INSTRUCTOR’S MANUAL/ TEST BANK FOR MASON AND STEPHENSON, JR. AMERICAN CONSTITUTIONAL LAW: INTRODUCTO

INTRODUCTION: A POLITICAL SUPREME COURT I. CHAPTER OUTLINE Constitutional Interpretation and Political Choice A Changing Judiciary Beginnings The Court Comes of Age Judicial Business in the Nineteenth Century The Modern Court Appointment Politics, 1968–1984 From Warren to Burger Fortas Resigns Powell, Rehnquist, and Stevens The First Woman Justice Appointment Politics, 1984–1992 Whose Supreme Court Is It? The Bork Debacle End of the Brennan Era The Thomas Maelstrom Appointment Politics, 1992–2010 Ginsburg and Breyer A New Chief Justice The Obama Appointments

II. CHAPTER OVERVIEW AND OBJECTIVES Understanding constitutional law today is helped by an awareness of the Court’s institutional development. A summary of this development is presented early in the Introduction, where it is seen that the Court’s first decade was characterized by obscurity, weakness, and uncertainty as to what the institution would become.

Detracting from the attractiveness of the high bench in the early years was the circuit riding Congress imposed on the justices, a duty not finally eliminated until 1891. In addition to sitting collectively as the Supreme Court, justices sat as judges of the circuit courts, one of the two types of lower federal courts established by the Judiciary Act of 1789. Although the act provided for three types of courts (district courts, circuit courts, and the Supreme Court), it authorized the appointment of judges only for the district courts and the Supreme Court. Except for a brief period in 1801–1802, no separate circuit judgeships existed until 1855 (for California) and then in 1869 for the rest of the nation. Each circuit court was at first staffed by two justices (a number soon reduced to one) and one district judge. As a result, the early justices spent far more time holding circuit court than they did sitting on the Supreme Court. Despite Marshall’s 8 Copyright © 2012 Pearson Education, Inc.

deserved reputation in constitutional law (as illustrated by Chapters Two, Six, and Eight especially), the bulk of the Court’s work in Marshall’s time and for years afterward was nonconstitutional. Private law cases vastly outnumbered public law cases.

The federal judiciary underwent important structural changes beginning in the late nineteenth century that had major ramifications for the Supreme Court. First, in 1891 Congress authorized intermediate appellate courts called circuit courts of appeals. For the first time, the federal judiciary had appellate tribunals below the Supreme Court. For most cases, the old circuit courts had not been appellate tribunals; a case began in either the district or circuit court depending on the subject matter. The old circuit courts were soon merged into the district courts.

Circuit riding by the justices, already reduced substantially in the latter half of the nineteenth century, came to an end (ironically just as interstate rail transportation had become faster, more reliable, and more comfortable).

Second, the 1891 statute introduced some certiorari, or discretionary, jurisdiction. This meant that there were fewer categories of cases the justices were legally obliged to hear and that the new courts of appeals became the courts of last resort for many cases.

Third, as a result of intense lobbying by Chief Justice William Howard Taft (the only president to have become chief justice), Congress in 1925 passed the Judges Bill, which expanded discretionary jurisdiction even further. Now, the Court was in control of most of its docket, not only in terms of the number of cases it would decide each year but also, for the most part, of the issues it would confront. Taft’s political talents left another institutional legacy: the Supreme Court Building. With construction finished in 1935, five years after Taft’s death, the justices finally had a home of their own.

Today, in contrast to the docket in the nineteenth century, public law consumes the Court’s time. Roughly half of the Court’s business now consists of constitutional cases, with statutory interpretation accounting for almost all of the rest. Moving beyond its dispute resolution role, the Court has become mainly a maker of public policy for uniform application across the nation.

The remainder of the Introduction consists of a narrative and analysis of Supreme Court appointments since 1968, beginning with the transition from the Warren Court (1953) to the chief justiceship of Warren E. Burger and continuing through the appointments of justices Sonya Sotomayor and Elena Kagan by President Barack Obama in 2009 and 2020. Students should find this information instructive. Because appointments to the High Court are infrequent and occur at irregular intervals, most students will have a very limited memory of all but perhaps the most recent ones. The narrative in the Introduction places recent appointments therefore in the context of those that have taken place over a span of more than four decades. But it is not only students who will benefit. Instructors should find the introduction helpful because it lays out in concise fashion recent appointment politics. As such, it is nearly unique among constitutional law casebooks in providing this information in a single one-stop location. Thus, the material demonstrates how the justices who have decided many of the cases included within American Constitutional Law actually reached the Court.

9 Copyright © 2012 Pearson Education, Inc.

III. KEY TERMS constitutional law constitutional interpretation cases judicial review recess appointment circuit riding seriatim opinions diversity jurisdiction Warren Court

IV. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. Does prior judicial experience make one better qualified for the Supreme Court? A look at the Court’s roster in late 2010 reveals that all justices but one arrived on the bench with previous service on one of the federal courts of appeals, most frequently on the Court of Appeals for the District of Columbia Circuit. By contrast, as late as 1963, five justices were sitting with no significant prior judicial experience. Justice Frankfurter, who reached the bench with no experience as a judge, flatly declared in 1957 that “the correlation between prior judicial experience and fitness for the Supreme Court is zero.” What qualifications should a president consider when selecting a justice? Should there be a de facto judicial experience requirement for appointment to the Supreme Court? Was the failure of the nomination of Harriet Miers in 2005 due to her lack of judicial experience or primarily to other objections or concerns?

2. All nominees to the Supreme Court in the past half century have appeared before the Senate Judiciary Committee. Is this a desirable practice? If so, are there questions that senators should (and should not) ask? Are there questions that nominees should (and should not) answer?

3. Is there an acceptable way to combine both judicial independence (made possible partly by life tenure) with political accountability? One proposal calls for a constitutional amendment to fix a term of 14 years for Supreme Court justices and other federal judges. In the fourteenth year, the president in office could choose to reappoint the individual for another term of 14 years, or not.

As with the initial appointment, reappointment would be subject to approval by the Senate. What are the strengths and weaknesses of this proposal?

4. Some Supreme Court nominations in recent decades have been highly controversial. Others have aroused little controversy and have moved through the Senate with little or no opposition.

What factors seem to account for the difference?

10 Copyright © 2012 Pearson Education, Inc.

V. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS 1. What changes have occurred over the past 200 years in the types of cases the Supreme Court decides?

2. What difference does it make that the Court’s jurisdiction today is almost entirely discretionary?

3. On the day that President Clinton nominated Judge Ruth Ginsburg to the Supreme Court, one legal scholar (who had been dean of a prominent law school and a university president) stated on the PBS NewsHour that Ronald Reagan was the first president to have “politicized” Supreme Court appointments. Is this an accurate statement?

4. Compare the following table that shows the Supreme Court in March of 2011 with the next table that shows the Supreme Court in the early 1960s. What differences are apparent in terms of the immediate pre-Court experience of the justices? Why would more recent presidents place such heavy emphasis on selecting nominees from one of the federal appeals courts?

UNITED STATES SUPREME COURT – MARCH 2011 Justice Roberts (CJ) Scalia+ Kennedy Thomas Ginsburg Breyer Alito Sotomayor+ Kagan++

Age 56 74 74 62 77 72 60 56 50

Appt’d By Bush, G. W. Reagan Reagan Bush, G. H. W. Clinton Clinton Bush, G. W. Obama Obama

Appt’d In 2005 1986 1988 1991 1993 1994 2006 2009 2010

Appt’d From USCA-DC USCA-DC USCA-9 USCA-DC USCA-DC USCA-1 USCA-3 USCA-2 S.G.

Replaced Rehnquist@ Rehnquist Powell Marshall# White Blackmun= O’Connor** Souter Stevens*

@ William Rehnquist was only the third of the 16 chief justices since 1789 to have been appointed from the ranks of sitting associate justices. He was initially appointed by President Nixon in 1972 and was elevated to chief justice by President Reagan in 1986. His death in 2005 created the first vacancy on the Court since 1994. * Appointed by President Ford, Justice Stevens retired in the summer of 2010 at the age of 90, after 35 years of service. He was appointed from the USCA-7. # Justice Marshall retired in the summer of 1991 at the age of 82, after 25 years of service. He had been appointed by President Johnson in 1967 and was the first African American to sit on the Court. + Justice Scalia is the first Italian American appointed to the Court. = Justice Blackmun retired in June 1994 at the age of 85, after 24 years of service. President Nixon had appointed him in 1970.

11 Copyright © 2012 Pearson Education, Inc.

** Justice O’Connor, a judge on the Arizona Court of Appeals, was appointed by Reagan in 1981 and was the first woman to serve on the Supreme Court. ± Justice Sotomayor is the first Latina appointed to the Court. ++ Justice Kagan is the first solicitor general named to the Court since 1967.

Among current justices, all but one has been appointed directly from one of the U.S. courts of appeals. Among the 17 justices appointed since 1967, only two besides Kagan (William Rehnquist and Lewis Powell) came to the Court with no prior judicial experience. Justice O’Connor is the only one during that period to have been appointed from a state court. This contrasts sharply with the Court of 1963, where six of the nine justices had no prior judicial service.

PRESIDENTS WHO APPOINTED FOUR OR MORE JUSTICES Washington F. Roosevelt Taft Jackson Lincoln Eisenhower Grant

10 9* 6* 5 5 5 4

Cleveland B. Harrison Harding Truman Nixon Reagan

4 4 4 4 4 4*

* This number includes elevation of an associate justice to the chief justiceship, so the number of “new faces” on the Court is actually one less than indicated for presidents Taft, F. Roosevelt, and Reagan.

PRESIDENTS WHO APPOINTED NO JUSTICES W. Harrison Taylor

A. Johnson Carter

Since justices enjoy lifetime tenure, vacancies on the Supreme Court occur only sporadically. About 35 percent of the presidents have been able to appoint 65 percent of the justices. There was a substantial turnover in the Court’s membership between 1986 and 1994, but none from 1994 until 2005. That period was the most stable since the Court’s roster was last set at nine in 1869. The previous period of comparable stability in the Court’s membership occurred between 1812 and 1823.

UNITED STATES SUPREME COURT – JANUARY 1963 Justice Warren (CJ) Black Douglas Clark Harlan (II)

Age 72 78 64 63 63

Appt’d By Eisenhower F. Roosevelt F. Roosevelt Truman Eisenhower

Appt’d In 1953 1937 1939 1949 1955

Appt’d From Gov-Calif.

U. S. Senate S.E.C. A.G. USCA-2

12 Copyright © 2012 Pearson Education, Inc.

Replaced Vinson Van Devanter Brandeis Murphy Jackson, R.

Brennan Stewart White, B. Goldberg

57 48 45 55

Eisenhower Eisenhower Kennedy Kennedy

1955 1958 1962 1962

NJSC USCA-6 Deputy A.G. Sec. Labor

Minton Burton Whittaker Frankfurter

VI. RESOURCES AND SUGGESTED READINGS

Selected Readings on Federal Judicial Appointments RAHAM, HENRY J. Justices, Presidents, and Senators: A History of the U.S. Supreme Court

Appointments from Washington to Bush, 5th ed. Lanham, Md.: Rowman & Littlefield, 2007.

BRONNER, ETHAN. Battle for Justice: How the Bork Nomination Shook America. New York: Doubleday, 1990.

COMISKEY, MICHAEL. Seeking Justices. Lawrence: University Press of Kansas, 2004.

EPSTEIN, LEE AND JEFFREY A. SEGAL. Advice and Consent: The Politics of Judicial Appointments. New York: Oxford University press, 2007.

FRANK, JOHN P. Clement Haynsworth, the Senate, and the Supreme Court. Charlottesville: University Press of Virginia, 1991.

GOLDMAN, SHELDON. Picking Federal Judges. New Haven, Conn.: Yale University Press, 1997.

MALTESE, JOHN A. The Selling of Supreme Court Nominees. Baltimore: Johns Hopkins University Press, 1995.

13 Copyright © 2012 Pearson Education, Inc.

MASSARO, JOHN. Supremely Political: The Role of Ideology and Presidential Management in Unsuccessful Supreme Court Nominations. Albany: State University of New York Press, 1990.

NEMACHECK, CHRISTINE L. Strategic Selection: Presidential Nominations of Supreme Court Judges from Herbert Hoover through George W. Bush. Charlottesville: University of Virginia Press, 2007.

SILVERSTEIN, MARK. Judicious Choices: The New Politics of Supreme Court Confirmations.

New York: Norton, 1994.

YALOF, DAVID ALISTAIR. Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees. Chicago: University of Chicago Press, 1999.

Selected Readings on the Supreme Court EPSTEIN, LEE AND JACK KNIGHT. The Choices Justices Make. Washington, D.C.: CQ Press, 1998.

GARRATY, JOHN, ed. Quarrels That Have Shaped the Constitution, Rev. ed. New York: Harper & Row, 1987.

GIBSON, JAMES L., AND GREGORY A. CALDEIRA. “Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court.” 71 Journal of Politics 429 (2009).

JACKSON, ROBERT H. The Struggle for Judicial Supremacy. New York: Knopf, 1941.

JOHNSON, HERBERT, Gen. ed. Chief Justiceships of the United States Supreme Court. Columbia: University of South Carolina Press, 1995–. Volumes to date include: WILLIAM R. CASTO,The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (1995); HERBERT A. JOHNSON,The Chief Justiceship of John Marshall, 14 Copyright © 2012 Pearson Education, Inc.

1801–1835 (1997); JAMES W. ELY, JR., The Chief Justiceship of Melville W. Fuller, 1888– 1910 (1995); WALTER F. PRATT, JR., The Supreme Court under Edward Douglass White, 1910–1921 (1999); MELVIN I. UROFSKY,Division and Discord: The Supreme Court under Stone and Vinson, 1941–1953 (1997); EARL M. MALTZ,The Chief Justiceship of Warren Burger, 1969–1986 (2000); MICHAL BELKNAP,The Supreme Court under Earl Warren, 1953–1969 (2005); WILLIAM G. ROSS,The Chief Justiceship of Charles Evans Hughes, 1930–1941 (2007).

KELLY, ALFRED H., WINFRED A. HARBISON, AND HERMAN BELZ. The American Constitution, 7th ed., 2 vols. New York: Norton, 1997.

MASON, ALPHEUS T. The Supreme Court from Taft to Burger. Baton Rouge: Louisiana State University Press, 1979.

MCCLOSKEY, ROBERT G. The American Supreme Court, 4th ed. Chicago: University of Chicago Press, 2005.

MURPHY, WALTER F. Elements of Judicial Strategy. Chicago: University of Chicago Press, 1964.

O’ BRIEN, DAVID M. Storm Center, 8th ed. New York: Norton, 2008.

RENSTROM, PETER G., Gen. ed. Supreme Court Handbooks Series. Santa Barbara, Cal.: ABCCLIO, 2000–. Volumes to date include: TINSLEY E. YARBROUGH,The Burger Court (2000); PETER G. RENSTROM,The Stone Court (2001) AND The Taft Court (2003); MELVIN I. UROFSKY,The Warren Court (2001); MICHAEL E. PARRISH,The Hughes Court (2002); JAMES W. ELY, JR., The Fuller Court (2003); TIMOTHY S. HUEBNER, The Taney Court (2003); DONALD GRIER STEPHENSON, JR., The Waite Court (2003); JONATHAN LURIE,The

15 Copyright © 2012 Pearson Education, Inc.

Chase Court (2004); THOMAS R. HENSLEY,The Rehnquist Court (2006). MATTHEW P. HARRINGTON, Jay and Ellsworth (2008).

STEPHENSON, DONALD GRIER, JR. Campaigns and the Court: The U.S. Supreme Court in Presidential Elections. New York: Columbia University Press, 1999.

WARD, ARTEMUS. Deciding to Leave: The Politics of Retirement from the United States Supreme Court. Albany: State University of New York Press, 2003.

WARREN, CHARLES. The Supreme Court in United States History, 2 vols. Boston: Little, Brown, 1926.

WIECEK, WILLIAM M. Liberty Under Law. Baltimore: Johns Hopkins University Press, 1988.

Selected Biographies BISKUPIC, JOAN. Sandra Day O’ Connor. New York: Ecco, 2005.

DUNNE, GERALD T. Hugo Black and the Judicial Revolution. New York: Simon & Schuster, 1978.

HOBSON, CHARLES F. The Great Chief Justice: John Marshall and the Rule of Law. Lawrence: University Press of Kansas, 1996.

JEFFRIES, JOHN C., JR. Justice Lewis F. Powell, Jr. New York: Macmillan, 1994.

KENS, PAUL. Justice Stephen Field. Lawrence: University Press of Kansas, 1997.

MAGRATH, C. PETER. Morrison R. Waite New York: Macmillan, 1963.

MASON, ALPHEUS THOMASBrandeis: A Free Man’ s Life New York: Viking, 1946.

———. Harlan Fiske Stone: Pillar of the Law New York: Viking, 1956.

16 Copyright © 2012 Pearson Education, Inc.

———. William Howard Taft: Chief Justice New York: Simon & Schuster, 1964.

MORGAN, DONALD G. Justice William Johnson: The First Dissenter Columbia: University of South Carolina Press, 1954.

MURPHY, BRUCE ALLEN Wild Bill: The Legend and Life of William O. Douglas New York: Random House, 2003.

NEWMYER, R. KENTJohn Marshall and the Heroic Age of the Supreme Court Baton Rouge: Louisiana State University Press, 2001.

NEWTON, JIMJustice For All: Earl Warren and the Nation He Made New York: Riverhead, 2006.

SMITH, JEAN EDWARDJohn Marshall New York: Henry Holt, 1996.

SWISHER, CARL B. Roger B. Taney Washington, D.C.: Brookings Institution, 1935.

THOMAS, CLARENCE. My Grandfather’s Son: A Memoir. New York: Harper, 2007.

UROFSKY, MELVIN. Louis D. Brandeis: A Life. New York: Random House, 2009.

WHITE, G. EDWARDJustice Oliver Wendell Holmes New York: Oxford University Press, 1993.

YARBROUGH, TINSLEY E. John Marshall Harlan New York: Oxford University Press, 1992.

17 Copyright © 2012 Pearson Education, Inc.

INTRODUCTION: A POLITICAL SUPREME COURT TEST BANK Multiple Choice Questions 1. What Supreme Court justice served longer than any other member of the Court? a. John Marshall b. Stephen J. Field c. John Paul Stephens d. William O. Douglas 2. What Supreme Court justice in 1969 became the only member of the Court ever to resign under fire? a. William O. Douglas b. Abe Fortas c. Hugo Black d. Gerald Ford 3. Which of the following was not a Supreme Court nominee of Richard Nixon? a. Earl Warren b. Harry Blackmun c. Harrold Carswell d. Clement Haynsworth 4. What justice retired at about the same time as John Marshall Harlan? a. Warren Burger b. William O. Douglas c. Hugo Black d. Sandra Day O’Connor 5. What president nominated Sandra Day O’Connor to the Supreme Court? a. Jimmy Carter b. Bill Clinton c. Ronald Reagan d. Richard Nixon 6. Whose retirement created the vacancy eventually filled by Sandra Day O’Connor? a. Ronald Reagan b. Potter Stewart c. William O. Douglas d. Harold Burton

18 Copyright © 2012 Pearson Education, Inc.

7. Who became chief justice after Earl Warren? a. Warren Burger b. John Roberts c. Hugo Black d. William Rehnquist 8. Whom did President Reagan first nominate to replace Justice Lewis Powell? a. Harry Blackmun b. Robert Bork c. John Paul Stevens d. Stephen Breyer 9. Douglas Ginsburg was nominated to fill whose seat on the Supreme Court? a. Warren Burger b. Gerald Ford c. Lewis Powell d. Sandra Day O’Connor 10. Who was the first Supreme Court nominee of President George H. W. Bush? a. Clarence Thomas b. William J. Brennan c. David J. Souter d. Sandra Day O’Connor 11. Who was the last Supreme Court nominee of President George H. W. Bush? a. Clarence Thomas b. William J. Brennan c. David J. Souter d. Thurgood Marshall 12. Who was the first African American to serve on the Supreme Court? a. Clarence Thomas b. William J. Brennan c. Thurgood Marshall d. Sandra Day O’Connor 13. Through 2010, how many African Americans have sat on the Supreme Court? a. One b. Two c. Three d. Four

19 Copyright © 2012 Pearson Education, Inc.

14. Who nominated Anthony Kennedy to the Supreme Court? a. Ronald Reagan b. Bill Clinton c. George W. Bush d. Richard Nixon 15. Who was not a nominee of Ronald Reagan to the Supreme Court? a. Ruth Ginsburg b. Robert Bork c. Douglas Ginsburg d. William Rehnquist 16. Who was a nominee of President Obama to the Supreme Court? a. Samuel A. Alito b. Antonin Scalia c. Elena Kagan d. John Roberts 17. Who was the first Italian American named to the Supreme Court a. Sonia Sotomayor b. Samuel Alito c. Benjamin Cardozo d. Antonin Scalia 18. Through 2010, who is the most recent nominee to the Supreme Court not to be confirmed? a. Douglas Ginsburg b. Robert Bork c. Ave Fortas d. Harriet Miers

Essay Questions 1. What factors in recent decades have presidents seemed most often to take into account when making nominations for the Supreme Court?

2. In recent decades, why have some nominees met with widespread approval while others have stirred up much opposition?

3. What was the “nuclear option” in connection with the treatment of judicial nominees in the United States Senate?

4. How did diversity jurisdiction affect the work of the Supreme Court, especially in the nineteenth century?

20 Copyright © 2012 Pearson Education, Inc.

5. What accounts for the failure of Harriet Miers to secure a seat on the Supreme Court?

6. Why did Samuel Alito encounter greater opposition than John Roberts in the Senate when nominated for the Supreme Court?

7. What changes have occurred over the past 200 years in the types of cases the Supreme Court decides?

8. What difference does it make that the Court’s jurisdiction today is almost entirely discretionary?

9. On the day that President Clinton nominated Judge Ruth Ginsburg to the Supreme Court, one legal scholar (who had been dean of a prominent law school and a university president) stated on the PBS NewsHour that Ronald Reagan was the first president to have “politicized” Supreme Court appointments. Is this an accurate statement? Why?

Answer Key 1. —a 2. — b 3. —a 4. — c 5. — c 6. — b 7. — a 8. — b 9. —c 10. — c 11. — a 12. — c 13. — b 14. — a 21 Copyright © 2012 Pearson Education, Inc.

15. — a 16. — c 17. — d 18 — d

22 Copyright © 2012 Pearson Education, Inc.

CHAPTER ONE: JURISDICTION AND ORGANIZATION OF THE FEDERAL COURTS I. CHAPTER OUTLINE The Judicial Power Fifty-Two Judicial Systems Jurisdiction of the District Courts Jurisdiction of the Courts of Appeals Jurisdiction of the Supreme Court Self-Imposed Limitations on Judicial Power Supreme Court Decision Making Access to the Supreme Court The Justices at Work Agenda Setting Briefs on the Merits Oral Argument Conference Opinions and Decisions Source Materials Supreme Court Decisions United States Reports United States Reports, Lawyers’ Edition Supreme Court Reporter Electronic Access The LII and Hermes FindLaw The U.S. Supreme Court Case Record Lower Federal Court Decisions State Court Decisions Miscellaneous Judicial Resources Online Oyez The Federal Judicial Center The Federal Judiciary Home Page The Law and Politics Book Review LAWlink Medill on the Docket SCOTUS Blog Legislative and Administrative Materials General Reference Works Reading a Supreme Court Decision Litigants and the Facts Question(s) Decision 23 Copyright © 2012 Pearson Education, Inc.

Reasoning of the Opinions II. CHAPTER OVERVIEW AND OBJECTIVES Chapter One provides an overview of what Article III of the Constitution refers to as “The Judicial Power” and describes the national judicial system in the United States, which consists of 52 judicial systems: the courts of the 50 states, the courts of the national government, and the courts of the District of Columbia. The courts of the national government are those that are commonly referred to, somewhat misleadingly, as “federal courts.” The chapter also presents certain rules and procedures guiding the justices in choosing the cases they will decide and sketches the major steps leading to a decision. These steps describe the process by which nearly every case in the casebook was actually decided. Furthermore, as the chapter depicts, the rules governing jurisdiction and standing to sue vest in the justices considerable discretionary power.

The justices control their workload by selecting the cases that demand attention at the highest level. In the governing process, the Supreme Court has an important, if circumscribed, role to play. This information and analysis on both organization and process is important in setting the context for the work of the Supreme Court. In this respect, American Constitutional Law is written from the conviction that grasping the context in which the Court functions and the methods by which it decides cases is essential if one is fully to comprehend the place of the third branch in the operation of the American political system.

Moreover, the chapter devotes considerable space to a listing of various sources that students of the Court and the judicial process generally will find helpful in delving more deeply into the issues and processes explored in American Constitutional Law. Finally, the chapter concludes with a section on suggestions for reading and comprehending a Supreme Court decision. This section follows the same information presented earlier in this manual. Instructors may choose to refer students to the appropriate pages in the casebook to duplicate the same material from this manual for distribution to class.

III. KEY TERMS federal courts state courts jurisdiction Article III courts Article I courts original jurisdiction appellate jurisdiction federal question diversity jurisdiction magistrate judges 24 Copyright © 2012 Pearson Education, Inc.

certiorari appeal direct appeal Ashwander rules case or controversy ripeness advisory opinion standing nonjusticiable political question doctrine judicial activists judicial restraintists briefs rule of four solicitor general amici curiae oral argument conference opinion of the Court plurality opinion dissent concurring opinion law clerks briefing a case petitioner respondent appellant appellee affirming reversing remand 25 Copyright © 2012 Pearson Education, Inc.

IV. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. Should it be a matter of concern that today, as one study has shown, the more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans, and that the more liberal justices are more likely than in the past to hire from judges appointed by Democrats? If so, should Congress intervene in some way? Under separation of powers principles developed in Chapter Three, may Congress intervene with respect to this matter? Should clerks be hired as a group and then randomly assigned to the justices? Should a nonpartisan committee of former clerks, law professors, and lawyers who regularly appear before the court choose clerks and then assign them?

2. Review Table 1.1 on page 31. What do the data suggest about the importance of state and lower federal courts in helping to shape American constitutional law?

3. How can “threshold questions” such as standing be crucial in the outcome of a constitutional case?

4. Between 1800 and the 1940s, nonunanimous Supreme Court decisions were the exception, not the rule. Rarely did a published dissent appear in as many as 25 percent of the cases, and the dissent rate usually hovered near 10 percent. The pattern in the past 60 years has been sharply different. Nonunanimous decisions are the rule, not the exception. Published dissents routinely appear in at least half the decisions. What factors might account for this change? Is the Court helped or hurt by dissenting opinions?

5. Fred Graham, former Supreme Court reporter for the New York Times and CBS News and a founder of Court TV, has said, “The only groups who don’t appear on television are the Supreme Court and the Mafia.” Although the Court’ s argument sessions are open to the public, the justices resolutely refuse to allow oral arguments to be telecast or broadcast at all and only rarely permit even tape-delayed audio transmission of proceedings. Moreover, few justices grant interviews to journalists and, when they do, rarely speak about specific cases. Should oral arguments be telecast in the same way that the House and Senate allow televised coverage of their floor proceedings? Would the Court appear less mysterious to the public if the justices sought publicity like other officials in Washington? Would increased exposure negatively affect the Court?

6. Today Supreme Court justices ordinarily hire four law clerks. What are some of the duties law clerks perform? To what degree are the clerks central to the Court’s work? Are the risks real that, as some critics insist, clerks have too much influence?

7. Consider the decision-making steps listed shortly in light of the theories of decision making discussed in Chapter Two. How might the Court’s decision-making procedures enter into the strategic model?

26 Copyright © 2012 Pearson Education, Inc.

8. Senator Patrick Leahy of Vermont, who is also chair of the Senate’s Committee on the Judiciary, has introduced legislation that would allow a retired justice to sit with the Court when one of the nine justices has recused herself or himself from participation in a case. This would reduce the chances of a 4–4 decision. Such 4–4 decisions establish no precedent, merely affirm the decision of the Court below, and yet consume as much time and energy from the parties and the justices as one not decided 4–4. Supporters also say that the provision would encourage sitting justices to recuse themselves when there is even an appearance of a conflict of interest.

Under Leahy’s legislation, a majority of active justices would have to vote to assign a retired justice to fill in on a particular case. Are there reasons not to adopt the Leahy plan?

9. Recent research indicates that current justices are much more likely than their predecessors to hire clerks who share their ideological perspective. What might be the consequences of this trend if it continues?

V. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS SUPREME COURT DECISION MAKING 1. Deciding whether to decide. The Court grants or denies petition for a writ of certiorari to the court below. If the writ is granted, the process moves to steps 2–6. (Under the Court’s rules, it takes the vote of four justices to grant the writ of certiorari.) If the writ is denied, the litigation ordinarily ends.

2. Briefs on the merits.

3. Oral argument.

4. Conference and tentative decision.

5. Assignment and writing of the opinion of the Court. (Opinion assignment made by the chief justice if he is in the majority or by the senior associate justice in the majority if the chief dissents.)

6. Announcement and publication of decision (usually weeks or even months after the conference vote).

VI. RESOURCES AND SUGGESTED READINGS EPSTEIN, LEE, JEFFREYA. SEGAL, AND HAROLD J. SPAETH. “The Norm of Consensus on the U.S. Supreme Court.” 45 American Journal of Political Science 362 (2001).

GRESSMAN, EUGENE. Supreme Court Practice, 9th ed. Washington, D.C.: BNA Books, 2007.

27 Copyright © 2012 Pearson Education, Inc.

JOHNSON, TIMOTHY, R., PAUL J. WAHLBECK, AND JAMES F. SPRIGGS, II. “The Influence of Oral Arguments on the U. S. Supreme Court.” 100 American Political Science Review 99 (2006).

NEUBAUER, DAVID, AND STEPHEN S. MEINHOLD. Judicial Process: Law, Courts and Politics in the United States, 5th ed. Belmont, Cal.: Wadsworth, 2009.

PACELLE, RICHARD L., JR. Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation. College Station, Tex.: Texas A&M University Press, 2003.

PEPPERS, TODD, C. Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk. Stanford, Cal.: Stanford University Press, 2006.

PERRY, H. W., JR. Deciding to Decide: Agenda Setting in the United States Supreme Court.

Cambridge, Mass.: Harvard University Press, 1991.

SONGER, DONALD R., REGINALD S. SHEEHAN, AND SUSAN B. HAIRE. Continuity and Change on the United States Courts of Appeals. Ann Arbor: University of Michigan Press, 2000.

SURRENCY, ERWIN C. History of the Federal Courts, 2nd ed. New York: Oxford University Press, 2002.

WARD, ARTEMUS, AND DAVID L. WEIDEN. Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court. New York: New York University Press, 2007.

28 Copyright © 2012 Pearson Education, Inc.

CHAPTER ONE: JURISDICTION AND ORGANIZATION OF THE FEDERAL COURTS TEST BANK

Multiple Choice Questions 1. Article III of the Constitution provides that the Supreme Court “. . . shall have _____ Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the _____ shall make.” a. original; Congress b. appellate; Congress c. original; Supreme Court d. appellate; Supreme Court 2. Under Article III, _____ controls the jurisdiction, both original and appellate, of the lower federal courts. a. the Supreme Court b. the Congress c. the president d. the Justice Department 3. Article II enumerates specific powers granted to the president. These include the authority to _____. a. nominate federal judges b. suspend writs of habeas corpus c. withhold privileged communications d. All of the above 4. The fundamental threshold question that must be addressed in any lawsuit is that of _____. a. attainder b. habeas corpus c. justiciability d. jurisdiction 5. After determining that a real case or controversy exists, a federal court must ascertain whether the parties to the litigation have _____. a. jurisdiction b. a cause of action c. standing d. an injunction

29 Copyright © 2012 Pearson Education, Inc.

6. A case is considered _____ if the issues that gave rise to it have been resolved or otherwise disappeared. a. unripe b. exhausted c. moot d. hypothetical 7. An appeal from a decision by a U.S. District Court in California is typically heard by the U.S. Court of Appeals for the ______. a. Ninth Circuit b. First Circuit c. Third Circuit d. Federal Circuit 8. An appeal in a patent case from a U.S. district court in New Jersey will typically be heard by the U. S. Court of Appeals for the ______. a. Third Circuit b. Federal Circuit c. Fifth Circuit d. District of Columbia Circuit 9. An appeal from a ruling by the Court of Appeals of Veterans Claims is typically heard by ______. a. the U.S. Court of Appeals for the District of Columbia Circuit b. the U.S. Court of Appeals for the Federal Circuit c. the Virginia Supreme Court d. the U.S. Court of Appeals for the Federal Circuit 10. A case appealed from the U.S. District Court in Guam will typically be heard by ______. a. the Supreme Court of California b. the Court of Appeals for the Eighth Circuit c. the Court of Appeals for the Ninth Circuit d. the U.S. Court of Appeals for the Federal Circuit 11. Search warrants in the federal court system are ordinarily issued by ______. a. U.S. district judges b. a law clerk c. judges on the closest U.S. court of appeals d. U.S. magistrate judges

30 Copyright © 2012 Pearson Education, Inc.

12. Which of the following is usually included within the list of Ashwander Rules? a. The Court will not formulate a rule of law broader than the facts of the case require. b. If possible, the Court will dispose of a case on nonconstitutional grounds. c. The Court will not pass upon the validity of a statute on complaint of one who fails to show injury to person or property. d. All of the above 13. Which of the following is not usually included within the list of Ashwander Rules? a. The Court will not formulate a rule of law broader than the facts of the case require. b. If possible, the Court will dispose of a case on nonconstitutional grounds. c. The Court will not pass upon the validity of a statute on complaint of one who fails to show injury to person or property. d. Whenever possible, the Court will protect an individual’s constitutional rights.

Essay Questions 1. Losing litigants in the lower courts often say that they will “take this all the way to the United States Supreme Court.” Why should such statements be regarded more as threats, not promises?

2. What do the data about the Supreme Court’s caseload suggest about the importance of state and lower federal courts in helping to shape American constitutional law?

3. How can “threshold questions” such as standing be crucial in the outcome of a constitutional case?

4. What are the Ashwander Rules? Do they expand or contract judicial power? Explain.

5. What is the difference between a judicial activist and a judicial restraintist?

6. What are the principal steps in the process by which the Supreme Court decides cases?

7. What is the role of the solicitor general of the United States in the work of the Supreme Court?

8. What is the role of amici curiae in the work of the Supreme Court?

Answer Key 1. — a 2. — b 3. — a

31 Copyright © 2012 Pearson Education, Inc.

4. — d 5. — c 6. — c 7. — a 8. — b 9. — a 10. — b 11. — d 12. — d 13. — d

32 Copyright © 2012 Pearson Education, Inc.

CHAPTER TWO: THE CONSTITUTION, THE SUPREME COURT, AND JUDICIAL REVIEW I. CHAPTER OUTLINE Granting and Limiting Power Constitutionalism Separation and Sharing of Powers Federalism The Doctrine of Judicial Review The Framers The Written and Unwritten Constitution From William Marbury to Dred Scott Supreme Court Review of State Court Decisions Influences on Judicial Decision Making Checks on Judicial Power External Checks Political Question Doctrine Finality of Supreme Court Decisions Approaches to Constitutional Interpretation What Is “the Constitution?”

Clear Meaning Adaptation Original Intent Structuralism Judicial Review: A Distinctively American Contribution

II. CHAPTER OVERVIEW AND OBJECTIVES Chapter Two lays out the basic component principles of the Constitution of the United States (separation and sharing of powers and federalism and their place in the Constitution with judicial review, which in turn is highlighted as having been applied for the first time by the Supreme Court in Marbury v. Madison. By focusing on judicial review in this early chapter in the book, the objective is to interest the student in central issues surrounding judicial review itself, both in terms of its origins and its continuation as a feature of American politics and government.

This landmark ruling from 1803 in turn is shown to have been anticipated by certain leaders in the founding generation of the nation, specifically Alexander Hamilton and Robert Yates. Both delegates to the Philadelphia Convention in 1787 from the state of New York, Hamilton remained until the convention finished its work while Yates left before the convention finished its work on September 17. Hamilton was an ardent supporter of the Constitution while Yates was one of its chief detractors. Indeed, one of Yates’s principal concerns was the power he 33 Copyright © 2012 Pearson Education, Inc.

believed the Supreme Court would exercise in the new government as an expositor of the new charter. Hamilton likewise believed the Supreme Court would exercise judicial review, but minimized its frightening potentialities chiefly because the Court would lack the essential tools of political power: that of the “purse” and the “sword,” leaving it with merely the power of “judgment.” Indeed, the facts of Marbury v. Madison seemed to validate Hamilton’s position, while the later decision in the Dred Scott case perhaps demonstrated the extent of Yates’s fears.

Coupled with Marshall’s defense of judicial review in Marbury is Pennsylvania jurist John Bannister Gibson’s assault on judicial review, written some 22 years after Marbury was decided.

Chapter Two also introduces student to the idea of influences on judicial decision making by highlighting three theories or models developed by scholars: the legal model, the attitudinal model, and the strategic model.

Similarly, the chapter introduces the student to various checks on judicial power, including both checks that are external to the Court and those like the political-question doctrine (developed more fully in Chapter Five) that are internal.

The next section may challenge certain assumptions that students have acquired over the years about the finality of Supreme Court decisions. The tendency upon reading Marbury v.

Madison may be to assume that the decision settled the Court’s place in American constitutional development as the final authority on the meaning of the Constitution. As materials in this chapter show, the decision did no such thing.

The final section on approaches to constitutional interpretation invites students to reflect on the method(s) justices use when they attempt to give meaning to various provisions of the Constitution. All may agree on what the text of the Constitution actually says, but how does one decide what the words of the text actually mean? The contrast between two of the approaches is highlighted in the excerpts the chapter reports by former judge Robert Bork and Professor Laurence Tribe.

III. KEY TERMS constitutionalism separation of powers federalism free government political checks judicial review supremacy clause writ of mandamus legal model 34 Copyright © 2012 Pearson Education, Inc.

attitudinal model strategic model Section 25 guarantee clause political-question doctrineReligious Freedom Restoration Act

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Unstaged Debate of 1788: Robert Yates v.Alexander Hamilton: Robert Yates’s Letters of Brutus Alexander Hamilton’s Federalist No. 78 Marbury v. Madison 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) Eakin v. Raub 12 Sergeant & Rawle (Pa. Supreme Court) 330 (1825) Scott v. Sandford 60 U.S. (19 Howard) 393, 15 L.Ed. 691 (1857) Ex parte McCardle 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1869) Baker v. Carr 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962) City of Boerne v. Flores 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed. 2d 624 (1997) Unstaged Debate: Andrew Jackson, Abraham Lincoln, and Arkansas v. the Supreme Court President Jackson Vetoes the Bank Act (1832) President Lincoln Delivers His First Inaugural Address (1861) The Supreme Court Decides Cooper v. Aaron (1958) Unstaged Debate of 1986: Judge Bork v. Professor Tribe Robert H. Bork, “Original Intent and the Constitution” Laurence H. Tribe, “The Holy Grail of Original Intent”

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE Eakin v. Raub (1825)—Justice Gibson’s opinion, disputing Chief Justice Marshall’s defense of judicial review, is reprinted online in full.

Letters of Brutus (1788)— several installments of Robert Yates’s spirited opposition to the Constitution and especially to the judiciary in the proposed Constitution are reprinted online.

35 Copyright © 2012 Pearson Education, Inc.

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT Was Marbury v. Madison a usurpation of power by the Supreme Court? Would the absence of judicial review “subvert the very foundations of all written constitutions” as Marshall insists in his opinion?

2. Members of the contemporary Court will sometimes look to foreign courts or international bodies as authorities or guides in interpreting the Constitution. Is this appropriate? Should it matter that judges on courts abroad are not appointed by the president and confirmed by the Senate and that such judges do not take an oath of loyalty to the United States Constitution?

3. Constitutional scholars widely regard Dred Scott not only as a consequential decision but also as the worst decision ever rendered by the Supreme Court. Why? 4. On what point are Robert Yates (“Letters of Brutus”) and Alexander Hamilton (The Federalist, No. 78) in agreement? Where do they disagree? Does Yates overstate the dangers to popular government posed by judicial power? Does Hamilton understate them? Does the Constitution provide adequate safeguards against abuse of judicial power?

5. Both Yates and Hamilton assumed that the Supreme Court would exercise the power of judicial review. Yet those two New York delegates to the Constitutional Convention seemed to believe that judicial review would work in very different ways. Explain.

6. Consider Chisholm v. Georgia in Chapter Four. Note the curious problem the Court encounters in that case: the text of the Constitution appears to conflict with its meaning, at least as widely understood at the time of ratification. How does the Court resolve this problem? What does Wilson’s opinion suggest about how the he perceived the Court’s role in the political system, even at so early a date?

7. Marshall (in Marbury v. Madison) and Pennsylvania’s Gibson (in Eakin v. Raub) reached opposite conclusions about the legitimacy of the Supreme Court’s exercise of judicial review with respect to acts of Congress. Does this suggest that they began with different assumptions about the Constitution? Why has the decision in the Dred Scott case almost always been viewed as “the great mistake”? Wholly aside from the results of the case, how does Taney’s opinion represent an expansion of Marshall’s concept of judicial review? In what way does the City of Boerne case illustrate an apparently failed congressional check on judicial power? What approaches to constitutional interpretation do you find in the opinions filed in District of Columbia v. Heller, reprinted in Chapter Nine? How do you account for the different conclusions reached by the majority and minority in that case?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS

36 Copyright © 2012 Pearson Education, Inc.

ARTICLES OF CONFEDERATION (1777) [Note: The document below incorporates the original spelling.]

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

I. The Stile of this Confederacy shall be “The United States of America.”

II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the 37 Copyright © 2012 Pearson Education, Inc.

Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

V. For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

In determining questions in the United States in Congress assembled, each State shall have one vote.

Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendence on Congress, except for treason, felony, or breach of the peace.

VI. No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

38 Copyright © 2012 Pearson Education, Inc.

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

VII. When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

IX. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—entering into treaties and alliances, provided that no treaty of commerce 39 Copyright © 2012 Pearson Education, Inc.

shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever— of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated—of granting letters of marque and reprisal in times of peace— appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgement and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgement, which shall in like manner be final and decisive, the judgement or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgement, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, ‘well and truly to hear and determine the matter in question, according to the best of his judgement, without favor, affection or hope of reward’: provided also, that no State shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the

40 Copyright © 2012 Pearson Education, Inc.

Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States—fixing the standards of weights and measures throughout the United States— regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated— establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office—appointing all officers of the land forces, in the service of the United States, excepting regimental officers—appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States—making rules for the government and regulation of the said land and naval forces, and directing their operations.

The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated ‘A Committee of the States,’ and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction—to appoint one of their members to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses—to borrow money, or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted—to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a solid-like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. But if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number of men than the quota thereof, such extra number shall be raised, officered, cloathed, armed and equipped in the same manner as the quota of each State, unless the legislature of such State shall judge that such extra number cannot be safely spread out in the same, in which case they shall raise, officer, cloath, arm and equip as many of such extra number as they judeg can be safely spared. And the officers and men so cloathed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.

The United States in Congress assembled shall never engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of 41 Copyright © 2012 Pearson Education, Inc.

the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of the majority of the United States in Congress assembled.

The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgement require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States.

X. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of the nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled be requisite.

XI. Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.

XII. All bills of credit emitted, monies borrowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pleged.

XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the 42 Copyright © 2012 Pearson Education, Inc.

said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them.

And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In Witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the independence of America.

Agreed to by Congress 15 November 1777. In force after ratification by Maryland, 1 March 1781.

HAMILTON V. YATES (1788) Constitutional Interpretation Common ground: both Hamilton and Yates assume judicial review.

Yates: Constitution’s elasticity leaves too much discretion in the hands of judges.

Hamilton: assumes a precise Constitution; violations will be clear; little discretion left for judges.

Judicial Review and Democracy Yates: courts subvert people’s will; prefers legislative review.

Hamilton: courts enforce/protect people’s will.

Judicial Power Yates: unchecked power; judicial independence run amok.

Hamilton: judiciary is the weakest branch.

CHRONOLOGY: MARBURY V. MADISON (1803) May 1800

John Marshall becomes secretary of state in the Adams administration (Federalist).

43 Copyright © 2012 Pearson Education, Inc.

Nov. 1800

Fall elections hand control of Congress to the Democratic-Republicans (Thomas Jefferson’s party). The newly elected Congress will not convene until December of 1801.

Dec. 1800

“Lame duck” session of Congress convenes, still controlled by the Federalists.

Jan. 20, 1801

Adams appoints Marshall as chief justice, following Oliver Ellsworth’s resignation, after John Jay declines to return to his old office. Marshall continues to serve as secretary of state.

Feb. 1801

Electoral vote count reveals a tie between Republican Jefferson and Aaron Burr for president. Later in the month, the House of Representatives finally breaks the tie in Jefferson’s favor.

Feb. 27, 1801

Congress passes District of Columbia Act, authorizing 42 new justices of the peace (local magistrates) for the district.

March 2, 1801

Adams makes the 42 new appointments, and the Senate confirms them. By the evening of March 3, Secretary of State Marshall fails to have the commissions of office delivered.

March 4, 1801

Marshall delivers the office to Jefferson as the third president. Jefferson later instructs Secretary of State James Madison to deliver 25 of the previously undelivered commissions, but not the remaining 17.

Dec. 1801

Four of the 17 would-be justices of the peace (William Marbury, Dennis Ramsey, Robert Townsend Hooe, and William Harper) file suit in the Supreme Court under section 13 of the Judiciary Act of 1789 to obtain their commissions. They ask the Court to issue a “writ of mandamus” to Madison. Section 13 authorizes the Supreme Court to issue writs of mandamus as part of its original jurisdiction.

Feb. 1803

The Supreme Court hears the case, but the Jefferson administration boycotts the oral argument. The Supreme Court announces its decision on February 24.

MARBURY V. MADISON (1803) 1.

Political Background: The election of 1800

2.

Facts

3.

Questions A. Does William Marbury have a right to the commission?

44 Copyright © 2012 Pearson Education, Inc.

B. If he has a right to the commission, may the laws of his country afford him a remedy?

C. If a remedy is available, is it the writ of mandamus?

4.

What Marshall said—his reasoning A. Purpose of a Constitution B. The Constitution therefore trumps a statute that conflicts with the Constitution.

C. It is the Court’s duty to decide because the Constitution is a kind of law.

5. Contrast in interpretation: Marshall’s strict reading of the Constitution creates a conflict between Article III and the statute; his loose reading of the Constitution provides a way out of the Court’s political dilemma.

6.

Why Marshall said it.

A. Escapes present dilemma B. Stakes a claim for the future role of the Supreme Court C. Answers a question the Constitution does not answer D. Makes Constitution a juridical document

A COMPARISON OF MARBURY & DRED SCOTT Marbury (Marshall)

Dred Scott (Taney)

Basis of Decision Article III (seemingly explicit)

Amendment V (open ended)

Interpretive Approach Adaptive/textual/structural?

Originalism/adaptive?

Target of Decision Court’s own power

Congressional policy

Effect on Congress Other mandamus options left untouched

Forecloses most options

JUSTICE GIBSON’S MAIN POINTS IN EAKIN V. RAUB (1825) 1. Starting assumption: civil and political powers of courts.

2. No reason to take cognizance of a collision between a statute and a provision of the Constitution.

45 Copyright © 2012 Pearson Education, Inc.

3. Absence of express textual authority for judicial review.

4. Reliance on the oath to support the Constitution is misplaced; all officials, not just judges, take the oath.

5. No judicial complicity in wrongdoing when judges apply a statute at odds with the Constitution; blame lies with the legislature alone.

6. Efficacy of a written constitution. Its value remains even without judicial review.

7. Popular check more efficient than judicial check because it is more easily corrected.

8. Article VI exception for state judges in situations where a state law arguably violates the federal constitution.

Marshall and Gibson have very different views of “the people” as guardians of the Constitution.

VIII. RESOURCES AND SUGGESTED READINGS BREYER, STEPHEN.Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005.

CORWIN, EDWARD S. The Doctrine of Judicial Review. Gloucester, Mass.: Peter Smith, 1963; reissue of 1914 edition, published by Princeton University Press.

GRABER, MARK A. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press, 2006.

HOBSON, CHARLES F. “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government.” 36 William and Mary Quarterly (3rd series) 215 (1979).

MASON, ALPHEUS T. The Supreme Court: Palladium of Freedom. Ann Arbor: University of Michigan Press, 1962.

MURPHY, WALTER F. Constitutional Democracy. Baltimore: Johns Hopkins University Press, 2006.

46 Copyright © 2012 Pearson Education, Inc.

SEDDIG, ROBERT G. “John Marshall and the Origins of Supreme Court Leadership.” 36 University of Pittsburgh Law Review 785 (1975); reprinted in Journal of Supreme Court History 63 (1991).

SLOAN, CLIFF, AND DAVID MCKEAN. The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court. New York: Public Affairs, 2009.

SNOWISS, SYLVIA.Judicial Review and the Law of the Constitution. New Haven, Conn.: Yale University Press, 1990.

WHITTINGTON, KEITH E. Political Foundations of Judicial Supremacy. Princeton, N.J.: Princeton University Press, 2007.

47 Copyright © 2012 Pearson Education, Inc.

CHAPTER TWO: THE CONSTITUTION, THE SUPREME COURT, AND JUDICIAL REVIEW TEST BANK Multiple Choice Questions 1. In Federalist No. 78, _____ argued that the judiciary would be the “least dangerous branch.” a. James Madison b. John Jay c. Benjamin Franklin d. Alexander Hamilton 2. Who won the case of Marbury v. Madison? a. Alexander Hamilton b. John Marshall c. William Marbury d. James Madison 3. In Scott v. Sandford, on what part of the Constitution did Chief Justice Taney rely in invalidating the Missouri Compromise? a. Article I b. Article IV c. First Amendment d. Fifth Amendment 4. Who wrote the opinion of the Court in Ex parte McCardle? a. Justice Grier b. Chief Justice Marshall c. Chief Justice Taney d. Chief Justice Chase 5. William McCardle was ______. a. a federal judge b. a Supreme Court justice c. an ex-Confederate general d. a newspaper editor 6. Section 5 of the Fourteenth Amendment grants Congress the authority to legislate in the field of _____. a. eminent domain b. criminal law c. civil rights d. international relations

48 Copyright © 2012 Pearson Education, Inc.

7. City of Boerne v. Flores concerned ______. a. criminal justice b. the Religious Freedom Restoration Act c. highway construction d. the right to vote 8. Robert Yates was ______. a. a signer of the Declaration of Independence b. an author of the Letters of Brutus c. Alexander Hamilton’s cousin d.a proponent of Federalism 9. Robert Yates believed ______. a. that the Supreme Court would practice judicial review b. that the Constitution protected the rights of the states c. that the meaning of the Constitution was fixed d. that judges could be trusted to decide cases correctly 10. John Marshall was named chief justice by ______. a. George Washington b. John Adams c. Thomas Jefferson d. James Madison

Essay Questions 1. Define the power of judicial review as exercised by courts in the United States.

2. Explain and evaluate Chief Justice Marshall’s reasoning in support of the Supreme Court’s assumption of the power of judicial review in Marbury v. Madison (1803). Focus not on the facts of the case, but rather on the assumption of judicial review (both in this case and in principle).

3. Summarize the major points in Justice Gibson’s critique of Chief Justice Marshall’s position in Eakin v. Raub (1825).

4. Aside from the basic arguments, explore the implications of judicial review as a major component of American government.

5. What are the advantages and disadvantages of a reliance on judicial review? Support your conclusions.

6. On what basis did Justice Gibson believe that state courts were authorized by the U.S. Constitution to exercise judicial review?

49 Copyright © 2012 Pearson Education, Inc.

7. Among the several approaches to constitutional interpretation, which ones were used in Scott v. Sandford? Explain.

8. Among the several approaches to constitutional interpretation, which ones were used in Marbury v. Madison? Explain.

9. It is commonly agreed that three questions were embedded within the Dred Scott case (1857) when it reached the Supreme Court. Had the majority confined its attention to only two of these questions, the Court could have decided the case without reaching what proved to be the most explosive question that the case placed on the table. Explain.

10. Identify and explain the two strongest arguments you believe Chief Justice Marshall makes in Marbury v. Madison (1803) in defense of judicial review. Then, identify and explain two counterarguments advanced in Eakin v. Raub (1825) by Justice Gibson against those points in his critique of Marshall’s position.

11. Marbury v. Madison and Scott v. Sandford, separated by 54 years, were the first and second occasions when the Supreme Court invalidated an act of Congress. In the opinion of many constitutional scholars, the Dred Scott decision seems to signify or embody a significant expansion of judicial review, when compared to Marbury. Do you agree? Support your answer with at least three points.

12. In the Letters of Brutus, New York’s Robert Yates laid out his views on what could be expected from the proposed Supreme Court of the United States that would become part of the new national government if the Constitution were ratified. In what way or ways were Yates’s views confirmed by the Supreme Court’s decision in Chisholm v. Georgia (1793) and Marbury v. Madison (1803) and in the circumstances surrounding those cases? In what way or ways were Yates’s views refuted by those decisions and in the circumstances surrounding those cases?

13. From 1803 until 1857, Marbury v. Madison (1803) and Scott v. Sandford (1857) were the only instances in which the Supreme Court invalidated an act of Congress. Yet, as exercises in judicial review, the two decisions appear vastly different. Identify and explain two ways in which this might be so.

14. According to John Marshall in Marbury v. Madison (1803), to deny the Supreme Court the power of judicial review “would subvert the very foundation of all written constitutions …” and “reduce to nothing what we have deemed the greatest improvement on political institutions, a written constitution.” (a) What point is Marshall making here in defense of judicial review? Explain. (b) What does Pennsylvania’s justice Gibson in Eakin v. Raub (1825) offer by way of rebuttal for this part of Marshall’s Marbury opinion? Explain.

50 Copyright © 2012 Pearson Education, Inc.

15. (a) Justice James Wilson’s opinion in Chisholm v. Georgia (1793) describes the case as one “of uncommon magnitude.” What gave to the case its “uncommon magnitude”? Discuss. (b) Would the Court’s decision in Chisholm have surprised New York’s judge Robert Yates?

Why? 16. The introductory essay for Chapter Two contains a section that discusses “Approaches to Constitutional Interpretation.” The section presents four such approaches. What are these four approaches? Explain how each one is illustrated by a Supreme Court opinion (majority, dissenting, or concurring) that has been assigned thus far in the course.

17. Chief Justice Marshall’s opinion in Marbury v. Madison contains the following two sentences: “The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.” Discuss.

18. Any prospective Supreme Court justice testifying before the Senate Judiciary Committee will profess an intention to “interpret the Constitution” if confirmed. A revealing follow-up question would be to ask the nominee what precisely is meant by “the Constitution.” Drawing examples from three cases you have studied in this course, write an essay illustrating how justices may differ over “the Constitution” that is being interpreted. Your examples should illuminate at least three different understandings of what “the Constitution” may be.

19. In Ashwander v. TVA (1936), Justice Brandeis listed a series of restrictions that, historically, the Supreme Court has imposed on itself to avoid confronting issues unnecessarily and to avoid injecting itself unnecessarily in political controversy. The fourth such limitation on Brandeis’s list advises, “If possible, the Court will dispose of a case on nonconstitutional grounds.” Discuss Scott v. Sandford (1857) in light of Brandeis’s later admonition.

20. In Eakin v. Raub (1825), Justice John Bannister Gibson of the Supreme Court of Pennsylvania wrote what many regard as the most effective rebuttal to Chief Justice John Marshall’s defense of judicial review in Marbury v. Madison (1803). Identify, explain, and assess three of the points Gibson makes against Marshall’s position.

21. Supreme Court opinions in constitutional cases vary considerably in their use of, and reliance upon, the text (i.e., the words) of the Constitution. Sometimes, the text seems to be very important in the resolution of the case, while at other times the text seems to play a minor role or is nearly invisible. From the cases assigned for reading thus far in the course, select two that demonstrate this variance: one case where an opinion (majority or separate) seems largely “text driven” and another case where an opinion (majority or separate) does not. In an essay, demonstrate how the presence or absence of “text” tends to shape the result advocated by each opinion. (You may also use a single case for this essay, if the variance is demonstrated by different opinions in the same case.)

51 Copyright © 2012 Pearson Education, Inc.

22. Imagine that you are one of Chief Justice John Marshall’s colleagues on the United States Supreme Court in 1803. In conference, Marshall explains how Marbury v. Madison should be decided. You disagree. “Perhaps section 13 of the 1789 Judiciary Act is not in accordance with the Constitution,” you say, “but in any event I do not believe that this Court has the authority to invalidate an act of Congress. We’ve never done that.” A week later, Marshall shows you his opinion of the Court in Marbury, and you decide to write a dissenting opinion. What do you say in response to what Marshall has written?

Answer Key 1. — d 2. — d 3. — d 4. — d 5. — d 6. — c 7. — b 8. — b 9. — a 10. — b

52 Copyright © 2012 Pearson Education, Inc.

CHAPTER THREE: CONGRESS AND THE PRESIDENT I. CHAPTER OUTLINE Separation of Powers Sharing within Separation Two Approaches Congress and Lawmaking Delegation Legislative Veto The Short-Lived Item Veto Investigations Membership and Privilege The President and Executive power

II. CHAPTER OVERVIEW AND OBJECTIVES Chapter Three attempts to accomplish two broad general objectives. The first is to explain the theory of separation of powers. The second is to highlight several instances and categories where questions about application of this theory have given rise to litigation. These instances in turn raise questions about the role of the Supreme Court in refereeing separation-ofpowers disputes.

Probably most important in terms of communicating to students is to place the chapter in the context of several of the Federalist essays. Indeed, were page space not at a premium, Chapter Three would include excerpts from these essays, as an earlier edition in fact did.

III. KEY TERMS separation of powers checks and balances delegation legislative veto subpoena item veto Congressional Review Act exclusion expulsion 53 Copyright © 2012 Pearson Education, Inc.

speech or debate clause constitutional theory stewardship theory prerogative theory unitary executive theory executive privilege independent counsel special prosecutor absolute immunity qualified immunity executive agreement War Powers Resolution Authorization for Use of Military Force IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Mistretta v. United States (1989) Immigration and Naturalization Service v. Chadha (1983) Clinton v. City of New York (1998) Watkins v. United States (1957) Barenblatt v. United States (1959) United States v. Nixon (1974) Nixon v. Fitzgerald (1982) Clinton v. Jones (1997) Myers v. United States (1926) Humphrey’s Executor v. United States (1935) Morrison v. Olson (1988) Ex parte Milligan (1866) Missouri v. Holland (1920) United States v. Curtiss-Wright Export Corp. (1936) Korematsu v. United States (1944) Youngstown Sheet & Tube Co. v. Sawyer (1952) 54 Copyright © 2012 Pearson Education, Inc.

United States v. United States District Court (1972) Boumediene v. Bush (2008) V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE Hamdi v. Rumsfeld (2004) Hamdan v. Rumsfeld (2006) VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. James Madison spelled out in Federalist No. 47 the Framers’ concern, dating from rule by the British, with concentrated power: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” How does the Constitution attempt to avoid this pitfall of tyranny?

2. Then in Federalist No. 48, Madison identified specifically his biggest concern: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” If this is so, why were the Framers so generous with grants of legislative power, especially in light of the far-from-generous grants of the author to Congress under the Articles of Confederation?

3. This perspective in turn led Madison to summarize in Federalist No. 51 the particular challenge faced by any group trying to set up a government by the consent of the governed: “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.” What measures does the Constitution embody to achieve both objectives?

4. Consider City of Boerne v. Flores (1997) from Chapter Two alongside Missouri v. Holland in Chapter Three. Does the latter suggest a way by which the Religious Freedom Restoration Act might itself be restored? In “The Global Dimensions of RFRA,” [14 Constitutional Commentary 33 (1997)], Gerald L. Neuman called attention to the International Covenant on Civil and Political Rights (CCPR) to which the United States became a party in 1992. Among the provisions that member states agree to implement is Article 18, which offers protection, among other things, for one “to manifest his religion or belief in worship, observance, practice and teaching.” Limitations on the right are to be permitted only where “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

5. Plainly, the Supreme Court’s decision in United States v. Nixon was a defeat for President Nixon. Yet was it also at least a partial victory for the presidency?

6. Writing three years after leaving the White House, President Harry Truman argued that “the President...must always act in a national emergency...[He] must be able to act at all times to meet any sudden threat to the nation’s security.” Did the majority in the Steel Seizure case reject this position? What theory of presidential power seems most 55 Copyright © 2012 Pearson Education, Inc.

closely aligned with Truman’s comment?

7. “I believe Congress has the authority, should it choose to do so, to direct the Supreme Court to permit its proceedings to be televised,” declared U.S. Senator Arlen Specter in 2010. “The Supreme Court, in a series of cases, has said the public has a right to know what is going on inside the courtroom . . . . Well, in an electronic era, where the public gets so much of its information via television or via radio, there ought to be that access.” What constitutional issue might be raised if Congress enacted Specter’s suggestion into law?

8. Clinton and Obama perhaps excepted, each president since 1973 has maintained that the War Powers Act (or Resolution) is unconstitutional. On what grounds?

9. Often read as a limit on presidential power, may the War Powers Resolution also be seen as an augmentation? Based on his opinion in Morrison, had Justice Scalia been on the Court in 1983, on what side would he probably have cast his vote in Chadha? But is Scalia’s Morrison opinion consistent with his position in the item-veto case (Clinton v. City of New York)?

10. In what respect does the constitutional basis of presidential power shift when one compares the majority position in Youngstown with Sutherland’s opinion in Curtiss-Wright?

11. What is the “concurrence of opinion” to which Justice White refers in Chadha?

12. If the Court is correct in Fitzgerald, how can it also be correct in Jones?

13. What message does the Court appear to be sending in Hamdan and Boumediene?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS SEPARATION OF POWERS 1. Misnomer. Not so much separation of powers, as separate institutions sharing some powers.

2. The Constitution’s design a) Offshoot of struggles between monarchy and legislature; colonial American examples; early state constitutions b) Division of powers among separate institutions—no branch was supposed to dominate c) Presence of some overlapping functions (e.g., the president’s veto power is a kind of legislative power; the Senate’s confirmation role qualifies the president’s appointment power) gives one branch a hand in the affairs of another d) Structural design meant as device to safeguard liberty

56 Copyright © 2012 Pearson Education, Inc.

3. Cases arise out of the constitutional limits (express or implied) imposed on one branch in relation to another. The question is not so much whether “x” may be done, but who/what may do “x.” a) One branch may be performing a function that is assigned to another branch. b) One branch may be intruding into the internal operations of another branch.

4. Two schools on the Constitution’s design a) Rigid: that the Constitution treats the branches of government as if they were sealed compartments. Accordingly, the only permissible interference by one branch in the affairs of another is limited to what is specified in the Constitution itself. b) Flexible: that the Constitution creatively encourages overlapping functions, tension, and competition among the branches. Hence permissible interference by one branch in the affairs of another is not limited to what is specified in the Constitution.

5. Two schools on the Supreme Court’s role in separation-of-powers disputes a) That the Court should referee interbranch disputes b) That the Court should remain aloof from interbranch disputes, thus allowing the Constitution’s meaning to emerge from clashes between Congress and the presidency. The Court should not expend valuable political capital here.

JUSTICE JACKSON’S TAXONOMY OF PRESIDENTIAL POWER (From Youngstown Sheet & Tube v. Sawyer) 1. When the president acts pursuant to an expressed or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.

2. When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers.

3. When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

STRUCTURE AND MECHANICS OF THE ETHICS IN GOVERNMENT ACT (From Morrison v. Olson) 57 Copyright © 2012 Pearson Education, Inc.

1. Distinction between “independent counsel” and “special prosecutor.”

2. Designation of independent counsel by special panel of the U.S. Court of Appeals for the District of Columbia Circuit, following preliminary investigation by the attorney general.

3. Focus of I/C only on alleged wrongdoing in the executive branch.

4. Removal of independent counsel by president done only on the basis of “cause.” And any such removal would be judicially reviewable. Unlike other federal prosecutors, the I/C did not serve “at the pleasure of the president.”

EXCERPT FROM JUSTICE BREYER’S CONCURRING OPINION IN CLINTON V. JONES From Clinton v. Jones, Justice Breyer, concurring….

To obtain a postponement the President must “bear the burden of establishing its need.”

In my view, however, once the President sets forth and explains a conflict between judicial proceeding and public duties, the matter changes. At that point, the Constitution permits a judge to schedule a trial in an ordinary civil damages action (where postponement normally is possible without overwhelming damage to a plaintiff) only within the constraints of a constitutional principle—a principle that forbids a federal judge in such a case to interfere with the President’s discharge of his public duties. I have no doubt that the Constitution contains such a principle applicable to civil suits, based upon Article II’s vesting of the entire “Executive Power” in a single individual, implemented through the Constitution’s structural separation of powers, and revealed both by history and case precedent.…

VIII. RESOURCES AND SUGGESTED READINGS BARBER, S. A. The Constitution and the Delegation of Congressional Power. Chicago: University of Chicago Press, 1975.

BERGER, RAOUL.Executive Privilege. Cambridge, Mass.: Harvard University Press, 1974.

CALABRESI, STEVEN G., AND CHRISTOPHER S. YOO. The Unitary Executive: Presidential Power from Washington to Bush. New Haven, Ct.: Yale University Press, 2008.

58 Copyright © 2012 Pearson Education, Inc.

CORWIN, EDWARD S. The President, Office and Powers, 4th ed. New York: New York University Press, 1957.

CRAIG, BARBARA H.Chadha. New York: Oxford University Press, 1988.

DIPAOLO, AMANDA. Zones of Twilight: Wartime Presidential Powers and Federal Court Decision Making. Lanham, Md.: Rowman and Littlefield, 2009.

FISHER, LOUIS.Constitutional Conflicts Between Congress and the President, 5th ed. Lawrence: University Press of Kansas, 2007.

HENKIN, LOUIS.Foreign Affairs and the United States Constitution, 2nd ed. New York: Oxford University Press, 1997.

KORN, JESSICA.The Power of Separation. Princeton, N.J.: Princeton University Press, 1996.

LEHMAN, JOHN.Making War: The Battle for Jurisdiction Between the President and Congress from the Time of the Barbary Pirates to Desert Storm. New York: Scribner’s, 1992.

MARCUS, MAEVA.Truman and the Steel Seizure Case. New York: Columbia University Press, 1977.

RANDALL, J. G. Constitutional Problems Under Lincoln, Rev. ed. Urbana: University of Illinois Press, 1951.

CHAPTER THREE: CONGRESS AND THE PRESIDENT TEST BANK Multiple Choice Questions 1. Article II enumerates specific powers granted to the president. These include the authority to _____. a. nominate federal judges 59 Copyright © 2012 Pearson Education, Inc.

b. suspend writs of habeas corpus c. withhold privileged communications d. All of the above 2. The _____ theory holds that the president’s constitutional power extends to anything not expressly forbidden, so long as it serves the public interest and does not conflict with existing legislation. a. literalist/limiting b. constitutional c. stewardship d. originalist 3. The president most closely identified with the constitutional theory of the presidency is ______. a. William HowardTaft b. George Washington c. Theodore Roosevelt d. Lyndon Johnson 4. The case of _____ stemmed from a treaty between the United States and Canada designed to protect migratory birds. a. Missouri v. Holland (1920) b. United States v. Belmont (1937) c. United States v. Pink (1942) d. Goldwater v. Carter (1979) 5. In _____ the Supreme Court rejected the president’s inherent power to authorize military tribunals to try civilians where civilian courts were open and fully operating. a. Goldwater v. Carter (1979) b. Ex Parte Milligan (1868) c. Myers v. United States (1926) d. Ex Parte Merryman (1861) 6. The 1973 War Powers Act was an attempt to _____. a. enhance presidential war-making powers b. increase congressional control over presidential war-making activities c. limit congressional power in foreign policy d. improve the ability of Congress to respond to a nuclear crisis 7. The Supreme Court is least likely to sustain the exercise of executive authority when the president is acting _____. a. as commander in chief b. on the basis of power delegated by Congress c. in the negotiation of a treaty d. without statutory authority in the negotiation of domestic policy

60 Copyright © 2012 Pearson Education, Inc.

8. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court _____. a. upheld the president’s power to seize the steel mill in national emergencies b. held that Congress could not authorize the president to seize the steel mill in national emergencies c. held that the president’s seizure of the steel mill during a time of national emergency was unconstitutional d. held that the president was obligated, under his responsibility to “take Care that the Laws be faithfully executed,” to seize the steel mill to avert a strike during the Korean War. 9. _____ would most clearly justify the president’s removal of an American ambassador because his or her views were not compatible with those of the administration. a. Bowsher v. Synar (1986) b. Ex Parte Merryman (1861) c. Myers v. United States (1926) d. Humphrey’s Executor v. United States (1935) 10. The Supreme Court last held an act of Congress unconstitutional on nondelegation grounds in _____. a. Schecter Poultry Corporation v. United States (1935) b. United States v. Curtiss-Wright Corporation (1936) c. Carter v. Carter Coal Co (1936) d. Mistretta v. United States (1988) 11. In Morrison v. Olson (1988), the Supreme Court upheld a provision of the Ethics in Government Act of 1978 under which a “Special Division” of the U.S. Court of Appeals for the District of Columbia is empowered to appoint _____. a. federal marshals b. independent counsels c. federal magistrates d. special jurists

61 Copyright © 2012 Pearson Education, Inc.

12. President Nixon claimed that he should not have to comply with a subpoena demanding that he provide certain tape recordings to a federal district court because the subpoena violated ______. a. his right against self-incrimination b. his right to confrontation c. executive privilege d. due process 13. According to Supreme Court doctrine, which of the following statements, if any, is true? a. A president is immune from a civil lawsuit that arises out of his unofficial conduct that occurred prior to him becoming president. b. A president is entitled to absolute immunity from damages liability predicated on his official acts. c. A president may never be subject to a criminal investigation or civil action so long as he is “in office.” d. None of the above statements is true.

14. Members of Congress are not legally accountable for statements made in their official capacity under the _____ Clause of Article I. a. Due Process b. Immunity c. Speech and Debate d. Membership 15. In Watkins v. United States (1957), the Supreme Court held that _____. a. there is no congressional power to expose for the sake of exposure b. Watkins’s First Amendment interests were overridden by Congress’s in ensuring society’s self-preservation c. Watkins’s impeachment conviction was constitutional even though the full Senate did not investigate the charges d. Watkins’s speech on the chamber floor was protected by the Constitution; his press release was unprotected 16. In Nixon v. United States (1993), the Supreme Court held that _____. a. Nixon’s claim of absolute privilege was invalid b. Nixon’s impeachment, conviction, and removal was unconstitutional c. Nixon’s conviction and removal by the Senate was a political question, and thus nonjusticiable d. None of the above 17. In United States v. Pink (1942), the Supreme Court held that _____ carry the same weight as _____. a. executive arrangements; executive agreements b. executive agreements; treaties c. treaties; federal law d. executive orders; acts of Congress 62 Copyright © 2012 Pearson Education, Inc.

18. A treaty obligation entered into by the United States may be repealed _____. a. only by Congress b. by a state law c. by an act of the president, assuming no objection from the Senate d. by popular referendum authorized by Congress 19. The importance of presidential power in enforcing a constitutional decision of the Supreme Court is well illustrated by the circumstances surrounding _____. a. Gibbons v. Ogden (1824) b. South Dakota v. Dole (1987) c. Cooper v. Aaron (1958) d. Hutchinson v. Proxmire (1979)

Essay Questions 1. Discuss the grounds on which Justice Scalia dissented in Morrison v. Olson (1988).

2. State the holding and significance of INS v. Chadha (1983). What is the “Hobson’s choice” left for Congress?

3. Articulate the primary justification(s) for striking down the line-item veto in Clinton v. City of New York (1998).

4. A central issue in constitutional politics involves whether the authority granted in Article II exhausts the powers of the president. To what extent does the president enjoy inherent powers and extraordinary powers in times of emergency? Scholars disagree on this important question.

Discuss the several theories of presidential power. Demonstrate the Supreme Court’s acceptance or rejection of these theories by relying on cases we have discussed this semester. Be specific. To which theory (or theories) has the Supreme Court ascribed and why? In what circumstances? To which theory (or theories) did the Framers probably subscribe and why? Support your conclusions.

5. Within the past few years, the Supreme Court has ruled on a number of challenges to the administration of George W. Bush’s claim that it had the power to detain indefinitely U.S. citizens held as “enemy combatants”; and to detain indefinitely and try by military tribunal, without and with limited appeal, foreign nationals who had been seized on battlefields and held at Guantanamo Bay, Cuba. These cases—Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008)—illustrate well the basic constitutional dilemma in enforcing constraints on presidential power to wage war. Focusing primarily on the last two cases, discuss the Court’s conclusions, explaining the applicable presidential directives, laws, treaties, writs, and precedents. To what extent do these cases demonstrate that restraints on presidential power to wage war remain in the hands of Congress?

63 Copyright © 2012 Pearson Education, Inc.

6. In what way did Nixon v. Fitzgerald (1982) strengthen the presidency? Explain. Justice White in dissent insisted that the majority’s position amounted to a “reversion to the old notion that the King can do no wrong.” To what extent did Justice Powell’s opinion of the Court effectively answer White’s charge? Explain.

7. In light of both Myers v. United States (1926) and Humphrey’s Executor v. United States (1935), do you find Chief Justice Rehnquist’s opinion for the majority in Morrison v. Olson (1988) persuasive? Why? Explain.

8. (a) Justice Scalia wrote in dissent that the title of the statute being challenged in Clinton v.

City of NewYork (1998) “has succeeded in faking out the Supreme Court.” What did he mean? (b) On what basis did Justice Breyer argue in his dissent in the same case that “one cannot say that the Act ‘encroaches’ upon Congress’s power?” Do you agree? Why? 9. Supreme Court decisions in recent decades on separation-of-powers issues generally reflect one of two approaches. Some decisions adopt a “flexible” approach, while others follow a “rigid” approach. Which approach better characterizes the majority’s position in Morrison v.

Olson (1988)? Why? Which approach better characterizes the majority’s position in Clinton v.

City of New York (1998)? Why? 10. In his dissent in INS v. Chadha, what point was Justice White making when he wrote, “A departure from the status quo occurs only upon the concurrence of opinion among the House, Senate, and President.” Explain.

11. The Supreme Court has rendered two major decisions on the subject of presidential immunity to personal liability in a civil action brought against him: Nixon v. Fitzgerald and Clinton v.

Jones. One decision favored the president, but the other did not. Is the Court guilty of inconsistency? Explain.

12. Dissenting in Mistretta v. United States, Justice Scalia declared, “Today’s decision may aptly be described as the Humphrey’s Executor of the Judicial Branch....” What did Scalia probably mean?

13. Regarding INS v. Chadha (1983), (a) What fatal defect did the Court’s majority find in the legislative (or congressional) veto? (b) Aside from believing that the legislative veto had “become a central means by which Congress secures the accountability of executive and independent agencies,” Justice White said in his dissent that he was convinced that the device, first used in 1932, was “consistent with the distribution of and limits upon legislative power that Article I provides....” What did he mean?

14. “Justice Sutherland’s opinion for the Court in United States v. Curtiss-Wright can be read as a discourse on federalism as well as separation of powers.” Discuss.

64 Copyright © 2012 Pearson Education, Inc.

15. Constitutional challenges to particular legislation and practices prevailed in INS v. Chadha and Clinton v. City of New York but not in Morrison v. Olson. (Interestingly, the division in none of the cases was particularly close: Chadha was decided 7–2, Morrison 6–2, and Clinton 6–3.)

Yet, has the Supreme Court been inconsistent in its approach to these three separation-of-powers cases? Alternatively, does each majority opinion share one or more common elements or rationalizing principles with the majority opinions in the other two that makes each outcome consistent with the others?

16. If the Supreme Court decided Nixon v. Fitzgerald correctly, how can the Court also be correct in Clinton v. Jones?

17. Articulate the primary justification(s) for striking down the line-item veto in Clinton v. City of New York.

Answer Key 1. — a 2. — c 3. — a 4. — a 5. — b 6. — b 7. — d 8. — d 9. — c 10. — a 11. — b 12. — c 13. — b 14. — c 15. — a 65 Copyright © 2012 Pearson Education, Inc.

16. — a 17. — b 18. — c 19. — a

66 Copyright © 2012 Pearson Education, Inc.

CHAPTER FOUR: FEDERALISM I. CHAPTER OUTLINE Sources of Contention Origins of the Tenth Amendment Truism or Independent Check?

Nature of National Authority Dimensions of National Power Concurrent and Exclusive Powers Preemption Judicial Federalism Concepts of Federalism National Supremacy: Legacy of Chief Justice John Marshall Dual Federalism: Legacy of Chief Justice Roger B. Taney Consequences for Public Policy Intergovernmental Immunity Cooperative Federalism The Return of Dual Federalism The Tenth Amendment Revisited Eleventh Amendment Limitations National Supremacy vs. Dual Federalism in the Modern Era

II. CHAPTER OVERVIEW AND OBJECTIVES Although many still consider judicial review to be America’s unique contribution to political science, federalism may continue to be of at least equal influence on other nations and of unending importance at home. Unfortunately, for those who look upon federalism as the key to world or regional order under law, our history—unless one takes the long view—is not especially reassuring.

A distinguishing characteristic of American government is federalism—a dual system in which governmental powers are constitutionally distributed between central (national) and local (state) authorities. The reasons for the adoption of such an arrangement were both historical and rational. During the revolutionary period, the states regarded themselves as independent sovereignties. Under the Articles of Confederation, little of their power over internal affairs was surrendered to the Continental Congress. In the face of proved inability of the Confederation to cope with the problems confronting it, local patriotism had to yield. The result was a system in which political power was divided, yet divided in such a way that the precise boundary between central and local authority remained obscured.

The objective of Chapter Four is to set forth the basic principles of American federalism, especially in the form those principles took shape within the doctrines and judicial decisions 67 Copyright © 2012 Pearson Education, Inc.

rendered by Chief Justice Marshall and his successor Chief Justice Roger B. Taney. Between them, those two individuals occupied the chief justiceship between 1835 and 1864.

This background is important because it informs and is a factor in decisions by the Court from the 1890s to the present day. So to grasp the subtleties from the Marshall and Taney eras moves one closer to understanding pervasive constitutional differences in the first decade and beyond of the twenty-first century.

The last cases reprinted in this chapter (United States v. Morrison and Gonzales v. Raich) presuppose some knowledge of the commerce clause, developed more fully in Chapter Six. Instructors should decide whether they prefer covering federalism first or the national commerce power cases first. Commerce power principles intersect cases in both chapters.

III. KEY TERMS federalism Antifederalists delegated powers reserved powers implied powers express powers necessary and proper clause resulting powers supremacy clause concurrent powers exclusive powers preemption judicial federalism Eleventh Amendment federal question national supremacy dual federalism police power governmental immunity reciprocal immunity sovereign immunity

68 Copyright © 2012 Pearson Education, Inc.

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Chisholm v. Georgia McCulloch v. Maryland Cohens v. Virginia Collector v. Day U. S. Term Limits, Inc. v. Thornton United States v. Morrison Gonzales v. Raich V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE Texas v. White (1869) Kimel v. Florida Board of Regents (2000) Tennessee v. Lane (2004) VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. The Supreme Court’s decisions in both McCulloch and Cohens were highly controversial in their day. Yet in the first, the Court agreed only to accept an institution that Congress had already established; in the second, Virginia actually won on the merits. Why then would certain political groups have found Marshall’s opinions in these cases unsettling?

2. “Whatever the judicial role,” wrote Justice Kennedy in his concurring opinion in United States v. Lopez (see Chapter Six), “it is axiomatic that Congress does have substantial discretion and control over the federal balance....The political branches of the Government must fulfill this grave constitutional obligation if democratic liberty and the federalism that secures it are to endure. At the same time, the absence of structural mechanisms to require those officials to undertake this principled task, and the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role.” Does this passage offer insight into the reasons why some members of the Court believe that political checks to safeguard federalism must be augmented with judicial checks?

3. What is the significance of the Seventeenth Amendment (1913) for the debate over political versus judicial checks on Congress? Does its presence in the Constitution support or undercut Justice Kennedy’s statement in query 2?

4. Review Robert Yates’s “Letters of Brutus” in Chapter Two. Does Chisholm v. Georgia confirm or refute his forebodings about the Supreme Court?

69 Copyright © 2012 Pearson Education, Inc.

5. Consider the consequences for the nation today had Maryland prevailed in the bank case and had Virginia prevailed on the jurisdictional point in the lottery case.

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS Outline of McCulloch v. Maryland McCulloch v. Maryland (1819): Shoring up National Power 1.

Popular base of the Constitution: a product of the people, not of the states

2.

Nature of national power: national supremacy versus dual federalism

3.

Doctrine of implied powers: note link with doctrine of national supremacy

4.

Role of judicial review a.

To provide a forum to settle conflicts peacefully

b.

To act when the political process cannot or will not act, especially in protecting the public purposes of the whole against destruction by a part

c.

To provide an interpretation of the Constitution consistent with the broad purposes of the document

Outline of Cohens v. Virginia Cohens v. Virginia (1821): Rescuing Section 25 This case involving the Judiciary Act of 1789 is the second skirmish in the battle over national power that begins in McCulloch v. Maryland (1819).

1.

Nature of the Constitution: striving for immortality

2.

Purpose of judicial review in a federal system a.

To defend the national interest by guarding against abuse of national authority by a local majority

b.

To provide a substitute for force and violence

3.

Pernicious consequences of Virginia’s position: a hydra in government

4.

Article III, section 2, makes states subservient to the federal judicial process.

70 Copyright © 2012 Pearson Education, Inc.

5.

6.

Eleventh Amendment (1798) a.

Not a bar to Supreme Court review

b.

Attempt to expand amendment to avoid federal oversight

But note that Virginia wins on the merits: significance?

---------------------------------------------------------------------------------------------------

Text of Section 25, Judiciary Act of 1789 And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

-------------------------------------------------------------------------------------------------------

ARTICLES OF CONFEDERATION (1777) [See Chapter 2] ------------------------------------------------------------------------------------------------------------------

VIII. RESOURCES AND SUGGESTED READINGS

71 Copyright © 2012 Pearson Education, Inc.

BEER SAMUEL H. To Make a Nation: The Rediscovery of American Federalism.

Cambridge, Mass.: Harvard University Press, 1993.

ELLIS, RICHARD E. Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic. New York: Oxford University Press, 2007 GERSTON, LARRY N. American Federalism. Armonk, N.Y.: M. E. Sharpe, 2007.

KILLENBECK MARK R. M’Culloch v. Maryland Lawrence: University Press of Kansas, 2006.

LOFGREN CHARLES A. “The Origins of the Tenth Amendment.” In Ronald K. L. Collins, ed.

Constitutional Government in America. Durham, N.C.: Carolina Academic Press, 1980.

LUCE, W. RAY Cohens v. Virginia (1821)New York: Garland, 1990.

MASON ALPHEUS T. The States Rights Debate. New York: Oxford University Press, 1972.

MATHIS DOYLE “Chisholm v. Georgia: Background and Settlement.” 54 Journal of American History 19 (1967).

SCHMIDHAUSER, JOHN R. The Supreme Court as Final Arbiter in Federal-State Relations, 1789– 1957. Chapel Hill: University of North Carolina Press, 1958

72 Copyright © 2012 Pearson Education, Inc.

CHAPTER FOUR: FEDERALISM Test Bank

Multiple Choice Questions 1. In U.S. Term Limits, Inc. v. Thornton (1995), the Supreme Court declared term limits for members of the U.S. Congress _____. a. violative of the Membership Clause of Article I b. violative of the Tenth Amendment c. violative of the Republican Form of Government Clause of Article IV d. nonjusticiable under the “political questions” doctrine 2. The constitutional theory of implied powers is most closely associated with ______. a. McCulloch v. Maryland b. Chisholm v. Georgia c. Cohens v. Virginia d. Collector v. Day 3. Cohens v. Virginia concerned a statute that regulated ______. a. railroads b. banks c. taxes d. lotteries 4. Gonzales v. Raich concerned ______. a. term limits for members of Congress b. a California statute c. a gun crime in Texas d. federal taxes 5. The doctrine or principle of national supremacy is most closely identified with ______. a. Roger B. Taney b. Salmon Chase c. John Marshall d. Justice John Gibson 6. The proposition that the central government and states confront each other in the relationship of superior and subordinate describes ______. a. the doctrine of dual federalism b. the doctrine of national supremacy c. the supremacy clause d. None of the above

73 Copyright © 2012 Pearson Education, Inc.

7. The proposition that the national government and the states face each other as equals across a precise constitutional line defining their respective jurisdictions describes ______. a. the doctrine of national supremacy b. the doctrine of dual federalism c. the supremacy clause d. None of the above 8. The doctrine or principle of dual federalism is most closely identified with ______. a. John Marshall b. Roger Taney c. James Wilson d. None of the above 9. The Constitution’s supremacy clause is found in ______. a. Article I b. Article III c. Article V d. Article VI 10. Governmental powers that derive from the mass of delegated powers or from a group of them are called ______. a. implied powers b. concurrent powers c. direct powers d. resulting powers 11. The necessary and proper clause is found in ______. a. Article III b. the First Amendment c. Article I d. All of the above 12. The necessary and proper clause is also known as ______. a. the supremacy clause b. the due process clause c. the elastic clause d. the judicial clause 13. The necessary and proper clause is the source of the doctrine of ______. a. judicial review b. implied powers c. concurrent powers d. exclusive powers

74 Copyright © 2012 Pearson Education, Inc.

14. McCulloch v. Maryland concerns a ______. a. telegraph line b. bridge c. bank d. railroad

Essay Questions 1. In what way(s) does Chisholm v. Georgia confirm or refute Federalist No. 78?

2. In what way was section 25 of the Judiciary Act of 1789 at issue in Cohens v. Virginia?

3. The Supreme Court’s decisions in both McCulloch v. Maryland and Cohens v. Virginia were very controversial in their day. Yet, in the first, the Court only agreed to accept an institution that Congress had already established; in the second, Virginia actually won on the merits. Why then would certain political groups have found Marshall’s opinions in these two cases highly troubling?

4. Consider John Marshall’s opinions in McCulloch v. Maryland, Cohens v. Virginia, and Gibbons v. Ogden. From them is it plausible to conclude that the chief justice was more suspicious of actions of state legislatures than of Congress? Why? Explain. What do these opinions suggest about Marshall’s vision of the Supreme Court’s role in the young Republic?

5. What were the main points of contention between Justice Stevens (for the majority) and Justice Thomas (in dissent) in U.S. Term Limits, Inc. v. Thornton? Explain.

6. What might have been the consequences for the nation today had Maryland prevailed in the bank case and had Virginia prevailed on the jurisdictional point in Cohens?

7. Particularly as read in the light of McCulloch v. Maryland, why is Marshall’s opinion in Gibbons v. Ogden so significant?

8. Discuss the origin, justification, and significance of the doctrine of implied powers.

9. Explain the role of section 25 of the Judiciary Act of 1789 in strengthening the U.S. Supreme Court’s place in the American political system. Illustrate your essay with at least one assigned case, specifically exploring the consequences for the nation had section 25 never been enacted.

10. Consider the four approaches to constitutional interpretation discussed in the introductory essay for Chapter Two (on judicial review). (a) Which approach best characterizes Justice Stevens’s opinion of the Court in U.S. Term Limits, Inc. v. Thornton (1995)? Explain. (b) Which approach best characterizes Justice Thomas’s dissent in the same case? Explain.

75 Copyright © 2012 Pearson Education, Inc.

Answer Key 1. — a 2. — a 3. — d 4. — b 5. — c 6. — b 7. — b 8. — b 9. — d 10. — d 11. — c 12. — b 13. — b 14. — c 15. — b

76 Copyright © 2012 Pearson Education, Inc.

CHAPTER FIVE: THE ELECTORAL PROCESS I. CHAPTER OUTLINE Voting The White Primary The Voting Rights Act The Florida Election Case Representation Entering the Political Thicket One Person, One Vote Gerrymandering Minority-Minority Districts Party Politics and Campaigns Primaries and Elections Campaign Finance

II. CHAPTER OVERVIEW AND OBJECTIVES It is commonplace today among those who study American politics and government to observe that the Supreme Court is not only a legal institution but a political institution as well.

Indeed, the Court is political in at least four respects.

First, as each chapter in the book demonstrates, its decisions shape public policy by deciding what government—national, state, or local—may or may not do.

Second, decisions clarify the boundaries of political authority, focusing less on what may be done than on who may do it or how it may be done. As shown in Chapter Three, the Steel Seizure case of 1952 turned not on whether government could cope with labor disruptions but on whether President Truman had exceeded his authority and intruded into Congress’s lawmaking domain in that particular instance and in the manner of his intervention. The Legislative Veto case of 1983, also highlighted in Chapter Three, did not question government’s authority to deport a particular individual but instead challenged the device by which Congress had ordered deportation on that occasion.

Third, the Court itself may become an issue in presidential elections, as has happened at least a dozen times since 1800 because of unpopular decisions. Campaigns in the past three decades would have taken a different shape without the Supreme Court’s 1973 abortion decision, for instance. So in these ways, the Court has been political from practically the beginning.

Finally, the justices may affect the electoral process itself, as has happened in cases on voting rights, representation, campaign finance, and certainly in the disputed Florida vote count in the 2000 presidential election. This electoral dimension of constitutional law is the subject of 77 Copyright © 2012 Pearson Education, Inc.

this chapter. It is a significant part of the Court’s work because of the role that political parties and elections play in the life of the nation. It is through the electoral process that “We the people” attempt to control government by choosing those who will govern, as the people confer and/or withdraw their “consent” to be governed. Because judges help to determine the ground rules of politics, decisions on the electoral process affect the acquisition and allocation of power in the most fundamental sense. Thus, at the outset, it is important for students to realize that when one speaks of the Court as being “political” it is not in the usual sense of the justices participating literally as candidates in partisan campaigns in the way one commonly expects presidents, representatives, and senators to do. Indeed, justices and other federal judges today are expected to be “above politics” in that, aside from voting like any other citizen, they are not supposed to take sides publicly in elections or to campaign openly for one party or another.

III. KEY TERMS franchise grandfather clause white primary poll tax Voting Rights Act crossover districts retrogression political-question doctrine legislative districting legislative apportionment one-person-one-vote gerrymandering majority-minority districts blanket primary Federal Election Campaign Act per curiam Bipartisan Campaign Reform Act soft money hard money

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL

78 Copyright © 2012 Pearson Education, Inc.

I. Voting Bush v. Gore (2000) II. Representation Baker v. Carr (1962) Reynolds v. Sims (1964) Vieth v. Jubelirer (2004) Miller v. Johnson (1995) III. Party Politics and Campaigns California Democratic Party v. Jones (2000) McConnell v. Federal Election Commission (2003) Citizens United v. Federal Election Commission (2010)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE Buckley v. Valeo (1976) Davis v. Bandemer (1986) Rutan v. Republican Party of Illinois (1990) Shaw v. Reno (1993) Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) Hunt [Easley] v. Cromartie (2001) Republican Party of Minnesota v. White (2002)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. In Reynolds v. Sims (1964), Justice Stewart agreed with the majority that the badly skewed Alabama legislature violated the Constitution. Yet he refused to accept the majority’s automatic application of one-person-one-vote as the constitutionally required standard in all redistricting cases. Explain.

2. Is there merit to the argument that the single-member district (the most common basis of representation in the United States) unavoidably distorts representation on city councils and in state legislatures and the U.S. House of Representatives?

3. What constrains does Miller v. Johnson (1995) impose on legislative districting? Is there now any way, after Hunt v. Cromartie, for race legitimately to be taken into account in drawing district lines?

79 Copyright © 2012 Pearson Education, Inc.

4. What impact has Citizens United had on the conduct of campaigns for federal office, both at the presidential and congressional levels?

5. Redistricting moved ahead in the 50 states after the official 2010 census data were released.

This decennial phenomenon offers opportunities to observe some of the principles from Chapter Five cases in action in each of the 50 states. Even for those states allotted only one congressional representative, redistricting will affect each state legislative chamber. (a) Computer programming combined with online census data makes gerrymandering easier, quicker, and possibly more effective than ever before. With a hand on the computer mouse, a Democratic district might well become Republican, just as a Republican district might well become Democratic. As someone has said, redistricting turns conventional democratic theory on its head: rather than having voters choose their leaders, the leaders choose their voters. (b) What local examples of gerrymandering have come to light?

6. Examine Justice Ginsburg’s dissent in Miller v. Johnson (in Chapter 5) alongside her dissent in Gratz v. Bollinger (in Chapter 14). What common points does she make?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS THE 50 STATES AND THE NATIONAL CONSTITUTION  State governments are established by their respective state constitutions, not by the national Constitution.  In most respects, state governments derive their governing authority from their respective state constitutions, not from the national Constitution.  Original 13 states predate the national Constitution.  The national Constitution assumes the continued existence of the states.  New states may be admitted to the Union, on an equal footing with older states, by act of Congress.  States set qualifications for voting for their residents, subject to restrictions in the Constitution and the Voting Rights Act.  Each state draws the district lines for the congressional districts within the state.  States conduct and administer all elections for national, state, and local offices.

80 Copyright © 2012 Pearson Education, Inc.

 States specify mode of election for members of the Electoral College in electing a president.  States ratify proposed constitutional amendments.  States are equally represented in the Senate.  States possess residual governmental powers (all those powers not granted to the national government, forbidden to the states, or reserved to the people).

KEY SUPREME COURT DECISIONS ON REPRESENTATION  Colegrove v. Green (1946): Cases involving legislative districting are widely seen as having been deemed nonjusticiable.  Gomillion v. Lightfoot (1960): Court intervenes in and invalidates redrawing of city boundary that is racially discriminatory.  Baker v. Carr (1962): Cases challenging legislative districting are deemed justiciable.  Wesberry v. Sanders (1964): Numerically equal U.S. House districts required.  Reynolds v. Sims (1964): Numerically equal state legislative districts required.  Davis v. Bandemer (1986): Partisan gerrymandering in legislative districting deemed justiciable.  Shaw v. Reno (1993): Recognition of Fourteenth Amendment right not to live in a legislative district drawn principally for racial reasons.  Miller v. Johnson (1995): Race-driven redistricting invalid even when intended to enhance minority representation.  Vieth v. Jubelirer (2004): Most partisan gerrymandering effectively allowed.  League of United Latin American Citizens v. Perry (2006): Mid-decade redistricting allowed even when done as a gerrymander.

CAMPAIGN FINANCE REFORM: A PRIMER*

I.

Federal Election Campaign Act (FECA) of 1971; Amended 1974

81 Copyright © 2012 Pearson Education, Inc.

A. Contributions: limited contributions to candidates: $1,000 per election/$2,000 per election cycle.

B. Independent expenditures (unregulated expenditures by an individual or group directly advocating the election or defeat of a candidate for federal office, but not made in coordination with any candidate’s campaign): limited such expenditures to $1,000 per election/$2,000 per election cycle.

C. Personal contributions: limited personal contributions by both the candidate and relatives toward a campaign according to the office being sought.

D. Overall expenditures: limited overall expenditures by a candidate according to the office being sought.

E. Record keeping: required stringent record keeping and disclosure on contributions and expenditures.

F. Federal Election Commission (FEC): created a six-member commission to oversee enforcement of the law.

G. Public financing: provided for public financing of primary and general presidential elections; major party candidates received “full” funding, and “minor” or “new” party candidates received reduced proportion of funding on a dollar-matching basis.

II.

Buckley v. Valeo (1976) A. Upheld contribution limits (A); record keeping (E); the FEC (F); and public financing (G); contribution limits will prevent corruption (quid pro quo) or its appearance.

B. Struck limits on independent expenditures (B), personal contributions (C), and overall expenditures (D); violates freedom of speech by reducing the quantity of political expression; money viewed by Court as a means of expressing one’s political views.

III.

Soft Money A. Emerged in the wake of FECA. B. Contributions given to the party (from individuals or PACs), not for influencing federal elections; presumably for grassroots activities, operating costs, GOTV drives, issue advocacy, etc.

C. FEC advisory opinion (1978): parties may raise soft money without regulation.

D. Amendment to FECA (1979): parties may spend unlimited sums of soft money on these activities.

82 Copyright © 2012 Pearson Education, Inc.

E. Line separating funds that influence federal elections from those that do not is tenuous.

F. Federal courts ruled that soft money may be used for issue advocacy but not express advocacy; issue ads may not use magic words—“vote for,” “vote against,” “elect,” “support,” “choose,” etc.

G. Disclosure not required.

IV.

Bipartisan Campaign Reform Act (BCRA) of 2002 A. Contributions to the candidate (often called “hard money”; amounts adjust every two years for inflation).

1. Individuals may give to each candidate $2,400 per election/$4,800 per election cycle.

2. PACs may give to each candidate $5,000 per election/$10,000 per election cycle.

3. Parties may give to each candidate $10,000 per election/$20,000 per election cycle.

B. Contributions to the party (to influence federal elections) 1. Individuals may give to the party $30,400 per calendar year.

2. PACs may give to each party $15,000 per calendar year.

3. Soft money banned.

C. Electioneering communications (corporations and unions prohibited from any broadcast, cable, or satellite communications that mentioned a candidate for federal office within 30 days of a primary or 60 days of a general election).

D. “Stand by your ad.” (“I’m [insert candidate’s name], and I approve this message.”)

V.

Litigation under BCRA A. McConnell v. FEC (2003): Upheld BCRA’s limitations on campaign contributions (IV.A.1) and the ban on soft money (IV.B.3); any restriction on free speech is minimal and justified by the government’s legitimate interest in preventing both corruption and the appearance of corruption that might result from campaign contributions.

B. FEC v. Wisconsin Right to Life (2007): Crafted a major exception to BCRA’s ban on issue ads in the days leading up to an election, for issue ads that do not specifically urge the support or defeat of a candidate. These were held not to qualify as “electioneering communications.” Thus, unless an ad could not reasonably be interpreted as anything other than an ad urging the support or defeat of a candidate, it was eligible for an “as applied” exception to BCRA’s limits on issue ads close to an election

83 Copyright © 2012 Pearson Education, Inc.

C. Citizens United v. FEC (2010): Invalidated BCRA’s ban on corporate and union funding of independent political broadcasts (IV.C); corporations, like people, have the right to freedom of speech.

1. Upheld disclaimer and disclosure requirements.

2. Decision did not involve the federal ban on direct contributions from corporations or unions to candidates or parties.

VI. 527 Political Committees A. Unintended consequence of the BCRA. B. 527 political committees are unregulated interest groups that focus on specific causes or policy positions.

C. May not advocate for or against a candidate, but they may advocate on behalf of political issues.

D. “Sham issue ads”: naming a particular candidate and stating how the candidate supported or harmed a particular interest, but without directly stating the 527 group’s opinion on how to vote in an election.

E. 527s have filled the vacuum created by the parties’ inability to raise and spend soft money.

F. Democrats have typically done far better in pursuing 527s. * (Credit for the above primer on campaign finance belongs to Professor Richard Glenn of Millersville University of Pennsylvania. It is used here with his permission and with my thanks.)

VIII. RESOURCES AND SUGGESTED READINGS BULLOCK, CHARLES S., III. Redistricting: The Most Political Activity in America. Lanham, MD: Rowman & Littlefield, 2010.

CORTNER RICHARD C. The Apportionment Cases Knoxville: University of Tennessee Press, 1970.

DAVIDSON CHANDLER AND BERNARD GROFMAN eds. Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990. Princeton, N.J.: Princeton University Press, 1994.

84 Copyright © 2012 Pearson Education, Inc.

GILLMAN HOWARDThe Votes That Counted: How the Court Decided the 2000 Election Chicago: University of Chicago Press, 2001.

HANSON ROYCEThe Political Thicket. Upper Saddle River, N.J.: Prentice Hall, 1966.

KEYSSAR ALEXANDERThe Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books, 2000.

STEPHENSON DONALD GRIER JRThe Right to Vote Santa Barbara, Cal.: ABC-CLIO, 2004.

THERNSTROM ABIGAIL M. Whose Votes Count: Affirmative Action and Minority Voting Rights.

Cambridge, Mass.: Harvard University Press, 1987.

WROTH L. KINVIN “Election Contests and the Electoral Vote.” 65 Dickinson Law Review 321 (1961).

YARBROUGH TINSLEY E. Race and Redistricting: The Shaw-Cromartie Cases. Lawrence: University Press of Kansas, 2002.

85 Copyright © 2012 Pearson Education, Inc.

CHAPTER FIVE: THE ELECTORAL PROCESS Test Bank

Multiple Choice Questions 1. In Gomillion v. Lightfoot (1960), the Supreme Court held that drawing political boundary lines to exclude minority voters violated the Equal Protection Clause of the Fourteenth Amendment. a. TRUE b. FALSE 2. In which of the following cases did the Supreme Court dismiss as nonjusticiable a lawsuit challenging malapportionment? a. Gomillion v. Lightfoot (1960) b. Reynolds v. Sims (1964) c. Colegrove v. Green (1946) d. Flast v. Cohen (1968) 3. In Baker v. Carr (1962), the Supreme Court invalidated a 1901 Tennessee law that disproportionately drafted state legislative districts. a. TRUE b. FALSE 4. The principle of “one person, one vote” was first articulated in _____. a. Baker v. Carr (1962) b. Wesberry v. Sanders (1964) c. South Carolina v. Katzenbach (1965) d. Gray v. Sanders (1963) 5. In Colorado Republican Federal Campaign Committee v. Federal Elections Commission (1996), the Supreme Court _____. a. upheld limitations on party expenditures in Senate races b. sustained the constitutionality of spending limits on congressional elections c. declared unconstitutional limitations on political parties’ campaign expenditures made in conjunction with a candidate’s campaign committee d. declared unconstitutional limitations on political parties’ campaign expenditures made independently of a candidate’s campaign committee 6. The principal dissent in McConnell v. Federal Election Commission and the majority opinion in Citizens United v. Federal Election Commission were written by ______. a. Justice O’Connor b. Justice Stevens c. Chief Justice Roberts c. Justice Kennedy

86 Copyright © 2012 Pearson Education, Inc.

7. The organization called Citizens United initiated litigation because of _____. a. monetary contributions it wanted to receive b. monetary contributions it wanted to make to a candidate c. a documentary video d. None of the above 8. In California Democratic Party v. Jones, the party preferred _____. a. a blanket primary b. a nonpartisan primary c. a closed primary d. None of the above 9. In Reynolds v. Sims, Chief Justice Warren discussed _____. a. racial discrimination b. the federal analogy c. official corruption d. South Carolina legislative districts 10 Vieth v. Jubelirer concerned _____. a. districting in New Jersey b. gerrymandering c. racial discrimination d. policies that favored Pennsylvania Democrats

Essay Questions 1. In his dissent in Baker v. Carr, Justice Frankfurter denounced the majority for “asserting destructively novel judicial power” in its decision. What did Frankfurter mean? What alternative remedy did Frankfurter offer in his dissent for those aggrieved voters who had brought this case?

Explain.

2. Articulate the holding and rationale in either (1) McConnell v. Federal Election Commission (2003), as pertaining to Title I, Sec. 323 (a) (ban on soft money), and Title II, Sec. 203 (prohibition of corporate and labor disbursements for electioneering communications), of the Bipartisan Campaign Reform Act; or (2) Citizens United v. Federal Election Commission (2010), as pertaining to Title II, Section 203, of the Bipartisan Campaign Reform Act. 3. At least since Davis v. Bandemer (1986), the search for judicially manageable standards in the context of partisan gerrymandering has been elusive. What solution did Justice Souter believe he had developed in Vieth v. Jubelirer (2004)? Explain. Does his approach seem workable to you?

Why? 4. In what way does Justice Anthony Kennedy’s opinion for the majority in Miller v. Johnson (1995) limit the discretion of a state legislature in drawing district lines? Explain.

87 Copyright © 2012 Pearson Education, Inc.

5. Explain the crucial threshold questions at issue in Baker v. Carr and Davis v. Bandemer.

6. Consider Justice Frankfurter’s dissent (which Justice Harlan joined) in Baker v. Carr (1962) and Justice Harlan’s dissent in Reynolds v. Sims (1964). (Frankfurter retired before Reynolds was decided.) Suppose Harlan and Frankfurter had each been on the Court in 2004 when Vieth v.

Jubelirer was decided, and assume that both justices still adhered to the perspective they had expressed in those cases from the 1960s. Would Harlan and Frankfurter have been more likely to join Justice Scalia’s plurality opinion in Vieth v. Jubelirer or Justice Souter’s dissent? Why? Explain.

7. According to Justice Brennan’s opinion for the Court in Baker v. Carr, one of the requirements for justiciability is the presence of “judicially discoverable and manageable standards for resolving” a dispute. Discuss this requirement in the context of Reynolds v. Sims, Davis v. Bandemer, and Shaw v. Reno. To what degree did the majority succeed in making clear the “discoverable and manageable standards” to be applied in those cases?

8. Viewed as landmarks in establishing a cause of action under the Fourteenth Amendment, explain how Baker v. Carr and Shaw v. Reno are analogous. With what objections from dissenters did justices Brennan and O’Connor have to contend in their respective majority opinions?

9. In Reynolds v. Sims, how did Justice Stewart’s standard for determining the constitutionality of numerically unequal legislative districts differ from Chief Justice Warren’s?

10. Consider justiciability and the political question doctrine. What does the Court do with those self-limiting concepts in Baker?

11. To what extent does the Vieth case suggest that the Court’s focus on equal numbers in Reynolds was merely a first step into the waters of representation?

12 Examine the Court’s position in Vieth: what would now constitute an unconstitutional gerrymander?

13. In Buckley, why is the Court’s perception of expenditures and contributions critical to the outcome of the case?

14. What is the basis of the Court’s extraordinary intervention in the presidential election of 2000?

15. What is the political significance of McConnell v. FEC and Citizens United? How is Buckley reflected in these decisions?

16. Explain the constitutional justifications for Bush v. Gore (2000). What would the dissenters (both groups) have preferred the Court to do? For what reasons?

88 Copyright © 2012 Pearson Education, Inc.

17. Beginning in 1960, the Warren Court confronted the issue of malapportionment. Citing selectively appropriate cases and doctrines, trace the evolution of relevant constitutional provisions and their application to legislative apportionment. What standards have been developed, and how have those standards been applied by the Supreme Court? Be sure to discuss in detail the Voting Rights Act of 1965. How did the Voting Rights Act prohibit states from disenfranchising minority voters? How did the Rehnquist Court respond when race has been used in redistricting to enhance minority voting strength?

Answer Key 1. — a 2. — c 3. — b 4. — d 5. — d 6. — c 7. — c 8. — a 9. — b 10. — b

89 Copyright © 2012 Pearson Education, Inc.

CHAPTER SIX: THE COMMERCE CLAUSE I. CHAPTER OUTLINE Views of the Framers The Constitutional Convention Ratification Debates The Marshall Doctrine The Steamboat Case Defining State Authority The Doctrine of the Taney Court The Muddle of Commerce The Cooley Doctrine States and the Commerce Clause Today Three Views of State Regulation Transportation Quality of Life States as Market Participants Taxation A Continuing Judicial Role The National Commerce Power: Competing Visions The Wabash and Sugar Trust Cases A National Police Power?

Constitutional Crisis The New Deal in Court The Court-Packing Threat Counterattack A Switch in Time The Commerce Power Reborn Expanded Applications Revolution or Counterrevolution?

A Return to Limitations

II. CHAPTER OVERVIEW AND OBJECTIVES Section 8 of Article I of the Constitution declares, “The Congress shall have Power....To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....” These 21 words have long been among the most important in the nation’s fundamental charter, for both Congress and the states as well. This is because the commerce clause has two dimensions. In its active mode, it empowers Congress; in its dormant or negative mode, it is a self-executing limitation on the states, even in the absence of any legislation by Congress.

As a grant of authority to Congress, the commerce clause did not become a constitutional battleground until the late 1800s, when a truly national economy, tied together by the railroads, 90 Copyright © 2012 Pearson Education, Inc.

developed. Then, two major questions arose. First, what was the “commerce” that Congress was authorized to regulate? Second, what was the extent of the commerce power? Could the commerce power touch matters and relationships traditionally regarded as local in nature and within the purview of the states? Answers to these questions have greatly affected national policy for over a century.

The chapter thus has several objectives. First, as its organization reflects, the initial part of the chapter explores the commerce clause in its dormant or passive mode, where it acts as a limitation on state power.

Second, the latter part of the chapter explores the commerce clause in its active mode where it exists as an affirmative grant of power to Congress.

Third, it is in the latter part of the chapter that the Court-packing fight of 1937, which was brought on largely by the Court’s anti-New Deal rulings on the national commerce power, is related in considerable detail with its climax in the famous “switch in time.”

Fourth, the concluding section of the chapter makes clear that debates about what commerce includes and the extent of the commerce power are not merely debates from the distant past, but reflect real divisions on the contemporary Supreme Court.

III. KEY TERMS police power dormant commerce power concurrent commerce doctrine exclusive commerce doctrine selective exclusiveness Cooley doctrine protectionism balkanization Sherman Anti-Trust Act direct versus indirect effects national police power New Deal 91 Copyright © 2012 Pearson Education, Inc.

Court-packing plan Constitutional Revolution of 1937

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Gibbons v. Ogden (1824) Cooley v. Board of Wardens (1851) Southern Pacific v. Arizona (1945) Philadelphia v. New Jersey (1978) Granholm v. Heald (2005) United States v. E.C. Knight Co. (1895) Champion v. Ames (The Lottery Case) (1903) Hammer v. Dagenhart (1918) Stafford v. Wallace (1922) Carter v. Carter Coal Co. (1936) National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) Wickard v. Filburn (1942 Heart of Atlanta Motel v. United States (1964) United States v. Lopez (1995) United States v. Morrison (2000) (reprinted in Chapter Four) Gonzales v. Raich (2005)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE Reeves, Inc. v. Stake (1980)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT

1. What questions left unresolved by Gibbons v. Ogden did Cooley v. Board of Wardens attempt to resolve?

2. Concurring in Bendix Autolite Corp. v. Midwesco Enterprises (1988), Justice Scalia announced that he favored abandoning the “balancing” involved in dormant commerce clause 92 Copyright © 2012 Pearson Education, Inc.

cases, leav[ing] essentially legislative judgments to Congress....[A] state statute is invalid under the Commerce Clause if, and only if, it accords discriminatory treatment to interstate commerce in a respect not required to achieve a lawful state purpose. When such a validating purpose exists, it is for Congress and not us to determine it is not significant enough to justify the burden on [commerce].

What would be the probable effect on national commerce were the Court to adopt Scalia’s view?

3. In the Court-packing struggle of 1937, both sides won; both sides lost. Explain.

4. Consider these sentences from Justice Kennedy’s concurring opinion in United States v. Lopez.

Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy....[U]nlike the earlier cases to come before the Court here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus....In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.

Does Kennedy accurately point to the gravamen or defect in the Gun Free School Zones Act that led the Court to decide as it did? May the same assessment fairly be applied to the Violence Against Women Act at issue in United States v. Morrison?

5. With respect to the development of the national commerce power, what are the parallels to the development of constitutional law with respect to the taxing power of Congress as presented in Chapter Seven?

6. With respect to the Constitutional Revolution of 1937, what links are present with respect to the treatment of property rights under the Fifth and Fourteenth amendments, as presented in Chapter Eight?

7. With respect to the Constitutional Revolution of 1937, to what degree is it important as well to keep in mind the revolutionary suggestion of the Carolene Products Footnote Four, as also discussed in Chapter Eight?

8. In Gonzales v. Raich, what is the “liberal” position? What is the “conservative” position?

9. How does the voting alignment of the Court in Raich compare with the alignment in Lopez and Morrison?

10. In Raich, is commerce a stationery “event” or a “stream of commerce”?

11. In Raich, what is the role of direct versus indirect effects?

12. The commerce clause and cases in Chapter Six will figure prominently in courtroom challenges to the Patient Protection and Affordable Care Act that Congress passed in 2010 and that President Obama signed into law on March 23, 2010. As the sixteenth edition of American Constitutional Law entered its final stages of production in December 2010, a United States district judge in Virginia allowed a challenge to the law to move forward. The suit in particular involved the individual mandate provision of the law. This litigation, or another challenge to the 93 Copyright © 2012 Pearson Education, Inc.

statute, may well reach the U.S. Supreme Court, and it offers useful classroom opportunities to demonstrate the contemporary relevance of the commerce clause.

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS

GIBBONS V. OGDEN (1824) FIRST LOOK AT THE COMMERCE CLAUSE 1. What is commerce?

2. Nature of national power (note parallel to the national supremacy doctrine of McCulloch v. Maryland) 3. Judicial review and political checks 4. Is the commerce power exclusive?

5. Recognition of the state police power 6. Actual basis of decision: supremacy clause and preemption 7. Reason for the depth and breadth of Marshall’s opinion

COMMERCE CLAUSE QUANDRIES BETWEEN GIBBONS AND COOLEY

If the commerce power is exclusive, Then, all state regulations of commerce, no matter how desirable, are unconstitutional.

If the commerce power is concurrent, Then, some state regulations of commerce are surely valid. But, how does one decide which ones are valid?

THE COMMERCE CLAUSE AFTER COOLEY Local-national distinction not only leaves ample room for judicial discretion, but invites consideration of other questions.

94 Copyright © 2012 Pearson Education, Inc.

1)

2)

If subject matter is “local” in nature, are all such regulations therefore permitted? a)

What about a regulation that advantages instate businesses at the expense of out-of-state businesses (protectionism)?

b)

Suppose the local regulation “burdens” commerce between states?

How is the local interest to be balanced against the value of leaving national commerce uninhibited? How does one weigh the costs of “Balkanization?”

If subject matter is “national” in nature, what is the status of a local regulation when Congress has not legislated on the subject? Does one infer an intended national policy of nonregulation?

THE 50 STATES AND THE COMMERCE CLAUSE By the mid-twentieth century, three positions had developed on the Supreme Court. These are listed in order of increasing restriction on state authority.

1. In its dormant capacity, the commerce clause exists only to prevent protectionist legislation (local discriminations against commerce).

2. Where a local regulation burdens interstate commerce, the Court should employ a “balancingof-interests” approach—assuming a contested regulation was not an example of localism (protectionism).

3. Rejects both # 1 and # 2. The commerce clause in its dormant capacity bans any state law that hinders or restricts commerce, no matter how valuable the local interests served.

THE NATIONAL COMMERCE POWER BEFORE 1937 1. The Supreme Court alternatively employs a narrow or broad understanding of “commerce among the states” to include or exclude some commercial undertakings.

Examples: E.C. Knight, Champion v. Ames, and Stafford v. Wallace 2. The Court hesitates to defer to Congress as to when presumably local noncommercial matters “affect” (or “substantially affect”) commerce.

Examples: E.C. Knight and Carter Coal 3. The Court blocks exercise of commerce power when a statute intrudes into domain of state power 95 Copyright © 2012 Pearson Education, Inc.

Examples: Hammer v. Dagenhart and Carter Coal

CONGRESSIONAL COMMERCE POWER: DEFINING CONCEPTS AND DISTINCTIONS

1. Commerce versus manufacturing 2. National supremacy versus dual federalism

THE COMMERCE CLAUSE AFTER 1937 1. The Supreme Court expands its understanding of “commerce among the states” to include virtually all commercial undertakings.

Example: Wickard v. Filburn 2. The Supreme Court defers to Congress as to when presumably local noncommercial matters “affect” (or “substantially affect”) commerce.

Example: Heart of Atlanta Motel v. United States Exceptions: Lopez and Morrison 3. Then, along comes Gonzales v. Raich, which Wickard v. Filburn would appear to control. But Lopez and Morrison make Raich an exceedingly difficult case.

4. Raich pits states’ rights, drug use, “compassion,” and a narrow view of commerce against national supremacy, the war on drugs, “compassionlessness,” and a broad view of commerce.

5. So in Raich, what is the “liberal” position? What is the “conservative” position?

6. Result: the Court divides in Raich as it did in Lopez and Morrison, except for Scalia and Kennedy.

7. In Raich, is commerce a stationery “event” or a “stream of commerce?”

8. What is the role in Raich of direct versus indirect effects?

VIII. RESOURCES AND SUGGESTED READINGS

BENSON, PAUL R., JR. The Supreme Court and the Commerce Clause, 1937–1970.

96 Copyright © 2012 Pearson Education, Inc.

Cambridge, Mass.: Dunellen, 1970.

CORTNER, RICHARD C. The Arizona Train Limit Case. Tucson: University of Arizona Press, 1970.

———. Civil Rights and Public Accommodations: The Heart of Atlanta and McClung Cases.

Lawrence: University Press of Kansas, 2001.

———. The Jones & Laughlin Case. New York: Knopf, 1970.

CORWIN, EDWARD S. The Commerce Power Versus States Rights. Princeton, N.J.: Princeton University Press, 1936.

———. Constitutional Revolution, Ltd. Westport, Conn.: Greenwood, 1977 (reissue of the 1941 edition).

FARBER, DANIEL A. “State Regulation and the Dormant Commerce Clause.” 3 Constitutional Commentary 395 (1986).

FRANKFURTER, FELIX. The Commerce Clause Under Marshall, Taney and Waite. Chapel Hill: University of North Carolina Press, 1937.

SHESOL, JEFF. Supreme Power: Franklin Roosevelt vs. The Supreme Court . New York: Norton, 2010.

WHITE, G. EDWARD. The Constitution and the New Deal. Cambridge, Mass.: Harvard University Press, 2000.

WOOD, STEPHEN B. Constitutional Politics in the Progressive Era: Child Labor and the Law. Chicago: University of Chicago Press, 1968.

97 Copyright © 2012 Pearson Education, Inc.

CHAPTER SIX: THE COMMERCE CLAUSE Test Bank

Multiple Choice Questions 1. In the wake of the constitutional crisis of 1937, the _____ nearly disappeared as a limitation on the powers of the national government. a. Commerce Clause b. Ninth Amendment c. Tenth Amendment d. Fourteenth Amendment 2. _____ was one of the first cases in which the Supreme Court recognized the power of the states to regulate local aspects of interstate commerce. a. Cooley v. The Board of Wardens of the Port of Philadelphia (1851) b. Southern Pacific Company v. Arizona (1945) c. Cohens v. Virginia (1821) d. McCulloch v. Maryland (1819) 3. The Supreme Court is most likely to declare a state regulation of interstate commerce unconstitutional if _____. a. it regulates in an area requiring local diversity b. it favors out-of-state industry at the expense of local industry c. it differs substantially from similar regulations in other states d. it produces revenue for the state 4. In National League of Cities v. Usery (1976), the Court struck down a 1974 amendment to the Fair Labor Standards Act that extended the federal minimum wage to _____. a. children b. illegal aliens c. state and local government employees d. None of the above 5. Gibbons v. Ogden involved a _____. a. bank b. lottery c. steamboat d. railroad 6. The justice who wrote a concurring opinion in Gibbons v. Ogden was named _____. a. Marshall b. Johnson c. Story d. Washington 98 Copyright © 2012 Pearson Education, Inc.

7. In Gibbons v. Ogden, Marshall defined commerce as _____. a. slow b. intercourse c. fast d.concurrent 8. According to Justice Johnson in Gibbons v. Ogden, Congress’s power to regulate commerce was _____. a. concurrent b. resulting c. exclusive d. joint 9. The decision in Cooley v. The Board of Wardens of the Port of Philadelphia is the source of the doctrine of _____. a. implied powers b. selective exclusiveness c. interstate commerce d. exclusivity 10. The majority opinion in Cooley v. The Board of Wardens of the Port of Philadelphia was written by _____. a. Justice Curtis b. Chief Justice Taney c. Chief Justice Marshall d. Justice Johnson 11. Lopez v. United States (1995) was noteworthy because it marked the first time since 1936 that the Supreme Court had invalidated an act of Congress as a violation of _____. a. the Fourteenth Amendment b. the due process clause c. the commerce clause d. the necessary and proper clause 12. The Supreme Court last held an act of Congress unconstitutional on nondelegation grounds in _____. a. Schecter Poultry Corporation v. United States (1935) b. United States v. Curtiss-Wright Corporation (1936) c. Carter v. Carter Coal Co. (1936) d. Mistretta v. United States (1988)

99 Copyright © 2012 Pearson Education, Inc.

Essay Questions 1. Why did Congress find it necessary to rely on the Commerce Clause in enacting Title II of the Civil Rights Act of 1964? Discuss the constitutional challenges to this legislation.

2. Particularly as read in the light of McCulloch v. Maryland, why is Marshall’s opinion in the steamboat case so significant?

3. What difference does it make whether the commerce power is regarded as “exclusive” or “concurrent”?

4. What distinction does the Court employ in Reeves to uphold the state policy in that case?

Might the same distinction have plausibly been used in the garbage case to reach a different result?

5. Suppose wineries in Michigan and New York were state owned. Would the result in Heald have been different?

6. Consider United States v. E.C. Knight, Champion v. Ames, Hammer v. Dagenhart, and Stafford v. Wallace. To what extent do they reflect different understandings of what “commerce” is?

7. Can one logically agree with the decisions in both Hammer and Stafford?

8. What is the significance of Lopez? Was the Court merely asking Congress for minor cosmetic changes in how it passes laws, or is there something more fundamental being suggested? Why? 9. Although they are separated by 105 years, are there similarities between Morrison and E.C. Knight?

10. Does the outcome in Raich seem inconsistent with those in Lopez and Morrison? Why? 11. Assume the following: A state law imposes a tax on all timber harvested within the state. Instate timber-cutting companies pay a tax rate of 3 percent of the wholesale value of the timber harvested. Timber-cutting companies out of state pay a tax rate of 6 percent of the wholesale value of the timber harvested. An out-of-state company files suit in the United States District Court, claiming that the state’s two-tier timber tax violates the Commerce Clause. How should the district court rule? Why?

100 Copyright © 2012 Pearson Education, Inc.

12. The Bureau of Forestry in the State of Myopia not only oversees the thousands of acres of state-owned forests, but also operates a lumber mill that processes rare and/or exotic woods, harvested from the state forests in a mountainous region of the state and used in the manufacture of furniture. Bureau regulations specify that in selling the wood to furniture factories and to other consumers, the state-owned lumber mill is to supply in-state businesses first and then sell to outof-state businesses only after the in-state demand has been met. Because of a beetle infestation, the state-owned mill has been unable to fill orders from out of state, but has managed to meet most in-state demand. A furniture manufacturer in another state files suit in the United States District Court, claiming that the Bureau’s policy favoring in-state businesses violates the Commerce Clause. How should the district court rule? Why? 13. In light of Wickard v. Filburn alone, why would the solicitor general’s office have expected an easy victory in Gonzales v. Raich? (Make sure that your essay demonstrates an understanding of both cases, including an explanation of which side prevailed when the Supreme Court decided Raich.)

14. According to Justice William Day’s opinion for the Court in Hammer v. Dagenhart, why was the Keating Owen Child Labor Act of 1916 “in a twofold sense repugnant to the Constitution”?

15. What is the doctrine of selective exclusiveness, and in what case did it originate? Explain.

With what constitutional problem arising from Marshall’s opinion in Gibbons v. Ogden did the doctrine attempt to address? Explain.

16. In preparing for oral argument in Gonzales v. Raich, why would the solicitor general have placed heavy reliance on Wickard v. Filburn? Explain. Be sure that your essay demonstrates a full understanding of both Filburn and Raich.

17. According to Chief Justice Rehnquist’s opinion of the Court in United States v. Morrison, why was section 5 of the Fourteenth Amendment insufficient constitutional authority for the Violence Against Women Act that had become law in 1994? Explain. Be sure that your essay demonstrates a full understanding of Morrison.

18. Is the decision in Granholm v. Heald (2005) consistent with the decision in Philadelphia v.

New Jersey (1978)? Why? Make sure that your essay demonstrates an understanding of both cases.

19. The “Court-packing” controversy of the 1930s proved to be a watershed event in American constitutional law and in the institutional development of the U.S. Supreme Court. Before President Roosevelt’s New Deal legislation began to be challenged in various lawsuits, (a) what evidence did Roosevelt have that his administration’s programs would probably be sustained once they reached the Supreme Court? (b) What evidence did the president have that his administration’s programs might be rebuffed by the Court at least to some degree? (c) Once the president realized that he faced a decidedly unfriendly bench, what were his options (aside from the one he actually chose to follow) to enable him to achieve his policy objectives? Discuss. (d)

101 Copyright © 2012 Pearson Education, Inc.

Other than the course of action the Court chose to follow in the spring of 1937, what other options were open to the Bench?

20. Discuss the evolution of the Supreme Court’s Commerce Clause jurisprudence from Gibbons v. Ogden (1824) to the present. Refer to leading cases selectively to illustrate major turning points, standards, and historical trends in Supreme Court decision making in this broad field of constitutional interpretation. To what extent do these cases reflect a different understanding of what commerce is? In what areas have the Congress and the Court been accused of “distorting” the Commerce Clause? How have the justices justified this “distortion”? What does the development of the commerce power reveal about the function of the Supreme Court as a coordinate branch of government within the American political system?

Answer Key 1. — a 2. — a 3. — b 4. — c 5. — c 6. — b 7. — b 8. — c 9. — b 10. — a 11. — c 12. — a

102 Copyright © 2012 Pearson Education, Inc.

CHAPTER SEVEN: NATIONAL TAXING AND SPENDING POWER I. CHAPTER OUTLINE Direct and Indirect Taxes Views of the Framers The Income Tax Case Regulation through Taxation Enumerated and Unenumerated Powers Taxing, Spending, and the General Welfare Regulation through Spending Alcohol Civil Liberties

II. CHAPTER OVERVIEW AND OBJECTIVES Government, like individual citizens, must have regular income to pay bills and maintain credit. Government programs cost money, whether in building aircraft carriers, sponsoring cancer research, or maintaining national parks. Moreover, government must have coercive power to collect taxes. No government can carry on effectively if it has to depend, as did the Congress under the Articles of Confederation, on what amounted to voluntary contributions. Indeed, the principal weakness of the central government under the Articles was the absence of power to levy taxes. National expenditures were defrayed out of a common treasury supplied by the states in proportion to the occupied land in each state, and upon requisition by Congress. The states reserved the right to levy taxes for this purpose and were usually delinquent in making payments.

Therefore, it is not surprising that, although members of the federal Convention were sharply divided on many issues, they were almost unanimous in their insistence that Congress should have broad power to tax and spend. Heading the list of enumerated powers in Article I, Section 8, stands the provision that Congress shall have power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”

It would be difficult to fashion more sweeping language. In the exercise of its taxing and spending power, the national government acts directly on individual citizens and their property as though there were no states. Nor are there any limits (apart from those imposed on Congress at the ballot box) on the amount Congress may attempt to collect through taxation. The only limitations on the taxing power are those that the Supreme Court has established and those that the Constitution specifically provides in Article I. Section 9 specifically bars a preference to one state’s ports over another’s and forbids a tax on exports (a concession made in 1787 to southern exporters). These provisions have occasioned no difficulties. Yet the Court’s interpretation of the stipulation on direct taxes in the same section led to a constitutional amendment.

The objectives of Chapter Seven therefore are to trace, through the prism of Supreme Court decisions, the development of Congress’s power to tax and spend. In important respects, as 103 Copyright © 2012 Pearson Education, Inc.

will be seen, there is a parallel between Congress’s use of the power to regulate interstate commerce and the taxing and spending power. While the post-1937 view—again in parallel with the commerce clause—has been to accord Congress wide latitude in these areas, some limitations nonetheless appear to remain. Students therefore will want to be attuned to what those limitations may still be.

III. KEY TERMS Articles of Confederation direct taxes indirect taxes independent constitutional bar regulatory taxation enumerated powers destructive tax Hamiltonian theory Madisonian theory conditional spending Solomon Amendment

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Hylton v. United States (1796) Pollock v. Farmers’ Loan & Trust Company (1895) McCray v. United States (1904) Bailey v. Drexel Furniture Co. (1922) United States v. Butler (1936) South Dakota v. Dole (1987) Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) (2006)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE National Endowment for the Arts v. Finley (1998)

104 Copyright © 2012 Pearson Education, Inc.

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. The suggestion is made that McCray v. United States seemed to some people at the time that the Court had come close to making issues of the use of Congress’s taxing power a political question. In what way might this be true?

2. What are common examples today of conditional spending?

3. To what degree are issues of conditional spending entangled with federalism?

4. In what way does Hylton v. United States anticipate Chapter Two’s Marbury v. Madison?

5. Review the materials in Chapter Four discussing the revival of dual federalism in some recent Supreme Court decisions. In what way was dual federalism a factor in Justice Roberts’s opinion in United States v. Butler?

6. In light of South Dakota v. Dole, are there any remaining judicial checks to augment the purely political checks on congressional spending power in relation to the states?

7. In evaluating Congress’s powers under the spending clause, what difference does it make whether the Court prefers the Hamiltonian or Madisonian theory?

8. In her separate opinion in South Dakota v. Dole, what use does Justice O’Connor make of United States v. Butler?

9. What approach(s) to judicial review does one find in Justice Roberts’s opinion for the Court in United States v. Butler?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS (Note: This excerpted case from 2001 may be distributed as a handout or posted online for a class to use. It is also applicable to free-speech issues discussed in Chapter Eleven.)

Legal Services Corporation v. Velazquez 531 U.S. 533, 121 S. Ct. 1043, 149 L.Ed. 2d 63 (2001) http://supct.law.cornell.edu/supct/html/99-603.ZS.html The Legal Services Corporation Act authorizes the Legal Services Corporation (LSC) to distribute funds appropriated by Congress to local grantee organizations providing free legal assistance to indigent clients in matters such as welfare benefits claims. In every annual appropriations Act since 1996, Congress prohibited LSC funding of any organization that represented clients in an effort to amend or otherwise challenge existing welfare law (§504(a)(16). Lawyers employed by LSC grantees and others filed suit in the U.S. District Court for the Southern District of New York, claiming that the restriction was constitutionally invalid. The district court denied a preliminary injunction, but the Second Circuit Court of Appeals invalidated the restriction as an impermissible viewpoint discrimination in conflict with the First Amendment. Majority: Kennedy, Breyer, Ginsburg, Souter, Stevens. Dissenting: Scalia, O’Connor, Rehnquist, Thomas.

JUSTICE KENNEDY delivered the opinion of the Court...

This suit requires us to decide whether one of the conditions imposed by Congress on the use of LSC funds violates the First Amendment rights of LSC grantees and their clients....

105 Copyright © 2012 Pearson Education, Inc.

We agree that the restriction violates the First Amendment, and we affirm the judgment of the Court of Appeals.

From the inception of the LSC, Congress has placed restrictions on its use of funds. For instance, the LSC Act prohibits recipients from making available LSC funds, program personnel, or equipment to any political party, to any political campaign, or for use in “advocating or opposing any ballot measures.” The Act further proscribes use of funds in most criminal proceedings and in litigation involving nontherapeutic abortions, secondary school desegregation, military desertion, or violations of the Selective Service statute. Fund recipients are barred from bringing class-action suits unless express approval is obtained from LSC. The restrictions at issue were part of a compromise set of restrictions enacted in the Omnibus Consolidated Rescissions and Appropriations Act of 1996, and continued in each subsequent annual appropriations Act. The relevant portion … prohibits funding of any organization “that initiates legal representation or participates in any other way, in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph shall not be construed to preclude a recipient from representing an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”

The prohibitions apply to all of the activities of an LSC grantee, including those paid for by non-LSC funds. We are concerned with the statutory provision which excludes LSC representation in cases which “involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.” ...

The United States and LSC rely on Rust v. Sullivan as support for the LSC program restrictions. In Rust, Congress established program clinics to provide subsidies for doctors to advise patients on a variety of family planning topics. Congress did not consider abortion to be within its family planning objectives, however, and it forbade doctors employed by the program from discussing abortion with their patients. Recipients of funds under Title X of the Public Health Service Act challenged the Act’s restriction that provided that none of the Title X funds appropriated for family planning services could “be used in programs where abortion is a method of family planning.” ...

We upheld the law, reasoning that Congress had not discriminated against viewpoints on abortion, but had “merely chosen to fund one activity to the exclusion of the other.” The restrictions were considered necessary “to ensure that the limits of the federal program [were] observed.” Title X did not single out a particular idea for suppression because it was dangerous or disfavored; rather, Congress prohibited Title X doctors from counseling that was outside the scope of the project.

106 Copyright © 2012 Pearson Education, Inc.

The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or instances, like Rust, in which the government “used private speakers to transmit information pertaining to its own program.” ...

[T]he salient point is that … the LSC program was designed to facilitate private speech, not to promote a governmental message. Congress funded LSC grantees to provide attorneys to represent the interests of indigent clients. In the specific context of … suits for benefits, an LSCfunded attorney speaks on the behalf of the client in a claim against the government for welfare benefits. The lawyer is not the government’s speaker. The attorney defending the decision to deny benefits will deliver the government’s message in the litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client....

When the government creates a limited forum for speech, certain restrictions may be necessary to define the limits and purposes of the program. The same is true when the government establishes a subsidy for specified ends.… Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. At oral argument and in its briefs the LSC advised us that lawyers funded in the Government program may not undertake representation in suits for benefits if they must advise clients respecting the questionable validity of a statute which defines benefit eligibility and the payment structure. The limitation forecloses advice or legal assistance to question the validity of statutes under the Constitution of the United States. It extends further, it must be noted, so that state statutes inconsistent with federal law under the Supremacy Clause may be neither challenged nor questioned.

By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the State and Federal courts and the independent bar on which those courts depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases we have cited. Just as government in those cases could not elect to use a broadcasting network or a college publication structure in a regime which prohibits speech necessary to the proper functioning of those systems … it may not design a subsidy to effect this serious and fundamental restriction on advocacy of attorneys and the functioning of the judiciary....

It is no answer to say the restriction on speech is harmless because, under LSC’s interpretation of the Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider.

The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel. The explicit premise for providing LSC attorneys is the necessity to make available representation “to persons financially unable to afford legal assistance.” ...

It is fundamental that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

There can be little doubt that the LSC Act funds constitutionally protected expression; and in the 107 Copyright © 2012 Pearson Education, Inc.

context of this statute there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives. This serves to distinguish [the resetriction] from any of the Title X program restrictions upheld in Rust, and to place it beyond any congressional funding condition approved in the past by this Court.

Congress was not required to fund an LSC attorney to represent indigent clients; and when it did so, it was not required to fund the whole range of legal representations or relationships.

The LSC and the United States, however, in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge. Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest.

For the reasons we have set forth, the funding condition is invalid....

The judgment of the Court of Appeals is Affirmed.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE O’CONNOR, and JUSTICE THOMAS join, dissenting....

The LSC Act is a federal subsidy program, not a federal regulatory program, and “[t]here is a basic difference between [the two].” Regulations directly restrict speech; subsidies do not. Subsidies, it is true, may indirectly abridge speech, but only if the funding scheme is “‘manipulated’ to have a ‘coercive effect’” on those who do not hold the subsidized position. Proving unconstitutional coercion is difficult enough when the spending program has universal coverage and excludes only certain speech—such as a tax exemption scheme excluding lobbying expenses. The Court has found such programs unconstitutional only when the exclusion was “aimed at the suppression of dangerous ideas.” … Proving the requisite coercion is harder still when a spending program is not universal but limited, providing benefits to a restricted number of recipients. The Court has found such selective spending unconstitutionally coercive only once, when the government created a public forum with the spending program but then discriminated in distributing funding within the forum on the basis of viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va. (1995). When the limited spending program does not create a public forum, proving coercion is virtually impossible, because simply denying a subsidy “does not ‘coerce’ belief,” and because the criterion of unconstitutionality is whether denial of the subsidy threatens “to drive certain ideas or viewpoints from the marketplace.” Absent such a threat, “the Government may allocate … funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.”

108 Copyright © 2012 Pearson Education, Inc.

In Rust v. Sullivan, the Court applied these principles to a statutory scheme that is in all relevant respects indistinguishable from §504(a)(16). The statute in Rust authorized grants for the provision of family planning services, but provided that “[n]one of the funds … shall be used in programs where abortion is a method of family planning.” Valid regulations implementing the statute required funding recipients to refer pregnant clients “for appropriate prenatal … services by furnishing a list of available providers that promote the welfare of mother and unborn child,” but forbade them to refer a pregnant woman specifically to an abortion provider, even upon request.

We rejected a First Amendment free-speech challenge to the funding scheme, explaining that “[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem another way.” This was not, we said, the type of “discriminat[ion] on the basis of viewpoint” that triggers strict scrutiny, because the “‘decision not to subsidize the exercise of a fundamental right does not infringe the right.’”

The same is true here. The LSC Act, like the scheme in Rust, does not create a public forum. Far from encouraging a diversity of views, it has always, as the Court accurately states, “placed restrictions on its use of funds.” Nor does §504(a)(16) discriminate on the basis of viewpoint, since it funds neither challenges to nor defenses of existing welfare law. The provision simply declines to subsidize a certain class of litigation, and under Rust that decision “does not infringe the right” to bring such litigation....

The Court contends that Rust is different because the program at issue subsidized government speech, while the LSC funds private speech. This is so unpersuasive it hardly needs response. If the private doctors’ confidential advice to their patients at issue in Rust constituted “government speech,” it is hard to imagine what subsidized speech would not be government speech....

The Court further asserts that these cases are different from Rust because the welfare funding restriction “seeks to use an existing medium of expression and to control it … in ways which distort its usual functioning.” This is wrong on both the facts and the law. It is wrong on the law because there is utterly no precedent for the novel and facially implausible proposition that the First Amendment has anything to do with government funding that—though it does not actually abridge anyone’s speech—“distorts an existing medium of expression.” None of the three cases cited by the Court mentions such an odd principle....

The Court’s “nondistortion” principle is also wrong on the facts, since there is no basis for believing that §504(a)(16), by causing “cases [to] be presented by LSC attorneys who [can]not advise the courts of serious questions of statutory validity,” will distort the operation of the courts....

Finally, the Court is troubled “because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel.” That is surely irrelevant, since it leaves the welfare recipient in no worse condition than he would have been in had the LSC program never been enacted....

It is illuminating to speculate how these cases would have been decided if Congress had enacted §504(a)(16) without its proviso (prescribing only the general ban against “litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system”), and if the positions of the parties before us here were reversed. If the LSC-funded lawyers were here arguing that the statute permitted representation of individual welfare claimants who did not challenge existing law, I venture to say that the Court would endorse their argument—perhaps with stirring language about the importance of aid to welfare applicants and the Court’s unwillingness to presume without clear indication that Congress would want to eliminate it. And I have little doubt that in that context the Court would find its current First Amendment musings as unpersuasive as I find them today.

Today’s decision is quite simply inexplicable on the basis of our prior law. The only difference between Rust and the present case is that the former involved “distortion” of (that is to say, refusal to subsidize) the normal work of doctors, and the latter involves “distortion” of (that 109 Copyright © 2012 Pearson Education, Inc.

is to say, refusal to subsidize) the normal work of lawyers. The Court’s decision displays not only an improper special solicitude for our own profession; it also displays, I think, the very fondness for “reform through the courts”—the making of innumerable social judgments through judge-pronounced constitutional imperatives—that prompted Congress to restrict publicly funded litigation of this sort. The Court says today, through an unprecedented (and indeed previously rejected) interpretation of the First Amendment, that we will not allow this restriction—and then, to add insult to injury, permits to stand a judgment that awards the general litigation funding that the statute does not contain. I respectfully dissent.

-----------------------------------------------------------------------------------------------------------VIII. RESOURCES AND SUGGESTED READINGS CORWIN, EDWARD S. “The Spending Power of Congress.” 36 Harvard Law Review 548 (1923).

CUSHMAN, ROBERT E. “Social and Economic Control Through Federal Taxation.” 18 Minnesota Law Review 757 (1934).

EPSTEIN, RICHARD A. “Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent.” 102 Harvard Law Review 4 (1988).

KADEN, LEWIS B. “Politics, Money, and State Sovereignty: The Judicial Role.” 79 Columbia Law Review 847 (1979).

LAWSON, J. F. The General Welfare Clause. Washington D.C.: J. F. Lawson, 1926.

LUND, NELSON. “Congressional Power over Taxation and Commerce: The Supreme Court’s Lost Chance to Devise a Consistent Doctrine.” 18 Texas Tech Law Review 729 (1987).

MCCOY, THOMAS R., and BARRY FRIEDMAN. “Conditional Spending: Federalism’s Trojan Horse.” 1988 Supreme Court Review 85.

MOORE, W. S., and RUDOLF G. PENNER, eds. The Constitution and the Budget. Washington, D.C.: American Enterprise Institute, 1980.

STANLEY, ROBERT. Dimensions of Law in the Service of Order: Origins of the Federal Income 110 Copyright © 2012 Pearson Education, Inc.

Tax, 1861–1913. New York: Oxford University Press, 1993.

WITTE, JOHN F. The Politics and Development of the Federal Income Tax. Madison: University of Wisconsin Press, 1985.

111 Copyright © 2012 Pearson Education, Inc.

CHAPTER SEVEN: NATIONAL TAXING AND SPENDING POWER Test Bank

Multiple Choice Questions 1. Hylton v. United States involved a tax on _____. a. lotteries b. oleomargarine c. cigarettes d. carriages 2. Justice ______ did not file an opinion in Hylton v. United States. a. Cushing b. Patterson c. Iredell d.Chase 3. According to the Constitution, indirect taxes are to be levied according to the rule of _____. a. fairness b. apportionment c. uniformity d. population 4. Pollock v. Farmers’ Loan and Trust Co. involved _____. a. an income tax b. a tax on carriages c. tariffs d. a tax on oleomargarine 5. What change in the Constitution was brought about as a result of reaction to Pollock v.

Farmers’ Loan and Trust Co? a. Seventeenth Amendment b. Eighteenth Amendment c. Nineteenth Amendment d. Sixteenth Amendment 6. McCray v. United States involved _____. a. an income tax b. a tax on carriages c. tariffs d. a tax on oleomargarine

112 Copyright © 2012 Pearson Education, Inc.

7. Congress’s power to tax is an example of _____. a. an implied power b. an enumerated power c. an exclusive power d. resulting power 8. The majority opinion in Bailey v. Drexel Furniture Co. was written by _____. a. Chief Justice Taft b. Justice Brandeis c. Justice Roberts d. Justice Stone 9.Rumsfeld v. Forum for Academic and Institutional Rights involved _____. a. the Solomon Amendment b. the Fourth Amendment c. the taxing power d. the Hyde Amendment 10. South Dakota v. Dole involved _____. a. the income tax b. agricultural price supports c. the drinking age d. a national speed limit 11. According to Justice Stone in United States v. Butler, “the only check upon our own exercise of power is _____” a. the president b. the Constitution c. the people d. our own sense of self-restraint

Essay Questions 1. In what way does Hylton v. United States anticipate John Marshall’s opinion in Marbury v.

Madison?

2. In evaluating Congress’s powers under the spending clause, what difference does it make whether the Court prefers the Hamiltonian or Madisonian theory?

3. In United States v. Butler, did the Court rely on the Madisonian or Hamiltonian theory?

Explain.

4. According to Justice Robert’s opinion for the majority in United States v. Butler, what was the Court’s task in weighing the constitutionality of an act of Congress?

113 Copyright © 2012 Pearson Education, Inc.

5. What is the connection between Bailey v. Drexel Furniture Co. and Hammer v. Dagenhart?

6. How has the Supreme Court interpreted the power to tax to enhance congressional power?

Refer to leading cases to illustrate your points.

7. In what way did McCray v. United States almost convert the taxing power into a “political question”?

Answer Key 1. — d 2. — a 3. — c 4. — a 5. — d 6. — d 7. — b 8. — a 9. — a 10. — c 11. — d

114 Copyright © 2012 Pearson Education, Inc.

CHAPTER EIGHT: PROPERTY RIGHTS AND THE DEVELOPMENT OF DUE PROCESS I. CHAPTER OUTLINE The Doctrine of Vested Rights At the Convention The Court’s Response Expansion of the Contract Clause The Yazoo Land Case Filling the Breach Twilight of the Contract Clause Origins of Due Process Judicial Restraint and the Fourteenth Amendment Testing the New Amendment A Public Interest Judicial Activism and the Fourteenth Amendment Judicial Revolution The Bake Shop Case Brandeis Brief The Decline of Due Process Protection of Property Rights Lochner’s Legacy Search for a Role: Footnote Four Takings, Land Use, and the Fifth Amendment Takings Public Use Just Compensation “New Property” and Due Process of Law A Protected Interest What Process Is Due? New Property and the Privileges and Immunities Clause Punitive Damages

II. CHAPTER OVERVIEW AND OBJECTIVES Chapters Six and Seven were concerned partly with national power—the power of Congress to regulate commerce and to tax and spend. Out of the Court’s interpretation of national power emerged one of the first great antinomies of constitutional law—national supremacy versus dual federalism. By 1937, the Court had largely resolved that conflict in favor of national power.

Chapter Eight features another major antinomy, or conflict between doctrines—vested rights versus state police power. The first emphasizes the sanctity of private property and demands that legislation not unduly or unreasonably restrict rights of ownership. The second includes the authority states retain to promote health, safety, and the general welfare. In Brown v.

115 Copyright © 2012 Pearson Education, Inc.

Maryland (1827), Chief Justice Marshall spoke of the police power as residual, comprising what remained of a state’s authority beyond the other great prerogatives of eminent domain and taxation. Indeed, most legislation passed by law-making bodies in the states then and now is an exercise of the state police power.

As will be seen in Chapter Eight, once the Fourteenth Amendment became part of the Constitution in 1868 after the Civil War, the Court began to deploy due process as a way to promote insistence on vested rights at the expense of the police power. Thus, due process was transformed from what was mainly a loose procedural limitation on government into a major substantive limitation: from an emphasis on how something was done to an emphasis on what could be done. Eventually, this use of due process pushed the Court in the 1930s into a radical restatement of its role. This restatement of role more or less occurred simultaneously with the prominent shift the Court made with respect to Congress’s authority under the commerce clause.

The restatement was an attempt to cope with what is sometimes called the countermajoritarian dilemma or difficulty: How does one square judicial review with democratic government? How does one justify the exercise of power by unelected judges over elected lawmakers? The restatement of role is reflected in the Footnote Four from United States v.

Carolene Products Co. (1938).

But the fact that the Court no longer uses due process as a tool to censor regulations on economic policy does not mean that the Court has abandoned property altogether. That much is clear from the rest of the chapter with its review of Fifth Amendment “takings” and the “new property.”

Prominent throughout is the ongoing debate about the proper adjustment of competing claims involving the police power, individual rights, and the constitutional limitations on that power. As much as in any other area of constitutional law, this debate reflects not just opposing views on what the proper adjustment should be but opposing views on the Court’s place in the political system. So, the chapter displays a debate over judicial review itself, anticipating the later controversy over abortion and the Court’s development of a constitutional right of privacy (see Chapter Thirteen).

III. KEY TERMS antinomy vested rights police power ex post facto laws contract clause reservation clause popular sovereignty 116 Copyright © 2012 Pearson Education, Inc.

implied contracts due process liberty of contract Brandeis brief countermajoritarian difficulty Footnote Four takings clause eminent domain public use just compensation new property entitlements punitive damages compensatory damages tortfeasor IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Calder v. Bull (1798) Dartmouth College v. Woodward (1819) Charles River Bridge v. Warren Bridge (1837) Home Building & Loan Association v. Blaisdell (1934) Slaughterhouse Cases (1873) Munn v. Illinois (1877) Unstaged Debate of 1893: Justice Brewer v. Professor Thayer Lochner v. New York (1905) Nebbia v. New York (1934) West Coast Hotel Co. v. Parrish (1937) Ferguson v. Skrupa (1963) Saenz v. Roe (1999) Kelo v. City of New London (2005)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE 117 Copyright © 2012 Pearson Education, Inc.

Nollan v. California Coastal Commission (1987)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. The decisions in Dartmouth College v. Woodward and Charles River Bridge v. Warren Bridge reflect contrasting views on the rigors of the contract clause. Does each also represent contrasting views on the nature of property?

2. Use of the due process clause to protect property may have represented an effort to amend the Constitution judicially, to add to the document protections that the Framers failed to include. Is there evidence to support this statement in the Slaughterhouse Cases, Munn v. Illinois, and Lochner v. New York?

3. In 1893, Justice David J. Brewer and Professor James Bradley Thayer spoke out on judicial activism versus judicial restraint. What did they recommend concerning the Court’s role?

4. Justices on the modern Court have made clear that they reject the judicial philosophy reflected in Lochner v. New York. Yet, they have by no means turned their backs on intervention in other realms of public policy. Precisely what was wrong with Lochner? Does it deserve its bad reputation?

5. Compare professor Thayer’s approach to judicial review with Justice Peckham’s in Lochner v.

New York. What differences are apparent?

6. Are there local examples of the impact of Kello v. City of New London, or reaction to it?

7. What recent local examples are there of the use of government’s power of eminent domain?

8. What accounts for the demise of the force of the contract clause as a restraint on legislative majorities?

9. In Home Building & Loan Association v. Blaisdell, what impact did Justice Cardozo have with his unpublished opinion that he circulated within the Court?

10. According to his unpublished opinion, what role does Justice Cardozo leave for judicial review?

11. In what ways is Lochner v. New York a harbinger of the modern Supreme Court?

12. What difference did the Fourteenth Amendment make in the Supreme Court’s docket?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS CONSTITUTIONAL RESTRICTONS ON STATE POWER PRIOR TO THE FOURTEENTH AMENDMENT [Article I, Section 10] No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and 118 Copyright © 2012 Pearson Education, Inc.

Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. [emphasis added] ---------------------------------------------------------------BUSINESS OF THE SUPREME COURT BEFORE 1868

1. Mainly nonconstitutional 2. Heavy on diversity, admiralty, and maritime cases 3. Most legislative activity occurred at the state level, not yet in Congress.

4. Relatively few constitutional restrictions on the states (The Bill of Rights, for example, applied to the national government, not the states.)

----------------------------------------------------------SLAUGHTERHOUSE CASES: The Fourteenth Amendment Encounters the Supreme Court Subplot: The Court guts the privileges and immunities clause.

1. Section one establishes two kinds of citizenship: national and state.

2. The privileges and immunities clause in section two protects from state interference only those privileges and immunities (rights) inhering in or deriving from national (not state) citizenship.

3. The privileges and immunities clause therefore leaves rights inhering in or deriving from state citizenship under the sole protection of state governments.

4. The right claimed by the butchers to pursue a lawful calling is a right inhering in or deriving from state (not national) citizenship.

119 Copyright © 2012 Pearson Education, Inc.

5. The butchers’ claim of a right to pursue a lawful calling therefore is not a claim encompassed by the Fourteenth Amendment, because the clause protects from state interference only those rights based on one’s national citizenship.

6. The butchers have no recourse under the national Constitution; any remedies or redress must come from state courts and/or state law.

7. The due process clause is also dismissed out of hand as not being applicable to the butchers’ plight.

8. Similarly, the equal protection clause has no application beyond race discrimination, which is not alleged on the facts of the case.

Munn v. Illinois 1. Category of property subject to rate regulation 2. Deference to legislature as to what property qualifies for that category 3. Reasonableness of rates as a legislative (not judicial) question 4. Preference for political (not judicial) checks ----------------------------------------------------------

VIII. RESOURCES AND SUGGESTED READINGS ACKERMAN, BRUCE. Private Property and the Constitution. New Haven, Conn.: Yale University Press, 1977 CORWIN, EDWARD S. “The Basic Doctrine of American Constitutional Law.” 12 Michigan Law Review 247 (1914).

DELONG, JAMES. Property Matters. New York: Simon & Schuster, 1997.

ELY, JAMES W., JR. The Guardian of Every Other Right: A Constitutional History of Property Rights. New York: Oxford University Press, 1992.

FISHEL, WILLIAM A. Regulatory Takings. Cambridge, Mass.: Harvard University Press, 1995.

120 Copyright © 2012 Pearson Education, Inc.

GILLMAN, HOWARD. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, N.C.: Duke University Press, 1993.

KENS, PAUL. Judicial Power and Reform Politics: The Anatomy of Lochner v. New York.

Lawrence: University Press of Kansas, 1990.

KUTLER, STANLEY I. Privilege and Creative Destruction: The Charles River Bridge Case.

Philadelphia: Lippincott, 1972.

LABBE, RONALD M., and JONATHAN LURIE. The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment. Lawrence: University Press of Kansas, 2003.

NEDELSKY, JENNIFER. Private Property and the Limits of American Constitutionalism. Chicago: University of Chicago Press, 1991.

PAUL, ARNOLD M. Conservative Crisis and Rule of Law: Attitudes of Bar and Bench, 1887– 1895. Ithaca, N.Y.: Cornell University Press, 1960 PRICE, POLLY J. Property Rights. Santa Barbara, Calif.: ABC-CLIO, 2003.

STEPHENSON, D. GRIER, JR. “The Supreme Court and Constitutional Change: Lochner v. New York Revisited.” 21 Villanova Law Review 217 (1976).

WRIGHT, BENJAMIN F. The Contract Clause of the Constitution. Cambridge, Mass.: Harvard University Press, 1938.

121 Copyright © 2012 Pearson Education, Inc.

CHAPTER EIGHT: PROPERTY RIGHTS AND THE DEVELOPMENT OF DUE PROCESS Test Bank Multiple Choice Questions 1. In _____, the Supreme Court held that businesses “clothed in the public interest” could be regulated by the states. a. Charles River Bridge Co. v. Warren Bridge Co. (1837) b. Munn v. Illinois (1877) c. Lochner v. New York (1905) d. West Coast Hotel Co. v. Parrish (1934) 2. Dartmouth College v. Woodward involved _____. a. the due proess clause b. the commerce clause c. the contract clause d. presidential power 3. The opinion of the Court in Charles River Bridge Co. v. Warren Bridge Co. was written by _____. a. Chief Justice Marshall b. Justice Story c. Andrew Jackson d. Chief Justice Taney 4. As a result of the decision in Charles River Bridge Co. v. Warren Bridge Co., shareholders of the Charles River Bridge Co. were jubilant. a. TRUE b.FALSE 5. The holding in Calder v. Bull stated that the Constitution’s ban on ex post facto laws was limited to certain kinds of retroactive _____. a. tax legislation b. wills and estates c. criminal legislation d. civil issues 6. According to Justice Iredell in Calder v. Bull, the “ideas of natural justice” are _____. a. regulated by no fixed standard b. enforceable by the Supreme Court c. are followed by the most able jurists d. None of the above 122 Copyright © 2012 Pearson Education, Inc.

7. The decision in Charles River Bridge Co. v. Warren Bridge Co. rejected the idea that the Constitution protected _____. a. implied contracts b. paper money c. federal contracts d. state contracts 8. Home Building & Loan Association v. Blaisdell involved a challenge to statute in _____. a. Michigan b. Minnesota c. Wisconsin d. Missouri 9. The Majority opinion in Home Building & Loan Association v. Blaisdell was written by _____. a. Chief Justice Hughes b. Justice McReynolds c. Justice Cardozo d. Chief Justice Taft 10. In his speech in 1893, Justice David J. Brewer advocated _____. a. strengthening the judiciary b. judicial restraint c. stronger labor unions d. unleashed public opinion 11. In his article of 1893, Professor Thayer advocated _____. a. judicial activism b. judges who walk in the shoes of lawmakers c. more efficient courts d. judicial restraint 12. In Lochner v. New York, Justice Peckham spoke of _____. a. the contract clause b. liberty of contract c. the public interest d. the Fifteenth Amendment 13. Munn v. Illinois involved _____. a. butchers b. grain warehouses c. hotel workers d. bakery employees

123 Copyright © 2012 Pearson Education, Inc.

14. United States v. Carolene Products Co. involved _____. a. a milk product b. a textile product c. an automotive product d. a petroleum product 15. Chief Justice/Justice _____ famous footnote in United States v. Carolene Products Co. (1938) recognized potential constitutional problems resulting from efforts to limit rights found in the first ten amendments. a. Oliver Wendell Holmes’s b. Felix Frankfurter’s c. Harlan F. Stone’s d. Charles Evans Hughes’s

Essay Questions 1. Suppose Waite and Peckham had been on the Supreme Court that decided Nollan v. California Coastal Commission as well as Kelo v. City of New London. How would Waite and Peckham have probably voted in each of these contemporary cases? Why? (Make sure that your essay demonstrates an understanding of both Nollan and Kelo.)

2. According to Justice Samuel Miller’s opinion for the Court in the Slaughterhouse Cases, why did the New Orleans butchers fail to make a credible claim under the newly ratified Fourteenth Amendment?

3. For health reasons, New York City has banned the serving of food containing high concentrations of corn-based sweeteners in restaurants within the city. Suppose that a group of restaurant owners files suit claiming that the new ordinance violates the due process clause of the Fourteenth Amendment. How would a U.S. Supreme Court justice approach such a case from the perspective of the following: (a) Chief Justice Morrison Waite’s opinion of the Court in Munn v. Illinois (b) Justice Stephen Field’s dissent in Munn v. Illinois (c) Professor James Bradley Thayer’s 1893 Harvard Law Review article (d) Justice Rufus Peckham’s opinion of the Court in Lochner v. New York (e) Justice Hugo Black’s opinion of the Court in Ferguson v. Skrupa 4. In what ways does Calder v. Bull anticipate both Marbury v. Madison and Cohens v. Virginia that were decided some years after Calder v. Bull? Explain. Be sure that your essay demonstrates a full understanding of both Calder and Cohens.

124 Copyright © 2012 Pearson Education, Inc.

5. Opinions filed in Lochner v. New York reveal different ways of judging state laws claimed to be in violation of the due process clause of the Fourteenth Amendment. (a) What approach is illustrated by Justice Peckham’s opinion for the majority? Explain. (b) What approach is illustrated by the dissents of justices Holmes and Harlan? Explain.

6. Based on his opinion for the Court in Ferguson v. Skrupa (1963), would Justice Black have looked favorably or unfavorably on Chief Justice Waite’s majority opinion in Munn v. Illinois (1877)? Why? Make sure your essay demonstrates an understanding of both cases.

7. Use of the due process clause to protect property may have represented an effort to amend the Constitution judicially, to add to the document protections that the Framers failed to include. Is there evidence to support this statement in the Slaughterhouse Cases, Munn v. Illinois and Lochner v. New York?

8. In 1893, Justice David J. Brewer and Professor James Bradley Thayer spoke out on judicial activism versus judicial restraint. What did they recommend concerning the Court’s role?

9. What two changes in the Court’s role are suggested by the decision in the Carolene Products case?

10. What are the ideas contained in Justice Stone’s Footnote Four in Carolene Products?

11. How does Footnote Four purport to offer a solution to the countermajoritarian difficulty?

12. Chief Justice Waite (in Munn v. Illinois, 1877) and Justice Peckham (in Lochner v. New York, 1905) had very different views regarding (1) the Fourteenth Amendment’s due process clause and (2) the Court’s role in American government. Explain.

13. According to Justice Miller’s (majority) opinion for the Court in the Slaughterhouse Cases (1873), what protections did the Fourteenth Amendment provide against abuses of individual rights by the states? Was Miller’s message one that the New Orleans area butchers wanted to hear? Explain.

14. In his dissenting opinion in the Slaughterhouse Cases (1873), Justice Field insisted that had the majority adopted his interpretation of the privileges and immunities clause, the “inhibitions” of the recently ratified Fourteenth Amendment would have “a profound and significant consequence.” Explain.

15. Discuss briefly the constitutional and economic significance of Trustees of Dartmouth College v. Woodward (1819).

Answer Key 125 Copyright © 2012 Pearson Education, Inc.

1. — b 2. — c 3. — d 4. — b 5. — c 6. — c 7. — a 8. — b 9. — a 10. — a 11. — d 12. — b 13. — b 14. — a 15. — c

126 Copyright © 2012 Pearson Education, Inc.

CHAPTER NINE: THE BILL OF RIGHTS I. CHAPTER OUTLINE Paths of Due Process of Law Creation of the Bill of Rights Applying the Bill of Rights to the States Beginnings Ordered Liberty Triumph of Selective Incorporation Table 9.1: Nationalization of the Bill of Rights Due Process Revolution The New Judicial Federalism: A New Double Standard The Second Amendment

II. CHAPTER OVERVIEW AND OBJECTIVES Preceding chapters have shown that the Supreme Court’s regard for certain strictures in the Constitution dates from the earliest years of the Republic. Aside from property interests, however, judicial attention to the Bill of Rights, though it has been part of the Constitution since 1791, is of more recent origin. Almost all cases that have shaped the meaning of constitutionally protected expression (the First Amendment) and that have defined personal liberty and the rights of persons accused of crimes (the Fourth, Fifth, Sixth, and Eighth amendments) have been decided since 1920.

Even though it is among the briefer chapters in the book, Chapter Nine has several objectives packed into its shorter length. One objective of this chapter is to demonstrate how the United States came to have a Bill of Rights. Some have called it an almost forgotten appendage.

With this objective in mind, one of the suggested handouts, inserted later, that can also be used as the basis for a lecture or class discussion, places the American Bill of Rights in historical context and shows how our Bill of Rights in 1791 was hardly original.

A second objective is to lay out the transformation in American government that took place when the Supreme Court began to decide many cases dealing with the Bill of Rights, a phenomenon that continues even into the contemporary period, as Table 9.1 illustrates. This transformation was a result not merely of the appointment of justices who were perhaps more keenly interested than were some of their predecessors in protecting individual liberties but also a process by which the Fourteenth Amendment, discussed in Chapter Eight, became a vehicle by which the strictures of the Bill of Rights were gradually applied to state and local governments.

Still a third objective is to introduce the Second Amendment. It is in the introductory essay for Chapter Nine that background information on the Second Amendment is provided, and it is also in Chapter Nine that District of Columbia v. Heller (2008) is reprinted, along with McDonald v. City of Chicago, by which the Court (this time with Justice Sotomayor in place of 127 Copyright © 2012 Pearson Education, Inc.

Justice Souter), generally dividing as it had in Heller, applied the Second Amendment to the states. McDonald thus marked the first instance of explicit Bill of Rights incorporation to occur in over four decades.

III. KEY TERMS civil liberty civil right due process of law recusal incorporation ordered liberty total incorporation double standard fair trial rule due process revolution new judicial federalism new double standard Antifederalists Second Amendment

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Jefferson-Madison Correspondence, 1787–1789 Palko v. Connecticut (1937) Adamson v. California (1947) Duncan v. Louisiana (1968) District of Columbia v. Heller (2008) McDonald v. City of Chicago (2010)

V. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. Reread the statement by Justice Jackson on the Bill of Rights at the very beginning of this chapter. Should it be qualified in any way?

128 Copyright © 2012 Pearson Education, Inc.

2. Compare the opinions of justices White and Harlan in Duncan v. Louisiana (1968).

What values were in conflict? What values seemed most important for White? For Harlan?

3. If the Supreme Court did not begin to decide substantial numbers of cases involving the Bill of Rights until the 1940s, how were rights and liberties protected prior to that time?

4. What questions did District of Columbia v. Heller (2008) answer? What questions did it leave unanswered?

5. What opportunity did McDonald v. City of Chicago present for the Court to revisit the Slaughterhouse Cases? What was the Court’s response?

6. What method of incorporation did the Court choose to use in McDonald v. City of Chicago?

Was there another option?

7. Why did the Court seem reluctant in Adamson v. California to follow Justice Black’s lead?

8. What provisions of the Bill of Rights remain “unapplied” to the states? Is it significant that they remain unapplied?

VI. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS A PRIMER ON THE AMERICAN BILL OF RIGHTS (1791) 1. We were copycats.

A. English constitutional development 1. Magna Carta (1215) 2. Petition of Right (1628) 3. English Bill of Rights (1689) B. Philosophy of natural rights. Example: Declaration of Independence (1776) C. Colonial American experience. Example: Pennsylvania’s Charter of Privileges (1701) 2. The Bill of Rights as an afterthought 3. Shift in the target of restraints: the purpose of a bill of rights shifts over time from protecting the many (the majority) from the few (the minority) to protecting the few (the minority) from the many (the majority).

Madison: “Wherever the real power in a government lies, there is the danger of oppression” (emphasis added).

4. The Supreme Court and judicial review: Thanks to Marbury v. Madison, (1803) the Constitution (and with it the Bill of Rights) eventually become juridical documents.

129 Copyright © 2012 Pearson Education, Inc.

5. Judicial review and democracy: the countermajoritarian difficulty.

TRENDS FROM PALKO TO DUNCAN AND BEYOND IN THE DUE PROCESS REVOLUTION

1. “Nationalization” (or “federalization”) of state/local law enforcement • In the contest between state/local control and central control, the latter eventually prevailed.

2. Elimination of (old) “double standard.” As nationalization of rights occurred, states are increasingly held to national norms.

• In the contest between diversity and uniformity, the latter prevailed.

• But note the appearance of what has been called the “new double standard.”

3. In the 1950s and 1960s, there is a shift from “crime control values” to “fairness values.”

• Balancing public safety interests against personal liberty interests, the trend was for the latter frequently to prevail.

• Particularly with the Fourth Amendment, there has been a movement since 1990 back toward emphasis on “crime control” over “fairness,” making it more difficult for criminal defendants to prevail on constitutional grounds.

VII. RESOURCES AND SUGGESTED READINGS ABRAHAM, HENRY J. and BARBARA A. PERRY. Freedom and the Court, 8th ed. Lawrence: University Press of Kansas, 2003.

BRENNAN, WILLIAM J., Jr. “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights.” 61 New York University Law Review 535 (1986).

CURTIS, MICHAEL KENT. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press, 1986 FAIRMAN, CHARLES. “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding.” 2 Stanford Law Review 5 (1949).

130 Copyright © 2012 Pearson Education, Inc.

FRANKFURTER, FELIX. “Memorandum on ‘Incorporation’ of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.” 78 Harvard Law Review 746 (1965).

LEVINSON, SANFORD. “The Embarrassing Second Amendment.” 99 Yale Law Journal 637 (1989).

MASON, ALPHEUS T. “The Bill of Rights: An Almost Forgotten Appendage.” In Stephen C. Halpern, ed., The Future of Our Liberties. Westport, Conn.: Greenwood, 1982.

RUTLAND, ROBERT A. The Birth of the Bill of Rights, 1776-1791. Chapel Hill: University of North Carolina Press, 1955 SPITZER, ROBERT J. The Right to Bear Arms: Right and Liberties Under the Law. Santa Barbara, CA: ABC CLIO, 2001.

131 Copyright © 2012 Pearson Education, Inc.

CHAPTER NINE: THE BILL OF RIGHTS Test Bank Multiple Choice Questions 1. Which provision of the Bill of Rights has never been incorporated into the Fourteenth Amendment? a. Grand jury clause (Fifth Amendment) b. Double jeopardy clause (Fifth Amendment) c. Assistance of counsel clause (Sixth Amendment) d. Cruel and unusual punishment clause (Eighth Amendment) 2. What was the first provision in the Bill of Rights to be applied to the states by way of the Fourteenth Amendment? a. Freedom of speech (First Amendment) b. Free exercise of religion (First Amendment) c. Just compensation for property seized for public use (Fifth amendment) d. Searches and seizures (Fourth Amendment) 3. What is the most recent provision of the Bill of Rights to be applied to the states? a. Confrontation clause (Sixth Amendment) b. Right to bear arms (Second Amendment) c. Jury trial in certain civil cases (Seventh Amendment) d. None of the above 4. Who wrote the majority opinion in McDonald v. City of Chicago? a. Justice Kagan b. Justice Alito c. Chief Justice Roberts d. Justice Souter 5. What previous ruling did the Court in McDonald v. City of Chicago expressly decline to revisit and/or to reconsider? a. District of Columbia v. Heller b. Lochner v. New York c. Slaughterhouse Cases d. Munn v. Illinois 6. District of Columbia v. Heller involved _____. a. the commerce clause b. the due process clause c. the Second Amendment d. the Third Amendment

132 Copyright © 2012 Pearson Education, Inc.

Essay Questions 1. What question did District of Columbia v. Heller (2008) answer? What question(s) did it leave unanswered?

2. In Duncan v. Louisiana, what values were in conflict? What values seemed most important for White? For Harlan?

3. What use did Frank Palko try to make of the Fourteenth Amendment that is different from the amendment’s use by the litigants in the Slaughterhouse Cases and Lochner?

4. What does section 1 of the Fourteenth Amendment mean? Is the Fourteenth Amendment “equal” to the Bill of Rights? Is it “less than” the Bill of Rights? Is it “more than” the Bill of Rights? What reasons can you offer to support your answer?

5. Given the changes in the Supreme Court’s work wrought by the “revolution” of 1937, what is the significance of decisions like Duncan for the American political system?

6. Is nationalization of the Bill of Rights an example of amendment-by-judiciary in operation?

Discuss.

7. Juxtaposed to the majority positions in Palko and Adamson, what significant methodological change does Duncan represent in determining those provisions of the Bill of Rights subsumed under the Fourteenth Amendment?

8. How might the Court have used McDonald to revisit the Slaughterhouse Cases?

9. What theory of incorporation does Justice Black advance in Adamson?

10. Is Black’s position in Adamson consistent with his position in Duncan? Why? 11. In the exchange of letters between Thomas Jefferson and James Madison between 1787 and 1789 regarding the desirability of a bill of rights in the proposed Constitution, what was the argument in favor of a bill of rights that Jefferson stressed, that he believed Madison had overlooked? Explain. Hint: it is the same argument Madison employed when he introduced a series of bill-of-rights amendments in the First Congress.

12. In Duncan v. Louisiana (1968), the majority opinion of Justice White, the concurring opinion of Justice Black, and the dissenting opinion of Justice Harlan represent three distinct methodologies for deciding which provisions of the Bill of Rights are to be applied to the states via the Fourteenth Amendment. Explain.

13. Consider Justice Hugo Black’s dissenting opinion in Adamson v. California (1947), his dissenting opinion in Katz v. United States (1967), and his concurring opinion in Duncan v.

Louisiana (1968). What do these opinions reveal about Justice Black’s approach to constitutional 133 Copyright © 2012 Pearson Education, Inc.

interpretation and about his views concerning the proper role for the Supreme Court in the American political system?

14. Is the Fourteenth Amendment equal to or the same as the Bill of Rights? Is it less than the Bill of Rights? Can it even be more than the Bill of Rights? What suggested answers to these questions do you find in the three opinions filed in Duncan v. Louisiana (1968) by Justice White (for the majority), Justice Black (concurring), and Justice Harlan (II) (dissenting)?

15. In the exchange of letters between Thomas Jefferson and James Madison between 1787 and 1789 over the desirability of, or need for, a bill of rights, Jefferson writes, “In the arguments in favor of a declaration of rights, you omit one which has great weight with me….” What is the argument that carried such “great weight” with Jefferson? To what degree is Jefferson’s point consistent with Justice Stone’s Footnote Four in United States v. Carolene Products Co. (1938)?

Explain.

16. How do Palko v. Connecticut and Adamson v. California illustrate both the “old double standard” and the “fair trial rule”?

17. What would have been the practical legal and policy consequences for the United States in the late 1940s had Justice Black persuaded one more justice to join his opinion in Adamson v.

California?

Answer Key 1. — a 2. — c 3. — b 4. — b 5. — c 6. — c

134 Copyright © 2012 Pearson Education, Inc.

CHAPTER TEN: CRIMINAL JUSTICE I. CHAPTER OUTLINE Searches and Seizures Whose Rights?

Defining a Search Probable Cause The Exclusionary Rule Warrantless Searches Search Incident to a Lawful Arrest The Automobile Exception Consent Electronic Surveillance Arrests, Other Detentions, and Frisks Administrative Searches Right to Counsel The Confrontation Clause Self-Incrimination Immunity Interrogations Miranda Revisited Punishment Capital Punishment Federal Habeas Corpus Noncapital Sentencing

II. CHAPTER OVERVIEW AND OBJECTIVES Thanks to Fourteenth Amendment incorporation, as Chapter Nine explained, almost all the strictures in the Bill of Rights now apply with equal force to the states, as well as to the national government. Because most of the provisions of the Bill of Rights involve criminal procedure, this fact has had enormous consequences for law enforcement at all levels. While some 76,650 criminal cases were filed in the 89 U.S. district courts in 2009, more than 4 million criminal cases involving serious offenses were filed in the 2,501 trial courts of general jurisdiction in the 50 states. And in one way or another, every one of these cases intersected the Bill of Rights.

It is important for students to realize that the cases in this chapter illustrate a struggle between two cherished and not necessarily antithetical values. The conflict is between the public’s interest in safety and the public’s interest in the protection of individual liberty. It is misleading to view the clash as a contest between the safety of law-abiding people and the protection of criminals. Constitutional safeguards belong to everyone, law-abiding and lawbreaking alike. The judicial task is one of determining how much protection can be accorded 135 Copyright © 2012 Pearson Education, Inc.

each individual without unduly hampering the effort of government to maintain order, without which there can be no freedom.

There was a reason why the Framers of our national and state constitutions gave special attention to procedural rights. Far from demonstrating fondness for technicalities, this emphasis highlights the belief that without limits to authority, America would be a far different place in which to live. The Framers knew firsthand the dangers that the government as prosecutor could pose to freedom. Even today, authoritarian regimes in other lands routinely use the tools of law enforcement—arrests, searches, detentions, as well as prosecutions—to squelch political opposition. Limits in the Bill of Rights on government’s crime-fighting powers thus help safeguard democracy.

What follows in Chapter Ten is a brief survey of some of the major topics in criminal procedure and a review of the major cases. The field is too vast to include them all. As simple reflection indicates, cases on criminal justice are as myriad as the variety of citizen-police courtroom encounters themselves. This is one way in which casebooks for political science courses in constitutional law differ from casebooks edited primarily for use in law schools.

There, a constitutional law casebook will only rarely contain cases on criminal justice. This subject is ordinarily covered in a separate book entirely. In contrast, political science casebooks present constitutional law as a whole. The tradeoff of course is that some topics in the latter therefore receive briefer treatment as the price paid for representing the entire field.

III. KEY TERMS Fourth Amendment writs of assistance probable cause warrant exclusionary rule Patriot Act Foreign Intelligence Surveillance Act Foreign Intelligence Surveillance Court Foreign Intelligence Court of Review frisk reasonable suspicion administrative searches special need Sixth Amendment

136 Copyright © 2012 Pearson Education, Inc.

Arraignment hearsay confrontation clause Fifth Amendment transactional immunity use immunity Miranda warnings Eighth Amendment habeas corpus

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Minnesota v. Carter (1998) Mapp v. Ohio (1961) United States v. Leon Chimel v. California California v. Acevedo Olmstead v. United States Katz v. United States (1967) United States v. United States District Court (1972) Atwater v. City of Lago Vista (2001) Terry v. Ohio (1968) Board of Education of Pottawatomie County v. Earls (2002) Powell v. Alabama (1932) Gideon v. Wainwright (1963) Miranda v. Arizona (1966) Dickerson v. United States (2000) Gregg v. Georgia Roper v. Simmons (2005)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE 137 Copyright © 2012 Pearson Education, Inc.

United States v. Robinson (1973) Arkansas v. Sanders (1979) McCleskey v. Kemp (1987) Skinner v. Railway Labor Executives’ Association (1989) Atkins v. Virginia (2002)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. Why did Mapp v. Ohio guarantee an increased number of Fourth Amendment cases on the Supreme Court’s docket?

2. Why should the police have to abide by Marquess of Queensbury rules while criminals are acting like thugs?

3. In their opposing opinions in Chimel v. California, justices Stewart and White agree that the police need probable cause to search the house, and they both agree that probable cause was present on the facts in that case. They part company, however, over the need for a search warrant. What added protection, if any, does a search warrant provide in such situations for someone suspected of a crime?

4. What differing approaches to constitutional interpretation do you find in the opinions of justices Kennedy and Scalia in Roper v. Simmons (2005)?

5. Consider the concurring opinions of justices White and Douglas in Katz v. United States. How do they compare in terms of what the Fourth Amendment requires?

6. What seems to be the relevancy of United States v. United States District Court in the controversy over electronic snooping of telephone conversations by the National Security Agency during the presidency of George W. Bush?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS SEARCHES WITH A VALID WARRANT 1)

Probable cause

2)

Neutral magistrate

3)

Particular description of items to be seized and their location

4)

After search, warrant returned to magistrate with list of items taken 138 Copyright © 2012 Pearson Education, Inc.

5)

What can be seized? a) b) c)

Items described in warrant or things related to them Other evidence of criminal activity in plain view Items discovered inadvertently

EFFICACY OF A WARRANT

PATH OF SEARCHES WITH WARRANTS Police: Investigate

 Establish  Obtain probable cause warrant

 Conduct search

 Make arrest  Evidence used upon successful at trial search

PATH OF SEARCHES WITHOUT WARRANTS Police: Investigate

 Establish  Conduct probable cause search

 Make arrest upon successful search

 Judge later rules on lawfulness of search

-----------------------------------------------------------------------------------

AUTOMOBILE SEARCHES Warrant Exception: Carroll v. United States (1925) The problem of the car that happens to contain a container, versus the container that happens to be in a car.

The picture gets fuzzier when automobile searches intersect with searches incident to arrest, as in Belton and Gant.

Arkansas v. Sanders (1979) California v. Robbins (1981) New York v. Belton (1981) 139 Copyright © 2012 Pearson Education, Inc.

Ross v. United States (1982) California v. Acevedo (1991) Arizona v. Gant (2009) ------------------------------------------------------Civil Liberty: A guaranty in law against unwarranted governmental intrusion into one’s life.

Civil Right: A legally protected freedom to participate in society and in the political system on an equal footing with others.

NOTES ON ELECTRONIC SURVEILLANCE AND THE CONSTITUTION 1. Supreme Court holds that the Fourth Amendment is inapplicable to wiretapping (conducted off premises): Olmstead v. United States (1928).

2. In the Communications Act of 1934 (section 605), Congress outlaws the “interception and divulging” of private telecommunications.

3. Supreme Court tailors an exclusionary rule for federal courts for evidence obtained in violation of section 605: Nardonne v. United States (1937).

4. Illegal wiretaps continue. (When Katz came down in 1967, no one had ever been prosecuted for violating section 605.) Other electronic surveillance techniques developed (hidden microphones, etc.). Most such evidence is not admissible in federal courts but is used nonetheless by law enforcement agents as part of an investigation. The admissibility of other techniques turns on question of physical trespass.

5. Katz v. United States (1967) brings all forms of electronic surveillance within the scope of the Fourth Amendment (which by this time also applies, along with the Mapp exclusionary rule, to the states.) In effect, Katz exchanges legitimacy for controls, by instructing Congress how a constitutionally acceptable warrant procedure might be devised especially for electronic surveillance.

6. Congress responds in the Omnibus Crime Control and Safe Streets Act of 1968.

7. United States v. United States District Court (1972) partly resolves the question posed by the sharply differing concurring opinions of justices Douglas and White in Katz.

---------------------------------------------------------------------------

140 Copyright © 2012 Pearson Education, Inc.

SUSPICIONLESS DRUG-TESTING CASES IN THE SUPREME COURT Case Skinner v. Railway Labor Executives’ Assoc. (1989) Treasury Employees Union v.

Von Raab (1989) Vernonia School District v.

Acton (1995) Chandler v. Miller (1997)

Board of Education v. Earls (2002)

Affected Group Train crews

Special Need Public safety

Result Allowed

Some customs workers

Public confidence

Allowed

Interscholastic athletes

Student safety & role model Public confidence

Allowed

Student safety, role model, & deterrence

Allowed

Candidates for some state offices, including judgeships Participants in competitive extracurricular activities

Not allowed

---------------------------------------------------------------------------

VIII. RESOURCES AND SUGGESTED READINGS BAKER, LIVA. Miranda: Crime, Law and Politics. New York: Atheneum, 1983.

BEANEY, WILLIAM M. The Right to Counsel in American Courts. Ann Arbor: University of Michigan Press, 1955.

BODENHAMER, DAVID J. Fair Trial: Rights of the Accused in American History. New York: Oxford University Press, 1992.

BRADLEY, CRAIG M. The Failure of the Criminal Procedure Revolution. Philadelphia: University of Pennsylvania Press, 1993.

BRENNAN, WILLIAM J., JR. “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights.” 61 New York University Law Review 535 (1986).

HELMHOLZ, R. H., CHARLES M. GRAY, JOHN H. LANGBEIN, EBEN MOGLEN, HENRY E.

141 Copyright © 2012 Pearson Education, Inc.

SMITH, and ALBERT W. ALSCHULER. The Privilege Against Self-Incrimination: Its Origins and Development. Chicago: University of Chicago Press, 1997.

LAFAVE, WAYNE R. A Treatise on the Fourth Amendment, 3d ed., 4 vols. St. Paul, Minn.: West, 1995.

LEWIS, ANTHONY. Gideon’s Trumpet. New York: Random House. 1964.

LIEBMAN, JAMES, J. FAGAN, V. WEST, and J. LLOYD. “Capital Attrition: Error Rates in Capital Cases, 1973–1995,” 78 Texas Law Review 1839 (2000).

MELUSKY, JOSEPH A. and KEITH A. PESTO. Cruel and Unusual Punishment. Santa Barbara, Cal.: ABC-CLIO, 2003.

STEPHENS, OTIS H. and RICHARD A. GLENN. Unreasonable Searches and Seizures. Santa Barbara, Cal.: ABC-CLIO, 2006.

STUART, GARY L. Miranda. Tucson: University of Arizona Press, 2004.

TAYLOR, JOHN B. Right to Counsel and Privilege Against Self-Incrimination. Santa Barbara, Cal.: ABC-CLIO, 2004.

VILA, BRYAN, and CYNTHIA MORRIS, eds. Capital Punishment in the United States: A Documentary History. Westport, Conn.: Greenwood Press, 1997.

142 Copyright © 2012 Pearson Education, Inc.

CHAPTER TEN: CRIMINAL JUSTICE Test Bank Multiple Choice Questions 1. The Supreme Court first applied the Fourth Amendment to the states in _____. a. Wolf v. Colorado (1949) b. Weeks v. U.S. (1914) c. Mapp v. Ohio (1961) d. U.S. v. Calandra (1974) 2. _____ stands for the proposition that police, upon making a lawful arrest, may perform a warrantless search only of the area within the suspect’s immediate grasp and control. a. Aguilar v. Texas (1964) b. Chimel v. California (1969) c. Stone v. Powell (1976) d. Illinois v. Gates (1983) 3. In Terry v. Ohio (1968), the Supreme Court allowed a(n) _____ on the basis of _____. a. pat-down search; reasonable suspicion b. arrest; reasonable suspicion c. arrest; drug courier profile d. warrantless search; testimony from an unidentified informant 4. In the case of Mapp v. Ohio (1961), Dollree Mapp had been prosecuted on a charge of _____. a. harboring a fugitive b. resisting arrest c. arson d. None of the above 5. According to U.S. v. Leon (1984), evidence obtained through a warrantless search is not subject to the exclusionary rule as long as police are acting in “good faith.” a. TRUE b. FALSE 6. The Supreme Court has held repeatedly that a warrantless search may be “reasonable” within the meaning of the Fourth Amendment under _____. a. the “good faith exception” b. the doctrine of stare decisis c. the “crime control” model d. exigent circumstances

143 Copyright © 2012 Pearson Education, Inc.

7. The majority opinion in Miranda v. Arizona (1966) was authored by _____. a. Chief Justice Earl Warren b. Justice William Brennan c. Justice Potter Stewart d. Justice Hugo Black 8. In Powell v. Alabama (1932), the unconditional right to counsel was incorporated into the Fourteenth Amendment and applied to the states. a. TRUE b. FALSE 9. The _____ Amendment provides that that accused “shall enjoy the right” to a jury trial in criminal cases. The _____ Amendment guarantees a jury trial in civil cases “where the value in controversy shall exceed twenty dollars.” a. Fifth; Fifth b. Sixth; Sixth c. Fifth, Sixth d. Sixth; Seventh 10. In Furman v. Georgia (1972), the Court held that the death penalty was unconstitutional because _____. a. it violated “evolving standards of decency” b. it was applied selectively c. it served no penal, deterrence, or retribution purposes more effectively than a less severe punishment would d. a sentencing mistake was without corrective devices 11. In Furman v. Georgia (1972), justices _____ and _____ stated their view that the death penalty is inherently “cruel and unusual punishment.” a. White; Rehnquist b. Warren; Stewart c. Blackmun; Burger d. Marshall; Brennan 12. Under the revised death penalty statute upheld by the Supreme Court in Gregg v. Georgia (1976), the jury must find _____ to be present in a capital offense before it can impose a death sentence. a. at least one mitigating factor b. at least one aggravating factor c. premeditation d. criminal intent

144 Copyright © 2012 Pearson Education, Inc.

13. In Roper v. Simmons (2005), the Supreme Court overturned a sentence of death _____. a. because of prosecutorial and judicial misconduct b. because of racially discriminatory jury selection c. because the defendant was younger than 21 d. because the defendant was older than 15 but younger than 18

Essay Questions 1. May Dickerson v. United States be seen as the Supreme Court’s response to a congressional challenge to judicial authority? Discuss.

2. What was the effect of United States v. Leon (1984) on the policy that the Court adopted in Mapp v. Ohio (1961)?

3. What are the principal arguments for and against the Fourth Amendment exclusionary rule?

Explain.

4. (a) What crucial threshold (entry-point) question was common to Olmstead v. United States (1928), Terry v. Ohio (1968), and Kyllo v. United States (2001)? Explain. (b) How did the answer(s) that the Court gave to that question shape the decision in each of those three cases? Explain.

5. Why did Mapp v. Ohio virtually guarantee that an increased number of Fourth Amendment cases would soon appear on the Supreme Court’s docket?

6. Concerning Kyllo v. United States, explain this statement: “This case is all about answering the question, ‘What constitutes a search?’”

7. What was the “Ross anomaly” that Acevedo is supposed to have eliminated? Explain.

8. According both to Justice Scalia’s concurring opinion in Acevedo and Justice Stevens’s dissenting opinion in Acevedo, the Court “cured” the Ross anomaly at the expense of creating another paradox. Explain.

9. The facts in Terry v. Ohio (1968) presented the Supreme Court with a Fourth Amendment dilemma in at least two respects. Explain.

10. The Supreme Court during the chief justiceship of Earl Warren (1953–1969) is remembered for a number of decisions on criminal justice that favored individual rights. Should Terry v. Ohio be considered one of those rights-friendly decisions? Explain.

11. Someone has said that Mapp v. Ohio (1961) nearly single-handedly made the U.S. Supreme Court a general overseer of criminal justice in the United States. Discuss.

145 Copyright © 2012 Pearson Education, Inc.

12. Consider Justice Hugo Black’s dissenting opinion in Adamson v. California (1947), his dissenting opinion in Katz v. United States (1967), and his concurring opinion in Duncan v.

Louisiana (1968). What do these opinions reveal about Justice Black’s approach to constitutional interpretation and about his views concerning the proper role for the Supreme Court in the American political system?

13. In Katz v. United States (1967), justices White and Douglas each wrote a concurring opinion taking different positions on an issue not directly involved in Katz. Explain.

14. Consider Arkansas v. Sanders (1979) and California v. Acevedo (1991). Which decision gives greater latitude to police in law enforcement activities? Explain.

15. In his dissent in United States v. Leon (1984), Justice Brennan wrote that the majority had used “faulty scales” in reaching its conclusion. What did he mean? Explain.

16. In its decision in Miranda v. Arizona (1966) the Court attempted to lay down a clear rule with respect to the admissibility of confessions obtained by police during interrogations. Why was the Court not entirely successful? Explain.

17. In Atwater v. City of Lago Vista (2001), what is the bright-line rule that the majority adopts but that Justice O’Connor finds so objectionable? What is the basis of her objection? Explain.

18. Justice Potter Stewart wrote the opinion of the Court in both Chimel v. California (1969) and Katz v. United States (1967). Is his approach to the Fourth Amendment in the earlier case consistent with his approach to the Fourth Amendment in the later case? Explain. (Be sure that your essay demonstrates an understanding of both cases.)

19. Based on her dissent in Board of Education v. Earls (2002), what is Justice Ginsburg’s disagreement with the majority view laid out in Justice Thomas’s opinion of the Court in that case? Explain.

20. According to Justice Thomas’s opinion for the Court in Board of Education v. Earls (2002), the principles established in Vernonia School District v. Acton (1995) justified the position the Court took in Earls. However, Justice Ginsburg, who was part of the six-justice majority in the Vernonia case, wrote the dissent in Earls and stated that the Vernonia decision provided an inadequate basis for what the Court was doing in Earls. Does Justice Thomas or Justice Ginsburg seem to be standing on more solid ground? Why? 21. What question did Katz v. United States (1967) present to the Court? On what grounds might Solicitor General Erwin Griswold have expected the government to prevail in this case? Explain.

22. As disputes over the meaning of the U. S. Constitution, what do Powell v. Alabama (1932) and Palko v. Connecticut? (1937) seem to have in common? What differences do you find?

Explain.

146 Copyright © 2012 Pearson Education, Inc.

23. According to Justice Thurgood Marshall’s dissent in United States v. Robinson (1973), the decision in Chimel v. California (1969) as well as the reasoning in that case argued strongly that the search that turned up the heroin on Robinson was conducted in violation of the Fourth Amendment. What did Marshall mean? Explain.

24. What position does Justice White advance in his concurring opinion in Katz v. United States?

Is it consistent with his view of the Fourth Amendment that we find in his opinion in Chimel v.

California? Why? Explain.

25. What major change in constitutional law did the Supreme Court make in Mapp v. Ohio?

What three justifications did Justice Clark offer for the result that the Court reached in that case?

Explain.

26. According to Justice Stevens’s dissent in Kyllo v. United States, the Court’s “new rule” was both “too narrow as well as too broad.” What was the “new rule”? What did Stevens mean?

Explain.

27. Discuss the Supreme Court’s justification for its limitation in Roper v. Simons on the imposition of the death penalty for juveniles.

Answer Key 1. — a 2. — b 3. — a 4. — d 5. — b 6. — c 7. — a 8. — b 9. — d 10. — b 11. — d 12. — b 13. — d 147 Copyright © 2012 Pearson Education, Inc.

CHAPTER ELEVEN: FREEDOM OF EXPRESSION I. CHAPTER OUTLINE Tests of Freedom Internal Security Clear-and-Present-Danger Test Bad Tendency Test Cold War Cases Incitement Test Public Forum Protest and Symbolic Speech Fighting Words Symbolic Speech Hate Speech and Hate Crimes Picketing Public Schools Freedom of Association Print and Electronic Media Prior Restraints Libel Pornography Commercial Speech Radio, Television, and the Internet Postscript

II. CHAPTER OVERVIEW AND OBJECTIVES The American political tradition has always been opposed to unlimited government power. In particular, protections of the First Amendment—free speech, free press, and the rights of peaceable assembly and petition—which are covered in this chapter—make possible a continuing debate on issues large and small, without which the electoral process becomes an empty ritual, and self-expression and the search for truth are stifled. (The religion clauses of the First Amendment are treated separately in Chapter Twelve.)

First Amendment freedoms confront the Court with a difficult task, one that is not present in all cases of judicial review. Where enumerated powers of Congress or the president are subject to interpretation, for example, the Court’s function is at an end when the action taken is found to be within the limits of constitutionally granted power. In reaching such a conclusion, the Court is aided by the well-established presumption of constitutionality that accompanies review of most legislative and executive actions.

In cases involving freedom of speech, however, the Court must interpret and apply a grant of power—frequently the “reserved” police power of the states or the ample powers of Congress—while, at the same time, it must interpret and apply a constitutional limitation on 148 Copyright © 2012 Pearson Education, Inc.

government power. Such cases thus involve a clash of important objectives: the need for both order and freedom. Government must have authority to “insure domestic tranquility,” just as it must have military power to resist attacks from abroad. Yet excessive emphasis on order negates the freedom the political system is designed to protect. Thus, the easy path to constitutional decision by way of presumption of constitutionality of legislative or administrative action is not readily available in this field.

Thus, this chapter reviews a series of constitutional issues that arise when government seeks to limit various forms of expression. The task of the courts has become all the more challenging in the age of the Internet. The challenge of the classroom is to enable students to grasp the importance of various court rulings, and the doctrines behind those rulings, for the political system and for the quality of life they enjoy.

If speech in recent decades has typically prevailed over competing interests, does this mean that the First Amendment is in a favored or preferred position? Justice Stone’s Footnote Four in the Carolene Products case, discussed in Chapter Eight, suggests precisely that. In response, Justice Scalia contends that “the First Amendment is not everything.” Regardless, constitutional rights are not rights against government so much as they are rights against the dominant majority represented by government. As James Madison wrote Thomas Jefferson in an exchange reprinted in Chapter Nine, “Wherever the real power in a Government lies, there is the danger of oppression. In our Government, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to.”

It would be difficult to label a political system as “democratic” if individuals with points of view in the minority could not freely campaign to become the majority. The Bill of Rights expresses the judgment of the Founders that the majority is neither always right nor likely to be tolerant. “The very purpose of a Bill of Rights,” Justice Jackson declared in 1943, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” Thus, the irony of the First Amendment: a guarantee of free speech presupposes a population capable of rational thought and considered judgment; it also assumes a population sometimes eager to squelch unpopular ideas.

III. KEY TERMS clear-and-present-danger test bad tendency test incitement test absolute approach overbreadth doctrine chilling effect 149 Copyright © 2012 Pearson Education, Inc.

void for vagueness strict scrutiny criminal syndicalism Smith Act viewpoint-based restrictions public forum fighting words symbolic speech expressive association prior restraint libel commercial speech

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Schenck v. United States (1919) Gitlow v. New York (1925) Whitney v. California (1927) Dennis v. United States (1951) Brandenburg v. Ohio (1969) Clark v. Community for Creative Non-Violence (1984) United States v. O’Brien (1968) Texas v. Johnson (1989) Virginia v. Black (2003) Boy Scouts of America and Monmouth Council v. Dale (2000) Rumsfeld v. Forum for Academic and Institutional Rights (2006) New York Times Co. v. Sullivan (1964) New York Times Co. v. United States (1971) Ashcroft v. Free Speech Coalition (2002)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE 150 Copyright © 2012 Pearson Education, Inc.

Miller v. California (1973) R.A.V. v. City of St. Paul (1992) Wisconsin v. Mitchell (1993) Reno v. American Civil Liberties Union (1997)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. Why should freedom of speech be extended to persons who, were they to acquire political power, would deny that freedom to others?

2. One university has a rule that bans “discriminatory harassment,” which is defined as “conduct (oral, written, graphic, or physical) directed against any person or group...that has the purpose or reasonably foreseeable effect of creating an offensive, demeaning, intimidating, or hostile environment.” Analyze this rule’s impact on free expression using various First Amendment criteria and concepts discussed in this chapter.

3. Could a flag protection law have been written that would have satisfied the majority in Texas v. Johnson? Consider the language of Congress’s Flag Protection Act of 1989, which the Court found unacceptable in United States v. Eichman: “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined...or imprisoned.”

Is it possible to separate protection of the flag from protection of the values it symbolizes?

4. In his dissenting opinion in Johnson, what rationale does Justice Stevens offer for flag protection?

5. Over most of his long years on the Court, Justice Stevens built a reputation as frequently siding with the liberal or progressive justices on the Court. What might have caused him to align himself differently in Johnson? (Note also that Justice Stevens dissented in United States v. Eichman as well.)

6. In Beauharnais v. Illinois (1952), the Supreme Court, voting 5–4, upheld the application to a white supremacist of a group libel law that prohibited publications that portrayed “depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion, [or which] exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy, or which is productive of breach of the peace or riots.” Does Beauharnais have relevance to the debate today about efforts to control hate speech? Has Beauharnais been eroded by later decisions?

7. What relevance do the cases in this chapter have for efforts to restrict the preaching of radical religious ideas that call for the annihilation of certain religious or ethnic groups?

8. Note the language of the Sedition Act of 1798 reprinted shortly in a suggested class handout or screen display. How does it differ from later statutory efforts to suppress certain kinds of speech?

How is it similar?

9. Jefferson’s followers fervently believed the Sedition Act to be unconstitutional. What kept it from being tested in the Supreme Court?

151 Copyright © 2012 Pearson Education, Inc.

10. The Supreme Court heard no free speech cases until Schenck v. United States in 1919. How then was speech protected in the United States?

11. Consider Virginia v. Black alongside R.A.V. v. City of St. Paul (from the website case archive). The high Court of Virginia concluded that R.A.V. made the state’s cross-burning statute constitutionally unacceptable, yet the United States Supreme Court found such cross-burning measures acceptable if properly written. Was the Court being consistent or inconsistent?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS THE SEDITION ACT OF 1798 The Sedition Act (1798) made it a federal crime punishable by a $2,000 fine and two-year imprisonment “to …write, print, utter or publish … any false, scandalous and malicious writing … against the government of the United States, or either House of Congress… or the President… with intent to defame … or to bring them, or either or any of them, into disrepute.”  Fourteen individuals were eventually indicted, and 10 convicted.  The law was cleverly crafted to expire on March 3, 1801.  Truth was allowed as a defense.  The law was never tested in the Supreme Court.

-------------------------------------------------------------------------------------SYMBOLIC SPEECH: The O’Brien Test •The actor intends to convey a message through his/her action, and the likelihood is great that the message will be understood by those who see it.

• The regulation is within the constitutional power of the government.

• The regulation furthers an important or substantial governmental interest.

• The governmental interest is unrelated to the suppression of free expression.

• The incidental restriction on free expression is no greater than is essential to the furtherance of that interest.

CROSS BURNING R.A.V. v. City of St. Paul (1992) 152 Copyright © 2012 Pearson Education, Inc.

Set: threats/intimidations Subset: threats/intimidations delivered via burning cross that target people on the basis of certain protected categories (race, gender, etc.)

Hence: content and viewpoint discrimination

Virginia v. Black (2003) Set: threats/intimidations Subset: threats/intimations delivered via burning cross Hence: content but not viewpoint discrimination

VIII. RESOURCES AND SUGGESTED READINGS CHAFEE, ZECHARIAH, JR. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1942.

CLEARY, EDWARD J. Beyond the Burning Cross: The First Amendment and the Landmark R. A. V. Case. New York: Random House, 1994.

CORWIN, EDWARD S. “Bowing Out ‘Clear and Present Danger.’” 27 Notre Dame Lawyer 325 (1952).

CURTIS, MICHAEL KENT. Free Speech, “The People’s Darling Privilege.” Durham, N.C.: Duke University Press, 2000.

EMERSON, THOMAS I. The System of Freedom of Expression. New York: Random House, 1970.

FISS, OWEN. Liberalism Divided: Freedom of Speech and the Many Uses of State Power.

Boulder, Colo.: Westview Press, 1996.

153 Copyright © 2012 Pearson Education, Inc.

GRABER, MARK A. Transforming Free Speech. Berkeley: University of California Press, 1991.

HENTOFF, NAT. Free Speech for Me—But Not for Thee. New York: HarperCollins, 1992.

KERSCH, KEN I. Freedom of Speech. Santa Barbara, Calif.: ABC-CLIO, 2003.

LEVY, LEONARD W. Emergence of a Free Press. New York: Oxford University Press, 1985.

LEWIS, ANTHONY. Make No Law: The Sullivan Case and the First Amendment. New York.

Random House, 1991.

MENDELSON, WALLACE. “Clear and Present Danger—From Schenck to Dennis.” 52 Columbia Law Review 313 (1952).

RUDENSTINE, DAVID. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley: University of California Press, 1996.

STONE, GEOFFREY R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W.W. Norton, 2004.

154 Copyright © 2012 Pearson Education, Inc.

CHAPTER ELEVEN: FREEDOM OF EXPRESSION Test Bank Multiple Choice Questions 1. Justice _____ wrote in Schenck v. U.S. (1919) that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.” a. Edward T. Sandford b. Louis D. Brandeis c. Oliver Wendell Holmes, Jr. d. Stephen J. Field 2. In determining the degree of protection to be accorded seditious speech under the First Amendment, the modern Supreme Court is most likely to invoke the _____. a. clear-and-present-danger test b. bad-tendency test c. ad-hoc-balancing test d. imminent-lawless-action test 3. In _____, the Supreme Court reversed an obscenity conviction where a man had been prosecuted after police found obscene films in his home. a. Roth v. U.S. (1957) b. Alberts v. California (1957) c. Memoirs of a Woman of Pleasure v. Massachusetts (1966) d. Stanley v. Georgia (1969) 4. In Miller v. California (1973), the Supreme Court held that to be obscene, a particular work had to be totally without redeeming social value. a. TRUE b. FALSE 5. Personally abusive epithets or insults that are intended to and inherently likely to provoke violence are known as _____. a. obscenities b. fighting words c. hate speech d. solicitations 6. In RAV v. St. Paul (1992), the Supreme Court concluded that St. Paul’s ban on cross burning _____. a. violated the free speech clause of the First Amendment b. did not violate the free speech clause of the First Amendment 155 Copyright © 2012 Pearson Education, Inc.

c. was aimed at action rather than speech and thus did not present a First Amendment problem d. was prohibited by the equal protection clause of the Fourteenth Amendment 7. Under New York Times v. Sullivan (1964), a public official is barred from recovering damages for the publication of libelous statements unless he or she can show that the defendant’s statements were made with _____. a. criminal negligence b. actual malice c. reckless abandon d. latent hostility 8. In New York Times v. U.S. (1971), the Supreme Court rebuffed the Nixon administration’s attempt to block publication of ____. a. an editorial critical of the Vietnam War b. an advertisement taken out by critics of the Nixon administration c. a document containing instructions on the creation of an atomic bomb d. the Pentagon Papers 9. Which of the following is the best example of symbolic speech? a. The expletive “f--- the draft” prominently displayed on the jacket of a man as he walks down a courthouse corridor b. A black armband worn by a school student during school hours as a visible expression of protest against the Vietnam War c. Peaceful picketing, boycotts, and sit-ins d. The bullet that killed Abraham Lincoln 10. In Texas v. Johnson (1989), many Supreme Court observers were surprised that justices _____ and _____ joined the majority. a. Scalia; Kennedy b. O’Connor; Kennedy c. Souter; Scalia d. O’Connor; Scalia 11. In Texas v. Johnson (1989), many Supreme Court observers were surprised that (Chief) Justice _____ joined the dissenters. a. Rehnquist b. Stevens c. O’Connor d. White 12. In Whitney v. California, Ms. Whitney was convicted of violating California’s law against _____. a. harboring a fugitive b. criminal syndicalism c. voter fraud d. distributing obscene materials 156 Copyright © 2012 Pearson Education, Inc.

13. Benjamin Gitlow was a member of _____. a. the Communist Party b. the Democratic Party c. the Republican Party d. the Socialist Party 14. The author of the plurality opinion in Dennis v. United States was _____. a. Chief Justice Warren b. Chief Justice Hughes c. Chief Justice Stone d. Chief Justice Vinson 15. The defendants in Dennis v. United States had been convicted of violating the _____. a. Solomon Amendment b. Enforcement Act of 1870 c. Smith Act of 1940 d. None of the above 16. In New York Times v. United States (1971), the Supreme Court _____ a lower-court injunction prohibiting newspapers from publishing _____. a. affirmed; the Pentagon Papers b. struck down; the Pentagon Papers c. struck down; excerpts from the Watergate recordings d. affirmed; excerpts from the Watergate recordings

Essay Questions 1. Dennis v. United States, decided in 1952, stands not far from the midpoint in the span of years that the Supreme Court has seriously considered the free speech clause of the First Amendment.

The Court’s encounters began in 1919 and have continued to the present day. (a) Explain fully the opinion of Chief Justice Vinson, the separate opinion of Justice Frankfurter, and the dissenting opinions of justices Black and Douglas. (b) Of the three positions represented by those four opinions, which one (or ones) seem(s) to have been most soundly rejected by the Court’s decision in Brandenburg v. Ohio (1969)? Explain.

2. Suppose the following situation: the local city council decides to consider legislation prohibiting various kinds of harassment. One part of the proposed ordinance borrows language from the student code of a nearby college.

“Conduct likely to constitute harassment ... includes but is not limited to exhibiting, distributing, posting, or advertising publicly offensive, indecent, or abusive matter concerning any person or group of persons in the [City of Happyvale]; [and] employing racial, sexual, ethnic, sexual orientation, religious, or personal slurs or epithets....”

157 Copyright © 2012 Pearson Education, Inc.

Write an essay assessing the constitutionality of this part of the ordinance from the perspective of each justice’s opinion listed below.

1. Justice Sanford, in Gitlow v. New York 2. Justice Brandeis, in Whitney v. California 3. Justice Frankfurter, in Dennis v. United States 4. Justice Brennan, in Texas v. Johnson 3. In what respects do Gitlow v. New York and Brandenburg v. Ohio represent polar opposite approaches to interpretation of the First Amendment?

4. During the past 34 years in several cases involving symbolic speech and protest, the United States Supreme Court has declared (a) that one does not have a right under the First Amendment to burn one’s draft card; (b) that one does have a right under the First Amendment publicly to burn (or otherwise deface) an American flag; and (c) that one sometimes (but sometimes not) has a right under the First Amendment to engage in KKK-style cross burning. In these cases, has the Court been confused in terms of applying the First Amendment, or is there a theoretical (doctrinal) consistency lurking within these contrary outcomes? Explain. (Be sure that your answer refers to, and explains, the relevant cases.)

5. Consider Chief Justice Vinson’s plurality opinion in Dennis v. United States alongside Justice Brandeis’s concurring opinion in Whitney v. California. Which is more protective of freedom of speech? Why? Explain.

6. (a) What constitutional issue confronted the Court in Dennis v. United States (1951)? (b) How was the case decided? Explain. (c) What does Justice Frankfurter’s concurring opinion in the case reveal about his view of the proper role of the Supreme Court in the resolution of conflicts between governmental power and individual rights? Explain.

7. Consider Good News Club v. Milford Central School (2001) alongside Clark v. Community for Creative Non-Violence (1984). What common First Amendment problem concerning free speech do these cases present? Why is it that the First Amendment claim prevailed in one case but not in the other? Explain. Might Milford Central School arguably have based its denial of permission on the establishment clause? Explain.

8. Why are prior restraints deemed more harmful to free expression than “subsequent punishment”?

9. Justice Robert Jackson said a long time ago that the Constitution was not a suicide pact, meaning that he thought protection of no single provision of the Constitution to be more important than survival of the political system itself. (President Lincoln would have agreed.) In the Pentagon Papers case, did the Court reject the Jackson/Lincoln position?

158 Copyright © 2012 Pearson Education, Inc.

10. In the Pentagon Papers case, what would the government have had to show to win five votes for its position?

11. In the Pentagon Papers case, what was Justice Harlan’s answer to the problem the case confronted?

12. Justice Black (as his dissent in Dennis and his concurrence in the Pentagon Papers case suggest) developed a reputation as an “absolutist” on the First Amendment. How, then, do you account for his vote with the majority in United States v. O’Brien?

13. In what way did New Jersey’s public accommodations statute infringe the expressiveassociation right of the BSA in Dale? Does FAIR seem to be at odds with Dale? Why? 14. Why did the protestors in CCNV lose their public forum claim, while the group in Good News Club won theirs? Was the Court just being inconsistent? Explain.

15. What does the Court usually mean by the right of “expressive association”? What role did this right play in the outcomes of Boy Scouts of America v. Dale and Rumsfeld v. Forum for Academic and Institutional Rights? Explain. Make sure that your essay demonstrates an understanding of both cases.

Answer Key 1. — c 2. — d 3. — d 4. — b 5. — b 6. — a 7. — b 8. — d 9. — c 10. — a 11. — b

159 Copyright © 2012 Pearson Education, Inc.

12. — b 13. — d 14. — d 15. — c 16. — b

160 Copyright © 2012 Pearson Education, Inc.

CHAPTER TWELVE: RELIGIOUS LIBERTY I. CHAPTER OUTLINE Competing Visions Accommodation Separation The Establishment Clause The Modern Era Testing Establishment Lemon Test Endorsement Test Agostini Test Coercion Test Child-Benefit Theory Religion in the Public Schools Religion in Other Official Settings State Aid to Religious Schools The Free Exercise Clause The Flag-Salute Cases The Checkered Career of Religiously Based Exemptions Values in Tension

II. CHAPTER OVERVIEW AND OBJECTIVES The establishment and free exercise clauses of the First Amendment embody the American solution to one of the dilemmas of the modern world—the proper relation of state and religion, and of individuals to their God and their government. These clauses are central to the protection of religious beliefs and to the maintenance of civil peace in a religiously diverse culture.

By the time the Bill of Rights became part of the Constitution in 1791, two competing visions had developed that shaped laws affecting religious liberty: accommodation and separation. Even today, debates about the meaning of the religion clauses in the Constitution are often defined in terms of which of these visions is to prevail.

Accommodation is the older of the two visions and stresses freedom of religion.

Alongside protection for religious practice, it seeks government acknowledgment of and sometimes support for religion (Protestant Christianity, in particular, in the eighteenth and nineteenth centuries). Accommodationists believe that government best serves its own purposes when it encourages religion and recognizes religion’s contributions to society while tolerating different faiths. Government is not to meddle in the affairs of particular denominations, but laws should respect, and reflect, dominant religious values. This seems to have been the prevailing view in most of the American states in the late 1700s and for a long time afterward. Until 1961, 161 Copyright © 2012 Pearson Education, Inc.

for example, Maryland required officeholders to declare belief in the existence of God. As public education took hold in the nineteenth century, religious instruction was part of the curriculum in many states. Brief religious exercises in public schools were widespread as late as the 1960s and remain a subject of contention. People over 60 remember “blue laws” that kept many businesses closed on Sunday, the holy day of rest for most Christians.

A second, more secular, vision that took shape in the United States was closely identified two centuries ago with leaders such as Thomas Jefferson and James Madison. It stresses separation—freedom from religion. It seeks greater distance between religion and government in a nation that is not only one of the most religious but also one of the most religiously diverse countries on earth. For separationists, both political and religious institutions are more likely to prosper if each involves itself as little as possible in the affairs of the other.

Symbolic of the separationist vision are passages in the national Constitution. In the original text of the Constitution, there is a single but nonetheless significant reference to religion.

Article VI declares, “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” At the outset, by barring religious tests—a religious belief requirement—the Constitution disallowed a policy for the nation that was followed by most of the American states and virtually every other country at that time. In its leadership, the federal government could not be sectarian. In the Bill of Rights, the twin provisions of nonestablishment and free exercise have complementary objectives—preserving liberty and order. The free exercise clause preserves a sphere of religious practice free of interference by the government.

Most Americans of two centuries ago probably did not crave toleration for beliefs other than their own. Given the presence of so many faiths, however, they had no choice. The violent alternative—as demonstrated in some places in the world today—was unacceptable.

Even though a few states still maintained some kind of officially supported or designated church in 1791, the establishment clause declared that the nation could not have one.

Nonestablishment was thus part of the price of union. The First Amendment sets the government off limits as a prize in a nation of competing faiths. The establishment clause thus protects free exercise by disabling all groups so that none can employ public resources to advance itself and to threaten the others.

This chapter explores the constitutional and policy problems that arise from the religion clauses of the Constitution, with emphasis on the establishment and free exercise clauses. The chapter will also make clear the tensions that can arise from the religion clauses. Even though the religion clauses work together to guard religious freedom, they focus on different threats and so at times may be in tension. Rigorous insistence on separationist values may infringe free exercise. Rigorous application of free exercise values may create an establishment of religion.

In the coming years, the issues and controversies highlighted in this chapter will continue to probe the fuzzy boundaries of the establishment and free exercise clauses. The Framers bequeathed certain values by way of a written Constitution and left it to later generations to apply those values to situations the Framers could not foresee. The establishment clause calls for separation, while the free exercise clause leaves Americans free to work for objectives dictated

162 Copyright © 2012 Pearson Education, Inc.

by their faiths. Together, they guarantee that the division mandated by the one will forever be tested because of the freedom ensured by the other.

III. KEY TERMS establishment clause free exercise clause accommodation separation religious test Lemon test endorsement test Agostini test coercion test child-benefit theory released time shared time faith-based exemption Religious Freedom Restoration Act Religious Land Use and Institutionalized Persons Act

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Santa Fe Independent School District v. Doe (2000) McCreary County v. A.C.L.U. of Kentucky (2005) Lemon v. Kurtzman (1971) Agostini v. Felton (1997) Zelman v. Simmons-Harris (2002) 163 Copyright © 2012 Pearson Education, Inc.

Minersville School District v. Gobitis (1940) Justice Frankfurter to Justice Stone, May 27, 1940: A Qualified Plea for Judicial SelfRestraint Sherbert v. Verner (1963) Employment Division v. Smith (1990) City of Boerne v. Flores (1997)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE School District of Abington Township v. Schempp (1963)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. The First Amendment’s free speech clause protects expression of opinions and beliefs, including religious ones. Should the free exercise clause provide special protection for religious practice?

2. How does the Religious Land Use and Institutionalized Persons Act illustrate the tensions between the free exercise and establishment clauses?

3. After Santa Fe Independent School District v. Doe, and McCreary County v. A.C.L.U., what legitimate role remains for religious expression in public life? Consider that question in light of Newdow v. U.S. Congress (2002), where the U.S. Court of Appeals for the Ninth Circuit held unconstitutional both a 1954 statute that added “under God” to the Pledge of Allegiance to the Flag and a California school district’s policy that included a voluntary recitation of the pledge as part of the school day. In the appeals court’s view, the 1954 act was invalid under the endorsement test and first prong of the Lemon test; the policy was invalid under the coercion test and the second prong of the Lemon test. In Elk Grove School District v. Newdow (2004), the Supreme Court dodged the substantive question and reversed because Newdow lacked standing.

If a case like Newdow’s reached the Court today with proper standing, what would be the probable decision?

4. Agostini v. Felton reflects the current Court’s toleration for policies that evenhandedly provide publicly funded benefits for students in religious schools, especially where financial assistance flows to the religious school as a result of a decision by a private individual such as a parent or student. In what respect did Agostini portend the outcome in Zelman v. Simmons-Harris? In what respect did the voucher case break new ground?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS

164 Copyright © 2012 Pearson Education, Inc.

EXCERPT FROM JUSTICE BLACK’S OPINION OF THE COURT IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947) The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which 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, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”

BETWEEN EVERSON AND LEMON  Everson encourages belief that some amount of aid to religious schools is acceptable.  Nineteen sixties and 1970s bring increased financial pressure on private schools. They must spend more for “good education.”  Especially in states with large Roman Catholic populations, private school enrollment routinely amounted to 20–25 percent of total school enrollments within the state.  A win-win situation for state legislators  Simultaneous expansion of non-Catholic religious schools, partly in response to Supreme Court’s decisions in Engel v. Vitale and Abington Twp. v. Schempp

FROM LEMON TO AGOSTINI The Lemon Test (1971) 1. Secular purpose (and) 2. Neutral effect (and) 3. No excessive entanglement Aguilar’s Application of the Lemon Test (1985) 1. On the neutral effect component:

165 Copyright © 2012 Pearson Education, Inc.

a. Religious indoctrination was assumed to occur when public employees were on sectarian school premises. b. The presence of such employees created a “symbolic union” of church and state. c. Any aid that supports the educational mission of sectarian schools impermissibly subsidizes religious indoctrination.

2. Any close monitoring would result in an impermissible excessive entanglement.

Agostini’s Modification of the Lemon Test (1997) 1.

Secular purpose (and)

2.

Neutral effect a. Indoctrination?

(Indoctrination no longer assumed when public employees are present on school premises) (or) b. Define beneficiaries by religion? (or) c. Create excessive entanglement (neither monitoring nor cooperation between public officials and sectarian school officials any longer assumed to result in excessive entanglement).

--------------------------------------------------------------------

THE CHECKERED CAREER OF THE FREE EXERCISE CLAUSE

1879 – Reynolds v. United States. Nondiscrimination principle.

1963 – Sherbert v. Verner. Preferred-position principle.

1990 – Employment Division v. Smith. Nondiscrimination principle reinstated.

1993 – Religious Freedom Restoration Act (RFRA). Preferred-position principle legislated by way of section 5 of the Fourteenth Amendment.

1997 – City of Boerne v. Flores. Court insists that interpretation of constitutional rights is a judicial, not a legislative, function.

Conclusion: The Supreme Court may have the final word on the decision in cases, but the Court’s decisions do not end the debate on what the Constitution means.

166 Copyright © 2012 Pearson Education, Inc.

VIII. RESOURCES AND SUGGESTED READINGS CARTER, STEPHEN L. The Culture of Disbelief. New York: Basic Books, 1993.

CURRY, THOMAS J. The First Freedoms: Church and State in America to the Passage of the First Amendment. New York: Oxford University Press, 1986.

FELDMAN, STEPHEN M. Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State. New York: New York University Press, 1997.

GREENAWALT, KENT. Religion and the Constitution: Volume I: Free Exercise and Fairness.

Princeton, N.J.: Princeton University Press, 2006.

HAMBURGER, PHILIP. Separation of Church and State. Cambridge, Mass.: Harvard University Press, 2002.

HOWE, MARK DEWOLFE. The Garden and the Wilderness: Religion and Government in American Constitutional Theory. Chicago: University of Chicago Press, 1965.

LOCKE, JOHN. A Letter Concerning Toleration. Indianapolis, Ind.: Bobbs-Merrill, 1979; originally published in 1689.

MADISON, JAMES. “Memorial and Remonstrance Against Religious Assessments,” 1785; reprinted as an appendix to Everson v. Board of Education, 330 U.S. 1, 63 (1947).

MANWARING, DAVID R. Render Unto Caesar: The Flag-Salute Controversy. Chicago: University of Chicago Press, 1962.

MCCONNELL, MICHAEL W. “The Origins and Historical Understanding of Free Exercise of Religion.” 103 Harvard Law Review 1409 (1990).

167 Copyright © 2012 Pearson Education, Inc.

MUÑOZ, VINCENT PHILLIP. “James Madison’s Principle of Religious Liberty.” 97 American Political Science Review 17 (2003).

PETERS, SHAWN FRANCIS. Judging Jehovah’s Witnesses. Lawrence: University Press of Kansas, 2000.

SMITH, STEVEN D. Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom. New York: Oxford University Press, 1995.

SOLOMON, STEVEN D. Ellery’s Protest: How one Young Man Defied Tradition and Sparked the Battle over School Prayer. Ann Arbor: University of Michigan Press, 2007.

STEPHENSON, D. GRIER, JR. “Religion and the Constitution: An Uncertain Consensus.” 86 South Atlantic Quarterly 95 (1987).

UROFSKY, MELVIN I. Religious Freedom. Santa Barbara, Cal.: ABC-CLIO, 2002.

168 Copyright © 2012 Pearson Education, Inc.

CHAPTER TWELVE: RELIGIOUS LIBERTY Test Bank Multiple Choice Questions 1. In West Virginia Board of Education v. Barnette (1943), the Supreme Court _____. a. struck down a state law that compelled public school students to salute the American flag b. struck down a state law that compelled public school students to recite the Lord’s Prayer c. exempted children of Amish families from compulsory school attendance regulations d. upheld a state law that compelled public school students to recite the Pledge of Allegiance because it “imbued citizenship” 2. _____ was the first case in which the Supreme Court applied the establishment clause to the states via the Fourteenth Amendment. a. Cantwell v. Connecticut (1940) b. Everson v. Board of Education (1947) c. Abington v. Schempp (1963) d. Sherbert v. Verner (1963) 3. Which justice is most clearly identified with the view that government may accommodate religious practices? a. Hugo Black b. Robert Jackson c. William Brennan d. Willam Rehnquist 4. The Supreme Court struck down public school–sponsored Bible readings and prayers in _____. a. Abington v. Schempp (1963) b. Lemon v. Kurtzman (1971) c. Everson v. Board of Education (1947) d. Everson v. Board of Education (1947) 5. Which of the following is not a prong of the Lemon test? a. The challenged law or practice must have a secular purpose. b. The challenged law or practice may not have the primary effect of advancing or inhibiting religion. c. The challenged law or practice must guarantee the absolute separation of government from religion. d. The challenged law or practice may not lead to an excessive entanglement between church and state.

169 Copyright © 2012 Pearson Education, Inc.

6. In Wallace v. Jaffree (1985), the Supreme Court _____ an Alabama law that required students in public schools to _____. a. reviewed; recite an official prayer composed by the state board of education b. upheld; study “creation science” as well as the theory of evolution c. struck down; observe a moment of silence at the start of each school day d. struck down; remain silent during graduation prayers 7. In Employment Division v. Smith (1990), the Supreme Court _____ a claim by _____ that their ritualistic use of _____ constituted free exercise of religion. a. accepted; Satanists; animal sacrifice b. rejected; Native Americans; peyote c. accepted; Native Americans; peyote d. rejected; Satanists; animal sacrifice 8. The test from Lemon v. Kurtzman was strengthened in Agostini v. Felton. a. TRUE b. FALSE 9. The holding in Santa Fe v. Doe is consistent with the holding in Abington v. Schempp. a. TRUE b. FALSE 10. Zelman v. Simmons-Harris concerned _____. a. school vouchers b. Bible reading in public schools c. prayer at high school football games d. a nativity scene on public property 11. McCreary County v. ACLU involved _____. a. prayer in public schools b. a Christmas tree in a county courthouse c. a display containing the Ten Commandments d. None of the above 12. Section 5 of the Fourteenth Amendment grants Congress the authority to legislate in the field of _____. a. eminent domain b. presidential power c. civil rights d. international relations

170 Copyright © 2012 Pearson Education, Inc.

Essay Questions 1. Does Zelman logically follow from Agostini? Explain.

2. What element of Schempp do you find in Lemon? Explain.

3. What noteworthy change in the law of the First Amendment was brought about by Sherbert v.

Verner?

4. In Employment Division v. Smith, how could Justice O’Connor employ the reasoning from Sherbert to arrive at the result Justice Scalia reached in Smith?

5. What role for the Supreme Court in the American political system does Justice Frankfurter articulate in his majority opinion and his dissenting opinion in the two Flag Salute Cases (Minersville School District v. Gobitis and West Virginia Board of Education v. Barnette)?

6. In Minersville School District v. Gobitis (1940), both Justice Stone and Justice Frankfurter professed adherence to the spirit of Footnote Four. Can both be right? Discuss.

7. In what ways do Sherbert v. Verner (1963) and Employment Division v. Smith (1990) present contrasting interpretations of the free exercise clause of the First Amendment?

8. In light of Smith, what intriguing constitutional problem is posed by the Religious Freedom Restoration Act of 1993?

9. The past four decades have witnessed substantial changes in the constitutional definition of religious liberty, in the context of both the establishment and free exercise clauses. Discuss this phenomenon by examining either Lemon v. Kurtzman (1971) and Agostini v. Felton (1997)— both of which deal with government assistance to church-supported schools—or by examining Sherbert v. Verner (1963), Employment Division v. Smith (1990), and City of Boerne v. Flores (1997)—all three of which concern the limits of the free exercise clause.

10. Dissenting in Lemon v. Kurtzman, Justice White wrote, “The Court … creates an insoluble paradox for the State and the parochial schools.” What was the paradox to which White referred?

To what extent does Agostini v. Felton erase the paradox? Explain.

11. Consider Justice Stewart’s concurring opinion in Sherbert v. Verner. There, he writes that the Court’s interpretation of the establishment clause was on a collision course with its interpretation of the free exercise clause, as the latter was unfolded in Sherbert. What did Stewart mean? Do you agree? (Among other things, make sure that your essay demonstrates your understanding of the Sherbert case.)

12. In Zelman v. Simmons-Harris, had the Court based its decision on Lemon v. Kurtzman, how would Zelman probably been decided? Why? Explain.

171 Copyright © 2012 Pearson Education, Inc.

13. Is the Supreme Court’s decision in McCreary County v. ACLU (2005) consistent with its ruling in Santa Fe Independent School District v. Doe (2000)? Explain.

14. (a)What constitutional issue did the Court encounter in Santa Fe Independent School District v. Doe (2000)? (b) How was the case decided? Explain. (c) May the case be seen in a way to illustrate tension between the free exercise and establishment clauses of the First Amendment? Explain.

15. What question did the Supreme Court decide in Sherbert v. Verner (1963)? What was the Court’s decision? Does Footnote Four from United States v. Carolene Products Co. (1938) seem relevant to this case? Explain.

16. What redirection in the constitutional law of religious liberty occurred in Employment Division v. Smith? Explain. Had Justice Blackmun (who authored the dissent in Smith) been able to write for the majority instead, would Alfred Smith and Galen Black probably have emerged victorious in the litigation? Why?

Answer Key 1. — a 2. — b 3. — d 4. — a 5. — c 6. — c 7. — b 8. — b 9. — a 10. — a 11. — c 12. — c

172 Copyright © 2012 Pearson Education, Inc.

CHAPTER THIRTEEN: PRIVACY I. CHAPTER OUTLINE Dimensions of Privacy Private Law and Public Law Beginnings Invigorating a Right of Privacy Abortion Nationalizing a Right to Abortion Testing the Limits of Roe Impact of a Changing Court The Remnants of Roe A Developing Concept The Right to Die Sexual Orientation

II. CHAPTER OVERVIEW AND OBJECTIVES Privacy denotes different things. For some it is a broad right “to be let alone.” So put, privacy is almost synonymous with freedom. Accordingly, individuals should be allowed to make decisions about their lives without undue interference from others. Carried to an extreme, however, privacy would make organized society impossible. Every day, laws impinge on the liberty of individuals in numerous ways. Being in society means that people are by no means “let alone” to go their own direction entirely in their own way.

More narrowly conceived, privacy may mean physical separation from others. People enter their homes, close the door, and pull the shades for the express purpose of keeping themselves, their activities, and their belongings hidden from public view. Such ordinary actions make it plain that people intend to shield the interior from the prying eyes of neighbors, as well as those of government.

Protecting one’s reputation from defamatory comment is another dimension of privacy.

As Chapter Eleven explained, courts must reconcile the privacy interest, recognized by the law of libel, with a competing interest—a free press—recognized by the First Amendment. A third and related dimension is control over information about oneself. Medical records, academic transcripts, bank and credit card statements, and tax returns all contain information that the persons about whom the information is compiled may not intend to become public. Informational privacy fosters a dual concern: accuracy and access. Are the data correct, and who is allowed to see and use them? These are questions made more urgent in the age of computers and the Internet.

Privacy may also denote security from intrusion on the intimacies of life, a dimension that is the specific focus of this chapter. Certain decisions regarding companionship, marriage, and child rearing may not be entirely free of government restrictions, but they should preserve a 173 Copyright © 2012 Pearson Education, Inc.

core of freedom from outside restraint. This suggests a zone of autonomy, which the government may not penetrate without justification. It is this aspect of privacy that is also implicated by abortion. And the recent controversy over limiting abortions for late-term pregnancies is treated in that section of the chapter entitled “A Developing Concept.”

Aside from abortion, questions of sexual practice and orientation, like other privacy issues, will continue to arise. Heightened sensitivity throughout the United States to issues of individual privacy virtually guarantees a continued involvement by judges in marking the dimensions of the constitutional right “to be let alone.”

III. KEY TERMS privacy informational privacy private law public law penumbra Hyde Amendment undue burden Partial Birth Abortion Ban Act living wills Patient Self-Determination Act Defense of Marriage Act

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Griswold v. Connecticut (1965) Roe v. Wade (1973) Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) Gonzales v. Carhart (2007) Washington v. Glucksberg (1997) Lawrence v. Texas (2003)

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE

174 Copyright © 2012 Pearson Education, Inc.

Bowers v. Hardwick (1986) Stenberg v. Carhart (2000)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. In his opinion in Griswold v. Connecticut, why did Justice Douglas rely on “penumbras” from the Bill of Rights rather than the Fourteenth Amendment’s due process clause?

2. Chapter Two posed the question, what is “the Constitution” that justices interpret? What answers to that question are suggested by the several opinions filed in Griswold v. Connecticut?

3. In Gonzales v. Carhart, Justice Kennedy insists that the Court remains faithful to Casey, just as Justice Ginsburg insists that the majority refuses to take Casey “seriously.” Who is correct?

Recall that Kennedy coauthored the joint opinion in Casey.

4. Dissenting in Lawrence v. Texas, Justice Scalia declared, “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Do you agree?

5. As this manual was being prepared in late February 2011, litigation was already underway involving the Defense of Marriage Act (DOMA). How is it being handled by the courts?

6. As this manual was being prepared in late February 2011, Perry v. Schwarzenegger was making its way through the courts, both in the Ninth Circuit and the California Supreme Court.

Developments in this litigation should be brought into class or assigned as a project in connection with study of the issues presented in Chapter Thirteen.

7. Reexamine Justice Brandeis’s introduction of the right to be “let alone” in his dissent in Olmstead v. United States, from Chapter Ten. How does its use there and its use in some issues presented in this chapter illustrate the different dimensions of privacy?

8. On February 23, 2011, President Obama, in a major legal policy shift, directed the Justice Department to stop defending the Defense of Marriage Act (DOMA). Attorney General Eric sent a letter to Congress to inform members that the Justice Department would now take the position in litigation that the statute should be struck down as a violation of gay couples’ rights to equal protection under the law. “The President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law” a crucial provision of the Defense of Marriage Act is unconstitutional,” stated the attorney general. What are the likely consequences of this announcement on same-sex marriage?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS

175 Copyright © 2012 Pearson Education, Inc.

SHIFTING SUPREME COURT ALIGNMENTS ON ABORTION AS A CONSTITUTIONALLY PROTECTED RIGHT Roe v. Wade (1973) (7–2) ABORTION AS A “FUNDAMENTAL RIGHT”

ABORTION SUBJECT TO MOST REGULATIONS

Blackmun Burger Douglas Brennan Marshall Stewart Powell

White Rehnquist

Webster v. Reproductive Health Services (1989) (5–4) NO “UNDUE BURDEN” Blackmun Brennan Marshall Stevens O’Connor

White Rehnquist Scalia Kennedy

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (5–4) Blackmun Stevens O’Connor Kennedy Souter

White Rehnquist Scalia Thomas

Stenberg v. Carhart (2000) (5–4) OPPOSED BAN ON PARTIAL-BIRTH ABORTIONS

SUPPORTED BAN ON PARTIAL-BIRTH ABORTIONS

Stevens O’Connor Souter Ginsburg Breyer

Rehnquist Scalia Kennedy Thomas

176 Copyright © 2012 Pearson Education, Inc.

EXCERPTS FROM PARTIAL BIRTH ABORTION ACT OF 2003 Sec. 1531. Partial-birth abortions prohibited (a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. (b) As used in this section— (1) the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion— (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and (2) the term ‘physician’ means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section.

GONZALES V. CARHART (2007) Partial Birth Abortion Act of 2003 banned intact D&E abortions.

A. Lower courts invalidated the statute on its face because: (1) the proscriptions in the PBA were vague; (2) the vagueness and resulting overbreadth imposed an undue burden on legal previability nonintact abortions; (3) the PBA lacked a health exception.

177 Copyright © 2012 Pearson Education, Inc.

B. Supreme Court (1) Rejects the vagueness argument a) Law doesn’t affect nonintact D&E abortions b) Law doesn’t apply to removal of nonliving fetus c) Law’s anatomical landmarks are clear d) Law applies only when doctor intends an intact abortion, so there is no liability for one that is accidental (2) Overbreadth not a problem so no obstacle to late-term but previability abortions (3) Health exception absence okay because no unanimity in medical opinion exists about the necessity of intact abortions. The medical uncertainty leaves room for Congress to make choices. Also, if intact removal is necessary, fetus can be killed by injection.

(4) Leaves open “as applied” challenges—that in some conditions or instances intact D&E must be used to protect the woman’s health.

(5) Effectively overturns Stenberg v. Carhart (2000).

(6) First time the Court approves a law banning how an abortion can be performed, as opposed to whether it can be performed.

C. Prospects (1) The only mystery going into this was Kennedy’s vote.

(2) Neither Roe nor Casey appears to have joined the endangered-species list.

VIII. RESOURCES AND SUGGESTED READINGS BEANEY, WILLIAM M. “The Constitutional Right to Privacy in the Supreme Court.” Supreme Court Review 212 (1962).

CRAIG, BARBARA and DAVID O’BRIEN. Abortion and American Politics. Chatham, N.J.: Chatham House, 1993.

DEDLER, ROBERT A. “Are Absolute Bans on Assisted Suicide Constitutional? I Say No.” 72 University of Detroit—Mercy Law Review 725 (1995).

178 Copyright © 2012 Pearson Education, Inc.

GARROW, DAVID J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade.

New York: Macmillan, 1994.

GLENN, RICHARD A. The Right to Privacy. Santa Barbara, Cal.: ABC-CLIO, 2003.

GRABER, MARK A. Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics. Princeton, N.J.: Princeton University Press, 1996.

KAMISAR, YALE. “Against Assisted Suicide—Even in a Very Limited Form.” 72 University of Detroit-Mercy Law Review 735 (1995).

MEZEY, SUSAN GLUCK. Queers in Court: Gay Rights Law and Public Policy. Lanham, Md.: Rowman & Littlefield, 2007.

O’CONNOR, KAREN. No Neutral Ground? Abortion Politics in an Age of Absolutes. Boulder, Colo.: Westview Press, 1996.

PRESIDENT’S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH. Deciding to Forego Life-Sustaining Treatment. Washington,

D.C.: Government Printing Office, 1983.

RICHARDS, DAVID A.J., The Sodomy Cases. Lawrence: University Press of Kansas, 2009.

UROFSKY, MELVIN I. Lethal Judgments: Assisted Suicide and American Law. Lawrence: University Press of Kansas, 2000.

WARREN, SAMUEL and LOUIS D. BRANDEIS. “The Right to Privacy.” 4 Harvard Law Review 220 (1890).

179 Copyright © 2012 Pearson Education, Inc.

CHAPTER THIRTEEN: PRIVACY Test Bank Multiple Choice Questions 1. In Griswold v. Connecticut (1965), Chief Justice/Justice _____ wrote, “The Constitution makers knew the need for change and provided for it. Amendments . . . can be submitted to the people . . . for ratification. That method of change was good enough for our Fathers, and being somewhat old-fashioned I must add that it is good enough for me.” a. William O. Douglas b. Earl Warren c. Felix Frankfurter d. Hugo Black 2. In _____, the Supreme Court specifically held that the right of privacy “is broad enough to encompass a woman’s decision whether . . . to terminate her pregnancy.” a. Griswold v. Connecticut (1965) b. Maher v. Roe (1977) c. Planned Parenthood v. Casey (1992) d. Roe v. Wade (1973) 3. Chief Justice/Justice _____ articulated the “trimester approach” for legal abortions. a. Warren Burger b. Earl Warren c. Harry Blackmun d. William Brennan 4. In Planned Parenthood v. Casey (1992), the Supreme Court struck down a state requirement that a married woman seeking an abortion must _____. a. wait 24 hours before undergoing the procedure b. notify her husband of her intentions c. undergo a psychiatric evaluation d. give her “informed consent” 5. In Bowers v. Hardwick (1986), the Supreme Court _____. a. struck down a state law that making it a crime to engage in homosexual sodomy b. upheld a state law as applied to homosexual sodomy c. upheld a state law as applied to heterosexual sodomy d. struck down a state law prohibiting single-sex marriages 6. In Cruzan v. Missouri Health Department (1989), the Supreme Court held that a state must demand the clear and convincing evidence standard as a means of guarding against potential abuses of the “substituted judgment” doctrine. a. TRUE 180 Copyright © 2012 Pearson Education, Inc.

b. FALSE 7. Lawrence v. Texas involved _____. a. a woman who wanted an abortion b. a woman arrested for consensual sex with another woman c. a man and a woman arrested for indecent exposure d. a man arrested for having consensual sex with another man.

8. Washington v. Glucksberg involved _____. a. consensual sodomy b. assisted suicide c. an abortion law d. symbolic speech 9. Gonzales v. Carhart involved _____. a. flag protection b. assisted suicide c. late-term abortions d. None of the above 10. Chief Justice/Justice______ wrote the Court’s opinion in Gonzales v. Carhart. a. Roberts b. Alito c. Rehnquist d. Kennedy 11. Gonzales v. Carhart involved a statute similar to one the Court had struck down in 2000 in _____. a. Roe v. Wade b. Washington v. Glucksberg c. Stenberg v. Carhart d. Lawrence v. Texas 12. What term from astronomy did Justice Douglas place at the center of his opinion in Griswold v. Connecticut? a. Eclipse b. Planetary c. Penumbra d. Orbit

Essay Questions 1. What issue did the Supreme Court confront in Washington v. Glucksberg (1997)? What did the Court decide? Explain.

181 Copyright © 2012 Pearson Education, Inc.

2. Why would the attorneys who participated in Washington v. Glucksberg have placed heavy reliance in their briefs on Planned Parenthood v. Casey (1992)? Explain.

3. In light of the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), what is particularly remarkable about the majority’s holding in Gonzales v. Carhart (2007)? Explain.

4. In his opinion for the Court in Gonzales v. Carhart (2007), Justice Kennedy insists that the Court remain faithful to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), even as Justice Ginsburg in her Carhart dissent insists that the Carhart majority refuses to take Casey “seriously.” Who is correct? Why? Recall that Kennedy coauthored the joint opinion in Casey.

5. You are a member of the Supreme Court when Lawrence v. Texas is argued and decided. At conference, the majority decides to rule in favor of Lawrence, as of course occurred. However, the majority decides to rest its decision for Lawrence on the equal protection clause, instead of on the due process clause of the Fourteenth Amendment, as actually happened. You are assigned the task of writing the opinion of the Court. That of course means that you must draft an opinion holding as the Court held in Lawrence, but one that rests the holding on the equal protection clause, instead of the due process clause. In this context, write a concise draft of what you will circulate to the members of the Court, using the equal protection clause.

6. Assume that the Court based its decision in Lawrence on the equal protection clause. In light of Cleburne v. Cleburne Living Center (1985) and Romer v. Evans (1996), what level of scrutiny might the Court have employed? Why? Explain.

7. After Planned Parenthood of Southeastern Pennsylvania v. Casey, do laws regulating and/or forbidding abortions implicate a “fundamental right” in American constitutional law? Explain.

When Justice Blackmun retired from the Supreme Court a few years later, what was left of his handiwork in Roe v. Wade? Discuss.

8. On the basis of Justice Kennedy’s vote in Casey, how do you account for his position in Carhart? Explain.

9. In Lawrence v. Texas, what is Justice Kennedy’s assessment of Justice White’s opinion in Bowers v. Hardwick? Explain.

10. On what did Justice Goldberg prefer to ground the constitutional right of privacy? Explain.

11. In Griswold v. Connecticut, what point did Justice Stewart make in his dissent?

12. Consider Justice Black’s dissent in Griswold v. Connecticut. Is it consistent with his views in Adamson v. California? Katz v. United States? Discuss.

13. In Griswold v. Connecticut, how would Justice Harlan have grounded the constitutional right to privacy? Explain.

182 Copyright © 2012 Pearson Education, Inc.

Answer Key 1. — d 2. — d 3. — c 4. — b 5. — a 6. — a 7. — d 8. — b 9. — c 10. — d 11. — c 12. — c

183 Copyright © 2012 Pearson Education, Inc.

CHAPTER FOURTEEN: EQUAL PROTECTION OF THE LAWS I. CHAPTER OUTLINE Identifying Forbidden Discrimination Rational Basis Test Strict Scrutiny Intermediate Scrutiny Racial Discrimination Legalizing Third-Class Citizenship Counterattack: The Road to Brown The Law and Politics of Racial Integration Continuing Effects of Brown Higher Education State Action Gender Discrimination Fundamental Rights Analysis Congressional Protection of Civil Rights Affirmative Action University Admissions Jobs Congress and Race-Conscious Measures

II. CHAPTER OVERVIEW AND OBJECTIVES The Founders, James Madison in particular, were wedded to the notion that unequal distribution of wealth is the natural result in a society where individuals of differing capacities are free. Accordingly, any government action on behalf of those less fortunate, ignoring merit, was suspect. Americans today might glibly tell a pollster that they favor both “liberty” and “equality,” but that response obscures an unmistakable tension between those cherished values.

As the Founders recognized, emphasis on individual liberty promotes inequality among individuals; measures to promote equality constrict individual liberty. For whatever reason, a conspicuous omission from the Constitution of 1787, as well as the Bill of Rights, is a guaranty guarding against unequal treatment under the law. This provision now so conspicuous in a wide range of Supreme Court decisions dates only from 1868, when it was made part of the Fourteenth Amendment. Along with the privileges and immunities clause and the due process clause designed to safeguard individual rights against encroachment by the states, Section 1 declares, “No State shall...deny to any person within its jurisdiction the equal protection of the laws.” The equal protection clause applies when states make distinctions among similarly situated people and treat them differently. The meaning the Supreme Court gives the clause largely determines what differences among people will be allowed to matter in public policy.

The command of equal protection may sound simple enough, but its meaning continues to spark intense debate both within the Court and throughout the nation. This is partly because the word equality itself signifies different things to different people. For some, it stands for 184 Copyright © 2012 Pearson Education, Inc.

equality of opportunity. Accordingly, government’s duty is to remove discriminatory barriers so that all can participate. Others favor equality of condition and so advocate policies such as Head Start or need-based college scholarships that reduce or even eliminate handicaps that many people encounter. Still others find even those measures inadequate. The crippling effects of existing inequalities, whether of wealth, race, or gender, are too strong and pervasive and so call for measures that promote equality of result. Such competing visions of equality play out in contemporary political and legal dramas.

Virtually all legislation classifies—that is, discriminates. The challenge presented by the equal protection clause, therefore, is identifying which classifications are permitted and which ones are not.

Accordingly, this chapter will explore issues arising from classifications based on race and gender and will conclude with various kinds of affirmative action that have been prominent in recent court decisions.

III. KEY TERMS equal protection clause equality of opportunity equality of condition equality of result rational basis test strict scrutiny test intermediate scrutiny separate but equal racially restrictive covenants unitary school system dual school system de jure segregation de facto segregation racially identifiable schools

185 Copyright © 2012 Pearson Education, Inc.

resegregation state action Thirteenth Amendment Section 1982 Section 1981 fundamental rights analysis substantive equal protection Title II Civil Rights Act of 1964 Title VII Title IX affirmative action Title VI set-aside

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Korematsu v. United States (1944) Cleburne v. Cleburne Living Center (1985) Romer v. Evans (1996) Plessy v. Ferguson (1896) Brown v. Board of Education (First Case) (1954) Bolling v. Sharpe (1954) Brown v. Board of Education (Second Case) (1955) Milliken v. Bradley (1974) Civil Rights Cases (United States v. Stanley, 1883) Moose Lodge v. Irvis (1972) Frontiero v. Richardson (1973) 186 Copyright © 2012 Pearson Education, Inc.

Craig v. Boren (1976) Mississippi University for Women v. Hogan (1982) Shapiro v. Thompson (1969) San Antonio Independent School District v. Rodriguez (1973) Grutter v. Bollinger (2003) Gratz v. Bollinger (2003) Parents Involved in Community Schools v. Seattle School District No. 1

V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE Regents v. Bakke (1978) Adarand Constructors, Inc. v. Peña (1995)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. In Strauder v. West Virginia (1880), Justice William Strong stated that the purpose of the Fourteenth Amendment was to grant blacks “the right to exemption from unfriendly legislation against them as distinctively colored.” Measured by this standard, was the outcome in Plessy v.

Ferguson correct? Are there elements of the Strauder understanding of the Fourteenth Amendment in Chief Justice Warren’s opinion in Brown v. Board of Education?

2. More than a half century has past since the Court’s historic decision in Brown v.

Board of Education, and assessments vary considerably regarding the Court’s impact on civil rights since Brown. At one extreme is the accolade by federal appeals judge J. Harvie Wilkinson III that Brown was essential to the civil rights revolution and its achievements: “Very little could have been accomplished in mid-century America without the Supreme Court....Brown may be the most important political, social, and legal event in America’s twentieth-century history.” At the other is the nearly tragic despondency reflected by the 1993 statement of Kenneth Clark (whose research in psychology loomed large in the Brown litigation) that Brown and related cases accomplished little: “I look back and shudder at how naive we all were in our belief in the steady progress racial minorities would make through programs of litigation and education.” What have been the effects of that decision, as well as of subsequent decisions involving school integration, on public education, on broader matters of race in American society, and on the Court and constitutional law generally?

3. What does Romer v. Evans suggest about the status of any law or government policy that discriminates on the basis of sexual orientation?

4. What are the implications of Grutter v. Bollinger and Gratz v. Bollinger for college and university scholarships for which only members of certain racial groups are eligible or other 187 Copyright © 2012 Pearson Education, Inc.

programs such as job fairs and special orientations in which only such persons may participate?

What are the implications of that same pair of decisions outside the context of higher education?

5. Why was Bolling v. Sharpe grounded in the Fifth, but not in the Fourteenth Amendment?

6. As a case testing gender discrimination, why was Frontiero v. Richardson not grounded in the Fourteenth Amendment?

7. How does fundamental rights analysis, as seen in Shapiro v. Thompson, differ from other applications of the equal protection clause?

8. In the two affirmative action cases (Grutter and Gratz) challenging policies at the University of Michigan, how do you account for the fact that the law school admission plan was acceptable while the admission plan for undergraduates was not?

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS

EQUAL PROTECTION CLAUSE

Previous topics: the focus was on what policies government may or may not pursue.

Now: the focus shifts to classifications. To whom may policies be applied?

Issue: What differences among people should be allowed to matter in formulating and implementing public policy?

Trend: 1.

A gradual increase in differences that ordinarily should not be allowed to matter.

2.

Greater justification is then required when laws take these “suspect” or “quasi suspect” differences into account.

EQUAL PROTECTION: LEVELS OF SCRUTINY

Strict scrutiny test: Whether the classification is necessarily related to a compelling government interest and narrowly tailored to accomplish its purpose Intermediate scrutiny test (near strict scrutiny):

188 Copyright © 2012 Pearson Education, Inc.

Whether the classification is substantially or closely related to an important government interest Rational (or reasonable) basis test: Whether the classification is rationally or reasonably related to a legitimate government interest.

------------------------------------------------------------------

VIII. RESOURCES AND SUGGESTED READINGS BARDOLF, RICHARD, ed. The Civil Rights Record: Black Americans and the Law, 1849– 1970. New York: Crowell, 1970.

GERSTMANN, EVAN. The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: University of Chicago Press, 1999.

HALPERN, STEPHEN C. On the Limits of Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act. Baltimore, Md.: Johns Hopkins University Press, 1995.

KELLOUGH, J. EDWARD. Understanding Affirmative Action. Washington, DC: Georgetown University Press, 2006.

KLARMAN, MICHAEL J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2004.

KLUGER, RICHARD F. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Knopf, 1976.

LEE, FRANCIS GRAHAM. Equal Protection. Santa Barbara, Cal.: ABC–CLIO, 2003.

LOFGREN, CHARLES A. The Plessy Case. New York: Oxford University Press, 1987.

PELTASON, J. W. Fifty-eight Lonely Men. New York: Harcourt, Brace and World, 1961.

189 Copyright © 2012 Pearson Education, Inc.

RHODE, DEBORAH L. Justice and Gender. Cambridge, Mass.: Harvard University Press, 1989.

SCHWARTZ, BERNARD. Behind Bakke: Affirmative Action and the Supreme Court. New York: New York University Press, 1988.

STEPHENSON, D. GRIER, JR. “Weber, Affirmative Action, and Restorative Justice.” 108 USA Today 48 (May 1980).

STRUM, PHILIPPA. Women in the Barracks: The VMI Case and Equal Rights. Lawrence: University Press of Kansas, 2002.

UROFSKY, MELVIN I. Affirmative Action on Trial. Lawrence: University Press of Kansas, 1997.

VOSE, CLEMENT. Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases. Berkeley: University of California Press, 1959.

190 Copyright © 2012 Pearson Education, Inc.

CHAPTER FOURTEEN: EQUAL PROTECTION OF THE LAWS Test Bank Multiple Choice Questions 1. Justice William O. Douglas was the first to make the case for heightened judicial scrutiny of legislation affecting fundamental rights in _____, where the Supreme Court struck down a state law providing for the compulsory sterilization of criminals. a. Skinner v. Oklahoma (1942) b. Buck v. Bell (1927) c. Jacobsen v. Massachusetts (1905) d. Shelley v. Kraemer (1948) 2. The “suspect classification” doctrine originated in _____. a. English common law b. Korematsu v. United States (1944) c. Plessy v. Ferguson (1896) d. the Civil Rights Cases (1883) 3. In the Civil Rights Cases (1883), the Supreme Court reasoned that _____. a. the Fourteenth Amendment prohibited state discrimination only b. the Fourteenth Amendment prohibited state and private discrimination c. the Civil Rights Act of 1875 was a legitimate exercise of congressional authority d. section 5 of the Fourteenth Amendment authorized Congress to eradicate all forms of racism 4. In Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana law requiring racial segregation _____. a. in public schools b. on railroad cars c. in courtrooms d. in the state legislature 5. Before Brown v. Board of Education was reargued in 1953, Chief Justice _____ died and was replaced by Earl Warren. a. William Howard Taft b. Charles Evans Hughes c. Harlan F. Stone d. Fred M. Vinson 6. In _____, the Supreme Court struck down segregated schools in the District of Columbia, noting that the Fifth Amendment’s due process clause incorporated the Fourteenth Amendment’s equal protection guarantee and was thus applicable to the federal government. a. Milliken v. Bradley (1974) b. Alexander v. Holmes County (1969) 191 Copyright © 2012 Pearson Education, Inc.

c. Bolling v. Sharpe (1954) d. Cooper v. Aaron (1957) 7. The difference between de facto segregation and de jure segregation is that _____. a. de facto segregation is instituted by law, while de jure segregation occurs in practice b. de jure segregation is instituted by law, while de facto segregation occurs in practice c. the Constitution specifically protects de facto segregation but not de jure segregation d. the Constitution specifically protects de jure segregation but not de facto segregation 8. In Regents of the University of California v. Bakke (1978), the Supreme Court held that _____. a. racial quotas were impermissible, but race could be a factor in admissions policies b. affirmative action programs discriminated against undeserving individuals c. racial quotas were an acceptable method of overcoming past discrimination d. for more than a century and a half, the Constitution had not been color blind 9. In _____, the Supreme Court declared gender discrimination to be a _____ category for applying the equal protection clause. a. Reed v. Reed (1971); suspect b. Frontiero v. Richardson (1973); quasi-suspect c. Craig v. Boren (1976); quasi-suspect d. Mississippi University for Women v. Hogan (1982); suspect 10. In Plessy v. Ferguson, Justice Harlan insisted that the Constitution _____. a. tolerated racial distinctions in the law b. required racial segregation c. barred discrimination against women d. was color blind

Essay Questions 1. How did contrasting views of “state action” affect the votes and opinions of Chief Justice Burger (for the majority) and Justice Marshall (for the dissenters) in Milliken v. Bradley?

Discuss.

2. A city council enacts an employment policy that requires firefighters on the municipal payroll to retire at age 52. While such a policy is not necessarily invalid under federal age discrimination laws, a 55-year-old firefighter adversely affected by the new rule files suit against the city on Fourteenth Amendment equal protection grounds. (a) Faced with a claim of a constitutionally impermissible classification, a judge may choose among three tests, or levels of scrutiny, that have been developed by the U.S. Supreme Court. Identify and explain each of these tests. (b) On the basis of his separate opinion in Cleburne v. Cleburne Living Center, how would Justice Stevens go about evaluating the validity of the firefighter’s claim?

192 Copyright © 2012 Pearson Education, Inc.

3. Concurring in the result of Lawrence v. Texas (2003), Justice O’Connor stated that the case should have been decided on equal protection grounds and not on the basis of a due process right to privacy that the rest of the majority preferred. In what sense might Lawrence be seen as an equal protection case?

4. How do Justice Brennan’s plurality opinion in Frontiero v. Richardson and the same justice’s majority opinion in Craig v. Boren illustrate distinctly different ways of responding to allegations of unconstitutional gender discrimination? Explain. (Make sure that your essay demonstrates a thorough understanding of both cases.)

5. Aside from the issue of jurisdiction—present in every case before the Supreme Court—what two questions were presented to, and answered by, the Court in Cleburne v. Cleburne Living Center (1985)? Explain. Which party won the case? Why? 6. What important impact (by way of expansion) did Shapiro v. Thompson (1969) have on the Supreme Court’s interpretation of the equal protection clause? Explain.

7. Justice Breyer wrote the principal dissent in Parents Involved v. Seattle School District No. 1 (2007). What were his main points in that dissent? Explain.

8. What “test” emerged from Craig v. Boren (1977)? In what way do you find part of the origin of this test in United States v. O’Brien (1968)? Explain.

9. In light of the Brown decisions in 1954 and 1955, how do you account for the Seattle decision in 2007? Is the latter consistent with the former?

10. According to Brown, what is the source of the constitutional violation in racially segregated schools: separation of the races itself or the state’s requirement that the races be separate? What are the practical consequences of each view?

11. Is Justice Harlan’s “color blind” principle visible at all in the two Michigan affirmative action cases? If so, how?

12. What argument did the Court reject in San Antonio Independent School District v.

Rodriguez?

13. What created the state action problem for the Harrisburg Moose Lodge in its dispute with Mr. Irvis? Which side won the case? Why?

Answer Key 1. — a 2. — b 193 Copyright © 2012 Pearson Education, Inc.

3. — a 4. — b 5. — d 6. — c 7. — b 8. — a 9. — c 10. — d

194 Copyright © 2012 Pearson Education, Inc.

CHAPTER FIFTEEN: SECURITY AND FREEDOM IN WARTIME I. CHAPTER OUTLINE The Fragility of Civil Liberties The USA Patriot Act Antiterrorist Policies in Court Prisoners of War or Something Else?

Military or Civilian Justice?

“Inter Arma Silent Leges”

II. CHAPTER OVERVIEW AND OBJECTIVES Chapter Fifteen was initially added to American Constitutional Law for the fourteenth edition. This was the first edition that was published following the horrific attacks on September 11, 2001. In the bloodiest attacks on American soil since the Civil War, the 19 hijackers killed more than 3,000 persons within the span of two hours. The effects of that morning’s destruction on families, society, the economy, politics—and the Constitution—continue to be felt.

Unlike any other single series of occurrences in the past half century, those events and the policy responses to them have thrust to the forefront a tension that is older than the Constitution: security versus freedom. Measures designed to increase security often entail a constriction of liberty. Too much insistence on maintaining liberties may jeopardize security. American constitutional history is partly an attempt to find an appropriate balance between the two, although a perfect adjustment will probably forever remain out of reach. The record suggests that we are eager to embrace liberty when danger seems remote but that we lean in the other direction when the nation seems imperiled. There is thus a recurring pattern of under- and overreaction.

Underestimating threats to security, whether in 1860, 1941, 1946, or 2000 (to pick but four crisis-laden years), may lead to needless contractions of freedom in response. Sometimes lost amidst shifting policies is recognition that the nation’s strength derives as much from the ideas and values it reflects as from the armies and munitions it deploys. “Constitutional law,” wrote Professor Edward Corwin decades ago, “has for its primary purpose not the convenience of the state but the preservation of individual rights.”

Charters of individual liberties, like a bill of rights, are commonplace today in the constitutions of many governments in the world. Yet even a casual observer of world affairs knows that civil liberties are more likely to be preserved (or suspended) in some countries than in others. Moreover, as cases in this book illustrate, American freedoms have at times expanded and contracted in accordion-like fashion. Exactly why civil liberties thrive in one place or time and not another is a complex phenomenon, but this much is certain: civil liberties are fragile.

Civil liberties rest on at least two kinds of supports: first are rules and institutions.

Federal and state statutes and constitutions carve out certain rights for protection, and courts and other bodies exist to enforce them. Second are the attitudes and values of the people generally and of opinion leaders and those entrusted with making, enforcing, and interpreting the laws. As events since September 11 have demonstrated, the interplay between these two sets of supports 195 Copyright © 2012 Pearson Education, Inc.

takes place within a context where, from one month to the next, the felt needs for freedom and security compete in shaping policy. As Justice Brandeis observed 83 years ago in his dissenting opinion in Olmstead v. United States (see Chapter Ten), the most frequent and often the most serious threats to civil liberties in American history have come not from people intent on throwing the Bill of Rights away but from well-meaning, though overzealous, people who find the Bill of Rights an inconvenience, standing in the way of objectives deemed more urgent and important at the time. Thus, constitutional protections ironically are sometimes worth the least when they are needed the most.

With few exceptions, decisions by the Supreme Court since 2001 and related to that year’s terrorist attacks suggest that, in contrast to some earlier eras, the Supreme Court has decided not to be irrelevant. If this pattern holds, the executive will not be able assume judicial deference when exigencies pit security against freedom. Chief Justice Warren—hardly bashful himself about wielding judicial power—once candidly acknowledged that courts are unreliable bulwarks during emergencies. Other parts of the government, he said, “must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution.” It is “the Legislature and the elected executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution.” Beyond them, he added, “the day-to-day job of upholding the Constitution really lies elsewhere. It rests, realistically, on the shoulders of every citizen.” Warren’s assessment remains a sobering reminder that the Constitution in practice is much more than what the judges say it is.

III. KEY TERMS Authorization for Use of Military Force USA Patriot Act “sneak and peek” search warrants Foreign Intelligence Surveillance Act national security letters al Qaeda writ of habeas corpus martial law enemy combatants

IV. EXCERPTED CASES AND OTHER REPRINTED SOURCE MATERIAL Ex parte Milligan (1866) Ex parte Quirin (1942) Korematsu v. United States (1944) 196 Copyright © 2012 Pearson Education, Inc.

New York Times Company v. United States (1971) United States v. United States District Court (1972) Boumediene v. Bush (2008) V. PERTINENT EXCERPTED CASES AVAILABLE FROM WEBSITE CASE ARCHIVE Hamdi v. Rumsfeld (2004) Hamdan v. Rumsfeld (2006)

VI. QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELFASSESSMENT 1. On the day that the Court released its opinion in Ex parte Quirin, Attorney General Francis Biddle wrote a memo to President Roosevelt summarizing the main points of the decision.

Noting that the Court had distinguished Ex parte Milligan, Biddle declared, “Practically then, the Milligan case is out of the way and should not again plague us.” Did Quirin truly set Milligan “out of the way”?

2. In Korematsu v. United States, how do the opinions of justices Black and Murphy differ in terms of the standard that must be met in order to justify an abridgement of constitutionally protected liberties?

3. Appraise the impact on civil liberties had the government prevailed in U.S. v. U.S. District Court.

4. With respect to judicial oversight of executive authority, what role is envisioned by the opinions of justices Kennedy and Scalia in Boumediene v. Bush?

5. Review the theories of presidential power presented in Chapter Three. Which ones seemed most closely aligned with the judicial opinions in cases excerpted in Chapter Fifteen?

6. The bench that decided Korematsu v. United States also included justices who had decided West Virginia Board of Education v. Barnette. Why would a Court with a generally civil libertarian perspective issue the ruling it did in Korematsu?

7. As this manual was being written in mid-February 2011, the extension of the Patriot Act, enacted in February 2010, was about to expire. Congress was debating the provisions, if any, to extend. Of the provisions in question, one authorizes the FBI to continue using roving wiretaps on surveillance targets; the second allows the government to access “any tangible items,” such as library records, in the course of surveillance; and the third is the “lone wolf” provision that allows for the surveillance of targets who are not connected to an identified terrorist group.

VII. LECTURE AND DISCUSSION TOPIC SUGGESTIONS AND MATERIALS USABLE FOR CLASS HANDOUTS AND/OR DISPLAYS

197 Copyright © 2012 Pearson Education, Inc.

AUTHORIZATION FOR USE OF MILITARY FORCE (AUMF) (115 STAT. 224) “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

VIII. RESOURCES AND SUGGESTED READINGS CALABRESI, STEVEN G., AND CHRISTOPHER S. YOO. The Unitary Executive: Presidential Power from Washington to Bush. New Haven, Ct.: Yale University Press, 2008.

DIPAOLO, AMANDA. Zones of Twilight: Wartime Presidential Powers and Federal Court Decision Making. Lanham, Md.: Rowman and Littlefield, 2009.

FISHER, LOUIS. Nazi Saboteurs on Trial: A Military Tribunal and American Law. Lawrence: University Press of Kansas, 2003.

FISHER, LOUIS. The Constitution and 9/11: Recurring Threats to America’s Freedoms.

Lawrence: University Press of Kansas, 2008.

LEHMAN, JOHN. Making War: The Battle for Jurisdiction Between the President and Congress from the Time of the Barbary Pirates to Desert Storm. New York: Scribner’s, 1992.

NEVINS, ALLAN. “The Case of the Copperhead Conspirator.” In John A. Garraty, ed. Quarrels That Have Shaped the Constitution, rev. ed. New York: Harper & Row, 1987.

NG, WENDY. Japanese American Internment during World War II: A History and Reference Guide. Westport, Conn.: Greenwood, 2002.

198 Copyright © 2012 Pearson Education, Inc.

POSNER, RICHARD, A. Not a Suicide Pact: The Constitution in a Time of National Emergency.

New York: Oxford University Press, 2006.

RANDALL, J. G. Constitutional Problems Under Lincoln, Rev. ed. Urbana: University of Illinois Press, 1951.

REHNQUIST, WILLIAM H. All the Laws but One: Civil Liberties in Wartime. New York: Knopf, 1998.

ROSTOW, EUGENE V. “The Japanese American Cases—A Disaster.” 54 Yale Law Journal 489 (1945).

STONE, GEOFFREY R. “Civil Liberties in Wartime.” 28 Journal of Supreme Court History 215 (2003). _____.Perilous Times: Free Speech in Wartime. New York: Norton, 2004.

199 Copyright © 2012 Pearson Education, Inc.

CHAPTER FIFTEEN: SECURITY AND FREEDOM IN WARTIME Test Bank

Multiple Choice Questions 1. United States v. United States District Court involved _____. a. electronic surveillance b. presidential power c. Title III of the Crime Control Act of 1968 d. All of the above 2. In United States v. United States District Court, the Supreme Court ruled _____. a. 9–0 b. 8–1 c. 6–3 d. 5–4 3. Justice _______ wrote the opinion of the Court in United States v. United States District Court. a. Rehnquist b. Blackmun c. Douglas d. Powell 4. “Inter arma silent leges” means _____. a. “in time of war the laws must be observed” b. “during wartime, victory must be secured at all costs” c. “in time of war the laws are silent” d. “in time of war the laws are rarely silent” 5. Ex parte Milligan arose as a result of _____. a. World War II b. the Vietnam War c. the invasion of Afghanistan by the United States d. the Civil War 6. The opinion of the Court in Ex parte Milligan was written by _____. a. Chief Justice Chase b. Chief Justice Waite c. Justice Grier d. Justice Davis

200 Copyright © 2012 Pearson Education, Inc.

7. Korematsu v. United States is often cited as the initial articulation by the Court of _____. a. fundamental fairness b. strict scrutiny c. due process of law d. None of the above 8. In Korematsu v. United States, Justice Jackson argues in his opinion that _____. a. the government’s policy is unconstitutional b. the government’s policy is constitutional c. the Court should never have agreed to hear the case d. war is a series of hardships 9. In Korematsu v. United States, Justice Murphy declared _____. a. that the government’s policy was lawful b. that the government’s policy was unfortunate but necessary c. that the government’s policy was racist d. that the Court should never have agreed to hear the case 10. Boumediene v. Bush involved a challenge to _____. a. the Patriot Act b. the Crime Control Act of 1968 c. the Geneva Convention d. the Military Commission Act 11. Sneak-and-peak search warrants are authorized by _____. a. the Foreign Intelligence Surveillance Act b. the Crime Control Act c. the Patriot Act d. the Authorization for Use of Military Force 12. _________ was a case arising from World War II that was the focus of both the majority and dissenting opinions in Boumediene v. Bush. a. Ex parte Quirin b. Ex parte Milligan c. Johnson v. Eisentrager d. None of the above

Essay Questions 1. What issues of constitutional and statutory interpretation did the Supreme Court confront in United States v. United States District Court? How were these resolved? Explain.

2. How is United States v. United States District Court anticipated by the exchange between the concurring opinions of justices White and Douglas in Katz v. United States?

201 Copyright © 2012 Pearson Education, Inc.

3. Within the past few years, the Supreme Court has ruled on a number of challenges to claims made by the administration of George W. Bush that it had the power to detain indefinitely U.S. citizens held as “enemy combatants”; and to detain indefinitely and try by military tribunal, without and with limited appeal, foreign nationals who had been seized on battlefields and held at Guantanamo Bay, Cuba. These cases—Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008)—illustrate well the basic constitutional dilemma in enforcing constraints on presidential power to wage war. Focusing primarily on the last two cases, discuss the Court’s conclusions, explaining the applicable presidential directives, laws, treaties, writs, and precedents. To what extent do these cases demonstrate that restraints on presidential power to wage war remain in the hands of Congress?

4. To what degree does Boumediene v. Bush show that the Constitution places considerable restraints on Congress, not only on the president, in matters of national security?

5. On the day that the Court released its opinion in Ex parte Quirin, Attorney General Francis Biddle wrote a memo to President Roosevelt summarizing the main points of the decision.

Noting that the Court had distinguished Ex parte Milligan, Biddle declared, “Practically then, the Milligan case is out of the way and should not again plague us.” Did Quirin truly set Milligan “out of the way”?

6. In Korematsu v. United States, how do the opinions of justices Black and Murphy differ in terms of the standard that must be met in order to justify an abridgement of constitutionally protected liberties?

7. Estimate the probable impact on civil liberties had the government prevailed in U.S. v. U.S. District Court.

8. With respect to judicial oversight of executive authority, what role is envisioned by the opinions of justices Kennedy and Scalia in Boumediene v. Bush?

9. In New York Times Co. v. United States, what role for the judiciary does Justice Black envisage? Justice Harlan? Explain.

10. What fundamental question did Boumediene v. Bush present to the Supreme Court? How did the majority answer that question? Explain.

Answer Key 1. — d 2. — b 3. — d

202 Copyright © 2012 Pearson Education, Inc.

4. — c 5. — d 6. — d 7. — b 8. — c 9. — c 10. — d 11. — c 12. — c

203 Copyright © 2012 Pearson Education, Inc.

Appendix of Additional Material Noteworthy Decisions…………………………………………………………….……………207  Boumediene v. Bush  District of Columbia v. Heller  Kennedy v. Louisiana Historic Documents…………………………………………………………………………...241  Eakin v. Raub  Letters of Brutus  Links for Other Historic Documents Court-related Resources…………………………………………………………………..….263 Cases Displaced ……………………………………………………………………………....265  Adarand Constructors, Inc. v. Peña (1995)  Arkansas v. Sanders (1979)  Bowers v. Hardwick (1986)  Buckley v. Valeo (1976)  Hamdi v. Rumsfeld (2004)  McCleskey v. Kemp (1987)  Miller v. California (1973)  R.A.V. v. City of St. Paul (1992)  Regents v. Bakke (1978)  Rutan v. Republican Party of Illinois (1990)  School District of Abrington Township v. Schempp (1963)  Shaw v. Reno (1993)  Skinner v. Railway Labor Executives' Association (1989)  United States v. Robinson (1973)  Wisconsin v. Mitchell (1993)  Atkins v. Virginia (2002)  Davis v. Bandemer (1986)  Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001)  Garcia v. San Antonio Metropolitan Transit Authority (1985)  Kimel v. Florida Board of Regents (2000)  National Endowment for the Arts v. Finley (1998)  Nollan v. California Coastal Commission (1987)  Reeves, Inc. v. Stake (1980)  Reno v. American Civil Liberties Union (1997)  Stenberg v. Carhart (2000)  Texas v. White (1869)

Copyright © 2012 Pearson Education, Inc. 205

Noteworthy Decisions The Noteworthy Decisions section of this site contains excerpts from important decisions rendered by the United States Supreme Court after June 2007. These most recent cases are presented in a format similar to the cases in the book. The author will add edited versions of other significant decisions soon after they come down.

Boumediene v. Bush 76 U.S.L.W. 4406, 171 L. Ed. 2d 41, 128 S. Ct. 2229 (2008) http://www.law.cornell.edu/supct/html/06-1195.ZC.html This litigation originated after the Supreme Court's decision in Rasul v. Bush (2004), which allowed access to habeas corpus actions in federal court for detainees at Guantanamo Bay, and after the Department of Defense established Combatant Status Review Tribunals (CSRTs) in 2004 to ascertain the status of the Guantanamo detainees.

In 2005, Congress passed the Detainee Treatment Act (DTA) which purported to preclude habeas corpus petitions from Guantanamo detainees while providing for exclusive review of CSRT determinations in the United States Court of Appeals for the District of Columbia Circuit, as well as a parallel review process for detainees seeking to challenge convictions as a result of trial by military commissions. In Hamdan v. Rumsfeld (2006), the Supreme Court, among other conclusions, held that the jurisdiction-stripping provision in the DTA did not apply to pending cases and therefore found it unnecessary to address the statute's constitutional implications. In response, Congress in 2006 passed the Military Commissions Act (MCA) to preclude detainee habeas petitions in all cases (pending and future).

In 2007 the Court of Appeals for the District of Columbia upheld the validity of the MCA that the Guantanamo detainees have no constitutional legal right to seek habeas corpus relief in the courts of the United States. Counsel for Boumediene and others filed a petition for a writ of certiorari in the United States Supreme Court on March 5, 2007. After denying the writ of certiorari on April 2, the Court in an unusual action on June 29 vacated its earlier order and granted the writ.

Justice Kennedy delivered the opinion of the Court....

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause.... We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005, that provides certain procedures for review of the detainees' status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore ¤7 of the Military Commissions Act of 2006 (MCA) operates as an unconstitutional suspension of the writ.

We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court....

As a threshold matter, we must decide whether MCA ¤7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners' cases must be dismissed....

In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because Copyright © 2012 Pearson Education, Inc. 207

of their status, i.e., petitioners' designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation's borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause.

We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases....

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system....

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. ...

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: "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." ...

In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance" that is itself the surest safeguard of liberty. The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account... The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.

The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as well from founding-era authorities addressing the specific question before us: whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation's security, may assert the privilege of the writ and seek its protection. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. But the analysis may begin with precedents as of 1789, for the Court has said that "at the absolute minimum" the Clause protects the writ as it existed when the Constitution was drafted and ratified....

The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. Petitioners argue that jurisdiction followed the King's officers. Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a commonlaw court would or would not have granted, or refused to hear for lack of jurisdiction, a petition Copyright © 2012 Pearson Education, Inc. 208

for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control....

Each side in the present matter argues that the very lack of a precedent on point supports its position. The Government points out there is no evidence that a court sitting in England granted habeas relief to an enemy alien detained abroad; petitioners respond there is no evidence that a court refused to do so for lack of jurisdiction.... We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point....

Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention.

Guantanamo Bay is not formally part of the United States. And under the terms of the lease between the United States and Cuba, Cuba retains "ultimate sovereignty" over the territory while the United States exercises "complete jurisdiction and control." Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government's position well before the events of September 11, 2001. Even if this were a treaty interpretation case that did not involve a political question, the President's construction of the lease agreement would be entitled to great respect.

We therefore do not question the Government's position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. ... When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, but sovereignty in the narrow, legal sense of the term, meaning a claim of right. ... Indeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as Guantanamo was during the Spanish-American War.... Accordingly, for purposes of our analysis, we accept the Government's position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government's premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-ofpowers principles.

The Court has discussed the issue of the Constitution's extraterritorial application on many occasions. These decisions undermine the Government's argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends.... Fundamental questions regarding the Constitution's geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico, Guam, and the Philippinesceded to the United States by Spain at the conclusion of the Spanish-American War-and HawaiiCopyright © 2012 Pearson Education, Inc. 209

annexed by the United States in 1898. At this point Congress chose to discontinue its previous practice of extending constitutional rights to the territories by statute. ...

In a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State. The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position....

These considerations resulted in the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. ...

Practical considerations weighed heavily as well in Johnson v. Eisentrager (1950) where the Court addressed whether habeas corpus jurisdiction extended to enemy aliens who had been convicted of violating the laws of war. The prisoners were detained at Landsberg Prison in Germany during the Allied Powers' postwar occupation. The Court stressed the difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding. It "would require allocation of shipping space, guarding personnel, billeting and rations" and would damage the prestige of military commanders at a sensitive time. In considering these factors the Court sought to balance the constraints of military occupation with constitutional necessities.

True, the Court in Eisentrager denied access to the writ, and it noted the prisoners "at no relevant time were within any territory over which the United States is sovereign, and [that] the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States." The Government seizes upon this language as proof positive that the Eisentrager Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause. We reject this reading for three reasons.

First, we do not accept the idea that the above-quoted passage from Eisentrager is the only authoritative language in the opinion and that all the rest is dicta....

Second, because the United States lacked both de jure sovereignty and plenary control over Landsberg Prison, it is far from clear that the Eisentrager Court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the military asserted over the facility. The Justices who decided Eisentrager would have understood sovereignty as a multifaceted concept. ...

Third, if the Government's reading of Eisentrager were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases' functional approach to questions of extraterritoriality. We cannot accept the Government's view. Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. ... A constricted reading of Eisentrager overlooks what we see as a common thread...: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.

The Government's formal sovereignty-based test raises troubling separation-of-powers concerns as well. ...The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Copyright © 2012 Pearson Education, Inc. 210

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply....

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain....

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

We hold that Art. I, ¤9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. ... This Court may not impose a de facto suspension by abstaining from these controversies. ... The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.

In light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals provides an adequate substitute. ...

The Court of Appeals, having decided that the writ does not run to the detainees in any event, found it unnecessary to consider whether an adequate substitute has been provided. In the ordinary course we would remand to the Court of Appeals to consider this question in the first instance. ...

The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional. The parties before us have addressed the adequacy issue. While we would have found it informative to consider the reasoning of the Court of Appeals on this point, we must weigh that against the harms petitioners may endure from additional delay. And, given there are few precedents addressing what features an adequate substitute for habeas corpus must contain, in all likelihood a remand simply would delay ultimate resolution of the issue by this Court....

Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred....The Court of Appeals [under the DTA] has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense" and whether those standards and procedures are lawful. ...This choice indicates Copyright © 2012 Pearson Education, Inc. 211

Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a ¤2241 proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA. The present cases thus test the limits of the Suspension Clause....

We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law. And the habeas court must have the power to order the conditional release of an individual unlawfully detainedthough release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. ... But, depending on the circumstances, more may be required....

Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive's power to detain.

To determine the necessary scope of habeas corpus review, therefore, we must assess the CSRT process, the mechanism through which petitioners' designation as enemy combatants became final. Whether one characterizes the CSRT process as direct review of the Executive's battlefield determination that the detainee is an enemy combatant-as the parties have and as we do-or as the first step in the collateral review of a battlefield determination makes no difference in a proper analysis of whether the procedures Congress put in place are an adequate substitute for habeas corpus. What matters is the sum total of procedural protections afforded to the detainee at all stages, direct and collateral.

Petitioners identify what they see as myriad deficiencies in the CSRTs. The most relevant for our purposes are the constraints upon the detainee's ability to rebut the factual basis for the Government's assertion that he is an enemy combatant. As already noted, at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government's case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. ...The detainee can confront witnesses that testify during the CSRT proceedings. But given that there are in effect no limits on the admission of hearsay evidence-the only requirement is that the tribunal deem the evidence "relevant and helpful,"-the detainee's opportunity to question witnesses is likely to be more theoretical than real....

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact. ...

Copyright © 2012 Pearson Education, Inc. 212

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. Here that opportunity is constitutionally required.

Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here....

The extent of the showing required of the Government in these cases is a matter to be determined.

We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release.

We now consider whether the DTA allows the Court of Appeals to conduct a proceeding meeting these standards....

The DTA does not explicitly empower the Court of Appeals to order the applicant in a DTA review proceeding released should the court find that the standards and procedures used at his CSRT hearing were insufficient to justify detention. This is troubling. ...

The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. ...

We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee's ability to present exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the ¤2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress' reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus.

Although we do not hold that an adequate substitute must duplicate ¤2241 in all respects, it suffices that the Government has not established that the detainees' access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA ¤7 thus effects an unconstitutional suspension of the writ. ...

Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA ¤7.Accordingly, both the DTA and the CSRT process remain intact. Our holding with Copyright © 2012 Pearson Education, Inc. 213

regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant's habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status....

Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. ...

We hold that petitioners may invoke the fundamental procedural protections of habeas corpus.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times.

Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion.

It is so ordered.

Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring...[omitted].

Chief Justice Roberts, with whom Justice Scalia, Justice Thomas, and Justice Alito join, dissenting....[omited].

Justice Scalia, with whom The Chief Justice, Justice Thomas, and Justice Alito join, dissenting.

Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

The Chief Justice's dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today's opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires....

America is at war with radical Islamists. ...

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v.

Eisentrager when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President's Office of Legal Counsel advised him "that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay]." Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another Copyright © 2012 Pearson Education, Inc. 214

of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.

In the long term, then, the Court's decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. ...But others have succeeded in carrying on their atrocities against innocent civilians. ...

These, mind you, were detainees whom the military had concluded were not enemy combatants.

Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice's dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court's contemplation at least) will be more detaineefriendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. ...

As a court of law operating under a written Constitution, our role is to determine whether there is a conflict between [the Suspension] Clause and the Military Commissions Act. A conflict arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba.

We have frequently stated that we owe great deference to Congress's view that a law it has passed is constitutional. That is especially so in the area of foreign and military affairs.... In light of those principles of deference, the Court's conclusion that "the common law [does not] yiel[d] a definite answer to the questions before us," leaves it no choice but to affirm the Court of Appeals. The writ as preserved in the Constitution could not possibly extend farther than the common law provided when that Clause was written. The Court admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States. Together, these two concessions establish that it is (in the Court's view) perfectly ambiguous whether the common-law writ would have provided a remedy for these petitioners. If that is so, the Court has no basis to strike down the Military Commissions Act, and must leave undisturbed the considered judgment of the coequal branches.

How, then, does the Court weave a clear constitutional prohibition out of pure interpretive equipoise? The Court resorts to "fundamental separation-of-powers principles" to interpret the Suspension Clause. According to the Court, because "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers," the test of its extraterritorial reach "must not be subject to manipulation by those whose power it is designed to restrain."

Copyright © 2012 Pearson Education, Inc. 215

That approach distorts the nature of the separation of powers and its role in the constitutional structure. The "fundamental separation-of-powers principles" that the Constitution embodies are to be derived not from some judicially imagined matrix, but from the sum total of the individual separation-of-powers provisions that the Constitution sets forth. Only by considering them oneby-one does the full shape of the Constitution's separation-of-powers principles emerge. It is nonsensical to interpret those provisions themselves in light of some general "separation-ofpowers principles" dreamed up by the Court. Rather, they must be interpreted to mean what they were understood to mean when the people ratified them. And if the understood scope of the writ of habeas corpus was "designed to restrain" (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much "designed to restrain" the incursions of the Third Branch. "Manipulation" of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as "manipulation" by the Executive. As I will show below, manipulation is what is afoot here. The understood limits upon the writ deny our jurisdiction over the habeas petitions brought by these enemy aliens, and entrust the President with the crucial wartime determinations about their status and continued confinement.

The Court purports to derive from our precedents a "functional" test for the extraterritorial reach of the writ, which shows that the Military Commissions Act unconstitutionally restricts the scope of habeas. That is remarkable because the most pertinent of those precedents, Johnson v.

Eisentrager, conclusively establishes the opposite. There we were confronted with the claims of 21 Germans held at Landsberg Prison, an American military facility located in the American Zone of occupation in postwar Germany. They had been captured in China, and an American military commission sitting there had convicted them of war crimes-collaborating with the Japanese after Germany's surrender. Like the petitioners here, the Germans claimed that their detentions violated the Constitution and international law, and sought a writ of habeas corpus.

Writing for the Court, Justice Jackson held that American courts lacked habeas jurisdiction.....

The Court would have us believe that Eisentrager rested on "[p]ractical considerations," such as the "difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding." Formal sovereignty, says the Court, is merely one consideration "that bears upon which constitutional guarantees apply" in a given location. This is a sheer rewriting of the case.

Eisentrager mentioned practical concerns, to be sure-but not for the purpose of determining under what circumstances American courts could issue writs of habeas corpus for aliens abroad. It cited them to support its holding that the Constitution does not empower courts to issue writs of habeas corpus to aliens abroad in any circumstances. As Justice Black accurately said in dissent, "the Court's opinion inescapably denies courts power to afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is neither enemy nor belligerent and even after peace is officially declared."...

The Court also reasons that Eisentrager must be read as a "functional" opinion because of our prior decisions in the Insular Cases. ... The Insular Cases all concerned territories acquired by Congress under its Article IV authority and indisputably part of the sovereign territory of the United States. None of the Insular Cases stands for the proposition that aliens located outside U. S. sovereign territory have constitutional rights, and Eisentrager held just the opposite with respect to habeas corpus. ...

The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court-and that despite the fact that they were present on U. S. soil. The Copyright © 2012 Pearson Education, Inc. 216

Court's analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises "absolute and indefinite" control, may seek a writ of habeas corpus in federal court. And, as an even more bizarre implication from the Court's reasoning, those prisoners whom the military plans to try by full-dress Commission at a future date may file habeas petitions and secure release before their trials take place....

What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, "it would be possible for the political branches to govern without legal constraint" in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis. "The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them." Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

But so long as there are some places to which habeas does not run-so long as the Court's new "functional" test will not be satisfied in every case-then there will be circumstances in which "it would be possible for the political branches to govern without legal constraint." Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The "functional" test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph's thorough opinion for the court below detailed....

It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown. To be sure, the writ had an "extraordinary territorial ambit," because it was a so-called "prerogative writ," which, unlike other writs, could extend beyond the realm of England to other places where the Crown was sovereign.

But prerogative writs could not issue to foreign countries, even for British subjects; they were confined to the King's dominions-those areas over which the Crown was sovereign. ...

In sum, all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction. The Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. But a case standing for the remarkable proposition that the writ could issue to a foreign land would surely have been reported, whereas a case Copyright © 2012 Pearson Education, Inc. 217

denying such a writ for lack of jurisdiction would likely not. At a minimum, the absence of a reported case either way leaves unrefuted the voluminous commentary stating that habeas was confined to the dominions of the Crown.

What history teaches is confirmed by the nature of the limitations that the Constitution places upon suspension of the common-law writ. It can be suspended only "in Cases of Rebellion or Invasion." The latter case (invasion) is plainly limited to the territory of the United States; and while it is conceivable that a rebellion could be mounted by American citizens abroad, surely the overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, "functional" considerations, as the Court holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an even greater justification for suspension in foreign lands where the United States might hold prisoners of war during an ongoing conflict. And correspondingly, there is less threat to liberty when the Government suspends the writ's (supposed) application in foreign lands, where even on the most extreme view prisoners are entitled to fewer constitutional rights. It makes no sense, therefore, for the Constitution generally to forbid suspension of the writ abroad if indeed the writ has application there....

In sum, because I conclude that the text and history of the Suspension Clause provide no basis for our jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases....

The Nation will live to regret what the Court has done today. I dissent.

Copyright © 2012 Pearson Education, Inc. 218

District of Columbia v. Heller 76 U.S.L.W. 4631, 171 L. Ed. 2d 637, 128 S. Ct. 2783 (2008) http://www.law.cornell.edu/supct/html/07-290.ZS.html A 1976 ordinance in the District of Columbia effectively banned the possession of handguns and required that rifles in the home be dissembled or disabled by trigger locks. Dick Heller is a special police officer authorized to carry a handgun while on duty at the Federal Judicial Center.

He applied for a registration certificate for a handgun that he wished to keep at his home in the District, but was refused. He then filed suit in the United States District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the ban on the registration of handguns and the trigger-lock requirement. The District Court dismissed Heller's complaint, but the Court of Appeals for the District of Columbia Circuit reversed. It held that the Second Amendment protects an individual right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. Majority: Scalia, Alito, Kennedy, Roberts, Thomas. Dissenting: Stevens, Breyer, Ginsburg, Souter.

Justice Scalia delivered the opinion of the Court....

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

We turn first to the meaning of the Second Amendment....

The two sides in this case have set out very different interpretations of the Amendment.

Petitioners and today's dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."...

Logic demands that there be a link between the stated purpose and the command.... Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology.... All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.

Three provisions of the Constitution refer to "the people" in a context other than "rights"-the famous preamble ("We the people"), ¤2 of Article I (providing that "the people" will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with "the States" or "the people"). Those provisions arguably refer to "the people" acting collectively-but they deal with the exercise or reservation of powers, not Copyright © 2012 Pearson Education, Inc. 219

rights. Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right.

What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not an unspecified subset....

This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people"-those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear Arms" in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as "the people."

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans....

We move now from the holder of the right-"the people"-to the substance of the right: "to keep and bear Arms."

Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18thcentury meaning is no different from the meaning today. ...

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. ...

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding....

We turn to the phrases "keep arms" and "bear arms." ... [T]he most natural reading of "keep Arms" in the Second Amendment is to "have weapons."

The phrase "keep arms" was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to "keep Arms" as an individual right unconnected with militia service.... "Keep arms" was simply a common way of referring to possessing arms, for militiamen and everyone else.

At the time of the founding, as now, to "bear" meant to "carry." When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose-confrontation. ...

Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action," it in no way connotes participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that "bear arms" had in the 18th century. In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. ...

The phrase "bear Arms" also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: "to serve as a soldier, do military service, fight" or "to wage war." But it unequivocally bore that idiomatic meaning only when followed by the preposition "against," which was in turn followed by the target of the hostilities. (That is how, for

Copyright © 2012 Pearson Education, Inc. 220

example, our Declaration of Independence used the phrase...: "He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country ... .") ...

In any event, the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. ...

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the preexistence of the right and declares only that it "shall not be infringed." ...

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not,. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

The prefatory clause reads: "A well regulated Militia, being necessary to the security of a free State ...."

In United States v. Miller (1939), we explained that "the Militia comprised all males physically capable of acting in concert for the common defense." That definition comports with foundingera sources.

Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, ¤8, cls. 15-16)."

Although we agree with petitioners' interpretive assumption that "militia" means the same thing in Article I and the Second Amendment , we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create ..., the militia is assumed by Article I already to be in existence. Congress is given the power to "provide for calling forth the militia," and the power not to create, but to "organiz[e]" itand not to organize "a" militia, which is what one would expect if the militia were to be a federal creation, but to organize "the" militia, connoting a body already in existence. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force.

That is what Congress did in the first militia Act, which specified that "each and every free ablebodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia." ... Although the militia consists of all ablebodied men, the federally organized militia may consist of a subset of them.

Finally, the adjective "well-regulated" implies nothing more than the imposition of proper discipline and training. ...

Copyright © 2012 Pearson Education, Inc. 221

The phrase "security of a free state" meant "security of a free polity," not security of each of the several States....

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. ...

It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right-unlike some other English rights-was codified in a written Constitution. ...

Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment . ...

We therefore believe that the most likely reading of all four of these pre- Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions....

The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause....

We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. Before proceeding, however, we take issue with Justice Stevens' equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court's interpretive task. "Legislative history," of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. "Postenactment legislative history," a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do....

Copyright © 2012 Pearson Education, Inc. 222

Antislavery advocates routinely invoked the right to bear arms for self-defense....We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia-and he recognized that the prevailing view was to the contrary....

The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. ...

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. ...

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense....

Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service....

We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment...

Justice Stevens places overwhelming reliance upon this Court's decision in United States v.

Miller. "[H]undreds of judges," we are told, "have relied on the view of the amendment we endorsed there," and "[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself ... would prevent most jurists from endorsing such a dramatic upheaval in the law," And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature's power to regulate the nonmilitary use and ownership of weapons."

Nothing so clearly demonstrates the weakness of Justice Stevens' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal convictions for transporting an unregistered shortbarreled shotgun in interstate commerce, in violation of the National Firearms Act. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for ... military purposes" but for "nonmilitary use." Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." (Emphasis added by Justice Scalia.) "Certainly," the Court continued, "it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did "not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the Copyright © 2012 Pearson Education, Inc. 223

military and nonmilitary use and possession of guns, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment....

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right.

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens....

Like most rights, the right secured by the Second Amendment is not unlimited....[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."

It may be objected that if weapons that are most useful in military service-M-16 rifles and the like-may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have Copyright © 2012 Pearson Education, Inc. 224

limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family,", would fail constitutional muster.

Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down....

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid....

We must also address the District's requirement (as applied to respondent's handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. ...

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

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.

That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

It is so ordered.

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

Copyright © 2012 Pearson Education, Inc. 225

The question presented by this case is not whether the Second Amendment protects a "collective right" or an "individual right." Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms.

Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution....

The view of the Amendment we took in Miller-that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons-is both the most natural reading of the Amendment's text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980. See Lewis v. United States (1980). No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment's text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court's decisional process than on the reasoning in the opinion itself.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law. ...

In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment

Copyright © 2012 Pearson Education, Inc. 226

should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes....

The Second Amendment's omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time....

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.

So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court's emphatic reliance on the claim "that the Second Amendment ... codified a pre-existing right," is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.

Indeed, not a word in the constitutional text even arguably supports the Court's overwrought and novel description of the Second Amendment as "elevat[ing] above all other interests" "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

The proper allocation of military power in the new Nation was an issue of central concern for the Framers. The compromises they ultimately reached, reflected in Article I's Militia Clauses and the Second Amendment, represent quintessential examples of the Framers' "splitting the atom of sovereignty."

Two themes relevant to our current interpretive task ran through the debates on the original Constitution. "On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States." ... On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members "as the primary means of providing for the common defense."... In order to respond to those twin concerns, a compromise was reached: Congress would be authorized to raise and support a national Army and Navy, and also to organize, arm, discipline, and provide for the calling forth of "the Militia." The President, at the same time, was empowered as the "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." But, with respect to the militia, a significant reservation was made to the States: Although Congress would have the power to call forth, organize, arm, and discipline the militia, as well as to govern "such Part of them as may be employed in the Service of the United States," the States respectively would retain the right to appoint the officers and to train the militia in accordance with the discipline prescribed by Congress.

But the original Constitution's retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia's disarmament. ...

Copyright © 2012 Pearson Education, Inc. 227

Madison, charged with the task of assembling the proposals for amendments sent by the ratifying States, was the principal draftsman of the Second Amendment. ...

With all of these sources upon which to draw, it is strikingly significant that Madison's first draft omitted any mention of nonmilitary use or possession of weapons. Rather, his original draft repeated the essence of the two proposed amendments sent by Virginia, combining the substance of the two provisions succinctly into one, which read: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."

Madison's decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.

Madison's initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amendment. It confirms an intent to describe a duty as well as a right, and it unequivocally identifies the military character of both. ...

The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States' militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed. As we explained in Miller: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made.

It must be interpreted and applied with that end in view." The evidence plainly refutes the claim that the Amendment was motivated by the Framers' fears that Congress might act to regulate any civilian uses of weapons. And even if the historical record were genuinely ambiguous, the burden would remain on the parties advocating a change in the law to introduce facts or arguments " 'newly ascertained;'" the Court is unable to identify any such facts or arguments.

Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone's Commentaries on the Laws of England; postenactment commentary on the Second Amendment ; and post-Civil War legislative history. All of these sources shed only indirect light on the question before us, and in any event offer little support for the Court's conclusion. ...

Thus, for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.... After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have "some reasonable relationship to the preservation or efficiency of a well regulated militia."

The key to that decision did not, as the Court belatedly suggests, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that Copyright © 2012 Pearson Education, Inc. 228

some weapons but not others were eligible for Second Amendment protection? If use for selfdefense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?...

The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights "enshrine[d]" in the Constitution. But the right the Court announces was not "enshrined" in the Second Amendment by the Framers; it is the product of today's law-changing decision. ...

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a "law-abiding, responsible citize[n]" the right to keep and use weapons in the home for self-defense is "off the table." Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District's policy choice may well be just the first of an unknown number of dominoes to be knocked off the table. ...

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice-the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court's opinion, I could not possibly conclude that the Framers made such a choice. For these reasons, I respectfully dissent.

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting...[omitted].

Copyright © 2012 Pearson Education, Inc. 229

Kennedy v. Louisiana 76 U.S.L.W. 4584, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) http://www.law.cornell.edu/supct/html/07-343.ZO.html In 2004, Patrick Kennedy was convicted in the Twenty-Fourth Judicial District Court in Jefferson Parish, Louisiana, for the aggravated rape in 1998 of his then 8-year-old step-daughter and sentenced to death under a state law that allowed capital punishment for the rape of a child less than 12 years of age. In 2007, the Supreme Court of Louisiana upheld the sentence over the claim that the statute violated the Eighth Amendment's prohibition of "cruel and unusual punishments."

In their scans of current state and federal law neither the opinions reprinted below nor the briefs filed in this case mentioned that Congress in 2006 authorized capital punishment in military courts for personnel convicted of child rape. Majority: Kennedy, Breyer, Ginsburg, Souter, Stevens. Dissenting: Alito, Roberts, Scalia, Thomas.

Justice Kennedy delivered the opinion of the Court....

The [state supreme] court acknowledged that petitioner would be the first person executed for committing child rape since [the statute] was amended in 1995 and that Louisiana is in the minority of jurisdictions that authorize the death penalty for the crime of child rape. But following the approach of Roper v. Simmons (2005) and Atkins v. Virginia (2002), it found significant not the "numerical counting of which [S]tates ... stand for or against a particular capital prosecution," but "the direction of change." Since 1993, the court explained, four more States-Oklahoma, South Carolina, Montana, and Georgia-had capitalized the crime of child rape and at least eight States had authorized capital punishment for other nonhomicide crimes. By its count, 14 of the then-38 States permitting capital punishment, plus the Federal Government, allowed the death penalty for nonhomicide crimes and 5 allowed the death penalty for the crime of child rape....

On this reasoning the Supreme Court of Louisiana rejected petitioner's argument that the death penalty for the rape of a child under 12 years is disproportionate and upheld the constitutionality of the statute. ...

The ... Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense." Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that "currently prevail." The Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." This is because "[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change."

Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. It is the last of these, retribution, that most often can contradict the law's own ends.

This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

Copyright © 2012 Pearson Education, Inc. 230

For these reasons we have explained that capital punishment must "be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.' " Though the death penalty is not invariably unconstitutional, the Court insists upon confining the instances in which the punishment can be imposed. Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime. The Court further has held that the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim. In Coker [v. Georgia (1977)] for instance, the Court held it would be unconstitutional to execute an offender who had raped an adult woman. And in Enmund v. Florida (1982), the Court overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place. On the other hand, in Tison v. Arizona (1987), the Court allowed the defendants' death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial.

In these cases the Court has been guided by "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions." ... The inquiry does not end there, however. Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose.

Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendment.

The existence of objective indicia of consensus against making a crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow the approach of those cases here. The history of the death penalty for the crime of rape is an instructive beginning point.

In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult. Between 1930 and 1964, 455 people were executed for those crimes. To our knowledge the last individual executed for the rape of a child was Ronald Wolfe in 1964. In 1972, Furman [v. Georgia] invalidated most of the state statutes authorizing the death penalty for the crime of rape; and in Furman's aftermath only six States reenacted their capital rape provisions. Three States-Georgia, North Carolina, and Louisiana-did so with respect to all rape offenses. Three States-Florida, Mississippi, and Tennessee-did so with respect only to child rape. All six statutes were later invalidated under state or federal law.

Louisiana reintroduced the death penalty for rape of a child in 1995. ...Five States have since followed Louisiana's lead: Four of these States' statutes are more narrow than Louisiana's in that only offenders with a previous rape conviction are death eligible. ...

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. ...

Copyright © 2012 Pearson Education, Inc. 231

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions-36 States plus the Federal Government-have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind.

That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

At least one difference between this case and our Eighth Amendment proportionality precedents must be addressed. Respondent and its amici suggest that some States have an "erroneous understanding of this Court's Eighth Amendment jurisprudence." They submit that the general propositions set out in Coker, contrasting murder and rape, have been interpreted in too expansive a way, leading some state legislatures to conclude that Coker applies to child rape when in fact its reasoning does not, or ought not, apply to that specific crime....

We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime.

Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. ... But whatever the significance of consistent change where it is cited to show emerging support for expanding the scope of the death penalty, no showing of consistent change has been made in this case.

Respondent and its amici identify five States where, in their view, legislation authorizing capital punishment for child rape is pending. ...

Aside from pending legislation, it is true that in the last 13 years there has been change towards making child rape a capital offense. This is evidenced by six new death penalty statutes, three enacted in the last two years. But this showing is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. ...

After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.

As we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. ...

We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures....

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are

Copyright © 2012 Pearson Education, Inc. 232

offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken....

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," they cannot be compared to murder in their "severity and irrevocability."

In reaching our conclusion we find significant the number of executions that would be allowed under respondent's approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.

Although we have no reliable statistics on convictions for child rape, we can surmise that, each year, there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment. As a result of existing rules, only 2.2% of convicted first-degree murderers are sentenced to death. But under respondent's approach, the 36 States that permit the death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty....

Our decision is consistent with the justifications offered for the death penalty. Gregg instructs that capital punishment is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes. ...

As in Coker, here it cannot be said with any certainty that the death penalty for child rape serves no deterrent or retributive function....

The goal of retribution, which reflects society's and the victim's interests in seeing that the offender is repaid for the hurt he caused, does not justify the harshness of the death penalty here.

In measuring retribution, as well as other objectives of criminal law, it is appropriate to distinguish between a particularly depraved murder that merits death as a form of retribution and the crime of child rape.

There is an additional reason for our conclusion that imposing the death penalty for child rape would not further retributive purposes. In considering whether retribution is served, among other factors we have looked to whether capital punishment "has the potential ... to allow the community as a whole, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed." In considering the death penalty for nonhomicide offenses this inquiry necessarily also must include the question whether the death penalty balances the wrong to the victim.

It is not at all evident that the child rape victim's hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution, especially when guilt and sentencing determinations are in multiple proceedings. In cases like this the key testimony is not just from the family but from the victim herself. During formative years of her adolescence, made all the more daunting for having to come to terms with the brutality of her experience, L. H. was required to discuss the case at length with law

Copyright © 2012 Pearson Education, Inc. 233

enforcement personnel. In a public trial she was required to recount once more all the details of the crime to a jury as the State pursued the death of her stepfather....

Society's desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the administration and enforcement of laws proscribing child rape.

There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a "special risk of wrongful execution" in some child rape cases. ...

With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty's objectives. Underreporting is a common problem with respect to child sexual abuse. ...

In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.

Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes.

Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child....

The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed. This case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Alito, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified "a national consensus" that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its "independent judgment," that imposing Copyright © 2012 Pearson Education, Inc. 234

the death penalty for child rape is inconsistent with "'the evolving standards of decency that mark the progress of a maturing society.'" Because neither of these justifications is sound, I respectfully dissent....

In assessing current norms, the Court relies primarily on the fact that only 6 of the 50 States now have statutes that permit the death penalty for this offense. But this statistic is a highly unreliable indicator of the views of state lawmakers and their constituents.[D]icta in this Court's decision in Coker v. Georgia has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency.

The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators-regardless of their own values and those of their constituents-from supporting the enactment of such legislation....

Understandably, state courts have frequently read Coker in precisely this way. ...

For the past three decades, these interpretations have posed a very high hurdle for state legislatures considering the passage of new laws permitting the death penalty for the rape of a child. The enactment and implementation of any new state death penalty statute-and particularly a new type of statute such as one that specifically targets the rape of young children-imposes many costs. There is the burden of drafting an innovative law that must take into account this Court's exceedingly complex Eighth Amendment jurisprudence. Securing passage of controversial legislation may interfere in a variety of ways with the enactment of other bills on the legislative agenda. Once the statute is enacted, there is the burden of training and coordinating the efforts of those who must implement the new law. Capital prosecutions are qualitatively more difficult than noncapital prosecutions and impose special emotional burdens on all involved. When a capital sentence is imposed under the new law, there is the burden of keeping the prisoner on death row and the lengthy and costly project of defending the constitutionality of the statute on appeal and in collateral proceedings. And if the law is eventually overturned, there is the burden of new proceedings on remand. Moreover, conscientious state lawmakers, whatever their personal views about the morality of imposing the death penalty for child rape, may defer to this Court's dicta, either because they respect our authority and expertise in interpreting the Constitution or merely because they do not relish the prospect of being held to have violated the Constitution and contravened prevailing "standards of decency." Accordingly, the Coker dicta gave state legislators a strong incentive not to push for the enactment of new capital child-rape laws even though these legislators and their constituents may have believed that the laws would be appropriate and desirable.

The Court expresses doubt that the Coker dicta had this effect, but the skepticism is unwarranted.

It would be quite remarkable if state legislators were not influenced by the considerations noted above. And although state legislatures typically do not create legislative materials like those produced by Congress, there is evidence that proposals to permit the imposition of the death penalty for child rape were opposed on the ground that enactment would be futile and costly....

Because of the effect of the Coker dicta, the Court is plainly wrong in comparing the situation here to that in Atkins or Simmons. Atkins concerned the constitutionality of imposing the death penalty on a mentally retarded defendant. Thirteen years earlier, in Penry v. Lynaugh (1989) , the Court had held that this was permitted by the Eighth Amendment , and therefore, during the time between Penry and Atkins, state legislators had reason to believe that this Court would follow its prior precedent and uphold statutes allowing such punishment.

Copyright © 2012 Pearson Education, Inc. 235

The situation in Roper was similar. Roper concerned a challenge to the constitutionality of imposing the death penalty on a defendant who had not reached the age of 18 at the time of the crime. Sixteen years earlier in Stanford v. Kentucky (1989), the Court had rejected a similar challenge, and therefore state lawmakers had cause to believe that laws allowing such punishment would be sustained.

When state lawmakers believe that their decision will prevail on the question whether to permit the death penalty for a particular crime or class of offender, the legislators' resolution of the issue can be interpreted as an expression of their own judgment, informed by whatever weight they attach to the values of their constituents. But when state legislators think that the enactment of a new death penalty law is likely to be futile, inaction cannot reasonably be interpreted as an expression of their understanding of prevailing societal values. In that atmosphere, legislative inaction is more likely to evidence acquiescence.

If anything can be inferred from state legislative developments, the message is very different from the one that the Court perceives. In just the past few years, despite the shadow cast by the Coker dicta, five States have enacted targeted capital child-rape laws. If, as the Court seems to think, our society is "[e]volving" toward ever higher "standards of decency," these enactments might represent the beginning of a new evolutionary line.

Such a development would not be out of step with changes in our society's thinking since Coker was decided. During that time, reported instances of child abuse have increased dramatically; and there are many indications of growing alarm about the sexual abuse of children. ... In addition, at least 21 States and the District of Columbia now have statutes permitting the involuntary commitment of sexual predators, and at least 12 States have enacted residency restrictions for sex offenders.

Seeking to counter the significance of the new capital child-rape laws enacted during the past two years, the Court points out that in recent months efforts to enact similar laws in five other States have stalled. These developments, however, all took place after our decision to grant certiorari in this case, which gave state legislators reason to delay the enactment of new legislation until the constitutionality of such laws was clarified. And there is no evidence of which I am aware that these legislative initiatives failed because the proposed laws were viewed as inconsistent with our society's standards of decency.

On the contrary, the available evidence suggests otherwise. Thus, the failure to enact capital child-rape laws cannot be viewed as evidence of a moral consensus against such punishment.

Aside from its misleading tally of current state laws, the Court points to two additional "objective indicia" of a "national consensus," but these arguments are patent makeweights. The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court. Congress' failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress' assessment of our society's values.

Finally, the Court argues that statistics about the number of executions in rape cases support its perception of a "national consensus," but here too the statistics do not support the Court's position. The Court notes that the last execution for the rape of a child occurred in 1964, but the Court fails to mention that litigation regarding the constitutionality of the death penalty brought executions to a halt across the board in the late 1960's. In 1965 and 1966, there were a total of eight executions for all offenses, and from 1968 until 1977, the year when Coker was decided, there were no executions for any crimes. The Court also fails to mention that in Louisiana, since Copyright © 2012 Pearson Education, Inc. 236

the state law was amended in 1995 to make child rape a capital offense, prosecutors have asked juries to return death verdicts in four cases. In two of those cases, Louisiana juries imposed the death penalty. This 50% record is hardly evidence that juries share the Court's view that the death penalty for the rape of a young child is unacceptable under even the most aggravated circumstances.

In light of the points discussed above, I believe that the "objective indicia" of our society's "evolving standards of decency" can be fairly summarized as follows. Neither Congress nor juries have done anything that can plausibly be interpreted as evidencing the "national consensus" that the Court perceives. State legislatures, for more than 30 years, have operated under the ominous shadow of the Coker dicta and thus have not been free to express their own understanding of our society's standards of decency. And in the months following our grant of certiorari in this case, state legislatures have had an additional reason to pause. Yet despite the inhibiting legal atmosphere that has prevailed since 1977, six States have recently enacted new, targeted childrape laws.

I do not suggest that six new state laws necessarily establish a "national consensus" or even that they are sure evidence of an ineluctable trend. In terms of the Court's metaphor of moral evolution, these enactments might have turned out to be an evolutionary dead end. But they might also have been the beginning of a strong new evolutionary line. We will never know, because the Court today snuffs out the line in its incipient stage.

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court's "own judgment" regarding "the acceptability of the death penalty." Although the Court has much to say on this issue, most of the Court's discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court's irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today's decision....

A major theme of the Court's opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. The Court also argues that "a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim," and may discourage the reporting of child rape.

These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is "cruel and unusual" punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court's policy arguments concern matters that legislators should-and presumably do-take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using "'the aegis of the Cruel and Unusual Punishment Clause' to cut off the normal democratic processes," but the Court forgets that warning here.

The Court also contends that laws permitting the death penalty for the rape of a child create serious procedural problems. Specifically, the Court maintains that it is not feasible to channel the exercise of sentencing discretion in child-rape cases, and that the unreliability of the testimony of child victims creates a danger that innocent defendants will be convicted and executed. Neither of

Copyright © 2012 Pearson Education, Inc. 237

these contentions provides a basis for striking down all capital child-rape laws no matter how carefully and narrowly they are crafted.

The Court's argument regarding the structuring of sentencing discretion is hard to comprehend.

The Court finds it "difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way." Even assuming that the age of a child is not alone a sufficient factor for limiting sentencing discretion, the Court need only examine the child-rape laws recently enacted in Texas, Oklahoma, Montana, and South Carolina, all of which use a concrete factor to limit quite drastically the number of cases in which the death penalty may be imposed. In those States, a defendant convicted of the rape of a child may be sentenced to death only if the defendant has a prior conviction for a specified felony sex offense. ...

Moreover, it takes little imagination to envision other limiting factors that a State could use to structure sentencing discretion in child rape cases. Some of these might be: whether the victim was kidnapped, whether the defendant inflicted severe physical injury on the victim, whether the victim was raped multiple times, whether the rapes occurred over a specified extended period, and whether there were multiple victims.

The Court refers to limiting standards that are "indefinite and obscure," but there is nothing indefinite or obscure about any of the above-listed aggravating factors. Indeed, they are far more definite and clear-cut than aggravating factors that we have found to be adequate in murder cases. ... For these reasons, concerns about limiting sentencing discretion provide no support for the Court's blanket condemnation of all capital child-rape statutes.

That sweeping holding is also not justified by the Court's concerns about the reliability of the testimony of child victims. First, the Eighth Amendment provides a poor vehicle for addressing problems regarding the admissibility or reliability of evidence, and problems presented by the testimony of child victims are not unique to capital cases. Second, concerns about the reliability of the testimony of child witnesses are not present in every child-rape case. In the case before us, for example, there was undisputed medical evidence that the victim was brutally raped, as well as strong independent evidence that petitioner was the perpetrator. Third, if the Court's evidentiary concerns have Eighth Amendment relevance, they could be addressed by allowing the death penalty in only those child-rape cases in which the independent evidence is sufficient to prove all the elements needed for conviction and imposition of a death sentence....

After all the arguments noted above are put aside, what is left? What remaining grounds does the Court provide to justify its independent judgment that the death penalty for child rape is categorically unacceptable? I see two.

The first is the proposition that we should be "most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty." But holding that the Eighth Amendment does not categorically prohibit the death penalty for the rape of a young child would not "extend" or "expand" the death penalty. Laws enacted by the state legislatures are presumptively constitutional.... Consequently, upholding the constitutionality of such a law would not "extend" or "expand" the death penalty; rather, it would confirm the status of presumptive constitutionality that such laws have enjoyed up to this point. And in any event, this Court has previously made it clear that "[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions."

Copyright © 2012 Pearson Education, Inc. 238

The Court's final-and, it appears, principal-justification for its holding is that murder, the only crime for which defendants have been executed since this Court's 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. But the Court makes little attempt to defend these conclusions.

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

The Court's decision here stands in stark contrast to Atkins and Roper, in which the Court concluded that characteristics of the affected defendants-mental retardation in Atkins and youth in Roper-diminished their culpability. Nor is this case comparable to Enmund (1982), in which the Court held that the Eighth Amendment prohibits the death penalty where the defendant participated in a robbery during which a murder was committed but did not personally intend for lethal force to be used. I have no doubt that, under the prevailing standards of our society, robbery, the crime that the petitioner in Enmund intended to commit, does not evidence the same degree of moral depravity as the brutal rape of a young child. Indeed, I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists-predators who seek out and inflict serious physical and emotional injury on defenseless young children-are the epitome of moral depravity.

With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient. The Court takes pains to limit its holding to "crimes against individual persons" and to exclude "offenses against the State," a category that the Court stretches-without explanation-to include "drug kingpin activity." But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court's acknowledgment that "[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child." As the Court aptly recognizes, "[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape."

The deep problems that afflict child-rape victims often become society's problems as well.

Commentators have noted correlations between childhood sexual abuse and later problems such as substance abuse, dangerous sexual behaviors or dysfunction, inability to relate to others on an interpersonal level, and psychiatric illness. Victims of child rape are nearly 5 times more likely than nonvictims to be arrested for sex crimes and nearly 30 times more likely to be arrested for prostitution.

The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden. Conclusory references to "decency," "moderation," "restraint," "full progress," and "moral judgment" are not enough.

Copyright © 2012 Pearson Education, Inc. 239

In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment ; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable "objective indicia" of a "national consensus" in support of the Court's position; (4) sustaining the constitutionality of the state law before us would not "extend" or "expand" the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general.

The party attacking the constitutionality of a state statute bears the "heavy burden" of establishing that the law is unconstitutional. That burden has not been discharged here, and I would therefore affirm the decision of the Louisiana Supreme Court.

Copyright © 2012 Pearson Education, Inc. 240

Historic Documents The "Historic Documents" section contains two kinds of data. First are a pair of documents neither widely available on the Internet nor even in many undergraduate libraries: (a) the complete text of three of Robert Yates's "Letters of Brutus" (1788) on the subject of judicial power, two of which appear in excerpted form in Chapter Two; and, (b) the complete text of Justice John Bannister Gibsonís dissenting opinion for the Pennsylvania Supreme Court in Eakin v. Raub (1825), which appears in excerpted form also in Chapter Two. Second are links to various documents from the Founding Era that are available at other sites.

Eakin v. Raub Letters of Brutus Links for Other Historic Documents

Eakin v. Raub 12 Sergeant and Rawle 330 (Pa. 1825) This otherwise unimportant case was an action in ejectment to recover possession of four lots in Easton, Pennsylvania. Nonetheless, Justice John Bannister Gibson’s dissenting opinion is generally recognized as the most effective answer to John Marshall’s famous argument supporting judicial review in Marbury v. Madison (1803). As of 1825 the Supreme Court of Pennsylvania had yet to invalidate an existing state law as a violation of the state’s constitution, even though certain state judges had claimed the authority to do so. Gibson’s opinion was a substantial factor in preventing his own appointment to the U.S. Supreme Court upon the death of Justice Bushrod Washington in 1830. In 1845 Gibson recanted, because the legislature of Pennsylvania had "sanctioned the pretensions of the courts to deal freely with the acts of the legislature, and from experience of the necessity of the case" (see Norris v. Clymer, 2 Pa. 281).

Gibson’s opinion is excerpted in the 13th edition of American Constitutional Law on pages 64-66.

It appears here in full.

GIBSON J. Whether there are equitable objections to the plaintiffs' recovery, as respects a part of the premises, I am unable to say. The statement of the case in the charge is by no means a full one; and we know not what sort of title might be shown on another trial. But those objections would go only to a part; and this leads to the point in the assignment of error—the operation of the act of the 11th of March, 1815, on the act of the 26th of March, 1785.

That it was the actual intent of the legislature to interpose an immediate bar, will, I think, be admitted. A simple repeal of the saving, would have sufficiently indicated such an intent. But the repealing act goes further, and in express terms calls into immediate operation the limitation in the second section of the original act, without containing a word on the subject of the third section which had become obsolete, but which is now said to be revived. To those who had a right of entry in 1785, but remained absent one and twenty years, that section gave fifteen years from the period of their arrival here. How then can we say, that it is to be considered as re-enacted in terms, with modifications, to adapt it to the circumstances of those who had a right of entry in 1815 (for that is the argument,) when the repealing act contains not a syllable on the subject? If the legislature had intended to revive this section, its meaning would have been expressed in terms. But what is there to give rise even to a suspicion of such an intent? Nothing but the apparent hardship of suddenly withdrawing the protection extended to the absent owner, after having induced him to trust to it as a permanent safeguard. But no impediment to the immediate Copyright © 2012 Pearson Education, Inc. 241

pursuit of his claim was thrown in his way, and the legislature gave no pledge that what was entirely gratuitous at first, should be continued a single day. It was not only gratuitous, but unjust to our own citizens who remained at home to cultivate and defend the soil. Of all the disabilities originally provided for, absence is entitled to least indulgence, as it is always incurred voluntarily; for if it were occasioned by coverture, infancy, insanity, or imprisonment, any of these, without absence superadded, would be sufficient for every purpose of protection. Every other disability interposes an actual impediment; this does not: and if an absent owner will remain abroad, without providing an agent to attend to his business at home, he should take the consequences. In repealing the saving without provision for existing cases, therefore, I discover no hardship. It is obvious, this saving was originally introduced from a servile imitation of the British statute, and not from any consideration of its justice or policy; and the repeal of an obnoxious provision, creates no obligation to substitute any thing as an equivalent; nor is it probable the legislature would be disposed to do so. But were the repeal even positively unjust what right would we have to construe the act so as to frustrate its object? Under very particular circumstances, a court may properly supply details that are necessary, to prevent the plain and admitted intent of the legislature from failing of effect. Something like this was done in Waln v. Shearman, (8 Serg. & Rawle, 359,) and in Pennock v. Hart, (8 Serg. &, Rawle, 369.) But in the former of these cases, it is impossible to doubt, that in passing the act for the sale of unseated land for taxes, the intention was, in any event, to secure to the original owner, a right to contest the regularity of the sale, within five years from the time when an ejectment might first have been brought against the purchaser; and that in afterwards abolishing the old form of ejectment, by which an action could have been brought for vacant land, there was no intention to impair this right; and it is clear the actual intent of the legislature would have been frustrated by any other construction. The other case was within the letter, but not within the spirit of the act; but I am less confident of the soundness of that decision, than when it was pronounced. In the case before us, I find no reason to say that the third section of the act of 1785, is substantially reenacted by the act of 1715.

But it is said, that without it, the latter act would be unconstitutional; and, instead of controverting this, I will avail myself of it to express an opinion which I have deliberately formed, on the abstract right of the judiciary to declare an unconstitutional act of the legislature void.

It seems to me there is a plain difference, hitherto unnoticed, between acts that are repugnant to the constitution of the particular state, and acts that are repugnant to the constitution of the United States; my opinion being, that the judiciary is bound to execute the former, but not the latter. I shall hereafter attempt to explain this difference, by pointing out the particular provisions in the constitution of the United States on which it depends. I am aware, that a right to declare all unconstitutional acts void, without distinction as to either constitution, is generally held as a professional dogma; but, I apprehend, rather as a matter of faith than of reason. I admit that I once embraced the same doctrine, but without examination and I shall therefore state the arguments that impelled me to abandon it, with great respect for those by whom it is still maintained. But I may premise, that it is not a little remarkable, that although the right in question has all along been claimed by the judiciary, no judge has ventured to discuss it, except Chief Justice MARSHALL, (in Marbury v. Madison, 1 Cranch, 176,) and if the argument of a jurist so distinguished for the strength of his ratiocinative powers be found inconclusive, it may fairly be set down to the weakness of the position which he attempts to defend. Si Pergama dextra defendi potuit, etiam hac defensa fuisset. In saying this, I do not overlook the opinion of Judge Patterson in Vanhorne v. Dorrance, (2 Dall. 307,) which abounds with beautiful figures in illustration of his doctrine; but, without intending disrespect, I submit that metaphorical illustration is one thing and argument another. Now, in questions of this sort, precedents ought to go for absolutely nothing. The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the Copyright © 2012 Pearson Education, Inc. 242

doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine. Instead, therefore, of resting on the fact, that the right in question has universally been assumed by the American courts, the judge who asserts it ought to be prepared to maintain it on the principles of the constitution.

I begin, then, by observing that in this country, the powers of the judiciary are divisible into those that are political and those that are purely civil. Every power by which one organ of the government is enabled to control another, or to exert an influence over its acts, is a political power. The political powers of the judiciary are extraordinary and adventitious; such, for instance as are derived from certain peculiar provisions in the constitution of the United States, of which hereafter: and they are derived, by direct grant, from the common fountain of all political power.

On the other hand, its civil, are its ordinary and appropriate powers; being part of its essence, and existing independently of any supposed grant in the constitution. But where the government exists by virtue of a written constitution, the judiciary does not necessarily derive from that circumstance, any other than its ordinary and appropriate powers. Our judiciary is constructed on the principles of the common law, which enters so essentially into the composition of our social institutions as to be inseparable from them, and to be, in fact, the basis of the whole scheme of our civil and political liberty. In adopting any organ or instrument of the common law, we take it with just such powers and capacities as were incident to it at the common law, except where these are expressly, or by necessary implication, abridged or enlarged in the act of adoption; and, that such act is a written instrument cannot vary its consequences or construction. In the absence of special provision to the contrary, sheriffs, justices of the peace, and other officers whose offices are established in the constitution, exercise no other powers here, than what similar officers do in England; and trial by jury would have been according to the course of the common law, without any declaration to that effect in thc constitution. Now, what are the powers of the judiciary at the common law? They are those that necessarily arise out of its immediate business; and they are therefore commensurate only with the judicial execution of the municipal law, or, in other words, with the administration of distributive justice, without extending to any thing of a political cast whatever. Dr. Paley, as able a man as ever wrote on those subjects on which he professed to treat, seems to have considered the judiciary as a part of the executive, and judging from its essence, subordinate to the legislature, which he viewed as the depositary of the whole sovereignty of the state. With us, although the legislature be the depository of only so much of the sovereignty as the people have thought fit to impart, it is nevertheless sovereign within the limit of its powers, and may relatively claim the same pre-eminence here that it may claim elsewhere. It will be conceded, then, that the ordinary and essential powers of the judiciary do not extend to the annulling of an act of the legislature. Nor can the inference to be drawn from this, be evaded by saying that in England the constitution, resting in principles consecrated by time, and not in an actual written compact, and being subject to alteration by the very act of the legislature, there is consequently no separate and distinct criterion by which the question of constitutionality may be determined; for it does not follow, that because we have such a criterion, the application of it belongs to the judiciary. I take it, therefore, that the power in question does not necessarily arise from the judiciary being, established by a written constitution, but that this organ can claim on account of that circumstance, no powers that do not belong to it at the common law; and that, whatever may have been the cause of the limitation of its jurisdiction originally, it can exercise no power of supervision over the legislature, without producing a direct authority for it in the constitution, either in terms or by irresistible implication from the nature of the government: without which the power must be considered as reserved, along with the other ungranted portions of the sovereignty for the immediate use of the people.

The constitution of Pennsylvania contains no express grant of political powers to the judiciary.

But, to establish a grant by implication, the constitution is said to be a law of superior obligation; Copyright © 2012 Pearson Education, Inc. 243

and, consequently, that if it were to come into collision with an act of the legislature, the latter would have to give way. This is conceded. But it is a fallacy, to suppose that they can come into collision before the judiciary. What is a constitution? It is an act of extraordinary legislation, by which the people establish the structure and mechanism of their government; and in which they prescribe fundamental rules to regulate the motion of the several parts. What is a statute? It is an act of ordinary legislation by the appropriate organ of the government; the provisions of which are to be executed by the executive or judiciary, or by officers subordinate to them. The Constitution then, contains no practical rules for the administration of distributive justice, with which alone the judiciary has to do; these being furnished in acts of ordinary legislation, by that organ of the government, which in this respect, is exclusively the representative of the people; and it is generally true, that the provisions of a constitution are to be carried into effect immediately by the legislature, and only mediately, if at all, by the judiciary. In what respect is the constitution of Pennsylvania inconsistent with this principle? Only, perhaps, in one particular provision, to regulate the style of process, and establish an appropriate form of conclusion in criminal prosecutions: in this alone the constitution furnishes a rule for the judiciary, and this the legislature cannot alter, because it cannot alter the constitution. In all other cases, if the act of assembly supposed to be unconstitutional, were laid out of the question, there would remain no rule to determine the point in controversy in the cause, but the statute or common law, as it existed before the act of assembly was passed; and the constitution and act of assembly therefore do not furnish conflicting rules applicable to the point before the court; nor is it at all necessary, that the one or the other of them should give way.

The constitution and the right of the legislature to pass the act may be in collision. But is that a legitimate subject for judicial determination? If it be, the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes; and in what part of the constitution are we to look for this proud pre-eminence? Viewing the matter in the opposite direction, what would be thought of an act of assembly in which it should be declared that the Supreme Court had, in a particular case, put a wrong construction on the constitution of the United States, and that the judgment should therefore be reversed? It would doubtless be thought a usurpation of judicial power. But it is by no means clear, that to declare a law void which has been enacted according to the forms prescribed in the constitution, is not a usurpation of legislative power. It is an act of sovereignty; and sovereignty and legislative power are said by Sir William Blackstone to be convertible terms. It is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver; and without the latter, it cannot take cognizance of a collision between a law and the constitution. So that to affirm that the judiciary has a right to judge of the existence of such, collision, is to take for granted the very thing to be proved. And, that a very cogent argument may be made in this way, I am not disposed to deny; for no conclusions are so strong as those that are drawn from the petitio principii.

But it has been said to be emphatically the business of the judiciary, to ascertain and pronounce what the law is; and that this necessarily involves a consideration of the constitution. It does so: but how far? If the judiciary will inquire into any thing beside the form, of enactment, where shall it stop? There must be some point of limitation to such an inquiry; for no one will pretend that a judge would be justifiable in calling for the election returns, or scrutinizing the qualifications of those who composed the legislature.

It is next supposed, that as the members of the legislature have no inherent right of legislation, but derive their authority from the people, no law can be valid where authority to pass it, is either simply not, given or positively withheld: thus treating the members as the agents of the people, and the constitution as a letter of attorney containing, their authority and bounding their sphere of action, and the consequence deduced being, that acts not warranted by the constitution are not the Copyright © 2012 Pearson Education, Inc. 244

acts of the people, but of those that do them; and that they are therefore ipso facto void. The concluding inference is, in military phrase, the key of the position, and if it be tenable, it will decide the controversy; for a law ipso facto void, is absolutely a non entity. But it is putting the argument on bold ground to say, that a high public functionary shall challenge no more respect than is due to a private individual; and that its acts, although presenting themselves under sanctions derived from a strict observance of the form of enactment prescribed in the constitution, are to be rejected as ipso facto void for excess of authority. The constitution is not to be expounded like a deed, but by principles of interpretation much more liberal; as was declared by this court in The Farmers and Mechanics’ Bank v. Smith, (3 Serg. & Rawle, 63.) But, in the case of a public functionary, even according to common law maxims, omnia presumi debeant rite et solemniter esse acta. The benefit of this maxim cannot be refused to the legislature by those who advocate the other side, inasmuch as it is the foundation of their own hypothesis; for all respect is demanded for the acts of the judiciary. For instance: let it be supposed that the power to declare a law unconstitutional has been exercised. What is to be done? The legislature must acquiesce, although it may think the construction of the judiciary wrong. But why must it acquiesce? Only because it is bound to pay that respect to every other organ of the government, which it has a right to exact from each of them in turn. This is the argument. But it will not be pretended, that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgement to the other. Suppose, then, they differ in opinion as to the constitutionality of a particular law if the organ whose business it first is to decide on the subject, is not to have its judgment treated with respect, what shall prevent it from securing the preponderance of its opinion by the strong arm of power? It is in vain to say, the legislature would be the aggressor in this; and that no argument in favour of its authority can be drawn from an abuse of its power.

Granting this, yet it is fair to infer, that the framers of the constitution never intended to force the judges either to become martyrs or to flinch from their duty; or to interpose a check that would produce no other effect than an intestine war. Such things have occurred in other states, and would necessarily occur in this, under circumstances of strong excitement in the popular branch.

The judges would be legislated out of office, if the majority requisite to a direct removal by impeachment, or the legislative address, could not be had; and this check, instead of producing the salutary effect expected from it, would rend the government in pieces. But, suppose that a struggle would not produce consequences so disastrous, still the soundness of any construction which would bring one organ of the government into collision with another, is to be more than suspected; for where collision occurs, it is evident the machine is working in a way the framers of it did not intend. But what I want more immediately to press on the attention, is the necessity of yielding to the acts of the legislature the same respect that is claimed for the acts of the judiciary.

Repugnance to the constitution is not always self evident; for questions involving the consideration of its existence, require for their solution the most vigorous exertion of the higher faculties of the mind, and conflicts will be inevitable, if any branch is to apply the constitution after its own fashion to the acts of all the others. I take it, then, the legislature is entitled to all the deference that is due to the judiciary; that its acts are in no case to be treated as ipso facto void, except where they would produce a revolution in the government; and that, to avoid them, requires the act of some tribunal competent under the constitution, (if any such there be,) to pass on their validity. All that remains, therefore, is to inquire whether the judiciary or the people are that tribunal.

Now, as the judiciary is not expressly constituted for that purpose, it must derive whatever authority of the sort it may possess, from the reasonableness and fitness of the thing. But, in theory, all the organs of the government are of equal capacity; or, if not equal, each must be supposed to have superior capacity only for those things which peculiarly belong to it; and, as legislation peculiarly involves the consideration of those limitations which are put on the lawCopyright © 2012 Pearson Education, Inc. 245

making power, and the interpretation of the laws when made, involves only the construction of the laws themselves, it follows that the construction of the constitution in this particular belongs to the legislature, which ought therefore to be taken to have superior capacity to judge of the constitutionality of its own acts. But suppose all to be of equal capacity in every respect, why should one exercise a controlling power over the rest? That the judiciary is of superior rank, has never been pretended, although it has been said to be co-ordinate. It is not easy, however, to comprehend how the power which gives law to all the rest, can be of no more than equal rank with one which receives it, and is answerable to the former for the observance of its statutes.

Legislation is essentially an act of sovereign power; but the execution of the laws by instruments that are governed by prescribed rules and exercise no power of volition, is essentially otherwise.

The very definition of law, which is said to be "a rule of civil conduct prescribed by the supreme power in the state," shows the intrinsic superiority of the legislature. It may be said, the power of the legislature, also, is limited by prescribed rules. It is so. But it is, nevertheless, the power of the people, and sovereign as far as it extends. It cannot be said, that the judiciary is co-ordinate merely because it is established by the constitution. If that were sufficient, sheriffs, registers of wills, and recorders of deeds, would be so too. Within the pale of their authority, the acts of these officers will have the power of the people for their support; but no one will pretend, they are of equal dignity with the acts of the legislature. Inequality of rank arises not from the manner in which the organ has been constituted, but from its essence and the nature of its functions; and the legislative organ is superior to every other, inasmuch as the power to will and to command, is essentially superior to the power to act and to obey. It does not follow, then, that every organ created by special provision in the constitution, is of equal rank. Both the executive, strictly as such, and the judiciary are subordinate; and an act of superior power exercised by an inferior ought, one would think, to rest on something more solid than implication.

It may be alleged, that no such power is claimed, and that the judiciary does no positive act, but merely refuses to be instrumental in giving effect to an unconstitutional law. This is nothing more than a repetition in a different form of the argument,—that an unconstitutional law is ipso facto void; for a refusal to act under the law, must be founded on a right in each branch to judge of the acts of all the others, before it is bound to exercise its functions to give those acts effect. No such right is recognized in the different branches of the national government, except the judiciary, (and that, too, on account of the peculiar provisions of the constitution,) for it is now universally held, whatever doubts may have once existed, that congress is bound to provide for carrying a treaty into effect, although it may disapprove of the exercise of the treaty-making power in the particular instance. A government constructed on any other principle, would be in perpetual danger of standing still; for the right to decide on the constitutionality of the laws, would not be peculiar to the judiciary, but would equally reside in the person of every officer whose agency might be necessary to carry them into execution.

Every one knows how seldom men think exactly alike on ordinary subjects; and a government constructed on the principle of assent by all its parts, would be inadequate to the most simple operations. The notion of a complication of counter checks has been carried to an extent in theory, of which the framers of the constitution never dreamt. When the entire sovereignty was separated into its elementary parts, and distributed to the appropriate branches all things incident to the exercise of its powers were committee to each branch exclusively. The negative which each part of the legislature may exercise, in regard to the acts of the other, was thought sufficient to prevent material infractions of the restraints which were put on the power of the whole; for, had it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt. The judges would not have been left to stand on the insecure and ever shifting ground of public opinion as to constructive powers: they would have been placed on the impregnable ground of an express grant. They would not have been compelled to resort to the Copyright © 2012 Pearson Education, Inc. 246

debates in the convention, or the opinion that was generally entertained at the time. A constitution, or a statute, is supposed to contain the whole will of the body from which it emanated; and I would just as soon resort to the debates in the legislature for the construction of an act of assembly, as to the debates in the convention for the construction of the constitution.

The power is said to be restricted to cases that are free from doubt or difficulty. But the abstract existence of a power cannot depend on the clearness or obscurity of the case in which it is to be exercised; for that is a consideration that cannot present itself, before the question of the existence of the power shall have been determined; and, if its existence be conceded, no considerations of policy arising from the obscurity of the particular case, ought to influence the exercise of it. The judge would have no discretion; but the party submitting the question of constitutionality would have an interest in the decision of it, which could not be postponed to motives of deference for the opinion of the legislature. His rights would depend not on the greatness of the supposed discrepancy with the constitution, but on the existence of any discrepancy at all; and the judge would therefore be bound to decide this question, like every other in respect to which he may be unable to arrive at a perfectly satisfactory conclusion. But he would evade the question instead of deciding it, were he to refuse to decide in accordance with the inclination of his mind. To say, therefore, that the power is to be exercised but in perfectly clear cases, is to betray a doubt of the propriety of exercising it at all. Were the same caution used in judging of the existence of the power that is inculcated as to the exercise of it, the profession would perhaps arrive at a different conclusion. The grant of a power so extraordinary ought to appear so plain, that he who should run might read. Now, put the constitution into the hands of any man of plain sense, whose mind is free from an impression on the subject, and it will be impossible to persuade him, that the exercise of such a power was ever contemplated by the convention.

But the judges are sworn to support the constitution, and are they not bound by it as the law of the land? In some respects they are. In the very few cases in which the judiciary, and not the legislature, is the immediate organ to execute its provisions, they are bound by it in preference to any act of assembly to the contrary. In such cases, the constitution is a rule to the courts. But what I have in view in this inquiry, is the supposed right of the judiciary to interfere, in cases where the constitution is to be carried into effect through the instrumentality of the legislature, and where that organ must necessarily first decide on the constitutionality of its own act. The oath to support the constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty: otherwise it were difficult to determine what operation it is to have in the case of a recorder of deeds, for instance, who, in the execution of his office, has nothing to do with the constitution. But granting it to relate to the official conduct of the judge, as well as every other officer, and not to his political principles, still it must be understood in reference to supporting the constitution, only as far as that may be involved in his official duty; and, consequently, if his official duty does not comprehend an inquiry into the authority of the legislature, neither does his oath. It is worthy of remark here, that the foundation of every argument in favour of the right of the judiciary, is found at last to be an assumption of the whole ground in dispute. Granting that the object of the oath is to secure a support of the constitution in the discharge of official duty, its terms may be satisfied by restraining it to official duty in the exercise of the ordinary judicial powers. Thus, the constitution may furnish a rule of construction, where a particular interpretation of a law would conflict with some constitutional principle; and such interpretation, where it may, is always to be avoided. But the oath was more probably designed to secure the powers of each of the different branches from being usurped by any of the rest: for instance, to prevent the house of representatives from erecting itself into a court of judicature, or the Supreme Court from attempting to control the legislature; and, in this view, the oath furnishes an argument equally plausible against the right of the judiciary. But if it require a Copyright © 2012 Pearson Education, Inc. 247

Support of the constitution in any thing beside official duty, it is in fact an oath of allegiance to a particular form of government; and, considered as such, it is not easy to see why it should not be taken by the citizens at large, as well as by the officers of the government. It has never been thought that an officer is under greater restraint as to measures which have for their avowed end a total change of the constitution, than a citizen who has taken no oath at all. The official oath, then, relates only to the official conduct of the officer, and does not prove that he ought to stray from the path of his ordinary business to search for violations of duty in the business of others; nor does it, as supposed, define the powers of the officer.

But do not the judges do a positive act in violation of the constitution, when they give effect to an unconstitutional law? Not if the law has been passed according to the forms established in the constitution. The fallacy of the question is, in supposing that the judiciary adopts the acts of the legislature as its own; whereas the enactment of a law and the interpretation of it are not concurrent acts, and as the judiciary is not required to concur in the enactment, neither is it in the breach of the constitution which may be the consequence of the enactment. The fault is imputable to the legislature, and on it the responsibility exclusively rests. In this respect, the judges are in the predicament of jurors who are bound to serve in capital cases, although unable, under any circumstances, to reconcile it to their duty to deprive a human being of life. To one of these, who applied to be discharged from the panel, I once heard it remarked, by an eminent and humane judge, "You do not deprive a prisoner of life by finding him guilty of a capital crime: you but pronounce his case to be within the law, and it is therefore those who declare the law and not you, who deprive him of life."

That every thing addressed to the legislature by way of positive command, is purely directory, will hardly be disputed: it is only to enforce prohibitions that the interposition of judicial authority is thought to be warrantable. But I can see no room for a distinction between the injunctions that are positive and those that are negative: the same authority must enforce both.

But it has been said, that this construction would deprive the citizen of the advantages which are peculiar to a written constitution, by at once declaring the power of the legislature, in practice, to be illimitable. I ask, what are those advantages? The principles of a written constitution are more fixed and certain, and more apparent to the apprehension of the people, than principles which depend on tradition and the ague comprehension of the individuals who compose the nation, and who cannot all be expected to receive the same impressions or entertain the same notions on any given subject. But there is no magic or inherent power in parchment and ink, to command respect and protect principles from violation. In the business of government, a recurrence to first principles answers the end of an observation at sea with a view to correct the dead reckoning; and, for this purpose, a written constitution is an instrument of inestimable value. It is of inestimable value, also, in rendering its principles familiar to the mass of the people; for, after all, there is no effectual guard against legislative usurpation but public opinion, the force of which, in this country, is inconceivably great. Happily this is proved, by experience, to be a sufficient guard against palpable infractions The constitution of this state has withstood the shocks of strong; party excitement for thirty years, during which no act of the legislature has been declared unconstitutional, although the judiciary has constantly asserted a right to do so in clear cases. But it would be absurd to say, that this remarkable observance of the constitution has been produced, not by the responsibility of the legislature to the people, but by an apprehension of control by the judiciary. Once let public opinion be so corrupt as to sanction every misconstruction of the constitution and abuse of power which the temptation of the moment may dictate, and the party which may happen to be predominant, will laugh at the puny efforts of a dependent power to arrest it in its course.

Copyright © 2012 Pearson Education, Inc. 248

For these reasons, I am of opinion that it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act. What is wanting to plenary power in the government, is reserved by the people for their own immediate use; and to redress on infringement of their rights in this respect, would seem to be an accessory of the power thus reserved. It might, perhaps, have been better to vest the power in the judiciary; as it might be expected that its habits of deliberation, and the aid derived from the arguments of counsel, would more frequently lead to accurate conclusions. On the other hand, the judiciary is not infallible; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraordinary medium of a convention; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage a mode better calculated to attain the end, without popular excitement. It may be said, the people would probably not notice an error of their representatives. But they would as probably do so, as notice an error of the judiciary; and, beside, it is a postulate in the theory of our government, and the very basis of the superstructure, that the people are wise, virtuous, and competent to manage their own affairs: and if they are not so, in fact, still every question of this sort must be determined according to the principles of the constitution, as it came from the hands of its framers, and the existence of a defect which was not foreseen, would not justify those who administer the government, in applying a corrective in practice, which can be provided only by a convention. Long and uninterrupted usage is entitled to respect; and, although it cannot change an admitted principle of the constitution, it will go far to settle a question of doubtful right. But, although this power has all along been claimed by the state judiciary, it has never been exercised. Austin v. The University of Pennsylvania, (1 Yeates, 260,) is the only case even apparently to the contrary; but there the act of assembly had been previously repealed. In Vanhorne v. Dorrance, decided by the Circuit Court of the United States under similar circumstances, the right is peremptorily asserted and examples of monstrous violations of the constitution are put in a strong light by way of example; such as taking away the trial by jury, the elective franchise, or subverting religious liberty. But any of these would be such a usurpation of the political rights of the citizens, as would work a change in the very structure of the government; or, to speak more properly, it would itself be a revolution, which, to counteract, would justify even insurrection; consequently, a judge might lawfully employ every instrument of official resistance within his reach. By this I mean, that while the citizen should resist with pike and gun, the judge might co-operate with habeas corpus and mandamus. It would be his duty, as a citizen, to throw himself into the breach, and, if it should be necessary, perish there; but this is far from proving the judiciary to be a peculiar organ under the constitution, to prevent legislative encroachment on the powers reserved by the people; and this is all that I contend it is not. Indeed, its absolute inadequacy to the object, is conclusive that it never was intended as such by the framers of the constitution, who must have had in view the probable operation of the government in practice.

But in regard to an act of assembly, which is found to be in collision with the constitution, laws, or treaties of the United States, I take the duty of the judiciary to be exactly the reverse. By becoming parties to the federal constitution, the states have agreed to several limitations of their individual sovereignty, to enforce which, it was thought to be absolutely necessary to prevent them from giving effect to laws in violation of those limitations, through the instrumentality of their own judges. Accordingly, it is declared in the fifth [sic] article and second section of the federal constitution, that "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 laws or constitution of any state to the contrary notwithstanding."

This is an express grant of a political power, and it is conclusive to show that no law of inferior obligation, as every state law must necessarily be, can be executed at the expense of the Copyright © 2012 Pearson Education, Inc. 249

constitution, laws, or treaties of the United States. It may be said, these are to furnish a rule only when there is no state provision on the subject. But, in that view, they could with no propriety be called supreme; for supremacy is a relative term, and cannot be predicated of a thing which exists separately and alone: and this law, which is called supreme, would change its character and become subordinate as soon as it should be found in conflict with a state law.

But the judges are to be bound by the federal constitution and laws, notwithstanding any thing in the constitution or laws of the particular state to the contrary. If, then, a state were to declare the laws of the United States not to be obligatory on her judges, such an act would unquestionably be void; for it will not be pretended, that any member of the union can dispense with the obligation of the federal constitution: and, if it cannot be done directly, and by a general declaratory law, neither can it indirectly, and by by-laws dispensing with it in particular cases. This, therefore, is an express grant of the power, and would be sufficient for the purposes of the argument; but it is not all.

By the third article and second section appellate jurisdiction of all cases arising under the constitution and laws of the United States, is reserved to the federal judiciary, under such regulations as congress may prescribe; and, in execution of this provision, congress has prescribed regulations for removing into the Supreme Court of the United States, all causes decided by the highest court of judicature of any state, which involve the construction of the constitution, or of any law or treaty of the United States. This is another guard against infraction of the limitations imposed on state sovereignty, and one which is extremely efficient in practice; for reversals of decisions in favour of the constitutionality of acts of assembly, have been frequent on writs of error to the Supreme Court of the United States.

Now, a reversal implies that it was not only the right, but the duty of the inferior court to decide otherwise; for where there is but one way of deciding, there can be no error. But what beneficial result would there be produced by the decision of a state court in favour of a state law palpably unconstitutional? The injured party would have the judgment reversed by the court in the last resort, and the cause would come back with a mandate to decide differently, which the state court dare not disobey: so that nothing would eventually be gained by the party claiming under the law of the state, but, on the contrary, he would be burdened with additional costs. I grant, however, that the state judiciary ought not to exercise the power except in cases free from all doubt, because, as a writ of error to the Supreme Court of the United States lies to correct an error only in favour of the constitutionality of the state law, an error in deciding against it would be irremediable. Anticipating those who think they perceive in this, exactly what I have censured in those who assume the existence of the same power in respect to laws that are repugnant to the constitution of the state, but restrict the exercise of it to clear cases, I briefly remark that the instances are not parallel; an error in deciding against the validity of the law, being irreparable in the one, and not so in the other.

Unless, then, the respective states are not bound by the engagement, which they have contracted by becoming parties to the constitution of the United States, they are precluded from denying either the right or the duty of their judges, to declare their laws void when they are repugnant to that constitution.

The preceding inquiry may perhaps appear foreign to the point immediately before the court; but, as the act of 1815 may be thought repugnant to the constitution of the state, an examination of the powers of the judiciary, became not only proper but necessary.

Copyright © 2012 Pearson Education, Inc. 250

Then, laying the constitution of the state out of the case, what restriction on state sovereignty is violated by at once repealing any of the saving clauses in the statute of limitations? Those restrictions are contained in the first article and tenth section of the constitution of the United States; and, as there is no pretence that a contract has been impaired, none of them can, even by the most strained construction, be supposed to he violated, except that which relates to ex post facto laws. But that was held, in Calder v. Bull, (3 Dall. 386,) to be applicable only to penal laws.

The law in question not only relates to civil rights, but is not even retrospective. It is commonly said, that the statute of limitations does not run against any one, who is within the benefit of any clause of the proviso; but this is plainly inaccurate. It actually runs, but ten years from the removal of the disability provided for, are given in addition to the original period, and this as a personal privilege in avoidance of the bar which would otherwise be decisive. If it were actually to begin to run only from the removal of the disability, the party would have twenty-one years from that period. Now, suppose it to be removed at the conclusion of the twentieth year, it will not be pretended that he would still have twenty-one years in addition: yet that consequence would be inevitable, were the statute not to begin to run before. So, where the disability is removed during the first year, the party will not be compelled to make entry within the ensuing ten; for the saving does not come into operation till the period which constitutes a bar in ordinary cases has elapsed: he must therefore, in such case, make his entry within the original period.

Then, by putting in force a limitation which had all along been running against the plaintiffs, the act of 1815 did not operate retrospectively, but deprived them of a prospective exemption, which, having been gratuitous cannot be said to have originated in contract. I am therefore of opinion that the judgment be affirmed.

Copyright © 2012 Pearson Education, Inc. 251

Letters of Brutus Robert Yates as "Brutus" on Judicial Review Robert Yates, a New York judge, was one of that state’s three delegates to the Philadelphia Convention. Unhappy with the direction of the proceedings, he and fellow delegate (and Albany mayor) John Lansing left the convention on July 10. During the debates over ratification, Yates published his criticisms of the proposed Constitution in a series of letters in the New York Journal and Weekly Register. The three included here were later reprinted as an appendix to Edward S. Corwin, Court Over Constitution (Princeton, N.J.: Princeton University Press, 1938), pp. 231262. The three spoke to the Supreme Court’s anticipated power of judicial review and prompted Alexander Hamilton (the only New York delegate to sign the Constitution) to respond in The Federalist, especially in No. 78. The original spelling and type forms have been updated.

Excerpts from No. 11 and No. 15 appear on pages 56-57 in the 13th edition of American Constitutional Law. Excerpts from Hamilton’s Federalist No. 78 appear on pages 58-59.

BRUTUS, No. 11 (January 31, 1788) The nature and extent of the judicial power of the United States, proposed to be granted by this constitution, claims our particular attention.

Much has been said and written upon the subject of this new system on both sides, but I have not met with any writer, who has discussed the judicial powers with any degree of accuracy. And yet it is obvious, that we can form but very imperfect ideas of the manner in which this government will work, or the effect it will have in changing the internal police and mode of distributing justice at present subsisting in the respective states, without a thorough investigation of the powers of the judiciary and of the manner in which they will operate. This government is a complete system, not only for making, but for executing laws. And the courts of law, which will be constituted by it, are not only to decide upon the constitution and the laws made in pursuance of it, but by officers subordinate to them to execute all their decisions. The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries.

No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors.

This part of the plan is so modeled, as to authorize the courts, not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions.

That we may be enabled to form a just opinion on this subject, I shall, in considering it, 1st. Examine the nature and extent of the judicial powers--and 2d. Inquire, whether the courts who are to exercise them, are so constituted as to afford reasonable ground of confidence, that they will exercise them for the general good.

Copyright © 2012 Pearson Education, Inc. 252

With a regard to the nature and extent of the judicial powers, I have to regret my want of capacity to give that full and minute explanation of them that the subject merits. To be able to do this, a man should be possessed of a degree of law knowledge far beyond what I pretend to. A number of hard words and technical phrases are used in this part of the system, about the meaning of which gentlemen learned in the law differ.

Its advocates know how to avail themselves of these phrases. In a number of instances, where objections are made to the powers given to the judicial, they give such an explanation to the technical terms as to avoid them.

Though I am not competent to give a perfect explanation of the powers granted to this department of the government, I shall yet attempt to trace some of the leading features of it, from which I presume it will appear, that they will operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states.

In article 3d, sect. 2d, it is said, "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, &c."

The first article to which this power extends, is, all cases in law and equity arising under this constitution.

What latitude of construction this clause should receive, it is not easy to say. At first view, one would suppose, that it meant no more than this, that the courts under the general government should exercise, not only the powers of courts of law, but also that of courts of equity, in the manner in which those powers are usually exercised in the different states. But this cannot be the meaning, because the next clause authorizes the courts to take cognizance of all cases in law and equity arising under the laws of the United States; this last article, I conceive, conveys as much power to the general judicial as any of the state courts possess.

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing.

The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it.

This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

1st. They are authorized to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law.— These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the constitution, as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so understood as to bear no meaning or a very absurd one.

Copyright © 2012 Pearson Education, Inc. 253

2d. The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity.

By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.

"From this method of interpreting laws" (says Blackstone) "by the reason of them, arises what we call equity;" which is thus defined by Grotius, "the correction of that, wherein the law, by reason of its universality, is deficient; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be applied to particular cases, there should somewhere be a power vested of defining those circumstances, which had they been foreseen the legislator would have expressed;" and these are the cases, which according to Grotius, "lex non exacte definit, fed arbitrio boni viri permittet."

The fame learned author observes, "That equity, thus depending essentially upon each individual case, there can be 110 established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law."

From these remarks, the authority and business of the courts of law, under this clause, may be understood.

They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorized by the constitution to decide in the last resort. The legislature must be controlled by the constitution and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other.

The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution:—I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.

That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations.

1st. The constitution itself strongly countenances such a mode of construction. Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most important powers committed to any Copyright © 2012 Pearson Education, Inc. 254

government, those of raising money, and of raising and keeping up troops, have already been considered, and shown to be unlimited by any thing but the discretion of the legislature. The clause which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it has been shown, leaves the legislature at liberty, to do every thing, which in their judgment is best. It is said, I know, that this clause confers no power on the legislature, which they would not have had without it—though I believe this is not the fact, yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly, according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered, as explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring, that in construing any of the articles conveying power, the spirit, intent and design of the clause, should be attended to, as well as the words in their common acceptation.

This constitution gives sufficient color for adopting an equitable construction, if we consider the great end and design it professedly has in view—this appears from its preamble to be, "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and posterity." The design of this system is here expressed, and it is proper to give such a meaning to the various parts, as will best promote the accomplishment of the end; this idea suggests itself naturally upon reading the preamble, and will countenance the court in giving the several articles such a sense, as will the most effectual promote the ends the constitution had in view—how this manner of explaining the constitution will operate in practice, shall be the subject of future inquiry.

2d. Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the fame principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the Judges will be increased, with the increase of the business they will have to transact and its importance.

From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favor it; and that they will do it, appears probable.

3d. Because they will have precedent to plead, to justify them in it. It is well known, that the courts in England, have by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land.

The court of exchequer is a remarkable instance of this. It was originally intended principally to recover the king's debts, and to order the revenues of the crown. It had a common law jurisdiction, which was established merely for the benefit of the king’s accomptants. We learn from Blackstone, that the proceedings in this court are grounded on a writ called quo minus, in which the plaintiff suggests, that he is the king's farmer or debtor, and that the defendant has done him the damage complained of, by which he is less able to pay the king. These suits, by the statute of Rutland, are expressly directed to be confined to such matters as specially concern the king, or his ministers in the exchequer. And by the articuli super cartas, it is enacted, that no common pleas be thenceforth held in the exchequer contrary to the form of the great charter: but Copyright © 2012 Pearson Education, Inc. 255

now any person may sue in the exchequer. The surmise of being debtor to the king being matter of form, and mere words of court; and the court is open to all the nation.

When the courts will have a president before them of a court which extended its jurisdiction in opposition to an act of the legislature, it is not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorized to construe its meaning, and are not under any control?

This power in the judicial, will enable them to mold the government, into almost any shape they please.— The manner in which this may be effected we will hereafter examine.

BRUTUS.

BRUTUS, No. 12 (February 14, 1788) In my last, I showed, that the judicial power of the United States under the first clause of the second section of article three, would be authorized to explain the constitution, not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it such a construction as to extend the powers of the general government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states.

I shall now proceed to show how this power will operate in its exercise to effect these purposes.

In order to perceive the extent of its influence, I shall consider, First. How it will tend to extend the legislative authority.

Second. In what manner it will increase the jurisdiction of the courts, and Third. The way in which it will diminish, and destroy, both the legislative and judicial authority of the United States.

First. Let us inquire how the judicial power will effect an extension of the legislative authority.

Perhaps the judicial power will not be able, by direct and positive decrees, ever to direct the legislature, because it is not easy to conceive how a question can be brought before them in a course of legal discussion, in which they can give a decision, declaring, that the legislature have certain powers which they have not exercised, and which, in consequence of the determination of the judges, they will be bound to exercise. But it is easy to see, that in their adjudication’s they may establish certain principles, which being received by the legislature, will enlarge the sphere of their power beyond all bounds.

It is to be observed, that the supreme court has the power, in the last report, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature.

The latter can no more deprive the former of this right, than either of them, or both of them together, can take from the president, with the advice of the senate, the power of making treaties or appointing ambassadors.

In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed, by a course of decisions, will be adopted by the legislature, and will be the rule by Copyright © 2012 Pearson Education, Inc. 256

which they will explain their own powers. This appears evident from this consideration, that if the legislature pass laws, which, in the judgment of the court, they are not authorized to do by the constitution, the court will not take notice of them; for it will not be denied, that the constitution is the highest or supreme law. And the courts are vested with the supreme and uncontrollable power, to determine, in all cases that come before them, what the constitution means; they cannot, therefore, execute a law, which, in their judgment, opposes the constitution, unless we can suppose they can make a superior law give way to an inferior. The legislature, therefore, will not go over the limits by which the courts may adjudge they are confined. And there is little room to doubt but that they will come up to those bounds as often as occasion and opportunity may offer, and they may judge it proper to do it. For as on the one hand, they will not readily pass laws which they know the courts will not execute so on the other, we may be sure they will not scruple to pass such as they know they will give effect, as often as they may judge it proper.

From these observations it appears, that the judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers.

What the principles are, which the courts will adopt, it is impossible for us to say; but taking up the powers as I have explained them in my last number, which they will possess under this clause, it is not difficult to see, that they may, and probably will, be very liberal ones.

We have seen, that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.

To discover the spirit of the constitution, it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the preamble, in the following words, viz.

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution," etc. If the end of the government is to be learned from these words, which are clearly designed to declare it, it is obvious it has in view every object which is embraced by any government. The preservation of internal peace—the due administration of justice—and to provide for the defense of the community, seems to include all the objects of government; but if they do not, they are certainly comprehended in the words, "to provide for the general welfare." If it be further considered, that this constitution, if it is ratified, will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the United States, as one great body politic, no doubt can remain, but that the great end of the constitution, if it is to be collected from the preamble, in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal. The courts, therefore, will establish this as a principle in expounding, the constitution, and will give every part of it such an explanation, as will give latitude to every department under it, to take cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of private justice, and to regulating the internal and local affairs of the different parts.

Such a rule of exposition is not only consistent with the general spirit of the preamble, but it will stand confirmed by considering more minutely the different clauses of it.

The first object declared to be in view is, "To form a perfect union." It is to be observed, it is not a union of states or bodies corporate; had this been the case the existence of the state governments, might have been secured. But it is a union of the people of the United States considered as one boy, who are to ratify this constitution, if it is adopted. Now to make a union of Copyright © 2012 Pearson Education, Inc. 257

this kind perfect, it is necessary to abolish all inferior government, and to give the general one complete legislative, executive and judicial powers to every purpose. The courts therefore will establish it as a rule in explaining the constitution. To give it such a construction as will best tend to perfect the union or take from the state governments every power of either making or executing laws. The second object is "to establish justice." This must include not only the idea of instituting the rule of justice, or of making laws which shall be the measure or rule of right, but also of providing for the application of this rule or of administering justice under it. And under this the courts will in their decisions extend the power of the government to all cases they possibly can, or otherwise they will be restricted in doing what appears to be the intent of the constitution they should do, to wit, pass and provide for the execution of them, for the general distribution of justice between man and man. Another end declared is "to insure domestic tranquility." This comprehends a provision against all private breaches of the peace, as well as against all public commotion or general insurrections; and to attain the object of this clause fully, the government must exercise the power of passing laws on these subjects, as well as of appointing magistrates with authority to execute them. And the courts will adopt these ideas in their expositions. I might proceed to the other clause, in the preamble, and it would appear by a consideration of all of them separately, as it does by taking them together, that if the spirit of this system is to be known from its declared end and design in the preamble, its spirit is to subvert and abolish all the powers of the state government, and to embrace every object to which any government extends.

As it sets out in the preamble with this declared intention, so it proceeds in the different parts with the same idea. Any person, who will peruse the 8th section with attention, in which most of the powers are enumerated, will perceive that they either expressly or by implication extend to almost every thing about which any legislative power can be employed. But if this equitable mode of construction is applied to this part of the constitution; nothing can stand before it.

This will certainly give the first clause in that article a construction which I confess I think the most natural and grammatical one, to authorize the Congress to do any thing which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.

BRUTUS, No. 15 (March 20, 1788) I SAID in my last number, that the supreme court under this constitution would be exalted above all other powers in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe, the courts of law are put upon the most prudent establishment, they are on a very different footing.

The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union.—I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjuging that they are inconsistent with the constitution— much less are they vested with the power of giving equitable construction to the constitution.

Copyright © 2012 Pearson Education, Inc. 258

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will control the legislature, for the supreme court are authorized in the last report, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

I do not object to the judges holding their commissions during good behavior. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of these assertions, I beg liberty to make one remark—Though in my opinion the judges ought to hold their offices during good behavior, yet I think; it is clear, that the reasons in favor of this establishment of the judges in England, do by no means apply to this country.

The great reason assigned, why the judges in Britain ought to be commissioned during good behavior, is this, that they may be placed in a situation, not to be influenced by the crown, to give such decisions, as would tend to increase its powers and prerogatives. While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence. If the crown wished to carry a favorite point, to accomplish which the aid of courts of law was necessary, the pleasure of the king would be signified to the judges. And it required the spirit of a martyr, for the judges to determine contrary to the king’s will.— They were absolutely dependent upon him both for their offices and livings. The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods, or even for life. Hence the English nation gained a great point, in favor of liberty. When they obtained the appointment of the judges, during good behaviour, they got from the crown a concession, which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people. But these reasons do not apply to this country, we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children. The same arguments, therefore, which will conclude in favor of the tenor of the judge's offices for good behavior, lose a considerable part of their weight when applied to the state and condition of America. But much less can it be shown, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control.

I have said that the judges under this system will be independent in the strict sense of the word: To prove this I will show—That there is no power above them that can control their decisions, or correct their errors. There is no authority that can remove them from office for any errors or want

Copyright © 2012 Pearson Education, Inc. 259

of capacity, or lower their salaries and in many cases their power is superior to that of the legislature.

1st. There is no power above them that can correct their errors or control their decisions—The adjudication’s of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.—In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.

2d. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity.

It is expressly declared by the constitution,— "That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office."

The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that "the president, vise-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." By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors.—Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.

3d. The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorized to decide upon the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the constitution, they cannot assume any of the rights annexed to the judicial, for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs—both are derived from the same source, both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial.— The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away.

If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitutions of the country, contrary to the sense of the parliament, though the parliament will not set aside the judgment of the court, yet, they have authority, by a new law, to explain a former one, and by this means to prevent a reception of such decisions. But no such power is in the legislature. The judges are supreme—and no law, explanatory of the constitution, will be binding on them.

From the preceding remarks, which have been made on the judicial powers proposed in this system, the policy of it may be fully developed.

Copyright © 2012 Pearson Education, Inc. 260

I have, in the course of my observation on this constitution, affirmed and endeavored to show, that it was calculated to abolish entirely the state governments, and to melt down the states into one entire government, for every purpose as well internal and local, as external and national. In this opinion the opposers of the system have generally, agreed—and this has been uniformly denied by its advocates in public. Some individuals indeed, among them, will confess, that it has this tendency, and scruple not to say, it is what they wish; and I will venture to predict, without the spirit of prophecy, that if it is adoption without amendments, or some such precautions as will ensure amendments immediately after its adoption, that the same gentlemen who have employed their talents and abilities with such success to influence the public mind to adopt this plan, will employ the same to persuade the people, that it will be for their good to abolish the state governments as useless and burdensome.

Perhaps nothing could have been better conceived to facilitate the abolition of the state government than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the meantime all the art and addresses of those who wish for the change will be employed to make converts to their opinion.

The people will be told, that their state officers, and state legislatures are a burden and expense without affording any solid advantage, for that all the laws passed by them, might he equally well made by the general legislature. Is to those who will be interested in the change, be added, those who will be under their influence, and such who will submit to almost any change of government, which they can he persuaded to believe will ease them of taxes, it is easy to see, the party who will favor the abolition of the state governments would be far from being inconsiderable.—In this situation, the general legislature, might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution.—If the states remonstrated, the constitutional mode of deciding upon the validity of the law, is with the supreme court, and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees.

Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or fought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people choose at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.

BRUTUS

Copyright © 2012 Pearson Education, Inc. 261

Links for Other Historic Documents The Constitution of the United States and Other Founding Documents http://www.yale.edu/lawweb/avalon/avalon.htm The Federalist Papers (1787-1788) http://www.yale.edu/lawweb/avalon/avalon.htm The Constitution of the United States: Analysis and Interpretation (published by the U.S. Government Printing Office) http://www.loc.gov/law/help/guide/federal/usconst.html Articles of Confederation (1778) http://www.yale.edu/lawweb/avalon/artconf.htm The Founders’ Constitution, edited by Philip Kurland and Ralph Lerner (published by the University of Chicago Press, 1986) http://press-pubs.uchicago.edu/founders/

Copyright © 2012 Pearson Education, Inc. 262

Court Related Resources The Internet contains a wealth of resources related to the United States Supreme Court, constitutional law, and the judicial process. The list below includes some of the most helpful sites.

The U.S. Supreme Court http://www.supremecourtus.gov/index.html U.S. Supreme Court Decisions http://supct.law.cornell.edu/supct/ http://www.findlaw.com/casecode/supreme.html State and Lower Federal Court Decisions http://www.findlaw.com/casecode/cases.html Judicial Branch Resources http://www.gpoaccess.gov/ The Federal Judicial Center (This online reference contains "The History of the Federal Judiciary" plus a biographical database of federal judges since 1789.) http://www.fjc.gov National Center for State Courts http://www.ncsconline.org/ Oyez Oyez Oyez (Supreme Court Multimedia Database, including oral arguments) http://www.oyez.org/ Federal Judiciary Home Page (Maintained by the Administrative Office of U.S. Courts, this site provides the text of both current and back issues of The Third Branch newsletter, various reports and other publications, and press releases.) http://www.uscourts.gov/ The Constitution of the United States: Analysis and Interpretation (published by the U.S. Government Printing Office) http://www.loc.gov/law/help/guide/federal/usconst.html American Bar Association's LAWlink (This is a depository of links to dozens of law-related sites.) http://www.abanet.org/lawlink/ Law & Politics Book Review (This electronic journal is the best single source for timely reviews of recent books on constitutional law, the Supreme Court, and the judicial process generally.) http://www.bsos.umd.edu/gvpt/lpbr/

Copyright © 2012 Pearson Education, Inc. 263

Medill School of Journalism’s "On the Docket" (This online reference contains, among other things, information about pending and recently decided Supreme Court cases.) http://docket.medill.northwestern.edu/ Fedstats (This site facilitates location and access to statistics collected and disseminated by more than 70 agencies of the federal government.) http://www.fedstats.gov FirstGov (This general purpose official site promises "to provide the public with easy, one-stop access to all online U.S. Federal Government resources," including the judiciary.) http://www.firstgov.gov United States Code http://www.gpoaccess.gov/uscode/index.html http://uscode.house.gov/search/criteria.shtml Congressional Record http://thomas.loc.gov/ http://www.loc.gov Code of Federal Regulations http://www.gpoaccess.gov/cfr/index.html

Copyright © 2012 Pearson Education, Inc. 264

Cases Displaced from Previous Editions The Cases Displaced section recognizes the editorial reality that a new edition containing new cases requires the elimination of some cases from the previous edition. Thus, all edited cases that appeared in the older editions that could not be carried over into the current edition may be accessed here. In addition, a small number of important cases from even earlier editions are included too.

Adarand Constructors, Inc. v. Peña (1995) Arkansas v. Sanders (1979) Bowers v. Hardwick (1986) Buckley v. Valeo (1976) Hamdi v. Rumsfeld (2004) McCleskey v. Kemp (1987) Miller v. California (1973) R.A.V. v. City of St. Paul (1992) Regents v. Bakke (1978) Rutan v. Republican Party of Illinois (1990) School District of Abrington Township v. Schempp (1963) Shaw v. Reno (1993) Skinner v. Railway Labor Executives' Association (1989) United States v. Robinson (1973) Wisconsin v. Mitchell (1993) Atkins v. Virginia (2002) Davis v. Bandemer (1986) Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) Garcia v. San Antonio Metropolitan Transit Authority (1985) Kimel v. Florida Board of Regents (2000) National Endowment for the Arts v. Finley (1998) Nollan v. California Coastal Commission (1987) Reeves, Inc. v. Stake (1980) Reno v. American Civil Liberties Union (1997) Stenberg v. Carhart (2000) Texas v. White (1869)

Copyright © 2012 Pearson Education, Inc. 265

Adarand Constructors, Inc. v. Peña 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed. 2d 158 (1995) http://laws.findlaw.com/us/515/200.html Most federal agency contracts contain a subcontractor compensation clause which gives a prime contractor financial incentive to hire subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals. The clause also requires the contractor to presume that such individuals include minorities or any other individuals found to be disadvantaged by the Small Business Administration (SBA). In this case, the prime contractor under a federal highway construction contract containing such a clause awarded a subcontract to a company that was certified as a small disadvantaged business. Adarand Constructors, Inc., which submitted the low bid on the subcontract but was not a certified business, filed suit in the U.S. District Court for the District of Colorado against Secretary of Transportation Frederico Peña and other federal officials, claiming that the race-based presumptions used in subcontractor compensation clauses violate the equal protection component of the Fifth Amendment's due process clause. The District Court granted summary judgment for the government. In affirming, the Court of Appeals for the Tenth Circuit assessed the constitutionality of the federal race-based action under a standard resembling intermediate scrutiny, which it determined was required by Fullilove v. Klutznick (1980) and Metro Broadcasting, Inc. v. FCC (1990). Majority: O'Connor, Rehnquist, Scalia, Kennedy, Thomas. Dissenting: Stevens, Souter, Ginsburg, Breyer.

JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion for the Court with respect to the excerpts reprinted here, except insofar as they might be inconsistent with the views expressed in JUSTICE SCALIA'S concurrence.

Petitioner Adarand Constructors, Inc., claims that the Federal Government's practice of giving general contractors on government projects a financial incentive to hire subcontractors controlled by "socially and economically disadvantaged individuals," and in particular, the Government's use of race-based presumptions in identifying such individuals, violates the equal protection component of the Fifth Amendment's Due Process Clause.…

Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment, which provides that "No State shall … deny to any person within its jurisdiction the equal protection of the laws." Our cases have accorded varying degrees of significance to the difference in the language of those two Clauses. We think it necessary to revisit the issue here.…

Cases decided [since 1964] continued to treat the equal protection obligations imposed by the Fifth and the Fourteenth Amendments as indistinguishable.…

Most of the cases … involved classifications burdening groups that have suffered discrimination in our society. In 1978, the Court confronted the question whether race-based governmental action designed to benefit such groups should also be subject to "the most rigid scrutiny." Regents of Univ. of California v. Bakke involved an equal protection challenge to a state-run medical school's practice of reserving a number of spaces in its entering class for minority students. The petitioners argued that "strict scrutiny" should apply only to "classifications that disadvantage discrete and insular minorities." Bakke did not produce an opinion for the Court, but Justice Powell's opinion announcing the Court's judgment rejected the argument..…

Copyright © 2012 Pearson Education, Inc. 266

Two years after Bakke, the Court faced another challenge to remedial race-based action, this time involving action undertaken by the Federal Government. In Fullilove v. Klutznick, the Court upheld Congress' inclusion of a 10% set-aside for minority-owned businesses in the Public Works Employment Act of 1977. As in Bakke, there was no opinion for the Court.…

In Wygant v. Jackson Board of Ed. (1986), the Court considered a Fourteenth Amendment challenge to another form of remedial racial classification. The issue in Wygant was whether a school board could adopt race-based preferences in determining which teachers to lay off. Justice Powell's plurality opinion observed that "the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination," and stated the two-part inquiry as "whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored."…

The Court's failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the proper analysis for remedial race-based governmental action.…

The Court resolved the issue, at least in part, in 1989. Richmond v. J. A. Croson Co. concerned a city's determination that 30% of its contracting work should go to minority-owned businesses. A majority of the Court in Croson held that "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," and that the single standard of review for racial classifications should be "strict scrutiny."…

With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires for such action taken by the Federal Government. Croson observed simply that the Court's "treatment of an exercise of congressional power in Fullilove cannot be dispositive here," because Croson's facts did not implicate Congress' broad power under § 5 of the Fourteenth Amendment.…

Despite lingering uncertainty in the details, however, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination." Second, consistency: "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification."… And third, congruence: "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment."… Taken together, 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.…

A year later, however, the Court took a surprising turn. Metro Broadcasting, Inc. v. FCC (1990) involved a Fifth Amendment challenge to two race-based policies of the Federal Communications Commission. In Metro Broadcasting, the Court repudiated the long-held notion that "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on a State to afford equal protection of the laws. It did so by holding that "benign" federal racial classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny. "[B]enign" federal racial classifications, the Court said, "—even if those measures are not 'remedial' in the sense of being designed to compensate victims of past governmental or societal Copyright © 2012 Pearson Education, Inc. 267

discrimination—are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives." The Court did not explain how to tell whether a racial classification should be deemed "benign," other than to express "confiden[ce] that an 'examination of the legislative scheme and its history' will separate benign measures from other types of racial classifications."

Applying this test, the Court first noted that the FCC policies at issue did not serve as a remedy for past discrimination. Proceeding on the assumption that the policies were nonetheless "benign," it concluded that they served the "important governmental objective" of "enhancing broadcast diversity," and that they were "substantially related" to that objective. It therefore upheld the policies.

By adopting intermediate scrutiny as the standard of review for congressionally mandated "benign" racial classifications, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation of why strict scrutiny of all governmental racial classifications is essential: "Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.…"

We adhere to that view today, despite the surface appeal of holding "benign" racial classifications to a lower standard.…

Second, Metro Broadcasting squarely rejected one of the three propositions established by the Court's earlier equal protection cases, namely, congruence between the standards applicable to federal and state racial classifications, and in so doing also undermined the other two—skepticism of all racial classifications, and consistency of treatment irrespective of the race of the burdened or benefited group.…

The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race—a group classification long recognized as "in most circumstances irrelevant and therefore prohibited"—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court's understanding of equal protection, and holding "benign" state and federal racial classifications to different standards does not square with them. "[A] free people whose institutions are founded upon the doctrine of equality," should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons. Accordingly, we hold today 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. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled.…

Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced. The Court of Appeals, following Metro Broadcasting and Fullilove, analyzed the case in terms of intermediate scrutiny.… The Court of Appeals did not decide the question Copyright © 2012 Pearson Education, Inc. 268

whether the interests served by the use of subcontractor compensation clauses are properly described as "compelling." It also did not address the question of narrow tailoring in terms of our strict scrutiny cases, by asking, for example, whether there was "any consideration of the use of race-neutral means to increase minority business participation" in government contracting, or whether the program was appropriately limited such that it "will not last longer than the discriminatory effects it is designed to eliminate."…

Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE SCALIA, concurring in part and concurring in the judgment.

I join the opinion of the Court, except … insofar as it may be inconsistent with the following: In my view, government can never 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.… To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

JUSTICE THOMAS, concurring in part and concurring in the judgment.…

I write separately … to express my disagreement with the premise underlying [the] dissents: that there is a racial paternalism exception to the principle of equal protection..… Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.…

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, dissenting.

Instead of deciding this case in accordance with controlling precedent, the Court today delivers a disconcerting lecture about the evils of governmental racial classifications.…

The Court's concept of "consistency" assumes that there is no significant difference between a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority. In my opinion that assumption is untenable. There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. No sensible conception of the Government's constitutional obligation to "govern impartially" should ignore this distinction.…

The Court may find that its new "consistency" approach to race-based classifications is difficult to square with its insistence upon rigidly separate categories for discrimination against different classes of individuals. For example, as the law currently stands, the Court will apply "intermediate scrutiny" to cases of invidious gender discrimination and "strict scrutiny" to cases of invidious race discrimination, while applying the same standard for benign classifications as Copyright © 2012 Pearson Education, Inc. 269

for invidious ones. If this remains the law, then today's lecture about "consistency" will produce the anomalous result that the Government can more easily enact affirmative-action programs to remedy discrimination against women than it can enact affirmative-action programs to remedy discrimination against African Americans—even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves.… When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency.…

The Court's concept of "congruence" assumes that there is no significant difference between a decision by the Congress of the United States to adopt an affirmative-action program and such a decision by a State or a municipality. In my opinion that assumption is untenable. It ignores important practical and legal differences between federal and state or local decisionmakers.…

The Court's holding in Fullilove surely governs the result in this case. The Public Works Employment Act of 1977, which this Court upheld in Fullilove, is different in several critical respects from the portions of the Small Business Act (SBA) and the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA), challenged in this case. Each of those differences makes the current program designed to provide assistance to disadvantaged business enterprises (DBE's) significantly less objectionable than the 1977 categorical grant of $400 million in exchange for a 10% set-aside in public contracts to "a class of investors defined solely by racial characteristics."…

Unlike the 1977 Act, the present statutory scheme does not make race the sole criterion of eligibility for participation in the program. Race does give rise to a rebuttable presumption of social disadvantage which, at least under STURAA, gives rise to a second rebuttable presumption of economic disadvantage. But a small business may qualify as a DBE, by showing that it is both socially and economically disadvantaged, even if it receives neither of these presumptions. Thus, the current preference is more inclusive than the 1977 Act because it does not make race a necessary qualification.

More importantly, race is not a sufficient qualification. Whereas a millionaire with a long history of financial successes, who was a member of numerous social clubs and trade associations, would have qualified for a preference under the 1977 Act merely because he was an Asian American or an African American, neither the SBA nor STURAA creates any such anomaly. The DBE program excludes members of minority races who are not, in fact, socially or economically disadvantaged. The presumption of social disadvantage reflects the unfortunate fact that irrational racial prejudice—along with its lingering effects—still survives. The presumption of economic disadvantage embodies a recognition that success in the private sector of the economy is often attributable, in part, to social skills and relationships. Unlike the 1977 set-asides, the current preference is designed to overcome the social and economic disadvantages that are often associated with racial characteristics. If, in a particular case, these disadvantages are not present, the presumptions can be rebutted. The program is thus designed to allow race to play a part in the decisional process only when there is a meaningful basis for assuming its relevance.…

Significantly, the current program, unlike the 1977 set-aside, does not establish any requirement—numerical or otherwise—that a general contractor must hire DBE subcontractors.

The program we upheld in Fullilove required that 10% of the federal grant for every federally funded project be expended on minority business enterprises. In contrast, the current program contains no quota. Although it provides monetary incentives to general contractors to hire DBE

Copyright © 2012 Pearson Education, Inc. 270

subcontractors, it does not require them to hire DBE's, and they do not lose their contracts if they fail to do so.…

I would affirm the judgment of the Court of Appeals.

JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting … [omitted].

JUSTICE GINSBURG, with whom JUSTICE BREYER joins, dissenting … [omitted].

Copyright © 2012 Pearson Education, Inc. 271

Arkansas v. Sanders 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed. 2d 235 (1979) http://laws.findlaw.com/us/442/753.html An informant told police in Little Rock, Arkansas, that a suspect would arrive on a flight to the local airport carrying a green suitcase containing marijuana. Placing the air terminal under surveillance, police observed Lonnie James Sanders arrive and retrieve a green suitcase from the baggage service area. Sanders handed the suitcase to a companion named Rambo, who placed the suitcase in the trunk of a taxi. When the taxi drove away carrying Sanders, Rambo, and the green suitcase, the police gave chase and stopped the car. The taxi driver opened the trunk at the request of police and without asking either Sanders or Rambo for permission, they opened the unlocked suitcase and found 9.3 pounds of marijuana packed in ten plastic bags. On appeal, the Arkansas Supreme Court reversed their convictions, relying on United States v. Chadwick (1977), which overturned a conviction based on the warrantless search of a lawfully seized footlocker. Majority: Powell, Burger, Brennan, Stewart, White, Marshall, Stevens. Dissenting: Blackmun, Rehnquist.

MR. JUSTICE POWELL delivered the opinion of the Court.…

Only two Terms ago, we held that a locked footlocker could not lawfully be searched without a warrant, even though it had been loaded into the trunk of an automobile parked at a curb. United States v. Chadwick.… In earlier cases, on the other hand, the Court sustained the constitutionality of warrantless searches of automobiles and their contents under what has become known as the "automobile exception" to the warrant requirement. See, e.g., Chambers v. Maroney (1970); Carroll v. United States (1925). We thus are presented with the task of determining whether the warrantless search of respondent's suitcase falls on the Chadwick or the Chambers/Carroll side of the Fourth Amendment line. Although in a sense this is a line-drawing process, it must be guided by established principles.

We commence with a summary of these principles. The Fourth Amendment protects the privacy and security of persons in two important ways. First, it guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

In addition, this Court has interpreted the Amendment to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the Warrant Clause.… In the ordinary case, therefore, a search of private property must be both reasonable and pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment.… The prominent place the warrant requirement is given in our decisions reflects the "basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government."… By requiring that conclusions concerning probable cause and the scope of a search "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime," … we minimize the risk of unreasonable assertions of executive authority.…

Nonetheless, there are some exceptions to the warrant requirement.…

One of the circumstances in which the Constitution does not require a search warrant is when the police stop an automobile on the street or highway because they have probable cause to believe it contains contraband or evidence of a crime.… There are essentially two reasons for the Copyright © 2012 Pearson Education, Inc. 272

distinction between automobiles and other private property. First, as the Court repeatedly has recognized, the inherent mobility of automobiles often makes it impracticable to obtain a warrant.… In addition, the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property.

In the present case, the State argues that the warrantless search of respondent's suitcase was proper under Carroll and its progeny. The police acted properly—indeed commendably—in apprehending respondent and his luggage.…

The only question, therefore, is whether the police, rather than immediately searching the suitcase without a warrant, should have taken it, along with respondent, to the police station and there obtained a warrant for the search. A lawful search of luggage generally may be performed only pursuant to a warrant. In Chadwick, we declined an invitation to extend the Carroll exception to all searches of luggage, noting that neither of the two policies supporting warrantless searches of automobiles applies to luggage. Here, as in Chadwick, the officers had seized the luggage and had it exclusively within their control at the time of the search. Consequently, "there was not the slightest danger that [the luggage] or its contents could have been removed before a valid search warrant could be obtained."… And, as we observed in that case, luggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy.…

In sum, we hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations. Thus, insofar as the police are entitled to search such luggage without a warrant, their actions must be justified under some exception to the warrant requirement other than that applicable to automobiles stopped on the highway. Where—as in the present case—the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained. In this way, constitutional rights of suspects to prior judicial review of searches will be fully protected.

The judgment of the Arkansas Supreme Court is Affirmed.

MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE STEVENS joins, concurring in the judgment … [omitted].

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, dissenting.…

The impractical nature of the Court's line-drawing is brought into focus if one places himself in the position of the policeman confronting an automobile that properly has been stopped. In approaching the vehicle and its occupants, the officer must divide the world of personal property into three groups. If there is probable cause to arrest the occupants, then under Chimel v.

California, … he may search objects within the occupants' immediate control, with or without probable cause. If there is probable cause to search the automobile itself, then under Carroll and Chambers the entire interior area of the automobile may be searched, with or without a warrant.

But under Chadwick and the present case if any suitcase-like object is found in the car outside the immediate control area of the occupants, it cannot be searched, in the absence of exigent circumstances, without a warrant.…

Copyright © 2012 Pearson Education, Inc. 273

In my view, it would be better to adopt a clear-cut rule to the effect that a warrant should not be required to seize and search any personal property found in an automobile that may in turn be seized and searched without a warrant pursuant to Carroll and Chambers.… Such an approach would simplify the constitutional law of criminal procedure without seriously derogating from the values protected by the Fourth Amendment's prohibition of unreasonable searches and seizures.

Copyright © 2012 Pearson Education, Inc. 274

Bowers v. Hardwick 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d 140 (1986) http://laws.findlaw.com/us/478/186.html In 1982, police officers in Atlanta, Georgia, went to the home of Michael Hardwick because of a previous offense of public drunkenness. Someone at the home admitted the officers, saying that Hardwick was probably in the bedroom. When police entered, they found Hardwick in bed with another man committing acts that police concluded violated the state's sodomy statute: "A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another." At the time, approximately half the states in the Union had statutes similar to Georgia's. Authorities declined to prosecute Hardwick, but in 1983 he filed suit in the U.S. District Court for the Northern District of Georgia, seeking a declaratory judgment that the law was unconstitutional as applied to private sexual conduct between consenting adults. The district court dismissed Hardwick's complaint on the ground that his constitutional claims had been rejected without opinion by the Supreme Court in Doe v.

Commonwealth's Attorney (1976). In 1985, the U.S. Court of Appeals for the Eleventh Circuit reversed the district court, concluding that Georgia's sodomy statute infringed on Hardwick's fundamental rights of privacy and association and that the state would have to demonstrate a compelling interest in proscribing the conduct to validate the statute. Majority: White, Burger, O'Connor, Powell, Rehnquist. Dissenting: Blackmun, Brennan, Marshall, Stevens.

JUSTICE WHITE delivered the opinion of the Court. …

Because other Courts of Appeals have arrived at judgments contrary to that of the 11th Circuit in this case, we granted the state's petition for certiorari questioning the holding that its sodomy statute violates the fundamental rights of homosexuals. We agree with the state that the Court of Appeals erred, and hence reverse its judgment.

This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many states that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate.

We first register our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. Three cases were interpreted as construing the Due Process Clause of the 14th Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child.…

Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim

Copyright © 2012 Pearson Education, Inc. 275

that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process Clauses of the Fifth and 14th Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from Federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language.…

Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the states and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut … it was said that this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if (they) were sacrificed." A different description of fundamental liberties appeared in Moore v. East Cleveland … where they are characterized as those liberties that are "deeply rooted in the nation's history and tradition."…

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 states when they ratified the Bill of Rights. In 1868, when the 14th Amendment was ratified, all but 5 of the 37 states in the Union had criminal sodomy laws. In fact, until 1961, all 50 states outlawed sodomy, and today, 24 states and the District of Columbia continue to provide criminal penalties for sodomy performed in private between consenting adults. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clause of the Fifth and 14th Amendments. There should be, therefore, great resistance to expand the substantive reach of those clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.…

Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia … where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of his home.…

Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the Copyright © 2012 Pearson Education, Inc. 276

First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the 14th Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home.

Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, 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. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 states should be invalidated on this basis.

Accordingly, the judgment of the Court of Appeals is Reversed.

CHIEF JUSTICE BURGER, concurring … [omitted].

JUSTICE POWELL, concurring … [omitted].

JUSTICE BLACKMUN, with whom JUSTICES BRENNAN, MARSHALL, and STEVENS join, dissenting.

This case is no more about "a fundamental right to engage in homosexual sodomy," as the court purports to declare, than Stanley v. Georgia was about a fundamental right to watch obscene movies, or Katz v. United States … was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the most valued by civilized men," namely "the right to be let alone."…

In its haste to reverse the Court of Appeals and hold that the Constitution does not "confe(r) a fundamental right upon homosexuals to engage in sodomy," the Court relegates the actual statute being challenged to a footnote and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents.…

The sex or status of the persons who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a legislative purpose … that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity.…

The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference "bears any resemblance to the Copyright © 2012 Pearson Education, Inc. 277

claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." While it is true that these cases may be characterized by their connection to protection of the family, the Court's conclusion that they extend no further than this boundary ignores the warning in Moore v. East Cleveland … against "clos(ing) our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the 14th Amendment's Due Process Clause."…

We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual life. We protect the decision whether to marry precisely because marriage "is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects."… We protect the decision whether to have a child because parenthood alters so dramatically an individual's self-definition, not because of demographic considerations or the Bible's command to be fruitful and multiply. And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households.…

In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.... "A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different."… The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.

The behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance. The Court's treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behaviors, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there.

The Court's interpretation of the pivotal case of Stanley v. Georgia … is entirely unconvincing.

The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy.…

Petitioner and the Court fail to see the difference between laws that protect public sensibilities and those that enforce private morality. Statutes banning public sexual activity are entirely consistent with protecting the individual's liberty interest in decisions concerning sexual relations: the same recognition that those decisions are intensely private which justifies protecting them from governmental interference can justify protecting individuals from unwilling exposure to the sexual activities of others. But the mere fact that intimate behavior may be punished when it takes place in public cannot dictate how states can regulate intimate behavior that occurs in intimate places.

This case involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest, let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.

Copyright © 2012 Pearson Education, Inc. 278

I can only hope that the Court will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.

JUSTICE STEVENS, with whom JUSTICES BRENNAN and MARSHALL join, dissenting … [omitted].

[Several weeks after the decision in this case, Justice Powell explained to a meeting of appeals judges that, at conference, he had voted to invalidate the Georgia law but shortly changed his mind while the opinions were being written. In 1990 Justice Powell (by then retired) publicly stated that he had since concluded that his decision to uphold the statute was a mistake.

Twelve years after Bowers v. Hardwick, the Georgia Supreme Court held that the state's sodomy statute violated the right to privacy protected by the state constitution (Powell v. State, 1998). The ruling overturned the conviction of Anthony Powell, found guilty of sodomizing his 17-year-old niece in 1996. He had been charged with rape, but his lawyers argued that the sex was consensual and the jury acquitted on that charge. - ED.]

Copyright © 2012 Pearson Education, Inc. 279

Buckley v. Valeo 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed. 2d 659 (1976) http://laws.findlaw.com/us/424/1.html Amendments in 1974 to the Federal Election Campaign Act of 1971 and to the Internal Revenue Code established a system of limitations on contributions and expenditures in campaigns for federal office, set up public funding of presidential elections, and created the Federal Election Commission. This was "by far the most comprehensive reform legislation [ever] passed by Congress concerning the election of the President, Vice-President, and members of Congress," declared the U.S. Court of Appeals for the District of Columbia Circuit. U.S. Senator James L. Buckley of New York and others challenged the legislation on First Amendment and other grounds in the U.S. District Court for the District of Columbia. The district court certified the constitutional questions to the D.C. appeals court (to which President Ronald Reagan would appoint Buckley in 1985). The case was argued simultaneously to both the appeals court, sitting en banc, and a three-judge district court, the latter limiting its review to the public funding issue.

Except for one minor provision (from which no appeal was taken), the panels upheld the legislation in its entirety. The Supreme Court rendered its decision in a per curiam opinion because the bench divided differently in response to different parts of the law. With respect to limitations on contributions—majority: Brennan, Marshall, Powell, Rehnquist, Stewart, White; dissenting: Blackmun, Burger. With respect to limits on expenditures—majority: Blackmun, Brennan, Burger, Powell, Rehnquist, Stewart; dissenting (on one or more provisions): Marshall, White. With respect to public funding of presidential campaigns—majority: Blackmun, Brennan, Marshall, Powell, Stewart, White; dissenting (on one or more provisions): Burger, Rehnquist.

With respect to the Federal Election Commission—majority: Blackmun, Brennan, Burger, Marshall, Powell, Rehnquist, Stewart, White. Not participating: Stevens.

PER CURIAM. These appeals present constitutional challenges to the key provisions of the Federal Election Campaign Act of 1971 and related provisions of the Internal Revenue Code of 1954, all as amended in 1974. … The statutes at issue summarized in broad terms, contain the following provisions: (a) individual political contributions are limited to $1,000 to any single candidate per election, with an overall annual limitation of $25,000 by any contributor; independent expenditures by individuals and groups "relative to a clearly identified candidate" are limited to $1,000 a year; campaign spending by candidates for various federal offices and spending for national conventions by political parties are subject to prescribed limits; (b) contributions and expenditures above certain threshold levels must be reported and publicly disclosed; (c) a system for public funding of Presidential campaign activities is established by Subtitle H of the Internal Revenue Code; and (d) a Federal Election Commission is established to administer and enforce the legislation.…

I. CONTRIBUTION AND EXPENDITURE LIMITATIONS.…

A. General Principles The Act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.…

Copyright © 2012 Pearson Education, Inc. 280

The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama stemmed from the Court's recognition that "[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association." ...

It is with these principles in mind that we consider the primary contentions of the parties with respect to the Act's limitations upon the giving and spending of money in political campaigns.

Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act's limitations thus constitute restraints on First Amendment liberty that are both gross and direct.

In upholding the constitutional validity of the Act's contribution and expenditure provisions on the ground that those provisions should be viewed as regulating conduct, not speech, the Court of Appeals relied upon United States v. O'Brien.…

We cannot share the view that the present Act's contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O'Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card. Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.…

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

The expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate" would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication...

By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the Copyright © 2012 Pearson Education, Inc. 281

candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues.…

Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations.

The overall effect of the Act's contribution ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.

The Act's contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates. And the Act's contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act's $1,000 limitation on independent expenditures "relative to a clearly identified candidate" precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association.…

In sum, although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.

B. Contribution Limitations 1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees.…

It is unnecessary to look beyond the Act's primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions—in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.

Copyright © 2012 Pearson Education, Inc. 282

Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.…

The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign contributions—the narrow aspect of political association where the actuality and potential for corruption have been identified—while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.

Significantly, the Act's contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties.

We find that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.…

[Using similar reasoning, the Court upheld the contribution limitation for political action committees ($5,000) and the total contribution limit ($25,000) per calendar year.]

C. Expenditure Limitations The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech.… It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression "at the core of our electoral process and of the First Amendment freedoms."

1. The $1,000 Limitation on Expenditures "Relative to a Clearly Identified Candidate" Section 608 (e) (1) provides that "[n]o person may make any expenditure … relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000."

The plain effect of 608 (e) (1) is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, and all groups, except political parties and campaign organizations, from voicing their views "relative to a clearly identified candidate" through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement "relative to a clearly identified candidate" in a major metropolitan newspaper.…

We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify 608 (e) (1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, 608 (e) (1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts of money to candidates, 608 (e) (1) prevents only some large expenditures. So long as persons and groups eschew expenditures that in express terms advocate

Copyright © 2012 Pearson Education, Inc. 283

the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.…

Second, quite apart from the shortcomings of 608 (e) (1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.…

While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. … Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.… For the reasons stated, we conclude that 608 (e) (1)'s independent expenditure limitation is unconstitutional under the First Amendment.

2. Limitation on Expenditures by Candidates from Personal or Family Resources...

The ceiling on personal expenditures by candidates on their own behalf, like the limitations on independent expenditures contained in 608 (e) (1), imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression.…

The primary governmental interest served by the Act—the prevention of actual and apparent corruption of the political process—does not support the limitation on the candidate's expenditure of his own personal funds.… Indeed, the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed.

The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for 608 (a)'s expenditure ceiling.

That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates.

A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade others that he needs their financial contributions or volunteer efforts to conduct an effective campaign. Second, and more fundamentally, the First Amendment simply cannot tolerate 608 (a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that 608 (a)'s restriction on a candidate's personal expenditures is unconstitutional.

3. Limitations on Campaign Expenditures…

No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by 608 (c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions rather than by 608 (c)'s campaign expenditure ceilings.…

Copyright © 2012 Pearson Education, Inc. 284

The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns.… In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise.…

For these reasons we hold that 608 (c) is constitutionally invalid.

II. REPORTING AND DISCLOSURE REQUIREMENTS.…

[The Court found "no constitutional infirmities in the recordkeeping, reporting, and disclosure provisions of the Act."] III. REPORTING AND DISCLOSURE REQUIREMENTS.…

[The Court upholds the reporting and disclosure requirements.]

IV. THE FEDERAL ELECTION COMMISSION.…

[The Court finds that the method of appointment of members of the Federal Election Commission violates the appointment clause of Article II, because the commission has rulemaking, adjudicatory, and enforcement powers, in addition to investigatory powers.]

CONCLUSION In summary, we sustain the individual contribution limits, the disclosure and reporting provisions, and the public financing scheme. We conclude, however, that the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally infirm. Finally, we hold that most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by "Officers of the United States," appointed in conformity with Art. II, 2, cl. 2, of the Constitution, and therefore cannot be exercised by the Commission as presently constituted.…

So ordered.

MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part … [omitted].

MR. JUSTICE WHITE, concurring in part and dissenting in part … [omitted].

MR. JUSTICE MARSHALL, concurring in part and dissenting in part … [omitted].

MR. JUSTICE BLACKMUN, concurring in part and dissenting in part … [omitted].

MR. JUSTICE REHNQUIST, concurring in part and dissenting in part … [omitted].

Copyright © 2012 Pearson Education, Inc. 285

Hamdii v. Rumsfeld 72 U.S.L.W. 4607, 124 S.Ct. 2633, 159 L.Ed. 2d 578 (2004) http://supct.law.cornell.edu/supct/html/03-6696.ZS.html After Congress passed a resolution--the Authorization for Use of Military Force (AUMF)-empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Yaser Esam Hamdi, an American citizen whom the Government classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and later detained at a naval brig in Charleston, S. C. Hamdi's father filed a habeas petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the Government was holding his son in violation of the Fifth and Fourteenth Amendments. The government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration contained various details regarding Hamdi's affiliation with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The U.S. District Court for the Eastern District of Virginia found that the Mobbs Declaration, standing alone, did not support Hamdi's detention and ordered the government to turn over numerous materials for in camera review. The U.S. Court of Appeals for the Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the government's assertions was necessary or proper. Concluding that the factual claims in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U. S. C. §4001(a)--which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress"-- the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure. Majority (regarding the administration's position about Hamdi's detention): O'Connor, Breyer, Kennedy, Rehnquist, Thomas; dissenting: Ginsburg, Scalia, Souter, Stevens. Majority (regarding the administration's claim that Hamdi had been accorded adequate constitutional protection): O'Connor, Breyer, Ginsburg, Kennedy, Rehnquist, Scalia, Souter, Stevens. Dissenting: Thomas.

JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join.

At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

Copyright © 2012 Pearson Education, Inc. 286

On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these "acts of treacherous violence," Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Authorization for Use of Military Force ("the AUMF").. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.

This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an "enemy combatant," and that this status justifies holding him in the United States indefinitely-without formal charges or proceedings-unless and until it makes the determination that access to counsel or further process is warranted. …

The threshold question before us is whether the Executive has the authority to detain citizens who qualify as "enemy combatants." There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was "ïpart of or supporting forces hostile to the United States or coalition partners'" in Afghanistan and who "ïengaged in an armed conflict against the United States'" there. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF. Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi's principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U.S.C. §4001(a). Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Congress passed §4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U.S.C. §811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese internment camps of World War II…. The Government again presses two alternative positions. First, it argues that §4001(a), in light of its legislative history and its location in Title 18, applies only to "the control of civilian Copyright © 2012 Pearson Education, Inc. 287

prisons and related detentions," not to military detentions. Second, it maintains that §4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress"-the AUMF. Again, because we conclude that the Government's second assertion is correct, we do not address the first. … [T]he AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress" (assuming, without deciding, that §4001(a) applies to military detentions).

The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.

There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen…. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. … Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. … We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. …The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. …

Copyright © 2012 Pearson Education, Inc. 288

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. …The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF. Ex parte Milligan, (1866) does not undermine our holding about the Government's authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.

Moreover, … the Court in Quirin dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post, at 17-18 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan….

Even accepting that these cases once could have been viewed as standing for the sweeping proposition … that the military does not have authority to try an American citizen accused of spying against his country during wartime-Quirin makes undeniably clear that this is not the law today. Haupt… was accused of being a spy. The Court in Quirin found him "subject to trial and punishment by [a] military tribunal[ ]" for those acts, and held that his citizenship did not change this result.

Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent-particularly when doing so gives rise to a host of new questions never dealt with by this Court-is unjustified and unwise. …

Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that "extra- judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay" does not comport with the Fifth and Fourteenth Amendments. The Government counters that any more process than was provided below would be both unworkable and "constitutionally intolerable." Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.

Copyright © 2012 Pearson Education, Inc. 289

Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. Only in the rarest of circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. §2241. Further, all agree that §2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, §2243 provides that "the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts," and §2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.

The simple outline of §2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.

First, the Government urges the adoption of the Fourth Circuit's holding below-that because it is "undisputed" that Hamdi's seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi's seizure cannot in any way be characterized as "undisputed," as "those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances."

The Government's second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government's most extreme rendition of this argument, "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict" ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential "some evidence" standard. ...

In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law.... The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be "meaningful judicial review.".

Copyright © 2012 Pearson Education, Inc. 290

Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," is the test that we articulated in Mathews v. Eldridge (1976). Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards." We take each of these steps in turn.

It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi's "private interest ... affected by the official action," is the most elemental of liberty interests-the interest in being free from physical detention by one's own government. ...

Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for "[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual....

On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.... Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them....

The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis.

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. ...

With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. ...

Copyright © 2012 Pearson Education, Inc. 291

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. ... These essential constitutional promises may not be eroded.

At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding.

Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the "risk of erroneous deprivation" of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government.

We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Any fact-finding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one.

Likewise, arguments that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant's acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here....

In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube.Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.... Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its Copyright © 2012 Pearson Education, Inc. 292

head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process....

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government's case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns....

The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings.

It is so ordered.

JUSTICE SCALIA, with whom JUSTICE STEVENS joins, dissenting.

Petitioner, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the Court's evident unease as it seeks to reconcile the two, I do not agree with its resolution.

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause.

Accordingly, I would reverse the decision below. ...

Copyright © 2012 Pearson Education, Inc. 293

The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U. S. citizen. The case was not this Court's finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded; a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later. ...

It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause. But there is a world of difference between the people's representatives' determining the need for that suspension (and prescribing the conditions for it), and this Court's doing so. ...

The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared, "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free."

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it. Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

JUSTICE THOMAS, dissenting.

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners' habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge. I do not think that the Federal Government's war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government's compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent. ...

Copyright © 2012 Pearson Education, Inc. 294

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part, dissenting in part, and concurring in the judgment... [omitted].

Copyright © 2012 Pearson Education, Inc. 295

McCleskey v. Kemp 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed. 2d 262 (1987) http://laws.findlaw.com/us/481/279.html In 1978 Warren McCleskey, a black man, was convicted of murder and sentenced to death in Superior Court of Fulton County, Georgia. He had been charged with the killing of a white police officer during the robbery of a furniture store. On appeal, the Georgia Supreme Court affirmed, and the United States Supreme Court denied certiorari. McCleskey then filed a petition for a writ of habeas corpus in state court. Relief was denied, the state supreme court affirmed, and again the U.S. Supreme Court denied certiorari. McCleskey next filed a petition for a writ of habeas corpus in U.S. district court. Among his claims was that the capital sentencing process in Georgia was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. In support, counsel put forth a statistical study by David C. Baldus, George Woodworth, and Charles Pulanski ["Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience," 74 Journal of Criminal Law and Criminology 661 (1983)].

The study examined more than 2,000 murder cases in Georgia in the 1970s. Dividing the cases according to the combination of the race of the defendant and the race of the victim, the authors found that the death penalty was imposed in 22 percent of the cases involving a black defendant and a white victim, 8 percent of the cases with a white defendant and a white victim, 1 percent of the cases with a black defendant and a black victim, and 3 percent of the cases with a white defendant and a black victim. In further analysis, taking account of 39 nonracial variables, the authors showed that defendants charged with killing whites were 4.3 times as likely to receive the death sentence as those charged with killing blacks. McCleskey's counsel contended that black defendants who kill white victims have the greatest likelihood of receiving the death penalty.

In 1984 the district court questioned the study's methodology and concluded that the "statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern." In 1985 the Court of Appeals for the Eleventh Circuit, sitting en banc, assumed the validity of the study but found it "insufficient to demonstrate discriminatory intent or unconstitutional discrimination … [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis."

According to John C. Jeffries, Jr., Justice Powell's biographer, Powell changed his mind about his position in the McCleskey case after retiring from the Court. "I would vote the other way in any capital case.… I have come to think that capital punishment should be abolished." ["A Change of Mind That Came Too Late," New York Times, June 23, 1994, p. A23.] McCleskey failed again in the High Court in 1991 when it refused to consider a Sixth Amendment issue because he had not raised it previously (McCleskey v. Zant). Georgia authorities executed McCleskey on September 25, 1991. Majority: Powell, O'Connor, Rehnquist, Scalia, White. Dissenting: Brennan, Blackmun, Marshall, Stevens.

JUSTICE POWELL delivered the opinion of the Court.

This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.…

Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." A corollary to Copyright © 2012 Pearson Education, Inc. 296

this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect" on him.… Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination.

McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.…

Finally, McCleskey's statistical proffer must be viewed in the context of his challenge.

McCleskey challenges decisions at the heart of the State's criminal justice system. "[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder." Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsel against adopting such an inference from the disparities indicated by the Baldus study.

Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose.…

McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application.…

As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment … we will not infer a discriminatory purpose on the part of the State of Georgia.

Accordingly, we reject McCleskey's equal protection claims.

McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment. We begin our analysis of this claim by reviewing the restrictions on death sentences established by our prior decisions under that Amendment.…

In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.…

Because McCleskey's sentence was imposed under Georgia sentencing procedures that focus discretion "on the particularized nature of the crime and the particularized characteristics of the individual defendant," we lawfully may presume that McCleskey's death sentence was not "wantonly and freakishly" imposed, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment.

Copyright © 2012 Pearson Education, Inc. 297

Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. We now address this claim.

To evaluate McCleskey's challenge, we must examine exactly what the Baldus study may show.

Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case. Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. The question "is at what point that risk becomes constitutionally unacceptable." McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.…

At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.…

Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capitalsentencing process.…

Two additional concerns inform our decision in this case. First, McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.…

Second, McCleskey's arguments are best presented to the legislative bodies. It is not the responsibility—or indeed even the right—of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people."… Capital punishment is now the law in more than two thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey's wide ranging arguments that basically challenge the validity of capital punishment in our multi-racial society, the only question before us is whether in his case, the law of Georgia was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case.

Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.

It is so ordered.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BLACKMUN and JUSTICE STEVENS join in part, dissenting.…

Copyright © 2012 Pearson Education, Inc. 298

It is important to emphasize at the outset that the Court's observation that McCleskey cannot prove the influence of race on any particular sentencing decision is irrelevant in evaluating his Eighth Amendment claim. Since Furman v. Georgia, the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one.…

Defendants challenging their death sentences thus never have had to prove that impermissible considerations have actually infected sentencing decisions. We have required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence. McCleskey's claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate.…

McCleskey's statistics have particular force because most of them are the product of sophisticated multiple-regression analysis. Such analysis is designed precisely to identify patterns in the aggregate, even though we may not be able to reconstitute with certainty any individual decision that goes to make up that pattern. Multiple-regression analysis is particularly well-suited to identify the influence of impermissible considerations in sentencing, since it is able to control for permissible factors that may explain an apparent arbitrary pattern.…

The Court cites four reasons for shrinking from the implications of McCleskey's evidence: the desirability of discretion for actors in the criminal-justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role. While these concerns underscore the need for sober deliberation, they do not justify rejecting evidence as convincing as McCleskey has presented.

The Court maintains that petitioner's claim "is antithetical to the fundamental role of discretion in our criminal justice system." It states that "[w]here the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious."

Reliance on race in imposing capital punishment, however, is antithetical to the very rationale for granting sentencing discretion. Discretion is a means, not an end. It is bestowed in order to permit the sentencer to "trea[t] each defendant in a capital case with that degree of respect due the uniqueness of the individual."…

The Court also declines to find McCleskey's evidence sufficient in view of "the safeguards designed to minimize racial bias in the [capital sentencing] process."…

It has now been over 13 years since Georgia adopted the provisions upheld in Gregg. Professor Baldus and his colleagues have compiled data on almost 2500 homicides committed during the period 1973Ð1979. They have taken into account the influence of 230 nonracial variables, using a multitude of data from the State itself, and have produced striking evidence that the odds of being sentenced to death are significantly greater than average if a defendant is black or his or her victim is white. The challenge to the Georgia system is not speculative or theoretical; it is empirical.…

The Court next states that its unwillingness to regard the petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice.…

Copyright © 2012 Pearson Education, Inc. 299

Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of the "sober second thought."

JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, and with whom JUSTICE BRENNAN joins in part, dissenting … [omitted].

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting … [omitted].

Miller v. California 413 U.S. 5, 93 S.Ct. 2607, 37 L.Ed. 2d 419 (1973) http://laws.findlaw.com/us/413/5.html After a jury trial in a California state court, the defendant, who had mailed unsolicited advertising brochures containing pictures and drawings explicitly depicting sexual activities, was convicted of violating a California statute making it a misdemeanor knowingly to distribute obscene matter.

On appeal, the Superior Court of California, County of Orange, affirmed. Majority: Burger, Blackmun, Powell, Rehnquist, White. Dissenting: Brennan, Douglas, Marshall, Stewart.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem."

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.… … [I]t is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy … " materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating, All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.…

Nine years later, in Memoirs v. Massachusetts (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition

Copyright © 2012 Pearson Education, Inc. 300

… as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.…

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power.… We have seen a "variety of views among the members of the Court unmatched in any other course of constitutional adjudication."… This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.…

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.…

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test.… That concept has never commanded the adherence of more than three Justices at one time.… If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.… … We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.… For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence and other protective features provide, as we do with rape, murder and a host of other offenses against society and its individual members.…

Copyright © 2012 Pearson Education, Inc. 301

Under a national Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists.... To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.…

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.… People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.…

In sum we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment, (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is "utterly without redeeming social value," and (c) hold that obscenity is to be determined by applying "contemporary community standards" … not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion.

MR. JUSTICE DOUGLAS, dissenting … [omitted].

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.…

[The following is taken from Brennan's dissent in Paris Adult Theatre I v. Slaton (1973), the companion case to Miller v. California.]

Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments.... [W]e have failed to formulate a standard that sharply distinguishes protected from unprotected speech.... It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion.

Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our failure to reach a consensus on any one standard. But after 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials.…

The vagueness of the standards in the obscenity area produces a number of separate problems, and any improvement must rest on an understanding that the problems are to some extent distinct.

First, a vague statute fails to provide adequate notice to persons who are engaged in the type of conduct that the statute could be thought to proscribe. The Due Process Clause of the Fourteenth Amendment requires that all criminal laws provide fair notice of "what the State commands or Copyright © 2012 Pearson Education, Inc. 302

forbids."… In addition to problems that arise when any criminal statute fails to afford fair notice of what it forbids, a vague statute in the areas of speech and press creates a second level of difficulty. We have indicated that "stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser."…

As a result of our failure to define standards with predictable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal courts. That is not to say that these courts have performed badly in this area or paid insufficient attention to the principles we have established. The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so. The number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court.…

More important … the practice effectively censors protected expression by leaving lower court determinations of obscenity intact even though the status of the allegedly obscene material is entirely unsettled until final review here. In addition, the uncertainty of the standards creates a continuing source of tension between state and federal courts, since the need for an independent determination by this Court seems to render superfluous even the most conscientious analysis by state tribunals. And our inability to justify our decisions with a persuasive rationale—or indeed, any rationale at all—necessarily creates the impression that we are merely second-guessing state court judges....

In short, while I cannot say that the interests of the State—apart from the question of juveniles and unconsenting adults—are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation's judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults.… I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly "obscene" contents.

Copyright © 2012 Pearson Education, Inc. 303

R. A. V. v. City of St. Paul 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed. 2d 305 (1992) http://laws.findlaw.com/us/505/377.html The facts of this hate speech case are contained in Justice Scalia’s opinion. While unanimous in the result, the justices were sharply divided in their reasoning. Majority: Scalia, White, Blackmun, Rehnquist, Stevens, O’Connor, Kennedy, Souter, Thomas.

Justice Scalia delivered the opinion of the Court.

In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely-made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, which provides Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment. The trial court granted this motion, but the Minnesota Supreme Court reversed.

That court rejected petitioner’s overbreadth claim because the modifying phrase “arouses anger, alarm or resentment in others” limited the reach of the ordinance to conduct that amounts to “fighting words,” i.e., “conduct that itself inflicts injury or tends to incite immediate violence …” [citing Chaplinsky v. New Hampshire (1942)], and therefore the ordinance reached only expression “that the first amendment does not protect.” The court also concluded that the ordinance was not impermissibly content-based because, in its view, “the ordinance is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.”…

[W]e conclude that even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.…

Copyright © 2012 Pearson Education, Inc. 304

The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition … nor within a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable.… [T]he reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance.

Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul’s comments and concessions in this case elevate the possibility to a certainty.

Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But the “danger of censorship” presented by a facially content-based statute requires that that weapon be employed only where it is “necessary to serve the asserted [compelling] interest.” The existence of adequate content-neutral alternatives thus “undercut[s] significantly” any defense of such a statute.… The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul’s compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect. In fact the only interest distinctively served by the content limitation is that of displaying the city council’s special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility—but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree.

Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.

The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Justice White, with whom Justice Blackmun and Justice O’Connor join, and with whom Justice Stevens joins in part, concurring in the judgment.

I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed. However, our agreement ends there.… I would decide the case on overbreadth grounds.…

Copyright © 2012 Pearson Education, Inc. 305

Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that—however repugnant—is shielded by the First Amendment.

In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme Court relied upon two of the categories of speech and expressive conduct that fall outside the First Amendment’s protective sphere: words that incite “imminent lawless action,” Brandenburg v. Ohio, and “fighting” words, Chaplinsky v. New Hampshire. The Minnesota Supreme Court erred in its application of the Chaplinsky fighting words test and consequently interpreted the St. Paul ordinance in a fashion that rendered the ordinance facially overbroad.

In construing the St. Paul ordinance, the Minnesota Supreme Court drew upon the definition of fighting words that appears in Chaplinsky—words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” However, the Minnesota court was far from clear in identifying the “injur[ies]” inflicted by the expression that St. Paul sought to regulate. Indeed, the Minnesota court emphasized (tracking the language of the ordinance) that “the ordinance censors only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias.” I therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that “by its very utterance” causes “anger, alarm or resentment.”

Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.

In the First Amendment context, “[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment. The ordinance is therefore fatally overbroad and invalid on its face.…

Justice Blackmun, concurring in the judgment … [omitted].

Justice Stevens, with whom Justice White and Justice Blackmun join, concurring in the judgment ... [omitted].

Copyright © 2012 Pearson Education, Inc. 306

Regents of the University of California v. Bakke 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed. 2d 750 (1978) http://laws.findlaw.com/us/438/265.html The University of California at Davis opened its medical school in 1968 and soon began a special admissions program for certain minorities. The application for admission in 1974 asked candidates if they wanted to be considered as “Blacks,” “Chicanos,” “Asians,” or “American Indians.” Applications so marked were sent to a special committee. Sixteen of the 100 seats in the entering class were reserved for members of the four groups. These minority applicants could also compete for the remaining 84 seats. No white was ever admitted to the medical school through the special admissions program. In 1973 Allan Bakke applied late to the Davis medical school and was rejected. In 1974 he applied again, was again rejected, and filed suit on equal protection grounds. Bakke claimed that applicants with entrance examination scores and scholastic averages substantially lower than his had been admitted under the special program. The Superior Court of Yolo County agreed that the program violated the federal and state constitutions and Title VI of the 1964 Civil Rights Act, which proscribes racial discrimination in programs receiving federal financial assistance. The trial court, however, refused to order Bakke’s admission because he had not proved that he would have been admitted except for the existence of the special program. The Supreme Court of California upheld the lower court on the invalidity of the program but ordered Bakke’s admission to medical school. In the U.S. Supreme Court, alignment on the case was complex. The division that follows was on the issue of whether Bakke should be admitted to medical school. Majority: Powell, Stevens, Burger, Rehnquist, Stewart. Dissenting: Brennan, Blackmun, Marshall, White.

Mr. Justice Powell announced the judgment of the Court.…

Petitioner urges us to … hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.” The clock of our liberties, however, cannot be turned back to 1868. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.…

Once the artificial line of a “two-class theory” of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived “preferred” status of a particular racial or ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments.

As observed above, the white “majority” itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals.… Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence—even if they otherwise were politically feasible and socially desirable.

Copyright © 2012 Pearson Education, Inc. 307

Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign.… Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. Third, there is a measure of inequity in forcing innocent persons in respondent’s position to bear the burdens of redressing grievances not of their making.

By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces.…

We have held that in “order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary … to the accomplishment’ of its purpose or the safeguarding of its interest.” The special admissions program purports to serve the purposes of: (i) “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession”; (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classification.

If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. 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.…

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.…

Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality.… Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem.

The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. … The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity. Nor would the state interest in genuine diversity be served by expanding petitioner’s two-track system into a multitrack program with a prescribed number of seats set aside for each identifiable category of applicants. Indeed, it is inconceivable that a university would thus pursue the logic of petitioner’s two-track program to the illogical end of insulating each category of applicants with certain desired qualifications from competition with all other applicants. The experience of other university admissions programs, Copyright © 2012 Pearson Education, Inc. 308

which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end.…

[R]ace or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats.

The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional 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 will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.…

The fatal flaw in petitioner’s preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Such rights are not absolute. But when a State’s distribution of benefits or imposition of burdens hinges on ancestry or the color of a person’s skin or ancestry, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court’s judgment holding petitioner’s special admissions program invalid under the Fourteenth Amendment must be affirmed.

In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.…

Joint opinion of Mr. Justice Brennan, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun, concurring in part and dissenting in part.…

The assertion of human equality is closely associated with the proposition that differences in color or creed, birth or status, are neither significant nor relevant to the way in which persons should be treated. Nonetheless, the position that such factors must be “constitutionally an irrelevance,” summed up by the shorthand phrase “[o]ur Constitution is color-blind,” has never been adopted by this Court as the proper meaning of the Equal Protection Clause. Indeed, we have expressly rejected this proposition on a number of occasions.…

Respondent argues that racial classifications are always suspect and, consequently, that this Court should weigh the importance of the objectives served by Davis’ special admissions program to see if they are compelling. In addition, he asserts that this Court must inquire whether, Copyright © 2012 Pearson Education, Inc. 309

in its judgment, there are alternatives to racial classifications which would suit Davis’ purposes.

Petitioner, on the other hand, states that our proper role is simply to accept petitioner’s determination that the racial classifications used by its program are reasonably related to what it tells us are its benign purposes. We reject petitioner’s view, but because our prior cases are in many respects inapposite to that before us now, we find it necessary to define with precision the meaning of that inexact term, “strict scrutiny.”

Unquestionably we have held that a government practice or statute which restricts “fundamental rights” or which contains “suspect classifications” is to be subjected to “strict scrutiny” and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available. But no fundamental right is involved here. Nor do whites as a class have any of the “traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” . . .

On the other hand, the fact that this case does not fit neatly into our prior analytic framework for race cases does not mean that it should be analyzed by applying the very loose rational-basis standard of review that is the very least that is always applied in equal protection cases.… Instead, a number of considerations—developed in gender-discrimination cases but which carry even more force when applied to racial classifications—lead us to conclude that racial classifications designed to further remedial purposes “‘must serve important governmental objectives and must be substantially related to achievement of those objectives.’”

First, race, like “gender-based classifications too often [has] been inexcusably utilized to stereotype and stigmatize politically powerless segments of society.”…

Second, race, like gender and illegitimacy, is an immutable characteristic which its possessors are powerless to escape or set aside.…

Because this principle is so deeply rooted it might be supposed that it would be considered in the legislative process and weighed against the benefits of programs preferring individuals because of their race. But this is not necessarily so: The “natural consequence of our governing processes [may well be] that the most ‘discrete and insular’ of whites … will be called upon to bear the immediate, direct costs of benign discrimination.” Moreover, it is clear from our cases that there are limits beyond which majorities may not go when they classify on the basis of immutable characteristics. Thus, even if the concern for individualism is weighed by the political process, that weighing cannot waive the personal rights of individuals under the Fourteenth Amendment.

In sum, because of the significant risk that racial classifications established for ostensibly benign purposes can be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification. Instead, to justify such a classification an important and articulated purpose for its use must be shown. In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program. Thus, our review under the Fourteenth Amendment should be strict—not “‘strict’ in theory and fatal in fact,” because it is stigma that causes fatality—but strict and searching nonetheless.

Copyright © 2012 Pearson Education, Inc. 310

Davis’ articulated purpose of remedying the effects of past societal discrimination is, under our cases, sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the Medical School.…

Certainly, on the basis of the undisputed factual submissions before this Court, Davis had a sound basis for believing that the problem of underrepresentation of minorities was substantial and chronic and that the problem was attributable to handicaps imposed on minority applicants by past and present racial discrimination. Until at least 1973, the practice of medicine in this country was, in fact, if not in law, largely the prerogative of whites. In 1950, for example, while Negroes constituted 10% of the total population, Negro physicians constituted only 2.2% of the total number of physicians.… By 1970, the … number of Negroes employed in medicine remained frozen at 2.2% while the Negro population had increased to 11.1%. The number of Negro admittees to predominantly white medical schools, moreover, had declined in absolute numbers during the years 1955 to 1964.…

The second prong of our test—whether the Davis program stigmatizes any discrete group or individual and whether race is reasonably used in light of the program’s objectives—is clearly satisfied by the Davis program. It is not even claimed that Davis’ program in any way operates to stigmatize or single out any discrete and insular, or even any identifiable, non-minority group.…

True, whites are excluded from participation in the special admissions program, but this fact only operates to reduce the number of whites to be admitted in the regular admissions program in order to permit admission of a reasonable percentage—less than their proportion of the California population—of otherwise underrepresented qualified minority applicants. … [With] respect to any factor (such as poverty or family educational background) that may be used as a substitute for race as an indicator of past discrimination, whites greatly outnumber racial minorities simply because whites make up a far larger percentage of the total population and therefore far outnumber minorities in absolute terms at every socioeconomic level. For example, of a class of recent medical school applicants from families with less than $10,000 income, at least 71% were white. Of all 1970 families headed by a person not a high school graduate which included related children under 18, 80% were white and 20% were racial minorities. Moreover, while race is positively correlated with differences in GPA and MCAT scores, economic disadvantage is not. Thus, it appears that economically disadvantaged whites do not score less well than economically advantaged whites, while economically advantaged blacks score less well than do disadvantaged whites. These statistics graphically illustrate that the University’s purpose to integrate its classes by compensating for past discrimination could not be achieved by a general preference for the economically disadvantaged or the children of parents of limited education unless such groups were to make up the entire class.

Finally, Davis’ special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches. In any admissions program which accords special consideration to disadvantaged racial minorities, a determination of the degree of preference to be given is unavoidable, and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis.…

Copyright © 2012 Pearson Education, Inc. 311

Separate opinion of Mr. Justice White … [omitted].

Separate opinion of Mr. Justice Marshall … [omitted].

Separate opinion of Mr. Justice Blackmun … [omitted].

Mr. Justice Stevens, with whom the Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist join, concurring in the judgment in part and dissenting in part.

It is always important at the outset to focus precisely on the controversy before the Court.… Section 601 of the Civil Rights Act of 1964 provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below.…

Copyright © 2012 Pearson Education, Inc. 312

<="" i="">Republican Party of Illinois 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed. 2d 52 (1990) http://laws.findlaw.com/us/497/62.html In November 1980, Illinois Governor James Thompson put in place a hiring freeze for all state agencies under his control. Exceptions were allowed only with the governor’s permission.

Cynthia Rutan, Franklin Taylor, James Moore, Ricky Standefer, and Dan O’Brien charged in a suit filed in the U.S. District Court for the Central District of Illinois that the governor’s office used the policy to operate a system of political patronage to limit state employment and employment-related decisions to those who supported the Republican Party. According to the suit, party consideration cost Rutan and Taylor promotions, prevented Moore from being hired, and blocked Standefer and O’Brien from being recalled after layoffs. The district court dismissed the suit. The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part, concluding that patronage practices violate the First Amendment only when they are the “substantial equivalent of a dismissal.” Accordingly, Moore’s claim was groundless because the First Amendment did not reach hiring decisions. For the others, the appeals court remanded the case for further proceedings. The Supreme Court limited its grant of review to the question whether the First Amendment’s proscription of patronage dismissals extended to promotions, recalls, and hiring. Majority: Brennan, Marshall, Blackmun, Stevens, White. Dissenting: Scalia, Rehnquist, O’Connor, Kennedy.

Justice Brennan delivered the opinion of the Court.

To the victor belong only those spoils that may be constitutionally obtained. Elrod v.

Burns (1976), and Branti v. Finkel (1980) decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices—whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.…

Respondents argue that the employment decisions at issue here do not violate the First Amendment because the decisions are not punitive, do not in any way adversely affect the terms of employment, and therefore do not chill the exercise of protected belief and association by public employees. This is not credible. Employees who find themselves in dead-end positions due to their political backgrounds are adversely affected. They will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold, in order to progress up the career ladder. Employees denied transfers to workplaces reasonably close to their homes until they join and work for the Republican Party will feel a daily pressure from their long commutes to do so. And employees who have been laid off may well feel compelled to engage in whatever political activity is necessary to regain regular paychecks and positions corresponding to their skill and experience.

The same First Amendment concerns that underlay our decisions in Elrod and Branti are implicated here. Employees who do not compromise their beliefs stand to lose the considerable increases in pay and job satisfaction attendant to promotions, the hours and maintenance expenses that are consumed by long daily commutes, and even their jobs if they are not rehired Copyright © 2012 Pearson Education, Inc. 313

after a “temporary” layoff. These are significant penalties and are imposed for the exercise of rights guaranteed by the First Amendment. Unless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms.

We find, however, that our conclusions in Elrod and Branti are equally applicable to the patronage practices at issue here. A government’s interest in securing effective employees can be met by discharging, demoting or transferring staff members whose work is deficient. A government’s interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views. Likewise, the “preservation of the democratic process” is no more furthered by the patronage promotions, transfers, and rehires at issue here than it is by patronage dismissals.

First, “political parties are nurtured by other, less intrusive and equally effective methods.”

Political parties have already survived the substantial decline in patronage employment practices in this century.…

Second, patronage decidedly impairs the elective process by discouraging free political expression by public employees. Respondents, who include the Governor of Illinois and other state officials, do not suggest any other overriding government interest in favoring Republican Party supporters for promotion, transfer, and rehire.

We therefore determine that promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees. In doing so, we reject the Seventh Circuit’s view of the appropriate constitutional standard by which to measure alleged patronage practices in government employment. The Seventh Circuit proposed that only those employment decisions that are the “substantial equivalent of a dismissal” violate a public employee’s rights under the First Amendment. We find this test unduly restrictive because it fails to recognize that there are deprivations less harsh than dismissal that nevertheless press state employees and applicants to conform their beliefs and associations to some state-selected orthodoxy. The First Amendment is not a tenure provision, protecting public employees from actual or constructive discharge. The First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees’ freedom to believe and associate, or to not believe and not associate.

Whether the four employees were in fact denied promotions, transfers, or rehire for failure to affiliate with and support the Republican Party is for the District Court to decide in the first instance. What we decide today is that such denials are irreconcilable with the Constitution and that the allegations of the four employees state claims under 42 U. S. C. § 1983 for violations of the First and Fourteenth Amendments. Therefore, although we affirm the Seventh Circuit’s judgment to reverse the District Court’s dismissal of these claims and remand them for further proceedings, we do not adopt the Seventh Circuit’s reasoning.

Petitioner James W. Moore presents the closely related question whether patronage hiring violates the First Amendment. Patronage hiring places burdens on free speech and association similar to those imposed by the patronage practices discussed above. A state job is valuable. Like most employment, it provides regular paychecks, health insurance, and other benefits. In addition, there may be openings with the State when business in the private sector is slow. There are also occupations for which the government is a major (or the only) source of

Copyright © 2012 Pearson Education, Inc. 314

employment, such as social workers, elementary school teachers, and prison guards. Thus, denial of a state job is a serious privation.…

Almost half a century ago, this Court made clear that the government “may not enact a regulation providing that no Republican … shall be appointed to federal office.” What the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly.

If Moore’s employment application was set aside because he chose not to support the Republican Party, as he asserts, then Moore’s First Amendment rights have been violated.

Therefore, we find that Moore’s complaint was improperly dismissed.

We hold that the rule of Elrod and Branti extends to promotion, transfer, recall, and hiring decisions based on party affiliation.…We affirm the Seventh Circuit insofar as it remanded Rutan’s, Taylor’s, Standefer’s, and O’Brien’s claims. However, we reverse the Circuit Court’s decision to uphold the dismissal of Moore’s claim. All five claims are remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Stevens, concurring … [omitted].

Justice Scalia, with whom The Chief Justice, Justice Kennedy and Justice O’Connor join, dissenting.

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an “appropriate requirement.” It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare.

Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil-service legislation at both the state and federal levels. But there is another point of view, described in characteristically Jacksonian fashion by an eminent practitioner of the patronage system, George Washington Plunkitt of Tammany Hall:

I ain’t up on sillygisms, but I can give you some arguments that nobody can answer. First, this great and glorious country was built up by political parties; second, parties can’t hold together if their workers don’t get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there’ll be hell to pay.

Copyright © 2012 Pearson Education, Inc. 315

It may well be that the Good Government Leagues of America were right, and that Plunkitt, James Michael Curley and their ilk were wrong; but that is not entirely certain. As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by “party discipline,” before the demands of small and cohesive interest-groups.

The choice between patronage and the merit principle—or, to be more realistic about it, the choice between the desirable mix of merit and patronage principles in widely varying federal, state, and local political contexts—is not so clear that I would be prepared, as an original matter, to chisel a single, inflexible prescription into the Constitution. Fourteen years ago, in Elrod, the Court did that. Elrod was limited however, as was the later decision of Branti to patronage firings, leaving it to state and federal legislatures to determine when and where political affiliation could be taken into account in hirings and promotions. Today the Court makes its constitutional civil-service reform absolute, extending to all decisions regarding government employment. Because the First Amendment has never been thought to require this disposition, which may well have disastrous consequences for our political system, I dissent.…

The Court limits patronage on the ground that the individual’s interest in uncoerced belief and expression outweighs the systemic interests invoked to justify the practice. The opinion indicates that the government may prevail only if it proves that the practice is “narrowly tailored to further vital government interests.”

That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when “the governmental function operating … [is] not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage [its] internal operatio[ns].…”

When dealing with its own employees, the government may not act in a manner that is “patently arbitrary or discriminatory,” but its regulations are valid if they bear a “rational connection” to the governmental end sought to be served.…

For purposes of my ensuing discussion, however, I will apply a less permissive standard that seems more in accord with our general “balancing” test: can the governmental advantages of this employment practice reasonably be deemed to outweigh its “coercive” effects?…

The Court holds that the governmental benefits of patronage cannot reasonably be thought to outweigh its “coercive” effects (even the lesser “coercive” effects of patronage hiring as opposed to patronage firing) not merely in 1990 in the State of Illinois, but at any time in any of the numerous political subdivisions of this vast country. It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting political stability and facilitating the social and political integration of previously powerless groups.

The whole point of my dissent is that the desirability of patronage is a policy question to be decided by the people’s representatives; I do not mean, therefore, to endorse that system. But in order to demonstrate that a legislature could reasonably determine that its benefits outweigh its “coercive” effects, I must describe those benefits as the proponents of patronage see them: As Justice Powell discussed at length in his Elrod dissent, patronage stabilizes political parties and Copyright © 2012 Pearson Education, Inc. 316

prevents excessive political fragmentation—both of which are results in which States have a strong governmental interest. Party strength requires the efforts of the rank-and-file, especially in “the dull periods between elections,” to perform such tasks as organizing precincts, registering new voters, and providing constituent services. Even the most enthusiastic supporter of a party’s program will shrink before such drudgery, and it is folly to think that ideological conviction alone will motivate sufficient numbers to keep the party going through the off-years. “For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties.” Here is the judgment of one such politician, Jacob Arvey (best known as the promoter of Adlai Stevenson): Patronage is “‘a necessary evil if you want a strong organization, because the patronage system permits of discipline, and without discipline, there’s no party organization.’”…

The Court simply refuses to acknowledge the link between patronage and party discipline, and between that and party success. It relies (as did the plurality in Elrod) on a single study of a rural Pennsylvania county …—a work that has been described as “more persuasive about the ineffectuality of Democratic leaders in Centre County than about the generalizability of [its] findings.” It is unpersuasive to claim, as the Court does, that party workers are obsolete because campaigns are now conducted through media and other money-intensive means. Those techniques have supplemented but not supplanted personal contacts. Certainly they have not made personal contacts unnecessary in campaigns for the lower-level offices that are the foundations of party strength, nor have they replaced the myriad functions performed by party regulars not directly related to campaigning. And to the extent such techniques have replaced older methods of campaigning (partly in response to the limitations the Court has placed on patronage), the political system is not clearly better off.…

It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, “[p]olitical parties have already survived the substantial decline in patronage employment practices in this century.” This is almost verbatim what was said in Elrod. Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 18 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 98% of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, the statement that “political parties have already survived” has a positively whistling-in-the-graveyard character to it. Parties have assuredly survived—but as what? As the forges upon which many of the essential compromises of American political life are hammered out? Or merely as convenient vehicles for the conducting of national presidential elections?…

Equally apparent is the relatively destabilizing nature of a system in which candidates cannot rely upon patronage-based party loyalty for their campaign support, but must attract workers and raise funds by appealing to various interest-groups.…

While the patronage system has the benefits argued for above, it also has undoubted disadvantages. It facilitates financial corruption, such as salary kickbacks and partisan political activity on government-paid time. It reduces the efficiency of government, because it creates incentives to hire more and less-qualified workers and because highly qualified workers are reluctant to accept jobs that may only last until the next election. And, of course, it applies some greater or lesser inducement for individuals to join and work for the party in power.

Copyright © 2012 Pearson Education, Inc. 317

To hear the Court tell it, this last is the greatest evil. That is not my view, and it has not historically been the view of the American people. Corruption and inefficiency, rather than abridgement of liberty, have been the major criticisms leading to enactment of the civil-service laws—for the very good reason that the patronage system does not have as harsh an effect upon conscience, expression, and association as the Court suggests.… What the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself rather than a set of political beliefs. He is generally free to urge within the organization the adoption of any political position; but if that position is rejected he must vote and work for the party nonetheless. The diversity of political expression (other than expression of party loyalty) is channeled, in other words, to a different stage—to the contests for party endorsement rather than the partisan elections.…

Copyright © 2012 Pearson Education, Inc. 318

School District of Abington Township v. Schempp 374 U.S. 203, 83 S. Ct. 1560, 10 L.Ed. 2d 844 (1963) http://laws.findlaw.com/us/374/203.html In Engel v. Vitale (1962), the Supreme Court held invalid a nonsectarian prayer prescribed for opening daily public school sessions in New York State. The ruling set off the most intense public criticism of the Court since the celebrated 1954 school integration case (see Chapter Fourteen). In 1963, the Court was confronted with another issue of broad significance for religious freedom: Did the Constitution forbid a state requirement of the recitation of the Lord’s Prayer or reading of passages from the Bible in public schools? A three-judge panel of the United States District Court for the Eastern District of Pennsylvania struck down a Pennsylvania statute, while the Maryland Court of Appeals refused to hold a similar school rule in Baltimore unconstitutional. Majority: Clark, Warren, Black, Douglas, Brennan, Harlan, White, Goldberg.

Dissenting: Stewart.

Mr. Justice Clark delivered the opinion of the Court....

It is true that religion has been closely identified with our history and government.… The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, “So help me God.” Likewise each House of the Congress provides through its Chaplain an opening prayer, and the sessions of this Court are declared open by the crier in a short ceremony, the final phrase of which invokes the grace of God. Again, there are such manifestations in our military forces, where those of our citizens who are under the restrictions of military service wish to engage in voluntary worship.…

This is not to say, however, that religion has been so identified with our history and government that religious freedom is not likewise as strongly imbedded in our public and private life.… This freedom to worship was indispensable in a country whose people came from the four quarters of the earth and brought with them a diversity of religious opinion.…

The wholesome “neutrality” of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.... The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.… The Free Exercise Clause, likewise considered many times here, withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary to a free exercise case for one to show Copyright © 2012 Pearson Education, Inc. 319

the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school.

They are held in the school buildings under the supervision and with the participation of teachers employed in those schools.… The trial court … has found that such an opening exercise is a religious ceremony and was intended by the State to be so. We agree with the trial court’s finding as to the religious character of the exercises. Given that finding the exercises and the law requiring them are in violation of the Establishment Clause. … The conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are those required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties.”…

It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historical qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion. … The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind.

We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment in [the Pennsylvania case]. In [the Maryland case], the judgment is reversed and the cause remanded to the Maryland Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

Copyright © 2012 Pearson Education, Inc. 320

Mr. Justice Douglas, concurring … [omitted].

Mr. Justice Brennan, concurring.…

A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected for several reasons: First, on our precise problem the historical record is at best ambiguous, and statements can readily be found to support either side of the proposition. The ambiguity of history is understandable if we recall the nature of the problems uppermost in the thinking of the statesmen who fashioned the religious guarantees; they were concerned with far more flagrant intrusions of government into the realm of religion than any that our century has witnessed. While it is clear to me that the Framers meant the Establishment Clause to prohibit more than the creation of an established federal church such as existed in England, I have no doubt that, in their preoccupation with the imminent question of established churches, they gave no distinct consideration to the particular question whether the clause also forbade devotional exercises in public institutions.

Second, the structure of American education has greatly changed since the First Amendment was adopted. In the context of our modern emphasis upon public education available to all citizens, any views of the eighteenth century as to whether the exercises at bar are an “establishment” offer little aid to decision. Education, as the Framers knew it, was in the main confined to private schools more often than not under strictly sectarian supervision. Only gradually did control of education pass largely to public officials. It would, therefore, hardly be significant if the fact was that the nearly universal devotional exercises in the schools of the young Republic did not provoke criticism; even today religious ceremonies in church-supported private schools are constitutionally unobjectionable.

Third, our religious composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among Protestant sects. Today the Nation is far more heterogeneous religiously, including as it does substantial minorities not only of Catholics and Jews but as well of those who worship according to no version of the Bible and those who worship no God at all. In the face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.

Whatever Jefferson or Madison would have thought of Bible reading or the recital of the Lord’s Prayer in what few public schools existed in their day, our use of the history of their time must limit itself to broad purposes, not specific practices. By such a standard, I am persuaded, as is the Court, that the devotional exercises carried on in the Baltimore and Abington schools offend the First Amendment because they sufficiently threaten in our day those substantive evils the fear of which called forth the Establishment Clause of the First Amendment. ...

Mr. Justice Goldberg, with whom Mr. Justice Harlan joins, concurring … [omitted].

Mr. Justice Stewart, dissenting.…

We err in the first place if we do not recognize, as a matter of history and as a matter of the imperatives of our free society, that religion and government must necessarily interact in countless ways. Secondly, the fact is that while in many contexts the Establishment Clause and the Free Exercise Clause fully complement each other, there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause.

Copyright © 2012 Pearson Education, Inc. 321

A single obvious example should suffice to make the point. Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. And such examples could readily be multiplied. The short of the matter is simply that the two relevant clauses of the First Amendment cannot accurately be reflected in a sterile metaphor which by its very nature may distort rather than illumine the problems involved in a particular case.…

The dangers both to government and to religion inherent in official support of instruction in the tenets of various religious sects are absent in the present cases, which involve only a reading from the Bible unaccompanied by comments which might otherwise constitute instruction. Indeed, since, from all that appears in either record, any teacher who does not wish to do so is free not to participate, it cannot even be contended that some infinitesimal part of the salaries paid by the State are made contingent upon the performance of a religious function.

In the absence of evidence that the legislature or school board intended to prohibit local schools from substituting a different set of readings where parents requested such a change, we should not assume that the provisions before us—as actually administered—may not be construed simply as authorizing religious exercises, nor that the designations may not be treated simply as indications of the promulgating body’s view as to the community’s preference. We are under a duty to interpret these provisions so as to render them constitutional if reasonably possible.…

It is clear that the dangers of coercion involved in the holding of religious exercises in a schoolroom differ qualitatively from those presented by the use of similar exercises or affirmations in ceremonies attended by adults. Even as to children, however, the duty laid upon government in connection with religious exercises in the public schools is that of refraining from so structuring the school environment as to put any kind of pressure on a child to participate in those exercises; it is not that of providing an atmosphere in which children are kept scrupulously insulated from any awareness that some of their fellows may want to open the school day with prayer, or of the fact that there exist in our pluralistic society differences of religious belief.…

To be specific, it seems to me clear that certain types of exercises would present situations in which no possibility of coercion on the part of secular officials could be claimed to exist. Thus, if such exercises were held either before or after the official school day, or if the school schedule were such that participation were merely one among a number of desirable alternatives, it could hardly be contended that the exercises did anything more than to provide an opportunity for the voluntary expression of religious belief. On the other hand, a law which provided for religious exercises during the school day and which contained no excusal provision would obviously be unconstitutionally coercive upon those who did not wish to participate. And even under a law containing an excusal provision, if the exercises were held during the school day, and no equally desirable alternative were provided by the school authorities, the likelihood that children might be under at least some psychological compulsion to participate would be great. In a case such as the latter, however, I think we would err if we assumed such coercion in the absence of any evidence. … What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government. It is conceivable that these school boards, or even all school boards, might eventually find it impossible to administer a system of religious exercises during school hours in Copyright © 2012 Pearson Education, Inc. 322

such a way as to meet this constitutional standard—in such a way as completely to free from any kind of official coercion those who do not affirmatively want to participate. But I think we must not assume that school boards so lack the qualities of inventiveness and good will as to make impossible the achievement of that goal.

I would remand both cases for further hearings.

Copyright © 2012 Pearson Education, Inc. 323

Shaw v. Reno 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed. 2d 511 (1993) http://laws.findlaw.com/us/509/630.html Section 5 of the 1965 Voting Rights Act prohibits covered jurisdictions from implementing changes in a “standard, practice, or procedure with respect to voting” without first obtaining federal authorization. As a result of the 1990 census, North Carolina was entitled to a twelfth seat in the U.S. House of Representatives. The first reapportionment plan adopted by the state General Assembly contained one majority-black district in the northeastern part of the state. Acting under § 5, the U.S. Attorney General objected because a second majority-black district could have been created in the southeast. In 1991 the General Assembly revised the reapportionment plan to contain a second majority-black district that was located in the central region and stretched for 160 miles along the Interstate 85 corridor. The Attorney General did not object to the second plan. Five state residents then sued federal and state officials, claiming that the plan amounted to a racial gerrymander in violation of, among other things, the Fourteenth Amendment. In 1992 a three-judge panel of the U.S. District Court for the Eastern District of North Carolina ruled unanimously that it lacked subject matter jurisdiction over the federal officials and voted 2–1 to dismiss the suit against the state officials because of the absence of a cognizable claim under the equal protection clause. Citing United Jewish Organizations of Williamsburgh, Inc. v. Carey (1977), the district court concluded that favoring minority voters was not unconstitutionally discriminatory and that North Carolina’s plan did not result in underrepresentation of white voters statewide.

After the Supreme Court’s decision reprinted below, the district court, on remand, upheld North Carolina’s congressional apportionment in 1994 , finding the plan narrowly tailored to a compelling government interest: compliance with the Voting Rights Act and a modest, overdue measure of power sharing. In 1996 the Supreme Court reversed, 5–4, citing Miller v. Johnson (1995) as authority. Chief Justice Rehnquist’s opinion of the Court in Shaw v. Hunt (Shaw II) declared that race had been the predominant consideration in the redistricting, displacing raceneutral redistricting principles. Moreover, the race-based districting in question was not required to comply with the Voting Rights Act. The Court’s ruling in Shaw II was limited to District 12; District 1 had been dropped from the litigation because the white voters who mounted the original challenge had since moved out of the district. Majority: O’Connor, Kennedy, Rehnquist, Scalia, Thomas. Minority: White, Blackmun, Souter, Stevens.

Justice O’Connor delivered the opinion of the Court.

This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional “right” to vote, and the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups.… Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, constitutes an unconstitutional racial gerrymander. The question before us is whether appellants have stated a cognizable claim.…

The first of the two majority-black districts contained in the revised plan, District 1, is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with finger-like extensions, it reaches far into the southernmost part

Copyright © 2012 Pearson Education, Inc. 324

of the State near the South Carolina border. District 1 has been compared to a “Rorschach inkblot test,” and a “bug splattered on a windshield.”

The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the I-85 corridor. It winds in snake-like fashion through tobacco country, financial centers, and manufacturing areas “until it gobbles in enough enclaves of black neighborhoods.” Northbound and southbound drivers on I-85 sometimes find themselves in separate districts in one county, only to “trade” districts when they enter the next county. Of the 10 counties through which District 12 passes, five are cut into three different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. One state legislator has remarked that “‘[i]f you drove down the interstate with both car doors open, you’d kill most of the people in the district.’”

The Fifteenth Amendment, ratified in 1870 after a bloody Civil War, promised unequivocally that “[t]he right of citizens of the United States to vote” no longer would be “denied or abridged … by any State on account of race, color, or previous condition of servitude.”

But “[a] number of states … refused to take no for an answer and continued to circumvent the fifteenth amendment’s prohibition through the use of both subtle and blunt instruments, perpetuating ugly patterns of pervasive racial discrimination.” Ostensibly race-neutral devices such as literacy tests with “grandfather” clauses and “good character” provisos were devised to deprive black voters of the franchise. Another of the weapons in the States’ arsenal was the racial gerrymander—“the deliberate and arbitrary distortion of district boundaries … for [racial] purposes.” In the 1870’s, for example, opponents of Reconstruction in Mississippi “concentrated the bulk of the black population in a ‘shoestring’ Congressional district running the length of the Mississippi River, leaving five others with white majorities.” Some 90 years later, Alabama redefined the boundaries of the city of Tuskegee “from a square to an uncouth twenty-eight-sided figure” in a manner that was alleged to exclude black voters, and only black voters, from the city limits. Gomillion v. Lightfoot (1960).…

It is against this background that we confront the questions presented here. In our view, the District Court properly dismissed appellants’ claims against the federal appellees. Our focus is on appellants’ claim that the State engaged in unconstitutional racial gerrymandering. That argument strikes a powerful historical chord: It is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past.

An understanding of the nature of appellants’ claim is critical to our resolution of the case.

In their complaint, appellants did not claim that the General Assembly’s reapportionment plan unconstitutionally “diluted” white voting strength. They did not even claim to be white. Rather, appellants’ complaint alleged that the deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a “color-blind” electoral process.

Despite their invocation of the ideal of a “color-blind” Constitution, appellants appear to concede that race-conscious redistricting is not always unconstitutional. That concession is wise: This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances. What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of Copyright © 2012 Pearson Education, Inc. 325

voting, without regard for traditional districting principles and without sufficiently compelling justification. For the reasons that follow, we conclude that appellants have stated a claim upon which relief can be granted under the Equal Protection Clause.…

Appellants contend that redistricting legislation that is so bizarre on its face that it is “unexplainable on grounds other than race,” demands the same close scrutiny that we give other state laws that classify citizens by race. Our voting rights precedents support that conclusion.

In Guinn v. United States (1915), the Court invalidated under the Fifteenth Amendment a statute that imposed a literacy requirement on voters but contained a “grandfather clause” applicable to individuals and their lineal descendants entitled to vote “on [or prior to] January 1, 1866.” The determinative consideration for the Court was that the law, though ostensibly raceneutral, on its face “embod[ied] no exercise of judgment and rest[ed] upon no discernible reason” other than to circumvent the prohibitions of the Fifteenth Amendment. In other words, the statute was invalid because, on its face, it could not be explained on grounds other than race.

The Court applied the same reasoning to the “uncouth twenty-eight-sided” municipal boundary line at issue in Gomillion. Although the statute that redrew the city limits of Tuskegee was race-neutral on its face, plaintiffs alleged that its effect was impermissibly to remove from the city virtually all black voters and no white voters. The Court reasoned: If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.…

The Court extended the reasoning of Gomillion to congressional districting in Wright v.

Rockefeller (1964). At issue in Wright were four districts contained in a New York apportionment statute. The plaintiffs alleged that the statute excluded nonwhites from one district and concentrated them in the other three. Every member of the Court assumed that the plaintiffs’ allegation that the statute “segregate[d] eligible voters by race and place of origin” stated a constitutional claim. The Justices disagreed only as to whether the plaintiffs had carried their burden of proof at trial.… The majority, however, accepted the District Court’s finding that the plaintiffs had failed to establish that the districts were in fact drawn on racial lines. Although the boundary lines were somewhat irregular, the majority reasoned, they were not so bizarre as to permit of no other conclusion. Indeed, because most of the nonwhite voters lived together in one area, it would have been difficult to construct voting districts without concentrations of nonwhite voters.

Wright illustrates the difficulty of determining from the face of a single-member districting plan that it purposefully distinguishes between voters on the basis of race. A reapportionment statute typically does not classify persons at all; it classifies tracts of land, or addresses. Moreover, redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination. As Wright demonstrates, when members of a racial group live together in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example,

Copyright © 2012 Pearson Education, Inc. 326

to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions.

The difficulty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race. Moreover, it seems clear to us that proof sometimes will not be difficult at all. In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to “segregat[e] … voters” on the basis of race. Gomillion, in which a tortured municipal boundary line was drawn to exclude black voters, was such a case. So, too, would be a case in which a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions. We emphasize that these criteria are important not because they are constitutionally required—they are not—but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines.…

Put differently, we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes.… By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.

The message that such districting sends to elected representatives is equally pernicious.

When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy.…

For these reasons, we conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification. It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majority-minority districts, without more” always gives rise to an equal protection claim. We hold only that, on the facts of this case, plaintiffs have stated a claim sufficient to defeat the state appellees’ motion to dismiss.…

Finally, nothing in the Court’s highly fractured decision in UJO—on which the District Court almost exclusively relied, and which the dissenters evidently believe controls—forecloses the claim we recognize today. UJO concerned New York’s revision of a reapportionment plan to include additional majority-minority districts in response to the Attorney General’s denial of administrative preclearance under § 5. In that regard, it closely resembles the present case. But the cases are critically different in another way. The plaintiffs in UJO—members of a Hasidic community split between two districts under New York’s revised redistricting plan—did not Copyright © 2012 Pearson Education, Inc. 327

allege that the plan, on its face, was so highly irregular that it rationally could be understood only as an effort to segregate voters by race. Indeed, the facts of the case would not have supported such a claim.…

As a majority of the Justices construed the complaint, the UJO plaintiffs made a different claim: that the New York plan impermissibly “diluted” their voting strength.…

Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire. It is for these reasons that race-based districting by our state legislatures demands close judicial scrutiny.…

Today we hold only that appellants have stated a claim under the Equal Protection Clause by alleging that the North Carolina General Assembly adopted a reapportionment scheme so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification. If the allegation of racial gerrymandering remains uncontradicted, the District Court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest. Accordingly, we reverse the judgment of the District Court and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice White, with whom Justice Blackmun and Justice Stevens join, dissenting.

The facts of this case mirror those presented in United Jewish Organizations of Williamsburgh, Inc. v. Carey.…

The grounds for my disagreement with the majority are simply stated: Appellants have not presented a cognizable claim, because they have not alleged a cognizable injury. To date, we have held that only two types of state voting practices could give rise to a constitutional claim. The first involves direct and outright deprivation of the right to vote, for example, by means of a poll tax or literacy test. Plainly, this variety is not implicated by appellants’ allegations and need not detain us further. The second type of unconstitutional practice is that which “affects the political strength of various groups,” in violation of the Equal Protection Clause. As for this latter category, we have insisted that members of the political or racial group demonstrate that the challenged action have the intent and effect of unduly diminishing their influence on the political process. Although this severe burden has limited the number of successful suits, it was adopted for sound reasons.

The central explanation has to do with the nature of the redistricting process. As the majority recognizes, “redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors.” “Being aware,” in this context, is shorthand for “taking into account,” and it hardly can be doubted that

Copyright © 2012 Pearson Education, Inc. 328

legislators routinely engage in the business of making electoral predictions based on group characteristics—racial, ethnic, and the like.…

Redistricting plans also reflect group interests and inevitably are conceived with partisan aims in mind. To allow judicial interference whenever this occurs would be to invite constant and unmanageable intrusion. Moreover, a group’s power to affect the political process does not automatically dissipate by virtue of an electoral loss. Accordingly, we have asked that an identifiable group demonstrate more than mere lack of success at the polls to make out a successful gerrymandering claim.

With these considerations in mind, we have limited such claims by insisting upon a showing that “the political processes … were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” Indeed, as a brief survey of decisions illustrates, the Court’s gerrymandering cases all carry this theme—that it is not mere suffering at the polls but discrimination in the polity with which the Constitution is concerned.…

To distinguish a claim that alleges that the redistricting scheme has discriminatory intent and effect from one that does not has nothing to do with dividing racial classifications between the “benign” and the malicious—an enterprise which, as the majority notes, the Court has treated with skepticism. Rather, the issue is whether the classification based on race discriminates against anyone by denying equal access to the political process. Even members of the Court least inclined to approve of race-based remedial measures have acknowledged the significance of this factor.…

The majority attempts to distinguish UJO by imagining a heretofore unknown type of constitutional claim. In its words, “UJO set forth a standard under which white voters can establish unconstitutional vote dilution.… Nothing in the decision precludes white voters (or voters of any other race) from bringing the analytically distinct claim that a reapportionment plan rationally cannot be understood as anything other than an effort to segregate citizens into separate voting districts on the basis of race without sufficient justification.” There is no support for this distinction in UJO, and no authority in the cases relied on by the Court either. More importantly, the majority’s submission does not withstand analysis. The logic of its theory appears to be that race-conscious redistricting that “segregates” by drawing odd-shaped lines is qualitatively different from race-conscious redistricting that affects groups in some other way. The distinction is without foundation.

The essence of the majority’s argument is that UJO dealt with a claim of vote dilution— which required a specific showing of harm—and that cases such as Gomillion and Wright dealt with claims of racial segregation—which did not. I read these decisions quite differently.

Petitioners’ claim in UJO was that the State had “violated the Fourteenth and Fifteenth Amendments by deliberately revising its reapportionment plan along racial lines.”… Nor was it ever in doubt that “the State deliberately used race in a purposeful manner.” In other words, the “analytically distinct claim” the majority discovers today was in plain view and did not carry the day for petitioners. The fact that a demonstration of discriminatory effect was required in that case was not a function of the kind of claim that was made. It was a function of the type of injury upon which the Court insisted.

Gomillion is consistent with this view.… [I]ts focus was on the alleged effect of the city’s action, which was to exclude black voters from the municipality of Tuskegee.…

Copyright © 2012 Pearson Education, Inc. 329

Racial gerrymanders come in various shades: At-large voting schemes; the fragmentation of a minority group among various districts “so that it is a majority in none;” the “stacking” of “a large minority population concentration … with a larger white population;” and, finally, the “concentration of [minority voters] into districts where they constitute an excessive majority,” also called “packing.” In each instance, race is consciously utilized by the legislature for electoral purposes; in each instance, we have put the plaintiff challenging the district lines to the burden of demonstrating that the plan was meant to, and did in fact, exclude an identifiable racial group from participation in the political process.

Not so, apparently, when the districting “segregates” by drawing odd-shaped lines. In that case, we are told, such proof no longer is needed. Instead, it is the State that must rebut the allegation that race was taken into account, a fact that, together with the legislators’ consideration of ethnic, religious, and other group characteristics, I had thought we practically took for granted.…

Since I do not agree that petitioners alleged an Equal Protection violation and because the Court of Appeals [sic] faithfully followed the Court’s prior cases, I dissent and would affirm the judgment below.

Justice Blackmun, dissenting … [omitted].

Justice Stevens, dissenting … [omitted].

Justice Souter, dissenting … [omitted].

Copyright © 2012 Pearson Education, Inc. 330

Skinner v. Railway Labor Executives’ Association 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed. 2d 639 (1989) http://laws.findlaw.com/us/489/602.html For many years railroads in the United States have prohibited employees operating trains from possessing alcohol or being intoxicated while on duty. The Association of American Railroads later expanded these proscriptions to include possession or use of other drugs. These restrictions comprise “Rule G,” part of an industry-wide operating code. The usual penalty for violation of Rule G is dismissal. In 1985 the Federal Railroad Administration (FRA) in the Department of Transportation concluded that efforts by the industry were not adequate to curb drug abuse by railroad workers. The FRA then promulgated a series of regulations to supplement Rule G. Subpart C requires toxicological testing by the FRA laboratory of blood and urine samples from each member of a train crew immediately following all but the most minor accidents. Subpart D authorizes railroads to require covered employees to submit to breath or urine tests when an employee has violated certain operating rules (such as exceeding speed limits) or when a supervisor has “reasonable suspicion” to believe the employee is under the influence of drugs or has reason to believe that the employee’s action contributed to the occurrence or severity of an accident. The Railway Labor Executives’ Association and its member labor organizations brought suit on Fourth Amendment grounds in the U.S. District Court for the Northern District of California, seeking to enjoin the FRA regulations. The district court ruled that the employees’ constitutionally protected liberty was outweighed by the competing “public and governmental interest in the … promotion of … railway safety, safety for employees, and safety for the general public.…” In 1988, the Court of Appeals for the Ninth Circuit reversed. [In the companion case of Treasury Employees Union v. Von Raab that the Supreme Court decided the same day, five justices upheld Customs Service policy requiring drug testing by urinalysis of employees seeking assignment to positions involving the interdiction of drugs or the carrying of firearms. No particularized suspicion had to be shown. Justices Stevens and Scalia joined Justices Brennan and Marshall in dissent.] Majority: Kennedy, Rehnquist, White, Blackmun, Stevens, O’Connor, Scalia. Dissenting: Marshall, Brennan.

Justice Kennedy delivered the opinion of the Court.…

The Government’s interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, “likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.”

The FRA has prescribed toxicological tests, not to assist in the prosecution of employees but rather “to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.” This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also “require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed.” The question that remains, then, is whether the Government’s need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.

Copyright © 2012 Pearson Education, Inc. 331

An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents. A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope.… A warrant also provides the detached scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case.… In the present context, however, a warrant would do little to further these aims. Both the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them, and doubtless are well known to covered employees.… Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate.…

Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law.… When the balance of interests precludes insistence on a showing of probable cause, we have usually required “some quantum of individualized suspicion” before concluding that a search is reasonable. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable.… In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here.

By and large, intrusions on privacy under the FRA regulations are limited. To the extent transportation and like restrictions are necessary to procure the requisite blood, breath, and urine samples for testing, this interference alone is minimal given the employment context in which it takes place. Ordinarily, an employee consents to significant restrictions in his freedom of movement where necessary for his employment, and few are free to come and go as they please during working hours.… Any additional interference with a railroad employee’s freedom of movement that occurs in the time it takes to procure a blood, breath, or urine sample for testing cannot, by itself, be said to infringe significant privacy interests.

Our decision in Schmerber v. California (1966) indicates that the same is true of the blood tests required by the FRA regulations. In that case, we held that a State could direct that a blood sample be withdrawn from a motorist suspected of driving while intoxicated, despite his refusal to consent to the intrusion.… Schmerber thus confirmed “society’s judgment that blood tests do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.”

The breath tests authorized by Subpart D of the regulations are even less intrusive than the blood tests prescribed by Subpart C. Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Further, breath tests reveal the level of alcohol in the employee’s bloodstream and nothing more. Like the blood-testing procedures mandated by Subpart C, which can be used only to ascertain the presence of alcohol or controlled substances in the bloodstream, breath tests reveal no other facts in which the employee has a substantial privacy interest.… In all the circumstances, we cannot conclude that the administration of a breath test implicates significant privacy concerns.

A more difficult question is presented by urine tests. Like breath tests, urine tests are not invasive of the body and, under the regulations, may not be used as an occasion for inquiring into Copyright © 2012 Pearson Education, Inc. 332

private facts unrelated to alcohol or drug use. We recognize, however, that the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests.

While we would not characterize these additional privacy concerns as minimal in most contexts, we note that the regulations endeavor to reduce the intrusiveness of the collection process. The regulations do not require that samples be furnished under the direct observation of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample.… The sample is also collected in a medical environment, by personnel unrelated to the railroad employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination.

More importantly, the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees. This relation between safety and employee fitness was recognized by Congress when it enacted the Hours of Service Act in 1907.…

We conclude, therefore, that the testing procedures contemplated by Subparts C and D pose only limited threats to the justifiable expectations of privacy of covered employees.

By contrast, the government interest in testing without a showing of individualized suspicion is compelling. Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities … employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others. An impaired employee, the Agency found, will seldom display any outward “signs detectable by the lay person or, in many cases, even the physician.” This view finds ample support in the railroad industry’s experience with Rule G, and in the judgment of the courts that have examined analogous testing schemes.…

Indeed, while respondents posit that impaired employees might be detected without alcohol or drug testing, the premise of respondents’ lawsuit is that even the occurrence of a major calamity will not give rise to a suspicion of impairment with respect to any particular employee.

While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA regulations supply an effective means of deterring employees engaged in safetysensitive tasks from using controlled substances or alcohol in the first place.… The railroad industry’s experience with Rule G persuasively shows, and common sense confirms, that the customary dismissal sanction that threatens employees who use drugs or alcohol while on duty cannot serve as an effective deterrent unless violators know that they are likely to be discovered.…

A requirement of particularized suspicion of drug or alcohol use would seriously impede an employer’s ability to obtain this information, despite its obvious importance. Experience confirms the Agency’s judgment that the scene of a serious rail accident is chaotic. Investigators who arrive at the scene shortly after a major accident has occurred may find it difficult to determine which members of a train crew contributed to its occurrence. Obtaining evidence that might give rise to the suspicion that a particular employee is impaired, a difficult endeavor in the best of circumstances, is most impracticable in the aftermath of a serious accident.…

Copyright © 2012 Pearson Education, Inc. 333

We conclude that the compelling government interests served by the FRA’s regulations would be significantly hindered if railroads were required to point to specific facts giving rise to a reasonable suspicion of impairment before testing a given employee. In view of our conclusion that, on the present record, the toxicological testing contemplated by the regulations is not an undue infringement on the justifiable expectations of privacy of covered employees, the Government’s compelling interests outweigh privacy concerns.…

In light of the limited discretion exercised by the railroad employers under the regulations, the surpassing safety interests served by toxicological tests in this context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired. We hold that the alcohol and drug tests contemplated by Subparts C and D of the FRA’s regulations are reasonable within the meaning of the Fourth Amendment. The judgment of the Court of Appeals is accordingly reversed.

It is so ordered.

Justice Stevens, concurring in part and concurring in the judgment … [omitted].

Justice Marshall, with whom Justice Brennan joins, dissenting.…

The Court today takes its longest step yet toward reading the probable-cause requirement out of the Fourth Amendment.…

Until recently, an unbroken line of cases had recognized probable cause as an indispensable prerequisite for a full-scale search, regardless whether such a search was conducted pursuant to a warrant or under one of the recognized exceptions to the warrant requirement. Only where the Government action in question had a “substantially less intrusive” impact on privacy, and thus clearly fell short of a full-scale search, did we relax the probable cause standard.… Even in this class of cases, we almost always required the Government to show some individualized suspicion to justify the search. The few searches which we upheld in the absence of individualized justification were routinized, fleeting, and nonintrusive encounters conducted pursuant to regulatory programs which entailed no contact with the person.

In the four years since this Court, in [New Jersey v.] T. L. O., first began recognizing “special needs” exceptions to the Fourth Amendment, the clarity of Fourth Amendment doctrine has been badly distorted, as the Court has eclipsed the probable-cause requirement in a patchwork quilt of settings: public school principals’ searches of students’ belongings, T. L. O.; public employers’ searches of employees’ desks, O’Connor [v. Ortega, 1987], and probation officers’ searches of probationers’ homes, Griffin [v. Wisconsin, 1987]. Tellingly, each time the Court has found that “special needs” counseled ignoring the literal requirements of the Fourth Amendment for such full-scale searches in favor of a formless and unguided “reasonableness” balancing inquiry, it has concluded that the search in question satisfied that test. I have joined dissenting opinions in each of these cases, protesting the “jettison[ing of]… the only standard that finds support in the text of the Fourth Amendment” and predicting that the majority’s “Rohrschach-like ‘balancing test’” portended “a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens.”

The majority’s decision today bears out that prophecy. After determining that the Fourth Amendment applies to the FRA’s testing regime, the majority embarks on an extended inquiry Copyright © 2012 Pearson Education, Inc. 334

into whether that regime is “reasonable,” an inquiry in which it balances “‘all the circumstances surrounding the search or seizure and the nature of the search or seizure itself.’” The result is “special needs” balancing analysis’ deepest incursion yet into the core protections of the Fourth Amendment. Until today, it was conceivable that, when a Government search was aimed at a person and not simply the person’s possessions, balancing analysis had no place. No longer: with nary a word of explanation or acknowledgment of the novelty of its approach, the majority extends the “special needs” framework to a regulation involving compulsory blood withdrawal and urinary excretion, and chemical testing of the bodily fluids collected through these procedures. And until today, it was conceivable that a prerequisite for surviving “special needs” analysis was the existence of individualized suspicion. No longer: in contrast to the searches in T. L. O., O’Connor, and Griffin, which were supported by individualized evidence suggesting the culpability of the persons whose property was searched, the regulatory regime upheld today requires the postaccident collection and testing of the blood and urine of all covered employees— even if every member of this group gives every indication of sobriety and attentiveness.

In widening the “special needs” exception to probable cause to authorize searches of the human body unsupported by any evidence of wrongdoing, the majority today completes the process begun in T. L. O. of eliminating altogether the probable cause requirement for civil searches—those undertaken for reasons “beyond the normal need for law enforcement.” In its place, the majority substitutes a manipulable balancing inquiry under which, upon the mere assertion of a “special need,” even the deepest dignitary and privacy interests become vulnerable to governmental incursion. By its terms, however, the Fourth Amendment—unlike the Fifth and Sixth—does not confine its protections to either criminal or civil actions. Instead, it protects generally “[t]he right of the people to be secure.”

The fact is that the malleable “special needs” balancing approach can be justified only on the basis of the policy results it allows the majority to reach. The majority’s concern with the railroad safety problems caused by drug and alcohol abuse is laudable; its cavalier disregard for the text of the Constitution is not. There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest. Because abandoning the explicit protections of the Fourth Amendment seriously imperils “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men,” I reject the majority’s “special needs” rationale as unprincipled and dangerous.

The proper way to evaluate the FRA’s testing regime is to use the same analytic framework which we have traditionally used to appraise Fourth Amendment claims involving full-scale searches, at least until the recent “special needs” cases. Under that framework, we inquire, serially, whether a search has taken place; whether the search was based on a valid warrant or undertaken pursuant to a recognized exception to the warrant requirement; whether the search was based on probable cause or validly based on lesser suspicion because it was minimally intrusive; and, finally, whether the search was conducted in a reasonable manner.…

By any reading of our precedents, the intrusiveness of these three searches demands that they—like other full-scale searches—be justified by probable cause. It is no answer to suggest, as does the majority, that railroad workers have relinquished the protection afforded them by this Fourth Amendment requirement, either by “participat[ing] in an industry that is regulated pervasively to ensure safety” or by undergoing periodic fitness tests pursuant to state law or to collective-bargaining agreements.

Copyright © 2012 Pearson Education, Inc. 335

Our decisions in the regulatory search area refute the suggestion that the heavy regulation of the railroad industry eclipses workers’ rights under the Fourth Amendment to insist upon a showing of probable cause when their bodily fluids are being extracted. This line of cases has exclusively involved searches of employer property, with respect to which “[c]ertain industries have such a history of government over-sight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise.” Never have we intimated that regulatory searches reduce employees’ rights of privacy in their persons.…

The majority’s suggestion that railroad workers’ privacy is only minimally invaded by the collection and testing of their bodily fluids because they undergo periodic fitness tests, is equally baseless. As an initial matter, even if participation in these fitness tests did render “minimal” an employee’s “interest in bodily security,” such minimally intrusive searches of the person require, under our precedents, a justificatory showing of individualized suspicion. More fundamentally, railroad employees are not routinely required to submit to blood or urine tests to gain or to maintain employment, and railroad employers do not ordinarily have access to employees’ blood or urine, and certainly not for the purpose of ascertaining drug or alcohol usage. That railroad employees sometimes undergo tests of eyesight, hearing, skill, intelligence, and agility, hardly prepares them for Government demands to submit to the extraction of blood, to excrete under supervision, or to have these bodily fluids tested for the physiological and psychological secrets they may contain. Surely employees who release basic information about their financial and personal history so that employers may ascertain their “ethical fitness” do not, by so doing, relinquish their expectations of privacy with respect to their personal letters and diaries, revealing though these papers may be of their character.

I recognize that invalidating the full-scale searches involved in the FRA’s testing regime for failure to comport with the Fourth Amendment’s command of probable cause may hinder the Government’s attempts to make rail transit as safe as humanly possible. But constitutional rights have their consequences, and one is that efforts to maximize the public welfare, no matter how well-intentioned, must always be pursued within constitutional boundaries. Were the police freed from the constraints of the Fourth Amendment for just one day to seek out evidence of criminal wrongdoing, the resulting convictions and incarcerations would probably prevent thousands of fatalities. Our refusal to tolerate this spectre reflects our shared belief that even beneficent governmental power—whether exercised to save money, save lives, or make the trains run on time—must always yield to “a resolute loyalty to constitutional safeguards.” The Constitution demands no less loyalty here.

Copyright © 2012 Pearson Education, Inc. 336

United States v. Robinson 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed. 2d 427 (1973) http://laws.findlaw.com/us/414/218.html On an April evening in 1968, Officer Jenks of the District of Columbia police force observed Willie Robinson driving a 1965 Cadillac. Because of prior investigation, Jenks had good reason to believe that Robinson’s driver’s license had been revoked. In the District of Columbia, driving after revocation of a license carried a mandatory jail sentence or fine, or both. Jenks signaled Robinson to stop and informed him that he was under arrest for “operating after revocation and obtaining a permit by misrepresentation.” After Robinson got out of the car, Jenks searched him before taking him into custody. During the patdown, Jenks felt an object in the left breast pocket of the heavy coat Robinson was wearing, but could not tell what it was. He removed it from the pocket, and it turned out to be a crumpled cigarette package. Jenks then opened the pack and found 14 gelatin capsules containing white powder, which on analysis proved to be heroin. This heroin formed the basis for Robinson’s conviction in the district court. The Court of Appeals for the District of Columbia Circuit reversed. Majority: Rehnquist, Burger, Stewart, White, Blackmun, Powell. Dissenting: Marshall, Douglas, Brennan.

Mr. Justice Rehnquist delivered the opinion of the Court.…

It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.

Examination of this Court’s decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.…

The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.… The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.

Nor are we inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes. It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop.

This is an adequate basis for treating all custodial arrests alike for purposes of search justification.

Copyright © 2012 Pearson Education, Inc. 337

But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.…

Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as “fruits, instrumentalities, or contraband” probative of criminal conduct.… The judgment of the Court of Appeals holding otherwise is Reversed.

Mr. Justice Powell, concurring … [omitted].

Mr. Justice Marshall, with whom Mr. Justice Douglas and Mr. Justice Brennan join, dissenting.…

The majority opinion fails to recognize that the search conducted by Officer Jenks did not merely involve a search of respondent’s person. It also included a separate search of effects found on his person. And even were we to assume, arguendo, that it was reasonable for Jenks to remove the object he felt in respondent’s pocket, clearly there was no justification consistent with the Fourth Amendment which would authorize his opening the package and looking inside.

To begin with, after Jenks had the cigarette package in his hands, there is no indication that he had reason to believe or did in fact believe that the package contained a weapon. More importantly, even if the crumpled-up cigarette package had in fact contained some sort of small weapon, it would have been impossible for respondent to have used it once the package was in the officer’s hands. Opening the package, therefore, did not further the protective purpose of the search. Even the dissenting opinion in the Court of Appeals conceded that “since the package was now in the officer’s possession, any risk of the prisoner’s use of a weapon in this package had been eliminated.”…

It is suggested, however, that since the custodial arrest itself represents a significant intrusion into the privacy of the person, any additional intrusion by way of opening or examining effects found on the person is not worthy of constitutional protection. But such an approach was Copyright © 2012 Pearson Education, Inc. 338

expressly rejected by the Court in Chimel.… Chimel established the principle that the lawful right of the police to interfere with the security of the person did not, standing alone, automatically confer the right to interfere with the security and privacy of his house. Hence, the mere fact of an arrest should be no justification, in and of itself, for invading the privacy of the individual’s personal effects.

The Government argues that it is difficult to see what constitutionally protected “expectation of privacy” a prisoner has in the interior of a cigarette pack. One wonders if the result in this case would have been the same were respondent a businessman who was lawfully taken into custody for driving without a license and whose wallet was taken from him by the police. Would it be reasonable for the police officer, because of the possibility that a razor blade was hidden somewhere in the wallet, to open it, remove all the contents, and examine each item carefully? Or suppose a lawyer lawfully arrested for a traffic offense is found to have a sealed envelope on his person. Would it be permissible for the arresting officer to tear open the envelope in order to make sure that it did not contain a clandestine weapon—perhaps a pin or a razor blade?… Would it not be more consonant with the purpose of the Fourth Amendment and the legitimate needs of the police to require the officer, if he has any question whatsoever about what the wallet or letter contains, to hold onto it until the arrestee is brought to the precinct station?… … I would affirm the judgment of the Court of Appeals holding that the fruits of the search should have been suppressed at respondent’s trial.

Copyright © 2012 Pearson Education, Inc. 339

Wisconsin v. Mitchell 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed. 2d 436 (1993) http://supct.law.cornell.edu/supct/html/92-515.ZS.html A 1989 Wisconsin law provides for enhanced sentences when a defendant “[i]ntentionally selects the person against whom the crime … is committed or selects the property which is damaged or otherwise affected by the crime … because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property.”

Todd Mitchell was convicted of aggravated battery in October 1989 in the Circuit Court for Kenosha County and, because of applicability of the penalty enhancement statute, received a sentence of seven, rather than two, years in prison. The Court of Appeals rejected his contention that the statute violated the First Amendment, but the Wisconsin Supreme Court reversed.

Relying in part on R. A. V. v. City of St. Paul (1992), that court invalidated the law because it punished “what the legislature has deemed to be offensive thought.” Majority: Rehnquist, Blackmun, Kennedy, O’Connor, Scalia, Souter, Stevens, Thomas, White.

Chief Justice Rehnquist delivered the opinion of the Court.

Respondent Todd Mitchell’s sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim’s race. The question presented in this case is whether this penalty enhancement is prohibited by the First and Fourteenth Amendments.

We hold that it is not.

On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture “Mississippi Burning,” in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: “‘Do you all feel hyped up to move on some white people?’” Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: “‘You all want to fuck somebody up? There goes a white boy; go get him.’” Mitchell counted to three and pointed in the boy’s direction. The group ran towards the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.…

[B]ecause the jury found that Mitchell had intentionally selected his victim because of the boy’s race, the maximum sentence for Mitchell’s offense was increased to seven years.…

The State argues that the statute does not punish bigoted thought, as the Supreme Court of Wisconsin said, but instead punishes only conduct. While this argument is literally correct, it does not dispose of Mitchell’s First Amendment challenge. To be sure, our cases reject the “view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Thus, a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.…

But the fact remains that under the Wisconsin statute the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained. Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the Copyright © 2012 Pearson Education, Inc. 340

same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant’s discriminatory motive for selecting his victim, Mitchell argues (and the Wisconsin Supreme Court held) that the statute violates the First Amendment by punishing offenders’ bigoted beliefs.

Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant.…

Thus, in many States the commission of a murder, or other capital offense, for pecuniary gain is a separate aggravating circumstance under the capital-sentencing statute.... And the fact that the Wisconsin Legislature has decided, as a general matter, that bias-motivated offenses warrant greater maximum penalties across the board does not alter the result here. For the primary responsibility for fixing criminal penalties lies with the legislature.

Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant’s discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge.…

Nothing in our decision last Term in R. A. V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of “‘fighting words’ that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’”

Because the ordinance only proscribed a class of “fighting words” deemed particularly offensive by the city—i.e., those “that contain … messages of ‘bias-motivated’ hatred,” we held that it violated the rule against content-based discrimination. But whereas the ordinance struck down in R. A. V. was explicitly directed at expression (i.e., “speech” or “messages”) the statute in this case is aimed at conduct unprotected by the First Amendment.

Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The State’s desire to redress these perceived harms provides an adequate explanation for its penaltyenhancement provision over and above mere disagreement with offenders’ beliefs or biases.…

Finally, there remains to be considered Mitchell’s argument that the Wisconsin statute is unconstitutionally overbroad because of its “chilling effect” on free speech. Mitchell argues (and the Wisconsin Supreme Court agreed) that the statute is “overbroad” because evidence of the defendant’s prior speech or associations may be used to prove that the defendant intentionally selected his victim on account of the victim’s protected status. Consequently, the argument goes, the statute impermissibly chills free expression with respect to such matters by those concerned about the possibility of enhanced sentences if they should in the future commit a criminal offense covered by the statute. We find no merit in this contention.

The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional “overbreadth” cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim’s protected status, thus qualifying him for penalty-enhancement.

To stay within the realm of rationality, we must surely put to one side minor misdemeanor offenses covered by the statute, such as negligent operation of a motor vehicle; for it is difficult, Copyright © 2012 Pearson Education, Inc. 341

if not impossible, to conceive of a situation where such offenses would be racially motivated. We are left, then, with the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial if he commits a more serious offense against person or property. This is simply too speculative a hypothesis to support Mitchell’s overbreadth claim.

The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.…

For the foregoing reasons, we hold that Mitchell’s First Amendment rights were not violated by the application of the Wisconsin penalty-enhancement provision in sentencing him.

The judgment of the Supreme Court of Wisconsin is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Copyright © 2012 Pearson Education, Inc. 342

Atkins v. Virginia

536 U.S. 304, 122 S. Ct. 2242, 153 L.Ed. 2d 335 (2002) http://laws.findlaw.com/us/536/304.html This case presented an opportunity for the Supreme Court to revisit Penry v. Lynaugh (1989), which held, among other things, that execution of a mentally retarded person was not categorically prohibited by the Eighth Amendment. In Penry, Justices Blackmun, Brennan, Marshall, and Stevens dissented on that point. The facts in Atkins follow in Justice Stevens's opinion below. Majority: Stevens, Breyer, Ginsburg, Kennedy, O'Connor, Souter. Dissenting: Rehnquist, Scalia, Thomas.

Justice Stevens delivered the opinion of the Court.

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins' trial. Each confirmed most of the details in the other's account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones' testimony, which was both more coherent and credible than Atkins', was obviously credited by the jury and was sufficient to establish Atkins' guilt. At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and "vileness of the offense." To prove future dangerousness, the State relied on Atkins' prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased's body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was "mildly mentally retarded."

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of "average intelligence, at least," and diagnosable as having antisocial personality disorder. The jury again sentenced Atkins to death.

The Supreme Court of Virginia affirmed.

[W]e granted certiorari to revisit the issue that we first addressed in the Penry case.

Copyright © 2012 Pearson Education, Inc. 343

The Eighth Amendment succinctly prohibits "excessive" sanctions. In Weems v. United States, (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained "that punishment for crime should be graduated and proportioned to the offense."

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the "Bloody Assizes" or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v.

Dulles (1958): "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

We have pinpointed that the "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures."

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions. In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a "sentence of death shall not be carried out upon a person who is mentally retarded." In 1989, Maryland enacted a similar prohibition. It was in that year that we decided Penry, and concluded that those two state enactments, "even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus."

Much has changed since then. Responding to the national attention received by our decision in Penry, state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. Nebraska followed suit in 1998. There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States—South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina—joined the procession. The Texas Legislature unanimously adopted a similar bill, and bills have passed at least one house in other States, including Virginia and Nevada.

It is not so much the number of these States that is significant, but the consistency of the direction of change. Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.

[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and selfdirection that became manifest before age 18.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v.

Georgia identified "retribution and deterrence of capital crimes by prospective offenders" as the Copyright © 2012 Pearson Education, Inc. 344

social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person "measurably contributes to one or both of these goals, it 'is nothing more than the purposeless and needless imposition of pain and suffering,' and hence an unconstitutional punishment."

With respect to retribution—the interest in seeing that the offender gets his "just desserts"—the severity of the appropriate punishment necessarily depends on the culpability of the offender. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence—the interest in preventing capital crimes by prospective offenders— "it seems likely that 'capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.'" Exempting the mentally retarded from that punishment will not affect the "cold calculus that precedes the decision" of other potential murderers. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders.

The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk "that the death penalty will be imposed in spite of factors which may call for a less severe penalty" is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.

Construing and applying the Eighth Amendment in the light of our "evolving standards of decency," we therefore conclude that such punishment is excessive and that the Constitution "places a substantive restriction on the State's power to take the life" of a mentally retarded offender.

The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, dissenting [omitted].

Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting....

Copyright © 2012 Pearson Education, Inc. 345

Under our Eighth Amendment jurisprudence, a punishment is "cruel and unusual" if it falls within one of two categories: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," and modes of punishment that are inconsistent with modern "standards of decency," as evinced by objective indicia, the most important of which is "legislation enacted by the country's legislatures."

The Court makes no pretense that execution of the mildly mentally retarded would have been considered "cruel and unusual" in 1791É.

The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the "evolving standards of decency that mark the progress of a maturing society."

The Court miraculously extracts a "national consensus" forbidding execution of the mentally retarded from the fact that 18 States—less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)—have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. If one is to say, as the Court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national "standards of decency," surely the "consensus" it points to must be one that has set its righteous face against all such executions. Not 18 States, but only seven—18% of death penalty jurisdictions—have legislation of that scope. Eleven of those that the Court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation; those already on death row, or consigned there before the statute's effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded; New York permits execution of the mentally retarded who commit murder in a correctional facility.

The Court attempts to bolster its embarrassingly feeble evidence of "consensus" with the following: "It is not so much the number of these States that is significant, but the consistency of the direction of change." But in what other direction could we possibly see change?

But the Prize for the Court's Most Feeble Effort to fabricate "national consensus" must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called "world community," and respondents to opinion polls.

[T]he views of professional and religious organizations and the results of opinion polls are irrelevant.

Beyond the empty talk of a "national consensus," the Court gives us a brief glimpse of what really underlies today's decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. "'[T]he Constitution,'" the Court says, "contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" (The unexpressed reason for this unexpressed "contemplation" of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one's breath away.

Copyright © 2012 Pearson Education, Inc. 346

The genuinely operative portion of the opinion, then, is the Court's statement of the reasons why it agrees with the contrived consensus it has found, that the "diminished capacities" of the mentally retarded render the death penalty excessive. The Court's analysis rests on two fundamental assumptions: (1) that the Eighth Amendment prohibits excessive punishments, and (2) that sentencing juries or judges are unable to account properly for the "diminished capacities" of the retarded. The first assumption is wrong. The Eighth Amendment is addressed to alwaysand-everywhere "cruel" punishments, such as the rack and the thumbscrew. But where the punishment is in itself permissible, "[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions." The second assumption—inability of judges or juries to take proper account of mental retardation—is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.

Proceeding from these faulty assumptions, the Court gives two reasons why the death penalty is an excessive punishment for all mentally retarded offenders. First, the "diminished capacities" of the mentally retarded raise a "serious question" whether their execution contributes to the "social purposes" of the death penalty, viz., retribution and deterrence. Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty. Who says so? Is there an established correlation between mental acuity and the ability to conform one's conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others?

Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is "no more culpable" than the "average" murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings?

As for the other social purpose of the death penalty that the Court discusses, deterrence: That is not advanced, the Court tells us, because the mentally retarded are "less likely" than their nonretarded counterparts to "process the information of the possibility of execution as a penalty and control their conduct based upon that information." Of course this leads to the same conclusion discussed earlier—that the mentally retarded (because they are less deterred) are more likely to kill—which neither I nor the society at large believes. In any event, even the Court does not say that all mentally retarded individuals cannot "process the information of the possibility of execution as a penalty and control their conduct based upon that information"; it merely asserts that they are "less likely" to be able to do so. But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class.

The Court throws one last factor into its grab bag of reasons why execution of the retarded is "excessive" in all cases: Mentally retarded offenders "face a special risk of wrongful execution" because they are less able "to make a persuasive showing of mitigation," "to give meaningful assistance to their counsel," and to be effective witnesses. "Special risk" is pretty flabby language (even flabbier than "less likely")—and I suppose a similar "special risk" could be said to exist for just plain stupid people, inarticulate people, even ugly people.

This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by Copyright © 2012 Pearson Education, Inc. 347

the American Association of Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all.

The mere pendency of the present case has brought us petitions by death row inmates claiming for the first time, after multiple habeas petitions, that they are retarded.

Copyright © 2012 Pearson Education, Inc. 348

Davis v. Bandemer

478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed. 2d 85 (1986) http://laws.findlaw.com/us/478/109.html The Indiana legislature comprises a 100-member House and a 50-member Senate. House members serve two-year terms, with elections for all seats every two years. Senators serve fouryear terms, with half of the seats up for election every two years. Senators are elected from single-member districts; representatives are elected from a mixture of single-member and multimember districts. Following the 1981 reapportionment based on 1980 census figures, Bandemer and others filed suit in U.S. District Court for the Southern District of Indiana, claiming that the 1981 reapportionment plan was a political gerrymander intended to disadvantage Democrats and so was a violation of the equal protection clause. Before the case went to trial, elections under the new plan were held in November 1982. Democratic candidates for the House received 51.9 percent of the votes cast statewide but only 43 of the 100 seats to be filled. Democratic candidates for the Senate received 53.1 percent of the votes cast statewide and 13 of the 25 Democratic candidates were elected. In Marion and Allen Counties, both divided into multimember House districts, Democratic candidates received 46.6 percent of the vote but won only 3 of the 21 seats at stake. Relying primarily on these data, the district court invalidated the 1981 reapportionment plan and ordered the legislature to prepare a new plan. In the opinions that follow, note that six of the nine justices concluded that political gerrymanders presented a justiciable question, even though there was no "opinion of the Court." Majority: White, Blackmun, Brennan, Burger, Marshall, O'Connor, Rehnquist. Dissenting: Powell, Stevens.

JUSTICE WHITE announced the judgment of the Court and delivered an opinion in which JUSTICES BRENNAN, MARSHALL, and BLACKMUN joined....

We address first the question whether this case presents a justiciable controversy or a nonjusticiable political question....

The outlines of the political question doctrine were described and to a large extent defined in Baker v. Carr....

This analysis applies equally to the question now before us. Disposition of this question does not involve us in a matter more properly decided by a coequal branch of our Government. There is no risk of foreign or domestic disturbance, and in light of our cases since Baker we are not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided....

Having determined that the political gerrymandering claim in this case is justiciable, we turn to the question whether the District Court erred in holding that appellees had alleged and proved a violation of the Equal Protection Clause....

[W]e are confident that if the law challenged here had discriminatory effects on Democrats, this record would support a finding that the discrimination was intentional. Thus, we decline to overturn the District Court's finding of discriminatory intent as clearly erroneous....

Copyright © 2012 Pearson Education, Inc. 349

We do not accept, however, the District Court's legal and factual bases for concluding that the 1981 Act visited a sufficiently adverse effect on the appellees' constitutionally protected rights to make out a violation of the Equal Protection Clause. The District Court held that because any apportionment scheme that purposely prevents proportional representation is unconstitutional, Democratic voters need only show that their proportionate voting influence has been adversely affected.... Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be....

[T]he mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm. This conviction, in turn, stems from a perception that the power to influence the political process is not limited to winning elections. An individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district. We cannot presume in such a situation, without actual proof to the contrary, that the candidate elected will entirely ignore the interests of those voters. This is true even in a safe district where the losing group loses election after election. Thus, a group's electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause....

Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole....

Based on these views, we would reject the District Court's apparent holding that any interference with an opportunity to elect a representative of one's choice would be sufficient to allege or make out an equal protection violation, unless justified by some acceptable state interest that the State would be required to demonstrate. In addition to being contrary to the above-described conception of an unconstitutional political gerrymander, such a low threshold for legal action would invite attack on all or almost all reapportionment statutes. District-based elections hardly ever produce a perfect fit between votes and representation. The one-person, one-vote imperative often mandates departure from this result as does the no-retrogression rule required by § 5 of the Voting Rights Act. Inviting attack on minor departures from some supposed norm would too much embroil the judiciary in second-guessing what has consistently been referred to as a political task for the legislature, a task that should not be monitored too closely unless the express or tacit goal is to effect its removal from legislative halls. We decline to take a major step toward that end, which would be so much at odds with our history and experience....

The District Court's findings do not satisfy this threshold condition to stating and proving a cause of action. In reaching its conclusion, the District Court relied primarily on the results of the 1982 elections....

Relying on a single election to prove unconstitutional discrimination is unsatisfactory.... Rather, we have required that there be proof that the complaining minority "had less opportunity...to participate in the political processes and to elect legislators of their choice."...

Copyright © 2012 Pearson Education, Inc. 350

We recognize that our own view may be difficult of application. Determining when an electoral system has been "arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole" ...is of necessity a difficult inquiry.

Nevertheless, we believe that it recognizes the delicacy of intruding on this most political of legislative functions and is at the same time consistent with our prior cases regarding individual multimember districts, which have formulated a parallel standard.

In sum, we hold that political gerrymandering cases are properly justiciable under the Equal Protection Clause. We also conclude, however, that a threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation. In this case, the findings made by the District Court of an adverse effect on the appellees do not surmount the threshold requirement. Consequently, the judgment of the District Court is Reversed.

CHIEF JUSTICE BURGER, concurring... [omitted].

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment.

Today the Court holds that claims of political gerrymandering lodged by members of one of the political parties that make up our two-party system are justiciable under the Equal Protection Clause of the Fourteenth Amendment. Nothing in our precedents compels us to take this step, and there is every reason not to do so. I would hold that the partisan gerrymandering claims of major political parties raise a nonjusticiable political question that the judiciary should leave to the legislative branch as the Framers of the Constitution unquestionably intended. Accordingly, I would reverse the District Court's judgment on the grounds that appellees' claim is nonjusticiable....

[T]he legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out—by the very parties that are responsible for this process—present a political question in the truest sense of the term.

To turn these matters over to the federal judiciary is to inject the courts into the most heated partisan issues.... I do not believe, and the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed. Nor do I believe that the proportional representation towards which the Court's expansion of equal protection doctrine will lead is consistent with our history, our traditions, or our political institutions....

The standard the plurality proposes exemplifies the intractable difficulties in deriving a judicially manageable standard from the Equal Protection Clause for adjudicating political gerrymandering claims. The plurality rejects any standard that would require drawing "district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be,"...and states that "unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole."...In my view, this standard will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality.... Either outcome would be calamitous for the federal courts, for the States, and for our two-party system.

Copyright © 2012 Pearson Education, Inc. 351

Vote dilution analysis is far less manageable when extended to major political parties than if confined to racial minority groups. First, an increase in the number of competing claims to equal group representation will make judicial review of apportionment vastly more complex. Designing an apportionment plan that does not impair or degrade the voting strength of several groups is more difficult than designing a plan that does not have such an effect on one group for the simple reason that, as the number of criteria the plan must meet increases, the number of solutions that will satisfy those criteria will decrease. Even where it is not impossible to reconcile the competing claims of political, racial, and other groups, the predictable result will be greater judicial intrusion into the apportionment process.

Second, while membership in a racial group is an immutable characteristic, voters can—and often do—move from one party to the other or support candidates from both parties. Consequently, the difficulty of measuring voting strength is heightened in the case of a major political party. It is difficult enough to measure "a voter's or a group of voters' influence on the political process as a whole" ...when the group is a racial minority in a particular district or community. When the group is a major political party the difficulty is greater, and the constitutional basis for intervening far more tenuous.

Moreover, any such intervention is likely to move in the direction of proportional representation for political parties....

I would avoid the difficulties generated by the plurality's efforts to confine the effects of a generalized group's right to equal representation by not recognizing such a right in the first instance. To allow district courts to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections or future apportionments invites "findings" on matters as to which neither judges nor anyone else can have any confidence. Once it is conceded that "a group's electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difficult"...the virtual impossibility of reliably predicting how difficult it will be to win an election in 2, or 4, or 10 years should, in my view, weigh in favor of holding such challenges nonjusticiable. Racial gerrymandering should remain justiciable, for the harms it engenders run counter to the central thrust of the Fourteenth Amendment. But no such justification can be given for judicial intervention on behalf of mainstream political parties, and the risks such intervention poses to our political institutions are unacceptable. "Political affiliation is the keystone of the political trade.

Race, ideally, is not."...

JUSTICE POWELL, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part....

The Equal Protection Clause guarantees citizens that their state will govern them impartially.... In the context of redistricting, that guarantee is of critical importance because the franchise provides most citizens their only voice in the legislative process.... Since the contours of a voting district powerfully may affect citizens' ability to exercise influence through their vote, district lines should be determined in accordance with neutral and legitimate criteria. When deciding where those lines will fall, the state should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation....

In light of the foregoing principles, I believe that the plurality's opinion is seriously flawed in several respects. First, apparently to avoid the forceful evidence that some district lines indisputably were designed to and did discriminate against Democrats, the plurality describes Copyright © 2012 Pearson Education, Inc. 352

appellees' claim as alleging that "Democratic voters over the State as a whole, not Democratic voters in particular districts, have been subjected to unconstitutional discrimination."...This characterization is not inconsistent with appellees' proof, and the District Court's finding, of statewide discriminatory effect resulting from "individual districting" that "exemplif[ies] this discrimination."...If Democratic voters in a number of critical districts are the focus of unconstitutional discrimination, as the District Court found, the effect of that discrimination will be felt over the State as a whole.

The plurality also erroneously characterizes the harm members of the losing party suffer as a group when they are deprived, through deliberate and arbitrary distortion of district boundaries, of the opportunity to elect representatives of their choosing. It may be, as the plurality suggests, that representation will not "entirely ignore the interests" of opposition voters.... But it defies political reality to suppose that members of a losing party have as much political influence over state government as do members of the victorious party. Even the most conscientious state legislators do not disregard opportunities to reward persons or groups who were active supporters in their election campaigns. Similarly, no one doubts that partisan considerations play a major role in the passage of legislation and the appointment of state officers. Not surprisingly, therefore, the District Court expressly found that "[c]ontrol of the General Assembly is crucial" to members of the major political parties in Indiana.... In light of those findings, I cannot accept the plurality's apparent conclusion that loss of this "crucial" position is constitutionally insignificant as long as the losers are not "entirely ignored" by the winners....

The final and most basic flaw in the plurality's opinion is its failure to enunciate any standard that affords guidance to legislatures and courts. Legislators and judges are left to wonder whether compliance with "one person, one vote" completely insulates a partisan gerrymander from constitutional scrutiny, or whether a fairer but as yet undefined standard applies. The failure to articulate clear doctrine in this area places the plurality in the curious position of inviting further litigation even as it appears to signal the "constitutional green light" to would-be gerrymanderers....

Copyright © 2012 Pearson Education, Inc. 353

Federal Election Commission v. Colorado Republican Federal Campaign Committee

533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed. 2d 461 (2001) http://laws.findlaw.com/us/533/431.html Among other restrictions, the Federal Election Campaign Act limits expenditures by party committees on behalf of senatorial candidates to the greater of $20,000 (adjusted for inflation), or two cents multiplied by the voting age population of the state in which the election is held. The same limits apply to campaigns for House seats in states with only one representative. For other states, the limit on party expenditures in House campaigns is $10,000, preadjusted. As adjusted, these limits in Senate races in 2000 ranged from $67,560 to $1,636,438; House limits ranged from $33,780 to $67,560. A 1996 decision by the Supreme Court struck down these limits as applied to expenditures independent of a candidate's campaign. On remand, the U.S. district court in Colorado invalidated the limits as applied to coordinated expenditures, and the U.S. Court of Appeals for the Tenth Circuit affirmed. Majority: Souter, Stevens, O'Connor, Ginsburg, Breyer.

Dissenting: Thomas, Rehnquist, Scalia, Kennedy.

JUSTICE SOUTER delivered the opinion of the Court.

In Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n., (Colorado I) (1996), we held that spending limits set by the Federal Election Campaign Act were unconstitutional as applied to the Colorado Republican Party's independent expenditures in connection with a senatorial campaign. We remanded for consideration of the party's claim that all limits on expenditures by a political party in connection with congressional campaigns are facially unconstitutional and thus unenforceable even as to spending coordinated with a candidate. Today we reject that facial challenge to the limits on parties' coordinated expenditures....

Spending for political ends and contributing to political candidates both fall within the First Amendment's protection of speech and political association. But ever since we first reviewed the 1971 Act [in Buckley v. Valeo (1976)], we have understood that limits on political expenditures deserve closer scrutiny than restrictions on political contributions. Restraints on expenditures generally curb more expressive and associational activity than limits on contributions do. A further reason for the distinction is that limits on contributions are more clearly justified by a link to political corruption than limits on other kinds of unlimited political spending are (corruption being understood not only as quid pro quo agreements, but also as undue influence on an officerholder's judgment, and the appearance of such influence)....Given these differences, we have routinely struck down limitations on independent expenditures by candidates, other individuals, and groups,... while repeatedly upholding contribution limits....

The First Amendment line between spending and donating is easy to draw when it falls between independent expenditures by individuals or political action committees (PACs) without any candidate's approval (or wink or nod), and contributions in the form of cash gifts to candidates.

But facts speak less clearly once the independence of the spending cannot be taken for granted, and money spent by an individual or PAC according to an arrangement with a candidate is therefore harder to classify. As already seen, Congress drew a functional, not a formal, line between contributions and expenditures when it provided that coordinated expenditures by Copyright © 2012 Pearson Education, Inc. 354

individuals and nonparty groups are subject to the Act's contribution limits. In Buckley, the Court acknowledged Congress's functional classification, and observed that treating coordinated expenditures as contributions "prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." Buckley, in fact, enhanced the significance of this functional treatment by striking down independent expenditure limits on First Amendment grounds while upholding limitations on contributions (by individuals and nonparty groups), as defined to include coordinated expenditures....

The Party's argument that its coordinated spending, like its independent spending, should be left free from restriction under the Buckley line of cases boils down to this: [B]ecause a party's most important speech is aimed at electing candidates and is itself expressed through those candidates, any limit on party support for a candidate imposes a unique First Amendment burden. The point of organizing a party, the argument goes, is to run a successful candidate who shares the party's policy goals. Therefore, while a campaign contribution is only one of several ways that individuals and nonparty groups speak and associate politically, financial support of candidates is essential to the nature of political parties as we know them. And coordination with a candidate is a party's natural way of operating, not merely an option that can easily be avoided....

The Government's argument for treating coordinated spending like contributions goes back to Buckley. There, the rationale for endorsing Congress's equation of coordinated expenditures and contributions was that the equation "prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." The idea was that coordinated expenditures are as useful to the candidate as cash, and that such "disguised contributions" might be given "as a quid pro quo for improper commitments from the candidate" (in contrast to independent expenditures, which are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate's point of view). In effect, therefore, Buckley subjected limits on coordinated expenditures by individuals and nonparty groups to the same scrutiny it applied to limits on their cash contributions. The standard of scrutiny requires the limit to be "'closely drawn' to match a 'sufficiently important interest,' ...though the dollar amount of the limit need not be 'fine tun[ed],'" The Government develops this rationale a step further in applying it here. Coordinated spending by a party should be limited not only because it is like a party contribution, but for a further reason. A party's right to make unlimited expenditures coordinated with a candidate would induce individual and other nonparty contributors to give to the party in order to finance coordinated spending for a favored candidate beyond the contribution limits binding on them. The Government points out that a degree of circumvention is occurring under present law (which allows unlimited independent spending and some coordinated spending). Individuals and nonparty groups who have reached the limit of direct contributions to a candidate give to a party with the understanding that the contribution to the party will produce increased party spending for the candidate's benefit. The Government argues that if coordinated spending were unlimited, circumvention would increase: [B]ecause coordinated spending is as effective as direct contributions in supporting a candidate, an increased opportunity for coordinated spending would aggravate the use of a party to funnel money to a candidate from individuals and nonparty groups, who would thus bypass the contribution limits that Buckley upheld....

The assertion that the party is so joined at the hip to candidates that most of its spending must necessarily be coordinated spending is a statement at odds with the history of nearly 30 years under the Act. It is well to remember that ever since the Act was amended in 1974, coordinated spending by a party committee in a given race has been limited by the provision challenged here Copyright © 2012 Pearson Education, Inc. 355

(or its predecessor). It was not until 1996 and the decision in Colorado I that any spending was allowed above that amount, and since then only independent spending has been unlimited. As a consequence, the Party's claim that coordinated spending beyond the limit imposed by the Act is essential to its very function as a party amounts implicitly to saying that for almost three decades political parties have not been functional or have been functioning in systematic violation of the law. The Party, of course, does not in terms make either statement, and we cannot accept either implication....

There is a different weakness in the seemingly unexceptionable premise that parties are organized for the purpose of electing candidates, so that imposing on the way parties serve that function is uniquely burdensome. The fault here is not so much metaphysics as myopia, a refusal to see how the power of money actually works in the political structure.

When we look directly at a party's function in getting and spending money, it would ignore reality to think that the party role is adequately described by speaking generally of electing particular candidates. The money parties spend comes from contributors with their own personal interests.

PACs, for example, are frequent party contributors who (according to one of the Party's own experts) "do not pursue the same objectives in electoral politics," that parties do....In fact, many PACs naturally express their narrow interests by contributing to both parties during the same electoral cycle, and sometimes even directly to two competing candidates in the same election.

Parties are thus necessarily the instruments of some contributors whose object is not to support the party's message or to elect party candidates across the board, but rather to support a specific candidate for the sake of a position on one, narrow issue, or even to support any candidate who will be obliged to the contributors....

Parties thus perform functions more complex than simply electing candidates; whether they like it or not, they act as agents for spending on behalf of those who seek to produce obligated officeholders. It is this party role, which functionally unites parties with other self-interested political actors, that the Party Expenditure Provision targets. This party role, accordingly, provides good reason to view limits on coordinated spending by parties through the same lens applied to such spending by donors, like PACs, that can use parties as conduits for contributions meant to place candidates under obligation.

Insofar as the Party suggests that its strong working relationship with candidates and its unique ability to speak in coordination with them should be taken into account in the First Amendment analysis, we agree....

It does not, however, follow from a party's efficiency in getting large sums and spending intelligently that limits on a party's coordinated spending should be scrutinized under an unusually high standard, and in fact any argument from sophistication and power would cut both ways.... If the coordinated spending of other, less efficient and perhaps less practiced political actors can be limited consistently with the Constitution, why would the Constitution forbid regulation aimed at a party whose very efficiency in channeling benefits to candidates threatens to undermine the contribution (and hence coordinated spending) limits to which those others are unquestionably subject? ...

The Party's arguments for being treated differently from other political actors subject to limitation on political spending under the Act do not pan out....

Copyright © 2012 Pearson Education, Inc. 356

We accordingly apply to a party's coordinated spending limitation the same scrutiny we have applied to the other political actors, that is, scrutiny appropriate for a contribution limit, enquiring whether the restriction is "closely drawn" to match what we have recognized as the "sufficiently important" government interest in combating political corruption....

Since there is no recent experience with unlimited coordinated spending, the question is whether experience under the present law confirms a serious threat of abuse from the unlimited coordinated party spending as the Government contends. It clearly does. Despite years of enforcement of the challenged limits, substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law, and it shows beyond serious doubt how contribution limits would be eroded if inducement to circumvent them were enhanced by declaring parties' coordinated spending wide open.

Under the Act, a donor is limited to $2,000 in contributions to one candidate in a given election cycle. The same donor may give as much as another $20,000 each year to a national party committee supporting the candidate. What a realist would expect to occur has occurred. Donors give to the party with the tacit understanding that the favored candidate will benefit....

If suddenly every dollar of spending could be coordinated with the candidate, the inducement to circumvent would almost certainly intensify. Indeed, if a candidate could be assured that donations through a party could result in funds passed through to him for spending on virtually identical items as his own campaign funds, a candidate enjoying the patronage of affluent contributors would have a strong incentive not merely to direct donors to his party, but to promote circumvention as a step toward reducing the number of donors requiring time-consuming cultivation. If a candidate could arrange for a party committee to foot his bills, to be paid with $20,000 contributions to the party by his supporters, the number of donors necessary to raise $1,000,000 could be reduced from 500 (at $2,000 per cycle) to 46 (at $2,000 to the candidate and $20,000 to the party, without regard to donations outside the election year)....

There is no significant functional difference between a party's coordinated expenditure and a direct party contribution to the candidate, and there is good reason to expect that a party's right of unlimited coordinated spending would attract increased contributions to parties to finance exactly that kind of spending. Coordinated expenditures of money donated to a party are tailor-made to undermine contribution limits. Therefore the choice here is not, as in Buckley and Colorado I, between a limit on pure contributions and pure expenditures. The choice is between limiting contributions and limiting expenditures whose special value as expenditures is also the source of their power to corrupt. Congress is entitled to its choice.

We hold that a party's coordinated expenditures, unlike expenditures truly independent, may be restricted to minimize circumvention of contribution limits. We therefore reject the Party's facial challenge and, accordingly, reverse the judgment of the United States Court of Appeals for the Tenth Circuit.

It is so ordered.

JUSTICE THOMAS, with whom JUSTICE SCALIA and JUSTICE KENNEDY join, and with whom THE CHIEF JUSTICE joins in part, dissenting.

The Party Expenditure Provision severely limits the amount of money that a national or state committee of a political party can spend in coordination with its own candidate for the Senate or Copyright © 2012 Pearson Education, Inc. 357

House of Representatives. Because this provision sweeps too broadly, interferes with the partycandidate relationship, and has not been proved necessary to combat corruption, I respectfully dissent.

As an initial matter, I continue to believe that Buckley should be overruled.... I remain baffled that this Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend.

In this case, the Government does not attempt to argue that the Party Expenditure Provision satisfies strict scrutiny.... Nor could it. [T]he campaign financing law at issue fails strict scrutiny.

We need not, however, overrule Buckley and apply strict scrutiny in order to hold the Party Expenditure Provision unconstitutional. Even under Buckley, which described the requisite scrutiny as "exacting" and "rigorous," the regulation cannot pass constitutional muster. In practice, Buckley scrutiny has meant that restrictions on contributions by individuals and political committees do not violate the First Amendment so long as they are "closely drawn" to match a "sufficiently important" government interest....

The Court notes this existing rationale and attempts simply to treat coordinated expenditures by political parties as equivalent to contributions by individuals and political committees. Thus, at least implicitly, the Court draws two conclusions: coordinated expenditures are no different from contributions, and political parties are no different from individuals and political committees.

Both conclusions are flawed....

Even if I were to ignore the breadth of the statutory text, and to assume that all coordinated expenditures are functionally equivalent to contributions, I still would strike down the Party Expenditure Provision. The source of the "contribution" at issue is a political party, not an individual or a political committee, as in Buckley....Restricting contributions by individuals and political committees may, under Buckley, entail only a "marginal restriction," but the same cannot be said about limitations on political parties. Political parties and their candidates are "inextricably intertwined" in the conduct of an election. A party nominates its candidate; a candidate often is identified by party affiliation throughout the election and on the ballot; and a party's public image is largely defined by what its candidates say and do....

The Court nevertheless concludes that these concerns of inhibiting party speech are rendered "implausible" by the nearly 30 years of history in which coordinated spending has been statutorily limited.... I find more convincing, and more relevant, the record evidence that the parties have developed, which indicates that parties have suffered as a result of the Party Expenditure Provision. Second, we have never before upheld a limitation on speech simply because speakers have coped with the limitation for 30 years.... And finally, if the passage of time were relevant to the constitutional inquiry, I would wonder why the Court adopted a "30-year" rule rather than the possible countervailing "200-year" rule. For nearly 200 years, this country had congressional elections without limitations on coordinated expenditures by political parties. Nowhere does the Court suggest that these elections were not "functional," or that they were marred by corruption....

But even if I were to view parties' coordinated expenditures as akin to contributions by individuals and political committees, I still would hold the Party Expenditure Provision constitutionally invalid.... In this case, there is no question that the Government has asserted a sufficient interest, that of preventing corruption.... The question is whether the Government has Copyright © 2012 Pearson Education, Inc. 358

demonstrated both that coordinated expenditures by parties give rise to corruption and that the restriction is "closely drawn" to curb this corruption. I believe it has not....

Even if the Government had presented evidence that the Party Expenditure Provision affects corruption, the statute still would be unconstitutional, because there are better tailored alternatives for addressing the corruption. In addition to bribery laws and disclosure laws, the Government has two options that would not entail the restriction of political parties' First Amendment rights.

First, the Government could enforce the earmarking rule under which contributions that "are in any way earmarked or otherwise directed through an intermediary or conduit to [a] candidate" are treated as contributions to the candidate. Vigilant enforcement of this provision is a precise response to the Court's circumvention concerns. If a donor contributes $2,000 to a candidate (the maximum donation in an election cycle), he cannot direct the political party to funnel another dime to the candidate without confronting the Federal Election Campaign Act's civil and criminal penalties....

[T]here is a second, well-tailored option for combating corruption that does not entail the reduction of parties' First Amendment freedoms. The heart of the Court's circumvention argument is that, whereas individuals can donate only $2,000 to a candidate in a given election cycle, they can donate $20,000 to the national committees of a political party, an amount that is allegedly large enough to corrupt the candidate. If indeed $20,000 is enough to corrupt a candidate (an assumption that seems implausible on its face and is, in any event, unsupported by any evidence), the proper response is to lower the cap. That way, the speech restriction is directed at the source of the alleged corruption—the individual donor—and not the party....

In my view, it makes no sense to contravene a political party's core First Amendment rights because of what a third party might unlawfully try to do. Instead of broadly restricting political parties' speech, the Government should have pursued better-tailored alternatives for combating the alleged corruption.

Copyright © 2012 Pearson Education, Inc. 359

Garcia v. San Antonio Metropolitan Transit Authority

469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed. 2d 1016 (1985) http://laws.findlaw.com/us/469/528.html San Antonio Metropolitan Transit Authority (SAMTA) operates a public mass-transit system in San Antonio, Texas, and the surrounding area. In 1976 the Supreme Court in National League of Cities v. Usery invalidated the extension of the maximum hours and minimum wage provisions of the Fair Labor Standards Act (FLSA) to most state and municipal employees. The transit authority informed its employees that this decision relieved it of overtime pay obligations. In 1979, the Wage and Hour Administration of the Department of Labor informed SAMTA that its operations were nonetheless covered by the FLSA. The authority then asked the U.S. District Court for the Western District of Texas for a declaratory judgment that the 1976 decision precluded application of the FLSA's overtime requirements to its operations. At the same time, Joe Garcia and several other SAMTA employees filed suit against SAMTA in district court for overtime pay under the FLSA. In 1981, the district court ruled that, under National League of Cities, SAMTA was immune from the requirements of the FLSA. The Secretary of Labor and Garcia appealed directly to the Supreme Court. While the San Antonio case was in progress, the Supreme Court held in Transportation Union v. Long Island Rail Road Co. (1982) that commuter rail service provided by a state-owned entity did not constitute a "traditional governmental function" and so did not qualify for immunity under National League of Cities. The Court vacated the district court's judgment in the SAMTA case for further consideration in light of Long Island Rail Road. On remand, the district court maintained its original view and decided in favor of SAMTA. Majority: Blackmun, Brennan, Marshall, Stevens, White. Dissenting: Powell, Burger, O'Connor, Rehnquist.

JUSTICE BLACKMUN delivered the opinion of the Court.

We revisit in these cases an issue raised in National League of Cities v. Usery....In that litigation, this Court, by a sharply divided vote, ruled that the Commerce Clause does not empower Congress to enforce the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA) against the States "in areas of traditional governmental functions." ... Although National League of Cities supplied some examples of "traditional governmental functions," it did not offer a general explanation of how a "traditional" function is to be distinguished from a "nontraditional" one. Since then, federal and state courts have struggled with the task, thus imposed, of identifying a traditional function for purposes of state immunity under the Commerce Clause....

Our examination of this "function" standard applied in these and other cases over the last eight years now persuades us that the attempt to draw the boundaries of state regulatory immunity in terms of "traditional governmental function" is not only unworkable but is inconsistent with established principles of federalism and, indeed, with those very federalism principles on which National League of Cities purported to rest. That case, accordingly, is overruled....

We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is "integral" or "traditional." Any such rule leads to inconsistent results at Copyright © 2012 Pearson Education, Inc. 360

the same time that it disserves principles of democratic self-governance, and it breeds inconsistency precisely because it is divorced from those principles. If there are to be limits on the Federal Government's power to interfere with state functions—as undoubtedly there are—we must look elsewhere to find them. We accordingly return to the underlying issue that confronted this Court in National League of Cities—the manner in which the Constitution insulates States from the reach of Congress' power under the Commerce Clause.

The central theme of National League of Cities was that the States occupy a special position in our constitutional system and that the scope of Congress' authority under the Commerce Clause must reflect that position....

What has proved problematic is not the perception that the Constitution's federal structure imposes limitations on the Commerce Clause, but rather the nature and content of those limitations....

We doubt that courts ultimately can identify principled constitutional limitations on the scope of Congress' Commerce Clause powers over the States merely by relying on a priori definitions of state sovereignty. In part, this is because of the elusiveness of objective criteria for "fundamental" elements of state sovereignty, a problem we have witnessed in the search for "traditional governmental functions." There is, however, a more fundamental reason: the sovereignty of the States is limited by the Constitution itself. A variety of sovereign powers, for example, are withdrawn from the States by Article I, § 10. Section 8 of the same Article works an equally sharp contraction of state sovereignty by authorizing Congress to exercise a wide range of legislative powers and (in conjunction with the Supremacy Clause of Article VI) to displace contrary state legislation.... By providing for final review of questions of federal law in this Court, Article III curtails the sovereign power of the States' judiciaries to make authoritative determinations of law....

As a result, to say that the Constitution assumes the continued role of the States is to say little about the nature of that role.... With rare exceptions, like the guarantee, in Article IV, § 3, of state territorial integrity, the Constitution does not carve out express elements of state sovereignty that Congress may not employ its delegated powers to displace.... [A]nd the fact that the States remain sovereign as to all powers not vested in Congress or denied them by the Constitution offers no guidance about where the frontier between state and federal power lies.... [W]e have no license to employ freestanding conceptions of state sovereignty when measuring congressional authority under the Commerce Clause....

In short, the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.

Insofar as the present cases are concerned, then, we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA, as applied to SAMTA, that is destructive of state sovereignty or violative of any constitutional provision.

SAMTA faces nothing more than the same minimum-wage and overtime obligations that hundreds of thousands of other employers, public as well as private, have to meet....

Copyright © 2012 Pearson Education, Inc. 361

Of course, we continue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress' authority under the Commerce Clause must reflect that position. But the principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated. In the factual setting of these cases the internal safeguards of the political process have performed as intended....

Though the separate concurrence [by Justice Blackmun—ED.] providing the fifth vote in National League of Cities was "not untroubled by certain possible implications" of the decision ... the Court in that case attempted to articulate affirmative limits on the Commerce Clause power in terms of core governmental functions and fundamental attributes of state sovereignty. But the model of democratic decisionmaking the Court there identified underestimated, in our view, the solicitude of the national political process for the continued vitality of the States. Attempts by other courts since then to draw guidance from this model have proved it both impracticable and doctrinally barren. In sum, in National League of Cities the Court tried to repair what did not need repair.

We do not lightly overrule recent precedent. We have not hesitated, however, when it has become apparent that a prior decision has departed from a proper understanding of congressional power under the Commerce Clause.... Due respect for the reach of congressional power within the federal system mandates that we do so now. ... The judgment of the District Court is reversed, and these cases are remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting....

Despite some genuflecting in the Court's opinion to the concept of federalism, today's decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause. ... [T]he extent to which the States may exercise their authority, when Congress purports to act under the Commerce Clause, henceforth is to be determined from time to time by political decisions made by members of the federal government, decisions the Court says will not be subject to judicial review. I note that it does not seem to have occurred to the Court that it—an unelected majority of five Justices—today rejects almost 200 years of the understanding of the constitutional status of federalism. In doing so, there is only a single passing reference to the Tenth Amendment. Nor is so much as a dictum of any court cited in support of the view that the role of the States in the federal system may depend upon the grace of elected federal officials, rather than on the Constitution as interpreted by this Court....

Far from being "unsound in principle" ... judicial enforcement of the Tenth Amendment is essential to maintaining the federal system so carefully designed by the Framers and adopted in the Constitution....

Copyright © 2012 Pearson Education, Inc. 362

Thus, the harm to the States that results from federal overreaching under the Commerce Clause is not simply a matter of dollars and cents.... Rather, by usurping functions traditionally performed by the States, federal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power between the States and the federal government, a balance designed to protect our fundamental liberties....

JUSTICE REHNQUIST, dissenting ... [omitted].

JUSTICE O'CONNOR, with whom JUSTICE POWELL and JUSTICE REHNQUIST join, dissenting....

Due to the emergence of an integrated and industrialized national economy, this Court has been required to examine and review a breath-taking expansion of the powers of Congress. In doing so the Court correctly perceived that the Framers of our Constitution intended Congress to have sufficient power to address national problems. But the Framers were not single-minded. The Constitution is animated by an array of intentions.... Just as surely as the Framers envisioned a National Government capable of solving national problems, they also envisioned a republic whose vitality was assured by the diffusion of power not only among the branches of the Federal Government, but also between the Federal Government and the States.... In the 18th century these intentions did not conflict because technology had not yet converted every local problem into a national one. A conflict has now emerged, and the Court today retreats rather than reconciles the Constitution's dual concerns for federalism and an effective commerce power....

Incidental to this expansion of the commerce power, Congress has been given an ability it lacked prior to the emergence of an integrated national economy. Because virtually every state activity, like virtually every activity of a private individual, arguably "affects" interstate commerce, Congress can now supplant the States from the significant sphere of activities envisioned for them by the Framers. It is in this context that recent changes in the workings of Congress, such as the direct election of Senators and the expanded influence of national interest groups ... become relevant. These changes may well have lessened the weight Congress gives to the legitimate interests of States as States. As a result, there is now a real risk that Congress will gradually erase the diffusion of power between state and nation on which the Framers based their faith in the efficiency and vitality of our Republic....

It is worth recalling the cited passage in McCulloch v. Maryland ... that lies at the source of the recent expansion of the commerce power. "Let the end be legitimate, let it be within the scope of the constitution," Chief Justice Marshall said, "and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" (emphasis added [by Justice O'Connor]). The spirit of the Tenth Amendment, of course, is that the States will retain their integrity in a system in which the laws of the United States are nevertheless supreme....

This ... requires the Court to enforce affirmative limits on federal regulation of the States to complement the judicially crafted expansion of the interstate commerce power....

Copyright © 2012 Pearson Education, Inc. 363

Kimel v. Florida Board of Regents

528 U.S. 62, 120 S.Ct. 631, 145 L.Ed. 2d 522 (2000) http://laws.findlaw.com/us/528/62.html The Age Discrimination in Employment Act of 1967 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual [over 40 years of age] ... because of such individual's age." In 1974 Congress extended the ADEA to include state and local governments. In 1995 J. Daniel Kimel, Jr., and other current and former faculty and librarians of Florida State University sued the Florida Board of Regents in the United States District Court for the Northern District of Florida, alleging that a failure to allocate funds to provide for previously agreed-upon adjustments to salaries had a disparate impact on the salaries of older employees. Rejecting a motion by the Regents that the Eleventh Amendment shielded them from the suit, the District Court held that Congress in the ADEA had expressed its intent to abrogate the states' Eleventh Amendment immunity and that the ADEA was appropriate legislation under the Fourteenth Amendment. Consolidating Kimel's case with a similar case from Alabama and another one from Florida, the Eleventh Circuit Court of Appeals reversed the district court, 2–1. One judge found no congressional intention in the ADEA to abrogate state immunity, and the other believed that Congress lacked authority under the Fourteenth Amendment to do so. Majority: O'Connor, Rehnquist, Scalia, Kennedy, Thomas. Dissenting: Stevens, Souter, Ginsburg, and Breyer.

JUSTICE O'CONNOR delivered the opinion of the Court....

Although today's cases concern suits brought by citizens against their own States, this Court has long "‘understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms.'" Accordingly, for over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. Petitioners nevertheless contend that the States of Alabama and Florida must defend the present suits on the merits because Congress abrogated their Eleventh Amendment immunity in the ADEA. To determine whether petitioners are correct, we must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority....

[Justice O'Connor concludes that] Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity....

This is not the first time we have considered the constitutional validity of the 1974 extension of the ADEA to state and local governments. In EEOC v. Wyoming (1983), we held that the ADEA constitutes a valid exercise of Congress' power "[t]o regulate Commerce ... among the several States," and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment. Because we found the ADEA valid under Congress' Commerce Clause power, we concluded that it was unnecessary to determine whether the Act also could be supported by Congress' power under § 5 of the Fourteenth Amendment. Resolution of today's cases requires us to decide that question.

Copyright © 2012 Pearson Education, Inc. 364

In Seminole Tribe [of Florida v. Florida (1996)], we held that Congress lacks power under Article I to abrogate the States' sovereign immunity. "Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States." ... Under our firmly established precedent then, if the ADEA rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers.

Justice Stevens disputes that well-established precedent again. In Alden [v. Maine (1999)], we explained that, "[a]lthough the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design." ... Indeed, the present dissenters' refusal to accept the validity and natural import of decisions like Hans [v. Louisiana, (1890)], rendered over a full century ago by this Court, makes it difficult to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution. Today we adhere to our holding in Seminole Tribe: Congress' powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals.

Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States' sovereign immunity. In Fitzpatrick v. Bitzer (1976), we recognized that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." ... Accordingly, the private petitioners in these cases may maintain their ADEA suits against the States of Alabama and Florida if, and only if, the ADEA is appropriate legislation under § 5....

As we recognized most recently in City of Boerne v. Flores (1997), ... "It is for Congress in the first instance to ‘determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress' power "to enforce" the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text.

Nevertheless, we have also recognized that the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power. For example, Congress cannot "decree the substance of the Fourteenth Amendment's restrictions on the States.... It has been given the power ‘to enforce,' not the power to determine what constitutes a constitutional violation." The ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch. In City of Boerne, we noted that the determination whether purportedly prophylactic legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at issue, is often difficult. The line between the two is a fine one. Accordingly, recognizing that "Congress must have wide latitude in determining where [that line] lies," we held that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."

Applying the ... test in these cases, we conclude that the ADEA is not "appropriate legislation" under § 5.... Initially, the substantive requirements the ADEA imposes on state and local

Copyright © 2012 Pearson Education, Inc. 365

governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act....

States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The rationality commanded by the Equal Protection Clause does not require States to match age distinctions and the legitimate interests they serve with razorlike precision.... Under the Fourteenth Amendment, a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests. The Constitution does not preclude reliance on such generalizations. That age proves to be an inaccurate proxy in any individual case is irrelevant....

Finally, because an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the "facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." ...

Judged against the backdrop of our equal protection jurisprudence, it is clear that the ADEA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." The Act, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. The ADEA makes unlawful, in the employment context, all "discriminat[ion] against any individual ... because of such individual's age." ...

That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our § 5 inquiry.... [W]e have never held that § 5 precludes Congress from enacting reasonably prophylactic legislation. Our task is to determine whether the ADEA is in fact just such an appropriate remedy or, instead, merely an attempt to substantively redefine the States' legal obligations with respect to age discrimination....

Our examination of the ADEA's legislative record confirms that Congress' 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation....

A review of the ADEA's legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the § 5 inquiry, Congress' failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field.... [W]e hold that the ADEA is not a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. The ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid.

Our decision today does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of their state employers. We hold only that, in the ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by private individuals.

State employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every State of the Union. Those avenues of relief remain available today, just as they were before this decision.

Copyright © 2012 Pearson Education, Inc. 366

Because the ADEA does not validly abrogate the States' sovereign immunity, however, the present suits must be dismissed. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting in part and concurring in part.

Congress' power to regulate the American economy includes the power to regulate both the public and the private sectors of the labor market. Federal rules outlawing discrimination in the workplace, like the regulation of wages and hours or health and safety standards, may be enforced against public as well as private employers. In my opinion, Congress' power to authorize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power.

The application of the ancient judge-made doctrine of sovereign immunity in cases like these is supposedly justified as a freestanding limit on congressional authority, a limit necessary to protect States' "dignity and respect" from impairment by the National Government. The Framers did not, however, select the Judicial Branch as the constitutional guardian of those state interests. Rather, the Framers designed important structural safeguards to ensure that when the National Government enacted substantive law (and provided for its enforcement), the normal operation of the legislative process itself would adequately defend state interests from undue infringement.

It is the Framers' compromise giving each State equal representation in the Senate that provides the principal structural protection for the sovereignty of the several States. The composition of the Senate was originally determined by the legislatures of the States, which would guarantee that their interests could not be ignored by Congress. The Framers also directed that the House be composed of Representatives selected by voters in the several States, the consequence of which is that "the states are the strategic yardsticks for the measurement of interest and opinion, the special centers of political activity, the separate geographical determinants of national as well as local politics."...

Federalism concerns do make it appropriate for Congress to speak clearly when it regulates state action. But when it does so, as it has in these cases, we can safely presume that the burdens the statute imposes on the sovereignty of the several States were taken into account during the deliberative process leading to the enactment of the measure. Those burdens necessarily include the cost of defending against enforcement proceedings and paying whatever penalties might be incurred for violating the statute. In my judgment, the question whether those enforcement proceedings should be conducted exclusively by federal agencies, or may be brought by private parties as well, is a matter of policy for Congress to decide. In either event, once Congress has made its policy choice, the sovereignty concerns of the several States are satisfied, and the federal interest in evenhanded enforcement of federal law, explicitly endorsed in Article VI of the Constitution, does not countenance further limitations. There is not a word in the text of the Constitution supporting the Court's conclusion that the judge-made doctrine of sovereign immunity limits Congress' power to authorize private parties, as well as federal agencies, to enforce federal law against the States. The importance of respecting the Framers' decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority's repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President.

Copyright © 2012 Pearson Education, Inc. 367

The Eleventh Amendment simply does not support the Court's view. As has been stated before, the Amendment only places a textual limitation on the diversity jurisdiction of the federal courts.

Because the Amendment is a part of the Constitution, I have never understood how its limitation on the diversity jurisdiction of federal courts defined in Article III could be "abrogated" by an Act of Congress. Here, however, private petitioners did not invoke the federal courts' diversity jurisdiction; they are citizens of the same State as the defendants and they are asserting claims that arise under federal law. Thus, today's decision (relying as it does on Seminole Tribe) rests entirely on a novel judicial interpretation of the doctrine of sovereign immunity, which the Court treats as though it were a constitutional precept. It is nevertheless clear to me that if Congress has the power to create the federal rights that these petitioners are asserting, it must also have the power to give the federal courts jurisdiction to remedy violations of those rights, even if it is necessary to "abrogate" the Court's Eleventh Amendment" version of the common-law defense of sovereign immunity to do so. That is the essence of the Court's holding in Pennsylvania v. Union Gas Co. (1989).

I remain convinced that Union Gas was correctly decided and that the decision of five Justices in Seminole Tribe to overrule that case was profoundly misguided. Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent. First and foremost, the reasoning of that opinion is so profoundly mistaken and so fundamentally inconsistent with the Framers' conception of the constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court. Stare decisis, furthermore, has less force in the area of constitutional law. And in this instance, it is but a hollow pretense for any State to seek refuge in stare decisis' protection of reliance interests. It cannot be credibly maintained that a State's ordering of its affairs with respect to potential liability under federal law requires adherence to Seminole Tribe, as that decision leaves open a State's liability upon enforcement of federal law by federal agencies.... Further, Seminole Tribe is a case that will unquestionably have serious ramifications in future cases; indeed, it has already had such an effect, as in the Court's decision today and in the equally misguided opinion of Alden v. Maine. Further still, the Seminole Tribe decision unnecessarily forces the Court to resolve vexing questions of constitutional law respecting Congress' § 5 authority. Finally, by its own repeated overruling of earlier precedent, the majority has itself discounted the importance of stare decisis in this area of the law. Th[is] kind of judicial activism ... represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises....

[Justice Stevens concurred with the majority's conclusion that Congress intended to subject states to suits by private parties under the ADEA.—ED.] JUSTICE THOMAS, with whom JUSTICE KENNEDY joins, concurring in part and dissenting in part ... [omitted].

Copyright © 2012 Pearson Education, Inc. 368

National Endowment for the Arts v. Finley

524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed. 2d 500 (1998) http://laws.findlaw.com/us/524/569.html In 1990 Congress amended the National Foundation on the Arts and the Humanities Act, directing in § 954(d)(1) of Title 20 of the U.S. Code that the Chair of the National Endowment for the Arts "shall ensure" that "artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." These changes were prompted by public outcry over several artistic projects that had benefited from NEA funding. Of particular concern were exhibits of Robert Mapplethorpe's works that included homo-erotic photography and of Andres Serrano's "Piss Christ" that featured a photograph of a crucifix immersed in the artist's urine. The amendment represented a compromise in Congress on whether and how to impose greater public control over the grants selection process at the NEA. Karen Finley and three other performance artists had applications pending at the NEA in 1990.

When their requests for funds were denied, they filed suit in the United States District Court for the Central District of California, claiming that the NEA had rejected their applications on political grounds. Once the 1990 amendments became law, the National Association of Artists' Organizations joined the four individuals in an amended complaint in the district court, alleging that § 954(d)(1) on its face violated the free speech clause of the First Amendment and the due process clause of the Fifth Amendment. In 1992, the district court found both arguments persuasive and enjoined the NEA from enforcing § 954(d)(1). In 1996 a divided three-judge panel of the Ninth Circuit Court of Appeals affirmed. Majority: O'Connor, Breyer, Ginsburg, Kennedy, Rehnquist, Scalia, Stevens, Thomas. Dissenting: Souter.

JUSTICE O'CONNOR delivered the opinion of the Court....

Respondents raise a facial constitutional challenge to § 954(d)(1), and consequently they confront "a heavy burden" in advancing their claim.... To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech.

Respondents argue that the provision is a paradigmatic example of viewpoint discrimination because it rejects any artistic speech that either fails to respect mainstream values or offends standards of decency. The premise ... is that § 954(d)(1) constrains the agency's ability to fund certain categories of artistic expression. The NEA, however, reads the provision as merely hortatory, and contends that it stops well short of an absolute restriction. Section 954(d)(1) adds "considerations" to the grant-making process; it does not preclude awards to projects that might be deemed "indecent" or "disrespectful," nor place conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application. Indeed, the agency asserts that it has adequately implemented § 954(d)(1) merely by ensuring the representation of various backgrounds and points of view on the advisory panels that analyze grant applications....

It is clear ... that the text of § 954(d)(1) imposes no categorical requirement....

Furthermore, like the plain language of § 954(d), the political context surrounding the adoption of the "decency and respect" clause is inconsistent with respondents' assertion that the provision Copyright © 2012 Pearson Education, Inc. 369

compels the NEA to deny funding on the basis of viewpoint discriminatory criteria. The legislation was a bipartisan proposal introduced as a counterweight to amendments aimed at eliminating the NEA's funding or substantially constraining its grant-making authority....

That § 954(d)(1) admonishes the NEA merely to take "decency and respect" into consideration, and that the legislation was aimed at reforming procedures rather than precluding speech, undercut respondents' argument that the provision inevitably will be utilized as a tool for invidious viewpoint discrimination....

In contrast, the "decency and respect" criteria do not silence speakers by expressly "threaten[ing] censorship of ideas." Thus, we do not perceive a realistic danger that § 954(d)(1) will compromise First Amendment values. As respondents' own arguments demonstrate, the considerations that the provision introduces, by their nature, do not engender the kind of directed viewpoint discrimination that would prompt this Court to invalidate a statute on its face.

Respondents assert, for example, that "[o]ne would be hard-pressed to find two people in the United States who could agree on what the 'diverse beliefs and values of the American public' are, much less on whether a particular work of art 'respects' them"; and they claim that "'[d]ecency' is likely to mean something very different to a septuagenarian in Tuscaloosa and a teenager in Las Vegas."...Accordingly, the provision does not introduce considerations that, in practice, would effectively preclude or punish the expression of particular views....

Respondents' claim that the provision is facially unconstitutional may be reduced to the argument that the criteria in § 954(d)(1) are sufficiently subjective that the agency could utilize them to engage in viewpoint discrimination. Given the varied interpretations of the criteria and the vague exhortation to "take them into consideration," it seems unlikely that this provision will introduce any greater element of selectivity than the determination of "artistic excellence" itself. And we are reluctant, in any event, to invalidate legislation "on the basis of its hypothetical application to situations not before the Court."...

Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding. The NEA has limited resources and it must deny the majority of the grant applications that it receives, including many that propose "artistically excellent" projects. The agency may decide to fund particular projects for a wide variety of reasons, "such as the technical proficiency of the artist, the creativity of the work, the anticipated public interest in or appreciation of the work, the work's contemporary relevance, its educational value, its suitability for or appeal to special audiences (such as children or the disabled), its service to a rural or isolated community, or even simply that the work could increase public knowledge of an art form." As the dissent below noted, it would be "impossible to have a highly selective grant program without denying money to a large amount of constitutionally protected expression."...

Respondent's reliance on our decision in Rosenberger v. Rector (1995) is therefore misplaced. In Rosenberger, a public university declined to authorize disbursements from its Student Activities Fund to finance the printing of a Christian student newspaper. We held that by subsidizing the Student Activities Fund, the University had created a limited public forum, from which it impermissibly excluded all publications with religious editorial viewpoints. Although the scarcity of NEA funding does not distinguish this case from Rosenberger, the competitive process according to which the grants are allocated does. In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately "encourage a diversity of views from private speakers." The NEA's mandate is to make aesthetic judgments, and the inherently Copyright © 2012 Pearson Education, Inc. 370

content-based "excellence" threshold for NEA support sets it apart from the subsidy at issue in Rosenberger—which was available to all student organizations that were "'related to the educational purpose of the University,'"—and from comparably objective decisions on allocating public benefits, such as access to a school auditorium or a municipal theater....

Finally, although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities.... In doing so, "the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other."...

The lower courts also erred in invalidating § 954(d)(1) as unconstitutionally vague. Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards. The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns. It is unlikely, however, that speakers will be compelled to steer too far clear of any "forbidden area" in the context of grants of this nature.... We recognize, as a practical matter, that artists may conform their speech to what they believe to be the decision-making criteria in order to acquire funding.... But when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.

In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity.

Indeed, if this statute is unconstitutionally vague, then so too are all government programs awarding scholarships and grants on the basis of subjective criteria such as "excellence." To accept respondents' vagueness argument would be to call into question the constitutionality of these valuable government programs and countless others like them.

Section 954(d)(1) merely adds some imprecise considerations to an already subjective selection process. It does not, on its face, impermissibly infringe on First or Fifth Amendment rights.

Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment....

It is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects.... And it makes not a bit of difference, insofar as either common sense or the Constitution is concerned, whether these officials further their (and, in a democracy, our) favored point of view by achieving it directly (having government-employed artists paint pictures ... or government-employed doctors perform abortions); or by advocating it officially (establishing an Office of Art Appreciation ... or an Office of Voluntary Population Control); or by giving money to others who achieve or advocate it (funding private art classes...or Planned Parenthood)....Rosenberger...found the viewpoint discrimination unconstitutional, not because funding of "private" speech was involved, but because the government had established a limited public forum—to which the NEA's granting of highly selective (if not highly discriminatory) awards bears no resemblance.

Copyright © 2012 Pearson Education, Inc. 371

The nub of the difference between me and the Court is that I regard the distinction between "abridging" speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable.... Finally, what is true of the First Amendment is also true of the constitutional rule against vague legislation: it has no application to funding. Insofar as it bears upon First Amendment concerns, the vagueness doctrine addresses the problems from government regulation of expressive conduct.... I cannot refrain from observing, however, that if the vagueness doctrine were applicable, the agency charged with making grants under a statutory standard of "artistic excellence"—and which has itself thought that standard met by everything from the playing of a Beethoven symphony to a depiction of a crucifix immersed in urine—would be of more dubious constitutional validity than the "decency" and "respect" limitations that respondents (who demand to be judged on the same strict standard of "artistic excellence") have the humorlessness to call too vague....

JUSTICE SOUTER, dissenting....

The decency and respect proviso mandates viewpoint based decisions in the disbursement of government subsidies, and the Government has wholly failed to explain why the statute should be afforded an exemption from the fundamental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional. The Court's conclusions that the proviso is not viewpoint based, that it is not a regulation, and that the NEA may permissibly engage in viewpoint-based discrimination, are all patently mistaken.

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."...

When called upon to vindicate this ideal, we characteristically begin by asking "whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration." The answer in this case is damning. One need do nothing more than read the text of the statute to conclude that Congress's purpose in imposing the decency and respect criteria was to prevent the funding of art that conveys an offensive message; the decency and respect provision on its face is quintessentially viewpoint based, and quotations from the Congressional Record merely confirm the obvious legislative purpose. In the words of a cosponsor of the bill that enacted the proviso, "[w]orks which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds."...

[A] statute disfavoring speech that fails to respect America's "diverse beliefs and values" is the very model of viewpoint discrimination; it penalizes any view disrespectful to any belief or value espoused by someone in the American populace. Boiled down to its practical essence, the limitation obviously means that art that disrespects the ideology, opinions, or convictions of a significant segment of the American public is to be disfavored, whereas art that reinforces those values is not. After all, the whole point of the proviso was to make sure that works like Serrano's ostensibly blasphemous portrayal of Jesus would not be funded, while a reverent treatment, conventionally respectful of Christian sensibilities, would not run afoul of the law. Nothing could be more viewpoint based than that....

A[nother] try at avoiding constitutional problems is the Court's disclaimer of any constitutional issue here because "[s]ection 954(d)(1) adds 'considerations' to the grant making process; it does not preclude awards to projects that might be deemed 'indecent' or 'disrespectful,' nor place Copyright © 2012 Pearson Education, Inc. 372

conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application." Since "§ 954(d)(1) admonishes the NEA merely to take 'decency and respect' into consideration," not to make funding decisions specifically on those grounds, the Court sees no constitutional difficulty.

That is not a fair reading. Just as the statute cannot be read as anything but viewpoint based, or as requiring nothing more than diverse review panels, it cannot be read as tolerating awards to spread indecency or disrespect, so long as the review panel, the National Council on the Arts, and the Chairperson have given some thought to the offending qualities and decided to underwrite them anyway. That, after all, is presumably just what prompted the congressional outrage in the first place, and there was nothing naive about the Representative who said he voted for the bill because it does "not tolerate wasting Federal funds for sexually explicit photographs [or] sacrilegious works."

A second basic strand in the Court's treatment of today's question, and the heart of JUSTICE SCALIA's, in effect assumes that whether or not the statute mandates viewpoint discrimination, there is no constitutional issue here because government art subsidies fall within a zone of activity free from First Amendment restraints. The Government calls attention to the roles of government-as-speaker and government-as-buyer, in which the government is of course entitled to engage in viewpoint discrimination: if the Food and Drug Administration launches an advertising campaign on the subject of smoking, it may condemn the habit without also having to show a cowboy taking a puff on the opposite page; and if the Secretary of Defense wishes to buy a portrait to decorate the Pentagon, he is free to prefer George Washington over George the Third.

The Government freely admits, however, that it neither speaks through the expression subsidized by the NEA, nor buys anything for itself with its NEA grants. On the contrary, the Government acts as a patron, financially underwriting the production of art by private artists and impresarios for independent consumption. Accordingly, the Government would have us liberate governmentas-patron from First Amendment strictures not by placing it squarely within the categories of government-as-buyer or government-as-speaker, but by recognizing a new category by analogy to those accepted ones. The analogy is, however, a very poor fit, and this patronage falls embarrassingly on the wrong side of the line between government-as-buyer or -speaker and government-as-regulator-of-private-speech....

Our most thorough statement of these principles is found in the recent case of Rosenberger, ...which held that the University of Virginia could not discriminate on viewpoint in underwriting the speech of student-run publications. ...When the government acts as patron, subsidizing the expression of others, it may not prefer one lawfully stated view over another. Rosenberger controls here. The NEA, like the student activities fund in Rosenberger, is a subsidy scheme created to encourage expression of a diversity of views from private speakers....

Since the decency and respect proviso of § 954(d)(1) is substantially overbroad and carries with it a significant power to chill artistic production and display, it should be struck down on its face....

Copyright © 2012 Pearson Education, Inc. 373

Nollan v. California Coastal Commission

483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed. 2d 677 (1987) http://laws.findlaw.com/us/483/825.html In 1982 the California Coastal Commission granted a permit to James and Marilyn Nollan to replace a small bungalow on their beachfront lot in Ventura County with a larger house. With the permit came the condition that the Nollans allow the public an easement to pass across their beach, which was located between two public beaches. The Nollans' property affected by the easement was bounded by the mean high-tide line on one side and their seawall on the other side.

The county superior court granted the Nollans a writ of administrative mandamus and directed that the permit condition be removed. In 1986 the state court of appeal reversed, ruling that imposition of the condition did not violate the takings clause of the Fifth Amendment. Majority: Scalia, O'Connor, Powell, Rehnquist, White. Dissenting: Brennan, Blackmun, Marshall, Stevens.

JUSTICE SCALIA delivered the opinion of the Court....

Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking....

Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land use permit alters the outcome. We have long recognized that land use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land."...Our cases have not elaborated on the standards for determining what constitutes a "legitimate state interest" or what type of connection between the regulation and the state interest satisfies the requirement that the former "substantially advance" the latter. They have made clear, however, that a broad range of governmental purposes and regulations satisfies these requirements.... The Commission argues that among these permissible purposes are protecting the public's ability to see the beach, assisting the public in overcoming the "psychological barrier" to using the beach created by a developed shorefront, and preventing congestion on the public beaches. We assume, without deciding, that this is so—in which case the Commission unquestionably would be able to deny the Nollans their permit outright if their new house (alone, or by reason of the cumulative impact produced in conjunction with other construction) would substantially impede these purposes, unless the denial would interfere so drastically with the Nollans' use of their property as to constitute a taking.

The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house—for example, a height limitation, a width restriction, or a ban on fences—so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the Copyright © 2012 Pearson Education, Inc. 374

condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end....

The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition....[T]he lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but "an out-and-out plan of extortion."...

It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them caused by construction of the Nollans' new house....

We are left, then, with the Commission's justification for the access requirement unrelated to land use regulation: [T]he Commission notes that there are several existing provisions of pass and repass lateral access benefits already given by past Faria Beach Tract applicants as a result of prior coastal permit decisions. The access required as a condition of this permit is part of a comprehensive program to provide continuous public access along Faria Beach as the lots undergo development or redevelopment.

That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its "comprehensive program," if it wishes, by using its power of eminent domain for this "public purpose"; but if it wants an easement across the Nollans' property, it must pay for it.

Reversed.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting....

Even if we accept the Court's unusual demand for a precise match between the condition imposed and the specific type of burden on access created by the appellants, the State's action easily satisfies this requirement. First, the lateral access condition serves to dissipate the impression that the beach that lies behind the wall of homes along the shore is for private use only. It requires no Copyright © 2012 Pearson Education, Inc. 375

exceptional imaginative powers to find plausible the Commission's point that the average person passing along the road in front of a phalanx of imposing permanent residences, including the appellants' new home, is likely to conclude that this particular portion of the shore is not open to the public. If, however, that person can see that numerous people are passing and repassing along the dry sand, this conveys the message that the beach is in fact open for use by the public.

Furthermore, those persons who go down to the public beach a quarter-mile away will be able to look down the coastline and see that persons have continuous access to the tidelands, and will observe signs that proclaim the public's right of access over the dry sand. The burden produced by the diminution in visual access—the impression that the beach is not open to the public—is thus directly alleviated by the provision for public access over the dry sand. The Court therefore has an unrealistically limited conception of what measures could reasonably be chosen to mitigate the burden produced by a diminution of visual access.

The second flaw in the Court's analysis of the fit between burden and exaction is more fundamental. The Court assumes that the only burden with which the Coastal Commission was concerned was blockage of visual access to the beach. This is incorrect. The Commission specifically stated in its report in support of the permit condition that "[t]he Commission finds that the applicants' proposed development would present an increase in view blockage, an increase in private use of the shorefront, and that this impact would burden the public's ability to traverse to and along the shorefront."...

As the Commission observed in its report, "The Faria Beach shoreline fluctuates during the year depending on the seasons and accompanying storms, and the public is not always able to traverse the shoreline below the mean high tide line." As a result, the boundary between publicly owned tidelands and privately owned beach is not a stable one, and "[t]he existing seawall is located very near to the mean high water line." When the beach is at its largest, the seawall is about 10 feet from the mean high tide mark; "[d]uring the period of the year when the beach suffers erosion, the mean high water line appears to be located either on or beyond the existing seawall."

Expansion of private development on appellants' lot toward the seawall would thus "increase private use immediately adjacent to public tidelands, which has the potential of causing adverse impacts on the public's ability to traverse the shoreline."...

The deed restriction on which permit approval was conditioned would directly address this threat to the public's access to the tidelands. It would provide a formal declaration of the public's right of access, thereby ensuring that the shifting character of the tidelands, and the presence of private development immediately adjacent to it, would not jeopardize enjoyment of that right....

In reviewing a Takings Clause claim, we have regarded as particularly significant the nature of the governmental action and the economic impact of regulation, especially the extent to which regulation interferes with investment-backed expectations. The character of the government action in this case is the imposition of a condition on permit approval, which allows the public to continue to have access to the coast. The physical intrusion permitted by the deed restriction is minimal. The public is permitted the right to pass and repass along the coast in an area from the seawall to the mean high tide mark. This area is at its widest 10 feet, which means that even without the permit condition, the public's right of access permits it to pass on average within a few feet of the seawall. Passage closer to the 8-foot high rocky seawall will make the appellants even less visible to the public than passage along the high tide area farther out on the beach. The intrusiveness of such passage is even less than the intrusion resulting from the required dedication of a sidewalk in front of private residences, exactions which are commonplace conditions on approval of development. Furthermore, the high tide line shifts throughout the year, moving up to Copyright © 2012 Pearson Education, Inc. 376

and beyond the seawall, so that public passage for a portion of the year would either be impossible or would not occur on appellant's property. Finally, although the Commission had the authority to provide for either passive or active recreational use of the property, it chose the least intrusive alternative: a mere right to pass and repass.... State agencies ... require considerable flexibility in responding to private desires for development in a way that guarantees the preservation of public access to the coast. They should be encouraged to regulate development in the context of the overall balance of competing uses of the shoreline. The Court today does precisely the opposite, overruling an eminently reasonable exercise of an expert state agency's judgment, substituting its own narrow view of how this balance should be struck. Its reasoning is hardly suited to the complex reality of natural resource protection in the twentieth century....

JUSTICE BLACKMUN, dissenting... [omitted].

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting ... [omitted].

Copyright © 2012 Pearson Education, Inc. 377

Reeves, Inc. v. Stake

447 U.S. 429, 100 S.Ct. 2271, 65 L.Ed. 2d 244 (1980) http://laws.findlaw.com/us/447/429.html For many years the state of South Dakota has operated a cement plant. Between 1970 and 1977, some 40 percent of the plant's production was shipped to buyers outside the state. Reeves, Inc., a ready-mix concrete distributor in Wyoming, from 1958 until 1978 obtained 95 percent of its cement from the state-owned plant in South Dakota. In 1978, various difficulties at the cement plant forced a cut in production. The State Cement Commission chose to supply all South Dakota customers first and to honor other contract commitments. Being out of state and lacking a longterm contract, Reeves was unable to purchase any more cement and was obliged to reduce its own concrete production by 76 percent when no other adequate suppliers could be found. Reeves then sued the commission in district court, which "reasoned that South Dakota's 'hoarding' was inimical to the national free market envisioned by the Commerce Clause." The Court of Appeals for the Eighth Circuit reversed. Justice Blackmun's majority opinion and Justice Powell's dissent, reprinted below, refer to Hughes v. Alexandria Scrap Corp. (1976). In that case Maryland offered a bounty for every Maryland-titled junk car converted into scrap. Documentation requirements were more exacting for out-of-state processors, making it less profitable for suppliers to transfer vehicles outside Maryland. Thus, in-state processors of junk cars were favored over those out of state. Upholding the policy, the Court declared, "Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others." In Alexandria Scrap, Justice Powell wrote the opinion of the Court, and Justices Brennan, White, and Marshall dissented. Majority in Reeves: Blackmun, Burger, Marshall, Rehnquist, Stewart. Dissenting: Powell, Brennan, Stevens, White.

MR. JUSTICE BLACKMUN delivered the opinion of the Court....

The basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law. As that case explains, the Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace.... There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market....

Moreover, state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants. Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause.... Finally, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, Alexandria Scrap wisely recognizes that, as a rule, the adjustment of interests in this context is a task better suited for Congress than this Court.

South Dakota, as a seller of cement, unquestionably fits the "market participant" label more comfortably than a State acting to subsidize local scrap processors. Thus, the general rule of Alexandria Scrap plainly applies here....

Copyright © 2012 Pearson Education, Inc. 378

In finding a Commerce Clause violation, the District Court emphasized "that the Commission ... made an election to become part of the interstate commerce system."... The gist of this reasoning, repeated by petitioner here, is that one good turn deserves another. Having long exploited the interstate market, South Dakota should not be permitted to withdraw from it when a shortage arises. This argument is not persuasive. It is somewhat self-serving to say that South Dakota has "exploited" the interstate market. An equally fair characterization is that neighboring States have long benefited from South Dakota's foresight and industry....

Our rejection of petitioner's market-exploitation theory fundamentally refocuses analysis. It means that to reverse we would have to void a South Dakota "residents only" policy even if it had been enforced from the plant's very first days. Such a holding, however, would interfere significantly with a State's ability to structure relations exclusively with its own citizens. It would also threaten the future fashioning of effective and creative programs for solving local problems and distributing government largesse.... A healthy regard for federalism and good government renders us reluctant to risk these results....

Undaunted by these considerations, petitioner advances four more arguments for reversal: First, petitioner protests that South Dakota's preference for its residents responds solely to the "non-governmental objective" of protectionism.... Therefore, petitioner argues the policy is per se invalid....

We find the label "protectionism" of little help in this context. The State's refusal to sell to buyers other than South Dakotans is "protectionist" only in the sense that it limits benefits generated by a state program to those who fund the state treasury and whom the State was created to serve.

Petitioner's argument apparently also would characterize as "protectionist" rules restricting to state residents the enjoyment of state educational institutions, energy generated by a state-run plant, police and fire protection, and agricultural improvement and business development programs. Such policies, while perhaps "protectionist" in a loose sense, reflect the essential and patently unobjectionable purpose of state government—to serve the citizens of the State.

Second, petitioner echoes the District Court's warning.

If a state in this union, were allowed to hoard its commodities or resources for the use of their own residents only, a drastic situation might evolve. For example, Pennsylvania or Wyoming might keep their coal, the northwest its timber, and the mining states their minerals. The result being that embargo may be retaliated by embargo and commerce would be halted at state lines....

This argument, although rooted in the core purpose of the Commerce Clause, does not fit the present facts. Cement is not a natural resource, like coal, timber, wild game, or minerals.... It is the end-product of a complex process whereby a costly physical plant and human labor act on raw materials. South Dakota has not sought to limit access to the State's limestone or other materials used to make cement. Nor has it restricted the ability of private firms or sister States to set up plants within its borders....

Third, it is suggested that the South Dakota program is infirm because it places South Dakota suppliers of ready-mix concrete at a competitive advantage in the out-of-state market; Wyoming suppliers, such as petitioner, have little chance against South Dakota suppliers who can purchase cement from the State's plant and freely sell beyond South Dakota's borders.

Copyright © 2012 Pearson Education, Inc. 379

The force of this argument is seriously diminished, if not eliminated, by several considerations.

The argument necessarily implies that the South Dakota scheme would be unobjectionable if sales in other States were totally barred. It therefore proves too much, for it would tolerate even a greater measure of protectionism and stifling of interstate commerce than the challenged system allows.... Finally, the competitive plight of out-of-state ready-mix suppliers cannot be laid solely at the feet of South Dakota. It is attributable as well to their own States' not providing or attracting alternative sources of supply and to the suppliers' own failure to guard against shortages by executing long-term supply contracts with the South Dakota plant.

In its last argument, petitioner urges that, had South Dakota not acted, free market forces would have generated an appropriate level of supply at free market prices for all buyers in the region.

Having replaced free market forces, South Dakota should be forced to replicate how the free market would have operated under prevailing conditions.

This argument appears to us to be simplistic and speculative. The very reason South Dakota built its plant was because the free market had failed adequately to supply the region with cement....

We conclude, then, that the arguments for invalidating South Dakota's resident-preference program are weak at best. Whatever residual force inheres in them is more than offset by countervailing considerations of policy and fairness. Reversal would discourage similar state projects, even though this project demonstrably has served the needs of state residents and has helped the entire region for more than a half century. Reversal also would rob South Dakota of the intended benefit of its foresight, risk, and industry. Under these circumstances, there is no reason to depart from the general rule of Alexandria Scrap.

The judgment of the United States Court of Appeals is affirmed.

It is so ordered.

MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE and MR. JUSTICE STEVENS join, dissenting....

The Commerce Clause would bar legislation imposing on private parties the type of restraint on commerce adopted by South Dakota.... Conversely, a private business constitutionally could adopt a marketing policy that excluded customers who come from another State. This case falls between those polar situations. The State, through its Commission, engages in a commercial enterprise and restricts its own interstate distribution. The question is whether the Commission's policy should be treated like state regulation of private parties or like the marketing policy of a private business.

The application of the Commerce Clause to this case should turn on the nature of the governmental activity involved. If a public enterprise undertakes an "integral operatio[n] in areas of traditional governmental functions" ... the Commerce Clause is not directly relevant. If, however, the State enters the private market and operates a commercial enterprise for the advantage of its private citizens, it may not evade the constitutional policy against economic balkanization.

This distinction derives from the power of governments to supply their own needs ... and from the purpose of the Commerce Clause itself, which is designed to protect "the natural functioning of the interstate market."... In procuring goods and services for the operation of government, a State Copyright © 2012 Pearson Education, Inc. 380

may act without regard to the private marketplace and remove itself from the reach of the Commerce Clause.... But when a State itself becomes a participant in the private market for other purposes, the Constitution forbids actions that would impede the flow of interstate commerce.

These categories recognize no more than the "constitutional line between the State as Government and the State as trader."

The threshold issue is whether South Dakota has undertaken integral government operations in an area of traditional governmental functions, or whether it has participated in the marketplace as a private firm. If the latter characterization applies, we also must determine whether the State Commission's marketing policy burdens the flow of interstate trade. This analysis highlights the differences between the state action here and that before the Court in Alexandria Scrap....

Alexandria Scrap determined that Maryland's bounty program constituted direct state participation in the market for automobile hulks.... But the critical question—the second step in the opinion's analysis—was whether the bounty program constituted an impermissible burden on interstate commerce. Recognizing that the case did not fit neatly into conventional Commerce Clause theory ... we found no burden on commerce....

Unlike the market subsidies at issue in Alexandria Scrap, the marketing policy of the South Dakota Cement Commission has cut off interstate trade.... The effect on interstate trade is the same as if the state legislature had imposed the policy on private cement producers. The Commerce Clause prohibits this severe restraint on commerce....

The creation of a free national economy was a major goal of the States when they resolved to unite under the Federal Constitution. The decision today cannot be reconciled with that purpose.

Copyright © 2012 Pearson Education, Inc. 381

Reno v. American Civil Liberties Union

521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed. 2d 874 (1997) http://laws.findlaw.com/us/521/844.html In the Communications Decency Act of 1996, Congress sought to protect minors from harmful material on the Internet. Section 223(a) criminalized the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibited the "know[ing]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Affirmative defenses were provided for persons who take "good faith,... effective ... actions" to restrict minors' access to the prohibited communications and for persons who restrict such access by requiring certain designated forms of proof of age. The American Civil Liberties Union and other groups promptly challenged the constitutionality of both sections in the U.S. District Court for the Eastern District of Pennsylvania, which enjoined enforcement of the provisions. Majority: Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer. Dissenting (in part): O'Connor, Rehnquist.

JUSTICE STEVENS delivered the opinion of the Court.

At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment....

In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York (1968); (2) FCC v. Pacifica Foundation (1978); and (3) Renton v. Playtime Theatres, Inc. (1986). A close look at these cases, however, raises—rather than relieves—doubts concerning the constitutionality of the CDA. In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults.... In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children."...Second, the New York statute applied only to commercial transactions, whereas the CDA contains no such limitation.

Third, the New York statute cabined [sic] its definition of material that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors." The CDA fails to provide us with any definition of the term "indecent" as used in § 223(a)(1) and, importantly, omits any requirement that the "patently offensive" material covered by § 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority.

In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute monologue entitled "Filthy Words" that had Copyright © 2012 Pearson Education, Inc. 382

previously been delivered to a live audience "could have been the subject of administrative sanctions." ... [T]he Court concluded that the ease with which children may obtain access to broadcasts, "coupled with the concerns recognized in Ginsberg," justified special treatment of indecent broadcasting.

As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pacifica and the CDA. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when—rather than whether—it would be permissible to air such a program in that particular medium. The CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the Commission's declaratory order was not punitive.... Finally, the Commission's order applied to a medium which as a matter of history had "received the most limited First Amendment protection," in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history ...[and] the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.

In Renton, we upheld a zoning ordinance that kept adult movie theatres out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theatres, but rather at the "secondary effects"—such as crime and deteriorating property values—that these theaters fostered.... According to the Government, the CDA is constitutional because it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of "indecent" and "patently offensive" speech, rather than any "secondary" effect of such speech.

Thus, the CDA is a content-based blanket restriction on speech, and, as such, cannot be "properly analyzed as a form of time, place, and manner regulation."...

These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions....

Moreover, the Internet is not as "invasive" as radio or television....

We distinguished Pacifica in Sable [Communications v. FCC (1989)] on just this basis. In Sable, a company engaged in the business of offering sexually oriented prerecorded telephone messages (popularly known as "dial-a-porn") challenged the constitutionality of an amendment to the Communications Act that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages.... We explained that "the dial-it medium requires the listener to take affirmative steps to receive the communication."...

Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds.... As the District Court found, "the content on the Internet is as diverse as human thought." We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium....

Copyright © 2012 Pearson Education, Inc. 383

The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute.... We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.... [T]he Government may not "reduc[e] the adult population ... to ... only what is fit for children."...

It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute. Under the CDA, a parent allowing her 17year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community, found the material "indecent" or "patently offensive," if the college town's community thought otherwise.

The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so.... Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all....

For the foregoing reasons, the judgment of the district court is affirmed.

It is so ordered.

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in part and dissenting in part.

I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create "adult zones" on the Internet....

Given the present state of cyberspace, I agree with the Court that the "display" provision cannot pass muster.... [T]he only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech....

The "indecency transmission" and "specific person" provisions present a closer issue, for they are not unconstitutional in all of their applications.... Appellant urges the Court to construe the provision to impose ... a knowledge requirement, and I would do so....

So construed, both provisions are constitutional as applied to a conversation involving only an adult and one or more minors—e.g., when an adult speaker sends an e-mail knowing the addressee is a minor, or when an adult and minor converse by themselves or with other minors in a chat room. In this context, these provisions are no different from the law we sustained in Ginsberg....The relevant universe contains only one adult, and the adult in that universe has the power to refrain from using indecent speech and consequently to keep all such speech within the room in an "adult" zone.

Copyright © 2012 Pearson Education, Inc. 384

The analogy to Ginsberg breaks down, however, when more than one adult is a party to the conversation.... The CDA is therefore akin to a law that makes it a crime for a bookstore owner to sell pornographic magazines to anyone once a minor enters his store....

Thus, the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights of adults are infringed only by the "display" provision and by the "indecency transmission" and "specific person" provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that extent. Insofar as the "indecency transmission" and "specific person" provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained....

Copyright © 2012 Pearson Education, Inc. 385

Stenberg v. Carhart

530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed. 2d 743 (2000) http://laws.findlaw.com/us/530/914.html At the time of this litigation, Don Stenberg was Attorney General of Nebraska; Leroy Carhart was a physician who performed abortions at a clinic in Nebraska. The remaining facts and constitutional issues are contained in the opinions below.

JUSTICE BREYER delivered the opinion of the Court....

Three established principles determine the issue before us. We shall set them forth in the language of the joint opinion in [Planned Parenthood v.] Casey. First, before "viability ... the woman has a right to choose to terminate her pregnancy."

Second, "a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability" is unconstitutional. An "undue burden is ... shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

Third, "‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"

We apply these principles to a Nebraska law banning "partial birth abortion." The statute reads as follows: No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

The statute defines "partial birth abortion" as: an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.

It further defines "partially delivers vaginally a living unborn child before killing the unborn child" to mean deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.

Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting. He brought this lawsuit in Federal District Court seeking a declaration that the Nebraska statute Copyright © 2012 Pearson Education, Inc. 386

violates the Federal Constitution, and asking for an injunction forbidding its enforcement. After a trial on the merits, during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. On appeal, the Eighth Circuit affirmed....

About 90% of all abortions performed in the United States take place during the first trimester of pregnancy, before 12 weeks of gestational age. During the first trimester, the predominant abortion method is "vacuum aspiration," which involves insertion of a vacuum tube (cannula) into the uterus to evacuate the contents. Such an abortion is typically performed on an outpatient basis under local anesthesia....

Approximately 10% of all abortions are performed during the second trimester of pregnancy (12 to 24 weeks). In the early 1970's, inducing labor through the injection of saline into the uterus was the predominant method of second trimester abortion. Today, however, the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. The most commonly used procedure is called "dilation and evacuation" (D&E). That procedure (together with a modified form of vacuum aspiration used in the early second trimester) accounts for about 95% of all abortions performed from 12 to 20 weeks of gestational age....

At trial, Dr. Carhart ... described a variation of the D&E procedure, which they referred to as an "intact D&E." Like other versions of the D&E technique, it begins with induced dilation of the cervix. The procedure then involves removing the fetus from the uterus through the cervix "intact," i.e., in one pass, rather than in several passes. It is used after 16 weeks at the earliest, as vacuum aspiration becomes ineffective and the fetal skull becomes too large to pass through the cervix. The intact D&E proceeds in one of two ways, depending on the presentation of the fetus.

If the fetus presents head first (a vertex presentation), the doctor collapses the skull; and the doctor then extracts the entire fetus through the cervix. If the fetus presents feet first (a breech presentation), the doctor pulls the fetal body through the cervix, collapses the skull, and extracts the fetus through the cervix. The breech extraction version of the intact D&E is also known commonly as "dilation and extraction," or D&X. In the late second trimester, vertex, breech, and traverse/compound (sideways) presentations occur in roughly similar proportions....

Despite the technical differences we have just described, intact D&E and D&X are sufficiently similar for us to use the terms interchangeably....

There are no reliable data on the number of D&X abortions performed annually. Estimates have ranged between 640 and 5,000 per year....

The fact that Nebraska's law applies both pre- and postviability aggravates the constitutional problem presented. The State's interest in regulating abortion previability is considerably weaker than postviability....

The question before us is whether Nebraska's statute, making criminal the performance of a "partial birth abortion," violates the Federal Constitution, as interpreted in Casey and Roe v.

Wade. We conclude that it does for at least two independent reasons. First, the law lacks any exception "‘for the preservation of the ... health of the mother.'" Second, it "imposes an undue burden on a woman's ability" to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself. We shall discuss each of these reasons in turn....

Copyright © 2012 Pearson Education, Inc. 387

[T]he governing standard requires an exception "where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother," for this Court has made clear that a State may promote but not endanger a woman's health when it regulates the methods of abortion....

Nebraska responds that the law does not require a health exception unless there is a need for such an exception. And here there is no such need, it says. It argues that "safe alternatives remain available" and "a ban on partial-birth abortion/D&X would create no risk to the health of women." ... The State fails to demonstrate that banning D&X without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, D&X would be the safest procedure....

Nebraska has not convinced us that a health exception is "never necessary to preserve the health of women." Rather, a statute that altogether forbids D&X creates a significant health risk. The statute consequently must contain a health exception.... Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its holding....

The Eighth Circuit found the Nebraska statute unconstitutional because, in Casey's words, it has the "effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." It thereby places an "undue burden" upon a woman's right to terminate her pregnancy before viability. Nebraska does not deny that the statute imposes an "undue burden" if it applies to the more commonly used D&E procedure as well as to D&X. And we agree with the Eighth Circuit that it does so apply.

Our earlier discussion of the D&E procedure shows that it falls within the statutory prohibition....

Even if the statute's basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures. The language does not track the medical differences between D&E and D&X—though it would have been a simple matter, for example, to provide an exception for the performance of D&E and other abortion procedures....

The Nebraska State Attorney General argues that the statute does differentiate between the two procedures. He says that the statutory words "substantial portion" mean "the child up to the head."

He consequently denies the statute's application where the physician introduces into the birth canal a fetal arm or leg or anything less than the entire fetal body. He argues further that we must defer to his views about the meaning of the state statute. We cannot accept the Attorney General's narrowing interpretation of the Nebraska statute. This Court's case law makes clear that we are not to give the Attorney General's interpretative views controlling weight....

We are aware that adopting the Attorney General's interpretation might avoid [this] constitutional problem ... [but] "such a construction [must be] reasonable and readily apparent." ... [I]t is not reasonable to replace the term "substantial portion" with the Attorney General's phrase "body up to the head." ...

[U]sing this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon

Copyright © 2012 Pearson Education, Inc. 388

a woman's right to make an abortion decision. We must consequently find the statute unconstitutional.

The judgment of the Court of Appeals is Affirmed.

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, concurring ... [omitted].

JUSTICE O'CONNOR, concurring ... [omitted].

JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, concurring ... [omitted].

CHIEF JUSTICE REHNQUIST, dissenting ... [omitted].

JUSTICE SCALIA, dissenting.

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott.... The notion that the Constitution of the United States ... prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, dissenting.

For close to two decades after Roe v. Wade, the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman's right to elect an abortion in defined circumstances. When the Court reaffirmed the essential holding of Roe [in Casey], central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman's right the Court restated and again guaranteed. The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. The State's constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus.

The Court's decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right. The legislation is well within the State's competence to enact....

The Court's failure to accord any weight to Nebraska's interest in prohibiting partial-birth abortion is erroneous and undermines its discussion and holding.... The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life....

As described by Dr. Carhart, the D&E procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina. Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the Copyright © 2012 Pearson Education, Inc. 389

remainder of the body.... The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.... At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carhart's words, the abortionist is left with "a tray full of pieces."

The other procedure implicated today is called "partial-birth abortion" or the D&X. The D&X can be used, as a general matter, after 19 weeks gestation because the fetus has become so developed that it may survive intact partial delivery from the uterus into the vagina. In the D&X, the abortionist initiates the woman's natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. The fetus' arms and legs are delivered outside the uterus while the fetus is alive.... With only the head of the fetus remaining in utero, the abortionist tears open the skull.... The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus' head smaller is given the clinically neutral term "reduction procedure." ...

Of the two described procedures, Nebraska seeks only to ban the D&X. In light of the description of the D&X procedure, it should go without saying that Nebraska's ban on partial-birth abortion furthers purposes States are entitled to pursue....

States ... have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus. Abortion, Casey held, has consequences beyond the woman and her fetus....

It is argued, however, that a ban on the D&X does not further these interests. This is because, the reasoning continues, the D&E method, which Nebraska claims to be beyond its intent to regulate, can still be used to abort a fetus and is no less dehumanizing than the D&X method. While not adopting the argument in express terms, the Court indicates tacit approval of it by refusing to reject it in a forthright manner.... The issue is not whether members of the judiciary can see a difference between the two procedures. It is whether Nebraska can. The Court's refusal to recognize Nebraska's right to declare a moral difference between the procedure is a dispiriting disclosure of the illogic and illegitimacy of the Court's approach to the entire case....

Those who oppose abortion would agree, indeed would insist, that both procedures are subject to the most severe moral condemnation, condemnation reserved for the most repulsive human conduct. This is not inconsistent, however, with the further proposition that as an ethical and moral matter, D&X is distinct from D&E and is a more serious concern for medical ethics and the morality of the larger society the medical profession must serve. Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability. Yet it retains its power to adopt regulations which do not impose an undue burden on the woman's right....

Demonstrating a further and basic misunderstanding of Casey, the Court holds the ban on the D&X procedure fails because it does not include an exception permitting an abortionist to perform a D&X whenever he believes it will best preserve the health of the woman....

Substantial evidence supports Nebraska's conclusion that its law denies no woman a safe abortion. The most to be said for the D&X is it may present an unquantified lower risk of complication for a particular patient but that other proven safe procedures remain available even Copyright © 2012 Pearson Education, Inc. 390

for this patient. Under these circumstances, the Court is wrong to limit its inquiry to the relative physical safety of the two procedures, with the slightest potential difference requiring the invalidation of the law....

It is also important to recognize that the D&X is effective only when the fetus is close to viable or, in fact, viable; thus the State is regulating the process at the point where its interest in life is nearing its peak.

Courts are ill-equipped to evaluate the relative worth of particular surgical procedures. The legislatures of the several States have superior factfinding capabilities in this regard....

Justice O'Connor [concurring] assures the people of Nebraska they are free to redraft the law to include an exception permitting the D&X to be performed when "the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother." The assurance is meaningless. She has joined an opinion which accepts that Dr. Carhart exercises "appropriate medical judgment" in using the D&X for every patient in every procedure, regardless of indications, after 15 weeks' gestation.... A ban which depends on the "appropriate medical judgment" of Dr. Carhart is no ban at all. He will be unaffected by any new legislation. This, of course, is the vice of a health exception resting in the physician's discretion....

The Court's next holding is that Nebraska's ban forbids both the D&X procedure and the more common D&E procedure. In so ruling the Court misapplies settled doctrines of statutory construction and contradicts Casey's premise that the States have a vital constitutional position in the abortion debate....

The text [of the statute] demonstrates the law applies only to the D&X procedure. Nebraska's intention is demonstrated at three points in the statutory language: references to "partial-birth abortion" and to the "delivery" of a fetus; and the requirement that the delivery occur "before" the performance of the death-causing procedure....

The statute's intended scope is demonstrated by its requirement that the banned procedure include a partial "delivery" of the fetus into the vagina and the completion of a "delivery" at the end of the procedure. Only removal of an intact fetus can be described as a "delivery" of a fetus and only the D&X involves an intact fetus....

Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other States and sweeps the law away....

The State chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman's autonomous right of choice as reaffirmed in Casey. The Court closes its eyes to these profound concerns....

JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting ... [omitted].

Copyright © 2012 Pearson Education, Inc. 391

Texas v. White

74 U.S. (7 Wall.) 700, 19 L.Ed. 227 (1869) http://laws.findlaw.com/us/74/700.html In 1851 Congress provided that $10 million in U.S. bonds should be transferred to the state of Texas, payable to the state or bearer and redeemable in 1864. In receiving the bonds, the Texas legislature stipulated that endorsement by the governor of the state was necessary to make any of the bonds valid in the hands of individual holders. After Texas became part of the Confederate States of America, the Texas legislature repealed this act in 1862 and authorized use of the bonds for war supplies. In 1866 the Reconstruction government in Texas sought to block payment to George White and others out of state who now held the bonds. The defense interposed was that the Supreme Court lacked jurisdiction to entertain this original action because the plaintiff (Texas) was not a state of the Union—that it had seceded in 1861 and had not been restored as a full-fledged member of the Union. In response Chief Justice Chase simultaneously espoused Lincoln's theory (that secession was illegal, that the Union was perpetual, and that the rebellion had temporarily suspended Texas's rights as a member of the Union) and, without passing on the validity of any particular Reconstruction statute, acknowledged Congress's authority to maintain provisional governments in the southern states. Majority: Chase, Clifford, Davis, Field, Nelson.

Dissenting: Grier, Miller, Swayne.

THE CHIEF JUSTICE [CHASE] delivered the opinion of the Court....

Texas took part, with the other Confederate States, in the war of the rebellion.... During the whole of that war there was no governor, or judge, or any other State official in Texas, who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State, except under the immediate protection of the National military forces.

Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?

It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States.

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Copyright © 2012 Pearson Education, Inc. 392

Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people.... Not only therefore can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.

The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

When, therefore, Texas became one of the United States, she entered into an indissoluble relation.

All the obligations of perpetual union and all the guarantees of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war of conquest and subjugation.

Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations, since the first outbreak of rebellion.

But in order to the exercise, by a State, of the right to sue in this court, there needs to be a State government, competent to represent the State in its relations with the National government, so far at least as the institution and prosecution of a suit is concerned....

All admit that, during this condition of civil war, the rights of the State as a member, and her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion.

These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the State with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the National government....

Copyright © 2012 Pearson Education, Inc. 393

There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible; and before any such election could be properly held, it was necessary that the old constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State.

In the exercise of the power conferred by the guaranty clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanctioned by the Constitution....

Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts.

But it is important to observe that these acts themselves show that the governments, which had been established and had been in actual operation under executive direction, were recognized by Congress as provisional, as existing, and as capable of continuance....

[The right of Texas to bring suit was affirmed and a decree issued enjoining White and others from setting up any claim to the bonds.—ED.] MR. JUSTICE GRIER, dissenting....

The original jurisdiction of this court can be invoked only by one of the United States. The Territories have no such right conferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authorities of the government.

Is Texas one of these United States? Or was she such at the time the bill was filed, or since?

This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation.

If I regard the truth of history for the last eight years, I cannot discover the State of Texas as one of these United States....

[Justices Swayne and Miller joined Justice Grier "as to the incapacity of the State of Texas, in her present condition, to maintain an original suit in this court."—Ed.]

Copyright © 2012 Pearson Education, Inc. 394