAS. Dissents: Vinson, Frankfurter, Jackson, Burton. 37pp. Noted at: 72b, 97b, 235a, 331a, 431b Terry v. Adams, 345 U.S. 461 (1953). 8-1, BLACK. Dissent: Minton. 34pp. Noted at: 357b, 399a, 478a, 535a Terry v. Ohio, 392 U.S. 1 (1968). 8-1, WARREN. Concurrences: Black, Harlan, White. Dissent: Douglas. 33pp. Noted at: 445a, 447a, 448a, 448b Terry, Ex parte, 128 U.S. 289 (1888). 9-0, HARLAN. 26pp. Noted at: 123b Test Oath Cases, see Garland, Ex parte Testa v. Katt, 330 U.S. 386 (1947). 9-0, BLACK. 9pp. Noted at: 493a Texaco v. Short, 454 U.S. 516 (1982). 5-4, STEVENS. Dissents: Brennan, White, Marshall, Powell. 39pp. Noted at: 390a Texas & N.O.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 (1930). 8-0, HUGHES. Not voting: McReynolds. 24pp. Noted at: 549b Texas Monthly, Inc. v. Bullock, 481 U.S. 1 (1989). 6-3, BRENNAN. Concurrences: White, Blackmun, O'Connor. Dissents: Scalia, Rehnquist, Kennedy. 45pp. Noted at: 207b Texas v. Brown, 460 U.S. 730 (1983). 9-0, REHNQUIST. Concurrences: White, Powell, Blackmun, Stevens, Brennan, Marshall. 22pp. Noted at: 447a Texas v. Florida, 306 U.S. 398 (1939). 7-2, STONE. Dissents: Frankfurter, Black. 37pp. Noted at: 480a Texas v. Johnson, 491 U.S. 397 (1989). 5-4, BRENNAN. Concurrence: Kennedy. Dissents: Rehnquist, White, O'Connor, Stevens. 43pp. Noted at: 190b Texas v. New Jersey, 379 U.S. 674 (1965). 8-1, BLACK. Dissent: Stewart. 10pp. Noted at: 480a Texas v. New Mexico, 482 U.S. 124 (1987). 8-0, WHITE. Not voting: Stevens. 12pp. Noted at: noa Texas v. White, 74 U.S. (7 Wall.) 700 (1869). 5-3, CHASE. Dissents: Grier, Swayne, Miller. 43pp. Noted at: 482b, 524a Texas, U.S. v., 339 U.S. 707 (1950). 5-3, DOUGLAS. Dissents: Reed, Minton, Frankfurter. Not voting: Clark. 18pp. Noted at: 98a Texas v. U.S., 118 S.Ct. 1257 (1998). 9-0, SCALIA. 4pp. Noted at: 566a

T A B L E OF C A S E S 2322. 2323. 2324. 2325. 2326. 2327. 2328. 2329.

2330. 2331. 2332. 2333. 2334. 2335.

2336. 2337. 2338.

2339. 2340.

2341. 2342.

2343. 2344. 2345.

The Antelope, 23 U.S. (10 Wheat.) 66 (1825). 9-0, MARSHALL. 67pp. Noted at: 36a The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813). 6-0, JOHNSON. Not voting: Todd. 8pp. Noted at: 140a The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870). 9-0, FIELD. 10pp. Noted at: 315b The Eagle, 75 U.S. (8 Wall.) 15 (1868). 8-0, NELSON. 8pp. Noted at: 32b The Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851). 8-i, TANEY. Dissent: Daniel. 23pp. Noted at: 32b The Laura v. Bridgeport Steam-Boat Co., 114 U.S. 411 (1885). 9-0, HARLAN. 7pp. Noted at: 341a The Lottawanna, 88 U.S. (21 Wall.) 558 (1874). 7-2, BRADLEY. Dissents: Clifford, Field. 52pp. Noted at: 316b The Magnolia, 61 U.S. (20 How.) 296 (1857). 6-3, GRIER. Concurrence: McLean. Dissents: Catron, Daniel, Campbell. 47pp. Noted at: 32b The Paquette Habana, 175 U.S. 677 (1900). 6-3, GRAY. Dissents: Fuller, Harlan, McKenna. 44pp. Noted at: 252a, 541b The Siren, 80 U.S. (13 Wall.) 389 (1871). 9-0, SWAYNE. 8pp. Noted at: 541b The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825). 7-0, STORY. 3pp. Noted at: 32b Thind, U.S. v., 261 U.S. 204 (1923). 9-0, SUTHERLAND. 12pp. Noted at: 236a Thomas v. Collins, 323 U.S. 516 (1945). 5-4, RUTLEDGE. Dissents: Roberts, Stone, Reed, Frankfurter. 42pp. Noted at: 276a Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985). 9-0, O'CONNOR. Concurrences: Brennan, Marshall, Blaclunun, Stevens. 38pp. Noted at: 517a Thompson v. Darden, 198 U.S. 310 (1905). 9-0, WHITE. 8pp. Noted at: 360a Thompson v. Keohane, 516 U.S. 99 (1995). 7-2, GINSBURG. Dissents: Thomas, Rehnquist. 23pp. Noted at: 49a, 222b Thompson v. Oklahoma, 487 U.S. 815 (1988). 5-3, STEVENS. Concurrence: O'Connor. Dissents: Scalia, Rehnquist, White. Not voting: Kennedy. 64pp. Noted at: 137b, 273b Thompson v. Utah, 170 U.S. 343 (1898). 7-2, HARLAN. Dissents: Brewer, Peckham. 12pp. Noted at: 271a Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). 5-4, BLACKMUN. Concurrence: Stevens. Dissenting: Burger, White, O'Connor, Rehnquist. 86pp. Noted at: 20a Thornhill v. Alabama, 310 U.S. 88 (1940). 8-1, MURPHY. Dissent: McReynolds. 19pp. Noted at: 97b, 276a, 338a, 349b Thornton, Estate of v. Caldor, Inc., 472 U.S. 703 (1985). 8-1, BURGER. Concurrences: O'Connor, Marshall. Dissent: Rehnquist. 10pp. Noted at: 202b, 491b Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). 9-0, BLACKMUN. Concurrences: Scalia, Thomas. 22pp. Noted at: 386a Tilton v. Richardson, 403 U.S. 672 (1971). 5-4, BURGER Concurrence: White. Dissents: Douglas, Black, Marshall, Brennan. 26pp. Noted at: 438a Time, Inc. v. Firestone, 424 U.S. 448 (1976). 6-3, REHNQUIST. Concurrences: Powell, Stewart. Dissents: Brennan, White, Marshall. 46pp. Noted at: 397a

737

738

T A B L E OF C A S E S 2346.

2347. 2348. 2349. 2350.

2351. 2352. 2353. 2354.

2355. 2356. 2357.

2358. 2359. 2360. 2361. 2362. 2363. 2364.

2365. 2366.

2367. 2368. 2369.

Time, Inc. v. Hill, 385 U.S. 374 (1967). 5-4, BRENNAN. Concurrences: Black, Douglas, Harlan. Dissents: Fortas, Warren, Clark, Harlan. 47pp. Noted at: 377a Time, Inc. v. Pape, 401 U.S. 279 (1971). 8-1, STEWART. Concurrences: Black, Douglas. Dissent: Harlan. 16pp. Noted at: 396b Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961). 5-4, CLARK. Dissents: Warren, Douglas, Black, Brennan. 42pp. Noted at: 82b, 87a, 374b Timmons v. Twin Cities Area New Party, 117 S.Ct. 1364 (1997). 6-3, REHNQUIST. Dissents: Stevens, Ginsburg, Souter. 19pp. Noted at: 25a Tinker v. Des Moines School District, 393 U.S. 503 (1969). 7-2, FORTAS. Concurrences: Stewart, White. Dissents: Black, Harlan. 24pp. Noted at: 154b, 273a, 487b, 497a Tisi v. Tod, 264 U.S. 131 (1924). 9-0, BRANDEIS. 4pp. Noted at: 30a Tison v. Arizona, 481 U.S. 137 (1987). 5-4, O'CONNOR. Dissents: Brennan, Marshall, Blackmun, Stevens. 48pp. Noted at: 137b Titus v. Wallick, 306 U.S. 282 (1939). 9-0, STONE. 10pp. Noted at: 208b Toll v. Moreno, 458 U.S. 1 (1982). 6-3, BRENNAN. Concurrences: Blackmun, O'Connor. Dissents: O'Connor, Rehnquist, Burger. 42pp. Noted at: 42b Tollett v. Henderson, 411 U.S. 258 (1973). 6-3, REHNQUIST. Dissents: Marshall, Douglas, Brennan. 20pp. Noted at: 219b Toolson v. New York Yankees, 346 U.S. 356 (1953). 7-2, PER CURIAM. Dissents: Burton, Reed. 10pp. Noted at: 66b Toomer v. Witsell, 334 U.S. 385 (1948). 9-0, VINSON. Concurrences: Black, Frankfurter, Jackson, Rutledge. 25pp. Noted at: 98a, 379a Torcaso v. Watkins, 367 U.S. 488 (1961). 9-0, BLACK. 9pp. Noted at: 199a, 423a Torres v. Puerto Rico, 442 U.S. 465 (1979). 9-0, BURGER. Concurrences: Brennan, Stewart, Marshall, Blackmun. 11pp. Noted at: 401a Toth, U.S. ex rel. v. Quarles, 350 U.S. 11 (1955). 6-3, BLACK. Dissents: Reed, Minton, Burton. 35pp. Noted at: 305b Totten v. U.S., 92 U.S. 105 (1876). 9-0, FIELD. 3pp. Noted at: 101a Toucey v. New York Life Insurance Co., 314 U.S. 118 (1941). 6-3, FRANKFURTER. Dissents: Reed, Stone, Roberts. 37pp. Noted at: 23a, 48a Touche Ross & Co. v. Redington, 442 U.S. 560 (1979). 8-i, REHNQUIST. Concurrence: Brennan. Dissent: Marshall. 24pp. Noted at: 378b Tower v. Glover, 467 U.S. 914 (1984). 9-0, O'CONNOR. Concurrence: Brennan. 11pp. Noted at: 239b Town of-, see name of the town Townsend v. Burke, 334 U.S. 736 (1948). 6-3, JACKSON. Dissents: Vinson, Reed, Burton. 6pp. Noted at: 128a Townsend v. Sain, 372 U.S. 293 (1963). 5-4, WARREN. Concurrence: Goldberg. Dissents: Stewart, Clark, Harlan, White. 42pp. Noted at: 222a Townsend v. Yeomans, 301 U.S. 441 (1937). 9-0, HUGHES. 19pp. Noted at: 35b Trade-Mark Cases, 100 U.S. 82 (1879). 9-0, MILLER. 18pp. Noted at: 511b Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920). 9-0, PITNEY. Concurrence: McReynolds. 23pp. Noted at: 379b, 504b

T A B L E OF C A S E S 2370. 2371. 2372.

2373. 2374. 2375.

2376. 2377.

2378. 2379. 2380. 2381. 2382. 2383. 2384.

2385. 2386.

2387.

2388. 2389. 2390. 2391.

2392.

Triangle Improvement Council v. Ritchie, 402 U.S. 497 (1971). 5-4, PER CURIAM. Dissents: Douglas, Black, Brennan, Marshall. 12pp. Noted at: 436a Trimble v. Gordon, 430 U.S. 762 (1977). 5-4, POWELL. Dissents: Burger, Stewart, Blackmun, Rehnquist. 24pp. Noted at: 236a Trop v. Dulles, 356 U.S. 86 (1958). 5-4, WARREN. Concurrences: Black, Douglas, Brennan. Dissents: Frankfurter, Burton, Clark, Harlan. 43pp. Noted at: 178b, 402b Truax v. Corrigan, 257 U.S. 312 (1921). 5-4, TAFT. Dissents: Holmes, Pitney, Clarke, Brandeis. 65pp. Noted at: 275a, 276a Truax v. Raich, 239 U.S. 33 (1915). 8-1, HUGHES. Dissent: McReynolds. npp. Noted at: 330a Tucker, U.S. v., 404 U.S. 443 (1972). 5-2, STEWART. Dissents: Blackmun, Burger. Not voting: Powell, Rehnquist. 10pp. Noted at: 456a Tuggle v. Netherland, 516 U.S. 10 (1995). 9-0, PER CURIAM. Concurrence: Scalia. 6pp. Noted at: 40b Tuilaepa v. California, 512 U.S. 967 (1994). 8-1, KENNEDY. Concurrences: Scalia, Souter, Stevens, Ginsburg. Dissents: Blackmun. 30pp. Noted at: 528a Tull v. U.S., 481 U.S. 412 (1987). 7-2, BRENNAN. Concurrences: Scalia, Stevens. Dissents: Scalia, Stevens. 16pp. Noted at: 519a Tumey v. Ohio, 273 U.S. 510 (1927). 9-0, TAFT. 26pp. Noted at: 157b, 240a, 515b Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799). 6-0, ELLSWORTH. 3pp. Noted at: 132b, 264a Turner v. Louisiana, 379 U.S. 466 (1965). 8-1, STEWART Dissents: Clark. 10pp. Noted at: 270b Turner v. Maryland, 107 U.S. 38 (1883). 9-0, BLATCHFORD. 22pp. Noted at: 251a Turner v. Memphis, 369 U.S. 350 (1962). 8-0, PER CURIAM. Not voting: Whittaker. 4pp. Noted at: 452a Turner v. Safley, 482 U.S. 78 (1987). 5-4, O'CONNOR. Concurrences: Stevens, Brennan, Marshall, Blackmun. Dissents: Stevens, Brennan, Marshall, Blackmun. 39pp. Noted at: 300a, 376a, 376b Turner v. U.S., 396 U.S. 398 (1970). 7-2, WHITE. Concurrence: Marshall. Dissents: Black, Douglas. 36pp. Noted at: 371b Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994). 9-0, 8-1, 5-4, KENNEDY. Concurrences: Blackmun, Stevens, O'Connor, Scalia, Ginsburg, Thomas. Dissents: O'Connor, Scalia, Ginsburg, Thomas. 65pp. Noted at: 78a, 486b, 487a Turner Broadcasting System, Inc. v. Federal Communications Commission, 117 S.Ct. 1174 (1997). 5-4, KENNEDY. Concurrences: Stevens, Breyer. Dissents: O'Connor, Scalia, Thomas, Ginsburg. 45pp. Noted at: 78a Turpin v. Lemon, 187 U.S. 51 (1902). 9-0, FULLER. 10pp. Noted at: 502a Twelve 200-Foot Reels of Super 8mm Film, U.S. v., 413 U.S. 123 (1973). 5-4, BURGER. Dissents: Douglas, Brennan, Stewart, Marshall. 16pp. Noted at: 328b, 378a Twining v. New Jersey, 211 U.S. 78 (1908). 8-1, MOODY. Dissent: Harlan. 37pp. Noted at: 157b, 380a, 382a TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993). 6-3, STEVENS. Concurrences: Kennedy, Scalia, Thomas. Dissents: O'Connor, White, Souter. 59pp. Noted at: 403b Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, 483 U.S. 232 (1987). 8-0, 6-2, STEVENS. Concurrences: O'Connor, Scalia, Rehnquist. Dissents: Scalia, Rehnquist. Not voting: Powell. 34pp. Noted at: 503a

739

740

T A B L E OF C A S E S 2393. 2394.

2395.

2396. 2397. 2398. 2399. 2400. 2401.

2402.

2403. 2404. 2405.

2406.

2407. 2408.

2409. 2410. 2411.

2412. 2413.

2414.

U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). 9-0, SCALIA. 12pp. Noted at: 309b U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). 5-4, STEVENS. Dissents: Thomas, Rehnquist, O'Connor, Scalia. 148pp. Noted at: 114b, 186a, 507a Ullman v. U.S., 350 U.S. 422 (1956). 6-3, FRANKFURTER. Concurrence: Reed. Dissents: Douglas, Black, Reed. 33pp. Noted at: 238a Underhill v. Hernandez, 168 U.S. 250 (1897). 9-0, FULLER. 5pp. Noted at: 27a Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U.S. 280 (1968). 9-0, FORTAS. Concurrence: Black. 4pp. Noted at: 454a Union Bridge Co. v. U.S., 204 U.S. 364 (1907). 6-2, HARLAN. Dissents: Brewer, Peckham. Not voting: Moody. 40pp. Noted at: 30a, 315b Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 (1905). 7-2, BROWN. Concurrence: White. Dissents: Holmes, Fuller. 18pp. Noted at: 391a United Building & Construction Trades Council v. Mayor of Camden, 465 U.S. 208 (1984). 8-i, REHNQUIST. Dissent: Blackmun. 28pp. Noted at: 330a, 358b, 379b United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996). 9-0, SOUTER. 15pp. Noted at: 474b United Jewish Organizations v. Carey, 430 U.S. 144 (1977). 8-1, WHITE. Concurrences: Brennan, Stewart, Powell. Dissent: Burger. 44pp. Noted at: 212b, 535b United Mine Workers v. Gibbs, 383 U.S. 715 (1966). 8-0, BRENNAN. Concurrences: Harlan, Clark. Not voting: Warren. 29pp. Noted at: 344b United Mine Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967). 8-1, BLACK. Concurrence: Stewart. Dissent: Harlan. 18pp. Noted at: 197b, 288b United Mine Workers, U.S. v., 330 U.S. 258 (1947). 5-4, VINSON. Concurrences: Black, Frankfurter, Douglas, Jackson. Dissents: Black, Frankfurter, Douglas, Jackson, Murphy, Rudedge. 128pp. Noted at: 124a United Public Workers v. Mitchell, 330 U.S. 75 (1947). 4-3, REED. Concurrence: Frankfurter. Dissents: Black, Rutledge, Douglas. Not voting: Murphy, Jackson. 52pp. Noted at: 81a, 320a, 333a, 355b, 396a, 435a United States v.-, see name of the other party United States Civil Service Comm. v. Natl. Assn. of Letter Carriers, 413 U.S. 548 (1973). 6-3, WHITE. Dissents: Douglas, Brennan, Marshall. 53pp. Noted at: 333a, 396a United States Coin and Currency, U.S. v., 401 U.S. 715 (1971). 5-4, HARLAN. Concurrences: Black, Brennan. Dissents: White, Burger, Stewart, Blackmun. 29pp. Noted at: 330a United States Dept. of Commerce v. Montana, 503 U.S. 442 (1992). 9-0, STEVENS. 25pp. Noted at: 54a, 358a United States Dept. of Labor v. Triplett, 494 U.S. 715 (1990). 9-0, SCALIA. Concurrences: Stevens, Marshall, Brennan. 14pp. Noted at: 128b, 278b United States District Court, U.S. v., 407 U.S. 297 (1972). 8-0, POWELL. Concurrences: Burger, Douglas, White. Not voting: Rehnquist. 48pp. Noted at: 314a, 368a, 413a, 446b United States, Ex parte, 242 U.S. 27 (1916). 9-0, WHITE. 27pp. Noted at: 341a United States Postal Service v. Council of Greenburgh Civic Assn., 453 U.S. 114 (1981). 7-2, REHNQUIST. Concurrences: Brennan, White. Dissents: Marshall, Stevens. 42pp. Noted at: 360b, 398a United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980). 7-2, REHNQUIST. Concurrence: Stevens. Dissents: Brennan, Marshall. 33pp. Noted at: 312a

TABLE OF C A S E S 2414a. 2415. 2416.

2417. 2418. 2419.

2420.

2421.

2422. 2423.

2424.

2425. 2426.

2427. 2428.

2429. 2430. 2431.

2432. 2433. 2434.

2435.

United States Shoe Corp., U.S. v., 118 S.Ct. 1290 (1998). 9-0, GINSBURG. 7pp. Noted at: 559a United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978). 7-2, POWELL. Dissents: White, Blackmun. 45pp. Noted at: 109b United States Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977). 6-3, BLACKMUN. Concurrence: Burger. Dissents: Brennan, White, Marshall. 62pp. Noted at: 327a United Steelworkers v. R.H. Bouligny, 382 U.S. 145 (1965). 9-0, FORTAS. 9pp. Noted at: 147b United Steelworkers v. Weber, 443 U.S. 193 (1979). 7-2, BRENNAN. Concurrence: Blackmun. Dissents: Burger, Rehnquist. 63pp. Noted at: 37a United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971). 8-0, 7-1, 5-3, BLACK. Concurrences: Harlan, White, Blackmun. Dissents: Harlan, White, Blackmun. Not voting: Stewart. 25pp. Noted at: 197b, 288b University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182 (1990). 9-0, BLACKMUN. 21pp. Noted at: 24b Untermeyer v. Anderson, 276 U.S. 440 (1928). 6-3, McREYNOLDS. Concurrence: Sanford. Dissents: Holmes, Brandeis, Stone. 15pp. Noted at: 429a Uphaus v. Wyman, 360 U.S. 72 (1959). 5-4, CLARK. Dissents: Brennan, Warren, Black, Douglas. 37pp. Noted at: 109a, 258b Ursery, U.S. v., 518 U.S. 267 (1996). 9-0, 8-1, REHNQUIST. Concurrences: Kennedy, Scalia, Thomas, Stevens. Dissent: Stevens. 55pp. Noted at: 151b, 401a, 402a Usery v. Turner Elkhorn Mining Co., 428 U.S. 14 (1976). 7-2, MARSHALL. Concurrences: Burger, Powell, Stewart. Dissents: Stewart, Rehnquist. 51pp. Noted at: 429a, 501b, 546a Utah v. U.S., 394 U.S. 89 (1968). 8-0, PER CURIAM. Not voting: Marshall. 8pp. Noted at: 337a Vacco v. Quill, 117 S.Ct. 2293 (1997). 9-0, REHNQUIST. Concurrences: O'Connor, Stevens, Souter, Ginsburg, Breyer. 10pp. Noted at: 59b-6oa Valentine v. Chrestensen, 316 U.S. 52 (1942). 9-0, ROBERTS, ipp. Noted at: 105a Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982). 5-4, REHNQUIST. Dissents: Brennan, Marshall, Blackmun, Stevens. 52pp. Noted at: 400b Van Brocklin v. Anderson, 117 U.S. 151 (1886). 9-0, GRAY. 30pp. Noted at: 400b Vance v. Bradley, 440 U.S. 93 (1979). 8-1, WHITE. Dissent: Marshall. 32pp. Noted at: 39a Vance v. Terrazas, 444 U.S. 252 (1980). 5-4, WHITE. Concurrences: Marshall, Stevens. Dissents: Marshall, Stevens, Brennan, Stewart. 25pp. Noted at: 87a, 132b, 179a, 264b, 388b Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). 7-2, BLACK. Dissents: Harlan, Frankfurter. 19pp. Noted at: 148b Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869). 6-2, CHASE. Dissents: Nelson, Davis. 17pp. Noted at: 135a, 144a, 504b Vendo Co. v. Lektor-Vend Corp., 433 U.S. 623 (1977). 5-4, REHNQUIST. Concurrences: Blackmun, Burger. Dissents: Stevens, Brennan, White, Marshall. 44pp. Noted at: 48a Ventresca, U.S. v., 380 U.S. 102 (1965). 7-2, GOLDBERG. Dissents: Douglas, Warren. 22pp. Noted at: 381a

741

742

TABLE OF CASES 2436.

2437.

2438.

2439.

2440. 2441. 2442. 2443. 2444. 2445.

2446.

2447. 2448.

2449.

2450. 2451. 2452. 2453. 2454. 2455.

2456. 2457.

Verdugo-Urquidez, U.S. v., 494 U.S. 259 (1990). 6-3, REHNQUIST. Concurrences: Kennedy, Stevens. Dissents: Brennan, Marshall, Blackmun. 40pp. Noted at: 191b Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978). 7-0, REHNQUIST. Not voting: Blackmun, Powell. 40pp. Noted at: 32a Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995). 6-3, SCALIA. Concurrence: Ginsburg. Dissents: O'Connor, Stevens, Souter. 41pp. Noted at: 155a Victor v. Nebraska, 511 U.S. 1 (1994). 9-0, 7-2, 6-3, O'CONNOR. Concurrences: Kennedy, Ginsburg, Blackmun. Dissents: Blackmun, Souter. 38pp. Noted at: 413b Village of-, see name of the village Villamonte-Marquez, U.S. v., 462 U.S. 579 (1983). 6-3, REHNQUIST. Dissents: Brennan, Marshall, Stevens. 32pp. Noted at: 443b Virginia v. Tennessee, 148 U.S. 503 (1893). 9-0, FIELD. 26pp. Noted at: 107b Virginia v. West Virginia, 200 U.S. 1 (1911). 9-0, HOLMES. 36pp. Noted at: 43a Virginia v. West Virginia, 246 U.S. 565 (1918). 9-0, WHITE. 42pp. Noted at: 109b, 480a Virginia, Ex parte, 100 U.S. 339 (1879). 7-2, STRONG. Dissents: Field, Clifford. 32pp. Noted at: 477b Virginia, U.S. v., 518 U.S. 515 (1996). 7-1, GINSBURG. Concurrence: Rehnquist. Dissent: Scalia. Not voting: Thomas. 88pp. Noted at: 44oa-44ib, 461a, 487a Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). 8-1, BLACKMUN. Concurrences: Burger, Stewart. Dissent: Rehnquist. 42pp. Noted at: 105a, 387a, 412b Virginian Railway v. System No. 40 Federation, 300 U.S. 515 (1937). 9-0, STONE. 49pp. Noted at: 131b Vitek v. Jones, 445 U.S. 480 (1980). 5-4, WHITE. Concurrence: Powell. Dissents: Stewart, Burger, Rehnquist, Blackmun. 27pp. Noted at: 90a, 90b, 286b, 376a, 384b, 385b Vlandis v. Kline, 412 U.S. 441 (1973). 6-3, STEWART. Concurrences: Marshall, Brennan, White. Dissents: Burger, Rehnquist, Douglas. 28pp. Noted at: 370a Voight v. Wright, 141 U.S. 62 (1891). 8-0, BRADLEY. Not voting: Brown. 6pp. Noted at: 192a, 251a Voinovich v. Quilter, 507 U.S. 146 (1993). 9-0, O'CONNOR. 17pp. Noted at: 54b W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp. Intl., 493 U.S. 400 (1990). 9-0, SCALIA. upp. Noted at: 27b W.T. Grant Co., U.S. v., 345 U.S. 629 (1953). 7-2, CLARK. Dissents: Douglas, Black. 10pp. Noted at: 109a. Wabash, St. Louis & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886). 6-3, MILLER. Dissents: Bradley, Gray, White. 39pp. Noted at: 149a Wade, U.S. v., 388 U.S. 218 (1967). 5-4 (various coalitions), BRENNAN. Concurrence: Clark. Dissents: Warren, Douglas, Fortas, Black, White, Stewart, Harlan. 45pp. Noted at: 128a, 287a, 413b, 454a Wade, U.S. v., 504 U.S. 181 (1992). 9-0, SOUTER. 5pp. Noted at: 318a, 456b Wainwright v. Greenfield, 474 U.S. 284 (1986). 9-0, STEVENS. Concurrence: Rehnquist. 17pp. Noted at: 454b

TABLE OF CASES 2458.

2459.

2460.

2461. 2462. 2463. 2464.

2465. 2466.

2467.

2468. 2469. 2470.

2471.

2472. 2473. 2474. 2475.

2476

2477.

2478.

Wainwright v. Sykes, 433 U.S. 72 (1977). 7-2, REHNQUIST. Concurrences: Burger, Stevens, White. Dissents: Brennan, Marshall. 47pp. Noted at: 222b Wainwright v. Witt, 469 U.S. 412 (1985). 7-2, REHNQUIST. Concurrence: Stevens. Dissents: Brennan, Marshall. 52pp. Noted at: 270b, 533b Walker v. Birmingham, 388 U.S. 307 (1967). 5-4, STEWART. Dissents: Warren, Douglas, Brennan, Fortas. 43pp. Noted at: 250b, 348a, 523a, 531a Walker v. New Mexico & Southern Pacific Railroad Co., 165 U.S. 593 (1897). 9-0, BREWER. 13pp. Noted at: 508a Walker v. Sauvinet, 92 U.S. 90 (1875). 7-2, WAITE. Dissents: Field, Clifford. 4pp. Noted at: 265a, 519a Wallace v. Adams, 204 U.S. 415 (1907). 9-0, BREWER, npp. Noted at: 58a Wallace v. Jaffiree, 472 U.S. 38 (1985). 6-3, STEVENS. Concurrences: Powell, O'Connor. Dissents: Burger, White, Rehnquist. 76pp. Noted at: 312a, 361b Wallach v. Van Riswick, 92 U.S. 202 (1875). 9-0, STRONG. 12pp. Noted at: 60b Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985). 6-3, REHNQUIST. Concurrences: O'Connor, Blackmun. Dissents: Brennan, Marshall, Stevens. 67pp. Noted at: 128b, 278b Walton v. Arizona, no S. Ct. 3047 (1990). 5-4, WHITE. Concurrence: Scalia. Dissents: Brennan, Marshall, Blackmun, Stevens. 46pp. Noted at: 138a, 527a Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970). 8-1, BURGER. Concurrence: Brennan. Dissent: Douglas. 64pp. Noted at: 438b Ward v. Monroeville, Village of, 409 U.S. 57 (1972). 7-2, BRENNAN. Dissents: White, Rehnquist. 6pp. Noted at: 240a Ward v. Rock against Racism, 491 U.S. 781 (1989). 6-3, KENNEDY. Concurrence: Blackmun. Dissents: Marshall, Brennan, Stevens. 31pp. Noted at: 282b, 321b, 511a Warden v. Hayden, 387 U.S. 294 (1967). 8-1, BRENNAN. Concurrences: Black, Fortas, Warren. Dissent: Douglas. 32pp. Noted at: 304a, 443a, 445a Wardius v. Oregon, 412 U.S. 470 (1973). 9-0, MARSHALL. Concurrences: Burger, Douglas, npp. Noted at: 145a, 264a Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). 6-0, CHASE. 87pp. Noted at: 357b, 514a Washington v. Chrisman, 455 U.S. 1 (1982). 6-3, BURGER. Dissents: White, Brennan, Marshall. 15pp. Noted at: 447a Washington v. Confederated Colville Tribes, 447 U.S. 134 (1980). 5-4, WHITE. Concurrences: Brennan, Marshall, Stewart, Rehnquist. Dissents: Brennen, Marshall, Stewart, Rehnquist. 56pp. Noted at: 248a Washington v. Davis, 426 U.S. 229 (1976). 7-2, WHITE. Concurrence: Stevens. Dissents: Brennan, Marshall. 42pp. Noted at: 405b, 410b Washington v. Glucksberg, 117 S.Ct. 2258 (1997). 9-0, REHNQUIST. Concurrences: O'Connor, Stevens, Souter, Ginsburg, Breyer. 36pp. (plus 10pp. of concurrences digested at 117 S.Ct. 2302). Noted at: 59b Washington v. Harper, 494 U.S. 210 (1990). 6-3, KENNEDY. Concurrences: Blackmun, Stevens, Brennan, Marshall. Dissents: Stevens, Brennan, Marshall. 48pp. Noted at: 286b, 301a, 376b, 384b

743

744

T A B L E OF C A S E S 2479. 2480. 2481. 2482. 2483. 2484.

2485. 2486.

2487.

Washington v. Seattle School District No. 1, 458 U.S. 457 (1982). 5-4, BLACKMUN. Dissents: Powell, Burger, Rehnquist, O'Connor. 45pp. Noted at: 76b Washington v. Texas, 388 U.S. 14 (1967). 9-0, WARREN. Concurrence: Harlan. 10pp. Noted at: nib, 246a Washington ex rei. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). 9-0, BUTLER. 7pp. Noted at: 416b Washington-Southern Co. v. Baltimore Co., 263 U.S. 629 (1924). 9-0, BRANDEIS. 12pp. Noted at: 264a Washington, U.S. v., 431 U.S. 181 (1977). 7-2, BURGER. Dissents: Brennan, Marshall. 14pp. Noted at: 217b Waters v. Churchill, 511 U.S. 661 (1994). 7-2, 4-3-2, O'CONNOR. Concurrences: Souter, Scalia. Dissents: Stevens, Blackmun. 40pp. Noted at: 395b Watkins v. U.S., 354 U.S. 178 (1957). 7-0, MARSHALL. 17pp. Noted at: 258a, 258b, 453b Watkins, Ex parte, 28 U.S. (3 Pet.) 193 (1830). 6-1, WARREN. Concurrence: Frankfurter. Dissent: Clark. Not voting: Burton, Whittaker. 56pp. Noted at: 221b Watson, U.S. v., 423 U.S. 411 (1976). 7-2, WHITE. Concurrences: Powell, Stewart. Dissents: Marshall, Brennan. 48pp. Noted at: 53b

2488.

2489. 2490. 2491. 2492. 2493. 2494. 2495.

2496. 2497. 2498. 2499.

2500. 2501. 2502.

Watts, U.S. v., 117 S.Ct. 633 (1997). 7-2, PER CURIAM. Concurrences: Scalia, Breyer. Dissents: Stevens, Kennedy. 12pp. Noted at: 153a, 456b Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). 7-0, MARSHALL. 49pp. Noted at: 140a, 264b, 383b Wayte v. U.S., 470 U.S. 598 (1985). 7-2, POWELL. Dissents: Marshall, Brennan. 34pp. Noted at: 393a Weatherford v. Bursey, 429 U.S. 545 (1977). 7-2, WHITE. Dissents: Marshall, Brennan. 24pp. Noted at: 144b Weaver v. Graham, 450 U.S. 24 (1981). 9-0, MARSHALL. Concurrences: Blackmun, Burger, Rehnquist. 15pp. Noted at: 174b Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972). 8-1, POWELL. Concurrence: Blackmun. Dissent: Rehnquist. 21pp. Noted at: 235b Weber v. Freed, 239 U.S. 325 (1915). 9-0, WHITE. 6pp. Noted at: 313a Webster v. Reproductive Health Services, 492 U.S. 490 (1989). 5-4, REHNQUIST. Concurrences: O'Connor, Scalia, Blackmun, Brennan, Marshall, Stevens. Dissents: Stevens, Blackmun, Brennan, Marshall. 83pp. Noted at: 19a, 21b Weeks v. U.S., 232 U.S. 383 (1914). 9-0, DAY. 16pp. Noted at: 175b, 442b, 445a, 463b Weems v. U.S., 217 U.S. 349 (1910). 7-2, McKENNA. Dissents: White, Holmes. 65pp. Noted at: 392a, 402b Weinberger v. Salfi, 422 U.S. 749 (1975). 6-3, REHNQUIST. Dissents: Douglas, Brennan, Marshall. 56pp. Noted at: 370a Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). 8-0, BRENNAN. Concurrences: Powell, Burger, Rehnquist. Not voting: Douglas. 20pp. Noted at: 545b Weiss v. U.S., 510 U.S. 163 (1994). 9-0, REHNQUIST. Concurrences: Souter, Ginsburg, Scalia. 37pp. Noted at: 51b, 249b Welsh v. U.S., 398 U.S. 333 (1970). 6-3, BLACK. Concurrence: Stevens. Dissents: White, Burger, Stewart. 42pp. Noted at: 199a Welton v. Missouri, 91 U.S. 275 (1876). 9-0, FIELD. 8pp. Noted at: 502b

T A B L E OF C A S E S 2503. 2504.

2505. 2506.

2507. 2508. 2509.

2510. 2511.

2512. 2513. 2514. 2515. 2516.

2517. 2518. 2519.

2520. 2521. 2522. 2523. 2524. 2525. 2526.

Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142 (1980). 8-1, WHITE. Concurrence: Stevens. Dissent: Rehnquist. 14pp. Noted at: 461a, 545b Wesberry v. Sanders, 376 U.S. 1 (1964). 6-3, BLACK. Concurrence: Clark. Dissents: Clark, Harlan, Stewart. 49pp. Noted at: 53b, 346a West v. Kansas Gas Co., 221 U.S. 229 (1911). 6-3, McKENNA. Dissents: Holmes, Lurton, Hughes. 15pp. Noted at: 114b West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 5-4, HUGHES. Dissents: Sutherland, Van Devanter, McReynolds, Butler. 35pp. Noted at: 131b, 160b, 200a, 275a, 289b, 306b, 373a, 523a West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994). 7-2, STEVENS. Concurrence: Scalia. Dissents: Rehnquist, Blackmun. 32pp. Noted at: 503b West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507 (1848). 8-1, DANIEL. Dissent: Wayne. 43pp. Noted at: 326b West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). 6-3, JACKSON. Concurrences: Black, Douglas, Murphy. Dissents: Frankfurter, Roberts, Reed. 48pp. Noted at: 191a, 199a, 201a, 201b, 469b Westbrook v. Balkcom, 449 U.S. 999 (1980). 5-4, PER CURIAM. Dissents: Brennan, Marshall, Stewart, White. 5pp. Noted at: 436a Westside Community Board of Education v. Mergens, 496 U.S. 226 (1990). 8-1, O'CONNOR. Concurrences: Kennedy, Scalia, Marshall, Brennan. Dissent: Stevens. 66pp. Noted at: 439b Whalen v. Roe, 429 U.S. 589 (1977). 9-0, STEVENS. Concurrences: Brennan, Stewart. 21pp. Noted at: 377a Wheat v. U.S., 486 U.S. 153 (1988). 5-4, REHNQUIST. Dissents: Marshall, Brennan, Stevens, Blackmun. 20pp. Noted at: 128b Wheeler v. Jackson, 137 U.S. 245 (1890). 9-0, HARLAN. 14pp. Noted at: 484a Wheeler, U.S. v., 435 U.S. 313 (1978). 8-0, STEWART. Not voting: Brennan. 20pp. Noted at: 248a White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). 6-3, MARSHALL. Concurrences: Powell. Dissents: Stevens, Stewart, Rehnquist. 24pp. Noted at: 248a WTiite v. Maryland, 373 U.S. 59 (1963). 9-0, PER CURIAM. 2pp. Noted at: 128a White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983). 7-2, REHNQUIST. Concurrences: Blackmun, White. Dissents: Blackmun, White. 22pp. Noted at 299a White v. Regester, 412 U.S. 755 (1973). 6-3, WHITE. Concurrences: Brennan, Douglas, Marshall. Dissents: Brennan, Douglas, Marshall. 16pp. Noted at: 312b, 484a White v. Illinois, 502 U.S. 346 (1992). 9-0, REHNQUIST Concurrences: Thomas, Scalia. 21pp. Noted at: 113b, 114a White v. Weiser, 412 U.S. 783 (1973). 9-0, WHITE. Concurrences: Powell, Burger, Rehnquist, Marshall. 17pp. Noted at: 333b White, U.S. v., 322 U.S. 694 (1944). 9-0, MURPHY. Concurrences: Roberts, Frankfurter, Jackson. 12pp. Noted at: 127a, 454a Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560 (1971). 6-3, HARLAN. Dissents: Black, Burger, Blackmun. 15pp. Noted at: 381a Whitney v. California, 274 U.S. 357 (1927). 9-0, SANFORD. Concurrence: Brandeis. 24pp. Noted at: 205b, 301b, 490a, 497b Whren v. U.S., 517 U.S. 806 (1996). 9-0, SCALIA. 13pp. Noted at: 444a WHYY v. Glassboro, 393 U.S. 117 (1968). 8-i, PER CURIAM. Dissent: Black. 4pp. Noted at: 502a

745

746

T A B L E OF C A S E S 2527. 2528. 2529.

2530. 2531. 2532. 2.533. 2534. 2535. 2536.

2537. 2538 2539. 2540. 2541. 2542. 2543. 2544. 2545. 2546.

2547.

2548. 2549. 2550. 2551.

Wickard v. Filburn, 317 U.S. hi (1942). 9-0, JACKSON. 23pp. Noted at: 41a, 100b, 102b, 255b Widmar v. Vincent, 454 U.S. 263 (1981). 8-1, POWELL. Concurrence: Stevens. Dissent: White. 27pp. Noted at: 397b, 439b, 487b Wieman v. Updegraff, 344 U.S. 183 (1952). 8-0, CLARK. Concurrences: Black, Douglas, Frankfurter. Not voting: Jackson. 15pp. Noted at: 87a, 302b Wiener v. U.S., 357 U.S. 349 (1958). 9-0, FRANKFURTER. 8pp. Noted at: 52b Wilcox v. McConnel, 38 U.S. (13 Pet.) 498 (1839). 9-0, BARBOUR. 21pp. Noted at: 368b Wilkerson v. Utah, 99 U.S. 130 (1878). 9-0, CLIFFORD. 8pp. Noted at: 402b Wilkinson v. Jones, 800 F.2d 989 (10th Cir.), aff'd, 480 U.S. 926 (1986). PER CURIAM, ipp. Noted at: 77a Will, U.S. v., 449 U.S. 200 (1980). 8-0, BURGER. Not voting: Blackmun. 31pp. Noted at: ma Williams v. Bruffy, 96 U.S. 176 (1877). 9-0, FIELD. 17pp. Noted at: 43b Williams v. Florida, 399 U.S. 78 (1970). 6-3, WHITE. Concurrences: Burger, Harlan, Stewart, Black, Douglas. Dissents: Black, Douglas, Marshall. 40pp. Noted at: 245b, 271a Williams v. Georgia, 349 U.S. 375 (1955). 6-3, FRANKFURTER. Dissents: Clark, Reed, Minton. 33pp. Noted at: 29a, 117a Williams v. Illinois, 399 U.S. 235 (1970). 8-0, BURGER. Concurrence: Harlan. Not voting: Blackmun. 32pp. Noted at: 544b Williams v. New York, 337 U.S. 241 (1949). 7-2, BLACK. Dissents: Murphy, Rutledge. 13pp. Noted at: 456a Williams v. North Carolina, 317 U.S. 287 (1942). 7-2, DOUGLAS. Dissents: Murphy, Jackson. 38pp. Noted at: 148a Williams v. North Carolina, 325 U.S. 226 (1945). 6-3, FRANKFURTER. Dissents: Rutledge, Black, Douglas. 53pp. Noted at: 148a Williams v. Rhodes, 393 U.S. 23 (1968). 6-3, BLACK. Dissents: Warren, White, Stewart. 48pp. Noted at: 25a Williams v. Standard Oil Co., 278 U.S. 235 (1929). 8-1, SUTHERLAND. Dissent: Holmes. 11pp. Noted at: 35b, 160a Williams v. U.S., 289 U.S. 553 (1933). 9-0, SUTHERLAND. 29pp. Noted at: 58a, 130b Williams v. U.S., 341 U.S. 97 (1951). 5-4, DOUGLAS. Dissents: Black, Frankfurter, Jackson, Minton. 8pp. Noted at: 94a Williams v. U.S., 401 U.S. 646 (1971). 8-0, 6-2, WHITE. Concurrences: Stewart, Brennan, Harlan, Marshall, Black. Dissents: Harlan, Marshall. 21pp. Noted at: 446a Williams v. Vermont, 472 U.S. 14 (1985). 6-3, WHITE. Concurrence: Brennan. Dissents: Blackmun, Rehnquist, O'Connor. 24pp. Noted at: 525a Williams v. Zbaraz, 448 U.S. 358 (1980). 5-4, STEWART. Dissents: Brennan, Marshall, Blackmun, Stevens. 12pp. Noted at: 21a Williams, U.S. v., 302 U.S. 46 (1937). 9-0, BUTLER. 6pp. Noted at: 56b Williams, U.S. v., 504 U.S. 36 (1992). 5-4, SCALLA. Dissents: Stevens, Blackmun, O'Connor, Thomas. 37pp. Noted at: 217b Williamson v. Lee Optical Co. of Oklahoma, Inc., 348 U.S. 483 (1955). 8-0, DOUGLAS. Not voting: Harlan. 9pp. Noted at: 159a, 330b, 334a, 387a, 412a

TABLE OF CASES

2552.

Williamson v. Osenton, 232 U.S. 619 (1914). 9-0, HOLMES. 8pp. Noted at: 428a 2553 Williamson v. U.S., 207 U.S. 425 (1908). 9-0, WHITE. 38pp. Noted at: 238a 2554. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). 7-1, BLACKMUN. Concurrences: Brennan, Stevens. Dissent: White. Not voting: Powell. 35pp. Noted at: 435b 2.555. Willing v. Chicago Auditorium Assn., 277 U.S. 274 (1928). 9-0, BRANDEIS. Concurrence: Stone. 18pp. Noted at: 139a 2556. Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829). 7-0, MARSHALL. 8pp. Noted at: 73b, 149a 2557. Wilson v. Arkansas, 514 U.S. 927 (1995). 9-0, THOMAS, npp. Noted at: 321b 2558. Wilson v. New, 243 U.S. 332 (1917). 5-4, WHITE. Concurrence: McKenna. Dissents: Day, Pitney, McReynolds, Van Devanter. 58pp. Noted at: 166a 2.559. Wilson v. Schnettler, 365 U.S. 381 (1961). 6-3, WHITTAKER. Concurrence: Stewart. Dissents: Douglas, Warren, Brennan. 18pp. Noted at: 463b 2560. Wilson v. Seiter, 501 U.S. 294 (1991). 9-0, SCALLA. Concurrences: White, Marshall, Blackmun, Stevens. 18pp. Noted at: 402b 2561. Wilson v. U.S., 221 U.S. 361 (1911). 8-1, HUGHES. Dissents: McKenna. 34pp. Noted at: 127a 2562. Wilson, Ex parte, 114 U.S. 417 (1885). 9-0, GRAY. 13pp. Noted at: 133b, 249b 2563. Wilson, U.S. v., 32 U.S. (7 Pet.) 150 (1833). 7-0, MARSHALL. 14pp. Noted at: 340b 2564. Winship, In re, 397 U.S. 358 (1970). 6-3, BRENNAN. Concurrence: Harlan. Dissents: Burger, Stewart, Black. 29pp. Noted at: 273b, 388a, 388b, 413a 2565. Winston v. Lee, 470 U.S. 753 (1985). 9-0, BRENNAN. Concurrences: Blackmun, Rehnquist, Burger. 15pp. Noted at: 301a, 445a 2566. Wisconsin v. Constantineau, 400 U.S. 433 (1971). 6-3, DOUGLAS. Dissents: Burger, Blackmun, Black. 12pp. Noted at: 23a, 286b, 427a 2567. Wisconsin v. Mitchell, 508 U.S. 476 (1993). 9-0, REHNQUIST. 15pp. Noted at: 226b 2568. Wisconsin v. New York, City of, 517 U.S. 1 (1996). 9-0, REHNQUIST. 24pp. Noted at: 83a 2569. Wisconsin v. Yoder, 406 U.S. 205 (1972). 6-1, BURGER. Concurrences: Stewart, Brennan, White. Dissent: Douglas. Not voting: Powell, Rehnquist. 44pp. Noted at: 134b, 161a, 201b, 202a, 231a, 272b, 341b, 418b 2569a. Wisconsin Department of Corrections v. Schacht, 118 S.Ct. 2047 (1998). 9-0, BREYER. Concurrence: Kennedy, npp. Noted at: 564a 2570. Wise v. Lipscomb, 437 U.S. 535 (1978). 6-3, WHITE. Concurrences: Powell, Burger, Blackmun, Rehnquist, Stewart. Dissents: Marshall, Brennan, Stevens. 21pp. Noted at: 312b 2571. Wissner v. Wissner, 338 U.S. 655 (1950). 6-3, CLARK. Dissents: Minton, Frankfurter, Jackson. 10pp. Noted at: 56b 2572. Witherspoon v. Illinois, 391 U.S. 510 (1968). 6-3, STEWART. Dissents: Black, Harlan, White. 33pp. Noted at: 270b, 533a 2.573. Withrow v. Larkin, 421 U.S. 35 (1975). 9-0, WHITE. 25pp. Noted at: 30a

747

748

TABLE OF 2574.

2575. 2576.

2577. 2578.

2579.

2579a. 2580.

2581. 2582. 2583. 2584.

2585. 2586. 2587. 2588. 2589. 2590. 2591. 2592.

2593. 2594. 2595.

CASES

Withrow v. Williams, 507 U.S. 680 (1993). 9-0, 5-4, SOUTER. Concurrences: O'Connor, Rehnquist, Scalia, Thomas. Dissents: O'Connor, Rehnquist, Scalia, Thomas. 45pp. Noted at: 222b Witte v. U.S., 515 U.S. 389 (1995). 9-0, 8-1, O'CONNOR. Concurrences: Scalia, Stevens. Dissent: Stevens. 28pp. Noted at: 153a Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 (1986). 9-0, MARSHALL. Concurrences: White, Powell, Burger, Rehnquist, O'Connor. 13pp. Noted at: 438b WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). 6-3, WARREN. Dissents: Harlan, Stewart, Clark. 23pp. Noted at: 53b Wolf v. Colorado, 338 U.S. 25 (1949). 6-3, FRANKFURTER. Concurrence: Black. Dissents: Rutledge, Murphy, Douglas. 22pp. Noted at: 175b, 245b, 442b, 463b Wolff v. McDonnell, 418 U.S. 539 (1974). 6-3, WHITE. Concurrences: Douglas, Marshall, Brennan. Dissents: Douglas, Marshall, Brennan. 63pp. Noted at: 128a, 132a, 342a, 375a, 376a, 384b Wolff Packing Company v. Court of Industrial Relations, 262 U.S. 522 (1923). 9-0, TAFT. 22pp. Noted at: 35b Wolman v. Walter, 433 U.S. 229 (1977). 7-2 (parts I, V, VII, VIII), 6-3 (parts III, IV, VI), 5-4 (PART II), BLACKMUN. Concurrences and dissents (all except Blackmun): Burger, Rehnquist, Stewart, White, Brennan, Marshall, Powell, Stevens. 38pp. Noted at: 166b, 282a, 438b Wolston v. Reader's Digest Assn., 443 U.S. 157 (1979). 8-1, REHNQUIST. Concurrences: Blackmun, Marshall. Dissent: Brennan. 16pp. Noted at: 397a Women's Sportswear Mfg. Assn., U.S. v., 336 U.S. 460 (1949). 9-0, JACKSON. 5pp. Noted at: 255b Wong Kim Ark, U.S. v., 169 U.S. 649 (1898). 6-2, GRAY. Dissents: Fuller, Harlan. Not voting: McKenna. 84pp. Noted at: 89a, 236a Wong Sun v. U.S., 371 U.S. 471 (1963). 5-4, BRENNAN. Concurrence: Douglas. Dissents: Clark, Harlan, Stewart, White. 34pp. Noted at: 380b Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). 8-1, JACKSON. Dissent: Reed. 23pp. Noted at: 28b, 31a, 142a Wood v. Bartholomew, 516 U.S. 1 (1995). 5-4, PER CURIAM. Dissents: Stevens, Souter, Ginsburg, Breyer. 9pp. Noted at: 145a Wood v. Georgia, 370 U.S. 375 (1962). 7-2, WARREN. Dissents: Harlan, Clark. 29pp. Noted at: 124a Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869). 8-1, MILLER. Dissent: Nelson. 25pp. Noted at: 242a Woodruff v. Trapnall, 51 U.S. (10 How.) 190 (1851). 5-4, McLEAN. Dissents: Catron, Daniel, Nelson, Grier. 29pp. Noted at: 68b Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). 9-0, DOUGLAS. Concurrences: Frankfurter, Jackson. 10pp. Noted at: 312a, 358a, 424a, 539a Woods v. Stone, 333 U.S. 472 (1948). 8-1, JACKSON. Concurrence: Frankfurter. Dissent: Douglas. 11pp. Noted at: 424a Woodson v. North Carolina, 428 U.S. 280 (1976). 5-4, STEWART. Concurrences: Brennan, Marshall. Dissents: White, Burger, Rehnquist, Blackmun. 45pp. Noted at: 137b Wooley v. Maynard, 430 U.S. 705 (1977). 6-3, BURGER. Dissents: White, Blackmun, Rehnquist. 18pp. Noted at: 199a, 469b Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515 (1832). 6-1, MARSHALL. Concurrence: McLean. Dissent: Baldwin. 83pp. Noted at: 248a World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). 6-3, WHITE. Dissents: Marshall, Blackmun, Brennan. 34pp. Noted at: 269a

TABLE OF CASES 2596. 2597. 2598. 2599.

2600. 2601.

2602.

2603.

2604. 2605. 2606.

2607. 2608. 2609. 2610. 2611. 2612. 2613. 2614. 2615. 2616. 2617.

2618. 2619.

Wright v. Union Central Insurance Co., 304 U.S. 502 (1938). 8-0, REED. Not voting: Cardozo. 17pp. Noted at: 66a Wright v. United States, 302 U.S. 583 (1938). 7-2, HUGHES. Dissents: Stone, Brandeis. 27pp. Noted at: 353b Wright v. Vinton Branch of Mountain Trust Bank of Roanoke, 300 U.S. 440 (1937). 9-0, BRANDEIS. 31pp. Noted at: 66a, 131b, 327b Wright v. West, 505 U.S. 277 (1992). 9-0 (various coalitions), THOMAS. Concurrences: O'Connor, Blackmun, Stevens, White, Kennedy, Souter. 40pp. Noted at: 223b, 436b Wrightwood Dairy Co., U.S. v., 315 U.S. no (1942). 8-0, STONE. Not voting: Roberts. 17pp. Noted at: 41a Wyatt v. Cole, 504 U.S. 158 (1992). 6-3, O'CONNOR. Concurrences: Kennedy, Scalia. Dissents: Rehnquist, Souter, Thomas. 23pp. Noted at: 239b Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). 5-4, POWELL. Concurrences: O'Connor, White. Dissents: Marshall, Brennan, Blackmun, Stevens. 54pp. Noted at: 37b Wyman v. James, 400 U.S. 309 (1971). 6-3, BLACKMUN. Concurrence: White. Dissents: Douglas, Marshall, Brennan. 39pp. Noted at: 445a, 522b Wyoming v. Oklahoma, 502 U.S. 437 (1992). 6-3, WHITE. Dissents: Scalia, Rehnquist, Thomas. 41pp. Noted at: 150a X-Citement Video, Inc., U.S. v., 513 U.S. 64 (1994). 7-2, REHNQUIST. 24pp. Noted at: 34b, 121b Yakus v. U.S., 321 U.S. 414 (1944). 6-3, STONE. Dissents: Rutledge, Roberts, Murphy. 76pp. Noted at: 132b, 164a, 373a, 373b, 424a Yamashita, In re, 327 U.S. 1 (1946). 7-2, STONE. Dissents: Rutledge, Murphy. 82pp. Noted at: 539a Yamataya v. Fisher, 189 U.S. 86 (1903). 7-2, HARLAN. Dissents: Brewer, Peckham. 17pp. Noted at: 43a, 142a, 228b Yarbrough, Ex parte, no U.S. 651 (1884). 9-0, MILLER. 16pp. Noted at: 162a, 534b Yaselli v. Goff, 275 U.S. 503 (1927). 9-0, PER CURIAM, ipp. Noted at: 239a, 394a, 394b Yates v. U.S., 354 U.S. 298 (1957). 6-3, HARLAN. Dissents: Black, Douglas, Clark. 53pp. Noted at: 109a, 490b Ybarra v. Illinois, 444 U.S. 85 (1979). 6-3, STEWART. Dissents: Burger, Blackmun, Rehnquist. 25pp. Noted at: 380b, 444a Yee v. City of Escondido, 503 U.S. 519 (1992). 9-0, O'CONNOR. Concurrences: Blackmun, Souter. 21pp. Noted at: 424b Yeiser v. Dysart, 267 U.S. 540 (1925). 9-0, HOLMES. 2pp. Noted at: 278b Yerger, Ex parte, 75 U.S. (8 Wall.) 85 (1868). 8-0, CHASE. 22pp. Noted at: 304b Yick Wo v. Hopkins, 118 U.S. 356 (1886). 9-0, MATTHEWS. 19pp. Noted at: 169a, 348b, 405a, 477b, 483b Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). 5-4, STEVENS. Concurrence: Powell. Dissents: Stewart, Brennan, Blackmun, Marshall. 46pp. Noted at: 34a, 323a Young v. Harper, 117 S.Ct. 1148 (1997). 9-0, THOMAS. 7pp. Noted at: 342a Young, Ex parte, 209 U.S. 123 (1908). 8-1, PECKHAM. Dissent: Harlan. 82pp. Noted at: 250b, 481a, 481b

749

750

TABLE OF C A S E S 2620.

2621. 2622.

2623.

2624.

2625. 2626.

2627. 2628.

2629. 2630.

2631.

2632. 2633. 2634.

2635.

Youngberg v. Romeo, 457 U.S. 307 (1982). 9-0, POWELL. Concurrences: Blackmun, Brennan, O'Connor, Burger. 25pp. Noted at: 90a, 215a, 303b, 402b, 488a, 515a Younger v. Gilmore, 404 U.S. 15 (1971). 9-0, PER CURIAM, ipp. Noted at: 376a Younger v. Harris, 401 U.S. 37 (1971). 8-1, BLACK. Concurrences: Brennan, White, Marshall, Stewart, Harlan. Dissent: Douglas. 22pp. Noted at: 23a, 100a, 531a Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 6-3, BLACK. Concurrences: Jackson, Burton, Clark, Douglas, Frankfurter. Dissents: Vinson, Reed, Minton. 132pp. Noted at: 101a, 241b, 368a, 413a, 457b, 485a-b Zablocki v. Redhail, 434 U.S. 374 (1978). 8-1, MARSHALL. Concurrences: Burger, Stewart, Powell. Dissent: Rehnquist. 38pp. Noted at: 300a, 300b Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). 5-4, WHITE. Dissents: Powell, Brennan, Marshall, Stevens. 22pp. Noted at: 401a Zant v. Stephens, 462 U.S. 862 (1982). 7-2, STEVENS. Concurrences: White, Rehnquist. Dissents: Marshall, Brennan. 57pp. Noted at: 39b, 40a Zatko v. California, 502 U.S. 16 (1991). 7-2, PER CURIAM. Dissents: Stevens, Blackmun. Not voting: Thomas. 5pp. Noted at: 243a Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). 6-2, 5-3 (various coalitions), WHITE. Concurrences: Brennan, Marshall, O'Connor, Burger, Rehnquist. Dissents: Brennan, Marshall, O'Connor, Burger, Rehnquist. 54pp. Noted at: 105b Zemel v. Rusk, 381 U.S. 1 (1965). 6-3, WARREN. Dissents: Black, Douglas, Goldberg. 40pp. Noted at: 109a, 342b, 513b Zobel v. Williams, 457 U.S. 55 (1982). 8-1, BURGER. Concurrences: Brennan, Marshall, Blackmun, Powell, O'Connor. Dissent: Rehnquist. 30pp. Noted at: 71b, 450a Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993). 5-4, REHNQUIST. Dissents: Blackmun, Souter, Stevens, O'Connor. 24pp. Noted at: 121b, 122a, 438b, 439a Zorach v. Clauson, 343 U.S. 306 (1952). 6-3, DOUGLAS. Dissents: Jackson, Frankfurter, Black. 16pp. Noted at: 418a Zschernig v. Miller, 389 U.S. 429 (1968). 8-1, DOUGLAS. Concurrence: Harlan. Dissent: White. 34pp. Noted at: 192b Zurcher v. Stanford Daily, 436 U.S. 547 (1978). 6-3, WHITE. Concurrence: Powell. Dissents: Stewart, Marshall, Stevens. 37pp. Noted at: 207a Zwickler v. Koota, 389 U.S. 241 (1967). 9-0, BRENNAN. Concurrence: Harlan. 17pp. Noted at: 338a

FURTHER

READING

The following thirteen sets of books proved indispensable in writing this one. The reader who wishes more detailed discussion of the constitutional themes discussed here, or excerpts from most of the leading cases, should consult the following works: Johnny H. Killian and George A. Costello, eds., The Constitution of the United States of America: Analysis and Interpretation (Washington, DC: Congressional Research Service, Library of Congress, 1996); this edition is complete through 1992. For the most part I used the earlier version, Johnny H. Killian and Leland H. Beck, eds., The Constitution of the United States: Analysis and Interpretation (Washington, DC: Government Printing Office, 1987) and Johnny H. Killian and George A. Costello, eds., 1990 Supplement (Washington, DC: Government Printing Office, 1991). Prepared and periodically updated by the Congressional Research Service of the Library of Congress, this annotation is the most exhaustive one-volume work on the subject. The most comprehensive multivolume work accessible to the lay reader is Philip B. Kurland and Ralph Lerner, The Founders' Constitution (Chicago: University of Chicago Press, 5 vols., 1987). Leading treatises include Laurence H. Tribe, American Constitutional Law (Mineóla, NY: Foundation, 2nd ed., 1988); John E. Nowak and Ronald D. Rotunda, Constitutional Law (St. Paul: West, 5th ed., 1995); and Wayne R. LaFave and Jerold H. Israel, Criminal Procedure (St. Paul: West, 2nd ed., 1992). Casebooks to which I am greatly indebted are Gerald Gunther, Constitutional Law (Westbury: Foundation, 12th ed., 1991, with annual supplements) (the most recent edition is Gerald Gunther and Kathleen M. Sullivan, Constitutional Law, 13th ed., 1997); William B. Lockhart, Yale Kamisar, Jesse H. Choper, and Steven H. Shiffrin, Constitutional Law, Cases, Comments, Questions (St. Paul: West, 7th ed., 1991; 8th ed., 1996); and David M. O'Brien, Constitutional Law and Politics (New York: Norton, 1991), in two volumes and annual supplements: Struggles for Power and Governmental Accountability (vol. 1) and Civil Rights and Civil Liberties (vol. 2). The O'Brien volumes are chock full of interesting summaries and sidelights on the Court and many of its decisions. I have also profited from William W. Van Alstyne, First Amendment, Cases and Materials (Westbury: Foundation, 1991; 2nd ed., 1995); Stephen G. Breyer and Richard B. Stewart, Administrative Law and Regulatory Policy (Boston: Little, Brown, 2nd ed., 1985); and Paul A. Freund, Arthur E. Sutherland, Mark DeWolfe Howe, and Ernest J. Brown, eds., Constitutional Law, Cases and Other Problems (Boston: Little, Brown, 2nd ed., 1961). Finally, much information about the modern Supreme Court and its workings is contained in Elder Witt, Congressional Quarterly's Guide to the U.S. Supreme Court (Washington, DC: Congressional Quarterly, 1990). A comprehensive and sensitive history of the Supreme Court's treatment of the Constitution is told in David P Currie, The Constitution in the Supreme Court: The First Hundred Years (Chicago: University of Chicago Press, 1985) and The Constitution in the Supreme Court: The Second Century, 1888—1986 (Chicago: University of Chicago Press, 1990). More general narratives of the course of constitutional law include my own The Enduring Constitution (St. Paul: West, 1987) and Page

752

FURTHER R E A D I N G Smith, The Constitution, A Documentary and Narrative History (New York: Morrow Quill, 1980). A highly readable account of the Constitution's popular reception during the past two centuries is Michael Kämmen, A Machine That Would Go ofltselfi The Constitution in American Culture (New York: Knopf, 1986). Following are suggestions for further reading about selected topics on constitutional history and law. Historical and Intellectual Origins of the Constitution. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967); Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Little, Brown, 1966); Mitchell and Louise Broadus, A Biography of the Constitution of the United States (New York: Oxford University Press, 1964); Daniel A. Färber and Suzanna Sherry, A History of the American Constitution (St. Paul: West, 1990); Max Farrand, The Framing of the Constitution of the United States (New Haven, CT: Yale University Press, 1913); Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, rev. ed. in 3 vols., 1937); James H. Hutson, ed., Supplement to Max Farrand's The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1987); Leonard W. Levy and Dennis J. Mahoney, eds., The Framing and Ratification of the Constitution (New York: Macmillan, 1987); Leonard W. Levy, Essays on the Making of the Constitution (New York: Oxford University Press, 1969); Jackson Turner Main, The AntiFederalists: Critics of the Constitution, 1781—1788 (Chapel Hill: University of North Carolina Press, 1961); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University of Kansas Press, 1985); Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: University of Chicago Press, 1988); Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (Baltimore: Johns Hopkins University Press, 1979); Clinton Rossiter, 1/8/: The Grand Convention (New York: Macmillan, 1966); Gordon S. Wood, The Creation of the American Republic, 1776-1787 (New York: Norton, 1969). Constitutional Intent and Interpretation. Sotirios A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984); Philip Bobbit, Constitutional Fate (New York: Oxford University Press, 1982); Robert H. Bork, The Tempting of America: The Political Seductions of the Law (New York: Simon & Schuster, 1990); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980) ; John H. Garvey and T. Alexander AleinikofF, eds., Modern Constitutional Theory: A Reader (St. Paul: West, 2d ed., 1991); Alexander Hamilton, James Madison, John Jay, The Federalist Papers (New York: New American Library, Rossiter ed., 1961); Leonard W. Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988); Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986); J. Roland Pennock and John W. Chapman, eds., Constitutionalism (New York: New York University Press, 1979); Michael J. Perry, The Constitution, Courts, and Human Rights (New Haven: Yale University Press, 1982); Jack N. Rakove, ed., Interpreting the Constitution: The Debate over Original Intent (Boston: Northeastern University Press, 1990); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making ofthe Constitution (New York: Knopf, 1996); Cass R. Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993); Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988); Harry H. Wellington, Interpreting the Constitution: The Supreme Court and the Process of Adjudication (New Haven, CT: Yale University Press, 1990). Amending the Constitution. Richard B. Bernstein with Jerome Agel, Amending America (New York: Times Books, 1993); Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton, NJ: Princeton University Press, 1995). Constitutional History. Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification (New York: The

FURTHER R E A D I N G Library of America, 2 vols., 1993); Louis Fisher, Constitutional Conflicts between Congress and the President (Princeton, NJ: Princeton University Press, 1985); Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1855-1875 (New York: Harper & Row, 1982); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (Boston: Houghton Mifflin, 1975); Leonard W. Levy, Judgments, Essays on American Constitutional History (Chicago: Quadrangle, 1972); Paul L. Murphy, The Constitution in Crisis Times (New York: Harper & Row, 1972); Arthur E. Sutherland, Constitutionalism in America (New York: Blaisdell, 1965); William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760—1848 (Ithaca, NY: Cornell University Press, 1977); C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 3rd rev. ed., 1974)The First Amendment. C. Edwin Baker, Human Liberty and Freedom of Speech (New York: Oxford University Press, 1989); Zechariah Chafee, Jr., Free Speech in the United States (Cambridge, MA: Harvard University Press, 1941); Kent Greenawalt, Fighting Words: Individuals, Communities, and Liberties of Speech (Princeton, NJ: Princeton University Press, 1995); Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (New York: Westview Press, 1996); Kent Greenawalt, Speech, Crime, and the Uses of Language (New York: Oxford University Press, 1989); Nat Hentoff, Free Speech for Me—But Notfor Thee (New York: HarperCollins, 1992); Harry Kalven, Jr., A Worthy Tradition (Jamie Kalven, ed.) (New York: Harper & Row, 1988); Leonard W. Levy, Emergence of a Free Press (New York: Oxford University Press, 1985); Jonathan Rauch, Kindly Inquisitors (Chicago: University of Chicago Press, 1993); Rodney A. Smolla, Free Speech in an Open Society (New York: Vintage, 1992); Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York: Scribner, 1995); Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1995). The Supreme Court. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962); Alexander M. Bickel, The Supreme Court and the Idea of Progress (New Haven, CT: Yale University Press, 1978); Charles L. Black, The People and the Court (New York: Macmillan, i960); Susan Low Bloch and Thomas G. Krattenmaker, eds., Supreme Court Politics: The Institution and Its Procedures {St. Paul: West, 1994); John Brigham, The Cult of the Court (Philadelphia: Temple University Press, 1987); Archibald Cox, The Court and the Constitution (Boston: Houghton Mifflin, 1987); Paul A. Freund, The Supreme Court of the United States: Its Business, Purposes, and Performance (Chicago: Northwestern University Press, 1949); Robert H. Jackson, The Struggle for Judicial Supremacy (New York: Vintage, 1941); Ronald Kahn, The Supreme Court and Constitutional Theory 1953-199} (Lawrence: University of Kansas Press, 1994); Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago Press, i960); Walter F. Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964); Robert F. Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley: University of California Press, 1989); David M. O'Brien, Storm Center: The Supreme Court in American Politics (New York: Norton, 1986); Leo Pfeffer, This Honorable Court: A History of the United States Supreme Court {Boston: Beacon, 1965); William H. Rehnquist, The Supreme Court: How It Was, How It Is (New York: Morrow, 1987); Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court, A Judicial Biography (New York: New York University Press, 1983); James F. Simon, The Center Holds: The Power Struggle Inside the Rehnquist Court (New York: Simon & Schuster, 1995); James F. Simon, In His Own Image: The Supreme Court in Richard Nixon's America (New York: David McKay, 1973); Laurence H. Tribe, God Save This Honorable Court (New York: Random House, 1985); Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, rev. ed., 2 vols., 1926); Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986); Bob Woodward and Scott Armstrong, The Brethren (New York: Simon & Schuster, 1980).

753

754

FURTHER R E A D I N G For a detailed history of the Supreme Court, consult the eleven volumes (so far) of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, published by Macmillan Publishing Co. as follows: vol. i: Julius Goebel, Jr., Antecedents and Beginnings to 1801 (1971); vol. 2: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981); vols. 3 and 4: G. Edward White (with the aid of Gerald Gunther), The Marshall Court and Cultural Change (1988); vol. 5: Carl B. Swisher, The Taney Period, 1856-64 (1974); vols. 6 and 7: Charles Fairman, Reconstruction and Reunion 1864—88 (1971,1987); supplement to vol. 7: Charles Fairman, Five Justices and the Electoral Commission of187/ (1988); vol. 8: Owen M. Fiss, National Expansion and Economic Growth, 1888-1910 (1983); vol. 9: Alexander M. Bickel (part 1) and Benno C. Schmidt, Jr. (part 2), The Judiciary and Responsible Government, 1910-21 (1984); vol. 10: Robert Cover, The Judiciary and Responsible Government, 1921—50 (1997); and vol. 11: Paul A. Freund, Depression, New Deal, and the Court in Crisis, 1950-41 (1998). Stories about Constitutional Cases. John A. Garraty, ed., Quarrels That Have Shaped the Constitution (New York: Harper Colophon, 1966); Gerald Gunther, John Marshall's Defense of McCulloch v. Maryland (Stanford, CA: Stanford University Press, 1969); Vincent C. Hopkins, Dred Scott's Case (New York: Atheneum, 1971); Peter Irons, The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (New York: Penguin, 1990); Richard Kluger, Simple Justice: Brown v. Board of Education and Black America's Struggle for Equality (New York: Knopf, 1976); Anthony Lewis, Gideon's Trumpet (New York: Vintage Books, 1964); Jethro K. Lieberman, Milestones! 200 Years of American Law (St. Paul: West, 1976); C. Peter Magrath, Yazoo: The Case of Fletcher v. Peck (New York: Norton, 1966); Alan F. Westin, ed., The Anatomy of a Constitutional Law Case (New York: Macmillan, 1958). Finding the Court's Cases and Analysis. The full text of Supreme Court decisions appears in U.S. Law Week, published by the Bureau of National Affairs in Washington, DC. Every year the Harvard Law Review in its November issue publishes statistics on the Court's last completed term and analyzes many of its most significant decisions. Preview of United States Supreme Court Cases, a monthly publication of the American Bar Association, 541 North Fairbanks Court, Chicago, IL 60611-3314, discusses in short compass the major issues presented by significant cases pending before the Court. Most major public libraries and all standard law libraries shelve the United States Reports, containing all decisions of the Supreme Court. Beginning around 1997, many World Wide Web sites contain full text of the Courts decisions. The following are websites likely to continue in their present locations: http://supct.law.cornell .edu/supct http://findlaw.com/casecode http://www.usscplus.com/ http://law.emory.edu/fedcts http://oyez.nwu.edu (this site has oral arguments as well as text)

NOTES

Some Thoughts on Interpreting the Constitution PAGE

7

George M. Dallas quoted in W. Hickey, The Constitution of the United States of America, 4th ed. (Philadelphia, 1851), iii.

8

Madison quoted in Jack N. Rakove, "Mr. Meese, Meet Mr. Madison," Atlantic, December 1986, 79.

9

Jefferson's behavior in holding slaves: In fact, Dumas Malone, Jefferson's biographer, writes that Jefferson "deplored" slavery. In an 1814 letter Jefferson wrote, "My opinion has ever been that, until more can be done for [the slaves], we should endeavor, with those whom fortune has thrown into our hands, to feed and clothe them well, protect them from ill usage, require such reasonable labor only as is performed voluntarily by freemen, and be led by no repugnancies to abdicate them, and our duties to them." Jefferson did emancipate some of his slaves during his lifetime and, says Malone, "when he freed a particular slave, that individual was prepared for freedom in his opinion, and had a good place to go." Dumas Malone, Jefferson and the Ordeal of Liberty (Boston: Little, Brown, 1962), 207, 208. For a very recent view on Malone's use of evidence concerning Jefferson's views on slavery, see Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University of Virginia Press, 1997).

How the Supreme Court Hears and Decides Cases PAGE

15

Washington journalist on the Supreme Court: Alex Heard, "Heard v. U.S.," New Republic, April 28, 1986, 12.

15

Statistics for the Supreme Court's 1996-97 term are from the compilations in 111 Harvard Law Review 435 (November 1997).

A PAGE

24b

Outrageous ballot schemes: Among the worst offenders is New York State, which generates "more than half the election law litigation in the nation." Among the technical violations that will keep a voter's signature from being counted toward the total required for nominating petitions: signers who give post office boxes rather than legal voting addresses; correc755

756

NOTES tions of the address by campaign staff in the absence of initials from the person collecting the signature in the first place; and signatures, otherwise fine, collected by people who don't live in the voters' districts. New York Times, February 5, 1992, A-22, lead editorial. 29b

Small bureaucracy that carried on the real work of the government: As Merrill Jensen noted, "The creation of a responsible staff of civil servants by the Confederation government is an almost unknown story. These men carried on the work of the departments of war, foreign affairs, finance, and the post office in season and out. The best example of this was Joseph Nourse of Virginia who became register of the treasury in 1779, a post which he held until 1829 when he retired because of old age. He kept books and prepared innumerable reports for Robert Morris, the board of treasury, Alexander Hamilton, and the secretaries of the treasuries who followed him. If it had not been for Nourse and men like him, with years of practical experience in the day-to-day affairs of government behind them, the Washington administration would have been badly hampered." Merrill Jensen, The New Nation: A History of the United States during the Confederation 1781-178? (Boston: Northeastern University Press, 1981), 360.

33a

Though not by constitutional command: The Framers rejected a provision that would have expressly required admitting new states on an equal footing. See Max Farrand, The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, rev. ed. 1937), 2: 454.

35a

Advisory opinions and justices responding to President Washington: See Henry M. Hart, Jr. and Herbert Wechsler, The Federal Courts and the Federal System (Brooklyn: Foundation, I 9S3). 95; and Hayburn's Case, 2 U.S. (2 Dall.), 409 (1792).

35a

Jay's letter to Jefferson on the "lines of separation:" See Henry Johnston, Correspondence and Public Papers of John Jay (New York: DeCapo, 1971; originally published 1891), 486-489.

35a

Jay's informal advice to President Washington on circuit riding is noted in Henry M. Hart, Jr. and Herbert Wechsler, The Federal Courts and the Federal System (Brooklyn: Foundation, 1953). 75-77-

42a

In one egregious case: In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), the Court said, in effect, that as far as the Constitution is concerned, an alien could be imprisoned for life without explanation or a hearing. In fact, he was held for three years and then quietly let back into the country.

44a

Some ten thousand amendments: Different commentators give different figures. Walter Dellinger, in The Encyclopedia of the Constitution, 47, says five thousand. Gilbert Y. Steiner, in Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Washington, DC: Brookings Institution, 1985), 29, estimates ten thousand. According to H. Ames, The Proposed Amendments to the Constitution during the First Century of Its History (H. R. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., 1897), Congress considered 1,736 amendments from 1789 to 1889. From 1890 to 1926, another 1,316 amendments were introduced (Proposed Amendments to the Constitution of the United States, Sen. Doc. No. 93, 69th Cong., 1st Sess., 1926). From 1926 through 1962, 2,340 more proposals were recorded {ProposedAmendments to the Constitution of the United States of America, Sen. Doc. No. 163, 87th Cong., 2d Sess., 1962).

46b

Madison quoted in Max Farrand, The Framing of the Constitution (New Haven, CT: Yale University Press, 1913), 7.

51b

Long line of opinions of the attorneys general: See, for example, 3 Opinions of the Attorney General 188 (1837).

53a

Frankfurter on the "political thicket": Strictly speaking in Colegrove v. Green, 328 U.S. 549 (1946), Justice Frankfurter could muster only three votes for the proposition that the case

NOTES presented a nonjusticiable political question, although the Court nevertheless declined to hear the case. 57a

Citywide ban on all handguns: Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). For a review of the literature and the debate on whether the Second Amendment provides an individual right to bear arms, independent of a state militia, as the authors suggest, see Randy E. Barnett and Don R. Kates, "Under Fire: The New Consensus on the Second Amendment," 45 Emory Law Journal 1139 (1996).

60a

Michigan Supreme Court on artificially curtailing life: People v. Kevorkian, 447 Mich. 436, 471 (1994), cert, denied, 514 U.S. 1083 (1995).

B PAGE

68a

Thomas Jefferson quoted in Gordon S. Wood, The Creation of the American Republic, 1776-1787 (New York: Norton, 1969), 537.

PAGE

84a

Mandatory appeals after 1988: Act to Improve the Administration of Justice of 1988; the various judiciary acts are summarized in David M. O'Brien, Constitutional Law and Politics (New York: Norton, 1991), 1: 102-104.

84b

Virtue of the people: Gordon S. Wood, The Creation of the American Republic, 1776-1787 (New York: Norton, 1969), 95fr.

86a

Earl Warrens biographers, on his fashioning a unanimous vote in Brown v. Board: See, in particular, Richard Kluger, Simple Justice: The History o/Brown v. Board of Education and Black America's Struggle for Equality (New York: Random House, 1976).

86b

In 107 cases since 1961: A Lexis search for the phrase "chilling effect" on September 18, 1997, turned up 107 cases between 1961 and 1997.

87a

Article by Paul Freund: "The Supreme Court and Civil Liberties," 4 Vanderbilt Law Review 533. 539 (i95i)-

88a

The Cigarette Labeling and Advertising Act of 1965, as amended, 15 U.S.C. §1335, prohibits advertisements of cigarettes on radio and television after January 1, 1971.

89a

Children born on the high seas: Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).

89a

Immigration and Nationality Act of 1952: Section 301, 8 U.S.C. §1401.

91a

Federal law prohibits military officers from holding civil office. Department of Defense regulations define a civil office as an "office, not military in nature, that involves the exercise of powers of or authority of civil government. It may be either an elective or appointed office under the United States." Department of Defense Directive 1344.10, September 23, 1969, JIII.D.

91b

Generally accepted opinion on meaning of civil office: A. Hinds, Precedents of the House of Representatives (Washington, DC: 1907), i:§493; C. Cannon, Precedents of the House of Representatives (Washington, DC: 1936), 6: §§63—64.

757

758

NOTES 91b

Equal rights under the law: 42 U.S.C. §1981.

91b

Federal law guaranteeing property rights of citizens: 42 U.S.C. §1982.

92a

Jefferson and civil liberties: Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side (Cambridge, MA: Harvard University Press, 1963), chap. 3.

94a

Criminal provisions of federal civil rights laws: 18 U.S.C. §§241, 242.

104a

On delegates' accepting without debate the wording of the Commerce Clause (and others): Max Farrand, The Records of the Federal Convention ofIJ8J (New Haven, CT: Yale University Press, rev. ed. 1937), 2: 308.

104a

Necessary and Proper Clause accepted without debate: They debated a motion by Madison and Pinckney to insert the words "and establish all offices" between "laws" and "necessary," but the motion was defeated as adding unnecessary surplusage. The clause was then accepted without debate.

nob

Compelling state interest: The figures are from a Lexis search for these phrases on September 18, 1997. A Westlaw search a week later turned up some discrepancies. Although both agree that the Court used the phrase "compelling state interest" in 192 decisions, they disagree about the frequency of the phrase "compelling interest." Lexis reports 192, Westlaw 241. Lexis reports 32 cases with the phrase "substantial government interest," Westlaw 29. The two services disagree also about the frequency of the phrases with the word "governmental" substituted and of certain other phrases as well.

114b

Consensus on meaning of age and citizenship requirements: Sen. Rep. No. 904, 74th Cong., ist Sess. (1935), in 79 Congressional Record 9841-42, 9561-53 (1935); A. Hinds, Precedents of the House of Representatives (Washington, DC: 1907), 1: §§418, 429.

117b

Jefferson quoted in Max Farrand, The Framing of the Constitution (New Haven, CT: Yale University Press, 1913), 39.

118b

William H. Rehnquist, "The Notion of a Living Constitution," in Views from the Bench: The Judiciary and the Constitution, Mark Cannon and David O'Brien, eds. (Chatham, NJ: Chatham House, 1985), 191.

118b

Karl N. Llewellyn, "The Constitution as an Institution," 34 Columbia Law Review 40 (1934).

119a

Page Smith, The Constitution, A Documentary and Narrative History (New York: Morrow Quill, 1980), 527.

119b

King of America: Daniel A. Färber and Suzanna Sherry, A History of the American Constitution (St. Paul: West, 1990), 27.

120a

Begetting fatal altercations: Madison's notes for May 28, 1787, quoted in Max Farrand, The Records of the Federal Convention ofIJ8J (New Haven, CT: Yale University Press, rev. ed. 1937), 1: n.

120a

Madison on Morris: Max Farrand, The Framing of the Constitution (New Haven, CT: Yale University Press, 1913), 181.

120b

Madison, Morris, and Wilson quoted in Max Farrand, The Framing of the Constitution (New Haven, CT: Yale University Press, 1913), 61-62.

NOTES 120b

Madison on Franklin's observation of the rising sun: Max Farrand, The Framing of the Constitution (New Haven, CT: Yale University Press, 1913), 194.

120b

As Judge Richard A. Posner has written: "What Am I? A Potted Plant?" New Republic, September 28, 1987, 23.

121a

Critics of Marshall's decision in Marbury: Quoted in Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, 1922), 1: 256-257.

127b

Gouverneur Morris on Council of Revision: Max Farrand, The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, rev. ed. 1937), 2: 75.

131a

Roosevelt on horse-and-buggy days: Arthur M. Schlesinger, Jr., The Politics of Upheaval (Boston: Houghton Mifflin, 1966), 285-286.

131b

Jackson on the Court's narrowing and expanding: Robert H. Jackson, The Struggle for Judicial Supremacy (New York: Vintage, 1941), xii-xiii.

131b

Chief Justice Hughes's letter: Documents on the court-packing plan are reprinted in Reorganization of the Federal Judiciary—Adverse Report of the Committee on the Judiciary, Sen. Rep. No. 711, 75th Cong., ist Sess. (1937).

PAGE

143b

Madison on direct taxation: The quotation is taken from Johnny H. Killian and Leland E. Beck, eds., The Constitution of the United States of America: Analysis and Interpretation (Washington, DC: Government Printing Office, 1982), 384, n. 2, citing in turn Madison, The Debates in the Federal Convention of 1787, G. Hunt and J. Scott, eds. (Westport, CT: Greenwood, 1970), 435.

146a

Charles Evans Hughes on dissenting opinions: The Supreme Court of the United States (New York: Columbia University Press, 1928), 68.

154a

The war came: Abraham Lincoln, Second Inaugural, 1865.

154b

Sumptuary law: Gerry quoted in Max Farrand, The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, rev. ed. 1937), 2: 344.

156a

California Supreme Court rejected property tax system for schools: Serrano v. Priest, 5 Cai.3d 584, 487 P.2d 1241 (1971).

156a

New York police may not search open field without warrant: New York v. Scott, 79 N.Y.2d 474. 593 N.E.2d 1328 (1992).

PAGE

167a

Abscam cases: United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983).

172b

Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986).

759

760

NOTES 173b

As one commentary summed up these rules: Wayne R. LaFave and Jerold H. Israel, Criminal Procedure (St. Paul: West, 2nd ed. 1992), 1016.

175b

Cardozo on the blundering constable: People v. DeFore, 242 N.Y. 13,150 N.E. 585 (1926).

PAGE

181b

Fair value theory branded a fallacy: See Robert L. Hale, Freedom Through Law: Public Control of Private Governing Power (New York: Columbia University Press, 1952), 462.

189b

Madison's unaccepted constitutional amendment: Quoted in Johnny H. Killian and Leland E. Beck, eds., The Constitution of the United States of America: Analysis and Interpretation (Washington, DC: Government Printing Office, 1982), 951, from 1 Annals of Congress 755 (August 17, 1789).

196b

Although dismissing the indictment in 1876 for another reason: Actually, the Court's rejection of the defendants' assertion in United States v. Cruikshank was dictum, since the Court found a technical defect in the indictment: the government had failed to say that the people were assembling to discuss federal issues. But the Court's acceptance of freedom of assembly is plain enough. The right of peaceable assembly has now been incorporated in the Fourteenth Amendment, so the technical difficulty in 1876 would no longer apply.

200b

Tumultuous petitioning: William W. Van Alstyne, First Amendment Cases and Materials (Westbury, NY: Foundation, 1991), 26, n. 57.

205a

Leonard W. Levy, Emergence of a Free Press (New York: Oxford University Press, 1985), 281.

205a

Zechariah Chafee, Jr., Free Speech in the United States (New York: Atheneum, 1969; originally published in 1941), 498.

210b

Early influential decision by Justice Bushrod Washington: Corfield v. Coryell, 6 F. Cas. 546 (No. 3230) (C.C.E.D. Pa. 1823).

PAGE

217b

Grand juries may issue reports: 18 U.S.C. §333.

H PAGE

225a

Reagan on the pursuit of happiness: Robert Pear, "Reagan Seems to Mix Supreme Court Cases," New York Times, June 12, 1986, A-21.

225a

Madison on "happiness and safety": See Leonard Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988), 274-275.

225a

Happiness amendment: See discussion in Jethro K. Lieberman, The Litigious Society (New York: Basic Books, 1981), 185.

NOTES 227a

On hate speech generally: See Samuel Walker, Hate Speech: The History of an American Controversy (Lincoln: University of Nebraska Press, 1994); Gates, Henry Louis, Jr., et al., Speaking of Race, Speaking ofSex: Hate Speech, Civil Rights, and Civil Liberties (New York: New York University Press, 1994); Kent Greenawalt, Fighting Words: Individuals, Communities, and Liberties of Speech (Princeton, NJ: Princeton University Press, 1995); Matsuda, Mari J., et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview Press, 1993); and Edward J. Cleary, Beyond the Burning Cross (New York: Random House, 1994).

227a

Rule struck down by a Michigan federal disrtict court: Doe v. University of Michigan, 721 F.Supp. 852 (E.D.Mich. 1989).

230b

Chase impeachment: Proponents quoted in Johnny H. Killian and Leland E. Beck, eds., The Constitution of the United States of America, Analysis and Interpretation (Washington, DC: Government Printing Office, 1982), 606.

PAGE

238b

Oliver North's conviction reversed: United States v. North, 910 F.2d 843 (D.C. Cir. 1990); modified on rehearing, 920 F.2d 940 (D.C. Cir. 1990).

244a

Madison quoted in Johnny H. Killian and Leland E. Beck, eds., The Constitution of the United States of America: Analysis and Interpretation (Washington, DC: Government Printing Office, 1982), 951, from 1 Annals of Congress 755 (August 17, 1789).

246b

Extraordinary improprieties: 38 Federal Register 29466 (1973).

247b

Cherokee treaty as brazen sham: See Glen Fleischmann, The Cherokee Removal, i8}8 (New York: Franklin Watts, 1971).

251b

On institutional litigation: See Jethro K. Lieberman, The Litigious Society (New York: Basic Books, 1981), chap. 5.

254a

On interpretivism: See excerpts from many of the leading articles and books in John H. Garvey and T. Alexander Aleinikoff, Modern Constitutional Theory: A Reader (St. Paul: West, 3rd ed, 1994), chap. 2.

J PAGE

260b

John J. McCloy's statement: Kai Bird, The Chairman (New York: Simon & Schuster, 1992), 49-50.

261b

Fred Korematsu's conviction: Korematsu v. U.S., 584 F.Supp 1406 (N.D. Cal. 1984).

261b

Gordon Hirabayashi's conviction vacated: Hirabayashi v. U.S., 828 F.2d 591 (9th Cir. 1987).

261b

Congress apologized: See Personal Justice Denied Report of the Commission on Wartime Relocation and Internment of Civilians (Washington DC: Government Printing Office, 1982).

761

762

NOTES 265a

One English judge in 1701: City of London v. Wood, 12 Mod. Re 669, 687-88 (1701); quoted in Daniel A. Färber and Suzanna Sherry, A History of the American Constitution (St. Paul: West, 1990), 67.

265a

Otis and Adams quoted in Daniel A. Färber and Suzanna Sherry, A History of the American Constitution (St. Paul: West, 1990), 67-68.

265b

John Francis Mercer quoted in Max Farrand, The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, rev. ed. 1937), 2: 298.

265b

Leonard W. Levy, "Judicial Review, History, and Democracy," in Levy, ed., Judicial Review and the Supreme Court (New York: Harper Torchbooks, 1967), 6.

267a

Meese's theory of constitutional interpretation: The Third Circuit upheld the act's constitutionality in Ameron, Inc., v. U.S. Army Corps of Engineers, 787 F.2d 875 (3d Cir. 1986). The hearings are in Constitutionality ofGAO's Bid Protest Function: Hearings Before the Subcommittee on Legislation and National Security of the House Committee on Government Operations, 99th Cong., ist Sess. (1985). The story is told in Murray Waas and Jeffrey Toobin, "Meese's Power Grab," New Republic, May 19, 1986,15.

PAGE

277a

Frankfurter on judges making law retail: Quoted in David M. O'Brien, Constitutional Law and Politics (New York: Norton, 1991), 1: 73.

288a

On why these activities are only supposedly unethical: See discussion in Jethro K. Lieberman, Crisis at the Bar, Lawyers' Unethical Ethics and What to Do about It (New York: Norton, 1978).

290b

The story of Jefferson's Louisiana Purchase is told in Dumas Malone, Jefferson the President, First Term 1801-180$ (Boston: Little, Brown, 1970), chaps. 16-17.

292a

Virginia Woolf, Orlando (New York: Penguin, 1942), 105.

M PAGE

294a

Max Farrand, The Records of the Federal Convention ofIJ8J (New Haven, CT: Yale University Press, rev. ed. 1937), 1: xv.

294b

William W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press, 1953). A third volume, Political Background of the Federal Convention (with Jeffrey Williams), was published by the University of Chicago Press in 1980.

294b

Madison's notes are a "faithful account": James H. Hutson, "The Creation of the Constitution: The Integrity of the Documentary Record," 65 Texas Law Review 1, 29 (1986).

294b

Madison's notes are "far from a verbatim record": James H. Hutson, "The Creation of the Constitution: The Integrity of the Documentary Record," 65 Texas Law Review 1, 32 (1986).

295b

Charles L. Black, Jr., Decision According to Law (New York: Norton, 1981), 18.

NOTES 298b

The story of Marbury v. Madison is told in more detail in Jethro K. Lieberman, Milestones! 200 Years of American Law (St. Paul: West, 1976), chap. 4.

306a

Thirty-four years after the Carolene Products Co. lost major lawsuits to ship "filled milk" in interstate commerce, it succeeded under another name, the Milnot Co., in overturning the ban on due process grounds. This was not really a return to economic due process, however, because of the peculiar circumstances it managed to show. In the intervening years, scientists had learned of the dangers of cholesterol in dairy products, and many other products, almost identical to Milnot s filled milk, were regularly being sold in interstate commerce because they did not technically violate the law. But a federal district court concluded that it was essentially irrational to permit the others and exclude Milnot's milk. See Milnot Co. v. Richardson, 350 F.Supp. 221 (S.D. 111. 1972). Thereafter the Food and Drug Administration concluded that it would no longer enforce the Filled Milk Act.

N PAGE

314b

On the "unwritten Constitution": See, for example, Thomas C. Grey, "Do We Have an Unwritten Constitution?" 27 Stanford Law Review 703 (1975).

314b

Hamilton on the rights of mankind: Quoted in Daniel A. Färber and Suzanna Sherry, A History of the American Constitution (St. Paul: West, 1990), 68.

317a

Wechslers speech is reprinted in Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harvard Laiv Review 1, 11, 16 (1959).

317b

For a later assessment of neutral principles, see Kent Greenawalt, "The Enduring Significance of Neutral Principles," 78 Columbia Law Review 982 (1978).

320b

Historians of the period: See, especially, Leonard W. Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988), chap. 13.

320b

"Created in us by decrees of Providence": John Dickinson, 1766, quoted in Leonard W. Levy, Original Intent and the Framers Constitution (New York: Macmillan, 1988), 275.

320b

One right Madison initially omitted: Leonard W. Levy, Original Intent and the Framer's Constitution (New York: Macmillan, 1988), 273.

320b

Repository for natural rights: Leonard W. Levy, Original Intent and the Framer's Constitution (New York: Macmillan, 1988), 278.

321a

1,200 lower-court cases: According to a computer study cited in Raoul Berger, "The Ninth Amendment," 61 Cornell Law Review 1, n. 2 (1980).

321a

Charles L. Black, Decision According to Law (New York: Norton, 1981), 18.

324b

Senator Eastland quoted in Look magazine, April 3, 1956, 24.

O PAGE

327b

"Tendency to corrupt" test: Regina v. Hicklin, L.R. 3 Q.B. 360 (1868).

763

764

NOTES 318a

Judge Woolsey's decision to allow Joyce's Ulysses to circulate in America: United States v. One Book Called "Ulysses, "5 F.Supp. 182 (S.D. N.Y. 1933), aff'd, 72 F.2d 705 (2d Cir. 1934).

328a

Walt Disney movie and southern schoolchildren: New York Times, June 27, 1969, 1; noted in Henry J. Abraham, Freedom and the Court (New York: Oxford University Press, 4th ed. 1982), 188-189.

335b

Meese's speech on the jurisprudence of original intention is reprinted, along with many other valuable essays concurring and dissenting, in Jack N. Rakove, ed., Interpreting the Constitution: The Debate Over Original Intention (Boston: Northeastern University Press, 1990), 13. See also Rakove, Original Meanings, Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996).

336a

Historians disagree: H. Jefferson Powell, "The Original Understanding of Original Intent," 98 Harvard Law Review 885 (1985); Charles A. Lofgren, "The Original Understanding of Original Intent?" 5 Constitutional Commentary 77 (1988); both are reprinted in Jack N. Rakove, ed., Interpreting the Constitution: The Debate Over Original Intention (Boston: Northeastern University Press, 1990), 53, 117.

336a

Madison's position on original intent: Jack N. Rakove, ed., Interpreting the Constitution: The Debate Over Original Intention (Boston: Northeastern University Press, 1990), 183.

336a

Madison's notes are "far from a verbatim record": James H. Hutson, "The Creation of the Constitution: The Integrity of the Documentary Record," 65 Texas Law Review 1, 29, 32, 34 (1986).

336b

Constitutional historians: See, for example, Leonard W. Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988).

337b

Meaning of "other public ministers": Quoted in 7 Opinions of the Attorneys General 168 (1855).

338b

According to one count: See the listing in Johnny H. Killian and George A. Costello, eds., The Constitution of the United States of America: Analysis and Interpretation (Washington, DC: Congressional Research Service, Library of Congress, 1996), 2245-2256. The list through 1992 reaches 278 overruled cases, and since then the Court has overruled several others.

P PAGE

349a

Corporation as person: The story is told in Hugh Davis Graham, Everyman's Constitution— Historical Essays on the Fourteenth Amendment, the "Conspiracy Theory, " and American Constitutionalism (Madison: University of Wisconsin Press, 1968).

365a

Locke on royal prerogative: Second Treatise, §§159-161.

367b

Dispute between Hamilton and Madison on neutrality proclamation: See Edward S. Corwin, The President's Control of Foreign Relations (Princeton, NJ: Princeton University Press, 1917), chap. 1.

367b

Theodore Roosevelt on his powers as president: Autobiography (New York: Macmillan, 1931), 38.

NOTES 368b

Washington with little to do: Forrest McDonald, The Presidency of George Washington (Lawrence: University of Kansas Press, 1973), 26.

375a

Slave of the state: Ruffin v. Commonwealth, 62 Va. 790 (1871).

377a

Famous article co-authored by Brandeis: Samuel Warren and Louis D. Brandeis, "The Right to Privacy," 4 Harvard Law Review 193 (1890).

382b

Cardozo on the blundering constable: People v. DeFore, 242 N.Y. 13, 150 N.E. 585 (1926).

384a

Charles Reich, "The New Property," 73 Yale Law Journal 733 (1964).

394a

Prosecutors are rarely disciplined: See Jethro K. Lieberman, How the Government Breaks the Law (New York: Stein and Day, 1972), 35-48.

394b

Defining harm in a general way: See Jethro K. Lieberman, "The Relativity of Injury," 7 Philosophy and Public Affairs 60 (1977); "Toward a Theory of Injury," in Pernicious Ideas and Costly Consequences: The Intellectual Roots of the Tort Crisis (Washington, DC: National Legal Center for the Public Interest, 1990), 99; Redress and Freedom: Harm and the Limits of the State (Ph.D. diss., Columbia University, 1995; Ann Arbor: University Microfilms, 1995). See also Joel Feinberg's magisterial four volumes The Moral Limits of the Criminal Law (New York: Oxford University Press): Harm to Others, 1984; Offense to Others, 1985; Harm to Self 1986; Harmless Wrongdoing, 1988.

395a

Holmes on free speech rights of policemen: McAuliffe v. Mayor of New Bedford 155 Mass. 216, 29 N.E. 517 (1892).

397a

Holmes on laws limiting speech in public parks: Massachusetts v. Davis, 161 Mass. 510, 39 N.E. H3 (i895). aff'd 167 U.S. 43 (1897).

R PAGE

414a

Lower courts concluded: Griffins Case, 11 F. Cas. 7, No. 5815 (C.C.D. Va. 1869).

420b

William F. Buckley's comment is quoted from his syndicated column by Leonard Levy, Judgments: Essays on American Constitutional History (Chicago: Quadrangle, 1972), 226.

426b

Popular uprising in Rhode Island: For a history of the rebellion, see Marvin E. Gettleman, The Door Rebellion (New York: Random House, 1973).

433b

Holmes on a policeman's right to talk politics: McAuliffe v. Mayor of New Bedford 155 Mass. 216, 220, 29 N.E. 517, 518 (1892).

436a

Thomas Paine, Common Sense, Isaac Kramnick, ed. (New York: Penguin Books, 1982), 98.

PAGE

457a

Lemuel Shaw's opinion: Roberts v. City of Boston, 59 Mass. 198 (1849).

765

766

NOTES 468b

Heap of inconsistencies: Justice Antonin Scalia, dissenting in United States v. Johnson, 481 U.S. 681 (1987), offered the following example of the intersection of various laws consenting to suit against the United States and the doctrine barring suits by military personnel: "A serviceman is told by his superior officer to deliver some papers to the local United States Courthouse. As he nears his destination, a wheel on his government vehicle breaks, causing the vehicle to injure him, his daughter (whose class happens to be touring the Courthouse that day) and a United States marshal on duty. Under our case law and federal statute, the serviceman may not sue the Government; the guard may not sue the Government; the daughter may not sue the Government for the loss of her father s companionship, but may sue the Government for her own injuries. The serviceman and her guard may sue the manufacturer of the vehicle, as may the daughter, both for her own injuries and for the loss of her fathers companionship. The manufacturer may assert contributory negligence as a defense in any of the suits. Moreover, the manufacturer may implead the Government in the daughter's suit and in the guard's suit, even though the guard was compensated under a statute that contains an exclusivity provision. But the manufacturer may not implead the Government in the serviceman's suit, even though the serviceman was compensated under a statute that does not contain an exclusivity provision." 481 U.S. 681, 7 0 1 - 7 0 1 (citations are omitted).

468b

James Wilson on sovereignty: See Gordon S. Wood, The Creation 1776-1787 (New York: Norton, 1969), 530, 532.

475a

Congressional standing: Kennedy v. Sampson, 511 F.zd 430 (D.C. Cir. 1974) (standing to sue for violation of the Pocket Veto Clause). Although the "Synar" in Bowsher v. Synar, 478 U.S. 714 (1986), striking down the Graham-Rudman-Hollings Act, was Rep. Michael Synar, the Court did not decide whether he had standing as a member of Congress; the Court heard the appeal because one of the other many plaintiffs satisfied all standing requirements.

494a

The description of the Supreme Court is taken from Jethro K. Lieberman, The Enduring Constitution (New York: Harper & Row, 1987), 120-121. The quotations are from Congressional

of the American

Republic,

Quarterly's GuitU to the Supreme Court (Washington, DC: Congressional Quarterly, 1979), 772. 495a

Leading commentator has argued: Charles L. Black, Jr., Decision York: Norton, 1981), 43.

to Law (New

According

PAGE

510a

Franklin on sheep not making insurrection: Quoted in William M. Wiecek, The Sources of Anti-

slavery Constitutionalism 513a

in America, 1760-1848 (Ithaca, NY: Cornell University Press, 1977), 57.

Laurence H. Tribe, American

Constitutional

Law (Mineola, NY: Foundation, 2nd ed. 1988), 422.

u PAGE

522a

Holmes on a policeman's right to talk politics: McAulijfe N.E. 517 (1892).

523a

Opinion of the attorney general: 39 Opinions

523a

v. New Bedford

of the Attorney

General

155 Mass. 216, 29

(1937).

Court has struck down more than 125 federal laws, etc.: Johnny H. Killian and George A.

Costello, eds., The Constitution of the United States: Analysis and Interpretation (Washington,

NOTES DC: Congressional Research Service, Library of Congress, 1996), 2001-2031 (127 federal laws); 2035-2219 (1089 state laws); 2220-2241 (124 municipal ordinances).

V PAGE

533b

Presumably commands public elections for state legislators: The Court has ruled that the Guarantee Clause is nonjusticiable. But it is hard to understand what a "republican form of government" would be if the people could not vote. For a general argument about the constitutional bases of voting, see John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980), 117.

534b

Louisiana black registration: The figures are from C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1974), 85.

W PAGE

538b

Madison on "sudden attacks": Max Farrand, The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, rev. ed 1937), 2: 318.

539b

Lincoln's use of the phrase "war power": Message to Congress of July 4,1861, reprinted in Abraham Lincoln, Speeches and Writings 1859-186$ (New York: Library of America, 1989), 250.

540a

Of doubtful historical accuracy: See David M. Levitan, "The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory," 55 Yale Law Journal 467 (1946).

545a

For an argument that those suffering "severe deprivations" should be entitled to constitutional protection, see Frank Michelman, "Foreword: On Protecting the Poor Through the Fourteenth Amendment," 83 Harvard Law Review 7 (1969).

Y PAGE

549a

The story of the Yazoo land scandal is told in C. Peter Magrath, Yazoo, The Case of Fletcher v. Peck (New York: Norton, 1966).

PAGE

551b

The story of the Zenger trial is told in James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger, Stanley N. Katz, ed. (Cambridge, MA: Harvard University Press, 2nd ed. 1972).

767

ACKNOWLEDGMENTS

This is a revised edition of a book first published in late 1992. This edition corrects several minor errors and infelicities; it updates the text to take account of changes in constitutional doctrine and in the Supreme Court through the 1997-98 term; it includes more than 350 new cases; and it contains more than twenty-five new essays on topics either omitted in the first edition or discussed there, in my later considered view, in the wrong place. To help me get from there to here, I owe my greatest thanks once again to Tracy A. Smith, who this time minutely conformed original disk versions of the manuscript to the published first edition so that I could make changes by keyboard rather than by hand. This tedious, time-consuming task she performed with great finesse and panache; rarely did I receive overheated e-mail. I am grateful to Dean Harry H. Wellington and New York Law School for providing research grants so that I could prepare the major revision during the summer of 1997 and several supplements to the original edition during previous summers. I am indebted again to Paul Mastrangelo, of the N e w York Law School Library, for his genial efficiency in procuring cases and other materials, and to Camille Broussard for her speedy web checking. Thanks also to New York Law School students Jennifer Long and Cynthia Averell, Class of 1999, and Brian Hagerty, Class of 2000, for their able research assistance in tracking down last-minute details and proofing portions of the case table. M y colleagues Karen Gross and Ed Samuels supplied me with missing cases at the very last minute, when it was time to close the table and number the cases. Finally, I must acknowledge the generally cheerful manner in which Cathy Glaser, Elaine Mills, and Robert Ruescher greeted me on a weekly basis when I was not as up to date as I should have been on our other book project. At the University of California Press, my gratitude to Naomi Schneider, executive editor, who championed the book from the start and saw it through to publication; and thanks also to Marilyn Schwartz. At Publication Services, I extend my heartfelt thanks to Jan Fisher and the editor, David Mason, who oversaw the complex production from manuscript to press. It may seem perfunctory to thank my wife, J o Shifrin, since no book can be written without the understanding and patience of the author's family. That much is true in the writing of this revision, but it is only a small part of the truth. Jo engineered a household move right around the writing, so that the computer was silenced for but a day; designed and had constructed an office for me that permits unhurried study and reflection amidst ergonomic splendor; and then, when she was exhausted from a summer of such labors, threw herself into helping solve all the lastminute problems that creep into any manuscript, including, in this case, the problems attendant on conflating six case tables into one and renumbering the thousands of case references throughout the book. T h e finished book would not have happened, certainly not on time, without her energetic assistance. Because no revised edition is possible without a first one, I repeat my original acknowledgments as well:

769

770

ACKNOWLEDGMENTS

Along the way I have accumulated considerable debts to the following people for their assistance: Susan Karp and Scott Odierno, my students in 1990-91, for help in assembling the topics and stuffing nearly 1,500 folders with relevant material; Mary-Jane Oltarziewski, also my student in 1990-91, for heroically beginning the Table of Cases; Tracy A. Smith, for heroically finishing and painstakingly checking the table, for preparing the appendix on the justices of the Supreme Court, and for helping above and beyond the call of duty on many other aspects of production; Paul Mastrangelo, of the New York Law School library staff, for his always cheerful and prompt reactions to my obscure requests; Fernando Cruz, for clerical assistance large and small; Erika S. Fine, for showing me how to use some of the more arcane features of Westlaw; my colleague Professor Ruti Teitel, for a draft of the entry "Rebellion"; New York Law School Dean James F. Simon, for providing two summer research grants without which this book would not likely have been completed on schedule; Charlotte Leon Mayerson, my editor at Random House, for her acute editorial red pencil that cut without distorting and for her prodding that got me from A to Z ; Random House production editors Judy Kaplan Johnson and Lila M . Gardner, copyeditor Carole Cook, and proofreaders Mary Louise Byrd, Sharon Goldstein, and Karen Osborne, for labors that must have produced many an over-the-counter headache; Gerry Uram and Seth Lieberman for their usual efficient courier services; and my wife, Jo Shifrin, who could always be coaxed into late-night sessions to check numbing case numbers and to cross-check entries. Once again I tender apologies for errors that remain. Although this edition is, I hope, more error-free than the first, it embraces more than a thousand topics, every one of which has students more expert than I. So I conjoin my apology with the entreaty that those who spot omissions or errors of fact and judgment alert me to them to the end of perfecting the work still more. Reach me, most conveniently, at [email protected]. J.K.L. Ardsley, New York October 23, 1998

I N D E X OF S U B J E C T S A N D

NAMES

T h i s index lists all names, subjects, a n d topics. T h e Table o f Cases separately indexes all cited cases. In the page references that follow, "a" refers to the left c o l u m n o f a page, " b " to the right.

Abandoned Shipwreck Act, 567b

administrative agencies, 29a-3ob, 76a, 188b (see also ex-

abode, place of, 54b

haustion of remedies); congressional control of,

abortion, I9a-22a, 64a, 84a, 95a, 105a, nob, 115b, 158a, 210a,

28ia-b; finality o f fact-finding by, 269b-270a; hearings

254a, 273a, 286a, 315a, 349a, 376b, 399b, 461a, 465a;

in, 229b, 382a; impartiality requirement, 240a

barred to noncitizen, 379b; mootness of case, 309b;

administrative convenience, 161b

parental consent to, 341b, 523b; picketing of clinics,

administrative government, 140a, 756 (see also administra-

274b, 350a, 375a, 486b; qualified right to, 407b; right to

tive agencies)

discuss, 216b, 473a, 522b; stare decisis and, 476a; subsidy

administrative hearings (see hearing, administrative)

of, 21a, 488a; undue burden test, 21b, 64a, 115b, 523a-b

administrative inspections, 443b

Abscam cases, 167a absentee ballots, 2 2 a - b

administrative law, 31b, 317b; violation despite lack of knowledge, 417b

absolute immunity, 239a

administrative law judge, 32a

absolutism, 22b

Administrative Procedure Act, 31a, 32a

abstention doctrine, 22b-23a, 28a, 87a, 531a

administrative proceedings, appeal of, 23b

abuse of discretion, 31b, 4 i j b - 4 i 6 a

administrative search, 443b

academic freedom, 23b-24a, 174a

admiralty and maritime jurisdiction, 32a—33a, 567b

access to: ballot, 24b-25a, 309b, 507b, 546b, 755-756;

admissibility of evidence (see evidence; exclusionary rule)

broadcasting, 25a-b, 433a, 564a-b; cable television,

admission to the bar (see bar, admission to)

78a; courts (see courts, access to); evidence (see evi-

admission to the Union (see states, admission to Union)

dence, access to); government documents {see free-

adoption (see children, adoption o f )

d o m o f information); information, 207a; law li-

adult bookstores and theaters, 34a-b, 374b

braries, 376a; press (see freedom of the press; right to

adultery, 461a

reply); prison and prisoners, 25a-26b private property

adversative method, 440a

(see public forum; public function; shopping centers,

advertising, 105a—107b, 159a; alcohol, 106b—107a; ciga-

access to); public places (see public forum); schools

rettes, 88a, 363b; gambling, 105b; illegal activities, 291a;

(see public forum; schools, religion in); shopping cen-

legal services, 387a; in lieu of notice, 312b; libel suit

ters (see shopping centers, access to); trial (see trial,

over, 284a; mailing of fraudulent, 360b; by profession-

right to attend)

als, 387a; space, 80a; unsolicited, 377b

account of federal expenditures, 26a

advice and consent, 34b-35a

accountants: advertising by, 106b; solicitation o f business

advisory opinions, 35a, 80b, 263b, 317b, 435a

by, 466b accusation, specificity of, 26a—b accusatorial system, 2 6 b - 2 7 a , 382b, 453b accused, 27a, 371a, 434a acquittal by reason of insanity, 251a

advocacy, subversive ( see subversive advocacy) affected with a public interest, 35b, 160a, 306a, 330b, 355a, 389b affirmance by an equally divided Court (see Supreme Court, affirmance by equally divided)

act o f legislature, 183b

affirmation (see Oath or Affirmation Clause)

act o f state doctrine, 27a—b

affirmative action, 36a-39a, 112b, 177a, 259a, 486b, 496a

acting president, 27b, 296a, 369a, 520b

affirmative obligations of government (see government,

action (see cause of action; government, affirmative obligations of; state action)

affirmative obligations o f ) age: of majority, 39b; requirements for public office, 39b

action-inaction, 215b (see also state action)

age discrimination, 39a-b

activism (see judicial activism)

Age Discrimination in Employment Act, 39b

actual innocence (see innocence, actual)

Age Discrimination in Employment Act of 1973, 93b,

actual malice (see malice, actual)

156a, 237b, 297a

ad valorem tax, 242a

Agee, Philip, 342b

Adams, J o h n , 41b, 92a, 117b, 205a, 297a, 341a, 451a, 457a,

aggravating circumstances, 39b-4ia, 101a, I37b-I38a, 141a,

520a; quoted, 265a

319a

Adams, John Quincy, 162b, 309a, 366a

Agnew, Spiro T., 366b

addiction, 28a

Agricultural Adjustment Act, 41a, 102a, 131a, 255a, 277b,

adequate state grounds (see independent and adequate state ground) adjournment, 414b, 510a (see also pocket veto)

472a Agricultural Marketing Agreement Act of 1937, 41a agricultural regulation, 41a, 102a, 254b, 255b 771

772

I N D E X O F SUBJECTS A N D

NAMES

aid and comfort (see treason) aid to religious institutions (see religious establishment) AIDS, 125b, 253a, 332a Air Force, 56a airline: regulation, 363a; routes, 188b; taxation, 391a, 504a airports, 338b, 398a; searches of, 443b alcohol, 28a, 112a, 162a, 185b, 256b, 297a, 326b, 520b, 533a (see also liquor license); advertising of, 106b, 520b; drinking age of, 218a; regulation of, 107a; sex discrimination in purchase of, 460b alcoholism, 292b; punishment for (see addiction) Alexander, James, 551b alibi, 454b Alien and Sedition Acts, 41b—42a, 205a, 283b, 323b Alien Enemies Act, 41b aliens, 42a-43b, 142a, 145b, 310a, 339a; deportation of enemy, 540b; exclusion of, 87a; imprisonment of, 756; inheritance of, 192b; privilege against self-incrimination, 566a; purchase of property by, 380a; residence status of, 435a; right of children to attend school, 210a; right to hearing, 228b; rights of children, 33a-b, 434a; search of, 58a, 444b; seizure of property of, 541b; treaty rights of, 568a-b; trial by jury of, 191b; welfare benefits for, 545b alimony, 23b, 43a, 461a, 563a all deliberate speed, 43a, 75b, 452a Allegheny Pittsburgh Coal Co., 159b alliance of states (see states, alliances of) ambassadors, 43b-44a, 113a, 123b, 267b, 337a, 337b, 368b ambiguity, 121b, 181b ambulance chasing, 288a amendments, 44a-45b, 335a, 358a America Online, 252b American Civil Liberties Union, 45b, 252b, 508b American Israel Public Affairs Committee, 567b American Library Association, 252b American Railway Association, 140b American Sugar Refining Co., 101b Americans with Disabilities Act of 1990, 93b amicus curiae, 45b, 75a, 303a ammunition (see magazines) amnesty, 34ob-34ia amount in controversy, 184a Anatomy of a Murder, 82b ancillary jurisdiction, 46a Anderson, John, 25a animal sacrifice, 203a-204a Annapolis Convention, 46a annexation, 46b anonymity, right to, 46b antidiscrimination legislation, 47a (see also civil rights legislation) anti-Federalists, 47a, 265b, 316a, 320a anti-injunction acts, 47b antisocial acts, 134a Antiterrorism and Effective Death Penalty Act, 224a, 555b, 568b antitrust, 48a, 66b, 84a, 207a, 254b, 288b, 330b, 363a appeals, 48b—49a, 83b, 129b, 172a, 188a, 484b; timing of, 431a appellate courts, 48b, 49a-b, 334b; review of facts, 415a416a appellate jurisdiction (see jurisdiction, appellate) application of the legislature, 49b appointment, 249b, 298a; of justices, 50a—b; recess, 414b

appointment power, 5ob-52b, 332b, 368b, 414a Appointments Clause, 228a apportionment, 23b, 46a, J2b-55a, 84a, 212b, 333b, 358a, 359a, 479b; of taxes, 55a, 143b appropriate legislation, 55a appropriations, 55b, 242b Appropriations Clause, 55b arbitrary executive action, 568a arbitrary law, (see rational basis test) arbitration, 517a archivist of the United States, 44b, 521a arising under, 55b-5Óa, 184a, 267b Arizona Train Limit Law of 1912, 280a armbands, 154b, 273a, 487b, 497a armed forces, 56a-b, 91b, 101a, 131a, 140b, 141a, 154b, 177a, 243b, 304b, 305a, 316b, 360a, 368b, 460b; funding of, 55b; suits for injuries in, 468a arms, 506b-507a (see also magazines); possession of, 151b; right to keep and bear, 56b-57a, 449a-b; in schools, 102b, 256a; tax on, 131b, 504b Army, 56a (see also armed forces) arraignment, 57a, 128a, 287b, 301a arrest, 57b-58a, 381a; privilege from, 57a, 237b-238a; search and seizure incident to, 445b-44éa arrest warrant, 57b Article I courts, 58a, 130b, 228a, 304b, 517a Article III courts, 58b, 130b, 146b, 158b, 163b, 249b, 264a, 304b, 508a Articles of Confederation, 1, 58b—59a, 60b, 118a, 263b, 482a, 507a articles of impeachment, 59a assembly, freedom of (see freedom of assembly) assistance of counsel (see counsel, assistance of) assistance, writ of (see writ of assistance) assisted suicide, right to, 59b—60a association: freedom of (see freedom of association); guilt by (see guilt by association) assumption of debt (see debt, assumption of) Atomic Energy Act, 363a, 540b attachment, 425a (see also garnishment) attainder (see bill of attainder) attainder of treason, 60b attorney general, 6ob-6ia, 467a attorney general's list, 61a, 69b, 292b, 302a, 513b attorney-client privilege (see evidentiary privileges) authors, 61b, 126a, 546b automobiles, search of, 162a, 444a-b (see abo motor vehicles) bad tendency test, 62a, 97a badge of slavery, Ó2a-b, 93a, 509b bail, 62b-é3a, 162a, 372b, 555a Bail Clause, 372b Bail Reform Act, 372b bait and switch, 386a baking, 160a, 199b, 289a Bakke, Allan, 36b Balanced Budget Act of 1997,561b balanced budget amendment, 138b Balanced Budget and Emergency Deficit Control Act (see Gramm-Rudman-Hollings Act) Balanced-Budget Amendment, 44b, 45a balancing test, 6)b-6¿a, j6i, 97b, 112a, 126a, 149b, 229b, 258b, 291a, 345a, 385b, 395a, 455a, 512b, 517b ballot: access to (see access to ballot); racial listing on, 409a ballot proposition, prohibition on editorializing about, 431a

I N D E X O F SUBJECTS A N D N A M E S bank acts, 65a bank charter, 65a

born in United States, 70b borrowing power, 71a

Bank of the United States, 65a-b, 185a, 237a bankruptcy, 48a, 6^b-66a, 125b, 129b, 326a, 327b, 363b,

bound to service, 71a boundary disputes, 71a, 480a, 556a—b

429a, 517a Bankruptcy Court, 66a bar, admission to, 198b, 379b baseball, 66b

bounties, 71b, 299a boxing, 66b boycott, 7ib-72a, 349b Bradley, Joseph R, 477b, 480b; quoted, 62b, 92b, 460a Brady Handgun Violence Prevention Act, 506b Brady material, 144b, 173b Brandeis brief, 72a, 370b

belief: bigoted, 226b; freedom of (see freedom of belief); in God, to hold office (see religious test); in God, to vote, 533b belief-conduct distinction, 201b Berkowitz, David, 467b Bernstein, Carl, 542b best interest of child, 33a-b, 341b bias (see types of or persons accused of) bias crime, 226a-b Bias-Motivated Crime Ordinance, 227b Bible reading (see prayer) bicameralism, 67a, 281a, 416b, 458a bigamy, 148b, 201b, 300b bilingual education (see education, bilingual) bill of attainder, 2, 67a-b, 279b, 311b, 320a, 325b, 401b, 508b bill of credit, 68b Bill of Rights, 4, 44a, 47b, 67b-68b, 75b, 92a, 114b, 119a, 133b, 147a, 156b, 161b, 167b, 185b, 189b, 194b, 209b, 225a, 229b, 244a, 247b, 263a, 265a, 285b, 304b, 318a, 320a, 322a, 345b, 354a, 364a, 382b, 408b, 450b, 460a, 468b, 488b, 505b, 521a Bill of Rights of 1689, 74a billboards, 470b, 531b bills for raising revenue, 68b bills of credit, 134b birth control, 13,125a—b, 253a, 273a, 283a, 300a, 321a, 345b, 377b, 378a, 399b, 426a, 435a, 461a bitter with the sweet, 68b Bituminous Coal Conservation Act, 140b, 255a black codes, 69a, 91b, 509b Black, Charles L., Jr., 295b, 321a Black, Hugo L., 132a, 157b, 165a, 209b, 244b, 245a, 253b, 260a, 275a, 283a, 315a, 335b, 380a, 418a, 462a; quoted, 22b, 53b, 64b, 69b, iooa, 169b, I95a-b, 233a, 261a, 339b, 344b, 345b, 4i9a-b, 438a, 493a, 496a Black Lung Benefits Act, 128b black lung disease, 546a Black Monday, 131a blacklisting, 69b-7oa Blackmun, Harry A., I9a-b, 345a, 421b; quoted, 20a, 21b, 22a, 40a, 42b, 203a, 231a, 327a, 348a, 380a, 390b, 438b-439a, 470b, 5i9a-b, 527b Blackstone, William, 205a; quoted, 373b, 389a blasphemy, 70a blessings of liberty, 70a blood samples, 70a—b, 454a blood test, 70b, 283b, 343a, 372a, 445b, 544a blue laws (see Sunday closing laws) blue sky law, 70b blundering constable, 175b, 382b Bond, Julian, 325a bookstores, adult (see adult bookstores and theaters) Booth, Sherman M . , 323b bordello, 56b border searches, 444b Bork, Robert, 50b, 254a, 295b, 489a

Brandeis, Louis D., 50a, 62a, 72a, 131b, 146a, 171b, 377a, 490a, 498b, 499b; quoted, 121a, 205b, 30ib-302a, 430b, 448a, 498a breach of the peace, 72b, 91a, 97b, 133b, 141a, 190b, 205b, 227b, 377b, 394a (see also demonstrations) breath test, 31a, 73a, 144b, 154b Brennan, William J., 21b, 38a, 43b, 137a, 158b, 190b, 191a, 200a, 214b, 253b, 284b, 321a, 329b, 345a, 358a, 484a; quoted, 65a, 125a, 210a, 215b, 217a, 283a, 283b, 286a, 288a, 332a, 421b, 545b Breyer, Stephen G., 50b; quoted, 60a, 78a, 79b, 102b, 223b, 556b, 557a, 565a bribery, 27b, 73b, 145a, 549a Bricker Amendment, 176b, 514b bridges, 73b Bridges, Harry, 124a brief, 73b-74a, 334b British Constitution, 74a broadcast licenses, 30b, 74a, 140a broadcasting, 25a-b, 78a, io6a-b; diversity in, 459b; equal time in, 170b, 564a; fairness requirement in, 182a; of indecency, 74b, 253a, 331b; racial criteria in licensing, 38a; regulation of, 74a—b; right of listeners to obtain information, 432b; right to control personal publicity in, 400b brooding omnipresence, 118b, 277a Brown Shoe Co., 474b Brown, Henry B., quoted, 353a Buchanan, James M., 154a Buckley, William F., 420b budget, 75b-76a Budget and Accounting Act of 1921, 76a bug, electronic, 448a Bureau of Indian Affairs, 247b Bureau of Land Management, 458a Bureau of the Budget, 76a Bureau of the Census, 83a bureaucracy (see administrative agencies) Burger Court, 442b; laws overturned by, 262b Burger, Warren E., 33b, 84b, 146b, 347a, 417b, 433a, 459b; quoted, 161b, 177b, 178a, 207b, 345a, 42ob-42ia, 421b, 435b, 438a. 45°a Burr, Aaron, 162b, 365b, 513b, 520a Bush, George, 27b, 31b, 165b, 190b, 262b, 428a, 541a business records, 304a business regulation, 3543-3553 (see also affected with a public interest; economic due process) busing, 76a—b, 438a, 452b cabinet, 773, 177a, 228a, 239a, 369b cable television, 77a-78a, 500a Cable Television Consumer Protection and Competition Act of 1992, 77b Calhoun, John C., 323b

773

774

I N D E X O F SUBJECTS A N D

NAMES

campaign: contributions, 343b; financing, 78b-7