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: AND POLITICS VOLUME ONE

Struggles for Power and Governmental Accountability

(iy
acw
S SEVENTH EDITION David M.O’Brien
CONSTITUTIONAL LAW AND POLITICS
‘ VOLUME ONE

SEVENTH EDITION
OTHER Books BY Davip M. O’BRIEN

Storm Center:
The Supreme Court in American Politics
8th ed.
Animal Sacrifice and Religious Freedom:
Church of Lukumi Bababu Aye v. City of Hialeah
Privacy, Law, and Public Policy
The Public’s Right to Know:
The Supreme Court and the First Amendment
The Politics of Technology Assessment:
Institutions, Processes and Policy Disputes
(co-editor)

Views from the Bench:

The Judiciary and Constitutional Politics
(co-editor)

What Process Is Due?:

Courts and Science-Policy Disputes
Judicial Roulette
Abortion and American Politics
(co-author)

The Politics ofAmerican Government

3rd ed.
(co-author)

Supreme Court Watch

To Dream of Dreams:
Religious Freedom and Constitutional Politics in Postwar Japan
(co-author)

Judges on Judging
2d ed.
(editor)

The Lanahan Readings on Civil Rights and Civil Liberties

2d ed.
(editor)

Judicial Independence in the Age of Democracy:

Critical Perspectives from Around the World
(co-editor)

Government by the People

22nd ed.
(co-author)

Courts and Judicial Policymaking

(co-author)
 CONSTITUTIONAL
Law
AND) OLIELCS
VOLUME ONE

Struggles for Power and

Governmental Accountability
SEVENTH EDITION

DAVID M. O’BRIEN
UNIVERSITY OF VIRGINIA

We We NORTON & COMPANY + NEW YORK

For Claudine, Benjamin, Sara, and Talia

W. W. Norton & Company has been independent since its founding in 1923, when ~
William Warder Norton and Mary D. Herter Norton first published lectures deliv-
ered at the People’s Institute, the adult education division of New York City’s
Cooper Union. The Nortons soon expanded their program beyond the Institute,
publishing books by celebrated academics from America and abroad. By mid-
century, the two major pillars of Norton’s publishing program—trade books and
college texts—were firmly established. In the 1950s, the Norton family transferred
control of the company to its employees, and today—with astaff of four hundred and
a comparable number of trade, college, and professional titles published each year—
W. W. Norton & Company stands as the largest and oldest publishing house owned
wholly by its employees.
ee

Copyright © 2008, 2005, 2003, 2000, 1997, 1995, 1991 by David M. O’Brien
All rights reserved.
Printed in the United States of America.
Composition by PennSet, Inc.
Manufacturing by the Courier Companies—Westford Division.
Book design by Martin Lubin Graphic Design.
Director of Manufacturing, College: Roy Tedoff.
Associate Managing Editor, College: Kim Yi
Drawn art by John McAusland.

Library of Congress Cataloging-in-Publication Data

O’Brien, David M.
Constitutional law and politics / David M. O’Brien.— 7th ed.
v. cm.
Includes bibliographical references and index.
Contents: 1. Struggles for power and governmental accountability—
y. 2. Civil rights and civil liberties.
ISBN 978-0-393-93038-2 (v. 1, pbk.)
ISBN 978-0-393-93039-9 (v. 2, pbk.)
1. Constitutional law—United States—Cases. 2. Constitutional history—
United States—Cases. 3. Political questions and judicial power—United
States—Cases. 4. Civil rights—United States—Cases. I. Title.
KF4541.027 2008
342.73—dc22
2008010992

ISBN: 978-0-393-93038-2

W. W. Norton & Company, Inc., 500 Fifth Avenue, New York, N.Y. 10110
www.wwnorton.com

W. W. Norton & Company Ltd., Castle House, 75/76 Wells Street,

London W1T 3QT

12 SAN
one 3)940
 Ss

CONTENTS

Cases [within brackets] are discussed and extensively quoted in the

topic introductions.

List OF ILLUSTRATIONS xvii

PREFACE XIX

ACKNOWLEDGMENTS XXiii

THE UNITED STATES CONSTITUTION AND AMENDMENTS 1

CHAPTER 1 @ The Supreme Court, Judicial Review,

and Constitutional Politics 23

A. ESTABLISHING AND CONTESTING THE POWER

OF JUDICIAL REVIEW 27
QO HOW TO LOCATE DECISIONS OF THE SUPREME COURT 28
[Calder v. Bull] 29
0 CONSTITUTIONAL HISTORY: Decisions of the Supreme Court
Overruled and Acts of Congress Held Unconstitutional, and
State Laws and Municipal Ordinances Overturned,
1789-2007 36
James Kent’s Introductory Law School Lecture in 1794 40
The Virginia and Kentucky Resolutions of 1798 43
Marbury v. Madison 45
Eakin v. Raub 55
President Jackson’s Veto Message of 1832 58
President Roosevelt’s Radio Broadcast, March 9, 1937 61

B. THe Poritics OF CONSTITUTIONAL INTERPRETATION 66

IN COMPARATIVE PERSPECTIVE: Written and Unwritten
Constitutions: Britain’s and Israel’s Constitutions 68
(1) The Text and Historical Context 75
(2) In and Beyond the Text 85
CONSTITUTIONAL HISTORY: What Is the Constitution? Could a
Constitutional Amendment Violate the Constitution? 89
vi | ConrTENTS

THE DEVELOPMENT OF LAW: Comparative Constitutional

Interpretation 95

CHAPTER 2 @ Law and Politics in the Supreme Court:

Jurisdiction and Decision-Making Process 102

A. JURISDICTION AND JUSTICIABLE CONTROVERSIES 103

O FIGURE 2.1 Avenues of Appeal: The Two Main Routes to the
Supreme Court 105
[Frothingham v. Mellon] 107
0 FIGURE 2.2 Jurisdictional Map of the U.S. Courts of Appeal
and USS. District Courts 108
[Northeastern Florida Chapter of the Associated General Contractors
ofAmerica v. City ofJacksonville, Florida} 110
THE DEVELOPMENT OF LAW: Other Important Rulings on
Standing 111
[Wyoming v. Oklahoma] 114
O THE DEVELOPMENT OF LAW: Class Action Suits 117
[Luther v. Borden] 119
[Colegrove v. Green| 119
O INSIDE THE CouRT: Standing and the Connecticut Birth
Control Cases 120
[Nixon v. United States] 124
O INSIDE THE COURT: The Supreme Court’s Reversal of
Precedent in Historical Perspective 128
Flast v. Cohen 130
Valley Forge Christian College v.Americans United for Separation of
Church and State, Inc. 137
Lujan v. Defenders of Wildlife 141
Hein v. Freedom from Religion Foundation, Inc. 145
Baker v. Carr 150
Goldwater v. Carter 162
Elk Grove Unified School District . Newdow 166
C CONSTITUTIONAL HIsTORY: Rules for Judicial Self-Restraint and
Avoiding Constitutional Questions 174

B. THe Court’s DOCKET AND SCREENING CASES 175

Su Contents | vii

C. THe RuLE of Four AND AGENDA SETTING 175

CONSTITUTIONAL HISTORY: FIGURE 2.3 Docket and Filings,
1800-2007 176
J IN COMPARATIVE PERSPECTIVE: The “European Model” of
Constitutional Courts and Judicial Review 178
D. SUMMARILY DECIDED CASES 181

E. THe ROLE OF OrAL ARGUMENT 181

F. CONFERENCE DELIBERATIONS 183

O INSIDE THE COURT: On the Tentativeness of Votes and the
Importance of Opinion Writing 185

G. POSTCONFERENCE WRITING AND CIRCULATION

OF OPINIONS 187
CONSTITUTIONAL HISTORY: FIGURE 2.4 Opinion Writing,
1937 =2007"° 1189

H. Opinion Days AND COMMUNICATING DECISIONS 190

I. THe IMpact OF SUPREME Court DECISIONS:

COMPLIANCE AND IMPLEMENTATION 191
QO CONSTITUTIONAL HISTORY: The Southern Manifesto: A
Declaration of Constitutional Principles 196
Linkletter v. Walker 205
Griffith v. Kentucky 209
Whorton v. Bockting 211
Jaffree v. Board of School Commissioners of Mobile County 213
Brzonkala v. Virginia Polytechnic Institute and State University 216
Commonwealth of Kentucky v. Jeffrey Wasson 219
THE DEVELOPMENT OF LAW: Other Recent State Supreme
Court Decisions Declining to Follow the U.S. Supreme
Court’s Rulings 224

CHAPTER 3 @ Presidential Power, the Rule of Law,

and Foreign Affairs 232

A. OFFICE AND POWERS: THE TWO PRESIDENCIES 232

CONSTITUTIONAL HISTORY: Alexander Hamilton, The Federalist,
INo. 70 237
viii | ConrENTS

B. As COMMANDER IN CHIEF AND IN FOREIGN AFFAIRS 238

United States v. Curtiss-Wright Corporation 241
Dames & Moore v. Regan 243

C. Tue TREATY-MAKING POWER AND EXECUTIVE

INDEPENDENCE 249
CONSTITUTIONAL History: Alternatives to Treaties: The Rise of
Executive Agreements and Arrangements 252
Missouri v. Holland 253
THE DEVELOPMENT OF LAW: Senate Rejection of Proposed
Treaties 254
United States v. Pink 256
CONSTITUTIONAL HISTORY: The Treaty-Reinterpretation
Controversy 258
Goldwater v. Carter (reprise) 260
United States v.Alvarez-Machain 260

D. War-MAKING AND EMERGENCY POWERS 264

CONSTITUTIONAL HISTORY: Citizens, Noncitizens, “Enemy
Combatants,” and Civil Rights in Wartime 269
IN COMPARATIVE PERSPECTIVE: The House of Lords Rules
against the Indefinite Detention of Terrorists 275
The Prize Cases 276
Ex parte Milligan 279
Korematsu v. United States 285
Rasul v. Bush =295
Hamdi v. Rumsfeld 300
Hamdan v. Rumsfeld 313
War Powers Resolution 325
THE DEVELOPMENT OF LAW: The USA PATRIOT Act of 2001,
Wiretaps, and the Foreign Intelligence Surveillance Court 330
IN COMPARATIVE PERSPECTIVE: The Supreme Court of Israel’s
Ruling against the Use of Torture 334
 Contents | ix

CHAPTER 4 @ The President as Chief Executive in

Domestic Affairs 338

A. NATIONAL SECURITY AND INHERENT AND

EMERGENCY POWERS 339
[United States v. The Progressive, Inc.| 342
INSIDE THE COURT: The Argument for Inherent and
Emergency Presidential Powers in “the Steel Seizure
Case” 343
Youngstown Sheet & Tube Co. v. Sawyer 344
New York Times Co. v. United States 359
THE DEVELOPMENT OF LAW: The National Security Agency’s
Warrantless Electronic Surveillance 368

B. APPOINTMENT AND REMOVAL PowERs 370

CONSTITUTIONAL HISTORY: Supreme Court Nominations
Rejected, Postponed, or Withdrawn Due to Senate
Opposition 374
Myers v. United States 375
Humphrey’s Executor v. United States 386
Bowsher v. Synar 389
Morrison v. Olson 398

C. LEGISLATIVE POWERS IN THE ADMINISTRATIVE STATE 416

[Chevron v. Natural Resources Defense Council] 420
0 CONSTITUTIONAL HISTORY: Presidential Signing Statements and
Legislative Powers 423
Schechter Poultry Corporation v. United States 424
Industrial Union Department, AFL-CIO v, American Petroleum
Institute 430
Immigration and Naturalization Service v. Chadha 433
Clinton v. City of New York 442
0 THE DEVELOPMENT OF LAW: Presidential Vetoes,
1789-2007 452

D. ACCOUNTABILITY AND IMMUNITIES 453

[Cheney v. U.S. District Court for the District of Columbia] 458
United States v. Nixon 461
x | CONTENTS

CONSTITUTIONAL HISTORY: Unraveling the Watergate

Affair 462
Articles of Impeachment against President Richard M. Nixon
Recommended by the House Judiciary Committee 469
Clinton v.Jones 472
Articles of Impeachment against President William Jefferson Clinton
Recommended by the House Judiciary Committee and Approved
by the House of Representatives 477

CHAPTER 5 & Congress: Membership, Immunities, and

Investigatory Powers 481

A. MEMBERSHIP AND IMMUNITIES 482

[U.S. Department of Commerce v. Montana] 484
Powell v. McCormack 489
U.S. Term Limits, Inc. v. Thornton 494
Gravel v. United States 502
Eastland v. United States Servicemen’s Fund 506
Hutchinson v. Proxmire 509

B. INVESTIGATORY, CONTEMPT, AND IMPEACHMENT

Powers 511
Watkins v. United States 516
Barenblatt v. United States 524
Gibson v. Florida Legislative Investigation Committee 531
Walter L. Nixon v. United States 537
CO CONSTITUTIONAL HISTORY: Impeachment Trials 539

CHAPTER 6 @ Congress: Legislative, Taxing, and

Spending Powers 542

O CONSTITUTIONAL HISTORY: Formal Amendments and Methods

of Amending the Constitution 544
CO CONSTITUTIONAL HISTORY: A Twenty-seventh Amendment
after 203 years 546
 CONTENTS | xi

A. THE Ctassic VIEW OF CONGRESS’S LEGISLATIVE

POWERS 548
McCulloch v. Maryland 553
Gibbons v. Ogden 564

B. From LEGAL FORMALISM TO THE NEw DEAL

CRISIS 569
[Swift & Company v. United States] 573
[The Shreveport Rate Case] 573
[Carter v. Carter Coal Company] 574
United States v. E. C. Knight Company 576
Hammer v. Dagenhart 581

C. FRoM THE New DEat CRrIsIS TO THE

ADMINISTRATIVE STATE 585
National Labor Relations Board v. Jones & Laughlin Steel
Corporation 591
United States v. Darby Lumber Company 598
Wickard v. Filburn 602
Heart ofAtlanta Motel, Inc. v. United States and
Katzenbach v. McClung 605
United States v. Lopez 614
Reno v. Condon 626
0 IN COMPARATIVE PERSPECTIVE: The European Court of Justice
and the European Union 628
City of Boerne v. Flores 630
United States v. Morrison 642
Gonzales v. Raich 654
Gonzales v. Oregon 663

D. TAXING AND SPENDING POWERS 667

[Pollock v. Farmer’s Loan and Trust Co.] 668
Steward Machine Co. v. Davis 671
United States v. Kahriger 675
South Dakota v. Dole 677
xii | CONTENTS

CHAPTER 7 @& The States and American Federalism 681

1 IN COMPARATIVE PERSPECTIVE: Federalism, Federations, and

Confederations 689

A. STATES’ POWER OVER COMMERCE AND REGULATION 691

CONSTITUTIONAL HISTORY: The Court’s Rulings on Federal
Preemption of State Laws in Historical Perspective 696
Cooley v. The Board of Wardens of the Port of Philadelphia 698
Southern Pacific Co. v.Arizona 703
Bibb v. Navajo Freight Lines, Inc. 707
Maine v. Taylor 709
Pennsylvania v. Nelson 711
O THE DEVELOPMENT OF LAW: Other Rulings on State Regulation
of Commerce in the Absence of Federal Legislation 714
0 THE DEVELOPMENT OF LAW: Other Rulings on State
Regulatory Powers in Alleged Conflict with Federal
Legislation 722

B. THe TENTH AND ELEVENTH AMENDMENTS AND THE

STATES 728
[National League of Cities v. Usery| 729
[Gregory v. Ashcroft] 731
0 INSIDE THE COURT: Rethinking Federalism in Garcia v.
San Antonio Metropolitan Transit Authority 736
Garcia v. San Antonio Metropolitan Transit Authority 739
New York v. United States 752
Printz v. United States and Mack v. United States 758
Seminole Tribe of Florida v. Florida 769
Alden v. Maine 779
Nevada Department of Human Resources v. Hibbs 786
C1 THE DEVELOPMENT OF LAW: Other Recent Rulings on the
Eleventh Amendment 792

C. JUDICIAL FEDERALISM 796

Martin v. Hunter’s Lessee 801
Cooper v. Aaron 805
Younger v. Harris 809
 CONTENTS | xiii

Stone v. Powell 813

Withrow v. Williams 817

D. State Courts AND STATE CONSTITUTIONAL LAW 820

Michigan v. Long 824
People v. PJ. Video, Inc. 828
Commonwealth of Kentucky v. Wasson (reprise) 832
4 THE DEVELOPMENT OF LAW: Other Recent State Supreme
Court Decisions Declining to Follow the U.S. Supreme
Court’s Rulings (reprise). 832

CHAPTER 8 @ Representative Government, Voting Rights,

and Electoral Politics 833

CONSTITUTIONAL HISTORY: Thomas Paine on the Right to

Vote and Representative Government 835

A. REPRESENTATIVE GOVERNMENT AND THE

FRANCHISE 836
[Chisom v. Roemer] 842
South Carolina v. Katzenbach 844
THE DEVELOPMENT OF LAW: Other Rulings Interpreting the
Voting Rights Act 850

B. VoTING RIGHTS AND THE REAPPORTIONMENT

REVOLUTION 855
THE DEVELOPMENT OF LAW: Rulings Extending the Principle
of One Person, One Vote to Local Governments 859
O THE DEVELOPMENT OF LAW: Judicial Standards in
Reapportionment Cases 861
Gomillion v. Lightfoot 865
Baker v. Carr (reprise) 866
Wesberry v. Sanders 867
Reynolds v. Sims 873
Vieth v.Jubelirer 879
Shaw v. Reno 891
Hunt v. Cromartie 897
0 ‘THE DEVELOPMENT OF LAW: Other Post—Shaw v. Reno Rulings
on Racial Gerrymandering 903
xiv | CONTENTS

C. CAMPAIGNS AND ELECTIONS 906

Bush v. Gore 915
Buckley v. Valeo 925
Federal Election Commission v. National Conservative Political Action
Committee (NCPAC) and Democratic Party of the United States v.
National Conservative Political Action Committee (NCPAC) 936
McConnell v. Federal Election Commission 940
Federal Election Commission v. Wisconsin Right to Life, Inc. 956
THE DEVELOPMENT OF LAW: Other Rulings on Campaign
Finance 965
Republican Party of Minnesota v.White 967
Rutan v. Republican Party of Illinois 971
McIntyre v. Ohio Elections Organization 977
CO THE DEVELOPMENT OF LAW: Other Rulings on Campaigns and
Elections 982

CHAPTER 9 @ Economic Rights and American

Capitalism 988

A. THE CONTRACT CLAUSE AND VESTED INTERESTS IN

PROPERTY 990
CONSTITUTIONAL HISTORY: John Locke on the Ends
of Political Society and Government 991
Fletcher v. Peck 994
Trustees of Dartmouth College v. Woodward 997
Charles River Bridge Co. v. Warren Bridge Co. 1002
Home Building & Loan Association v, Blaisdell 1009
City of El Paso v. Simmons 1014
United States Trust Co. of New York v. State of New Jersey 1016

B. THE DEVELOPMENT AND DEMISE OF A “LIBERTY OF

CONTRACT” 1020
[Allgeyer v. Louisiana] 1023
[Mugler v. Kansas] 1026
|Jacobson v. Massachusetts] 1026
[Adair v. United States] 1028
[Coppage v. Kansas] 1029
 ConTENTs | xv

Butchers’ Benevolent Association v. Crescent City Livestock

Landing & Slaughterhouse Co. (The Slaughterhouse Cases) 1033
Munn v. Illinois 1038
Lochner v. New York 1040
Muller v. Oregon 1046
West Coast Hotel Co. v. Parrish 1049
Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. 1052
. THE “TAKINGS CLAUSE” AND JUST COMPENSATION 1054
OC INSIDE THE COURT: Hawaii Housing Authority v. Midkiff (1984)
and Kelo v. City of New London, Connecticut (2005) 1058
Hawati Housing Authority v. Midkiff 1060
Lucas v. South Carolina Coastal Council 1062
Kelo v, City of New London, Connecticut 1068
QO THE DEVELOPMENT OF LAW: Other Important Rulings on the
Takings Clause 1077

RESEARCHING LEGAL MATERIALS 1081

THE How, Wuy, AND WHAT TO BRIEFING AND CITING

Court Cases’ 1083

MEMBERS OF THE SUPREME COURT OF THE UNITED

STATES 1087

BIOGRAPHIES OF CURRENT JUSTICES 1091

Giossary 1097

GENERAL INDEx 1105

INDEX OF Cases 1119

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ETSTAOH ILLUSTRATIONS

The Supreme Court, 2007 84

Figure 2.1 Avenues of Appeal 105
Figure 2.2 Jurisdictional Map of the U.S. Courts of Appeal
and U.S. District Courts 108
Figure 2.3 Docket and Filings, 1800--2007 176
Page from Docket Book 182
Members of the Burger Court 184
Figure 2.4 Opinion Writing, 1937-2007 189
The justices’ private conference room 194
Chief Justice William Howard Taft 236
Alternatives to Treaties 252
Japanese-Americans in an internment camp during
World War II 287
“Enemy combatants” held in Guantanamo Bay, Cuba 300
Cartoon of the Constitution and the seizure of private property 346
Jagdish Rai Chadha 434
President Richard Nixon after his resignation 454
President William Jefferson Clinton 474
Representative Adam Clayton Powell 489
Four Methods of Amending the Constitution 544
Chief Justice John Marshall 552
Herblock Cartoon on FDR’s court-packing plan 592
* Moreton Rolleson, Jr., owner of the Heart of Atlanta Motel 606
Chief Justice Roger B. Taney 694
Chief Justice nominee John Roberts (front, right) carrying the
coffin of Chief Justice Rehnquist into the Supreme Court on
September 6, 2005. 729
The Warren Court 860
Cartoon of the original Gerrymander in 1812 862
Map of the redistricted Tuskegee, Alabama 865
Congressional District 12, challenged in Shaw v.Reno (1993) 891
Congressional District 12 as drawn and redrawn in 1992,
1.99 Teandst 998. 898
“Hooverville” during the Great Depression 1010
Cartoon depicting the Supreme Court’s backlog of cases
in 1883 1024
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 PREFACE

Because there is no dearth of casebooks, perhaps an explanation is

needed of how this one differs from others. What distinguishes this
casebook is its treatment and incorporation of material on constitu-
tional history and American politics. Few casebooks pay adequate
attention to the forces of history and politics on the course of constitu-
tional law. Yet constitutional law, history, and politics are intimately
intertwined. -
The Constitution and Bill of Rights, of course, are political docu-
ments. Rooted in historic struggles and based on political compromises,
their provisions and guarantees continue to invite competing interpreta-
tions and political contests over, for example, the separation of powers
between Congress and the president, federalism, and civil rights and lib-
erties. Because the Constitution says nothing about who should interpret
it or about how it should be interpreted, constitutional law is animated
by the politics of interpretation and the interpretation of politics. Nei-
ther do we have a single accepted theory of constitutional inter-
pretation, nor do the justices write on a clean slate. Instead, we face
constitutional choices and competing judicial and political philosophies,
as well as new social, economic, and technological changes.
The Supreme Court’s decisions do not occur in a political vacuum,
standing apart from history and the political struggles within the Court
and the country. Virtually every major political controversy raises ques-
‘tions of constitutional law, no less than do technological changes and
social movements and economic forces. The development and direc-
tion of constitutional law also shift (more or less quickly) with the
Court’s changing composition. Members of the Court, just as other
citizens, differ in their readings of the Constitution. Moreover, major
confrontations in constitutional law and politics, such as those over the
powers of the national government, school desegregation, abortion and
the right of privacy, involve continuing struggles that run from one
generation to another. In the course of those struggles, constitutional
law evolves with changes in the Court and the country. The Constitu-
tion and the Bill of Rights bind the Court, other political institutions,
and the people in an ongoing dialogue over the exercise of and limita-
tions on governmental power.
By providing the historical context and explaining the political
xx | PREFACE

contests among the justices and between the Court and the country,
this casebook aims to make constitutional law more accessible for stu-
dents. History and politics are also important for students’ analyzing of
particular decisions and their relation to developments and changes in
constitutional law and politics. They are crucial as well for students try-
ing critically to evaluate competing interpretations and to appreciate
the political consequences of alternative interpretations. And they are
essential if students are to engage in the dialogue of constitutional law,
confront constitutional choices, and come to terms with their and oth-
ers’ views of the Constitution and the Bill of Rights.
The casebook remains different in several ways. First, it comes in
two very comprehensive, anthology-like volumes. Volume I, Struggles for
Power and Governmental Accountability, deals with separation of powers,
federalism, and the democratic process. Volume II, Civil Rights and Civil
Liberties, is devoted to the enduring struggles to limit governmental
power and guarantee civil rights and liberties. As a two-volume set, it
not only includes more Court decisions than other casebooks
but also permits more introductory background material. Instructors,
therefore, have greater flexibility when assigning cases, and students will
find useful the additional cases and guides to other cases and resources.
Second, two chapters dealing with the politics of constitutional in-
terpretation and Supreme Court decision making contain material not
usually found in casebooks. Chapter 1 goes beyond dealing with the
establishment of the power of judicial review, and political criticisms of
the Court’s exercise of that power, to examining rival theories of con-
stitutional interpretation. Students are introduced to differing judicial
and political philosophies and referred to cases and opinions found in
subsequent chapters that illustrate these different positions on constitu-
tional interpretation. Chapter 2 combines an introduction to juris-
dictional matters, such as standing, with a discussion of how the Court
operates as an institution and in relation to other political institutions,
which may help promote compliance with and implementation of its
rulings, or thwart and even reverse them. In short, Chapter 1 prepares
students for critically evaluating competing interpretations of constitu-
tional provisions in subsequent chapters. And Chapter 2 prepares them
for understanding the political struggles that take place within the
Court as well as between the Court and other political institutions over
its decisions. While the volumes together are designed for a two-
semester course, both of these chapters, as well as The Constitution of
the United States, are included in each volume for the convenience of
teachers and students who might be involved in only one of the two-
semester constitutional law course sequence.
As already noted, each chapter and subsection contains a lengthy
 PREFACE
eee | xxi

introductory essay. These essays focus on particular provisions of the

Constitution and the Bill of Rights, why they took the form they did,
and what controversies surrounded them during the Founding period
and later. Most begin with the debates at the Constitutional Conven-
tion of 1787 and those between the Federalists and Anti-Federalists
during the ratification period, and then review subsequent cases and
controversies. Besides providing a historical and political context for
the cases in each chapter, the essays highlight the continuity and
changes in the debates over constitutional law and politics that run
from the Founding period to those rulings of the Roberts Court.
Something should also be said about the case excerpts. Most are
preceded by “headnotes,” short explanations of the facts and why the
case was appealed to the Court. But, unlike the brief (and usually dry)
headnotes typically found in easebooks, these reveal something about
the personal and political struggles of those who appeal to the Court.
Throughout, there is an attempt to help students understand the judi-
cial and political process and appreciate how questions of constitutional
law are embedded in everyday life. For this reason, students will also
find excerpts from oral arguments before the Court and other materi-
als bearing on the political struggles that they represent. Along with
excerpts of the opinion announcing the decision of the Court, students
will frequently encounter excerpts from separate concurring and dis-
senting opinions. These are included to help students appreciate the
choices that the Court and they must make when interpreting the
Constitution and the Bill of Rights. Related to this is a good sugges-
tion made by a number of adopters of the first edition: the headnotes
record the actual Court vote.
In addition, each volume contains four types of boxes, which in-
clude materials that further place constitutional interpretation and law
‘in historical and political perspective. One set of boxes, CONSTITU-
TIONAL HISTORY, presents important background material, such
as excerpts from John Locke on the connection between property
and liberty and explanatory notes on the “Watergate crisis” and civil
liberties in wartime. Another set, THE DEVELOPMENT OF LAW,
shows changes and patterns in constitutional law and refers students to
other cases on topics of special interest. The third, INSIDE THE
COURT, illustrates the internal dynamics of the Court when engaged
in the process of constitutional interpretation and deciding cases. Fi-
nally, IN COMPARATIVE PERSPECTIVE boxes illustrate how
courts around the world have dealt with similar constitutional contro-
versies. These boxes are indicated by 0 in the contents. Also included
at the ‘end of each volume are brief biographies of the current sitting
justices.
xxii | PREFACE

This seventh edition updates the introductions, the cases, and the
four types of boxes, as well as incorporates the highlights of the Court's
terms through the 2006-2007 term. Along with adding a number of
new boxes on CONSTITUTIONAL HISTORY, THE DEVELOP-_
MENT OF LAW, and IN COMPARATIVE PERSPECTIVE, this
edition includes a number of other new features. RESEARCHING
LEGAL MATERIALS provides a guide for students to access and
to search for legal materials and law-related sources on the Internet.
THE HOW, WHY, AND WHAT TO BRIEFING AND CITING
COURT CASES discusses the how, why, and what to briefing and cit-
ing court decisions and opinions. In response to requests from adopters
of past editions, the chapter titled “Economic Rights and American
Capitalism” is included in both volumes; it appears as Chapter 9 in
Volume One and remains Chapter 3 in Volume Two. Besides maintain-
ing the SUPREME COURT WEB WATCH (at www.wwnorton
.com/scww/), with links to pertinent information on the Supreme
Court and the Constitution, in order to keep this edition up to date, I
will continue to write, and Norton to publish each September, an an-
nual supplement that we call SUPREME COURT WATCH.
What follows will, it is hoped, enrich students’ understanding of
constitutional law, politics, and history, as well as open them to the
possibilities in interpreting the Constitution and the Bill of Rights. But
the Constitution is where students should begin their study, and it is as-
suredly where they will return again and again.
 ACKNOWLEDGMENTS

I am indebted to my students and colleagues for the favorable reception

that they gave earlier editions, but I still owe a larger debt to Claudine,
my wife, for giving me the freedom to work as I do and to enjoy life’s
pleasures with Benjamin, Sara, and Talia. I continue to be grateful for
the inspiration and support of my teacher, C. Herman Pritchett, Uni-
versity of California, Santa Barbara, and my colleagues at the Univer-
sity of Virginia, Henry J. Abraham and David Klein. Ira Carmen,
University of Illinois; Phillip Cooper, University of Vermont; Jerome
Hanus, The American University; and Gerald Rosenberg, University
of Chicago, read and made very helpful suggestions on the first edition
for which I am grateful. Also, I thank Thomas Baker, Florida Interna-
tional University; Sue Davis, University of Delaware; Susan Fino,
Wayne State University; Christine Harrington, New York University;
and H. N. Hirsch, University of California, San Diego, for offering
comments that helped shape the casebook early on in its development.
This seventh edition incurs even more debt. I very much appreci-
ate the support and suggestions made by countless undergraduate and
graduate students. In particular, several current and former graduate
students deserve special recognition: Christopher Banks, Cindy Boyles,
Stephen Bragaw, Steve Brown, John Blakeman, Richard Drew, Scott
Gerber, Jeffrey Hockett, Robert Hume, Nathan Jones, Edward Kelly,
Charles Kromkowski, William Mandel, Rick Mayes, Stacy Nyikos,
Gavin Reddick, James Staab, Jon Talotta, Stephen Tauber, and James
Todd. Numerous colleagues around the country offered support and
very helpful suggestions for changes and corrections that have im-
proved this edition. Among many other colleagues, I am grateful to the
following: John Q. Adams, Maria Antonini, Gordon Baker, Jack Bar-
low, John Brigham, Joseph Callahan, David Carrithers, Richard
Claude, George F Cole, Ronald Collins, Sheila Collins, Akiba Covitz,
John Domino, Louis Fisher, Jack Fruchtman, Jr., Hal Goldman, Leslie
Goldstein, Susan Grogan, Robert Hardgrave, Jr., Harry N. Hirsch,
- Milton Heumann, Elizabeth Hull, Sidney Heyman, Michael Horan,
Carolyn Johnson, Robert M. Johnstone, Nancy Kassop, Paul Kens, By-
ron Lander, Susan Lawrence, James Lennertz, Robert Katzmann, J.
Morgan Kousser, Thomas Lewis, Kevin McGuire, Pricilla Macadeo,
David T. Mason, Eddie L. Meaders, Vincent Michelot, Lucas Morel,
xxiv | ACKNOWLEDGMENTS

Bruce Murphy, Jill Norgren, Karen O’Connor, Jack W. Peltason,

Marie Provine, Stephen Ross, John Scheb, Guy Scoffoni, David
Skover, Rogers Smith, Neil Snortland, Donald Songer, Gene
Straughan, Harold Sullivan, John Taylor, James Todd, and Mary Vol-
cansek.
In preparing this and the last edition I benefited from the com-
ments of several reviewers and remain indebted to John C. Blakeman,
J. M. Bordelon, Steven Brown, Michelle D. Dearorff, Milton Heu-
mann, Paul Kens, S. A. Dwyer-Shick, Cary Federman, Jack Frucht-
man, Jr., David R. Manwaring, Wendy L. Martinek, W. McKercher,
David Pogue, Alisa Rosenthal, Daniel E. Smith, Mark Caleb Smith,
Steve Tauber, and Paul Weber.
Finally, the generous support of the American Philosophical Soci-
ety and the Earhart Foundation contributed to this project as well.
Donald Fusting, a patient and wise editor, worked with me on the first
two editions, as did Steve Dunn on the third, Sarah Caldwell on the
fourth, Ann Marcy on the fifth edition, Aaron Javsicas on the sixth,
and Brian Baker and Matthew Arnold on this edition. Work on these
volumes, I should also acknowledge, was indirectly but significantly
helped by the U.S. Fulbright Commission. The first edition was largely
completed during 1987—1988 while I was a Fulbright Lecturer in Con-
stitutional Studies at Oxford University. The third edition was com-
pleted while I was a Fulbright Research Fellow in Japan. And the
fourth edition was completed while I held the Fulbright Chair in His-
tory. and Political Science at the University of Bologna. The seventh
edition was worked on while I was a Visiting Professor at the Institut
d’Etudes Politique, Universite Lyon-2, Lyon, France. I am thus deeply
indebted to the Fulbright Commission and a number of scholars who
made my stays so productive. In particular, I am grateful to Byron
Shafer, Yasuo Ohkoshi, Vincent Michelot, and Tiziano Bonazzi. I am
grateful as well for permission to reproduce materials here granted by
the following individuals and organizations: Justices William J. Bren-
nan, Jr., and Antonin Scalia; the curator of the Supreme Court of the
United States; the Library of Congress; Justice Hans Linde of the Ore-
gon State Supreme Court; the Supreme Court Historical Society; the
National Portrait Gallery/Smithsonian Institution; The New York Times;
the Roosevelt Library; Sygma/New York Times Magazine; Paula Oka-
moto; and Wide World Photos.
CONSTITUTIONAL LAW AND POLITICS
: VOLUME ONE

SEVENTH EDITION
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 PHE-WNITED“S'TATES
CONSTITUTION AND
AMENDMENTS

W: the people of the United States, in Order to form a more per-

fect Union, establish Justice, insure domestic Tranquility, pro-
vide for the common defence, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.

ARDICI Fal

SECTION 1. All legislative Powers herein granted shall be vested in

a Congress of the United States, which shall consist of a Senate and
House of Representatives.
SECTION 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several States,
and the Electors in each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to
the Age of twenty five Years, and been seven Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of
~ that State in which he shall be chosen.
[Representatives and [direct Taxes] shall be apportioned among the
several States [which may be included within this Union,] according to
their respective Numbers, which shall be determined by adding to the
whole Number of free Persons, including those bound to Service for a

I
2 | Te Unirep Stares CONSTITUTION AND AMENDMENTS

Term of Years, and excluding Indians not taxed, three fifths of all other
Persons. (This clause was changed by section 2 of the Fourteenth Amend-
ment.)| The actual Enumeration shall be made within three Years after
the first Meeting of the Congress of the United States, and within
every subsequent Term of ten Years, in such Manner as they shall by
Law direct. The Number of Representatives shall not exceed one for
every thirty Thousand, but each State shall have at Least one Repre-
sentative; and until such enumeration shall be made, the State of New
Hampshire shall be entitled to chuse three, Massachusetts eight,
Rhode-Island and Providence Plantations one, Connecticut five, New-
York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland
six, Virginia ten, North Carolina five, South Carolina five, and Georgia
three.
When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.

SECTION 3. The Senate of the United States shall be composed of

two Senators from each State, [chosen by the Legislature thereof, (This
provision was changed by section 1 of the Seventeenth Amendment.)| for six
Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three
Classes. The Seats of the Senators of the first Class shall be vacated at
the Expiration of the second Year, of the second Class at the Expiration
of the fourth Year, and of the third Class at the Expiration of the sixth
Year, so that one third may be chosen every second Year; [and if Va-
cancies happen by Resignation, or otherwise, during the Recess of the
Legislature of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature, which shall
then fill such Vacancies. (This clause was changed by section 2 of the Seven-
teenth Amendment.)|
No Person shall be a Senator who shall not have attained to the
Age of thirty Years, and been nine Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State for
which he shall be chosen.
The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President
pro tempore, in the Absence of the Vice President, or when he shall
exercise the Office of President of the United States.
 ArticleI | 3

The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice shall
preside: And no Person shall be convicted without the Concurrence of
two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any Of-
fice of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.

SECTION 4. The Times, Places and Manner of holding Elections

for Senators and Representatives, shall be prescribed in each State by
the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators.
The Congress shall assemble at least once in every Year, and such
Meeting shall be [on the first Monday in December, (This provision was
changed by section 2 of the Tiventieth Amendment.) unless they shall by Law
appoint a different Day.

SECTION 5. Each House shall be the Judge of the Elections, Re-

turns and Qualifications of its own Members, and a Majority of each
shall constitute a Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to compel the Atten-
dance of absent Members, in such Manner, and under such Penalties as
each House may provide.
Each House may determine the Rules of its Proceedings, punish
its Members for disorderly Behaviour, and, with the Concurrence of
two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their Judg-
ment require Secrecy; and the Yeas and Nays of the Members of either
House on any question shall, at the Desire of one fifth of those Present,
be entered on the Journal.
Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.
SECTION 6. The Senators and Representatives shall receive a Com-
pensation for their Services, to be ascertained by Law, and paid out of
the Treasury of the United States. They shall in all Cases, except Trea-
son, Felony and Breach of the Peace, be privileged from Arrest during
their Attendance at the Session of their respective Houses, and in going
4 | Tae UNiTEeD StaTes CONSTITUTION AND AMENDMENTS

to and returning from the same; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of
the United States, which shall have been created, or the Emoluments
whereof shall have been encreased during such time; and no Person
holding any Office under the United States, shall be a Member of ei-
ther House during his Continuance in Office.

SECTION 7. All Bills for raising Revenue shall originate in the

House of Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the Pres-
ident of the United States; If he approve he shall sign it, but if not he
shall return it, with his Objections to that House in which it shall have
originated, who shall enter the Objections at large on their Journal, and
proceed to reconsider it. If after such Reconsideration two thirds of that
House shall agree to pass the Bill, it shall be sent, together with the Ob-
jections, to the other House, by which it shall likewise be reconsidered,
and if approved by two thirds of that House, it shall become a Law. But
in all such Cases the Votes of both Houses shall be determined by yeas
and Nays, and the Names of the Persons voting for and against the Bill
shall be entered on the Journal of each House respectively. If any bill
shall not be returned by the President within ten Days (Sundays ex-
cepted) after it shall have been presented to him, the Same shall be a
Law, in like Manner as if he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of
the Senate and House of Representatives may be necessary (except on
a question of Adjournment) shall be presented to the President of the
United States; and before the Same shall take Effect, shall be approved
by him, or being disapproved by him, shall be repassed by two thirds of
the Senate and House of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill.
SECTION 8. The Congress shall have Power To lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the
common Defence and general Welfare of the United States; but all Du-
ties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with Foreign Nations, and among the sev-
eral States, and with the Indian tribes;
Soteg Lo oapage seamen etlI a la a pea Article
ilca al I |5

To establish an uniform Rule of Naturalization, and uniform Laws

on the subject of Bankruptcies throughout the United States:
To coin Money, regulate the Value thereof, and of foreign Coin,
and fix the Standard of Weights and Measures;
‘To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
‘To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to
that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land
and naval Forces;
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the Service
of the United States, reserving to the States respectively, the Appoint-
ment of the Officers, and the Authority of training the Militia accord-
ing to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of partic-
‘ular States, and the Acceptance of Congress, become the Seat of the
Government of the United States, and to exercise like Authority over
all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Ar-
senals, dock-Yards, and other needful Buildings;—And
To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United States, or in any
Department or Officer thereof.

SECTION 9. The Migration or Importation of such Persons as any

of the States now existing shall think proper to admit, shall not be pro-
hibited-by the Congress prior to the Year one thousand eight hundred
6 | Tue UNitep States CONSTITUTION AND AMENDMENTS

and eight, but a Tax or duty may be imposed on such Importation, not
exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be sus-
pended, unless when in Cases of Rebellion or Invasion the public
Safety may require it. |
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Propor-
tion to the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another: nor shall Ves-
sels bound to, or from, one State, be obliged to enter, clear, or pay Du-
ties in another.
No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law; and a regular Statement and Account
of the Receipts and Expenditures of all public Money shall be pub-
lished from time to time.
No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument, Of
fice, or Title, of any kind whatever, from any King, Prince, or foreign
Site
SECTION 10. No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money;
emit Bills of Credit; make any Thing but gold and silver Coin a Tender
in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or
Law impairing the Obligation of Contracts, or grant any Title of No-
bility.
No State shall, without the Consent of the Congress, lay any Im-
posts or Duties on Imports or Exports, except what may be absolutely
necessary for executing it’s 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.
 Article II | 7

ARTICLEl

SECTION 1. The executive Power shall be vested in a President of

the United States of America. He shall hold his Office during the Term
of four Years, and, together with the Vice President, chosen for the
same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Sen-
ators and Representatives to which the State may be entitled in the
Congress: but no Senator or Representative, or Person holding an Of-
fice of Trust or Profit under the’ United States, shall be appointed an
Elector.
[The Electors shall meet in their respective States, and vote by Bal-
lot for two Persons, of whom ene at least shall not be an inhabitant of
the same State with themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for each; which List
they shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the Sen-
ate. The President of the Senate shall, in the Presence of the Senate and
House of Representatives, open all the Certificates, and the Votes shall
then be counted. The Person having the greatest Number of Votes
shall be the President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more than one who
have such Majority, and have an equal Number of Votes, then the
House of Representatives shall immediately chuse by Ballot one of
them for President; and if no Person have a Majority, then from the
five highest on the List the said House shall in like Manner chuse the
President. But in chusing the President, the Votes shall be taken by
States, the Representation from each State having one Vote; A quorum
for this purpose shall consist of a Member or Members from two thirds
of the States, and a Majority of all the States shall be necessary to a
Choice. In every Case, after the Choice of the President, the Person
having the greatest Number of Votes of the Electors shall be the Vice
President. But if there should remain two or more who have equal
Votes, the Senate shall chuse from them by Ballot the Vice President.
(This clause was superseded by the Tivelfth Amendment.)|
The Congress may determine the Time of chusing the Electors,
and the Day on which they shall give their Votes; which Day shall be
the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption
of this Constitution, shall be
eligible to the Office of President; neither shall any Person be eligible
to that Office who shall not have attained to the Age of thirty five
8 | THe UniTEeD STATES CONSTITUTION AND AMENDMENTS

Years, and been fourteen Years a Resident within the United States.
[In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and Duties of
the said Office, the Same shall devolve on the Vice President, and the
Congress may by Law provide for the Case of Removal, Death, Resig-
nation or Inability, both of the President and Vice President, declaring
what Officer shall then act as President, and such Officer shall act ac-
cordingly, until the Disability be removed, or a President shall be
elected. (This clause was modified by the Tiventy-Fifth Amendment. }]
The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be increased nor diminished during
the Period for which he shall have been elected, and he shall not re-
ceive within that Period any other'Emolument from the United States,
or any of them.
Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation:—‘“I do solemnly swear (or affirm) that
I will faithfully execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States.”
SECTION 2. The President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the several
States, when called into the actual Service of the United States; he may
require the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any Subject relating to the Duties of
their respective Offices, and he shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in Cases of
Impeachment.
He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and Con-
sent of the Senate, shall appoint Ambassadors, other public Ministers
and Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided
for, and which shall be established by Law: but the Congress may by
Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.
The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions
which shall expire at the End of their next Session.
SECTION 3. He shall from time to time give to the Congress Infor-
mation of the State of the Union, and recommend to their Considera-
 Article III | 9

tion such Measures as he shall judge necessary and expedient; he may,

on extraordinary Occasions, convene both Houses, or either of them,
and in Case of Disagreement between them, with Respect to the Time
of Adjournment, he may adjourn them to such Time as he shall think
proper; he shall receive Ambassadors and other public Ministers; he
shall take Care that the Laws be faithfully executed, and shall Commis-
sion all the Officers of the United States.
SECTION 4. The President, Vice President and all civil Officers of
the United States, shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and Mis-
demeanors.

ARTICLE III
SECTION 1. The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good Be-
haviour, and shall, at stated Times receive for their Services, a Com-
pensation, which shall not be diminished during their Continuance in
Office.

SECTION 2. The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their Author-
ity;—to all Cases affecting Ambassadors, other public Ministers and
Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to
Controversies to which the United States shall be a Party;—to Contro-
versies between two or more States;—between a State and Citizens of
another State;—between Citizens of different States,—between Citi-
zens of the same State claiming Lands under Grants of different States,
and between a State, or the Citizens thereof, and foreign States, Citi-
zens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before men-
tioned, the supreme Court shall have appellate Jurisdiction, both as to
~ Law and Fact, with such Exceptions, and under such Regulations as
the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State,
10 | THe UNITED STATES CONSTITUTION AND AMENDMENTS

the Trial shall be at such Place or Places as the Congress may by Law
have directed.
SECTION 3. Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving them’
Aid and Comfort. No Person shall be convicted of Treason unless on
the Testimony of two Witnesses to the same overt Act, or on Confes-
sion in open Court.
The Congress shall have Power to declare the Punishment of Trea-
son, but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted.

ARTIC LY

SECTION 1. Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State;
And the Congress may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved, and the Effect
thereof.
SECTION 2. The Citizens of each State shall be entitled to all Priv-
ileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State, shall
on Demand of the executive Authority of the State from which he
fled, be delivered up, to be removed to the State having Jurisdiction of
the Crime.
[No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall
be delivered up on Claim of the Party to whom such Service or Labour
may be due. (This clause was superseded by the Thirteenth Amendment.)
SECTION 3. New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the Juris-
diction of any other State; nor any State be formed by the Junction of
two or more States, or Parts of States, without the Consent of the Leg-
islatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property be-
longing to the United States; and nothing in this Constitution shall be
so construed as to Prejudice any Claims of the United States, or of any
particular State.
 tne
ee Article VI | 11
ee |
SECTION 4. The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence.

ARAIGIE

The Congress, whenever two thirds of both Houses shall deem it

necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States, shall
call a Convention for proposing Amendments, which, in either Case,
shall be valid to all Intents and-Purposes, as Part of this Constitution,
when ratified by the legislatures of three fourths of the several States, or
by Conventions inthree’ fourths thereof, as the one or the other Mode
of Ratification may be proposed by the Congress; Provided that
no Amendment which may be made prior to the Year One thousand
eight hundred and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article; and that no
State, without its Consent, shall be deprived of its equal Suffrage in the
Senate.

ART GLE

All Debts contracted and Engagements entered into, before the

Adoption of this Constitution, shall be as valid against the United
States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall be
~ bound by Oath or Affirmation, to support this Constitution; but no re-
ligious Test shall ever be required as a Qualification to any Office or
public Trust under the United States.
12 | THe UNiTepD States CONSTITUTION AND AMENDMENTS

ARTICLE VII

The Ratification of the Conventions of nine States, shall be suffi-

cient for the Establishment of this Constitution between the States so.
ratifying the Same.
Done in Convention by the Unanimous Consent of the States present
the Seventeenth Day of September in the Year of our Lord one thou-
sand seven hundred and Eighty seven and of the Independence of the
United States of America the Twelfth.
IN WITNESS whereof We have hereunto subscribed our Names.

AMENDMENT I
[The first ten amendments (the Bill of Rights) were ratified
December 15, 1791.]
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press, or the right of the people peaceably to assem-
ble, and to petition the Government for a redress of grievances.

AMENDMENT II

A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be
infringed.

AMENDMENT III

No Soldier shall, in time of peace be quartered in any house, with-

out the consent of the Owner, nor in time of war, but in a manner to
be prescribed by law.

AMENDMENT IV

The right of the people to be secure in their persons, houses, pa-

pers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, sup-
 Amendment VIII | 13
mr
ported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise in-

famous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of
life or limb, nor shall be compelled in any criminal case to be a witness
against himself, nor be: deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed; which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining Witnesses in his favor,
and to have the assistance of counsel for his defence.

AMENDMENT VII

In Suits at common law, where the value in controversy shall ex-

ceed twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.

AMENDMENT VII

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.
14 | THe Unirep Stares CONSTITUTION AND AMENDMENTS

AMENDMENT IX

The enumeration in the Constitution, of certain rights, shall not

be construed to deny or disparage others retained by the people.

AMENDMENT X

The powers not delegated to the United States by the Constitu-

tion, nor prohibited by it to the States, are reserved to the States re-
spectively, or to the people.

AMENDMENT XI
|Ratified February 7, 1795.]
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.

AMENDMENT XII
|Ratified June 15, 1804.|
The Electors shall meet in their respective states, and vote by ballot
for President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the per-
son voted for as Vice-President, and they shall make distinct lists of all
persons voted for as President, and of all persons voted for as Vice-
President, and of the number of votes for each, which lists they shall
sign and certify, and transmit sealed to the seat of the government of
the United States, directed to the President of the Senate;—The Presi-
dent of the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes shall then be
counted;—The person having the greatest number of votes for Presi-
dent, shall be the President, if such number be a majority of the whole
number of Electors appointed; and if no person have such majority,
then from the persons having the highest numbers not exceeding three
on the list of those voted for as President, the House of Representatives
shall choose immediately, by ballot, the President. But in choosing the
President, the votes shall be taken by states, the representation from
 Amendment XIV | 15

each state having one vote; a quorum for this purpose shall consist of a
member or members from two-thirds of the states, and a majority of all
the states shall be necessary to a choice. [And if the House of Repre-
sentatives shall not choose a President whenever the right of choice
shall devolve upon them, before the fourth day of March next follow-
ing, then the Vice-President shall act as President, as in the case of the
death or other constitutional disability of the President—( This clause
was superseded by section 3 of the Tiventieth Amendment.)]. The person hav-
ing the greatest number of votes as Vice-President, shall be the Vice-
President, if such number be a majority of the whole number of
Electors appointed, and if no person have a majority, then from the
two highest numbers on the list, the Senate shall choose the Vice-
President; a quorum for the purpose shall consist of two-thirds of the
whole number of Senators, and a majority of the whole number shall
be necessary to a choice. But no person constitutionally ineligible to
the office of President shall be eligible to that of Vice-President of the
United States.

AMENDMENT XII
|Ratified December 6, 1865.]
SECTION 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly con-
victed, shall exist within the United States, or any place subject to their
jurisdiction.
SECTION 2. Congress shall have power to enforce this article by ap-
propriate legislation.

AMENDMENT XIV
|Ratified July 9, 1868.]
SECTION 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or en-
force any law which shall abridge the privileges or immunities of citi-
zens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
SECTION 2. Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole num-
16 | THe Unirep States CONSTITUTION AND AMENDMENTS

ber of persons in each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors for President and
Vice President of the United States, Representatives in Congress, the
Executive and Judicial officers of a State, or the members of the Legis-_
lature thereof, is denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens of the United States, or in
any way abridged, except for participation in rebellion, or other crime,
the basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole num-
ber of male citizens twenty-one years of age in such State.
SECTION 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any of-
fice, civil or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or as an of-
ficer of the United States, or as a member of any State legislature, or as
an executive or judicial officer of any State, to support the Constitution
of the United States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies thereof. But
Congress may by a vote of two-thirds of each House, remove such dis-
ability.
SECTION 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions
and bounties for services in suppressing insurrection or rebellion, shall
not be questioned. But neither the United States nor any State shall as-
sume or pay any debt or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for the loss of emanci-
pation of any slave; but all such debts, obligations and claims shall be
held illegal and void.
SECTION 5. The Congress shall have power to enforce, by appro-
priate legislation, the provisions of this article.

AMENDMENT XV
|Ratified February 3, 1870.]}
SECTION 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on ac-
count of race, color, or previous condition of servitude.

SECTION 2. The Congress shall have power to enforce this article

by appropriate legislation.
 Amendment XVIII | 17

AMENDMENT XVI
|Ratified February 3, 1913.]
The Congress shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the sev-
eral States, and without regard to any census or enumeration.

AMENDMENT XVII
[Ratified April 8, 1913.}
The Senate of the United States shall be composed of two Senators
from each State, elected by the people thereof, for six years; and each
Senator shall have one vote. The electors in each State shall have the
qualifications requisite for electors of the most numerous branch of
the State legislatures.
When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of election
to fill such vacancies: Provided, That the legislature of any State may
empower the executive thereof to make temporary appointments until
the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election
or term of any Senator chosen before it becomes valid as part of the
Constitution.

AMENDMENT XVIII
[Ratified January 16, 1919.|
SECTION 1. After one year from the ratification of this article the
manufacture, sale, or transportation of intoxicating liquors within, the
importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for beverage
purposes is hereby prohibited.
SECTION 2. The Congress and the several States shall have concur-
rent power to enforce this article by appropriate legislation.
SECTION 3. This article shall be inoperative unless it shall have
’ been ratified as an amendment to the Constitution by the legisla-
tures of the several States, as provided in the Constitution, within
seven years from the date of the submission hereof to the States by the
Congréss.
18 Tue UNITED STATES CONSTITUTION AND AMENDMENTS

AMENDMENT XIX
|Ratified August 18, 1920.]
The right of citizens of the United States to vote shall not be de-
nied or abridged by the United States or by any State on account of
SeX.
Congress shall have power to enforce this article by appropriate
legislation.

AMENDMENT XX
|Ratified January 23, 1933.|
SECTION 1. The terms of the President and Vice President shall
end at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years in which
such terms would have ended if this article had not been ratified; and
the terms of their successors shall then begin.
SECTION 2. The Congress shall assemble at least once in every year,
and such meeting shall begin at noon on the 3d day of January, unless
they shall by law appoint a different day.
SECTION 3. If, at the time fixed for the beginning of the term of
the President, the President elect shall have died, the Vice President
elect shall become President. If a President shall not have been chosen
before the time fixed for the beginning of his term, or if the President
elect shall have failed to qualify, then the Vice President elect shall act
as President until a President shall have qualified; and the Congress may
by law provide for the case wherein neither a President elect nor a Vice
President elect shall have qualified, declaring who shall then act as
President, or the manner in which one who is to act shall be selected,
and such person shall act accordingly until a President or Vice Presi-
dent shall have qualified.
SECTION 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of Representatives
may choose ‘a President whenever the right of choice shall have de-
volved upon them, and for the case of the death of any of the persons
from whom the Senate may choose a Vice President whenever the
right of choice shall have devolved upon them.
SECTION 5. Sections 1 and 2 shall take effect on the 15th day of
October following the ratification of this article.
 Amendment XXII | 19

SECTION 6. This article shall be inoperative unless it shall have

been ratified as an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the date of
its submission.

AMENDMENT XxXI
|Ratified December 5, 1933.]
SECTION 1. The eighteenth article of amendment to the Constitu-
tion of the United States is hereby repealed.
SECTION 2. The transportation or importation into any State, Ter-
ritory, or possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby prohib-
ited.
SECTION 3. This article shall be. inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in
the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.

AMENDMENT XXII
[Ratified February 27, 1951.|
SECTION 1. No person shall be elected to the office of the Presi-
dent more than twice, and no person who has held the office of Presi-
dent, or acted as President, for more than two years of a term to which
some other person was elected President shall be elected to the office
‘of the President more than once. But this Article shall not apply to any
person holding the office of President when this Article was proposed
by the Congress, and shall not prevent any person who may be holding
the office of President, or acting as President, during the term within
which this Article becomes operative from holding the office of Presi-
dent or acting as President during the remainder of such term.
SECTION 2. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the date of
its submission to the States by the Congress.
20 | THe UNITED StaTES CONSTITUTION AND AMENDMENTS

AMENDMENT XXIII
|Ratified March 29, 1961.]
SECTION 1. The District constituting the seat of Government of the
United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the
whole number of Senators and Representatives in Congress to which
the District would be entitled if it were a State, but in no event more
than the least populous State; they shall be in addition to those ap-
pointed by the States, but they shall be considered, for the purposes of
the election of President and Vice President, to be electors appointed
by a State; and they shall meet in the District and perform such duties
as provided by the twelfth article of amendment.
SECTION 2. The Congress shall have power to enforce this article
by appropriate legislation.

AMENDMENT XXIV
[Ratified January 23, 1964.]
SECTION 1. The right of citizens of the United States to vote in
any primary or other election for President or Vice President, for elec-
tors for President or Vice President, or for Senator or Representatives
in Congress, shall not be denied or abridged by the United States or
any State by reason of failure to pay any poll tax or other tax.
SECTION 2. The Congress shall have power to enforce this article
by appropriate legislation.

AMENDMENT XXV
[Ratified February 10, 1967.]
SECTION 1. In case of the removal of the President from office or
of his death or resignation, the Vice President shall become President.
SECTION: 2. Whenever there is a vacancy in the office of the Vice
President, the President shall nominate a Vice President who shall take of-
fice upon confirmation by a majority vote of both Houses of Congress.
SECTION 3. Whenever the President transmits to the President pro
tempore of the Senate and the Speaker of the House of Representatives
his written declaration that he is unable to discharge the powers and
duties of his office, and until he transmits to them a written declaration
 Amendment XXVII | 21

to the contrary, such powers and duties shall be discharged by the Vice
President as Acting President.

SECTION 4, Whenever the Vice President and a majority of either

the principal officers of the executive departments or of such other
body as Congress may by law provide, transmit to the President pro
tempore of the Senate and the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the
powers and duties of his office, the Vice President shall immediately as-
sume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore
of the Senate and the Speaker of the House of Representatives his written
declaration that no inability exists, he shall resume the powers and duties of
his office unless the Vice’ President and a majority of either the principal
officers of the executive department or of such other body as Congress
may by law provide, transmit within four days to the President pro tem-
pore of the Senate and the Speaker of the House of Representatives their
written declaration that the President is unable to discharge the powers and
duties of his office. Thereupon Congress shall decide the issue, assembling
within forty-eight hours for that purpose if not in session. If the Congress,
within twenty-one days after receipt of the latter written declaration, or, if
Congress is not in session, within twenty-one days after Congress is re-
quired to assemble, determines by two-thirds vote of both Houses that the
President is unable to discharge the powers and duties of his office, the
Vice President shall continue to discharge the same as Acting President;
otherwise, the President shall resume the powers and duties of his office.

AMENDMENT XXVI
[Ratified July 1, 1971.|
SECTION 1. The right of citizens of the United States, who are
eighteen years of age or older, to vote shall not be denied or abridged
by the United States or by any State on account of age.
SECTION 2. The Congress shall have power to enforce this article
by appropriate legislation.

AMENDMENT XXVII
[Ratified May 7, 1992.|
No law varying the compensation for the services of Senators and
Represéntatives shall take effect until an election of Representatives
shall have intervened.
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 THE SUPREME COURT,
JUDICIAL REVIEW, AND
CONSTITUTIONAL
POLITICS

udicial review is one of the greatest and most controversial contribu-

tions of the Constitution to the law and politics of government. Ar-
ticle III of the Constitution simply provides that “[t]he judicial Power
of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and es-
tablish.” Remarkably, that power is not further defined in the Constitu-
tion. But in the course of constitutional politics, judicial review has come
to be the power of the Supreme Court and the federal judiciary to
consider and overturn any congressional and state legislation or other
official governmental action deemed inconsistent with the Constitu-
tion, Bill of Rights, or federal law.
Like other provisions of the Constitution, the three brief sections
in Article HI register compromises forged during the Constitutional
Convention; the Constitution, as the renowned historian and editor of
The Records of the Federal Convention of 1787, Max Farrand, observed, is
“a bundle of compromises.”' The first section of Article III makes clear
that the Supreme Court is the only federal court constitutionally re-
~ quired. The convention left it for the First Congress to establish a sys-
tem of lower federal courts, which it did with the Judiciary Act of
1789. Both the convention and the First Congress rejected proposals
that would have left the administration of justice entirely in the hands
of state courts (with appeals to the Supreme Court). Also rejected was

23
24 | THe SupREME CourT AND CONSTITUTIONAL POLITICS

James Madison’s proposal to join justices and executive branch officials

in a “council of revision” with a veto power over congressional legisla-
tion. Agreement on the importance of guaranteeing judicial indepen-
dence resulted in the first section of Article III also providing that
federal judges “hold their Offices during good Behaviour,” subject only
to impeachment, and forbidding the diminution of their salaries. That
guarantee reflects colonial opposition to royalist judges under the En-
glish Crown. One of the grievances listed in the Declaration of Inde-
pendence as a justification for the Revolutionary War was that King
George III had “made Judges dependent on his Will alone.” The two
remaining sections of Article III specify the kinds of cases and contro-
versies that the federal judiciary may hear (that is, jurisdiction) (see
Ch. 2) and empower Congress to punish individuals for treason.
The Framers, it is fair to say, failed to think through the power of
judicial review and its ramifications for constitutional politics. “[T]he
framers anticipated some sort of judicial review,’ noted political scien-
tist Edward S. Corwin, but he added that “it is equally without ques-
tion that the ideas generally current in 1787 were far from presaging
the present role of the Court.’ In a letter to Corwin, Max Farrand also
concluded that “[t]he framers of the Constitution did not realize it
themselves [how markedly different their conceptions of judicial review
were]: they were struggling to express an idea and their experience was
as yet insufficient.”
The Constitutional Convention left the power of the judiciary
(and much else set forth in the Constitution) to be worked out in prac-
tice. As John Mercer, a delegate to the Constitutional Convention from
Maryland, observed, “It is a great mistake to suppose that the paper we
are to propose will govern the United States. It is the men whom it
will bring into the government and interest in maintaining it that is to
govern them. The paper will only mark out the mode and the form.”
The Constitution, of course, is not self-interpreting and crucial princi-
ples—such as judicial review, separation of powers, and federalism—are
presupposed rather than spelled out. Moreover, in creating separate in-
stitutions that share specific and delegated powers, the Constitution
amounts to a prescription for political struggle and an invitation for an
ongoing debate about enduring constitutional principles.
Almost immediately following the convention in 1787, controversy
erupted over the powers granted the national government and in par-
ticular to the federal judiciary. Those opposed to the states’ ratification
of the Constitution, the Anti-Federalists, warned that “[t]here are no
well defined limits of the Judiciary Powers, they seem to be left as a
boundless ocean.”® Fears that “the powers of the judiciary may be ex-
tended to any degree short of Almighty” were echoed by Thomas
 THE SUPREME COURT AND CONSTITUTIONAL Potitics | 25

Tredwell, among others, during New York’s convention.’ Robert

Yates, one of the most articulate Anti-Federalists writing under the
name of Brutus, attacked both the independence and the power of fed-
eral judges:

There is no authority that can remove them, and they cannot be

controuled [sic] by the laws of the legislature. In short, they are in-
dependent of the people, of the legislature, and of every power un-
der heaven. Men placed in this situation will generally soon feel
themselves independent of heaven itself. . . .
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 controul their adjudiciations. From this
court there is no appeal.*

“This power in the judicial,’ charged Brutus, “will enable them to

mould the government, into almost any shape they please.”
Defenders of the Constitution countered that “the powers given
the Supreme Court are not only safe, but constitute a wise and valuable
part of the system.” In North Carolina’s convention, Governor John-
ston observed that “[i]t is obvious to every one that there ought to be
one Supreme Court for national purposes.’"’ During the fight for New
York’s ratification, Alexander Hamilton provided the classic defense of
the judiciary as “the least dangerous branch.” Responding to Brutus in
The Federalist, No. 78, Hamilton argued,

Whoever attentively considers the different departments of power

must perceive, that in a government in which they are separated
from each other, the judiciary, from the nature of its functions, will
always be the least dangerous to the political rights of the constitu-
tion; because it will be least in a capacity to annoy or injure them.
The executive not only dispenses the honors, but holds the sword
of the community. The legislature not only commands the purse,
but prescribes the rules by which the duties and rights of every cit-
izen are to be regulated. The judiciary on the contrary has no in-
fluence over either the sword or the purse, no direction either of
the strength or of the wealth of the society, and can take no active
resolution whatever. It may truly be said to have neither Force nor
Will, but merely judgment; and must ultimately depend upon the
aid of the executive arm even for the efficacy of its judgments.
If it be said that the legislative body are themselves the constitu-
tional judges of their own powers, and that the construction they
put1pon them is conclusive upon other departments, it may be an-
swered, that this cannot be the natural presumption, where it is not
26 | THe SuprREME CourT AND CONSTITUTIONAL POLITICS

to be collected from any particular provisions in the constitution. It

is not otherwise to be supposed that the constitution could intend
to enable the representatives of the people to substitute their will to
that of their constituents. It is far more rational to suppose that the
courts were designed to be an intermediate body between the peo-
ple and the legislature, in order, among other things, to keep the
latter within the limits assigned to their authority. The interpreta-
tion of the laws is the proper and peculiar province of the courts. A
constitution is in fact, and must be, regarded by the judges as a fun-
damental law. It therefore belongs to them as to ascertain its mean-
ing as well as the meaning of any particular act proceeding from the
legislative body. If there should happen to be an irreconcilable vari-
ance between the two, that which has the superior obligation and
validity ought of course to be preferred; or in other words, the
constitution ought to be preferred to the statute, the intention of
the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power of
the people is superior to both; and that where the will of the legis-
lature declared in its statutes, stands in opposition to that of the
people declared in the constitution, the judges ought to be gov-
erned by the latter, rather than the former. . . .
If then the courts of justice are to be considered as the bulwarks of
a limited constitution against legislative encroachments, this consid-
eration will afford a strong argument for the permanent tenure of
judicial offices, since nothing will contribute so much as this to that
independent spirit in the judges, which must be essential to the
faithful performance of so arduous a duty.

The Federalists’ interpretation of Article III was advanced by

others in the effort to win ratification. In Pennsylvania’s convention,
James Wilson, who was one of the first justices appointed by President
George Washington, argued that

under this Constitution, the legislature may be restrained, and kept

within its prescribed bounds, by the interposition of the judicial
department. . . . [T]he power of the Constitution [is] paramount to
the power of the legislature acting under that Constitution; for it is
possible that the legislature, when acting in that capacity, may trans-
gress the bounds assigned to it, and an act may pass, in the usual
mode, notwithstanding that transgression; but when it comes to be
discussed before the judges,—when they consider its principles, and
find it to be incompatible with the superior power of the Constitu-
tion,—1t is their duty to pronounce it void."

In Connecticut, Oliver Ellsworth, another who was later appointed to

the Court, declared, “If the general legislature should at any time over-
leap their limits, the judicial department is a constitutional check.’””
 A | Establishing and Contesting the Power ofJudicial Review | 27

Even among the Federalists, however, there were differing views of

the judiciary’s power. Alexander Hamilton and James Madison agreed
that the Court would exercise some checking power over the states.
The Court, in Madison’s words, was “the surest expositor of . . . the
[constitutional] boundaries . . . between the Union and its members.”
But they were in less agreement on whether the Court had the power
to check coequal branches, the Congress and the president. In The Fed-
eralist, Madison called the judiciary an “auxiliary precaution” against
the possible domination of one branch of government over another.
Later, during a debate in the First Congress in 1789, he observed that
“in the ordinary course of Government, . . . the exposition of the laws
and Constitution devolves upon the Judiciary.’ Still, Madison doubted
that the Court's interpretation of the Constitution was superior to that
given by Congress. “Nothing has been offered to invalidate the
[view],” he argued, “that the meaning of the Constitution may as well
be ascertained by the legislative as by the judicial authority’’* The
Court stood as a forum of last resort, Madison explained, but “‘this re-
sort must necessarily be deemed the last in relation to the authorities of
the other departments of the government; not in relation to the rights
of the parties to the constitutional compact, from which the judicial, as
well as the other departments, hold their delegated trusts.”
From the initial debate in the Constitutional Convention in 1787
to those between the Federalists and the Anti-Federalists over state rat-
ification of the Constitution and into the First Congress, the power of
judicial review and the meaning of other key provisions and principles
of the Constitution have remained a continuing source of controversy
in constitutional politics. And the Supreme Court has remained, as Jus-
tice Oliver Wendell Holmes observed, a “storm centre” of political
controversy.

A | Establishing and Contesting

the Power ofJudicial Review

In its first decade, the Supreme Court had little business, frequent
turnover in personnel, no chambers or staff, no fixed customs, and no
~ institutional identity. When the Court initially convened on Febru-
ary 1, 1790, only Chief Justice John Jay and two other justices arrived
at the Exchange Building in New York City. They adjourned until
the next day when Justice John Blair arrived; the two other justices
never arrived. With little to do other than admit attorneys to practice
28 | Tue SuprEME CourT AND CONSTITUTIONAL POLITICS

=» How To LOCATE DECISIONS

OF THE SUPREME COURT

[The decisions of the Supreme Court are published in the United States Re-
ports by the U.S. Government Printing Office. Each decision is referred to
by the names of the appellant, the person bringing the suit, and the appellee,
the respondent: hence, McCulloch v, Maryland. After the name of the case is
the volume number in which it appears in the United States Reports and the
page number on which the Court’s opinion begins, followed by the year of
the decision. McCulloch v. Maryland, 17 U.S. 316 (1819), thus may be found
in volume 17 of the United States Reports beginning on page 316.
Prior to the publication of the United States Reports in 1875, the Court’s
opinions used to be cited according to the name of the reporter of the
Court, who published the Court’s opinions at his own expense. Decisions
thus would originally be cited as follows:

1789-1800 Dallas (1-4 Dall., 1-4 U.S.)

1801-1815 Cranch (1-9 Cr., 5-13 US.)
1816-1827 Wheaton (1-12 Wheat, 14-25 US.)
1828-1842 _ Peters (1-16 Pet., 26-41 US.)
1843-1860 Howard (1-24 How., 42-65 U.S.)
1861-1862 Black (1-2 Bl., 66-67 U.S.)
1863-1874 Wallace (1-23 Wall., 68-90 U.S.)
1875- (91- , US.)

The full citation for McCulloch v. Maryland is 4 Wheat. (17 U.S.) 316 (1819).
But with volume 91 in 1875, the reporters’ names were dropped, and deci-
sions were then cited only by the volume number and the designation “U.S.”
In addition, two companies print editions of the Court’s decisions.
There is the Lawyers’ Edition, published by the Lawyer’s Cooperative, and
The Supreme Court Reports, published by West Publishing Company. The
Lawyers’ Edition is cited as L.Ed. (e.g., 91 L.Ed. 575), and The Supreme Court
Reporter is cited as S.Ct. (e.g., 104 S.Ct. 3005).
See also Researching Legal Materials.

before its bar, the Court concluded its first sessions in less than two
weeks.
When the capital moved from New York City to Philadelphia in
the winter of 1790, the Court met in Independence Hall and in the
Old City Hall, until the capital again moved to Washington, D.C., in
1800. Most of the first justices’ time was spent riding circuit. That is,
each would travel throughout a particular area, or circuit, in the coun-
 A | Establishing and Contesting the Power ofJudicial Review | 29

try. Under the Judiciary Act of 1789, they were required twice a year
to hold court, in the company of local district judges, in a circuit to
hear appeals from the federal district courts. Hence, the justices resided
primarily in their circuits, rather than in Washington, and felt a greater
allegiance to their circuits than to the Court.
The Court’s uncertain status was reflected in the first justices’ exer-
cise of their power of judicial review. Although in its initial years the
Court had few important cases, Chisholm v. Georgia, 2 Dall. (2 U.S.) 419
(1793) precipitated the country’s first constitutional crisis. In that case,
Justice James Wilson, who had been a delegate to the Constitutional
Convention and Pennsylvania’s ratifying convention, ruled that citizens
of one state could sue another state in federal courts. That provoked an
angry dissent from Justice James Iredell, a southerner who had attended
North Carolina’s ratifying convention and a strong proponent of “states’
rights.” His dissent invited the adoption by Congress of the Eleventh
Amendment in 1795, overturning Chisholm and guaranteeing state im-
munity from lawsuits brought by citizens of other states. The outcry
over Chisholm convinced Chief Justice John Jay that the Court would
remain “the least dangerous branch.” He resigned in 1795 to become
New York’s governor and later declined reappointment as chief justice.
The Court, though, in Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796),
upheld the provisions of a federal treaty, the 1783 peace treaty with
England, over state law. And Hylton v. United States, 3 Dall. (3 U.S.) 171
(1796), affirmed, over objections raised by the states, Congress’s power
to levy a carriage tax (and thus implicitly asserted the Court’s power to
nullify acts of Congress).
Still, two years later, Calder v. Bull, 3 Dall. (3 US.) 386 (1798), il-
lustrates how uncertain and divided the justices were about exercising
their power of judicial review. There the Court declined to assert its
power when ruling that conflicts between state laws and state constitu-
tions are matters for state, not federal, courts to resolve. But Justice
Iredell maintained that a state law might run against principles of “nat-
ural justice” and the Court still have no power to strike it down. By
contrast, Justice Samuel Chase contended that the Court had the
power to overturn laws that violate fundamental principles, explaining,

I cannot subscribe to the omnipotence of a State legislature, or that

it is absolute and without controul; although its authority should
not be expressly restrained by the Constitution, or fundamental
laws of the State. The people of the United States erected their
Constitution . . . to establish justice, to promote the general wel-
fare, to secure the blessings of liberty;and to protect their persons
and Property from violence. . . . There are acts which the Federal,
or State, Legislature cannot do. . . . It is against all reason and jus-
 30 | THE SUPREME COURT AND CONSTITUTIONAL POLITICS

tice to entrust a Legislature with sucH [despotic] powers; and

therefore, it cannot be presumed that they have done it. The ge-
nius, the nature, and the spirit of our State Governments, amount
to a prohibition of such [unlimited] acts of legislation; and the gen-
eral principles of law and reason forbid them.

Justice Chase was not alone in claiming that the judiciary had
the power of judicial review. As an ardent Federalist, James Kent
(1763-1847) staunchly defended the power of judicial review in his In-
troductory Law Lecture at Columbia University in 1794 (excerpted
below). Like Alexander Hamilton, James Wilson, and other Federalists,
Kent justified judicial review in terms of fundamental principles of
constitutional government. But, unlike Hamilton’s arguments in The
Federalist, No. 78, Kent stressed the uniquely American basis for the
doctrine of judicial review.
The uncertainty and controversy over the power of judicial review
was, nevertheless, further underscored in 1798 with the passage of the
Virginia and Kentucky Resolutions (excerpted below), in response to
Congress’s enactment of the Alien and Sedition Acts. Drafted by James
Madison and Thomas Jefferson, the Virginia and Kentucky Resolu-
tions not only contended that Congress had violated the First Amend-
ment but claimed that state legislatures had the power to judge the
constitutionality of federal laws. Jefferson went so far as to assert that
states could nullify federal laws that they deemed unconstitutional. The
“sovereign and independent” states, in his words, “have the unques-
tionable right to judge . . . and, that a nullification [by] those sover-
eignties, of all unauthorized acts done under the color of that
instrument is the rightful remdy.”
Jefferson remained opposed to the power of judicial review and the
- view that the Supreme Court’s interpretation of the Constitution was
binding on the other branches of government. In a 1819 letter to
Spencer Roane, a Virginia state judge, Jefferson explained his depart-
mental theory of constitutional interpretation:

My construction of the Constitution is . . . that each department is

truly independent of the others, and has an equal right to decide
for itself what is the meaning of the Constitution in the cases sub-
mitted to its action most especially where it is to act ultimately and
without appeal. . . . Each of the three departments has equally the
right to decide for itself what is its duty under the Constitution,
without any regard to what the others may have decided for them-
selves under a similar question."

Although less strident than Jefferson, Madison thought that the “true
and safe construction” of the Constitution would emerge with the
 A | Establishing and Contesting the Power ofJudicial Review | 31

“uniform sanction of successive legislative bodies; through a period of

years and under the varied ascendency of parties.”
Chief Justice John Marshall provided the classic justification for the
power of judicial review in the landmark ruling in Marbury v. Madison
(1803) (excerpted below; see also ““The How, Why, and What to Briefing
and Citing Court Cases” at the end of the book). Notice that Marshall’s
arguments draw on both general principles and the text of the Constitu-
tion and are not unassailable. In an otherwise unimportant state case,
Eakin v. Raub (Pa., 1825) (excerpted below), for example, Pennsylvania
Supreme Court Justice John Gibson expressly refutes Marshall’s argu-
ments. It does not inexorably follow from Marshall’s claim that the Con-
stitution created a limited government that only the judiciary should
enforce those limitations. No more persuasive is the argument that Judges
have the power to authoritatively interpret the Constitution based on
their taking an oath to uphold the document, because all federal and state
officers take an oath to support the Constitution. Like Madison and Jef-
ferson, Justice Gibson rejects Marbury’s implication that the judiciary has a
monopoly (or supremacy) over interpreting the Constitution or, as Chief
Justice Charles Evans Hughes later put it, ““We are under a Constitution
but the Constitution is what the judges say it is.”"* In providing a rationale
for judicial self-restraint, Gibson embraces a departmental theory of con-
stitutional interpretation—namely, that each branch has the authority to
interpret the Constitution.
Chief Justice Marshall’s arguments based on the text of the Consti-
tution fare better. In specifying that the “judicial Power shall extend
to” cases and controversies “arising under this Constitution,’ Article III
implies that constitutional questions may be decided by the judiciary.
And, as Marshall points out, the Supremacy Clause of Article VI makes
it clear that the Constitution is “the supreme Law of the Land.” Judicial
review is thus a logical implication of the Constitution, for as Justice
Joseph Story observed,

The laws and treaties, and even the constitution, of the United
States, would become a dead letter without it. Indeed, in a com-
plicated government, like ours, where there is an assemblage of
republics, combined under a common head, the necessity of
some controlling judicial power, to ascertain and enforce the pow-
ers of the Union is, if possible, still more striking. The laws of
the whole would otherwise be in continual danger of being
contravened by the laws of the parts. The national government
would be reduced to a servile dependence upon the states; and
the same scenes would be again acted over in solemn mockery,
whic’ began in the neglect, and ended in the ruin, of the con-
federation."”
32 | THe SupREME Court AND CONSTITUTIONAL POLITICS

Still and undeniably, the power of judicial review is not expressly

provided for in the Constitution and its exercise remains a continuing
source of controversy.
The immediate political controversy over the exercise of judicial
review in Marbury in striking down a section of the Judiciary Act
of 1789 was defused by Chief Justice Marshall’s conclusion that the
Court had no power to order the delivery of Marbury’s commis-
sion. Though outraged by Marshall’s assertion of judicial review,
Madison and Jefferson had not been compelled by the Court to do
anything. Jefferson continued to maintain that each branch of govern-
ment could interpret the Constitution and to deny that the Court's
interpretations were binding on the president’s exercise of executive
powers. In a letter to Mrs. John Adams in 1804, explaining his decision
to pardon those tried and convicted under the Sedition Act of 1798,
Jefferson wrote,

The Judges, believing the law constitutional, had a right to pass a _

sentence of fine and imprisonment; because that power was placed
in their hands by the Constitution. But the Executive, believing the
law to be unconstitutional, was bound to remit the execution of it;
because that power has been confided to him by the Constitution.
The instrument meant that its co-ordinate branches should be
checks on each other. But the opinion which gives to the Judges
the right to decide what Laws are constitutional, and what not, not
only for themselves in their own sphere of action, but for the Leg-
islative and Executive also in their spheres, would make the Judi-
‘ciary a despotic branch.”

Jefferson was not the last president to contest the authority of the
Court. An irate President Andrew Jackson, on hearing of the decision
in Worcester v. Georgia, 31 U.S. 515 (1832), holding that states could not
pass laws affecting federally recognized Indian nations, reportedly de-
clared, “John Marshall has made his decision, now let him enforce it.2921
Jackson elaborated his view in his Veto Message of 1832, explaining his
vetoing of legislation rechartering the national bank (see Ch. 6). Be-
sides contending that McCulloch v. Maryland, 17 U.S. 316 (1819) (see
Ch. 6) was not binding on his actions, Jackson reiterated the position
that

[t]he Congress, the Executive, and the Court must each for itself be
guided by its own opinion of the Constitution. Each public officer
who takes an oath to support the Constitution swears that he will
support it as he understands it, and not as it is understood by oth-
ers. . . . The opinion of the judges has no more authority over
Congress than the opinion of Congress has over the judges, and on
that point the President is independent of both.”
 A | Establishing and Contesting the Power ofJudicial Review | 33

Jackson’s Veto Message drew an impassioned response from Senator

Daniel Webster, who thundered in the halls of Congress that

[t]he President is as much bound by the law as any private citizen.

. . . He may refuse to obey the law, and so may a private citizen;
but both do it at their own peril, and neither of them can settle the
question of its validity. The President may say a law is unconstitu-
tional, but he is not the judge. . . . Ifitwere otherwise, there would
be no government of laws; but we should all live under the govern-
ment, the rule, the caprices of individuals. . . .
[President Jackson’s] message . ., converts a constitutional limitation
of power into mere matters of opinion, and then strikes the judicial
department, as an efficient department, out of our system. .. .

[The message] denies first principles. It contradicts truths hereto-

fore received as indisputable. It denies to the judiciary the interpre-
tation of law.

Controversy over judicial review continues, but it bears emphasiz-

ing that Jefferson, Jackson, and subsequent presidents concede that the
Court’s rulings are binding for the actual cases decided and handed
down. Technically, a decision of the Court is final only for the parties
involved in the case. Yet, because the justices in their opinions give gen-
eral principles for deciding a case and because they generally adhere to
precedents (or tend to do so until the composition of the bench
markedly changes), the Court’s rulings are usually considered control-
ling for other similar cases and the larger political controversy they rep-
resent. But in major confrontations in constitutional politics—like those
over the creation of a national bank, slavery, school desegregation, and
abortion—the Court alone cannot lay those controversies to rest.
What presidents, Congress, the states, and others occasionally deny
is judicial supremacy or the finality of the Court’s interpretation of broad
constitutional principles for resolving major political controversies. In
his famous debates with Stephen Douglas, for instance, Abraham Lin-
coln denounced the Court’s ruling in Dred Scott v. Sandford, 60 U.S. 393
(1857) (see Vol. 2, Ch. 12), that blacks were not citizens of the United
States. While Lincoln doubted that “we, as a mob, will decide [Dred
Scott] to be free,’ he exclaimed that

we nevertheless do oppose that decision as a political rule which

shall be binding on the voter, to vote for nobody who thinks it
wrong, which shall be binding on the members of Congress or the
President to favor no measure that does not actually concur with
the principles of that decision. . . . We propose so resisting it as to
have ‘t reversed if we can, and a new judicial rule established upon
this subject.”
34 | THe Supreme Court AND CONSTITUTIONAL POLITICS

Later, in his first Inaugural Address in 1861, Lincoln elaborated,

I do not forget the position assumed by some, that constitutional

questions are to be decided by the Supreme Court; nor do I deny
that such decisions must be binding in any case, upon the parties to
a suit, as to the object of that suit, while they are also entitled to a
very high respect and consideration, in all parallel cases, by all other
departments of government. And while it is obviously possible that
such a decision may be erroneous in any given case, still the evil ef-
fect following it, being limited to that particular case, with the
chance that it may be over-ruled, and never become a precedent
for other cases, can better be borne than could the evils of a differ-
ent practice. At the same time the candid citizen must confess that
if the policy of the government, upon vital questions, affecting the
whole people, is to be irrevocably fixed by the decisions of the
Supreme Court, the instant they are made, in ordinary litigation
between parties, in personal actions, the people will have ceased, to
be their own rulers, having to that extent, practically resigned their
government, into the hands of that eminent tribunal. Nor is there,
in this view, any assault upon the court, or the judges. It is a duty,
from which they may not shrink, to decide cases properly brought
before them; and it is no fault of theirs, if others seek to turn their
decisions to political purposes.

In major confrontations with the Court, other presidents have

taken similar positions to that of President Lincoln. During the consti-
tutional crisis of 1937, resulting from the Court’s invalidation of much
of the early New Deal progressive economic legislation, President
Franklin D. Roosevelt proposed that Congress expand the size of the
Court from nine to fifteen justices, and thereby enable him to secure a
majority sympathetic to his programs and policies. And in a “Fireside
Chat” in March 1937 (see excerpt below), FDR followed in the foot-
steps of Jefferson, Jackson, and Lincoln in attacking the Court for be-
coming a “super-legislature.”
Judicial supremacy over interpreting the Constitution remains
controversial. In Marbury, however, Chief Justice Marshall did not lay
claim to judicial supremacy, only that the Court, no less than the pres-
ident and Congress, has the authority and duty to interpret the Consti-
tution.” By contrast, in this century justices have often asserted the
supremacy of their decisions. In United States v. Butler, 297 US. 1
(1936), Justice (and later Chief Justice) Harlan Stone claimed that
“[w]hile unconstitutional exercise of power by the executive and leg-
islative branches of government is subject to judicial restraint, the only
check upon our own exercise of power is our own sense of self-
restraint.” In the wake of massive resistance to the Court’s watershed
ruling on school desegregation, in Brown v. Board of Education, 347 U.S.
 A | Establishing and Contesting the Power ofJudicial Review | 35

483 (1954) (see Vol. 2, Ch. 12), all nine justices took the unusual step
of signing the opinion announcing Cooper v. Aaron, 358 USS. 1 (1958)
(see Vol. 2, Ch. 12), which ordered the desegregation of schools in Lit-
tle Rock, Arkansas. And they interpreted Marbury to have

declared the basic principle that the federal judiciary is supreme in

the exposition of the law of the Constitution. . . . It follows that
the interpretation of the Fourteenth Amendment enunciated by
this Court in the Brown case is the supreme law of the land, and Ar-
ticle VI of the Constitution makes it have binding effect on the
States. . . . Every state legislator and executive and judicial officer is
solemnly committed by oath taken pursuant to Article VI, 3 “to
support this Constitution.”

The Court likewise proclaimed itself the “ultimate interpreter of the

Constitution” in Baker v. Carr, 369 U.S. 186 (1962) (excerpted in
Ch. 2), when holding that courts could decide disputes over the mal-
apportionment of state legislatures. And again citing Marbury in Powell
v. McCormack, 395 U.S. 486 (1969) (see Vol. 1, Ch. 5), involving a
controversy over the House of Representatives’ exclusion of a duly
elected representative, the Court declared that “it is the responsibility
of this Court to act as the ultimate interpreter of the Constitution.”
The Rehnquist Court underscored its authority, in City of Boerne v,
Flores, 521 U.S. 507 (1997) (excerpted in Ch. 6of Vols. 1 and 2), when
reasserting that Congress’s power under the Fourteenth Amendment is
only remedial, not definitive, and thus only the Court, and not Con-
gress, has the power to define constitutional rights.
Despite the Court’s occasional claims of judicial supremacy, the
president, Congress, and the states may in various ways undercut and
thwart compliance with, if not ultimately overturn, the Court’s rulings
(see Vol. 1, Ch. 2). By deciding only immediate cases, the Court infuses
constitutional meaning into the larger surrounding political contro-
versies by bringing them within the language, structure, and spirit of the
Constitution. The Court may thus raise a controversial issue, as it did
with school desegregation in Brown and with the right to abortion in
Roe, to the national political agenda. But by itself the Court cannot lay
those controversies to rest because its power, in Chief Justice Edward
White’s words, rests “solely upon the approval of a free people.’® In ar-
eas of major and continuing political controversy, constitutional law is a
‘kind of dialogue between the Court and the country over the meaning
of the Constitution, and judicial review is more provisional than final.”
Even more than Chief Justice Marshall’s arguments in Marbury, the
establishment’ of judicial review turned on public acceptance and the
forces of history. That is not to gainsay Marshall’s contributions. He
36 | THe SupREME CourT AND CONSTITUTIONAL POLITICS

= CONSTITUTIONAL HISTORY

Decisions of the Supreme Court Overruled

and Acts of Congress Held Unconstitutional, and
State Laws and Municipal Ordinances Overturned,
1789-2007*

bs
‘ . Q Q nA

aisle mickieeCikiomaltGlee Ga
wl nN a

SC
SEOcome
7 Sig) VF ahaa
Enabling
5 ae 0 0 g2 x >
‘YEAR Piet nee nO OO

1789-1800, Pre-Marshall
1801-1835, Marshall Court 3 1 18
1836-1864, Taney Court 4 1 2M
1865-1873, Chase Court 4 10 33
1874-1888, Waite Court 3) 9 of;
1889-1910, Fuller Court 4 14 We 15
1910-1921, White Court 5 2 107 18
1921-1930, Taft Court 6 12 131 1D
1930-1940, Hughes Court 21 14 78 5
1941-1946, Stone Court 15 2; 2S 7
1947-1952, Vinson Court 13 1 — 38 7
1953-1969, Warren Court 45 25 150 16
1969-1986, Burger Court 52 34 192 LS
1986-2005, Rehnquist Court 39 38 OF, 21
2005— , Roberts Court 3 i) 3

*Note that in Immigration and Naturalization Service v. Chadha (1983), the Burger
Court struck down a provision for a “one-house” legislative veto in the Immigration
and Naturalization Act but effectively declared all one- and two-house legislative
vetoes unconstitutional. While 212 statutes containing provisions for legislative ve-
toes were implicated by the Court’s decision, Chadha is here counted as a single dec-
laration of the unconstitutionality of congressional legislation. Note also that the
Court’s ruling in Texas v. Johnson (1989), striking down a Texas law making it a crime
to desecrate the American flag, invalidated laws in forty-eight states and a federal
statute. It is counted here, however, only once. This table includes cases through the
2006-2007 term.
 A | Establishing and Contesting the Power ofJudicial Review | 37

had a keen understanding of the malleable nature of the young repub-

lic and the important role that the first generation would play in estab-
lishing the power of the national government. Marshall’s long tenure
(1801-1835) and that of others who served with him may have con-
tributed as well. After Marbury, moreover, the Court did not again
strike down another act of Congress or challenge a coequal branch of
government until the 1857 ill-fated ruling in Dred Scott, which left the
Court at a low ebb for two decades. Instead, the Marshall Court but-
tressed its own power by defending the interests of the national govern-
ment against the states and striking down state laws.
Finally, social forces have shaped the Court’s role in the kinds of
cases and controversies brought to it for review. As already noted, the
Court had little important business during its first decade. Over 40 per-
cent of its business consisted in-admiralty and prize cases (disputes over
captured property at sea). About 50 percent raised issues of common
law, and the remaining 10 percent dealt with matters like equity, in-
cluding one probate case. By the late nineteenth century, the Court’s
business gradually changed in response to developments in American
society. The number of admiralty cases, for instance, had by 1882
dwindled to less than 4 percent of the total. Almost 40 percent of the
Court’s decisions still dealt with either disputes of common law or
questions of jurisdiction and procedure in federal courts. More than 43
percent of the Court’s business, however, involved interpreting con-
gressional statutes. Less than 4 percent of the cases raised issues of con-
stitutional interpretation. The decline in admiralty and common-law
litigation and the increase in statutory interpretation reflected the im-
pact of the Industrial Revolution and the growing governmental regu-
lation of social and economic relations. In the twentieth century, the
trend continued. About 47 percent of the cases decided annually by the
Court involve matters of constitutional law. Another 38 percent deal
with the interpretation of congressional legislation. The remaining 15
percent involve issues of practice and procedure, administrative law,
taxation, patents, and claims.
The Court is no longer “the least dangerous branch” or primarily
concerned with correcting the errors of lower courts. In response to
growing and changing litigation, the Court more frequently overturns
prior rulings, congressional legislation, and state and local laws. The
Court takes only “hard cases,” involving major issues of legal policy and
- “not primarily to preserve the rights of the litigants,’ in the words of
Chief Justice William Howard Taft: “The Supreme Court’s function is
for the purpose of expounding and stabilizing principles of law for the
benefit of the people of the country, passing upon constitutional ques-
tions and other important questions of law for the public benefit.””
38 | THe Supreme Court AND CONSTITUTIONAL POLITICS

The Court and the country have changed with constitutional poli-
tics. From 1789 to the Civil War, the major controversies confronting
the Court involved disputes between the national government and the
states, and the Court employed its power to preserve the Union (see
Chs. 6 and 7). Between 1865 and 1937, during the Reconstruction and
the Industrial Revolution, the dominant political controversy revolved
around balancing regulatory interests and those of businesses, and the
Court defended the interests of American capitalism and private enter-
prise (see Vol. 2, Ch. 3). Only after 1937 did the Court begin to assume
the role of “a guardian for civil liberties and civil rights” in defending
the rights of minorities (see Vol. 2, Chs. 4-12). The Court’s role has
changed with constitutional politics, as Harvard Law School professor
Paul Freund nicely expressed by analogy, “As Hamlet is to one genera-
tion a play of revenge, to another a conflict between will and con-
science, and to another a study in mother-fixation, so the Constitution
has been to one generation a means of cementing the Union, to another
a protectorate of burgeoning property, and to another a safeguard of ba-
sic human rights and equality before the law: 2928

NOTES

1. See Max Farrand, The Framing of the Constitution (New Haven, CT: Yale Univer-
sity Press, 1913); Max Farrand, ed., The Records of the Federal Convention of 1787,
4 vols. (New Haven, CT: Yale University Press, 1911); and John P. Roche, “The
Founding Fathers: A Reform Caucus in Action,” 55 American Political Science Review
799 (1961).
2. The Supreme Court has enforced the tenure and salary provisions in Ex parte Mil-
ligan, 4 Wall. 2 (1867) (see Ch. 3), holding that civilians cannot be tried before mili-
tary tribunals; in O’Donoghue v. United States, 289 U.S. 516 (1933), holding that
judicial salaries cannot be reduced, even during the Great Depression; and Northern
Pipe Line Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), striking down
a statute expanding the power of bankruptcy judges.
3. Edward S. Corwin, “The Constitution as Instrument and as Symbol,” 30 American
Political Science Review 1078 (1936).
4. Letter from Max Farrand to Edward Corwin, Jan. 3, 1939, in Edward Samuel
Corwin Papers, Box 3, Princeton University Library, Princeton, NJ.
5. Quoted in James Madison, Notes of Debates in the Federal Convention of 1787
(Athens: Ohio University Press, 1966), 455-456.
6. A Columbia Patriot, in The Complete Anti-Federalist, Vol. 4, ed. Herbert J. Storing
(Chicago: University of Chicago Press, 1981), 276.
7. Thomas Tredwell, in The Debates in the Several State Conventions on the Adoption of
the Federal Constitution, Vol. 4, ed., Jonathan Elliot (New York: Burt Franklin, 1974),
401.
8. Brutus, in The Complete Anti-Federalist, Vol. 2, ed. Storing, 438-439, 420, 422.
9. James Wilson, in The Debates, Vol. 2, ed. Elliot, 494.
 A | Establishing and Contesting the Power ofJudicial Review | 39

10. Governor Johnston, in The Debates, Vol. 4, ed. Elliot, 142.

11. James Wilson, in The Debates, Vol. 2, ed. Elliot, 445-446,
12. Oliver Ellsworth, in The Debates, Vol. 2, ed. Elliot, 196.
13. Letter from James Madison to an unidentified person, Aug. 1834, reprinted in
Letters and Other Writings ofJames Madison, Vol. 4 (Philadelphia, 1865), 350.
14. James Madison, in Annals of Congress, Vol. 1 (Washington, DC: Gales
& Seaton,
1789), 500, 546-547.
15. James Madison, “Report on the Virginia Resolutions,” in The Debates, Vol. 5,
ed. Elliot, 549.
16. Thomas Jefferson, The Works of Thomas Jefferson, Vol. 12, ed. Paul Ford (New
York: G. P. Putnam’s Sons, 1904—1905),. 137-138.
17. Quoted in Robert J. Morgan, James Madison on the Constitution and the Bill of Rights
(Westport, CT: Greenwood Press, 1988), 196. For more on Jefterson’s and Madison’s
views, see the discussion of the controversy over Congress’s creating a national bank
and McCulloch v. Maryland, 17 U.S. 316°(1819) (excerpted in Ch. 6).
18. Charles Evans Hughes, Address and Papers of Charles Evans Hughes (New York:
Columbia University Press, 1908), 139.
19. Joseph Story, Commentaries on the Constitution, (Durham, NC: Carolina Aca-
demic Press, 1987), reprint of 1833 ed.
20. Thomas Jefferson, Letter to John Adams, Sept. 11, 1804, as quoted in Charles
Warren, The Supreme Court in United States History, Vol. 1 (Boston: Little, Brown,
1922), 265.
21. Quoted in Edward Corwin, The Doctrine of Judicial Review (Princeton, NJ:
Princeton University Press, 1914), 22.
22. President’s Veto Message (July 10, 1832), A Compilation of the Messages and Papers
of the Presidents, Vol. 2, ed. J. Richardson (New York: Bureau of National Literature,
ODO 2:
23. Abraham Lincoln, The Collected Works ofAbraham Lincoln, Vol. 2, ed. Roy Basler
(New Brunswick, NJ: Rutgers University Press, 1953), 401.
24. See David M. O’Brien, “Judicial Review and Constitutional Politics: Theory
and Practice,’ 48 University of Chicago Law Review 1070 (1981).
25. Quoted in David M. O’Brien, Storm Center: The Supreme Court in American Poli-
tics, 8th ed. (New York: W. W. Norton, 2008), 22.
26. See Paul Diamond, The Supreme Court and Judicial Choice (Ann Arbor: University
of Michigan Press, 1989).
27. William H. Taft, Hearings before the House Committee on the Judiciary, 67th Cong.,
2d sess., 1922, 2.
28. Paul Freund, “My Philosophy of Law,’ 39 Connecticut Bar Journal 220 (1965).

‘SELECTED BIBLIOGRAPHY

Corwin, Edward S. The Doctrine ofJudicial Review. Princeton, NJ: Princeton Univer-
sity Press, 1914.,
Ellis, Joseph. Founding Brothers: The Revolutionary Generation, New York: Knopf, 2000.
40 | THe SupREME Court AND CONSTITUTIONAL POLITICS
Se ee ee
2ee ee See ee eee

Fisher, Louis. Constitutional Dialogues. Princeton, NJ: Princeton University Press,

1988.
Freund, Paul A. The Supreme Court of the United States. Cleveland, OH: World Pub-
lishing, 1961.
Hall, Kermit. The Oxford Companion to the Supreme Court, 2d ed. New York: Oxford
University Press, 2007.
Lasser, William. The Limits ofJudicial Power. Chapel Hill: University of North Car-
olina Press, 1988.
Levy, Leonard, ed. American Constitutional History. New York: Macmillan, 1989.
Nelson, William. Marbury v. Madison: The Origins and Legacy of Judicial Review.
Lawrence: University of Kansas Press, 2000.
Warren, Charles. The Supreme Court in United States History, 3 vols. Boston: Little,
Brown, 1922.

James Kent’s Introductory Law School

Lecture in 1794

James Kent (1763-1847) began a long legal career as a professor at Co-

lumbia University Law School in 1794. He later became a master of
chancery and in 1804 the chief justice of New York’s supreme court.
His Columbia Law Lectures were later expanded into Commentaries on
the American Law (1826-1830), which Justice Joseph Story called “our
first judicial classic.’ Excerpted here is part of his “Introductory Lec-
ture,’ which did not remain intact in his Commentaries but which
uniquely justified judicial review in terms of established principles of
republican government in America.

James KENT: The British Constitution and Code of Laws, to the

knowledge of which our Lawyers are so early and deeply introduced by
the prevailing course of their professional inquiries, abounds, it is true,
with invaluable Principles of Equity, of Policy, and of Social Order;
Principles which cannot be too generally known, studied and received.
It must however be observed at the same time, that many of the funda-
mental doctrines of their Government, and Axioms of their Juris-
prudence, are utterly subversive of an Equality of Rights, and totally
incompatible with the liberal spirit of our American Establishments.
The Student of our Laws should be carefully taught to distinguish be-
tween the Principles of the one Government, and the Genius which
presides in the other. He ought to have a correct acquaintance with
genuine Republican Maxims, and be thereby induced to cultivate a su-
 A | Establishing and Contesting the Power ofJudicial Review | 41

perior regard for our own, and I trust more perfect systems of Liberty
and Justice. . .
The doctrine I have suggested, is peculiar to the United States, In
the European World, no idea has ever been entertained (or at least un-
til lately) of placing constitutional limits to the exercise of the Legisla-
tive Power. In England, where the Constitution has separated and
designated the Departments of Government with precision and notori-
ety, the Parliament is still considered as transcendently absolute; and al-
tho some Judges have had the freedom to observe, that a Statute made
against natural equity was void, yet it is generally laid down as a neces-
sary principle in their Law, that no Act of Parliament can be questioned
or disputed. But in this country we have found it expedient to establish
certain rights, to be deemed paramount to the power of the ordinary
Legislature, and this precaution-is considered in general as essential to
perfect security, and to guard against the occasional violence and mo-
mentary triumphs of party. Without some express provisions of this
kind clearly settled in the original compact, and constantly protected
by the firmness and moderation of the Judicial department, the equal
rights of a minor faction, would perhaps very often be disregarded in
the animated competitions for power, and fall a sacrifice to the passions
of a fierce and vindictive majority.
No question can be made with us, but that the Acts of the Legisla-
tive body, contrary to the true intent and meaning of the Constitution,
ought to be absolutely null and void. The only inquiry which can arise
on the subject is, whether the Legislature is not of itself the competent
Judge of its own constitutional limits, and its acts of course to be pre-
sumed always conformable to the commission under which it proceeds;
or whether the business of determining in this instance, is not rather
the fit and exclusive province of the Courts of Justice. It is easy to see,
that if the Legislature was left the ultimate Judge of the nature and ex-
tent of the barriers which have been placed against the abuses of its dis-
cretion, the efficacy of the check would be totally lost. The Legislature
would be inclined to narrow or explain away the Constitution, from
the force of the same propensities or considerations of temporary expe-
diency, which would lead it to overturn private rights. Its will would
be the supreme law, as much with, as without these constitutional safe-
guards. Nor is it probable, that the force of public opinion, the only re-
straint that could in that case exist, would be felt, or if felt, would be
- greatly regarded. If public opinion was in every case to be presumed
correct and competent to be trusted, it 1s evident, there would have
been no need of original and fundamental limitations. But sad experi-
ence has sufficiently taught mankind, that opinion is not an infallible
standard of safety. When powerful rivalries prevail in the Community,
42 | THe SupREME CourT AND CONSTITUTIONAL POLITICS

and Parties become highly disciplined and hostile, every measure of the
major part of the Legislature is sure to receive the sanction of that Party
among their Constituents to which they belong. Every Step of the mi-
nor Party, it is equally certain will be approved by their immediate ad-
herents, as well as indiscriminately misrepresented or condemned by
the prevailing voice. The Courts of Justice which are organized with
peculiar advantages to exempt them from the baneful influence of Fac-
tion, and to secure at the same time, a steady, firm and impartial inter-
pretation of the Law, are therefore the most proper power in the
Government to keep the Legislature within the limits of its duty, and to
maintain the Authority of the Constitution... .
This power in the Judicial, of determining the constitutionality of
Laws, is necessary to preserve the equilibrium of the government, and
prevent usurpations of one part upon another; and of all the parts of
government, the Legislative body is by far the most impetuous and
powerful. A mere designation on paper, of the limits of the several de-
partments, is altogether insufficient, and for this reason in limited Con-
stitutions, the executive is armed with a negative, either qualified or
complete upon the making of Laws. But the Judicial Power is the
weakest of all, and as it is equally necessary to be preserved entire, it
ought not in sound theory to be left naked without any constitutional
means of defence. This is one reason why the Judges in this State are
associated with the Governor, to form the Council of Revision, and
this association renders some of these observations less applicable to our
own particular Constitution, than to any other. The right of expound-
ing the Constitution as well as Laws, will however be found in general
to be the most fit, if not only effectual weapon, by which the Courts of
Justice are enabled to repel assaults, and to guard against encroachments
on their Chartered Authorities.
Nor can any danger be apprehended, lest this principle should ex-
alt the Judicial above the Legislature. They are co-ordinate powers, and
equally bound by the instrument under which they act, and if the for-
mer should at any time be prevailed upon to substitute arbitrary will, to
the exercise of a rational Judgment, as it is possible it may do even in
the ordinary course of judicial proceeding, it is not left like the latter,
to the mere controul of public opinion. The Judges may be brought
before the tribunal of the Legislature, and tried, condemned, and re-
moved from office.
I consider then the Courts of Justice, as the proper and intended
Guardians of our limited Constitutions, against the factions and en-
croachments of the Legislative Body. . . .
 A | Establishing and Contesting the Power ofJudicial Review | 43

The Virginia and Kentucky

Resolutions of 1798
In the spring of 1798, President John Adams and his Federalist-
dominated Congress enacted the Alien and Sedition Acts, regulating
immigration and making criticism of the government a crime of sedi-
tious libel. The laws aimed at silencing partisan criticism of the Adams
administration’s pro-British policies by Jeffersonian-Republicans. Al-
though Jeffersonian-Republicans were prosecuted under the laws, of-
ten receiving stiff penalties, no court ruled on the constitutionality of
the laws or whether they: violated the First Amendment’s guarantee for
freedom of speech and press. The Kentucky legislature adopted a reso-
lution secretly written by Thomas Jefferson, and Virginia adopted a
similar resolution drafted: by James Madison. Prosecutions for seditious
libel ended in 1801, when the laws expired and Jefferson became pres-
ident. Over 160 years later, the Supreme Court in a landmark ruling
on libel, in the New York Times Company v. Sullivan, 376 U.S. 254 (1964)
(see Vol. 2, Ch. 5), declared the Sedition Act and seditious libel un-
constitutional and inconsistent with the First Amendment.

VIRGINIA RESOLUTIONS, DECEMBER 21, 1798

1. Resolved, That the General Assembly of Virginia doth unequivocally

express a firm resolution to maintain and defend the Constitution of the
United States, and the Constitution of this State, against every aggression,
either foreign or domestic, and that it will support the government of the
United States in all measures warranted by the former. .. .
3. That this Assembly doth explicitly and peremptorily declare that it
views the powers of the Federal Government as resulting from the compact
to which the States are parties, as limited by the plain sense and intention of
the instrument constituting that compact; as no further valid than they are
authorized by the grants enumerated in that compact; and that in case of a
deliberate, palpable, and dangerous exercise of other powers not granted by
the said compact, the States, who are the parties thereto, have the right, and
are in duty bound, to interpose for arresting the progress of the evil, and for
maintaining within their respective limits, the authorities, rights, and liber-
ties appertaining to them.
4. That the General Assembly doth also express its deep regret that a
spirit has in sundry instances been manifested by the Federal Government, to
enlarge its powers by forced constructions of the constitutional charter
which defines them; and that indications have appeared of a design to ex-
pound certain general phrases (which, having been copied from the very
limited grant of powers in the former articles of confederation, were the less
liable to be misconstrued), so as to destroy the meaning and effect of the par-
ticular enumeration, which necessarily explains and limits the general
44 | Tue SUPREME COURT AND CONSTITUTIONAL POLITICS

phrases, and so as to consolidate the States by degrees into one sovereignty,

the obvious tendency and inevitable result of which would be to transform
the present republican system of the United States into an absolute, or at
best, a mixed monarchy.
5. That the General Assembly doth particularly protest against the pal-
pable and alarming infractions of the Constitution, in the two late cases of
the “alien and sedition acts,” passed at the last session of Congress, the first of
which exercises a power nowhere delegated to the Federal Government; and
which by uniting legislative and judicial powers to those of executive, sub-
verts the general principles of free government, as well as the particular or-
ganization and positive provisions of the federal Constitution; and the other
of which acts exercises in like manner a power not delegated by the Consti-
tution, but on the contrary expressly and positively forbidden by one of the
amendments thereto; a power which more than any other ought to produce
universal alarm, because it is levelled against that right of freely examining
public characters and measures, and of free communication among the peo-
ple thereon, which has ever been justly deemed the only effectual guardian
of every other right.
6. That this State having by its convention which ratified the federal
Constitution, expressly declared, “that among other essential rights, the lib-
erty of conscience and of the press cannot be cancelled, abridged, restrained,
or modified by any authority of the United States,’ and from its extreme
anxiety to guard these rights from every possible attack of sophistry or ambi-
tion, having with other States recommended an amendment for that pur-
pose, which amendment was in due time annexed to the Constitution, it
would mark a reproachful inconsistency and criminal degeneracy, if an indif-
ference were now shown to the most palpable violation of one of the rights
thus declared and secured, and to the establishment of a precedent which
may be fatal to the other.

KENTUCKY RESOLUTIONS, NOVEMBER 10, 1798

1. Resolved, That the several states composing the United States of

America, are not united on the principle of unlimited submission to their
general government; but that by compact, under the style and title of a Con-
stitution for the United States, and of amendments thereto, they constituted
a general government for special purposes, delegated to that government
certain definite powers, reserving, each state to itself, the residuary mass of
right to their own self-government; and that whensoever the general
government assumes undelegated powers, its acts are unauthoritative, void,
and of no force: That to this compact each state acceded as a state, and is an
integral party, its co-states forming as to itself, the other party: That the
government created by this compact was not made the exclusive or final
judge of the extent of the powers delegated to itself; since that would have
made its discretion, and not the Constitution, the measure of its powers; but
that, as in all other cases of compact among parties having no common
Judge, each party has an equal right to judge for itself, as well of infractions,
as of the mode and measure of redress.
2. Resolved, That the Constitution of the United States having delegated
to Congress a power to punish treason, counterfeiting the securities and cur-
rent coin of the United States, piracies and felonies committed on the high
 A | Establishing and Contesting the Power ofJudicial Review | 45

seas, and offences against the laws of nations, and no other crimes whatever,
_ all other [of] their acts which assume to create, define, or punish crimes
other than those enumerated in the Constitution, are altogether void, and of
no force, and that the power to create, define, and punish such other crimes
is reserved, and of right appertains, solely and exclusively, to the respective
states, each within its own territory.
3. Resolved, That it is true as a general principle, and is also expressly de-
clared by one of the amendments to the Constitution, that “the powers not
delegated to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the people”; and that
no power over the freedom of religion, freedom of speech, or freedom of
the press, being delegated to the United States by the Constitution, nor pro-
hibited by it to the states, all lawful powers respecting the same did of right
remain, and were reserved to the states, or to the people; that thus was
manifested their determination to retain to themselves the right of judging
how far the licentiousness of speech and of the press may be abridged with-
out lessening their useful freedom, and how far those abuses which cannot
be separated from their use, should be tolerated rather than the use be de-
stroyed; and thus also they guarded against all abridgment by the United
States of the freedom of religious opinions and exercises, and retained. to
themselves the right of protecting the same, as this state by a law passed on
the general demand of its citizens, had already protected them from all hu-
man restraint or interference: and that in addition to this general principle
and express declaration, another and more special provision has been made
by one of the amendments to the Constitution, which expressly declares,
that “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom of speech, or
of the press,’ thereby guarding in the same sentence, and under the same
words, the freedom of religion, of speech, and of the press, insomuch, that
whatever violates either, throws down the sanctuary which covers the oth-
ers, and that libels, falsehoods, and defamations, equally with heresy and false
religion, are withheld from the cognizance of federal tribunals: that therefore
the act of the Congress of the United States, passed on the 14th dayofJuly,
1798, entitled, “‘an act in addition to the act for the punishment of certain
crimes against the United States,’ which does abridge the freedom of the
press, is not law, but is altogether void and of no effect. . . .

Marbury v. Madison
T CRAs WS) 137 (1803)

- This case grew out of one of the great early struggles over the course of
constitutional politics. Shortly after the ratification of the Constitution,
two rival political parties emerged with widely different views of the
Constitution: and governmental power. The Federalists supported a
strong national government, including the power of the federal courts to
46 | THe SupREME CourT AND CONSTITUTIONAL POLITICS

interpret the Constitution. Their opponents, the Anti-Federalists and

later the Jeffersonian-Republicans (who after the 1832 election became
known as Democrats), remained distrustful of the national government
and continued to favor the states and state courts. The struggle between
the Federalists and the Jeffersonian-Republicans finally came to a head
with the election of 1800. The Jeffersonians defeated the Federalists,
who had held office since the creation of the republic and feared what
the Jeffersonian-Republicans might do once in office.
Before leaving office, President John Adams and his Federalist-
dominated Congress vindictively created a number of new judgeships
and appointed all Federalists in the hope that they would counter the
Jeffersonians once in office. But with time running out before the in-
auguration of Thomas Jefferson as president in 1801, not all of the
commissions for the new judgeships were delivered. John Marshall,
whom Adams had just appointed as chief justice, continued to work as
secretary of state, delivering the commissions. But he failed to deliver
seventeen commissions before Adams’s term expired and left them
for his successor as secretary of state, James Madison, to deliver. The
Federalists’ attempt to pack the courts infuriated the Jeffersonian-
Republicans. And President Jefferson instructed Madison not to deliver
the rest of the commissions.
William Marbury was one whose commission went undelivered.
He decided to sue to force Madison to give him his commission.
Specifically, he sought a writ of mandamus, which is simply a court order
directing a government official (Madison) to perform a certain act
(hand over the commission). Marbury argued that Section 13 of the Ju-
diciary Act of 1789 had authorized the Supreme Court to issue such
writs. He saw this as a way of getting back his commission and for the
Marshall Court to take a stand against the Jeffersonians.
Marbury v. Madison was a politically explosive case for the Court
and the country over the still-untested power of judicial review. The
Court faced a major dilemma. On the one hand, if the Marshall Court
ordered Marbury’s commission, it was likely that Jefferson would refuse
to comply. The Court would then be powerless, perhaps permanently.
On the other hand, if the Court refused to issue the writ, it would ap-
pear weak and that would confirm the Jeffersonian argument that the
courts had no power to intrude on the executive branch. Chief Justice
Marshall’s opinion, handed down on February 24, 1803, however,
shrewdly asserted the power of judicial review and for the first time
overturned part of an act of Congress but gave Jefferson no oppor-
tunity to retaliate and thus helped to defuse the political controversy
surrounding the case. While Jeffersonians fervently disagreed with
 A | Establishing and Contesting the Power ofJudicial Review | 47

Marshall’s ruling, there was little for them to do because Marshall had
not ordered the delivery of Marbury’s commission.
The Court’s decision was unanimous.

Chief Justice MARSHALL delivers the opinion of the Court.

At the last term on the affidavits then read and filed with the clerk, a
rule was granted in this case, requiring the secretary of state to show cause
why a mandamus should not issue, directing him to deliver to William Mar-
bury his commission as a justice of the peace for the county of Washington,
in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus.
The peculiar delicacy of this case, the novelty of some of its circumstances,
and the real difficulty attending the points which occur in it, require a com-
plete exposition of the principles on which the opinion to be given by the
court is founded. :
These principles have been, on the side of the applicant very ably ar-
gued at the bar. In rendering the opinion of the court, there will be some
departure in form, though not in substance, from the points stated in that ar-
gument.
In the order in which the court has viewed this subject, the following
questions have been considered and decided.
1st. Has the applicant a right to the commission he demands?
2d. If he has a right, and that right has been violated, do the laws of his
country afford him a remedy?
3d. If they do afford him a remedy, is it a mandamus issuing from this
court?
The first object of inquiry is,
1st. Has the applicant a right to the commission he demands?
His right originates in an act of congress passed in February, 1801, con-
cerning the District of Columbia.
After dividing the district into two counties, the 11th section of this law
enacts, “that there shall be appointed in and for each of the said counties,
such number of discreet persons to be justices of the peace as the president
of the United States shall, from time to time, think expedient, to continue in
office for five years.”
It appears, from the affidavits, that in compliance with this law, a com-
mission for William Marbury, as a justice of the peace for the county of
Washington, was signed by John Adams, then President of the United States;
after which the seal of the United States was affixed to it; but the commis-
sion has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it be-
comes necessary to inquire whether he has been appointed to the office. For
if he has been appointed, the law continues him in office for five years, and
he is entitled to the possession of those evidences of office, which, being
completed, became his property.
The 2d section of the 2d article of the constitution declares, that “the
president shall nominate, and, by and with the advice and consent of the
senate, sall appoint, ambassadors, other public ministers and consuls, and all
 48 | THe Supreme Courr AND CONSTITUTIONAL PoLITICs

other officers of the United States, whose appointments are not otherwise
provided for.”
The 3d section declares, that “he shall commission all the officers of the
United States.”
An act of congress directs the secretary of state to keep the seal of the
United States, “to make out and record, and affix the said seal to all civil
commissions to officers of the United States, to be appointed by the presi-
dent, by and with the consent of the senate, or by the president alone; pro-
vided, that the said seal shall not be affixed to any commission before the
same shall have been signed by the President of the United States.”
These are the clauses of the constitution and laws of the United States,
which affect this part of the case. They seem to contemplate three distinct
operations:
1st. The nomination. This is the sole act of the president, and is com-
pletely voluntary.
2d. The appointment. This is also the act of the president, and is also a
voluntary act, though it can only be performed by and with the advice and
consent of the senate.
3d. The commission. To grant a commission to a person appointed,
might, perhaps, be deemed a duty enjoined by the constitution. “He
shall,” says that instrument, “commission all the officers of the United
States. 7.
The last act to be done by the president is the signature of the commis-
sion. He has then acted on the advice and consent of the senate to his own
nomination. The time for deliberation has then passed. He has decided. His
judgment, on the advice and consent of the senate concurring with his
nomination, has been made, and the officer is appointed. . . .
It is . . . decidedly the opinion of the court, that when a commission
has been signed by the president, the appointment is made; and that the
commission is complete when the seal of the United States has been affixed
to it by the secretary of state.
Where an officer is removable at the will of the executive, the circum-
stance which completes his appointment is of no concern; because the act is
at any time revocable; and the commission may be arrested, if still in the of-
fice. But when the officer is not removable at the will of the executive, the
appointment is not revocable, and cannot be annulled. It has conferred legal
rights which cannot be resumed. . . .
Mr. Marbury, then, since his commission was signed by the president,
and sealed by the secretary of state, was appointed; and as the law creating
the office, gave the officer a right to hold for five years, independent of the
executive, the appointment was not revocable, but vested in the officer legal
rights, which are protected by the laws of his country.
To withhold his commission, therefore, is an act deemed by the court
not warranted by law, but violative of a vested legal right.
This brings us to the second inquiry; which is,
2d. If he has a right, and that right has been violated, do the laws of this
country afford him a remedy?
The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an in-
Jury. One of the first duties of government is to afford that protection. In
 A | Establishing and Contesting the Power of Judicial Review | 49

Great Britain the king himself is sued in the respectful form of a petition,
and he never fails to comply with the judgment of his court... .
By the constitution of the United States, the president is invested with
certain important political powers, in the exercise of which he is to use his
own discretion, and is accountable only to his country in his political char-
acter and to his own conscience. To aid him in the performance of these du-
ties, he is authorized to appoint certain officers, who act by his authority,
and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be en-
tertained of the manner in which executive discretion may be used, still
there exists, and can exist, no power to control that discretion. The subjects
are political. They respect the nation, not individual rights, and being in-
trusted to the executive, the decision of the executive is conclusive. .. .
But when the legislature proceeds to impose on that officer other du-
ties; when he is directed :peremptorily to perform certain acts; when the
rights of individuals are dependent.on the performance of those acts; he is so
far the officer of the law; is amenable to the laws for his conduct; and can-
not at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of depart-
ments are the political or confidential agents of the executive, merely to ex-
ecute the will of the president, or rather to act in cases in which the
executive possesses a constitutional or legal discretion, nothing can be more
perfectly clear than that their acts are only politically examinable. But where
a specific duty is assigned by law, and individual rights depend upon the per-
formance of that duty, it seems equally clear that the individual who consid-
ers himself injured, has a right to resort to the laws of his country for a
remedy..
It is, en the opinion of the Court,
1st. That by signing the commission of Mr. Marbury, the President of the
United States appointed him ajustice of peace for the county of Washington,
in the District of Columbia; and that the seal of the United States, affixed
thereto by the secretary of state, is conclusive testimony of the verity of the
signature, and of the completion of the appointment; and that the appoint-
ment conferred on him a legal right to the office for the space of five years.
2d. That, having this legal title to the office, he has a consequent right
to the commission; a refusal to deliver which is a plain violation of that
right, for which the laws of his country afford him a remedy.
It remains to be inquired whether,
3d. He is entitled to the remedy for which he applies. This depends on,
1st. The nature of the writ applied for; and,
2d. The power of this court.
1st. The nature of the writ... .
[T]o render the mandamus a proper remedy, the officer to whom it is to
be directed, must be one to whom, on legal principles, such writ may be di-
rected; and the person applying for it must be without any other specific and
~ legal remedy.
1st. With respect to the officer to whom it would be directed. The in-
timate political relation subsisting between the President of the United States
and the heads of departments, necessarily renders any legal investigation of
the acts ef one of those high officers peculiarly irksome, as well as delicate;
and excites some hesitation with respect to the propriety of entering into
50 | THe SuPREME CourT AND CONSTITUTIONAL POLITICS

such investigation. Impressions are often received without much reflection

or examination, and it is not wonderful that in such a case as this the asser-
tion, by an individual, of his legal claims in a court of justice, to which
claims it is the duty of that court to attend, should at first view be considered
by some, as an attempt to intrude into the cabinet, and to intermeddle with
the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to such
jurisdiction. An extravagance, so absurd and excessive, could not have been
entertained for a moment. The province of the court is, solely, to decide on
the rights of individuals, not to inquire how the executive, or executive offi-
cers, perform duties in which they have a discretion. Questions in their na-
ture political, or which are, by the constitution and laws, submitted to the
executive, can never be made in this court.
But, if this be not such a question; if, so far from being an intrusion into
the secrets of the cabinet, it respects 4 paper which, according to law, is upon
record, and to a copy of which the law gives a right. . . .
If one of the heads of departments commits any illegal act, under colour
of his office, by which an individual sustains an injury, it cannot be pre-
tended that his office alone exempts him from being sued in the ordinary
mode of proceeding, and being compelled to obey the judgment of the law.
How, then, can his office exempt him from this particular mode of deciding
on the legality of his conduct if the case be such a case as would, were any
other individual the party complained of, authorize the process?
It is not by the office of the person to whom the writ is directed, but
the nature of the thing to be done, that the propriety or impropriety of issu-
ing a mandamus is to be determined. . . .
This, then, is a plain case for a mandamus, either to deliver the commis-
sion, or a copy of it from the record; and it only remains to be inquired,
Whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes
the Supreme Court “to issue writs of mandamus in cases warranted by the
principles and usages of law, to any courts appointed, or persons holding of-
fice, under the authority of the United States.”’*
The secretary of state, being a person holding an office under the au-
thority of the United States, is precisely within the letter of the description,
and if this court is not authorized to issue a writ of mandamus to such an of-
ficer, it must be because the law is unconstitutional, and therefore absolutely —
incapable of conferring the authority, and assigning the duties which its
words purport to confer and assign.
The constitution vests the whole judicial power of the United States in
one supreme court, and such inferior courts as congress shall, from time to

* Note that Chief Justice Marshall selectively quotes from Section 13 of the Judiciary Act of
1789, which he construes ostensibly to confer authority on the Court to hear Marbury’s case
under the Court’s original jurisdiction and, in turn, declares unconstitutional. The relevant part
of Section 13 reads:

The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of
the several states, in the cases herein after specifically provided for; and shall have power to issue
writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime
Jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to
any courts appointed, or persons holding office, under the authority of the United States.
 A | Establishing and Contesting the Power ofJudicial Review | 51

time, ordain and establish. This power is expressly extended to all cases aris-
ing under the laws of the United States; and, consequently, in some form,
may be exercised over the present case; because the right claimed is given by
a law of the United States.
In the distribution of this power it is declared that “the supreme court
shall have original jurisdiction in all cases affecting ambassadors, other public
ministers and consuls, and those in which astate shall be a party. In all other
cases, the supreme court shall have appellate jurisdiction.”
It has been insisted, at the bar, that as the original grant of jurisdiction,
to the supreme and inferior courts, is general, and the clause, assigning orig-
inal jurisdiction to the supreme court, contains no negative or restrictive
words, the power remains to the legislature, to assign original jurisdiction to
that court in other cases than those specified in the article which has been
recited; provided those cases belong to the judicial power of the United
States. :
If it had been intended to leave it in the discretion of the legislature to
apportion to the judicial power between the supreme and inferior courts ac-
cording to the will of that body, it would certainly have been useless to have
proceeded further than to have defined the judicial power, and the tribunals
in which it should be vested. The subsequent part of the section is mere sur-
plusage, is entirely without meaning, if such is to be the construction. If
congress remains at liberty to give this court appellate jurisdiction, where
the constitution has declared their jurisdiction shall be original; and original
jurisdiction where the constitution has declared it shall be appellate; the
distribution of jurisdiction, made in the constitution, is form without sub-
stance.
Affirmative words are often, in their operation, negative of other objects
than those affirmed; and in this case, a negative or exclusive sense must be
given to them, or they have no operation at all.
It cannot be presumed that any clause in the constitution is intended to
be without effect; and, therefore, such a construction is inadmissible, unless
the words require it.
If the solicitude of the convention, respecting our peace with foreign
powers, induced a provision that the supreme court should take original
jurisdiction in cases which might be supposed to affect them; yet the clause
would have proceeded no further than to provide for such cases, if no fur-
ther restriction on the powers of congress had been intended. That they
should have appellate jurisdiction in all other cases, with such exceptions as
congress might make, is no restriction; unless the words be deemed exclusive
of original jurisdiction.
When an instrument organizing fundamentally a judicial system, divides
it into one supreme, and so many inferior courts as the legislature may or-
dain and establish; then enumerates its powers, and proceeds so far to dis-
tribute them, as to define the jurisdiction of the supreme court by declaring
the cases in which it shall take original jurisdiction, and that in others it shall
take appellate jurisdiction; the plain import of the words seems to be, that in
one class of cases its jurisdiction is original, and not appellate; in the other it
is appellate, and not original. If any other construction would render the
clause iioperative, that is an additional reason for rejecting such other con-
struction, and for adhering to their obvious meaning.
52 | THe SuprEME Court AND CONSTITUTIONAL POLITICS

To enable this court, then, to issue a mandamus, it must be shown to be

an exercise of appellate jurisdiction, or to be necessary to enable them to ex-
ercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exer-
cised in a variety of forms, and that if it be the will of the legislature that a
mandamus should be used for that purpose, that will must be obeyed. This is
true, yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction, that it revises and
corrects the proceedings in a cause already instituted, and does not create
that cause. Although, therefore, a mandamus may be directed to courts, yet
to issue such a writ to an officer for the delivery ofa paper, is in effect the
same as to sustain an original action for that paper, and, therefore, seems not
to belong to appellate, but to original jurisdiction. Neither is it necessary in
such a case as this, to enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the supreme court, by the act establish-
ing the judicial courts of the United States, to issue writs of mandamus to pub-
lic officers, appears not to be warranted by the constitution; and it becomes
necessary to inquire whether a jurisdiction so conferred can be exercised.
The question, whether an act, repugnant to the constitution, can be-
come 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.
That the people have an original right to establish, for their future
government, such principles, as, in their opinion, shall most conduce to
their own happiness is the basis on which the whole American fabric has
been erected. The exercise of this original right is a very great exertion; nor
can it, nor ought it, to be frequently repeated. The principles, therefore, so
established, are deemed fundamental. And as the authority from which they
proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to
different departments their respective powers. It may either stop here, or es-
tablish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The
powers of the legislature are defined and limited; and that those limits may
not be mistaken, or forgotten, the constitution is written. To what purpose
are powers limited, and to what purpose is that limitation committed to
writing, if these limits may, at any time, be passed by those intended to be
restrained? The distinction between a government with limited and un-
limited powers is abolished, if those limits do not confine the persons on
whom they are imposed, and if acts prohibited and acts allowed, are of equal
obligation. It is a proposition too plain to be contested, that the constitution
controls any legislative act repugnant to it; or, that the legislature may alter
the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution
is either a superior paramount law, unchangeable by ordinary means, or it is
on a level with ordinary legislative acts, and, like other acts, is alterable when
the legislature shall please to alter it.
If the former part of the alternative be true, then alegislative act con-
trary to the constitution is not law: if the latter part be true, then written
 A | Establishing and Contesting the Power ofJudicial Review | 53

constitutions are absurd attempts, on the part of the people, to limit a power
in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate
them as forming the fundamental and paramount law of the nation, and,
consequently, the theory of every such government must be, that an act of
the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is con-
sequently, to be considered, by this court, as one of the fundamental princi-
ples of our society. It is not therefore to be lost sight of in the further
consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it,
notwithstanding its invalidity, bind the courts, and oblige them to give it ef-
fect? Or, in other words, though it be not law, does it constitute a rule as op-
erative as if it was a law? This would be to overthrow in fact what was
established in theory; and would seem, at first view, an absurdity too gross to
be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide
that case conformably to the law, disregarding the constitution; or con-
formably to the constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of the very essence
of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such
ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be
considered, in court, as a paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on the constitution, and see
only the law.
This doctrine would subvert the very foundation of all written constitu-
tions. It would declare that an act which, according to the principles and
theory of our government, is entirely void, is yet, in practice, completely
obligatory. It would declare that if the legislature shall do what is expressly
forbidden, such act, notwithstanding the express prohibition, is in reality ef-
fectual. It would be given to the legislature a practical and real omnipotence,
with the same breath which professes to restrict their powers within narrow
limits. It is prescribing limits, and declaring that those limits may be passed at
pleasure.
That it thus reduces to nothing what we have deemed the greatest im-
provement on political institutions, a written constitution, would of itself be
sufficient, in America, where written constitutions have been viewed with
so much reverence, for rejecting the construction. But the peculiar expres-
sions of the constitution of the United States furnish additional arguments in
favour of its rejection.
The judicial power of the United States is extended to all cases arising
under the constitution.
54 | THe Supreme Court AND CONSTITUTIONAL POLITICS

Could it be the intention of those who gave this power, to say that in
using it the constitution should not be looked into? That a case arising un-
der the constitution should be decided without examining the instrument
under which it arises?
This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into bythe judges.
And if they can open it at all, what part of it are they forbidden to read or to
obey?
There are many other parts of the constitution which serve to illustrate
this subject.
It is declared that “‘no tax or duty shall be laid on articles exported from
any state.” Suppose a duty on the export of cotton, of tobacco, or of flour;
and a suit instituted to recover it. Ought judgment to be rendered in such a
case? Ought the judges to close their eyes on the constitution, and only see
the law?
The constitution declares “that no bill of attainder or ex post facto law
shall be passed.”
If, however, such a bill should be passed, and a person should be prose-
cuted under it; must the court condemn to death those victims whom the
constitution endeavors to preserve?
‘No person,” says the constitution, “shall be convicted of treason unless
on the testimony of two witnesses to the same overt act, or on confession in
open court.”
Here the language of the constitution is addressed especially to the
courts. It prescribes, directly for them, a rule of evidence not to be departed
from. If the legislature should change that rule, and declare one witness, or a
confession out of court, sufficient for conviction, must the constitutional
principle yield to the legislative act?
From these, and many other selections which might be made, it is ap-
parent, that the framers of the constitution contemplated that instrument as
a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it?
This oath certainly applies in an especial manner, to their conduct in their
official character. How immoral to impose it on them, if they were to be
used as the instruments, and the knowing instruments, for violating what
they swear to support!
The oath of office, too, imposed by the legislature, is completely de-
monstrative of the legislative opinion on this subject. It is in these words: “I
do solemnly swear that I will administer justice without respect to persons,
and do equal right to the poor and to the rich; and that I will faithfully and
impartially discharge all the duties incumbent on me as ————,, according
to the best of my abilities and understanding agreeably to the constitution
and laws of the United States.”
Why does a judge swear to discharge his duties agreeably to the consti-
tution of the United States, if that constitution forms no rule for his govern-
ment? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To
prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring: what
shall be the supreme law of the land, the constitution itself is first mentioned;
 A | Establishing and Contesting the Power of Judicial Review | 55

and not the laws of the United States generally, but those only which shall
be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States
confirms and strengthens the principle, supposed to be essential to all writ-
ten constitutions, that a law repugnant to the constitution is void; and that
courts, as well as other departments, are bound by that instrument.
The rule must be discharged.

Eakin v. Raub
12 SARGEANT & RAWLE 330 (PA., 1825)

In this case involving the power of the Pennsylvania Supreme Court to

invalidate a state law, Justice John Bannister Gibson wrote a dissenting
opinion aimed at refuting Chief Justice John Marshall’s arguments for
judicial review in Marbury v. Madison (1803) (see excerpt above). Note
that Justice Gibson’s criticism of Marbury was limited to the exercise of
judicial review over coequal branches of government. While he con-
tended that state courts had no power to overturn state laws deemed to
violate the state constitution, Justice Gibson did not deny that state
courts could strike down state laws that were inconsistent with federal
law or the Constitution. Moreover, twenty years later, Justice Gibson
repudiated the position taken in his opinion here. In Norris v. Clymer, 2
Pa. 277 (1845), he explained his change in “opinion for two reasons.
The late convention (which drafted Pennsylvania’s state constitution),
by their silence, sanctioned the pretensions of the courts to deal freely
with the Acts of the Legislature; and from experience of the necessity
of the case.”

Justice GIBSON, dissenting.

I am aware, that a right [in the judiciary] to declare all unconstitutional
acts void . . . 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 argu-
ments 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, 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. . . .
I begin, then, by observing that in this country, the powers of the judi-
ciary are divisible into those that are POLITICAL and those that are purely
56 | THe SuprREME CourT AND CONSTITUTIONAL POLITICS

civil. Every power by which one organ of the government is enabled to con-
trol another, or to exert an influence over its acts, is a political power. . ..
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 op-
posite 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. .. .
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 anything besides the form of enactment, where shall it stop? . . .
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 law-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 answer-
able 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 essen-
tially otherwise. . . . It may be said, the power of the legislature, also, is lim-
ited 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 coordinate 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 sup-port; 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 su-
perior to the power to act and to obey... .
What I have in view in this inquiry, is the supposed right of the judici-
ary 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
 A | Establishing and Contesting the Power ofJudicial Review | 57

support the constitution is not peculiar to the judges, but is taken indiscrim-
inately 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 is difficult to determine what operation it is to have
in the case ofa 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, conse-
quently, if his official duty does not comprehend an inquiry into the author-
ity of the legislature, neither does his oath. .. .
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 legisla-
ture 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. . . .
- 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 de-
claring the power of the legislature in practice to be illimitable. . . . 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 recur-
rence 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 1s
an instrument of inestimable value. It is of inestimable value, also, in render-
ing its first principles familiar to the mass of 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. . . . 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 de-
pendent power to arrest it in its course.
For these reasons, I am of [the] opinion that it rests with the people, in
whom full and absolute sovereign power resides, to correct abuses in legisla-
tion, by instructing their representatives to repeal the obnoxious act. What 1s
wanting to plenary power in the government, is reserved by the people for
their own immediate use; and to redress an 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 conclu-
‘sions. 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 ordi-
nary 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
58 | THe Supreme Court AND CONSTITUTIONAL POLITICS

not notice an error of their representatives. But they would as probably do

so, as notice an error of the judiciary; and, besides, 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
the 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 convention. .. .
But in regard to an act of [a state] assembly, which is found to be in col-
lision 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 indi-
vidual sovereignty, to enforce which, it was thought to be absolutely neces-
sary 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 sixth 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: anything in the laws or
constitution of any state to the contrary notwithstanding.”

President Jackson’s Veto Message of 1832

President Andrew Jackson distrusted banks and, as a westerner, op-

posed the policies of the Bank of the United States which limited
credit for land speculation. When Congress rechartered the Bank in
1832, Jackson vetoed the bill with this message,* drafted by Secretary
of the Treasury (and later appointed as chief justice) Roger B. Taney.
The controversy over the establishment of the national bank and its im-
portance in shaping constitutional politics is dealt with further in Vol-
ume 1, Chapter 6.

1) To the Senate:

The bill “to modify and continue” the act entitled “An act to incorpo-
rate the subscribers to the Bank of the United States” was presented to me
on the 4th July instant. Having considered it with that solemn regard to the
principles of the Constitution which the day was calculated to inspire, and
come to the conclusion that it ought not to become a law, I herewith return
it to the Senate, in which it originated, with my objections.

* From James D. Richardson, ed., A Compilation of the Messages and Papers of the ‘Presidents
(Washington, DC: Bureau of National Literature and Art, 1908), Vol. 2, 581-582.
 A | Establishing and Contesting the Power ofJudicial Review | 59

It is maintained by the advocates of the bank that its constitutionality in

all its features ought to be considered as settled by precedent and by the de-
cision of the Supreme Court. To this conclusion I can not assent. Mere
precedent is a dangerous source of authority, and should not be regarded as
deciding questions of constitutional power except where the acquiescence of
the people and the States can be considered as well settled. So far from this
being the case on this subject, an argument against the bank might be based
on precedent. One Congress, in 1791, decided in favor ofa bank; another in
1811, decided against it. One Congress, in 1815, decided against a bank, an-
other, in 1816, decided in its favor. Prior to the present Congress, therefore,
the precedents drawn from that source were equal. If we resort to the States,
the expressions of legislative, judicial, and executive opinions against the
bank have been probably to those in its favor as 4 to 1. There is nothing in
precedent, therefore, which, if its authority were admitted, ought to weigh
in favor of the act before me.
If the opinion of the Supreme Court covered the whole ground of this
act, it ought not to control the coordinate authorities of this Government.
The Congress, the Executive, and the Court must each for itself be guided
by its own opinion of the Constitution. Each public officer who takes an
oath to support the Constitution swears that he will support it as he under-
stands it, and not as it is understood by others. It is as much the duty of the
House of Representatives, of the Senate, and of the President to decide
upon the constitutionality of any bill or resolution which may be presented
to them for passage or approval as it is of the supreme judges when it may be
brought before them for judicial decision. The opinion of the judges has no
more authority over Congress than the opinion of Congress has over the
judges, and on that point the President is independent of both. The author-
ity of the Supreme Court must not, therefore, be permitted to control the
Congress or the Executive when acting in their legislative capacities, but to
have only such influence as the force of their reasoning may deserve.
But in the case relied upon the Supreme Court have not decided that all
the features of this corporation are compatible with the Constitution. It is
true that the court have said that the law incorporating the bank is a consti-
tutional exercise of power by Congress; but taking into view the whole
opinion of the court and the reasoning by which they have come to that
conclusion, I understand them to have decided that inasmuch as a bank is an
appropriate means for carrying into effect the enumerated powers of the
General Government, therefore the law incorporating it is in accordance
with that provision of the Constitution which declares that Congress shall
have power “to make all laws which shall be necessary and proper for carry-
ing those powers into execution.” Having satisfied themselves that the word
“necessary” in the Constitution means “needful,” “requisite,” “essential,” “con-
ducive to,’ and that “a bank” is a convenient, a useful, and essential instru-
ment in the prosecution of the Government’s “fiscal operations,” they
- conclude that to “use one must be within the discretion of Congress” and
that “the act to incorporate the Bank of the United States is a law made in
pursuance of the Constitution”; “but,” say they, “where the law is not prohib-
ited and is really calculated to effect any of the objects intrusted to the Government, to
undertake here to inquire into the degree of its necessity would be to pass the line
which circumscribes the judicial department and to tread on legislative ground.”
60 | THe SupREME COURT AND CONSTITUTIONAL POLITICS

The principle here affirmed is that the “degree of its necessity,” involv-
ing all the details of a banking institution, is a question exclusively for leg-
islative consideration. A bank is constitutional, but it is the province of the
Legislature to determine whether this or that particular power, privilege, or
exemption is “necessary and proper” to enable the bank to discharge its du-
ties to the Government, and from their decision there is no appeal to the
courts of justice. Under the decision of the Supreme Court, therefore, it is
the exclusive province of Congress and the President to decide whether the
particular features of this act are necessary and proper in order to enable the
bank to perform conveniently and efficiently the public duties assigned to it
as a fiscal agent, and therefore constitutional, or unnecessary and improper, and
therefore unconstitutional. : . .
The bank is professedly established as an agent of the executive branch
of the Government, and its constitutionality is maintained on that ground.
Neither upon the propriety of present action nor upon the provisions of this
act was the Executive consulted. It has had no opportunity to say that it nei-
ther needs nor wants an agent clothed with such powers and favored by such
exemptions. There is nothing in its legitimate functions which makes it nec-
essary or proper. Whatever interest or influence, whether public or private,
has given birth to this act, it can not be found either in the wishes or neces-
sities of the executive department, by which present action is deemed pre-
mature, and the powers conferred upon its agent not only unnecessary, but
dangerous to the Government and country. . . .
Experience should teach us wisdom. Most of the difficulties our
Government now encounters and most of the dangers which impend over
our Union have sprung from an abandonment of the legitimate objects of
Government by our national legislation, and the adoption of such principles
as are embodied in this act. Many of our rich men have not been content
with equal protection and equal benefits, but have besought us to make
them richer by act of Congress. By attempting to gratify their desires we
have in the results of our legislation arrayed section against section, interest
against interest, and man against man, in a fearful commotion which threat-
ens to shake the foundations of our Union. It is tme to pause in our career
to review our principles, and if possible revive that devoted patriotism
and spirit of compromise which distinguished the sages of the Revolution
and the fathers of our Union. If we can not at once, in justice to interests
vested under improvident legislation, make our Government what it ought
to be, we can at least take a stand against all new grants of monopolies and
exclusive privileges, against any prostitution of our Government to the ad-
vancement of the few at the expense of the many, and in favor of com-
promise and gradual reform in our code of laws and system of political
economy. d
I have now done my duty to my country. If sustained by my fellow-
citizens, I shall be grateful and happy; if not, I shall find in the motives
which impel me ample grounds for contentment and peace.
 A | Establishing and Contesting the Power ofJudicial Review | 61

President Roosevelt’s Radio Broadcast,

March 9, 1937

During President Franklin D. Roosevelt’s first term (1933-1937), the

Supreme Court by a vote of five to four invalidated much of his New
Deal program and plan for the country’s economic recovery from the
Great Depression. After his landslide reelection in November 1936,
FDR proposed in February 1937 that Congress expand the size of the
Court from nine to fifteen justices and thereby give him the chance to
secure a majority sympathetic to his policies. On March 9, 1937, the
Democratic president made the following radio address in an effort to
marshal public support for his “Court-packing plan.’ But that same
month, while the Senate Judiciary Committee was considering his
proposal, Justice Owen Roberts, who had previously cast the crucial
vote for overturning progressive economic legislation, switched sides
and voted to uphold New Deal legislation. The Court’s proverbial
“switch-in-time-that-saved-nine” then contributed to the Democrat-
dominated Senate’s defeat of FDR’s proposal. The constitutional crisis
that loomed over the Court and the country in 1937 1s discussed fur-
ther in Volume 1, Chapter 6, and in Volume 2, Chapter 3.

Tonight, sitting at my desk in the White House, I make my first radio

report to the people in my second term of office.*
I am reminded of that evening in March, four years ago, when I made
my first radio report to you. We were then in the midst of the great banking
crisis.
Soon after, with the authority of the Congress, we asked the Nation to
turn over all of its privately held gold, dollar for dollar, to the Government
of the United States.
Today’s recovery proves how right that policy was.
But when, almost two years later, it came before the Supreme Court its
constitutionality was upheld only by a five-to-four vote. The change of one
vote would have thrown all the affairs of this great Nation back into hope-
less chaos. In effect, four Justices ruled that the right under a private contract
to exact a pound of flesh was more sacred than the main objectives of the
Constitution to establish an enduring Nation.
In 1933 you and I knew that we must never let our economic system
get completely out of joint again—that we could not afford to take the risk
-of another great depression.
We also became convinced that the only way to avoid a repetition of
those dark days was to have a government with power to prevent and to cure
the abuses and the inequalities which had thrown that system out of joint.

* From 1937 Public Papers and Addresses of Franklin D. Roosevelt (1941), 122.
62 | THe SupREME CouRT AND CONSTITUTIONAL POLITICS

We then began a program of remedying those abuses and inequalities—

to give balance and stability to our economic system—to make it bomb-
proof against the causes of 1929.
Today we are only part-way through that program—and recovery is
speeding up to a point where the dangers of 1929 are again becoming possi-
ble, not this week or month perhaps, but within a year or two.
National laws are needed to complete that program. Individual or local or
state effort alone cannot protect us in 1937 any better than ten years ago. . . .
The American people have learned from the depression. For in the last
three national elections an overwhelming majority of them voted a mandate
that the Congress and the President begin the task of providing that protec-
tion—not after long years of debate, but now.
The Courts, however, have cast doubts on the ability of the elected
Congress to protect us against catastrophe by meeting squarely our modern
social and economic conditions. —°
We are at a crisis in our ability to proceed with that protection. It is a
quiet crisis. There are no lines of depositors outside closed banks. But to the
far-sighted it is far-reaching in its possibilities of injury to America.
I want to talk with you very simply about the need for present action in
this crisis—the need to meet the unanswered challenge of one-third of a
Nation ill-nourished, ill-clad, ill-housed.
Last Thursday I described the American form of Government as a three
horse team provided by the Constitution to the American people so that
their field might be plowed. The three horses are, of course, the three
branches of government—the Congress, the Executive and the Courts. Two
of the horses are pulling in unison today; the third is not. Those who have
intimated that the President of the United States is trying to drive that team,
overlook the simple fact that the President, as Chief Executive, is himself
one of the three horses.
‘It is the American people themselves who are in the driver's seat.
It is the American people themselves who want the furrow plowed.
It is the American people themselves who expect the third horse to pull
in unison with the other two.
I hope that you have re-read the Constitution of the United States. Like
the Bible, it ought to be read again and again.
It is an easy document to understand when you remember that it was
called into being because the Articles of Confederation under which the
original thirteen States tried to operate after the Revolution showed the
need of a National Government with power enough to handle national
problems. In its Preamble, the Constitution states that it was intended to
form a more perfect Union and promote the general welfare; and the pow-
ers given to the Congress to carry out those purposes can be best described
by saying that they were all the powers needed to meet each and every prob-
lem which then had a national character and which could not be met by
merely local action.
But the framers went further. Having in mind that in succeeding gener-
ations many other problems then undreamed of would become national
problems, they gave to the Congress the ample broad powers “to levy taxes
. . and provide for the common defense and general welfare of the United
States: :
That, my friends, is what I honestly believe to have been the clear and
 A | Establishing and Contesting the Power ofJudicial Review | 63

underlying purpose of the patriots who wrote a Federal Constitution to cre-

ate a National Government with national power, intended as they said, “to
form a more perfect union . . . for ourselves and our posterity.” . . .
But since the rise of the modern movement for social and economic
progress through legislation, the Court has more and more often and more
and more boldly asserted a power to veto laws passed by the Congress and
State Legislatures in complete disregard of this original limitation.
In the last four years the sound rule of giving statutes the benefit of all
reasonable doubt has been cast aside. The Court has been acting not as a ju-
dicial body, but as a policy-making body.
When the Congress has sought to stabilize national agriculture, to im-
prove the conditions of labor, to safeguard business against unfair competi-
tion, to protect our national resource’, and in many other ways, to serve our
clearly national needs, the majority of the Court has been assuming the
power to pass on the wisdom of these Acts of the Congress—and to approve
or disapprove the public policy written into these laws.
That is not only my accusation. It is the accusation of most distin-
guished Justices of the present Supreme Court. I have not the time to quote
to you all the language used by dissenting Justices in many of these cases. But
in the case holding the Railroad Retirement Act unconstitutional, for in-
stance, Chief Justice Hughes said in a dissenting opinion that the majority
opinion was “a departure from sound principles,’ and placed “an unwar-
ranted limitation upon the commerce clause.’ And three other Justices
agreed with him.
In the case holding the A.A.A. unconstitutional, Justice Stone said of
the majority opinion that it was a “tortured construction of the Constitu-
tion.” And two other Justices agreed with him.
In the case holding the New York Minimum Wage Law unconstitu-
tional, Justice Stone said that the majority were actually reading into the
Constitution their own “personal economic predilections,’ and that if the
legislative power is not left free to choose the methods of solving the prob-
lems of poverty, subsistence and health of large numbers in the community,
then “government is to be rendered impotent.’ And two other Justices
agreed with him.
_ In the face of these dissenting opinions, there is no basis for the claim
made by some members of the Court that something in the Constitution has
compelled them regretfully to thwart the will of the people.
In the face of such dissenting opinions, it is perfectly clear, that as Chief
Justice Hughes has said: “We are under a Constitution but the Constitution
is what the Judges say it is.”
The Court in addition to the proper use of its judicial functions has im-
properly set itself up as a third House of the Congress—a super-legislature, as
one of the Justices has called it—reading into the Constitution words and im-
plications which are not there, and which were never intended to be there.
We have, therefore, reached the point as a Nation where we must take
action to save the Constitution from the Court and the Court from itself.
We must find a way to take an appeal from the Supreme Court to the Con-
stitution itself. We want a Supreme Court which will do justice under the
Constitution—not over it. In our Courts we want a government of laws and
not of men. ~
I want—as all Americans want—an independent judiciary as proposed
64 | THe SupREME Courr AND CONSTITUTIONAL POLITICS

by the framers of the Constitution. That means a Supreme Court that will
enforce the Constitution as written—that will refuse to amend the Consti-
tution by the arbitrary exercise of judicial power—amendment by judicial
say-so. It does not mean a judiciary so independent that it can deny the ex-
istence of facts universally recognized.
How then could we proceed to perform the mandate given us? It was
said in last year’s Democratic platform “If these problems cannot be effec-
tively solved within the Constitution, we shall seek such clarifying amend-
ment as will assure the power to enact those laws, adequately to regulate
commerce, protect public health and safety, and safeguard economic secu-
rity.’ In other words, we said we would seek an amendment only if every
other possible means by legislation were to fail.
When I commenced to review the situation with the problem squarely
before me, I came by a process of elimination to the conclusion that short of
amendments the only method which was clearly constitutional, and would
at the same time carry out other much needed reforms, was to infuse new
blood into all our Courts. We must have men worthy and equipped to carry
out impartial justice. But, at, the same time, we must have Judges who will
bring to the Courts a present-day sense of the Constitution—Judges who
will retain in the Courts the judicial functions ofa court, and reject the leg-
islative powers which the Courts have today assumed. .. .
What is my proposal? It is simply this: whenever a Judge or Justice of
any Federal Court has reached the age of seventy and does not avail himself
of the opportunity to retire on a pension, a new member shall be appointed
by the President then in office, with the approval, as required by the Consti-
tution, of the Senate of the United States.
That plan has two chief purposes. By bringing into the Judicial system a
steady and continuing stream of new and younger blood, I hope, first, to make
the administration of all Federal justice speedier and, therefore, less costly; sec-
ondly, to bring to the decision of social and economic problems younger men
who have had personal experience and contact with modern facts and cir-
cumstances under which average men have to live and work. This plan will
save our national Constitution from hardening of the judicial arteries.
The number of Judges to be appointed would depend wholly on the
decision of present Judges now over seventy, or those who would subse-
quently reach the age of seventy.
If, for instance, any one of the six Justices of the Supreme Court now
over the age of seventy should retire as provided under the plan, no addi-
tional place would be created. Consequently, although there never can be
more than fifteen, there may be only fourteen, or thirteen, or twelve. And
there may be only nine.
There is nothing novel or radical about this idea. It seeks to maintain
the Federal bench in full vigor. It has been discussed and approved by many
persons of high authority ever since a similar proposal passed the House of
Representatives in 1869.
Why was the age fixed at seventy? Because the laws of many States, the
practice of the Civil Service, the regulations of the Army and Navy, and the
rules of many of our Universities and of almost every great private business
enterprise, commonly fix the retirement age at seventy years or less.
The statute would apply to all the Courts in the Federal system. There is
general approval so far as the lower Federal courts are concerned. The plan
 A | Establishing and Contesting the Power ofJudicial Review | 65

has met opposition only so far as the Supreme Court of the United States it-
self is concerned. If such a plan is good for the lower courts it certainly ought
to be equally good for the highest Court from which there is no appeal.
Those opposing this plan have sought to arouse prejudice and fear by
crying that I am seeking to “pack” the Supreme Court and that a baneful
precedent will be established.
What do they mean by the words “packing the Court”?
Let me answer this question with a bluntness that will end all honest mis-
understanding of my purposes.
If by that phrase “packing the Court” it is charged that I wish to place
on the bench spineless puppets who would disregard the law and would de-
cide specific cases as I wished them to be decided, I make this answer—that
no President fit for his office would appoint, and no Senate of honorable
men fit for their office would confirm, that kind of appointees to the
Supreme Court. }
But if by that phrase the charge is made that I would appoint and the
Senate would confirm Justices wofthy to sit beside present members of the
Court who understand those modern conditions—that I will appoint Jus-
tices who will not undertake to override the judgment of the Congress on
legislative policy—that I will appoint Justices who will act as Justices and not
as legislators—if the appointment of such Justices can be called “‘packing the
Courts,” then I say that I and with me the vast majority of the American
people favor doing just that thing—now.
Is it a dangerous precedent for the Congress to change the number of
the Justices? The Congress has always had, and will have, that power. The
number of Justices has been changed several times before—in the Adminis-
trations of John Adams and Thomas Jefferson,—both signers of the Declara-
tion of Independence—Andrew Jackson, Abraham Lincoln and Ulysses S.
Grant.
I suggest only the addition of Justices to the bench in accordance with a
clearly defined principle relating to a clearly defined age limit. Fundamentally,
if in the future, America cannot trust the Congress it elects to refrain from
abuse of our Constitutional usages, democracy will have failed far beyond the
importance to it of any kind of precedent concerning the Judiciary. . . .
It is the clear intention of our public policy to provide for a constant
flow of new and younger blood into the Judiciary. Normally every President
appoints a large number of District and Circuit Judges and a few members
of the Supreme Court. Until my first term practically every President
of the United States had appointed at least one member of the Su-
preme Court. President Taft appointed five members and named a Chief
Justice—President Wilson three—President Harding four including a Chief
Justice—President Coolidge one—President Hoover three including a
Chief Justice.
Such a succession of appointments should have provided a Court well-
balanced as to age. But chance and the disinclination of individuals to leave
.the Supreme bench have now given us a Court in which five Justices will be
over seventy-five years of age before next June and one over seventy. Thus a
sound public policy has been defeated.
I now propose that we establish by law an assurance against any such ill-
balanced Court in the future. I propose that hereafter, when a Judge reaches
the age of seventy, a new and younger Judge shall be added to the Court
66 | THe SuPREME CouRT AND CONSTITUTIONAL POLITICS

automatically. In this way I propose to enforce a sound public policy by law

instead of leaving the composition of our Federal Courts, including the
highest, to be determined by chance or the personal decision of individuals.
If such a law as I propose is regarded as establishing a new precedent—
is it not a most desirable precedent?
Like all lawyers, like all Americans, I regret the necessity of this contro-
versy. But the welfare of the United States, and indeed of the Constitution
itself, is what we all must think about first. Our difficulty with the Court to-
day rises not from the Court as an institution but from human beings within
it. But we cannot yield our constitutional destiny to the personal judgment
of a few men who, being fearful of the future, would deny us the necessary
means of dealing with the present.
This plan of mine is no attack on the Court; it seeks to restore the
Court to its rightful and historic place in our system of Constitutional
Government and to have it resume, its high task of building anew on the
Constitution “‘a system of living law.’

B |The Politics of Constitutional

Interpretation

Constitutional interpretation and law, Justice Felix Frankfurter ob-

served, “is not at all a science, but applied politics.”’ The Constitution,
of course, is a political document and as a written document is not self-
interpreting; its interpretation is political. How the Constitution should
be interpreted is thus as controversial as the ongoing debate over who
should interpret it.
For much of the nineteenth century, theories of constitutional in-
terpretation were generally not debated.* The Court’s interpretation of
the Constitution, of course, remained politically controversial. Yet, the
great debates between Jeffersonian-Republicans and Federalists cen-
tered on disagreements over fundamental principles of constitutional
politics (the power and structure of government and guarantees for civil
rights and liberties), rather than competing interpretative theories.
Their struggle was over rival political philosophies and interpretations
of the political system created by the Constitution. That struggle con-
tinues except that contemporary debates, within the Court and the le-
gal community, tend to be more complex and linked to rival theories
of constitutional interpretation that aim to justify or criticize the
Court’s exercise of judicial review.
In 1833, for example, Justice Joseph Story in his influential Com-
mentaries on the Constitution of the United States saw no need to offer a
theory of constitutional interpretation, explaining that,
 B | The Politics of Constitutional Interpretation | 67

[t]he reader must not expect to find in these pages any novel views
and novel constructions of the Constitution. I have not the ambi-
tion to be the author of any new plan of interpreting the theory of
the Constitution, or of enlarging or narrowing its powers by in-
genious subtleties and learned doubts. . . . Upon subjects of
government, it has always appeared to me, that metaphysical refine-
ments are out of place. A constitution of government is addressed
to the common sense of the people, and never was designed for tri-
als of logical skill or visionary speculation.’

Story assumed that “[t]he first and fundamental rule in the interpreta-
tion of all instruments is, to construe them according to the sense of
the terms and the intention of the parties.”* This “plain meaning rule”
was set forth by Chief Justice John Marshall in Sturges v. Crowninshield,
17 US. 122 (1819):
[A]lthough the spirit of an instrument, especially of a constitution,
is to be respected not less than its letter, yet the spirit is to be col-
lected chiefly from its words. . . . [I]f, in any case, the plain mean-
ing of a provision, not contradicted by any other provision in the
same instrument, is to be disregarded, because we believe the
framers of that instrument could not intend what they say, it must
be one in which the absurdity and injustice of applying the provi-
sion to the case, would be so monstrous that all mankind would,
without hesitation, unite in rejecting the application.

While the plain meaning of the Constitution for Story and Marshall
was derived from a commonsense, rather than aliteral, reading of the
Constitution, Jeffersonian-Republicans nevertheless charged them with
distorting the plain meaning of the document to advance their nation-
alistic political vision.
One reason political struggles in the nineteenth century did not in-
vite debates over competing theories of constitutional interpretation is
that Federalists and Jeffersonian-Republicans largely professed accep-
tance of the English declaratory theory of law. This theory, or philoso-
phy, of legal positivism holds that judges have no discretion, make no
law, but simply discover and “declare” the law.* According to one of
the most widely read English jurists, Sir William Blackstone, in his
Commentaries on the Laws of England (1765-1768), judges were merely
the “depositories of the laws; the living oracles” of law. Hamilton and
Marshall considered themselves Blackstonians; judges, Hamilton wrote
in The Federalist, No. 78, “may truly be said to have neither force nor
will, but merely judgment.”
By the late nineteenth century, the Blackstonian theory of law was
- under sharp attack. Oliver Wendell Holmes (1841-1935) was one of
the first to debunk the idea that law is “a brooding omnipresence in the
 CONSTITUTIONAL PoLitics
68 | THE SupREME CourT AND eS
Te ee SS
LL

= IN COMPARATIVE PERSPECTIVE

Written and Unwritten Constitutions:

Britain’s and Israel’s Constitutions

What is a constitution? Does a constitution have to be written? Most of

1n-
the world’s 185 countries have written constitutions. Yet several do not,
cluding Bosnia-Herzogovenia; Libya; New Zealand; Oman; Qatar; Saudi
Arabia; Britain; and, at least until 1995, Israel. Furthermore, British legal
scholars have long contended that Britain has a “historic constitution.” By
contrast, the Supreme Court of Israel declared its Basic Laws to constitute a
constitution in 1995.
The British constitution, according to some legal scholars, is best under-
stood not as an “unwritten” constitution but as a “historic constitution,’ a
written and unwritten product of historical development, not of deliberate
design; it is a romantic, pre-Enlightenment constitution. Parts of the British
constitution are found in historic documents, such as the Magna Carta, the
Act of Settlement, and the Parliament Acts. Still, as Vernon Bogdanor em-
phasizes:

[T]here is a sense in which the British Constitution can be summed

up in eight words: What the Queen in Parliament enacts is law.
The essence of the British Constitution is thus better expressed in
the statement that it is a historic constitution whose dominating
characteristic is the sovereignty of Parliament, than in the statement
that Britain has an unwritten constitution.

Because parliamentary sovereignty is at the heart of the British constitution,

Bogdanor and others deem it “pointless to rationalise it in an enacted con-
stitution which could forbid nothing, nor could it provide a list of basic free-
doms which governments would be unable to infringe.”’
In October 2000, however, Britain became subject to the European
Convention on Human Rights, as a result of the going into effect of the
Human Rights Act of 1998 which incorporates those guarantees into British
law. British courts now have jurisdiction over human rights claims, though
they still have no power to declare laws unconstitutional. If they find
conflicts with legislation, they may issue declarations of incompatibility and
the Parliament must decide whether to amend the legislation accordingly.
Nonetheless, British judges are expected to increasingly look to rulings of
the European Court of Justice on Human Rights and to those of high courts
in other member states of the European Union.
When Israel was proclaimed a state in 1948, it was expected to eventu-
ally enact a written constitution. But, due to initial opposition, the Knesset
Pe
 B | The Politics of Constitutional Interpretation | 69
Se
(parliament) in 1950 agreed, as a compromise, to the Harari Resolution, to
build a constitution chapter by chapter through the enactment of Basic
Laws. Accordingly, the Knesset enacted Basic Laws on The Knesset (1958);
Israel Lands (1960); The President of the State (1964); The Government
(1968); The State Economy (1975); Israel Defense Forces (1976); Jerusalem,
The Capital of Israel (1980); The Judiciary (1984); and The State Comptrol-
ler (1988). These Basic Laws largely codified existing practices. But in 1992
the Knesset enacted two more, dealing for the first time with human rights:
the Basic Laws on Freedom of Occupation and on Human Dignity and Lib-
erty. Notably, Section 5 of the Basic Law on Freedom of Occupation also
stipulated that it could not be changed “except by a Basic Law enacted by a
majority of the Knesset members.”
Until the 1990s, the prevailing view in Israel was that the Knesset’s sov-
ereignty was virtually unlimited and that the Supreme Court would exercise
only limited judicial review, invalidating legislation only when in conflict
with specific provisions of.a Basic Law. But, in United Mizrachi Bank plc v.
Migdal Cooperative Village (1995),? the Supreme Court reversed a lower
court’s ruling and proclaimed Israel’s Basic Laws a constitution. A district
court had struck down, as a violation of the 1992 Basic Law on Human
Dignity and Liberty, a Knesset law aimed at providing agricultural relief. It
was the first time an Israeli court had asserted ‘““American-style” substantive
judicial review of legislation. On appeal, though reversing that court’s deci-
sion, all but one of the nine justices agreed that the Knesset had the “con-
stituent authority” to frame a constitution, binding on its own powers, and
that it had done so when enacting the 1992 Basic Laws on human rights.
Furthermore, the Supreme Court held that Israel’s constitution authorized
the judiciary’s exercise of “American-style” judicial review.
In United Mizrachi Bank, the Israeli Supreme Court embraced a the-
ory that its President (or chief justice) Aharon Barak had championed fol-
lowing the enactment of the 1992 Basic Laws. According to Chief Justice
Barak:°
Under these new Basic Laws, several human rights—among them
Dignity, Liberty, Mobility, Privacy, Property—acquired a constitu-
tional force above regular statutes. . . . A regular Knesset (Parlia-
mentary) statute can no longer infringe upon these rights, unless it
fulfills the requirements of the Basic Laws (the “limitations clause”),
namely, it befits the values of the State of Israel, it was passed for a
worthy purpose and the harm caused to the constitutional Human
Right is proportional to the purpose. Thus, we became a constitu-
tional democracy. We joined the democratic, enlightened nations in
which human rights are awarded a constitutional force above regu-
lar statutes. Similar to the United States, Canada, France, Germany,
Italy, Japan, and other western countries, we now have a constitu-
tional defense for Human Rights. We too have the central chapter
in any written constitution, the subject-matter of which is Human

a ST
70 | THE SupREME CouRT AND CONSTITUT IONAL POLITICS
Se e e

i S
Rights; we too have restrictions on the legislative power of the leg-
islator; we too have judicial review of statutes which unlawfully in-
fringe upon constitutionally protected human rights; we too have a
written constitution, to which the Knesset in its capacity as legisla
tor is subject and which it cannot alter. . . .
The Constitutional Revolution has led to a change in the judi-
ciary’s status. Great responsibilities have been imposed on it. It must
fill the mould created by the “majestic generalities” in the new Ba-
sic Laws. The judiciary must be aware of the fundamental values of
the people. It must balance them in accordance with the views of
the “enlightened general public” in Israel. . . . Constitutional inter-
pretation should not be formalistic or pedantic. It should be purpo-
sive. It should be done from, a wide perspective and adopt a
substantive approach. A constitution is a living organism. .. .

1. Vernon Bogdanor, “Britain: The Political Constitution,” in Vernon Bogdanor,

ed., Constitutions and Democratic Politics 53, 55 (Aldershot, England: Gower, 1988).
See also Peter Leyland, The Constitution of the United Kingdom (Oxford: Hart Publish-
ing, 2007).
2. A translation of and commentary on United Mizrachi Bank plc v. Migdal Cooperative
Village, 48 (iv) PD. 221 (1995), may be found in 31 Israel Law Review 754 (1997).
3. Aharon Barak, “The Constitutionalization of the Israeli Legal System as a Result
of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law,” 31 Is-
rael Law Review 3-23 (1997). See also Aharon Barak, The Judge in a Democracy
(Princeton: Princeton University Press, 2006).
nn EEE

sky.’ In his words, “The life of the law has not been logic; it has been
experience. The felt necessities of the time, the prevalent moral and
political theories, intuitions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellow-men, have
had a good deal more to do than the syllogism in determining the rules
by which men should be governed.” Holmes took it for granted that
judges make law and pointed toward the empirical study of law: “The
prophecies of what the courts will do in fact, and nothing more pre-
tentious, are what I mean by the law.’* Nor was Holmes alone in the
revolt against legal formalism and the “‘mechanical jurisprudence” asso-
ciated with the declaratory theory of judicial decision making.’ Roscoe
Pound (1870-1964), the founder of “sociological jurisprudence” and
dean of Harvard Law School, encouraged the use of sociology and the
study of law in relation to changing social forces. Unlike Holmes,
though, Pound also encouraged judges to creatively mold law to the
needs of society; judges should become “social engineers.”"”
One immediate consequence of this revolt against legal formalism
 B | The Politics of Constitutional Interpretation | 71

was the innovation in legal argumentation that became known as “the

Brandeis brief,’ after its author, a progressive legal reformer and later
Justice, Louis D. Brandeis. In 1908, in support of Oregon’s law limiting
working hours for women, Brandeis filed a brief in Muller v, Oregon,
208 U.S. 412 (1908), which included only two pages oflegal argumen-
tation, followed by ninety-seven pages of statistics and other social sci-
ence data documenting the health risks for women working long
hours. Drawing on social science in legal argumentation was necessary,
claimed Brandeis, if law was to keep “pace with the rapid development
of our political, economic, and social ideals.”
By the 1920s and 1930s a diverse group of law professors, political
scientists, economists, and sociologists emerged calling themselves “Amer-
ican legal realists.” They further questioned the determinancy of formal
legal rules and the facts of cases for judicial decision making, thereby
underscoring that judges interpret (and manipulate) both legal rules and
the facts when deciding cases.'* Karl Llewellyn, one of the most influen-
tial legal realists, brought these insights to bear on constitutional interpre-
tation when calling for a “jurisprudence of a living Constitution”:

A “written constitution” is a system of unwritten practices in

which the Document in question, by virtue of men’s attitudes, has
a little influence. Where it makes no important difference which way the de-
cision goes, the Text—in the absence of countervailing practice—is
an excellent traffic light. . . . The view advanced here sounds un-
orthodox. It sounds unorthodox only because it puts into words
the tacit doing of the Court, and draws from that doing conclusions
not to be avoided by a candid child. . . . Whatever the Court has
said, it has repeatedly turned to established governmental practice in
search of norms. What the Court has said, it has shaped the living
Constitution to the needs of the day as it felt them. The whole ex-
pansion of the due process clause has been an enforcement of the
majority’s ideal of government-as-it-should-be, running free of the
language of the Document."

The Supreme Court was not immune from this change in legal
thinking. On the bench sat Holmes (1902-1932), Brandeis (1916—
1939), Benjamin Cardozo (1932-1938)," and Felix Frankfurter
(1939-1962), among other legal progressives. Moreover, even judicial
conservatives on the Court no longer denied that the process of inter-
preting the Constitution involves making law. As Chief Justice Harlan F
Stone, a political and judicial conservative, reflected in a letter to Ed-
ward Corwin, “I always thought the real villain in the play was Black-
stone, who gave to both lawyers and judges artificial notions of the law
which, wien applied to constitutional interpretation made the Consti-
tution a mechanical and inadequate instrument of government.’”'® Jus-
72 | THE SupREME COURT AND CONSTITUTIONAL PoLiTics

who
tice Frankfurter, a former liberal professor at Harvard Law School
bench, elaborated
became an advocate of judicial self-restraint on the
his view ina letter to Justice Hugo Black:

this as-
I think one of the evil features, a very evil one, about all
find the law and don’t make it, often be-
sumption that judges only
of a lack of candor. By coverin g up the law-ma king
comes the evil
out
function ofjudges, we miseducate the people and fail to bring
for what they do... .
into the open the real responsibility of judges
of
That phrase “judicial legislation” has become ever since a staple
term of condemn ation. I, too, am opposed to judicial legislat ion
a
e
in its invidious sense; but I deem equally mischievous—becaus
an impossi ble aim—th e notion that
founded on an untruth and
judges merely announce the law which they find and do not them-
selves inevitably have a share in the law-making. Here, as else-
s
where, the difficulty comes from arguing in terms of absolute
when the matter at hand is conditi oned by circums tances, is con-
tingent upon the everlasting problem of how far is too far and how
much is too much. Judges as you well know, cannot escape the re-
sponsibility of filling in gaps which the finitude of even the most
imaginative legislation renders inevitable. . . .

So the problem is not whether judges make the law, but when and
how and how much. Holmes put it in his highbrow way, that “they
can do so only interstitially; they are confined from molar to mo-
lecular motions.” I used to say to my students that legislatures make
law wholesale, judges retail.'”

Once constitutional interpretation was candidly conceded to be a

lawmaking process, the Court and its commentators squarely faced
what has been called the Madisonian dilemma and “the counter-
majoritarian difficulty” for judicial review. As former judge and unsuc-
cessful 1987 Supreme Court nominee Robert Bork explains,

The United States was founded as what we now call a Madisonian

system, one which allows majorities to rule in wide areas of life
simply because they are majorities, but which also holds that indi-
viduals have some freedoms that must be exempt from majority
control. The dilemma is that neither the majority nor the minority
can be trusted to define the proper spheres of democratic authority
and individual liberty. The first would court tyranny by the major-
ity; the second tyranny by the minority."

When overturning legislation, the Court exercises a counter-

majoritarian power and substitutes its interpretation of the Constitution
for that of elected representatives. Theories or rationalizations of the
Court’s interpretation of the Constitution thus appear necessary to jus-
tify the Court’s countermajoritarian role in American politics, espe-
 B | The Politics of Constitutional Interpretation | 73

cially in the last fifty years as the Court increasingly overturned legisla-
tion in defense of civil rights and liberties.
In addition, in the aftermath of the American legal realist move-
ment, legal scholarship became more pluralistic and interdisciplinary.
Again quoting Judge Bork:

The fact is that the law has little intellectual or structural resistance
to outside influences, influences that should properly remain out-
side. The striking, and peculiar, fact . . . is that the law possesses
very little theory about itself. . . . This theoretical emptiness at its
center makes law, particularly Constitutional law, unstable, a ship
with a great deal of sail but a very shallow keel, vulnerable to the
winds of intellectual or moral fashion, which it then validates as the
commands of our most basic compact.”

Since World War II, legal scholars have turned not only toward moral
and political philosophy as a guide for constitutional interpretation and
the Court’s exercise of judicial review, but they have also called for the
development of a “political jurisprudence,’ combining normative theory
with empirical studies; proposed an economic approach to law, which
would make rights turn on cost-risk-benefit analysis;*! drawn on theories
of literary criticism; and advocated “legal pragmatism.” Still others in
the feminist, Critical Race Theory, and the Critical Legal Studies move-
ments attack theories of liberal legalism in an effort to deconstruct legal
reasoning and law to show its drawbacks for minorities, women, and the
poor.”
The rest of this section surveys and illustrates various theories of
constitutional interpretation in terms of two broad approaches that
have come to be known as interpretivism and noninterpretivism. Broadly
speaking, interpretivists hold that constitutional interpretation should
be limited solely to the text and historical context of particular provi-
sions of the Constitution and Bill of Rughts. By contrast, noninterpre-
tivists maintain that constitutional interpretation frequently requires
going beyond the text and historical context of specific provisions to
articulate and apply broader principles of constitutional politics. Nei-
ther approach is inextricably linked to either a liberal or a conservative
political philosophy; for example, a predominantly conservative Court
in the late nineteenth century invented and wrote into constitutional
law a “liberty of contract” to strike down progressive economic legisla-
tion (see Vol. 2, Ch. 3), while in the twentieth century a more lb-
eral Court proclaimed and enforced a “right of privacy” to overturn
legislation restricting the use of contraceptives and the availability of
abortions (see Vol. 2, Ch. 11). Moreover, the distinction between
interpretivists and noninterpretivists is one of degree, not a difference
in kind.
74 | THe SUPREME COURT AND CONSTITUTIONAL POLITICS

NOTES
Archibald Macleish
1. Felix Frankfurter, in Law and Politics, ed. E. Prichard, Jr., and
.
(New York: Harcourt, Brace, 1939), 6.
Court His-
2. See Robert H. Bork, “Styles in Constitutional Theory,” 1984 Supreme
torical Society Yearbook 53 (1985).
NC:
3. Joseph Story, Commentaries on the Constitution of the United States (Durham,
Carolina Academic Press, 1987), vi, reprint of 1833 ed.
4. Ibid., 135.
(London:
5. See, generally, Lord Lloyd, Lloyd’s Introduction to Jurisprudence, 5th ed.
(Oxford,
Stevens & Sons, 1985); H. L. A. Hart, Essays in Jurisprudence and Philosophy
ation of the
UK: Clarendon Press, 1983), Chs. 1-5, 13; William Nelson, Americaniz
Hor-
Common Law (Cambridge, MA: Harvard University Press, 1975); and Morton
tion ofAmerican Law, 1780-186 0 (Cambridg e, MA: Harvard Uni-
witz, The Transforma
versity Press, 1977).
6. Southern Pacific Co. v.Jensen, 244 U.S. 205 (1916).
7. Oliver W. Holmes, The Common Law (Boston: Little, Brown, 1881), 1.
8. Oliver W. Holmes, “The Path of Law,” 10 Harvard Law Review 39 (1897).
Formal-
9. See, generally, Morton White, Social Thought in America: The Revolt against
ism (New York: Viking Press, 1949); and Benjamin Twiss, Lawyers and the Constitution
(Princeton, NJ: Princeton University Press, 1942).
10. See Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, CT:
Yale University Press, 1922).
11. Louis Brandeis, “The Living Law,’ 10 Illinois Law Review 461 (1916).
12. See Wilfred Rumble, American Legal Realism (Ithaca, NY: Cornell University
Press, 1968).
13. See Jerome Frank, Law and the Modern Mind (New York: Coward-McCann,
1930), and Courts on Trial (Princeton, NJ: Princeton University Press, 1949).
14. Karl Llewellyn, “The Constitution as an Institution,” 34 Columbia Law Review
39-40 (1934).
15. See Benjamin Cardozo’s highly acclaimed The Nature of the Judicial Process (New
York: Yale University Press, 1921).
16. Letter to E. Corwin, November 5, 1942, in Harlan FE Stone Papers, Box 10, Li-
brary of Congress, Washington, DC.
17. Letter to Justice Black, December 15, 1939, in Stone Papers, Box 13.
18. Bork, “Styles in Constitutional Theory,” 53.
19. Robert H. Bork, “Tradition and Morality in Constitutional Law,’ in David M.
O’Brien, ed., Judges on Judging, 2nd ed. (Washington, DC: C.Q. Press, 2004), p. 158.
20. See Martin Shapiro, “Political Jurisprudence,” 52 Kentucky Law Review 294
(1964); Harry Stumpf, Martin Shapiro, David Danelski, Austin Sarat, and David
O’Brien, “Whither Political Jurisprudence?: A Symposium,’ 36 Western Political
Quarterly 533 (1983); and Rogers Smith, “Political Jurisprudence, the “New Institu-
tionalism, and the Future of Public Law,’ 82 American Political Science Review 89 (1988).
21. See, for example, Richard Posner, Economic Analysis of Law, 2d ed. (Boston: Lit-
tle, Brown, 1977). .

22. See William Bishin and Christopher Stone, Law, Language and Ethics (Mineola,
 B | The Politics of Constitutional Interpretation | 75

NY: Foundation Press, 1972); John Brigham, Constitutional Language (Westport, CT:
Greenwood Press, 1978); Leif Carter, Contemporary Constitutional Lawmaking (New
York: Pergamon, 1985); James White, The Legal Imagination (Chicago: University of
Chicago Press, 1973); James White, When Words Lose Their Meaning (Chicago: Uni-
versity of Chicago Press, 1984); Richard Posner, Law and Literature:A Misunderstood
Relation (Cambridge, MA: Harvard University Press, 1988); and James White, Justice
as Translation (Chicago: University of Chicago Press, 1990).
23. See David Kairys, ed., The Politics of Law, 3d ed. (New York: Pantheon, 1998);
and Editors of the Harvard Law Review, Essays on Critical Legal Studies (Cambridge,
MA: Harvard Law Review Association, 1986).

@ (1) THe Text AND HistoricaL CONTEXT

The Supreme Court has been criticized by presidents from Thomas

Jefferson to Ronald Reagan and George W. Bush for departing from a
“strict” or “literal” interpretation of the Constitution. During the 1968
presidential election campaign, for instance, Republican nominee
Richard Nixon attacked the “liberal jurisprudence” of the Warren
Court (1953-1969) and promised to appoint only strict construction-
ists to the bench. Strict constructionists hold that constitutional interpre-
tation should be confined to the “four corners” of the document, the
literal language of the text of the Constitution.
Within the Court, Chief Justice Roger Taney expressed a strong
version of strict constructionism in Dred Scott v. Sandford, 60 U.S. 393
(1857) (see Vol. 2, Ch. 12), when holding that blacks were not citizens
of the United States within the meaning of “citizens” in Article III:

No one, we presume, supposes that any change in public opinion

or feeling, in relation to this unfortunate race [of blacks], in the civ-
ilized nations of Europe or in this country, should induce the court
to give to the words of the Constitution a more liberal construction
in their favor than they were intended to bear when the instrument
was framed and adopted. . . .
It [the Constitution] speaks not only in the same words, but with
the same meaning and intent with which it spoke when it came
from the hands of its framers, and was voted on and adopted by the
people of the United States. Any other rule of construction would
abrogate the judicial character of this Court and make it the mere
reflex of the popular opinion or passion of the day.

This version of strict constructionism unrealistically (or disingenuously)

denies the basic choices involved in constitutional interpretation. For
example, much turns on whether the Court analyzes church-state con-
troversies from the perspective of the First Amendment’s free exercise
clause or its establishment clause (see Vol. 2, Ch. 6). When applying
 S
76 | THE SUPREME COURT AND CONSTITUTIONAL POLITIC

e searches and
the Fourth Amendment's guarantee against “unreasonabl
the requirements
seizures.” the Warren Court chose to enforce strictly
le cause clauses. By
specified in that amendment’s warrants and probab
uist Court
contrast, the Burger Court (1969-1986), and the Rehnq
by relying
(1986-2005), tended to give less force to those requirements
what 1s “reaso nable” under the
instead on the justices’ reading of
Fourth Amen dmen t
amendment’s reasonableness clause. Whether the
its warran ts
is enforced primarily in terms of its reasonableness clause or
ents a basic consti tution al choice with
and probable cause clauses repres
and law enforc ement in-
important consequences for individual rights
terests (see Vol. 2, Ch. 7).
st.” In
Justice Hugo Black claimed to be an “absolutist,” a “literali
his words:

without any
My view is, without deviation, without exception,
govern-
if’s, but’s, or whereas, that freedom of speech means that
ment shall not do anything to people, or, in the words of the
Magna Carta, move against people, either for the views they have
or the views they express or the words they speak or write. Some
people would have you believe that this is a very radical position,
and maybe it is. But all I am doing is following what to me is the
clear working of the First Amendment that “Congress shall make
no law . . . abridging the freedom of speech or of the press.”!

However, Justice Black acknowledged that the Constitution presents

some interpretive problems and constitutional choices. In the controversy
over the Court’s application of the Bill of Rights to the states under the
Fourteenth Amendment, for instance, Black became convinced that
those guarantees were included in the amendment’ privileges or immu-
nities clause, whereas other justices contended that they were included in
the Fourteenth Amendment’s due process clause (see Vol. 2, Ch. 4).
Justice Black’s absolutism was in response to the Court’s balancing of
First Amendment freedoms against governmental interests in national
security in cases like Dennis v. United States, 341 U.S! 494 (1951) (see
Vol. 2, Ch. 5), under the guise of the “clear and present danger”’ test.
He opposed the Court’s invention and use of such tests and metaphors.
Still, much of constitutional law consists in metaphors created by the
Court when explaining and applying constitutional provisions; con-
sider the debates over executive privilege (see Vol. 1, Ch. 4), states’
sovereignty (see Vol. 1, Ch. 7), the liberty of contract (see. Volnuz,
Ch. 3), the high wall of separation between church and state (see
Vol. 2, Ch. 6), or the controversy over whether the Constitution 1s
color-blind (see Vol. 2, Ch. 12).
Interpretivism is usually only the beginning, not the end, of con-
 B | The Politics of Constitutional Interpretation | 77

stitutional interpretation. The most frequently contested guarantees of

the Constitution are neither unambiguous nor amenable toa literal or
strict interpretation. What is the literal meaning of the reasonableness
clause of the Fourth Amendment or of the due process and equal pro-
tection clauses of the Fourteenth Amendment? Nor do interpretivists,
like Justice Black, deny First Amendment protection for posters and
songs on the ground that they are not strictly speaking “speech”; al-
though Black drew a line at extending protection to speech-plus-
conduct and “symbolic speech” (see Vol. 2, Ch. 5).
Crucial provisions in the Constitution have what philosophers call
an “open texture.”? They are framed in general terms that are non-
exhaustive of all future applications and have an essential incomplete-
ness in dictating unforeseeable applications. The commerce clause in
Article I, for example, gives Congress the power to regulate interstate
commerce but fails to define interstate commerce. No one today, though,
contends that interstate commerce should include only the methods of
transportation available in 1787 or exclude modes of commerce, such
as telecommunications, that were unforeseen by the Constitutional
Convention.
These are only some of the problems with strict constructionism, as
federal court of appeals Judge Richard Posner notes in an essay titled,
“What Am I? A Potted Plant? The Case against Strict Constructionism.”
Moreover, Posner underscores that nothing in the Constitution com-
mands the Court to construe either “strictly” or “broadly” the document:

Even the decision to read the Constitution narrowly, and thereby

“restrain” judicial interpretation, is not a decision that can be read
directly from the text. The Constitution does not say, “Read me
broadly,’ “Read me narrowly.’ That decision must be made a mat-
ter of political theory, and will depend on such things as one’s view
of the springs of judicial legitimacy and of the relative competence
of courts and legislatures in dealing with particular types of issues.’

Strict constructionism is incomplete as a theory of interpretation

and inadequately deals with the fact that the Constitution was framed
in generalities in order to express general principles. Because this is so,
interpretivists often turn to the historical context of the Constitution.
Consider, for example, the call for a jurisprudence of original intention by
Ronald Reagan’s attorney general, Edwin Meese III:

As the “faithful guardians of the Constitution,” the judges were ex-

pected to resist any political effort to depart from the literal provi-
sions of the Constitution. The text of the document and the
original intention of those who framed it would be the judicial
standard in giving effect to the Constitution. . . . [But] it seems fair
78 | THe SupREME CouRT AND CONSTITUTIONAL PoLiTICcs
SS ae

to conclude that far too many of the court’s opinions are, on the
whole, more policy choices than articulations of constitutional
principle. The voting blocs, the arguments, all reveal a greater alle-
giance to what the court thinks constitutes sound public policy
than a deference to what the Constitution—its text and inten-
tion—demands.*

Meese was not the first to contend that the text and the Framers’
intent should solely guide constitutional interpretation.” Nonetheless,
he sparked considerable debate and provoked Justice William J. Bren-
nan to respond in a speech, observing,

In its most doctrinaire incarnation, this view demands that Justices

discern exactly what the Framers thought about the question under
consideration and simply follow that intention in resolving the case
before them. It is a view that feigns self-effacing deference to the
specific judgments of those who forged our original social com-
pact. But in truth it is little more than arrogance cloaked as humil-
ity. It is arrogant to pretend that from our vantage we can gauge
accurately the intent of the Framers on application of principle to
specific, contemporary questions. All too often, sources ofpotential
enlightenment such as records of the ratification debates provide
sparse or ambiguous evidence of the original intention. Typically,
all that can be gleaned is that the Framers themselves did not agree
about the application or meaning of particular constitutional provi-
sions, and hid their differences in cloaks of generality. Indeed, it is
far from clear whose intention is relevant—that of the drafters, the
‘congressional disputants, or the ratifiers in the states’—or even
whether the idea of an original intention is a coherent way of
thinking about a jointly drafted document drawing its authority
from a general assent of the states. And apart from the problematic
nature of the sources, our distance of two centuries cannot but
work as a prism refracting all we perceive. .. .

We current Justices read the Constitution in the only way that we

can: as Twentieth Century Americans. We look to the history of
the time of framing and to the intervening history of interpretation.
But the ultimate question must be, what do the words of the text
mean in our time. For the genius of the Constitution rests not in
any static meaning it might have had in a world that is dead and
gone, but in the adaptability of its great principles to cope with
current problems and current needs. What the Constitution’s fun-
damentals meant to the wisdom of other times cannot be their
measure to the vision of our time. Similarly, what those fundamen-
tals mean for us, our descendants will learn, cannot be the measure
to the vision of their time.°

As Justice Brennan suggests, there are methodological difficulties

with a “jurisprudence of original intention.” For one thing, determin-
 B | The Politics of Constitutional Interpretation | 79

ing “intent” is a subjective enterprise; it proposes to discover what the

Framers had in mind when drafting and ratifying the Constitution. But
as already noted, the Framers often disagreed and were forced to com-
promise on the language of the Constitution. At best, this approach
considers the intentions of the drafters and ratifiers of the Constitution.
And, who are “the Framers’? Should the views of only the thirty-nine
signers of the document be considered, or should those of the other
sixteen delegates who left before the Constitutional Convention con-
cluded or refused to sign the document be considered as well? There
are also compelling reasons for including the views of delegates to the
thirteen state ratifying conventions, for as a result of those conventions
the Bill of Rights was immediately added to the Constitution (see
Vol. 2y.Ghy4y, :
Problems with discovering the intentions of the Framers also arise
because the proceedings .of the Constitutional Convention were con-
ducted in secrecy and records of that convention and those in the states
are far from complete and reliable. Moreover, it is debatable that the
Framers intended their intentions to limit or guide constitutional inter-
pretation.” Not until 1819 were speeches, resolutions, and votes of the
delegates to the Constitutional Convention published. Almost another
decade passed before Jonathan Elliot began publishing his collection of
the debates in the state ratifying conventions. James Madison, who
took notes of the debates at the Constitutional Convention and whose
notes provide the only full record, refused to allow the publication of
his notes until 1840, after his death. Madison insisted that the intent
and literal reading of the text would be a “hard rule of construction.”
Instead, among the “obvious and just guides applicable to the Constn.
of the U.S.,” he listed

1. the evils & defects for curing which the Constitution was called
for & introduced. 2. The comments prevailing at the times it was_
adopted. 3. The early, deliberate & continued practice under the
Constitution as preferable to constructions adopted on the spur of
occasions, and subject to the vicissitudes of party or personal con-
siderations.”

In addition, it bears noting that in its first fifty years the Supreme
Court infrequently cited works such as The Federalist Papers in its opin-
ions. Between 1790 and 1839, The Federalist Papers were cited in only
fifteen decisions; by comparison, since 1950 they were cited in more
than 100 cases.”
Because .of these difficulties, Chief Justice William Rehnquist, Jus-
tice Antonin Scalia, Judge Bork, and others associated with interpre-
tivism and the “originalist” approach to constitutional interpretation
80 | THE SUPREME CourRT AND CONSTITUTIONAL POLITICS
e
oe ee S

more modestly contend that the Court should remain faithful to the
“original understanding” or “original meaning”" of the governing
principles or political philosophy of the Framers. They do not claim to
be uncovering the Framers’ subjective intentions but rather limiting the
interpretation of constitutional provisions to those principles that the
Framers might be fairly said to have embraced when drafting and rati-
fying the Constitution. Judge Bork explains that

[a] major problem with the idea of original intention is that the
Framers articulated their principles in light of the world they knew,
a world very different in important respects from that in which
judges must decide cases today. . . . In order to protect the freedoms
the Framers envisaged, the judge must discern a principle in the
applications the Framers thought of and then apply that principle
to circumstances they did not foresee."

Nor do they claim that originalism eliminates the burden of making

basic constitutional choices. Rather, they argue that this approach is su-
perior to other noninterpretivist approaches because it ostensibly sharply
limits the exercise of judicial review and thus proves more responsive to
criticisms of the Court’s countermajoritarian power. In Justice Scalia’s
words,

The principal theoretical defect of nonoriginalism, in my view, 1s

its incompatibility with the very principle that legitimizes judicial
review of constitutionality. Nothing in the text of the Constitution
confers upon the courts the power to inquire into, rather than pas-
sively assume, the constitutionality of federal statutes. . . . Quite to
the contrary, the legislature would seem a much more appropriate
expositor of social values, and its determination that a statute is
compatible with the Constitution should, as in England, prevail."”

Justice Scalia concedes that originalism poses methodological prob-

lems in practice but nonetheless claims that it is “the lesser evil” in
constitutional interpretation:

[It] is true that it is often exceedingly difficult to plumb the origi-

nal understanding of an ancient text. Properly done, the task re-
quires the consideration of an enormous mass of material—in the
case of the Constitution and its Amendments, for example, to men-
tion only one element, the records of the ratifying debates in all the
states. Even beyond that, it requires an evaluation of the reliability
of that material—many of the reports of the ratifying debates, for
example, are thought to be quite unreliable. And further still, it re-
quires immersing oneself in the political and intellectual atmo-
sphere of the time—somehow placing out of mind knowledge that
we have which an earlier age did not, and putting on beliefs, atti-
 B | The Politics of Constitutional Interpretation | 81

tudes, philosophies, prejudices and loyalties that are not those of

our day. It is, in short, a task sometimes better suited to the histo-
rian than the lawyer... .

I can be much more brief in describing what seems to me the sec-

ond most serious objection to originalism. In its undiluted form, at
least, it is medicine that seems too strong to swallow. Thus, almost
every originalist would adulterate it with the doctrine of stare decisis
[which holds that prior decisions should be respected]. . . . But stare
decisis alone is not enough to prevent originalism from being what
many would consider too bitter a pill. What if some state should en-
act a new law providing publié lashing, or branding of the right
hand, as punishment for certain criminal offenses? Even if it could
be demonstrated unequivocally that these were not cruel and un-
usual measures [which are forbidden under the Eighth Amendment]
in 1791, and even though no prior Supreme Court decision has
specifically disapproved them, I doubt whether any federal judge—
even among the many ‘who consider themselves originalists—would
sustain them against an Eighth Amendment challenge. It may well
be . . . that this cannot legitimately be reconciled with originalist
philosophy—that it represents the unrealistic view of the Constitu-
tion as a document intended to create a perfect society for all ages to
come, whereas in fact it was a political compromise that did not pre-
tend to create a perfect society even for its own age (as its toleration
of slavery, which a majority of the founding generation recognized
as an evil, well enough demonstrates). Even so, I am confident that
public flogging and hand-branding would not be sustained by our
courts, and any espousal of originalism as a practical theory of exe-
gesis must somehow come to terms with that reality.”

Justice Scalia’s discussion of public flogging and the Eighth

Amendment is revealing not only in indicating that he is (in his words)
“a faint-hearted originalist;’ because he would hold public flogging
unconstitutional despite the fact that the Framers permitted that prac-
tice. The original understanding of constitutional guarantees, as Justice
Anthony Kennedy observed during his 1987 Senate confirmation
hearings, is a “necessary starting point,’ not an “adequate methodol-
ogy” or “mechanical process” that “tells us how to decide a case.”
What Scalia’s discussion also points out is that crucial concepts in the
Constitution give rise to competing conceptions and political philoso-
phies."* Scalia would not limit the concept of cruel and unusual punish-
-ment in the Eighth Amendment to the Framers’ conception of that
punishment in 1791. Nor would Scalia go as far as Justice Brennan in in-
terpreting the Eighth Amendment to bar capital punishment based on
his “constitutional vision of human dignity” (see Vol. 2, Ch. 10). But,
why not: What divides justices like Scalia, Brennan, and Souter is their
underlying judicial and political philosophies of the Constitution and
82 | THE SupREME CouRT AND CONSTITUTIONAL POLITICS

the exercise of judicial review. So too, just as the Federalists and Anti-
Federalists had competing political visions of the separation of powers
and federalism, for example, even originalists such as Chief Justice Rehn-
quist and Justices Scalia and Thomas may have rival conceptions and in-
terpretations of the separation of powers; see, for instance, Morrison v.
Olson, 487 U.S. 654 (1988) (see Vol. 1, Ch. 4), and McIntyre v. Ohio Elec-
tions Commission, 514 U.S. 334 (1995) (excerpted in Vol. 1, Ch. 8).
An underlying problem for interpretivists and noninterpretivists 1s
how broadly or narrowly they conceive and express the concept or
principle of a constitutional provision. Consider, for example, the con-
stitutional choices presented in interpreting and applying the Fourth
Amendment and the equal protection clause of the Fourteenth Amend-
ment.
The Fourth Amendment guarantees the people a right “to be se-
cure in their persons, houses, papers, and effects against unreasonable
searches and seizures.” That guarantee was interpreted in Olmstead v,
United States, 277 U.S. 438 (1928) (see Vol. 2, Ch. 7), not to cover
wiretaps because a majority of the Court limited the amendment’s
application to Framers’ conception of “unreasonable searches and
seizures,” giving the lowest level of generality to the amendment’s prin-
ciple, so as to bar only actual physical trespass by police and the seizure
of tangible materials. By contrast, dissenting Justice Louis Brandeis ar-
gued for a broader conception of the amendment and a more general
principle of privacy in the home that would have extended the guaran-
tees of the amendment to cover electronic surveillance. Almost forty
years later, in Katz v. United States, 389 U.S. 347 (1967) (see Vol. 2,
Ch. 7), the Court finally embraced the broader principle of Fourth
Amendment-protected privacy.
The Fourteenth Amendment guarantees “the equal protection of
the laws.” The principle of equality embodied there might be inter-
preted to bar only discrimination against blacks, because in the histori-
cal context of the post—Civil War period the Thirty-ninth Congress
was indisputably primarily concerned with ensuring that states did not
deny certain rights of newly freed blacks. However, the principle of
equality has been given broader application and a higher level of gener-
ality so as to bar other kinds of racial discrimination against, for exam-
ple, Hispanics and Asians. Even more broadly (as further discussed in
Vol. 2, Ch. 12), the amendment has been construed to forbid forms of
nonracial discrimination against women and homosexuals. But how
and on what basis may this broader application of the equal protection
clause be defended and the Court’s exercise of judicial review in this
way justified?
In sum and in Judge Bork’s words, “The question is always the
 B | The Politics of Constitutional Interpretation | 83

level of generality the judge chooses when he states the idea or object
of the Framers.”" Interpretivists, no less than noninterpretivists, cannot
evade making basic constitutional choices in their conceptions and for-
mulations of the underlying principles of constitutional provisions.

NotES

1. Hugo Black, A Constitutional Faith (New York: Knopf, 1968), 45.

2. See H. L. A. Hart, The Concept of Law (Oxford, UK: Clarendon Press, 1961),
124-132.
3. Richard Posner, “What Am I? A Potted Plant?” The New Republic, Sept. 28, 1987, 23.
4. Edwin Meese, “The Attorney General’s View of the Supreme Court: Toward a
Jurisprudence of Original Intention,’ in Special Issue, Law and Public Affairs, ed.
Charles Wise and David O’Brien, 45 Public Administration Review 701 (1985).
5. See also Raoul Berger, Government by Judiciary (Cambridge, MA: Harvard Univer-
sity Press, 1977); and Walter Berns, Taking the Constitution Seriously (New York: Si-
mon & Schuster, 1987).
6. William J. Brennan, Jr., “The Constitution of the United States: Contemporary
Ratification,’ Georgetown University, Washington, DC (Oct. 12, 1985); reprinted in
David M. O’Brien, ed., Judges on Judging, 2d ed. (Washington, DC: C.Q. Press,
2004), p. 183.
7. See H. Jefferson Powell, “The Original Understanding of Original Intent,’ 98
Harvard Law Review 885 (1985); and James Hutson, “The Creation of the Constitu-
tion: The Integrity of the Documentary Record,” 65 Texas Law Review 1 (1986).
8. Quoted in Robert Morgan, James Madison on the Constitution and the Bill of Rights
(Westport, CT: Greenwood Press, 1988), 196-197.
9. See James Wilson, “The Most Sacred Text: The Supreme Court’s Use of The Fed-
eralist Papers,’ 1985 Brigham Young University Law Review 65 (1985).
10. See Antonin Scalia, “Originalism: The Lesser Evil,” 57 Cincinnati Law Review
849 (1989); reprinted in O’Brien, Judges on Judging, p. 170.
11. Robert Bork, “Foreword” to Gary McDowell, The Constitution and Contemporary
Constitutional Theory (Cumberland, VA: Center for Judicial Studies, 1985), x.
12. Scalia, “Originalism,” 854.
13. Scalia, “Originalism,’ 856-857.
14. On the distinction between concepts and conceptions, see Ronald Dworkin,
Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 135-137.
15. Bork, “Foreword,” x.

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Amsterdam, Anthony, and Bruner, Jerome. Minding the Law: How Courts Rely on
Storytelling, and How Their Stories Change the Ways We Understand the Law—And Our-
selves, Cambridge, MA: Harvard University Press, 2000.
84 | THe SUPREME CourRT AND CONSTITUTIONAL POLITICS

The Supreme Court, 2007. (Collection of the Supreme Court of the United States.)

Barber, Sotirios. The Constitution ofJudicial Power. Baltimore: Johns Hopkins Univer-
sity Press, 1993.
Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment.
Cambridge, MA: Harvard University Press, 1977.
Berns, Walter. Taking the Constitution Seriously. New York: Simon & Schuster, 1987.
Bickel, Alexander. The Morality of Consent. New Haven, CT: Yale University Press,
17D:
Black, Hugo. A Constitutional Faith. New York: Knopf, 1968.
Bork, Robert. The Tempting ofAmerica. New York: Free Press, 1989.
Brandwein, Pamela. Reconstructing the Reconstruction: The Supreme Court and the Produc-
tion ofHistorical Truth. Durham, NC: Duke University Press, 1999.
Crapanzano, Vincent. Serving the Word: Literalism in America from the Pulpit to the Bench.
New York: New Press, 2000.

Cogan, Neil, ed. The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins.
New York: Oxford University Press, 1997.
Gibson, Alan. Interpreting the Founding. Lawrence: University Press of Kansas, 2006.
Goldford, Dennis. The American Constitution and the Debate over Originalism. New
York: Cambridge University Press, 2005.
Harris, William FE The Interpretable Constitution. Baltimore: Johns Hopkins University
Press, 1993:

Jaffa, Harry V. Original Intent and the Framers of the Constitution. Washington, DC:
Regnery Gateway, 1994.
. Storm over the Constitution. Lanham, MD: Lexington Books, 1999.

Levy, Leonard. Original Intent and the Framers’ Constitution. Chicago: Ivan Dee, 2000.
 B | The Politics of Constitutional Interpretation | 85

Lynch, Joseph. Negotiating the Constitution: The Earliest Debates over Original Intent.
Ithaca, NY: Cornell University Press, 1999.
O’Neill, Jonathan. Originalism in American Law and Politics. Baltimore: Johns Hopkins
University Press, 2005.
Rakove, Jack. Original Meanings: Politics and Ideas in the Making of the Constitution.
New York: Knopf, 1996.
, ed. Interpreting the Constitution: The Debate over Original Intent. Boston:
Northeastern University Press, 1990.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ:
Princeton University Press, 1997.
Sunstein, Cass. Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for Amer-
ica. New York: Basic Books, 2005.
Tamanaha, Brian. On the Rulé of Law: History, Politics, Theory. New York: Cambridge
University Press, 2004. -
Thayer, Bradley. Thayer’s Legal Essays. Boston: Boston Book Company, 1908.
Whittington, Keith. Constitutional Interpretation: Textual Meaning, Original Intent, and
Judicial Review, Lawrence: University Press of Kansas, 1999.

m@ (2) IN AND BEYOND THE TEXT

Noninterpretivism differs from interpretivism in the sources and kinds

of argumentation marshaled in support of giving broader scope or
higher levels of generality to constitutional principles. Whereas inter-
pretivists confine analysis to the text and historical context of a provi-
sion, noninterpretivists tend to formulate more broadly the underlying
principle of a constitutional provision. Noninterpretivists may turn to
history and social science, for example, or appeal to natural law, natural
rights, and moral or political philosophy, or call on process-oriented
theories of judicial review and arguments about the structure of the
Constitution.
Historical, economic, technological, and political changes are ob-
viously relevant to constitutional interpretation. Yet, when and how
should the Court use history? The Sixth Amendment, for instance,
guarantees criminal defendants the right to a jury trial but does not de-
fine jury, When confronted with the question of whether juries must
consist of twelve members, in Thompson v. Utah, 170 U.S. 343 (1882),
the Court simply ruled that the Sixth Amendment incorporated the
traditional common-law practice of twelve-member juries because that
practice was firmly rooted in English history and familiar to the
Framers of the Bill of Rights. The Court may also take judicial notice of
historica: events without the benefit of their being adjudicated, such as
the fact that there was an economic depression in the 1930s. Chief Jus-
86 | THe SupREME CourT AND CONSTITUTIONAL POLITICS

tice Morrison Waite drew heavily on history as a guide when uphold-

ing under the commerce clause the power of Congress, over that of the
states, to regulate interstate telegraph lines, in Pensacola Telegraph Co. v.
Western Union Telegraph, Co., 96 U.S. 1 (1877):

The powers thus granted are not confined to the instrumentalities

of commerce . . . known or in use when the Constitution was
adopted, but they keep pace with the progress of the country, and
adapt themselves to the new developments of time and circum-
stance. They extend from the horse with its rider to the stage-
coach, from the sailing-vessel to the steamboat . . . and from the
railroad to the telegraph, as these new agencies are successively
brought into use to meet the demands of increasing population and
wealth. .. . As they were intrusted to the general government for
the good a the nation, it is not only the right, but the duty, of
Congress to see to it that intercourse among the States and the
transmission of intelligence are not obstructed or unnecessarily en-
cumbered by State legislation.

Justice Holmes took an even more expansive view of the use of history
in the famous case dealing with the national government’s treaty-
making power in Missouri v. Holland, 252 U.S. 416 (1920) (see Ch. 3).
Note his observation that “[t]he case before us must be considered in
light of our whole experience and not merely in that of what was said
a hundred years ago.”
The Court’s reliance on history is not unproblematic, however.'
Justices are not trained as historians and they may confront problems in
evaluating different schools of history and the works of revisionist his-
torians. More fundamentally, Chief Justice William Rehnquist, among
others, cautioned against turning to history because it encourages the
notion that the “Constitution is a living document” and that the Court
ought to keep the Constitution in “tune with the times.” In Rehn-
quist’s view, there are three serious flaws with the notion of a living
Constitution:

First, it misconceives the nature of the Constitution, which was de-

signed to enable the popularly elected branches of government, not
the judicial branch, to keep the country abreast of the times. Sec-
ond, [it] ignores the Supreme Court’s disastrous experiences when
in the past it embraced contemporary, fashionable notions of what
a living Constitution should contain. Third, however socially de-
sirable the goals to be advanced, . . . advancing them through a
free-wheeling, non-elected judiciary is quite unacceptable in a
democratic society.’
Social science may prove a no less controversial source of support for
the Court’s decisions. In the landmark school desegregation ruling-in
 B | The Politics of Constitutional Interpretation | 87

Brown v. Board of Education, 347 U.S. 483 (1954) (see Vol. 2, Ch. 12),
for example, the Court cited in footnote 11 several social science stud-
ies in support of overturning the racial doctrine of “separate but equal
facilities.” Among those studies was Swedish economist and sociologist
Gunnar Myrdal’s book An American Dilemma (1944), the premier work
on race relations in America. The Court’s mention of An American
Dilemma intensified the antagonism of powerful southerners, such as
the South Carolina governor and former Supreme Court Justice
James F Byrnes and Mississippi Senator James O. Eastland. They and
others attacked the Court for citing the work of “foreign sociologists,”
bad social science research, and, most of all, for drawing on social sci-
ence in the first place, instead of simply sticking to the text and histor-
ical context of the Constitution._
The Court’s use of social science materials may raise questions
about judicial competence and the legitimacy of basing decisions on
social science evidence.’ Consider Williams v. Florida, 399 U.S. 78
(1970) (see Vol. 2, Ch. 9), upholding juries composed of fewer than
twelve members, despite history and the ruling in Thompson v. Utah
that the Sixth Amendment jury consisted “as it was at common law, of
twelve persons, neither more nor less.” Williams proved controversial
because the Court held on the basis of psychological and sociological
studies of small-group behavior that juries of fewer than twelve
members were “functionally equivalent” to traditional twelve-member
juries.
Natural law and natural rights, or what Edward Corwin termed, the
“higher law” background of the Constitution, is an older tradition and
source of constitutional interpretation.* The Framers took seriously
natural law and natural rights in maintaining that individuals enjoy cer-
tain rights prior to the establishment of government and which may
not be denied by government. Federalists, though, contended that the
Constitution adequately safeguarded natural rights by creating a
government of limited and specifically delegated powers. But the Anti-
Federalists pushed for the addition of a bill of rights containing a state-
ment of natural rights (see Vol. 2, Ch. 4).
Although the natural rights tradition runs throughout much of
constitutional law, controversy has ensnarled appeals to natural law and
rights ever since Justices Iredell and Chase debated, in Calder v. Bull,
3 Dall. 398 (1798), whether the Court has the power to strike down
legislation based on principles of natural justice. Chief Justice John
Marshall faced the problem of enforcing his own acceptance of natural
rights against-the claims of Spanish and Portuguese slave traders in The
Antelope Case, 23 U.S. 66 (1825). Slaves had been seized by pirates,
who were later captured by an American naval ship, and the slave
88 | THe SupREME CourT AND CONSTITUTIONAL POLITICS
ee eS ee

traders and owners sued to recover their “property.” Of slavery and the
slave trade, Chief Justice Marshall observed “[t]hat it is contrary to the
law of nature will scarcely be denied. That every man has a natural
right to the fruits of his own labor, is generally admitted, and [that] no
other person can rightfully deprive him of those fruits, and appropriate
them against his will, seems to be the necessary result of this admis-
sion.” But Marshall concluded that

[w]hatever might be the answer of a moralist to this question, a ju-

rist must search for its legal solution, in those principles of action
which are sanctioned by the usages, the national acts, and the gen-
eral assent, of that portion of the world of which he considers him-
self as a part, and to whose law‘ the appeal is made. If we resort to
this standard as the test of international law, the question . . . is de-
cided in favor of the legality of the [slave] trade.

Other members of the Court, though, have sided with Justice

Chase’s position in Calder that with respect to “certain vital principles
. [aln act of the Legislature (for I cannot call it a Jaw) contrary to the
great first principles of the social compact, cannot be considered arightful
exercise of legislative authority” and, therefore, must be overturned.
Consider the debate over fundamental rights and the formulations and
standards used by the Court when interpreting the Fourteenth Amend-
ment’s due process clause (see Vol. 2, Ch. 4). In Hurtado v. California,
110 U.S. 516 (1884) (see Vol. 2, Ch. 4), for example, Justice Stanley
Matthews speaks of the “wellsprings of justice.’ In Adamson v. Califor-
nia, 332 U.S. 46 (1947) (see Vol. 2, Ch. 4), and Rochin v. California,
342 US. 165 (1952) (see Vol. 2, Ch. 4), Justice Frankfurter invokes
“the shocks the conscience test” and “fundamental fairness standard”
for determining what process is due under the due process clause.
The principal criticism of “natural law formulations” is levied in
opinions by Justice Hugo Black, particularly in his dissent from the
Court’s recognition of a right of privacy in Griswold v. Connecticut,
381 U.S. 479 (1965) (see Vol. 2, Ch. 4), where he observes that

[o]ne of the most effective ways of diluting or expanding a consti-

tutionally guaranteed right is to substitute for the crucial word or
words of a constitutional guarantee another word for the word or
words, more or less flexible and more or less restricted in meaning.
. . . Use of any such broad, unbounded judicial authority would
make this Court’s members a day-to-day constitutional convention.

This criticism of the Court for imposing its own substantive value
choices applies as well to those arguing that the Court should draw on
moral and political philosophy. Yet Professor Ronald Dworkin and other
 B | The Politics of Constitutional Interpretation | 89

® CONSTITUTIONAL HISTORY

What Is the Constitution? Could a Constitutional

Amendment Violate the Constitution?

What is the Constitution? Could a constitutional amendment violate

the Constitution or fundamental principles of a constitution? These ques-
tions continue to be debated, especially in countries such as Germany and
India that have constitutional provisions forbidding, or their high courts have
interpreted their constitutions to forbid, amendments infringing on funda-
mental principles such as “human dignity.”
The German Constitutional Gourt, for instance, struck down a provi-
sion of its Constitution in the Southwest Case, 1 BverfGE 14 (1951).! After
World War II, the occupation forces divided two states, Baden and Wurt-
temberg, into three for the purposes of administration. When the new Con-
stitution of the Federal Republic of Germany went into effect in 1949, these
three territories became lander (states) with their own constitutions. Article
118 of Germany’s Basic Law, however, provided that these three territories
could be reorganized according to their own agreement or, if they failed to
reach an agreement, by federal legislation and a referendum of the people.
They were unable to reach an agreement and in 1951 the parliament passed
two reorganization laws, creating a single lander to be called Baden-
Wurttemberg. Baden immediately challenged the constitutionality of these
laws on the ground that they diminished Baden’s status as a lander and
treated it unfairly and unequally by calling for a referendum of the people
instead of just its own population. In holding unconstitutional Article 118,
the German court observed:
An individual constitutional provision cannot be considered as an
isolated clause and interpreted alone. A constitution has an inner
unity, and the meaning of any one part is linked to that of other
provisions. Taken as a unit, a constitution reflects certain over-
arching principles and fundamental decisions to which individual
provisions are subordinate. Article 79, paragraph 3, makes it clear
that the Basic Law agrees with the statement of the Bavarian Con-
stitutional Court:
That a constitutional provision itself may be null and void, is not
conceptually impossible just because it is part of the constitution.
There are constitutional principles that are so fundamental and to
such an extent an expression of a law that precedes even the consti-
tution that they also bind the framer of the constitution, and other
constitutional provisions that do not rank so high may be null and
void because they contravene these principles. . . .
90 | THe SupREME CourT AND CONSTITUTIONAL POLITICS
ra
Oe

a S
From this rule of interpretation, it follows that any constitutional
provision must be interpreted in such a way that it is compatible
with those elementary principles and with the basic decisions of the
framer of the constitution. This rule applies also to Article 118,
sentence 2.

In the United States, some legal scholars also contend that the proposed
constitutional amendment to forbid desecration of the American flag would
violate the Constitution. Following the Supreme Court’s ruling in Texas ».
Johnson (excerpted in Vol. 2, Ch. 5), holding that flag-burning is protected
speech under the First Amendment, Congress passed the Federal Flag Pro-
tection Act of 1989. That statute was then struck down in United States v.
Eichman (1990). Following those rulings, an attempt in 1995 to override
the Court’s decisions by means of a constitutional amendment failed to pass
the Senate by three votes. In 1997, the House of Representatives passed
another proposed constitutional amendment and the Senate was closely di-
vided on whether to send it to the states for ratification. Moreover, 49 state
legislatures, far more than the 38 required to amend the Constitution, had
indicated that they would ratify a constitutional amendment outlawing flag-
burning. The Senate has reconsidered the matter several times but failed to
muster the 67 votes needed for passage.
The constitutionality of constitutional amendments was raised pre-
viously in challenges to the validity of the Eighteenth and Nineteenth
Amendments. The Eighteenth Amendment, ratified in 1919, prohibited the
manufacturing, sales, and transportation of intoxicating liquors; it was later
repealed by the Twenty-first Amendment in 1933. The Nineteenth Amend-
ment, ratified in 1920, extended federal and state voting rights to women.
Shortly after the ratification of the Eighteenth Amendment, the Court
consolidated seven lawsuits challenging the amendment’s constitutionality in
The National Prohibition Cases, State of Rhode Island v. Palmer, 253 U.S. 350
(1920). When arguing for Rhode Island, Herbert Rice contended that “the
Amendment is an invasion of the sovereignty of the complaining State and
her people . . 2” Continuing, he argued:
It is “This Constitution” that may be amended. “This Consti-
tution” is not a code of transient laws but a framework of govern-
ment and an embodiment of fundamental principles. By an
amendment, the identity or purpose of the instrument is not to be
changed; its defects may be cured,.but “This Constitution” must
remain. It would be the greatest absurdity to contend that there was
a purpose to create a limited government and at the same time to
confer upon that government a power to do away with its own lim-
itations. sn.
In the case of this so-called amendment, the representatives of
the people of the United States have attempted, not to amend the
Constitution of the United States, but to amend the constitution of
every State in the Union. If the amending function is construed as _
 B | The Politics of Constitutional Interpretation | 91
Ce
extensive with absolute sovereignty, then the basis of our political
system is no longer the right of the people of a State to make and
alter their constitution, for their political institutions are at the
mercy of others and may be changed against their will. . . .
Attorneys Elihu Root and William D. Guthrie also sought to persuade
the Court of the amendment’s unconstitutionality, arguing:

If, as contended by the defendants, the power of amendment

vested in Congress and three-fourths of the state legislatures be ab-
solute and unrestricted, then there would be no limitation whatever
upon their legislative authority. They could then by amendment es-
tablish a state religion, or oppress or discriminate against any de-
nomination, or authorize the taking away of life, liberty and
property, without due process of law, etc., etc. This would destroy
the most essential limitation upon power under the American sys-
tem of government, which is that the rights of the individual citi-
zen shall be protected by withholding from the legislative function
the power to do certain things inconsistent with individual liberty.
_ This was the reason of the irresistible demand for the first ten
amendments... .

By contrast, Solicitor General Alexander King countered, first, that

whether the amendment was within the amending power of Article V and
whether it in fact had been ratified “are questions committed by the Consti-
tution to the political branch and not to the judicial branch of the Govern-
ment.” Second, “It has always been understood that there is no limitation
upon the character of amendments which may be adopted, except such lim-
itations as are imposed by Article V itself... . The fact that the Eighteenth
Amendment confers upon Congress a power which had previously belonged
exclusively to the States does not prevent that Amendment from being
within the amending power conferred by Article V of the Constitution.” Fi-
nally, he concluded: “‘No State by any provision of its laws or its constitution
can make the ratification of an amendment to the Constitution of the United
States by its legislature subject to a referendum vote of the people. The only
method of ratification mentioned in the Constitution is through representa-
tives assembled either in the legislature or a convention called for that pur-
pose.”
The arguments of the solicitor general prevailed and in a brief opinion
for the Court Justice Van Devanter stated only “the conclusions of the
Court,’ not its reasoning. Subsequently, the Nineteenth Amendment was
challenged on the grounds that it was enacted without Maryland’s consent
and that state’s constitution limited suffrage to men. Writing for the Court
‘in Leser v. Garnett, 258 U.S. 130 (1922), Justice Brandeis dismissed that claim
as well.’
Still, some scholars continue to maintain that amendments, such as the
proposed” one’ outlawing flag desecration, might run afoul of underlying
constitutional principles. For further discussion, see Walter Murphy, “An
SA
a
92 | Tie SupreME Courr AND CONSTITUTIONAL POLITICS

eT
Ordering of Constitutional Values,” 53 Southern California Law Review 757
The Theory and Prac-
(1984); Sanford Levinson, ed., Responding to Imperfection:
tice of Constitutional Amendment (Princeton, NJ: Princeton University Press,
1995); and the Constitutional History Boxes in Chapter 6.
1. The Southwest Case is translated and excerpted in Walter F Murphy and Joseph
Tanenhaus, eds., Comparative Constitutional Law: Cases and Commentaries (New York:
St. Martin’s Press, 1977). See also Article 117 Case, 3 BverfGE 225 (1953); Privacy in
Communications (Klass) Case, 30 BverfGE 1 (1970); and Donald Kommers, ed., The
Constitutional Jurisprudence of the Federal Republic of Germany, 2d ed. (Durham, NC:
Duke University Press, 1997).
2. See also Schneiderman v. United States, 320 U.S. 118 (1943).

LEE

contemporary legal scholars call for “a fusion of constitutional law and

moral theory” or political philosophy.* Contemporary legal scholarship
is indeed marked by a proliferation of expressly normative theories that
would rationalize and guide constitutional interpretation according to
“abstract beliefs about morality and justice,” the “voice of reason,”’
296 997 «<6
“a
moral patrimony” implicit in “our common heritage,”* “the circum-
stances and values of the present generation,” “conventional moral-
ity” “public morality?! “constitutional morality,’ “fundamental
values.’ and the “essential principles of justice,’'* or “the idea of
progress.”"* But this movement toward more specialized and abstract
theories of constitutional interpretation raises the ante for reaching
consensus within the Supreme Court and the country."
Interpretivists counter that the turn to moral and political philoso-
phy only exacerbates the problems of constitutional interpretation and
the countermajoritarian difficulty of judicial review. As Stanford Uni-
versity Law School professor John Hart Ely cleverly put it, “The Con-
stitution may follow the flag, but is it really supposed to keep up with
the New York Review of Books?” Judge Bork raises other concerns:

The abstract, universalistic style of legal thought has a number of

dangers. For one thing, it teaches disrespect for the actual institu-
tions of the American polity. These institutions are designed to
achieve compromise, to slow change, to dilute absolutisms. They
embody wholesome inconsistencies. They are designed, in short, to
do things that abstract generalizations about the just society tend to
bring into contempt."

Interpreting the Constitution, nevertheless, presupposes a judicial

and political philosophy and poses inescapable questions of substantive
value choices. As Justice Brennan explains,
 B | The Politics of Constitutional Interpretation | 93

Faith in democracy is one thing, blind faith quite another. Those

who drafted our Constitution understood the difference. One cannot
read the text without admitting that it embodies substantive choices;
it places certain values beyond the power of any legislature. .

To remain faithful to the content of the Constitution, therefore, an

approach to interpreting the text must account for the existence of
these substantive value choices, and must accept the ambiguity in-
herent in the effort to apply them to modern circumstances. The
Framers discerned fundamental principles through struggles against
particular malefactions of the Crown; the struggle shapes the par-
ticular contours of the articulated principles. But our acceptance of
the fundamental principles has not and should not bind us to those
precise, at times anachronistic, contours. Successive generations of
Americans have continued to respect these fundamental choices
and adopt them as their own gtiide to evaluating quite different his-
torical practices. Each generation has the choice to overrule or add
to the fundamental principles enunciated by the Framers; the Con-
stitution can be amended or it can be ignored. Yet with respect to
its fundamental principles, the text has suffered neither fate. . . .
The Constitution on its face is, in large measure, a structuring text,
a blueprint for government. And when the text is not prescribing
the form of the government it is limiting the powers of that
government. The original document, before addition of any of the
amendments, does not speak primarily of the rights of man, but of
the abilities and disabilities of government. When one reflects upon
the text’s preoccupation with the scope of government as well as its
shape, however, one comes to understand that what this text is
about is the relationship of the individual and the state. The text
marks the metes and bounds of official authority and individual au-
tonomy. When one studies the boundary that the text marks out,
one gets a sense of the vision of the individual embodied in the
Constitution.

As augmented by the Bill of Rights and the Civil War Amendments,

this text is a sparking vision of the supremacy of the human dignity
of every individual. This vision is reflected in the very choice of
democratic self-governance: the supreme value of a democracy 1s
the presumed worth of each individual. . . . It is a vision that has
guided us as a people throughout our history, although the precise
rules by which we have protected fundamental human dignity have
been transformed over time in response to both transformations of
social conditions and evolution of our concepts of human dignity."”

Neither do alternative theories and modes of constitutional inter-

pretation elude a dependence on political philosophy. Interpreting
the Constitution frequently requires, as Professor Charles L. Black, Jr.,
argues, “inference from the structure and relationships created by the
constitution in all its parts or in some principal part.” Chief Jus-
94 | THe SuprEME COURT AND CONSTITUTIONAL POLITICS

tice Marshall’s watershed opinion in McCulloch v. Maryland, 4 Wheat.

(17 U.S.) 316 (1819) (see Vol. 1, Ch. 6), illustrates the role of structural
analysis of the Constitution. There, Marshall upheld the constitutional-
ity of the national bank as a necessary and proper exercise of Congress’s
powers based on inferences from the structure of federalism, instead of
relying on the necessary and proper clause per se. Still, Jeffersonian-
Republicans disagreed with the infusion of Marshall’s nationalistic po-
litical philosophy into constitutional law. Moreover, differences rooted
in rival political philosophies over the structure of federalism persist in
the Court and the country (see Vol. 1, Ch. 6).
Nor do attempts to reconcile the exercise of the Court's power
with majoritarian democracy in terms of what has become known as
process-oriented theory ofjudicial review fare much better.” Justice Harlan
Stone initially suggested that the Court’s role ought to be limited to
policing the political process and ensuring that it does not discriminate
against “discrete and insular minorities,” in footnote 4 of United States
v, Carolene Products Co., 304 U.S. 144 (1938) (see Vol. 2, Ch. 12). Ina
book titled Democracy and Distrust, Professor Ely further developed the
theory that the Court’s role should be limited to policing the demo-
cratic process and facilitating the representation of minorities in the
electoral process: “[T]he general theory is one that bounds judicial re-
view under the Constitution’s open-ended provisions by insisting that
it can appropriately concern itself only with questions of participation,
and not with the substantive merits of the political choice under at-
tack” In this way, Ely aims to justify the Court’s supervision of
the electoral process (see Vol. 1, Ch. 8) and reconcile judicial review
with democratic theory. But Ely fails to provide a general theory in
saying nothing about how the Court should handle cases involving dis-
putes over presidential power and federalism, for example.” Moreover,
the process-oriented theory of judicial review has been criticized for
too sharply limiting the Court’s role in protecting civil liberties and
civil rights. As Justice Robert Jackson in West Virginia State Board of Ed-
ucation v. Barnette, 319 U.S. 624 (1943) (see Vol. 2, Ch. 5), observes,
“The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal principles
to be applied by the courts” (see also Vol. 2, Ch. 4).
Recently, some justices and scholars have advanced theories of
pragmatism or consequentialism, avoiding “bright-line” rulings in favor of
taking “one-case-at-a-time.’*4 For example, see Justice Breyer’s con-
curring opinion explaining his pivotal vote in Van Orden v. Perry and
McCreary v. American Civil Liberties Union (2005) (both cases are ex-
cerpted in Vol. 2, Ch. 6). On the one hand, he agreed to join a major-
 B | The Politics of Constitutional Interpretation | 95

ity upholding a 40-year-old six-foot granite monument engraved with

the Ten Commandments on Texas public grounds, but on the other
hand deemed a violation of the First Amendment (dis)Establishment
Clause the more recent posting of the Ten Commandments in Ken-
tucky courthouses, because of their different consequences and public
reactions.
Ultimately, what divides the justices, and sometimes the Court and
the country, has less to do with interpretivism and noninterpretivism
than fundamentally rival political philosophies and views of the role of
the Court in American politics. It-is not just that constitutional inter-
pretation draws on the text, structure, history, doctrines, practices, and
moral and political philosophy that is important, but how these sources
and modes of analysis are employed. Admittedly, as Justice Scalia has
noted, there may be a “sense of dissatisfaction” with finding that we
“do not yet have an agreed-upon theory” of constitutional interpreta-
tion. “But it should come as no surprise.’” That conclusion has also led
the Chief Judge of the Court of Appeals for the Seventh Circuit and a
prolific author and advocate of pragmatism, Richard A. Posner, to ar-
gue against the need for specialized constitutional theories to justify le-
gal doctrines, and for more empirical research into the socioeconomic
complexities underlying legal controversies.** To be sure, there is no
denying that in constitutional politics there are no simple solutions but
instead an invitation for reflection and enduring political struggles.

# THE DEVELOPMENT OF LAw

Comparative Constitutional Interpretation

Comparative constitutional interpretation increasingly commands

greater attention. Scholars, along with members of the Supreme Court and
other high courts around the world, are debating the uses and misuses of
comparative constitutional law and interpretation.'
Several factors contribute to this development. For one, in the latter half
of the twentieth century the European Court of Justice and constitutional
courts in Western European countries have increasingly asserted their power
and employed comparative constitutional analysis (see the In Comparative
Perspective box in Vol. 1, Ch. 6). Following the collapse of the former So-
viet Union, constitutional courts in Central and Eastern Europe also turned
to comparative constitutional law analysis when construing their new consti-
tutions. High courts in Canada, Germany, and Japan also frequently look to
decisions of the U.S. Supreme Court when interpreting similar provisions
in their post-World War II constitutions and bills of rights (see the In Com-
a
 CONSTITUTIONAL POLITICS
96 | THe SupREME COURT ANDeee
OS ON Be
nL EES
parative Perspective boxes in Vol. 2, Chs. 5 and 6). And the South African
Constitution of 1996 and Bill of Rights specifically requires its judiciary to
consider foreign and international law (see, for example, the In Comparative
Perspective box in Vol. 2, Ch. 10). In addition, bar associations along with
business and human rights organizations promote international exchanges,
and comparative constitutional analysis became much easier with Internet
access to court decisions from around the world.
Within the Supreme Court, however, the justices disagree about the use
of comparative constitutional analysis. Unlike courts in Canada, Japan, South
Africa, and elsewhere, the Supreme Court generally resists comparative con-
stitutional law in justifying its decisions. Justice Scalia, in particular, is un-
apologetic, observing in Printz v. United States, 521 US. 898 (1997) that
“comparative analysis [is] inappropriate to the task of interpreting a constitu-
tion, though it was of course relevant to the task of writing one.” By con-
trast, Justice Breyer, the strongest supporter of comparative constitutional
analysis, responded in his dissent that comparative law “may ... . Cast_an emi—
pirical light on the consequences of different legal solutions to a common le-
gal problem.” As a result, some foreign jurists have been highly critical of the
US. Supreme Court for not paying more attention to comparative and in-
ternational law, particularly with respect to human rights.”
Nonetheless, historically the Court has drawn on comparative law and
experiences in several ways. First, such analysis has been employed to sup-
port the factual basis for the Court’s rulings, highlighting relevant “constitu-
tional facts.” As a progressive attorney, before joining the Court, Louis D.
Brandeis pioneered the idea in his famous “Brandeis brief.” Filed in Muller v.
Oregon, 208 U.S. 412 (1907), it cited in support of Oregon's law restricting
the number of hours that women could work, statutes and reports from Great
Britain, France, Switzerland, Austria, Holland, Italy, and Germany. Brandeis
did so to show the reasonableness of the legislation. In other words, the Court
may take judicial notice of comparative law and experiences in its rulings. In
striking down laws criminalizing homosexual sodomy in Lawrence v. Texas
(2003) (excerpted in Vol. 2, Ch. 11), for instance, Justice Kennedy cites in
support a decision of the European Court of Human Rights. In Atkins v,
Virginia (2002) (excerpted in Vol. 2, Ch. 10), when holding that the execu-
tion of mentally retarded criminals violates the Eighth Amendment, Justice
Stevens noted in a footnote that “within the world community, the imposi-
tion of the death penalty for crimes committed by mentally retarded offend-
ers is overwhelmingly disapproved.” But that reference invited a sharp
rebuke from Chief Justice Rehnquist and Justice Scalia, who maintain that
“the viewpoints of other countries simply are not relevant to interpreting
constitutional standards.”
Second, the Court sometimes uses comparative analysis in dicta-dicta that
throws a comparative light on and ostensibly supports the interpretation
given in the Court’s opinion. Chief Justice Rehnquist, thus, in the doctor-
assisted suicide ruling in Washington v, Glucksberg, 521 U.S. 702 (1997), cites
SS
 B | The Politics of Constitutional Interpretation | 97

CE ee
comparative constitutional law in underscoring the importance of the issue,
as have other justices in giving “kindred problems”? a comparative perspec-
tive. More frequently, such citations aim to buttress the Court’s line drawing
and announced principle based on our “traditions,” especially historical and
traditional links to English law and legal history; even Justice Scalia employs
comparative constitutional analysis in this fashion.*
Third, closely related but more controversial are citations to developing
international and comparative constitutional law as basis for a new interpre-
tation of provisions of the Constitution and Bill of Rights. One of the most
controversial illustrations, perhaps, is Justice Goldberg’s 1963 opinion dis-
senting from the denial of certiorari in Rudolph v. Alabama (reproduced in the
Inside the Court box in Vol. 2, Ch. 10), inviting challenges to the constitu-
tionality of the death penalty.
1. For further discussion see, David M. O’Brien, “More Smoke than Fire: The Rehn-
quist Court’s Use of Comparative Judicial Opinions and Law in the Construction of
Constitutional Rights,” 22 Journal of Law & Politics 83 (2006).
2. See, e.g., The Honourable Claire L Heureux-Dube, Justice of the Supreme Court
of Canada, “The Importance of Dialogue: Globalization and the International Im-
pact of the Rehnquist Court,’ 34 Tulsa Law Journal 15 (1998).
3. State Tax Commission of Utah v Aldrich, 316 U.S. 174 (1942) (Frankfurter, J., con. op.).
4. See, e.g., Loving v. United States, 517 U.S. 748 (1996). See also Rogers v. Richmond,
365 USS. 534, 541 (1961) (on the roots of our adversary system); McGowan v, State of
Maryland, 366 U.S. 101 (1961); Thompson v. Oklahoma, 487 U.S. 815, 868 (1988); and
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (Scalia, J., dis. op.).

NOTES

1. See Willard Hurst, “The Role of History,” in Supreme Court and Supreme Law, ed.
Edmond Cahn (New York: Clarion Books, 1971); Charles Miller, The Supreme Court
and the Uses of History (Cambridge, MA: Harvard University Press, 1969); and G. Ed-
ward White, “The Arrival of History in Constitutional Scholarship,’ 88 Virginia Law
Review 485 (2002).
2. William Rehnquist, “The Notion of a Living Constitution,’ in David M.
O’Brien, ed., Judges on Judging, 2d ed., (Washington, DC: C.Q. Press, 2004), 124.
3. See Paul Rosen, The Supreme Court and Social Science (Urbana: University of Illi-
nois Press, 1972); Wallace Loh, ed., Social Research in the Judicial Process (New York:
Russell Sage Foundation, 1984); and David O’Brien, “The Seduction of the Judi-
ciary: Social Science and the Courts,” 64 Judicature 8 (1980).
4, See Edward S. Corwin, The “Higher Law” Background ofAmerican Constitutional Law
(Ithaca, NY: Cornell University Press, 1955); Thomas Grey, “Do We Have an Un-
written Constitution,’ 27 Stanford Law Review 703 (1975); Robert Goldwin and
William Schambra, eds., How Does the Constitution Secure Rights? (Washington, DC:
American Enterprise Institute, 1985); Morton White, The Philosophy of the American Rev-
olution (New York: Oxford University Press, 1978); and Symposium, “The Framers’ In-
tent: An Exchange,” 10 University of Puget Sound Law Review 343-369 (1987).
98 | THe SupREME Court AND CONSTITUTIONAL POLITICS

5. See Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard Univer-
sity Press, 1977), 149; Ronald Dworkin, A Matter of Principle (Cambridge, MA: Har-
vard University Press, 1985); and Ronald Dworkin, Law's Empire (Cambridge, MA:
Harvard University Press, 1986).
6. See G. Edward White, “Reflections on the Role of the Supreme Court: The
Contemporary Debate and the Lessons of History,” 63 Judicature 162 (1979); and
Philip Bobbit, Constitutional Fate (New York: Oxford University Press, 1982).
7. Henry Hart, “Foreword: The Time Chart of the Justices,” 73 Harvard Law Review
84 (1959).
8. Charles Black, “Old and New Ways in Judicial Review,” address given at Bow-
doin College, 1957.
9, Terrance Sandalow, “Constitutional Interpretation,’ 79 Michigan Law Review 1033
(1981). See also Joseph Grano, “Judicial Review and a Written Constitution in a
Democratic Society?” 28 Wayne Law Review 1 (1981); and Paul Brest, “The Misconceived
Quest for the Original Understanding,” 60 Boston University Law Review 204 (1980).
10. Harry Wellington, “Common Law Rules and Constitutional Double Standards:
Some Notes on Adjudication,” 83 Yale Law Journal 221 (1973). See also Michael
Perry, The Constitution, the Courts, and Human Rights (New Haven, CT: Yale Univer-
sity Press, 1982); and Michael Perry, Morality, Politics & Law (New York: Oxford Uni-
versity Press, 1988).
11. Owen Fiss, “Objectivity and Interpretation,” 34 Stanford Law Review 739 (1982).
12. Dworkin, Taking Rights Seriously, 149.
13. Kenneth Karst, “The Freedom of Intimate Association,” 89 Yale Law Journal 624
(1980); and Richard Richards, “Human Rights as the Unwritten Constitution: The
Problem of Change and Stability in Constitutional Interpretation,” 4 University of
Dayton Law Review 295 (1979).
14. Michael Michelman, “In Pursuit of Constitutional Welfare Rights: One View of
Rawls’s Theory of Justice,” 121 University of Pennsylvania Law Review 962 (1979).
15. Alexander Bickel, The Supreme Court and the Idea of Progress (New York: Harper
& Row, 1970).
16. See David O’Brien, “ ‘The Imperial Judiciary:’ Of Paper Tigers and Socio-Legal
Indicators,” 2 Journal of Law & Politics 1 (1985); and William Van Alstyne, “Interpret-
ing This Constitution: The Unhelpful Contributions of Special Theories of Judicial
Review,” 35 University of Florida Law Review 209 (1983).
17. John Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press,
1980), 58.
18. Robert Bork, “Tradition and Morality in Constitutional Law,” in Judges on Judg-
ing, ed. O’Brien, 158. ;
19. William Brennan, Jr., “The Constitution of the United States: Contemporary
Ratification,” speech given at Georgetown University, Oct. 12, 1985.
20. Charles Black, Jr., Structure and Relationship in Constitutional Law (Baton Rouge:
Louisiana University Press, 1969).
21. See Laurence Tribe, “The Puzzling Persistence of Process-Based Constitutional
Theories,” 89 Yale Law Journal 1063 (1980); and Mark Tushnet, “Darkness on the
Edge of Town: The Contributions of John Hart Ely,’ 89 Yale Law Journal 1037 (1980).
22. Ely, Democracy and Distrust, 181.
 B | The Politics of Constitutional Interpretation | 99

23. See David O’Brien, “Judicial Review and Constitutional Politics: Theory and
Practice,” 48 University of Chicago Law Review 1052 (1981).
24. See, e.g., Stephen Breyer, Active Liberty (New York: Knopf, 2005); Richard Pos-
ner, Law, Pragmatism, and Democracy (Cambridge, MA: Harvard University Press,
2003); and Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court
(Cambridge, MA: Harvard University Press, 1999).
25. Antonin Scalia, “Originalism: The Lesser Evil?’ 57 Cincinnati Law Review 850
(1989), 865.
26. Richard A. Posner, “Against Constitutional Theory,’ 73 New York University Law
1 (1998). See also R. Posner, The Problematics of Moral and Legal Theory (Cambridge,
MA: Belknap Press, 1999).

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LAW AND POLITICS IN THE
SUPR.EMEs G@WURAE
JURISDICTION AND
DECISION-MAKING PROCESS

he Supreme Court is the only federal court in the United States to

be
od complete power to decide what to decide, that is, which cases
to hear. This power enables the Court to set its own agenda as well as
to manage its docket. Like other courts, the Supreme Court, however,
must await issues brought by lawsuits; it does not initiate its own. Also,
like other social institutions, it is affected by social change. One hun-
dred fifty years ago, the Court’s docket did not include issues of per-
sonal privacy raised by electronic surveillance and computer data banks,
for instance, or controversies over abortion and the patenting of organic
life forms. As technology develops and society changes, courts respond.
Law evolves more or less quickly in response to social change. Another
change occurring over the past several decades has been a substantial
increase in the number of cases, the caseload, sent to the Court. Unable
to hear them all, the Court assumed the power to pick which issues it
will decide: The Court now functions like a roving commission in re-
sponding to social forces.

102
 A | Jurisdiction and Justiciable Controversies | 103

A| Jurisdiction and Justiciable

Controversies

Jurisdiction is the authorized power ofa court to hear a case and to ex-
ercise judicial review. The Court’s jurisdiction derives from three
sources: (1) Article III of the Constitution, which defines the Court’s
original jurisdiction; (2) congressional legislation, providing the basis
for hearing appeals of lower courts’ decisions, or appellate jurisdiction;
and (3) the Court’s own interpretation of 1 and 2 together with its own
rules for accepting cases. ;
Article III of the Constitution provides that the judicial power ex-
tends to all federal questions, that is, “all Cases, in Law and Equity, aris-
ing under this Constitution, the Laws of the United States, and
Treaties.” The Court also has original jurisdiction over specific kinds of
“cases or controversies”: those affecting ambassadors and other public
ministers and consuls; disputes to which the United States is a party;
disputes between two or more states, disputes between a state and acit-
izen of another state, if a state waives its sovereign immunity under the
Eleventh Amendment; and disputes between astate (or its citizens) and
foreign countries. The Court today has only about ten cases each term
(the first Monday in October through June) coming on original juris-
diction. Most involve states suing each other over land and water rights,
and they tend to be rather complex and carried over for several terms
before they are finally decided.
Congress establishes (and may change) the appellate jurisdiction of
the federal judiciary, including the Supreme Court. Most cases used to
come as direct appeals, requiring obligatory review. But as the caseload
increased, Congress expanded the Court’s discretionary jurisdiction by
replacing appeals with petitions for certiorari (a petition asking a court to
inspect the proceedings and decision of a lower court), which the
Court may in its discretion grant or deny. Prior to the Judiciary Act of
1925, which broadened the Court’s discretionary jurisdiction, appeals
amounted to 80 percent of the docket and petitions for certiorari, less
than 20 percent. Today, well over 99 percent of the docket comes on cer-
tiorart.
Although most cases now come as certiorari (cert.) petitions, Con-
egress provides that appellate courts may submit a writ of certification to
_ the Court, requesting the justices to clarify or “make more certain” a
point of federal law. The Court receives only a handful of such cases
each term. Congress also gave the Court the power to issue certain extra-
104 | Law AND POLITICS IN THE SUPREME CourRT

of
ordinary writs, or orders. In a few cases, the Court may issue writs
to
mandamus and prohibition, ordering lower courts or public officials
either do something or refrain from some action. In addition , the Court
en-
has the power to grant writs of habeas corpus (“produce the body”),
-
abling it to review cases by prisoners who claim that their constitu
tional rights have been violated and they are unlawfully imprisoned.
Congress also established the practice of giving the poor, or the in-
digent, the right to file without the payment of fees. When filing an ap-
peal or petition for certiorari, indigents may file an affidavit requesting
that they be allowed to proceed in forma pauperis (“in the manner of a
pauper,’) without the usual filing fees and forms. The Court sets both
the rules governing filing fees and the form that appeals, cert. petitions,
and other documents must take. Except for indigents, the Court re-
quires $300 for filing any case and another $100 if a case is granted oral
argument. Indigents are exempt as well from the Court’s rules specify-
ing particular colors and lengths of paper for various kinds offilings. All
cert. petitions, for instance, must have a white color, whereas opposing
briefs are light orange. Any document filed by the federal government
has a gray cover. No petition or appeal may exceed thirty pages, and for
those few cases granted oral argument, briefs on the merits of cases are
limited to fifty pages.
The Constitution and Congress thus stipulate the kinds of cases
and controversies the Court may consider. Yet, as Charles Evans
Hughes, who later became chief justice (1930-1 941), candidly re-
marked, “We are under the Constitution, but the Constitution is what
the Judges say it is.”' The Court has developed its own doctrines for
denying a large number of cases review and for setting its own agenda.
Specifically, the Court considers whether it has jurisdiction over a “case
or controversy,” and then whether that dispute is justiciable, or capable
of judicial resolution. Justices thus may, or may not, deny a case if it
(1) lacks adverseness or (2) is brought by parties who lack “standing to
sue,” or poses issues that either (3) are not “ripe,” (4) have become
“moot,” or (5) involve a “political question.” What all this means is dis-
cussed below.

m@ ADVERSENESS AND ADVISORY OPINIONS

The Court generally maintains that litigants, those involved in a law-

suit, must be real and adverse in seeking a decision that will resolve
their dispute and not some hypothetical issue. The requirement of real
and adverse parties means that the Court will not decide so-called
friendly suits, (when the parties do not have adverse interests in‘ the
 A | Jurisdiction and Justiciable Controversies | 105

FIGURE 2.1

Avenues of Appeal:
The Two Main Routes to the Supreme Court

SUPREME COURT OF
THE UNITED STATES

ae
Almost 30% come Over 65% come
from state courts from federal courts

Decthonweon be. Rulings can be appealed

appealed if they raise a
constitutional question
ul CIRCUIT ¢COURTS ¢OF APPEALS; COURT
OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT; AND COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
(which hears primarily tax, patent, and
international trade cases)

Further appeal for ruling

by highest court in state Appeals of rulings by district courts
and decisions by independent regulatory
commissions and administrative agencies

94 DISTRICT COURTS
(in all states and District of Columbia)

‘STATE TRIAL COURTS ,

Cases involving federal law are
tried in a federal district court

Cases involving state law are tried

STATE ROUTE FEDERAL ROUTE

Note: In addition, some cases come directly to the Supreme Court from trial
courts when they involve reapportionment or civil rights disputes. Appeals
from the Court of Military Appeals also go directly to the Supreme Court.A
few cases come on “original jurisdiction” and involve disputes between state
governments.
106 | Law AND POLITICS IN THE SUPREME Court

outcome of a case). Nor will the Court give “advisory opinions” on is-
sues not raised in an actual lawsuit. The Jay Court denied two requests
for advisory opinions: one in 1790 by Secretary of Treasury Alexander
Hamilton on the national government’s power to assume state Revolu-
tionary War debts, and the other in 1793 by Secretary of State Thomas
Jefferson for an interpretation of certain treaties and international law.
Chief Justice John Jay held that it would be improper for the Court to
judge such matters, because the president may call on cabinet heads for
advice. The Court continues to maintain that it is inappropriate “to
give opinions in the nature of advice concerning legislative action, a
function never conferred upon it by the Constitution and against the
exercise of which this court has. steadily set its face from the begin-
ning.”
Historically, justices have nevertheless extrajudicially advised attor-
neys, congressmen, andpresidents. They occasionally even accuse each
other of including in opinions dicta (statements of personal opinion or
philosophy not necessary to the decision handed down) that is tanta-
mount to “giving legal advice.’ The Court, furthermore, upheld the
constitutionality of the Declaratory Judgment Act authorizing federal
courts to declare, or make clear, rights and legal relationships even be-
fore a legislature has mandated a law to take effect, although only in
“cases of actual controversy.”*

@ STANDING TO SUE

Standing, like adverseness, is a threshold requirement for getting into

court. “Generalizations about standing to sue,” as Justice William O.
Douglas discouragingly, but candidly, put it, “are largely worthless as
such’”> Nonetheless, the basic requirement is that individuals show in-
jury to a legally protected interest or right and demonstrate that other
opportunities for defending that claim (before an administrative tribu-
nal or a lower court) have been exhausted. The claim of an injury “must
be of a personal and not official nature” and of “some specialized inter-
est of [the individual’s] own to vindicate, apart from political concerns
which belong to it.”° The interest must be real as opposed to speculative
or hypothetical.
The injuries and legal interests claimed traditionally turned on a
showing of personal or proprietary damage. Typically, plaintiffs had suf-
fered some “pocketbook” or monetary injury. But in the last thirty
years, individuals have sought standing to represent nonmonetary in-
juries and “the public interest.”
The law of standing is a combination of judge-made law and con-
gressional legislation, as interpreted by the Court. During Earl Warren's
 A | Jurisdiction and Justiciable Controversies | 107

tenure as chief justice (1953-1969) the Court substantially lowered the

threshold for standing and permitted more litigation of public policy is-
sues. Frothingham v. Mellon, 262 U.S. 447 (1923), was the leading case on
taxpayer suits until it was overturned in Flast v. Cohen (1968) (see ex-
cerpt below). In Frothingham, the Taft Court had denied taxpayers
standing to challenge the constitutionality of federal legislation. Mrs.
Frothingham, a taxpayer, had attacked Congress’s appropriation of fed-
eral funds to the states for a maternal and infant care program. She
claimed that Congress exceeded its power and intruded on “the re-
served rights of the states” under the Tenth Amendment of the Consti-
tution. Writing for the Court, Justice George Sutherland avoided
confronting the merits of, her claim by denying standing. He did so on
the grounds that an individual taxpayer's interest in the financing of
federal programs is “comparatively minute and indeterminable,’ when
viewed in light of all taxpayers. Frothingham’s “injury” was neither di-
rect nor immediate and the issue raised was basically “‘political, not ju-
dicial.” As Sutherland put it,

[T]he relation of a taxpayer of the United States to the Federal

Government is very different [from that relationship with state and
local governments]. His interest in the moneys of the Treasury—
partly realized from taxation and partly from other sources—is
shared with millions of others; is comparatively minute and inde-
terminable; and the effect upon future taxation, or any pay-
ment out of the funds, so remote, fluctuating and uncertain,
that no basis is afforded for an appeal to the preventive powers
of a court of equity.

To gain standing, according to Sutherland, a taxpayer “must be able to

show not only that the statute is invalid but that he has sustained . ..
some direct injury as the result of its enforcement, and not merely that
he suffers in some indefinite way in common with people generally.”
Frothingham’s “direct injury” test was met in Pierce v, Society of Sisters,
268 U.S. 510 (1925). There, a religious school won a court order bar-
ring the enforcement of Oregon’s 1922 constitutional amendment re-
quiring children between the ages of eight and sixteen to attend public
schools. The Court affirmed on the grounds that the law directly dam-
ages the business and property interests of the school and because it
“unreasonably interferes with the liberty of parents and guardians to di-
rect the upbringing and education of children under their control.”
The federal government relied on Frothingham to provide an absolute
barrier to subsequent federal taxpayer suits until the Warren Court made
an exception to that doctrine in Flast v. Cohen (1968) (see excerpt be-
low). In his opinion for the Court, Chief Justice Warren created a two-
pronged standard for granting standing to federal taxpayers to challenge
108 | Law AND PoriTICs IN THE SUPREME COURT

FIGURE 2.2

Jurisdictional Map of the U.S. Courts of Appeal and

U.S. District Courts

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Note:The court of appeals for the federal circuit and the District of Columbia
circuit are located in the District of Columbia
(Administrative Office of the U.S. Courts, Washington, DC).
 A | Jurisdiction and Justiciable Controversies | 109

public expenditures for religious schools: taxpayers must showalogical

relationship between their status as taxpayers and the challenged con-
gressional statute as well as a connection between that status and the
“precise nature of the constitutional infringement alleged.”
The Burger Court (1969-1986) and the Rehnquist Court tight-
ened the requirements for standing in some cases, but relaxed them in
others. In 1972, in two sharply divided decisions, the Burger Court de-
nied standing to a group challenging military surveillance of lawful
political protests in public places and to the Sierra Club when chal-
lenging the construction of a ski resort in Mineral King National Park.
In both Laird v. Tatum, 408 U.S. 1 (1972), and Sierra Club v. Morton, 405
U.S. 727 (1972), a bare majority found that the groups failed to show a
“personal stake in the outcome” of the litigation. The following year,
however, standing was granted to a group of law students attacking a
proposed surcharge on railroad freight. The students contended that the
surcharge would discourage the recycling of bottles and cans, and thus
contribute to environmental pollution. In United States v. Students Chal-
lenging Regulatory Agency Procedure (SCRAP), 412 U.S. 669 (1973), the
Burger Court granted standing, observing that “[a]esthetic and environ-
mental well-being, like economic well-being, are important ingredients
of the quality of life in our society, and the fact that particular environ-
mental interests are shared by the many rather than the few does
not make them less deserving of legal protection through the judicial
process.”
Plaintiffs, those bringing suit, must still claim a personal injury, but
they can now act as surrogates for special interest groups. The personal
injuries claimed thus embrace a public injury. Congress at the same
time expanded the principle even more by providing that any individ-
ual “adversely affected or aggrieved” may challenge administrative deci-
sions. Health, safety, and environmental legislation passed in the 1970s
mandated such “citizen suits” and right to judicial review of regulatory
action. Even when legislation does not provide for the citizen suits, in-
dividuals may claim personal injuries, or a “private cause of action,” to
gain access to the courts and to force agency compliance with the law.
The more conservative Burger and Rehnquist Courts restricted
standing requirements in several ways. First, they refused to recognize
new interests and injuries in granting standing. In Linda R. S. v. Richard
D., 410 U.S. 614 (1973), an unwed mother sought enforcement of child
support under the Texas Penal Code because the local prosecutor re-
fused to enforce the statute against fathers of illegitimate children. A
majority,of the Court ruled that she had no recognizable injury and no
standing because she could not prove that payments stopped because
that particular statute was unenforced.
110 | Law AND PoLiTics IN THE SUPREME COURT

In Paul v. Davis, 424 U.S. 693 (1976), the Court’s majority rejected
a claim of injury to personal reputation by an individual who objected
to the circulation of a flyer to local merchants that carried his photo-
graph along with that of other alleged “active shoplifters.” Rehnquist
dismissed the claim out of hand. But Justice William Brennan in dissent
responded that “[t]he Court by mere fiat and with no analysis wholly
excludes personal interest in reputation from the ambit of ‘life, liberty,
of property’ under the Fifth and Fourteenth Amendments, thus render-
ing due process concerns never applicable to the official stigmatization,
however, arbitrary.”
The Court went even further with its reinterpretation of the appli-
cation of Flast’s test for taxpayer suits in Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc. (1982) (see excerpt
below). And a bare majority of the Roberts Court (2005—) further lim-
ited taxpayers’ standing to challenge federal policies under Flast v. Cohen
in Hein v. Freedom from Religion Foundation, Inc. (2007) (excerpted below).
Although declining to overrule Flast, writing for the majority Justice
Alito limited Flast to permit taxpayer suits under the First Amendment
(dis)establishment clause to challenges to congressional appropriations,
but not to general expenditures for policies of the executive branch. No-
tably, concurring Justice Scalia, joined by Justice Thomas, would have
overturned Flast. By contrast, Justice Souter, joined by Justices Stevens,
Ginsburg, and Breyer, dissented and would have granted standing to chal-
lenge President George W. Bush’s faith-based initiatives.
Almost two decades after the Court liberalized the law of standing
so as to allow citizens’ suits for environmental damages, a majority of
the Rehnquist Court tightened standing requirements by raising new
obstacles for citizens bringing environmental lawsuits. Writing for the
majority in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (see ex-
cerpt below), Justice Scalia denied two environmentalists standing be-
cause they failed to show “imminent injury,’ or that they were in
immediate danger of suffering a concrete harm that supported their fil-
ing a suit under the Endangered Species Act of 1973. Although Justice
Stevens concurred, he would have granted standing, as would have the
two dissenters, Justices Blackmun and O’Connor.
In another important ruling on standing, in Northeastern Florida
Chapter of the Associated General Contractors of America v. City of Jack-
sonville, Florida, 508 U.S. 656 (1993) (see Vol. 2, Ch. 12), the Rehnquist
Court made it easier for whites to gain standing to challenge affirma-
tive action and minority set-aside programs. With Justices O’Connor
and Blackmun dissenting, the Court held that a building association
could challenge a city’s set-aside program, even though during the
course of the litigation the city had repealed its program. Writing for
 A | Jurisdiction and Justiciable Controversies | 111

® THE DEVELOPMENT OF Law

Other Important Rulings on Standing

CASE VOTE RULING

Schlesinger v. Reservists 6:3 Held that members of an organization of

Committee to Stop the present and past members of the military
War, 418 U.S 208 reserves opposed to the Vietnam War had
(1974) no standing to file a class action suit
against the secretary of defense attacking
the constitutionality of members of Congress holding commissions in the
reserves and voting on appropriations for the war, as an alleged violation of
Article I, Section 6, Clause 2, which declares that “no person holding any of-
fice under the United States, shall be a Member of either House during his
continuance in office.”
United States v. 5:4 Denied taxpayer standing to bring suit
Richardson, 418 against Congress’s secret funding for the
U.S. 166 (1974) Central Intelligence Agency, as an alleged
violation of Article I, Section 9, Clause 7,
which provides that “no Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular Statement of
Account of the Receipts and Expenditures of all public money shall be pub-
lished from time to time.”
Warth v. Seldin, 422 5:4 Denied standing to various organizations
U.S. 490 (1975) in Rochester, New York, seeking to sue
officials of the suburban town of Pen-
field, claiming that the latter's zoning ordinance excluded low- and
moderate-income persons from living in the town and violated their rights
under the Bill of Rights. The Court held that the individuals and organiza-
tions failed to show that they had been “personally” injured.
Simon v. Eastern Ken- 9:0 Denied standing to indigents seeking to
tucky Welfare Rights challenge federal tax regulations reducing
Organization, 426 U.S. the amount of free medical care hospitals
26 (1976) must provide in order to receive certain
tax benefits.

City of Los Angeles v. 5:4 Held that an arrestee had standing to sue
‘Lyons, 461 U.S. the city for damages incurred as a result
95 (1983) of police subjecting him to a “choke
hold,’ but that he had no standing to
seek an injunction against the police practice of using choke holds, because
he failed to show that he might ever be subjected to a choke hold again.
errerrere ===
112 | Law AND Potitics IN THE SUPREME COURT

ET ED

CASE VOTE RULING

Allen v. Wright, 468 5:3 Denied standing to parents of black chil-
U.S. 737 (1984) dren attending public schools in districts
around the country that were in the
process of desegregation to sue various government officials and present
their contention that the IRS failed to fulfill its obligation under the law to
deny tax-exempt status to private schools engaged in racial discrimination.
Renne v. Geary, 498 7:2 Held that a challenge to a section of
U.S. 890 (1991) California’s constitution, which prohibits
political parties from endorsing candi-
dates in nonpartisan elections for judgeships and local government offices,
was nonjusticiable because members of the San Francisco County Republi-
can and Democratic Central committees did not have standing and failed
to present a ripe case in challenging the state’s restrictions as a violation
of their First Amendment freedoms. Justices Blackmun and Marshall dis-
sented.
Lujan v. Defenders of 72, Writing for the Court, Justice Scalia
Wildlife, 504 U.S. 555 denied standing to two environmentalists
(1992) to bring a suit because they failed to show
“imminent injury,’ or that they were in
immediate danger of suffering a concrete harm that supported their chal-
lenge to federal funding for projects in foreign countries, under the Endan-
gered Species Act of 1973. Although Justice Stevens concurred, he would
have granted standing, as would have dissenting Justices Blackmun and
O’Connor.
Wyoming v. Oklahoma, 6:3 Expanded standing for states to sue one
502 U.S. 437 (1992) another, under the dormant commerce
clause theory, on the grounds that one
state’s regulations diminished the tax revenues of another. Dissenting Chief
Justice Rehnquist and Justices Scalia and Thomas denounced the majority’s
expansive interpretation of standing under the commerce clause and warned
that the ruling would invite a flood of litigation from the states.
Northeastern Florida Pd Held that a building association had
Chapter of the Associated standing to challenge an affirmative ac-
General Contractors of tion set-aside program for contractors,
America v. City ofJack- even though during the course of the lit-
sonville, Florida, 508 igation the city had repealed its program
U.S. 656 (1993) and the building association did not pre-
sent any evidence that its members, in the
absence of the program, would have received building contracts set aside for
women and minorities. Justices Blackmun and O’Connor dissented.
 A | Jurisdiction and Justiciable Controversies | 113

CASE VOTE RULING

Bennett v. Spear, 520 9:0 Held that property owners, no less than
U.S. 154 (1997) environmentalists, may assert standing to
bring “citizen suits” under the Endan-
gered Species Act, and thereby challenge proposed environmental regula-
tions. Writing for the Court, Justice Scalia ruled that the act’s permitting
“any person” to sue should be broadly interpreted because “the overall sub-
ject matter of this legislation is the environment ...a matter in which it 1s
common to think all persons have an interest.” As a result, landowners have
new legal standing to challenge environmental regulations.
Raines v. Byrd, 521 7:2 Writing for the Court, Chief Justice
U.S. 811 (1997) _Rehnquist held that several members of
Congress who challenged the constitu-
tionality of the Line Item Veto Act of 1996, delegating to the president the
power of line-item vetoes, did not have standing to sue, because they did not
assert any personal injury and “the institutional injury [to Congress] they al-
lege[d] is wholly abstract and widely dispersed.” Dissenting Justices Stevens
and Breyer would have granted standing and reached the merits presented.
Friends of the Earth, 72. Upheld the right of Friends of the Earth,
Inc. v. Laidlaw Envi- Inc., to sue Laidlaw Environmental Ser-
ronmental Services, vices for failing to comply with the
528 U.S. 167 (2000) Clean Water Act by impermissibly dump-
ing mercury into a South Carolina river
on 489 occasions from 1987 to 1995. Writing for the Court, Justice Ginsburg
held that the group had shown sufficient personal injury from their loss of
enjoyment of the river to gain standing to sue without also having to prove
“direct injury” to the river. The test for standing, in her words, is “not injury
to the environment but injury to the plaintiff’ Moreover, Justice Ginsburg
ruled that the fact that fines won under such citizen suits go to the federal
government, not to the individuals bringing the suits, does not diminish the
personal injury at stake or deprive plaintiffs of standing. Justices Scalia and
Thomas dissented.
Alexander v. 5:4 Writing for the Court, Justice Scalia held
Sandoval, 532 that individuals do not have standing to
U.S. 275 (2001) sue in order to enforce compliance with
Title VI of the Civil Rights Act, which
bars state and local governments from spending federal funds in a discrimi-
-natory manner, unless they can show that the intent of the institution—a
state, school district, hospital, etc.—was to discriminate. Previously, the De-
partment of Justice and federal courts had held that, in most cases, individu-
als could sue upon showing that the effect of a particular practice or
policy—hiring or admissions rules, for example—worked to disadvantage
ee ES
114 | Law AND PotiTics IN THE SUPREME COURT

CASE VOTE RULING

minorities and women. Thus, the threshold for standing for private individu-
als to enforce state and local government compliance with Title VI was raised
and the filing of so-called disparate-impact lawsuits limited. Justices Stevens,
Souter, Ginsburg, and Breyer dissented.
Palazzolo v. Rhode 6:3 Writing for the Court, Justice Kennedy
Island, 533 held that once property owners take title
U.S. 606 (2001) to property that includes land-use re-
strictions, they have standing to challenge
those restrictions, even if the restrictions were imposed years earlier. In Jus-
tice Kennedy’s words, the government may not be relieved “of its obliga-
tion to defend any action restricting land use, no matter how extreme or
unreasonable.” Although inviting more challenges to environmental regula-
tions, on the merits the Court reaffirmed that to prevail such challenges must
demonstrate that the owner was deprived of all economic value of the land.
Justice Ginsburg, joined by Justices Souter and Breyer, dissented, contending
that the case was not “ripe” for decision.

Massachusetts v. 5:4 Writing for the Court, Justice Stevens

Environmental Protection held that Massachusetts had standing to
Agency, 127 S.Ct. 1438 sue the EPA (EPA) over its failure to
(2007) regulate greenhouse emissions. Justice
Stevens reasoned that the state owned a
great deal of the territory affected and had the sovereign prerogative to force
reductions in the emissions, as well as that the EP Act granted a procedural
right to challenge the EPA’s rulemaking as arbitrary and capricious, since the
state’s risk was both “actual” and “imminent.” Chief Justice Roberts and Jus-
tices Scalia, Thomas, and Alito dissented.

the majority, Justice Thomas held that in asserting standing to sue a

building association did not have to show that any of its members, in
the absence of the program, would have received building contracts set
aside for women and minorities. While the ruling makes it easier to
bring suits attacking set-aside and affirmative action programs, the deci-
sion more generally invites lawsuits against governments over the ad-
ministration: of benefit programs by individuals who need not show
they were actually denied or would have obtained benefits.
In Wyoming v. Oklahoma, 502 U.S. 437 (1992), however, a majority
of the Rehnquist Court expanded standing for states to challenge the
constitutionality of other states’ regulations under the commerce clause
on the grounds those regulations diminished the state’s tax revenues. In
order to promote local jobs and to increase tax revenues, in 1986 Okla-
homa enacted a law requiring its public utilities to purchase at least 10
percent of the coal they used from mines within the state. As a result,
 A | Jurisdiction and Justiciable Controversies | 115

Oklahoma’s public utilities purchased less Wyoming-mined coal, and

Wyoming lost revenues from severance taxes on coal that would have
otherwise been sold to Oklahoma’s public utilities. Writing for the
Court, Justice White struck down Oklahoma’s statute as a violation of
the Commerce Clause, which “prohibits economic protectionism—that
is, regulatory measures designed to benefit in-state economic interests
by burdening out-of-state competitors.” In doing so, he held that states
could invoke the Court’s original jurisdiction, granted in Article III,
and rejected Oklahoma’s argument that Wyoming was neither engaged
in interstate commerce nor had asserted an injury or interest covered
by the commerce clause. “It is beyond peradventure,’ Justice White
claimed, “that Wyoming has raised a claim of ‘sufficient seriousness
and dignity’? Oklahoma, acting in its sovereign capacity, passed the
act, which directly affects Wyoming’s ability to collect severance tax
revenues, an action undertaken in its sovereign capacity.’ Having
granted Wyoming standing to sue on the basis of its loss of revenue,
Justice White struck down Oklahoma’s law, observing that “when
a state statute clearly discriminates against interstate commerce, it
will be struck down, unless the discrimination is demonstrably justi-
fied by a valid factor unrelated to economic protectionism, see, e.g.,
Maine v. Taylor, 477 U.S. 131 (1986)” (Vol. 1, Ch. 7). By contrast, in
a dissenting opinion joined by Chief Justice Rehnquist and Jus-
tice Thomas, Justice Scalia took strong exception to the majority’s exer-
cise of its original jurisdiction, granting of standing to Wyoming,
and holding that a state’s loss of revenue was within the “zone of
interests” covered by the Commerce Clause. Wyoming, in his view,
failed to assert a direct injury or an interest within the “zone-of-
interests” embraced by the commerce clause; a state’s interest in collect-
ing taxes, as he put, was “only marginally related to the national
market/free trade foundation of our jurisprudence” of applying the
commerce clause in the absence of congressional legislation to strike
state regulations deemed to burden interstate commerce.
Finally, the Court avoided the controversy over whether requiring
school children to recite the Pledge of Allegiance violates the First
Amendment by denying standing in Elk Grove Unified School District v.
Newdow (2004) (excerpted below). Writing for the Court, Justice
Stevens held that Michael A. Newdow, who challenged the policy on
behalf of his daughter, even though he was not her legal custodian,
lacked “prudential standing’—a Court-made rule. In other words,
when legal claims are based on domestic relations law, a field largely left
to states, “the, prudent course is for the federal court to stay its hand
rather than reach out to resolve a weighty question of federal constitu-
tional law”’ But in concurring opinions, Chief Justice Rehnquist and
Justices O’Connor and Thomas dismissed the ruling on “prudential
116 | Law AND PotitTics IN THE SUPREME COURT

standing” as “novel” and “like the proverbial excursion ticket—good for

this day only.’ They would have granted standing and rejected New-
dow’s First Amendment claims. The controversy over the Pledge and
the motto “In God We Trust” is nonetheless certain to continue and to
return to the Court in another case.

M@ RIPENESS AND MOOTNESS

With the doctrines of ripeness and mootness the Court wields a

double-edged sword. Appellants, those appealing a lower court ruling,
may discover that a case is dismissed because it was brought too early or
because the issues are moot and the case was brought too late. Cases are
usually rejected as not ripe if the injury claimed has not yet been real-
ized, or if other avenues of appeal have not yet been exhausted. Peti-
tioners raising a federal clam when appealing a state court ruling, for
example, must exhaust all appeals in the state courts and the Court will
not exercise jurisdiction until a “final judgment” has been rendered by
the highest court in the state. The Court underscored its adherence to
that rule when it dismissed Johnson v. California, 541 U.S. 428 (2004),
because the petitioner failed to include (as required under the Court’s
rules) in an appendix to the petition for certiorari all opinions and final
decisions in the case. Here, the state appellate court published only part
of its decision (and, like other state and federal appellate courts in the
last thirty years, withheld publication of part of its judgment, due to the
mounting number of decisions annually handed down). Johnson
included in the appendix only the published opinion and not the un-
published portion (which, like other unpublished opinions, was none-
theless available on Lexis). When the Court discovered from the
unpublished opinion that the state appellate court’s decision was not in
all respects final, it dismissed the case. The Court thereby signaled peti-
tioners to append any published and unpublished opinions of state high
courts in order to establish that the decision appealed is indeed “final.”
Alternatively, a case may be dismissed if pertinent facts or laws
change so that there is no longer real adverseness or an actual case or
controversy. The issue becomes moot because “there is no subject mat-
ter on which the judgment of the court can operate,” and hence a rul-
ing would not prove “conclusive” and final.’ In practice both doctrines
bend to the Court’s will, because the requirement of ripeness permits
the Court to avoid or delay deciding certain issues.
A finding of mootness likewise enables the Court to avoid, if not
escape, deciding controversial political issues. DeFunis v. Odegaard, 416
USS. 312 (1974), for example, involved a white student who was denied
 A | Jurisdiction and Justiciable Controversies | 117

ew THE DEVELOPMENT OF LAW

Class Action Suits

The Federal Rules of Civil Procedure provide for “class action” suits—suits
filed by an individual for himself and for all others who have suffered the same
injury. This rule enables individuals who have suffered small monetary damages
to bring lawsuits that they might not otherwise have brought because of the
prohibitively high cost of litigation. Specifically, Rule 23 provides that
[o]ne or more members of a class may sue or be sued as representa-
tive parties on behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are questions of
law or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class, and (4) the representative parties will fairly and adequately
protect the interests of the class...
In any class action maintained under [this Rule], the court shall di-
rect to the members of the class the best notice practicable under
the circumstances, including individual notice to all members who
can be identified.
The scope of this rule, however, was limited by Eisen v. Carlisle & Jacquelin,
417 USS. 156 (1974), holding that when arepresentative of a class action suit
refuses to pay the cost of giving actual notice to all reasonably identifiable
class members, federal courts are required to dismiss the suit. Here, represen-
tatives had to notify 2,250,000 class members at a cost of $225,000.
In 2005, President George W. Bush signed into law the Class Action Fair-
ness Act, which moved from state to federal courts large, interstate class-action
lawsuits brought by consumers against businesses for fraud and faulty prod-
ucts. For over a decade business groups had lobbied for the legislation. They
contended that businesses faced too many frivolous lawsuits and excessive
punitive damage awards, and that lawyers filed such suits in states known to be
favorable to consumers. Consumer advocates, trial lawyers, and the U.S. Judi-
cial Conference opposed the law. They countered that the law would burden
the federal judiciary; that federal courts were ill equipped to deal with such
suits, which usually involve the application of state consumer protection laws;
and that consumers would be discouraged from bringing such suits.
Under the law, class-action suits seeking $5 million or more remain in
state courts only if the primary defendant and more than one-third of the
plaintiffs are from the same state. If fewer than one-third of the plaintiffs are
from the same state as the primary defendant, and more than $5 million is
sought, the case goes to a federal court. In addition, the law also limits attor-
ney fees when plaintiffs only receive discount coupons on products instead
of financial settlements, by linking the fees to the coupon’s redemption rate
or the actual hours spent working on the case.
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118 | Law AND PotiTiIcs IN THE SUPREME COURT

admission to the University of Washington Law School. The student

claimed that the school’s affirmative action program discriminated
against him and allowed the entrance of minorities with lower LSAT
test scores. After the trial judge ruled in his favor, he was admitted into
law school but by the time his case reached the Supreme Court he was
completing his final year and assured of graduation. Over four dis-
senters, the majority held that the case was moot. Yet, as the dissenters
predicted, the issue would not go away. Within four years, the Burger
Court reconsidered the issue of reverse discrimination in university af-
firmative action programs in Regents of the University of California v.
Bakke, 438 U.S. 265 (1978) (see Vol. 2, Ch. 12).
The issue of mootness could, have presented a problem when the
Burger Court ruled on abortion in Roe v. Wade, 410 U.S. 113 (1973)
(see Vol. 2, Ch. 11). There the Court struck down Texas’s criminal
statute prohibiting abortions, except when necessary to save a mother’s
life. When defending the law, the state’s attorney general argued that the
plaintiff was a single woman whose pregnancy had already resulted in
birth by the time the case reached the Court, and hence her claim was
moot. However, Justice Harry Blackmun, writing for the Court, re-
jected that view out of hand:

[W]hen, as here, pregnancy is a significant fact in the litigation, the

normal 266-day human gestation period is so short that the preg-
nancy will come to term before the usual appellate process is com-
‘plete. If that termination makes a case moot, pregnancy litigation
seldom will survive much beyond the trial stage, and appellate re-
view will be effectively denied. Our law should not be that rigid.
Pregnancy often comes more than once to the same woman, and in
the general population, if man is to survive, it will always be with
us. Pregnancy provides a classic justification for a conclusion of non-
mootness. It truly could be “capable of repetition, yet evading review.’

More recently, the Roberts Court dismissed as moot Claiborne v.

United States, 127 S.Ct. 2245 (2007), a case appealing an appellate court’s
reversal of a district court’s sentencing of Mario Claiborne below the
recommended mandatory federal sentencing guidelines, which the
Court declared unconstitutional in United States v. Booker, 543 U.S. 220
(2005), in ruling that they are only advisory. Claiborne, a twenty-one-
year-old convicted of selling cocaine, was sentenced to fifteen months in
prison instead of the prescribed thirty-seven to forty-six months. But af-
ter serving his sentence, while his appeal was pending before the Court,
he was shot to death. The Roberts Court thus dismissed his appeal and
granted another case raising the issue of federal judges’ discretion in sen-
tencing, on which federal circuit courts are divided.
 A | Jurisdiction and Justiciable Controversies | 119

M POLITICAL QUESTIONS

Even when the Court has jurisdiction over a properly framed suit, it
may decline to rule because it decides that a case raises a “political
question” that should be resolved by other political branches. Like-
other jurisdictional doctrines, the political question doctrine means
what the justices say it means.
The doctrine has its origin in Chief Justice Marshall’s observation
in Marbury v. Madison, 5 U.S. 137 (1803) (see Ch. 1), that “[t]he prov-
ince of the Court, is, solely, to decide on the rights of individuals.
..- Questions in their nature political, or which are, by the constitution
and laws, submitted to the executive can never be made in this Court.”
Yet as the French commentator Alexis de Tocqueville noted in the
1830s, “Scarcely any political quéstion arises in the United States that is
not resolved, sooner or later, into a judicial question.”* Litigation that
reaches the Court is political, and the justices for political reasons de-
cide what and how to decide cases on their docket.
The Taney Court first developed the doctrine in Luther v. Borden, 7
How. [48 U.S.] 1 (1849). There, the Court held that whether Rhode
Island had a “republican form of government,” as guaranteed by Art-
icle IV of the Constitution, was a question for Congress, not the
Court, to decide. Subsequent rulings elaborated other reasons for the
doctrine besides deference to separation of powers. The Court may
lack information and resources needed for a ruling. In some areas, as in
foreign policy and international relations, the Court lacks both ade-
quate standards for resolving disputes and the means to enforce its de-
cisions.
For many decades the Court relied on the doctrine to avoid en-
tering the “political thicket” of state representation and apportion-
ment, that is, the ways by which astate is divided geographically as a
basis for representation in state and federal elections. When declining to
rule on the malapportionment of Illinois’s congressional districts in
Colegrove v. Green, 328 U.S. 549 (1946), Justice Felix Frankfurter ex-
plained,

We are of the opinion that the petitioners ask of this Court what 1s
beyond its competence to grant. This is one of those demands on
judicial power which cannot be met by verbal fencing about “juris-
diction.” It must be resolved by considerations on the basis of which
this Court, from time to time, has refused to intervene in contro-
versies. It ‘has refused to do so because due regard for the effective
working of our Government revealed this issue to be of a peculiarly
political nature and therefore not meet for judicial determination.
120 | Law AND POLITICS IN THE SUPREME COURT

m INSIDE THE COURT

Standing and the Connecticut Birth Control Cases

Between 1943 and 1965, the Court continually refused standing to individ-
uals attacking the constitutionality of a late nineteenth-century Connecticut
statute. The law prohibited virtually all single and married individuals from
using contraceptives and physicians from giving advice about their use. In
Tileston v. Ullman, 318 U.S. 44 (1943), a doctor sued charging that the statute
prevented him from giving information to patients. But the Court ruled that
he had no real interest or personal injury because he had not been arrested.
More than a decade later in Poe v. Ullman, 367 U.S. 497 (1961), a doctor,
C. Lee Buxton, and a patient were likewise denied standing on the ground
that the law had not been enforced for more than eighty years, even though
the state had begun to close birth control clinics. This time the justices split
five to four and only Chief Justice Warren and Justices Clark and Whittaker
joined Justice Frankfurter’s opinion for the Court (Justice Brennan con-
curred in the decision but not in the opinion). There, Frankfurter observed
that
[t]he Connecticut law prohibiting the use of contraceptives has
been on the State’s books since 1879... . During more than three-
quarters of a century since its enactment, a prosecution for its vio-
lation seems never to have been initiated, save in [one] case... .
Neither counsel nor our own researches have discovered any other
attempt to enforce the prohibition of distribution or use of
contraceptive devices by criminal process. The unreality of these
law suits is illuminated by another circumstance. We were advised
by counsel for appellants that contraceptives are commonly and no-
toriously sold in Connecticut drug stores. Yet no prosecutions are
recorded: ...
The various doctrines of “standing,” “ripeness,” and “mootness,”
which this Court has evolved with particular, though not exclusive,
reference to such cases are but several manifestations—each having
its own “varied application”—of the primary conception that fed-
eral judicial power is to be exercised to strike down legislation,
whether state or federal, only at the instance of one who is himself
immediately harmed, or immediately threatened with harm, by the
challenged action... .

By contrast, dissenting Justices Douglas, Harlan, and Stewart disagreed.

Notably, Justice Harlan’s dissent in Poe v. Ullman would have granted standing
and reached the merits of the case in a lengthy and influential opinion, ob-
serving that
 A | Jurisdiction and Justiciable Controversies | 121%

I consider that this Connecticut legislation, as construed to apply to

these appellants, violates the Fourteenth Amendment. I believe that
a statute making it a criminal offense for married couples to use
contraceptives is an intolerable and unjustifiable invasion of privacy
in the conduct of the most intimate concerns of an individual’s per-
sonal life.:. «):
[I]t is not the particular enumeration of rights in the first eight
Amendments which spells out the reach of Fourteenth Amendment
due process, but rather, as was suggested in another context long
before the adoption of that Amendment, those concepts which are
considered to embrace those rights “which are . . . fundamental;
which belong ... to the citizens of all free governments,” Corfield v.
Coryell, for “the purposes [of securing] which men enter into soci-
ety,’ Calder v. Bull. Again and again this Court has resisted the no-
tion that the Fourteenth Amendment is no more than a shorthand
reference to what is explicitly set out elsewhere in the Bill of
Rights. ...
Due process has not been reduced to any formula; its content can-
not be determined by reference to any code. The best that can be
said is that through the course of this Court’s decisions it has repre-
sented the balance which our Nation, built upon postulates of re-
spect for the liberty of the individual, has struck between that
liberty and the demands of organized society. If the supplying of
content to this Constitutional concept has of necessity been a ra-
tional process, it certainly has not been one where judges have felt
free to roam where unguided speculation might take them. The bal-
ance of which I speak is the balance struck by this country, having
regard to what history teaches are the traditions from which it de-
veloped as well as the traditions from which it broke. That tradition
is a living thing. A decision of this Court which radically departs
from it could not long survive, while a decision which builds on
what has survived is likely to be sound. No formula could serve as
a substitute, in this area, for judgment and restraint. .. .
Each new claim to Constitutional protection must be considered
“against a background of Constitutional purposes, as they have been
rationally perceived and historically developed. Though we exercise
limited and sharply restrained judgment, yet there is no “mechani-
cal yardstick,’ no “mechanical answer.” The decision of an appar-
ently novel claim must depend on grounds which follow closely on
well-accepted principles and criteria. The new decision must take
“its place in relation to what went before and further [cut] a chan-
nel for what is to come.” Irvine v. California (dissenting opinion).
Precisely what is involved here is this: the State is asserting the right
to enforce its moral judgment by intruding upon the most intimate
details of the marital relation with the full power of the criminal
law. Potentially, this could allow the deployment of all the inciden-
——
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122 | Law AND POLITICS IN THE SUPREME COURT

SS
tal machinery of the criminal law, arrests, searches and seizures; in-
evitably, it must mean at the very least the lodging of criminal
charges, a public trial, and testimony as to the corpus delicti [the body
of crime]... . In sum, the statute allows the State to enquire into,
prove and punish married people for the private use of their mari-
tal intimacy... .
I think the sweep of the Court’s decisions, under both the Fourth
and Fourteenth Amendments, amply shows that the Constitution
protects the privacy of the home against all unreasonable intrusion
of whatever character. ...
Finally, after Dr. Buxton and Estelle Griswold, executive director of
Planned Parenthood League of Connecticut, were tried and found guilty of
prescribing contraceptives to a married couple, the Court in Griswold v. Con-
necticut (1965) (excerpted in Vol. 2, Ch. 4) struck down what Justice Potter
Stewart called Connecticut’s “uncommonly silly law.” In his opinion for the
Court, Justice Douglas explained why Buxton and Griswold were now
granted standing:
The appellants were found guilty as accessories and fined $100
each, against the claim that the accessory statute as so applied vio-
lated the Fourteenth Amendment. ...We think that appellants have
standing to raise the constitutional rights of married people with
whom they had a professional relationship. Tileston v. Ullman, is dif-
ferent, for there the plaintiff seeking to represent others asked for a
declaratory judgment. In that situation, we thought that the re-
quirements of standing should be strict, lest the standards of “case
_or controversy” in Article III of the Constitution become blurred.
Here those doubts are removed by reason of a criminal conviction
for serving married couples in violation of an aiding-and-abetting
statute. Certainly the accessory should have standing to assert that
the offense which he is charged with assisting is not, or cannot con-
stitutionally be a crime.
Griswold was limited to the privacy and marital decisions of couples.
Consequently, in Eisenstadt v. Baird, 405 U.S. 438 (1972), to gain standing to
claim that single individuals also have a right to acquire and use contra-
ceptives, a doctor arranged to be arrested after delivering a public lecture on
contraceptives and handing out samples to single women in the audience.
The Court accepted the case and ruled that single women also have the right
to acquire and use contraceptives.

This is not an action to recover for damages because of the dis-

criminatory exclusion of a plaintiff from rights enjoyed by other
citizens. The basis for the suit is not a private wrong, but a wrong
suffered by Illinois as a polity... .In effect this is an appeal to the
federal courts to reconstruct the electoral process of IIlinois in order
that it may be adequately represented in the councils of the Nation. -
 A | Jurisdiction and Justiciable Controversies | 123

Because the Illinois legislature has failed to revise its Congressional

Representative districts in order to reflect great changes, during
more than a generation, in the distribution of its population, we are
asked to do this, for Illinois. . . .

Of course no court can affirmatively remap the Illinois districts so

as to bring them more in conformity with the standards of fairness
for a representative system. At best we could only declare the exist-
ing electoral system invalid. The result would be to leave Illinois
undistricted and to bring into operation, if the Illinois legislature
chose not to act, the choice of members for the House of Repre-
sentatives on a state-wide ticket. The last stage may be worse than
the firsts. 4
Nothing is clearer than.that this controversy concerns matters that
bring courts into immediate and active relations with party con-
tests. From the determination of such issues this Court has tradi-
tionally held aloof. It is hostile to the democratic system to involve
the judiciary in the politics of the people. And it is not less perni-
cious if such judicial intervention in an essentially political contest
be dressed up in the abstract phrases of the law.
The one stark fact that emerges from the study of the history of
Congressional apportionment is its enrollment in politics, in the
sense of party contests and party interests. The Constitution enjoins
upon Congress the duty of apportioning Representatives “among
the several States ... according to their respective Numbers. . . .” Ar-
ticle I, Sec. 2. Yet, Congress has at times been heedless of this com-
mand and not apportioned according to the requirements of the
Census. It never occurred to anyone that this Court could issue
mandamus to compel Congress to perform its mandatory duty to
apportion.

Still, whites, blacks, and other minorities in urban and suburban ar-
eas were often denied equal representation in Congress and state legis-
latures until the Court reversed itself in Baker v. Carr (1962) (excerpted
below).
In Goldwater v. Carter (1979) (excerpted below), the Court issued an
order vacating (overturning) a lower court decision in a dispute be-
tween several congressmen, headed by conservative Senator Barry
Goldwater, and Democratic President Jimmy Carter over the termina-
tion of a defense treaty with Taiwan. There, Justices Lewis F Powell and
William Rehnquist took quite different views of the application of the
“political questions” doctrine in controversies between Congress and
the president. Goldwater v. Carter also represents the Court’s entertaining
in the late twentieth century of congressional standing—members of the
Senate and House of Representatives—challenging the constitutional-
ity of congressional legislation and executive action; see, e.g. Bowsher v.
Synar, 478 U.S. 714 (1986) (excerpted in Vol. 1, Ch. 4). The Court,
124 | Law anD POLITICS IN THE SUPREME COURT

however, drew the line on congressional standing to challenge the con-

stitutionality of newly enacted legislation in Raines v. Byrd, 521 U.S. 811
(1997), denying standing to challenge the Line Item Veto Act of 1996;
subsequently the Court struck down that law in another suit brought
by public and private parties in Clinton v. City of New York, 524 U.S. 417
(1998) (excerpted in Vol. 1, Ch. 4).
The Court also reconsidered the “political question” doctrine in
Nixon v. United States, 506 U.S. 224 (1993) (see Vol. 1, Ch. 5). There, the
Rehnquist Court held that a former federal judge’s challenge to the
Senate’s expedited impeachment procedure was nonjusticiable. While
also upholding the constitutionality of the Senate’s procedure in his
opinion for the Court, Chief Justice Rehnquist appeared to go out of
his way to justify the application of the doctrine and ostensible exercise
of judicial self-restraint.
The doctrine’s logic is admittedly circular. “Political questions are
matters not soluble by the judicial process; matters not soluble by the
judicial process are political questions. As an early dictionary ex-
plained,” political scientist John Roche says, “violins are small cellos,
and cellos are large violins.” Still, Columbia Law School professor
Louis Henkin points out, even when denying review because of a po-
litical question, “the court does not refuse judicial review; it exercises it.
It is not dismissing the case or the issue as nonjusticiable; it adjudicates
it. It is not refusing to pass on the power of the political branches; it
passes upon it, only to affirm that they had the power which had been
challenged and that nothing in the Constitution prohibited the partic-
ular exercise of it.”
Another illustrative controversy over the “political question” doc-
trine that continues to dog the Court involves the justiciability of po-
litical gerrymandering (redrawing voting district lines by the majority
party in a legislature to benefit incumbents and to disadvantage candi-
dates and voters in opposing parties). In Davis v. Bandemer, 478 U.S. 106
(1986), a plurality held that political gerrymandering controversies were
justiciable, but failed to provide a standard for adjudicating such dis-
putes. Almost twenty years later in Vieth v._Juderlirer, 541 U.S. 267 (2004)
(excerpted in Ch. 8), a plurality would have overruled Davis v. Bandemer
and held that such controversies are nonjusticiable. But Justice
Kennedy, who cast the deciding vote, would not go along with that
and maintained that a standard for adjudicating the matter might still
evolve. The four dissenters—Justices Stevens, Souter, Ginsburg, and
Breyer—countered that such disputes were justiciable and proposed
their own standards, but they could not agree on a standard for deter-
mining when political gerrymanders are unconstitutional.
 A | Jurisdiction and Justiciable Controversies | 125

M@ Sr4RE DECISIS AND OTHER POLICIES

The justices occasionally rely on other self-denying policies to avoid

reaching issues as well. They, for example, may invoke what has been
called the doctrine of strict necessity, and thereupon formulate and de-
cide only the narrowest possible issue.
Another doctrine, stare decisis (“let the prior decision stand”), is also
not a mechanical formula. It is rather a judicial policy that promotes
“the certainty, uniformity, and stability of the law.” Even conservative
Justice George Sutherland recognized that members of the Court “are
not infallible, and when convinced that a prior decision was not origi-
nally based on, or that conditions have so changed as to render the de-
cision no longer in accordance with, sound reason, [they] should not
hesitate to say so." “Stare decisis isusually the wise policy,’ Justice Louis
Brandeis remarked, “because in most matters it is more important that
the applicable rule of law be settled than that it be settled right.””? On
constitutional matters, however, Justice Douglas among others empha-
sizes, “stare decisis—that is, established law—was really no sure guideline
because what did ... the judges who sat there in 1875 know about, say,
electronic surveillance? They didn’t know anything about it.”
The Rehnquist Court’s deference to stare decisis was a matter of
controversy on and off the bench for several years. Indeed, Justice Scalia’s
sharp attack on a number of prior rulings prompted a response from re-
tired Justice Lewis F Powell, Jr., in his 1989 Leslie H. Arps Lecture, de-
livered to the Association of the Bar of the City of New York and
entitled “Stare Decisis and Judicial Restraint.” In Justice Powell’s words:

Those who would eliminate stare decisis in constitutional cases argue

that the doctrine is simply one of convenience. .. . But elimination
of constitutional stare decisis would represent explicit endorsement
of the idea that the Constitution is nothing more than what five
Justices say it is. This would undermine the rule of law. ...
It is evident that I consider stare decisis essential to the rule of law... .
After two centuries of vast change, the original intent of the
Founders is difficult to discern or is irrelevant. Indeed, there may be
no evidence of intent. The Framers of the Constitution were wise
enough to write broadly, using language that must be construed in
light of changing conditions that could not be foreseen. Yet the
doctrine of stare decisis has remained a constant thread in preserving
continuity and stability.

- But the debate over stare decisis continued and was especially sharp
when by a six-to-three vote the Rehnquist Court overturned two of
its own earlier decisions, in Payne v. Tennessee, 501 U.S. 808 (1991) (see
126 | Law AND POLITICS IN THE SUPREME COURT

Vol. 2, Ch. 10), striking down the use of “victim impact statements” 1n
death penalty cases. Note, however, that subsequently Justices O’Con-
nor, Kennedy, and Souter balked at applying Payne's analysis of stare de-
cisis in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833 (1992) (see Vol. 2, Ch. 11). There, they gave the doctrine of stare de-
cisis a new twist when justifying their refusal to overrule entirely the
landmark abortion ruling in Roe v. Wade (1973) (see Vol. 2, Ch. 11) and
drew sharp criticism from Chief Justice Rehnquist and Justices Scalia,
Thomas, and White.
In sum, stare decisis and the precedential value of the Court’s juris-
dictional doctrines and policies, as Justice Jackson in half-jest quipped,
“are accepted only at their current valuation and have a mortality rate
as high as their authors."

HM ForMAL RULES AND PRACTICES

Except for government attorneys and members of the practicing bar,

few people pay any attention to the technical Rules of the Court. Yet,
they are an exercise of political power and determine the nation’s access
to justice. The rules govern the admission and activities of attorneys in
filing appeals, petitions, and motions and conducting oral arguments.
They stipulate the fees, forms, and length of filings. Most important,
they explain the Court’s formal grounds for granting and disposing of
cases.
To expedite the process of deciding what to decide, the Court pe-
riodically revises its rules. For example, even after the Judiciary Act of
1925 expanded the Court’s discretionary jurisdiction, the justices still
felt burdened by mandatory appeals. Accordingly, in 1928 the Court re-
quired the filing of a jurisdictional statement explaining the circum-
stances of an appeal, the questions presented, and why the Court should
grant review. The requirement also allowed the justices to screen ap-
peals just like petitions for certiorari.
One of the reasons for granting certiorari given in the Court’s rules
is whether “‘a federal court of appeals has rendered a decision in conflict
with the decision of another federal court of appeals on the same mat-
ter.’ This rule is especially advantageous for the federal government.
The Department of Justice has a relitigation policy. If it receives an ad-
verse ruling from a circuit court of appeals, it will relitigate the issue in
other circuits to obtain favorable decisions and generate a conflict
among the circuits, which then may be brought to the Court. The rule
for granting circuit conflicts, however important, does not control the
 A | Jurisdiction and Justiciable Controversies | 127

Justices’ actual practice of granting certiorari. The government and indi-

viduals often allege circuit conflicts simply in an effort to get their cases
accepted. But most circuit conflicts are “tolerable” and need not be im-
mediately decided. The justices often feel that conflicts should percolate
in the circuits before they take them. Sometimes, the justices may want
to avoid or delay addressing an issue that has created a conflict among
the circuits. Most crucial in granting certiorari is simply that at least four
Justices agree on the importance of the issue presented.

NOTES

1. Charles E. Hughes, Addresses of Charles Evans Hughes (New York: Putnam’s, 1916),
185-186. s
2. Muskrat v. United States, 219 U.S. 346 (1911).
3. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978); and
Bellotti v. Baird, 443 U.S. 622 (1979).
4. Aetna Life Insurance Co. v. Haworth, 300 U.S. 277 (1937).
5. Data Processing Service v. Camp, 397 U.S. 150, 151 (1970).
6. Braxton County Court v. West Virginia, 208 U.S. 192 (1908); and Coleman v. Miller,
307 U.S. 433 (1931) (Frankfurter, J., dissenting opinion).
7. Ex parte Baez, 177 U.S. 378 (1900).
8. Alexis de Tocqueville, Democracy in America, Vol. 1, ed. P. Bradley (New York: Vin-
tage, 1945), 288.
9. John Roche, “Judicial Self-Restraint,’ 49 American Political Science Review 768 (1955).
10. Louis Henkin, “Is There a ‘Political Question’ Doctrine?” 85 Yale Law Journal 606
(1976).
11. Draft of an opinion, George Sutherland Papers, Manuscript Room, Library of
Congress.
12: Burnet v. Coronado Oil, 285 U.S. 393 (1932) (Brandeis,
J., dissenting opinion).
13. William O. Douglas, interview on CBS Reports, Sept. 6, 1972, CBS News, tran-
script p. 13.
14. Robert Jackson, “The Task of Maintaining Our Liberties: The Role of the Judi-
ciary,’ 39 American Bar Association Journal 962 (1953).

SELECTED BIBLIOGRAPHY
Banks, Christopher. Judicial Politics in the D.C. Circuit Court, Baltimore: Johns Hopkins
University Press, 1999.
Brenner, Saul, and Spaeth, Harold. Stare Indecisis. New York: Cambridge University
Press, 1995.
- Clayton, Cornell,and Gillman, Howard, eds. Supreme Court Decision-Making. Chicago:
University oi Chicago Press, 1999.
128 | Law AND POLITICS IN THE SUPREME COURT
a

Hansford, Thomas, and Spriggs, James. The Politics of Precedent on the U.S. Supreme
Court. Princeton, NJ: Princeton University Press, 2006.
Ivers, Gregg, and McGuire, Kevin T. eds. Creating Constitutional Change. Char-
lottesville: University of Virginia Press, 2004.
Kloppenberg, Lisa. Playing It Safe: How the Supreme Court Sidesteps Hard Cases and
Stunts the Development of Law. New York: New York University Press, 2001.
O’Brien, David. Storm Center: The Supreme Court in American Politics. New York: W. W.
Norton, 8th ed., 2008.
Posner, Richard. The Federal Courts. Cambridge, MA: Harvard University Press, 1996.
Rowland, C. K., and Carp, Robert. Politics & Judgment in Federal District Courts.
Lawrence: University Press of Kansas, 1996.
Stern, Robert, Gressman, Eugene, Shapiro, Steven, and Geller, Kenneth. Supreme Court
Practice, 7th ed. Washington, DC: Bureau of National Affairs, 1993.
Sterns, Maxwell L. Constitutional Process: A Social Choice Analysis of Supreme Court
Decisionmaking. Ann Arbor: University of Michigan Press, 2000.
Urofsky, Melvin, ed. 100 Americans Making Constitutional History. Washington, DC:
C. Q. Press, 2004.

= INSIDE THE COURT

The Supreme Court’s Reversal of Precedent in

Historical Perspective

The Supreme Court’s reversal of prior rulings registers. the politics of the
changing composition of the high bench. Between 1791 and 1991, the
Court reversed itself on average about once each term. In the nineteenth
century, though, reversals were more infrequent, if only because there were
fewer decisions to overturn. There were just 32 reversals in the nineteenth
century, whereas the Court has reversed itself 179 times in the twentieth
century, 166 since 1937.
The year 1937, of course, was a turning point for the Court and the
country. An economically conservative Court had struck down much of the
early New Deal program and, after his landslide reelection, Democratic Pres-
ident Franklin D. Roosevelt proposed that the number of justices be changed
from nine to fifteen, thereby enabling him to pack the Court. In the spring
of 1937, however, the Court abruptly reversed itself, upholding major pieces
of New Deal legislation, and the Senate defeated FDR’s “Court-packing
plan.” Conservative Justice Willis Van Devanter then retired and FDR had
the first of eight opportunities during the next six years to fill vacancies on
the Court, as well as the opportunity to elevate Justice Harlan F Stone to the
chief justiceship. Between 1937 and 1946, the Roosevelt Court overturned
some thirty precedents.
 A | Jurisdiction and Justiciable Controversies | 129

ee
When the Court’s composition changes dramatically in a short period
of time, or a pivotal justice leaves the bench, the Court tends to overturn
prior rulings. The Warren Court (1953-1969) was even more activist than
the Roosevelt Court in reversing forty-five precedents. Yet its record shows
how crucial the timing of one or two changes on the bench may prove for
the direction of the Court. From the landmark school desegregation ruling
in Brown v. Board of Education, 347 U.S. 483 (1954) (see Vol. 2, Ch. 12), to the
appointment of Justice Potter Stewart in 1959, the Warren Court reversed
only six precedents. With Justice Stewart’s arrival, six more precedents were
overturned in the following four years. In 1962, the Court’s composition
changed again with Democratic President John EF Kennedy’s appointments
of Justices Byron White and Arthur Goldberg. Over the following three years
fourteen prior rulings were discarded, and in the remaining four years of the
Warren Court another twenty wére reversed, as constitutional law was
pushed in ever more liberal and egalitarian directions.
During Chief Justice Warren F Burger’s tenure (1969-1986), the Court
gradually became more conservative, particularly in the area of criminal pro-
cedure. As its composition changed, the Burger Court also continued re-
considering precedents although typically liberal ones, reversing a total of
fifty-two prior rulings. After Republican President Richard M. Nixon made
the last two of his four appointments, Justices Harry Blackmun and William
Rehnquist, ten decisions were reversed between 1972 and 1975. A critical
conservative mass comparable to the liberal bloc on the Warren Court, how-
ever, failed to emerge. Then, liberal Justice William O. Douglas retired and his
seat was filled by Republican President Gerald R. Ford’s sole appointee, Jus-
tice John Paul Stevens. Between 1975 and 1981 the Burger Court then
reversed no fewer than twenty-two decisions. Following the arrival of Re-
publican President Ronald Reagan’s first appointee, Justice Sandra Day
O’Connor, another twelve precedents were overturned in the last five terms
of the Burger Court.
The Rehnquist Court (1986-2005) reversed thirty-nine decisions. No-
tably, with each successive change in its composition the Rehnquist Court
more actively reconsidered precedents laid down by its predecessors. In the
year following Reagan’s elevation of Justice Rehnquist to the chief justice-
ship and appointment of Justice Antonin Scalia, three precedents were re-
versed. After Reagan’s fourth appointee, Justice Anthony Kennedy, joined the
Court in 1988, another eight reversals came down in the 1987 to 1989
terms. Republican President George H. W. Bush’s first appointee, Justice
David H. Souter, then replaced the retired liberal Justice William J. Brennan.
In the 1990 term, the Rehnquist Court overturned seven prior decisions. At
the end of that term, Justice Thurgood Marshall announced his retirement
and predicted, in Payne v. Tennessee, 501 U.S. 808 (1991) (excerpted in
Ch. 10), that the Court would reverse many earlier liberal rulings. With
' Bush’s sec@nd appointee, Justice Clarence Thomas, on the bench, the Court
reversed, in whole or in part, five decisions during the 1991 term. But
ee
130 | Law AND PoLiTICs IN THE SUPREME COURT

compare the treatment of the doctrine of stare decisis in the opinions in Payne
with those in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833 (1992). A majority of the Roberts Court (2005—), however, has been
less willing to overtly overturn prior decisions, but instead limited those de-
cisions; see, for example, Hein v. Freedom from Religion Foundation, Inc. (2007)
(excerpted below).

The following table places the Court’s reversals of precedents in histori-

cal perspective.

NUMBER OF
PRECEDENTS
COURT OVERTURNED

Marshall Court (1801-1836) 3S

Taney Court (1836-1864) 4
Chase Court (1864-1873) 4
Waite Court (1874-1888) 13
Fuller Court (1888-1910) 4
White Court (1910-1921) 5
Taft Court (1921-1930) 6
Hughes Court (1930-1941) 21
Stone Court (1941-1946) 15
Vinson Court (1946-1953) 13
Warren Court (1953-1969) 45
Burger Court (1969-1986) a2
Rehnquist Court (1986-2005) 39
Roberts Court (2005- ) 3
Total 227

This table updates data collected and analyzed by Christopher Banks. For a further
discussion of the Supreme Court’s reversal of precedents, see Christopher Banks,
“The Supreme Court and Precedent: An Analysis of Natural Courts and Reversal
Trends,” 75 Judicature 262 (Feb./Mar. 1992). This table was updated through the
2006-2007 term by the author.

Flast v. Cohen
392 USS. 83, 88 S.CT. 1942 (1968)

Florance Flast and several other taxpayers sought standing to challenge

the constitutionality of the Elementary and Secondary Education Act
of 1965. The act provided funding for instructional materials and pur-
chase of textbooks for religious schools. Flast contended that the act vi-
 A | Jurisdiction and Justiciable Controversies | 131

olated the First Amendment’s ban on the establishment of religion and

guarantee for the free exercise of religion. In a federal district court in
New York, she filed suit against Wilbur Cohen, the secretary of Health,
Education, and Welfare, to enjoin the spending of funds authorized for
religious schools. The district court denied standing and Flast appealed
to the Supreme Court.
The Court’s decision was eight to one, with the majority’s opinion
announced by Chief Justice Warren. There were concurrences by Jus-
tices Douglas, Stewart, and Fortas. Justice Harlan dissented.

@ Chief Justice WARREN delivers the opinion of the Court.

In Frothingham v. Mellon [262 U.S. 447] (1923), this Court ruled that a
federal taxpayer is without standing to challenge the constitutionality of a
federal statute. That ruling has stood for 45 years as an impenetrable barrier
to suits against Acts of Congress brought by individuals who can assert only
the interest of federal taxpayers. In this case, we must decide whether the
Frothingham barrier should be lowered when a taxpayer attacks a federal
statute on the ground that it violates the Establishment and Free Exercise
- Clauses of the First Amendment. ...
This Court first faced squarely the question whether alitigant asserting
only his status as a taxpayer has standing to maintain a suit in a federal court
in Frothingham v. Mellon, supra, and that decision must be the starting point for
analysis in this case. The taxpayer in Frothingham attacked as unconstitutional
the Maternity Act of 1921, which established a federal program of grants to
those States which would undertake programs to reduce maternal and infant
mortality. ...The Court noted that a federal taxpayer’s “interest in the moneys
of the Treasury . . . is comparatively minute and indeterminable” and that
“the effect upon future taxation, of any payment out of the [Treasury’s]
funds, . . . [is} remote, fluctuating and uncertain.” As a result, the Court ruled
that the taxpayer had failed to allege the type of “direct injury” necessary to
confer standing.
Although the barrier Frothingham erected against federal taxpayer suits
has never been breached, the decision has been the source of some confusion
and the object of considerable criticism. The confusion has developed as
commentators have tried to determine whether Frothingham establishes a
constitutional bar to taxpayer suits or whether the Court was simply im-
posing a rule of self restraint which was not constitutionally compelled. The
conflicting viewpoints are reflected in the arguments made to this Court by
the parties in this case. The Government has pressed upon us the view that
Frothingham announced a constitutional rule, compelled by the Article HI
limitations on federal court jurisdiction and grounded in considerations of
the doctrine of separation of powers. Appellants, however, insist that Frothing-
ham expressed no more than a policy of judicial self-restraint which can be
disregarded when compelling reasons for assuming jurisdiction over a tax-
payer's suit exist. The opinion delivered in Frothingham can be read to support
either position... .
To the extent that Frothingham has been viewed as resting on policy
considerations, it has been criticized as depending on assumptions not con-
132 | Law AND PoLiTICs IN THE SUPREME COURT
a

sistent with modern conditions. For example, some commentators have

pointed out that a number of corporate taxpayers today have a federal tax li-
ability running into hundreds of millions of dollars, and such taxpayers have
a far greater monetary stake in the Federal Treasury than they do in any mu-
nicipal treasury. To some degree, the fear expressed in Frothingham that allow-
ing one taxpayer to sue would inundate the federal courts with countless
similar suits has been mitigated by the ready availability of the devices of class
actions and joinder under the Federal Rules of Civil Procedure, adopted
subsequent to the decision in Frothingham. .. .
The jurisdiction of federal courts is defined and limited by Article III of
the Constitution. In terms relevant to the question for decision in this
case, the judicial power of federal courts is constitutionally restricted
to “cases” and “controversies.” As is so often the situation in constitutional
adjudication, those two words have an iceberg quality, containing beneath
their surface simplicity submerged complexities which go to the very heart
of our constitutional form of government. Embodied in the words “cases”
and “controversies” are two complementary but somewhat different limita-
tions. In part those words limit the business of federal courts to questions
presented in an adversary context and in a form historically viewed as capa-
ble of resolution through the judicial process. And in part those words define
the role assigned to the judiciary ina tripartite allocation of power to assure
that the federal courts will not intrude into areas committed to the other
branches of government. Justiciability is the term of art employed to give ex-
pression to this dual limitation placed upon federal courts by the case-and-
controversy doctrine.
Justiciability is itself a concept of uncertain meaning and scope. Its reach
is illustrated by the various grounds upon which questions sought to be ad-
judicated in federal courts have been held not to be justiciable. Thus, no jus-
ticiable controversy is presented when the parties seek adjudication of only a
political question, when the parties are asking for an advisory opinion, when
the question sought to be adjudicated has been mooted by subsequent de-
velopments, and when there is no standing to maintain the action. Yet it re-
mains true that “[ jJusticiability is ...not a legal concept with a fixed content
or susceptible of scientific verification. Its utilization is the resultant of many
subtle pressures,” Poe v. Ullman [367 U.S. 497 (1961)].
Part of the difficulty in giving precise meaning and form to the concept
of justiciability stems from the uncertain historical antecedents of the case-
and-controversy doctrine. For example, Justice FRANKFURTER twice
suggested that historical meaning could be imparted to the concepts of justi-
ciability and case and controversy by reference to the practices of the courts
of Westminster when the Constitution was adopted... .
However, the power of English judges to deliver advisory opinions was
well established at the time the Constitution was drafted. And it is quite clear
that “the oldest and most consistent thread in the federal law of justiciability
is that the federal courts will not give advisory opinions.” Thus, the implicit
policies embodied in Article HI, and not history alone, impose the rule
against advisory opinions on federal courts. When the federal judicial power
is invoked to pass upon the validity of actions by the Legislative and Execu-
tive Branches of the Government, the rule against advisory opinions imple-
ments the separation of powers prescribed by the Constitution and confines
 A | Jurisdiction and Justiciable Controversies | 133

federal courts to the role assigned them by Article III. However, the rule
against advisory opinions also recognizes that such suits often “are not
pressed before the Court with that clear concreteness provided when a ques-
tion emerges precisely framed and necessary for decision from a clash of
adversary argument exploring every aspect of a multifaceted situation em-
bracing conflicting and demanding interests.” Consequently, the Article III
prohibition against advisory opinions reflects the complementary constitu-
tional considerations expressed by the justiciability doctrine: Federal judicial
power is limited to those disputes which confine federal courts to a role con-
sistent with a system of separated powers and which are traditionally thought
to be capable of resolution through the judicial process.
Additional uncertainty exists in‘the doctrine of justiciability because
that doctrine has become a blend of constitutional requirements and policy
considerations. And a policy limitation is “not always clearly distinguished
from the constitutional limitation.” . . . The “many subtle pressures” which
cause policy considerations to blend into the constitutional limitations of
Article III make the justiciability doctrine one of uncertain and shifting
contours.
It is in this context that the standing question presented by this case
miust be viewed and that the Government’s argument on that question must
be evaluated. As we understand it, the Government’s position is that the con-
stitutional scheme of separation of powers, and the deference owed by the
federal judiciary to the other two branches of government within that
scheme, present an absolute bar to taxpayer suits challenging the validity of
federal spending programs. The Government views such suits as involving no
more than the mere disagreement by the taxpayer “with the uses to which
tax money is put.” According to the Government, the resolution of such dis-
agreements is committed to other branches of the Federal Government and
not to the judiciary. Consequently, the Government contends that, under no
circumstances, should standing be conferred on federal taxpayers to challenge
a federal taxing or spending program. An analysis of the function served by
standing limitations compels a rejection of the Government’s position.
Standing is an aspect of justiciability and, as such, the problem of stand-
ing is surrounded by the same complexities and vagaries that inhere in justi-
ciability. . . .
Despite the complexities and uncertainties, some meaningful form can
be given to the jurisdictional limitations placed on federal court power by the
concept of standing. The fundamental aspect of standing is that it focuses on
the party seeking to get his complaint before a federal court and not on the
issues he wishes to have adjudicated. The “gist of the question of standing” is
whether the party seeking relief has “‘alleged such a personal stake in the out-
come of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumi-
nation of difficult constitutional questions,’ Baker v. Carr, [369 U.S. 186]
(1962). In other words, when standing is placed in issue in a case, the question
is whether the person whose standing is challenged is a proper party to re-
quest an adjudication of a particular issue and not whether the issue itself is
| justiciable.Thus, a party may have standing ina particular case, but the federal
court may nevertheless decline to pass on the merits of the case because, for
example, it presents a political question. A proper party is demanded so that
134 | LAW AND POLITICS IN THE SUPREME COURT
ae

federal courts will not be asked to decide “ill-defined controversies over con-
stitutional issues,’ United Public Workers of America v. Mitchell, 330 U.S. 75
(1947), or a case which is of “a hypothetical or abstract character? paisa
stated, the standing requirement is closely related to, although more general
than, the rule that federal courts will not entertain friendly suits. ...
When the emphasis in the standing problem is placed on whether the
person invoking a federal court’s jurisdiction is a proper party to maintain
the action, the weakness of the Government’s argument in this case becomes
apparent. The question whether a particular person is a proper party to
maintain the action does not, by its own force, raise separation of powers
problems related to improper judicial interference in areas committed to
other branches of the Federal Government. Such problems arise, if at all, only
from the substantive issues the individual seeks to have adjudicated. Thus, in
terms of Article III limitations on federal court jurisdiction, the question of
standing is related only to whether the dispute sought to be adjudicated will
be presented in an adversary context and in a form historically viewed as ca-
pable of judicial resolution. It is for that reason that the emphasis in standing
problems is on whether the party invoking federal court jurisdiction has “a
personal stake in the outcome of the controversy,” Baker v. Carr, and whether
the dispute touches upon “the legal relations of parties having adverse legal
interests.”A taxpayer may or may not have the requisite personal stake in the
outcome, depending upon the circumstances of the particular case. There-
fore, we find no absolute bar in Article III to suits by federal taxpayers chal-
lenging allegedly unconstitutional federal taxing and spending programs.
There remains, however, the problem of determining the circumstances un-
der which a federal taxpayer will be deemed to have the personal stake and
interest that impart the necessary concrete adverseness to such litigation so
that standing can be conferred on the taxpayer qua taxpayer consistent with
the constitutional limitations of Article III....
Whether such individuals have standing to maintain that form of action
turns on whether they can demonstrate the necessary stake as taxpayers in
the outcome of the litigation to satisfy Article HI requirements.
The nexus demanded of federal taxpayers has two aspects to it. First, the
taxpayer must establish a logical link between that status and the type of leg-
islative enactment attacked. Thus, a taxpayer will be a proper party to allege
the unconstitutionality only of exercises of congressional power under the
taxing and spending clause of Art. I, Sec. 8, of the Constitution. It will not be
sufficient to allege an incidental expenditure of tax funds in the administra-
tion of an essentially regulatory statute. . .. Secondly, the taxpayer must estab-
lish a nexus between that status and the precise nature of the constitutional
infringement alleged. Under this requirement, the taxpayer must show that
the challenged enactment exceeds specific constitutional limitations imposed
upon the exercise of the congressional taxing and spending power and not
simply that the enactment is generally beyond the powers delegated to Con-
gress by Art. I, Sec. 8. When both nexuses are established, the litigant will
have shown a taxpayer’s stake in the outcome of the controversy and will be
a proper and appropriate party to invoke a federal court’s jurisdiction.
The taxpayer-appellants in this case have satisfied both nexuses to sup-
port their claim of standing under the test we announce today. Their con-
stitutional challenge is made to an exercise by Congress of its power under
 A | Jurisdiction and Justiciable Controversies | 135

Art. I, Sec. 8, to spend for the general welfare, and the challenged program
involves a substantial expenditure of federal tax funds. In addition, appellants
have alleged that the challenged expenditures violate the Establishment and
Free Exercise Clauses of the First Amendment. Our history vividly illustrates
that one of the specific evils feared by those who drafted the Establishment
Clause and fought for its adoption was that the taxing and spending power
would be used to favor one religion over another or to support religion in
general. James Madison, who is generally recognized as the leading architect
of the religion clauses of the First Amendment, observed in his famous
Memorial and Remonstrance Against Religious Assessments that “the same
authority which can force a citizen to contribute three pence only of his
property for the support of any one establishment, may force him to con-
form to any other establishment in all cases whatsoever.” 2 Writings ofJames
Madison 183, 186 (Hunt ed. 1901).The concern of Madison and his support-
ers was quite clearly that religious liberty ultimately would be the victim if
government could employ its taxing and spending powers to aid one religion
over another or to aid religion in general. The Establishment Clause was de-
signed as a specific bulwark against such potential abuses of governmental
power, and that clause of the First Amendment operates as a specific consti-
tutional limitation upon the exercise by Congress of the taxing and spending
power conferred by Art. I, Sec. 8.
The allegations of the taxpayer in Frothingham v. Mellon, supra, were
quite different from those made in this case, and the result in Frothingham is
consistent with the test of taxpayer standing announced today. The taxpayer
in Frothingham attacked a federal spending program and she, therefore, estab-
lished the first nexus required. However, she lacked standing because her
constitutional attack was not based on an allegation that Congress, in enact-
ing the Maternity Act of 1921, had breached a specific limitation upon its
taxing and spending power. The taxpayer in Frothingham alleged essentially
that Congress, by enacting the challenged statute, had exceeded the general
powers delegated to it by Art. I, Sec. 8, and that Congress had thereby in-
vaded the legislative province reserved to the States by the Tenth Amend-
ment. To be sure, Mrs. Frothingham made the additional allegation that her
tax liability would be increased as a result of the allegedly unconstitutional
enactment, and she framed that allegation in terms of a deprivation of prop-
erty without due process of law. However, the Due Process Clause of the
Fifth Amendment does not protect taxpayers against increases in tax liability,
and the taxpayer in Frothingham failed to make any additional claim that the
harm she alleged resulted from a breach by Congress of the specific consti-
tutional limitations imposed upon an exercise of the taxing and spending
power. In essence, Mrs. Frothingham was attempting to assert the States’ in-
terest in their legislative prerogatives and not a federal taxpayer’s interest in
being free of taxing and spending in contravention of specific constitutional
limitations imposed upon Congress’ taxing and spending power.
_ We have noted that the Establishment Clause of the First Amendment
does specifically limit the taxing and spending power conferred by Art. I,
Sec. 8. Whether the Constitution contains other specific limitations can be
- determined only in the context of future cases. However, whenever such
specific limitations are found, we believe a taxpayer will have a clear stake as
a taxpayer in assuring that they are not breached by Congress. Consequently,
136 | Law AND POLITICS IN THE SUPREME Court

III to in-
we hold that a taxpayer will have standing consistent with Article
he alleges that congress ional action under
voke federal judicial power when
spendin g clause is in derogati on of those constitu tional provi-
the taxing and
g
sions which operate to restrict the exercise of the taxing and spendin
be that his tax money is
power. The taxpayer’s allegation in such cases would
n of specific constitu tional protecti ons
being extracted and spent in violatio
against such abuses of legislative power. Such an injury is appropriate for ju-
dicial redress, and the taxpayer has established the necessary nexus between
his status and the nature of the allegedly unconstitutional action to support
we
his claim of standing to secure judicial review. Under such circumstances,
feel confident that the question s will be framed with the necessar y speci-
ficity, that the issues will be contested with the necessary adverseness and
that the litigation will be pursued with the necessary vigor to assure that the
constitutional challenge will be made in a form traditionally thought to be
capable of judicial resolution. We lack that confidence in cases such as
Frothingham where a taxpayer seeks to employ a federal court as a forum in
which to air his generalized grievances about the conduct of government or
the allocation of power in the Federal System.

“1 Justice HARLAN, dissenting.

The problems presented by this case are narrow and relatively abstract,
but the principles by which they must be resolved involve nothing less than
the proper functioning of the federal courts, and so run to the roots of our
constitutional system. The nub of my view is that the end result of Frothing-
ham v. Mellon was correct, even though, like others, I do not subscribe to all
of its reasoning and premises. Although I therefore agree with certain of the
conclusions reached today by the Court, I cannot accept the standing doc-
trine that it substitutes for Frothingham, for it seems to me that this new doc-
trine rests on premises that do not withstand analysis. Accordingly, I
respectfully dissent. . . .
The lawsuits here and in Frothingham are fundamentally different. They
present the question whether federal taxpayers qua taxpayers may, in suits in
which they do not contest the validity of their previous or existing tax obli-
gations, challenge the constitutionality of the uses for which Congress has
authorized the expenditure of public funds. These differences in the purposes
of the cases are reflected in differences in the litigants’ interests. An action
brought to contest the validity of tax liabilities assessed to the plaintiff is de-
signed to vindicate interests that are personal and proprietary. The wrongs al-
leged and the relief sought by such a plaintiff are unmistakably private; only
secondarily are his interests representative of those of the general population.
I take it that the Court, although it does not pause to examine the question,
believes that the interests of those who as taxpayers challenge the constitu-
tionality of public expenditures may, at least in certain circumstances, be sim-
ilar. Yet this assumption is surely mistaken. .. .
Presumably the Court recognizes at least certain .. . hazards, else it would
not have troubled to impose limitations upon the situations in which, and
purposes for which, such suits may be brought. Nonetheless, the limitations
adopted by the Court are, as I have endeavored to indicate, wholly untenable.
This is the more unfortunate because there is available a resolution of this
problem that entirely satisfies the demands of the principle of separation of
 A | Jurisdiction and Justiciable Controversies | 137

powers. This Court has previously held that individual litigants have standing
to represent the public interest, despite their lack of economic or other per-
sonal interests, if Congress has appropriately authorized such suits. Any haz-
ards to the proper allocation of authority among the three branches of the
Government would be substantially diminished if public actions had been
pertinently authorized by Congress and the President. I appreciate that this
Court does not ordinarily await the mandate of other branches of the
Government, but it seems to me that the extraordinary character of public ac-
tions, and of the mischievous, if not dangerous, consequences they involve for
the proper functioning of our constitutional system, and in particular of the
federal courts, makes such judicial forbearance the part of wisdom. It must be
emphasized that the implications of these questions of judicial policy are of
fundamental significance for the other branches of the Federal Government.
Such a rule could readily be applied to this case. Although various ef-
forts have been made in Congress to authorize public actions to contest the
validity of federal expenditures in “aid of religiously affiliated schools and
other institutions, no such authorization has yet been given.
This does not mean that we would, under such a rule, be enabled to
avoid our constitutional responsibilities, or that we would confine to limbo
the First Amendment or any other constitutional command. The question
here is not, despite the Court’s unarticulated premise, whether the religious
clauses of the First Amendment are hereafter to be enforced by the federal
courts; the issue is simply whether plaintiffs of an additional category, hereto-
fore excluded from those courts, are to be permitted to maintain suits. The
recent history of this Court is replete with illustrations, including even one
announced today that questions involving the religious clauses will not, if
federal taxpayers are prevented from contesting federal expenditures, be left
“unacknowledged, unresolved, and undecided.”
Accordingly, for the reasons contained in this opinion, I would affirm
the judgment of the District Court.

Valley Forge Christian College v.Americans United

for Separation of Church and State, Inc.
Asdbl!-S..404.,10209,CTNIS2 (1982)

Americans United for Separation of Church and State, an organization

dedicated to the separation of religion from government, filed a suit in
federal district court in Pennsylvania to stop the Department of Health,
Education, and Welfare (now the Department of Education) from con-
veying as “surplus property” a closed and former army hospital to Valley
_ Forge Christian College. Under the Federal Property and Administrative
Services Act of 1949, the department has authority to sell surplus gov-
ernment property for educational use to nonprofit, tax-exempt educa-
138 | Law AND PoritTics IN THE SUPREME COURT

tional institutions. Congress has the power to “dispose of and make all
needful Rules and Regulations respecting the .. . Property belonging to
the United States.” under Article IV, Section 3, Clause 2. But Americans
United for Separation of Church and State contended that the depart-
ment’s conveyance here abridged its members’ First Amendment rights
to religious freedom and “deprived [them] of the fair and constitutional
use of [their] tax dollars.’ The district court dismissed the suit but the
Court of Appeals for the Third Circuit reversed. Thereupon, Valley Forge
Christian College appealed to the Supreme Court.
The Court’s decision was five to four, with the majority’s opinion
announced by Justice Rehnquist. Dissents were by Justices Stevens and
Brennan, who was joined by Justices Blackmun and Marshall.

(1 Justice REHNQUIST delivers the opinion of the Court.

We need not mince words when we say that the concept of “Art. III
standing” has not been defined with complete consistency in all of the vari-
ous cases decided by this Court which have discussed it, nor when we say
that this very fact is probably proof that the concept cannot be reduced to a
one-sentence or one-paragraph definition. But of one thing we may be sure:
Those who do not possess Art. III standing may not litigate as suitors in the
courts of the United States. Article III, which is every bit as important in its
circumscription of the judicial power of the United States as in its granting
of that power, is not merely a troublesome hurdle to be overcome if possible
so as to reach the “merits” of a lawsuit which a party desires to have adjudi-
cated; it is a part of the basic charter promulgated by the Framers of the
Constitution at Philadelphia in 1787, a charter which created a general
government, provided for the interaction between that government and the
governments of the several States, and was later amended so as to either en-
hance or limit its authority with respect to both States and individuals. . . .
[IJn Flast v. Cohen, [392 U.S. 83 (1968)], [t]he Court developed a two-
part test to determine whether the plaintiffs had standing to sue. First, be-
cause a taxpayer alleges injury only by virtue of his liability for taxes, the
Court held that “a taxpayer will be a proper party to allege the unconstitu-
tionality only of exercises of congressional power under the taxing and
spending clause of Art. I, Sec. 8, of the Constitution.” Second, the Court re-
quired the taxpayer to “show that the challenged enactment exceeds specific
constitutional limitations upon the exercise of the taxing and spending
power and not simply that the enactment is generally beyond the powers
delegated to Congress by Art. I, Sec. 8.” .
Unlike the plaintiffs in Flast, respondents fail the first prong of the test
for taxpayer standing. Their claim is deficient in two respects. First, the source
of their complaint is not a congressional action, but a decision by HEW to
transfer a parcel of federal property. Flast limited taxpayer standing to chal-
lenges directed “only [at] exercises of congressional power.’ See Schlesinger v.
Reservists Committee to Stop the War, [418 U.S. 208 (1974)] (denying standing
because the taxpayer plaintiffs “did not challenge an enactment under Art. I,
Sec. 8, but rather the action of the Executive Branch”).
Second, and perhaps redundantly, the property transfer about which re-
 A | Jurisdiction and Justiciable Controversies | 139

spondents complain was not an exercise of authority conferred by the Taxing

and Spending Clause of Art. I, Sec. 8. The authorizing legislation, the Federal
Property and Administrative Services Act of 1949, was an evident exercise of
Congress’ power under the Property Clause, Art. IV, Sec. 3, cl. 2. Respon-
dents do not dispute this conclusion, and it is decisive of any claim of tax-
payer standing under the Flast precedent.

“Justice BRENNAN, with whom Justice MARSHALL and Justice

BLACKMUN join, dissenting.
The opinion of the Court is a stark example of this unfortunate trend of
resolving cases at the “threshold” while obscuring the nature of the under-
lying rights and interests at stake. The Court waxes eloquent on the blend of
prudential and constitutional considerations that combine to create our mis-
guided “standing” jurisprudence. But not one word is said about the Establish-
ment Clause right that the plaintiff seeks to enforce. And despite its pat recitation
of our standing decisions, the opinion utterly fails, except by the sheerest
form of ipse dixit, to explain why this case is unlike Flast v. Cohen (1968), and
is controlled instead by Frothingham v. Mellon (1923)....
It is at once apparent that the test of standing formulated by the Court
in Flast sought to reconcile the developing doctrine of taxpayer “standing”
with the Court’s historical understanding that the Establishment Clause was
intended to prohibit the Federal Government from using tax funds for the
advancement of religion, and thus the constitutional imperative of taxpayer
standing in certain cases brought pursuant to the Establishment Clause. The
two-pronged “nexus” test offered by the Court, despite its general language,
is best understood as “a determinant of standing of plaintiffs alleging only in-
jury as taxpayers who challenge alleged violations of the Establishment and
Free Exercise Clauses of the First Amendment,” and not as a general state-
ment of standing principles. The test explains what forms of governmental
action may be attacked by someone alleging only taxpayer status, and, with-
out ruling out the possibility that history might reveal another similarly
founded provision, explains why an Establishment Clause claim is treated dif-
ferently from any other assertion that the Federal Government has exceeded
the bounds of the law in allocating its largesse. . . .
The nexus test that the Court “announced,” sought to maintain neces-
sary continuity with prior cases, and set forth principles to guide future cases
involving taxpayer standing. But Flast did not depart from the principle that
no judgment about standing should be made without a fundamental under-
standing of the rights at issue. The two-part Flast test did not supply the ra-
tionale for the Court’s decision, but rather is exposition: That rationale was
supplied by an understanding of the nature of the restrictions on government
power imposed by the Constitution and the intended beneficiaries of those
restrictions.
_ It may be that Congress can tax for almost any reason, or for no reason
at all. There is, so far as I have been able to discern, but one constitutionally
imposed limit on that authority. Congress cannot use tax money to support
a church, or to encourage religion. That is “the forbidden exaction.” Everson v.
' Board of Education [330 U.S. 1 (1947)]. In absolute terms the history of the
Establishment Clause of the First Amendment makes this clear. History also
makes it clear that the federal taxpayer is a singularly “proper and appropriate
140 | Law AND PoritTics IN THE SUPREME COURT ee
eS eS SSS Se

party to invoke a federal court’s jurisdiction” to challenge a federal bestowal

of largesse as a violation of the Establishment Clause. Each, and indeed every,
federal taxpayer suffers precisely the injury that the Establishment Clause
guards against when the Federal Government directs that funds be taken
from the pocketbooks of the citizenry and placed into the coffers of the
ministry.
A taxpayer cannot be asked to raise his objection to such use of his
funds at the time he pays his tax. Apart from the unlikely circumstance in
which the Government announced in advance that a particular levy would
be used for religious subsidies, taxpayers could hardly assert that they were
being injured until the Government actually lent its support to a religious
venture. Nor would it be reasonable to require him to address his claim to
those officials charged with the collection of federal taxes. Those officials
would be without the means to provide appropriate redress—there is no
practical way to segregate the complaining taxpayer's money from that being
devoted to the religious purpose. Surely, then, a taxpayer must have standing
at the time that he learns of the Government’s alleged Establishment Clause
violation to seek equitable relief in order to halt the continuing and intoler-
able burden on his pocketbook, his conscience, and his constitutional rights.
Blind to history, the Court attempts to distinguish this case from Flast by
wrenching snippets of language from our opinions, and by perfunctorily ap-
plying that language under color of the first prong of Flast’s two-part nexus
test. The tortuous distinctions thus produced are specious, at best: at worst,
they are pernicious to our constitutional heritage.
First, the Court finds this case different from Flast because here the
“source of [plaintiffs’] complaint is not a congressional action, but a decision
by HEW to transfer a parcel of federal property.’ This attempt at distinction
cannot withstand scrutiny. Flast involved a challenge to the actions of the
Commissioner of Education, and other officials of HEW, in disbursing
funds under the Elementary and Secondary Education Act of 1965 to
“religious and sectarian” schools. Plaintiffs disclaimed “any intent[ion] to
challenge .. . all programs under . . . the Act.” Rather, they claimed that
defendant-administrators’ approval of such expenditures was not authorized
by the Act, or alternatively, to the extent the expenditures were authorized,
the Act was “unconstitutional and void.” In the present case, respondents
challenge HEW’s grant of property pursuant to the Federal Property and
Administrative Services Act of 1949, seeking to enjoin HEW “from making
a grant of this and other property to the [defendant] so long as such a grant
will violate the Establishment Clause.” It may be that the Court is concerned
with the adequacy of respondents’ pleading; respondents have not, in so
many words, asked for a declaration that the “Federal Property and Adminis-
trative Services Act is unconstitutional and void to the extent that it author-
izes HEW’s actions.” I would not construe their complaint so narrowly.
More fundamentally, no clear division can be drawn in this context be-
tween actions of the Legislative Branch and those of the Executive Branch.
To be sure, the First Amendment is phrased as a restriction on Congress’ leg-
islative authority; this is only natural since the Constitution assigns the au-
thority to legislate and appropriate only to the Congress. But it is difficult to
conceive of an expenditure for which the last governmental actor, either im-
plementing directly the legislative will, or acting within the scope of leg-
islatively delegated authority, is not an Executive Branch official. The First
 A | Jurisdiction and Justiciable Controversies | 141

Amendment binds the Government as a whole, regardless of which branch is

at work in a particular instance.
The Court’s second purported distinction between this case and Flast is
equally unavailing. The majority finds it “decisive” that the Federal Property
and Administrative Services Act of 1949 “was an evident exercise of Con-
gress’ power under the Property Clause, Art. IV, Sec. 3, cl. 2,” while the
Government action in Flast was taken under Art. I, Sec. 8. The Court relies
on United States v. Richardson, 418 U.S. [166] (1974), and Schlesinger v. Re-
servists Committee to Stop the War, 418 U.S. 208 (1974), to support the distinc-
tion between the two Clauses, noting that those cases involved alleged
deviations from the requirements of Art. I, Sec. 9, cl. 7, and Art. I, Sec. 6, cl. 2,
respectively. The standing defect in each case was not, however, the failure to
allege a violation of the Spending Clause; rather, the taxpayers in those cases
had not complained of the distribution of Government largesse, and thus
failed to meet the essential requirement of taxpayer standing recognized in
Doremus |v. Board of Education, 342 U.S. 429 (1952)].
It can make no constitutional difference in the case before us whether
the donation to the petitioner here was in the form of a cash grant to build
a facility, see Tilton v. Richardson, 403 U.S. 672 (1971), or in the nature ofa
gift of property including a facility already built. That this is a meaningless
distinction is illustrated by Tilton. In that case, taxpayers were afforded stand-
ing to object to the fact that the Government had not received adequate as-
surance that if the property that it financed for use as an educational facility
was later converted to religious uses, it would receive full value for the prop-
erty, as the Constitution requires. The complaint here is precisely that,
although the property at issue is actually being used for a sectarian pur-
pose, the Government has not received, nor demanded, full value payment.
Whether undertaken pursuant to the Property Clause or the Spending
Clause, the breach of the Establishment Clause, and the relationship of the
taxpayer to that breach, is precisely the same.
Plainly hostile to the Framers’ understanding of the Establishment
Clause, and Flast’s enforcement of that understanding, the Court vents that
hostility under the guise of standing, “to slam the courthouse door against
plaintiffs who [as the Framers intended] are entitled to full consideration of
their [Establishment Clause] claims on the merits.” Barlow v, Collins, 397 U.S.
159 (1970) (BRENNAN, J., concurring in result and dissenting). Therefore,
I dissent.

Lujan v. Defenders of Wildlife

COAL) 51555 0112, 5.0M.2 130.(1002)

Under the Endangered Species Act (ESA) of 1973, federal agencies are
_ required to consult with the Department of Interior (DOI) to make
sure that uneir policies and actions will not jeopardize endangered or
threatened species or their habitats. For more than a decade DOI inter-
142 | Law AND PoLiTICs IN THE SUPREME COURT

preted that act to apply to federally funded projects at home and

abroad. But in 1986 the Reagan administration reversed course, an-
nouncing that the law no longer applied to projects overseas. Immedi-
ately, Defenders of Wildlife, other environmental groups, and their
members challenged that reinterpretation of the law.
To gain standing to file a lawsuit, members of Defenders of
Wildlife—its president, Joyce Kelly, and another member, Amy Skil-
bred—filed affidavits alleging that they would suffer injuries due to the
failure of the Agency for International Development (AID) and other
agencies to consult with DOI about a federally funded irrigation proj-
ect on the Mahaweli River in Sri Lanka and a redevelopment project
on the Nile River in Egypt. Those projects, they claimed, threatened
endangered elephants and leopards in Sri Lanka and the crocodile and
other species in Egypt. And when asserting their standing to sue and
personal injuries, Kelly and Skilbred testified that they were environ-
mentalists and had traveled to each site, although neither indicated
specifically when she would again visit those sites. A federal district
court dismissed the suit for lacking standing, but the Court of Appeals
for the Eighth Circuit reversed.
The George H. W. Bush administration appealed the appellate
court’s holding that Kelly and Skilbred had standing to sue under the
ESA’s provision conveying on citizens the right to sue the secretary of
DOI for failure to consult with other federal agencies on projects po-
tentially threatening to endangered species and their habitats, even
though they failed to allege concrete injuries. Relying on dicta in sev-
eral recent cases (see Justice Scalia’s concurring opinion in Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49 [1987], and Lu-
jan v. National Wildlife Federation, 497 U.S. 871 [1989]), the Bush admin-
istration asked the Court to sharply limit standing in such citizen suits.
The Court’s decision was seven to two; the opinion was an-
nounced by Justice Scalia. Concurring opinions were delivered by Jus-
tice Kennedy, whom Justice Souter joined, and by Justice Stevens.
Justice Blackmun dissented and was joined by Justice O’Connor.

Justice SCALIA delivers the opinion of the Court with respect to Parts I,
II, III-A, and IV, and an opinion with respect to Part III-B in which Chief
Justice REHNQUIST and Justices WHITE, KENNEDY, SOUTER, and
THOMAS join.

a I]
Over the years, our cases have established that the irreducible constitutional
minimum of standing contains three elements: First, the plaintiff must have
suffered an “injury in fact”—an invasion of a legally protected interest which
 A | Jurisdiction and Justiciable Controversies | 143

is (a) concrete and particularized, Warth v. Seldin, 422 U.S. 490 (1975); Sierra
Club v. Morton, 405 U.S. 727 (1972); and (b) “actual or imminent, not ‘con-
jectural’ or ‘hypothetical? ” Second, there must be a causal connection be-
tween the injury and the conduct complained of—the injury has to be
“fairly ... traceable to the challenged action of the defendant, and not ... the
result [of] the independent action of some third party not before the court.”
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). Third, it
must be “likely,” as opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.”
When the suit is one challenging the legality of government action or
inaction, the nature and extent of facts that must be averred (at the summary
judgement stage) or proved (at the trial stage) in order to establish standing
depends considerably upon whether the plaintiff is himself an object of the
action (or foregone action) at issue. If he is, there is ordinarily little question
that the action or inaction has caused him injury, and that a judgment pre-
venting or requiring the action willredress it. When, however, as in this case,
a plaintiff’s asserted injury arises from the government’s allegedly unlawful
regulation (or lack of regulation) of someone else, much more is needed. In
that circumstance, causation and redressability ordinarily hinge on the re-
sponse of the regulated (or regulable) third party to the government action
_ or inaction—and perhaps on the response of others as well. The existence of
one or more of the essential elements of standing “depends on the unfettered
choices made by independent actors not before the courts and whose exer-
cise of broad and legitimate discretion the courts cannot presume either to
control or to predict,” ASARCO Inc. v. Kadish, 490 U.S. 605 (1989); and it
becomes the burden of the plaintiff to adduce facts showing that those
choices have been or will be made in such manner as to produce causation
and permit redressability of injury. Thus, when the plaintiff is not himself the
object of the government action or inaction he challenges, standing is not
precluded, but it is ordinarily “substantially more difficult” to establish.

a III
We think the Court of Appeals failed to apply the foregoing principles. . . .
Respondents had not made the requisite demonstration of (at least) injury
and redressability.
A. Respondents’ claim to injury is that the lack of consultation with re-
spect to certain funded activities abroad “increases the rate of extinction of
endangered and threatened species.” Of course, the desire to use or observe
an animal species, even for purely aesthetic purposes, is undeniably a cogniz-
able interest for purpose of standing. “But the ‘injury in fact’ test requires
more than an injury to a cognizable interest. It requires that the party seek-
ing review be himself among the injured.” . . . [R]espondents had to submit
affidavits or other evidence showing, through specific facts, not only that
listed species were in fact being threatened by funded activities abroad, but
also that one or more of respondents’ members would thereby be “directly”
affected apart from their “ ‘special interest’ in the subject.” .. .
We shall assume for the sake of argument that these affidavits contain
facts showing that certain agency-funded projects threaten listed species—
though that is questionable. They plainly contain no facts, however, showing
how damage to the species will produce “imminent” injury to Mss. Kelly
144 | Law AND POLITICS IN THE SUPREME COURT

and Skilbred. That the women “had visited” the areas of the projects before
the projects commenced proves nothing. .. .
Besides relying upon the Kelly and Skilbred affidavits, respondents pro-
pose a series of novel standing theories. The first, inelegantly styled “ecosystem
nexus,” proposes that any person who uses any part of a “contiguous eco-
system” adversely affected by a funded activity has standing even if the activity
is located a great distance away... . [But to] say that the Act protects ecosystems
is not to say that the Act creates (if it were possible) rights of action in persons
who have not been injured in fact, that is, persons who use portions of an
ecosystem not perceptibly affected by the unlawful action in question.
Respondents’ other theories are called, alas, the “animal nexus” ap-
proach, whereby anyone who has an interest in studying or seeing the en-
dangered animals anywhere on the globe has standing; and the “vocational
nexus” approach, under which anyone with a professional interest in such
animals can sue. Under these theories, anyone who goes to see Asian ele-
phants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in
the Bronx Zoo, has standing to sue because the Director of AID did not
consult with the Secretary regarding the AID-funded project in Sri Lanka.
This is beyond all reason... .
B.The most obvious problem in the present case is redressability. Since
the agencies funding the projects were not parties to the case, the District
Court could accord relief only against the Secretary: He could be ordered to
revise his regulation to require consulation for foreign projects. But this
would not remedy respondents’ alleged injury unless the funding agencies
were bound by the Secretary’s regulation, which is very much an open ques-
tion. Whereas in other contexts the ESA is quite explicit as to the Secretary’s
controlling authority, with respect to consultation the initiative, and hence
arguably the initial responsibility for determining statutory necessity, lies
with the agencies. When the Secretary promulgated the regulation at issue
here, he thought it was binding on the agencies. The Solicitor General, how-
ever, has repudiated that position here, and the agencies themselves appar-
ently deny the Secretary’s authority. .. .
A further impediment to redressability is the fact that the agencies gen-
erally supply only a fraction of the funding for a foreign project. AID, for ex-
ample, has provided less than 10 percent of the funding for the Mahaweli
Project. Respondents have produced nothing to indicate that the projects
they have named will either be suspended, or do less harm to listed species,
if that fraction is eliminated. ...
We hold that respondents lack standing to bring this action.

| Justice BLACKMUN, with whom Justice O’ CONNOR joins, dissenting.

I part company with the Court in this case in two respects. First, I be-
lieve that respondents have raised genuine issues of fact—sufficient to survive
summary judgment—both as to injury and as to redressability. Second, I
question the Court’s breadth of language in rejecting standing for “‘pro-
cedural” injuries. I fear the Court seeks to impose fresh limitations on the
constitutional authority of Congress to allow citizen-suits in the federal
courts for injuries deemed “procedural” in nature. I dissent. . . .
To survive petitioner’s motion for summary judgement on standing, re-
spondents need not prove that they are actually or imminently harmed. They
 A | Jurisdiction and Justiciable Controversies | 145

need show only a “genuine issue” of material fact as to standing. Federal

Rules of Civil Procedure 56(c). This is not a heavy burden.A “genuine issue”
exists so long as “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party respondents.” Anderson v. Liberty Lobby, Inc.,
477 US. 242 (1986). “This Court’s function is not itself to weigh the evi-
dence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” ...
I think a reasonable finder of fact could conclude from the information
in the affidavits and deposition testimony that either Kelly or Skilbred will
soon return to the project sites, thereby satisfying the “actual or imminent”
injury standard. ...
By requiring a “description of concrete plans” or “specification of when
the same day [for a return visit] will be,’ the Court, in my view, demands
what is likely an empty formality. No substantial barriers prevent Kelly or
Skilbred from simply purchasing plane tickets to return to the Aswan and
Mahaweli projects... . a
In conclusion, I cannot join the Court on what amounts to a slash-and-
burn expedition through the law of environmental standing. In my view,
“the very essence of civil liberty certainly consists in the right of every indi-
vidual to claim the protection of the laws, whenever he receives an injury.”
Marbury v. Madison, 1 Cranch 137 (1803).

Hein v. Freedom from Religion Foundation, Inc.

12 Sot 25 531 (2007)

In 2001, President George W. Bush issued an executive order creating

the White House Office of Faith-Based and Community Initiatives,
with the aim of ensuring “private and charitable community groups,
including religious ones .. . have the fullest opportunity permitted by
law to compete on alevel playing field, so long as they achieve valid
public purposes” and adhere to “the bedrock principles of pluralism,
nondiscrimination, evenhandedness, and neutrality.’ The office was
charged with the task of eliminating regulatory barriers that could im-
pede such organizations’ ability to compete equally for federal assis-
tance. In separate executive orders, the president also created centers for
Faith-Based and Community Initiatives within several federal agencies.
They were given the job of ensuring that faith-based community
groups would be eligible to compete for federal financial support, by
holding conferences and giving assistance on grant applications. No
congressional legislation specifically authorized the creation of the cen-
ters or appropriated funds for them. Instead, their activities were funded
through general executive branch appropriations.
These faith-based initiatives were challenged by Freedom from
146 | Law aND PoLiTics IN THE SUPREME COURT

Religion Foundation, Inc., a group of atheists and agnostics, who ar-

gued that these initiatives violated the First Amendment (dis)establish-
ment clause by promoting religious community groups over secular
ones. A federal district court dismissed the suit for lack of standing,
concluding that under Flast v. Cohen, 392 U.S. 83 (1968), federal tax-
payer standing is limited to challenges to the constitutionality of “ ‘ex-
ercises of congressional power under the taxing and spending clause of
Art. I, Sec. 8” ” Subsequently, a divided panel of the Court of Appeals
for the Seventh Circuit reversed. That decision was appealed and the
Supreme Court granted review.
The appellate court’s decision was reversed by a five-to-four vote.
Justice Alito delivered the opinion for the Court. Justices Scalia and
Kennedy filed concurring opinions. Justice Souter issued a dissenting
opinion, which was joined by Justices Stevens, Ginsburg, and Breyer.

4 Justice ALITO announced the judgment of the Court and delivered an

opinion in which THE CHIEF JUSTICE and Justice KENNEDY join.
This is a lawsuit in which it was claimed that conferences held as part of
the President’s Faith-Based and Community Initiatives program violated the
Establishment Clause of the First Amendment because, among other things,
President Bush and former Secretary of Education Paige gave speeches that
used “religious imagery” and praised the efficacy of faith-based programs in
delivering social services. The plaintiffs contend that they meet the standing
requirements of Article III of the Constitution because they pay federal taxes.
It has long been established, however, that the payment of taxes is gen-
erally not enough to establish standing to challenge an action taken by the
Federal Government. In light of the size of the federal budget, it is a com-
plete fiction to argue that an unconstitutional federal expenditure causes an
individual federal taxpayer any measurable economic harm. And if every fed-
eral taxpayer could sue to challenge any Government expenditure, the fed-
eral courts would cease to function as courts of law and would be cast in the
role of general complaint bureaus.
In Flast v. Cohen, 392 U.S. 83 (1968), we recognized a narrow exception
to the general rule against federal taxpayer standing. Under Flast, a plaintiff
asserting an Establishment Clause claim has standing to challenge a law au-
thorizing the use of federal funds in a way that allegedly violates the Estab-
lishment Clause. In the present case, Congress did not specifically authorize
the use of federal funds to pay for the conferences or speeches that the plain-
tiffs challenged. Instead, the conferences and speeches were paid for out of
general Executive Branch appropriations. The Court of Appeals, however,
held that the plaintiffs have standing as taxpayers because the conferences
were paid for with money appropriated by Congress.
The question that is presented here is whether this broad reading of
Flast is correct. We hold that it is not. We therefore reverse the decision of the
Court of Appeals. ...
The only asserted basis for standing was that the individual respondents
are federal taxpayers who are “opposed to the use of Congressional taxpayer
 A | Jurisdiction and Justiciable Controversies | 147

appropriations to advance and promote religion.” In their capacity as federal

taxpayers, respondents sought to challenge Executive Branch expenditures
for these conferences, which, they contended, violated the Establishment
Clause:
Article III of the Constitution limits the judicial power of the United
States to the resolution of “Cases” and “Controversies,” and “ ‘Article III
standing ... enforces the Constitution’s case-or-controversy requirement. ”
The constitutionally mandated standing inquiry 1s especially important
in a case like this one, in which taxpayers seek “to challenge laws of general
application where their own injury is not distinct from that suffered in gen-
eral by other taxpayers or citizens.” This is because “[t]he judicial power of
the United States defined by Art. III is not an unconditioned authority to
determine the constitutionality of legislative or executive acts.” Valley Forge
Christian College v.Americans, United for Separation of Church and State, Inc., 454
U.S. 464 (1982).The federal courts are not empowered to seek out and strike
down any governmental act that they deem to be repugnant to the Consti-
tution. Rather, federal courts sit “solely, to decide on the rights of individu-
als,’ Marbury v. Madison, 1 Cranch 137 (1803), and must “ ‘refrai[n] from
passing upon the constitutionality of an act ... unless obliged to do so in the
proper performance ofour judicial function, when the question is raised by
a party whose interests entitle him to raise it’ ” Valley Forge. As we held over
80 years ago, in another case involving the question of taxpayer standing:
“We have no power per se to review and annul acts of Congress on the
ground that they are unconstitutional. The question may be considered only
when the justification for some direct injury suffered or threatened, present-
ing a justiciable issue, is made to rest upon such an act. ...The party who in-
vokes the power must be able to show not only that the statute is invalid but
that he has sustained or is immediately in danger of sustaining some direct
injury as the result of its enforcement, and not merely that he suffers in some
indefinite way in common with people generally.” Frothingham v. Mellon, 262
USS. 447 (1923). ...
As a general matter, the interest of a federal taxpayer in seeing that Trea-
sury funds are spent in accordance with the Constitution does not give rise to
the kind of redressable “personal injury” required for Article III standing. Of
course, a taxpayer has standing to challenge the collection of a specific tax as-
sessment as unconstitutional; being forced to pay such a tax causes a real and
immediate economic injury to the individual taxpayer. But that is not the in-
terest on which respondents assert standing here. Rather, their claim is that,
having paid lawfully collected taxes into the Federal Treasury at some point,
they have a continuing, legally cognizable interest in ensuring that those funds
are not used by the Government in a way that violates the Constitution.
We have consistently held that this type of interest is too generalized and at-
tenuated to support Article III standing. In Frothingham, a federal taxpayer sought
to challenge federal appropriations for mothers’ and children’s health, arguing
‘that federal involvement in this area intruded on the rights reserved to the
States under the Tenth Amendment and would “increase the burden of future
taxation and thereby take [the plaintiff's] property without due process of
law.’ We concluded that the plaintiff lacked the kind of particularized injury
required for Article III standing: “[I]nterest in the moneys of the Treasury
_. is shared with millions of others; is comparatively minute and indeter-
148 | Law anp Potitics IN THE SUPREME COURT

minable; and the effect upon future taxation, of any payment out of the
funds, so remote, fluctuating and uncertain, that no basis is afforded for an
appeal to the preventive powers ofa court of equity.” ...
Because the interests of the taxpayer are, in essence, the interests of the
public-at-large, deciding a constitutional claim based solely on taxpayer
standing “would be[,] not to decide a judicial controversy, but to assume a
position of authority over the governmental acts of another and co-equal de-
partment, an authority which plainly we do not possess.” . . .
In Flast, the Court carved out a narrow exception to the general consti-
tutional prohibition against taxpayer standing. The taxpayer-plaintiff in that
case challenged the distribution of federal funds to religious schools under
the Elementary and Secondary Education Act of 1965, alleging that such aid
violated the Establishment Clause. The Court set out a two-part test for de-
termining whether a federal taxpayer has standing to challenge an allegedly
unconstitutional expenditure: “First, the taxpayer must establish a logical link
between that status and the type of legislative enactment attacked. Thus, a
taxpayer will be a proper party to allege the unconstitutionality only of exer-
cises of congressional power under the taxing and spending clause of Art. I,
Sec. 8, of the Constitution. It will not be sufficient to allege an incidental ex-
penditure of tax funds in the administration of an essentially regulatory
statute. ... Secondly, the taxpayer must establish a nexus between that status
and the precise nature of the constitutional infringement alleged. Under this
requirement, the taxpayer must show that the challenged enactment exceeds
specific constitutional limitations imposed upon the exercise of the congres-
sional taxing and spending power and not simply that the enactment is gen-
erally beyond the powers delegated to Congress by Art. I, Sec. 8.” ...
Respondents argue that this case falls within the Flast exception, which
they read to cover any “expenditure of government funds in violation of the
Establishment Clause.” But this broad reading fails to observe “the rigor with
which the Flast exception to the Frothingham principle ought to be applied.”
Valley Forge.
The expenditures at issue in Flast were made pursuant to an express
congressional mandate and a specific congressional appropriation. The plain-
tiff in that case challenged disbursements made under the Elementary and
Secondary Education Act of 1965. That Act expressly appropriated the sum
of $100 million for fiscal year 1966, and authorized the disbursement of
those funds to local educational agencies for the education of low-income
students... .
The expenditures challenged in Flast, then, were funded by a specific
congressional appropriation and were disbursed to private schools (including
religiously affiliated schools) pursuant to a direct and unambiguous congres-
sional mandate. Indeed, the Flast taxpayer-plaintiff’s constitutional claim was
premised on the contention that if the Government’s actions were “ ‘within
the authority and intent of the Act, the Act is to that extent unconstitutional
amd VOI. a3:
Given that the alleged Establishment Clause violation in Flast was
funded by a specific congressional appropriation and was undertaken pur-
suant to an express congressional mandate, the Court concluded that the tax-
payer-plaintiffs had established the requisite “logical link between [their
taxpayer] status and the type of legislative enactment attacked.” In the
Court’s words, “[t]heir constitutional challenge [was] made to an exercise by
 A | Jurisdiction and Justiciable Controversies | 149

Congress of its power under Art. I, Sec. 8, to spend for the general welfare.”
But as this Court later noted, Flast “limited taxpayer standing to challenges
directed ‘only [at] exercises of congressional power’ ” under the Taxing and
Spending Clause. Valley Forge.
The link between congressional action and constitutional violation that
supported taxpayer standing in Flast is missing here. Respondents do not
challenge any specific congressional action or appropriation; nor do they ask
the Court to invalidate any congressional enactment or legislatively created
program as unconstitutional. That is because the expenditures at issue here
were not made pursuant to any Act of Congress. Rather, Congress provided
general appropriations to the Executive Branch to fund its day-to-day activ-
ities. These appropriations did not expressly authorize, direct, or even men-
tion the expenditures of which respondents complain. Those expenditures
resulted from executive discretion, not congressional action. .. .
In short, this case falls outside “the narrow exception” that Flast “created
to the general rule against taxpayer“Standing established in Frothingham.” Be-
cause the expenditures that respondents challenge were not expressly author-
ized or mandated by any ‘specific congressional enactment, respondents’
lawsuit is not directed at an exercise of congressional power, and thus lacks
the requisite “logical nexus” between taxpayer status “and the type of legisla-
tive enactment attacked.”
For these reasons, the judgment of the Court of Appeals for the Seventh
Circuit is reversed.

4) Justice SCALIA, with whom Justice THOMAS joins, concurring in the

judgment.
Today’s opinion is, in one significant respect, entirely consistent with our
previous cases addressing taxpayer standing to raise Establishment Clause
challenges to government expenditures. Unfortunately, the consistency lies in
the creation of utterly meaningless distinctions which separate the case at
hand from the precedents that have come out differently, but which cannot
possibly be (in any sane world) the reason it comes out differently. If this
Court is to decide cases by rule of law rather than show of hands, we must
surrender to logic and choose sides: Either Flast v. Cohen (1968), should be
applied to (at a minimum) all challenges to the governmental expenditure of
general tax revenues in a manner alleged to violate a constitutional provision
specifically limiting the taxing and spending power, or Flast should be repu-
diated. For me, the choice is easy. Flast is wholly irreconcilable with the Ar-
ticle III restrictions on federal-court jurisdiction that this Court has
repeatedly confirmed are embodied in the doctrine of standing... .

“1 Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG,

and Justice BREYER join, dissenting.
Flast v. Cohen (1968) held that plaintiffs with an Establishment Clause
claim could “demonstrate the necessary stake as taxpayers in the outcome of
the litigation to satisfy Article IIT requirements.” Here, the controlling, plural-
ity opinion declares that Flast does not apply, but a search of that opinion for
a suggestion that these taxpayers have any less stake in the outcome than the
taxpayers in Flast will come up empty: the plurality makes no such finding,
150 | Law AND PoriTIcs IN THE SUPREME COURT

nor could it. Instead, the controlling opinion closes the door on these tax-
payers because the Executive Branch, and not the Legislative Branch, caused
their injury. I see no basis for this distinction in either logic or precedent, and
respectfully dissent..
The plurality prolirts to the separation of powers to explain its distinction
between legislative and executive spending decisions, but there is no differ-
ence on that point of view between a Judicial Branch review of an executive
decision and a judicial evaluation ofa congressional one. We owe respect to
each of the other branches, no more to the former than to the latter, and no
one has suggested that the Establishment Clause lacks applicability to execu-
tive uses of money. It would surely violate the Establishment Clause for the
Department of Health and Human Services to draw on a general appropria-
tion to build a chapel for weekly church services (no less than if a statute re-
quired it), and for good reason: if the Executive could accomplish through
the exercise of discretion exactly what Congress cannot do through legisla-
tion, Establishment Clause protection would melt away... .
Because the taxpayers in this case have alleged the type of injury this
Court has seen as sufficient for standing, I would affirm.

Baker v. Carr
369 U.S. 186, 82 S.CT. 691 (1962)

In 1901, the Tennessee legislature apportioned both houses and pro-

vided for subsequent reapportionment every ten years on the basis of
the number of people in each of the state’s counties as reported in the
census. But for more than sixty years proposals to redistribute legislative
seats failed to pass, while the state’s population shifted from rural to ur-
ban areas. Charles Baker and several other citizens and urban residents
sued various Tennessee officials. Baker claimed that as an urban resident
he was being denied the equal protection of the law under the Four-
teenth Amendment. He asked the court to order state officials to hold
either an at-large election or an election in which legislators would be
selected from constituencies in accordance with the 1960 federal cen-
sus. The federal district court dismissed the suit, conceding that Baker’s
civil rights were being denied but holding that the court could offer no
remedy. Baker made a further appeal to the Supreme Court.
When the Supreme Court granted review in Baker v. Carr, it faced
two central issues: first, whether the malapportionment of a state legis-
lature is a “political question” for which courts have no remedy and,
second, the merits of Baker’s claim that individuals have a right to equal
votes and equal representation. With potentially broad political conse-
quences, the case was divisive for the Court and was carried over and
reargued for a term. Allies on judicial self-restraint, Justices Frankfurter
 A | Jurisdiction and Justiciable Controversies | 151

and Harlan were committed to their view, expressed in Colegrove v.

Green, 328 U.S. 549 (1946), that the “Court ought not to enter this po-
litical thicket.” At conference, Justices Clark and Whittaker supported
their view that the case presented a nonjusticiable political question. By
contrast, Chief Justice Warren and Justices Black, Douglas, and Brennan
thought that the issue was justiciable. They were also prepared to ad-
dress the merits of the case. The pivotal justice, Potter Stewart, consid-
ered the issue justiciable, but he refused to address the merits of the
case. He voted to reverse the lower court ruling only if the Court’s de-
cision was limited to holding that.courts have jurisdiction to decide
such disputes. He did not want the Court to take on the merits of re-
apportionment in this case,
Assigned the task of drafting the opinion, Brennan had to hold on
to Stewart’s vote and dissuade Black and Douglas from writing opin-
ions on the merits that would threaten the loss of the crucial fifth vote.
After circulating his draft and incorporating suggested changes, he opti-
mistically wrote Black, “Potter Stewart was satisfied with all of the
changes. The Chief also is agreed. It, therefore, looks as though we have
a court agreed upon this as circulated.” It appeared that the decision
would come down on the original five to four vote.
Clark, however, had been pondering the fact that in this case the
population ratio for the urban and rural districts in Tennessee was more
than nineteen to one. As he put it, “city slickers” had been “too long
deprive|d] of a constitutional form of government.” Clark concluded
that citizens denied equal voting power had no political recourse; their
only recourse was to the federal judiciary. Clark thus wrote an opinion
abandoning Frankfurter and going beyond the majority to address the
merits of the claim.
Brennan faced the dilemma of how to bring in Clark without los-
ing Stewart, and thereby enlarge the consensus. Further negotiations
were necessary but limited. Brennan wrote his brethren:
The changes represent the maximum to which Potter will sub-
scribe. We discussed much more elaborate changes which would
have taken over a substantial part of Tom Clark’s opinion. Potter felt
that if they were made it would be necessary for him to dissent
from that much of the revised opinion. I therefore decided it was
best not to press for the changes but to hope that Tom will be will-
ing to join the Court opinion but say he would go further as per
his separate opinion.

Even though there were five votes for deciding the merits, the final
opinion was limited to the jurisdictional question.*

* Sources of quotations are internal Court memos, located in the William J. Brennan, Jr., Papers,
Library of Congress; and the Tom C. Clark Papers, University of Texas Law School.
152 | Law AND POLITICS IN THE SUPREME COURT

The Court’s decision was six to two, with Justice Whittaker not
participating and with the majority’s opinion delivered by Justice Bren-
nan. There were concurrences by Justices Douglas, Clark, and Stewart.
Justice Frankfurter dissented and was joined by Justice Harlan. .

1 Justice BRENNAN delivers the opinion of the Court.

[W]e hold today only (a) that the court possessed jurisdiction of the
subject matter: (b) that a justiciable cause of action is stated upon which
appellants would be entitled to appropriate relief; and (c) because ap-
pellees raise the issue before this Court, that the appellants have standing to
challenge the Tennessee apportionment statutes. Beyond noting that we have
no cause at this stage to doubt the District Court will be able to fashion re-
lief if violations of constitutional rights are found, it is improper now to con-
sider what remedy would be most appropriate if appellants prevail at the
trial.

JURISDICTION OF THE SUBJECT MATTER

The District Court was uncertain whether our cases withholding federal
judicial relief rested upon a lack of federal jurisdiction or upon the inappro-
priateness of the subject matter for judicial considération—what we have
designated “nonjusticiability.’ The distinction between the two grounds is
significant. In the instance of nonjusticiability, consideration of the cause is
not wholly and immediately foreclosed: rather, the Court’s inquiry neces-
sarily proceeds to the point of deciding whether the duty asserted can be
judicially identified and its breach judicially determined, and whether pro-
tection for the right asserted can be judicially molded. In the instance of
lack of jurisdiction the cause either does not “arise under” the Federal Con-
stitution, laws or treaties (or fall within one of the other enumerated cate-
gories of Art. III, Sec. 2), or is not a “case or controversy” within the
meaning of that section; or the cause is not one described by any jurisdic-
tional statute. Our conclusion that this cause presents no nonjusticiable
“political question” settles the only possible doubt that it is a case or con-
troversy. ...
The appellees refer.to Colegrove v. Green, 328 U.S. 549 [(1946)], as au-
thority that the District Court lacked jurisdiction of the subject matter. Ap-
pellees misconceive the holding of that case. The holding was precisely
contrary to their reading of it. Seven members of the Court participated in
the decision. Unlike many other cases in this field which have assumed with-
out discussion that there was jurisdiction, all three opinions filed in Cole-
grove discussed the question. Two of the opinions expressing the views of
four of the Justices, a majority, flatly held that there was jurisdiction of that
subject matter. Justice BLACK joined by Justice DOUGLAS and Justice
MURPHY stated: “It is my judgment that the District Court had juris-
diction. . . .” Justice RUTLEDGE, writing separately, expressed agreement
with this conclusion... . Indeed, it is even questionable that the opinion of
Justice FRANKFURTER, joined by aa REED and BURTON,
doubted jurisdiction of the subject matter..
 A | Jurisdiction and Justiciable Controversies | 153

JUSTICIABILITY

In holding that the subject matter of this suit was not justiciable, the District
Court relied on Colegrove v. Green, supra, and subsequent per curiam cases. The
court stated: “From a review of these decisions there can be no doubt that
the federal rule .. . is that the federal courts .. . will not intervene in cases of
this type to compel legislative reapportionment.” We understand the District
Court to have read the cited cases as compelling the conclusion that since
the appellants sought to have a legislative apportionment held unconstitu-
tional, their suit presented a “political question” and was therefore nonjusti-
ciable. We hold that this challenge to an apportionment presents no
nonjusticiable “political question.” The cited cases do not hold the contrary.
Of course the mere fact that the suit seeks protection ofa political right
does not mean it presents a political question. Such an objection “is little
more than a play upon words.” Rather, it is argued that apportionment cases,
whatever the actual wording of the eomplaint, can involve no federal consti-
tutional right except one resting on the guaranty of a republican form of
government, and that complaints based on that clause have been held to
present political questions which are nonjusticiable.
We hold that the claim pleaded here neither rests upon nor implicates
the Guaranty Clause and that its justiciability is therefore not foreclosed by
‘our decisions of cases involving that clause. .. .To show why we reject the ar-
gument based on the Guaranty Clause, we must examine the authorities un-
der it. But because there appears to be some uncertainty as to why those
cases did present political questions, and specifically as to whether this ap-
portionment case is like those cases, we deem it necessary first to consider
the contours of the “political question” doctrine.
Our discussion, even at the price of extending this opinion, requires re-
view of a number of political question cases, in order to expose the attributes
of the doctrine—attributes which, in various settings, diverge, combine, ap-
pear, and disappear in seeming disorderliness. . . .
We have said that “In determining whether a question falls within [the
political question] category, the appropriateness under our system of govern-
ment of attributing finality to the action of the political departments and also
the lack of satisfactory criteria for a judicial determination are dominant con-
siderations.” Coleman v. Miller [307 U.S. 433 (1939)]. The nonjusticiability of a
political question is primarily a function of the separation of powers. Much
confusion results from the capacity of the “political question” label to obscure
the need for case-by-case inquiry. Deciding whether a matter has in any
measure been committed by the Constitution to another branch of govern-
ment, or whether the action of that branch exceeds whatever authority has
been committed, is itself a delicate exercise in constitutional interpretation,
and is a responsibility of this Court as ultimate interpreter of the Constitu-
tion. To demonstrate this requires no less than to analyze representative cases
and to infer from them the analytical threads that make up the political ques-
tion doctrine. We shall then show that none of those threads catches this case.
Foreign relations: There are sweeping statements to the effect that all
questions touching foreign relations are political questions. Not only does
resolutionsof such issues frequently turn on standards that defy judicial appli-
cation, or involve the exercise of a discretion demonstrably committed to the
executive or legislature; but many such questions uniquely demand single-
154 | Law AND POLITICS IN THE SUPREME Court
Neen eee ee

voiced statement of the Government's views. Yet it is error to suppose that

every case or controversy which touches foreign relations lies beyond judicial
cognizance. Our cases in this field seem invariably to show a discriminating
analysis of the particular question posed, in terms of the history of its
management by the political branches, of its susceptibility to judicial han-
dling in the light ofits nature and posture in the specific case, and of the pos-
sible consequences ofjudicial action. ...
Dates of duration of hostilities: Though it has been stated broadly that “the
power which declared the necessity is the power to declare its cessation,
and what the cessation requires,” Commercial Tiust Co. v. Miller, 262 U.S. 51
[(1923)], here too analysis reveals isolable reasons for the presence of political
questions, underlying this Court’s refusal to review the political departments’
determination of when or whether a war has ended. Dominant is the need
for finality in the political determination, for emergency’s nature demands “A
prompt and unhesitating obedience.” Martin v. Mott, 12 Wheat. [(256 U.S.) 19
(1827)] [Calling up of militia.] .. . Further, clearly definable criteria for deci-
sion may be available. In such case the political question barrier falls away. . . .
Validity of enactments: In Coleman v. Miller, supra, this Court held that the
questions of how long a proposed amendment to the Federal Constitution
remained open to ratification, and what effect a prior rejection had on a sub-
sequent ratification, were committed to congressional resolution and in-
volved criteria of decision that necessarily escaped the judicial grasp. Similar
considerations apply to the enacting process: “The respect due to coequal
and independent departments,” and the need for finality and certainty about
the status of a statute contribute to judicial reluctance to inquire whether, as
passed, it complied with all requisite formalities. Field v. Clark, 143 U.S. 649
(S92) eae.
The status of Indian tribes: This Court’s deference to the political depart-
ments in determining whether Indians are recognized as a tribe, while it re-
flects familiar attributes of political questions, also has a unique element in
that “the relation of the Indians to the United States is marked by peculiar
and cardinal distinctions which exist nowhere else. [The Indians are] domes-
tic dependent nations. ... Their relation to the United States resembles that
of a ward to his guardian.” Cherokee Nation v. Georgia, 5 Pet. 1 [(1831)]. Yet,
here too, there is no blanket rule... .
It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political question, al-
though each has one or more elements which identify it as essentially a func-
tion of the separation of powers. Prominent on the surface of any case held
to involve a political question is found a textually demonstrable constitu-
tional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion; or the impossibility of a court’s
undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestion-
ing adherence to a political decision already made; or the potentiality of em-
barrassment from multifarious pronouncements by various departments on
one question.
Unless one of these formulations is inextricable from the case at bar,
 A | Jurisdiction and Justiciable Controversies | 155

there should be no dismissal for nonjusticiability on the ground of a political

question’s presence. The doctrine of which we treat is one of “political ques-
tions,’ not one of “political cases.” The courts cannot reject as “no law suit” a
bona fide controversy as to whether some action denominated “political” ex-
ceeds constitutional authority. The cases we have reviewed show the necessity
for discriminating inquiry into the precise facts and posture of the particular
case, and the impossibility of resolution by any semantic cataloguing.
But it is argued that this case shares the characteristics of decisions that
constitute a category not yet considered, cases concerning the Constitution’s
guaranty, in Art. IV, Section 4, ofa republican form of government. .. . [Yet,
we] shall discover that Guaranty Clause claims involve those elements which
define a “political question,” and for that reason and no other, they are non-
justiciable. In particular, we shall discover that the nonjusticiability of such
claims has nothing to do with their touching upon matters of state govern-
mental organization. i»
Republican form ofgovernment: Luther v. Borden, 7 How. 1 [(1848)], though
in form simply an action for damages for trespass was, as Daniel Webster said
in opening the argument for the defense, “an unusual case.’ The defendants,
admitting an otherwise tortious breaking and entering, sought to justify their
action on the ground that they were agents of the established lawful govern-
-ment of Rhode Island, which State was then under martial law to defend
itself from active insurrection; that the plaintiff was engaged in that insurrec-
tion; and that they entered under orders to arrest the plaintiff. The case arose
“out of the unfortunate political differences which agitated the people of
Rhode Island in 1841 and 1842,’ and which had resulted in a situation
wherein two groups laid competing claims to recognition as the lawful
government. ...
Chief Justice TANEY’s opinion for the Court reasoned as follows: (1) If
a court were to hold the defendants’ acts unjustified because the charter
government had no legal existence during the period in question, it would
follow that all of that government’s actions—laws enacted, taxes collected,
salaries paid, accounts settled, sentences passed—were of no effect; and that
“the officers who carried their decisions into operation [were] answerable as
trespassers, if not in some cases as criminals.” There was, of course, no room
for application of any doctrine of de facto status to uphold prior acts of an of-
ficer not authorized de jure, for such would have defeated the plaintiff’s very
action.A decision for the plaintiff would inevitably have produced some sig-
nificant measure of chaos, a consequence to be avoided if it could be done
without abnegation of the judicial duty to uphold the Constitution.
(2) No state court had recognized as a judicial responsibility settlement
of the issue of the locus of state governmental authority. Indeed, the courts
of Rhode Island had in several cases held that “it rested with the political
power to decide whether the charter government had been displaced or
not,” and that that department had acknowledged no change.
(3) Since “[t]he question relates, altogether, to the constitution and laws
of [the] . . . State,” the courts of the United States had to follow the state
courts’ decisions unless there was a federal constitutional ground for over-
turning them. °
(4) No provision of the Constitution could be or had been invoked for
this purpose except Art. IV, Sec. 4, the Guaranty Clause. Having already
156 | Law AND PouiTICcs IN THE SUPREME COURT

noted the absence of standards whereby the choice between governments

could be made by a court acting independently, Chief Justice TANEY now
found further textual and practical reasons for concluding that, if any depart-
ment of the United States was empowered by the Guaranty Clause to resolve
the issue, it was not the judiciary:
“Under this article of the Constitution it rests with Congress to decide
what government is the established one in a State. For as the United States
guarantee to each State a republican government, Congress must necessarily
decide what government is established in the State before it can determine
whether it is a republican or not. And when the senators and representatives
ofa State are admitted into the councils of the Union, the authority of the
government under which they are appointed, as well as its republican char-
acter, is recognized by the proper constitutional authority. And its decision is
binding on every other department of the government, and could not be
questioned in a judicial tribunal. It is true that the contest in this case did not
last long enough to bring the matter to this issue; and . .. Congress was not
called upon to decide the controversy. Yet the right to decide is placed there,
and not in the courts.”
“So, too, as relates to the clause in the above-mentioned article of the
Constitution, providing for cases of domestic violence. It rested with Con-
gress, too, to determine upon the means proper to be adopted to fulfill this
guarantee. .. . [B]y the act of February 28, 1795, [Congress] provided, that, ‘in
case of an insurrection in any State against the government thereof, it shall
be lawful for the President of the United States, on application of the
legislature of such State or of the executive (when the legislature cannot
be convened) to call forth such number of the militia of any other State
or States, as may be applied for, as he may judge sufficient to suppress such
insurrection,
“By this act, the power of deciding whether the exigency had arisen
upon which the government of the United States is bound to interfere, is
given to the President” [Luther v. Borden].
Clearly, several factors were thought by the Court in Luther to make the
question there “political”: the commitment to the other branches of the de-
cision as to which is the lawful state government; the unambiguous action by
the President, in recognizing the charter government as the lawful authority;
the need for finality in the executive’s decision; and the lack of criteria by
which a court could determine which form of government was republi-
San
But the only significance that Luther could have for our immediate pur-
poses is in its holding that the Guaranty Clause is not a repository of judi-
cially manageable standards which a court could utilize independently in
order to identify a State’s lawful government. The Court has since refused
to resort to the Guaranty Clause—which alone had been invoked for the
purpose—as the source of a constitutional standard for invalidating state
action®).%
We come, finally, to the ultimate inquiry whether our precedents as to
what constitutes a nonjusticiable “political question” bring the case before us
under the umbrella of that doctrine. A natural beginning is to note whether
any of the common characteristics which we have been able to identify and
label descriptively are present. We find none: The question here is the consis-
 A | Jurisdiction and Justiciable Controversies | 157

tency of state action with the Federal Constitution.We have no question de-
cided, or to be decided, by a political branch of government coequal with
this Court. Nor do we risk embarrassment of our government abroad, or
grave disturbance at home if we take issue with Tennessee as to the constitu-
tionality of her action here challenged. Nor need the appellants, in order to
succeed in this action, ask the Court to enter upon policy determinations for
which judicially manageable standards are lacking. Judicial standards under
the Equal Protection Clause are well developed and familiar, and it has been
open to courts since the enactment of the Fourteenth Amendment to deter-
mine, if on the particular facts they must, that a discrimination reflects no
policy, but simply arbitrary and capricious action.
This case does, in one sense, involve the allocation of political power
within a State, and the appellants might conceivably have added a claim un-
der the Guaranty Clause. Of course, as we have seen, any reliance on that
clause would be futile. But ‘because any reliance on the Guaranty Clause
could not have succeeded it does not follow that appellants may not be heard
on the equal protection claim which in fact they tender... .
We conclude that the complaint’s allegations of a denial of equal protec-
tion present a justiciable constitutional cause of action upon which appel-
lants are entitled to a trial and a decision. The right asserted is within the
reach of judicial protection under the Fourteenth Amendment.
The judgment of the District Court is reversed and the cause is re-
manded for further proceedings consistent with this opinion.
Reversed and remanded.

(1 Justice DOUGLAS, concurring.

While I join the opinion of the Court and, like the Court, do not reach
the merits, a word of explanation is necessary. I put to one side the problems
of “political” questions involving the distribution of power between this
Court, the Congress, and the Chief Executive. We have here a phase of the
recurring problem of the relation of the federal courts to state agencies.
More particularly, the question is the extent to which a State may weight
one person’s vote more heavily than it does another's.
~ So far as voting rights are concerned, there are large gaps in the Consti-
tution. Yet the right to vote is inherent in the republican form of government
envisaged by Article IV, Section 4 of the Constitution. ...
Race, color, or previous condition of servitude is an impermissible stan-
dard by reason of the Fifteenth Amendment, and that alone is sufficient to
explain Gomillion v, Lightfoot, 364 U.S. 339 [(1960)].
Sex is another impermissible standard by reason of the Nineteenth
Amendment.
There is a third barrier to a State’s freedom in prescribing qualifications of
voters and that is the Equal Protection Clause of the Fourteenth Amendment,
the provision invoked here. And so the question is, may a State weight the vote
of one county or one district more heavily than it weights the vote in another?
The traditional test under the Equal Protection Clause has been
whether a State has made “an invidious discrimination,’ as it does when it
selects “a particular race or nationality for oppressive treatment.” Universal
equality is not the test; there is room for weighting. . . .
I agree with my Brother CLARK that if the allegations in the complaint
158 | Law anpD POLITICS IN THE SUPREME COURT

We are told that a single vote

can be sustained a case for relief is established.
in Moore County, Tennessee, is worth 19 votes in Hamilton County, that
one vote in Stewart or in Chester County is worth nearly eight times a sin-
gle vote in Shelby or Knox County. The opportunity to prove that an “in-
vidious discrimination” exists should therefore be given the appellants.

“| Justice CLARK, concurring.

Although I find the Tennessee apportionment statute offends the Equal
Protection Clause, I would not consider intervention by this Court into so
delicate a field if there were any other relief available to the people of
Tennessee. But the majority of the people of Tennessee have no “practical
opportunities for exerting their political weight at the polls” to correct the
existing “invidious discrimination.” Tennessee has no initiative and referen-
dum. I have searched diligently for other “practical opportunities” present
under the law. I find none other than through the federal courts. The major-
ity of the voters have been caught up ina legislative strait jacket. Tennessee
has an “informed, civically militant electorate” and “an aroused popular con-
science,” but it does not sear “the conscience of the people’s representatives.”
This is because the legislative policy has riveted the present seats in the As-
sembly to their respective constituencies, and by the votes of their incum-
bents a reapportionment of any kind is prevented. The people have been
rebuffed at the hands of the Assembly; they have tried the constitutional con-
vention route, but since the call must originate in the Assembly it, too, has
been fruitless. They have tried Tennessee courts with the same result, and
Governors have fought the tide only to flounder. It is said that there is re-
course in Congress and perhaps that may be, but from a practical standpoint
this is without substance. To date Congress has never undertaken such a task
in any State. We therefore must conclude that the people of Tennessee are
stymied and without judicial intervention will be saddled with the present
discrimination in the affairs of their state government.

“| Justice FRANKFURTER, with whom Justice HARLAN joins,

dissenting.
The Court today reverses a uniform course of decision established by a
dozen cases, including one by which the very claim now sustained was unan-
imously rejected only five years ago. The impressive body of rulings thus cast
aside reflected the equally uniform course of our political history regarding
the relationship between population and legislative representation—a wholly
different matter from denial of the franchise to individuals because of race,
color, religion or sex. Such a massive repudiation of the experience of our
whole past in asserting destructively novel judicial power demands a detailed
analysis of the role of this Court in our constitutional scheme. Disregard of
inherent limits in the effective exercise of the Court’s “judicial Power” not
only presages the futility of judicial intervention in the essentially political
conflict of forces by which the relation between population and representa-
tion has time out of mind been and now is determined. It may well impair
the Court’s position as the ultimate organ of “the supreme Law of the Land”
in that vast range of legal problems, often strongly entangled in popular feel
ing, on which this Court must pronounce. The Court’s authority—possessed
 A | Jurisdiction and Justiciable Controversies | 159

of neither the purse nor the sword—ultimately rests on sustained public con-
fidence in its moral sanction. Such feeling must be nourished by the Court’s
complete detachment, in fact and in appearance, from political entangle-
ments and by abstention from injecting itself into the clash of political forces
in political settlements.
A hypothetical claim resting on abstract assumptions is now for the first
time made the basis for affording illusory relief for a particular evil even
though it foreshadows deeper and more pervasive difficulties in conse-
quence. The claim is hypothetical and the assumptions are abstract because
the Court does not vouchsafe the lower courts—state and federal—guide-
lines for formulating specific, definite, wholly unprecedented remedies for
the inevitable litigations that today’s umbrageous disposition is bound to
stimulate in connection with politically motivated reapportionments in so
many States. In such a setting, to promulgate jurisdiction in the abstract is
meaningless. It is as devoid of reality as “‘a brooding omnipresence in the
sky,” for it conveys no intimation what relief, if any, a District Court is capa-
ble of affording that would not invite legislatures to play ducks and drakes
with the judiciary. For this Court to direct the District Court to enforce a
claim to which the Court has over the years consistently found itself re-
quired to deny legal enforcement and at the same time found it necessary to
withhold any guidance to the lower court how to enforce this turnabout,
new legal claim, manifests an odd—indeed an esoteric—conception of judi-
cial propriety. One of the Court’s supporting opinions, as elucidated by com-
mentary, unwittingly affords a disheartening preview of the mathematical
quagmire (apart from divers judicially inappropriate and elusive determi-
nants) into which this Court today catapults the lower courts of the country
without so much as adumbrating the basis for a legal calculus as a means of
extrication. Even assuming the indispensable intellectual disinterestedness on
the part of judges in such matters, they do not have accepted legal stan-
dards or criteria or even reliable analogies to draw upon for making judicial
judgments. To charge courts with the task of accommodating the incom-
mensurable factors of policy that underlie these mathematical puzzles is to
attribute, however flatteringly, omnicompetence to judges. ...
We were soothingly told at the bar of this Court that we need not
worry about the kind of remedy a court could effectively fashion once the
abstract constitutional right to have courts pass on a statewide system of elec-
toral districting is recognized as a matter ofjudicial rhetoric, because legisla-
tures would heed the Court’s admonition. This is not only a euphoric hope.
It implies a sorry confession of judicial impotence in place of a frank ac-
knowledgment that there is not under our Constitution a judicial remedy for
every political mischief, for every undesirable exercise of legislative power.
The Framers carefully and with deliberate forethought refused so to en-
throne the judiciary. In this situation, as in others of like nature, appeal for re-
lief does not belong here. Appeal must be to an informed, civically militant
electorate. In a democratic society like ours, relief must come through an
aroused popular conscience that sears the conscience of the people’s repre-
sentatives. In any event there is nothing judicially more unseemly nor more
’ self-defeating than for this Court to make in terrorem pronouncements, to in-
dulge in merely empty rhetoric, sounding a word of promise to the ear, sure
to be disappointing to the hope... .
160 | Law AND Porirics IN THE SUPREME COURT
SSS SSS ee
ee

From its earliest opinions this Court has consistently recognized a class
of controversies which do not lend themselves to judicial standards and judi-
cial remediesTo . classify the various instances as “political questions” is rather
a form of stating this conclusion than revealing of analysis. Some of the cases
so labelled have no relevance here. But from others emerge unifying consid-
erations that are compelling.
1. The cases concerning war or foreign affairs, for example, are usually
explained by the necessity of the country’s speaking with one voice in such
matters. While this concern alone undoubtedly accounts for many of the de-
cisions, others do not fit the pattern. It would hardly embarrass the conduct of
war were this Court to determine, in connection with private transactions be-
tween litigants, the date upon which war is to be deemed terminated. But the
Court has refused to do so.A controlling factor in such cases is that, decision
respecting these kinds of complex matters of policy being traditionally com-
mitted not to courts but to the political agencies of government for determi-
nation by criteria of political expediency, there exists no standard ascertainable
by settled judicial experience or process by reference to which a political de-
cision affecting the question at issue between the parties can be judged... .
2. The Court has been particularly unwilling to intervene in matters
concerning the structure and organization of the political institutions of the
States. The abstention from judicial entry into such areas has been greater
even than that which marks the Court’s ordinary approach to issues of state
power challenged under broad federal guarantees. . ..
3. The cases involving Negro disfranchisement are no exception to the
principle of avoiding federal judicial intervention into matters of state
government in the absence of an explicit and clear constitutional imperative.
For here the controlling command of Supreme Law is plain and unequivo-
cal. An end of discrimination against the Negro was the compelling motive
of the Civil War Amendments. .. .
4.The Court has refused to exercise its jurisdiction to pass on “abstract
questions of political power, of sovereignty, of government.” Massachusetts v.
Mellon, 262 U.S. 447 [(1923)]. The “‘political question” doctrine, in this as-
pect, reflects the policies underlying the requirement of “standing”: that the
litigant who would challenge official action must claim infringement of an
interest particular and personal to himself, as distinguished from a cause of
dissatisfaction with the general frame and functioning of government—a
complaint that the political institutions are awry. . . What renders cases of
this kind non-justiciable is not necessarily the nature of the parties to them,
for the Court has resolved other issues between similar parties; nor is it the
nature of the legal question involved, for the same type of question has been
adjudicated when presented in other forms of controversy. The crux of the
matter is that courts are not fit instruments of decision where what is essen-
tially at stake is the composition of those large contests of policy traditionally
fought out in non-judicial forums, by which governments and the actions of
governments are made and unmade... .
5.The influence of these converging considerations—the caution not to
undertake decision where standards meet for judicial judgment are lacking,
the reluctance to interfere with matters of state government in the absence
of an unquestionable and effectively enforceable mandate, the unwillingness
to make courts arbiters of the broad issues of political organization histori-
 A | Jurisdiction and Justiciable Controversies | 16x

cally committed to other institutions and for whose adjustment the judicial
process is ill-adapted—has been decisive of the settled line of cases, reaching
back more than a century, which holds that Art. IV, Sec. 4, of the Constitu-
tion, guaranteeing to the States ‘‘a Republican Form of Government,” is not
enforceable through the courts... .
The present case involves all of the elements that have made the Guar-
antee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim
masquerading under a different label. But it cannot make the case more fit
for judicial action that appellants invoke the Fourteenth Amendment rather
than Art. IV, Sec. 4, where, in fact, the gist of their complaint is the same—
unless it can be found that the Fourteenth Amendment speaks with greater
particularity to their situation. We have been admonished to avoid “the
tyranny oflabels.” Art. IV, Sec. 4, is not committed by express constitutional
terms to Congress. It is the nature of the controversies arising under it, noth-
ing else, which has made it judicially unenforceable. Of course, if a contro-
versy falls within judicial power, it depends “on how he [the plaintiff] casts
his action,’ whether he brings himself within a jurisdictional statute. But
where judicial competence is wanting, it cannot be created by invoking one
clause of the Constitution rather than another... .
Appellants invoke the right to vote and to have their votes counted. But
they are permitted to vote and their votes are counted. They go to the polls,
they cast their ballots, they send their representatives to the state councils.
Their complaint is simply that the representatives are not sufficiently numer-
ous or powerful—in short, that Tennessee has adopted a basis of representa-
tion with which they are dissatisfied. ... What 1s actually asked of the Court
in this case is to choose among competing bases of representation—ulti-
mately, really, among competing theories of political philosophy—in order
to establish an appropriate frame of government for the State of Tennessee
and thereby for all the States of the Union....
To find such a political conception legally enforceable in the broad and
unspecific guarantee of equal protection is to rewrite the Constitution. See
Luther v. Borden, supra. Certainly, “equal protection” is no more secure a foun-
dation for judicial judgment of the permissibility of varying forms of repre-
sentative government than is “Republican Form.” ...
The notion that representation proportioned to the geographic spread
of population is so universally accepted as a necessary element of equality
between man and man that it must be taken to be the standard of a political
equality preserved by the Fourteenth Amendment—that it is, in appellants’
words “the basic principle of representative government’’—is, to put it
bluntly, not true. However desirable and however desired by some among the
great political thinkers and framers of our government, it has never been
generally practiced, today or in the past. It was not the English system, it was
not the colonial system, it was not the system chosen for the national govern-
ment by the Constitution, it was not the system exclusively or even predom-
inantly practiced by the States at the time of adoption of the Fourteenth
Amendment, it is not predominantly practiced by the States today. Unless
judges, the judges of this Court, are to make their private views of political
- wisdom the measure of the Constitution—views which in all honesty can-
not but give the appearance, if not reflect the reality, of involvement with the
business of partisan politics so inescapably a part of apportionment contro-
162 | Law AND Porirics IN THE SUPREME COURT

versies—the Fourteenth Amendment, “itself a historical product,” Jackman v.

Rosenbaum Co., 260 U.S. 22 [(1922)], provides no guide for judicial oversight
of the representation problem.

(1 Justice HARLAN, with whom Justice FRANKFURTER joins, dissenting.

I can find nothing in the Equal Protection Clause or elsewhere in the
Federal Constitution which expressly or impliedly supports the view that
state legislatures must be so structured as to reflect with approximate equal-
ity the voice of every voter. Not only is that proposition refuted by history,
as shown by my Brother FRANKFURTER, but it strikes deep into the
heart of our federal system. Its acceptance would require us to turn our backs
on the regard which this Court has always shown for the judgment of state
legislatures and courts on matters of basically local concern. . . .

Goldwater v. Carter
444 U.S. 996, 100 S.CT. $33 (1979)

In 1979, Senator Barry Goldwater and several other senators filed suit
against President James (“Jimmy’’) Carter, challenging the constitution-
ality of Carter’s termination of a defense treaty with Taiwan without
the approval of the Senate. Underlying the case was the enduring sup-
port that the nation’s conservative leadership extended toward Taiwan.
A tiny island, Taiwan housed the Chinese nationalist government after
it was forced out of the China mainland by the new communist govern-
ment. Granting a petition for certiorari but without hearing oral argu-
ments, the Court vacated a court of appeals ruling and remanded the
case to a federal district court with directions to dismiss the complaint.
In separate concurring opinions, Justice Powell rejected the application
of the “political question” doctrine here, while Justice Rehnquist con-
tended that it applies here and in other controversies over foreign pol-
icy. In his dissenting opinion, Justice Brennan rejected the idea that the
question presented here is “political” and further discussed the scope of
the judicial power.
The Court by a vote of six to three ordered the appellate court’s
judgment vacated and remanded the case to the district court. There
were concurrences by Justices Powell and Rehnquist, who was joined
by Chief Justice Burger and Justices Stewart and Stevens. Justice Mar-
shall concurred without filing or joining an opinion. Justice Brennan
filed a dissent. Justice Blackmun, joined by Justice White, filed a dissent
from the Court’s refusal to hear oral arguments in the case.
 A | Jurisdiction and Justiciable Controversies | 163

| Justice POWELL, concurring.

Although I agree with the result reached by the Court, I would dismiss
the complaint as not ripe for judicial review.
This Court has recognized that an issue should not be decided if it is
not ripe for judicial review. Prudential considerations persuade me that a dis-
pute between Congress and the President is not ready for judicial review
unless and until each branch has taken action asserting its constitutional
authority. Differences between the President and the Congress are common-
place under our system. The differences should, and almost invariably do,
turn on political rather than legal considerations. The Judicial Branch should
not decide issues affecting the allocation of power between the President and
Congress until the political branches reach a constitutional impasse. Other-
wise, we would encourage small groups or even individual Members of
Congress to seek judicial resolution of issues before the normal political
process has the opportunity to resolvé the conflict.
In this case, a few Members of Congress claim that the President’s action
in terminating the treaty with Taiwan has deprived them of their constitu-
tional role with respect to a change in the supreme law of the land. Congress
has taken no official action. In the present posture of this case, we do not
know whether there ever will be an actual confrontation between the Leg-
islattve and Executive Branches. Although the Senate has considered a reso-
lution declaring that Senate approval is necessary for the termination of any
mutual defense treaty, no final vote has been taken on the resolution. More-
over, it is unclear whether the resolution would have retroactive effect. It
cannot be said that either the Senate or the House has rejected the Presi-
dent’s claim. If the Congress chooses not to confront the President, it is not
our task to do so. I therefore concur in the dismissal of this case.
Justice REHNQUIST suggests, however, that the issue presented by this
case is a nonjusticiable political question which can never be considered by
this Court. I cannot agree. In my view, reliance upon the political-question
doctrine is inconsistent with our precedents. As set forth in the seminal case
of Baker v. Carr, [369 U.S. 186] (1962), the doctrine incorporates three in-
quiries: (i) Does the issue involve resolution of questions committed by the
text of the Constitution to a coordinate branch of Government? (ii) Would
resolution of the question demand that a court move beyond areas of judicial
expertise? (iii) Do prudential considerations counsel against judicial inter-
vention? In my opinion the answer to each of these inquiries would require
us to decide this case if it were ready for review. ...
In my view, the suggestion that this case presents a political question is
incompatible with this Court’s willingness on previous occasions to decide
whether one branch of our Government has impinged upon the power of
another. Under the criteria enunciated in Baker v. Carr, we have the respon-
sibility to decide whether both the Executive and Legislative Branches have
constitutional roles to play in termination of a treaty. If the Congress, by ap-
propriate formal action, had challenged the President’s authority to termi-
nate the treaty with Taiwan, the resulting uncertainty could have serious
consequences for our country. In that situation, it would be the duty of this
Court to re-olve the issue.
164 | Law AND PoLitICcs IN THE SUPREME COURT
CS

(| JUSTICE REHNQUIST, with whom the CHIEF JUSTICE, Justice

STEWART, and Justice STEVENS join, concurring.
I am of the view that the basic question presented by the petitioners in
this case is “political” and therefore nonjusticiable because it involves the au-
thority of the President in the conduct of our country’s foreign relations and
the extent to which the Senate or the Congress is authorized to negate the
action of the President. In Coleman v. Miller, 307 U.S. 433 (1939), a case in
which members of the Kansas Legislature brought an action attacking a vote
of the State Senate in favor of the ratification of the Child Labor Amend-
ment, Chief Justice HUGHES wrote in what is referred to as the “Opinion
of the Court”:

We think that ... the question of the efficacy of ratifications by

state legislatures, in the light of previous rejection or attempted
withdrawal, should be regarded as a political question pertaining to
the political departments, with the ultimate authority in the Con-
gress in the exercise of its control over the promulgation of the
adoption of the Amendment.
The precise question as now raised is whether, when the legis-
lature of the State, as we have found, has actually ratified the pro-
posed amendment, the Court should restrain the state officers from
certifying the ratification to the Secretary of State, because of an
earlier rejection, and thus prevent the question from coming before
the political departments. We find no basis in either Constitution or
statute for such judicial action. Article V, speaking solely of ratifica-
tion, contains no provision as to rejection.

Thus, Chief Justice HUGHES’ opinion concluded that “Congress in con-

trolling the promulgation of the adoption of a constitutional amendment
has the final determination of the question whether by lapse of time its pro-
posal of the amendment had lost its vitality prior to the required ratifica-
Hons. ce,
I believe it follows a fortiori from Coleman that the controversy in the in-
stant case is a nonjusticiable political dispute that should be left for resolution
by the Executive and Legislative Branches of the Government. Here, while
the Constitution is express as to the manner in which the Senate shall par-
ticipate in the ratification of a treaty, it is silent as to that body’s participation
in the abrogation ofa treaty... .
I think that the justifications for concluding that the question here is
political in nature are even more compelling than in Coleman because it in-
volves foreign relations—specifically a treaty commitment to use military
force in the defense of a foreign government if attacked. In United States v,
Curtiss-Wright Corp., 299 U.S. 304 (1936), this Court said:

Whether, if the Joint Resolution had related solely to internal af-

fairs it would be open to the challenge that it constituted an un-
lawful delegation of legislative power to the Executive, we find it
unnecessary to determine. The whole aim of the resolution is to
affect a situation entirely external to the United States, and falling
within the category of foreign affairs.
 A | Jurisdiction and Justiciable Controversies | 165

The present case differs in several important respects from Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), cited by petitioners as au-
thority both for reaching the merits of this dispute and for reversing the
Court of Appeals. In Youngstown, private litigants brought a suit contesting
the President’s authority under his war powers to seize the Nation’s steel in-
dustry, an action of profound and demonstrable domestic impact. Here, by
contrast, we are asked to settle a dispute between coequal branches of our
Government, each of which has resources available to protect and assert
its interests, resources not available to private litigants outside the judicial
forum. Moreover, as in Curtiss-Wright, the effect of this action, as far as we
can tell, is “entirely external to the United States, and [falls] within the cat-
egory of foreign affairs.” Finally, as already noted, the situation presented
here is closely akin to that presented in Coleman, where the Constitution
spoke only to the procedure for ratification of an amendment, not to its
rejection.

(| Justice BLACKMUN, with whom Justice WHITE joins, dissenting in

part.
In my view, the time factor and its importance are illusory; if the Presi-
dent does not have the power to terminate the treaty (a substantial issue that
we should address only after briefing and oral argument), the notice of in-
tention to terminate surely has no legal effect. It is also indefensible, without
further study, to pass on the issue of justiciability or on the issues of standing
or ripeness. While I therefore join in the grant of the petition for certiorari, |
would set the case for oral argument and give it the plenary consideration it
so obviously deserves.

“) Justice BRENNAN, dissenting.

I respectfully dissent from the order directing the District Court to dis-
miss this case, and would affirm the judgment of the Court of Appeals inso-
far as it rests upon the President’s well-established authority to recognize, and
withdraw recognition from, foreign governments.
In stating that this case presents a non-justiciable “political question,”
Justice REHNQUIST, in my view, profoundly misapprehends the political-
question principle as it applies to matters of foreign relations. Properly
understood, the political-question doctrine restrains courts from reviewing
an exercise of foreign policy judgment by the coordinate political branch to
which authority to make that judgment has been “constitutional[ly] com-
mit[ted].” Baker v. Carr. But the doctrine does not pertain when a court is
faced with the antecedent question whether a particular branch has been con-
stitutionally designated as the repository of political decisionmaking power.
The issue of decisionmaking authority must be resolved as a matter of con-
stitutional law, not political discretion; accordingly, it falls within the compe-
tence of the courts.
The constitutional question raised here is prudently answered in narrow
‘terms. Abrogation of the defense treaty with Taiwan was a necessary incident
to Executive recognition of the Peking Government, because the defense
treaty was predicated upon the now-abandoned view that the Tatwan Govern-
166 | Law AND POLITICS IN THE SUPREME COURT an
i

ment was the only legitimate political authority in China. Our cases firmly es-
tablish that the Constitution commits to the President alone the power to rec-
ognize, and withdraw recognition from, foreign regimes. That mandate being
clear, our judicial inquiry into the treaty rupture can go no further.

Elk Grove Unified School District v. Newdow

542 US. 1, 124 S.CT. 2301 (2004)

In 2000, Michael A. Newdow, an, atheist, challenged the constitutional-

ity of Elk Grove Unified School District’s requirement that teachers
lead their classes in reciting the Pledge of Allegiance. Because the
Pledge contains the words “under God,” he contended that the practice
amounted to religious indoctrination and violates the First Amend-
ment. At the time, his daughter was in kindergarten and Newdow was
in a custody battle with her mother, Sandra Banning. Banning and
Newdow were awarded shared “physical custody,’ but Banning had
“exclusive legal custody.’ A federal district court dismissed Newdow’s
complaint, but the Court of Appeals for the Ninth Circuit reversed,
holding Newdow had standing as a parent to sue and that the school
district’s policy violated the (Dis)establishment clause. Banning, then,
filed a motion to have the case dismissed on the ground that she was
the sole legal custodian and that she did not feel that it was in her
daughter’s interest to be a party to the suit. The Ninth Circuit, none-
theless, reaffirmed Newdow’s standing to challenge allegedly un-
constitutional governmental practices, and that under California law
he retained the right to expose his child to his religious views, even
though they contradicted her mother’s Christian views. The school dis-
trict appealed that decision to the Supreme Court, which granted re-
view. Subsequently, Newdow filed a motion requesting Justice Scalia
to recuse himself due to his off-the-bench comments criticizing the
Ninth Circuit’s ruling that the school district’s policy violated the First
Amendment.
The Ninth Circuit’s decision was unanimously reversed, with Jus-
tice Scalia not participating. Justice Stevens delivered the opinion for
the Court, holding that Newdow lacked “prudential standing” to raise
the challenge on behalf of his daughter, and declined to reach the mer-
its of the case. In three separate concurring opinions, Chief Justice
Rehnquist and Justices O’Connor and Thomas indicate that Newdow
had standing and they would, though each for different reasons, uphold
the school district’s policy over First Amendment objections.
 A | Jurisdiction and Justiciable Controversies | 167

Justice STEVENS delivered the opinion of the Court.

As part of the nationwide interest in commemorating the 400th an-
niversary of Christopher Columbus’ discovery of America, a widely circu-
lated national magazine for youth proposed in 1892 that pupils recite the
following affirmation: “I pledge allegiance to my Flag and the Republic for
which it stands: one Nation indivisible, with Liberty and Justice for all.” In
the 1920's, the National Flag Conferences replaced the phrase “my Flag”
with “the flag of the United States of America.”
In 1942, in the midst of World War II, Congress adopted, and the Presi-
dent signed, a Joint Resolution codifying a detailed set of “rules and customs
pertaining to the display and use of the flag of the United States of America.”
This resolution, which marked the first appearance of the Pledge of Alle-
giance in positive law, confirmed the importance of the flag as a symbol of
our Nation’s indivisibility and commitment to the concept of liberty.
Congress revisited the Pledge-of Allegiance 12 years later when it
amended the text to add the words “under God.” The resulting text is the
Pledge as we know it today:“I pledge allegiance to the Flag of the United
States of America, and to the Republic for which it stands, one Nation un-
der God, indivisible, with liberty and justice for all.” ...
‘We granted the School District’s petition for a writ of certiorari to con-
sider two questions: (1) whether Newdow has standing as a noncustodial
parent to challenge the School District’s policy, and (2) if so, whether the
policy offends the First Amendment. .. .
The command to guard jealously and exercise rarely our power to make
constitutional pronouncements requires strictest adherence when matters of
great national significance are at stake. Even in cases concededly within our
jurisdiction under Article II, we abide by “a series of rules under which [we
have] avoided passing upon a large part of all the constitutional questions
pressed upon [us] for decision.” Ashwander v. TVA, 297 U.S. 288 (1936)
(BRANDEIS, J., concurring).
Consistent with these principles, our standing jurisprudence contains
two strands: Article III standing, which enforces the Constitution’s case or
controversy requirement; and prudential standing, which embodies “judi-
cially self-imposed limits on the exercise of federal jurisdiction,” Allen [v.
Wright, 468 U.S. 737 (1984)].... Although we have not exhaustively defined
the prudential dimensions of the standing doctrine, we have explained that
prudential standing encompasses “the general prohibition on a litigant’s rais-
ing another person’s legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches, and
the requirement that a plaintiff's complaint fall within the zone of interests
protected by the law invoked.” Allen.
One of the principal areas in which this Court has customarily declined
to intervene is the realm of domestic relations. Long ago we observed that
“tlhe whole subject of the domestic relations of husband and wife, parent
and child, belongs to the laws of the States and not to the laws of the United
States.” In re Burrus, 136 U.S. 586 (1890). [W]hile rare instances arise in which
it is necessary to answer a substantial federal question that transcends or exists
‘apart fromethe family law issue, in general it is appropriate for the federal
courts to leave delicate issues of domestic relations to the state courts. ...
Newdow’s standing derives entirely from his relationship with his
168 | Law AND PorrTiCcs IN THEeeeSUPREME COURT
ay i a pa ee ae

daughter, but . . . the interests of this parent and this child are not parallel
and, indeed, are potentially in conflict.
Newdow’s parental status is defined by California's domestic relations
law. Our custom on questions of state law ordinarily is to defer to the inter-
pretation of the Court of Appeals for the Circuit in which the State is lo-
cated. In this case, the Court of Appeals, which possesses greater familiarity
with California law, concluded that state law vests in Newdow a cognizable
right to influence his daughter’s religious upbringing. . . .Animated by a con-
ception of “family privacy” that includes “not simply a policy of minimum
state intervention but also a presumption of parental autonomy,” the state
cases create a zone of private authority within which each parent, whether
custodial or noncustodial, remains free to impart to the child his or her reli-
gious perspective. ...
In our view, it is improper for the federal courts to entertain a claim by
a plaintiff whose standing to sue is founded on family law rights that are in
dispute when prosecution of the lawsuit may have an adverse effect on the
person who is the source of the plaintiff’s claimed standing. When hard ques-
tions of domestic relations are sure to affect the outcome, the prudent course
is for the federal court to stay its hand rather than reach out to resolve a
weighty question of federal constitutional law. There is a vast difference be-
tween Newdow’s right to communicate with his child—which both Cali-
fornia law and the First Amendment recognize—and his claimed right to
shield his daughter from influences to which she is exposed in school despite
the terms of the custody order. We conclude that, having been deprived un-
der California law of the right to sue as next friend, Newdow lacks pruden-
tial standing to bring this suit in federal court.

Chief Justice REHNQUIST, with whom Justice O'CONNOR joins, and

with whom Justice THOMAS joins as to Part I, concurring in the judgment.
The Court today erects a novel prudential standing principle in order to
avoid reaching the merits of the constitutional claim. I dissent from that rul-
ing. On the merits, I conclude that the Elk Grove Unified School District
policy that requires teachers to lead willing students in reciting the Pledge of
Allegiance, which includes the words “under God,” does not violate the Es-
tablishment Clause of the First Amendment.
[T]he Court does not dispute that respondent Newdow satisfies the req-
uisites of Article III standing. But curiously the Court incorporates criticism
of the Court of Appeals’ Article III standing decision into its justification for
its novel prudential standing principle. The Court concludes that respondent
lacks prudential standing, under its new standing principle, to bring his suit
in federal court.
We have, in the past, judicially self-imposed clear limits on the exercise
of federal jurisdiction. In contrast, here is the Court’s new prudential stand-
ing principle: “[I]t is improper for the federal courts to entertain a claim by a
plaintiff whose standing to sue is founded on family law rights that are in
dispute when prosecution of the lawsuit may have an adverse effect on the
person who is the source of the plaintiff’s claimed standing.” . ..
First, the Court relies heavily on Ankenbrandt v. Richards, 504 US. 689
(1992), in which we discussed both the domestic relations exception and the
 A | Jurisdiction and Justiciable Controversies | 169

abstention doctrine. ...We . . . conclude[ed] that the domestic relations ex-

ception only applies when a party seeks to have a district court issue a ‘“‘di-
vorce, alimony, and child custody decree.” We further held that abstention
was inappropriate because “the status of the domestic relationship ha[d] been
determined as a matter of state law, and in any event ha[d] no bearing on the
underlying torts alleged.”
The Court[’s] conclusion does not follow from Ankenbrandt’s discussion
of the domestic relations exception and abstention; even if it did, it would
not be applicable in this case because, on the merits, this case presents a sub-
stantial federal question that transcends the family law... .
Although the Court may have succeeded in confining this novel princi-
ple almost narrowly enough to be, like the proverbial excursion ticket—
good for this day only—our doctrine of prudential standing should be
governed by general principles, rather than ad hoc improvisations. . . .
The phrase “under God” in the Pledge seems, as a historical matter, to
sum up the attitude of the Nation’s leaders, and to manifest itself in many of
our public observances. Examples of patriotic invocations of God and official
acknowledgments of religion’s role in our Nation’s history abound.
At George Washington’s first inauguration on April 30, 1789, . . .““Wash-
ington put his right hand on the Bible, opened to Psalm 121:1: ‘I raise my
-eyes toward the hills. Whence shall my help come’ The Chancellor pro-
ceeded with the oath: “Do you solemnly swear that you will faithfully exe-
cute the office of President of the United States and will to the best of your
ability preserve, protect and defend the Constitution of the United States?’
The President responded, ‘I solemnly swear, and repeated the oath, adding,
‘So help me God? He then bent forward and kissed the Bible before him.”
Later the same year, after encouragement from Congress, Washington is-
sued his first Thanksgiving proclamation, which began: “Whereas it is the
duty of all Nations to acknowledge the providence of Almighty God, to
obey His will, to be grateful for his benefits, and humbly to implore his pro-
tection and favor—and whereas both Houses of Congress have by their joint
Committee requested me ‘to recommend to the People of the United States
a day of public thanksgiving and prayer to be observed by acknowledging
with grateful hearts the many signal favors of Almighty God especially by af-
fording them an opportunity peaceably to establish a form of government
for their safety and happiness. ”
Almost all succeeding Presidents have issued similar Thanksgiving
proclamations. Later Presidents, at critical times in the Nation’s history, have
likewise invoked the name of God....
The motto “In God We Trust” first appeared on the country’s coins dur-
ing the Civil War. [I]n 1956, Congress declared that the motto of the United
States would be “In God We Trust.”
Our Court Marshal’s opening proclamation concludes with the words
“God save the United States and this honorable Court.” . ..
[do not believe that the phrase “under God” in the Pledge converts its
recital into a “religious exercise” of the sort described in Lee [v. Weisman, 505
U.S. 577 (1992)]. Instead, it is a declaration of belief in allegiance and loyalty
‘to the United States flag and the Republic that it represents. The phrase “un-
der God” is in no sense a prayer, nor an endorsement of any religion... .
Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not
170 | Law AND PoLITICs IN THE SUPREME COURT
a

a religious one; participants promise fidelity to our flag and our Nation, not
to any particular God, faith, or Glaurehvare
When courts extend constitutional prohibitions beyond their previously
recognized limit, they may restrict democratic choices made by public bod-
ies.... The Constitution only requires that schoolchildren be entitled to ab-
stain from the ceremony if they chose to do so. To give the parent of such a
child a sort of “heckler’s veto” over a patriotic ceremony willingly partici-
pated in by other students, simply because the Pledge of Allegiance contains
the descriptive phrase “under God,” is an unwarranted extension of the Es-
tablishment Clause, an extension which would have the unfortunate effect of
prohibiting a commendable patriotic observance.

Justice O’CONNOR, concurring in the judgment.

I join the concurrence of THE CHIEF JUSTICE in full. Like him, I
would follow our policy of deferring to the Federal Courts of Appeals in
matters that involve the interpretation of state law, and thereby conclude
that the respondent does have standing to bring his constitutional claim be-
fore a federal court. Like THE CHIEF JUSTICE, I believe that petitioner
school district’s policy of having its teachers lead students in voluntary
recitations of the Pledge of Allegiance does not offend the Establishment
Clause. But while the history presented by THE CHIEF JUSTICE illumi-
nates the constitutional problems this case presents, I write separately to ex-
plain the principles that guide my own analysis of the constitutionality of
that, policy... %
When a court confronts a challenge to government-sponsored speech
or displays, I continue to believe that the endorsement test “captures the es-
sential command of the Establishment Clause, namely, that government must
not make a person’ religious beliefs relevant to his or her standing in the po-
litical community by conveying a message ‘that religion or a particular reli-
gious belief is favored or preferred?” County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (opinion of
O’CONNOR, J.).
Endorsement, I have explained, “sends a message to nonadherents that
they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members
of the political community.” In order to decide whether endorsement has
occurred, a reviewing court must keep in mind two crucial and related prin-
ciples.
First, because the endorsement test seeks “to identify those situations in
which government makes adherence to a religion relevant .. . to a person’s
standing in the political community,” it. assumes the viewpoint of a reason-
able observer. Given the dizzying religious heterogeneity of our Nation,
adopting a subjective approach would reduce the test to an absurdity. Nearly
any government action could be overturned as a violation of the Establish-
ment Clause if a “heckler’s veto” sufficed to show that its message was one of
endorsement.
The Court has permitted government, in some instances, to refer to or
commemorate religion in public life.... One such purpose is to commemo-
rate the role of religion in our history. . . . For centuries, we have marked
important occasions or pronouncements with references to God and invoca-
 A | Jurisdiction and Justiciable Controversies | 171

tions of divine assistance. Such references can serve to solemnize an occasion

instead of to invoke divine provenance. ...
This case requires us to determine whether the appearance of the phrase
“under God” in the Pledge of Allegiance constitutes an instance of such cere-
monial deism. Although it is a close question, I conclude that it does, based
on my evaluation of the following four factors.

“) History and ubiquity

The constitutional value of ceremonial deism turns on a shared under-
standing of its legitimate nonreligious purposes. That sort of understanding
can exist only when a given practice las been in place for a significant por-
tion of the Nation’s history, and when it is observed by enough persons that
it can fairly be called ubiquitous. By contrast, novel or uncommon references
to religion can more easily be perceived as government endorsements be-
cause the reasonable observer cannot be presumed to be fully familiar with
their origins. As a result, in examining whether a given practice constitutes
an instance of ceremonial deism, its “history and ubiquity” will be of great
importance. . . .

() Absence of worship or prayer

“[O]|ne of the greatest dangers to the freedom of the individual to wor-
ship in his own way [lies] in the Government’s placing its official stamp of
approval upon one particular kind of prayer or one particular form of reli-
gious services.” Engel v. Vitale, 370 U.S. 421 (1962). Because of this principle,
only in the most extraordinary circumstances could actual worship or prayer
be defended as ceremonial deism... .

1 Absence of reference to particular religion

“The clearest command of the Establishment Clause is that one reli-
gious denomination cannot be officially preferred over another.” Larson v,
Valente, 456 U.S. 228 (1982). ...As a result, no religious acknowledgment
could claim to be an instance of ceremonial deism if it explicitly favored one
particular religious belief system over another.
The Pledge complies with this requirement. It does not refer to a nation
“under Jesus” or “under Vishnu,” but instead acknowledges religion in a gen-
eral way: a simple reference to a generic “God.” ... The phrase “under God,”
conceived and added at a time when our national religious diversity was nei-
ther as robust nor as well recognized as it is now, represents a tolerable at-
tempt to acknowledge religion and to invoke its solemnizing power without
favoring any individual religious sect or belief system.

“| Minimal religious content

A final factor that makes the Pledge an instance of ceremonial deism, in
my view, is its highly circumscribed reference to God. [T]he brevity of a ref-
- erence to religion or to God in a ceremonial exercise can be important for
several reasons. First, it tends to confirm that the reference is being used to
acknowledge religion or to solemnize an event rather than to endorse reli-
172 | LAw AND POLITICS IN THE SUPREME Court

to
gion in any way. Second, it makes it easier for those participants who wish
“opt out” of language they find offensive to do so without having to reject
the ceremony entirely. And third, it tends to limit the ability of government
to express a preference for one religious sect over anothers) J
Michael Newdow’s challenge to petitioner school district’s policy is a
under
well-intentioned one, but his distaste for the reference to “one Nation
God.” however sincere, cannot be the yardstick of our Establish ment Clause
inquiry. Certain ceremonial references to God and religion in our Nation are
the inevitable consequence of the religious history that gave birth to our
founding principles ofliberty. It would be ironic indeed if this Court were to
wield our constitutional commitment to religious freedom so as to sever our
ties to the traditions developed to honor it.

Justice THOMAS, concurring in the judgment.

Because I agree with THE CHIEF JUSTICE that respondent Newdow
has standing, I would take this opportunity to begin the process of rethink-
ing the Establishment Clause. I would acknowledge that the Establishment
Clause is a federalism provision, which, for this reason, resists incorporation,
Moreover, as I will explain, the Pledge policy is not implicated by any sensi-
ble incorporation of the Establishment Clause, which would probably cover
little more than the Free Exercise Clause.
In Lee [v. Weisman], the Court held that invocations and benedictions
could not, consistent with the Establishment Clause, be given at public sec-
ondary school graduations. . . . It brushed aside both the fact that the students
were not required to attend the graduation, and the fact that they were not
compelled, in any meaningful sense, to participate in the religious compo-
nent of the graduation ceremony. The Court surmised that the prayer vio-
lated the Establishment Clause because a high school student could—ain light
of the “peer pressure” to attend graduation and “to stand as a group or, at
least, maintain respectful silence during the invocation and benediction” —
have “a reasonable perception that she is being forced by the State to pray in
a manner her conscience will not allow.”
Adherence to Lee would require us to strike down the Pledge policy,
which, in most respects, poses more serious difficulties than the prayer at is-
sue in Lee. A prayer at graduation is a one-time event, the graduating stu-
dents are almost (if not already) adults, and their parents are usually present.
By contrast, very young students, removed from the protection of their par-
ents, are exposed to the Pledge each and every day.
Moreover, this case is more troubling than Lee with respect to both
kinds of “coercion.” First, although students may feel “peer pressure” to at-
tend their graduations, the pressure here is far less subtle: Students are actu-
ally compelled.
Analysis of the second form of “coercion” identified in Lee is somewhat
more complicated. It is true that since this Court decided West Virginia Bd. of
Ed. v. Barnette, 319 U.S. 624 (1943), States cannot compel (in the traditional
sense) students to pledge their allegiance. Formally, then, dissenters can refuse
to pledge, and this refusal would be clear to onlookers. That is, students have
a theoretical means of opting out of the exercise. ... On Lee’s reasoning, Bar-
nette’s protection is illusory, for government officials can allow children to re-
cite the Pledge and let peer pressure take its natural and predictable course.
 A | Jurisdiction and Justiciable Controversies | 173

Further, even if we assume that sitting in respectful silence could be mistaken

for assent to or participation in a graduation prayer, dissenting students grad-
uating from high school are not “coerced” to pray. At most, they are “co-
erced” into possibly appearing to assent to the prayer. The “coercion” here,
however, results in unwilling children actually pledging their allegiance.
THE CHIEF JUSTICE would distinguish Lee by asserting “that the
phrase ‘under God’ in the Pledge [does not] conver|t] its recital into a ‘reli-
gious exercise’ of the sort described in Lee.” In Barnette, the Court addressed
a state law that compelled students to salute and pledge allegiance to the flag.
The Court described this as “compulsion of students to declare a belief,’ In
its current form, reciting the Pledge entails pledging allegiance to “the Flag
of the United States of America, and to the Republic for which it stands, one
Nation under God.” Under Barnette, pledging allegiance is “to declare a be-
lief” that now includes that this is “one Nation under God.” It is difficult to
see how this does not entail an affirmation that God exists. Whether or not
we classify affirming the existence of God as a “formal religious exercise”
akin to prayer, it must present the same or similar constitutional problems.
To be sure, such an affirmation is not a prayer, and I admit that this
might be a significant distinction. But the Court has squarely held that the
government cannot require a person to “declare his belief in God.” Torcaso v.
Watkins, 367 U.S. 488 (1961). ...
I conclude that, as a matter of our precedent, the Pledge policy is un-
constitutional. I believe, however, that Lee was wrongly decided. Lee de-
pended on a notion of “coercion” that ... has no basis in law or reason. The
kind of coercion implicated by the Religion Clauses is that accomplished
“by force of law and threat of penalty.’ Peer pressure, unpleasant as it may be,
is not coercion. But rejection of Lee-style “coercion” does not suffice to set-
tle this case. Although children are not coerced to pledge their allegiance,
they are legally coerced to attend school. Because what is at issue is a state
action, the question becomes whether the Pledge policy implicates a reli-
gious liberty right protected by the Fourteenth Amendment.
I accept that the Free Exercise Clause, which clearly protects an individ-
ual right, applies against the States through the Fourteenth Amendment. But
the Establishment Clause is another matter. The text and history of the Es-
tablishment Clause strongly suggest that it is a federalism provision intended
to prevent Congress from interfering with state establishments. Thus, unlike
the Free Exercise Clause, which does protect an individual right, it makes lit-
tle sense to incorporate the Establishment Clause. In any case, I do not be-
lieve that the Pledge policy infringes any religious liberty right that would
arise from incorporation of the Clause. Because the Pledge policy also does
not infringe any free-exercise rights, I conclude that it is constitutional.
174 | Law AND POLITICS IN THE SUPREME COURT

= CONSTITUTIONAL HISTORY

Rules
for Judicial Self-Restraint and Avoiding
Constitutional Questions

Justice Louis D. Brandeis, concurring in Ashwander v. Tennessee Valley Author-

ity, 297 U.S. 288 (1936), summarized some prudential rules for exercising
judicial self-restraint and avoiding ruling on the constitutionality of congres-
sional legislation:
The Court developed, for its own governance in the cases confess-
edly within its jurisdiction, a series of rules under which it has
avoided passing upon alarge part of all the constitutional questions
pressed upon it for decision. They are:
1. The Court will not pass upon the constitutionality of legislation
in a friendly, non-adversary, proceeding, declining because to decide
such questions “is legitimate only in the last resort, and as a neces-
sity in the determination of real, earnest and vital controversy be-
tween individuals. .. .
2. The Court will not “anticipate a question of constitutional law |
in advance of the necessity of deciding it.” Liverpool, NY. & PS. S.
Co. v. Emigration Commissioners, 113 U.S. 33 [(1885)]....
3. The Court will not “formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be ap-
plied.” Liverpool.
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of. ... Appeals from
the highest court of a state challenging its decision of a question
under the Federal Constitution are frequently dismissed because the
judgment can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its opera-
tion. Among the many applications of this rule, none is more strik-
ing than the denial of the right of challenge to one who lacks a
personal or property right.
6. The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits.
7. “When the validity of an act of the Congress is drawn in ques-
tion, and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a con-
struction of the statute is fairly possible by which the question may
be avoided.” Crowell v. Benson, 285 U.S. 22 [(1932)].
 C | The Rule of Four and Agenda Setting | 175

B The Court’s Docket and

Screening Cases

The justices’ interpretation of their jurisdiction and rules governs access

to the Court. But they also need flexible procedures for screening cases
and deciding what to decide. This is because the Court’s docket has
grown phenomenally (see Figure 2.3).
When any appeal or cert. petition arrives at the Court it immedi-
ately goes to the clerk’s office. Staff look at whether it satisfies require-
ments as to form, length, and fees and if the filing is from an indigent
whether there is an affidavit stating that the petitioner is too poor to
pay fees. All unpaid cases are assigned a number in the order they arrive,
and placed on what is called the Miscellaneous Docket. Paid cases are
also assigned a number but placed on the Appellate Docket. The clerk
then notifies the other party, or respondent, in each case that he or she
must file a brief in response within thirty days. After receiving briefs
from respondents, the clerk circulates to the justices’ chambers a list of
cases ready for consideration and aset of briefs for each case.
For much of the Court’s history every justice was responsible for
reviewing each case. The justices did not work by panels or delegate re-
sponsibility for screening cases to others. That is no longer true. In 1972
the “cert. pool” was established. Eight of the justices now share their
collective law clerks’ memos on all paid and unpaid cases. The memos
explain the facts, issues raised, and lower court ruling as well as recom-
mend whether the case should be granted or denied. Those justices not
joining the pool—now only Stevens—treceive copies of unpaid cases
along with other filings. Stevens has his clerks screen all the cases and
write memos only on those they think are important enough for him
to consider.

C The Rule of Four and

Agenda Setting

When Congress gave the Court discretionary jurisdiction in the Judi-

_ ciary Act_of 1925, by substituting petitions for certiorari for mandatory
appeals, the justices developed the informal “rule of four” to decide
which petitions they would grant. During conference, at least four jus-
176 | Law AND POLITICS IN THE SUPREME COURT

tices must agree that a case warrants oral argument and consideration
by the full Court.
The rule of four operates in a fraction of cases due to the increasing
caseload, which is a result of a number of factors. Most important, insti-
tutional norms promote a shared conception of the role of the Court as
a tribunal for resolving only issues of national importance. Justices agree
that the overwhelming proportion of cases is “frivolous,” and that there
is a limited number of cases to which they may give full consideration.
The caseload and institutional norms push toward limiting the op-
eration of the rule of four. But the rule remains useful, particularly if

= CONSTITUTIONAL HISTORY

Docket and Filings, 1800-2007

12,000

11,000
10,000 Docket

9,000

8,000

7,000

6,000

5,000
y, f Filings
4,000

3,000

2,000

1,000

FIGURE 2.3
Based on data from the U.S. Supreme Court through the 2006-2007 term.
 C | The Rule of Four and Agenda Setting | 177

there is a bloc of justices who share the same ideological orientation.

The rule of four thus enables a bloc of justices to work together in
picking cases they want the Court to rule on.
Denial of certiorari is an important technique for managing the
Court’s caseload. But its meaning in particular cases may be far from
clear. The Court has few fixed rules, and even the rule of four is not “an
absolutely inflexible rule.”' Although enabling the Court to manage its
business, denials invite confusion and the suspicion, as Justice Jackson
once observed, “that this Court no longer respects impersonal rules of
law but is guided in these matters by personal impression which from
time to time may be shared by a majority of the justices.”
The Court now decides less than 1 percent of the cases annually
arriving on its docket.’ That is far less than thirty years ago, when about
3 percent of a much smaller docket were granted and decided. Then,
the docket was just reaching 5,000 cases and the justices decided be-
tween 150 and 180 cases a term. The docket now exceeds 10,000, yet
the justices decide only about 80 cases a year. That is the same number
decided by the Court in 1955 when the docket remained under 2,000.
Even if the Court in the 1990s and 2000s had continued to grant as
many! cases as it did in the 1970s and 1980s, the percentage granted
would have declined, of course, due to the continued growth in the
caseload. Still, the diminished plenary docket is striking and probably
reflects a combination of factors internal and external to the Court,
which undoubtedly contributed to the inflation of the plenary docket
during the Burger Court years (1969-1986) and to its contraction
thereafter. Early in his chief justiceship, Burger expanded the size of the
oral argument calendar in order to accommodate more cases, because
of his concern about the Court’s declining supervisory capacity. During
Burger’s chief justiceship, the discipline imposed by the rule of four was
also weakened by the emergence of the practice of casting Join-3 votes
and the increased circulation of dissents from denial of review, espe-
cially by Justice White who drew attention to cases raising conflicts
among the lower courts that the Court was not resolving. AJoin-3 vote
is a vote to provide a fourth vote if others vote to grant review, but is
otherwise considered as voting to deny. In the 1970s and 1980s, Join-3
votes arguably lowered the threshold for granting cases, thereby weak-
ening the self-discipline imposed by the rule of four and contributing
to the inflation of the plenary docket.
As the Court’s composition changed in the 1990s, so did the jus-
tices’ voting practices when deciding what to decide: both Join-3 votes
_ and dissents from denial became no longer commonplace and the jus-
tices becarne more tolerant of intercircuit conflicts. In addition, the
Judicial Improvements and Access to Justice Act of 1988 eliminated vir-
178 | Law AND POLITICS IN THE SUPREME COURT

= IN COMPARATIVE PERSPECTIVE

The “European Model” of Constitutional Courts

and Judicial Review

In most European states, the institution and power of “American-style” judi-

cial review has been rejected. Instead, institutions called constitutional courts
have been established in Austria (1945), Italy (1948), the Federal Republic of
Germany (1949), France (1958), Portugal (1976), Spain (1978), and Belgium
(1985), as well as in many of the post-communist countries in Eastern Eu-
rope (after 1989), including the Czech Republic, Hungary, Poland, Romania,
Russia, and Slovakia.
In contrast to the United States federal judiciary, which has general
jurisdiction over issues of constitutional and statutory law, European courts
have historically been subordinate to legislatures and denied jurisdiction
over constitutional matters. The constitutional courts created in post-World
War II Europe thus were an innovation, although their powers of judicial re-
view differed from the American model in several key respects. European
constitutional courts are (1) formally detached from the judiciary, (2) given
exclusive jurisdiction over constitutional questions, and (3) authorized to ex-
ercise review as well as to issue advisory opinions at the request of other
governmental institutions.
Unlike the U.S. federal judiciary’s jurisdiction over only actual cases or
controversies, European constitutional courts may exercise abstract and con-
crete constitutional review of legislation. Abstract constitutional review of legis-
lation is initiated by elected officials or national and regional governmental
bodies with respect to legislation that has been recently adopted that either
(1) has not yet been put into force (as in France) or (2) has not yet been en-
forced, or has been suspended, pending review by the constitutional court (as
in Germany, Italy, and Spain). In short, before controversial legislation goes
into effect the constitutional court must pass on its constitutionality, and
thereafter the legislation may be revised. Concrete constitutional review arises
from litigation in the courts when ordinary judges are uncertain about the
constitutionality or the application of a statute or ordinance; in such cases the
judges refer the constitutional question or complaint to the constitutional
court for resolution. ;
The principal features of the European model of constitutional courts
and judicial review in France, Germany, Italy, and Spain are summarized
on the following page.
 C | The Rule of Four and Agenda Setting | 179

Court and Constitu- Federal Con- Italian Con- Spanish Con-

date of tional Coun- stitutional stitutional stitutional
creation cil (1958) Court (1949) Court (1956) Court (1978)

JURISDICTION

Abstract Yes Yes Yes Yes

review

Authority to President, Federal and National Prime minis-

initiate Presidential lander (state) government ter, president
abstract Assembly, or governments (against re- of the Parlia-
review of Senate or one-third gional laws); ment, 50
legislation of the Bun- regional deputies or
destag governments senators, ex-
(against na- ecutives of
tional laws) autonomous
regions, and
ombudsmen

Laws National Federal and National and National and

referred lander legisla- regional leg- regional leg-
tion islation islation

Laws must Within 15 Within 30 Within 30 Within 90

be referred days of adop- days of adop- days of adop- days of adop-
tion tion tion tion

Concrete No Yes Yes

review

Authority to Judiciary and Judiciary Judiciary, om-

initiate con- individuals budsmen, and
crete review (after exhaus- individuals
of legislation tion of judi- (after exhaus-
cial remedies) tion of judi-
cial remedies)
COMPOSITION, RECRUITMENT, TENURE

Number of 9 16 £5 12
judges
Recruitment Named by Elected by Named by Named by
the president the Bunde- the president the federal
(3), assembly stag (8) and (5), judiciary government
(6) Bundesrat (8) (5); elected (2), judiciary
by the Parlia- (2); elected
ment (5) by the Con-
gress (4) and
Senate (4)
' Length of 9 years 12 years 9 years 9 years
term
———— se
180 | Law AND PoLiTICs IN THE SUPREME COURT

SSS SSS

For further reading, see Donald P. Kommers, The Constitutional Jurisprudence of the
Federal Republic of Germany 2d ed., (Durham, NC: Duke University Press, 1997); Alex
Stone, The Birth of Judicial Politics in France (New York: Oxford University Press,
1992); Mary Volcansek, Constitutional Politics in Italy: The Constitutional Court (New
York: St. Martin’s Press, 2000); Alec Stone Sweet, Governing with Judges: Constitutional
Politics in Europe (New York: Oxford University Press, 2000); Carlo Guarnieri and
Patrizia Pederzoli, The Comparative Study of Courts and Democracy (Oxford: Oxford
University Press, 2002); and Georg Nolte, ed., European and U.S. Constitutionalism
(New York: Cambridge University Press, 2005).

tually all remaining nondiscretionary appellate jurisdiction, thereby in-

creasing the Court’s “managerial capacity” for controlling the plenary
docket by denying cert. to more cases. Finally, the institutionalization of
the cert. pool over the past quarter of a century undoubtedly con-
tributed to the shrinking plenary docket in several ways: more justices
now rely, and rely to a greater degree than before, on their law clerks’
cert. memos; there is, thus, less independent review of petitions by the
justices themselves; and, as Stevens has suggested, the clerks tend to be
“tisk averse” when recommending that cases be granted.

NOTES

1. Potter Stewart, “Inside the Supreme Court,’ The New York Times, Oct. 1, 1979,
jo UU oll 2
2. Brown v, Allen, 344 U.S. 443, 535 (1953) (Jackson,
J., concurring opinion).
3. This discussion draws on the author’s analysis in “Join-3 Votes, the Rule of Four,
the Cert. Pool, and the Supreme Court’s Shrinking Plenary Docket,’ 13 The Journal of
Law & Politics 779 (1997); and in “A Diminished Plenary Docket: A Legacy of the
Rehnquist Court,’ 89 Judicature 134 (2005).

SELECTED BIBLIOGRAPHY

Pacelle, Richard L. The Transformation of the Supreme Court’s Agenda: From the New Deal
to the Reagan Administration. Boulder, CO: Westview Press, 1991.
Perry, H.W. Deciding to Decide: Agenda Setting in the United States Supreme Court. Cam-
bridge, MA: Harvard University Press, 1991.
Provine, Doris Marie. Case Selection in the United States Supreme Court. Chicago: Uni-
versity of Chicago Press, 1980.
 E | The Role of Oral Argument | 181

D | Summarily Decided Cases

Even before the 1988 Act to Improve the Administration of Justice,

which eliminated virtually all mandatory appeals, the distinction be-
tween mandatory and discretionary review of appeals and cert. petitions
had largely disappeared in the Court’s process of deciding what to de-
cide. The Court annually received between 300 and 400 appeals, and
the overwhelming majority were summarily decided (without hearing
oral arguments and full consideration). They simply dismissed them for
want of jurisdiction or failure to present a substantial federal question,
or they ordered the lower court ruling affirmed or reversed.
Summarily decided cases enabled the Court to cut down on its
workload. But they also engendered confusion among the lower courts.
Summary decisions take the form of rather cryptic orders or per curiam
(unsigned) opinions. Like denials of cert. petitions, they invite confusion
over how the Court views the merits of a case and the lower court rul-
‘ing. The problem is one of the Court’s own making. The Court holds
that summarily decided cases do not have the same precedential weight
as plenary decisions, but they are nonetheless binding on lower courts
“until such time as the Court informs [them] that [they] are not.” Hicks
v, Arizona, 422 U.S. 322 (1975).

E | The Role of Oral Argument

The Court grants a full hearing—that is, oral argument—to only about
80 of the more than 10,000 cases on the docket each term. When cases
are granted full consideration, attorneys for each side submit briefs set-
ting forth their arguments and how they think the case should be de-
cided. The clerk of the Court circulates the briefs to each chamber and
sets a date for the attorneys to argue their views orally before the jus-
tices. After hearing oral arguments, the justices vote in private confer-
ence on how to decide the issues presented in acase.
For fourteen weeks each term, from the first Monday in October
until the end of April, the Court hears arguments on Monday, Tuesday,
and Wednesday about every two weeks. The importance of oral argu-
ment, Chief Justice Hughes observed, lies in the fact that often “the im-
_ pression that a judge has at the close of a full oral argument accords
with the conviction which controls his final vote.”' The justices hold
conference and take their initial, often decisive, vote on cases within a
 182 | Law AND PoLiTICs IN THE SUPREME COURT

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 F| Conference Deliberations | 183

day or two after hearing arguments. Oral arguments come at a crucial

time. They focus the minds of the justices and present the possibility for
fresh perspectives on a case. It is the only opportunity for attorneys to
communicate directly with the justices. Two basic factors appear to
control the relative importance of oral argument. As Justice Wiley Rut-
ledge observed, “One is brevity. The other is the preparation with
which the judge comes to it.’? When the Court revised its rules in
1980, the justices underscored that “/t/he Court looks with disfavor on any
oral argument that is read from a prepared text.” Central to preparation and
delivery is a bird’s-eye view of the case, the issues and facts, and the rea-
soning behind legal developments. Crisp, concise, and conversational
presentations are what the justices want. An attorney must never forget,
in Chief Justice Rehnquist’s words, that “[h]e is not, after all, presenting
his case to some abstract, platonic embodiment of appellate judges as a
class, but .. . nine flesh and blood men and women.” Oral argument is
definitely not a “brief with gestures.”*
Notably, in 2000 the Supreme Court created its own web site (at
http:www.supremecourtus.gov) that makes available transcripts of oral
arguments and the full text of its decisions and opinions, until they are
officially published. In 2006, the Roberts Court began posting tran-
scripts on its web site on the same day of hearing oral arguments. In ad-
dition, for the first time the transcripts indicated the name of the justice
asking questions and responding to attorneys.

NOTES

1. Charles E. Hughes, The Supreme Court of the United States (New York: Columbia
University Press, 1928), 61.
2. Wiley Rutledge, “The Appellate Brief?’ 28 American Bar Association Journal 251
(1942).
3. William Rehnquist, “Oral Advocacy: A Disappearing Art,” Brainerd Currie Lec-
ture, Mercer University School of Law, Oct. 20, 1983, msp. 4. See, generally, Timothy
Johnson, Oral Arguments and Decision Making on the U.S. Supreme Court (Albany:
SUNY Press, 2004).

F | Conference Deliberations

The justices meet alone in conference to decide which cases to accept

and to discuss the merits of those few cases on which they hear oral ar-
- guments. Throughout the term during the weeks in which the Court
hears oral arguments, conferences are held on Wednesday afternoons to
take up the four cases argued on Monday, and then on Fridays to dis-
184 | Law AND POLITICS IN THE SUPREME COURT

Members of the Burger Court, in the tradition begun by Chief Justice Melville
Fuller, shaking hands prior to going on the bench to hear oral arguments. (© Yoichi
Okamoto, Photo Researchers)

cuss new filings and the eight cases for which oral argument was heard
on Tuesday and Wednesday. In May and June, when the Court does not
hear oral arguments, conferences are held on Thursdays, from ten in the
morning until four or four-thirty in the afternoon, with the justices
breaking for a forty-five-minute lunch around twelve-thirty. A majority
may vote to hold a special session during the summer months, when
extraordinarily urgent cases arise.
Summoned by a buzzer five minutes before the hour, the justices
meet in the conference room, located directly behind the courtroom itself
and next to the chief justice’s chamber. The oak-paneled room is lined
with United States Reports (containing the Court’s decisions). Over the
mantel of an exquisite fireplace at one end hangs a portrait of Chief Jus-
tice Marshall. Next to the fireplace stands a large rectangular table where
the justices sit. The chief justice sits at the one end and the senior associate
Justice (Stevens) at the other. Along the right-hand side of the chief jus-
tice, next to the fireplace, sit Scalia, Kennedy, and Souter; on the left-hand
side, sit Thomas, Ginsburg, Breyer, and Alito, the most junior justice. The
 F| Conference Deliberations | 185

m INSIDE THE COURT

On the Tentativeness of Votes and the

Importance of Opinion Writing

In two controversial cases, involving claims by the press to a First Amend-

ment right of access to visit and interview prisoners, Chief Justice Burger
switched his vote after conference. During the conference discussion of Pell
v, Procunier 417 U.S. 817 (1974) and Saxbe v. Washington Post 417 U.S. 843
(1974), the vote went five to four for recognizing that the press has a First
Amendment right of access.sBut Burger later changed his mind and ex-
plained that the final outcome of the cases depended on how the opinions
were written:
This difficult case has few very clear cut and fixed positions but my
further study over the weekend leads me to see my position as
closer for those who would sustain the authority of the corrections
administrators than those who would not! I would therefore reverse
in 73-754, affirm in 73-918 and reverse in 73-1265.
This is another one of those cases that will depend a good deal on
“how it is written.” The solution to the problem must be allowed
time for experimentation and I fear an “absolute” constitutional
holding adverse to administrators will tend to “freeze” progress.

The Court ultimately divided five to four but held that the press does not
have a First Amendment right of access to interview inmates of prisons.
For other notable instances of vote switching that dramatically affected
the outcome, see in Volume 1, Chapter 7, the box INSIDE THE COURT
and the discussion of Garcia v. San Antonio Metropolitan Transit Authority, 469
USS. 528 (1985) (excerpted there); and in Volume 2, Chapter 6, the box IN-
SIDE THE COURT: Justice Kennedy Switches Positions and the Outcome
in Lee v, Weisman; and Volume 2, Chapter 11, the box INSIDE THE
COURT: Vote Switching in Bowers v, Hardwick and Justice Powell’s April 8,
1986, Memorandum. These examples illustrate how important postconfer-
ence deliberations and communications among the chambers have become
for the Court’s decision making.
Source: Library of Congress, Justice William J. Brennan, Jr., Papers, Manuscripts
Room.

—@6K§
meaner

seating of the justices traditionally has been on the basis of seniority. But
_variations occur due to individual justices’ preferences.
Two conference lists are circulated to each chamber by noon on
Wednesday prior to the Friday conference. They structure conference
186 | Law AND POLITICS IN THE SUPREME COURT

discussion and enable the justices to get through their caseload. On the
first list—Special List I, or the Discuss List—are jurisdictional state-
ments, petitions for certiorari, and motions that are ready and worth dis-
cussing. The Discuss List typically includes between forty and fifty cases
for each conference. Attached is a second list—Special List II, or what
was called the Dead List—containing those cases considered unworthy
of discussion . justice may request that a case be put on the Discuss
Any
List, and only after the chief's conference secretary has heard from all
chambers do the lists become final. Over 90 percent of the cases on the
conference lists are automatically denied without discussion, and most
of those that do make the Discuss List are denied as well. The confer-
ence lists are an important technique for saving time and focusing at-
tention on the few cases deemed worthy of consideration.
The significance of conference discussions has changed with the
increasing caseload. Conference discussions do not play the role that
they once did. When the docket was smaller in the nineteenth century,
conferences were integral to the justices’ collective deliberations.As the
caseload grew, conferences became largely symbolic of past collective
deliberations. They now serve only to discover consensus. There is no
longer time to reach agreement and compromise on opinions for the
Court. “In fact,’ Justice Antonin Scalia claims, “to call our discussion of
a case a conference is really something of a misnomer. It’s much more a
statement of the views of each of the nine Justices.”' More discussion,
however, he admits would probably not contribute much or lead jus-
tices to change their minds when voting on cases. This is because the
justices confront similar issues year after year and, as Chief Justice
Rehnquist observed, “it would be surprising if [justices] voted differ-
ently than they had the previous time.”
The justices’ votes are always tentative until the day the Court
hands down its decision and opinion. Before, during, and after confer-
ence justices may use their votes in strategic ways to influence the dis-
position ofa case.

NOTES

1. Antonin Scalia, comments at George Washington National Law Center, Feb. 16,
1988, quoted in “Ruling Fixed Opinions,” New York Times, Feb. 22, 1988, p. 16A.
2. William H. Rehnquist, quoted in David M. O’Brien, Storm Center: The Supreme
Court in American Politics, 8th ed. (New York: W. W. Norton, 2008).

SELECTED BIBLIOGRAPHY

Dickson, Del. The Supreme Court in Conference. New York: Oxford University Press,
2001.
 G | Postconference Writing and Circulation of Opinions | 187

Hammond, Thomas; Bonneau, Chris; and Sheehan, Reginald. Strategic Behavior and
Policy Choice on the U.S. Supreme Court. Stanford, CA: Stanford University Press, 2005.
Matltzman, Forrest; Spriggs, James F, II; and Wahlbeck, Paul. Crafting Law on the
Supreme Court: The Collegial Game. Cambridge, MA: Cambridge University Press,
2000.
O’Brien, David M. Storm Center: The Supreme Court in American Politics, 8th ed. New
York: W. W. Norton, 2008.
Schwartz, Bernard. Decision: How the Supreme Court Decides Cases. New York: Oxford
University Press, 1996.

G | Postconference Writing and

Circulation of Opinions
Opinions justify or explain votes at conference. The opinion for the
Court is the most important and most difficult to write because it rep-
resents a collective judgment. Because conference votes are tentative,
the assignment, drafting, and circulation of opinions is crucial to the
Court’s rulings. At each stage justices compete for influence in deter-
mining the Court’s final decision and opinion.
By tradition, when the chief justice is in the majority, he assigns the
Court’s opinion. If the chief justice did not vote with the majority, then
the senior associate justice who was in the majority either writes the
opinion or assigns it to another. Chief justices may keep cases for them-
selves. This is in the tradition of Chief Justice Marshall, but as modified
by the workload and other justices’ expectations of equitable opinion
assignments. In unanimous decisions and landmark cases the chief jus-
tice often self-assigns the Court’s opinion.
Parity in opinion assignment now generally prevails. But the prac-
tice of immediately assigning opinions after conference as Hughes did,
or within a day or two as Stone did, was gradually abandoned by the
end of Vinson’s tenure as chief justice. Warren and Burger adopted the
practice of assigning opinions after each two-week session of oral argu-
ments and conferences. With more assignments to make at any given
time, they thus acquired greater flexibility in distributing the workload.
They also enhanced their own opportunities for influencing the final
outcome of cases through their assignment of opinions.
Writing opinions is the most difficult and time-consuming task of
the justices. Justices differ in their styles and approaches to opinion
writing. Tney now more or less delegate responsibility to their clerks
for assisting in the preparation of opinions. Chief Justice Rehnquist, for
188 | Law AND PoLiTics IN THE SUPREME COURT

example, usually has one of his clerks do a first draft, without bothering
about style, and gives him about ten days to prepare it. Before having
the clerk begin work, Rehnquist goes over the conference discussion
with the clerk and explains how he thinks “an opinion can be written
supporting the result reached by the majority.”
Only after a justice is satisfied with an initial draft does the opinion
circulate to the other justices for their reactions. The practice of circu-
lating draft opinions is pivotal in the Court’s decision-making process
because all votes are tentative until the final opinion is handed down.
Final published opinions for the Court are the residue of conflicts
and compromises among the justices. But they also reflect changing in-
stitutional norms. In historical perspective, changes in judicial norms
have affected trends in opinion writing, the value of judicial opinions,
and the Court’s contributions to public law.
“The business of the Court,’ Justice Stewart once observed, “is to
give institutional opinions for its decisions.” The opinion for the Court
serves to Communicate an institutional decision. For much of the
Court’s history, there were few concurring opinions (those in which a
justice agrees with the Court’s ruling but not the reasons given in its
opinion) and dissenting opinions (those in which justices disagree with
the Court’s ruling and give an alternative interpretation). It was also
rare for a justice to write a separate opinion in which he or she con-
curred and dissented from parts of the opinion for the Court. But in
the last forty years there has been a dramatic increase in the total num-
bert of opinions issued each term, as depicted in Figure 2.4. However,
during the last 20 years the Court has granted fewer cases plenary con-
sideration and, hence, has annually handed down fewer opinions. In ad-
dition, in the 1990s the justices also cut back on writing separate
dissenting opinions, except in cases deemed especially important and
divisive. The dissenters instead joined one another ina single dissenting
opinion more frequently than was the prior practice.
The increase in the number of opinions reflects in part that the
justices are now more interested in merely the tally of votes than arriving
at an institutional decision and opinion. The number of cases decided by
a bare majority has thus grown in the last few decades. In addition, some-
times a bare majority for deciding a case a certain way cannot agree on
an opinion for the Court’s decision and the author of the opinion an-
nouncing the Court’s decision must write for only a plurality.
In contrast to the author of an opinion for the Court, a justice writ-
ing separate concurring or dissenting opinions does not carry the
burden of amassing other justices. Dissenting opinions are more
understandable and defensible. Dissenting opinions in the view of Chief
Justice Charles Evans Hughes, who rarely wrote dissents, appeal “to the
brooding spirit of the law, to the intelligence of a future day, when alater
 G | Postconference Writing and Circulation of Opinions | 189

@ CONSTITUTIONAL HISTORY

Opinion Writing, 1937-2007

400

Total
For the Court
Dissenting
300 - Concurring
Separate

200

100
“Sosnmaanmey
tC
Ppp,

Q es" "=
Gi "OD B80 toy, sgeaes ith GR Bite y
We ey

FIGURE 2.4
Based on data through the 2006-2007 term.

decision may possibly correct the error into which the dissenting judge
believes the Court to have been betrayed.’' The first Justice John M.
Harlan’s dissent from the doctrine of “separate but equal” in Plessy v. Fer-
guson, 163 U.S. 537 (1896) (see Vol. 2, Ch. 12), was eventually vindicated
in Brown v. Board of Education (1954). Dissents may also appeal for more
immediate legislative action: Justice James Iredell’s dissent in Chisholm v,
Georgia, 2 U.S. 419 (1793), invited the adoption of the Eleventh Amend-
ment overturning the Court’s decision; and the dissenters’ arguments in
Dred Scott v. Sandford, 60 U.S. 393 (1857) (see Vol. 2, Ch. 12), lent support
to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments
after the Civil War. A dissenting opinion is a way of undercutting the
~ Court’s decision and opinion. The threat of a dissent may thus be useful
when trying to persuade the majority to narrow its holding or tone
down the language of its opinion.
190 | Law AND PoLiTICs IN THE SUPREME COURT

NOTE

1. Charles Evans Hughes, The Supreme Court of the United States (New York: Colum-
bia University Press, 1928).

H |Opinion Days and

Communicating Decisions

The justices announce their decisions in the courtroom, typically

crowded with reporters, anxious attorneys, and curious spectators. When
several decisions are to be handed down, the justices delivering the
Court’s opinions make their announcements in reverse order of seniority.
Authors of concurring or dissenting opinions are free to give their views
orally as well. By tradition there is no prior announcement as to when
cases will be handed down. Most opinions are now announced in two to
four minutes with justices merely stating the result in each case. In espe-
cially controversial cases, such as those concerning restrictions on abor-
tion, justices may read portions of their opinions and, sometimes, dissents.
Justices appreciate that compliance with their decisions depends on
public understanding of their opinions. And media coverage of the
Court has grown in the last thirty years. On “Opinion Days,’ journal-
ists receive copies of the headnotes—prepared by the reporter of deci-
sions—summarizing the main points of a decision. The Court has a
public information office as well. The office serves primarily reporters
(not members of the general public, whose inquiries are typically han-
dled by the offices of the clerk, marshal, or curator) and provides space
for a pressroom with sixteen assigned cubicles. The public information
officer makes available all filings and briefs for cases on the docket, the
Court’s conference lists and final opinions, and speeches made by the
justices. The Court also now makes its opinions and transcripts of oral
arguments available on its web site at www.supremecourtus.gov.

SELECTED BIBLIOGRAPHY

Graham, Fred. Happy Talk: Confessions of a TV Newsman. New York: W. W. Norton,

1990.
MacKenzie, John P. The Appearance ofJustice. New York: Scribner's, 1974.
O’Brien, David M., ed.judges on Judging: Views from the Bench. 2d ed. Washington, DC:
C.Q. Press, 2004.
Slotnick, Elliot E., and Segal, Jennifer A. Television News and the Supreme Court. New
York: Cambridge University Press, 1998.
 I | The Impact of Supreme Court Decisions | 191

I | The Impact of Supreme Court

Decisions: Compliance and
Implementation

“By itself,’ political scientist Robert Dahl observed, “the Court is al-
most powerless to affect the course of national policy.”! This is because
the Court’ rulings are not self-executing. Enforcement and implemen-
tation require the cooperation and coordination of all three branches of
government.
Brown v. Board of Education (1954) (see Vol. 2, Ch. 12), the public
school desegregation case, dramatically altered the course of American
life but also reflected the justices’ awareness that their decisions are not
self-executing. When striking down the “separate but equal” doctrine,
which was practiced in segregated public school systems, the Warren
Court waited a year after Brown I (1954) before issuing in Brown II its
mandate for “all deliberate speed” in ending racial segregation in pub-
lic education. The Court knew that there would be substantial public
resistance to the social policy announced in Brown I. A rigid time-
table for desegregation would have only intensified opposition. Presi-
dent Dwight Eisenhower refused to endorse the ruling for some
time. Hence, implementation of Brown was deliberately slow and
uneven. The Department of Justice had little role in ending school seg-
regation before the passage of the Civil Rights Act of 1964 dur-
ing Lyndon B. Johnson’s presidency. For over three decades problems
of implementing and achieving compliance with Brown persisted.
Litigation by civil rights groups forced change, but it was piece-
meal, costly, and modest. The judiciary alone could not achieve deseg-
regation.
Public opinion serves to curb the Court when it threatens to go
too far or too fast in its rulings. Life in the marble temple is not im-
mune from shifts in public opinion.* But justices deny being directly
influenced by public opinion. The Court’s prestige rests on preserving
the public’s view that justices base their decisions on interpretations of
the law, rather than on their personal policy preferences. Yet complete
indifference to public opinion would be the height of judicial arro-
gance. In the highly controversial 1992 abortion ruling in Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (see
_ Vol. 2, Ch. 11), the justices engaged in an unusual debate over the in-
fluence of public opinion on the Court with the dissenters, Chief Jus-
tice Rehnquist and Justices Scalia, Thomas, and White, accusing the
plurality (Justices O’Connor, Kennedy, and Souter) of bending to pub-
lic opinion and following “not a principle of law.. . but the principle
of Realpolitik.”
Most of the Court’s decisions do not attract widespread public at-
tention. Most people find the Court remote and confusing or identify
with its institutional symbols. The public perceives the Court as a tem-
ple of law rather than of politics—impartial and removed from the
pressures of special partisan interests.’ Issues such as school desegrega-
tion, school prayer, and abortion focus public attention and may mobi-
lize public support or opposition for the Court. But those issues are
also the most divisive within the country as well. Public opinion, there-
fore, tends to be diffuse and indirectly expressed by public officials and
elected representatives.
Less concerned about public opinion than elected public officials,
justices are sensitive to the attitudes of the Court’s immediate con-
stituents: the solicitor general, the attorney general and the Department
of Justice, counsel for federal agencies, states’ attorneys general, and the
legal profession. Their responses to the Court’s rulings help shape pub-
lic understanding and determine the extent of compliance.
The solicitor general, attorney general, and agency counsel inter-
pret the Court’s decisions and advise the White House and agencies on
compliance. Justices may find a favorable or unfavorable reception from
the executive branch. The solicitor general decides which and what
kinds of cases to take to the Court. In selecting cases he tries to offer
the Court (or a majority) opportunities for pursuing their policy goals
and those of the president.
The attorney general, cabinet heads, and agency Shara may like-
wise extend or thwart the Court’ policies. They do so through their ad-
visory opinions, litigation strategies, and development of agency policy
and programs. The reactions of the fifty state attorneys general are no less
important. Each has a pivotal role in advising governors, mayors, police
chiefs, and others in his or her state. Their responses tend to reflect state
and local reactions to the Court’s rulings. Regional differences were
evident in responses to the 1962 and 1963 school prayer decisions.
In upholding separation of church and state, the Court struck down a
state-composed prayer in Engel v. Vitale, 370 U.S. 421 (1962), and the
reciting of the Lord’s Prayer in public schools in Abington School District v,
Schempp, 374 U.S. 203 (1963) (see Vol. 2, Ch. 6). Long-standing practices
of school prayer in the East and South were not to be easily relinquished.
Voluntary school prayer, silent meditation, and “the objective study of the
Bible and of religion” were viewed as still permissible. Where school
prayer received support in state constitutions or legislation, state and local
officials denied the legitimacy of the Court’s decrees and refused to obey.
 I | The Impact of Supreme Court Decisions | 193

The justices do consider anticipated reactions of the immediate au-

dience of the Court’s rulings. One example is that of Chief Justice War-
ren’s opinion in Miranda v, Arizona, 384 U.S. 436 (1966) (see Vol. 2,
Ch. 8), which held that police must read suspects their rights, granted
them by the Fifth and Sixth Amendments, to remain silent and to con-
sult and have the presence of an attorney during police questioning.A
former attorney general in California, Chief Justice Warren knew full
well that not all state attorneys general and police supported the
Court’s rulings on criminal procedure. He, therefore, strove to outline
in Miranda a code for police procedures governing the interrogation of
criminal suspects that police could not easily evade.
The Court’s decisions have traditionally applied retroactively, per-
mitting individuals to have retrials. In Linkletter v. Walker (1965) (see
excerpt below), however, the Court refused to apply retroactively its
controversial ruling in Mapp v. Ohio, 367 U.S. 643 (1961) (see Vol. 2,
Ch. 7), which extended to the states the Fourth Amendment exclusion-
ary rule, forbidding the use at trial of evidence obtained in violation of
the requirements for a proper search and seizure. The Court subse-
quently developed what became known as its ambulatory-retroactive doc-
trine in other areas of criminal law as well. “That doctrine,’ Justice
Harlan explained, “was the product of the Court’s disquietude with the
impacts of its fast-moving pace in constitutional innovation in the
criminal field.” But he also objected that the doctrine merely rational-
izes the Court’s freedom “to act, in effect, like a legislature, making its
new constitutional rules wholly or partially retroactive or only prospec-
tive as it deems wise.”* In Griffith v. Kentucky (1987) (see excerpt be-
low), Justice Blackmun further explains the Court’s application of the
doctrine of ambulatory retroactivity.
_ Subsequently, the Court established guidelines for when new deci-
sions apply retroactively in Teague v. Lane, 489 U.S. 288 (1989). Under
Teague an old ruling applies both on direct and collateral (an independ-
ent challenge to overturn a judgment) review, but a new rule, overturn-
ing a precedent, applies only to cases still on direct review and applies
retroactively in collateral proceedings only if (1) it is substantive or (2) a
watershed ruling bearing on “the fundamental fairness and accuracy of
the criminal proceeding,’ like the Sixth Amendment right to counsel
decision in Gideon v. Wainwright, 372 U.S. 335 (1963) (excerpted in Vol.
2, Ch. 9). In Whorton v. Bockting (2007) (excerpted below), the Roberts
Court adhered to Teague in holding that the decision in Crawford v. Wash-
ington, 541 U.S. 36 (2004) (discussed in Vol. 2, Ch. 9), does not apply
_ retroactively on collateral review. Crawford announced a new rule in
ruling tha. “testimonial statements of witnesses absent from [a] trial”
are admissible “only where the declarant is unavailable, and where the
194 | Law AND POLITICS IN THE SUPREME CoOuRT

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The justices’ private conference room. (Photo by Franz Jantzen, Collection of the Supreme
Court of the United States.)

defendant has had a prior opportunity to cross-examine [the witness],”

and overruling Ohio v. Roberts, 448 U.S. 56 (1980), as inconsistent with
the Sixth Amendment’s Confrontation Clause. In Whorton, writing for a
unanimous Court Justice Alito held that although Crawford announced a
new rule it was neither substantive nor a watershed ruling, like Gideon,
and thus does not apply retroactively to cases on collateral review.
The Court directly and indirectly encourages interest groups and
the government to litigate issues of public policy. The Court selects and
decides “only those cases which present questions whose resolution will
have immediate importance far beyond the particular facts and parties
involved.” Attorneys whose cases are accepted by the Court, Chief Jus-
tice Fred Vinson emphasized, “are, in a sense, prosecuting or defending
class actions; that you represent your clients, but [more crucially]
tremendously important principles, upon which are based the plans,
hopes and aspirations of a great many people throughout the country.”
Interest groups from the entire political spectrum look to the
Court to decide issues of public policy: from business organizations and
corporations in the late nineteenth century to the Jehovah’s Witnesses
in the 1930s, to the ACLU and NAACP in the 1950s and 1960s, and to
“liberal” women’s rights groups and consumer and environmental pro-
tection groups—like the National Organization for Women (NOW),
Common Cause, “Nader’s Raiders,’ the Sierra Club, the Environmental
 I | The Impact of Supreme Court Decisions | 195

Defense Fund, and the Natural Resources Defense Council—as well as

to a growing number of conservative “public interest” law firms like the
Pacific Legal Foundation, the Mountain States Legal Foundation, and
the Washington Legal Foundation. “This is government by lawsuit,” Jus-
tice Robert Jackson declared; “these constitutional lawsuits are the stuff
of power politics in America.”®
Interest group activities and public interest law firms offer a num-
ber of advantages for litigating policy disputes. They command greater
financial resources than the average individual. A single suit may settle a
large number of claims, and the issues are not as likely to be compro-
mised or settled out of court. Interest group law firms typically special-
ize in particular kinds of lawsuits. They are, therefore, able to litigate
more skillfully and over a longer period of time. There are also tactical
opportunities. Litigants may be Chosen to bring test cases, and those
cases may be coordinated with other litigation and the activities of
other organizations. ,
The Court is an instrument of political power, but the justices re-
main dependent on the attitudes and actions of their immediate con-
stitutents, elected officials, and the dynamics of pressure-group politics
and public opinion. Implementation and compliance largely depend on
lower courts, Congress, and the president.
Compliance with the Court’s decisions by lower courts is invari-
ably uneven. They may extend or limit decisions in anticipation of later
rulings by the high Court. Following the watershed ruling on privacy
in Griswold v. Connecticut, 381 U.S. 479 (1965) (see Vol. 2, Ch. 4), lower
courts interpreted the newfound constitutional right of privacy to
strike down a wide range of laws, from those limiting the length of
male employees’ and students’ hair to ones forbidding certain sexual
acts between consenting adults and the use of marijuana, to laws re-
quiring psychological tests of applicants for government jobs, and to
laws governing access to financial and medical records. The Court re-
versed or would not approve the extension of the right of privacy in
many of these areas.
A simple model of compliance is not very useful: Decisions handed
down by the Court are not necessarily or readily applied by lower
courts. Ambiguity and plurality or five-to-four decisions invite lower
courts to pursue their own policy goals. Crucial language in an opinion
may be treated as dicta. Differences between the facts on which the
Court ruled and the circumstances of a case at hand may be emphasized
so as to distinguish or reach the opposite result of the Court’s decision.
Lower federal courts may thus effectively delay implementation
and comp..ance. Open defiance is infrequent but not unprecedented.
Jaffree v. Board of School Commissioners (1983) (see excerpt below) is ex-
196 | Law AND Porirics IN THE SUPREME COURT

LL

= CONSTITUTIONAL HISTORY

The Southern Manifesto:A Declaration of

Constitutional Principles

Following the Supreme Court’s landmark school desegregation rulings in

Brown v, Board of Education (1954 and 1955) (see Vol. 2, Ch. 12), 101 WS.
senators and representatives issued The Southern Manifesto, denouncing
the decision and the Court for running afoul of established constitutional
principleThes. excerpt reprinted here comes from 102 Congressional Record
4515 (1956).
The Founding Fathers gave us a Constitution of checks and bal-
ances because they realized the inescapable lesson of history that
no man or group of men can be safely entrusted with unlimited
power. They framed this Constitution with its provisions for change
by amendment in order to secure the fundamentals of government
against the dangers of temporary popular passion or the personal
predilections of public officeholders.
We regard the decision of the Supreme Court in the school
cases as a Clear abuse ofjudicial power. It climaxes a trend in the
federal judiciary undertaking to legislate, in derogation of the au-
thority of Congress, and to encroach upon the reserved rights of
the States and the people.
The original Constitution does not mention education. Nei-
. ther does the 14th amendment nor any other amendment. The de-
bates preceding the submission of the 14th amendment clearly
show that there was no intent that it should affect the system of ed-
ucation maintained by the States.
The very Congress which proposed the amendment sub-
sequently provided for segregated schools in the District of Co-
lumbia.
When the amendment was adopted in 1868, there were 37
States of the Union. Every one of the 26 States that had any sub-
stantial racial differences among its people, either approved the op-
eration of segregated schools already in existence or subsequently
established such schools by action of the same law-making body
which considered the 14th amendment. ...
This interpretation [the doctrine of “separate but equal”], re-
stated time and again, became a part of the life of the people of
many of the States and confirmed their habits, customs, traditions,
and way of life. It is founded on elementary humanity and common
sense, for parents should not be deprived by Government of the
right to direct the lives and education of their own children.
Though there has been no constitutional amendment or act of
Congress changing this established legal principle almost a century

eee ee ee ee ITE
 I | The Impact of Supreme Court Decisions | 197
SSSI
old, the Supreme Court of the United States, with no legal basis for
such action, undertook to exercise their naked judicial power and
substituted their personal political and social ideas for the estab-
lished law of the land.
This unwarranted exercise of power by the Court, contrary to
the Constitution, is creating chaos and confusion in the States prin-
cipally affected. It is destroying the amicable relations between the
white and Negro races that have been created through 90 years of
patient effort by the good people of both races. It has planted ha-
tred and suspicion where there has been heretofore friendship and
understanding. $
Without regard to the consent of the governed, outside agita-
tors are threatening immediate and revolutionary changes in our
public-school system. If-done, this is certain to destroy the system of
public education in some of the States.
With the gravest concern for the explosive and dangerous con-
dition created by this decision and inflamed by outside meddlers:
We reaffirm our reliance on the Constitution as the fundamen-
tal law of the land.
We decry the Supreme Court’s encroachments on rights re-
served to the States and to the people, contrary to established law,
and to the Constitution.
We commend the motives of those States which have declared
the intention to resist forced integration by any lawful means.
We appeal to the States and people who are not directly af-
fected by these decisions to consider the constitutional principles
involved against the time when they too, on issues vital to them,
may be the victims of judicial encroachment.
Evén though we constitute a minority in the present Congress,
we have full faith that a majority of the American people believe in
the dual system of government which has enabled us to achieve our
greatness and will in time demand that the reserved rights of the
States and of the people be made secure against judicial usurpation.
We pledge ourselves to use all lawful means to bring about a
reversal of this decision which is contrary to the Constitution and
to prevent the use of force in its implementation.
In this trying period, as we all seek to right this wrong, we ap-
peal to our people not to be provoked by the agitators and trou-
blemakers invading our States and to scrupulously refrain from
disorder and lawless acts.

treme but illustrative of lower court defiance. There, a federal district

court judge in Alabama directly challenged the legitimacy of the Court
in its public school prayer rulings.A majority of the Court rebuffed the
_ lower court when it decided an appeal of the ruling and struck down
the “momicnt of silence” law in Wallace v.Jaffree, 472 U.S. 38 (1985) (see
Vola) Cho):
198 | Law AND POLITICS IN THE SUPREME COURT

On the other hand, lower federal courts may anticipate the Court’s
future rulings, based on recent changes in its direction, in what has
been termed “anticipatory compliance.” Brzonkala v. Virginia Polytechnic In-
stitute and State University, 169 E3d 820 (1999) (excerpted below) is il-
lustrative. There, based on the Court’s rulings on federalism (see Vol. 1,
Chs. 6 and 7) handed down after the passage of the Violence against
Women Act of 1994, the Court of Appeals for the Fourth Circuit
struck down provisions of that law. Subsequently, a bare majority of the
Court affirmed that decision and extended its previous rulings in
United States v. Morrison (2000) (excerpted in Vol. 1, Ch. 6).
In addition, as the Burger and Rehnquist Courts moved in more
conservative directions in areas of civil rights and liberties, state
supreme courts increasingly refused to follow the Court’s construction
of federal law and recognized new rights or extended protection on the
basis of state constitutions to claims that the Supreme Court has de-
clined to embrace (see Vol. 1, Ch. 7). State courts may do so if they base
their decisions on their state constitutions and make a “plain statement”
of “adequate and independent state grounds”; see Michigan v. Long, 463 U.S.
1036 (1983) (excerpted in Ch. 7). In Bowers v. Hardwick, 478 U.S. 186
(1986), for instance, a bare majority of the Court refused to extend the
constitutional right of privacy in a challenge to Georgia’s law punishing
sodomy. But in Commonwealth of Kentucky v. Wasson, 842 S.W.2d 487
(1992) (see excerpt below), Kentucky’s supreme court, as did other state
courts, expressly declined to follow Bowers when striking down its state
law against homosexual sodomy.
Major confrontations between Congress and the Court have oc-
curred a number of times. With the election of Thomas Jefferson in
1800, Republicans gained control of Congress. Defeated President
John Adams and the outgoing Federalists in Congress passed the Judi-
ciary Act of 1801, creating new circuit court judgeships and stipulating
that when the next vacancy on the Court occurred it should go un-
filled. That attempt to maintain influence in the judiciary was quickly
countered. In 1802, the Republican Congress repealed the Act of
1801, abolishing the judgeships and returning the number of justices
to six. Congress also postponed the Court’s next term to preclude it
from immediately hearing a challenge, in Stuart v, Laird, 5 U.S. 299
(1803), to its repealing legislation. When the Court decided Stuart, it
upheld Congress’; power to repeal the Judiciary Act of 1801. The
Jeffersonian-Republicans then impeached Justice Samuel Chase for
expounding federalist doctrine. Although the Senate acquitted him, it
would not confirm nominees for federal judgeships unless they were
Republicans.
The Marshall Court approved the expansion of national govern-
 I | The Impact of Supreme Court Decisions | 199

mental power, but in response Congress in the 1820s and 1830s threat-
ened to remove the Court’s jurisdiction over disputes involving states’
rights. After the Civil War, Congress succeeded in repealing the Court’s
jurisdiction over certain denials of writs of habeas corpus—orders com-
manding that a prisoner be brought before a judge and cause shown for
his imprisonment. In Ex parte McCardle, 74 U.S. 506 (1869), the Court
upheld the repeal of its jurisdiction and thus avoided deciding a
controversial case attacking the constitutionality of Reconstruction
legislation.
At the turn of the century, Progressives in Congress unsuccessfully
sought to pressure the Court—dominated at the time by advocates of
laissez-faire social and economic policy. They proposed requiring a
two-thirds vote by the justices when striking down federal statutes and
permitting Congress to overrule the Court’s decisions by a two-thirds
majority. The confrontation escalated with the Court’s invalidation of
President Franklin D. Roosevelt’s.early New Deal program passed by
Congress in the 1930s. FDR retaliated by attempting to pack the Court
by increasing the number of justices. Even though it was upset by the
~Court’s invalidation of the New Deal, Congress would not accept
FDR's Court-packing plan. It did, though, pass legislation allowing jus-
tices to retire, after ten years of service at age seventy, with full rather
than half salary. Congress thus made retirement more financially attrac-
tive and gave FDR opportunities to appoint justices who shared his po-
litical philosophy.
Congress may pressure the Court in a number of ways. The Senate
may try to influence judicial appointments, and justices may be im-
peached. More often, institutional and jurisdictional changes are used as
weapons against the Court. Congress has tried to pressure the Court
when setting its terms and size and when authorizing appropriations
for salaries, law clerks, secretaries, and office technology. Only once, in
1802 when repealing the Judiciary Act of 1801 and abolishing a session
for a year, did Congress actually set the Court’s term to delay and in-
fluence a particular decision.
The size of the Court is not preordained, and changes generally
reflect attempts to control the Court. The Jeffersonian-Republicans’
quick repeal of the act passed by the Federalists in 1801 reducing the
number of justices was the first of several attempts to influence the
Court. Presidents James Madison, James Monroe, and John Adams all
claimed that the country’s geographical expansion warranted enlarging
the size of the Court. But Congress refused to do so until the last day
of Andrew Jackson’s term in 1837. During the Civil War, the number
3 of justices increased to ten ostensibly due to the creation of a tenth
circuit in the West. This gave Abraham Lincoln his fourth appointment
200 | Law AND POLITICS IN THE SUPREME Court

and a chance to secure a pro-Union majority on the bench. Antago-

nism toward President Andrew Johnson’s Reconstruction policies fol-
lowing the Civil War led to a reduction from ten justices to seven.
After General Ulysses S. Grant was elected president, Congress again
authorized nine justices—the number that has prevailed. In the nine-
teenth century at least, Congress rather successfully denied presidents
additional appointments to preserve the Court’s policies and increased
the number of justices as a way to change the ideological composition
of the Court.
Although Article III of the Constitution forbids reducing justices’
salaries, Congress may withhold salary increases as punishment, espe-
cially in times of high inflation. More direct attacks are possible. Under
Article III, Congress is authorized “to make exceptions” to the appel-
late jurisdiction of the Court. That authorization has been viewed as a
way of denying the Court review of certain kinds of cases. Congress
succeeded with the 1868 repeal of jurisdiction over writs of habeas cor-
pus, which the Court upheld in Ex parte McCardle, 7 Wall. (74 U.S.) 506
(1869). More recently, in response to the rulings that “enemy combat-
ants” held in Guantanamo Bay, Cuba, had a right to file a writ of habeas
corpus and to trials by independent tribunals, in Rasul v. Bush, 542 US.
466 (2004) (excerpted in Vol. 1, Ch. 3) and Hamdi v. Rumsfeld, 542 U.S.
507 (2004) (excerpted in Vol. 1, Ch. 3), Congress enacted the Detainee
Treatment Act (DTA) of 2005 which, among other things, withdrew
jurisdiction over habeas writs filed by aliens detained outside of the
United States. However, in Hamdan v. Rumsfeld (2006) (excerpted in
Vol. 1, Ch. 3), without ruling on the constitutionality of that law, the
Court held that enemy detainees whose habeas applications were pend-
ing at the time of the enactment of the DTA could invoke the judi-
ciary’s jurisdiction and ruled that they must be tried by civilian courts,
courts martial, or military commissions as authorized by Congress. Sub-
sequently, Congress passed and President George W. Bush signed into
law the Military Commissions Act of 2006, which denies federal courts
jurisdiction over habeas applications filed by “unlawful enemy combat-
ants.” Democrats opposed that court-stripping jurisdiction and Senator
Arlen Spector (R-Pa), chair of the judiciary committee also deemed it
unconstitutional but nonetheless voted for the bill. The Bush adminis-
tration immediately moved to have some 500 habeas applications dis-
missed under the law, while its constitutionality was also challenged in
the courts.
Court-curbing legislation is not a very viable weapon. Rather
than limiting judicial review, Congress has given the Court the power
to set its own agenda and decide major issues of public law and pol-
icy—precisely the kinds of issues that Congress then seeks to deny. the
 I | The Impact of Supreme Court Decisions | 201
ne ere re ee ee
Court review. The Court has also suggested that it would not approve
repeals of its jurisdiction that are merely attempts to dictate how
particular kinds of cases should be decided.’ Most proposals to curb
the Court, of course, are simply that. During the McCarthy era, for
instance, Republican Senator William Jenner spearheaded a drive to
forbid review of cases challenging legislative committees investigating
un-American activities. Another unsuccessful attempt was made in
1968 to amend the Omnibus Crime Control and Safe Streets Act so as
to prevent the Court from reviewing state criminal cases raising Mi-
randa issues. ;
Congress has had somewhat greater success in reversing the Court
by constitutional amendment. Congress must pass a constitutional
amendment that three-fourths of the states must then ratify. The process
is cumbersome, and thousands of amendments to overrule the Court
have failed. But four decisions have been overturned by constitutional
amendment. Chisholm v. Georgia, 2 U.S. 419 (1793), holding that citizens
of one state could sue another state in federal courts, was reversed by
the Eleventh Amendment, guaranteeing sovereign immunity for states
from suits by citizens of another state. The Thirteenth and Fourteenth
Amendments, abolishing slavery and making blacks citizens of the
United States, technically overturned the ruling in Dred Scott v. Sanford
(1857) that blacks were not persons under the Constitution. With the
ratification in 1913 of the Sixteenth Amendment, Congress reversed
Pollock v. Farmers’ Loan and Trust Company, 157 U.S. 429 (1895), which
had invalidated a federal income tax. In 1970 an amendment to the Vot-
ing Rights Act of 1965 lowered the voting age to eighteen years for all
elections. Although signing the act into law, President Richard Nixon
had his attorney general challenge the validity of lowering the voting
age by simple legislation, rather than by constitutional amendment.
Within six months in Oregon v. Mitchell, 400 U.S. 112 (1970), a bare ma-
jority of the Court held that Congress exceeded its power by lower-
ing the voting age for state and local elections. Less than a year later
the Twenty-sixth Amendment was ratified extending the franchise to
eighteen-year-olds in all elections.
More successful than Court curbing and amending the Constitu-
tion are congressional enactments and rewriting of legislation in response
to the Court’s rulings. Congressional reversals usually relate to both
statutory and nonstatutory matters involving administrative policies.
| Congress cannot overturn the Court’s interpretations of the Con-
stitution by mere legislation, as the Court underscored in City of Boerne
_ v. Flores, 521 U.S. 507 (1997) (excerpted in Vol. 2, Ch. 6). But Congress
can enhanze or thwart compliance with the Court’s rulings. After the
Warren Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335
202 | Law AND PoriTICs IN THE SUPREME COURT

(1963) (see Vol. 2, Ch. 9), that indigents have a right to counsel, Con-
gress provided attorneys for indigents charged with federal offenses. By
contrast, in the Crime Control and Safe Streets Act of 1968, Congress
permitted federal courts to use evidence obtained from suspects who
had not been read their Miranda rights, if their testimony appeared vol-
untary based on the “totality of the circumstances” surrounding their
interrogation. Congress thus attempted to return to a pre-Miranda stan-
dard for federal agents’ questioning of criminal suspects. Democratic
and Republican administrations, however, declined to enforce that pro-
vision and instead complied with Miranda in federal prosecutions. Fi-
nally, in Dickerson v. United States, 530 U.S. 428 (2000) (excerpted in Vol.
2, Ch. 8), the Court rebuffed Congress’s attempt to make an end run
around Miranda and ruled that that decision applies to both federal and
state police questioning of suspects.
Congress indubitably has the power to delay and undercut im-
plementation of the Court’s rulings. On major issues of public policy
Congress is likely to prevail or, at least, temper the impact of the
Court’s rulings. But the Court forges public policy not only when in-
validating federal legislation. No less importantly, the Court makes pol-
icy by overturning state and local laws and practices. The continuing
controversies over decisions striking down state laws on school desegre-
gation, school prayer, and abortion are a measure of the Court’s influ-
ence on American life.
Charged with the responsibility of taking “care that the laws be
faithfully executed,” the president is the chief executive officer under
the Constitution. As the only nationally elected public official, the pres-
ident represents the views of the dominant national political coalition.
A president’s obligation to faithfully execute the laws, including deci-
sions of the Court, thus may collide with his own perceived electoral
mandate.
The Court has often been the focus of presidential campaigns and
power struggles. But presidents rarely openly defy particular decisions
by the Court. Presidential defiance is, perhaps, symbolized by the fa-
mous remark attributed to Andrew Jackson: “John Marshall has made
his decision, now let him enforce it.” Jackson’s refusal to enforce the de-
cision in Worcester v. Georgia, 31 U.S: 515 (1832), which denied state
courts jurisdiction over crimes committed on Indian lands, in fact sim-
ply left enforcement problems up to the courts and legislatures. During
the Civil War however, Lincoln ordered his military commanders to re-
fuse to obey writs of habeas corpus issued by Chief Justice Taney.
In major confrontations, presidents generally yield to the Court.
Richard Nixon complied with the ruling in New York Times Co. v.
 I | The Impact of Supreme Court Decisions | 203

United States, 403 U.S. 713 (1971) (see Vol. 1, Ch. 4), which struck
down, as a prior restraint on freedom of the press, an injunction against
the publication of the Pentagon Papers—a top secret report detailing
the history of America’s involvement in Vietnam. Then, during the Wa-
tergate scandal in 1974, Nixon submitted to the Court’s decision in
United States v. Nixon, 418 U.S. 683 (1974) (see Vol. 1, Ch. 4) ordering
the release of White House tape recordings pertinent to the trial of his
former attorney general John Mitchell and other presidential aides for
conspiracy and obstruction of justice.
Although seldom directly defying the Court, in the short and long
run presidents may undercut Supreme Court policymaking. By giving
contradictory directives to federal agencies and assigning low priority
for enforcement by the Department of Justice, presidents may limit the
Court’s decisions. Presidents may “also make broad moral appeals in re-
sponse to the Court’s rulings, and those appeals may transcend their
limited time in office. The Court put school desegregation and abor-
tion on the national agenda. But President John F Kennedy’s appeal for
civil rights captivated a generation and encouraged public acceptance
of the Court’s rulings. Similarly, President Ronald Reagan’s opposition
to abortion focused attention on “traditional family values” and served
to legitimate resistance to the Court’s decisions.
Presidential influence over the Court in the long run remains con-
tingent on appointments to the Court. Vacancies occur on the average
of one every twenty-two months. Four presidents—including Jimmy
Carter—had no opportunity to appoint members of the Court. There
is no guarantee howajustice will vote or whether that vote will prove
sufficient in limiting or reversing past rulings with which a president
disagrees. But through their appointments presidents may leave their
mark on Supreme Court policymaking and possibly align the Court
and the country or precipitate later confrontations.
For much of the Court’s history, the work of the justices has not
involved major issues of public policy. In most areas of public law and
policy, the fact that the Court decides an issue is more important than
what it decides. Relatively few of the major issues of public policy that
arise in government reach the Court. When the Court does decide ma-
jor questions of public policy, its rulings decide only the instant case
and not the larger surrounding political controversies. Major confronta-
tions in constitutional politics, like those over school desegregation and
abortion, are determined as much by what is possible in a system of free
government and pluralistic society as by what the Court says about the
_ meaning of the Constitution. And on those controversial issues of pub-
lic policy, constitutional law frames the political debate in the ongoing
204 | Law AND PoLiTICs IN THE SUPREME COURT

dialogue between the Court and the country. The Court’s rulings and
interpretation of the Constitution rest, in Chief Justice Edward White’s
words, “solely upon the approval of a free people.”

NOTES

1. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a Na-

tional Policy-Maker,” 6 Journal of Public Law 293 (1957).
2. See Richard Funston, “The Supreme Court and Critical Elections,’ 69 American
Political Science Review 795 (1975); Jonathan Casper, “The Supreme Court and
National Policymaking,’ 70 American Political Science Review 5066 (1976); William
Mishler and Reginald Sheehan, “The Supreme Court as a Countermajoritarian Insti-
tution?” 87 American Political Science Review 87 (1993); and Thomas Marshall, Public
Opinion and the Supreme Court (New York: Longman, 1989).
J. Tananhaus, and D. Kastner, Public Evaluations of
3. See, for example, Walter Murphy,
Constitutional Courts (Beverly Hills, CA: Sage, 1973).
4. Williams v. United States, 401 U.S. 675 (1971).
5. Fred Vinson, speech given before the American Bar Association, Sept. 7, 1949,
reprinted in 69 S.Ct. vi (1949).
6. Robert Jackson, The Struggle forJudicial Supremacy (New York: Knopf, 1951), 287.
7. United States v. Klein, 80 U.S. 128 (1872).
8. Edward White, “The Supreme Court of the United States,” 7 American Bar Associ-
ation Journal 341 (1921).

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Linkletter v. Walker
381 US. 618, 85 S.CT. 1731 (1965)

Victor Linkletter was tried and convicted in state court on evidence il-
legally obtained by police prior to Mapp v. Ohio, 367 U.S. 643 (1961)
(see Vol. 2, Ch. 7), which barred states from using illegally obtained ev-
idence at trial under the Fourth Amendment’s exclusionary rule. Link-
letter contended that Mapp should apply retroactively and he should be
retried with the illegally obtained evidence excluded. A federal district
court disagreed and after a court of appeals affirmed that ruling,
Linkletter appealed to the Supreme Court.
The Court’s decision was seven to two; with the majority’s opinion
"announced by Justice Clark. The dissent was by Justice Black, who was
joined by Justice Douglas.
206 | Law AND PotiTICs IN THE SUPREME COURT
Se
ee ee

(1 Justice CLARK delivers the opinion of the Court.

In Mapp v. Ohio, 367 U.S. 643 (1961), we held that the exclusion of ev-
idence seized in violation of the search and seizure provisions of the Fourth
Amendment was required of the States by the Due Process Clause of the
Fourteenth Amendment. In so doing we overruled Wolfv. People of State of
Colorado, 338 U.S. 25 (1949), to the extent that it failed to apply the exclu-
sionary rule to the States. This case presents the question of whether this re-
quirement operates retrospectively upon cases finally decided in the period
prior to Mapp. The Court of Appeals for the Fifth Circuit held that it did
not, and we granted certiorari in order to settle what has become a most
troublesome question in the administration of justice. We agree with the
Court of Appeals. . ..
At common law there was no authority for the proposition that judicial
decisions made law only for the future. Blackstone stated the rule that the
duty of the court was not to “pronounce a new law, but to maintain and ex-
pound the old one.” 1 Blackstone, Commentaries 69 (15th ed;.1809) sae.
In the case of the overruled decision, Wolfv. People of State of Colorado,
supra, here, it was thought to be only a failure at true discovery and was con-
sequently never the law; while the overruling one, Mapp, was not “new law
but an application of what is, and theretofore had been, the true law.”...
On the other hand, [the late-nineteenth century legal philosopher John]
Austin maintained that judges do in fact do something more than discover
law; they make it interstitially by filling in with judicial interpretation the
vague, indefinite, or generic statutory or common-law terms that alone are
but the empty crevices of the law. Implicit in such an approach is the admis-
sion when a case is overruled that the earlier decision was wrongly decided.
However, rather than being erased by the later overruling decision it is con-
sidered as an existing juridical fact until overruled, and intermediate cases fi-
nally decided under it are not to be disturbed.
The Blackstonian view ruled English jurisprudence and cast its shadow
over our own... . However, some legal philosophers continued to insist that
such a rule was out of tune with actuality largely because judicial repeal oft-
time did “work hardship to those who [had] trusted to its existence.” CAR-
DOZO, Address to the N.Y. Bar Assn. (1932). ...
It is true that heretofore, without discussion, we have applied new con-
stitutional rules to cases finalized before the promulgation of the rule. Peti-
tioner contends that our method of resolving those prior cases demonstrates
that an absolute rule of retroaction prevails in the area of constitutional adju-
dication. However, we believe that the Constitution neither prohibits nor
requires retrospective effect. As Justice CARDOZO said, “We think the Fed-
eral Constitution has no voice upon the subject.” ...
Once the premise is accepted that we are neither required to apply, nor
prohibited from applying, a decision retrospectively, we must then weigh the
merits and demerits in each case by looking to the prior history of the rule
in question, its purpose and effect, and whether retrospective operation will
further or retard its operation. We believe that this approach is particularly
correct with reference to the Fourth Amendment’s prohibitions as to un-
reasonable searches and seizures. Rather than “disparaging” the Amendment
we but apply the wisdom of Justice HOLMES that “[t]he life of the law has
not been logic: it has been experience.” Holmes, The Common Law 5 (Howe
60, 1963):
 I | The Impact of Supreme Court Decisions | 207

Since Weeks v, United States, 232 U.S. 383 (1914) this Court has adhered to
the rule that evidence seized by federal officers in violation of the Fourth
Amendment is not admissible at trial in a federal court. In 1949 in Wolfv, Peo-
ple of State of Colorado, supra, the Court decided that while the right to privacy—
“the core of the Fourth Amendment”—was such a basic right as to be implicit
in “the concept of ordered liberty” and thus enforceable against the States
through the Fourteenth Amendment, “the ways of enforcing such a basic right
raise questions of a different order. How such arbitrary conduct should be
checked, what remedies against it should be afforded, the means by which the
right should be made effective, are all questions that are not to be so dogmati-
cally answered as to preclude the varying solutions which spring from an allow-
able range of judgment on issues not susceptible of quantitative solution.”
Mapp was announced in 1961. The Court in considering “the current
validity of the factual grounds upon which Wolf was based” pointed out that
prior to Wolf “almost two-thirds of the States were opposed to the use of the
exclusionary rule, now, despite the-Wolf case, more than half of those since
passing upon it... have wholly or partly adopted or adhered to the Weeks
sales rAd “
We believe that the existence of the Wolf doctrine prior to Mapp is “an
operative fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration.” The thou-
sands of cases that were finally decided on Wéo/f cannot be obliterated. The
“particular conduct, private and official,’ must be considered. Here “prior
determinations deemed to have finality and acted upon accordingly” have
“become vested.” And finally, “public policy in the light of the nature both of
the [Wolf doctrine] and of its previous application” must be given its proper
weight. In short, we must look to the purpose of the Mapp rule; the reliance
placed upon the Wlf doctrine; and the effect on the administration of justice
of a retrospective application of Mapp.
It is clear that the Wolf Court, once it had found the Fourth Amend-
ment’s unreasonable Search and Seizure Clause applicable to the States
through the Due Process Clause of the Fourteenth Amendment, turned its
attention to whether the exclusionary rule was included within the com-
mand of the Fourth Amendment. This was decided in the negative. It is clear
that based upon the factual considerations heretofore discussed the Wolf
Court then concluded that it was not necessary to the enforcement of the
Fourth Amendment for the exclusionary rule to be extended to the States as
a requirement of due process. Mapp had as its prime purpose the enforce-
ment of the Fourth Amendment through the inclusion of the exclusionary
rule within its rights. This, it was found, was the only effective deterrent to
lawless police action. Indeed, all of the cases since Wolf requiring the exclu-
sion of illegal evidence have been based on the necessity for an effective de-
terrent to illegal police action. We cannot say that this purpose would be
advanced by making the rule retrospective. The misconduct of the police
prior to Mapp has already occurred and will not be corrected by releasing
the prisoners involved. Nor would it add harmony to the delicate state-
federal relationship of which we have spoken as part and parcel of the pur-
pose of Mapp. Finally, the ruptured privacy of the victims’ homes and effects
cannot be*restored. Reparation comes too late... .
Finally, there are interests in the administration of justice and the in-
tegrity of the judicial process to consider. To make the rule of Mapp retro-
spective would tax the administration of justice to the utmost. Hearings
208 | Law AND POLITICS IN THE SUPREME COURT
e
Neen eee ee EE
ee

would have to be held on the excludability of evidence long since destroyed,

misplaced or deteriorated. If it is excluded, the witnesses available at the time
of the original trial will not be available or if located their memory will be
dimmed. To thus legitimate such an extraordinary procedural weapon that
has no bearing on guilt would seriously disrupt the administration of jus-
cIGEE: .e
All that we decide today is that though the error complained of might
be fundamental it is not of the nature requiring us to overturn all final con-
victions based upon it. After full consideration of all the factors we are not
able to say that the Mapp rule requires retrospective application.
Affirmed.

(1 Justice BLACK, with whom Justice DOUGLAS joins, dissenting.

The Court offers no defense based on any known principle of justice

for discriminating among defendants who were similarly convicted by use of
evidence unconstitutionally seized. It certainly cannot do so as between Link-
letter and Miss Mapp. The crime with which she was charged took place
more than a year before his, yet the decision today seems to rest on the fan-
ciful concept that the Fourth Amendment protected her 1957 offense against
conviction by use of unconstitutional evidence but denied its protection to
Linkletter for his 1958 offense. In making this ruling the Court assumes for
itself the virtue of acting in harmony with a comment of Justice HOLMES
that “[t]he life of the law has not been logic: it has been experience.” Justice
HOLMES was not there talking about the Constitution; he was talking
about the evolving judge-made law of England, and of some of our States
whose judges are allowed to follow in the common law tradition. It should
be remembered in this connection that no member of this Court has ever
more seriously criticized it than did Justice HOLMES for reading its own
predilections into the “vague contours” of the Due Process Clause. But quite
apart from that, there is no experience of the past that justifies a new Court-
made rule to perpetrate a grossly invidious and unfair discrimination against
Linkletter simply because he happened to be prosecuted in a State that was
evidently well up with its criminal court docket. If this discrimination can be
excused at all it is not because of experience but because of logic—sterile
and formal at that—not, according to Justice HOLMES, the most depend-
able guide in law-making. ...
As the Court concedes, this is the first instance on record where this
Court, having jurisdiction, has ever refused to give a previously convicted
defendant the benefit of a new and more expansive Bill of Rights interpre-
tation. I am at a loss to understand why those who suffer from the use of
evidence secured bya search and seizure’in violation of the Fourth Amend-
ment should be treated differently from those who have been denied other
guarantees of the Bill of Rights. ...
 I | The Impact of Supreme Court Decisions | 209

Griffith v. Kentucky
479 USS. 314, 107 S.CT. 708 (1987)

Justice Blackmun’s opinion for the Court discusses the issues presented
here.
The Court’s decision was six to three, with the majority’s opinion
announced by Justice Blackmun. Justice Powell concurred. There were
dissents by Chief Justice Rehnquist-and Justice White, who were joined
by Justice O’Connor.

Cl Justice BLACKMUN delivers the opinion of the Court.

Twenty-one years ago, this Court adopted a three-pronged analysis for
claims of retroactivity of new constitutional rules of criminal procedure. See
Linkletter v. Walker, 381 U.S. 618 (1965). In Linkletter, the Court held that
Mapp v. Ohio [367 U.S. 643 (1961)], which extended the Fourth Amendment
exclusionary rule to the States, would not be applied retroactively to a state
conviction that had become final before Mapp was decided. The Court ex-
plained that “the Constitution neither prohibits nor requires retrospective ef-
fect” of a new constitutional rule, and that a determination of retroactivity
must depend on “weigh[ing] the merits and demerits in each case.’ The
Court’s decision not to apply Mapp retroactively was based on “the purpose
of the Mapp rule; the reliance placed upon the [previous] doctrine; and
the effect on the administration of justice of a retrospective application of
Mapp.” ...
Shortly after the decision in Linkletter, the Court held that the three-
pronged analysis applied both to convictions that were final and to convic-
tions pending on direct review... .
In United States v.Johnson, 457 U.S. 537 (1982), however, the Court
shifted course. In that case, we reviewed at some length the history of the
Court’s decisions in the area of retroactivity and concluded, in the words of
Justice HARLAN: “ ‘[RJetroactivity’ must be rethought.” Specifically, we
concluded that the retroactivity analysis for convictions that have become fi-
nal must be different from the analysis for convictions that are not final at the
time the new decision is issued... .The rationale for distinguishing between
cases that have become final and those that have not, and for applying new
rules retroactively to cases in the latter category, was explained at length by
Justice HARLAN in Desist v. United States, 394 US. [244 (1969)] (dissenting
opinion), and in Mackey v. United States, 401 U.S. 667 (1971) (opinion con-
curring in judgments). In United States v. Johnson, we embraced toa signifi-
cant extent the comprehensive analysis presented by Justice HARLAN in
those opinions.
In Justice HARLAN’s view, and now in ours, failure to apply a newly
_ declared constitutional rule to criminal cases pending on direct review vio-
lates basic uorms of constitutional adjudication. First, it is a settled principle
that this Court adjudicates only “cases” and “controversies.” See U.S. Const.,
210 | Law AND POLITICS IN THE SUPREME COURT

Art. III, Sec. 2. Unlike a legislature, we do not promulgate new rules of con-
stitutional criminal procedure on a broad basis. Rather, the nature of judicial
review requires that we adjudicate specific cases, and each case usually be-
comes the vehicle for announcement of a new rule. But after we have de-
cided a new rule in the case selected, the integrity of judicial review requires
that we apply that rule to all similar cases pending on direct review. . . .
As a practical matter, of course, we cannot hear each case pending on di-
rect review and apply the new rule. But we fulfill our judicial responsibility
by instructing the lower courts to apply the new rule retroactively to cases
not yet final....
Second, selective application of new rules violates the principle of treat-
ing similarly situated defendants the same. ...
In United States v. Johnson, our acceptance of Justice HARLAN’s views
led to the holding that “subject to, [certain exceptions], a decision of this
Court construing the Fourth Amendment is to be applied retroactively to all
convictions that were not yet final at the time the decision was rendered.”
The exceptions to which we referred related to three categories in which we
concluded that existing precedent established threshold tests for the retro-
activity analysis. In two of these categories, the new rule already was retro-
actively applied: (1) when a decision of this Court did nothing more than
apply settled precedent to different factual situations, and (2) when the new
ruling was that a trial court lacked authority to convict a criminal defendant
in the first place....
The third category—where a new rule is a “clear break” with past
precedent—is the one at issue in these cases. . . .
Under this exception, a new constitutional rule was not applied retro-
actively, even to cases on direct review, if the new rule explicitly overruled a
past precedent of this Court, or disapproved a practice this Court had ar-
guably sanctioned in prior cases, or overturned a long-standing practice that
lower courts had uniformly approved. .. .
For the same reasons that persuaded us in United States v. Johnson to
adopt different conclusions as to convictions on direct review from those
that already had become final, we conclude that an engrafted exception
based solely upon the particular characteristics of the new rule adopted by
the Court is inappropriate.
First, the principle that this Court does not disregard current law, when
it adjudicates a case pending before it on direct review, applies regardless of
the specific characteristics of the particular new rule announced. ...
Second, the use of a “‘clear break” exception creates the same problem of
not treating similarly situated defendants the same... .
We therefore hold that a new rule for the conduct of criminal prosecu-
tions is to be applied retroactively to all cases, state or federal, pending on di-
rect review or not yet final, with no exception for cases in which the new
rule constitutes a “clear break” with the past. ...
 I | The Impact of Supreme Court Decisions | 21x

Whorton v. Bockting
£278. CT.$1173: (2007)

The facts and the issue of application of the retroactivity doctrine are
discussed in Justice Alito’s unanimous opinion for the Court, reversing
the judgment of the Court of Appeals for the Ninth Circuit.

Justice ALITO delivered the opinion of the Court.

This case presents the question whether, under the rules set out in
Teague v. Lane, 489 U.S. 288 (1989), our decision in Crawford v. Washington,
541 USS. 36 (2004), is retroactive to cases already final on direct review. We
hold that it is not.
Respondent Marvin BORE lived in Las Vegas, Nevada, with his wife,
Laura Bockting, their 3-year-old daughter Honesty, and Laura’s 6-year-old
daughter from a previous relationship, Autumn. One night, while respondent
was at work, Autumn awoke from a dream crying, but she refused to tell her
mother what was wrong, explaining: “ ‘[D]addy said you would make him
leave and that he would beat my butt if I told you’ ” After her mother reas-
sured her, Autumn said that respondent had frequently forced her to engage
in numerous and varied sexual acts with him... .
[Subsequently, Bockting was charged and tried for sexual assault, but his
step-daughter did not testify, rather her mother and a police detective re-
counted her out-of-court statements]. The jury found respondent guilty of
three counts of sexual assault on a minor under the age of 14, and the trial
court imposed two consecutive life sentences and another concurrent life
sentence.
Respondent took an appeal to the Nevada Supreme Court, which
handed down its final decision in 1993, more than a decade before Crawford.
In analyzing respondent’s contention that the admission of Autumn’s out-of-
court statements had violated his Confrontation Clause rights, the Nevada
Supreme Court looked to Ohio v, Roberts, 448 U.S. 56 (1980), which was
then the governing precedent of this Court. Roberts had held that the Con-
frontation Clause permitted the admission of a hearsay statement made by a
declarant who was unavailable to testify if the statement bore sufficient indi-
cia of reliability, either because the statement fell within a firmly rooted
hearsay exception or because there were “particularized guarantees of trust-
worthiness” relating to the statement in question... .
Respondent then filed a petition for a writ of habeas corpus with the
United States District Court for the District of Nevada, arguing that the
Nevada Supreme Court’s decision violated his Confrontation Clause rights.
‘The District Court denied the petition [and Bockting] appealed to the
United States Court of Appeals for the Ninth Circuit.
While this appeal was pending, we issued our opinion in Crawford, in
which we overruled Roberts and held that “[t]estimonial statements of wit-
nesses absvat from trial” are admissible “only where the declarant is unavail-
able, and only where the defendant has had a prior opportunity to
212 | Law AND PoLiTICs IN THE SUPREME COURT

cross-examine [the witness].” We noted that the outcome in Roberts—as well

as the outcome in all similar cases decided by this Court—was consistent
with the rule announced in Crawford, but we concluded that the interpreta-
tion of the Confrontation Clause set out in Roberts was unsound in several
respects. First, we observed that Roberts potentially excluded too much testi-
mony because it imposed Confrontation Clause restrictions on nontestimo-
nial hearsay not governed by that Clause. At the same time, we noted, the
Roberts test was too “malleable” in permitting the admission of ex parte testi-
monial statements. .. .
In Teague and subsequent cases, we have laid out the framework to be
used in determining whether a rule announced in one of our opinions
should be applied retroactively to judgments in criminal cases that are al-
ready final on direct review. Under the Téague framework, an old rule applies
both on direct and collateral review, but a new rule is generally applicable
only to cases that are still on direct review. See Griffith v. Kentucky, 479 USS.
314 (1987).A new rule applies retroactively in a collateral proceeding only if
(1) the rule is substantive or (2) the rule is a “ ‘watershed rul[e] of criminal
procedure’ implicating the fundamental fairness and accuracy of the criminal
proceeding.”
In this case, it is undisputed that respondent’s conviction became final
on direct appeal well before Crawford was decided. We therefore turn to the
question whether Crawford applied an old rule or announced a new one. A
new tule is defined as “a rule that ... was not ‘dictated by precedent existing
at the time the defendant’s conviction became final? ”
Applying this definition, it is clear that Crawford announced a new rule.
The Crawford rule was not “dictated” by prior precedent. Quite the opposite
is true: The Crawford rule is flatly inconsistent with the prior governing
precedent, Roberts, which Crawford overruled. . . .
‘Because Crawford announced a “new rule” and because it is clear and
undisputed that the rule is procedural and not substantive, that rule cannot
be applied in this collateral attack on respondent’s conviction unless it is a
“ “watershed rulf[e] of criminal procedure’ implicating the fundamental fair-
ness and accuracy of the criminal proceeding.” This exception is “extremely
narrow,” Schriro v. Summerlin, 542 U.S. 348 (2004)... .
In order to qualify as watershed, a new rule must meet two require-
ments. First, the rule must be necessary to prevent “an ‘impermissibly large
risk’ ” of an inaccurate conviction. Second, the rule must “alter our under-
standing of the bedrock procedural elements essential to the fairness of a
proceeding.”
The Crawford rule does not satisfy the first requirement relating to an
impermissibly large risk of an inaccurate conviction.To be sure, the Crawford
rule reflects the Framers’ preferred mechanism (cross-examination) for en-
suring that inaccurate out-of-court testimonial statements are not used to
convict an accused. But in order for a new rule to meet the accuracy re-
quirement at issue here, “[i]t is ... not enough ... to say that [the] rule is
aimed at improving the accuracy of trial,” or that the rule “is directed toward
the enhancement of reliability and ac cea in some sense.” Instead, the
question is whether the new rule remedied “an ‘impermissibly large oe of
an inaccurate conviction.
Guidance in answering this question is provided by Gideon v. Wainwright,
 I | The Impact of Supreme Court Decisions | 213

372 U.S. 335 (1963), to which we have repeatedly referred in discussing the
meaning of the Teague exception at issue here. In Gideon, the only case that
we have identified as qualifying under this exception, the Court held that
counsel must be appointed for any indigent defendant charged with a felony.
When a defendant who wishes to be represented by counsel is denied repre-
sentation, Gideon held, the risk of an unreliable verdict is intolerably high.
The new rule announced in Gideon eliminated this risk.
The Crawford rule is in no way comparable to the Gideon rule. The
Crawford rule is much more limited in scope, and the relationship of that rule
to the accuracy of the fact finding process is far less direct and profound.
Crawford overruled Roberts because Roberts was inconsistent with the original
understanding of the meaning of the Confrontation Clause, not because the
Court reached the conclusion that the overall effect of the Crawford rule
would be to improve the accuracy of fact finding in criminal trials. . . .
The Crawford rule also did not “alter our understanding of the bedrock
procedural elements essential to the fairness of a proceeding.” . . . We have
frequently held that the Teague bar to retroactivity applies to new rules that
are based on “bedrock” constitutional rights. Similarly, “[t]hat a new proce-
dural rule is ‘fundamental’ in some abstract sense is not enough.”
Instead, in order to meet this requirement, a new rule must itself consti-
tute a previously unrecognized bedrock procedural element that is essential
to the fairness of a proceeding. In applying this requirement, we again have
looked to the example of Gideon, and “we have not hesitated to hold that less
sweeping and fundamental rules” do not qualify.
In this case, it is apparent that the rule announced in Crawford, while
certainly important, is not in the same category with Gideon. Gideon effected
a profound and “ ‘sweeping’ ” change. The Crawford rule simply lacks the
“primacy” and “centrality” of the Gideon rule, and does not qualify as a rule
that “alter[ed] our understanding of the bedrock procedural elements essen-
tial to the fairness of a proceeding.”
In sum, we hold that Crawford announced a “new rule” of criminal pro-
cedure and that this rule does not fall within the Teague exception for water-
shed rules. We therefore reverse the judgment of the Court of Appeals and
remand the case for further proceedings consistent with this opinion.

Jaffree v. Board of School Commissioners of

Mobile County
554 ESupp. 1104 (1983)

Ishmael Jaffree challenged the constitutionality of Alabama’s law au-

thorizing teachers to lead students in a moment of “silent meditation or
voluntary prayer” as a violation of the First Amendment guarantees for
religious t-eedom. Federal District Court Judge Brevard Hand rejected
Jaffree’s complaint in an opinion sharply critical of the Supreme Court’s
214 | Law AND POLITICS IN THE SUPREME COURT

rulings on the First Amendment establishment clause. His ruling was

subsequently appealed by Jaffree and overturned by a court of appeals.
Governor George Wallace then appealed that ruling to the Supreme
Court in Wallace v.Jaffree, 472 U.S. 38 (1985) (see Vol. 2, Ch. 6).

MEMORANDUM OPINION

Chief Judge BREVARD HAND.

The United States Supreme Court has previously addressed itself in
many cases to the practice of prayer and religious services in the public
schools. As courts are wont to say, this court does not write upon a clean slate
when it addresses the issue of school prayer.
Viewed historically, three decisions have lately provided general rules for
school prayer. In Engel v. Vitale, 370 U.S. 421 [(1962)], Abington v. Schempp,
374 US. 203 (1963), and Murray v. Curlett, 374 U.S. 203 (1963) the Supreme
Court established the basic considerations. As stated, the rule is that “[t]he
First Amendment has erected a wall between church and state. That wall
must be kept high and impregnable. We could not approve the slightest
breach.” Everson v. Board of Education, 330 U.S. 1 (1947).
The principles enunciated in Engel v. Vitale, Abington v. Schempp, and
Murray v. Curlett have been distilled to this: “To pass muster under the Estab-
lishment Clause, the governmental activity must, first, reflect a clearly secular
governmental purpose; second, have a primary effect that neither advances
nor inhibits religion; and third, avoid excessive government entanglement
with religion. Committee for Public Education & Religious Liberty v. Nyquist,
ATS ASA TSO TD/ 3).
‘In sum, under present rulings the use of officially-authorized prayers or
Bible readings for motivational purposes constitutes a direct violation of the
establishment clause. Through a series of decisions, the courts have held that
the establishment clause was designed to avoid any official sponsorship or ap-
proval of religious beliefs. Even though a practice may not be coercive, active
support of a particular belief raises the danger, under the rationale of the
Court, that state-approved religious views may be eventually established. .. .
In the face of this precedent the defendants argue that school prayers as
they are employed are constitutional. The historical argument which they
advance takes two tacks. First, the defendants urge that the first amendment
to the U.S. Constitution was intended only to prohibit the federal government
from establishing a national religion. Read in its proper historical context, the
defendants contend that the first amendment has no application to the states.
The intent of the drafters and adoptors of the first amendment was to pre-
vent the establishment of a national church or religion, and to prevent any
single religious sect or denomination from obtaining a preferred position un-
der the auspices of the federal government. ...
Second, the defendants argue that whatever prohibitions were initially
placed upon the federal government by the first amendment that those
prohibitions were not incorporated against the states when the fourteenth
amendment became law on July 19, 1868. The defendants have introduced
the Court to a mass of historical documentation which all point to the in-
 I | The Impact of Supreme Court Decisions | 215

tent of the Thirty-ninth Congress to narrowly restrict the scope of the four-
teenth amendment. In particular, these historical documents, according to
the defendants, clearly demonstrate that the first amendment was never in-
tended to be incorporated through the fourteenth amendment to apply
against the states. The Court [subsequently] examine[d] each historical argu-
ment in turn....
[The Court concluded that] the establishment clause, as ratified in 1791,
was intended only to prohibit the federal government from establishing a na-
tional religion. The function of the establishment clause was two-fold. First,
it guaranteed to each individual that Congress would not impose a national
religion. Second, the establishment clause guaranteed to each state that the
states were free to define the meaning of religious establishment under their
own constitutions and laws.
The historical record clearly establishes that when the fourteenth
amendment was ratified in 1868 that its ratification did not incorporate the
first amendment against the states. .-.
What is a court to do when faced with a direct challenge to settled
precedent? In most types of cases “it is more important that the applicable
rule of law be settled than that it be settled right.’ Burnet v. Coronado Oil &
Gas Co., 285 U.S. 393 (1932) (BRANDEIS, J., dissenting). This general rule
holds even where the court is persuaded that it has made a serious error of
interpretation in cases involving a statute. However, in cases involving the
federal constitution, where correction through legislative action is practically
impossible, a court should be willing to examine earlier precedent and to
overrule it if the court is persuaded that the earlier precedent was wrongly
decided. a.
“(T]he ultimate touchstone of constitutionality is the Constitution itself
and not what we have said about it.” Graves v. O’Keefe, 306 U.S. 466 (1939)
(FRANKFURTER, J., concurring). “By placing a premium on ‘recent cases’
rather than the language of the Constitution, the Court makes it dangerously
simple for future Courts using the technique of interpretation to operate as
a ‘continuing Constitutional Convention’ ” Coleman v. Alabama, 399 U.S. 1
(1970), (BURGER. Cy)... «
This Court’s review of the relevant legislative history surrounding the
adoption of both the first amendment and of the fourteenth amendment, to-
gether with the plain language of those amendments, leaves no doubt that
those amendments were not intended to forbid religious prayers in the
schools which the states and their political subdivisions mandate. ...
If the appellate courts disagree with this Court in its examination of his-
tory and conclusion of constitutional interpretation thereof, then this Court
will look again at the record in this case and reach conclusions which it is
not now forced to reach.
216 | Law AND POLITICS IN THE SUPREME COURT

Brzonkala v. Virginia Polytechnic Institute and State

University
169 E3D 820 (1999)

After holding extensive hearings on gender-motivated violence and

finding that such violence costs the national economy $3 billion annu-
ally, Congress enacted the Violence against Women Act of 1994, which
made violence against women a federal crime and, in Section 13981 of
the U.S. Code, created as a remedy a private cause of action for victims
to sue their attackers for damages. In 1994 Christy Brzonkala, a first-year
student at Virginia Polytechnic Institute and State University, was al-
legedly raped in her dormitory room by two football players, Antonio
Morrison and James Crawford. No criminal charges were filed against
the latter, but subsequently Brzonkala sued them for damages under the
Violence against Women Act. A federal district court, however, con-
cluded that the law was an unconstitutional intrusion on traditional state
concerns, and the Court of Appeals for the Fourth Circuit agreed, rely-
ing on rulings handed down after the law was passed, in United States v.
Lopez, 514 US. 549 (1995) (excerpted in Vol. 1, Ch. 6), and City of
Boerne v. Flores, 521 U.S. 507 (1997) (excerpted in Vol. 1, Ch. 6; and in
Vol. 2, Ch. 6). The federal government and Brzonkala appealed and 36
states joined a brief in support of the law. The Supreme Court granted
review and a bare majority affirmed the Fourth Circuit’s decision in
United States v. Morrison, 529 U.S. 598 (2000) (excerpted in Vol. 1, Ch. 6).
The Court of Appeals for the Fourth Circuit split seven to four and
Judge Michael Luttig delivered the opinion of the court; four judges
joined a dissenting opinion.

(1 Circuit Judge Michael Luttig delivered the opinion of the court.

Foundational principles of our constitutional government dictate reso-
lution of the matter before us. For we address here a congressional statute,
Subtitle C of the Violence against Women Act [of 1994], 42 ULS.C. Sec.
13981, that federally punishes noncommercial intrastate violence, but is de-
fended under Congress’ power “to regulate commerce .. . among the several
States,’ U.S. Const. Art. I, Sec. 8, cl. 3, and that punishes private conduct, but
is defended under Congress’ power “to enforce, by appropriate legislation”
the Fourteenth Amendment guarantee that “no State shall ... deny to any
person within its jurisdiction the equal protection of the laws.’ Such a
statute, we are constrained to conclude, simply cannot be reconciled with the
principles of limited federal government upon which this Nation is founded.
As even the United States and appellant Brzonkala appear resignedly ‘to rec-
ognize, the Supreme Court’s recent decisions in United States v, Lopez, 514
 I | The Impact of Supreme Court Decisions | 217

US. 549 (1995), and City of Boerne v. Flores, 521 U.S. 507 (1997), which
forcefully reaffirmed these most basic of constitutional principles, all but pre-
ordained as much. Enacted by the Congress assertedly in exercise of its pow-
ers both to regulate interstate commerce and to enforce the prohibitions of
the Fourteenth Amendment, section 13981 was initially defended by appel-
lants in the wake of United States v. Lopez primarily as a valid exercise, not of
Congress’ Commerce Clause power, but of Congress’ power under Section 5
to enforce the Fourteenth Amendment’ restrictions on the States—notwith-
standing the statute’s regulation of conduct purely private. Confronted by the
Supreme Court’s intervening decision in City of Boerne v. Flores during this
appeal, the appellants retreated to defend the statute primarily as an exercise,
not of Congress’ power under Section-5 of the Fourteenth Amendment, but
of its power under the Commerce Clause—notwithstanding the statute’s
regulation of conduct neither commercial nor interstate. And, finally, in the
end, appellants are forced by these two plainly controlling decisions to de-
fend the statute on little more tharf wistful assertions that United States v,
Lopez is an aberration of no significance and that the established precedents
upon which City of Boerne v. Flores rested—United States v. Harris, 106 USS.
629 (1883), and the Civil Rights Cases, 109 U.S. 3 (1883)—should be disre-
garded as insufficiently “modern” to define any longer the reach of Con-
gress’ power under the Fourteenth Amendment.
Appreciating the precariousness in which appellants find themselves by
virtue of the intervening decisions in Lopez and City of Boerne, but accepting
these recent and binding authorities as the considered judgments of a
Supreme Court that has incrementally, but jealously, enforced the structural
limits on congressional power that inhere in Our Federalism, see Printz v.
United States, 521 U.S. 898 (1997): City of Boerne v. Flores, 521 U.S. 507
(1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez;
New York v. United States, 505 U.S. 144 (1992), we hold today that section
13981 exceeds Congress’ power under both the Commerce Clause of Article
I, Section 8, and the Enforcement Clause of Section 5 of the Fourteenth
Amendment....
In United States v. Lopez, the Supreme Court held that Congress had ex-
ceeded its power to regulate interstate commerce in enacting the Gun-Free
School Zones Act of 1990 (“GFSZA”). In so holding, the Court held that,
although the Commerce Clause represents a broad grant of federal authority,
that authority is not plenary, but subject to outer limits. And although the
Court reaffirmed that congressional power under the Commerce Clause is
not limited solely to the regulation of interstate commerce per se, but ex-
tends to laws governing activities sufficiently related to interstate commerce
to render their regulation necessary and proper to the regulation of interstate
commerce, the Court also substantially clarified the scope and the limits of
Congress’ Article I, Section 8 power. Under the principles articulated by the
Court in Lopez, it is evident that Section 13981, like the Gun-Free School
Zones Act, does not regulate an activity sufficiently related to interstate com-
merce to fall even within the broad power of Congress under the Com-
merce Clause.
In demarcating the limits of congressional power to regulate activities
that do nov themselves constitute interstate commerce, the Court in Lopez
made clear that such power does not extend to the regulation of activities
218 | Law AND POLITICS IN THE SUPREME COURT

that merely have some relationship with or effect upon interstate commerce,
but, rather, extends only, as is relevant here, to those activities “having a sub-
stantial relation to interstate commerce, .. . i.e., those activities that substan-
tially affect interstate commerce.” Lopez.
Furthermore, the Court made explicit that whether an activity “substan-
tially affects” interstate commerce such that it may be regulated under the
Commerce Clause “is ultimately a judicial rather than a legislative question.”
Thus, the Court not only reaffirmed that the limits of the Commerce Clause
are judicially enforceable, it also made clear, as its analysis confirms, that the
“substantially affects” test does not contemplate a mere factual or empirical
inquiry, but must be understood, in the final analysis, as a legal test, and the
phrase “substantially affects interstate commerce” as one of legal art.
In clarifying the content of this legal test, the Court specifically identi-
fied two types of laws that it had upheld as regulations of activities that sub-
stantially affect interstate commerce: (1) “regulations of activities that arise
out of or are connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce,” Lopez, and (2) regula-
tions that include a jurisdictional element to ensure, “through case-by-case
inquiry,” that each specific application of the regulation involves activity that
in fact affects interstate commerce. ...
Most importantly, the Court expressly held that because the Gun-Free
School Zones Act “neither regulated a commercial activity nor contained a
requirement that the possession be connected in any way to interstate com-
merce,” [and] “it exceeded the authority of Congress ‘to regulate Commerce
mamong the‘several Statese see”
In contrast to the statutes that the Supreme Court has previously upheld
as permissible regulations under the substantially affects test, but analogously
to the Gun-Free School Zones Act, section 13981 neither regulates an eco-
nomic activity nor contains a jurisdictional element. Accordingly, it cannot
be sustained on the authority of Lopez, nor any of the Court’s previous
Commerce Clause holdings, as a constitutional exercise of Congress’ power
to regulate interstate commerce. ...
Not only is violent crime motivated by gender animus not itself even
arguably commercial or economic, it also lacks a meaningful connection
with any particular, identifiable economic enterprise or transaction.
[W]e can discern no such distinct nexus between violence motivated by
gender animus and interstate commerce. Indeed, to sustain section 13981 as
a constitutional exercise of the Commerce power, not only would we have
to hold that congressional power under the substantially affects test extends
to the regulation of noneconomic activities in the absence of jurisdictional
elements, but we would also have to conclude that violence motivated by
gender animus substantially affects interstate commerce by relying on argu-
ments that lack any principled limitations and would, if accepted, convert the
power to regulate interstate commerce into a general police power... .
As in Lopez, appellants rely in essence on the costs of violent crime (in-
cluding the deterrence of interstate travel and other similar interstate activi-
ties) and on decreased national productivity (including reduced employment,
production, and demand), both of which ultimately affect the national econ-
omy, and presumably interstate commerce as well. But as the arguments are
the same, so also does the Supreme Court’s categorical rejection in Lopez of
such attenuated links to interstate commerce again control. ...
 I | The Impact of Supreme Court Decisions | 219

To the extent that appellants even acknowledge the precedential force

of Lopez, they attempt to distinguish that decision primarily in two ways.
First, they argue that here, unlike in Lopez, the relationship between the
regulated activity and interstate commerce upon which they rely is not just
identified by them alone, but is also documented by congressional findings
to which we are obliged to defer. Second, they contend that section 13981
regulates conduct implicating civil rights, that civil rights is an area of man-
ifest federal concern; and that therefore the regulation of the conduct here,
despite its noneconomic character and its lack of a close connection to in-
terstate commerce, does not offend the first principles of federalism. Appel-
lants argue that these distinctions are sufficient grounds for upholding
the constitutionality of section 13981 under the Commerce Clause. We
disagree. ...
Here, as in Lopez, the power that Congress has asserted is essentially lim-
itless; the existence of findings or documentation, standing alone, does not
provide the type of meaningful liniitation on congressional power required
by a Constitution that withholds from Congress “a general police power of
the sort retained by the States.”

Commonwealth of Kentucky v. Jeffrey Wasson

SUPREME COURT OF KENTUCKY, 842 S.W. 2D 487 (1992)

Jeffrey Wasson was arrested in a public parking lot and charged with so-
liciting an undercover police officer to engage in “deviate sexual inter-
course.’ Under a Kentucky statute (KRS 510.100), “deviate sexual
intercourse with another person of the same sex” is a criminal offense;
the statute also provides that “consent of the other person shall not be a
defense.’ AtWasson’s trial, however, a district judge dismissed the charge
and held that the statute violated provisions in the Kentucky Constitu-
tion that guarantee a “right of privacy” and the equal protection of the
laws. A state appellate court affirmed and the Commonwealth of Ken-
tucky appealed that ruling to its supreme court.

Li Opinion of the Court by Justice LEIBSON

The Commonwealth maintains that the United States Supreme Court’s
decision in Bowers v. Hardwick, [478 U.S. 186 (1986)], is dispositive of the
right to privacy issue; that the “Kentucky Constitution did not intend to
confer any greater right to privacy than was afforded by the U.S. Constitu-
tion.” Turning to the equal protection argument raised bya statute which
criminalizes oral or anal intercourse between persons of the same sex, but
not between persons of different sexes, which was not addressed in the Bow-
ers case, the Commonwealth argues there is “‘a rational basis for making such
a distinction” ...The thrust of the argument advanced by the Common-
wealth as a rational basis for criminalizing consensual intercourse between
220 | Law AND POLITICS IN THE SUPREME COURT

persons of the same sex, when the same acts between persons of the opposite
sex are not punished, is that the level of moral indignation felt by the major-
ity of society against the sexual preference of homosexuals justifies hav-
ing their legislative representative criminalize these sexual activities. The
Commonwealth believes that homosexual intercourse is immoral, and that
what is beyond the pale of majoritarian morality is beyond the limits of con-
stitutional protection.
The grounds stated by the District Court for striking down the statute
as unconstitutional are: “KRS 510.100 clearly seeks to regulate the pro-
foundly private conduct and in so doing impermissibly invades the privacy
of the citizens of this state’... The Fayette Circuit Court “agreed with that
conclusion,” and further held the statute “‘unjustifiably discriminates, and
thus is unconstitutional under Sections 2 and 3 of our Kentucky Constitu-
tion.” These Sections are: ;

“Section 2. Absolute and arbitrary power over the lives, liberty and
property of freemen exists nowhere in a republic, not even in the
largest majority.
Section 3. All men, when they form a social compact, are equal... .”

These Sections [together with other provisions of the Kentucky Constitu-

tion] express the guarantee of equal treatment provided by the law in our Ken-
tucky Constitution. The lower courts’ judgments limit their finding of
unconstitutionality to state constitutional grounds. Bowers v. Hardwick speaks
neither to rights of privacy under the state constitution nor to equal protection
rights under either federal or state constitutions. Bowers addressed the constitu-
tionality of a Georgia statute prohibiting acts of consensual sodomy between
persons of the same sex or the opposite sex. Because the Georgia statute em-
braced both heterosexual and homosexual conduct, the Bowers opinion did not
involve the Equal Protection Clause of the Fourteenth Amendment.
For reasons that follow, we hold the guarantees of individual liberty pro-
vided in our 1891 Kentucky Constitution offer greater protection of the
right of privacy than provided by the Federal constitution as interpreted by
the United States Supreme Court, and that the statute in question is a viola-
tion of such rights; and, further, we hold that the statute in question violates
rights of equal protection as guaranteed by our Kentucky Constitution.

I. RIGHTS OF PRIVACY

No language specifying “rights of privacy,’ as such, appears in either the fed-

eral or State Constitution. The Commonwealth recognizes such rights exist,
but takes the position that, since they are implicit rather than explicit, our
Court should march in lock step with the United States Supreme Court in
declaring when such rights exist. Such is not the formulation of federalism.
On the contrary, under our system of dual sovereignty, it is our responsibility
to interpret and apply our state constitution independently. We are not
bound by decisions of the United States Supreme Court when deciding
whether a state statute impermissibly infringes upon individual rights guar-
anteed in the State Constitution so long as state constitutional protection
does not fall below the federal floor, meaning the minimum guarantee of in-
 I | The Impact of Supreme Court Decisions | 221

dividual rights under the United States Constitution as interpreted by the

United States Supreme Court. ...
Kentucky cases recognized a legally protected right of privacy based on
our own constitution and common law tradition long before the United
States Supreme Court first took notice of whether there were any rights of
privacy inherent in the Federal Bill of Rights. ...
[Moreover,] the United States Supreme Court is extremely reticent in
extending the reach of the Due Process Clauses in substantive matters [per-
taining to privacy]... . Bowers v. Hardwick decides that rights protected by the
Due Process Clauses in the Fifth and Fourteenth Amendments to the United
States Constitution do not “extend a fundamental right to homosexuals to
engage in acts of consensual sodomy.’-
Bowers decides nothing beyond this. But state constitutional juris-
prudence in this area is not limited by the constraints inherent in federal due
process analysis. Deviate sexual intercourse conducted in private by consent-
ing adults is not beyond the protections of the guarantees of individual lib-
erty in our Kentucky Constitution simply because “‘proscriptions against that
conduct have ancient roots.’ Kentucky constitutional guarantees against
government intrusion address substantive rights... . [T]he Kentucky Consti-
tution of 1891 ... amplifies [its guarantee of individual liberty] with a Bill of
Rights in 26 sections, the first of which states:

“Section 1. All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liber-
tHesuys:
Third: The right of seeking and pursuing their safety and happi-
ieee
Section 2. Absolute and arbitrary power over the lives, liberty and
property of freemen exists nowhere in a republic, not even in the
largest majority.” ...

_ The leading case on this subject is Commonwealth v. Campbell, [133 Ky.

50 (1909)]. At issue was an ordinance that criminalized possession of intoxi-
cating liquor, even for “private use.” Our Court held that the Bill of Rights
in the 1891 Constitution prohibited state action thus intruding upon the
“inalienable rights possessed by the citizens” of Kentucky. Our Court inter-
preted the Kentucky Bill of Rights as defining a right of privacy, even
though the constitution did not say so in that terminology. .. .
In the Campbell case our Court quoted at length from the “great work”
On Liberty of the nineteenth-century English philosopher and economist, John
Stuart Mill... . Mill’s premise is that “physical force in the form of legal penal-
ties.” i.e., criminal sanctions, should not be used as a means to improve the cit-
izen. The majority has no moral right to dictate how everyone else should live.
Public indignation, while given due weight, should be subject to the over-
riding test of rational and critical analysis, drawing the line at harmful conse-
_ quences to others. Modern legal philosophers who follow Mill temper this test
with an en:.ghtened paternalism, permitting the law to intervene to stop self-
inflicted harm such as the result of drug taking, or failure to use seat belts or
222 | Law AND PoLiTICs IN THE SUPREME COURT

crash helmets, not to enforce majoritarian or conventional morality, but be-

cause the victim of such self-inflicted harm becomes a burden on society.
Based on the Campbell opinion, and on the Comments of the 1891
Convention Delegates, there is little doubt but that the views of John Stuart
Mill, which were then held in high esteem, provided the philosophical
underpinnings for the reworking and broadening of protection of individual
rights that occurs throughout the 1891 constitution.
We have recognized protection of individual rights greater than the fed-
eral floor in a number of cases, most recently: Ingram v. Commonwealth, Ky.,
801 S.W.2d 321 (1900), involving protection against double jeopardy and
Dean v. Commonwealth, Ky., 777 S.W.2d 900 (1989), involving the right of
confrontation. Perhaps the most dramatic recent example of protection of in-
dividual rights under the state constitution where the United States Supreme
Court had refused to afford protection under the Federal Constitution is
Rose v. Council for Better Educ., Inc., Ky., 790 S.W.2d 186 (1989). In Rose, our
Court recognized our Kentucky Constitution afforded individual school
children from property poor districts a fundamental right to an adequate ed-
ucation such as provided in wealthier school districts, even though sixteen
years earlier the United States Supreme Court held the Federal Constitu-
tion provided no such protection in San Antonio Independent School District v,
Rodriguez, 411 ULS. 1 (1973)....
We view the United States Supreme Court decision in Bowers v. Hard-
wick as a misdirected application of the theory of original intent. To illustrate:
as a theory of majoritarian morality, miscegenation was an offense with an-
cient roots. It is highly unlikely that protecting the rights of persons of dif-
ferent races to copulate was one of the considerations behind the Fourteenth
Amendment. Nevertheless, in Loving v. Virginia, 388 U.S. 1 (1967), the United
States Supreme Court recognized that a contemporary, enlightened interpre-
tation of the liberty interest involved in the sexual act made its punishment
constitutionally impermissible.
According to Bowers v. Hardwick, “until 1961, all fifty States outlawed
sodomy, and today, twenty-five States and District of Columbia continue to
provide criminal penalties for sodomy performed in private and between
consenting adults.” In the space of three decades half the states decriminal-
ized this conduct. . . . Two states [New York and Pennsylvania] by court deci-
sions hold homosexual sodomy statutes of this nature unconstitutional for
reasons similar to those stated here. ... Thus our decision, rather than being
the leading edge of change, is but a part of the moving stream... .

Il. EQUAL PROTECTION

As stated earlier, in Bowers v. Hardwick, the Equal Protection Clause was not
implicated because the Georgia statute criminalized both heterosexual and
homosexual sodomy. Unlike the due Process Clause analysis provided in
Bowers v. Hardwick, equal protection analysis does not turn on whether the
law (KRS 510.100) transgresses “liberties that are ‘deeply rooted in this Na-
tion’s history and tradition’ ” Bowers v. Hardwick. .. .
Certainly, the practice of deviate sexual intercourse violates traditional
morality. But so does the same act between heterosexuals, which activity is
decriminalized. Going one step further, all sexual activity between consent-
 I | The Impact of Supreme Court Decisions | 223

ing adults outside of marriage violates our traditional morality. The issue here
is not whether sexual activity traditionally viewed as immoral can be pun-
ished by society, but whether it can be punished solely on the basis of sexual
preference, .....
We need not speculate as to whether male and/or female homosexuals
will be allowed status as a protected class if and when the United States
Supreme Court confronts this issue. They are a separate and identifiable class
for Kentucky constitutional law analysis because no class of persons can be
discriminated against under the Kentucky Constitution. All are entitled to
equal treatment, unless there is a substantial governmental interest, a rational
basis, for different treatment.
In the final analysis we can attribute no legislative purpose to this statute
except to single out homosexuals for different treatment for indulging their
sexual preference by engaging in the same activity heterosexuals are now at
liberty to perform. By 1974 ’there had already been a sea change in societal
values insofar as attaching criminal “penalties to extramarital sex. The ques-
tion is whether a society that no longer criminalizes adultery, fornication, or
deviate sexual intercourse between heterosexuals has a rational basis to single
out homosexual acts for different treatment. Is there a rational basis for de-
claring this one type of sexual immorality so destructive of family values as
to merit criminal punishment whereas other acts of sexual immorality which
were likewise forbidden by the same religious and traditional heritage of
Western civilization are now decriminalized? If there is a rational basis for
different treatment it has yet to be demonstrated in this case.
The purpose of the present statute is not to protect the marital relation-
ship against sexual activity outside of marriage, but only to punish one aspect
of it while other activities similarly destructive of the marital relationship, if
not more so, go unpunished. Sexual preference, and not the act committed,
determines criminality, and is being punished. Simply because the majority,
speaking through the General Assembly, finds one type of extramarital inter-
course more offensive than another, does not provide a rational basis for
criminalizing the sexual preference of homosexuals.
For the reasons stated, we affirm the decision of the Fayette Circuit
Court, and the judgment on appeal from the Fayette District Court.

1) Justices LAMBERT, WINTERSHEIMBER, and REYNOLDS

dissented.
224 | Law AND PoLiTICs IN THE SUPREME COURT

LL

= THe DEVELOPMENT OF LAW

Other Recent State Supreme Court Decisions

Declining to Follow the U.S. Supreme
Court’s Rulings

Bush v. Holmes, The Supreme Court of Florida declined

919 So.2d 392 (Fla. 2006) to follow the ruling in Zelman v. Simmons-
Harris, 536 U.S. 639 (2002) (excerpted in
Vol. 2, Ch. 6), upholding Ohio’s voucher system over (dis) establishment
clause objections. The court struck ‘down Florida’s voucher system based on
provisions in its state constitution for an equal and uniform public educa-
tional system.
People v. Rodriguez, The Supreme Court of Colorado declined
112 PB 3d 693 to follow Williams v. Florida, 399 U.S. 78
(Colo. 2005) (1970) (excerpted in Vol. 2, Ch. 9), which
held that the Sixth Amendment does not
require juries of twelve in state criminal cases. Instead, based on the state
constitution it held that twelve-person juries are required in felony, though
not misdemeanor, criminal cases.

Indiana v. Gerschoffer, The Indiana Supreme Court held that a

763 N.E.2d 960 sobriety checkpoint for drivers violated
(Ind., 2002) the state constitution. See also Brown v.
State, 653 N.E.2d 77 (Ind., 1995), holding
that a warrantless search of defendant’s car violated the state constitution.

Anchorage Police Department Declining to follow Vernonia School Dis-

Employees Association v. trict No. 47] v. Acton, 515 U.S. 646 (1995),
Municipality of Anchorage, the Alaska Supreme Court held that ran-
24 P3d 547 (Als., 2001) dom drug testing of police and fire fight-
ers violated the state constitution.
Shadler v. Florida, 761 The Florida Supreme Court declined to
So.2d 279 (Fla., 2000) follow Arizona v. Evans, 514 US. 1 (1995)
(excerpted in Vol. 2, Ch. 7), in holding on
state constitutional grounds that the “good-faith” exception to the exclu-
sionary rule does not apply to arrests based on mistaken highway safety com-
puterized records.
State v. Cline, 617 N.W.2d The Iowa Supreme Court declined to fol-
277 (Iowa, 2000) low Illinois v. Krull, 480 U.S. 340 (1987),
and United States v. Leon, 468 U.S. 897
(1984) (excerpted in Vol. 2, Ch. 7), in refusing to recognize a “good faith” ex-
ception to the exclusionary rule as a matter of state constitutional law. See
also Iowa v. Gillespie, 619 N.W.2d 345 (Iowa, 2000)
 I | The Impact of Supreme Court Decisions | 225

a
a

Commonwealth v. Gonsalves, The Supreme Judicial Court of Massa-

711 N.E.2d 108 chusetts extended more rights than the
(Mass. 1999) US. Supreme Court, in Pennsylvania v.
Mimms, 434 U.S. 106 (1977) and Maryland
v. Wilson, 519 U.S. 408 (1977), based on its state constitution.
The court held
that the Massachusetts constitution requires a police officer, during the
course of a routine traffic stop, to have a reasonable belief that the officer’s
safety is in danger before he can order the driver or passenger out of the
vehicle.

Powell v. State of Georgia, The Georgia Supreme Court struck down

510 S.E.2d 18 (1998) its state law criminalizing noncommer-
cial, consensual sodomy and expressly re-
jected the ruling in Bowers v. Hardwick, 478 U.S. 186 (1986), which had up-
held that state’s law. Other state courts have struck their state laws criminal-
izing sodomy. See also Kentucky v. Wasson, 842 S.W.2d 487 (Ky. 1992)
(excerpted in this chapter); Michigan Organization for Human Rights v. Kelley,
No. 88-815820 CZ (Mich. Cir. Ct., July 9, 1990); and State v. Cogshell, 997
S.W.2d 534 (Mo. App. W.D., July 6, 1999).

Commonwealth v. Labron, The Pennsylvania Supreme Court re-

690 Fa2D2 25 (1997) asserted, as a matter of state constitutional
law, its earlier holding that the auto-
mobile exception to search warrant requirements does not justify a police
search unless there exists probable cause for the search and a warrantless
search is justified by the “exigencies of the circumstances,” thereby declining
to follow the ruling in Pennsylvania v. Labron, 518 U.S. 938 (1996).

American Academy of By a vote of four to three, the Supreme

Pediatrics v. Lungren, Court of California refused to follow the
940 P.2d 797 (1997) U.S. Supreme Court’s rulings upholding
state restrictions on minors seeking abor-
tions by requiring them to obtain the permission of their parents or a judge.
Here, the court invalidated the parental consent and judicial-bypass require-
ment for infringing on minors’ right of privacy under the California Consti-
tution.

Gryczan v. Montana, Like the Supreme Court of Kentucky in

942 P2d 112 (1997) Commonwealth of Kentucky v. Wasson, 842
S.W. 2d (1992), the Montana Supreme
Court refused to follow the ruling in Bowers v. Hardwick, 478 U.S. 186 (1986)
(excerpted in Vol. 2, Ch. 11) and based on its state constitution struck down
its state law criminalizing sodomy. Besides those two, other state supreme
courts have likewise invalidated their laws against sodomy. See, e.g., Tennessee
"vy, Sundquist. 926 S.W.2d 250 (Tenn., 1996); People v. Onofre, 415 N.E.2d 936
(N.Y., 1980); and Commonwealth v. Bonadio, 415 A.2d 47 (Pa., 1980).

| ae
226 | Law AND PoLITICs IN THE SUPREME COURT
ee
ee

el

Smith v. Fair Employment Among other state supreme courts refus-

and Housing Commission, ing to follow the U.S. Supreme Court's
12 Cal. 4th 1143 (1996) ruling in Employment Division, Department
of Human Resources of Oregon v. Smith, 494
US. 872 (1990) (excerpted in Vol. 2, Ch. 6), the California Supreme Court
held that its state constitution “afford[s] the same protection for religious
exercise as the Federal Constitution [did] before [the U.S. Supreme Court’s
decision in] Employment Division v. Smith.’ State sapreme courts in Alaska,
Maine, Michigan, Minnesota, Ohio, New York, and Washington ruled like-
wise.
Sheff v. O’Neill, Departing from the U.S. Supreme Court’s
238 Conn. 1 (1996) holdings that only segregation brought
about by intentional state action violates
the Fourteenth Amendment, the Connecticut Supreme Court ruled that
its state constitution explicitly bars unintentional racial segregation and guar-
antees a right to free and equal public education. In doing so, the state
supreme Court found that de facto racial isolation and socioeconomic depri-
vation violated the right of equal opportunity to a free public education of
students in Hartford, Connecticut. Whereas children from minority groups
constitute 25 percent of the state’s public school population, 92 percent of
Hartford’s public school students come from minority groups. “Because of
the negative consequences of racial and ethnic isolation,” the Court held un-
constitutional a state law requiring that school districts coincide with munic-
ipal boundaries and ordered the state to integrate public schools across
district lines.
Commonwealth of Rejecting the reasoning and result in Cal-
Pennsylvania v. Matos, ifornia v. Hodari D., 499 U.S. 621 (1991)
672 A.2d 769 (1996) (see Vol. 2, Ch. 7), the Supreme Court of
Pennsylvania held that under its state con-
constitution, contraband discarded by a person fleeing a police officer was
the fruit of an illegal search, because the officer possessed neither probable
cause for an arrest nor a “reasonable suspicion” to stop the individual; and
thus the contraband must be excluded as evidence against the accused. In the
Court’s words, “we reject Hodari D. as incompatible with the privacy rights
guaranteed to the citizens of this Commonwealth under . . . the Pennsylvania
Constitution.” The Court noted as well that a number of other states had re-
jected the analysis in Hodari D.; those states include Connecticut, Hawaii,
New Jersey, New York, and Oregon.
Florida v. White, 660 Within months of the ruling in Arizona
So. 2d 664 (1995) v. Evans, 514 US. 1 (see Vol. 2, Ch. 7),
which extended the “good faith excep-
tion” to the Fourth Amendment’s exclusionary rule to police officers’ re-
liance on mistaken computerized records of an outstanding arrest warrant,
the Supreme Court of Florida decided otherwise in holding that the “failure
 I | The Impact of Supreme Court Decisions | 227

of the police to maintain up-to-date and accurate computer records results

in an illegal arrest and search” and that “evidence obtained as a result of the
illegal arrest is subject to the exclusionary rule” of the state constitution.
Women of Minnesota v. Gomez, In striking down its state’s restrictions on
542 N.W.2d 17 (1995) public funding for therapeutic abortions,
the Supreme Court of Minnesota ob-
served that “in reaching our decision, we have interpreted the Minnesota
Constitution to afford broader protection than the United States Constitu-
tion of a woman’s fundamental right to reach a private decision on whether
to obtain an abortion, and thus reject the United States Supreme Court’s
opinion on this issue in Harris v. McRae, 448 U.S. 297 (1980).” Appellate
courts in California, Connecticut, Massachusetts, Michigan, and New Jersey
have also struck down prohibitions on public funding for abortions not nec-
essary to save a pregnant woman’s life on the basis of their state constitutions.
Montana v. Bullock and ; The Supreme Court of Montana ruled
Peterson, 901 P.2d 61 (1995) that under the state constitution individ-
uals have “reasonable expectations of pri-
vacy” and standing to challenge the legality of a police search of property
that they do not own, and thus declined to follow the U.S. Supreme Court’s
rulings in Rakas v, Illinois, 439 U.S. 128 (1978). Other state supreme courts
have ruled likewise, including those in New Jersey, in State v. Alston, 440 A.2d
1311 (1981); in Arizona, in State v. White, 574 P.2d 840 (1978); and New
Hampshire, in State v. Alosa, 623 A.2d 218 (1993).
Torre Jenkins v. Chief Justice The Massachusetts Supreme Court re-
of the District Court Department, fused to follow the decision in County
416 Mass. 221 (1993) of Riverside v. McLaughlin, 500 U.S. 44
(1991) (see Vol. 2, Ch. 7), that following a
warrantless arrest individuals may be incarcerated for up to forty-eight hours
before being given a hearing to determine the probable cause for their arrest.
Rick Sitz v. Michigan The Supreme Court of Michigan refused
Department of State Police, to abide by the U.S. Supreme Court’s
443 Mich. 744 (1993) holding, in Michigan Department of State
Police v. Sitz, 496 US. 444 (1990), that
Michigan state police’s use of sobriety checkpoints did not violate the Fourth
Amendment. When that case was remanded back to the state appellate court,
the state supreme court held that the state’s policy of indiscriminate suspi-
cionless stopping of automobiles violates the state constitution’s prohibition
against unreasonable searches and seizures. The Supreme Court of Washing-
ton also held that police checkpoints violate the privacy rights guaranteed by
its state constitution, in City of Seattle v. Mesiani, 755 P.2d 775 (1988).
Derricott v. Maryland, In United States v. Sokolow, 490 U.S. 1
611 A.2d 592 (1992) (1989) (see Vol. 2, Ch. 7), the use of “drug
courier profiles” by law enforcement offi-
aa SSS SSS
228 | Law AND PoLiTICs IN THE SUPREME COURT

EEE EEE
cials was upheld over Fourth Amendment objections. But in Derricott the
Court of Appeals of Maryland held that stopping and searching a car solely
on the ground that the driver fit a “drug courier profile’ "—that is, was
young, black, driving a sports car, and had a beeper—wa s not permissible un-
der state constitutional law.
Gary v. Georgia, 422 S.E. 2d The Supreme Court of Georgia ruled
426 (1992) that provisions of the state constitution
precluded the adoption of a “good-faith”
exception to the exclusionary rule and declined to follow the rulings in
United States v. Leon, 468 U.S. 902 (1984), and Massachusetts v, Sheppard, 468
USS. 981 (1984) (see Vol. 2, Ch. 7). Other state supreme courts that have re-
fused to recognize a “good-faith exception” to the exclusionary rule as a
matter of state constitutional law are in Connecticut, in State v. Marsala, 579
A.2d 58 (1990); Massachusetts, in Commonwealth v. Upton, 476 N.E.2d 548
(1985); Michigan, in People v. Sundling, 395 N.W.2d 308 (1986); New Jersey,
in State v. Novembrino, 519 A.2d 820 (1987); New York, in People v. Bigelow,
488 N.E.2d 451 (1985); North Carolina, in State v. Carter, 370 S.E.2d 553
(1988); Pennsylvania, in Commonwealth v. Edmunds, 586 A.2d 887 (1991);
Texas, in Davis v. State, 831 S.W.2d 426 (1992); and Vermont, in State v. Oakes,
593 Av2d 11951991),
New Jersey v. Hemple and Declining to follow California v. Green-
Hemple, 576 A.2d 793 wood, 486 U.S. 35 (1988), which held that
(1990) under the Fourth Amendment individuals
do not have “reasonable expectations of
privacy” in the contents of garbage bags left for collection in public areas, the
Supreme Court of New Jersey ruled otherwise, observing that, “When
the United States Constitution affords our citizens less protection than does
the New Jersey Constitution, we have not merely the authority to give full
effect to the State protection, we have the duty to do so.” The supreme
courts of California and Hawaii have also ruled that their constitutions pro-
tect against warrantless searches of garbage in, respectively, People of California
v. Krivda, 504 P.2d 457 (1973), and State v. Tanaka, 701 P.2d 1274 (1985).
In re T.W.,, 551 So.2d 1186 In anticipation that the U.S. Supreme
(1989) Court might overrule Roe v. Wade, 410
US. 113 (197SI. Gee Vole nC Dest Linae
significantly cut back on its upholding a woman’s right to secure an abor-
tion, as occurred in Planned Parenthood ofSoutheastern Pennsylvania v. Casey, 505
US. 833 (1992) (see Vol. 2, Ch. 11), the Supreme Court of Florida interpreted
a 1980 state constitutional amendment, providing that “Every natural person
has the right to be let alone and free from government intrusion into his pri-
vate life except as otherwise provided herein,” to guarantee a woman the right
to have an abortion and observed that its ruling “is beyond the reach” of the
U.S. Supreme Court because the latter is “a bystander when it comes to inter-
preting state constitutions.” Other state supreme courts have likewise ruled that
 I | The Impact of Supreme Court Decisions | 229

Se
their state constitutions protect a woman’s right to abortion, including Cali-
fornia, in Committee to Defend Reproductive Rights v. Meyers, 625 P2d 779
(1981) (requiring state funding for abortions); Connecticut, in Doe v. Maher,
515 A.2d 134 (1986); Michigan, in Doe v. Director of Michigan Department of
Social Services, 468 N.W. 2d 862 (1991); Massachusetts, in Moe v. Secretary of
Administration, 417 N.E. 2d 387 (1981);Tennessee, in Davis v. Davis, 842 S.W.
588 (Tenn., 1992) (holding state constitution’s right of privacy covered the
choice not to procreate); and New Jersey, in Right to Choose v. Byrne, 450 A.
2d:9254(1982).

Edgewood Independent School In a Fourteenth Amendment Equal Pro-

District v. Kirby, 777 S.W.2d tection Clause challenge to disparities in
391 (1989) : Texas’s system of public school financing,
the U.S. Supreme Court held, in San An-
tonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), that public
education is not a “fundamental right” barring states from discriminatory
public school financing. In Edgewood Independent School District, however, the
Supreme Court of Texas ruled to the contrary, on the basis of its state con-
stitution. Other state supreme courts have refused to follow Rodriguez; they
include New Jersey [see Robinson v. Cahill, 303 A.2d 273 (NJ., 1973) to
Robinson VII, 360 A.2d 400 (N.J., 1976)], California [Serrano v. Priest, 557 P.2d
929 (Cal., 1976)], Washington [Seattle School Dist. No. 1 v. State, 585 P.2d 71
(Wash., 1978)], West Virginia [Pauley v. Kelly, 255 S.E.2d 859 (W. Va., 1979)],
and Wyoming [Washakie County School Dist. No. 1 v. Herschler, 606 P.2d 310
-(Wyo., 1980)].

Witters v. State of On remand, the Supreme Court of

Washington Commission Washington refused to follow the ruling
for the Blind, 771 P.2d in Witters v. Washington Dept. of Services
for 1119 (Wash., 1989) the Blind, 474 U.S. 481 (1981), holding
that a state scholarship given to a handi-
capped person who attended a religious college did not violate the First
Amendment’s disestablishment clause. It found that such financial assistance
violated its state constitution.

People v. PJ. Video, Inc., In New York v. PJ. Video, Inc., 475 U.S. 868
68 N.Y. 2d 296 (1986) (1986), the U.S. Supreme Court reversed
a ruling by the New York Court of Ap-
peals, which had held that a state judge erred when issuing a search warrant
for the seizure of allegedly obscene videos, which were subject to First
Amendment protection and thus required a higher standard of probable
cause than the usual “fair probability” that evidence of a crime would be
found. When that case was remanded back to the state appellate court, the
latter reaffirmed its earlier ruling on the basis of independent state grounds
‘and refused to apply the “total of the circumstances/fair probability” test
announced 1n Illinois v. Gates, 462 U.S. 213 (1983).
| ee ee eee SSS
230 | Law AND PoLiTICs IN THE SUPREME COURT
ee a
a
Montana v. Johnson, Departing from the ruling in Fare »v.
719 P.2d 1248 (1986) Michael C., 442 U.S. 707 (1979), to the
application and scope of the rights set
forth in Miranda v. Arizona, 384 U.S. 436 (1966) (see Vol. 2, Ch. 8), to a juve-
nile who asked to see his probation officer, the Supreme Court of Montana
held that the right to counsel is broader under its state constitutional law
than under federal constitutional law, observing that “we refuse to ‘march
lock-step’ with the United States Supreme Court where constitutional issues
are concerned, even if the applicable State Constitution provisions are iden-
tical or nearly identical to those of the United States Constitution.”

Montana v. Solis, Recognizing broader protection for in-

693 P.2d 518 (1984) terests in privacy and against unreasonable
searches and seizures, the Supreme Court
of Montana rejected the “assumption of risk” rule laid down in United States
v. White, 401 U.S. 745 (1971) (see Vol. 2, Ch. 7), with respect to recording of
conversations by undercover police, observing that “[t]his Court is not
bound by decisions of the United States Supreme Court where independent
grounds exist for reaching a contrary result,’ and noting that in State v Van
Hyem, 630 P.2d 202 (1981), it had ruled “that independent state grounds ex-
isted for this Court to extend greater privacy rights, and thereby greater
protection against unreasonable search and seizure, than would be afforded
under the Federal Constitution.”
South Dakota v. Neville, In South Dakota v, Neville, 459 U.S. 553
346 N.W.2d 425 (1984) (1983), the U.S. Supreme Court held that
the introduction as evidence of the de-
fendant’s refusal to take a blood-alcohol test after being stopped by police for
failing to stop at a stop sign did not violate the Fifth Amendment privilege
against self-incrimination. On remand, however, the Supreme Court of
South Dakota ruled on the basis of its state constitution the defendant’s re-
fusal to submit to the test was inadmissible as evidence against him.

Washington v. Chrisman, In Washington v. Chrisman, 455 USS. 1

676 P.2d 419 (1984) (1982), the U.S. Supreme Court reversed
and remanded the decision of the Wash-
ington state supreme court that a campus police officer’s warrantless entry and
search of a dormitory room of two university students violated the Fourth
Amendment, characterizing the decision as a “novel reading of the Fourth
Amendment.” On remand, the Supreme Court of Washington nonetheless
found the officer’s search to violate provisions of the state constitution.

People v. Long, 659 On remand, the Michigan state supreme

N.W. 2d 194 (1984) court reasserted on independent state
grounds its earlier ruling on the imper-
missibility of a police officer’s search of a driver after its previous decision was
reversed in Michigan v. Long, 463 U.S. 1032 (1983) (excerpted in Vol. 1, Ch. 7).
 I | The Impact of Supreme Court Decisions | 231
Ee
Right to Choose v. Byrne, After the ruling in Harris v. McRae, 448
450 A.2d 925 (N,J., 1982) US. 297 (1980) that a congressional pro-
hibition on the use of Medicaid funds for
abortions did not violate the Fourteenth Amendment’s equal protection
clause, the New Jersey Supreme Court held otherwise on the basis ofits state
constitution. State supreme courts in California, Connecticut, Massachusetts,
Michigan, and Oregon have likewise upheld the right ofindigent women to
state-funded abortions.

SR ESS SSIS
PRESIDENTIAL POWER,
THE RULE OF LAW,
AND FOREIGN AFFAIRS

rticle II of the Constitution establishes the basis for presidential

A power. It does so in both general and specific terms. “The execu-
tive Power shall be vested in a President” and “he shall take Care that
the Laws be faithfully executed” are broad authorizations. In contrast
with the lengthy enumeration of Congress’s specific powers in Article I,
those granted the president are few in number. The president is given,
for example, power to veto legislation, power to pardon individuals of
crimes, and power to act as commander in chief of the military. In ad-
dition, other powers—such as that of making treaties and appointing
federal judges and other governmental officers—are shared with the
Senate and their exercise subject to Senate approval.

A | Office and Powers:

The Tivo Presidencies

The powers exercised by the contemporary presidency would have sur-

prised those of the Founding generation. They expected, as James
Madison put it in Federalist, No. 51, that “in republican government, the
legislative authority necessarily predominates.” Alexander Hamilton,
however, prophetically championed the cause of a vigorous chief exec-
utive and maintained that the enumerated powers were not exhaustive

232
 A | Office and Powers: The Tivo Presidencies | 233

of the powers of the president. In Federalist, No. 70, he set forth the
principal arguments for a strong, independent president (see excerpt
below).
The basis for broad presidential power was laid by the Constitu-
tional Convention in 1787. Although many delegates distrusted execu-
tive power, there was agreement that the Articles of Confederation,
which failed to provide for a separate executive, had proven disastrous.
Accordingly, the executive power is lodged in a single individual,
elected for a four-year term and eligible for reelection. Notably, elec-
tion to the office is also based on the vote of the electoral college. That
resulted as a compromise between congressional selection and direct
popular election. And it reflects both a fear that Congress might over-
shadow the president as well as a distrust of direct democracy. Finally,
certain powers—such as that of “vetoing legislation—were granted to
further ensure presidential independence from Congress.
“[T]he history of the presidency is a history of aggrandizement, but
the story is a highly discontinuous one,” observed Edward S. Corwin.
“That is to say, what the presidency is at any particular moment de-
pends in important measure on who is the President.”' Undeniably,
presidential character and understanding of the powers of the Oval Of
fice are crucial. But presidential power has also grown enormously with
the emergence of the United States as a world power and is due to
the acquiescence of Congress, the courts, and the American people.
Moreover, the power vested in the executive branch now resides in
an institutionalized presidency, with more than two million employees,
thousands of whom wield significant power.
The growth of the institutional presidency makes questions about
the limitations imposed on the office of the president more pressing.
For in keeping faith with the theory of our written Constitution, “[a]ll
the officers of the Government, from the highest to the lowest, are
creatures of the law and are bound to obey it.’* However, in times of
emergency and national crisis, presidents have asserted unauthorized
power, even ignored constitutional constraints and suspended basic
rights.
A central issue in constitutional politics thus involves whether the
authority granted in Article I] exhausts the powers of the president. To
what extent does the president enjoy inherent power and extraordinary
powers in times of emergency?
One classic theory is that the president, like the old English
Crown, enjoys the sovereign’s “prerogative” of asserting, when neces-
sary, unauthorized power in pursuit of the public interest. Eighteenth-
century Fuglish philosopher John Locke, in his Tivo Treatises of
Government, described this prerogative as “the power to act according to
234 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

discretion for the public good, without the prescription of law and sometimes
even against it” (emphasis added). Periodically, throughout our history
presidents have made similar claims. President Thomas Jefferson did so
in 1803 when purchasing the Louisiana Territory, despite doubts about
the authority to acquire new lands.At the outset of the Civil War, Abra-
ham Lincoln took extraordinary measures—calling up state militias,
spending unappropriated funds, and blockading Southern ports—with-
out authorization. He later defended his actions as essential to preserv-
ing the Union:

I [understood] my oath to preserve the constitution to the best of

my ability, imposed upon me the duty of preserving, by every in-
dispensable means, that government—that nation—of which that
constitution was the organic law. Was it possible to lose the nation,
and yet preserve the constitution? . . . I felt that measures, otherwise
unconstitutional, might become lawful, by becoming indispensable
to the preservation of the constitution, through the preservation of
the nation.*

Franklin D. Roosevelt likewise claimed extensive powers during World

War II. And as we will see later in this chapter, Harry S. Truman
claimed the power to seize steel mills during the undeclared Korean
War and, in 1971, Richard M. Nixon sought to suppress publication of
the “Pentagon Papers,” a history of the U.S. involvement in the Vietnam
War.
_ During emergencies and national strife, Madison and Hamilton
agreed that the national government enjoys extraordinary power.
“Tt is in vain to oppose constitutional barriers to the impulse of self-
preservation,” Madison cautioned in Federalist, No. 41. Hamilton (Gn
Federalist, No. 23) was even more emphatic about the powers that could
be marshaled for national defense. They “ought to exist without limita-
tion,” he argued, “because it is impossible to forsee or to define the extent and
variety of the means which may be necessary to satisfy them. The circumstances
that endanger the safety of nations are infinite, and for this reason no constitu-
tional shackles can wisely be imposed on the power to which the care of it is
committed” (emphasis in original).
Still, how far presidents may go, without congressional authoriza-
tion, when responding to perceived threats to national security remains
a fundamental issue in constitutional politics. In Ex parte Milligan (1866)
(excerpted below), the Court rejected Lincoln’s suspension of the right
of habeas corpus and order for trials of civilians by military commissions,
with the poignant observation that “[t]he Constitution of the United
States is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times,
 A | Office and Powers: The Tivo Presidencies | 235

and under all circumstances.” However, in Korematsu v, United States

(1944) (excerpted below), the internment of Japanese-American citi-
zens during World War II was upheld under legislation that made it a
crime for persons of Japanese ancestry to be in “military zones” as des-
ignated by a commander under the secretary of war.
There are two rival theories of the nature and scope of the in-
herent presidential power; both are more restrictive than Locke’s theory
of the prerogative but also more generous than a rigid adherence to
constitutional theory. Theodore Roosevelt took the position that inher-
ent power extends to doing anything not expressly forbidden, so long
as it serves the public interest and does not conflict with existing legis-
lation. According to him,

The executive power was limitéd only by specific restrictions and

prohibitions appearing in the Constitution or imposed by the Con-
gress under its Constitutional powers. . . . I declined to adopt the
view that what was imperatively necessary for the Nation could not
be done by the President unless he could find some specific au-
thorization to do it. My belief was that it was not only his right but
his duty to do anything that the needs of the Nation demanded un-
less such action was forbidden by the Constitution or by the laws.*

By contrast, President (and later Chief Justice) William Howard

Taft contended that inherent powers are limited and must be traceable
to specific grants of power in the Constitution or legislation. In his
words,

The true view of the Executive function is, as I conceive it, that the
President can exercise no power which cannot be fairly and reason-
ably traced to some specific grant of power or justly implied and
included within such express grant as proper and necessary to its
exercise. Such specific grant must be either in the Federal Constitu-
tion or in an act of Congress passed in pursuance thereof. There is
no undefined residuum of power which he can exercise because it
seems to him to be in the public interest.’

In, addition, a distinction is usually drawn between the inherent

powers of the president in domestic and in foreign affairs. As political
scientist Aaron Wildavsky remarked, “The United States has one Presi-
dent, but it has two presidencies; one presidency is for domestic affairs,
and the other is concerned with defense and foreign policy.”® In the
domestic area, claims to inherent presidential power are usually limited
and sharply criticized, whereas Congress and the Court generally ac-
_knowledgé presidential dominance in foreign affairs. The scope of pres-
idential powers in this area, as Clinton Rossiter noted, has historically
236 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

Chief Justice William Howard Taft, the only president (1909-1913) also to serve on
the Supreme Court (1921-1930). (Library of Congress)

“been presidentially, not judicially, shaped; [the] exercise [of those pow-
ers] is for Congress and the people, not the Court, to oversee.”
This chapter examines the express and inherent powers of the pres-
ident in foreign affairs. It does so in terms of basic interpretive choices
that give rise to conflicts in constitutional politics. In addressing the
president’s powers as commander in chief and in foreign affairs, specific
attention is given to the treaty-making and war-making powers. Chap-
ter 4 examines the president’s powers in domestic affairs.

NOTES

1. E. Corwin, The President, 5th ed. (New York: New York University Press, 1984),
29-30.
2. United States v. Lee, 106 U.S. 196 (1882).
3. John Nicolay and John Hay, eds., The Complete Works of Abraham Lincoln, Vol. 10
(New York: Francis D. Tandy, 1894), 65-68.
4. T. Roosevelt, Autobiography (New York: Macmillan, 1931), 38.
5. W. Taft, Our Chief Magistrate and His Powers (New York: Columbia University,
1916), 139-140.
 A | Office and Powers: The Tivo Presidencies | 237

6. A. Wildavsky, “The Two Presidencies,” 4 Trans-Action 230 (Dec. 1969).

7. C. Rossiter, The Supreme Court and the Commander in Chief (Ithaca, NY: Cornell
University Press, 1976), 126.

SELECTED BIBLIOGRAPHY

Adler, David G., and George, Larry N., eds. The Constitution and the Conduct ofAmeri-
can Foreign Policy. Lawrence: University Press of Kansas, 1996.
Bessette, Joseph, and Tulis, Jeffrey. The Presidency in the Constitutional Order. Baton
Rouge: Louisiana University Press, 1981.
Casper, Gerhard. Separating Power: Essays onthe Founding Period. Cambridge, MA: Har-
vard University Press, 1997.
Crovitz, L. Godron, and Rabkin, Jeremy, eds. The Fettered Presidency. Washington, DC:
American Enterprise Institute, 1989.
Corwin, Edward. The President: Office and Powers, 5th rev. ed. New York: New York
University Press, 1984.
Henkin, Louis. Constitutionalism, Democracy, and Foreign Affairs. New York: Columbia
University Press, 1989.
Koh, Harold Hongju. The National Security Constitution. New Haven, CT: Yale Uni-
versity Press, 1990.
Powell, H. Jefferson. The President’s Authority over Foreign Affairs. Durham, NC: Car-
olina Academic Press, 2002.
Silverstein, Gordon. Imbalance of Powers: Constitutional Interpretation and the Making of
American Foreign Policy. New York: Oxford University Press, 1996.
Taft, William Howard, with foreword byH. Jefferson Powell. Our Chief Magistrate and
His Powers. Durham, NC: Carolina Academic Press, 2002.

™ CONSTITUTIONAL HISTORY
Alexander Hamilton, ‘The Federalist, No. 70

Energy in the executive is a leading character in the definition of good

government. It is essential to the protection of the community against for-
eign attacks; it is not less essential to the steady administration of the laws; to
the protection of property against those irregular and high-handed combi-
nations which sometimes interrupt the ordinary course of justice; to the se-
curity of liberty against the enterprises and assaults of ambition, of faction,
and of anarchy. Every man the least conversant in Roman history knows
how often that republic was obliged to take refuge in the absolute power of
a single man, under the formidable title of dictator, as well as against the in-
- trigues of ambitious individuals who aspired to the tyranny, and the seditions
of whole classes of the community whose conduct threatened the existence
a
238 PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS

eR
ofall government, as against the invasions of external enemies who menaced
the conquest and destruction of Rome... .
The ingredients which constitute energy in the executive are unity; du-
ration; an adequate provision for its support; and competent powers. ;
The ingredients which constitute safety in the republican sense are a
due dependence on the people, and a due responsibility.
Those politicians and statesmen who have been the most celebrated for
the soundness of their principles and for the justness of their views have de-
clared in favor of a single executive and a numerous legislature. They have,
with great propriety, considered energy as the most necessary qualification of
the former, and have regarded this as most applicable to power ina single
hand; while they have, with equal propriety, considered the latter as best
adapted to deliberation and wisdorn, and best calculated to conciliate the
confidence of the people and to secure their privileges and interests.
That unity is conducive to energy will not be disputed. Decision, activ-
ity, secrecy, and dispatch will generally characterize the proceedings of one
man in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be
diminished. . . . In the legislature, promptitude of decision is oftener an evil
than a benefit. The differences of opinion, and the jarring of parties in that
department of the government, though they may sometimes obstruct salu-
tary plans, yet often promote deliberation and circumspection, and serve to
check excesses in the majority. When a resolution too is once taken, the op-
position must be at an end. That resolution is a law, and resistance to it pun-
ishable. But no favorable circumstances palliate or atone for the disadvantages
of dissention in the executive department. Here they are pure and unmixed.
There is no point at which they cease to operate. They serve to embar-
rass and weaken the execution of the plan or measure to which they
relate, from the first step to the final conclusion of it. They constantly counter-
act those qualities in the executive which are the most necessary ingre-
dients in its composition—vigor and expedition, and this without any
counterbalancing good. In the conduct of war, in which the energy of the
executive is the bulwark of the national security, everything would be to be
apprehended from its plurality.

B | As Commander in Chief and

in Foreign Affairs

The president’s powers in foreign affairs flow from being commander

in chief of the military and from specific powers (shared with the Sen-
ate) to make treaties and appoint ambassadors. Numerous other powers
 B | As Commander in Chief and in Foreign Affairs | 239

have developed in practice, from appointing diplomatic corps and

negotiating with foreign governments, to using military forces to im-
plement foreign policy independent of congressional authorization.
Congressional legislation and treaties have also expanded presidential
power. And presidents may defend controversial actions as necessary
under their obligation to “take Care that the Laws be faithfully exe-
cuted.” In addition, as Justice Frankfurter once noted, “Past practice
does not, by itself, create power, but ‘long-continued practice, known to
and acquiesced in by Congress, would raise a presumption that the [ac-
tion] has been [taken] in pursuance_of its consent. ”
A principal justificatton—which has come to be known as the
“sole organ theory’”—for presidential independence in foreign affairs
was offered by John Marshall in the House of Representatives in 1799.
When defending President John Adams’s extradition of a fugitive under
the Jay Treaty, he proclaimed, “The President is the sole organ of the
nation in its external relations, and its sole representative with foreign
nations.” Although Marshall contended that the president was the sole
organ in communicating and negotiating with other countries, the the-
ory has been expanded to include unilateral military action as well.
Such a broad view of inherent powers runs back to Alexander Hamil-
ton, who warned in Federalist, No. 23, “The circumstances that endan-
ger the safety of nations is infinite, and for this reason no constitutional
shackles can wisely be imposed on the power to which the care of it is
committed.”
The Supreme Court in United States v. Curtiss-Wright Export Corpo-
ration (1936) (see excerpt below) wrote the sole organ theory into con-
stitutional law. In upholding a delegation of power by Congress to the
president that the Court would have invalidated had it been in the area
of domestic—rather than foreign—affairs, Justice Sutherland agreed
with Wildavsky that there are indeed two presidencies. And in the area
of foreign affairs the president enjoys a large reservoir of inherent
power. Notably, though, the opinion rests in part on a dubious reading
of history: Sutherland maintains that sovereignty—including control
over foreign affairs—passed directly from the English Crown to the na-
tional government, despite the fact that during the postindependence
period the original thirteen states each acted on their own in foreign
affairs and Article 2 of the Articles of Confederation recognized the
sovereignty of the states (see Ch. 7).
Curtiss-Wright also exemplifies the Court’s deference to the presi-
dent in foreign affairs in recognition of the fact that Congress, not the
_ judiciary, provides the most effective check. Congress is more effective
because it has the power of authorization and appropriation of funds
for the executive branch. Thus in Goldwater v. Carter, (1979) (see excerpt
240 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

in Ch. 2), the Court refused to consider the merits of a suit filed by
senators challenging President Jimmy Carter’s termination, without
congressional approval, of a Mutual Defense Treaty with Taiwan (an is-
land off the coast of the People’s Republic of China in which Chinese
nationalists and non-Communists established a government-in-exile af-
ter the Chinese Communist revolution). Other cases also demonstrate
the Court’s recurrent deference. Haig v. Agee, 453 U.S. 280 (1981), for
instance, held that “the President, acting through the Secretary of State,
has authority to revoke a passport on the ground that the holder’s ac-
tivities in foreign countries are causing or are likely to cause serious
damage to the national security or foreign policy of the United States.”
Subsequently, Regan v. Wald, 468, U.S. 222 (1984), upheld the Reagan
administration’s restrictions on travel to Cuba.
The Court’s deference to, and recognition of, congressional acqui-
escence in the assertion of broad presidential powers in foreign affairs is
further underscored by the ruling affirming President Carter’s financial
actions during the 1979 Iranian Hostage crisis, in Dames & Moore v. Re-
gan (1981) (see excerpt below).

SELECTED BIBLIOGRAPHY

Adler, David, and George, Larry, eds. The Constitution and the Conduct ofAmerican For-
eign Policy. Lawrence: University Press of Kansas, 1996.
Campbell, Colton, Rae, Nicol, and Stack, John, eds. Congress and the Politics of Foreign
Policy. Upper Saddle River, NJ: Prentice-Hall, 2003.
Franck, Thomas. Political Questions /Judicial Answers: Does the Rule of Law Apply to For-
eign Affairs? Princeton, NJ: Princeton University Press, 1992.
Howell, William G. Power without Persuasion. Princeton, NJ: Princeton University
Press, 2003.
Irons, Peter. Justice at War: The Story of the Japanese American Internment Cases. New
York: Oxford University Press, 1983.
. War Powers: How the Imperial Presidency Hijacked the Constitution. New York:
Metropolitan, 2005.
May, Christopher. In the Name of War: Judicial Review and the War Powers since 1918.
Cambridge, MA: Harvard University Press, 1989.
Rossiter, Clinton. The Supreme Court and the Commander in Chief, rev. ed. Ithaca, NY:
Cornell University Press 1976.
Wormuth, Francis, and Firmage, Edwin B. To Chain the Dog of War: The War Power of
Congress in History and Law, 2d ed. Urbana: University of Illinois Press, 1989.
 B | As Commander in Chief and in Foreign Affairs | 241

United States v. Curtiss-Wright Corporation

299 USS. 304, 57 S.CT. 216 (1936)

In 1934 Congress passed a joint resolution authorizing the president

to prohibit the sale of munitions to two South American nations—
Paraguay and Bolivia—who were embattled over the disputed land of
Chaco, for as long as he believed that such an embargo would con-
tribute to peace. President Roosevelt immediately issued a proclama-
tion ordering an embargo on arms sales to the countries. Subsequently,
the Curtiss-Wright Corporation was indicted for selling fifty machine
guns to Bolivia. In the district court, the corporation contended that
the president’s actions were illegal because Congress had unconstitu-
tionally delegated legislative powers to the executive. The district judge
agreed and the government appealed directly to the Supreme Court,
which reversed the lower court’s ruling.
The Court’s decision was seven to one; the opinion was announced
by Justice Sutherland, with Justice Stone not participating. Justice
McReynolds dissented.

0 Justice SUTHERLAND delivers the opinion of the Court.

First. It is contended that by the Joint Resolution the going into effect
and continued operation of the resolution was conditioned (a) upon the
President’s judgment as to its beneficial effect upon the reestablishment of
peace between the countries engaged in armed conflict in the Chaco;
(b) upon the making of a proclamation, which was left to his unfettered dis-
cretion, thus constituting an attempted substitution of the President’s will for
that of Congress; (c) upon the making of a proclamation putting an end to
the operation of the resolution, which again was left to the President's un-
fettered discretion; and (d) further, that the extent of its operation in particu-
lar cases was subject to limitation and exception by the President, controlled
by- no standard. In each of these particulars, appellees urge that Congress
abdicated its essential functions and delegated them to the Executive.
Whether, if the Joint Resolution had related solely to internal affairs, it
would be open to the challenge that it constituted an unlawful delegation of
legislative power to the Executive, we find it unnecessary to determine. The
whole aim of the resolution is to affect a situation entirely external to the
United States, and falling within the category of foreign affairs. The determi-
nation which we are called to make, therefore, is whether the Joint Resolu-
tion, as applied to that situation, is vulnerable to attack under the rule that
forbids a delegation of the lawmaking power. In other words, assuming (but
not deciding) that the challenged delegation, if it were confined to internal
- affairs, would be invalid, may it nevertheless be sustained on the ground that
its exclusive aim is to afford a remedy for a hurtful condition within foreign
territory?
242 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

It will contribute to the elucidation of the question if we first consider

the differences between the powers of the federal government in respect of
foreign or external affairs and those in respect of domestic or internal affairs.
That there are differences between them, and that these differences are fun-
damental, may not be doubted.
The two classes of powers are different, both in respect of their origin
and their nature. The broad statement that the federal government can exer-
cise no powers except those specifically enumerated in the Constitution, and
such implied powers as are necessary and proper to carry into effect the enu-
merated powers, is categorically true only in respect of our internal affairs. In
that field, the primary purpose of the Constitution was to carve from the
general mass of legislative powers then possessed by the states such portions as it
was thought desirable to vest in the federal government, leaving those not
included in the enumeration still in the states. That this doctrine applies only
to powers which the states had is self-evident. And since the states severally
never possessed international powers, such powers could not have been
carved from the mass of state powers but obviously were transmitted to the
United States from some other source. During the Colonial period, those
powers were possessed exclusively by and were entirely under the control of
the Crown. By the Declaration of Independence, “the Representatives of the
United States of America” declared the United (not the several) Colonies to
be free and independent states, and as such to have “full Power to levy War,
conclude Peace, contract Alliances, establish Commerce and to do all other
Acts and Things which Independent States may of right do.”
As a result of the separation from Great Britain by the colonies, acting
as a unit, the powers of external sovereignty passed from the Crown not to
the colonies severally, but to the colonies in their collective and corporate
capacity as the United States of America. Even before the Declaration, the
colonies were a unit in foreign affairs, acting through a common agency—
namely, the Continental Congress, composed of delegates from the thirteen
colonies. That agency exercised the powers of war and peace, raised an army,
created a navy, and finally adopted the Declaration of Independence. Rulers
come and go; governments end and forms of government change; but sover-
eignty survives. A political society cannot endure without a supreme will
somewhere. Sovereignty is never held in suspense. When, therefore, the ex-
ternal sovereignty of Great Britain in respect of the colonies ceased, it im-
mediately passed to the Union....
It results that the investment of the federal government with the powers
of external sovereignty did not depend upon the affirmative grants of the
Constitution. The powers to declare and wage war, to conclude peace, to
make treaties, to maintain diplomatic relations with other sovereignties, if
they had never been mentioned in the Constitution, would have vested in
the federal government as necessary concomitants of nationality. ...
Not only, as we have shown, is the federal power over external affairs in
origin and essential character different from that over internal affairs, but par-
ticipation in the exercise of the power is significantly limited. In this vast
external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a represen-
tative of the nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the Senate can-
 B | As Commander in Chief and in Foreign Affairs | 243

not intrude; and Congress itself is powerless to invade it. As Marshall said in
his great argument of March 7, 1800, in the House of Representatives, “The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations.” .. .
The marked difference between foreign affairs and domestic affairs in
this respect is recognized by both houses of Congress in the very form of
their requisitions for information from the executive departments. In the
case of every department except the Department of State, the resolution di-
rects the official to furnish the information. In the case of the State Depart-
ment, dealing with foreign affairs, the President is requested to furnish the
information “if not incompatible with the public interest.’ A statement that
to furnish the information is not compatible with the public interest rarely, if
ever, is questioned.
When the President is to be authorized by legislation to act in respect of
a matter intended to affect a’situation in foreign territory, the legislator prop-
erly bears in mind the important Consideration that the form of the Presi-
dent’s action—or, indeed, whether he shall act at all—may well depend,
among other things, upon the nature of the confidential information which
he has or may thereafter receive, or upon the effect which his action may
have upon our foreign relations. This consideration, in connection with what
we have already said on the subject discloses the unwisdom of requiring
Congress in this field of governmental power to lay down narrowly definite
standards by which the President is to be governed. . . . It is enough to sum-
marize by saying that, both upon principle and in accordance with prece-
dent, we conclude there is sufficient warrant for the broad discretion vested
in the President to determine whether the enforcement of the statute will
have a beneficial effect upon the re-establishment of peace in the affected
countries; whether he shall make proclamation to bring the resolution into
operation; whether and when the resolution shall cease to operate and to
make proclamation accordingly; and to prescribe limitations and exceptions
to which the enforcement of the resolution shall be subject. ...
The judgment of the court below must be reversed and the cause re-
manded for further proceedings in accordance with the foregoing opinion.
It is so-ordered.

1 Justice MCREYNOLDS does not agree. He is of opinion that the court

below reached the right conclusion and its judgment ought to be affirmed.

Dames & Moore v. Regan

453 U.S. 654, 101 S.CT. 2972 (1981)

After the seizure of the U.S. embassy in Tehran, Iran, in November

1979 and the taking of diplomatic personnel as hostages, President
Carter invoked the International Emergency Economic Powers Act
(IEEPA) and ordered a freeze on Iranian assets within the United
244 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

States. On January 20, 1981, the hostages were released by Iran on the
basis of an agreement that the government would “terminate all legal
proceedings in the United States courts involving claims of United
States persons and institutions against Iran and its state enterprises, to
nullify all attachments and judgments obtained therein, [and] to pro-
hibit future litigation based on these claims.” Various executive orders
implementing the agreement issued by Carter were subsequently
reaffirmed by the Reagan administration. Dames & Moore sought
to regain over $3 million owed to it under a contract for services
performed for the Iranian government. In the trial court, the com-
pany claimed that the executive orders went beyond the president’s
statutory and constitutional powers. After the district court held against
Dames & Moore, the company appealed to the Supreme Court, which
granted certiorari on an expedited basis and upheld the actions of the
president.
The Court’s decision was eight to one; the opinion was announced
by Justice Rehnquist. Justice Stevens concurred. A separate opinion, in
part dissenting and concurring, was delivered by Justice Powell.

“| Justice REHNQUIST delivers the opinion of the Court.

The questions presented by this case touch fundamentally upon the
manner in which our Republic is to be governed. Throughout the nearly
two centuries of our Nation’s existence under the Constitution, this subject
has generated considerable debate. We have had the benefit of commentators
such as John Jay, Alexander Hamilton, and James Madison writing in The
Federalist Papers at the Nation’s very inception, the benefit of astute foreign
observers of our system such as Alexis de Tocqueville and James Bryce writ-
ing during the first century of the Nation’s existence, and the benefit of
many other treatises as well as more than 400 volumes of reports of decisions
of this Court. As these writings reveal it is doubtless both futile and perhaps
dangerous to find any epigrammatical explanation of how this country has
been governed. ...
Our decision today will not dramatically alter this situation, for the
Framers “did not make the judiciary the overseer of our government.” We
are confined to a resolution of the dispute presented to us. That dispute in-
volves various Executive Orders and regulations by which the President nul-
lified attachments and liens on Iranian assets in the United States, directed
that these assets be transferred to Iran, and suspended claims against Iran that
may be presented to an International Claims Tribunal. This action was taken
in an effort to comply with an Executive Agreement between the United
States and Iran....
[T]he decisions of the Court in this area have been rare, episodic, and af-
ford little precedential value for subsequent cases. The tensions present in any
exercise of executive power under the tripartite system of Federal Govern-
ment established by the Constitution have been rejected in opinions by
 B | As Commander in Chief and in Foreign Affairs | 245

Members of this Court more than once. . . . Justice JACKSON in his con-
curring opinion in Youngstown [Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952)], which both parties agree brings together as much combination of
analysis and common sense as there is in this area, focused not on the “ple-
nary and exclusive power of the President” but rather responded to a claim
of virtually unlimited powers for the Executive by noting:

“The example of such unlimited executive power that must have

most impressed the forefathers was the prerogative exercised by
George III, and the description of its evils in the Declaration of In-
dependence leads me to doubt that they were creating their new
Executive in his image.” ... ,

As we now turn to the factual and legal issues in this case, we freely con-
fess that we are obviously deciding only one more episode in the never-
ending tension between the President exercising the executive authority in a
world that presents each day some new challenge with which he must deal
and the Constitution under which we all live and which no one disputes
embodies some sort of system of checks and balances.

=|
On November 4, 1979, the American Embassy in Tehran was seized and our
diplomatic personnel were captured and held hostage. In response to that crisis,
President Carter, acting pursuant to the International Emergency Economic
Powers Act (hereinafter “TEEPA”), declared a national emergency on November
14, 1979, and blocked the removal or transfer of “all property and interests in
property of the Government of Iran, its instrumentalities and controlled entities
and the Central Bank of Iran which are or become subject to the jurisdiction of
the United States”... On November 15, 1979, the Treasury Department’s Of-
fice of Foreign Assets Control issued a regulation providing that “[uJnless licensed
or authorized .. . any attachment, judgment, decree, lien, execution, garnishment,
or other judicial process is null and void with respect to any property in which
on or since [November 14, 1979] there existed an interest of Iran.” .. .
On December 19, 1979, petitioner Dames & Moore filed suit in the
United States District Court for the Central District of California against the
Government of Iran, the Atomic Energy Organization of Iran, and a number
of Iranian banks. In its complaint, petitioner alleged that its wholly owned
subsidiary, Dames & Moore International, S. R. L., was a party to a written
contract with the Atomic Energy Organization, and that the subsidiary’s en-
tire interest in the contract had been assigned to petitioner. . . . Petitioner
contended . .. that it was owed $3,436,694.30 plus interest for services per-
formed under the contract prior to the date of termination. The District
Court issued orders of attachment directed against property of defendants,
and the property of certain Iranian banks was then attached to secure any
judgment that might be entered against them.
On January 20, 1981, the Americans held hostage were released by Iran
pursuant to an,Agreement entered into the day before. . . . The Agreement
stated that “‘it is the purpose of [the United States and Iran] . . . to terminate
246 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

all litigation as between the Government of each party and the nationals of
the other, and to bring about the settlement and termination of all such
claims through binding arbitration.” In furtherance of this goal, the Agree-
ment called for the establishment of an Iran-United States Claims Tribunal
which would arbitrate any claims not settled within 6 months. Awards of the
Claims Tribunal are to be “final and binding” and “enforceable . . . in the
courts of any nation in accordance with its law.’ ... Under the Agreement,
the United States is obligated:

“to terminate all legal proceedings in United States courts involving

claims of United States persons and institutions against Iran and its
state enterprises, to nullify all attachments and judgments obtained
therein, to prohibit all further litigation based on such claims, and to
bring about the termination of such claims through binding arbi-
tatiOM.as
In addition, the United States must “act to bring about the transfer” by
July 19, 1981, of all Iranian assets held in this country by American banks.
One billion dollars of these assets will be deposited in a security account in
the Bank of England, to the account of the Algerian Central Bank, and used
to satisfy awards rendered against Iran by the Claims Tribunal. .. .
On January 19, 1981, President Carter issued a series of Executive Or-
ders implementing the terms of the Agreement. . ..
On February 24, 1981, President Reagan issued an Executive Order in
which he “ratified” the January 19th Executive Orders. Moreover, he “sus-
pended” all “claims which may be presented to the . . . Tribunal” and pro-
vided that such claims “shall have no legal effect in any action now pending
in any court of the United States.” The suspension of any particular claim
terminates if the Claims Tribunal determines that it has no jurisdiction over
that claim; claims are discharged for all purposes when the Claims Tribunal
either awards some recovery and that amount is paid, or determines that no
recovery is due....
The parties and the lower courts confronted with the instant questions
have all agreed that much relevant analysis is contained in Youngstown Sheet &
Tube Co. v. Sawyer (1952). Justice BLACK’s opinion for the Court in that case,
recognized that “[t]he President’s power, if any, to issue the order must stem
either from an act of Congress or from the Constitution itself?’ Jus-
tice JACKSON’ concurring opinion elaborated in a general way the con-
sequences of different types of interaction between the two democratic
branches in assessing presidential authority to act in any given case. When the
President acts pursuant to an express or implied authorization from Congress,
he exercises not only his powers but also those delegated by Congress. In such
a case the executive action “would be supported by the strongest of presump-
tions and the widest latitude of judicial interpretation, and the burden of per-
suasion would rest heavily upon any who might attack it’? When the
President acts in the absence of congressional authorization he may enter “‘a
zone of twilight in which he and Congress may have concurrent authority, or
in which its distribution is uncertain.” In such a case the analysis becomes
more complicated, and the validity of the President’s action, at least so far as
separation of powers principles are concerned, hinges on a consideration of all
 B | As Commander in Chief and in Foreign Affairs | 247

the circumstances which might shed light on the views of the Legislative
Branch toward such action, including “congressional inertia, indifference or
quiescence.” Finally, when the President acts in contravention of the will of
Congress, “his power is at its lowest ebb,’ and the Court can sustain his actions
“only by disabling the Congress from acting upon the subject.” ...
Although we have in the past and do today find Justice JACKSON’s
classification of executive actions into three general categories analytically
useful . . . Justice JACKSON himself recognized that his three categories rep-
resented “‘a somewhat over-simplified grouping,” and it is doubtless the case
that executive action in any particular instance falls, not neatly in one of
three pigeon-holes, but rather at some point along a spectrum running from
explicit congressional authorization to explicit congressional prohibition.
This is particularly true as respects cases such as the one before us, involving
responses to international crises the nature of which Congress can hardly
have been expected to anticipate in any detail....
The Government . .. has principally relied on Sec. 1702 of IEEPA as au-
thorization for these actions. [It] provides in part:

“At the times and to the extent specified in section 1701 of this ti-
tle, the President may, . . . nullify, void, prevent or prohibit, any
acquisition, holding, withholding, use, transfer, withdrawal, trans-
portation, importation or exportation of, or dealing in, or exercising
any right, power or privilege with respect to, or transactions involv-
ing, any property in which any foreign country or a national
thereof has any interest; by any person, or with respect to any prop-
erty, subject to the jurisdiction of the United States.”

The Government contends that the acts of “nullifying” the attachments

and ordering the “transfer” of the frozen assets are specifically authorized by
the plain language of the above statute. ...
Petitioner contends that we should ignore the plain language of this
statute because an examination of its legislative history as well as the history
of Sec. 5(b) of the Trading With the Enemy Act (hereinafter “TWEA”),
50 USS.C. App. Sec. 5(b), from which the pertinent language of Sec. 1702 is
directly drawn, reveals that the statute was not intended to give the President
such extensive power over the assets of a foreign state during times of na-
tional emergency. .. .
We do not agree and refuse to read out of Sec. 1702 all meaning to the
words “transfer,” “compel,” or “nullify.” Nothing in the legislative history of
either Sec. 1702 or Sec. 5(b) of the TWEA requires such a result.To the con-
trary, we think both the legislative history and cases interpreting the TWEA
fully sustain the broad authority of the Executive when acting under this
congressional grant of power. ...
Because the President’s action in nullifying the attachments and order-
ing the transfer of the assets was taken pursuant to specific congressional au-
thorization, it is “supported by the strongest of presumptions and the widest
latitude of judicial interpretation, and the burden of persuasion would rest
heavily upon any who might attack it’’ Youngstown (JACKSON, J., concur-
ring). Under the circumstances of this case, we cannot say that petitioner has
248 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

sustained that heavy burden.A contrary ruling would mean that the Federal
Government as a whole lacked the power exercised by the President, and
that we are not prepared to say.
Although we have concluded that the IEEPA constitutes specific con-
gressional authorization to the President to nullify the attachments and order
the transfer of Iranian assets, there remains the question of the President’s au-
thority to suspend claims pending in American courts. Such claims have, of
course, an existence apart from the attachments which accompanied them.
In terminating these claims through Executive Order No. 12294 the Presi-
dent purported to act under authority of both the IEEPA and 22 U.S.C.
Sec. 1732, the so-called “Hostage Act.” ...
We conclude that although the IEEPA authorized the nullification of
the attachments, it cannot be read to authorize the suspension of the
clans: Ye:
Concluding that neither the IEEPA nor the Hostage Act constitutes
specific authorization of the President’s action suspending claims, however, is
not to say that these statutory provisions are entirely irrelevant to the ques-
tion of the validity of the President’s action. We think both statutes highly
relevant in the looser sense of indicating congressional acceptance of a broad
scope for executive action in circumstances such as those presented in this
case... . [T]he IEEPA delegates broad authority to the President to act in
times of national emergency with respect to property of a foreign country.
The Hostage Act similarly indicates congressional willingness that the Presi-
dent have broad discretion when responding to the hostile acts of foreign
sovereigns. ...
Although we have declined to conclude that the IEEPA or the Hostage
Act directly authorizes the President’s suspension of claims for the reasons
noted, we cannot ignore the general tenor of Congress’ legislation in this
area in trying to determine whether the President is acting alone or at least
with the acceptance of Congress. ... Congress cannot anticipate and legislate
with regard to every possible action the President may find it necessary to
take or every possible situation in which he might act. Such failure of Con-
gress specifically to delegate authority does not, “especially ...in the areas of
foreign policy and national security,’ imply “congressional disapproval” of ac-
tion taken by the Executive. Haig v. Agee, [453 U.S. 280] (1981). On the con-
trary, the enactment of legislation closely related to the question of the
President’s authority in a particular case which evinces legislative intent to
accord the President broad discretion may be considered to “invite” ““mea-
sures on independent presidential responsibility.’ Youngstown (JACKSON, J.,
concurring). At least this is so where there is no contrary indication of leg-
islative intent and when, as here, there is a history of congressional acquies-
cence in conduct of the sort engaged in by the President. It is to that history
which we now turn.
Not infrequently in affairs between nations, outstanding claims by na-
tionals of one country against the government of another country are
“sources of friction” between the two sovereigns. To resolve these difficulties,
nations have often entered into agreements settling the claims of their re-
spective nationals... .
Under such agreements, the President has agreed to renounce
or ex-
tinguish claims of United States nationals against foreign governments. in
 C | The Tieaty-Making Power and Executive Independence | 249

return for lump sum payments or the establishment of arbitration proce-

AUITES.0h 95,
Crucial to our decision today is the conclusion that Congress has im-
plicitly approved the practice of claim settlement by executive agreement.
This is best demonstrated by Congress’ enactment of the International
Claims Settlement Act of 1949. ...
In light of all of the foregoing—the inferences to be drawn from the
character of the legislation Congress has enacted in the area, such as the
IEEPA and the Hostage Act, and from the history of acquiescence in execu-
tive claims settlement—we conclude that the President was authorized to
suspend pending claims pursuant to Executive Order No. 12294. As Justice
FRANKFURTER pointed out in Youngstown, “a systematic, unbroken exec-
utive practice, long pursued to the knowledge of Congress and never before
questioned.. . may be treated as a gloss on ‘Executive Power’ vested in the
President by cea 1 of Art. II?’ Past practice does not, by itself, create power,
but “long-continued practice, known to and acquiesced in by Congress,
would raise a presumption es the [action] has been [taken] in pursuance of
its consent... .”
Our eonicén: is ipntirested by the fact that the means chosen by the
President to settle the claims of American nationals provided an alternate fo-
rum, the Claims Tribunal, which is capable of providing meaningful relief. . . .
Just as importantly, Congress has not disapproved of the action taken
here. Though Congress has held hearings on the Iranian Agreement itself,
Congress has not enacted legislation, or even passed a resolution, indicating
its displeasure with the Agreement. Quite the contrary, the relevant Senate
Committee has stated that the establishment of the Tribunal is “of vital
importance to the United States.’ We are thus clearly not confronted with a
situation in which Congress has in some way resisted the exercise of presi-
dential authority.
Finally, we re-emphasize the narrowness of our decision. We do not de-
cide that the President possesses plenary power to settle claims, even as
against foreign governmental entities. . . . But where, as here, the settlement
of claims has been determined to be a necessary incident to the resolution of
a major foreign policy dispute between our country and another, and where,
as here, we can conclude that Congress acquiesced in the President’s action,
we are not prepared to say that the President lacks the power to settle such
claims.

C The Tieaty-Making Power and

Executive Independence

The president makes treaties “by and with the Advice and Consent of
the Senate.” Although President George Washington initially sought
Senate consultation when negotiating an Indian treaty in 1789, presi-
dents since him have tended to negotiate treaties independently and
only later to obtain ratification by a two-thirds vote of the Senate.
250 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

There are times, though, when senators become involved in negotia-

tions, dealing with trade or especially controversial agreements like the
Strategic Arms Limitations Treaty (SALT) II treaty in 1979. (See the
CONSTITUTIONAL HISTORY box, The Treaty-Reinterpretation
Controversy, in this section.) Presidential dominance nevertheless is
now the norm.
Treaties are on a par with federal legislation and considered part of
the supreme law of the land. Moreover, in Missouri v. Holland (1920)
(see excerpt below), the Court ruled that a treaty on migratory birds
gave Congress the authority to pass regulations forbidding the killing
of such birds, which it would not have had in the absence of the treaty.
Treaties thus may be a source of,law and a basis of power that neither
the president nor Congress had before their adoption. They often serve,
for example, as the basis for presidents making executive agreements with
foreign countries in order to implement treaty provisions.
Independent of treaties and congressional authorization, presidents
increasingly enter into executive agreements with other countries. In
United States v. Belmont, 301 U.S. 324 (1937), the Court upheld such
agreements as valid international compacts and then ruled that they
have the same legal effect as treaties in United States v. Pink (1942) (see
excerpt below).
As a result of the rulings in Belmont and Pink, presidents have cir-
cumvented the treaty-making provision, and executive agreements now
outnumber treaties (see the CONSTITUTIONAL HISTORY box,
Alternatives to Treaties, in this section). Many of the most sensitive
agreements were not even made known to Congress until it passed the
Case Act in 1972, requiring notification within sixty days of “any
international agreement.” After Congress discovered that the Ford and
Carter administrations had not fully complied and had made a number
of secret “executive arrangements,’ the act was amended to require no-
tification within twenty days of any “oral international agreement,
which shall be reduced to writing.” Notably, though, because of oppo-
sition in the Senate to the North American Free Trade Agreement
(NAFTA) of 1993, which eliminated trade barriers in uniting Canada,
the United States, and Mexico in a free-trade zone, the president was
given “fast-track authority” and the NAFTA was approved by simple
majorities of both houses of Congress, instead of ratified as a treaty by
a two-thirds vote of the Senate.
In general, the Court defers to the president and tries to avoid de-
ciding issues arising from the independence of the executive branch
in the conduct of foreign affairs. Questions thus remain over the
president’s unilateral termination of treaties (see Goldwater v. Carter
[1979]; excerpt in Vol. 1, Ch. 2), and reinterpretation of the language
 C | The Treaty-Making Power and Executive Independence | 251

of treaties over Senate opposition. (See the box on CONSTITU-

TIONAL HISTORY: The Treaty-Reinterpretation Controversy in
this section).
However, the Court has, albeit infrequently and reluctantly, recog-
nized constitutional limitations on the scope of treaties and executive
agreements. In Geofroy v. Riggs, 133 U.S. 258 (1890), the Court rejected
the contention that the treaty power “extends so far as to authorize
what the Constitution forbids, or a change in the character of the
government.” But Justice Holmes’s sweeping opinion in Missouri v. Hol-
land (see excerpt below) raised anew questions about the scope of
treaties and executive agreements. The Court finally qualified that rul-
ing in Reid v. Covert, 354 U.S. 1 (1957), holding that executive agree-
ments could not deprive individuals of the guarantees of the Bill of
Rights. At issue in Reid v. Covert was the constitutionality of an execu-
tive agreement permitting dependents of American military residing in
Great Britain to be tried for crimes committed there by military courts
under the Uniform Code of Military Justice, which does not extend
the same guarantees as those in the Bill of Rights to criminal trials. No-
tably, when invalidating the executive agreement the Court was bitterly
divided and forced to overrule a five-to-four decision of one year ear-
lier, in Reid v. Covert, 351 U.S. 487 (1956), that had reached the oppo-
site conclusion.
Finally, during the presidencies of Ronald Reagan, George H. W.
Bush, and George W. Bush, the executive branch staunchly asserted its
power to reinterpret what it deemed ambiguous congressional statutes
and treaties with foreign governments. In Rust v. Sullivan, 500 U.S. 173
(1991) (see Vol. 2, Ch. 5), the Court upheld the administration’s reinter-
pretation of a congressional statute to forbid organizations receiving fed-
eral funding from providing counseling on abortion. The Court has not
squarely confronted the related issue of the president’s reinterpretation
of a treaty that contravenes the understanding of the Senate when it
consented to the treaty. However, in United States v,Alvarez-Machain, 504
US. 655 (1992) (see excerpt below), the Court upheld the George
H.W. Bush administration’s reinterpretation of an extradition treaty to
permit it to order the kidnapping and bringing of a foreign national to
the United States for trial. Subsequently, Mexico filed a formal protest
with the government and requested a renegotiation of its treaty with
the United States. Congress then enacted and President George W.
Bush signed into law the Military Commissions Act of 2006, which au-
thorizes the president to interpret guarantees for detaining “unlawful
_ enemy combatants” under the Geneva Conventions so long as the pro-
cedures are not “grave breaches” of the conventions and do not consti-
tute “cruel, unusual, or inhumane treatment.”
 252 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS

= CONSTITUTIONAL HISTORY

Alternatives to Treaties: The Rise of Executive

Agreements and Arrangements

Since 1945, U.S. presidents have increasingly used executive agreements, which do
not require Senate approval, as substitutes for traditional treaties.

20,000

18,000

16,000

14,000

12,000 Ii Treaties
|) Executive Agreements
10,000

8,000

6,000

4,000

Source: Lawrence Margolis, Executive Agreements and Presidential Power in Foreign Affairs
(New York: Praeger, 1986), Table 1, pp. 101-106, and as updated with data from the
USS. Department of State, Treaty Office (April 2007).

SELECTED BIBLIOGRAPHY

Aust, Anthony. Modern Treaty Law and Practice. Cambridge, UK: Cambridge University
Press, 2000.
Campbell, Colton C.; Rae, Nicol; and Stack, John, eds. Congress and the Politics of For-
eign Policy. Upper Saddle River, NJ: Prentice Hall, 2003. ;
 C | The Treaty-Making Power and Executive Independence | 253

Cohen, David, and Wells, John, eds. American National Security and Civil Liberties in an
Era of Terrorism. New York: Palgrave, 2004.
Corwin, Edward S. National Supremacy: Treaty Power vs. State Power. New York: Henry
Holt, 1913.
Fisher, Louis. Constitutional Conflicts between Congress and the President. 4th ed.
Lawrence: University of Kansas Press, 1997.
Goldwater, Barry. “Treaty Termination Is a Shared Power,” 65 American Bar Association
Journal 198 (1979).
Kennedy, Edward. “Normal Relations with China: Good Law, Good Policy,’ 7 Policy
Review 125 (1979). -
Margolis, Lawrence. Executive Agreements and Presidential Power in Foreign Affairs. New
York: Praeger, 1986.
Sutherland, George. Constitutional Power and World Affairs. New York: Columbia Uni-
versity Press, 1919.

Missouri v. Holland
252e 52 416840-S:C763 821(1920)

Pursuant to a treaty between the United States and Great Britain in

1916 for the protection of birds migrating between Canada and the
United States, legislation and regulations were adopted in 1918 to es-
tablish closed hunting seasons and to prevent the killing of certain mi-
gratory birds. The state of Missouri contended that the treaty and
regulations violated the Tenth Amendment’s provision that “powers not
delegated to the United States by the Constitution . . . are reserved to
the States.” After unsuccessfully seeking in a federal district court a bill
of equity to stop a U.S. game warden from enforcing the regulations,
the state appealed to the Supreme Court, which then affirmed the
lower court’s ruling.
The Court’s decision was seven to two, and the opinion was an-
nounced by Justice Holmes. The dissent, without opinions, was by Jus-
tices Van Devanter and Pitney.

(1 Justice HOLMES delivers the opinion of the Court.

This is a bill in equity brought by the State of Missouri to prevent a
game warden of the United States from attempting to enforce the Migratory
Bird Treaty Act of July 3, 1918, and the regulations made by the Secretary
of Agriculture in pursuance of the same. The ground of the bill is that the
. statute is an unconstitutional interference with the rights reserved to the
States by thie Tenth Amendment. .. . It is unnecessary to go into any details,
because, as we have said, the question raised is the general one whether the
254 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

ms THE DEVELOPMENT OF LAW

Senate Rejection of Proposed Treaties

Although the Senate has ratified over 1,500 treaties, it has rejected 21 pro-
posed treaties.
DATE OF VOTE COUNTRY SUBJECT

March 9, 1825 Colombia Suppression of African slave

trade
June 11, 1836 Switzerland Property rights
June 8, 1844 Texas Annexation
June 15, 1844 Germany Commercial reciprocity
May 31, 1860 Mexico Transit and commercial rights
June 27, 1860 Spain Cuban claims commission
April 13, 1869 Britain Arbitration of claims
June 1, 1370 Hawaii Commercial reciprocity
June 30, 1370 Dominican Republic Annexation
January 29, 1885 Nicaragua Interoceanic canal
April 20, 1886 Mexico Mining claims
August 21, 1888 Britain Fishing rights
February 1,1889 Britain Extradition
May 5, 1897 Britain Arbitration
March 19, 1920 Multilateral Treaty of Versailles
January 18, 1927 Turkey Commercial rights
March 18, 1934 Canada St. Lawrence Seaway
January 29, 1935 Multilateral World Court
May 26, 1960 Multilateral Law of the Sea Convention
March 8, 1983 Multilateral Montreal Aviation Protocol
October 14,1999 Multilateral Comprehensive Test Ban
Source: U.S. Senate Library

treaty and statute are void as an interference with the rights reserved to the
States. :
To answer this question it is not enough to refer to the Tenth Amend-
ment, reserving the powers not delegated to the United States, because by
Article 2, Section 2, the power to make treaties is delegated expressly, and by
Article 6 treaties made under the authority of the United States along with
the Constitution and laws of the United States made in pursuance thereof,
are declared the supreme law of the land. If the treaty is valid there can be no
dispute about the validity of the statute under Article 1, Section 8, as a nec-
essary and proper means to execute the powers of the Government. The lan-
guage of the Constitution as to the supremacy of treaties being general, the
 C | The Tieaty-Making Power and Executive Independence | 255

question before us is narrowed to an inquiry into the ground upon which

the present supposed exception is placed.
It is said that a treaty cannot be valid if it infringes the Constitution, that
there are limits, therefore, to the treaty-making power, and that one such limit
is that what an act of Congress could not do unaided, in derogation of the
powers reserved to the States, a treaty cannot do. An earlier act of Congress
that attempted by itself and not in pursuance ofa treaty to regulate the killing
of migratory birds within the States had been held bad in the District Court.
United States v. Shauver, [214 ESupp. 154 (1914)]; United States v. McCullagh,
[221 ESupp. 288(1915)]. Those decisions were supported by arguments that
migratory birds were owned by the States in their sovereign capacity for the
benefit of their people, and that under cases like Geer v. Connecticut, 161 U.S.
519 [(1896)], this control was one that Congress had no power to displace.
The same argument is supposed to apply now with equal force.
Whether the two cases cited were decided rightly or not they cannot be
accepted as a test of the treaty power“ Acts of Congress are the supreme law of
the land only when made in pursuance of the Constitution, while treaties are
declared to be so when made under the authority of the United States. It is
open to question whether the authority of the United States means more than
the formal acts prescribed to make the convention. We do not mean to imply
that there are no qualifications to the treaty-making power; but they must be
ascertained in a different way. It is obvious that there may be matters of the
sharpest exigency for the national well being that an act of Congress could
not deal with but that a treaty followed by such an act could, and it is not
lightly to be assumed that, in matters requiring national action, “a power
which must belong to and somewhere reside in every civilized government”
is not to be found, Andrews v. Andrews, 188 U.S. 14 [(1903)]. What was said in
that case with regard to the powers of the States applies with equal force to
the powers of the nation in cases where the States individually are incompe-
tent to act. We are not yet discussing the particular case before us but only are
considering the validity of the test proposed. With regard to that we may add
that when we are dealing with words that also are a constituent act, like the
Constitution of the United States, we must realize that they have called into
life a being the development of which could not have been foreseen com-
pletely by the most gifted of its begetters. It was enough for them to realize or
to hope that they had created an organism; it has taken a century and has cost
their successors much sweat and blood to prove that they created a nation. The
case before us must be considered in the light of our whole experience and
not merely in that of what was said a hundred years ago. The treaty in ques-
tion does not contravene any prohibitory words to be found in the Constitu-
tion. The only question is whether it is forbidden by some invisible radiation
from the general terms of the Tenth Amendment. We must consider what this
country has become in deciding what that amendment has reserved.
The State as we have intimated founds its claim of exclusive authority
upon an assertion of title to migratory birds, an assertion that is embodied in
statute. No doubt it is true that as between a State and its inhabitants the
State may regulate the killing and sale of such birds, but it does not follow
. that its authority is exclusive of paramount powers. To put the claim of
the State upon title is to lean upon aslender reed. Wild birds are not in the
possession of anyone; and possession is the beginning of ownership. The
256 | PRESIDENTIAL PowER, THE RULE OF LAW, AND FOREIGN AFFAIRS

whole foundation of the State’s rights is the presence within their juris-
diction of birds that yesterday had not arrived, tomorrow may be in an-
other State and in a week a thousand miles away. If we are to be accurate we
cannot put the case of the State upon higher ground than that the treaty
deals with creatures that for the moment are within the state borders, that it
must be carried out by officers of the United States within the same terri-
tory, and that but for the treaty the State would be free to regulate this sub-
ject itseliSen
Here a national interest of very nearly the first magnitude is involved. It
can be protected only by national action in concert with that of another
power. The subject matter is only transitorily within the State and has no per-
manent habitat therein. But for the treaty and the statute there soon might be
no birds for any powers to deal with. We see nothing in the Constitution that
compels the Government to sit by while a food supply is cut off and the pro-
tectors of our forests and our crops are destroyed. It is not sufficient to rely
upon the States. The reliance is vain, and were it otherwise, the question is
whether the United States is forbidden to act. We are of opinion that the
treaty and statute must be upheld. . . Decree affirmed.

(| Justice VAN DEVANTER and Justice PITNEY dissent.

United States v. Pink

BIS W.S.203,,02, 9...L, $42, \1042)

Following diplomatic recognition of Soviet Russia in 1933 President

Franklin Roosevelt negotiated the “Litvinov Assignment,” under which
it was stipulated that instead of each government prosecuting claims for
recovery of assets against citizens of the other, the Soviet Union would
give title to claims to assets in America to the U.S. government and vice
versa. In United States v. Belmont, 301 U.S. 324 (1937), a New York
banker, August Belmont, contended that funds deposited in his bank by
the Petrograd Metal Works prior to the Russian Revolution in 1918
were subject to New York laws and thus could not be confiscated
by the federal government. Justice Sutherland, relying on his earlier
opinion in United States v. Curtiss-Wright Export Corporation (1936) (ex-
cerpted in this chapter, section B), however, upheld the agreement as a
valid international compact that superseded the laws of New York. Sub-
sequently, the federal government sought to recover the assets of the
New York branch of the First Russian Insurance Company and sued
Louis H. Pink, Superintendent of Insurance for the state of New York.
The state supreme court dismissed the government’s complaint and a
federal court of appeals affirmed, whereupon the government appealed
to the Supreme Court.
 C | The Treaty-Making Power and Executive Independence | 257

The Court’s decision was six to one, and the majority’s opinion
was announced by Justice Douglas, with Justices Reed and Jackson not
participating. Justice Frankfurter delivered a separate opinion and Chief
Justice Stone dissented.

— Justice DOUGLAS delivers the opinion of the Court.

This Court, speaking through Justice SUTHERLAND, held [in United
States v. Belmont (1937)] that the conduct offoreign relations is committed by
the Constitution to the political departments of the Federal Government;
that the propriety of the exercise of that power is not open to judicial in-
quiry; and that recognition of a foreign sovereign conclusively binds the
courts and “is retroactive and validates all actions and conduct of the govern-
ment so recognized from the commencement of its existence.” It further
held that recognition of the Soviet Government, the establishment of diplo-
matic relations with it, and the Litvinov Assignment were “all parts of one
transaction, resulting in an international compact between the two govern-
ments.” After stating that “in respect of what was done here, the Executive
had authority to speak as the sole organ” of the national government, it
added, “The assignment and the agreements in connection therewith did
not, as in the case of treaties, as that term is used in the treaty making clause
of the Constitution (Art. 2, Sec. 2), require the advice and consent of the
Senate.” It held that the “external powers of the United States are to be ex-
ercised without regard to state laws or policies. The supremacy of a treaty in
this respect has been recognized from the beginning.” And it added that “all
international compacts and agreements” are to be treated with similar dignity
for the reason that “complete power over international affairs is in the na-
tional government and is not and cannot be subject to any curtailment or in-
terference on the part of the several states.” .. .
The holding in the Belmont case is therefore determinative of the pres-
ent controversy unless the stake of the foreign creditors in this liquidation
proceeding and the provision which New York has provided for their pro-
tection call for a different result... .
_ We recently stated in Hines v. Davidowitz, 312 U.S. 52 [1941], that the
field which affects international relations is “the one aspect of our govern-
ment that from the first has been most generally conceded imperatively to
demand broad national authority”; and that any state power which may exist
“is restricted to the narrowest of limits.’ There we were dealing with the
question as to whether a state statute regulating aliens survived a similar fed-
eral statute. We held that it did not. Here we are dealing with an exclusive fed-
eral function. If state laws and policies did not yield before the exercise of the
external powers of the United States, then our foreign policy might be
thwarted. These are delicate matters. If state action could defeat or alter our
foreign policy, serious consequences might ensue. The nation as a whole would
be held to answer if a State created difficulties with a foreign power. . .
The action of New York in this case amounts in substance to a rejection
of a part of the policy underlying recognition by this nation of Soviet Rus-
sia. Such power is not accorded aState in our constitutional system.'To per-
' mit it would be to sanction a dangerous invasion of Federal authority. For it
would “imperil the amicable relations between governments and vex the
peace of nations.” Octjen v. Central Leather Co. [246 U.S. 297 (LOTS) At
258 | PRESIDENTIAL PowER, THE RULE OF LAW, AND FOREIGN AFFAIRS
eee eee

would tend to disturb that equilibrium in our foreign relations which the
political departments of our national government had diligently endeavored
to establish.
We repeat that there are limitations on the sovereignty of the States. No
State can rewrite our foreign policy to conform to its own domestic policies.
Power over external affairs is not shared by the States; it is vested in the na-
tional government exclusively. It need not be so exercised as to conform to
state laws or state policies whether they be expressed in constitutions,
statutes, or judicial decrees. And the policies of the States become wholly ir-
relevant to judicial inquiry, when the United States, acting within its consti-
tutional sphere, seeks enforcement of its foreign policy in the courts. ...
We hold that the right to the funds or property in question became
vested in the Soviet Government as the successor to the First Russian Insur-
ance Co.; that this right has passed to the United States under the Litvinov
Assignment; and that the United States is entitled to the property as against
the corporation and the foreign creditors.
The judgment is reversed. . . .
It is so ordered.

=™ CONSTITUTIONAL HISTORY

The Treaty-Reinterpretation Controversy*

In May 1988, by a vote of 93 to 5 the Senate approved a landmark treaty—

the INF Treaty—banning, among other things, intermediate-range nuclear
force (INF) missiles. The Senate’s action made possible ratification of the
treaty that June at a Moscow meeting of Republican President Ronald Rea-
gan and Soviet leader Mikhail S. Gorbachev. The INF treaty was the first
arms-control accord ratified since 1972, when the strategic arms limitation
(SALT I) and the antiballistic missile (ABM) treaties were approved; in 1979
the Senate refused to consent, as required under the Constitution, to the
SALT II treaty.
The INF treaty was politically controversial and brought to a head an
underlying dispute over the power of the president to reinterpret the provi-
sions and original understanding of a treaty after it has been approved by the
Senate and ratified. The Constitution offers no guidance in resolving that
dispute; and its silence on treaty reinterpretation, along with the power to

*For further discussion, see “INF Missile Treaty Wins Senate Approval,” 1988 CQ
Almanac 379 (Washington, DC: Congressional Quarterly Press, 1989); U.S. Cong.,
Senate, Comm. on Foreign Relations, 100th Cong., 2nd Sess., Hearings before the
Committee on Foreign Relations, U.S. Senate, 100th Cong., 2d Sess., on the Treaty between
the United States ofAmerica and the Union of Soviet Socialist Republics on the Elimination
of their Intermediate-Range and Shorter-Range Missiles, 5 vols. (Washington, DC:
Government Printing Office, 1988); and U.S. Cong., Senate, Committee on Foreign
Relations, 100 Cong., 2d Sess., The INF Treaty (Washington, DC: Government Print-
ing Office, 1988). ‘¢
 C | The Tieaty-Making Power and Executive Independence | 259
Sa
aticeaiereeeeetnmieommemmireres=armmrtnemeesceeeer
nine
terminate treaties (see Goldwater v. Carter, 444 U.S. 996 [1979]) pitted the
Senate against the Reagan administration in a political struggle not only over
the INF treaty but also over the respective roles of the Senate and the presi-
dent in determining the meaning of treaties.
The treaty-reinterpretation controversy erupted in 1987, when the
Reagan administration sought to reinterpret the 1972 ABM treaty so as to au-
thorize the testing of so-called star wars antimissile laser-based technology—
the strategic defense initiative (SDI). Senate Democrats balked and led by
Georgia’s Democratic senator, Samuel Nunn, argued (a) that the ABM treaty
barred the testing of SDI and (b) that the executive branch could not signifi-
cantly modify or reinterpret provisions and the original understanding of a
treaty without the approval of the Senate. In fact, in 1983 when Reagan un-
veiled his “star wars” program, the administration adhered to the prevailing
interpretation of the ABM treaty: tests-of SDI space-based laser missile systems
would violate the treaty. But by 1985, a State Department legal adviser, Abra-
ham Sofaer, advanced a broader interpretation of the treaty, which permitted
SDI testing. What became known as the “Sofaer doctrine” had three prongs:
(i) the ABM treaty—its design, genesis, text, and implementation—was
fraught with ambiguities; (2) the president, not the Senate, was empowered to
resolve those ambiguities; and (3) whatever the Senate was told in the process
of consenting to a treaty—about, for example, negotiations behind and the
mean-ing of key provisions of a treaty—is not itself binding on the president’s
subsequent interpretation of, and obligation to carry out, the treaty.
Whereas Republican senators tended to support the administration,
Democratic members of the Senate Foreign Relations Committee claimed
that the record of the ABM treaty was unambiguous in prohibiting SDI test-
ing. Democratic senators also took strong exception to the Reagan adminis-
tration’s “constitutional assertion of a clearly delineated and unprecedented
doctrine under which the president has wide latitude for treaty ‘reinterpreta-
tions, notwithstanding what the Senate may have been told in the course of
granting consent to ratification.”
A compromise was finally reached on the permissibility of the Reagan
administration’s reinterpretation of the ABM treaty. After lengthy hearings, the
Senate ultimately agreed not to contest the “broad-versus-narrow” interpreta-
tion of the ABM treaty. Instead, the Senate resolved to allow its continuing dis-
putes with the Reagan administration over SID testing to be worked out in
the defense budget process and in future negotiations among the superpowers.
When consenting to the INF treaty, though, the Senate added an
amendment, a reservation, to its resolution approving of the treaty’s ratifica-
tion. By a vote of seventy-two to twenty-seven the Senate agreed to add to
its resolution consenting to the INF treaty the following:

subject to the following principles, which derive, as a necessary im-

plication, from the provisions of the Constitution (Article II, Sec-
tion 2, Clause 2) for the making of treaties:
a SSS
260 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS
Oa h

(a) the United States shall interpret this Treaty in accordance with
the understanding of the Treaty shared by the Executive and the
Senate at the time of Senate consent to ratification;
(b) such common understanding is:
(i) based on the text of the Treaty;
(ii) reflected in the authoritative representations provided by the
Executive Branch to the Senate consent to ratification, inso-
far as such representations are directed to the meaning and
legal effect of the Treaty;
(c) the United States shall not agree to or adopt an interpretation
different from that common understanding except pursuant to Sen-
ate advice and consent to a subsequent treaty or protocol, or the
enactment of a statute.

The Reagan administration in turn expressed concerns about the constitu-

tionality of this treaty-interpretation amendment as a limitation on the pres-
ident’s treaty-making power and, more generally, presidential powers.
Notably, Congress enacted and President George W. Bush signed into
law the Military Commissions Act of 2006, which authorizes the president
to reinterpret guarantees for detaining “unlawful enemy combatants” under
the Geneva Conventions so long as the procedures are not “grave breaches”
of the conventions and do not constitute “cruel, unusual, or inhumane treat-
ment.” (See also the Constitutional History box on presidential signing state-
ments in Vol. 1, Ch. 4).

Goldwater v. Carter
444 U.S. 996, 100 S.CT. $33, (1979).

This case, arising from President Carter’s termination of a defense treaty

with Taiwan, is reprinted in Volume 1, Chapter 2.

United States v.Alvarez-Machain

504 USS. 655, 112 S.CT. 2188 (1992)

Humberto Alvarez-Machain, a citizen and resident of Mexico, was in-

dicted for participating in the kidnapping and murder of a U.S. Drug
Enforcement Administration (DEA) special agent. The DEA believed
 C | The Treaty-Making Power and Executive Independence | 261

that Alvarez-Machain, a medical doctor, participated in the murder by

prolonging the agent’s life so that others could torture and interrogate
him. In 1990, Alvarez-Machain was forcibly kidnapped from his med-
ical office and flown by private plane to Texas, where he was arrested
by DEA officials. Alvarez-Machain moved to dismiss the indictment on
the grounds that his abduction constituted outrageous governmental
conduct and that federal courts lacked jurisdiction to try him because
he was abducted in violation of a treaty between the United States and
Mexico. A federal district court ruled that it lacked jurisdiction to try
Alvarez-Machain because his abduction violated the Extradition Treaty.
The Court of Appeals for the Ninth Circuit affirmed that decision, re-
lying on its own ruling in United States v. Verdugo-Urquidez, 939 F 2d
1341 (CA 9 1991). In that case, the court of appeals held that the
forcible abduction of a Mexican national with the authorization or par-
ticipation of the United States violates the Extradition Treaty between
the United States and Mexico. The Bush administration appealed that
ruling to the Supreme Court of the United States, which granted re-
view. Following the Rehnquist Court’s ruling upholding the unusual
bounty-hunting operation in apprehending Dr. Alvarez-Machain, the
federal government’s prosecution was dismissed by a federal district
court judge for lack of evidence that he had participated in the torture
and murder of a DEA agent. And Dr. Alvarez-Machain was permitted
to return to Mexico.
The Court’s decision was six to three; the opinion was announced
by Chief Justice Rehnquist. Justice Stevens’s dissent was joined by Jus-
tices Blackmun and O’Connor.

Chief Justice REHNQUIST delivers the opinion of the Court.

_ The issue in this case is whether a criminal defendant, abducted to the
United States from a nation with which it has an extradition treaty, thereby
acquires a defense to the jurisdiction of this country’s courts. We hold that he
does not, and that he may be tried in federal district court for violations of
the criminal law of the United States. ...
Although we have never before addressed the precise issue raised in the
present case, we have previously considered proceedings in claimed violation
of an extradition treaty, and proceedings against a defendant brought before a
court by means of a forcible abduction. We addressed the former issue in
United States v. Rauscher, 119 U.S. 407 (1886); more precisely, the issue of
whether the Webster-Ashburton Treaty of 1842, which governed extraditions
between England and the United States, prohibited the prosecution of de-
fendant Rauscher for a crime other than the crime for which he had been
extradited. Whether this prohibition, known as the doctrine of specialty, was
_an intended part, of the treaty had been disputed between the two nations for
some time. ‘ustice MILLER delivered the opinion of the Court. . . . [and]
reached the following conclusion:
262 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS
oe ————— SS SS

“fA] person who has been brought within the jurisdiction of

the court by virtue of proceedings under an extradition treaty, can
only be tried for one of the offences described in that treaty, and for
the offence with which he is charged in the proceedings for his ex-
tradition, until a reasonable time and opportunity have been given
him, after his release or trial upon such charge, to return to the
country from whose asylum he had been forcibly taken under those
proceedings.” ...

In Ker v, Illinois, 119 U.S. 436 (1886), also written by Justice MILLER
and decided the same day as Rauscher, we addressed the issue of a defendant
brought before the court by way ofa forcible abduction. Frederick Ker had
been tried and convicted in an Illinois court for larceny; his presence before
the court was procured by means of forcible abduction from Peru. A mes-
senger was sent to Lima with the proper warrant to demand Ker by virtue of
the extradition treaty between Peru and the United States. The messenger,
however, disdained reliance on the treaty processes, and instead forcibly kid-
napped Ker and brought him to the United States. We distinguished Ker’s
case from Rauscher, on the basis that Ker was not brought into the United
States by virtue of the extradition treaty between the United States and
Peru, and rejected Ker’s argument that he had a right under the extradition
treaty to be returned to this country only in accordance with its terms. We
rejected Ker’s due process argument more broadly, holding in line with “the
highest authorities” that “such forcible abduction is no sufficient reason why
the party should not answer when brought within the jurisdiction of the
court which has the right to try him for such an offence, and presents no
valid objection to his trial in such court.” ...
The only differences between Ker and the present case are that Ker was
decided on the premise that there was no governmental involvement in the
abduction, and Peru, from which Ker was abducted, did not object to his
prosecution. Respondent finds these differences to be dispositive, as did the
Court of appeals in Verdugo, contending that they show that respondent's
prosecution, like the prosecution of Rauscher, violates the implied terms ofa
valid extradition treaty. The Government, on the other hand, argues that
Rauscher stands as an “exception” to the rule in Ker only when an extradition
treaty is invoked, and the terms of the treaty provided that its breach will
limit the jurisdiction ofa court. ...
According to respondent, [provisions of the treaty embody a] bargain
which the United States struck: if the United States wishes to prosecute a
Mexican national, it may request that individual’s extradition. . ..
We do not read the Treaty in such afashion. [It] does not purport to spec-
ify the only way in which one country may gain custody of a national of the
other country for the purposes of prosecution. In the absence of an extradition
treaty, nations are under no obligation to surrender those in their country to
foreign authorities for prosecution. Extradition treaties exist so as to impose
mutual obligations to surrender individuals in certain defined sets of circum-
stances, following established procedures. The Treaty thus provides a mecha-
nism which would not otherwise exist, requiring, under certain circumstances,
the United States and Mexico to extradite individuals to the other country,
and establishing the procedures to be followed when the Treaty is invoked... .
 C | The Tieaty-Making Power and Executive Independence | 263

Thus, the language of the Treaty, in the context of its history, does not
support the proposition that the Treaty prohibits abductions outside of its
terms... 1
The judgment of the Court of Appeals is therefore reversed, and the
case is remanded for further proceedings consistent with this opinion.

Justice STEVENS, with whom Justices BLACKMUN and

O’CONNOR join, dissenting.
A critical flaw pervades the Court’s entire opinion. It fails to differenti-
ate between the conduct of private citizens, which does not violate any
treaty obligation, and conduct expressly authorized by the Executive Branch
of the Government, which unquestionably constitutes a flagrant violation of
international law, and in my opinion, also constitutes a breach of our treaty
obligations. Thus, at the outset of its opinion, the Court states the issue as
“whether a criminal defendant, abducted to the United States from a nation
with which it has an extradition treaty, thereby acquires a defense to the
Jurisdiction of this country’s courts.” That, of course, is the question decided
in. Ker v, Illinois, 119 U.S. 436 (1886); it is not, however, the question pre-
sented for decision today.
The importance of the distinction between a court’s exercise of juris-
diction over either a person or property that has been wrongfully seized by a
private citizen, or even by a state law enforcement agent, on the one hand,
and the attempted exercise of jurisdiction predicated on a seizure by federal
officers acting beyond the authority conferred by treaty, on the other hand,
is explained by Justice BRANDEIS in his opinion for the Court in Cook v.
United States, 288 U.S. 102 (1933). That case involved a construction of a
prohibition era treaty with Great Britain that authorized American agents to
board certain British vessels to ascertain whether they were engaged in im-
porting alcoholic beverages. A British vessel was boarded 11% miles off the
coast of Massachusetts, found to be carrying unmanifested alcoholic bever-
ages, and taken into port. The Collector of Customs assessed a penalty which
he attempted to collect by means of libels against both the cargo and the
seized vessel.
The Court held that the seizure was not authorized by the treaty be-
cause it occurred more than 10 miles off shore. The Government argued that
the illegality of the seizure was immaterial because, as in Ker, the Court’s
jurisdiction was supported by possession even if the seizure was wrongful.
Justice BRANDEIS acknowledged that the argument would succeed if the
seizure had been made by a private party without authority to act for the
Government, but that a different rule prevails when the Government itself
lacks the power to seize... .
The same reasoning was employed by Justice MILLER to explain why
the holding in Rauscher did not apply to the Ker case. The arresting officer in
Ker did not pretend to be acting in any official capacity when he kidnapped
Ker. ...The exact opposite is true in this case, as it was in Cook... .
As the Court observes at the outset of its opinion, there is reason to be-
lieve that respondent participated in an especially brutal murder of an Amer-
ican law en‘orcement agent. That fact, if true, may explain the Executive's
intense interest in punishing respondent in our courts. Such an explanation,
264 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

however, provides no justification for disregarding the Rule of Law that this
Court has a duty to uphold. That the Executive may wish to reinterpret the
Treaty to allow for an action that the Treaty in no way authorizes should not
influence this Court’s interpretation. ...

D | War-Making and Emergency Powers

An enduring struggle between the president and Congress over the
power to wage war took root at the Constitutional Convention. Dele-
gates initially gave Congress the power “to make war” but finally settled
on giving it the power “to declare war” in Article I, Section 8. This re-
flected a recognition that the president as commander in chief may
need “to repel sudden attacks,” but also that the nation must be safe-
euarded against unchecked presidential power to wage or initiate war.
The war-making power is thus a shared power. The president oversees
all military operations in peace and wartime, yet Congress has the
power to “raise and support Armies” as well as to “provide for calling
forth the Militia to execute the Laws of the Union, suppress Insurrec-
tions and repel Invasions.” |
Although Congress has the power to declare war, the president's
power to order the military into conflict in foreign countries and to
wage war has been firmly demonstrated. In fact, just five wars have been
“declared” and only with the War of 1812 did Congress actively debate
the merits of entering the conflict. As earlier noted, at the outset of the
Civil War, Lincoln asserted expansive powers before seeking congres-
sional approval. During World Wars I and II, Congress simply recognized
a state of war when passing broad legislation delegating vast discre-
tionary powers to the president. Moreover, every president from
Theodore Roosevelt to George W. Bush has ordered troops into foreign
conflicts without congressional assent and with little or no prior notifi-
cation; indeed, presidents have ordered forces abroad over 130 times.
In historical perspective, restraints on the president’s power to wage
war remain almost entirely in the hands of Congress. The Court is
especially reluctant to question the wisdom of a president’s military
decisions. It also recognizes the potential futility of declaring unconsti-
tutional presidential actions during wartime and international emer-
gencies. The Court tends to agree with the view expressed by Charles
Evans Hughes, before becoming chief justice, that “[t]he power to wage
war is the power to wage war successfully. .. . That is, there are con-
stantly new applications of unchanged powers. . . . So, also, we. have a
fighting Constitution.”!
 D | War-Making and Emergency Powers | 265

A basic constitutional dilemma in enforcing constraints on presi-

dential power to wage war nevertheless remains. Thomias Jefferson, the
renowned “strict constructionist,” posed the problem of, on the one
hand, adhering to constitutional constraints and guarantees and, on the
other hand, of taking unauthorized action deemed necessary to pre-
serve the country. In the Kentucky Resolutions of 1798, he argued in
Opposition to the Alien and Sedition acts and partisan prosecution of
critics of the Federalists that “[i]n questions of power then let no more
be heard of confidence in man, but bind him down by the chains of the
Constitution.” Yet Jefferson later took a broad view of the government’s
power to respond to national emergencies, “A strict observance of the
written laws is doubtless one of the high duties of a good citizen, but it
is not the highest. The laws of necessity, of self-preservation, of saving
our country when in danger, are of higher obligation.”
The dilemma of preserving the Constitution and the country was
put well in 1967 by Chief Justice Earl Warren: “ ‘[N]ational defense’
cannot be deemed an end in itself... . Implicit in the term . .. is the
notion of defending those values and ideas which set this Nation
apart... . It would indeed be ironic if, in the name of national defense,
we would sanction the subversion of one of those liberties . . . which
makes the defense of the Nation worthwhile.”
Justices no less than others are often sharply divided over ignoring
or enforcing and broadly or narrowly interpreting constraints on the
president’s war-making powers. The Court’s rulings in controversies
arising from Lincoln’s actions at the start of the Civil War are illustra-
tive. The full Court never ruled on Lincoln’s orders suspending the writ
of habeas corpus. But Chief Justice Taney in Ex parte Merryman, 17 Fed.
Cases 144 (1861), declared them unconstitutional on the ground that
Article I, Section 9, gives Congress, not the president, the power to sus-
pend the writ “when in Cases of Rebellion or Invasion the public
Safety may require it.” Lincoln nonetheless disregarded Taney’s opinion
and continued to contend that the president shares with Congress the
power to suspend the writ. The president’s military orders for a block-
ade of Confederate ports was subsequently upheld by a bare majority
in The Prize Cases (1863) (excerpted below). Four dissenters, though,
point out that the Constitution grants only Congress the power to call
up the militia to suppress insurrections. Three years later and notably af-
ter the end of the Civil War, however, a unanimous Court ruled in Ex
parte Milligan (1866) (see excerpt below) that Lincoln’s orders for the
trial of civilians by military courts were unconstitutional.’
During World War II the Court again proved reluctant to en-
‘force conctitutional guarantees against claims of broad emergency
powers. The forced evacuation of over 100,000 Japanese and Japanese-
266 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

Americans from the West Coast was based on both congressional legis-
lation and executive orders. The Court initially avoided ruling on the
questions arising from the denial of civil liberties and property rights by
the evacuation and internment program. Hirabayashi v. United States, 320
US. 91 (1943), upheld a curfew imposed on Japanese-Americans but
avoided ruling on their evacuation . next year, in Korematsu v. United
The
States (1944) (see excerpt below), one of the most libertarian justices,
Hugo Black, handed down an opinion finding the evacuation program
constitutional. The three dissenters all disagreed on different grounds,
but notably Justice Robert Jackson sharply criticized the sanctioning of
“a military expedient that has no place in law under the Constitution.”
To partially deflect some of the criticism of Korematsu, on the same day
as that ruling came down Justice Douglas announced the decision in
Ex parte Endo, 323 U.S. 283 (1944). In that case the Court upheld the
right of a loyal Japanese-American woman to a writ of habeas corpus re-
leasing her from a relocation camp but again refused to address the
constitutionality of the detention program. Despite the outcry over
these rulings, Justices Black and Douglas never regretted their deci-
sions, and the latter once explained, “The decisions were extreme and
went to the verge of wartime power; and they have been severely crit-
icized. It is, however, easy in retrospect to denounce what was done, as
there actually was no invasion of our country... . But those making
plans for defense of the nation had no such knowledge and were plan-
ning for the worst.” Over forty years later in 1988, President Reagan
signed legislation providing reparations for those interned in relocation
camps during World War II.
Controversies arising from the undeclared war in Vietnam were
evaded by the Court as well, even though several of the justices main-
tained that it ought to consider cases challenging the constitutionality of
the war.° Presidents from Eisenhower to Nixon justified their sending
military advisers and troops to Vietnam on their power as commander in
chief. In addition, Johnson and Nixon defended their escalation of the
war and bombing of North Vietnam on a joint resolution passed by
Congress in 1964 after alleged attacks by torpedo boat on two U.S. de-
stroyers in the Gulf of Tonkin. The Gulf of Tonkin Resolution, as it was
called, supported “the determination of the President, as commander in
chief, to take all necessary measures to repel any armed attack against
the forces of the United States and to prevent further aggression.” Both
the Johnson and Nixon administrations claimed that the resolution
gave the president as much power as a declaration of war. But as mili-
tary involvement increased and opposition to the war grew, Congress
tried to curb the president with legislation—prohibiting the use of
funds for combat forces in Cambodia and Laos and repealing the Gulf
 D | War-Making and Emergency Powers | 267

of Tonkin Resolution. These limitations proved unavailing because

continued military presence in Vietnam could be justified as necessary
to protect troops there until they could be safely withdrawn. One ma-
jor result of the struggle between Congress and the president over the
Vietnam War was the passage in 1973 of the War Powers Resolution,
over Nixon’s veto (see excerpt below).
More recently, the Court has also consistently declined to review
cases challenging, for example, President George H. W. Bush’s sending
military forces into Saudi Arabia in 1990 after Iraq invaded Kuwait, and
President Bill Clinton’s decision to authorize military intervention in
Yugoslavia in 1999. Lower federal courts have held that suits challeng-
ing the constitutionality of those actions filed by members of Congress
either raised political questions or that members of Congress lacked
standing to file the lawsuits.’ " |
The Court, however, could not avoid ruling on challenges to the
admuinistration of President George W. Bush’s claim that he had the
power to indefinitely detain foreign nationals who had been seized af-
ter the September 11, 2001, terrorist attacks and held in Guantanamo
Bay, Cuba, as well as U.S. citizens held as “enemy combatants.” See also
the CONSTITUTIONAL HISTORY box in this chapter, Citizens,
Noncitizens, “Enemy Combatants,” and Civil Rights in Wartime. In
Rasul v. Bush (2004) (excerpted below) the Court rejected the adminis-
tration’s position that federal courts lacked jurisdiction over foreign na-
tionals held in Cuba and affirmed the right of these individuals to seek
judicial review of the basis for their detention. In Hamdi v. Rumsfeld
(2004) (excerpted below) a bare majority held that the president was
authorized to detain U.S. citizens as enemy combatants, but on a six-to-
three vote held that citizens have a right to consult with an attorney
and to contest the basis for their detention before an independent tri-
bunal. In another historic ruling the Court also rebuffed the Bush ad-
ministration’s position that it could try enemy combatants by military
commissions, rather than in civilian courts or in courts martial, as au-
thorized by Congress and according to basic provisions of the Geneva
Conventions, in Hamdan v. Rumsfeld (2006) (excerpted below). Subse-
quently, Congress passed and President George W. Bush signed into law
the Military Commissions Act of 2006, which denies federal courts ju-
risdiction over habeas applications filed by “unlawful enemy combat-
ants.” Democrats opposed that court-stripping jurisdiction and Senator
Arlen Spector (R-Pa), chair of the judiciary committee also deemed it
unconstitutional but nonetheless voted for the bill. The Bush adminis-
tration immediately moved to have some 500 habeas applications dis-
“missed under the law, while its constitutionality was also challenged in
the courts.
268 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS

NOTES

1. C. E. Hughes, “War Powers under the Constitution,’ 62 American Bar Association

Reports 238 (1917). .
2. T. Jefferson, Letter to J. B. Colvin, in The Writings of Thomas Jefferson, Vol. 12, ed.
Andrew A. Lipscomb (Washington, DC: The Thomas Jefferson Memorial Associa
tion, 1903), 418.
3. United States v. Robel, 389 U.S. 258 (1967).
4. Military trials of captured saboteurs and enemies during World War II, however,
were upheld in Ex parte Quirin, 317 U.S. 1 (1942), and In re Yamashita, 327 U.S. 1
(1946). But the Court has maintained that citizens and military dependents may not
be tried by military courts either for capital offenses, in Reid v. Covert, 351 U.S. 487
(1957), or noncapital offenses, in Kinsella v. United States ex rel. Singleton, 361 U.S. 234
(1960), and McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).
5. DeFunis v. Odegaard, 416 U.S. 312 (1973).
6. See Mora v. McNammara, 389 U.S. 934 (1967); Massachusetts v. Laid, 400 U.S. 886
(1970); and Sarnoffv. Schultz, 409 U.S. 929 (1972).
7. See Lowry v. Reagan, 676 F Supp. 333 (D.C. Cir., 1987); Dellums v. Bush,
752 E Supp. 1141 (D.C. Cir., 1990); and Campbell v. Clinton, 203 E 3d 19 (9th Cir.,
2000).

SELECTED BIBLIOGRAPHY

9/11 Commission. The 9/11 Commission Report. New York: W. W. Norton, 2004.
Ackerman, Bruce. Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.
New Haven: Yale University Press, 2006.
Ball, Howard. Bush, the Detainees and the Constitution. Lawrence: University Press of
Kansas, 2007.
Burgess, Susan. Contest for Constitutional Authority: The Abortion & War Powers Debates.
Lawrence: University Press of Kansas, 1992.
Cole, David. Enemy Aliens. New York: New Press, 2003.
, and Dempsey, James. Terrorism and the Constitution 3d ed. New York: New
Press, 2006.
Delgado, Richard. Justice at War. New York: New York University Press, 2003.
Ely, John Hart. War and Responsibility: Constitutional Lessons of Vietnam and Its After-
math. Cambridge, MA: Harvard University Press, 1993.
Farber, Daniel. Lincoln’s Constitution. Chicago: University of Chicago Press, 2003.
Fisher, Louis..Presidential War Power. 2d ed. Lawrence: University Press of Kansas, 2004.
. Congressional Abdication on War and Spending. College Station: Texas
A & M University Press, 2000.
. Nazi Saboteurs on Trial:A Military Tribunal and American Law, 2d ed.Lawrence:
University Press of Kansas, 2005.
. Military Tribunals and Presidential Power. Lawrence: University Press of Kansas;
2005.
. In the Name of National Security: Unchecked Presidential Power and the Reynolds
Case. Lawrence: University Press of Kansas, 2006.
 D | War-Making and Emergency Powers | 269

Heymann, Philip B. Terrorism, Freedom, and Security: Winning without War. Cambridge,
MA: MIT Press, 2003.
Irons, Peter. Justice at War. New York: Oxford University Press, 1983.
Keynes, Edward. Undeclared War: Tivilight Zone of Constitutional Power. University Park:
Pennsylvania State University Press, 1982.
Lehman, Charles. Making War: The 200- Year-Old Battle between the President and Con-
gress over How Americans Go to War. New York: Scribner’s Sons, 1992.
Levinson, Stanford, ed. Torture: A Collection. New York: Oxford University Press,
2004.
Rehnquist, William H. All The Laws but One: Civil Liberties in Wartime. New York:
Knopf, 1998. .
Yoo, John. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11.
Chicago: University of Chicago Press, 2006.

® CONSTITUTIONAL HISTORY

Citizens, Noncitizens, “Enemy Combatants,” and

Civil Rights in Wartime

Shortly after the attacks on the World Trade Center and the Pentagon on
September 11, 2001, President George W. Bush declared war against al
Qaeda forces in Afghanistan and international terrorism. He issued an order
authorizing the indefinite detention of captured terrorists and their trial by
military tribunals, without appeal. Bush’s order invited controversy because
the detainees were not treated as prisoners of war according to international
law. Under the Third Geneva Convention of 1949, prisoners of war are en-
titled to an independent and impartial trial, the assistance of counsel, and the
right of appeal. Less than two months later, Bush signed into law the 342-
page USA PATRIOT Acct. Its provisions expand surveillance by law enforce-
ment agencies, provide for greater cooperation among federal agencies, and
create new crimes. Civil libertarians and other critics contend that the
government overreacted, especially in detaining immigrants and holding U.S.
citizens as “enemy combatants.”
In historical perspective, threats to national security have tended to be
exaggerated and civil liberties curbed. When on the verge of war with
France, in 1798 Congress enacted the Alien and Sedition Acts, empowering
the president to expel any alien deemed dangerous. The Sedition Act made it
unlawful to “write, print, utter or publish . . . any false, scandalous and mali-
cious writing ... against” the government. It led to twenty-five arrests, fifteen
indictments, and ten convictions. All of them were Jeffersonian-Republican
opponents of the Federalists, who were then in power. The laws expired in
1801. The Supreme Court took the extraordinary step over 150 years later
SS
 270 | PRESIDENTIAL Power, THE RULE OF LAW, AND FOREIGN AFFAIRS

ee
of declaring them unconstitutional, in New York Times Company v. Sullivan,
376 USS. 254 (1964) (excerpted in Vol. 2, Ch. 5).
In 1798, Congress also enacted the Enemy Alien Acct, still in effect, au-
thorizing the president during a war to detain and expel citizens ofa coun-
try with which we are at war. James Madison invoked it during the War of
1812: President Woodrow Wilson did so during World War I to arrest over
6,000 German nationals and hold about 2,300 in internment camps; and
during World War II President Franklin D. Roosevelt invoked the law to clas-
sify almost one million foreigners as “enemy aliens.”
World War I brought other restrictions, particularly for immigrants from
East Europe and Russia. The Senate debated a bill that would have turned
the country into a military zone and made it a crime to publish anything en-
dangering national security, with trials by military tribunals and convictions
punishable by death. But President Wilson persuaded Congress to enact the
less extreme Espionage Act of 1917, making it a crime to interfere with war
efforts. Still, as amended in 1918, the law criminalized any “disloyal, profane,
scurrilous or abusive” language about the government. Approximately 2,000
individuals were prosecuted under the law. By the time appeals reached the
Court, World War I was over, but the “Red Scare” remained and most of the
convictions were upheld. In Schenck v. United States, 249 U.S. 47 (1919) (ex-
cerpted in Vol. 2, Ch. 5), Justice Oliver Wendell Holmes proposed his “clear
and present danger” test for protecting speech, yet upheld the conviction,
observing: “When a nation is at war many things that might be said in time
of peace are such a hindrance to its effort that their utterance will not be en-
dured so long as men fight.” When another appeal reached the Court, Abrams
v. United States, 250 U.S. 616 (1919), Justices Holmes and Louis D. Brandeis
dissented and explained: “The power undoubtedly is greater in time of war
than in time of peace because war opens dangers that do not exist at other
times. But as against dangers peculiar to war, as against others, the principle
of the right of free speech is always the same.” (See also Gitlow v. People of the
State of New York, 268 U.S. 652 (1925), excerpted in Vol. 2, Ch. 5.)
During World War II and the Cold War, the Court again did not seri-
ously question wartime hysteria or the prosecution of“subversives.” Notably,
the Court upheld the convictions of leaders of the Communist Party under
the Smith Act of 1940, in Dennis v. United States, 341 U.S. 494 (1951) (ex-
cerpted in Vol. 2, Ch. 5). That law made it a crime “to organize any society
...advocat[ing] ... the overthrow or destruction of any government of the
United States.” Subsequently, Congress enacted the Internal Security Act of
1950 and the Communist Control Act of 1954, aimed at flushing out com-
munists and others belonging to “subversive organizations.”
The Cold War in the 1950s and 1960s also led to congressional “witch
hunts.” The House Un-American Activities Committee (HUAC), established
in 1938 and not abolished until 1974, and the Senate Permanent Investiga-
tions Subcommittee, chaired by Wisconsin Senator Joseph R. McCarthy,
subpoenaed hundreds of individuals to testify about alleged communist ac-
 D | War-Making and Emergency Powers | 271%

tivities. In response to challenges to the investigations, the Court ruled that

witnesses may refuse to answer vague and irrelevant questions; see Watkins v.
United States, 354 U.S. 178 (1957); and Barenblatt v. United States, 360 U.S. 109
(1959) (both excerpted in Vol. 1, Ch. 5). But, the Court was initially reluctant
to check Congress or the executive branch. However, United States v. Robel,
389 U.S. 258 (1967), struck down a section of the Internal Security Act,
making it unlawful for a member of a communist-action organization to
work in a defense facility, for sweeping ‘ “too indiscriminately” and “literally
establish[ing] guilt by association.”
Besides limiting freedom of speech, press, and association, the govern-
ment also detained and incarcerated immigrants and citizens, along with sus-
pending other guarantees of the Bill of Rights. In Ex parte Milligan, 71 U.S.
2 (1866) (excerpted in Ch.%3), the Court overruled President Abraham Lin-
coln’s use of military courts to try-civilians accused of disloyalty during the
Civil War. Yet during World War II it upheld the interment of over 110,000
Japanese-Americans—70,000 of whom were U.S. citizens—as “enemy
aliens” without evidence of their disloyality, in Korematsu v. United States, 323
US. 214 (1944) (excerpted in Vol. 1, Ch. 3). On the same day Korematsu
came down, though, the Court ruled, in Ex parte Endo, 323 U.S. 283 (1944),
that, although the evacuation was permissible, the detention of loyal
Japanese-Americans was unconstitutional.
During World War II the Court also approved the use of military tri-
bunals to try eight German saboteurs, including one naturalized U.S. citizen,
for sabotaging bridges and utility plants. In Ex parte Quirin, 317 U.S. 1
(1942), the Court ruled that the president has the “power . . . to carry into
effect .. . all laws defining and punishing offenses against the law of nations,
including those which pertain to the conduct of war.’ Chief Justice Stone
added that there was no distinction between U.S. citizens and noncitizens
deemed belligerents. As he put it: “citizenship in the United States of an
enemy belligerent does not relieve him from the consequences of a bel-
ligerency which is unlawful.”
At the end of World War I, the Court upheld the use of military com-
missions to try leaders of the Japanese Imperial Military in In re Yamashita,
327 USS. 1 (1946). The Court also held, in Johnson v, Eisentrager, 339 U.S. 763
(1950), that federal courts have no jurisdiction over habeas corpus petitions
filed by foreign nationals held overseas by U.S. military forces. In Reid v.
Covert, 354 U.S. 1 (1957), though, the Court ruled that U.S. citizens who are
dependents of military personnel stationed abroad may not be subject to
courts-martial or denied rights guaranteed in the Bill of Rights. For that rea-
son, John Walker Lindh, the young American captured fighting with the Tal-
‘iban in Afghanistan, was accorded counsel and prosecuted in federal court.
In the aftermath of the 9/11 terrorist attacks, the boundaries between
the rights of citizens and noncitizens were once again blurred. International
and constitutional law has long recognized that during wartime the govern-
ment has special powers over foreign nationals from a country at war. The
Laan
272 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

Bush administration advanced the position that the war against international
terrorism was different because it was against Al Qaeda and other terrorists,
not a nation. Over 3,000 foreign nationals from the Middle East were de-
tained and another 6,000 targeted for deportation. The administration re-
jected international criticism of its indefinite and incommunicado detention
of about 650 foreign nationals as “enemy combatants” in Guantanamo Bay,
Cuba. The administration initially distinguished between the rights of citi-
zens and foreign nationals, but then blurred the line, drawing sharp criticism
from commentators and some lower federal courts, for its treatment of U.S.
citizens as “enemy combatants.”
The line between the rights of citizens and foreign nationals has been
breached in the past. The Constitution expressly distinguishes the rights of
citizenship in certain respects: only citizens may run for elective federal of-
fice and their right to vote may not be denied discriminatorily. Yet all other
rights are not so literally limited. The Fourth Amendment guarantee against
“unreasonable searches and seizures,’ for instance, extends to all “people.”
The Fifth and Fourteenth Amendment guarantees of due process and equal
protection extend to all “persons,” including resident foreign nationals.
Accordingly, the Court has held that neither the First nor the Fifth
Amendment “acknowledges any distinction between citizens and resident
aliens,” Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). The Court re-
affirmed that “the Due Process Clause applies to all ‘persons’ within the
United States, including aliens, whether their presence here is lawful, unlaw-
ful, temporary, or permanent,” in Zadvydas v. Davis, 533 U.S. 678 (2001). It
also has repeatedly held that equal protection is “universal in [its] application
to all persons within theterritorial jurisdiction, without regard to differences
of . . nationality,” Yick Wo v. Hopkins, 118 U.S. 356 (1886); see also Plyer v.
Doe, 457 U.S. 2002 (1982) (excerpted in Vol. 2, Ch. 12, rejecting the denial of
public education to children of illegal aliens).
At the same time, citizens and noncitizens are not similarly situated. Al-
though the Court has held that state laws discriminating against aliens may
be presumptively invalid, in Graham v. Richardson, 403 U.S. 365 (1971), it has
permitted states to bar foreign nationals from public employment as police
officers, schoolteachers, and probation officers; see Foley v. Connelie, 435 U.S.
291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979); and Cabell v. Chavez-
Salido, 454 U.S. 432 (1982).
The status of citizens and noncitizens diverges most sharply with respect
to detention, deportation, and immigration. Citizens may not be expelled
from the country, whereas noncitizens may be expelled for even minor in-
fractions. As the Court observed in Mathews v. Diaz, 426 U.S. 67 (1976): “In
the exercise of its broad power over naturalization and immigration, Con-
gress regularly makes rules that would be unacceptable if applied to citizens.”
The Court has, thus, permitted the exclusion and expulsion of foreign na-
tionals on the basis of their race and if they have committed certain crimes,
in Chae Chan Ping v. United States, 130 U.S. 581 (1889) and Yamataya v. Fisher,
SS aa a
 D | War-Making and Emergency Powers | 273

189 U.S. 861 (1903); it has also allowed their deportation because of political
associations, in Shaughnesy v. United States ex rel Mezei, 345 U.S. 206 (1953).
In United States v. Salerno, 481 U.S. 739 (1987), the Court nonetheless
blurred the line between citizens and noncitizens when upholding the pretrial
detention for two years, without bail, of a citizen as “regulatory, not penal,’ and
hence not a violation of due process. In dictum, referring to times of “war or in-
surrection,’ Chief Justice Rehnquist added that “the government may detain
individuals whom the government believes to be dangerous.’ However, in
Zadvydas v. Davis, 533 U.S. 678 (2001), the Court ruled that legal immigrant
felons are entitled to due process and_ may not be held indefinitely—longer
than six months—under deportation orders when countries refuse to take
them back. Subsequently, though, a bare majority in Demore v. Kim, 538 US.
510 (2003), upheld a federal statute mandating preventive detention during de-
portation proceedings of foreign nationals accused of certain crimes, based
on statistics showing that a high percentage of “criminal aliens” commit
more offenses after their release and fail to reappear at deportation hearings.
The detentions and deportations of immigrants of Middle East origins
in the aftermath of 9/11 gave rise to a new series oflitigation. The adoption
by the Immigration and Naturalization Service (INS) of secret deportation
hearings resulted in conflicting lower federal court rulings. The U.S. Court of
Appeals for the Sixth Circuit held that the First Amendment guarantees a
right of access for the press and the media to the proceedings, while the
Third and District of Columbia Circuit courts ruled contrariwise. The
Supreme Court denied review of the latter decisions (for further discussion
of claims to a right of access see Vol. 2, Ch. 5).
A panel of the Court of Appeals for the Ninth Circuit also ruled against
the administration’s policy of indefinite detention, without appeal to federal
courts, of foreign nationals deemed “enemy combatants,” in Gherebi v. Bush
(2003). The court found no support in the Congress’s Authorization for Use
of Military Force of 2001 or precedents, such as Johnson v, Eisentrager, for
denying detainees access to the judicial process. In the words of the panel,
“no lawful policy or precedent supports such a counter-intuitive and un-
democratic procedure. . . . In our view, the government's position is inconsis-
tent with fundamental tenets of American jurisprudence and raises serious
questions under international law.’
The Court had inexorably to consider appeals of the treatment of “en-
emy combatants” and to clarify the rights of foreign nationals, as well as U.S.
citizens. The Court reviewed cases involving foreign nationals captured in
Afghanistan and Pakistan, in Rasul v. Bush (2004) (excerpted in this chapter).
Rasul posed the question of whether federal courts have jurisdiction over
challenges to the legality of holding foreign nationals detained in Guan-
tanamo Bay. By a six-to-three vote the Court ruled that federal courts have
jurisdiction over foreign nationals held in Guantanamo Bay, Cuba, and that
these nationals have the right to seek independent review of their detention.
The Court also granted the appeal of a US. citizen declared an “enemy
274 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

combatant,” Yaser Esam Hamdi. Hamdi was born in Baton Rouge,

Louisiana, then moved as a child to his parents’ homeland in Saudi Arabia,
where he was raised. He eventually went to Afghanistan, where he was cap-
tured fighting alongside the Taliban. He was initially taken to Guantanamo,
but once his U.S. citizenship was discovered he was designated an “enemy
combatant” and moved to a brig in Norfolk, Virginia. Hamdi challenged his
detention and denial of legal representation as a violation of the Fifth and the
Fourteenth Amendments. Before the government could respond, a federal
district court judge appointed a public defender and ordered the government
to allow Hamdi to consult with an attorney. The Bush administration ap-
pealed and the Court of Appeals for the Fourth Circuit reversed. The appel-
late court, however, rejected the administration’s position “that, with no
meaningful judicial review, any American citizen alleged to be an enemy
combatant could be detained indefinitely without charges or counsel on the
government’s say-so.” Instead, the court sanctioned a deferential judicial re-
view and remanded the case to the district court. On remand, the judge di-
rected the government to respond to Hamd1’s petition, and it did so with a
two-page, nine-paragraph affidavit from the Special Advisor to the Under
Secretary of Defense for Policy, Michael Mobbs, detailing only the most
rudimentary facts of Hamdi’s capture. The judge held that the affidavit fell
short of supporting Hamdi’s detention and ordered the government to turn
over copies of all of his statements to interrogators. When the government
objected, the judge certified for the Fourth Circuit’s review the following
question: “Whether the Mobbs Declaration, standing alone, is sufficient as a
matter of law to allow a meaningful judicial review of Yaser Esam Hamdi’s
classification as an enemy combatant?” Back in the Fourth Circuit, Chief
Judge J. Harvie Wilkinson relied on Quirin in reaffirming that courts should
defer to the executive branch in cases involving national security, and con-
cluded that the Mobbs declaration was a sufficient basis to justify Hamdi’s
incarceration. In December 2003, the Bush administration decided to allow
Hamdi to consult with an attorney, though maintaining that it could hold
him with-out further judicial hearings. The Court granted an appeal and
held in Hamdi v. Rumsfeld (2004) (excerpted in this chapter) that Hamdi had
the right to contest his detention before an independent tribunal. Hamdi re-
nounced his U.S. citizenship and was returned to Saudi Arabia.
Subsequently, Congress passed and President George W. Bush signed
into law the Military Commissions Act of 2006, which denies federal courts
jurisdiction over habeas applications filed by “unlawful enemy combatants.”
Democrats opposed that court-stripping jurisdiction and Senator Arlen
Spector (R-Pa), chair of the judiciary committee also deemed it unconstitu-
tional but nonetheless voted for the bill: The Bush administration immedi-
ately moved to have some 500 habeas applications dismissed under the law,
while its constitutionality was challenged by some prisoners held at Guan-
tanamo. But the Roberts Court denied review, in Boumediene v. Bush, 127
S.Ct. 1478 (2007). In an extraordinary statement issued with the denial, Jus-
ee
 D | War-Making and Emergency Powers | 275

tices Stevens and Kennedy emphasized that that did “not constitute any
opinion on the merits” of the dispute; while Justices Souter, Ginsburg, and
Breyer dissented and contended that the Court should give “immediate at-
tention” to the matter. In 2007, the Roberts Court reversed cause and
granted review of the Boumediene case.

= IN COMPARATIVE PERSPECTIVE

The House of Lords Rules against the Indefinite

Detention of Terrorists

As a result of the continued conflicts in North Ireland, the United Kingdom

enacted the Terrorism Act of 2000, which broadened the definition of ter-
rorism, prohibited fund-raising for terrorist organizations, and expanded law
enforcement powers to stop, search, arrest, and detain suspected terrorists.
But after the international terrorist attacks on September 11, 2001, on the
Twin Towers and the Pentagon, the Parliament enacted the Anti-Terrorism,
Crime, and Security Act of 2001, which, among other things, derogated ob-
ligations under Article 5 of the European Convention on Human Rights
that prohibit detention without trial.
The provisions of the Anti-Terrorism, Crime, and Security Act were
subsequently challenged and the House of Lords in an eight-to-one deci-
sion, in A(FC) and others (FC) v. Secretary of State for the Home Department,
[2004] UKHL 56, held that indefinite detention of suspected terrorists with-
out charge or trial violates Articles 5 and 14 of the European Convention on
Human Rights, issuing a “declaration of incompatibility” (since English
courts have no power to invalidate legislation), and referring the matter back
to Parliament. Lord Bingham issued the lead opinion and found that the flaw
in the detention policy was the way it discriminated against foreign nations.
In his words:
The appellants share certain common characteristics which are cen-
tral to their appeals. All are foreign (non-UK) nationals. None has
been subject of any criminal charge. In none of their cases is a
criminal trial in prospect. All challenge the lawfulness of their de-
tention. More specifically, they all contend that such detention was
inconsistent with obligations binding on the United Kingdom un-
der the European Convention on Human Rights..
The appellants were treated differently from both suspected in-
ternational terrorists who were not UK nationals but could be re-
moved and also from suspected international terrorists who were
UK-nationals and could not be removed. There can be no doubt but
that the difference in treatment was on grounds of nationality or im-
migration status (one of the proscribed grounds under Article 14).
ae
276 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS

Lord Walker, the lone dissenter, countered that:

The appropriate intensity of scrutiny of decisions in this crucial

area—involving both national security and individual rights—pres-
ents a dilemma. ...The court should show a high degree of respect
for the Secretary of State’s appreciation, based on secret intelligence
sources, of the security risks; but at the same time the court should
subject to a very close scrutiny the practical effect which derogating
measures have on human rights, the importance of the rights af-
fected, and the robustness of any safeguards intended to minimize
the impact of the derogating measures on individual human rights.
In 2005, Parliament enacted a new anti-terrorism act that authorizes
judges to impose a range of restrictions on terrorist suspects, short of impris-
onment, including placing them under house arrest, imposing nighttime cur-
fews, requiring electronic tagging, and barring their use of cell phones and
computers. The law expired in 2006, some provisions were renewed and sus-
pected terrorists may be held without charges for twenty-eight days.
Notably, in 2007 the Supreme Court of Canada, following the House of
Lords, struck down a law authorizing the government to detain foreign-born
terrorist suspects indefinitely, based on secret evidence, and without charges.
Writing for the Court, Chief Justice Beverly McLachlin observed that, “The
overarching principle of fundamental justice that applies here is this; before
the state can detain people for significant periods of time, it must accord
them a fair judicial process.”

The Prize Cases

Zi 67S: 035517 LakpN4so (1863)

After the outbreak of the Civil War in April 1861 but before convening
a special session of Congress, President Abraham Lincoln declared the
Southern states in rebellion and ordered a blockade of their ports. Con-
gress subsequently passed legislation authorizing his actions, yet Lincoln
maintained that his actions were justifiable given his inherent powers as
commander in chief and legislation in 1795 and 1807 that had dele-
gated certain war powers to the president. The owners of several ships,
which had been seized and confiscated in the blockade, unsuccessfully
challenged the legality of the blockade in federal district courts and
then appealed to the Supreme Court. Justice Robert Grier’s opinion
for the Court affirming the actions of the president prompted dis-
senting Justice Samuel Nelson to issue a sharply worded reminder of
the importance of the rule of law and constitutional constraints on the
president.
 D | War-Making and Emergency Powers | 277

The Court’s decision was five to four, and the majority’s opinion
was announced by Justice Grier. Justice Nelson dissented, as did Chief
Justice Taney and Justices Clifford and Catron.

Justice GRIER delivers the opinion of the Court.

Had the President a right to institute a blockade ofports in possession
of persons in armed rebellion against the government, on the principles of
international law, as known and acknowledged among civilized States? . ..
That the President, as the Executive Chief of the Government and
Commander-in-Chief of the Army and Navy, was the proper person to
make such notification, has not been, and cannot be disputed.
The right of prize and capture has its origin in the “jus belli’ and is gov-
erned and adjudged under the laws of nations. To legitimate the capture of a
neutral vessel or property on the high seas, a war must exist de facto, and the
neutral must have a knowledge or notice of the intention of one of the par-
ties belligerent to use this mode of coercion against a port, city or territory,
in possession of the other.
Let us inquire whether, at the time this blockade was instituted, a state
of war existed which would justify a resort to these means of subduing the
hostile force.
War has been well defined to be, “That state in which a nation prose-
cutes its right by force.”
By the Constitution, Congress alone has the power to declare a national
or foreign war. It cannot declare war against a State or any number of States,
by virtue of any clause in the Constitution. The Constitution confers on the
President the whole executive power. He is bound to take care that the laws
be faithfully executed. He is Commander-in-Chief of the Army and Navy of
the United States, and of the militia of the several States when called into the
actual service of the United States. He has no power to initiate or declare a
war either against a foreign nation or a domestic State. But by the Acts of
Congress of Feb. 28th, 1795, ch. 36 (1 Stat. at L., 424), and 3d of March
1807, ch. 39 (1 Stat. at L., 443), he is authorized to call out the militia and
use military and naval forces of the United States in case of invasion by for-
eign nations, and to suppress insurrection against the government of a State
or of the United States.
_ If a war be made by invasion of a foreign Nation, the President is not
only authorized but bound to resist force, by force. He does not initiate the
war, but is bound to accept the challenge without waiting for any special leg-
islative authority. And whether the hostile party be a foreign invader, or
States organized as rebellion, it is none the less a war, although the declara-
tion of it be “unilateral.” ...
Whether the President in fulfilling his duties, as Commander-in-Chief,
_ in suppressing an insurrection, has met with such armed hostile resistance,
and a civil war of such alarming proportions as will compel him to accord to
them the character of balieersatste is a question to be decided by him, and
this court must be governed by the decisions and acts of the Political De-
partment of the government to which this power was intrusted. “He must
determine what degree of force the crisis demands.” The proclamation of
blockade is, itself, official and conclusive evidence to the court that a state of
278 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

war existed which demanded and authorized a recourse to such a measure,

under the circumstances peculiar to the case.

Justice NELSON, joined by Chief Justice TANEY and Justices

CATRON and CLIFFORD, dissenting.
[WJe are asked: what would become of the peace and integrity of the
Union, in case of an insurrection at home or invasion from abroad, if this
power could not be exercised by the President in the recess of Congress, and
until that body could be assembled?
The framers of the Constitution fully comprehended this question, and
provided for the contingency. Indeed, it would have been surprising if they
had not, as a rebellion had occurred in the State of Massachusetts while the
Convention was in session, and which had become so general that it was
quelled only by calling upon the military power of the State. The Constitu-
tion declares that Congress shall have power “to provide for calling forth the
militia to execute the laws of the Union, suppress insurrections, and repel in-
vasions.” Another clause, “that the President shall be Commander-in-chief of
the Army and Navy of the United States, and of the Militia of the several
States when called into the actual service of the United States;” and, again:
“He shall take care that the laws shall be faithfully executed.’ Congress
passed laws on this subject in 1792 and 1795.
The last Act provided that whenever the United States shall be invaded
or be in imminent danger of invasion from a foreign nation, it shall be law-
ful for the President to call forth such number of the militia most convenient
to the place of danger, and in case of insurrection in any State against the
government thereof, it shall be lawful for the President, on the application of
the Legislature of such State, if in session, or if not, of the Executive of the
State to call forth such number of militia of any other State or States, as he
may judge sufficient to suppress such insurrection.
It has also been argued that this power of the pei ene from necessity
should be construed as vesting him with the war power, or the Republic
might greatly sufter or be in danger from the attacks of the hostile party be-
fore the assembling of Congress. But we have seen that the whole military
and naval forces are in his hands under the municipal laws of the country. He
can meet the adversary upon land and water with all the forces of the
government. The truth is, this idea of the existence of any necessity for
clothing the President with the war power, under the Act of 1795, is simply
a monstrous exaggeration; for, besides having the command of the whole of
the army and navy, Congress can be assembled within any thirty days, if the
safety of the country requires that the war power shall be brought into oper-
ation. 54
So the war carried on by the President against the insurrectionary dis-
tricts in the Southern States, as in the case of the King of Great Britain in the
American Revolution, was a personal war against those in rebellion, and
with encouragement and support of loyal citizens with a view to their co-
operation and aid in suppressing the insurgents, with this difference, as the
war making power belonged to the King, he might have recognized or de-
clared the war at the beginning to be a civil war which would draw after it
all the rights ofa belligerent, but in the case of the President no such power
 D | War-Making and Emergency Powers | 279

existed; the war, therefore, from necessity, was a personal war, until Congress
assembled and acted upon this state of things.
Down to this period the only enemy recognized by the government was
the persons engaged in the rebellion, all others were peaceful citizens, en-
titled to all the privileges of citizens under the Constitution. Certainly it can-
not rightfully be said that the President has the power to convert a loyal citi-
zen into a belligerent enemy or confiscate his property as enemy’s property.
Congress assembled on the call for an extra session the 4th July, 1861,
and among the first Acts passed was one in which the President was author-
ized by proclamation to interdict all trade and intercourse between all the in-
habitants of States in insurrection and rest of the United States, subjecting
vessel and cargo to capture and condemination as prize, and also to direct the
capture of any ship or vessel belonging in whole or in part to any inhabitant
of a State whose inhabitants are declared by the proclamation to be in a state
of insurrection, found at sea or in any part of the rest of the United States.
Act of Congress of 13 July, 1861, Secs. 5, 6. The 4th section also authorized
the President to close any port in a Collection District obstructed so that the
revenue could not be collected and provided for the capture and condemna-
tion of any vessel attempting to enter.
The President’s Proclamation was issued on the 16th August following,
and embraced Georgia, North and South Carolina, part of Virginia, Ten-
nessee, Alabama, Louisiana, Texas, Arkansas, Mississippi and Florida.
This Act of Congress, we think, recognized a state of civil war between
the government and the Confederate States... .
Upon the whole, after the most careful consideration of this case which
the pressure of other duties has admitted, | am compelled to the conclusion
that no civil war existed between this Government and the States in in-
surrection till recognized by the Act of Congress 13th July, 1861; that the
President does not possess the power under the Constitution to declare war
or recognize its existence within the meaning of the law of nations, which
carries with it belligerent rights, and thus change the country and all its citi-
zens from a state of peace to a state of war; that this power belongs exclu-
sively to the Congress of the United States and, consequently, that the
President had no power to set on foot a blockade under the law of nations,
and the capture of the vessel and cargo in this case, and in all cases before us
in which the capture occurred before the 13th July, 1861, for breach of
blockade, or as enemies’ property, are illegal and void, and that the decrees of
condemnation should be reversed and the vessel and cargo restored.

Ex parte Milligan
| 4 WALL. (71 U.S.) 2, 18 L.Ep. 281 (1866)

In 1862; President Abraham Lincoln ordered the suspension of the writ

of habeas corpus and that all persons disloyal to the Union should be
tried and punished by court-martial or military commissions. In 1863,
280 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

Congress passed legislation suspending the writ. A year later, Lambdin P.

Milligan, a lawyer sympathizing with the Confederacy, was seized and
tried by a military commission in Indiana. He appealed to the federal
circuit court for a writ of habeas corpus and challenged the commission’s
jurisdiction, because Indiana was not a state in insurrection and had
functioning civil courts. The circuit judges were sharply divided and_-
decided to certify certain questions—pertaining to the issuance of a
writ of habeas corpus and the jurisdiction of the military commission—
to the Supreme Court for decision. The Court unanimously ruled
against the president’s actions on the grounds that Congress had not au-
thorized the use of courts-martial in an opinion by Justice David Davis,
an appointee of President Lincoln. But Chief Justice Salmon Chase, in
a separate opinion joined by three other justices, took strong exception
to Justice Davis’s opinion, also holding that it is not within Congress’s
power to establish military commissions.
The Court’s decision was five to four, and the majority’s opinion
was announced by Justice Davis. Chief Justice Chase concurred in part
and dissented in part, and was joined by Justices Wayne, Swayne, and
Miller.

(| Justice DAVIS delivers the opinion of the Court.

The controlling question in the case is this: Upon the facts stated in Mil-
ligan’s petition, and the exhibits filed, had the military commission men-
tioned in it jurisdiction, legally, to try and sentence him? Milligan, not a
resident of one of the rebellious states, or a prisoner of war, but a citizen of
Indiana for twenty years past, and never in the military or naval service, is,
while at his home, arrested by the military power of the United States, im-
prisoned, and, on certain criminal charges preferred against him, tried, con-
victed, and sentenced to be hanged by a military commission, organized
under the direction of the military commander of the military district of In-
diana. Had this tribunal the legal power and authority to try and punish this
man?
No graver question was ever considered by this court, nor one which
more nearly concerns the rights of the whole people; for it is the birthright
of every American citizen when charged with crime, to be tried and pun-
ished according to law. The power of punishment is alone through the
means which the laws have provided for that purpose, and if they are in-
effectual, there is an immunity from punishment, no matter how great an of-
fender the individual may be, or how much his crimes may have shocked the
sense of justice of the country, or endangered its safety. By the protection of
the law human rights are secured; withdraw that protection, and they are at
the mercy of wicked rulers, or the clamor of an excited people. If there was
law to justify this military trial, it is not our province to interfere; if there was
not, it is our duty to declare the nullity of the whole proceedings. The deci-
sion of this question does not depend on argument or judicial precedents,
numerous and highly illustrative as they are. These precedents inform us of
 D | War-Making and Emergency Powers | 281

the extent of the struggle to preserve liberty and to relieve those in civil life
from military trials. The founders of our government were familiar with the
history of that struggle; and secured in a written constitution every right
which the people had wrested from power during a contest of ages. By the
Constitution and the laws authorized by it this question must be deter-
mined. The provisions of that instrument on the administration of criminal
Justice are too plain and direct, to leave room for misconstruction or doubt
of their true meaning. Those applicable to this case are found in that clause
of the original Constitution which says, “That the trial of all crimes, except
in case of impeachment, shall be by jury”; and in the fourth, fifth, and sixth
articles of the amendments. .. . J
The Constitution’ of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its protection all
classes of men, at all times,:and under all circumstances. No doctrine, involv-
ing more pernicious consequences; was ever invented by the wit of man than
that any of its provisions can be suspended during any of the exigencies of
government. Such a doctrine leads directly to anarchy or despotism, but the
theory of necessity on which it is based is false; for the government, within
the Constitution, has all the powers granted to it, which are necessary to pre-
serve its existence, as has been happily proved by the results of the great ef-
fort to throw off its just authority... .
Have any of the rights guaranteed by the Constitution been violated in
the case of Milligan? and if so, what are they?
Every trial involves the exercise of judicial power; and from what source
did the military commission that tried him derive their authority? Certainly
no part of the judicial power of the country was conferred on them; because
the Constitution expressly vests it “in one supreme court and such inferior
courts as the Congress may from time to time ordain and establish,” and it is
not pretended that the commission was a court ordained and established by
Congress. They cannot justify on the mandate of the President; because he is
controlled by law, and has his appropriate sphere of duty, which is to execute,
not to make, the laws; and there is “no unwritten criminal code to which re-
sort can be had as a source of jurisdiction.”
But it is said that the jurisdiction is complete under the “laws and usages
of war.”
It can serve no useful purpose to inquire what those laws and usages are,
whence they originated, where found, and on whom they operate; they can
never be applied to citizens in states which have upheld the authority of the
government, and where the courts are open and their process unobstructed.
This court has judicial knowledge that in Indiana the Federal authority was
always unopposed, and its courts always open to hear criminal accusations
and redress grievances; and no usage of war could sanction a military trial
there for any offence whatever ofa citizen in civil life, in nowise connected
- with the military service. Congress could grant no such power; and to the
honor of our national legislature be it said, it has never been provoked by the
state of the country even to attempt its exercise. One of the plainest consti-
tutional provisions was, therefore, infringed when Milligan was tried by a
court not ordained and established by Congress, and not composed of judges
appointed during good behavior.
Why was he not delivered to the Circuit Court of Indiana to be pro-
282 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

ceeded against according to law? No reason of necessity could be urged

against it; because Congress had declared penalties against the offences
charged, provided for their punishment, and directed that court to hear and
determine them. And soon after this military tribunal was ended, the Circuit
Court met, peacefully transacted its business, and adjourned. It needed no
bayonets to protect it, and required no military aid to execute its judgments.
It was held in a state, eminently distinguished for patriotism, by judges com-
missioned during the Rebellion, who were provided with juries, up-
right, intelligent, and selected by a marshal appointed by the President. The
government had no right to conclude that Milligan, if guilty, would not
receive in that court merited punishment; for its records disclose that it was
constantly engaged in the trial of similar offences, and was never interrupted
in its administration of criminal justice. If it was dangerous, in the distracted
condition of affairs, to leave Milligan unrestrained of his liberty, because he
“conspired against the government, afforded aid and comfort to rebels, and
incited the people to insurrection,” the law said arrest him, confine him
closely, render him powerless to do further mischief; and then present his
case to the grand jury of the district, with proofs of his guilt, and, if indicted,
try him according to the course of the common law. If this had been done,
the Constitution would have been vindicated, the law of 1863 enforced, and
the securities for personal liberty preserved and defended.
Another guarantee of freedom was broken when Milligan was denied a
trial by jury. The great minds of the country have differed on the correct in-
terpretation to be given to various provisions of the Federal Constitution;
and judicial decision has been often invoked to settle their true meaning; but
until recently no one ever doubted that the right of trial by jury was fortified
in the organic law against the power of attack. It is now assailed; but if ideas
can. be expressed in words, and language has any meaning, this right—one of
the most valuable in a free country—is preserved to every one accused of
crime who is not attached to the army, or navy, or militia in actual service.
The sixth amendment affirms that “in all criminal prosecutions the accused
shall enjoy the right to a speedy and public trial by an impartial jury,” lan-
guage broad enough to embrace all persons and cases; but the fifth, recogniz-
ing the necessity of an indictment, or presentment, before any one can be
held to answer for high crimes, “except cases arising in the land or naval
forces, or in the militia, when in actual service, in time of war or public dan-
ger”; and the framers of the Constitution, doubtless, meant to limit the right
of trial by jury, in the sixth amendment, to those persons who were subject
to indictment or presentment in the fifth. ...
It is claimed that martial law covers with its broad mantle the proceed-
ings of this military commission. The proposition is this: that in a time of war
the commander of an armed force (if in his opinion the exigencies of the
country demand it, and of which he is to judge), has the power, within the
lines of his military district, to suspend all civil rights and their remedies, and
subject citizens as well as soldiers to the rule of his will; and in the exercise of
his lawful authority cannot be restrained, except by his superior officer or
the President of the United States.
If this position is sound to the extent claimed, then when war exists, for-
eign or domestic, and the country is subdivided into military departments
for mere convenience, the commander of one of them can, if he chooses,
a D | War-Making and Emergency Powers | 283
Ee Re aT Saale hie Sateen maabtd
within his limits, on the plea of necessity, with the approval of the Executive,
substitute military force for and to the exclusion of the laws, and punish all
persons, as he thinks right and proper, without fixed or certain rules.
The statement of this proposition shows its importance; for, if true, re-
publican government is a failure, and there is an end of liberty regulated by
law. Martial law, established on such a basis, destroys every guarantee of the
Constitution, and effectually renders the “military independent of and supe-
rior to the civil power”’—the attempt to do which by the King of Great
Britain was deemed by our fathers such an offence, that they assigned it to the
world as one of the causes which impelled them to declare their independ-
ence. Civil liberty and this kind of martial law cannot endure together; the
antagonism is irreconcilable; and, in the conflict, one or the other must perish.
This nation, as experience has proved, cannot always remain at peace,
and has no right to expect that it will always have wise and humane rulers,
sincerely attached to the principles of the Constitution. Wicked men, ambi-
tious of power, with hatred of liberty and contempt of law, may fill the place
once occupied by Washington and Lincoln; and if this right is conceded, and
the calamities of war again befall us, the dangers to human liberty are fright-
ful to contemplate. If our fathers had failed to provide for just such a contin-
gency, they would have been false to the trust reposed in them. They
knew—the history of the world told them—the nation they were founding,
be its existence short or long, would be involved in war; how often or how
long continued, human foresight could not tell; and that unlimited power,
wherever lodged at such a time, was especially hazardous to freemen. For
this, and other equally weighty reasons, they secured the inheritance they
had fought to maintain, by incorporating in a written constitution the safe-
guards which time had proved were essential to its preservation. Not one of
these safeguards can the President, or Congress, or the Judiciary disturb, ex-
cept the one concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great crisis, like
the one we have just passed through, there should be a power somewhere of
suspending the writ of habeas corpus. In every war, there are men of previ-
ously good character, wicked enough to counsel their fellow-citizens to re-
sist the measures deemed necessary by a good government to sustain its just
authority and overthrow its enemies; and their influence may lead to danger-
ous combinations. In the emergency of the times, an immediate public in-
vestigation according to law may not be possible; and yet, the peril to the
country may be too imminent to suffer such persons to go at large. Un-
questionably, there is then an exigency which demands that the government,
if it should see fit in the exercise of a proper discretion to make arrests,
should not be required to produce the persons arrested in answer to a writ of
habeas corpus. The Constitution goes no further. It does not say after a writ of
habeas corpus is denied a citizen, that he shall be tried otherwise than by the
- course of the common law; if it had intended this result, it was easy by the
use of direct words to have accomplished it. The illustrious men who framed
that instrument were guarding the foundations of civil liberty against the
abuses of unlimited power; they were full of wisdom, and the lessons of his-
tory info.ned them that a trial by an established court, assisted by an impar-
tial jury, was the only sure way of protecting the citizen against oppression
and wrong. Knowing this, they limited the suspension to one great right, and
 284 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

left the rest to remain forever inviolable. But, it is insisted that the safety of
the country in time of war demands that this broad claim for martial law
shall be sustained. If this were true, it could be well said that a country, pre-
served at the sacrifice of all the cardinal principles of liberty, is not worth the
cost of preservation. Happily, it is not so.
It will be borne in mind that this is not a question of the power to pro-
claim martial law, when war exists in a community and the courts and civil
authorities are overthrown. Nor is it a question what rule a military com-
mander, at the head of his army, can impose on states in rebellion to cripple
their resources and quell the insurrection. The jurisdiction claimed is much
more extensive. The necessities of the service, during the late Rebellion, re-
quired that the loyal states should be placed within the limits of certain mil-
itary districts and commanders appointed in them; and, it is urged, that this,
in a military sense, constituted theni the theatre of military operations; and,
as in this case, Indiana had been and was again threatened with invasion by
the enemy, the occasion was furnished to establish martial law. The conclu-
sion does not follow from the premises. If armies were collected in Indiana,
they were to be employed in another locality, where the laws were ob-
structed and the national authority disputed. On her soil there was no hostile
foot; if once invaded, that invasion was at an end, and with it all pretext for
martial law. Martial law cannot arise from a threatened invasion. The necessity
must be actual and present; the invasion real, such as effectually closes the
courts and deposes the civil administration.
It is difficult to see how the safety of the country required martial law in
Indiana. If any of her citizens were plotting treason, the power of arrest could
secure them, until the government was prepared for their trial, when the
courts were open and ready to try them. It was as easy to protect witnesses
before a civil as a military tribunal; and as there could be no wish to convict,
except on sufficient legal evidence, surely an ordained and established court
was better able to judge of this than a military tribunal composed of gentle-
men not trained to the profession of the law.
It follows, from what has been said on this subject, that there are occa-
sions when martial rule can be properly applied. If, in foreign invasion or
civil war, the courts are actually closed, and it is impossible to administer
criminal justice according to law, then, on the theatre of active military oper-
ations, where war really prevails, there is a necessity to furnish a substitute for
the civil authority, thus overthrown, to preserve the safety of the army and
society; and as no power is left but the military, it is allowed to govern by
martial rule until the laws can have their free course. As necessity creates the
rule, so it limits its duration; for, if this government is continued after the
_ courts are reinstated, it is a gross usurpation of power. Martial rule can never
exist where the courts are open, and in the proper and unobstructed exercise
of their jurisdiction. It is also confined to the locality of actual war. Because,
during the late Rebellion it could have been enforced in Virginia, where the
national authority was overturned and the courts driven out, it does not fol-
low that it should obtain in Indiana, where that authority was never dis-
puted, and justice was always administered. And so in the case of a foreign
invasion, martial rule may become a necessity in one state, when, in another,
it would be “mere lawless violence.’ . . .
The two remaining questions in this case must be answered in the affir-
 D | War-Making and Emergency Powers | 285
Vy ee

mative. The suspension of the privilege of the writ of habeas corpus does not
suspend the writ itself: The writ issues as a matter of course; and on the re-
turn made to in the court decides whether the party applying is denied the
right of proceeding any further with it.
If the military trial of Milligan was contrary to law, then he was entitled,
on the facts stated in his petition, to be discharged from custody by the terms
of the act of Congress of March 3d, 1863.

Chief Justice CHASE delivers the following opinion.

[T]he opinion which has just been read . . . asserts not only that the Mil-
itary Commission held in Indiana was not authorized by Congress, but that
it was not in the power of Congress to authorize it; from which it may be
thought to follow, that Congress had no power to indemnify the officers
who composed the commission against liability in civil courts for acting as
members of it.
We cannot agree to this. ...
We think that Congress had power, though not exercised, to authorize
the Military Commission which was held in Indiana.
Congress has the power not only to raise and support and govern
armies, but to declare war. It has, therefore, the power to provide by law for
carrying on war. This power necessarily extends to all legislation essential to
the prosecution of war with vigor and success, except such as interferes with
the command of the forces and conduct of campaigns. That power and duty
belong to the President as Commander-in-Chief. Both these powers are de-
rived from the Constitution, but neither is defined by that instrument. Their
extent must be determined by their nature, and by the principles of our in-
stitutions. ...
We think that the power of Congress, in such times and in such locali-
ties, to authorize trials for crimes against the security and safety of the na-
tional forces, may be derived from its constitutional authority to raise and
support armies and to declare war, if not from its constitutional authority to
provide for governing the national forces... .
Justice WAYNE, Justice SWAYNE and Justice MILLER concur with
me in these views.

Korematsu v. United States

2a e2tA, 05, S.CT 1903 (1944)

Following the Japanese attack on Pearl Harbor in December 1941 and

amid growing fears that the West Coast might be invaded, President
Franklin D. Roosevelt issued in February 1942 an executive order au-
thorizing the creation of “military zones” in which military command-
ers could impose curfews and exclude individuals to prevent espionage
and sabotage. Congress a month later passed legislation approving these
286 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

orders and providing criminal penalties for their violation. Tens of

thousands of Japanese-Americans along the West Coast were subse-
quently sgluilogsse to curfews, evacuations, and internment in “reloca-
tion camps,” which were set up farther inland. The constitutionality of
these orders was immediately challenged. In Hirabayashi v. United States,
320 U.S. 81 (1943), the orders for curfews were upheld, but the Court
avoided ruling on the evacuation program. The Court then squarely
confronted a challenge to the latter when Toyosaburo Korematsu, a cit-
izen of Japanese ancestry, refused to leave his home in California and
was convicted in district court for violating the exclusion order. The
Supreme Court granted his petition for certiorari after a court of appeals
upheld his conviction.
The Court’s decision was six to three, and the majority’s opinion
was announced by Justice Black. A concurring opinion was delivered
by Justice Frankfurter. Justices Roberts, Murphy, and Jackson dissented.

| Justice BLACK delivers the opinion of the Court.

The 1942 Act was attacked in the Hirabayashi case [320 U.S. 81] as an
unconstitutional delegation of power; it was contended that the curfew order
and other orders on which it rested were beyond the war powers of the
Congress, the military authorities and of the President, as Commander in
Chief of the Army; and finally that to apply the curfew order against none
but citizens of Japanese ancestry amounted to a constitutionally prohibited
discrimination solely on account of race. To these questions, we gave the se-
rious consideration which their importance justified. We upheld the curfew
order as an exercise of the power of the government to take steps necessary
to prevent espionage and sabotage in an area threatened by Japanese attack.
In the light of the principles we announced in the Hirabayashi case, we
are unable to conclude that it was beyond the war power of Congress and
the Executive to exclude those of Japanese ancestry from the West Coast war
area at the time they did. True, exclusion from the area in which one’s home
is located is a far greater deprivation than constant confinement to the home
from 8 P.M. to 6 A.M. Nothing short of apprehension by the proper military
authorities of the gravest imminent danger to the public safety can constitu-
tionally justify either. But exclusion from a threatened area, no less than cur-
few, has a definite and close relationship to the prevention of espionage and
sabotage. The military authorities, charged with the primary responsibility of
defending our shores, concluded that curfew provided inadequate protection
and ordered exclusion. They did so, as pointed out in our Hirabayashi opin-
ion, in accordance with Congressional authority to the military to say who
should, and who should not, remain in the threatened areas.
In this case the petitioner challenges the assumptions upon which we
rested our conclusions in the Hirabayashi case. He also urges that by May
1942, when Order No. 34 was promulgated, all danger of Japanese invasion
of the West Coast had disappeared. After careful consideration of these con-
tentions we are compelled to reject them.
 D | War-Making and Emergency Powers | 287

Japanese-Americans in an internment camp during World War II.

(AP/Wide World Photos, Inc.)

Here, as in the Hirabayashi case, “we cannot reject as unfounded the

judgment of the military authorities and of Congress that there were disloyal
members of that population, whose number and strength could not be pre-
cisely and quickly ascertained. We cannot say that the war-making branches
of the Government did not have ground for believing that in a critical hour
such persons could not readily be isolated and separately dealt with, and con-
stituted a menace to the national defense and safety, which demanded that
prompt and adequate measures be taken to guard against it.”
Like curfew, exclusion of those of Japanese origin was deemed necessary
because of the presence of an unascertained number of disloyal members of
the group, most of whom we have no doubt were loyal to this country. It was
because we could not reject the finding of the military authorities that it was
impossible to bring about an immediate segregation of the disloyal from the
loyal that we sustained the validity of the curfew order as applying to the
whole group. In the instant case, temporary exclusion of the entire group
was rested by the military on the same ground. The judgment that exclusion
of the whole group was for the same reason a military imperative answers
the contention that the exclusion was in the nature of group punishment
based on antagonism to those of Japanese origin. That there were members
of the group who retained loyalties to Japan has been confirmed by investi-
gations made subsequent to the exclusion. Approximately five thousand
American citizens of Japanese ancestry refused to swear unqualified alle-
giance to the United States and to renounce allegiance to the Japanese Em-
peror, and several thousand evacuees requested repatriation to Japan.
288 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS
E
oo nS e

We uphold the exclusion order as of the time it was made and when the
petitioner violated it... . In doing so, we are not unmindful of the hardships
imposed by it upon a large group of American citizens. . . But hardships are
part of war, and war is an aggregation of hardships. All citizens alike, both
in and out of uniform, feel the impact of war in greater or lesser measure.
Citizenship has its responsibilities as well as its privileges, and in time of
war the burden is always heavier. Compulsory exclusion of large groups of
citizens from their homes, except under circumstances of direst emergency
and peril, is inconsistent with our basic governmental institutions. But when
under conditions of modern warfare our shores are threatened by hostile
forces, the power to protect must be commensurate with the threatened
danger
Since the petitioner has not been convicted of failing to report or to re-
main in an assembly or relocation center, we cannot in this case determine
the validity of those separate provisions of the order. It is sufficient here for
us to pass upon the order which petitioner violated. To do more would be to
go beyond the issues raised, and to decide momentous questions not con-
tained within the framework of the pleadings or the evidence in this case. It
will be time enough to decide the serious constitutional issues which peti-
tioner seeks to raise when an assembly or relocation order is applied or is
certain to be applied to him, and we have its terms before us.
Some of the members of the Court are of the view that evacuation and
detention in an Assembly Center were inseparable. After May 3, 1942, the
date of Exclusion Order No. 34, Korematsu was under compulsion to leave
the area not as he would choose but via an Assembly Center. The Assembly
Center was conceived as a part of the machinery for group evacuation. The
power to exclude includes the power to do it by force if necessary. And any
forcible measure must necessarily entail some degree of detention or restraint
whatever method of removal is selected. But whichever view is taken, it re-
sults in holding that the order under which petitioner-was convicted was
valid.
It is said that we are dealing here with the case of imprisonment of a cit-
izen in a concentration camp solely because of his ancestry, without evidence
or inquiry concerning his loyalty and good disposition towards the United
States. Our task would be simple, our duty clear, were this a case involving
the imprisonment ofa loyal citizen in a concentration camp because of racial
prejudice. Regardless of the true nature of the assembly and relocation cen-
ters—and we deem it unjustifiable to call them concentration camps with all
the ugly connotations that term implies—we are dealing specifically with
nothing but an exclusion order. To cast this case into outlines of racial preju-
dice, without reference to the real military dangers which were presented,
merely confuses the issue. Korematsu was not excluded from the Military
Area because of hostility to him or his race. He was excluded because we are
at war with the Japanese Empire, because the properly constituted military
authorities feared an invasion of our West Coast and felt constrained to take
proper security measures, because they decided that the military urgency of
the situation demanded that all citizens of Japanese ancestry be segregated
from the West Coast temporarily, and finally, because Congress, reposing its
confidence in this time of war in our military leaders—as inevitably it
must—determined that they should have the power to do just this. There was
 D | War-Making and Emergency Powers | 289

evidence of disloyalty on the part of some, the military authorities consid-

ered that the need for action was great, and time was short. We cannot—by
availing ourselves of the calm perspective of hindsight—now say that at that
time these actions were unjustified.
Affirmed.

Justice FRANKFURTER, concurring.

According to my reading of Civilian Exclusion Order No. 34, it was an
offense for Korematsu to be found in Military Area No. 1, the territory
wherein he was previously living, except within the bounds of the estab-
lished Assembly Center of that area. Even though the various orders issued
by General DeWitt be deemed a comprehensive code of instructions, their
tenor is clear and not contradictory. They put upon Korematsu the obliga-
tion to leave Military Area No. 1,-but only by the method prescribed in the
instructions, i.e., by reporting to the Assembly Center. I am unable to see
how the legal considerations that led to the decision in Kiyoshi Hirabayashi v,
United States fail to sustain the military order which made the conduct now
in controversy a crime. And so Ijoin in the opinion of the Court, but should
like to add a few words of my own.
The provisions of the Constitution which confer on the Congress and
the President powers to enable this country to wage war are as much part of
the Constitution as provisions looking to a nation at peace. And we have had
recent occasion to quote approvingly the statement of former Chief Justice
HUGHES that the war power of the Government is “the power to wage war
successfully.” Hirabayashi v. United States. Therefore, the validity of action un-
der the war power must be judged wholly in the context of war. That action
is not to be stigmatized as lawless because like action in times of peace would
be lawless. To talk about a military order that expresses an allowable judg-
ment of war needs by those entrusted with the duty of conducting war as
“an unconstitutional order” is to suffuse a part of the Constitution with an
atmosphere of unconstitutionality. The respective spheres of action of mili-
tary authorities and of judges are of course very different. But within their
sphere, military authorities are no more outside the bounds of obedience to
the Constitution than are judges within theirs. “The war power of the
United States, like its other powers . . . is subject to applicable constitutional
limitations,’ Hamilton v, Kentucky Distilleries Co., 251 U.S. 146 [(1919)]. To
recognize that military orders are “reasonably expedient military precau-
tions” in time of war and yet to deny them constitutional legitimacy makes
of the the Constitution an instrument for dialectic subtleties not reasonably
to be attributed to the hard-headed Framers, of whom a majority had had
actual participation in war. If a military order such as that under review does
not transcend the means appropriate for conducting war, such action by the
military is as constitutional as would be any authorized action by the Inter-
state Commerce Commission within the limits of the constitutional power
to regulate commerce. And being an exercise of the war power explicitly
granted by the Constitution for safeguarding the national life by prosecuting
war effectively; I find nothing in the Constitution which denies to Congress
the power to enforce such a valid military order by making its violation an
offense triable in the civil courts. ...To find that the Constitution does not
290 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS
i ____ ane

forbid the military measures now complained of does not carry with it ap-
proval of that which Congress and the Executive did. That is their business,
not ours.

1 Justice ROBERTS, dissenting.

I dissent, because I think the indisputable facts exhibit a clear violation
of Constitutional rights.
This is not a case of keeping people off the streets at night as was Kiyoshi
Hirabayashi v. United States, nor a case of temporary exclusion of a citizen
from an area for his own safety or that of the community, nor a case of of-
fering him an opportunity to go temporarily out of an area where his pres-
ence might cause danger to himself or to his fellows. On the contrary, it is
the case of convicting a citizen as a punishment for not submitting to im-
prisonment in a concentration camp, based on his ancestry, and solely be-
cause of his ancestry, without evidence or inquiry concerning his loyalty and
good disposition towards the United States. If this be a correct statement of
the facts disclosed by this record, and facts of which we take judicial notice,
I need hardly labor the conclusion that Constitutional rights have been vio-
lated.

() Justice MURPHY, dissenting.

This exclusion of “all persons of Japanese ancestry, both alien and non-
alien,” from the Pacific Coast area on a plea of military necessity in the ab-
sence of martial law ought not to be approved. Such exclusion goes over “the
very brink of constitutional power” and falls into the ugly abyss of racism.
In dealing with matters relating to the prosecution and progress of a
war, we must accord great respect and consideration to the judgments of the
military authorities who are on the scene and who have full knowledge of
the military facts. The scope of their discretion must, as a matter of necessity
and common sense, be wide. And their judgments ought not to be overruled
lightly by those whose training and duties ill-equip them to deal intelligently
with matters so vital to the physical security of the nation.
At the same time, however, it is essential that there be definite limits to
military discretion, especially where martial law has not been declared. Indi-
viduals must not be left impoverished of their constitutional rights on a plea
of military necessity that has neither substance nor support. Thus, like other
claims conflicting with the asserted constitutional rights of the individual,
the military claim must subject itself to the judicial process of having its rea-
sonableness determined and its conflicts with other interests reconciled.
“What are the allowable limits of military discretion, and whether or not
they have been overstepped in a particular case, are judicial questions.” Ster-
ling v. Constantin, 287 U.S. 378 [(1932)].
The judicial test of whether the Government, on a plea of military ne-
cessity, can validly deprive an individual of any of his constitutional rights is
whether the deprivation is reasonably related to a public danger that is so
“immediate, imminent, and impending” as not to admit of delay and not to
permit the intervention of ordinary constitutional processes to alleviate the
danger. Civilian Exclusion Order No. 34, banishing from a prescribed area of
the Pacific Coast “‘all persons of Japanese ancestry, both alien and non-alien,”’
 D | War-Making and Emergency Powers | 201

clearly does not meet that test. Being an obvious racial discrimination,
the
order deprives all those within its scope of the equal protection of the laws as
guaranteed by the Fifth Amendment. It further deprives these individuals of
their constitutional rights to live and work where they will, to establish a
home where they choose and to move about freely. In excommunicating
them without benefit of hearings, this order also deprives them of all their
constitutional rights to procedural due process. Yet no reasonable relation to
an “immediate, imminent, and impending” public danger is evident to sup-
port this racial restriction which is one of the most sweeping and complete
deprivations of constitutional rights in the history of this nation in the ab-
sence of martial law. ...
The military necessity which is essential to the validity of the evacuation
order thus resolves itself into a few intimations that certain individuals ac-
tively aided the enemy, from which it is inferred that the entire group of
Japanese Americans could not be trusted to be or remain loyal to the United
States. No one denies, of course, that there were some disloyal persons of
Japanese descent on the Pacific Coast who did all in their power to aid their
ancestral land. Similar disloyal activities have been engaged in by many per-
sons of German, Italian and even more pioneer stock in our country. But to
infer that examples of individual disloyalty prove group disloyalty and justify
discriminatory action against the entire group is to deny that under our sys-
tem of law individual guilt is the sole basis for deprivation of rights. More-
over, this inference, which is at the very heart of the evacuation orders, has
been used in support of the abhorrent and despicable treatment ofminority
groups by the dictatorial tyrannies which this nation is now pledged to de-
stroy. To give constitutional sanction to that inference in this case, however
well-intentioned may have been the military command on the Pacific Coast,
is to adopt one of the cruelest of the rationales used by our enemies to de-
stroy the dignity of the individual and to encourage and open the door to
discriminatory actions against other minority groups in the passions of to-
morrow. .. .
No adequate reason is given for the failure to treat these Japanese Amer-
icans on an individual basis by holding investigations and hearings to separate
the loyal from the disloyal, as was done in the case of persons of German and
Italian ancestry. It is asserted merely that the loyalties of this group “were un-
known and time was of the essence.” Yet nearly four months elapsed after
Pearl Harbor before the first exclusion order was issued; nearly eight months
went by until the last order was issued; and the last of these “subversive” per-
sons was not actually removed until almost eleven months had elapsed.
Leisure and deliberation seem to have been more of the essence than speed.
And the fact that conditions were not such as to warrant a declaration of
martial law adds strength to the belief that the factors of time and military
necessity were not as urgent as they have been represented to be... .
Moreover, there was no adequate proof that the Federal Bureau of In-
vestigation and the military and naval intelligence services did not have the
espionage and sabotage situation well in hand during this long period. Nor is
there any denial of the fact that not one person of Japanese ancestry was ac-
cused or*convicted of espionage or sabotage after Pearl Harbor while they
were still tree, a fact which is some evidence of the loyalty of the vast major-
ity of these individuals and of the effectiveness of the established methods of
292 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS a

combatting these evils. It seems incredible that under these circumstances it

would have been impossible to hold loyalty hearings for the mere 112,000
persons involved—or at least for the 70,000 American citizens—especially
when a large part of this number represented children and elderly men and
women. Any inconvenience that may have accompanied an attempt to con-
form to procedural due process cannot be said to justify violations of consti-
tutional rights of individuals.
I dissent, therefore, from this legalization of racism. Racial discrimina-
tion in any form and in any degree has no justifiable part whatever in our
democratic way of life. It is unattractive in any setting but it is utterly revolt-
ing among a free people who have embraced the principles set forth in the
Constitution of the United States.

1 Justice JACKSON, dissenting.

Korematsu was born on our soil, of parents born in Japan. The Consti-
tution makes him a citizen of the United States by nativity and a citizen of
California by residence. No claim is made that he is not loyal to this country.
There is no suggestion that apart from the matter involved here he is not
law-abiding and well disposed. Korematsu, however, has been convicted of
an act not commonly a crime. It consists merely of being present in the state
whereof he is a citizen, near the place where he was born, and where all his
life he has lived.
Even more unusual is the series of military orders which made this con-
duct a crime. They forbid such a one to remain, and they also forbid him to
leave. They were so drawn that the only way Korematsu could avoid viola-
tion was to give himself up to the military authority. This meant submission
to custody, examination, and transportation out of the territory, to be fol-
lowed by indeterminate confinement in detention camps.
A citizen’s presence in the locality, however, was made a crime only if
his parents were of Japanese birth. Had Korematsu been one of four—the
others being, say,a German alien enemy, an Italian alien enemy, and a citizen
of American-born ancestors, convicted of treason but out on parole—only
Korematsu’s presence would have violated the order. The difference between
their innocence and his crime would result, not from anything he did, said,
or thought, different than they, but only in that he was born of different
racial stock.
Now, if any fundamental assumption underlies our system, it is that guilt
is personal and not inheritable. Even if all of one’s antecedents had been con-
victed of treason, the Constitution forbids its penalties to be visited upon
him, for it provides that “no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attained.” Article 3,
Sec. 3, cl. 2. But here is an attempt to make an otherwise innocent act a
crime merely because this prisoner is the son of parents as to whom he had
no choice, and belongs to a race from which there is no way to resign. If
Congress in peace-time legislation should enact such a criminal law, I should
suppose this Court would refuse to enforce it.
But the “law” which this prisoner is convicted of disregarding is not
found in an act of Congress, but in a military order. Neither the Act of Con-
gress nor the Executive Order of the President, nor both together, would af
ford a basis for this conviction. It rests on the orders of General DeWitt. And
 D | War-Making and Emergency Powers | 293

it is said that if the military commander had reasonable military grounds for
promulgating the orders, they are constitutional and become law, and the
Court is required to enforce them. There are several reasons why I cannot
subscribe to this doctrine.
It would be impracticable and dangerous idealism to expect or insist that
each specific military command in an area of probable operations will con-
form to conventional tests of constitutionality. When an area is so beset that
it must be put under military control at all, the paramount consideration is
that its measures be successful, rather than legal. The armed services must
protect a society, not merely its Constitution. The very essence of the mili-
tary job is to marshal physical force, to remove every obstacle to its effective-
ness, to give it every strategic advantage. Defense measures will not, and
often should not, be held within the limits that bind civil authority in peace.
No court can require such a commander in such circumstances to act as a
reasonable man; he may be unreasonably cautious and exacting. Perhaps he
should be. But a commander in temporarily focusing the life of a commu-
nity on defense is carrying out a military program; he is not making law in
the sense the courts know the term. He issues orders, and they may have a
certain authority as military commands, although they may be very bad as
constitutional law.
But if we cannot confine military expedients by the Constitution, nei-
ther would I distort the Constitution to approve all that the military may
deem expedient. That is what the Court appears to be doing, whether con-
sciously or not. I cannot say, from any evidence before me, that the orders of
General DeWitt were not reasonably expedient military precautions, nor
could I say that they were. But even if they were permissible military proce-
dures, I deny that it follows that they are constitutional. If, as the Court
holds, it does follow, then we may as well say that any military order will be
constitutional and have done with it.
The limitations under which courts always will labor in examining
the necessity for a military order are illustrated by this case. How does the
Court know that these orders have a reasonable basis in necessity? No evi-
dence whatever on that subject has been taken by this or any other court.
There is sharp controversy as to the credibility of the DeWitt report. So the
Court, having no real evidence before it, has no choice but to accept
General DeWitt’s own unsworn, self-serving statement, untested by any
cross-examination, that what he did was reasonable. And thus it will al-
ways be when courts try to look into the reasonableness of a military order.
In the very nature of things military decisions are not susceptible of in-
telligent judicial appraisal. They do not pretend to rest on evidence, but are
made on information that often would not be admissible and on assumptions
that could not be proved. Information in support of an order could not be
disclosed to courts without danger that it would reach the enemy. Neither
_can courts act on communications made in confidence. Hence courts can
never have any real alternative to accepting the mere declaration of the au-
thority that issued the order that it was reasonably necessary from a military
viewpoint.
Much is Said of the danger to liberty from the Army program for de-
porting and detaining these citizens of Japanese extraction. But a judicial
construction of the due process clause that will sustain this order is a far
294 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

more subtle blow to liberty than the promulgation of the order itself.A mil-
itary order, however unconstitutional, is not apt to last longer than the mili-
tary emergency. Even during that period a succeeding commander may
revoke it all. But once a judicial opinion rationalizes such an order to show
that it conforms to the Constitution, or rather rationalizes the Constitution
to show that the Constitution sanctions such an order, the Court for all time
has validated the principle of racial discrimination in criminal procedure and
of transplanting American citizens. The principle then lies about like a loaded
weapon ready for the hand of any authority that can bring forward a plausi-
ble claim of an urgent need. Every repetition imbeds that principle more
deeply in our law and thinking and expands it to new purposes. Allwho ob-
serve the work of courts are familiar with what Judge CARDOZO de-
scribed as “the tendency of a principle to expand itself to the limit of its
logic.’ A military commander may overstep the bounds of constitutionality,
and it is an incident. But if we review and approve, that passing incident be-
comes the doctrine of the Constitution. There it has a generative power of its
own, and all that it creates will be in its own image. Nothing better illustrates
this danger than does the Court’s opinion in this case.
It argues that we are bound to uphold the conviction of Korematsu be-
cause we upheld one in Kiyoshi Hirabayashi v. United States, when we sus-
tained these orders in so far as they applied a curfew requirement toa citizen
of Japanese ancestry. | think we should learn something from that experi-
ence.
In that case we were urged to consider only the curfew feature, that be-
ing all that technically was involved, because it was the only count necessary
to sustain Hirabayashi’s conviction and sentence. We yielded, and the CHIEF
JUSTICE guarded the opinion as carefully as language will do. He said:“Our
investigation here does not go beyond the inquiry whether, in the light of all
the relevant circumstances preceding and attending their promulgation, the
challenged orders and statute afforded a reasonable basis for the action taken in
imposing the curfew.” .. .““We decide only the issue as we have defined it—we
decide only that the curfew order as applied, and at the time it was applied,
was within the boundaries of the war power.’ And again: “It is unnecessary
to consider whether or to what extent such findings would support orders differ-
ing from the curfew order.” [Italics supplied.] However, in spite of our limiting
words we did validate a discrimination on the basis of ancestry for mild and
temporary deprivation of liberty. Now the principle of racial discrimination
is pushed from support of mild measures to very harsh ones, and from tem-
porary deprivations to indeterminate ones. And the precedent which it is
said requires us to do so is Hirabayashi. The Court is now saying that in
Hirabayashi we did decide the very things we there said we were not decid-
ing. Because we said that these citizens could be made to stay in their homes
during the hours of dark, it is said we must require them to leave home
entirely; and if that, we are told they may also be taken into custody for de-
portation; and if that, it is argued they may also be held for some un-
determined time in detention camps. How far the principle of this case
would be extended before plausible reasons would play out, I do not
know.
I should hold that a civil court cannot be made to enforce an order
which violates constitutional limitations even if it is a reasonable exercise of
 D | War-Making and Emergency Powers | 295

military authority. The courts can exercise only the judicial power,
can apply
only law, and must abide by the Constitution, or they cease to be
civil courts
and become instruments of military policy.
Of course the existence of a military power resting on force, so vagrant,
so centralized, so necessarily heedless of the individual, is an inherent
threat
to liberty. But I would not lead people to rely on this Court for a review that
seems to me wholly delusive. The military reasonableness of these orders can
only be determined by military superiors. If the people ever let command
of
the war power fall into irresponsible and unscrupulous hands, the courts
wield no power equal to its restraint. The chief restraint upon those who
command the physical forces of the country, in the future as in the past, must
be their responsibility to the political judgments of their contemporaries and
to the moral judgments-of history.
My duties as a justice as I see them do not require me to make a mili-
tary judgment as to whether General DeWitt’s evacuation and detention
program was a reasonable military necessity. I do not suggest that the courts
should have attempted to interfere with the Army in carrying out its task.
But I do not think they may be asked to execute a military expedient that
has no place in law under the Constitution. I would reverse the judgment
and discharge the prisoner.

Rasul v. Bush
$42 USS. 466, 124 S.CT. 2686 (2004)

On September 11, 2001, al Qaeda terrorists hijacked four airliners and

used them as missiles to attack the World Trade Center in New York
and the Pentagon in Virginia, killing approximately 3,000 people and
destroying hundreds of millions of dollars of property. In response,
Congress passed a joint resolution, Authorization for Use of Military
Force (AUMF), authorizing the president to use “all necessary and ap-
propriate force against those nations, organizations, or persons he deter-
mines planned, authorized, committed, or aided the terrorist attacks ...
or harbored such organizations or persons.” Pursuant to that authoriza-
tion, President George W. Bush sent forces into Afghanistan to fight al
Qaeda and the Taliban regime that supported it.
Subsequently, two Australian citizens and twelve Kuwaiti citizens
who were captured in Afghanistan and held at the U.S. naval base at
-Guantanamo Bay, Cuba, filed petitions for writ of habeas corpus, seeking
access to counsel, release from custody, and review by an independent
tribunal or federal court. The naval base is occupied by the United States
pursuant.to a: 1903 Lease Agreement executed with Cuba in the after-
math of the Spanish-American War. Under the agreement, “the United
States recognizes the continuance of the ultimate sovereignty of the Re-
296 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

public of Cuba over the [leased areas],” while “the Republic of Cuba
consents that during the period of the occupation by the United States
__ the United States shall exercise complete jurisdiction and control
over and within said areas.’ The federal district court for the District of
Columbia dismissed their petitions on the ground that it lacked jurisdic-
tion, since in Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held
that “aliens detained outside the sovereign territory of the United States
[may not] invok[e] a petition for a writ of habeas corpus.’ The Court of
Appeals for the District of Columbia Circuit affirmed and an appeal
was made to the Supreme Court, which granted review.
The appellate court’s decision was reversed by a vote of six to
three. Justice Stevens delivered the opinion of the Court. Justice
Kennedy filed a concurring opinion. Justice Scalia filed a dissenting
opinion, which Chief Justice Rehnquist and Justice Thomas joined.

Justice STEVENS delivered the opinion of the Court.

Congress has granted federal district courts, “within their respective ju-
risdictions,” the authority to hear applications for habeas corpus by any person
who claims to be held “in custody in violation of the Constitution or laws or
treaties of the United States.” [U.S. Code, Section 2241 (a).] The statute
traces its ancestry to the first grant of federal court jurisdiction: Section 14 of
the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas
corpus to prisoners “in custody, under or by colour of the authority of the
United States, or committed for trial before some court of the same.” In
1867, Congress extended the protections of the writ to “all cases where any
person may be restrained of his or her liberty in violation of the constitu-
tion, or of any treaty or law of the United States.”
Habeas corpus is, however, “a writ antecedent to statute, . . . throwing its
root deep into the genius of our common law.’ The writ appeared in En-
glish law several centuries ago, became “an integral part of our common-law
heritage” by the time the Colonies achieved independence, and received ex-
plicit recognition in the Constitution, which forbids suspension of “[t]he
Privilege of the Writ of Habeas Corpus . . . unless when in Cases of Rebellion
or Invasion the public Safety may require it,” Art. I, Sec. 9, cl.2....
Consistent with the historic purpose of the writ, this Court has recog-
nized the federal courts’ power to review applications for habeas relief in a
wide variety of cases involving Executive detention, in wartime as well as in
times of peace. The Court has, for example, entertained the habeas petitions
of an American citizen who plotted an attack on military installations during
the Civil War, Ex parte Milligan, 4 Wall. 2 (1866), and of admitted enemy
aliens convicted of war crimes during a declared war and held in the United
States, Ex parte Quirin, 317 U.S. 1 (1942), and its insular possessions, In re Ya-
mashita, 327 U.S. 1 (1946).
The question now before us is whether the habeas statute confers a right
to judicial review of the legality of Executive detention of aliens in a terri-
tory over which the United States exercises plenary and exclusive jurisdic-
tion, but not “ultimate sovereignty.”
 D | War-Making and Emergency Powers | 207

Respondents’ primary submission is that the answer to the jurisdictional

question is controlled by our decision in Eisentrager. In that case, we held
that
a Federal District Court lacked authority to issue a writ of habeas corpus to
21
German citizens who had been captured by USS. forces in China, tried and
convicted of war crimes by an American military commission headquartered
in Nanking, and incarcerated in the Landsberg Prison in occupied Germany.
The Court of Appeals in Eisentrager had found Jurisdiction, reasoning that
“any person who is deprived of his liberty by officials of the United States,
acting under purported authority of that Government, and who can show
that his confinement is in violation ofa prohibition of the Constitution, has
a right to the writ.” In reversing that determination, this Court summarized
the six critical facts in the case: “We are here confronted with a decision
whose basic premise is that these prisoners are entitled, as a constitutional
right, to sue in some court of the United States for a writ of habeas corpus. To
support that assumption we must hold that a prisoner of our military au-
thorities is constitutionally entitled to the writ, even though he (a) is an en-
emy alien; (b) has never been or resided in the United States: (c) was
captured outside of our territory and there held in military custody as a pris-
oner of war; (d) was tried and convicted by a Military Commission sitting
outside the United States; (e) for offenses against laws of war committed out-
side the United States; (f) and is at all times imprisoned outside the United
States.” On this set of facts, the Court concluded, “no right to the writ of
habeas corpus appears.”
Petitioners in these cases differ from the Eisentrager detainees in impor-
tant respects: They are not nationals of countries at war with the United
States, and they deny that they have engaged in or plotted acts of ageression
against the United States; they have never been afforded access to any tribu-
nal, much less charged with and convicted of wrongdoing; and for more than
two years they have been imprisoned in territory over which the United
States exercises exclusive jurisdiction and control.
Not only are petitioners differently situated from the Fisentrager de-
tainees, but the Court in Eisentrager made quite clear that all six of the facts
critical to its disposition were relevant only to the question of the prisoners’
constitutional entitlement to habeas corpus. The Court had far less to say on
the question of the petitioners’ statutory entitlement to habeas review. Its
only statement on the subject was a passing reference to the absence of statu-
tory authorization: “Nothing in the text of the Constitution extends such a
right, nor does anything in our statutes.” . . .
Because subsequent decisions of this Court have filled the statutory gap
that had occasioned Eisentrager’s resort to “fundamentals,” persons detained
outside the territorial jurisdiction of any federal district court no longer need
rely on the Constitution as the source of their right to federal habeas
review. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973),
. this Court held that the prisoner’s presence within the territorial jurisdiction
of the district court is not “an invariable prerequisite” to the exercise of
district court jurisdiction under the federal habeas statute. Rather, because “the
writ of habeas corpus does not act upon the prisoner who seeks relief, but
upon thé verson who holds him in what is alleged to be unlawful custody,” a
district court acts “within [its] respective jurisdiction” within the meaning of
Sec. 2241 as long as “the custodian can be reached by service of process.”. . .
 298 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS
oN ee

Because Braden overruled the statutory predicate to Eisentrager’s holding,

Eisentrager plainly does not preclude the exercise of Sec. 2241 jurisdiction
over petitioners’ claims. . . .
Application of the habeas statute to persons detained at the base is con-
sistent with the historical reach of the writ of habeas corpus. At common law,
courts exercised habeas jurisdiction over the claims of aliens detained within
sovereign territory of the realm, as well as the claims of persons detained in
the so-called “exempt jurisdictions,” where ordinary writs did not run, and
all other dominions under the sovereign’s control. As Lord Mansfield wrote
in 1759, even if a territory was “no part of the realm,” there was “no doubt”
as to the court’s power to issue writs of habeas corpus if the territory was “un-
der the subjection of the Crown.” King v. Cowle, 2 Burr. 834, 97 Eng. Rep.
587 (K. B.). Later cases confirmed that the reach of the writ depended not
on formal notions of territorial sovereignty, but rather on the practical ques-
tion of “the exact extent and nature of the jurisdiction or dominion exer-
cised in fact by the Crown.” Ex parte Mwenya, [1960] 1 Q. B. 241 (C. A.)
(Lord Evershed, M. R.).
In the end, the answer to the question presented is clear. Petitioners
contend that they are being held in federal custody in violation of the laws
of the United States. No party questions the District Court’s jurisdiction
over petitioners’ custodians. Section 2241, by its terms, requires nothing
more. We therefore hold that Sec. 2241 confers on the District Court juris-
diction to hear petitioners’ habeas corpus challenges to the legality of their de-
tention at the Guantanamo Bay Naval Base... .
Whether and what further proceedings may become necessary after re-
spondents make their response to the merits of petitioners’ claims are mat-
ters that we need not address now. What is presently at stake is only whether
the federal courts have jurisdiction to determine the legality of the Execu-
tive’s potentially indefinite detention of individuals who claim to be wholly
innocent of wrongdoing. Answering that question in the affirmative, we re-
verse the judgment of the Court of Appeals and remand for the District
Court to consider in the first instance the merits of petitioners’ claims. It 1s
so ordered.

Justice KENNEDY, concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have

jurisdiction to consider challenges to the legality of the detention of foreign
nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the
same conclusion, my analysis follows a different course. .. . In my view, the
correct course is to follow the framework of Eisentrager.
Eisentrager considered the scope of the right to petition for a writ of
habeas corpus against the backdrop of the constitutional command of the sep-
aration of powers. ...The Court began by noting the “ascending scale of
rights” that courts have recognized for individuals depending on their con-
nection to the United States. Citizenship provides a longstanding basis for
jurisdiction, the Court noted, and among aliens physical presence within the
United States also “gave the Judiciary power to act.” This contrasted with the
“essential pattern for seasonable Executive constraint of enemy aliens.” .. .
Because the prisoners in Eisentrager were proven enemy aliens found and de-
tained outside the United States, and because the existence of jurisdiction
 D | War-Making and Emergency Powers | 299

would have had a clear harmful effect on the Nation’s military affairs, the
matter was appropriately left to the Executive Branch and there was no
jurisdiction for the courts to hear the prisoner’s claims.
The decision in Eisentrager indicates that there is a realm of political au-
thority over military affairs where the judicial power may not enter. The ex-
istence of this realm acknowledges the power of the President as
Commander in Chief, and the joint role of the President and the Congress
in the conduct of military affairs. A faithful application of Eisentrager, then,
requires an initial inquiry into the general circumstances of the detention to
determine whether the Court has the authority to entertain the petition and
to grant relief after considering all of the facts presented. A necessary corol-
lary of Eisentrager is that there are circumstances in which the courts maintain
the power and the responsibility to protect persons from unlawful detention
even where military affairs‘are implicated.
The facts here are distinguishable from those in Eisentrager in two criti-
cal ways, leading to the conclusion that a federal court may entertain the pe-
titions. First, Guantanamo Bay is in every practical respect a United States
territory, and it is one far removed from any hostilities. . . .
The second critical set of facts is that the detainees at Guantanamo Bay
are being held indefinitely, and without benefit of any legal proceeding to
determine their status. In Eisentrager, the prisoners were tried and convicted
by a military commission of violating the laws of war and were sentenced to
prison terms. Having already been subject to procedures establishing their
status, they could not justify “a limited opening of our courts” to show that
they were “of friendly personal disposition” and not enemy aliens. Indefinite
detention without trial or other proceeding presents altogether different
considerations. . . .
In light of the status of Guantanamo Bay and the indefinite pretrial de-
tention of the detainees, I would hold that federal-court jurisdiction is per-
mutted in these cases. This approach would avoid creating automatic statutory
authority to adjudicate the claims of persons located outside the United
States, and remains true to the reasoning of Eisentrager. For these reasons, I
concur in the judgment of the Court.

Justice SCALIA, with whom THE CHIEF JUSTICE and Justice

THOMAS join, dissenting.
The Court today holds that the habeas statute, [Section] 2241 extends to
aliens detained by the United States military overseas, outside the sovereign
borders of the United States and beyond the territorial jurisdictions of all its
courts. This is not only a novel holding; it contradicts a half-century-old
precedent on which the military undoubtedly relied, Johnson v. Eisentrager,
339 US. 763 (1950). The Court’s contention that Eisentrager was somehow
negated by Braden v. 30th Judicial Circuit of Ky., 410 U.S. 484 (1973)—a deci-
sion that dealt with a different issue and did not so much as mention Eisen-
trager—is implausible in the extreme. This is an irresponsible overturning of
settled law in a matter of extreme importance to our forces currently in the
field. I would leave it to Congress to change Sec. 2241, and dissent from the
Court’s unprecendented holding. .. .
300 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS ae
Ne SE

“Enemy combatants” held in Guantanamo Bay, Cuba. (Ron Sachs/CNP/

Corbis)

Hamdi v. Rumsfeld
542 USS. 507, 124 S.CT. 2633 (2004)

One week after the Al Qaeda terrorist attacks on September 11, 2001,
Congress passed a resolution, Authorization for Use of Military Force
(AUMB), authorizing the president to “use all necessary and appropri-
ate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks” or “har-
bored such organizations or persons, in order to prevent future acts of
international terrorism.” Shortly thereafter President George W. Bush
ordered forces into Afghanistan.
Yaser Esam Hamdi, an American citizen born in Louisiana in
1980, moved with his family to Saudi Arabia as a child. At some point
in 2001, he was seized by members of the Northern Alliance in
Afghanistan and turned over to the U.S. military. The government
initially detained and interrogated Hamdi in Afghanistan and then
transferred him to the U.S. naval base in Guantanamo Bay, Cuba, in
January 2002. Subsequently, upon learning that Hamdi is a USS. citi-
zen, the government transferred him to a naval brig in Norfolk, Vir-
ginia, where he remained until transferred to a brig in Charleston,
South Carolina. '
The government designated Hamdi an “enemy combatant” and
 D | War-Making and Emergency Powers | 301

claimed that that justified holding him indefinitely, without formal

charges. In June 2002, Hamdi’s father, Esam Fouad Hamdi, filed a peti-
tion for a writ of habeas corpus in a federal district court. Hamdi claimed
that the government held his son illegally and denied him, a US. citi-
zen, the full protections of the Constitution, including access to an im-
partial tribunal and the assistance of counsel.
The district court appointed a public defender as counsel for
Hamdi and ordered his access to Hamdi. The government appealed and
the U.S. Court of Appeals for the Fourth Circuit reversed, holding that
the district court failed to extend’appropriate deference to the govern-
ment’s security and intelligence interests. It directed the district court
to conduct a deferential: inquiry into Hamdi’s status. On remand, the
government filed a motion to dismiss the petition and attached in re-
sponse a declaration from Michael Mobbs, a Special Advisor to the Un-
der Secretary of Defense for Policy. The Mobbs declaration set forth the
sole evidentiary support for Hamdi’s detention. It stated that Hamdi
“traveled to Afghanistan” in July or August 2001, and he became “affili-
ated with a Taliban military unit and received weapons training.” It as-
serted that Hamdi “remained with his Taliban unit following the attacks
of September 11” and that during the time the Northern Alliance forces
were “engaged in battle with the Taliban,’ “Hamdi’s Taliban unit surren-
9966

dered” to those forces, after which he “surrender[ed] his Kalashnikov as-

sault rifle” to them. The declaration also stated that because al Qaeda
and the Taliban “were and are hostile forces engaged in armed conflict
with the armed forces of the United States,’ “individuals associated
with” those groups “were and continue to be enemy combatants.”
Mobbs stated that Hamdi was labeled an enemy combatant “[b]ased
upon his interviews and in light of his association with the Taliban.” Ac-
cording to the declaration, a series of “U.S. military screening team|[s]”
determined that Hamdi met “the criteria for enemy combatants.”
After the government submitted this declaration, the Fourth Cir-
cuit directed the district court to proceed in accordance with its earlier
ruling and to “ ‘consider the sufficiency of the Mobbs Declaration as an
independent matter before proceeding further?” The district court
found the Mobbs declaration to fall “far short” of supporting Hamdi’s
detention and criticized the hearsay nature of the affidavit, calling it
“little more than the government’s ‘say-so. ” It ordered the government
-to turn over copies of all of Hamdi’s statements and the notes taken
from interviews with him; alist of all interrogators who had questioned
Hamdi and their names and addresses; statements by members of the
Northern Alhance regarding Hamdi’s surrender and capture; a list of
the dates and locations of his capture and subsequent detentions; and
the names and titles of government officials who made the determina-
302 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

tions that Hamdi was an enemy combatant. They stated that all of these
materials were necessary for “meaningful judicial review” of Hamdi's
detention and to satisfy the due process clause of the Constitution.
The government appealed the production order, and the district
court certified the question of whether the Mobbs Declaration,
“ “standing alone, is sufficient as a matter of law to allow meaningful ju-
dicial review of [Hamdi’s] classification as an enemy combatant. ” The
Fourth Circuit reversed, stressing that because it was “undisputed that
Hamdi was captured in a zone of active combat in a foreign theater of
conflict,” no factual inquiry or evidentiary hearing allowing Hamdi to
be heard or to rebut the Government’s assertions was necessary or
proper. The court held that the Mobbs Declaration, “if accurate,” pro-
vided a sufficient basis upon which to conclude that the president had
constitutionally detained Hamdi pursuant to the president’s war pow-
ers. Hamdi’s attorney appealed that decision to the Supreme Court,
which granted review.
The appellate court’s decision was vacated and remanded. Justice
O’Connor delivered the opinion for the Court, which Chief Justice
Rehnquist and Justices Kennedy and Breyer joined. By a five-to-four
vote the Court held that the president was authorized to declare U.S.
citizens enemy combatants and to detain them, with Justices Stevens,
Scalia, Souter, and Ginsburg dissenting. By a six-to-three vote the
Court held that Hamdi nonetheless had a constitutional right to con-
sult an attorney and to contest the basis for his detention before an in-
dependent tribunal. Justice Souter filed an opinion in part concurring
and dissenting, which Justice Ginsburg joined. Justice Thomas filed a
dissenting opinion. Justice Scalia, joined by Justice Stevens, also fileda
dissenting opinion.

Justice O'CONNOR announced the judgment of the Court and delivered

an opinion, in which THE CHIEF JUSTICE, Justice KENNEDY, and Jus-
tice BREYER join.
We hold that although Congress authorized the detention of combat-
ants in the narrow circumstances alleged here, due process demands that a
citizen held in the United States as an enemy combatant be given a mean-
ingful opportunity to contest the factual basis for that detention before a
neutral decisionmaker. .. .
The threshold question before us is whether the Executive has the au-
thority 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
“ ‘part of or supporting forces hostile to the United States or coalition part-
 D | War-Making and Emergency Powers | 303

ners’”” in Afghanistan and who “ ‘engaged 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 pur-
suant 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’ alternative position, that Congress has in fact authorized
Hamdi’ detention, through the AUMEF
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. Sec. 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
Sec. 4001 (a) in 1971 as part ofa bill to repeal the Emergency Detention Act
of 1950, 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 Sec.
4001(a), in light of its legislative history and its location in Title 18, applies
only to “the control of civilian prisons and related detentions,” not to mili-
tary detentions. Second, it maintains that Sec. 4001(a) is satisfied, because
Hamdi is being detained “pursuant to an Act of Congress’—the AUME
Again, because we conclude that the Government’ second assertion is cor-
rect, we do not address the first. In other words, we conclude that the AUMEF
is explicit congressional authorization for the detention of individuals in the
narrow category we describe (assuming, without deciding, that such author-
ization is required), and that the AUMF satisfied Sec. 4001(a)’s requirement
that a detention be “pursuant to an Act of Congress” (assuming, without de-
ciding, that Sec. 4001 (a) applies to military detentions).
The AUMF authorizes the President to use “all necessary and appropri-
ate 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 re-
sponsible for those attacks, are individuals Congress sought to target in pass-
ing the AUME We conclude that detention of individuals falling into the
limited category we are considering, for the duration of the particular con-
flict in which they were captured, is so fundamental and accepted an incident
to war as to bean exercise of the “necessary and appropriate force” Congress
has authorized the President to use.
The capture and detention of lawful combatants and the capture, deten-
_ tion, and trial of unlawful combatants, by “universal agreement and practice,”
are “important incident[s] of war.” Ex parte Quirin, 317 U.S. [1 (1942)]. 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 en-
emy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a
naturalized United States citizen. We held that “[c]itizens who associate
304 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS

themselves with the military arm of the enemy government, and with its aid,
guidance and direction enter this country bent on hostile acts, are enemy
belligerents within the meaning of. . . the law of war.” 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 aline 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 combat-
ant’s return to the battlefield is a fundamental incident of waging war, in per-
mitting the use of “necessary and appropriate force,’ Congress has clearly
and unmistakably authorized detention in the narrow circumstances consid-
ered here.
Hamdi objects, nevertheless, that Congress has not authorized the in-
definite detention to which he is now subject. ...
It is a clearly established principle of the law of war that detention may
last no longer than active hostilities. See Article 118 of the Geneva Conven-
tion (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955]
6 US. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released
and repatriated without delay after the cessation of active hostilities”)... .
Hamdi contends that the AUMF does not authorize indefinite or per-
petual detention. Certainly, we agree that indefinite detention for the pur-
pose 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 le-
gitimately 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, 4 Wall. 2 (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 pris-
oner 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 as-
sisting Confederate soldiers by carrying a rifle against Union troops on a
Confederate battlefield, the holding of the Court might well have been dif-
ferent. The Court’s repeated explanations that Milligan was not a prisoner of
war suggest that had these different circumstances been present he could
 D | War-Making and Emergency Powers | 305

have been detained under military authority for the duration of the conflict,
whether or not he was a citizen... .
Even in cases in which the detention of enemy combatants is legally au-
thorized, there remains the question of what process is constitutionally due
to a citizen who disputes his enemy-combatant status. ... 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.
All agree that, absent suspension, the writ of habeas corpus remains avail-
able to every individual detained within the United States. U.S. Const.,
Art. I, Sec. 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety
may require it”). Only in the rarest of circumstances has Congress seen fit to
suspend the writ. At all other times, it has remained acritical 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. Sec. 2241. Further, all agree that Sec. 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, Sec. 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 Sec. 2246 allows
the taking of evidence in habeas proceedings by deposition, affidavit, or inter-
rogatories.
The simple outline of Sec. 2241 makes clear both that Congress en-
visioned 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 rec-
ognizes 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 Dec-
laration to the habeas court completed the required factual development. .. .
In response, Hamdi emphasizes that this Court consistently has recog-
nized 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. See, e.g., Zadvydas v. Davis,
533 U.S. 678 (2001); Addington v. Texas, 441 U.S. 418 (1979).
Both of these positions highlight legitimate concerns. And both empha-
size the tension that often exists between the autonomy that the Govern-
ment 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 ofa con-
stitutional right. The ordinary mechanism that we use for balancing such se-
‘rious 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. El-
dridge, 424 US. 319 (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,
306 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS
ee

“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 circum-
stances 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,” Jones v. United States, 463 U.S. 354
(1983), and at this stage in the Mathews calculus, we consider the interest of
the erroneously detained individual. Moreover, as critical as the Govern-
ment’s interest may be in detaining those who actually pose an immediate
threat to the national security of the United States during ongoing inter-
national conflict, history and common sense teach us that an unchecked sys-
tem of detention carries the potential to become a means for oppression and
abuse of others who do not present that sort of threat. We reaffirm today the
fundamental nature of a citizen’s right to be free from involuntary confine-
ment by his own government without due process of law, and we weigh the
opposing governmental interests against the curtailment of liberty that such
confinement entails.
On the other side of the scale are the weighty and sensitive governmen-
tal 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. As discussed
above, the law of war and the realities of combat may render such detentions
both necessary and appropriate, and our due process analysis need not blink
at those realities. 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... .
With due recognition of these competing concerns, we believe that nei-
ther the process proposed by the Government nor the process apparently en-
visioned 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. That is, “the risk of erroneous deprivation” of a detainee’s
liberty interest is unacceptably high under the Government’s proposed rule,
while some of the “additional or substitute procedural safeguards” suggested
by the District Court are unwarranted.in light of their limited “probable
value” and the burdens they may impose on the military in such cases.
We therefore hold that a citizen-detainee seeking to challenge his classi-
fication as an enemy combatant must receive notice of the factual basis for
his classification, and a fair opportunity to rebut the Government’s factual as-
sertions before a neutral decisionmaker. These essential constitutional prom-
ises 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 tai-
lored to alleviate their uncommon potential to burden the Executive at a
 D | War-Making and Emergency Powers | 307

time of ongoing military conflict. Hearsay, for example, may need to be ac-
cepted as the most reliable available evidence from the Government in such
a proceeding. Likewise, the Constitution would not be offended by a pre-
sumption 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 pe-
titioner meets the enemy-combatant criteria, the onus could shift to the pe-
titioner 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 mfeaningful 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... .
In sum, while the full protections that accompany challenges to de-
tentions in other settings may prove unworkable and inappropriate in the
enemy-combatant setting, the threats to military operations posed by a basic
system of independent review are not so weighty as to trump a citizen’s core
rights to challenge meaningfully the Government’s case and to be heard by
an impartial adjudicator.
In so holding, we necessarily reject the Government’s assertion that sep-
aration of powers principles mandate a heavily circumscribed role for the
courts in such circumstances. ...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. Whatever power the United States Constitution en-
visions 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. Likewise, we have made
clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus
allows the Judicial Branch to play a necessary role in maintaining this delicate
balance of governance, serving as an important judicial check on the Execu-
-tive’s discretion in the realm of detentions. 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 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 citi-
zen detained as an enemy combatant is entitled to this process.
Because we conclude that due process demands some system for a citi-
zen detainee to refute his classification, the proposed “some evidence” stan-
dard is inadequate. Any process in which the Executive’s factual assertions go
wholly unchallenged or are simply presumed correct without any opportu-
nity for the alleged combatant to demonstrate otherwise falls constitutionally
short. As the Government itself has recognized, we have utilized the “some
evidence” standard in the past as a standard of review, not as a standard of
proof. Tnat is, it primarily has been employed by courts in examining an ad-
ministrative record developed after an adversarial proceeding—one with
308 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS

process at least of the sort that we today hold is constitutionally mandated in

the citizen enemy-combatant setting. This standard therefore is ill suited to
the situation in which a habeas petitioner has received no prior proceedings
before any tribunal and had no prior opportunity to rebut the Executive's
factual assertions before a neutral decisionmaker. . . .
There remains the possibility that the standards we have articulated
could be met by an appropriately authorized and properly constituted mili-
tary 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 en-
emy combatant must itself ensure that the minimum requirements of due
process are achieved. ... |
Hamdi asks us to hold that the Fourth Circuit also erred by denying
him immediate access to counsel upon his detention and by disposing of the
case without permitting him to meet with an attorney. Since our grant of
certiorari in this case, Hamdi has been appointed counsel, with whom he has
met for consultation purposes on several occasions, and with whom he is
now being granted unmonitored meetings. He unquestionably has the right
to access to counsel in connection with the proceedings on remand. No fur-
ther consideration of this issue is necessary at this stage of the case.
The judgment of the United States Court of Appeals for the Fourth
Circuit is vacated, and the case is remanded for further proceedings.

Justice SOUTER, with whom Justice GINSBURG joins, concurring in

part, dissenting in part, and concurring in the judgment.
The plurality rejects [the Bush administration’s position on the limita-
tions of] the exercise of habeas jurisdiction and so far I agree with its opin-
ion. The plurality does, however, accept the Government’s position that if
Hamdi’s designation as an enemy combatant is correct, his detention (at least
as to some period) is authorized by an Act of Congress as required by Sec.
4001 (a), that is, by the Authorization for Use of Military Force. Here, I dis-
agree and respectfully dissent. The Government has failed to demonstrate
that the Force Resolution authorizes the detention complained of here even
on the facts the Government claims. If the Government raises nothing fur-
ther than the record now shows, the Non-Detention Act entitles Hamdi to
be'releasediin.
The threshold issue is how broadly or narrowly to read the Non-
Detention Act, the tone of which is severe: “No citizen shall be imprisoned
or otherwise detained by the United States except pursuant to an Act of
Congress.” Should the severity of the Act be relieved when the Govern-
ment’s stated factual justification for incommunicado detention is a war on
terrorism, so that the Government may be said to act “pursuant” to congres-
sional terms that fall short of explicit authority to imprison individuals? With
one possible though important qualification, the answer has to be no. For a
number of reasons, the prohibition within Sec. 4001 (a) has to be read broadly
to accord the statute a long reach and to impose a burden of justification o
the Government.
 D | War-Making and Emergency Powers | 309

First, the circumstances in which the Act was adopted point the way to
this interpretation. The provision superseded a cold-war statute, the Emer-
gency Detention Act of 1950, which had authorized the Attorney General,
in time of emergency, to detain anyone reasonably thought likely to engage
in espionage or sabotage. That statute was repealed in 1971 out of fear that it
could authorize a repetition of the World War II internment of citizens
of Japanese ancestry; Congress meant to preclude another episode like the
one described in Korematsu v. United States, 323 U.S. 214 (1944)... .The
fact that Congress intended to guard against a repetition of the World War II
internments when it repealed the 1950 statute and gave us Sec. 4001(a)
provides a powerful reason to think that Sec. 4001(a) was meant to re-
quire clear congressional authorization before any citizen can be placed in a
Gellixi x:
Second, when Congress passed Sec. 4001(a) it was acting in light of an
interpretive regime that subjected enactments limiting liberty in wartime to
the requirement of a clear statemént and it presumably intended Sec. 4001(a)
to be read accordingly. This need for clarity was unmistakably expressed in
Ex parte Endo, [323 U.S.'283 (1944)], decided the same day as Korematsu.
Endo began with a petition for habeas corpus by an interned citizen claiming
to be loyal and law-abiding and thus “unlawfully detained.” The petitioner
was held entitled to habeas relief in an opinion that set out this principle for
scrutinizing wartime statutes in derogation of customary liberty: “In inter-
preting a wartime measure we must assume that [its] purpose was to allow
for the greatest possible accommodation between . . liberties and the exi-
gencies of war. We must assume, when asked to find implied powers in a
grant of legislative or executive authority, that the law makers intended to
place no greater restraint on the citizen than was clearly and unmistakably
indicated by the language they used.” Congress’s understanding of the need
for clear authority before citizens are kept detained is itself therefore clear,
and Sec. 4001(a) must be read to have teeth in its demand for congressional
authorization.
Finally, even if history had spared us the cautionary example of the
internments in World War II, even if there had been no Korematsu, and Endo
had set out no principle of statutory interpretation, there would be a com-
pelling reason to read Sec. 4001(a) to demand manifest authority to detain
before detention is authorized. The defining character of American constitu-
tional government is its constant tension between security and liberty, serv-
ing both by partial helpings of each... .A reasonable balance is more likely
to be reached on the judgment of a different branch, just as Madison said in
remarking that “the constant aim is to divide and arrange the several offices
in such a manner as that each may be a check on the other—that the private
interest of every individual may be asentinel over the public rights.” The
Federalist No. 51. Hence the need for an assessment by Congress before citi-
zens are subject to lockup, and likewise the need for a clearly expressed con-
gressional resolution of the competing claims.
Under this principle of reading Sec. 4001(a) robustly to require a clear
statement of authorization to detain, none of the Government’s arguments
suffices to justify Hamdi’s detention. ...
Because I find Hamdi’s detention forbidden by Sec. 4001(a) and un-
authorized by the Force Resolution, I would not reach any questions of
310 PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

what process he may be due in litigating disputed issues in a proceeding un-

der the habeas statute or prior to the habeas enquiry itself. For me, it suffices
that the Government has failed to justify holding him in the absence of a
further Act of Congress, criminal charges, a showing that the detention con-
forms to the laws of war, or a demonstration that Sec. 4001 (a) is unconstitu-
tional. I would therefore vacate the judgment of the Court of Appeals and
remand for proceedings consistent with this view. . . .

Justice THOMAS, dissenting.

The Executive Branch, acting pursuant to the powers vested in the Pres-
ident by the Constitution and with explicit congressional approval, has de-
termined 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 re-
mand the case. The plurality reaches a contrary conclusion by failing ade-
quately 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, 424 U.S. 319 (1976). 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 ifI were to agree with
the general approach the plurality takes, 1 could not accept the particulars.
The plurality utterly fails to account for the Government’s compelling inter-
ests and for our own institutional inability to weigh competing concerns
correctly. I respectfully dissent... .
The Founders intended that the President have primary responsibility—
along with the necessary power—to protect the national security and to
conduct the Nation’s foreign relations. They did so principally because the
structural advantages of a unitary Executive are essential in these domains.
‘Energy in the executive is a leading character in the definition of good
government. It is essential to the protection of the community against for-
eign attacks.” The Federalist No. 70 (A. Hamilton). The principal “ingre-
dien[t]” for “energy in the executive” is “unity.” This is because “[d]ecision,
activity, secrecy, and dispatch will generally characterise the proceedings of
one man, in a much more eminent degree, than the proceedings of any
greater number.”
These structural advantages are most important in the national-security
and foreign-affairs contexts. To this end, the Constitution vests in the Presi-
dent “[t]he executive Power,” Art. II, Sec. 1, provides that he “shall be Com-
mander in Chief of the” armed forces, Sec. 2, and places in him the power to
recognize foreign governments, Sec. 3.
This Court has long recognized these features and has accordingly held
that the President has constitutional authority to protect the national secu-
rity and that this authority carries with it broad discretion. . . .
For these institutional reasons and because “Congress cannot anticipate
and legislate with regard to every possible action the President may find it
necessary to take or every possible situation in which he might act,” it should
come as no surprise that “[s]uch failure of Congress . . . does not, ‘especially
 D | War-Making and Emergency Powers | 311

--. in the areas of foreign policy and national security; imply ‘congressional
disapproval’ of action taken by the Executive.’ Dames & Moore v. Regan, 453
US. 654 (1981)... «.
Undeniably, Hamdi has been deprived of a serious interest, one actually
protected by the Due Process Clause. Against this, however, is the Govern-
ment’s overriding interest in protecting the Nation. Ifa deprivation ofliberty
can be justified by the need to protect a town, the protection of the Nation,
a fortiori, justifies it... .

Justice SCALIA, with whom Justice STEVENS joins, dissenting.

Where the Government accuse$ a citizen of waging war against it, our
constitutional tradition has been to prosecute him in federal court for trea-
son or some other crime, Where the exigencies of war prevent that, the
Constitution’s Suspension Clause, Art. I, Sec. 9, cl. 2, allows Congress to relax
the usual protections temporarily. Absent suspension, however, the Execu-
tive’s assertion of military exigency has not been thought sufficient to permit
detention without charge.‘No one contends that the congressional Autho-
rization 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. .. .
The very core of liberty secured by our Anglo-Saxon system of sepa-
rated powers has been freedom from indefinite imprisonment at the will of
the Executive. Blackstone stated this principle clearly: “Of great importance
to the public is the preservation of this personal liberty: for if once it were
left in the power of any, the highest, magistrate to imprison arbitrarily
whomever he or his officers thought proper . .. there would soon be an end
of all other rights and immunities. ...To bereave a man of life, or by violence
to confiscate his estate, without accusation or trial, would be so gross and
notorious an act of despotism, as must at once convey the alarm of tyranny
throughout the whole kingdom. But confinement of the person, by secretly
hurrying him to gaol, where his sufferings are unknown or forgotten; is a less
public, a less striking, and therefore a more dangerous engine of arbitrary
government. ...”
The gist of the Due Process Clause, as understood at the founding and
since, was to force the Government to follow those common-law procedures
traditionally deemed necessary before depriving a person of life, liberty, or
property. When a citizen was deprived of liberty because of alleged criminal
conduct, those procedures typically required committal by a magistrate fol-
lowed by indictment and trial.
To be sure, certain types of permissible noncriminal detention—that is,
those not dependent upon the contention that the citizen had committed a
criminal act—did not require the protections of criminal procedure. How-
ever, these fell into a limited number of well-recognized exceptions—civil
“commitment of the mentally ill, for example, and temporary detention in
quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, 97 Eng.
Rep. 29 (H. L. 1758) (Wilmot, J.). It is unthinkable that the Executive could
render otherwise criminal grounds for detention noncriminal merely by dis-
claiming an intent to prosecute, or by asserting that it was incapacitating dan-
gerous offenders rather than punishing wrongdoing.
312 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN AFFAIRS
6

These due process rights have historically been vindicated by the writ of
habeas corpus. In England before the founding, the writ developed into a tool
for challenging executive confinement. It was not always effective. For exam-
ple, in Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627), King Charles I detained
without charge several individuals for failing to assist England’s war against
France and Spain. The prisoners sought writs of habeas corpus, arguing that
without specific charges, “imprisonment shall not continue on for a time, but
for ever; and the subjects of this kingdom may be restrained of their liberties
perpetuallyThe .’ Attorney General replied that the Crown’s interest in pro-
tecting the realm justified imprisonment in “a matter of state .. . not ripe nor
timely” for the ordinary process of accusation and trial. The court denied re-
lief, producing widespread outrage, and Parliament responded with the Peti-
tion of Right, accepted by the King in 1628, which expressly prohibited
imprisonment without formal charges. .. .
The writ of habeas corpus was preserved in the Constitution—the only
common-law writ to be explicitly mentioned. See Art. I, Sec. 9, cle 2aielanal=
ton lauded “the establishment of the writ of habeas corpus” in his Federalist de-
fense as a means to protect against “the practice of arbitrary imprisonments
.. in all ages, [one of] the favourite and most formidable instruments of
tyranny.” The Federalist No. 84. Indeed, availability of the writ under the new
Constitution (along with the requirement of trial by jury in criminal cases,
see Art. III, Sec. 2, cl. 3) was his basis for arguing that additional, explicit pro-
cedural protections were unnecessary. .. .
Justice O'CONNOR, writing for a plurality of this Court, asserts that
captured enemy combatants (other than those suspected of war crimes) have
traditionally been detained until the cessation of hostilities and then released.
That is probably an accurate description of wartime practice with respect to
enemy aliens. The tradition with respect to American citizens, however, has
been quite different. Citizens aiding the enemy have been treated as traitors
subject to the criminal process. .. .
The proposition that the Executive lacks indefinite wartime detention
authority over citizens is consistent with the Founders’ general mistrust of
military power permanently at the Executive's disposal. In the Founders’
view, the “blessings of liberty” were threatened by “those military establish-
ments which must gradually poison its very fountain.” The Federalist No. 45
(J. Madison). No fewer than 10 issues of the Federalist were devoted in whole
or part to allaying fears of oppression from the proposed Constitution’s au-
thorization of standing armies in peacetime. Many safeguards in the Consti-
tution reflect these concerns. Congress’s authority “[t]o raise and support
Armies” was hedged with the proviso that “no Appropriation of Money to
that Use shall be for a longer Term than two Years.” U.S. Const., Art. 1,
Sec. 8, cl. 12. Except for the actual command of military forces, all authoriza-
tion for their maintenance and all explicit authorization for their use is
placed in the control of Congress under Article I, rather than the President
under Article II....
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
 D | War-Making and Emergency Powers | 313

there is a world of difference between the people’s representatives’ determin-

ing the need for that suspension (and prescribing the conditions for it), and
this Court’s doing so... .
Several limitations give my views in this matter a relatively narrow com-
pass. They apply only to citizens, accused of being enemy combatants, who
are detained within the territorial jurisdiction of a federal court. This is not
likely to be a numerous group; currently we know of only two, Hamdi and
Jose Padilla. Where the citizen is captured outside and held outside the
United States, the constitutional requirements may be different. Cf. Johnson v.
Eisentrager, 339 U.S. 763 (1950); Rasul v. Bush (SCALIA, J., dissenting). More-
over, even within the United States, the accused citizen-enemy combatant
may lawfully be detained once prosécution is in progress or in contempla-
tion. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (brief de-
tention pending judicial determination after warrantless arrest); United States
v. Salerno, 481 U.S. 739 (1987) (pretrial detention under the Bail Reform
Act). The Government has been notably successful in securing conviction,
and hence long-term custody or execution, of those who have waged war
against the state... . :
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. Whatever the general merits of the view that war silences law or
modulates its voice, that view has no place in the interpretation and applica-
tion 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 Con-
stitution does not envision, I respectfully dissent.

Hamdan v. Rumsfeld
126 S.CT. 2749 (2006)

Salim Ahmed Hamdan, a Yemeni who served as a driver for Osama bin
Laden, was captured in 2001 in Afghanistan and transferred in 2002 to
the prison in Guantanamo Bay, Cuba. Over a year later, President
George W. Bush decided to try him by military commission for then-
unspecified crimes. In 2003, military counsel was appointed to repre-
sent Hamdan and that attorney filed demands for a speedy trial and for
the charges against Hamdan, according to the Uniform Code of Mili-
tary Justice (UCM). After another year passed, a legal authority for the
commission ruled against those demands. Subsequently, Hamdan was
charged with one count of conspiracy “to commit . . . offenses triable
by military commission.” In 2004, Hamdan filed a petition for a writ of
habeas corpus, challenging the admunistration’s use of a military com-
mission to try him on the charge of conspiracy. He conceded that a
court-martial constituted in accordance with the UCMJ would have
314 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS
we eS ee

authority to try him. But he contended the military commission lacked

authority for two principal reasons: first, neither a congressional act
nor the common law of war supported trial by such a commission for
the crime of conspiracy—an offense that is not a.violation of the law
of war. Second, the procedures of the military commission violate
basic tenets of military and international law, including the prin-
ciple that a defendant must be permitted to see and hear the evidence
against him.
A federal district court granted Hamdan’s request for a writ of
habeas corpus, but was reversed by the Court of Appeals for the District
of Columbia Circuit. Hamdan appealed and the Supreme Court
granted review.
The appellate court’s decision was reversed by a five-to-three vote
with Chief Justice Roberts not participating, because he had sat as a
then judge on the appellate court deciding the case. Justice Stevens an-
nounced the opinion for the Court and parts of his opinion were
joined by only a plurality—Justices Souter, Ginsburg, and Breyer. Jus-
tices Kennedy and Breyer filed concurring opinions. Justices Scalia,
Thomas, and Alito filed dissenting opinions.

(1 Justice STEVENS announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I through IV, Parts VI through VI-
D-iii, Part VI-D-v, and Part VII, and an opinion with respect to Parts V and
VI-D-iv, in which Justice SOUTER, Justice GINSBURG, and Justice
BREYER join.
For the reasons that follow, we conclude that the military commission
convened to try Hamdan lacks power to proceed because its structure and
procedures violate both the [Uniform Code of Military Justice] UCMJ and
the Geneva Conventions. Four of us also conclude that the offense [conspir-
acy] with which Hamdan has been charged is not an “offens[e] that by ...
the law of war may be tried by military commissions.”

a |

On September 11, 2001, agents of the al Qaeda terrorist organization hi-

jacked commercial airplanes and attacked the World Trade Center in New
York City and the national headquarters of the Department of Defense in
Arlington, Virginia. Americans will never forget the devastation wrought by
these acts. Nearly 3,000 civilians were killed.
Congress responded by adopting a Joint 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 ...in order to prevent any future acts of interna-
tional terrorism against the United States by such nations, organizations or
persons.” Authorization for Use of Military Force (AUMF). Acting pursuant
to the AUME and having determined that the Taliban regime had supported
 D | War-Making and Emergency Powers | 315

al Qaeda, the President ordered the Armed Forces of the United States to in-
vade Afghanistan. In the ensuing hostilities, hundreds of individuals, Hamdan
among them, were captured and eventually detained at Guantanamo Bay.
On November 13, 2001, while the United States was still engaged in ac-
tive combat with the Taliban, the President issued a comprehensive military or-
der intended to govern the “Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism.” Those subject to the November
13 Order include any noncitizen for whom the President determines “there is
reason to believe” that he or she (1) “is or was” a member of Al Qaeda or (2)
has engaged or participated in terrorist activities aimed at or harmful to the
United States. Any such individual “shall, when tried, be tried by military com-
mussion for any and all offenses triable by military commission that such indi-
vidual is alleged to have committed, and may be punished in accordance with
the penalties provided under applicable law, including imprisonment or death.”
[W]e granted certiorari to decide whether the military commission con-
vened to try Hamdan has authority to do so, and whether Hamdan may rely
on the Geneva Conventions in these proceedings.

m II
On February 13, 2006, the Government filed a motion to dismiss the writ of
certiorari. The ground cited for dismissal was the recently enacted Detainee
Treatment Act of 2005 (DTA). We postponed our ruling on that motion
pending argument on the merits, and now deny it... .
Subsection (e) of Section 1005, which is entitled “Judicial Review of
Detention of Enemy Combatants,” supplies the basis for the Government’s
Jurisdictional argument. The subsection contains three numbered paragraphs.
The first paragraph amends the judicial code as follows: “(1) In general—
Section 2241 of title 28, United States Code, is amended by adding at the
end the following: “(e) Except as provided in section 1005 of the Detainee
Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to
hear or consider—(1) an application for a writ of habeas corpus filed by or on
behalf of an alien detained by the Department of Defense at Guantanamo
Bay, Cuba; or (2) any other action against the United States or its agents re-
lating to any aspect of the detention by the Department of Defense of an
alien at Guantanamo Bay, Cuba, who—(A) is currently in military custody;
or (B) has been determined by the United States Court of Appeals for the
District of Columbia Circuit in accordance with the procedures set forth in
section 1005(e) of the Detainee Treatment Act of 2005 to have been properly
detained as an enemy combatant.’ ...
Paragraph (3) mirrors paragraph (2) in structure, but governs judicial re-
view of final decisions of military commissions, not [Combatant Status Re-
view Tribunals] CSRTs. It vests in the Court of Appeals for the District of
Columbia Circuit “exclusive jurisdiction to determine the validity of any fi-
. nal decision rendered pursuant to Military Commission Order No. 1, dated
August 31, 2005 (or any successor military order).” Review is as of right for
any alien sentenced to death or a term of imprisonment of 10 years or more,
but is at the Court of Appeals’ discretion in all other cases. The scope of re-
view is limited to the following inquiries: “(i) whether the final decision [of
the military commission] was consistent with the standards and procedures
specified in the military order referred to in subparagraph (A); and (ii) to the
316 | PRESIDENTIAL PowER, THE RULE OF LAW, AND FOREIGN AFFAIRS

extent the Constitution and laws of the United States are applicable, whether
the use of such standards and procedures to reach the final decision is consis-
tent with the Constitution and laws of the United States.”
Finally, Section 1005 contains an “effective date” provision, which reads
as follows: “(1) In general.—This section shall take effect on the date of the
enactment ofthis Act. (2) Review of Combatant Status Tribunal and Military
Commission Decisions.—Paragraphs (2) and (3) of subsection (e) shall apply
with respect to any claim whose review is governed by one of such para-
graphs and that is pending on or after the date of the enactment of this Act.”
The Act is silent about whether paragraph (1) of subsection (e) “shall apply”
to claims pending on the date of enactment.
The Government argues that [the DTA] had the immediate effect, upon
enactment, of repealing federal jurisdiction not just over detainee habeas ac-
tions yet to be filed but also over any such actions then pending in any fed-
eral court—including this Court. Accordingly, it argues, we lack jurisdiction
to review the Court of Appeals’ decision below... .
We find it unnecessary to reach either of these arguments. Ordinary
principles of statutory construction suffice to rebut the Government’s the-
ory—at least insofar as this case, which was pending at the time the DTA
was enacted, is concerned. ... [W]e deny the Government’s motion to dis-
THMASS= = oh:

a lV
The military commission, a tribunal neither mentioned in the Constitution
nor created by statute, was born of military necessity. . . .
Exigency alone, of course, will not justify the establishment and use of
penal tribunals not contemplated by Article I, Section 8 and Article III, Sec-
tion 1 of the Constitution unless some other part of that document author-
izes a response to the felt need. See Ex parte Milligan, 4 Wall. 2 (1866). And
that authority, if it exists, can derive only from the powers granted jointly to
the President and Congress in time of war.
The Constitution makes the President the “Commander in Chief” of
the Armed Forces, Art. I, Section 2, clause 1, but vests in Congress the pow-
ers to “declare War ... and make Rules concerning Captures on Land and
Water,’ Art. I, Section 8, clause 11, to “raise and support Armies,” to “define
and punish ... Offences against the Law of Nations,” and “To make Rules for
the Government and Regulation of the land and naval Forces.” .. .
[W]e held in [Ex parte] Quirin [317 U.S. 1 (1942)] that Congress had,
through Article of War 15, sanctioned the use of military commissions in
such circumstances. Article 21 of the UCM], the language of which is sub-
stantially identical to the old Article 15 and was preserved by Congress after
World War II, reads as follows: “Jurisdiction of courts-martial not exclusive.
The provisions of this code conferring jurisdiction upon courts-martial shall
not be construed as depriving military commissions, provost courts, or other
military tribunals of concurrent jurisdiction in respect of offenders or of-
fenses that by statute or by the law of war may be tried by such military
commissions, provost courts, or other military tribunals.”
We have no occasion to revisit Quirin’s controversial characterization of
Article of War 15 as congressional authorization for military commissions.
 D | War-Making and Emergency Powers | 317

Contrary to the Government’s assertion, however, even Quirin did not view
the authorization as a sweeping mandate for the President to “invoke mili-
tary commissions when he deems them necessary.” Rather, the Quirin Court
recognized that Congress had simply preserved what power, under the Con-
stitution and the common law of war, the President had had before 1916 to
convene military commissions—with the express condition that the Presi-
dent and those under his command comply with the law of war... . The
Government would have us dispense with the inquiry that the Quirin Court
undertook and find in either the AUMF or the DTA specific, overriding au-
thorization for the very commission that has been convened to try Hamdan.
Neither of these congressional Acts, however, expands the President’s author-
ity to convene military commissions. First, while we assume that the AUME
activated the President’s war powers, see Hamdi-v. Rumsfeld, 542 U.S. 507
(2004), and that those powers include the authority to convene military
commissions in appropriate circumstances, there is nothing in the text or
legislative history of the AUMF even hinting that Congress intended to ex-
pand or alter the authorization set forth in Article 21 of the UCM].
Likewise, the DTA cannot be read to authorize this commission. Al-
though the DTA, unlike either Article 21 or the AUME was enacted after
the President had convened Hamdan’s commission, it contains no language
authorizing that tribunal ....

eV

Quirin is the model the Government invokes most frequently to defend the
commission convened to try Hamdan. That is both appropriate and unsur-
prising. Since Guantanamo Bay is neither enemy-occupied territory nor un-
der martial law, the law-of-war commission is the only model available. At
the same time, no more robust model of executive power exists; Quirin rep-
resents the high-water mark of military power to try enemy combatants for
war crimes.
The classic treatise penned by Colonel William Winthrop, whom we have
called “the ‘Blackstone of Military Law, ” Reid v. Covert, 354 U.S. 1 (1957),
describes at least four preconditions for exercise of jurisdiction by a tribunal
of the type convened to try Hamdan. First, “[a] military commission, (except
where otherwise authorized by statute), can legally assume jurisdiction only
of offenses committed within the field of the command of the convening
commander.” The “field of command” in these circumstances means the “the-
atre of war.” Second, the offense charged “must have been committed within
the period of the war.” No jurisdiction exists to try offenses “committed ei-
ther before or after the war.” Third, a military commission not established
pursuant to martial law or an occupation may try only “[i]ndividuals of the
enemy's army who have been guilty of illegitimate warfare or other offences
in violation of the laws of war” and members of one’s own army “who, in
‘time of war, become chargeable with crimes or offences not cognizable, or
triable, by the criminal courts or under the Articles of war.” Finally, a law-of-
war commission has jurisdiction to try only two kinds of offense: “Violations
of the laws and usages of war cognizable by military tribunals only,’ and
“{b]reaches of military orders or regulations for which offenders are not
legally triable by court-martial under the Articles of war... .
318 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

The question is whether the preconditions designed to ensure that a

military necessity exists to justify the use of this extraordinary tribunal have
been satisfied here.
The charge against Hamdan alleges a conspiracy extending over a num-
ber ofyears, from 1996 to November 2001. All but two months of that more
than 5-year-long period preceded the attacks of September 11, 2001, and the
enactment of the AUMF—the Act of Congress on which the Government
relies for exercise of its war powers and thus for its authority to convene mil-
itary commissions. Neither the purported agreement with Osama bin Laden
and others to commit war crimes, nor a single overt act, is alleged to have
occurred in a theater of war or on any specified date after September 11,
2001. None of the overt acts that Hamdan is alleged to have committed vi-
olates the law of war.
These facts alone cast doubt on the legality of the charge and, hence, the
commission; the offense alleged must have been committed both in a theater
of war and during, not before, the relevant conflict... .
There is no suggestion that Congress has, in exercise of its constitutional
authority to “define and punish .. . Offences against the Law of Nations,”
US. Const., Art. I, Section 8, clause 10, positively identified “conspiracy” as a
war crime. As we explained in Quirin, that is not necessarily fatal to the Gov-
ernment’s claim of authority to try the alleged offense by military commis-
sion; Congress, through Article 21 of the UCMJ, has “incorporated by
reference” the common law of war, which may render triable by military
commission certain offenses not defined by statute. When, however, neither
the elements of the offense nor the range of permissible punishments is de-
fined by statute or treaty, the precedent must be plain and unambiguousTo .
demand any less would be to risk concentrating in military hands a degree of
adjudicative and punitive power in excess of that contemplated either by
statute or by the Constitution.
This high standard was met in Quirin; the violation there alleged was, by
“universal agreement and practice” both in this country and internationally,
recognized as an offense against the law of war. ...
At a minimum, the Government must make a substantial showing that
the crime for which it seeks to try a defendant by military commission is
acknowledged to be an offense against the law of war. That burden is far
from satisfied here. The crime of “conspiracy” has rarely if ever been tried as
such in this country by any law-of-war military commission not exercising
some other form of jurisdiction, and does not appear in either the Geneva
Conventions or the Hague Conventions—the major treaties on the law of
war. i:
The Government cites three sources that it says show otherwise. First, it
points out that the Nazi saboteurs in Quirin were charged with conspiracy.
Second, it observes that Winthrop at one point in his treatise identifies con-
spiracy as an offense “prosecuted by military commissions.” Finally, it notes
that another military historian lists conspiracy “ ‘to violate the laws of war by
destroying life or property in aid of the enemy’ ” as an offense that was tried
as a violation of the law of war during the Civil War. On close analysis, how-
ever, these sources at best lend little support to the Government’s position
and at worst undermine it. By any measure, they fail to satisfy the high stan-
dard of clarity required to justify the use of a military commission... .
 D | War-Making and Emergency Powers | 319

In sum, the sources that the Government and Justice THOMAS

rely
upon to show that conspiracy to violate the law ofwar is itselfa violation
of
the law of war in fact demonstrate quite the opposite. Far from making
the
requisite substantial showing, the Government has failed even to
offer a
“merely colorable” case for inclusion of conspiracy among those offenses
cognizable by law-of-war military commission. Because the charge does not
support the commission’s jurisdiction, the commission lacks authority to
try
Hamdan. ...

a VI
Whether or not the Government has charged Hamdan with an offense
against the law of war cognizable by military commission, the commission
lacks power to proceed. The UCMJ conditions the President’s use of military
commissions on compliance not only with the American common law of
war, but also with the rest of the UCMJ itself, insofar as applicable, and with
the “rules and precepts of the law of nations,” the four Geneva Conventions
signed in 1949. The procedures that the Government has decreed will gov-
ern Hamdan’s trial by commission violate these laws... .

D
The procedures adopted to try Hamdan also violate the Geneva Conven-
tions. The Court of Appeals dismissed Hamdan’s Geneva Convention chal-
lenge on three independent grounds: (1) the Geneva Conventions are not
judicially enforceable; (2) Hamdan in any event is not entitled to their pro-
tections; and (3) even if he is entitled to their protections, Councilman absten-
tion 1s appropriate. .. .
Common Article 3, then, is applicable here and, as indicated above, re-
quires that Hamdan be tried by a “regularly constituted court affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples.” While the term “regularly constituted court” is not specifically de-
fined in either Common Article 3 or its accompanying commentary, other
sources disclose its core meaning. The commentary accompanying a provi-
sion of the Fourth Geneva Convention, for example, defines “ ‘regularly
constituted’ ” tribunals to include “ordinary military courts” and “definitely
exclud[e] all special tribunals.” . . .
Inextricably intertwined [is] the question of [whether the tribunals] af-
ford “all the judicial guarantees which are recognized as indispensable by civ-
ilized peoples.” Like the phrase “regularly constituted court,’ this phrase is
not defined in the text of the Geneva Conventions. But it must be under-
stood to incorporate at least the barest of those trial protections that have
been recognized by customary international law. Many of these are described
in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in
1977 (Protocol I). Although the United States declined to ratify Protocol I,
its objections were not to Article 75 thereof. Indeed, it appears that the Gov-
ernment “regard[s] the provisions of Article 75 as an articulation of safe-
guards to which all persons in the hands of an enemy are entitled.” Among
the rights :et forth in Article 75 is the “right to be tried in [one’s] presence.”
We agree with Justice KENNEDY that the procedures adopted to try
Hamdan deviate from those governing courts-martial in ways not justified
 FOREIGN AFFAIRS
320 | PRESIDENTIAL POWER, THE RULE OF LAW, AND

at least, fail to afford the

by any “evident practical need,” and for that reason,
requisite guarantees... .
Common Article 3 obviously tolerates a great degree of flexibility in
trying individuals captured during armed conflict; its requirements are gen-
eral ones, crafted to accommodate a wide variety of legal systems. But re-
quirements they are nonetheless. The commission that the President has
convened to try Hamdan does not meet those requirements. .. .

# VII
punishment,
[IJn undertaking to try Hamdan and subject him to criminal
the Rule of Law that prevails in this
the Executive is bound to comply with
jurisdiction.
is re-
The judgment of the Court of Appeals is reversed, and the case
manded for further proceedings.

(1 Justice KENNEDY, with whom Justice SOUTER, Justice GINSBURG,

and Justice BREYER join as to Parts I and II, concurring in part.
Military Commission Order No. 1, which governs the military commis-
sion established to try petitioner Salim Hamdan for war crimes, exceeds lim-
its that certain statutes, duly enacted by Congress, have placed on the
President’s authority to convene military courts. This is not a case, then,
where the Executive can assert some unilateral authority to fill a void left by
congressional inaction. It is a case where Congress, in the proper exercise of
its powers as an independent branch of government, and as part of a long tra-
dition of legislative involvement in matters of military justice, has considered
the subject of military tribunals and set limits on the President’s authority.
Where a statute provides the conditions for the exercise of governmental
power, its requirements are the result of a deliberative and reflective process
engaging both of the political branches. Respect for laws derived from the
customary operation of the Executive and Legislative Branches gives some
assurance of stability in time of crisis. The Constitution is best preserved by
reliance on standards tested over time and insulated from the pressures of the
monet. =. *
If Congress, after due consideration, deems it appropriate to change the
controlling statutes, in conformance with the Constitution and other laws, it
has the power and prerogative to do so....

-) Justice BREYER, with whom Justice KENNEDY, Justice SOUTER, and

Justice GINSBURG join, concurring. _
The dissenters say that today’s decision would “sorely hamper the Presi-
dent’s ability to confront and defeat a new and deadly enemy.” They suggest
that it undermines our Nation’s ability to “preven[t] future attacks” of the
grievous sort that we have already suffered. That claim leads me to state
briefly what I believe the majority sets forth both explicitly and implicitly at
greater length. The Court’s conclusion ultimately rests upon a single ground:
Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rums-
feld, 542 U.S. 507 (2004). Indeed, Congress has denied the President the leg-
islative authority to create military commissions of the kind at issue here.
 D | War-Making and Emergency Powers | 321

Nothing prevents the President from returning to Congress to seek the au-
thority he believes necessary.
Where, as here, no emergency prevents consultation with Congress, ju-
dicial insistence upon that consultation does not weaken our Nation’s ability
to deal with danger. To the contrary, that insistence strengthens the Nation’s
ability to determine—through democratic means—how best to do so. The
Constitution places its faith in those democratic means. Our Court today
simply does the same.

Justice SCALIA, with whom Justice THOMAS and Justice ALITO join,
dissenting.
On December 30, 2005, Congress enacted the Detainee Treatment Act
(DTA). It unambiguously, provides that, as of that date, “no court, justice, or
Judge” shall have jurisdiction to consider the habeas application of a Guan-
tanamo Bay detainee. Notwithstanding this plain directive, the Court today
concludes that, on what it calls the statute’s most natural reading, every
“court, justice, or judge” before whom such a habeas application was pending
on December 30 has jurisdiction to hear, consider, and render judgment on
it. This conclusion is patently erroneous. And even if it were not, the juris-
diction supposedly retained should, in an exercise of sound equitable discre-
tion, not be exercised. ...

Justice THOMAS, with whom Justice SCALIA joins, and with whom Jus-
tice ALITO joins in all but Parts I, Il-C-1, and II-B-2, dissenting.

a |

As I explained in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the structural ad-
vantages attendant to the Executive Branch—namely, the decisiveness, “ ‘ac-
tivity, secrecy, and dispatch’ ” that flow from the Executive’s “ ‘unity, ”—led
the Founders to conclude that the “President ha[s] primary responsibility—
along with the necessary power—to protect the national security and to
conduct the Nation’s foreign relations.” Consistent with this conclusion, the
Constitution vests in the President “[t]he executive Power,” Art. II, Section 1,
provides that he “shall be Commander in Chief” of the Armed Forces, Sec-
tion 2, and places in him the power to recognize foreign governments, Sec-
tion 3. This Court has observed that these provisions confer upon the
President broad constitutional authority to protect the Nation’s security in
the manner he deems fit... -.
When “the President acts pursuant to an express or implied authoriza-
tion from Congress,’ his actions are “ ‘supported by the strongest of pre-
sumptions and the widest latitude of judicial interpretation, and the burden
of persuasion rest[s] heavily upon any who might attack it? ” Accordingly, in
the very context that we address today, this Court has concluded that “the
detention and trial of petitioners—ordered by the President in the declared
exercise of his powers as Commander in Chief of the Army in time of war
and of grave public danger—are not to be set aside by the courts without the
clear conviction that they are in conflict with the Constitution or laws of
Congress constitutionally enacted.” Ex parte Quirin, 317 U.S. 1 (1942).
 AFFAIRS
322 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN

before a
Under this framework, the President’s decision to try Hamdan
to a heavy
military commission for his involvement with al Qaeda is entitled
measure of deference. ...

a Il
of military
The plurality accurately describes some aspects of the history
commissions and the prerequi sites for their use. .. . I agree with the plurality
for deter-
that Winthrop’s treatise sets forth the four relevant considerations
re-
mining the scope of a military commission’s jurisdiction, considerations
(2) place of the offense, (3) the status of the
lating to the (1) time and
easily
offender, and (4) the nature of the offense charged. The Executive has
on rests
satisfied these considerations here. The plurality’s contrary conclusi
upon an incomplete accounting and an unfaithful application of those con-
siderations. . . .

¢
In one key respect, the plurality departs from the proper framework for eval-
uating the adequacy of the charge against Hamdan under the laws of war.
The plurality holds that where, as here, “neither the elements of the offense
nor the range of permissible punishments is defined by statute or treaty, the
precedent [establishing whether an offense is triable by military commission]
must be plain and unambiguous.” This is a pure contrivance, and a bad one at
tivatwect
Today a plurality of this Court would hold that conspiracy to massacre
innocent civilians does not violate the laws of war. This determination is un-
sustainable. The judgment of the political branches that Hamdan, and others
like him, must be held accountable before military commissions for their in-
volvement with and membership in an unlawful organization dedicated to
inflicting massive civilian casualties is supported by virtually every relevant
authority, including all of the authorities invoked by the plurality today. It
is also supported by the nature of the present conflict. We are not engaged
in a traditional battle with a nation-state, but with a worldwide, hydra-
headed enemy, who lurks in the shadows conspiring to reproduce the atroc-
ities of September 11,2001, and who has boasted of sending suicide bombers
into civilian gatherings, has proudly distributed videotapes of beheadings of
civilian workers, and has tortured and dismembered captured American
soldiers... .

a iil
The Court holds that even ifthe Government has charged Hamdan with an
offense against the law of war cognizable by military commission, the com-
mission lacks power to proceed” because of its failure to comply with the
terms of the UCMJ and the four Geneva Conventions signed in 1949. This
position is untenable. .. .
As an initial matter, and as the Court of Appeals concluded, both of
Hamdan’s Geneva Convention claims are foreclosed by Johnson v. Eisentrager,
339: US17163: (1950) eee
In addition to being foreclosed by Eisentrager, Hamdan’s claim under
 iD | War-Making and Emergency Powers | 323

Common Article 3 of the Geneva Conventions is meritless. Common Arti-

cle 3 applies to “armed conflict not of an international character occurring
in the territory of one of the High Contracting Parties.” “Pursuant to [his]
authority as Commander in Chief and Chief Executive of the United
States,” the President has “‘accept[ed] the legal conclusion of the Department
of Justice that common Article 3 of Geneva does not apply to al Qaeda de-
tainees, because, among other reasons, the relevant conflicts are international
in scope and common Article 3 applies only to ‘armed conflict not of an in-
ternational character. ”
_ The President’s interpretation of Common Article 3 is reasonable and
should be sustained. The conflict with al Qaeda is international in character
in the sense that it is occurring in various nations around the globe. Thus, it
is also “occurring in the territory of” more than “one of the High Contract-
ing Parties.” . .. For these reasons, I would affirm the judgment of the Court
of Appeals. i
Justice ALITO, with whom Justices SCALIA and THOMAS join in Parts
FI, dissenting.
For the reasons set out in Justice SCALIA’s dissent, which I join, I
would hold that we lack jurisdiction. I add the following comments to pro-
vide a further explanation of my reasons for disagreeing with the holding of
the Court.
The holding of the Court, as I understand it, rests on the following rea-
soning.A military commission is lawful only if it is authorized by 10 U.S.C.
Section 821; this provision permits the use of a commission to try “offenders
or offenses” that “by statute or by the law of war may be tried by” such a
commission; because no statute provides that an offender such as petitioner
or an offense such as the one with which he is charged may be tried by a
military commission, he may be tried by military commission only if the trial
is authorized by “the law of war”; the Geneva Conventions are part of the
law of war; and Common Article 3 of the Conventions prohibits petitioner’s
trial because the commission before which he would be tried is not “a regu-
larly constituted court.” I disagree with this holding because petitioner’s
commission is “a regularly constituted court.” ...
Common Article 3 .. . imposes three requirements. Sentences may be
imposed only by (1) a “court” (2) that is “regularly constituted” and (3) that
affords “‘all the judicial guarantees which are recognized as indispensable by
civilized peoples.”
I see no need here to comment extensively on the meaning of the first
and third requirements. The first requirement is largely self-explanatory, and,
with respect to the third, I note only that on its face it imposes a uniform in-
ternational standard that does not vary from signatory to signatory.
The second element (“regularly constituted”) is the one on which the
Court relies, and I interpret this element to require that the court be ap-
pointed or established in accordance with the appointing country’s domestic
law. I agree with the Court that, as used in Common Article 3, the term
“regularly” is synonymous with “properly.” ...The term “constitute” means
“appoint,” “set up,” or “establish,” and therefore “regularly constituted” means
properly »appointed, set up, or established. Our cases repeatedly use the
phrases “regularly constituted” and “properly constituted” in this sense.
In order to determine whether a court has been properly appointed, set
 AFFAIRS
324 | PRESIDENTIAL POWER, THE RULE OF Law, AND FOREIGN

governs such
up, or established, it is necessary to refer to a body of law that
Commo n Article 3 as looking to the domesti c law of the
matters. I interpret
law standard
appointing country because I am not aware of any international
appoint ed, set up, or estab-
regarding the way in which such a court must be
ment structures
lished, and because different countries with different govern
“a regularly constituted court” is a
handle this matter differently. Accordingly,
nce with the
court that has been appointed, set up, or established in accorda
domestic law of the appointing country.
t
In contrast to this interpretation, the opinions supporting the judgmen
commiss ion before which petition er would be
today hold that the military
tried is not “a regularly constituted court” (a) because “no evident practical
conven-
need explains” why its “structure and composition .. . deviate from
the procedur es specifie d for
tional court-martial standards”; and (b) because
commiss ion impermi ssibly differ
use in the proceeding before the military
from those provided under the Uniform Code of Military Justice (UCM))
is
for use by courts-martial. I do not believe that either of these grounds
sound.
I see no basis for the Court’s holding that a military commission cannot
be regarded as “‘a regularly constituted court” unless it is similar in structure
and composition to a regular military court or unless there is an “evident
practical need” for the divergence. There is no reason why a court that differs
in structure or composition from an ordinary military court must be viewed
as having been improperly constituted. Tribunals that vary significantly in
structure, composition, and procedures may all be “regularly” or “properly”
constituted. ...
[ also disagree with the Court’s conclusion that petitioner's military
commission is “illegal,” because its procedures allegedly do not . . . impose at
least a limited uniformity requirement amongst the tribunals contemplated
by the UCMJ. ...
Returning to the three elements of Common Article 3—(1) a court, (2)
that is appointed, set up, and established in compliance with domestic law,
and (3) that respects universally recognized fundamental rights—I conclude
that all of these elements are satisfied in this case.
First, the commissions qualify as courts.
Second, the commissions were appointed, set up, and established pur-
suant to an order of the President, just like the commission in Ex parte
Quirin, 317 U.S. 1 (1942).
Finally, the commission procedures, taken as a whole, and including the
availability of review by a United States Court of Appeals and by this Court,
do not provide a basis for deeming the commissions to be illegitimate. The
Court questions the following two procedural rules: the rule allowing the
Secretary of Defense to change the governing rules “ ‘from time to time’ ”
(which does not rule out mid-trial changes); and the rule that permits the
admission of any evidence that would have “ ‘probative value to a reasonable
person. ” Neither of these two rules undermines the legitimacy of the com-
missions. .. .
As for the standard for the admission of evidence at commission pro-
ceedings, the Court does not suggest that this rule violates the international
standard incorporated into Common Article 3....
It seems clear that the commissions at issue here meet this standard.
 D | War-Making and Emergency Powers | 325

Whatever else may be said about the system that was created by Military
Commission Order No. 1 and augmented by the Detainee Treatment Act,
this system—which features formal trial procedures, multiple levels of ad-
ministrative review, and the opportunity for review by a United States Court
of Appeals and by this Court—does not dispense “summary justice.” For
these reasons, I respectfully dissent.

War Powers Resolution

87 STAT. 555 (1973)

In response to opposition to the continuation of the Vietnam War in

1973, Congress passed the War Powers Resolution. It imposed a num-
ber of limitations on presidential commitment of troops abroad with-
out specific congressional authorization and requires the president to
notify and consult with Congress before sending armed forces into ac-
tual or potential hostilities.
The act remains controversial and its consti-
tutionality a matter of dispute.*
There are those who defend Congress’s power to limit the presi-
dent’s war-making powers. For example, S. Carter argues that

[t]he “inherent” powers to which opponents of the War Powers

Resolution make reference are really [powers] thought to be inher-
ent because the President has historically exercised them. But they
are powers the President has exercised in the absence of any con-
gressional objection. . . . [Moreover,] historical acquiescence by
Congress in the President’s exercise of a particular power does not
by itself prove that Congress lacks the authority to limit the exercise
of that power when it gathers the wisdom and courage to do so.t

Contrariwise, others contend that the act is far too broad and a
congressional intrusion on inherent presidential powers. Among them
EugeneV. Rostow points out,

The pattern against which the [War Powers Resolution] protests is

old, familiar, and rooted in the nature of things. There is nothing
constitutionally illegitimate or even dubious about “undeclared”
wars. We and other nations fought them frequently in the eigh-
teenth and nineteenth centuries, as well as in the twentieth... .
[This act] would turn the clock back to the Articles of Confedera-

* See Robert Scigliano, “The War Powers Resolution and the War Powers,’ in The Presidency in
the Constitutional-Order, ed. Joseph M. Bessette and Jeffrey Tulis (Baton Rouge: Louisiana State
University *ress, 1981).
t S. Carter, “The Constitutionality of the War Powers Resolution,’ 70 Virginia Law Review 101
(1984).
 AFFAIRS
326 | PRESIDENTIAL POWER, THE RuLg or LAW, AND FOREIGN

aims
tion, and destroy the Presidency which it was one of the chief
of the men of Annapolis and Philadelphia to create.*

Resolved by the Senate and House of Representatives of the

United States ofAmerica in Congress assembled, That:
Section 1. This iors resolution may be cited as the “War
Powers Resolution.”
Sec. 2. (a) It is the purpose of this joint resolution to fulfill
the intent of the framers of the Constitution of the United
States and insure that the collective judgment of both the
Congress and the President will apply to the introduction of
United States Armed Forces into hostilities, or into situations
where imminent involvement in hostilities is clearly indicated
by the circumstances, and:to the continued use of such forces
in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is
specifically provided that the Congress shall have the power to
make all laws necessary and proper for carrying into execution,
not only its own powers but also all other powers vested by the
Constitution in the Government of the United States, or in
any department or officer thereof.
(c) The constitutional powers of the President as Com-
mander-in-Chief to introduce United States Armed Forces
into hostilities, or into situations where imminent involvement
in hostilities is clearly indicated by the circumstances, are exer-
cised only pursuant to (1) a declaration of war, (2) specific
statutory authorization, or (3) a national emergency created by
attack upon the United States, its territories or possessions, or
its armed forces.
Sec. 3. The President in every possible instance shall con-
sult with Congress before introducing United States Armed
Forces into hostilities or into situations where imminent in-
volvement in hostilities is clearly indicated by the circum-
stances, and after every such introduction shall consult regularly
with the Congress until United States Armed Forces are no
longer engaged in hostilities or have been removed from such
situations.
Sec. 4. (a) In the absence of a declaration of war, in any
case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent in-
volvement in hostilities is clearly indicated by the circum-
stances;
(2) into the territory, airspace or waters of a foreign na-
tion, while equipped for combat, except for deployments
which relate solely to supply, replacement, repair, or training of
such forces; or
(3) in numbers which substantially enlarge United States

* Eugene V. Rostow, “Great Cases Make Bad Law: The War Powers Act,” 50 Texas Law Review
833 (1972).
 D | War-Making and Emergency Powers | 327

Armed Forces equipped for combat already located in a for-

eign nation; the President shall submit within 48 hours to the
Speaker of the House of Representatives and to the President
pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of
United States Armed Forces;
(B) the constitutional and legislative authority under
which such introduction took place; and
(C) the estimated scope and duration of the hostilities or
involvement. .. .
(b) The President shall provide such other information as
the Congress may request ‘in the fulfillment of its constitutional
responsibilities with respect to committing the Nation to war
and to the use of United States Armed Forces abroad.
(c) Whenever United States Armed Forces are introduced
into hostilities or into any situation described in subsection
(a) of this section, the President shall, so long as such armed
forces continue to be engaged in such hostilities or situation,
report to the Congress periodically on the status of such hostil-
ities or situation as well as on the scope and duration of such
hostilities or situation, but in no event shall he report to the
Congress less often than once every six months.
Sec. 5. (a) Each report submitted pursuant to section
4(a)(1) shall be transmitted to the Speaker of the House of
Representatives and to the President pro tempore of the Senate
on the same calendar day. Each report so transmitted shall be
referred to the Committee on Foreign Affairs of the House of
Representatives and to the Committee on Foreign Relations
of the Senate for appropriate action. If, when the report is
transmitted, the Congress has adjourned sine die or has ad-
journed for any period in excess of three calendar days, the
Speaker of the House of Representatives and the President pro
tempore of the Senate, if they deem it advisable (or if peti-
tioned by at least 30 percent of the membership of their re-
spective Houses) shall jointly request the President to convene
Congress in order that it may consider the report and take ap-
propriate action pursuant to this section.
(b) Within sixty calendar days after a report is submitted
or is required to be submitted pursuant to section 4(a)(1),
whichever is earlier, the President shall terminate any use of
United States Armed Forces with respect to which such report
was submitted (or required to be submitted), unless the Con-
gress (1) has declared war or has enacted a specific authoriza-
tion for such use of United States Armed Forces, (2) has
extended by law such sixty-day period, or (3) is physically un-
able to meet as a result of an armed attack upon the United
States. Such sixty-day period shall be extended for not more
than: an additional thirty days if the President determines and
certifies to the Congress in writing that unavoidable military
necessity respecting the safety of United States Armed Forces
 FOREIGN AFFAIRS
328 | PRESIDENTIAL POWER, THE RULE OF LAW, AND

course
requires the continued use of such armed forces in the
of bringing about a prompt removal of such forces.
(c) Notwithstanding subsection (b), at any time that
United States Armed Forces are engaged in hostilities outside
the territory of the United States, its possessions and territories
without a declaration of war or specific statutory authoriza-
tion, such forces shall be removed by the President if the Con-
gress so directs by concurrent resolution.
Sec. 6. (a) Any joint resolution or bill introduced pursuant
to section 5(b) at least thirty calendar days before the expira-
tion of the sixty-day period specified in such section shall be
referred to the Committee on Foreign Affairs of the House of
Representatives or the Committee on Foreign Relations of the
Senate, as the case may be, and such committee shall report one
such joint resolution or bill, together with its recommenda-
tions, not later than twenty-four calendar days before the expi-
ration of the sixty-day period specified in such section, unless
such House shall otherwise determine by the yeas and nays.
(b) Any joint resolution or bill so reported shall become
the pending business of the House in question (in the case
of the Senate the time for debate shall be equally divided be-
tween the proponents and the opponents), and shall be voted
on within three calendar days thereafter, unless such House
shall otherwise determine by yeas and nays.
(c) Such a joint resolution or bill passed by one House
shall be referred to the committee of the other House named
in subsection (a) and shall be reported out not later than four-
teen calendar days before the expiration of the sixty-day period
specified in section 5(b). The joint resolution or bill so re-
ported shall become the pending business of the House in
question and shall be voted on within three calendar days after
it has been reported, unless such House shall otherwise deter-
mine by yeas and nays.
(d) In the case of any disagreement between the two
Houses of Congress with respect to a joint resolution or bill
passed by both Houses, conferees shall be promptly appointed
and the committee of conference shall make and file a report
with respect to such resolution or bill not later than four cal-
endar days before the expiration of the sixty-day period speci-
fied in section 5(b). In the event the conferees are unable to
agree within 48 hours, they shall report back to their respective
Houses in disagreement. Notwithstanding any rule in either
House concerning the printing of conference reports in the
Record or concerning any delay in the consideration of such
reports, such report shall be acted on by both Houses not later
than the expiration of such sixty-day period.
Sec. 7. (a) Any concurrent resolution introduced pursuant
to section 5(c) shall be referred to the Committee on Foreign
Affairs of the House of Representatives or the Committee on
Foreign Relations of the Senate, as the case may be, and one
 D | War-Making and Emergency Powers | 329

such concurrent resolution shall be reported out by such com-

mittee together with its recommendations within fifteen calen-
dar days, unless such House shall otherwise determine by the
yeas and nays.
(b) Any concurrent resolution so reported shall become
the pending business of the House in question (in the case
of the Senate the time for debate shall be equally divided be-
tween the proponents and the opponents) and shall be voted
on within three calendar days thereafter, unless such House
shall otherwise determine by yeas and nays.
(c) Such a concurrent resolution passed by one House
shall be referred to the cOmmittee of the other House named
in subsection (a) and shall be reported out by such committee
together with its, recommendations within fifteen calendar days
and shall thereupon become the pending business of such
House and shall be voted upon within three calendar days, un-
less such House shall otherwise determine by yeas and nays.
(d) In the case of any disagreement between the two
Houses of Congress with respect to a concurrent resolution
passed by both Houses, conferees shall be promptly appointed
and the committee of conference shall make and file a report
with respect to such concurrent resolution within six calendar
days after the legislation is referred to the committee of con-
ference. Notwithstanding any rule in either House concerning
the printing of conference reports in the Record or concern-
ing any delay in the consideration of such reports, such report
shall be acted on by both Houses not later than six calendar
days after the conference report is filed. In the event the con-
ferees are unable to agree within 48 hours, they shall report
back to their respective Houses in disagreement.
Sec. 8. (a) Authority to introduce United States Armed
Forces into hostilities or into situations wherein involvement in
hostilities is clearly indicated by the circumstances shall not be
inferred—
(1) from any provision of law (whether or not in effect be-
fore the date of the enactment of this joint resolution), includ-
ing any provision contained in any appropriation Act, unless
such provision specifically authorizes the introduction of
United States Armed Forces into hostilities or into such situa-
tions and states that it is intended to constitute specific statutory
authorization within the meaning of this joint resolution; or
(2) from any treaty heretofore or hereafter ratified unless
such treaty is implemented by legislation specifically authoriz-
ing the introduction of United States Armed Forces into hos-
tilities or into such situations and stating that it is intended to
constitute specific statutory authorization within the meaning
of this joint resolution.
‘(b) Nothing in this joint resolution shall be construed to
require any further specific statutory authorization to permit
members of United States Armed Forces to participate jointly
 AFFAIRS
330 | PRESIDENTIAL POWER, THE Rute of Law, AND FOREIGN

with members of the armed forces of one or more foreign

countries in the headquarters operations of high-level military
commands which were established prior to the date of enact-
ment of this joint resolution and pursuant to the United Na-
tions Charter or any treaty ratified by the United States prior
to such date.
(c) For purposes of this joint resolution, the term “intro-
duction of United States Armed Forces” includes the assign-
ment of members of such armed forces to command,
coordinate, participate in the movement of, or accompany the
regular or irregular military forces of any foreign country or
government when such military forces are engaged, or there
exists an imminent threat that such forces will become en-
gaged, in hostilities.
(d) Nothing in this joint resolution—
(1) is intended to alter the constitutional authority of
the Congress or of the President, or the provisions of existing
treaties; or
(2) shall be construed as granting any authority to the
President with respect to the introduction of United States
Armed Forces into hostilities or into situations wherein in-
volvement in hostilities is clearly indicated by the circum-
stances which authority he would not have had in the absence
of this joint resolution.
Sec. 9. If any provision ofthis joint resolution or the appli-
cation thereof to any person or circumstance is held invalid, the
remainder of the joint resolution and the application of such
provision to any other person or circumstance shall not be af-
fected thereby.
Sec. 10. This joint resolution shall take effect on the date of
its enactment.
[Passed over Presidential veto November 7, 1973.]

= THE DEVELOPMENT OF LAW

The USA PATRIOT Act of 2001, Wiretaps, and

the Foreign Intelligence Surveillance Court*

Enacted in response to the terrorist attacks of September 11, 2001, the

USA PATRIOT Act authorizes sweeping changes in law enforcement, no-
tably lowering the standards for searching and seizing individuals suspected
*The full title of the law is Uniting and Strengthening America by Providing Appro-
priate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of
2001. For the text and other information go to http://personalinfomediary.com/
USAPATRIOTACT Text. htm.
 D | War-Making and Emergency Powers | 33%

NN

of terrorism, for example, as well as expanding investigatory powers. Among

the changes, the law authorizes
* Roving wiretaps—wiretaps on any telephone used by a person
suspected of terrorism—and the use of key-logger devices, which
register every stroke made on a computer, and Internet wiretaps.
* Police searches of private property without prior notification of
the owners and without a search warrant.
* A lower standard for judicial approval of wiretaps for individuals
suspected of terrorist activities.
* The attorney general to designate domestic groups as terrorist or-
ganizations and to block the entry into the country of foreigners
aligned with them.
* The Central Intelligence Agency to investigate Americans sus-
pected of having connections to terrorism.
* The Department of Treasury to monitor financial transactions—
bank accounts, mutual funds, and brokerage deals—and to obtain
medical and other electronic records on individuals.
* The detention and deportation of foreigners suspected of having
connections to terrorist organizations.
One of the most controversial provisions of the USA PATRIOT Act re-
moves restrictions on information sharing and foreign intelligence gathering.
Section 203 requires the attorney general to disclose to the director of the
Central Intelligence Agency (CIA) “foreign intelligence” obtained from a fed-
eral criminal investigation, including wiretaps and grand jury hearings. The
CIA may also share information with domestic law enforcement agencies.
Critics charged that the broad language of the act’s disclosure require-
ments permits the Department of Justice (DoJ) to give the CIA all in-
formation related to a foreigner or to a citizen’s contacts with a foreign
government or organization, not merely pertaining to international terrorism.
Moreover, the act did not establish any standards or safeguards for restricting
the disclosure of “foreign intelligence information.” Critics therefore con-
tended that the intelligence community may collect information about indi-
viduals who have committed no crimes but who are involved in lawful
protests of American foreign policies.
Furthermore, the USA PATRIOT Act changed the Foreign Intelligence
Surveillance (FIS) Act of 1978, which created a special FIS court, staffed by
sitting federal judges on special assignments, to approve wiretaps and to en-
sure that “the sole purpose” of domestic intelligence gathering was to obtain
foreign intelligence information. That law was enacted because of abuses in
domestic surveillance of anti-Vietnam war protesters and leaders of the civil
_tights movement in the 1960s and 1970s. Section 218 of the USA PA-
TRIOT Act, however, changed the law so the DoJ need only show that the
collection of foreign intelligence information has “‘a significant purpose,” in-
stead of being “the sole purpose” of an investigation.
Basé4 on those provisions in 2002, Attorney General John Ashcroft
issued new guidelines allowing federal prosecutors to consult with law
enforcement agents conducting foreign intelligence surveillance. Those
332 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

guidelines were in turn challenged as a violation of the Fourth Amendment

and for permitting the use of special FIS wiretaps for investigating and pros-
ecuting ordinary criminals, and not just spies and terrorists. In May 2002, the
US. Foreign Intelligence Surveillance Court unanimously rejected the new
guidelines and for the first time in the history of the court released a pub-
lished opinion, Inre: All Matters Submitted to the Foreign Intelligence Surveillance
Court, No. Multiple 02-429 ESupp. 2d C (US. Foreign Intel. Surv. Cts
17 May 2002). Emphasizing the special and intrusive nature of FIS Act sur-
veillance, the seven judges on the court maintained that the “walls” prohibit-
ing criminal prosecutors from conducting investigations of suspected foreign
spies and terrorists should not be torn down and that the DoJ’s new guide-
lines were not “reasonably designed.”
However, the DoJ successfully appealed that decision to a special three-
judge court of appeals, as authorized by the FIS Act and whose judges are as-
signed from other federal appellate courts by the chief justice of the Supreme
Court. Subsequently, the FIS appellate court upheld the DoJ’s new guide-
lines, in In re: Sealed Case (U.S. Foreign Intelligence Surveillance Court of
Review No. 02-001 and 02-002), available at http://www.cadc.uscourts.gov/
common/newsroom/02001.pdf. In doing so, the appellate court stressed that
the USA PATRIOT Act aimed to eliminate “walls” between foreign intelli-
gence and domestic law enforcement agencies, and explained: “Effective
counterintelligence, as we have learned, requires the whole-hearted cooper-
ation of all the government’s personnel who can be brought to the task. A
standard which punishes such cooperation could well be thought dangerous
to national security.’ As a result, federal criminal prosecutors may use infor-
mation against citizens obtained from wiretaps authorized by the FIS court,
based on less than probable cause and on more searching surveillance than
permitted under traditional wiretaps.
The principal provisions of the USA PATRIOT Act were renewed in
2006. Yet another controversy erupted over the revelation that President
George W. Bush issued a secret executive order authorizing the National Se-
curity Agency (NSA) to conduct warrantless electronic surveillance of
“communications where one .. . party to the communication is outside of
the United States” and there is “a reasonable basis to conclude that one
party” is a member of or supporting al Qaeda or other terrorists. The sur-
veillance involves monitoring e-mails, through Google-like searches, and
tracking cell phone calls and other Internet and satellite communications.
Foreign intelligence surveillance was supposed to be governed by the
Foreign Intelligence Surveillance Act (FISA), but the Bush administration
defended the NSA’s warrantless surveillance on three grounds. First, the
president has the inherent power and power as commander in chief to do so
during times of war. Prior presidents made similar claims. President Abra-
ham Lincoln ordered the warrantless wiretapping of telegraph wires during
the Civil War. Likewise, during World Wars I and II Presidents Woodrow
Wilson and Franklin D. Roosevelt ordered the interception of international
 D | War-Making and Emergency Powers | 333
i

communications. Similar claims to presidential power were made by subse-

quent administrations, including those of Presidents Jimmy Carter and Bill
Clinton.
Second, the joint resolution for the Authorization for the Use of Mili-
tary Force (AUMF) of 2001 provides for the use of“all necessary and appro-
priate” force to combat terrorists, and thus justifies the president’ action.
Third, the AUMF justifies not complying with the provisions of the FISA,
since it superseded FISA. In addition, Smith v. Maryland, 442 U.S. 735 (1979),
upheld the use of pen registers, which record the telephone numbers called
from phones but not the conversations. Accordingly, by extension the NSA’s
collection of “meta-data”—the time and to and from of Internet and satellite
communications—was permissible.
By contrast, some members of Congress and civil liberties groups coun-
tered that the president has no inherent power to authorize warrantless do-
mestic security surveillance; that neither the AUMF nor the FISA permit
such a program; and that United States v. United States District Court, 407 U.S.
297 (1972), the so-called Keith case, held that domestic intelligence surveil-
lance requires prior judicial approval of a warrant in order to satisfy the
Fourth Amendment’s guarantee against unreasonable searches and seizures,
though the decision left open the matter of warrantless foreign surveillance.
After months of negotiations in 2006 Congress enacted legislation reassert-
ing the authority of the FISA court, while permitting wiretapping without a
warrant for up to forty-five days but requiring the attorney general to certify
and explain why such warrantless surveillance is necessary to a subcommittee
of the Senate Intelligence Committee.
Subsequently, in 2006 it was also revealed that the NSA had been mon-
itoring the phone numbers dialed by millions of U.S. citizens in order to
search for telephone calling patterns and possible links to terrorists, as well as
that the Central Intelligence Agency and the Department of Treasury mines
the transactions of 7,800 financial institutions worldwide. A Belgian cooper-
ative routed daily about $6 trillion in international transactions. And its data-
base is monitored to find customers’ names, account numbers, and other
information that establishes links to al Qaeda and other terrorist organiza-
tion.
In 2006, a federal district court declared the NSA program unconstitu-
tional. Then, in 2007 a FISA court judge held that the Bush administration
overstepped its authority in monitoring telephone calls and e-mails that pass
through U.S. networks between foreign nationals. In response, however,
Congress enacted and President Bush signed into law the Protect America
Act of 2007 that expanded the administration’s authority to conduct war-
rantless wiretaps without FISA approval, including telephone calls and e-
mails of U.S. citizens, so long as officials indicate that they are targeting
someone oversees suspected of terrorism. The constitutionality of that law
was imm- diately challenged by the Center for Constitutional Rughts as a vi-
olation of the First and Fourth Amendments.
334 | PRESIDENTIAL POWER, THE RULE of LAW, AND FOREIGN AFFAIRS

LEE
Supporting the
For further reading see U.S. Department of Justice, “Legal Authorities
of the National Security Agency Described by the President ” (Washington,
Activities
2006), and compare Congressi onal Research
DC: Department ofJustice, January 19,
Presidential Authority to Conduct Warrantless Electronic
Service, “Memorandum:
DC: Con-
Surveillance to Gather Foreign Intelligence Information” (Washington,
gressional Research, January 5, 2006).

LL

LS

= IN COMPARATIVE PERSPECTIVE
ee

The Supreme Court of Israel’s Ruling against the

Use of Torture

The disclosure of the abuse of prisoners by U.S. soldiers at the Abu

Ghraib prison in Iraq, and the further revelations in 2006 that torture con-
tinued in some Iraqi jails, fueled the controversy over the application of in-
ternational human rights standards to interrogations for military intelligence
purposes during wartime. Torture and other cruel, inhuman, or degrading
treatment and punishment violates the Third Geneva Convention of 1949,
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the International Covenant on Civil and Po-
litical Rights, all of which the United States joined. In addition, a 1994 fed-
eral law makes the use of torture by U.S. officials abroad a criminal offense.
The Supreme Court of Israel, in the 1999 Judgment Concerning the Inter-
rogation Methods Implied [sic] by the General Security Services, ruled against the
use of certain techniques involving inhuman treatment and torture used
when interrogating Palestinians suspected of terrorism.
President [Chief Justice Aharon] Barak:
The General Security Service (hereinafter, the “GSS”) investi-
gates individuals suspected of committing crimes against Israel’s se-
curity. . . . The interrogations are conducted on the basis of
directives regulating interrogation methods. These directives equally
authorize investigators to apply physical means against those under-
going interrogation (for instance, .shaking the suspect and the
“Shabach” position [the cuffing of the suspect, seating him on a low
chair, covering his head with an opaque sack (head covering) and
playing powerfully loud music in the area]. The basis for permitting
such methods is that they are deemed immediately necessary for
saving human lives. .. .
The State of Israel has been engaged in an unceasing struggle
for both its very existence and security, from the day of its found-
ing. Terrorist organizations have established as their goal Israel's an-
nihilation. Terrorist acts and the general disruption of order are their -
Lane eeee reereeeceeee rerrr
 D | War-Making and Emergency Powers | 335

SS

means of choice. In employing such methods, these groups do not

distinguish between civilian and military targets. They carry out ter-
rorist attacks in which scores are murdered in public areas, public
transportation. ...
We asked the applicants’ attorneys whether the “ticking time
bomb” rationale was not sufficiently persuasive to Justify the use of
physical means, for instance, when a bomb is known to have been
placed in a public area and will undoubtedly explode causing im-
measurable human tragedy if its location is not revealed at once.
This question elicited a variety of responses from the various apphi-
cants before the Court. There are those convinced that physical
means are not to be used under any circumstances; the prohibition
on such methods to their mind is absolute, whatever the conse-
quences may be. On the other hand, there are others who argue
that even if it is perhaps acceptable to employ physical means in
most exceptional “ticking time bomb” circumstances, these meth-
ods are in practice used even in absence of the “ticking time bomb”
conditions. The very fact that, in most cases, the use of such means
is illegal provides sufficient justification for banning their use alto-
gether, even if doing so would inevitably absorb those rare cases in
which physical coercion may have been justified. . . .
[A] reasonable investigation is necessarily one free of torture,
free of cruel, inhuman treatment of the subject and free of any de-
grading handling whatsoever. There is a prohibition on the use of
“brutal or inhuman means” in the course of an investigation. Hu-
man dignity also includes the dignity of the suspect being interro-
gated. This conclusion is in perfect accord with (various)
International Law treaties—to which Israel is a signatory—which
prohibit the use of torture, “cruel, inhuman treatment” and “de-
grading treatment.’ These prohibitions are “absolute.” . . .
We shall now turn from the general to the particular. Plainly
put, shaking is a prohibited investigation method. It harms the sus-
pect’s body. It violates his dignity. It is a violent method which does
not form part of a legal investigation. It surpasses that which is nec-
essary
It was argued before the Court that one of the investigation
methods employed consists of the suspect crouching on the tips of
his toes for five minute intervals. The State did not deny this prac-
tice. This is a prohibited investigation method. It does not serve any
purpose inherent to an investigation. It is degrading and infringes
upon an individual’s human dignity.
The “Shabach” method is composed of a number of cumulative
components: the cuffing of the suspect, seating him on a low chair,
covering his head with an opaque sack (head covering) and playing
powerfully loud music in the area. [W]e accept that the suspect’s
cuffing, for the purpose of preserving the investigators’ safety, is an
action included in the general power to investigate. Provided the
suspect is cuffed for this purpose, it is within the investigator’s au-
thority to cuff him. ... Notwithstanding, the cuffing associated with
336 | PRESIDENTIAL POWER, THE RULE OF LAW, AND FOREIGN AFFAIRS

ES
the “Shabach” position is unlike routine cuffing. The suspect is
cuffed with his hands tied behind his back. One hand is placed in-
side the gap between the chair’s seat and back support, while the
other is tied behind him, against the chair’s back support. This is a
distorted and unnatural position. The investigators’ safety does not
require it. Therefore, there is no relevant justification for handcuff-
ing the suspect’s hands with particularly small handcuffs, if this is in
fact the practice. The use of these methods is prohibited. .. .
This is the law with respect to the method involving seating
the suspect in question in the “Shabach” position. We accept that
seating a man is inherent to the investigation. This is not the case
when the chair upon which he is seated is a very low one, tilted
forward facing the ground, and: when he is sitting in this position
for long hours. This sort of seating is not encompassed by the gen-
eral power to interrogate... . [Such] methods do not fall within the
sphere of a “fair” interrogation. They are not reasonable. They im-
pinge upon the suspect’s dignity, his bodily integrity and his basic
rights in an excessive manner (or beyond what is necessary)... .
A similar—though not identical—combination of interroga-
tion methods [was] discussed in the case of Ireland v. United Kingdom
(1978) 2 EHRR 25. In that case, the Court probed five interroga-
tion methods used by England for the purpose of investigating de-
tainees suspected of terrorist activities in Northern Ireland. The
methods were as follows: protracted standing against the wall on the
tip of one’s toes; covering of the suspect’s head throughout the de-
tention (except during the actual interrogation); exposing the sus-
pect to powerfully loud noise for a prolonged period and
deprivation of sleep, food and drink. The Court held that these
methods did not constitute “torture.” However, since they treated
the suspect in an “inhuman and degrading” manner, they were
nonetheless prohibited. .. .
This decision opens with a description of the difficult reality in
which Israel finds herself security wise. We shall conclude this judg-
ment by re-addressing that harsh reality. We are aware that this deci-
sion does not ease dealing with that reality. This is the destiny of
democracy, as not all means are acceptable to it, and not all practices
employed by its enemies are open before it. Although a democracy
must often fight with one hand tied behind its back, it nonetheless
has the upper hand. Preserving the Rule of Law and recognition of
an individual’s liberty constitutes an important component in its
understanding of security. At the end of the day, they strengthen its
spirit and its strength and allow it to overcome its difficulties. This
having been said, there are those who argue that Israel’s security
problems are too numerous, thereby requiring the authorization to
use physical means. If it will nonetheless be decided that it is appro-
priate for Israel, in light of its security difficulties to sanction physi-
cal means in interrogations (and the scope of these means which
deviate from the ordinary investigation rules), this is an issue that
must be decided by the legislative branch which represents the peo- -
 D | War-Making and Emergency Powers | 337
es
ple. We do not take any stand on this matter at this time. It is there
that various considerations must be weighed. The pointed debate
must occur there. It is there that the required legislation may be
passed, provided, of course, that a law infringing upon a suspect’s
liberty “befitting the values of the State of Israel,” is enacted for a
proper purpose, and to an extent no greater than is required. (Arti-
cle 8 to the Basic Law: Human Dignity and Liberty)

SSS
THE PRESIDENT AS CHIEF
EXECUTIVE IN DOMESTIC
AFFAIRS

he growth in the legislative powers of the president might appear

| eee ae given the principle of separation of powers. Article I
vests “[a]ll legislative powers” in Congress, while Article II provides that
“(t]he executive Power shall be vested in a President.” Yet the Constitu-
tion provides the president with certain legislative powers as well. He
has the power to inform Congress about “the State of the Union,” to
convene both houses of Congress on extraordinary occasions, and
to veto legislation. As chief executive, the president also has the power
to appoint subordinate officers in the government and thereby in-
fluence the development and implementation of legislation.
The legislative and administrative role of the president has
nonetheless grown enormously with the development of White House
staff and the institutionalized presidency. The state of the union address,
for instance, has become an occasion for presidents to announce their
own broad legislative programs. Even more important, Congress has
delegated vast legislative powers to the executive branch. As a result,
administrative agencies, under the control and supervision of the presi-
dent, are responsible for developing and implementing the overwhelm-
ing majority of all federal regulations. Besides these statutory grants of
power to the executive branch, presidents may assert legislative powers
through executive orders, presidential proclamations, and White House
oversight of regulatory rule making. In addition, presidents may claim
inherent or implied powers as chief executive and under their obliga-
tion to “take Care that the Laws be faithfully executed.”
This chapter examines the president’s powers as chief executive in
 A | National Security and Inherent and Emergency Powers | 339

regard to controversies over national security, the appointment and re-

moval of federal officials, and the legislative role of the presidency
in the administrative state. The chapter concludes by taking up issues
involving presidential immunity and accountability, dealing particu-
larly with claims to executive privilege and the impeachment of the
president.

SELECTED BIBLIOGRAPHY

Barber, Sotirios. The Constitution and the Delegation of Congressional Power. Chicago:
University of Chicago Press, 1975.
Cooper, Phillip. By Order of the President: The Use and Abuse of Executive Direct Action.
Lawrence: University Press of Kansas, 2002.
Fisher, Louis. Constitutional Conflicts between Congress and the President. 5th ed.
Lawrence: University Press of Kansas, 2007.
Marcus, Maeva. Tiuman and the Steel Seizure Case. New York: Columbia University
TESS. U7 s

A | National Security and Inherent and

Emergency Powers

In times of emergency and in response to perceived threats to national

security, presidents claim inherent or implied powers over domestic as
well as foreign affairs. They do so as chief executive and as empowered
to “take Care that the Laws be faithfully executed.” But the Court has
been more troubled by claims to inherent presidential powers in do-
mestic, as opposed to foreign, affairs.As Chief Justice Hughes observed
in Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934) (see
Woly2s@h 3),

Emergency does not create power. Emergency does not increase

granted power or remove or diminish the restrictions imposed
upon power granted or reserved. The Constitution was adopted in a
period of grave emergency. Its grants of power to the federal
government and its limitations of the power of the States were de-
termined in the light of emergency, and they are not altered by
emergency... .
While emergency does not create power, emergency may furnish
the cecasion for the exercise of power... . The constitutional ques-
tion presented in the light of an emergency is whether the power
possessed embraces the particular exercise of it in response to par-
ticular conditions.
340 | THE PRESIDENT AS CHIEF EXECUTIVE IN DomestTIc AFFAIRS

The Court first confronted claims of inherent presidential powers

in domestic affairs in In re Neagle, 135 U.S. 546 (1890). David Neagle, a
U.S. marshal, had been assigned by the attorney general to protect Jus-
tice Stephen Field, after a disgruntled litigant threatened his life, while
riding circuit in California. Neagle subsequently shot and killed the lit-
igant and was charged with murder by state authorities. The federal
government sought his release, contending that he was simply perform-
ing his duties as a marshal, even though there was no statutory author-
ity for the president to assign bodyguards to federal judges. Over the
dissent of Chief Justice Fuller and Justice Lamar, the Court ruled that
the president’s power to faithfully execute the laws was not “limited to
the enforcement of acts of Congréss.” According to the majority it was
unthinkable that the president should have “within the domain of [his]
powers no means of protecting . . . judges.”
In another late-nineteenth-century case, the Court underscored
that the president’s obligation to faithfully execute the laws conveyed
certain inherent powers as well. In In re Debs, 158 U.S. 564 (1895), the
Court unanimously upheld the contempt conviction of Eugene Debs, a
prominent Socialist and labor leader, for violating an injunction against
a labor union strike aimed at preventing the operation of certain rail-
roads. Although there was no express authority for the government's in-
junction, Justice Brewer upheld the convictions and injunction on the
grounds that “[t]he national government, given by the Constitution
power to regulate interstate commerce, has by express statute assumed
jurisdiction over such commerce when carried on railroads. It is
charged, therefore, with the duty of keeping those highways of inter-
state free from obstruction.”
By contrast, in the twentieth century the Court has on several oc-
casions rejected broad claims of inherent presidential powers in domes-
tic affairs. In the famous “Steel Seizure Case,” Youngstown Sheet & Tube v.
Sawyer (1952) (see excerpt below), the justices divided six to three in
striking down President Harry Truman’s order for the secretary of
commerce to seize and operate the nation’s steel mills so as to avert a
nationwide strike that might have jeopardized an undeclared war in
Korea. However, only Justices Black and Douglas took the position that
the president has no such inherent powers. The four others in the ma-
jority took more pragmatic approaches, emphasizing that Congress
contemplated but rejected passing legislation authorizing the president
to seize steel mills in the event of labor strikes. While contending that
in different circumstances such an exercise of power might be justified,
these justices found the president’s actions in this case too drastic. Chief
Justice Fred Vinson, along with two other dissenters, nevertheless ad-
hered to the view advanced by Neagle in maintaining that Truman was
 A | National Security and Inherent and Emergency Powers | 341

simply “faithfully execut[ing] the laws by acting in an emergency to

maintain the status quo, thereby preventing collapse of the legislative
programs until Congress could act.”
During the Nixon presidency, the Court once again confronted
claims to inherent presidential powers invoked to protect national secu-
rity interests. In the “Pentagon Papers” case, New York Times Co. v. United
States (1971) (see excerpt below), a bitterly divided Court agreed only
on a brief per curiam opinion rejecting, as a prior restraint on freedom
of the press, the administration’s efforts to enjoin the publication of a
history of America’s involvement in Vietnam that was prepared by
a California think tank, the Rand Corporation, for the Department
of Defense and classified top secret. Although all nine justices issued
separate opinions in the six-to-three decision, five justices—Black,
Douglas, Stewart, White, and Marshall—indicated that the president
has no power, without prior congressional authorization, to sup-
press the publication of classified documents in the interests of national
security.
The following year in United States v. United States District Court,
407 US. 297 (1972), the Court dealt another blow to claims of inher-
ent power by the Nixon presidency. The administration had wiretapped
the offices of a number of domestic organizations to gather intelligence
information in the interest of national security. The justices (eight to
zero) ruled that such domestic security surveillance, conducted without
congressional guidelines or judicially issued search warrants, ran afoul
of the Fourth Amendment’s guarantee against unreasonable searches
and seizures. Subsequently, Congress passed the Foreign Intelligence
Surveillance Act of 1978, requiring the government to obtain a warrant
prior to undertaking electronic surveillance for the purpose of obtain-
ing foreign intelligence information. But the USA PATRIOT Act of
2001 eliminated many of the safeguards earlier provided; see THE DE-
VELOPMENT OF LAW box in the preceding section.
Despite these rulings, the permissible scope of presidential power
that may be invoked in the interest of national security remains a mat-
ter of considerable contention, especially when supported by congres-
sional legislation but challenged as infringing on First Amendment
freedoms. Although the Court has not squarely addressed this contro-
versy, note that five justices in the “Pentagon Papers” case suggest that
the president may enjoin the publication of documents in the interest
of “national security” when expressly authorized to do so by Congress.
Also, in Snepp v. United States 444 U.S. 507 (1980), the Court upheld
over First Amendment objections, the requirements of the Central In-
telligence Agency’s (CIA) based in part on statutory authority, that em-
ployees and former employees submit any writing related to the agency
342 | Tue PresipenT AS Cuter EXECUTIVE IN DOMESTIC AFFAIRS

for prepublication review to safeguard interests in foreign affairs and

national security.
In United States v. The Progressive, Inc., 467 FSupp. 990 (1979), the
government sought and obtained from a federal district court a tem-
porary injunction against the publication of an article titled “The
H-Bomb Secret: How We Got It, Why We’re Telling It.” It did so under
the Atomic Energy Act, which authorizes the government to obtain a
temporary or permanent injunction against the dissemination of any
“restricted data” concerning the construction of atomic weapons. Judge
Robert W. Warren found “no plausible reason why the public needs to
know the technical details about hydrogen bomb construction to carry
on an informed debate” about nuclear proliferation. And he distin-
guished this case from the New York Times case, observing,

In the first place, the study involved in the New York Times case con-
tained historical data relating to events that occurred some three to
twenty years previously. Secondly, the Supreme Court agreed with
the lower court that no cogent reasons were advanced by the
government as to why the article affected national security except
that publication might cause some embarrassment to the United
States. A final and most vital difference between these two cases is
the fact that a specific statute is involved here. Section 2274 of The
Atomic Energy Act prohibits anyone from communicating, trans-
mitting or disclosing any restricted data to any person “with reason
to believe such data will be utilized to injure the United States or
‘to secure an advantage to any foreign nation.”

But when asimilar article appeared in another publication, the govern-

ment abandoned its efforts to permanently enjoin The Progressive
magazine’s article. The Supreme Court thus did not rule on the govern-
ment’s actions and whether the Atomic Energy Act is overly broad or
so vague as to infringe on First Amendment freedoms.

SELECTED BIBLIOGRAPHY

Ackerman, Bruce, The Failure of the Founding Fathers: Jefferson, Marshall and the Rise of
Presidential Democracy. Cambridge, MA: Belknap, 2005.
Fisher, Louis. In the Name of National Security: Unchecked Presidential Power and the
Reynolds Case. Lawrence: University Press of Kansas, 2006.
O’Brien, David. The Public’s Right to Know: The Supreme Court and the First Amend-
ment. New York: Praeger, 1981.
Marcus, Maeva. Tiuman and the Steel Seizure Case. New York: Columbia University
Press, 1977.
 A | National Security and Inherent and Emergency Powers | 343

SSS

= INSIDE THE CourRT

The Argument for Inherent and Emergency
Presidential Powers in “the Steel Seizure Case”

During oral arguments before federal district court Judge David A. Pine, As-
sistant Attorney General Holmes Baldridge contended in the following ex-
change that the president enjoys inherent and unreviewable powers in times
of national emergency.
THE Court: Now, ‘Mr. Attorney General . . . I wonder if you
would give me such assistance-as you can .. . as to your power or as
to your client’s power.
As I understand it you do not assert any statutory power.
Mr. BALDRIDGE: That is correct.
THE Court: And you do not assert any express constitutional
power.
Mr. BALDRIDGE: Well, your Honor, we base the President’s power
on Sections 1, 2 and 3 of Article II of the Constitution, and what-
ever inherent, implied or residual powers may flow therefrom... .
We say that when an emergency situation in this country arises
that is of such importance to the entire welfare of the country that
something has to be done about it and has to be done now, and
there is no statutory provision for handling the matter, that it is the
duty of the Executive to step in and protect the national security
and the national interests. . . .
THE Court: So you contend the Executive has unlimited power
in time of an emergency?
Mr. BALDRIDGE: He has the power to take such action as is nec-
essary to meet the emergency.
THE Court: If the emergency is great, it is unlimited, isn’t it?
Mr. BALpRIDGE: I suppose if you carry it to its logical conclu-
sion, that is true. But I do want to point out that there are limita-
tions on the Executive power. One is the ballot box and the other
is impeachment. ...
THe Court: And that the Executive determines the emergencies
and the Courts cannot even review whether it is an emergency.
Mr. BALDRIDGE: That is correct.
344 | Tue PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

Johns
Pallitto, Robert, and Weaver, Kenneth. Presidential Secrecy and the Law. Baltimore:
Hopkins University Press, 2007.
Posner, Richard. Not a Suicide Pact: The Constitution in a Time of National Emergency.
New York: Oxford University Press, 2006.

Prados, John, and Potter, Margaret P., eds. Inside the Pentagon Papers. Lawrence: Uni-
versity Press of Kansas, 2004.
Randall, James. Constitutional Problems under Lincoln. Urbana: University of Illinois
Press, 1994.
Rudenstine, David. The Day the Presses Stopped:A History of the Pentagon Papers Case.
Berkeley: University of California Press, 1996.
Stone, Geoffrey. Top Secret: When Our Government Keeps Us in the Dark. Lanham:
Rowman and Littlefield, 2007.
Westin, Alan. Anatomy of a Constitutional Law Case. New York: Macmillan, 1958.

Youngstown Sheet & Tube Co. v. Sawyer

343 U.S. 579, 72 S.CT. 863 (1952)

A labor dispute that began in 1951 during the “police action” (un-
declared war) in Korea eventually led the United Steel Workers to call
a strike to shut down steel mills in April 1952. Instead of invoking pro-
visions of the Taft-Hartley Act, which passed over a presidential veto
and provided for a cooling-off period in labor-management disputes,
hours before the strike President Harry S. Truman issued Executive Or-
der 10340. It directed Secretary of Commerce Charles Sawyer to seize
and operate the steel mills. The steel companies immediately sought an
injunction in a federal district court to restrain Sawyer from seizing the
mills. Judge David Pine ruled against the president, observing,

There is no express grant of power in the Constitution authorizing

the President to direct this seizure. There is no grant of power from
which it reasonably can be implied. There is no enactment of Con-
gress authorizing it....
The President therefore must derive this broad “residuum of
power” or “inherent” power from the Constitution itself, more par-
ticularly Article II thereof, which contains that grant of Executive
power. ...
[But, t]here is no undefined residuum of power which he can exer-
cise because it seems to him to be in the public interest, and there is
nothing in the Neagle case and its definition of a law of the United
States, or in other precedents, warranting such an inference.

When the labor unions then called another strike, the government ob-
tained from an appellate court a stay on Judge Pine’s order pending di-
 A | National Security and Inherent and Emergency Powers | 345

rect appeal to the Supreme Court. The Court expedited the case,
granting certiorari on May 3, hearing oral arguments on May 12, and
handing down its decision within a month, on June 12, 1952. President
Truman was angered by the six-to-three ruling that he had exceeded
his powers, particularly because the majority included two of his own
appointees, Justices Tom Clark and Harold Burton, and Clark, earlier as
attorney general, had advised Truman that he had the power to deal
with such emergencies. Chief Justice Fred Vinson and Justice Sherman
Minton, two other appointees of Truman, dissented along with Justice
Stanley Reed. ;
The Court’s decision was six to three, and the majority’s opinion
was announced by Justice Black. There were concurrences by Justices
Jackson, Burton, Clark, Douglas; and Frankfurter. Chief Justice Vinson
dissented and was joined by Justices Reed and Minton.

| Justice BLACK delivers the opinion of the Court.

We are asked to decide whether the President was acting within his
constitutional power when he issued an order directing the Secretary of
Commerce to take possession of and operate most of the Nation’s steel
mills. The mill owners argue that the President’s order amounts to lawmak-
ing, a legislative function which the Constitution has expressly confided to
the Congress and not to the President. The Government's position is that
the order was made on findings of the President that his action was neces-
sary to avert a national catastrophe which would inevitably result from a
stoppage of steel production, and that in meeting this grave emergency the
President was acting within the aggregate of his constitutional powers as the
Nation’s Chief Executive and the Commander in Chief of the Armed
Forces of the United States. The issue emerges here from the following se-
ries of events:
In the latter part of 1951, a dispute arose between the steel companies
and their employees over terms and conditions that should be included in
new collective bargaining agreements. Long-continued conferences failed to
resolve the dispute. On December 18, 1951, the employees’ representative,
United Steelworkers of America, C. I. O., gave notice of an intention to
strike when the existing bargaining agreements expired on December 31.
The Federal Mediation and Conciliation Service then intervened in an ef-
fort to get labor and management toagree. This failing, the President on De-
cember 22, 1951, referred the dispute to the Federal Wage Stabilization
Board to investigate and make recommendations for fair and equitable terms
of settlement. This Board’s report resulted in no settlement. On April 4,
1952, the Union gave notice ofa nation-wide strike called to begin at 12:01
A.M. April 9. The indispensability of steel as a component of substantially all
weapons and other war materials led the President to believe that the pro-
posed work stoppage would immediately jeopardize our national defense
and that governmental seizure of the steel mills was necessary in order to as-
sure the continued availability of steel. Reciting these considerations for his
action, the President, a few hours before the strike was to begin, issued Ex-
ecutive Order 10340.The order directed the Secretary of Commerce to take
346 | THE PRESIDENT AS Cuter EXECUTIVE IN DOMESTIC AFFAIRS

che
Comsrrrwmon

(Library of Congress)

possession of most of the steel mills and keep them running. The Secretary
immediately issued his own possessory orders, calling upon the presidents of
the various seized companies to serve as operating managers for the United
States. They were directed to carry on their activities in accordance with reg-
ulations and directions of the Secretary. The next morning the President sent
a message to Congress reporting his action. Cong. Rec., April 9, 1952,
p. 3962. Twelve days later he sent a second message. Cong. Rec., April 21,
1952, p. 4192. Congress has taken no action.
Obeying the Secretary’s orders under protest, the companies brought
proceedings against him in the District Court. Their complaints charged that
the seizure was not authorized by an act of Congress or by any constitutional
provisions. The District Court was asked to declare the orders of the Presi-
dent and the Secretary invalid and to issue preliminary and permanent in-
junctions restraining their enforcement. Opposing the motion for
preliminary injunction, the United States asserted that a strike disrupting
steel production for even a brief period would so endanger the well-being
and safety of the Nation that the President had “inherent power” to do what
he had done—power “supported by the Constitution, by historical prece-
dent, and by court decisions.” The Government also contended that in any
event no preliminary injunction should be issued because the companies had
made no showing that their available legal remedies were inadequate or that
their injuries from seizure would be irreparable. Holding against the Govern-
ment on all points, the District Court on April 30 issued a preliminary in-
 A | National Security and Inherent and Emergency Powers | 347

Junction restraining the Secretary from “continuing the seizure and posses-
sion of the plant ... and from acting under the purported authority of Exec-
utive Order No. 10340.” On the same day the Court of Appeals stayed the
District Court’s injunction. Deeming it best that the issues raised be
promptly decided by this Court, we granted certiorari on May 3 and set the
cause for argument on May 12....
The President’s power, if any, to issue the order must stem either from an
act of Congress or from the Constitution itself. There is no statute that ex-
pressly authorizes the President to take possession of property as he did here.
Nor is there any act of Congress to which our attention has been directed
from which such a power can fairly be implied. Indeed, we do not under-
stand the Government to rely on statutory authorization for this seizure.
There are two statutes which do authorize the President to take both per-
sonal and real property under certain conditions. However, the Government
admits that these conditions were-not met and that the President’s order was
not rooted in either of the statutes. The Government refers to the seizure
provisions of one of these: statutes (Sec. 201 (b) of the Defense Production
Act) as “much too cumbersome, involved, and time-consuming for the crisis
which was at hand.”
Moreover, the use of the seizure technique to solve labor disputes in or-
der to prevent work stoppages was not only unauthorized by any congres-
sional enactment; prior to this controversy, Congress had refused to adopt
that method of settling labor disputes. When the Taft-Hartley Act was under
consideration in 1947, Congress rejected an amendment which would have
authorized such governmental seizures in cases of emergency. Apparently it
was thought that the technique of seizure, like that of compulsory arbitra-
tion, would interfere with the process of collective bargaining. Consequently,
the plan Congress adopted in that Act did not provide for seizure under any
circumstances. Instead, the plan sought to bring about settlements by use of
the customary devices of mediation, conciliation, investigation by boards of
inquiry, and public reports. In some instances temporary injunctions were
authorized to provide cooling-off periods. All this failing, unions were left
free to strike after a secret vote by employees as to whether they wished to
accept their employers’ final settlement offer.
It is clear that if the President had authority to issue the order he did, it
must be found in some provisions of the Constitution. And it is not claimed
that express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate
of his powers under the Constitution. Particular reliance is placed on provi-
sions in Article II which say that “the executive Power shall be vested in a
President . . .”; that “he shall take Care that the Laws be faithfully executed”;
and that he “shall be Commander in Chief of the Army and Navy of the
United States.”
The order cannot properly be sustained as an exercise of the President’s
military power as Commander in Chief of the Armed Forces. The Govern-
ment attempts to do so by citing a number of cases upholding broad powers
in military commanders engaged in day-to-day fighting in a theater of war.
Such case> need not concern us here. Even though “theater of war” [is] an
expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander in Chief of the Armed Forces has the ultimate
348 | THe PRESIDENT AS CHIEF EXECUTIV E IN DOMESTIC AFFAIRS
ee SS SS SS

power as such to take possession of private property in order to keep labor

disputes from stopping production. This is a job for the Nation’s lawmakers,
not for its military authorities.
Nor can the seizure order be sustained because of the several constitu-
tional provisions that grant executive power to the President. In the frame-
work of our Constitution, the President’s power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker. The Consti-
tution limits his functions in the lawmaking process to the recommending of
laws he thinks wise and the vetoing of laws he thinks bad. And the Constitu-
tion is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that “All leg-
islative Powers herein granted shall be vested in a Congress of the United
States... 2’ After granting many powers to the Congress, Article I goes on to
provide that Congress may “make ‘all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers and all other Pow-
ers vested by this Constitution in the Government of the United States, or in
any Department or Officer thereof.”
The President’s order does not direct that a congressional policy be ex-
ecuted in a manner prescribed by Congress—it directs that a presidential
policy be executed in a manner prescribed by the President. The preamble of
the order itself, like that of many statutes, sets out reasons why the President
believes certain policies should be adopted, proclaims these policies as rules
of conduct to be followed, and again, like a statute, authorizes a government
official to promulgate additional rules and regulations consistent with the
policy proclaimed and needed to carry that policy into execution. The power
of Congress to adopt such public policies as those proclaimed by the order is
beyond question. It can authorize the taking of private property for public
use. It can make laws regulating the relationships between employers and
employees, prescribing rules designed to settle labor disputes, and fixing
wages and working conditions in certain fields of our economy. The Consti-
tution did not subject this law-making power of Congress to presidential or
military supervision or control.
It is said that other Presidents without congressional authority have
taken possession of private business enterprises in order to settle labor dis-
putes. But even if this be true, Congress has not thereby lost its exclusive
constitutional authority to make laws necessary and proper to carry out the
powers vested by the Constitution “in the Government of the United States,
or in any Department or Officer thereof.”
The Founders of this Nation entrusted the law making power to the
Congress alone in both good and bad times. It would do no good to recall
the historical events, the fears of power and the hopes for freedom that lay
behind their choice. Such a review would but confirm our holding that this
seizure order cannot stand.
The judgment of the District Court 1s affirmed.
Affirmed.

(1 Justice JACKSON, concurring.

That comprehensive and undefined presidential powers hold both prac-
tical advantages and grave dangers for the country will impress anyone who
 A | National Security and Inherent and Emergency Powers | 349

has served as legal adviser to a President in time of transition and public anx-
iety. While an interval of detached reflection may temper teachings of that
experience, they probably are a more realistic influence on my views than
the conventional materials of judicial decision which seem unduly to ac-
centuate doctrine and legal fiction. But as we approach the question of
presidential power, we half overcome mental hazards by recognizing them.
The opinions of judges, no less than executives and publicists, often suffer
the infirmity of confusing the issue of a power’s validity with the cause
it is invoked to promote, of confounding the permanent executive office
with its temporary occupant. The tendency is strong to emphasize tran-
sient results upon policies—such as wages or stabilization—and lose sight
of enduring consequences upon the balanced power structure of our Re-
public.
A judge, like an executive adviser, may be surprised at the poverty of re-
ally useful and unambiguous authority applicable to concrete problems of
executive power as they actually present themselves. Just what our forefathers
did envision, or would have envisioned had they foreseen modern condi-
tions, must be divined from materials almost as enigmatic as the dreams
Joseph was called upon to interpret for Pharaoh.A century and a half of par-
tisan debate and scholarly speculation yields no net result but only supplies
more or less apt quotations from respected sources on each side of any ques-
tion. They largely cancel each other. And court decisions are indecisive be-
cause of the judicial practice of dealing with the largest questions in the most
narrow way.
The actual art of governing under our Constitution does not and can-
not conform to judicial definitions of the power of any of its branches based
on isolated clauses or even single Articles torn from context. While the Con-
stitution diffuses power the better to secure liberty, it also contemplates that
practice will integrate the dispersed powers into a workable government. It
enjoins upon its branches separateness but interdependence, autonomy but
reciprocity. Presidential powers are not fixed but fluctuate, depending upon
their disjunction or conjunction with those of Congress. We may well begin
by a somewhat over-simplified grouping of practical situations in which a
President may doubt, or others may challenge, his powers, and by distin-
guishing roughly the legal consequences of this factor of relativity.
1.When the President acts pursuant to an express or implied authoriza-
tion 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. In these cir-
cumstances, and in these only, may he be said (for what it may be worth), to
personify the federal sovereignty. If his act is held unconstitutional under
these circumstances, it usually means that the Federal Government as an un-
divided whole lacks power. A seizure executed by the President pursuant to
an Act of Congress would be supported by the strongest of presumptions and
the widest latitude of judicial interpretation, and the burden of persuasion
would rest heavily upon any who might attack it.
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, but
there is a”7one of twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain. Therefore, congressional
 350 AFFAIRS
| THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTICee
SE e
SY ee

inertia, indifference or quiescence may sometimes, at least as a practical mat-

ter, enable, if not invite, measures on independent presidential responsibility.
In this area, any actual test of power is likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of
law.
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. Courts can sustain exclusive Presidential
control in such a case only by disabling the Congress from acting upon the
subject. Presidential claim to a power at once so conclusive and preclusive
must be scrutinized with caution, for what is at stake is the equilibrium es-
tablished by our constitutional system.
Into which of these classifications does this executive seizure of the steel
industry fit? It is eliminated from the first by admission, for it is conceded
that no congressional authorization exists for this seizure. That takes away
also the support of the many precedents and declarations which were made
in relation, and must be confined, to this category.
Can it then be defended under flexible tests available to the second cat-
egory? It seems clearly eliminated from that class because Congress has not
left seizure of private property an open field but has covered it by three
statutory policies inconsistent with this seizure. In cases where the purpose is
to supply needs of the Government itself, two courses are provided: one,
seizure of a plant which fails to comply with obligatory orders placed by the
Government, another, condemnation of facilities, including temporary use
under the power of eminent domain. The third is applicable where it is the
general economy of the country that is to be protected rather than exclusive
governmental interests. None of these were invoked. In choosing a different
and inconsistent way of his own, the President cannot claim that it is neces-
sitated or invited by failure of Congress to legislate upon the occasions,
grounds and methods for seizure of industrial properties.
This leaves the current seizure to be justified only by the severe tests
under the third grouping, where it can be supported only by any remainder
of executive power after subtraction of such powers as Congress may
have over the subject. In short, we can sustain the President only by hold-
ing that seizure of such strike-bound industries is within his domain and
beyond control by Congress. Thus, this Court’s first review of such sei-
zures occurs under circumstances which leave Presidential power most vul-
nerable to attack and in the least favorable of possible constitutional postures.
I did not suppose, and I am not persuaded, that history leaves it open to
question, at least in the courts, that the executive branch, like the Federal
Government as a whole, possesses only delegated powers. The purpose of the
Constitution was not only to grant power, but to keep it from getting out of
hand. However, because the President does not enjoy unmentioned powers
does not mean that the mentioned ones should be narrowed by a niggardly
construction. Some clauses could be made almost unworkable, as well as im-
mutable, by refusal to indulge somie latitude of interpretation for changing
times. I have heretofore, and do now, give to the enumerated powers the
scope and elasticity afforded by what seem to be reasonable practical impli-
cations instead of the rigidity dictated by a doctrinaire textualism. . . .
 A | National Security and Inherent and Emergency Powers | 351

Loose and irresponsible use of adjectives colors all non-legal and much
legal discussion ofpresidential powers. “Inherent” powers, “implied
” powers,
“incidental” powers, “plenary” powers, “war” powers and “emerge
ncy”
powers are used, often interchangeably and without fixed or ascertai
nable
meanings.
The vagueness and generality of the clauses that set forth presidential
powers afford a plausible basis for pressures within and without an adminis-
tration for presidential action beyond that supported by those whose respon-
sibility it is to defend his actions in court. The claim of inherent
and
unrestricted presidential powers has long been a persuasive dialectica
l
weapon in political controversy. While it is not surprising that counsel should
grasp support from such unadjudicated claims of power, a judge cannot ac-
cept self-serving press statements of the attorney for one of the interested
parties as authority in answering a constitutional question, even if the advo-
cate was himself. But prudence has counseled that actual reliance on such
nebulous claims stop short of provoking a judicial test.
The Solicitor General, acknowledging that Congress has never author-
ized the seizure here, says practice of prior Presidents has authorized it. He
seeks color of legality from claimed executive precedents, chief of which is
President Roosevelt’s seizure on June 9, 1941, of the California plant of the
North American Aviation Company. Its superficial similarities with the pres-
ent case, upon analysis, yield to distinctions so decisive that it cannot be re-
garded as even a precedent, much less an authority for the present seizure.
The appeal, however, that we declare the existence of inherent powers
ex necessitate to meet an emergency asks us to do what many think would be
wise, although it is something the forefathers omitted. They knew what
emergencies were, knew the pressures they engender for authoritative action,
knew, too, how they afford a ready pretext for usurpation. We may also sus-
pect that they suspected that emergency powers would tend to kindle emer-
gencies. Aside from suspension of the privilege of the writ of habeas corpus
in time of rebellion or invasion, when the public safety may require it, they
made no express provision for exercise of extraordinary authority because of
a crisis. I do not think we rightfully may so amend their work, and, if we
could, I am not convinced it would be wise to do so, although many mod-
ern nations have forthrightly recognized that war and economic crises may
upset the normal balance between liberty and authority. Their experience
with emergency powers may not be irrelevant to the argument here that we
should say that the Executive, of his own volition, can invest himself with
undefined emergency powers... .
In view of the ease, expedition and safety with which Congress can
grant and has granted large emergency powers, certainly ample to embrace
this crisis, 1 am quite unimpressed with the argument that we should affirm
possession of them without statute. Such power either has no beginning or it
has no end. If it exists, it need submit to no legal restraint. 1 am not alarmed
that it would plunge us straightway into dictatorship, but it is at least a step in
that wrong direction.
As to whether there is imperative necessity for such powers, it is relevant
to note th. gap that exists between the President’s paper powers and his real
powers. The Constitution does not disclose the measure of the actual con-
trols wielded by the modern presidential office. That instrument must be
352 | THE PRESIDENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS

understood as an Eighteenth-Century sketch of a government hoped for, not

as a blueprint of the Government that is. Vast accretions of federal power,
eroded from that reserved by the States, have magnified the scope of presi-
dential activity. Subtle shifts take place in the centers of real power that do
not show on the face of the Constitution.
Executive power has the advantage of concentration in a single head in
whose choice the whole Nation has a part, making him the focus of public
hopes and expectations. In drama, magnitude and finality his decisions so far
overshadow any others that almost alone he fills the public eye and ear. No
other personality in public life can begin to compete with him in access to
the public mind through modern methods of communications. By his pres-
tige as head of state and his influence upon public opinion he exerts a lever-
age upon those who are supposed to check and balance his power which
often cancels their effectiveness.
Moreover, rise of the party system has made a significant extra-
constitutional supplement to real executive power. No appraisal of his neces-
sities is realistic which overlooks that he heads a political system as well as a
legal system. Party loyalties and interests, sometimes more binding than law,
extend his effective control into branches of government other than his own
and he often may win, as a political leader, what he cannot command under
the Constitution. Indeed, Woodrow Wilson, commenting on the President as
leader both of his party and of the Nation, observed, “If he rightly interpret
the national thought and boldly insist upon it, he is irresistible. . . . His office
is anything he has the sagacity and force to make it.” I cannot be brought to
believe that this country will suffer if the Court refuses further to aggrandize
the presidential office, already so potent and so relatively immune from judi-
cial review, at the expense of Congress.
- But I have no illusion that any decision by this Court can keep power in
the hands of Congress if it is not wise and timely in meeting its problems. A
crisis that challenges the President equally, or perhaps primarily, challenges
Congress. If not good law, there was worldly wisdom in the maxim attrib-
uted to Napoleon that “The tools belong to the man who can use them.”
We may say that power to legislate for emergencies belongs in the hands of
Congress, but only Congress itself can prevent power from slipping through
its fingers.
The essence of our free Government is “leave to live by no man’s leave,
underneath the law”—to be governed by those impersonal forces which we
call law. Our Government is fashioned to fulfill this concept so far as hu-
manly possible. The Executive, except for recommendation and veto, has no
legislative power. The executive action here originates in the individual will
of the President and represents an exercise of authority without law. No one,
perhaps not even the President, knows the limits of the power he may seek
to exert in this instance and the parties affected cannot learn the limit of
their rights. We do not know today what powers over labor or property
would be claimed to flow from Government possession if we should legalize
it, what rights to compensation would be claimed or recognized, or on what
contingency it would end. With all its defects, delays and inconveniences,
men have discovered no technique for long preserving free government ex-
cept that the Executive be under the law, and that the law be made by par-
liamentary deliberations.
 A | National Security and Inherent and Emergency Powers | 353

Such institutions may be destined to pass away. But it is the

duty of the
Court to be last, not first, to give them up.

O Justice CLARK, concurring.

The limits of presidential power are obscure. However, Article
II, no less
than Article I, is part of “a constitution intended to endure for ages
to come,
and, consequently, to be adapted to the various crises of human
affairs.”
Some of our Presidents, such as Lincoln, “felt that measures
otherwise un-
constitutional might become lawful by becoming indispensable
to the
preservation of the Constitution through the preservation of the nation.”
Others, such as Theodore Roosevelt, thought the President to be capable,
as a “steward” of the people, of exerting all power save that which is specifi-
cally prohibited by the Constitution or the Congress. In my view—taught
me not only by the decision of Chief Justice MARSHALL in Little v.
Bar-
reme, 2 Cranch 170 [(1804)], but also by a score of other pronouncements of
distinguished members of this bench—the Constitution does grant to the
President extensive authority in times of grave and imperative national
emergency. In fact, to my thinking, such a grant may well be necessary to the
very existence of the Constitution itself. As Lincoln aptlysaid, “[is] it possible
to lose the nation and yet preserve the Constitution?” In describing this au-
thority I care not whether one calls it “residual,” “inherent,” “moral,” “im-
plied,” “aggregate,” “emergency,” or otherwise. I am of the conviction that
those who have had the gratifying experience of being the President’s lawyer
have used one or more of these adjectives only with the utmost of sincerity
and the highest of purpose.
I conclude that where Congress has laid down specific procedures to
deal with the type of crisis confronting the President, he must follow those
procedures in meeting the crisis; but that in the absence of such action by
Congress, the President’s independent power to act depends upon the grav-
ity of the situation confronting the nation. I cannot sustain the seizure in
question because ... Congress had prescribed methods to be followed by the
President in meeting the emergency at hand.

“| Justice DOUGLAS, concurring.

There can be no doubt that the emergency which caused the President
to seize these steel plants was one that bore heavily on the country. But the
emergency did not create power; it merely marked an occasion when power
should be exercised. And the fact that it was necessary that measures be taken
to keep steel in production does not mean that the President, rather than the
Congress, had the constitutional authority to act. The Congress as well as the
President, is trustee of the national welfare. The President can act more
quickly than the Congress. The President with the armed services at his dis-
posal can move with force as well as with speed. All executive power—from
the reign of ancient kings to the rule of modern dictators—has the outward
appearance of efficiency.
Legislative power, by contrast, is slower to exercise. There must be delay
while the ;onderous machinery of committees, hearings, and debates is put
into motion. That takes time; and while the Congress slowly moves into ac-
tion, the emergency may take its toll in wages, consumer goods, war produc-
354 | Tur PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

ve
tion, the standard of living of the people, and perhaps even lives. Legislati
ome, time-co nsuming , and apparent ly
action may indeed often be cumbers
inetucientiey. ©
of
We therefore cannot decide this case by determining which branch
government can deal most expeditiously with the present crisis. The answer
must depend on the allocation of powers under the Constitution. ...
The legislative nature of the action taken by the President seems to me
a
to be clear. When the United States takes over an industrial plant to settle
the plant is a tak-
labor controversy, it is condemning property. The seizure of
ing in the constitutional sense.A permanent taking would amount to the na-
tionalization of the industry. A temporary taking falls short of that goal. But
though the seizure is only for a week or a month, the condemnation is com-
plete-and the United States must pay compensation for the temporary pos-
session. ...
The power of the Federal Government to condemn property is well es-
tablished. Kohl v. United States, 91 U.S. 367 [(1876)]. It can condemn for any
public purpose; and I have no doubt but that condemnation of a plant, fac-
tory, or industry in order to promote industrial peace would be constitu-
tional. But there is a duty to pay for all property taken by the Government.
The command of the Fifth Amendment is that no “private property be taken
for public use, without just compensation.” That constitutional requirement
has an important bearing on the present case.
The President has no power to raise revenues. That power is in the Con-
gress by Article I, Section 8 of the Constitution. The President might seize and
the Congress by subsequent action might ratify the seizure. But until and un-
less Congress acted, no condemnation would be lawful. The branch of govern-
ment that has the power to pay compensation fora seizure is the only one able
to authorize a seizure or make lawful one that the President had effected. That
seems to me to be the necessary result of the condemnation provision in the
Fifth Amendment. It squares with the theory of checks and balances ex-
pounded by Justice BLACK in the opinion of the Court in which I join.
If we sanctioned the present exercise of power by the President, we
would be expanding Article II of the Constitution and rewriting it to suit
the political conveniences of the present emergency. .. .
We pay a price for our system of checks and balances, for the distribu-
tion of power among the three branches of government. It is a price that to-
day may seem exorbitant to many. Today a kindly President uses the seizure
power to effect a wage increase and to keep the steel furnaces in production.
Yet tomorrow another President might use the same power to prevent a
wage increase, to curb trade unionists, to regiment labor as oppressively as in-
dustry thinks it has been regimented by this seizure.

| Justice FRANKFURTER, concurring.

The pole-star for constitutional adjudications is John MARSHALL’

greatest judicial utterance that “it is a constitution we are expounding.” Mc-
Culloch v. Maryland, 4 Wheat. 316 [(1819)].That requires both a spacious view
in applying an instrument of government “made for an undefined and ex-
panding future,” Hurtado v. People of State of California, 110 U.S. 516 [(1884)],
and as narrow a delimitation of the constitutional issues as the circumstances
permit. Not the least characteristic of great statesmanship which the Framers
 A | National Security and Inherent and Emergency Powers | 355

manifested was the extent to which they did not attempt to bind the future.
It is no less incumbent upon this Court to avoid putting fetters upon the
fu-
ture by needless pronouncements today.
MARSHALL’ admonition that “it is a constitution we are expounding”
is
especially relevant when the Court is required to give legal sanctions to
an
underlying principle of the Constitution—that of separation of powers.
...
The issue before us can be met, and therefore should be, without
at-
tempting to define the President’s powers comprehensively. I shall not
at-
tempt to delineate what belongs to him by virtue of his office beyond
the
power even of Congress to contract; what authority belongs to him until
Congress acts; what kind of problems may be dealt with either by the Con-
gress or by the President or by both, what power must be exercised by the
Congress and cannot be delegated to the President. It is as unprofitable to
lump together in an undiscriminating hotch-potch past presidential actions
claimed to be derived from occupancy of the office, as it is to conjure up hy-
pothetical future cases. The judiciary may, as this case proves, have to inter-
vene in determining where. authority lies as between the democratic forces
in our scheme of government. But in doing so we should be wary and hum-
ble. Such is the teaching of this Court’s role in the history of the country.
It is in this mood and with this perspective that the issue before the
_ Court must be approached. We must therefore put to one side consideration
of what powers the President would have had if there had been no legisla-
tion whatever bearing on the authority asserted by the seizure, or if the
seizure had been only for a short, explicitly temporary period, to be termi-
nated automatically unless Congressional approval were given. These and
other questions, like or unlike, are not now here. I would exceed my author-
ity were I to say anything about them.
The question before the Court comes in this setting. Congress has fre-
quently—at least 16 times since 1916—specifically provided for executive
seizure ofproduction, transportation, communications, or storage facilities. In
every case it has qualified this grant of power with limitations and safeguards.
This body of enactments—summarized in tabular form in Appendix I—
demonstrates that Congress deemed seizure so drastic a power as to require
that it be carefully circumscribed whenever the President was vested with
this extraordinary authority. The power to seize has uniformly been given
only for a limited period or for a defined emergency, or has been repealed
after a short period. Its exercise has been restricted to particular circum-
stances such as “time of war or when war is imminent,” the needs of “public
safety” or of “national security or defense,” or “urgent and impending need.”
The period of governmental operation has been limited, as, for instance, to
“sixty days after the restoration of productive efficiency.” Seizure statutes
usually make executive action dependent on detailed conditions: for exam-
ple, (a) failure or refusal of the owner of a plant to meet governmental sup-
ply needs or (b) failure of voluntary negotiations with the owner for the use
of a plant necessary for great public ends. Congress often has specified the
particular executive agency which should seize or operate the plants or
whose judgment would appropriately test the need for seizure. Congress also
has not left to implication that just compensation be paid; it has usually leg-
islated in detail regarding enforcement of this litigation-breeding general re-
quirement. ...
In adopting the provisions which it did, by the Labor Management Re-
356 | THE PRESIDENT AS CHIEF EXECUTIVE IN Domesti c AFFAIRS
a
(i i 2. asSS

a
lations Act of 1947, for dealing with a “national emergency” arising out of
breakdow n in peaceful industrial relations, Congress was very familiar with
Government seizure as a protective measure. On a balance of considerations
Congress chose not to lodge this power in the President. It chose not to
make available in advance a remedy to which both industry and labor were
fiercely hostile. In deciding that authority to seize should be given to the
President only after full consideration of the particular situation should show
such legislation to be necessary, Congress presumably acted on experience
with similar industrial conflicts in the past. It evidently assumed that indus-
trial shutdowns in basic industries are not instances of spontaneous genera-
tion, and that danger warnings are sufficiently plain before the event to give
ample opportunity to start the legislative process into action.
In any event, nothing can be plainer than that Congress made a con-
scious choice of policy in a field full of perplexity and peculiarly within leg-
islative responsibility for choice. In formulating legislation for dealing with
industrial conflicts, Congress could not more clearly and emphatically have
withheld authority than it did in 1947. Perhaps as much so as is true of any
piece of modern legislation, Congress acted with full consciousness of what
it was doing and in the light of much recent history. Previous seizure legisla-
tion had subjected the powers granted to the President to restrictions of
varying degrees of stringency. Instead of giving him even limited powers,
Congress in 1947 deemed it wise to require the President, upon failure of at-
tempts to reach a voluntary settlement, to report to Congress if he deemed
the power of seizure a needed shot for his locker. The President could not ig-
nore the specific limitations of prior seizure statutes. No more could he act
in disregard of the limitation put upon seizure by the 1947 Act... .
By the Labor Management Relations Act of 1947, Congress said to the
President, “You may not seize. Please report to us and ask for seizure power
if you think it is needed in a specific situation.” . ..
It is not a pleasant judicial duty to find that the President has exceeded
his powers and still less so when his purposes were dictated by concern for
the Nation’s well-being, in the assured conviction that he acted to avert dan-
ger. But it would stultify one’s faith in our people to entertain even a mo-
mentary fear that the patriotism and the wisdom of the President and the
Congress, as well as the long view of the immediate parties in interest, will
not find ready accommodation for differences on matters which, however
close to their concern and however intrinsically important, are overshadowed
by the awesome issues which confront the world.

(1 Chief Justice VINSON, with whom Justice REED and JusticeMINTON

join, dissenting.
Those who suggest that this is a case involving extraordinary powers
should be mindful that these are extraordinary times. A world not yet re-
covered from the devastation of World War II has been forced to face the
threat of another and more terrifying global conflict.
Accepting in full measure its responsibility in the world community, the
United States was instrumental in securing adoption of the United Nations
Charter, approved by the Senate by a vote of 89 to 2.The first purpose of the
United Nations is to “maintain international peace and security, and to that
 A | National Security and Inherent and Emergency Powers | 357

end: to take effective collective measures for the prevention and removal
of
threats to the peace and for the suppression of acts of aggression or
other
breaches of the peace.” ... In 1950, when the United Nations called
upon
member nations “to render every assistance” to repel aggression in Korea, the
United States furnished its vigorous support. For almost two full years,
our
armed forces have been fighting in Korea, suffering casualties of over
108,000 men. Hostilities have not abated. The “determination of the
United
Nations to continue its action in Korea to meet the aggression” has been
reaffirmed. Congressional support of the action in Korea has been mani-
fested by provisions for increased military manpower and equipment and
for
economic stabilization. ... 4
One is not here called upon even to consider the possibility of executive
seizure of a farm, a corner grocery store or even a single industrial plant.
Such considerations arise only when one ignores the central fact of this
case—that the Nation’s entire basic steel production would have shut down
completely if there had been no Government seizure. Even ignoring for the
moment whatever confidential information the President may possess as “the
Nation’s organ for foreign affairs,” the uncontroverted affidavits in this record
amply support the finding that “a work stoppage would immediately jeop-
ardize and imperil our national defense.” . . .
In passing upon the grave constitutional question presented in this case,
we must never forget, as Chief Justice MARSHALL admonished, that the
Constitution is “intended to endure for ages to come, and consequently, to be
adapted to the various crises of human affairs,” and that “[i]ts means are ade-
quate to its ends.” Cases do arise presenting questions which could not have
been foreseen by the Framers. In such cases, the Constitution has been treated
as a living document adaptable to new situations. But we are not called upon
today to expand the Constitution to meet a new situation. For, in this case, we
need only look to history and time-honored principles of constitutional
law—principles that have been applied consistently by all branches of the
Government throughout our history. It is those who assert the invalidity of
the Executive Order who seek to amend the Constitution in this case.
A review of executive action demonstrates that our Presidents have on
many occasions exhibited the leadership contemplated by the Framers when
they made the President Commander in Chief, and imposed upon him the
trust to “take Care that the Laws be faithfully executed.” With or without
explicit statutory authorization, Presidents have at such times dealt with na-
tional emergencies by acting promptly and resolutely to enforce legislative
programs, at least to save those programs until Congress could act. Congress
and the courts have responded to such executive initiative with consistent
approval. ...
The President reported to Congress the morning after the seizure that
he acted because a work stoppage in steel production would immediately
imperil the safety of the Nation by preventing execution of the legislative
programs for procurement of military equipment. And, while a shutdown
could be averted by granting the price concessions requested by plaintiffs,
granting such concessions would disrupt the price stabilization program also
‘enacted by Congress. Rather than fail to execute either legislative program,
the President acted to execute both. ...
The absence of a specific statute authorizing seizure of the steel mills as
358 | THE PRESIDENT AS CHIEF EXECUTIVE IN DomesTIC AFFAIRS

a mode of executing the laws—both the military procurement program and

the anti-inflation program—has not until today been thought to prevent the
President from executing the laws... .
There is no statute prohibiting seizure as a method of enforcing legisla-
tive programs. Congress has in no wise indicated that its legislation is not to
be executed by the taking of private property (subject of course to the pay-
ment of just compensation) if its legislation cannot otherwise be executed.
Military Training and Service Act authorizes the
Indeed, the Universal
seizure of any plant that fails to fill a Government contract or the properties
of any steel producer that fails to allocate steel as directed for defense pro-
duction. And the Defense Production Act authorizes the President to requi-
sition equipment and condemn real property needed without delay in the
defense effort. Where Congress authorizes seizure in instances not necessar-
ily crucial to the defense program, it can hardly be said to have disclosed an
intention to prohibit seizures where essential to the execution of that legisla-
tive program.
Whatever the extent of Presidential power on more tranquil occasions,
and whatever the right of the President to execute legislative programs as he
sees fit without reporting the mode of execution to Congress, the single
Presidential purpose disclosed on this record is to faithfully execute the laws
by acting in an emergency to maintain the status quo, thereby preventing
collapse of the legislative programs until Congress could act. The President’s
action served the same purposes as a judicial stay entered to maintain the sta-
tus quo in order to preserve the jurisdiction of a court. In his Message to
Congress immediately following the seizure, the President explained the ne-
cessity of his action in executing the military procurement and anti-inflation
legislative programs and expressed his desire to cooperate with any legislative
proposals approving, regulating or rejecting the seizure of the steel mills.
Consequently, there is no evidence whatever of any Presidential purpose to
defy Congress or act in any way inconsistent with the legislative will....
The diversity of views expressed in the six opinions of the majority, the
lack of reference to authoritative precedent, the repeated reliance upon prior
dissenting opinions, the complete disregard of the uncontroverted facts
showing the gravity of the emergency and the temporary nature of the tak-
ing all serve to demonstrate how far afield one must go to affirm the order
of the District Court.
The broad executive power granted by Article II to an officer on duty
365 days a year cannot, it is said, be invoked to avert disaster. Instead, the
President must confine himself to sending a message to Congress recom-
mending action. Under this messenger-boy concept of the Office, the Presi-
dent cannot even act to preserve legislative programs from destruction so
that Congress will have something left to act upon. There is no judicial find-
ing that the executive action was unwarranted because there was in fact no
basis for the President’s finding of the existence of an emergency for, under
this view, the gravity of the emergency and the immediacy of the threatened
disaster are considered irrelevant as a matter of law. ...
As the District Judge stated, this is no time for “timorous” judicial ac-
tion. But neither is this a time for timorous executive action. Faced with the
duty of executing the defense programs which Congress had enacted and the
disastrous effects that any stoppage in steel production would have on those
 A | National Security and Inherent and Emergency Powers | 359

programs, the President acted to preserve those programs

by seizing the steel
mills. There is no question that the Possession was other than
temporary in
character and subject to congressional direction—either approvi
ng, dis-
approving or regulating the manner in which the mills were to
be adminis-
tered and returned to the owners. The President immediately
informed
Congress of his action and clearly stated his intention to abide by
the legisla-
tive will. No basis for claims of arbitrary action, unlimited powers
or dictato-
rial usurpation of congressional power appears from the facts of this
case. On
the contrary, judicial, legislative and executive precedents through
out our
history demonstrate that in this case the President acted in full conform
ity
with his duties under the Constitution. Accordingly, we would reverse
the
order of the District Court. ?

-
SS SSS a ee a i es 2

New York Times Co. v. United States

403 U.S. 670, 91 S.CT. 2140 (1971)

In 1971, amid growing opposition to the undeclared Vietnam War, the

Nixon administration sought to enjoin the New York Times and the
Washington Post from publishing a series of articles based on a forty-
seven-volume study, History of U.S. Decision Making Process on Viet Nam
Policy. The study was prepared in 1968 and was classified top secret—
sensitive. The New York Times received duplicates of the study from
Daniel Ellsberg, who had secretly copied them while working for a
think tank and after his unsuccessful efforts to persuade leading politi-
cians to publicize the study.
After several months of reviewing the documents, the New York
Times commenced publication of selected items on June 13, 1971. Fol-
lowing the third installment the Department of Justice sought an in-
Junction against publication of the balance of the series and obtained
a temporary restraining order prohibiting further publication until
June 19. On June 18 the Washington Post also printed two articles based
on the study, and by five o’clock that day the government had filed a
similar suit against its further publication of the material.
The next morning a district court denied the government’s request
for a preliminary injunction, but later in the day a circuit court judge
extended the temporary restraining order until noon, June 21, to give a
panel of the Court of Appeals for the District of Columbia Circuit the
Opportunity to consider the government’s application. On June 22, the
- circuit court remanded the case to the district court to determine
whether any of the other materials posed “such grave and immediate
danger” to the security of the country as to warrant prior restraint and
360 | THe PresipENT AS CHIEF EXECUTIVE IN DomesTIc AFFAIRS

Times
a continued stay on publication until June 25. The New York
to vacate the stay on publica -
promptly appealed to the Supreme Court
tion and to expedite consideration of the case. On June 25 the Court
four
granted certiorari and heard arguments the next day. Remarkably,
days later the Court issued no fewer than ten opinions: one brief per cu-
riam opinion, six concurring and three dissenting opinions.
The Court’s decision was six to three, and the majority’s opinion
was announced per curiam. Justices Black, Douglas, Brennan, Stewart,
White, and Marshall delivered concurring opinions. Chief Justice
Burger and Justices Harlan and Blackmun dissented.

PER CURIAM

We granted certiorari in these cases in which the United States seeks to enjoin
the New York Times and the Washington Post from publishing the contents
of a classified study entitled “History of US. Decision-Making Process on
Viet Nam Policy.”
“Any system of prior restraints of expression comes to this Court bear-
ing a heavy presumption against its constitutional validity.’ Bantam Books,
Inc. v. Sullivan, 372 U.S. 58 (1963); see also Near v. Minnesota ex rel. Olson, 283
US. 697 (1931). The Government “thus carries a heavy burden of showing
justification for the imposition of such a restraint.’ Organization for a Better
Austin v. Keefe, 402 U.S. 415 (1971). The District Court for the Southern
District of New York in the New York Times case, 328 FSupp. 324, and the
District Court for the District of Columbia Circuit, 446 F2d 1327, in the
Washington Post case held that the Government had not met that burden. We
agree.
The judgment of the Court of Appeals for the District of Columbia
is therefore affirmed. The order of the Court of Appeals for the Second
Circuit is reversed and the case is remanded with directions to enter a
judgment affirming the judgment of the District Court for the Southern
District of New York. The stays entered June 25, 1971, by the Court are
vacated.

(1 Justice BLACK, with whom Justice DOUGLAS joins, concurring.

I believe that every moment’s continuance of the injunctions against
these newspapers amounts to a flagrant, indefensible, and continuing viola-
tion of the First Amendment... . In my view it is unfortunate that some of
my Brethren are apparently willing to hold that the publication of news may
sometimes be enjoined. Such a holding would make a shambles of the First
Amendment. . ..
In seeking injunctions against these newspapers and in its presentation
to the Court, the Executive Branch seems to have forgotten the essential
purpose and history of the First Amendment. When the Constitution was
adopted, many people strongly opposed it because the document contained
no Bill of Rights to safeguard certain basic freedoms. They especially feared
that the new powers granted to a central government might be interpreted
to permit the government to curtail freedom of religion, press, assembly, and
 A | National Security and Inherent and Emergency Powers | 361

speech. . .. Madison and the other Framers of the First Amendm

ent, able
men that they were, wrote in language they earnestly believed
could never
be misunderstood: “Congress shall make no law .. . abridging the
freedom
- +. Of the press.’.. 7’ Both the history and language of the First Amendm
ent
support the view that the press must be left free to publish news,
whatever
the source, without censorship, injunctions, or prior restraint
s... .
The Government’ case here is based on premises entirely different from
those that guided the Framers of the First Amendment. The Solicitor
Gen-
eral has carefully and emphatically stated:

“Now, Justice [BLACK], your construction of.. . [the First

Amendment] is well known, and I certainly respect it. You say that
no law means no law, and that should be obvious. I can only say,
Mr. Justice, that to me it is equally obvious that ‘no law’ does not
mean ‘no law, and I would seek to persuade the Court that that
is
true. ...[T]here are other parts of the Constitution that grant pow-
ers and responsibilities to the Executive, and .. . the First Amend-
ment was not intended to make it impossible for the Executive to
function or to protect the security of the United States.”

And the Government argues in its brief that in spite of the First Amend-
ment, “[t]he authority of the Executive Department to protect the nation
against publication of information whose disclosure would endanger the na-
tional security stems from two interrelated sources: the constitutional power
of the President over the conduct of foreign affairs and his authority as
Commander-in-Chief.”
In other words, we are asked to hold that despite the First Amendment’s
emphatic command, the Executive Branch, the Congress, and the Judiciary
can make laws enjoining publication of current news and abridging freedom
of the press in the name of “national security’? The Government does not
even attempt to rely on any act of Congress. Instead it makes the bold and
dangerously farreaching contention that the courts should take it upon
themselves to “make” a law abridging freedom of the press in the name of
equity, presidential power and national security. ....To find that the President
has “inherent power” to halt the publication of news by resort to the courts
would wipe out the First Amendment and destroy the fundamental liberty
and security of the very people the Government hopes to make “secure.” No
one can read the history of the adoption of the First Amendment without
being convinced beyond any doubt that it was injunctions like those sought
here that Madison and his collaborators intended to outlaw in this Nation
for all time.
The word “security” is a broad, vague generality whose contours should
not be invoked to abrogate the fundamental law embodied in the First
Amendment. The guarding of military and diplomatic secrets at the expense
of informed representative government provides no real security for our
Republic. The Framers of the First Amendment, fully aware of both the
need to defend a new nation and the abuses of the English and Colonial
Governménts, sought to give this new society strength and security by pro-
viding that freedom of speech, press, religion, and assembly should not be
abridged.
362 | THE PresipeNT AS CHIEF EXECUTIVE IN Domestic AFFAIRS

“) Justice DOUGLAS, with whom Justice BLACK joins, concurring.

The Government says that it has inherent powers to go into court and
is al-
obtain an injunction to protect the national interest, which in this case
leged to be national security.
ex-
Near v. Minnesota ex rel. Olson, 283 U.S. 697 [(1931)], repudiated that
pansive doctrine in no uncertai n terms. ...
Secrecy in government is fundamentally anti-democratic, perpetuating
to
bureaucratic errors. Open debate and discussion of public issues are vital
our national health. On public questions there should be “uninhibi ted, ro-
bust, and wide-open” debate.

O Justice BRENNAN, concurring.

I write separately in these cases only to emphasize what should be ap-

parent that our judgments in the present cases may not be taken to indicate
the propriety, in the future, of issuing temporary stays and restraining orders
to block the publication of material sought to be suppressed by the Govern-
ment. So far as I can determine, never before has the United States sought to
enjoin a newspaper from publishing information in its possession. The rela-
tive novelty of the questions presented, the necessary haste with which deci-
sions were reached, the magnitude of the interests asserted, and the fact that
all the parties have concentrated their arguments upon the question whether
permanent restraints were proper may have justified at least some of the re-
straints heretofore imposed in these cases. .. . But even if it be assumed that
some of the interim restraints were proper in the two cases before us, that as-
sumption has no bearing upon the propriety of similar judicial action in the
future... . More important, the First Amendment stands as an absolute bar to
the imposition of judicial restraints in circumstances of the kind presented by
these cases.

© Justice STEWART, with whom Justice WHI TE joins, concurring.

In the governmental structure created by our Constitution, the Execu-
tive is endowed with enormous power in the two related areas of national
defense and international relations. This power, largely unchecked by the
Legislative and Judicial branches, has been pressed to the very hilt since the
advent of the nuclear missile age. For better or for worse, the simple fact is
that a President of the United States possesses vastly greater constitutional in-
dependence in these two vital areas of power than does, say, a prime minister
of a country with a parliamentary form of government.
In the absence of the governmental checks and balances present in other
areas of our national life, the only effective restraint upon executive policy
and power in the areas of national defense and international affairs may lie in
an enlightened citizenry—in an informed and critical public opinion which
alone can here protect the values of democratic government. For this reason,
it is perhaps here that a press that is alert, aware, and free most vitally serves
the basic purpose of the First Amendment. For without an informed and free
press there cannot be an enlightened people.
Yet it is elementary that the successful conduct of international diplo-
macy and the maintenance of an effective national defense require both con-
 A | National Security and Inherent and Emergency Powers | 363

fidentiality and secrecy. Other nations can hardly deal with this Nation
in an
atmosphere of mutual trust unless they can be assured that their confidences
will be kept. And within our own executive departments, the development
of considered and intelligent international policies would be impossible
if
those charged with their formulation could not communicate with each
other freely, frankly, and in confidence. In the area of basic national defense
the frequent need for absolute secrecy is, of course, self-evident.
I think there can be but one answer to this dilemma, if dilemma it
be.
The responsibility must be where the power is. If the Constitution gives the
Executive a large degree of unshared power in the conduct of foreign affairs
and the maintenance of our national defense, then under the Constitution
the Executive must have the largely unshared duty to determine and preserve
the degree of internal security necessary to exercise that power successfully.
It is an awesome responsibility, requiring judgment and wisdom of a high
order. I should suppose that moral, political, and practical considerations
would dictate that a very first principle of that wisdom would be an insis-
tence upon avoiding secrecy for its own sake. For when everything is classi-
fied, then nothing is classified, and the system becomes one to be disregarded
by the cynical or the careless, and to be manipulated by those intent on self-
protection or self-promotion. I should suppose, in short, that the hallmark of
a truly effective internal security system would be the maximum possible
disclosure, recognizing that secrecy can best be preserved only when credi-
bility is truly maintained. But be that as it may, it is clear to me that it is the
constitutional duty of the Executive—as a matter of sovereign prerogative
and not as a matter of law as the courts know law—through the promulga-
tion and enforcement of executive regulations, to protect the confidentiality
necessary to carry out its responsibilities in the fields of international rela-
tions and national defense.
This is not to say that Congress and the courts have no role to play. Un-
doubtedly Congress has the power to enact specific and appropriate criminal
laws to protect government property and preserve government secrets. . ..
Moreover, if Congress should pass a specific law authorizing civil proceed-
ings in this field, the courts would likewise have the duty to decide the con-
stitutionality of such a law as well as its applicability to the facts proved.
But in the cases before us we are asked neither to construe specific reg-
ulations nor to apply specific laws. We are asked, instead, to perform a func-
tion that the Constitution gave to the Executive, not the Judiciary. We are
asked, quite simply, to prevent the publication by two newspapers of material
that the Executive Branch insists should not, in the national interest, be pub-
lished. I am convinced that the Executive is correct with respect to some of
the documents involved. But I cannot say that disclosure of any of them will
surely result in direct, immediate, and irreparable damage to our Nation or
its people. That being so, there can under the First Amendment be but one
judicial resolution of the issues before us. I join the judgments of the Court.

“1 Justice WHITE, with whom Justice STEWART joins, concurring.

I concur in today’s judgments, but only because of the concededly extra-
ordinary protection against prior restraints enjoyed by the press under our
constitutional system. I do not say that in no circumstances would the First
364 | THe PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

Amendment permit an injunction against publishing information about

government plans or operations. Nor, after examining the materials the
Government characterizes as the most sensitive and destructive, can I deny
that revelation of these documents will do substantial damage to public in-
terests. Indeed, I am confident that their disclosure will have that result. But
I nevertheless agree that the United States has not satisfied the very heavy
burden that it must meet to warrant an injunction against publication in
these cases, at least in the absence of express and appropriately limited con-
gressional authorization for prior restraints in circumstances such as these.
The Government’s position is simply stated: The responsibility of the
Executive for the conduct of the foreign affairs and for the security of the
Nation is so basic that the President is entitled to an injunction against pub-
lication of a newspaper story whenever he can convince a court that the in-
formation to be revealed threatens “grave and irreparable” injury to the
public interest; and the injunction should issue whether or not the material
to be published is classified, whether or not publication would be lawful un-
der relevant criminal statutes enacted by Congress, and regardless of the
circumstances by which the newspaper came into possession of the informa-
tion.
At least in the absence of legislation by Congress, based on its own in-
vestigations and findings, I am quite unable to agree that the inherent pow-
ers of the Executive and the courts reach so far as to authorize remedies
having such sweeping potential for inhibiting publications by the press.
Much of the difficulty inheres in the “grave and irreparable danger” standard
suggested by the United States. If the United States were to have judgment
under such a standard in these cases, our decision would be of little guidance
to other courts in other cases, for the material at issue here would not be
available from the Court’s opinion or from public records, nor would it be
published by the press. Indeed, even today where we hold that the United
States has not met its burden, the material remains sealed in court records
and it is properly not discussed in today’s opinions. Moreover, because the
material poses substantial dangers to national interests and because of the
hazards of criminal sanctions, a responsible press may choose never to publish
the more sensitive materials. To sustain the Government in these cases would
start the courts down a long and hazardous road that I am not willing to
travel, at least without congressional guidance and direction.

| Justice MARSHALL, concurring.

The problem here is whether in these particular cases the Executive

Branch has authority to invoke the equity jurisdiction of the courts to pro-
tect what it believes to be the national interest. See In re Debs, 158 U.S. 564
(1895). The Government argues that in addition to the inherent power of
any government to protect itself, the President’s power to conduct foreign af-
fairs and his position as Commander in Chief give him authority to impose
censorship on the press to protect his ability to deal effectively with foreign
nations and to conduct the military affairs of the country. Of course, it is
beyond cavil that the President has broad powers by virtue of his primary
responsibility for the conduct of our foreign affairs and his position as
Commander in Chief... .
It would, however, be utterly inconsistent with the concept of separation
 A | National Security and Inherent and Emergency Powers | 365

of powers for this Court to use its power of contempt to prevent behavior
that Congress has specifically declined to prohibit. There would be a similar
damage to the basic concept of these co-equal branches of Government if
when the Executive Branch has adequate authority granted by Congress to
protect “national security” it can choose instead to invoke the contempt
power of a court to enjoin the threatened conduct. The Constitution pro-
vides that Congress shall make laws, the President execute laws, and courts
interpret laws. It did not provide for government by injunction in which the
courts and the Executive Branch can “make law” without regard to the ac-
tion of Congress. It may be more convenient for the Executive Branch if it
need only convince a judge to prohibit conduct rather than ask the Congress
to pass a law, and it may be more convenient to enforce a contempt order
than to seek a criminal conviction in a Jury trial. Moreover, it may be con-
sidered politically wise to get a court to share the responsibility for arresting
those who the Executive Branch has probable cause to believe are violating
the law. But convenience and political considerations of the moment do not
Justify a basic departure from the principles of our system of government.

Chief Justice BURGER, dissenting.

I suggest . .. these cases have been conducted in unseemly haste... .
Here, moreover, the frenetic haste is due in large part to the manner in
which the Times proceeded from the date it obtained the purloined docu-
ments. It seems reasonably clear now that the haste precluded reasonable and
deliberate judicial treatment of these cases and was not warranted. ...
The newspapers make a derivative claim under the First Amendment:
they denominate this right as the public “right to know”; by implication, the
Times asserts a sole trusteeship of that right by virtue of its journalistic
“scoop.” The right is asserted as an absolute. Of course, the First Amendment
right itself is not an absolute, as Justice HOLMES so long ago pointed out in
his aphorism concerning the right to shout “fire” in a crowded theater if
there was no fire. There are other exceptions, some of which Chief Justice
HUGHES mentioned by way of example in Near v. Minnesota ex rel. Olson.
There are no doubt other exceptions no one has had occasion to describe or
discuss. . ..
It is not disputed that the Times has had unauthorized possession of the
documents for three to four months, during which it has had its expert ana-
lysts studying them, presumably digesting them and preparing the material
for publication. During all of this time, the Times, presumably in its capacity
as trustee of the public’s “right to know,” has held up publication for pur-
poses it considered proper and thus public knowledge was delayed. No doubt
this was for a good reason; the analysis of 7,000 pages of complex material
drawn from a vastly greater volume of material would inevitably take time
and the writing of good news stories takes time. But why should the United
States Government, from whom this information was illegally acquired by
someone, along with all the counsel, trial judges, and appellate judges be
placed under needless pressure? After these months of deferral, the alleged
“right to know” has somehow and suddenly become a right that must be
~ vindicated”instanter.
Would it have been unreasonable, since the newspaper could anticipate
the Government’s objections to release of secret material, to give the
366 | THE PresipENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS
ON ee ee ee

Government an opportunity to review the entire collection and determine

whether agreement could be reached on publication? Stolen or not, if secu-
rity was not in fact jeopardized, much of the material could no doubt have
been declassified, since it spans a period ending in 1968. With such an ap-
proach—one that great newspapers have in the past practiced and stated
editorially to be the duty of an honorable press—the newspapers and
Government might well have narrowed the area of disagreement as to what
was and was not publishable, leaving the remainder to be resolved in orderly
litigation, if necessary. To me it is hardly believable that a newspaper long re-
garded as a great institution in American life would fail to perform one of
the basic and simple duties of every citizen with respect to the discovery or
possession of stolen property or secret government documents. That duty, I
had thought—perhaps naively—was to report forthwith, to responsible pub-
lic officers. This duty rests on taxi drivers, Justices, and the New York Times.
The course followed by the Times, whether so calculated or not, removed
any possibility of orderly litigation of the issues. If the action of the judges up
to now has been correct, that result is sheer happenstance.

“) Justice HARLAN, with whom the CHIEF JUSTICE and Justice

BLACKMUN join, dissenting.
With all respect, I consider that the Court has been almost irresponsibly
feverish in dealing with these cases.
Both the Court of Appeals for the Second Circuit and the Court of Ap-
peals for the District of Columbia Circuit rendered judgment on June 23.
The New York Times’ petition for certiorari, its motion for accelerated consid-
eration thereof, and its application for interim relief were filed in this Court
on June 24 at about 11 a.m. The application of the United States for interim
relief in the Post case was also filed here on June 24 at about 7:15 PM.
This Court’s order setting a hearing before us on June 26 at 11 AM., a
course which I joined only to avoid the possibility of even more peremptory
action by the Court, was issued less than 24 hours before. The record in the
Post case was filed with the Clerk shortly before 1 pM. on June 25; the
record in the Times case did not arrive until 7 or 8 o’clock that same night.
The briefs of the parties were received less than two hours before argument
on June 26.
This frenzied train of events took place in the name of the presumption
against prior restraints created by the First Amendment. Due regard for the
extraordinarily important and difficult questions involved in these litigations
should have led the Court to shun such a precipitate timetable. In order to
decide the merits of these cases properly, some or all of the following ques-
tions should have been faced: ,
1. Whether the Attorney General is authorized to bring these suits in
the name of the United States. . ..
2. Whether the First Amendment permits the federal courts to enjoin
publication of stories which would present a serious threat to national secu-
Reyes,
3. Whether the threat to publish highly secret documents is of itself a
sufficient implication of national security to justify an injunction on the the-
ory that regardless of the contents of the documents harm enough results
simply from the demonstration of such a breach of secrecy.
 A | National Security and Inherent and Emergency Powers | 367

4. Whether the unauthorized disclosure of any of these particular docu-

ments would seriously impair the national security.
5. What weight should be given to the opinion of high officers in the
Executive Branch of the Government with respect to questions 3 and 4.
6. Whether the newspapers are entitled to retain and use the documents
notwithstanding the seemingly uncontested facts that the documents, or the
originals of which they are duplicates, were purloined from the Govern-
ment’s possession and that the newspapers received them with knowledge
that they had been feloniously acquired. .. .
7. Whether the threatened harm to the national security or the Govern-
ment’s possessory interest in the documents justifies the issuance of an in-
Junction against publication in light of—
a. The strong First Amendment policy against prior restraints on publi-
cation; ;
b. The doctrine against enjoining conduct in violation of criminal
statutes; and
c. The extent to which the materials at issue have apparently already
been otherwise disseminated.
These are difficult questions of fact, of law, and of judgment: the poten-
tial consequences of erroneous decision are enormous. The time which has
been available to us, to the lower courts, and to the parties has been wholly
inadequate for giving these cases the kind of consideration they deserve. It is
a reflection on the stability of the judicial process that these great issues—as
important as any that have arisen during my time on the Court—should
have been decided under the pressures engendered by the torrent of public-
ity that has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from the
opinion and judgments of the Court. ...
It is plain to me that the scope of the judicial function in passing upon
the activities of the Executive Branch of the Government in the field of for-
eign affairs is very narrowly restricted. This view is, I think, dictated by the
concept of separation of powers upon which our constitutional system rests.
In a speech on the floor of the House of Representatives, Chief Justice
John MARSHALL, then a member of that body, stated:

“The President is the sole organ of the nation in its external

relations, and its sole representative with foreign nations.” 10 Annals
of Cong. 613.

From that time, shortly after the founding of the Nation, to this, there has
been no substantial challenge to this description of the scope of executive
power. ... I agree that, in performance of its duty to protect the values of the
First Amendment against political pressures, the judiciary must review
the initial Executive determination to the point of satisfying itself that the
subject matter of the dispute does lie within the proper compass of the
President’s foreign relations power. Constitutional considerations forbid “a
complete abandonment of judicial control.” Moreover the judiciary may
properly insist that the determination that disclosure of the subject matter
would irresarably impair the national security be made by the head of the
Executive Department concerned—here the Secretary of State or the Secre-
tary of Defense—after actual personal consideration by that officer. This safe-
368 | THe Prestpent As Cuter EXECUTIVE IN DOMESTIC AFFAIRS
OS

guard is required in the analogous area of executive claims of privilege for

secrets of state. ...
But in my judgment the judiciary may not properly go beyond these
two inquiries and redetermine for itself the probable impact of disclosure on
the national security.

| Justice BLACKMUN, dissenting.

The country would be none the worse off were the cases tried quickly,
to be sure, but in the customary and properly deliberative manner. The most
recent of the material, it is said, dates no later than 1968, already about three
years ago, and the Times itself took three months to formulate its plan of pro-
cedure and, thus, deprived its public for that period.
The First Amendment, after all; is only one part of an entire Constitu-
tion. Article II of the great document vests in the Executive Branch primary
power over the conduct of foreign affairs and places in that branch the re-
sponsibility for the Nation’s safety. Each provision of the Constitution is im-
portant, and I cannot subscribe to a doctrine of unlimited absolutism for the
First Amendment at the cost of downgrading other provisions. First Amend-
ment absolutism has never commanded a majority of this Court. ...
What is needed here is a weighing, upon properly developed standards,
of the broad right of the press to print and of the very narrow right of the
Government to prevent.

= THE DEVELOPMENT OF LAW

The National Security Agency’s Warrantless

Electronic Surveillance

In 2005, a controversy erupted over the revelation that after the Septem-
ber 11, 2001, terrorist attacks President George W. Bush issued a secret exec-
utive order authorizing the National Security Agency (NSA) to conduct
warrantless electronic surveillance of “communications where one .. . party
to the communication is outside of the United States” and there was “a rea-
sonable basis to conclude that one party” has contacts with terrorists. The
surveillance involved monitoring e-mails, through Google-like searches, and
tracking Internet and satellite communications.
Foreign intelligence surveillance was supposed to be governed by the
Foreign Intelligence Surveillance Act (FISA) of 1978 (see The Development
of Law:The USA PATRIOT Act of 2001 box in Vol. 1, Ch. 3 and in Vol. 2,
Ch. 7). Under that law, the government must seek a warrant from a special
FISA court, though in emergencies warrantless searches may be conducted
for three days prior to requesting a warrant. The law also makes it a crime-for
 A | National Security and Inherent and Emergency Powers | 369

SSS
government officials to conduct “electronic surveillance under color of law
except as authorized bystatute.” The USA Patriot Act amended the FISA to
require a “significant purpose” for an investigation of foreign intelligence in-
formation; in 2006 the major provisions of the USA Patriot Act were ex-
tended and made permanent.
The Bush administration defended the NSA’s warrantless surveillance
on three grounds. First, the president has the inherent power and power as
commander in chief to do so during times of war. Prior presidents made
similar claims. President Abraham Lincoln ordered the warrantless wiretap-
ping of telegraph wires during the Civil War. Likewise, during World Wars I
and II Presidents Woodrow Wilson and Franklin D. Roosevelt ordered the
interception of international communications. Similar claims to presidential
power were made by subsequent administrations, including those of Presi-
dents Jimmy Carter and Bill Clinton.
Second, the joint resolution for the Authorization for the Use of
Military Force (AUMEF) of 2001 provides for the use of “all necessary and
appropriate” force to combat terrorists, and thus justifies the president’s ac-
tion. Third, the AUMF justifies not complying with the provisions of the
FISA, since it superseded FISA. In addition, Smith v, Maryland, 442 U.S. 735
(1979), upheld the use of pen registers, which record the telephone numbers
called from phones but not the conversations. Accordingly, by extension the
NSA’s collection of “meta-data”—the time and to and from of Internet and
satellite communications—was permissible.
By contrast, some members of Congress and civil liberties groups coun-
tered that the President has no inherent power to authorize warrantless do-
mestic security surveillance; that neither the AUMF nor the FISA permit
such a program; and that United States v. United States District Court, 407 U.S.
297 (1972), the so-called Keith case, held that domestic intelligence surveil-
lance requires prior judicial approval of a warrant in order to satisfy the
Fourth Amendment’s guarantee against unreasonable searches and seizures,
though the decision left open the matter of warrantless foreign surveillance.
After months of negotiations in 2006 Congress enacted legislation reassert-
ing the authority of the FISA court, while permitting wiretapping without a
warrant for up to 45 days but requiring the attorney general to certify and
explain why such warrantless surveillance is necessary to a subcommittee of
the Senate Intelligence Committee.
Subsequently, it was also revealed that the NSA had been monitoring
the phone numbers dialed by millions of U.S. citizens in order to search for
telephone calling patterns and possible links to terrorists, as well as that the
Central Intelligence Agency and the Department of Treasury monitored the
transactions of 7,800 financial institutions worldwide.
In response to criticisms and lawsuits filed by civil liberties groups chal-
lenging the constitutionality of the NSA’s warrantless surveillance, President
Bush agrecd to legislation that would consolidate litigation and give jurisdic-
tion to the FISA court. But he also exacted concessions permitting revisions
370 | THe PresipeNT As Cuter EXECUTIVE IN DOMESTIC AFFAIRS

of the program after the court’s ruling and permitting in emergency situa-
tions warrantless surveillance for up to one week (instead of the previous
seventy-two hours) before requesting a warrant. However, before that legis-
lation was enacted a federal district court, in American Civil Liberties Union v.
National Security Agency (2006), ruled that the president did not have the
inherent power to conduct such surveillance without judicial review, and
that the FISA controlled the government’s electronic eavesdropping. Subse-
quently, in 2007 the Bush administration agreed to give the FISA court ex-
clusive jurisdiction over the NSA’s wiretapping program and to end its
warrantless eavesdropping on citizens suspected of having ties to terrorists.
For further reading, see U.S. Department of Justice, “Legal Authorities Supporting the
Activities of the National Security Agency Described by the President” (Washington,
DC: Department of Justice, January 19, 2006), and compare Congressional Research
Service, “Memorandum: Presidential Authority to Conduct Warrantless Electronic
Surveillance to Gather Foreign Intelligence Information” (Washington, DC: Con-
gressional Research, January 5, 2006).

B | Appointment and Removal Powers

With the power given in Article II, Section 2, the president shall “nom-
inate, and by and with the advice and consent of the Senate, shall ap-
point ambassadors, other public ministers and consuls, judges of the
supreme Court, and all other Officers of the United States, whose Ap-
pointments are not herein otherwise provided for, and which shall be
established by Law.” He also has the power to make “recess appoint-
ments” when the Senate is not in session, and those appointees may
hold office through the next session even without Senate confirmation.
However, Article II also provides that “Congress may by Law vest the
Appointment of such inferior Officers, as they may think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments”
(emphasis added). Thus while the president has the power to nominate
and, with the consent of the Senate, appoint high government officials,
Congress has the power to condition,.and even deny the president, the
appointment power over “inferior” government officials.
In theory, the nomination of government officials is the “sole act of
the President,” as Chief Justice Marshall observed in Marbury v, Madison
(1803) (see excerpt in Ch. 1). Appointment of high-ranking officials—
members of the cabinet and the Supreme Court—is generally a matter
of personal presidential prerogative, although in extraordinary circum-
stances the Senate may deny confirmation for broad political reasons.
The Constitutional Convention, however, envisioned some senatorial
 B | Appointment and Removal Powers | 371

participation in the nomination and appointment process. And since

the 1840s the tradition of “senatorial courtesy” has guaranteed a high
degree of Senate participation in the nomination process, depending on
the political strength or weakness of the president and whether the
Senate is controlled by a loyal or opposition party. According to this
tradition, the White House pays deference to a senator's preferences in
filling vacancies in that senator’s home state for offices, such as U.S.
marshals, attorneys, and district judges. Moreover, the Civil Service Act
of 1883 restricts the president’s prerogative over appointments within
the executive branch to those arhong the highest grades of the civil
service.
By contrast with the:appointment power, the Constitution is silent
about the removal power. It expressly provides only that the president,
federal judges, and all civil officials are subject to “[i]mpeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and Mis-
demeanors.” As a result, there are competing views of the power to
remove government officials for other than impeachable offenses. Pres-
idents have long contended that they enjoy the sole power of removal.
Yet, because appointees are subject to Senate confirmation, it is some-
times claimed that the Senate shares in the removal power. Further-
more, because Congress creates offices, arguably it may place conditions
on appointees’ tenure and removal.
The Constitutional Convention left the issue of the removal power
to be debated in 1789 in connection with the creation of the depart-
ments of foreign affairs, war, and the treasury. In the House of Repre-
sentatives, James Madison initially argued that the secretaries of these
departments should be “removable by the President.” The “executive
power’ is vested in the president, who is obligated to “faithfully execute
the Laws,” Madison reasoned, and the removal power would render the
department heads more accountable to the president: But he subse-
quently drew a distinction among the secretaries of foreign affairs and
war and the comptroller of the treasury. The latter was not “purely of an
Executive nature,” Madison pointed out, suggesting that “there may be
strong reasons why an officer of this kind should not hold his office at
the pleasure of the Executive branch of the Government.” The House
nevertheless passed a bill creating all three departments without speci-
fying the president’s power of removal. The Senate, however, distin-
guished among “executive departments” in giving the president the
power to remove the secretaries of foreign affairs and war, while deny-
ing him that power over the head of the treasury. But when the House
and Senate bills had to be reconciled, the Senate split evenly and Vice
President Adams cast the deciding vote giving the removal power to
the president over all three departments.
372 | THe Prestpenr AS CHtEF EXECUTIVE IN DOMESTIC AFFAIRS

Despite presidential claims to the sole power of removal, Congress

in the nineteenth century specified conditions for removing a number
of government officials and even subjected the removal of some to “thie
advice and consent of the Senate.” In the few cases dealing with the re-
moval power that came before it, the Supreme Court indicated that
presidential power could be limited when Congress clearly specified
the conditions for removing certain inferior appointees from office.
(See Parsons v. United States, 167 U.S. 324 (1897) (removal ofa US. at-
torney); Shurteffv. United States, 189 U.S. 311 (1903) (customs official);
and Wallace v. United States, 257 U.S. 541 (1922) (dismissal of officer of
Quartermaster Corps.)
An expansive view of the president’s removal power was, nonethe-
less, embraced by Chief Justice William Howard Taft in Myers v. United
States (1926) (see excerpt below) over the sharp dissents of Justices
Brandeis, Holmes, and McReynolds. But less than a decade later
Humphrey’s Executor v, United States (1935) (see excerpt below) unani-
mously held that a member of the Federal Trade Commission (FTC)
could not be removed simply for policy reasons. Writing for the Court,
Justice Sutherland drew a distinction between “purely executive” offi-
cials—such as the postmaster in Myers—which the president may re-
move at his discretion, and those like an FTC commissioner who have
“quasi-judicial and quasi-legislative” duties, who are removable only for
reasons specified by Congress.
The distinction between purely executive and quasi-judicial and
quasi-legislative officials, as Justice Sutherland concedes, is inexact and
invites controversy. Humphrey’s Executor also remained sharply criticized
for limiting the powers of the president.
The Court reassessed the removal powers of Congress and the
president in two other major rulings. In Bowsher v. Synar (1986) (see ex-
cerpt below), the Court relied on Humphrey’s Executor in striking down
a portion of the Balanced Budget and Emergency Deficit Control Act
because it empowered the comptroller general, who may be removed
by a joint resolution of Congress, to make across-the-board reductions
in federal spending if yearly maximums set for federal deficits were not
met. Then in Morrison v. Olson (1988) (see excerpt below) Chief Justice
Rehnquist’ reconsidered and rejected Humphrey’s Executor's reasoning
when upholding the appointment of independent counsel to investi-
gate the misconduct of executive branch officials under the Ethics in
Government Act. Compare the majority’s view of the separation of
powers with that of Justice Scalia in his dissenting opinion in Morrison.
Justice Scalia again stood alone in dissenting from Mistretta v. United
States, 488 U.S. 361 (1989). There, the Court upheld the Sentencing
Reform Act of 1984, which created the U.S. Sentencing Commission
 B | Appointment and Removal Powers | 373

and authorized it to promulgate binding guidelines for a range of de-

terminate sentences for all categories of federal crime. In Mistretta, the
majority held that Congress had not violated the principle of separa-
tion of powers by conferring on the president the power to appoint
and to remove “for cause” members of the commission, including fed-
eral judges; nor did Congress run afoul of the nondelegation doctrine
(discussed in the next section) by broadly delegating to the commission
its power to make law.
Finally, in Weiss v. United States, 510 U.S. 163 (1994), the Court
confronted a challenge under the appointments clause of Article II and
the Fifth Amendment's due process clause to the way judges are ap-
pointed in military courts. Under the Uniform Code of Military Justice
(UCMJ), a special and general court-martial trial is heard before a mil-
itary judge and from three to five court-martial members, all of whom
are temporarily assigned ‘by the Judge Advocate General. Weiss, a Ma-
rine who was found guilty of larceny at a special court-martial, ap-
pealed on the grounds that the UCM)J’s prescribed appointment
method violated Article II and the due process clause. Writing for the
majority, Chief Justice Rehnquist rejected the contentions that the ap-
pointment as judges of commissioned military officers runs afoul of Ar-
ticle I. Furthermore, he did not find any merit to the claim that the
position of a military judge is so similar to other positions specified in
Article II as to require Senate confirmation, nor did he agree that mil-
itary judges are akin to other high government officials, such as the
chairman of the Joint Chiefs of Staff, subject to a second appointment
proceeding under Article II.

SELECTED BIBLIOGRAPHY

Abraham, Henry. Justices, Presidents, and Senators:A History of the U.S. Supreme Court
Appointments from Washington to Clinton. Lanham, MD: Rowman & Littlefield, 2008.
Goldman, Sheldon. Picking Federal Judges: Lower Court Selection from Roosevelt through
Reagan. New Haven, CT: Yale University Press, 1997.
Harriger, Katy. The Special Prosecutor in American Politics. 2d ed. Lawrence: University
Press of Kansas, 2000.
Massaro, John. Supremely Political: The Role of Ideology and Presidential Management in
Unsuccessful Supreme Court Nominations. Albany: State University of New York Press,
1990.
‘McKenzie, G. Galvin. The Politics of Presidential Appointments. New York: Free Press,
1981.
O’Brien, David. Judicial Roulette: Report of the Tiventieth Century Fund Task Force on Ju-
dicial Appoitments. New York: The Twentieth Century Fund, 1988.
Watson, George, and Stookey, John. Shaping America: The Politics of Supreme Court Ap-
pointments. New York: HarperCollins, 1995.
374 | THE PRESIDENT AS CHIEF EXECUTIVE IN DomesTIc AFFAIRS

= CONSTITUTIONAL HISTORY

Supreme Court Nominations Rejected, Postponed, |

or Withdrawn Due to Senate Opposition’

YEAR

NOMINEE NOMINATED NOMINATED ACTIONS?

BY

William Paterson‘ 1793 Washington Withdrawn (for

' technical reasons)
John Rutledge? 1795 Washington Rejected
Alexander Wolcott 1811 Madison Rejected
John J. Crittenden 1828 J. Q. Adams Postponed, 1829
Roger B. Taney® 1835 Jackson Postponed
John C. Spencer 1844 Tyler Rejected
Reuben H. Walworth 1844 Tyler Withdrawn
Edward King 1844 Tyler Postponed
Edward Kingf 1844 Tyler Withdrawn, 1845
John M. Read 1845 Tyler No action
George W. Woodward 1845 Polk Rejected, 1846
Edward A. Bradford 1852 Fillmore No action
George E. Badger 1853 Fillmore Postponed
William C. Micou 1853 Fillmore No action
Jeremiah S. Black 1861 Buchanan Rejected
Henry Stanbery 1866 Johnson No action
Ebenezer R. Hoar 1869 Grant Rejected, 1870
George H. Williams4 1873 Grant Withdrawn, 1874
Caleb Cushin4 1874 Grant Withdrawn
Stanley Mathews‘ 1881 Hayes No action
William B. Hornblower 1893 Cleveland Rejected, 1894
Wheeler H. Peckham 1894 Cleveland Rejected
John J. Parker 1930 Hoover Rejected
Abe Fortas& 1968 Johnson Withdrawn
Homer Thornberry 1968 Johnson No action
Clement FE Haynsworth, Jr. 1969 Nixon Rejected
G. Harold Carswell 1970 Nixon Rejected
Robert H. Bork 1987 Reagan Rejected
Douglas H. Ginsburg 1987 Reagan Withdrawn
Hariett Meyers 2005 G. W. Bush Withdrawn

4Article II of the Constitution provides the president shall nominate Supreme Court
justices and lower court judges “with the advice and consent of the Senate.” These
are the nominees to the Supreme Court that the Senate has rejected or forced to be
withdrawn from consideration.
‘A year is given if different from the year of nomination.
“Reappointed and confirmed.
dNominated for chief justice.
Taney was reappointed and confirmed as chief justice.
ISecond appointment.
fAssociate justice nominated for chief justice.
 B | Appointment and Removal Powers | 375
Saaaiiaaiimmemaaaadeeeee
ee ee ee
eseee

Myers v. United States

272 US. 52, 47 S.CT. 21 (1926)

A series of confrontations between the president and Congress over the

removal power began with Andrew Jackson’s “spoils system” and re-
moval of more officials than all preceding presidents. Congress eventu-
ally passed the Tenure of Office Act in 1867, providing that every
appointee confirmed by the Senate was entitled to hold office until a
successor was appointed by the president with the advice and consent
of the Senate. During thé post—Civil War period Congress also passed
legislation permitting the removal of officials only with senatorial ap-
proval. Among these laws was an 1876 statute requiring senatorial ad-
vice and consent for the ‘removal of all first-, second-, and third-class
postmasters. Presidential opposition to such restrictions persisted and
Congress eventually repealed the Tenure of Office Act in 1887, but oth-
ers including the 1876 statute governing the removal of postmasters re-
mained in force.
In 1920, President Woodrow Wilson was battling with Congress
over a section of the budget and accounting bill that provided that the
comptroller general could be removed only by impeachment or a con-
current resolution of Congress. He contended that Congress could not
in this way limit presidential power. Amid the struggle Wilson directed
the postmaster general to remove, in violation of the 1876 law, Frank S.
Myers, a postmaster in Portland, Oregon. Myers sued to recover his lost
salary in the U.S. Court of Claims, which ruled against him. Louis My-
ers, the administrator of his estate, then appealed to the Supreme Court
and challenged the constitutionality of the president’s actions.
The Court’s decision was six to three, and the majority’s opinion
was announced by Chief Justice Taft. Justices McReynolds, Brandeis,
and Holmes dissented.

(1 Chief Justice TAFT delivers the opinion of the Court.

This case presents the question whether under the Constitution the
President has the exclusive power of removing executive officers of the
United States whom he has appointed by and with the advice and consent of
the Senate."
The debates in the Constitutional Convention indicated an intention to
create a strong executive, and after a controversial discussion the executive
_ power of the government was vested in one person and many of his impor-
tant functicns were specified so as to avoid the humiliating weakness of the
Congress during the Revolution and under the Articles of Confederation.
Mr. Madison and his associates in the discussion in the House dwelt at
376 | Te PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS
we a ee

length upon the necessity there was for construing article 2 to give the Pres-
ident the sole power of removal in his responsibility for the conduct of the
executive branch, and enforced this by emphasizing his duty expressly de-
clared in the third section of the article to “take care that the laws be faith-
fully executed.” Madison, 1 Annals of Congress, 496, 497.
The vesting of the executive power in the President was essentially a
grant of the power to execute the laws. But the President alone and unaided
could not execute the laws. He must execute them by the assistance of sub-
ordinates. This view has since been repeatedly affirmed by this court. As he is
charged specifically to take care that they be faithfully executed, the reason-
able implication, even in the absence of express words, was that as part of his
executive power he should select those who were to act for him under his
direction in the execution of the laws. The further implication must be, in
the absence of any express limitation respecting removals, that as his selection
of administrative officers is essential to the execution of the laws by him, so
must be his power of removing those for whom he cannot continue to be
responsible. It was urged that the natural meaning of the term “executive
power” granted the President included the appointment and removal of ex-
ecutive subordinates. If such appointments and removals were not an exercise
of the executive power, what were they? They certainly were not the exercise
of legislative or judicial power in government as usually understood. ...
The power to prevent the removal of an officer who has served under
the President is different from the authority to consent to or reject his ap-
pointment. When a nomination is made, it may be presumed that the Senate
is, or may become, as well advised as to the fitness of the nominee as the
President, but in the nature of things the defects in ability or intelligence or
loyalty in the administration of the laws of one who has served as an officer
under the President are facts as to which the President, or his trusted subor-
dinates, must be better informed than the Senate, and the power to remove
him may therefore be regarded as confined for very sound and practical rea-
sons, to the governmental authority which has administrative control. The
power of removal is incident to the power of appointment, not to the power
of advising and consenting to appointment, and when the grant of the exec-
utive power is enforced by the express mandate to take care that the laws be
faithfully executed, it emphasizes the necessity for including within the exec-
utive power as conferred the exclusive power of removal. . ..
The view of Mr. Madison and his associates was that not only did the
grant of executive power to the President in the first section of article 2
carry with it the power of removal, but the express recognition of the power
of appointment in the second section enforced this view on the well-
approved principle of constitutional and statutory construction that the power
of removal of executive officers was incident to the power of appointment. It
was agreed by the opponents of the bill, with only one or two exceptions,
that as a constitutional principle the power of appointment carried with it the
power of removal. Roger Sherman, 1 Annals of Congress, 491.This principle
as a rule of constitutional and statutory construction, then generally con-
ceded, has been recognized ever since. ... The reason for the principle is that
those in charge of and responsible for administering functions of government,
who select their executive subordinates, need in meeting their responsibility
to have the power to remove those whom they appoint.
 B | Appointment and Removal Powers
| 377

Under section 2 of article 2, however, the power of appointment by the

executive is restricted in its exercise by the provision that the Senate, a part
of the legislative branch of the government, may check the action of the ex-
ecutive by rejecting the officers he selects. Does this make the Senate part of
the removing power? And this, after the whole discussion in the House is
read attentively, is the real point which was considered and decided in the
negative by the vote already given.
The history of the clause by which the Senate was given a check upon
the President's power of appointment makes it clear that it was not prompted
by any desire to limit removals. As already pointed out, the important pur-
pose of those who brought about the restriction was to lodge in the Senate,
where the small states had equal representation with the larger states, power
to prevent the President from making too many appointments from the
larger states. ... é
It is reasonable to suppose also that had it been intended to give to
Congress power to regulate or control removals in the manner suggested, it
would have been included among the specifically enumerated legislative
powers in article 1, or in the specified limitations on the executive power in
article 2. The difference between the grant of legislative power under article
1 to Congress which is limited to powers therein enumerated, and the more
general grant of the executive power to the President under article 2 is sig-
nificant. The fact that the executive power is given in general terms strength-
ened by specific terms where emphasis is appropriate, and limited by direct
expressions where limitation is needed, and that no express limit is placed on
the power of removal by the executive is a convincing indication that none
was intended... .
It is argued that the denial of the legislative power to regulate removals
in some way involves the denial of power to prescribe qualifications for of-
fice, or reasonable classification for promotion, and yet that has been often
exercised. We see no conflict between the latter power and that of appoint-
ment and removal, provided of course that the qualifications do not so limit
selection and so trench upon executive choice as to be in effect legislative
designation. As Mr. Madison said in the First Congress:

“The powers relative to offices are partly legislative and partly

executive. The Legislature creates the office, defines the powers,
limits its duration, and annexes a compensation. This done, the leg-
islative power ceases. They ought to have nothing to do with desig-
nating the man to fill the office. That I conceive to be of an
executive nature. Although it be qualified in the Constitution, I
would not extend or strain that qualification beyond the limits pre-
cisely fixed for it. We ought always to consider the Constitution
with an eye to the principles upon which it was founded. In this
point of view, we shall readily conclude that if the Legislature de-
termines the powers, the honors, and emoluments of an office, we
should be insecure if they were to designate the officer also. The na-
ture of things restrains and confines the legislative and executive au-
thoritiss in this respect; and hence it is that the Constitution
stipulates for the independence of each branch of the government.”
1 Annals of Congress, 581, 582.
378 | THe PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

Made responsible under the Constitution for the effective enforcement

of the law, the President needs as an indispensable aid to meet it the discipli-
nary influence upon those who act under him of a reserve power of removal.
But it is contended that executive officers appointed by the President with
the consent of the Senate are bound by the statutory law, and are not his ser-
vants to do his will, and that his obligation to care for the faithful execution
of the laws does not authorize him to treat them as such. The degree of
guidance in the discharge of their duties that the President may exercise over
executive officers varies with the character of their service as prescribed in
the law under which they act. The highest and most important duties which
his subordinates perform are those in which they act for him. In such cases
they are exercising not their own but his discretion. This field is a very large
one.It is sometimes described as political... .
The duties of the heads of departments and bureaus in which the dis-
cretion of the President is exercised and which we have described are the
most important in the whole field of executive action of the government.
There is nothing in the Constitution which permits a distinction between
the removal of the head of a department or a bureau, when he discharges a
political duty of the President or exercises his discretion, and the removal of
executive officers engaged in the discharge of their other normal duties. The
imperative reasons requiring an unrestricted power to remove the most 1m-
portant of his subordinates in their most important duties must therefore
control the interpretation of the Constitution as to all appointed by him.
But this is not to say that there are not strong reasons why the President
should have a like power to remove his appointees charged with other duties
than those above described. The ordinary duties of officers prescribed by
statute come under the general administrative control of the President by
virtue of the general grant to him of the executive power, and he may prop-
erly supervise and guide their construction of the statutes under which they
act in order to secure that unitary and uniform execution of the laws which
article 2 of the Constitution evidently contemplated in vesting general exec-
utive power in the President alone. Laws are often passed with specific pro-
vision for the adoption of regulations by a department or bureau head to
make the law workable andeffective. The ability and judgment manifested by
the official thus empowered, as well as his energy and stimulation of his sub-
ordinates, are subjects which the President must consider and supervise in his
administrative control. Finding such officers to be negligent and inefficient,
the President should have the power to remove them. Of course there may
be duties so peculiarly and specifically committed to the discretion of a par-
ticular officer as to raise a question whether the President may overrule or
revise the officer’s interpretation of his statutory duty in a particular instance.
Then there may be duties of a quasi judicial character imposed on executive
officers and members of executive tribunals whose decisions after hearing af-
fect interests of individuals, the discharge of which the President cannot in a
particular case properly influence or control. But even in such a case he may
consider the decision after its rendition as a reason for removing the officer,
on the ground that the discretion regularly entrusted to that officer by
statute has not been on the whole intelligently or wisely exercised..Other-
wise he does not discharge his own constitutional duty of seeing that the
laws be faithfully executed.
 B | Appointment and Removal Powers | 379

We have devoted much space to this discussion and decision of the

question of the presidential power of removal in the First Congress, not be-
cause a congressional conclusion on a constitutional issue is conclusive, but
first because of our agreement with the reasons upon which it was avowedly
based, second because this was the decision of the First Congress on a ques-
tion of primary importance in the organization of the government made
within two years after the Constitutional Convention and within a much
shorter time after its ratification, and third because that Congress numbered
among its leaders those who had been members of the convention. It must
necessarily constitute a precedent upon which many future laws supplying
the machinery of the new government would be based and, if erroneous,
would be likely to evoke dissent and departure in future Congresses. It
would come at once before the executive branch of the government for
compliance and might well be brought before the judicial branch fora test
of its validity. As we shall see, it was soon accepted as a final decision of the
question by all branches of the government.
It was, of course, to be expected that the decision would be received by
lawyers and jurists with something of the same division of opinion as that
manifested in Congress, and doubts were often expressed as to its correct-
ness. But the acquiescence which was promptly accorded it after a few years
was universally recognized... .
We come now to consider an argument, advanced and strongly pressed
on behalf of the complainant, that this case concerns only the removal of a
postmaster, that a postmaster is an inferior officer, and that such an office was
not included within the legislative decision of 1789, which related only to
superior officers to be appointed by the President by and with the advice
and consent of the Senate. This, it is said, is the distinction which Chief Jus-
tice MARSHALL had in mind in Marbury v. Madison in the language already
discussed in respect to the President’s power of removal of a District of Co-
lumbia justice of the peace appointed and confirmed for a term of years. We
find nothing in Marbury v. Madison to indicate any such distinction. It cannot
be certainly affirmed whether the conclusion there stated was based on a dis-
sent from the legislative decision of 1789, or on the fact that the office was
created under the special power of Congress exclusively to legislate for the
District of Columbia, or on the fact that the office was a judicial one, or on
the circumstance that it was an inferior office. In view of the doubt as to
what was really the basis of the remarks relied on and their obiter dictum
character, they can certainly not be used to give weight to the argument that
the 1789 decision only related to superior officers. ...
Our conclusion on the merits, sustained by the arguments before stated,
is that article 2 grants to the President the executive power of the govern-
ment—.e., the general administrative control of those executing the laws,
including the power of appointment and removal of executive officers—a
conclusion confirmed by his obligation to take care that the laws be faith-
fully executed; that article 2 excludes the exercise of legislative power by
Congress to provide for appointments and removals, except only as granted
therein to Congress in the matter of inferior offices; that Congress is only
given powc> to provide for appointments and removals of inferior officers af-
ter it has vested, and on condition that it does vest, their appointment in
other authority than the President with the Senate’s consent; that the provi-
380 | THE PRrestIpENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS

sions of the second section of article 2, which blend action by the legislative
branch, or by part of it, in the work of the executive, are limitations to be
strictly construed, and not to be extended by implication; that the President’s
power of removal is further established as an incident to his specifically enu-
merated function of appointment by and with the advice of the Senate, but
that such incident does not by implication extend to removals the Senate’s
power of checking appointments; and, finally, that to hold otherwise would
make it impossible for the President, in case of political or other difference
with the Senate or Congress, to take care that the laws be faithfully executed.
We come now toa period in the history of the government when both
houses of Congress attempted to reverse this constitutional construction, and
to subject the power of removing executive officers appointed by the Presi-
dent-and confirmed by the Senate to the control of the Senate, indeed finally
to the assumed power in Congress to place the removal of such officers any-
where in the government.
This reversal grew out of the serious political difference between the
two houses of Congress and President Johnson. There was a two-thirds ma-
jority of the Republican party, in control of each house of Congress, which
resented what it feared would be Mr. Johnson’s obstructive course in the en-
forcement of the reconstruction measures in respect to the states whose peo-
ple had lately been at war against the national government. This led the two
houses to enact legislation to curtail the then acknowledged powers of the
President. .
[T]he chief legislation in support of the reconstruction policy of Con-
gress was the Tenure of Office Act of March 2, 1867, providing that all offi-
cers appointed by and with the consent of the Senate should hold their
offices until their successors should have in like manner been appointed and
qualified; that certain heads of departments, including the Secretary of War,
should hold their offices during the term of the President by whom ap-
pointed and one month thereafter, subject to removal by consent of the Sen-
ate. The Tenure of Office Act was vetoed, but it was passed over the veto. ...
[Objections to Congress’s limiting the removal power of the President, from
Grant to Coolidge, were then discussed by the Chief Justice.]
In spite of the foregoing presidential declarations, it is contended that,
since the passage of the Tenure of Office Act, there has been general acquies-
cence by the executive in the power of Congress to forbid the President alone
to remove executive officers, an acquiescence which has changed any for-
merly accepted constitutional construction to the contrary. Instances are cited
of the signed approval by President Grant and other Presidents of legislation
in derogation of such construction.
We think these are all to be explained, not
by acquiescence therein, but by reason of the otherwise valuable effect of the
legislation approved. Such is doubtless the explanation of the executive ap-
proval of the act of 1876, which we are considering, for it was an appropria-
tion act on which the section here in question was imposed as a rider... .
The fact seems to be that all departments of the government have con-
stantly had in mind, since the passage of the Tenure of Office Act, that the
question of power of removal by the President of officers appointed by him
with the Senate’s consent has not been settled adversely to the legislative ac-
tion of 1789, but, in spite of congressional action, has remained open until
the conflict should be subjected to judicial investigation and decision. _
 B | Appointment and Removal Powers | 381

The action of this court cannot be said to constitute assent to a depar-

ture from the legislative decision of 1789, when the Parsons and Shurtleff
Cases, one decided in 1897, and the other in 1903, are considered,
for they
certainly leave the question open. Wallace v. United States, 257 U.S. 541
[(1922)]. Those cases indicate no tendency to depart from the view of the
First Congress. This court has since the Tenure of Office Act manifested an
earnest desire to avoid a final settlement of the question until it should be in-
evitably presented, as it is here.
An argument ab inconvenienti has been made against our conclusion in
favor of the executive power of removal by the President, without the con-
sent of the Senate, that it will open the door to a reintroduction of the spoils
system. The evil of the spoils system aimed at in the Civil Service Law and its
amendments is in respect to inferior offices. It has never been attempted to
extend that law beyond them... .
For the reasons given, we must therefore hold that the provision of the
law of 1876 by which the unrestricted power of removal of first-class post-
masters is denied to the President is in violation of the Constitution and in-
valid. This leads to an affirmance of the judgment of the Court of Claims.

“1 Justice MCREYNOLDS, dissenting.

May the President oust at will all postmasters appointed with the Sen-
ate’s consent for definite terms under an act which inhibits removal without
consent of that body? May he approve a statute which creates an inferior of-
fice and prescribes restrictions on removal, appoint an incumbent, and then
remove without regard to the restrictions? Has he power to appoint to an in-
ferior office for a definite term under an act which prohibits removal except
as therein specified, and then arbitrarily dismiss the incumbent and deprive
him of the emoluments? I think there is no such power. Certainly it is not
given by any plain words of the Constitution; and the argument advanced to
establish it seems to me forced and unsubstantial.
A certain repugnance must attend the suggestion that the President may
ignore any provision of an act of Congress under which he has proceeded. He
should promote and not subvert orderly government. The serious evils which
followed the practice of dismissing civil officers as caprice or interest dictated,
long permitted under congressional enactments, are known to all. It brought
the public service to a low estate and caused insistent demand for reform. “In-
deed, it is utterly impossible not to feel, that, if this unlimited power of re-
moval does exist, it may be made, in the hands of a bold and designing man,
of high ambition and feeble principles, an instrument of the worst oppression
and most vindictive vengeance.” Story on the Constitution. . . .
Constitutional provisions should be interpreted with the expectation
that Congress will discharge its duties no less faithfully than the executive
will attend to his. The Legislature is charged with the duty of making laws
for orderly administration obligatory upon all. It possesses supreme power
over national affairs and may wreck as well as speed them. It holds the purse;
every branch of the government functions under statutes which embody its
_ will; it may impeach and expel all civil officers. The duty is upon it “to make
all laws wk-:ch shall be necessary and proper for carrying into execution” all
powers of the federal government. We have no such thing as three totally dis-
tinct and independent departments; the others must look to the legislative
382 | THe PresipeNT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS el
a

for direction and support. “In republican government the legislative author-
ity necessarily predominates.” The Federalist, XLVI, XVII. Perhaps the chief
duty of the President is to carry into effect the will of Congress through
such instrumentalities as it has chosen to provide... .
I find no suggestion of the theory that “the executive power” of article
2, Sec. 1, includes all possible federal authority executive in nature unless def-
initely excluded by some constitutional provision, prior to the well-known
House debate of 1789, when Mr. Madison seems to have given it support.A
resolution looking to the establishment of an executive department—De-
partment of Foreign Affairs (afterwards State)—provided for a secretary,
“who shall be appointed by the President by and with the advice and con-
sent of the Senate and to be removable by the President.” Discussion arose
upon a motion to strike out, “to be removable by the President.” The dis-
tinction between superior and inferior officers was clearly recognized; also
that the proposed officer was superior and must be appointed by the Presi-
dent with the Senate’s consent. The bill prescribed no definite term—the
incumbent would serve until death, resignation or removal. In the circum-
stances most of the speakers recognize the rule that where there is no consti-
tutional or legislative restriction power to remove is incidental to that of
appointment. Accordingly, they thought the President could remove the pro-
posed officer; but many supposed he must do so with consent of the Senate.
They maintained that the power to appoint is joint. ...
In any rational search for answer to the questions arising upon this
record, it is important not to forget—
That this is a government of limited powers, definitely enumerated and
granted by a written Constitution.
That the Constitution must be interpreted by attributing to its words
the meaning which they bore at the time of its adoption, and in view of
commonly-accepted canons of construction, its history, early and long-
continued practices under it, and relevant opinions of this court.
That the Constitution endows Congress with plenary powers “to estab-
lish post offices and post roads.”
That, exercising this power during the years from 1789 to 1836, Con-
gress provided for postmasters and vested the power to appoint and remove
all of them at pleasure in the Postmaster General.
That the Constitution contains no words which specifically grant to the
President power to remove duly appointed officers. And it is definitely set-
tled that he cannot remove those whom he has not appointed—certainly
they can be removed only as Congress may permit.
That postmasters are inferior officers within the meaning of Article 2,
Sec. 2, of the Constitution.
That from its first session to the last one Congress has often asserted its
right to restrict the President’s power to remove inferior officers, although
appointed by him with consent of the Senate.
That many Presidents have approved statutes limiting the power of the
executive to remove, and that from the beginning such limitations have been
respected in practice.
That this court, as early as 1803, in an opinion never overruled and ren-
dered in a case where it was necessary to decide the question, positively de-
clared that the President had no power to remove at will an inferior officer
 B | Appointment and Removal Powers | 383

appointed with consent of the Senate to serve for a definite term

fixed by an
act of Congress.
That the power of Congress to restrict removals by the Presiden
t was
recognized by this court as late as 1903, in Shurtleffv.United States
[189 U.S.
311 (1903)].
That the proceedings in the Constitutional Convention of
1787, the po-
litical history of the times, contemporaneous opinion, common
canons of
construction, the action of Congress from the beginning and opinions
of this
court, all oppose the theory that by vesting “the executive power” in
the
President the Constitution gave him an illimitable right to remove inferior
officers. ;
That this court has emphatically disapproved the same theory concern-
ing “the judicial power” vested in the courts by words substantially the same
as those which vest “the executive power” in the President. “The executive
power shall be vested in a President of the United States of America.” “The
judicial power of the United States, shall be vested in one Supreme Court,
and in such inferior courts.as the Congress may from time to time ordain
and establish.”
That to declare the President vested with indefinite and illimitable exec-
utive powers would extend the field of his possible action far beyond the
limits observed by his predecessors, and would enlarge the powers of Con-
gress to a degree incapable of fair appraisement.
Considering all these things, it is impossible for me to accept the view
that the President may dismiss, as caprice may suggest, any inferior officer
whom he has appointed with consent of the Senate, notwithstanding a posi-
tive inhibition by Congress. In the last analysis, that view has no substantial
support, unless it be the polemic opinions expressed by Mr. Madison (and
eight others) during the debate of 1789, when he was discussing questions
relating to a “superior officer” to be appointed for an indefinite term.
Notwithstanding his justly exalted reputation as one of the creators and early
expounder of the Constitution, sentiments expressed under such circum-
stances ought not now to outweigh the conclusion which Congress affirmed
by deliberate action while he was leader in the House and has consistently
maintained down to the present year, the opinion of this court solemnly an-
nounced through the great CHIEF JUSTICE more than a century ago, and
the canons of construction approved over and over again.
Judgment should go for the appellant.

| Justice BRANDEIS, dissenting.

May the President, having acted under the statute in so far as it creates
the office and authorizes the appointment, ignore, while the Senate is in ses-
sion, the provision which prescribes the condition under which a removal
may take place?
It is this narrow question, and this only, which we are required to de-
cide. We need not consider what power the President, being Commander-
in-Chief, has over officers in the Army and the Navy. We need not
_ determine whether the President, acting alone, may remove high political of-
ficers. We 1.ced not even determine whether, acting alone, he may remove
inferior civil officers when the Senate is not in session... .
Over removal from inferior civil offices, Congress has, from the founda-
384 | THe PRESIDENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS
en
a

tion of our government, exercised continuously some measure of control by

legislation.The instances of such laws are many. Some of the statutes were di-
rectory in character. Usually, they were mandatory. Some of them, compre-
hensive in scope, have endured for generations. During the first 40 years of
our government, there was no occasion to curb removals. ...
In the later period, which began after the spoils system had prevailed for
a generation, the control of Congress over inferior offices was exerted to
prevent removals. The removal clause here in question was first introduced
by the Currency Act of February 25, 1863, which was approved by President
Lincoln. That statute provided for the appointment of the Comptroller, and
that he “shall hold his office for the term of five years unless sooner removed
by the President, by and with the advice and consent of the Senate.” In 1867
this_provision was inserted in the Tenure of Office Act of March 2, 1867,
which applied, in substance, to all presidential offices. It was passed over Pres-
ident Johnson’s veto... .
The practice of Congress to control the exercise of the executive power
of removal from inferior offices is evidenced by many statutes which restrict
it in many ways besides the removal clause here in question. Each of these
restrictive statutes became law with the approval of the President. Every
President who has held office since 1861, except President Garfield, ap-
proved one or more of such statutes. Some of these statutes, prescribing a
fixed term, provide that removal shall be made only for one of several speci-
fied causes. Some provide a fixed term, subject generally to removal for
cause. Some provide for removal only after hearing. Some provide a fixed
term, subject to removal for reasons to be communicated by the President to
the Senate. Some impose the restriction in still other ways. ...
The historical data submitted present a legislative practice, established
by concurrent affirmative action of Congress and the President, to make
consent of the Senate a condition of removal from statutory inferior, civil,
executive offices to which the appointment is made for a fixed term by the
President with such consent. They show that the practice has existed, with-
out interruption, continuously for the last 58 years; that throughout this pe-
riod, it has governed a great majority of all such offices; that the legislation
applying the removal clause specifically to the office of postmaster was en-
acted more than half a century ago; and that recently the practice has, with
the President’s approval, been extended to several newly created offices. The
data show further that the insertion of the removal clause in acts creating
inferior civil offices with fixed tenures is part of the broader legislative prac-
tice, which has prevailed since the formation of our government, to re-
strict or regulate in many ways both removal from and nomination to such
offices. A persistent legislative practice which involves a delimitation of
the respective powers of Congress and the President, and which has
been so established and maintained, should be deemed tantamount to
judicial construction, in the absence of any decision by any court to the
contrary. ...
The persuasive effect of this legislative practice is strengthened by the
fact that no instance has been found, even in the earlier period of our his-
tory, of concurrent affirmative action of Congress and the President which
is inconsistent with the legislative practice of the last 58 years to impose the
removal clause. Nor has any instance been found of action by Congress
 B | Appointment and Removal Powers | 385

which involves recognition in any other way of the alleged

uncontrollable
executive power to remove an inferior civil officer. The action
taken by
Congress in 1789 after the great debate does not present such
an instance.
The vote then taken did not involve a decision that the Presiden
t had un-
controllable power. It did not involve a decision of the questio
n whether
Congress could confer upon the Senate the right, and impose upon
it the
duty, to participate in removals. It involved merely the decision
that the
Senate does not, in the absence of legislative grant thereof, have the right
to
share in the removal of an officer appointed with its consent, and that
the
President has, in the absence of restrictive legislation, the constitutional
power of removal without such consent. Moreover, as Chief Justice
MAR-
SHALL recognized, the debate and the decision related to a high political
office, not to inferior ones.
It is true that several Presidents have asserted that the Constitution con-
ferred a power of removal uncontrollable by Congress. But of the many
statutes enacted since the foundation of our government which in express
terms controlled the power of removal, either by the clause here in question
or otherwise, only two were met with a veto: The Tenure of Office Act of
1867, which related to high political officers among others, and the Budget
Act of 1921, which denied to the President any participation in the removal
of the Comptroller and Assistant Comptroller. One was passed over the Pres-
ident’s veto; the other was approved by the succeeding President. It is true
also that several Presidents have and others at times insisted that for the exer-
cise of their power they were not accountable to the Senate. But even these
Presidents have at other times complied with requests that the ground of re-
moval of inferior officers be stated. Many of the Presidents have furnished
the desired information without questioning the right to request it. And nei-
ther the Senate nor the House has at any time receded from the claim that
Congress has power both to control by legislation removal from inferior of-
fices and to require the President to report to it the reasons for removals
made there from... .
The separation of the powers of government did not make each branch
completely autonomous. It left each in some measure, dependent upon the
others, as it left to each power to exercise, in some respects, functions in their
nature executive, legislative and judicial. Obviously the President cannot se-
cure full execution of the laws, if Congress denies to him adequate means of
doing so. Full execution may be defeated because Congress declines to cre-
ate offices indispensable for that purpose; or because Congress, having cre-
ated the office, declines to make the indispensable appropriation; or because
Congress, having both created the office and made the appropriation, pre-
vents, by restrictions which it imposes, the appointment of officials who in
quality and character are indispensable to the efficient execution of the law.
If, in any such way, adequate means are denied to the President, the fault will
lie with Congress. The President performs his full constitutional duty, if, with
the means and instruments provided by Congress and within the limitations
prescribed by it; he uses his best endeavors to secure the faithful execution of
the laws enacted.
The dectrine of the separation of powers was adopted by the conven-
tion of 1787 not to promote efficiency but to preclude the exercise of arbi-
trary power. The purpose was not to avoid friction, but, by means of the
386 | THe PRESIDENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS

inevitable friction incident to the distribution of the governmental powers

among three departments, to save the people from autocracy.

(1) Justice HOLMES, dissenting.

The arguments drawn from the executive power of the President, and
from his duty to appoint officers of the United States (when Congress does
not vest the appointment elsewhere), to take care that the laws be faithfully
executed, and to commission all officers of the United States, seem to me
spiders’ webs inadequate to control the dominant facts.
We have to deal with an office that owes its existence to Congress and
that Congress may abolish to-morrow. Its duration and the pay attached to it
while it lasts depend on Congress alone. Congress alone confers on the Pres-
ident the power to appoint to it and at any time may transfer the power to
other hands. With such power over its own creation, I have no more trouble
in believing that Congress has power to prescribe a term of life for it free
from any interference than I have in accepting the undoubted power of
Congress to decree its end. I have equally little trouble in accepting its power
to prolong the tenure of an incumbent until Congress or the Senate shall
have assented to his removal. The duty of the President to see that the laws
be executed is a duty that does not go beyond the laws or require him to
achieve more than Congress sees fit to leave within his power.

Humphrey’s Executor v. United States

295 US. 602, 55 S.CT. 869 (1935)

William E. Humphrey was a conservative nominated by President Her-

bert Hoover and confirmed by the Senate as a commissioner of the
Federal Trade Commission in 1931. According to the FTC Act, a com-
missioner could be removed by the president only for “inefficiency,
neglect of duty, or malfeasance in office.” However, in 1933 President
Franklin D. Roosevelt asked Humphrey to resign, because the FTC had
jurisdiction over many New Deal programs that Humphrey opposed.
When he refused, the president dismissed him on policy grounds, rather
than those specified in the FTC Act. Shortly thereafter Humphrey
died, but the executor of his estate challenged the dismissal and sought
to recover his salary in the court of claims and eventually in the
Supreme Court. The justices unanimously agreed that Humphrey had
been improperly removed from office and with Justice George Suther-
land’s opinion for the Court that limited the earlier ruling in Myers v,
United States (1926) (see preceding excerpted case).
The Court’s decision was unanimous, and the opinion was deliv-
ered by Justice Sutherland. Justice McReynolds concurred.
 B | Appointment and Removal Powers | 387

\) Justice SUTHERLAND delivers the opinion of the Court.

The question first to be considered is whether, by the provisions of sec-
tion 1 of the Federal Trade Commission Act, ... the President's power
is lim-
ited to removal for the specific causes enumerated therein. . . .
The commission is to be nonpartisan; and it must, from the very nature
of its duties, act with entire impartiality. It is charged with the enforcem
ent
of no policy except the policy of the law. Its duties are neither political nor
executive, but predominantly quasi judicial and quasi legislative. Like the
Interstate Commerce Commission, its members are called upon to exercise
the trained judgment of a body of experts “appointed by law and informed
by experience.” . ,
The legislative reports in both houses of Congress clearly reflect the
view that a fixed term was necessary to the effective and fair administration
of the law....
The debates in both houses démonstrate that the prevailing view was
that the Commission was not to be “subject to anybody in the government
but ... only to the people of the United States”: free from “political domi-
nation or control” or the “probability or possibility of such a thing”; to be
“separate and apart from any existing department of the government—not
subject to the orders of the President.” .. .
Thus, the language of the act, the legislative reports, and the general
purposes of the legislation as reflected by the debates, all combine to demon-
strate the congressional intent to create a body of experts who shall gain
experience by length of service; a body which shall be independent of
executive authority; except in its selection, and free to exercise its judgment
without the leave or hindrance of any other official or any department of the
government. To the accomplishment of these purposes, it is clear that Con-
gress was of the opinion that length and certainty of tenure would vitally
contribute. And to hold that, nevertheless, the members of the commission
continue in office at the mere will of the President, might be to thwart, in
large measure, the very ends which Congress sought to realize by definitely
fixing the term of office.
We conclude that the intent of the act is to limit the executive power of
removal to the causes enumerated, the existence of none of which is claimed
here; and we pass to the second question.
Second: To support its contention that the removal provision of section
1, as we have just construed it, is an unconstitutional interference with the
executive power of the President, the government’s chief reliance is Myers v,
United States, 272 U.S. 52 [(1926)]. That case has been so recently decided,
and the prevailing and dissenting opinions so fully review the general subject
of the power of executive removal, that further discussion would add little of
value to the wealth of material there collected. These opinions examine at
length the historical, legislative, and judicial data bearing upon the question,
beginning with what is called “the decision of 1789” in the first Congress
and coming down almost to the day when the opinions were delivered. They
occupy 243 pages of the volume in which they are printed. Nevertheless, the
narrow point actually decided was only that the President had power to re-
“move a postmaster of the first class, without the advice and consent of the
Senate as required by act of Congress. In the course of the opinion of the
court, expressions occur which tend to sustain the government’s contention,
388 | THe Prestpent As Cuter EXECUTIVE IN DOMESTIC AFFAIRS
Oe

but these are beyond the point involved and, therefore, do not come within
the rule of stare decisis. In so far as they are out of harmony with the views
here set forth, these expressions are disapproved. ...
The office of a postmaster is so essentially unlike the office now in-
volved that the decision in the Myers Case cannot be accepted as controlling
our decision here. A postmaster is an executive officer restricted to the per-
formance of executive functions. He is charged with no duty at all related to
either the legislative or judicial power. The actual decision in the Myers Case
finds support in the theory that such an officer is merely one of the units in
the executive department and, hence, inherently subject to the exclusive and
illimitable power of removal by the Chief Executive, whose subordinate and
aide he is. Putting aside dicta, which may be followed if sufficiently persuasive
but-which are not controlling, the necessary reach of the decision goes far
enough to include all purely exectitive officers. It goes no farther;—much
less does it include an officer who occupies no place in the executive de-
partment and who exercises no part of the executive power vested by the
Constitution in the President.
The Federal Trade Commission is an administrative body created by
Congress to carry into effect legislative policies embodied in the statute in
accordance with the legislative standard therein prescribed, and to perform
other specified duties as a legislative or as a judicial aide. Such a body cannot
in any proper sense be characterized as an arm or an eye of the executive. Its
duties are performed without executive leave and, in the contemplation of
the statute, must be free from executive control. In administering the provi-
sions of the statute in respect of “unfair methods of competition,” that is to
say, in filling in and administering the details embodied by that general stan-
dard, the commission acts in part quasi legislatively and in part quasi judi-
cially. In making investigations and reports thereon for the information of
Congress under section 6, in aid of the legislative power, it acts as a legisla
tive agency. Under section 7, which authorizes the commission to act
as a master in chancery under rules prescribed by the court, it acts as an
agency of the judiciary. To the extent that it exercises any executive function,
as distinguished from executive power in the constitutional sense, it does
so in the discharge and effectuation of its quasi legislative or quasi judicial
powers, or as an agency of the legislative or judicial departments of the
government.
If Congress is without authority to prescribe causes for removal of
members of the trade commission and limit executive power of removal ac-
cordingly, that power at once becomes practically all-inclusive in respect of
civil officers with the exception of the judiciary provided for by the Consti-
tution. The Solicitor General, at the bar, apparently recognizing this to be
true, with'commendable candor, agreed that his view in respect of the re-
movability of members of the Federal Trade Commission necessitated a like
view in respect of the Interstate Commerce Commission and the Court of
Claims. We are thus confronted with the serious question whether not only
the members of these quasi legislative and quasi judicial bodies, but the
judges of the legislative Court of Claims exercising judicial power . . . con-
tinue in office only at the pleasure of the President. ... |
We think it plain under the Constitution that illimitable power of re-
moval is not possessed by the President in respect of officers of the character
 B | Appointment and Removal Powers | 389

of those just named. The authority of Congress, in creating quasi

legislative
or quasi judicial agencies, to require them to act in discharge of their
duties
independently of executive control cannot well be doubted; and that
author-
ity includes, as an appropriate incident, power to fix the period during
which they shall continue, and to forbid their removal except for
cause in
the meantime. For it is quite evident that one who holds his office only
dur-
ing the pleasure of another cannot be depended upon to maintain an
atti-
tude of independence against the latter’s will.
The fundamental necessity of maintaining each of the three general de-
partments of government entirely free from the control or coercive
in-
fluence, direct or indirect, of either of the others, has often been stressed
and
is hardly open to serious question. So much is implied in the very fact of the
separation of the powers of these departments by the Constitution; and in
the rule which recognizes their essential coequality. The sound application of
a principle that makes one master in his own house precludes him from im-
posing his control in the house of another who is master there.
The result of what we now have said is this: Whether the power of the
President to remove an officer shall prevail over the authority of Congress to
condition the power by fixing a definite term and precluding a removal ex-
cept for cause will depend upon the character of the office; the Myers deci-
sion, affirming the power of the President alone to make the removal, is
confined to purely executive officers; and as to officers of the kind here un-
der consideration, we hold that no removal can be made during the pre-
scribed term for which the officer is appointed, except for one or more of
the causes named in the applicable statute.
To the extent that, between the decision in the Myers Case, which sus-
tains the unrestrictable power of the President to remove purely executive
officers, and our present decision that such power does not extend to an of-
fice such as that here involved, there shall remain a field of doubt, we leave
such cases as may fall within it for future consideration and determination as
they may arise.

I Justice MCREYNOLDS concurred in a separate opinion.

Bowsher v. Synar
478 US. 714, 106 S.CT. 3181 (1986)

Faced with mounting federal budget deficits, Congress in 1985 enacted

the Balanced Budget and Emergency Deficit Control Act—known also
as the Gramm-Rudman-Hollings Act. It set annual ceilings for deficits
and, if these are exceeded, required across-the-board reductions in fed-
-eral spending. To achieve the reductions, the act requires the Office of
Management and Budget of the executive branch and the Congres-
sional Budget Office to submit deficit estimates and possible budget
390 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

reductions to the comptroller general, who makes his own recommen-

dations for budget reduction to the president, who then must order the
spending reductions. Opposition to the bill in Congress focused on
whether the principle of separation of powers was violated by delegat-
ing the power to recommend budget reductions to the comptroller
general, who is removable by a joint resolution of CongressAs . a result,
a “fallback” provision was included in the event that a federal court
struck down the delegation to the comptroller general.
Immediately after President Reagan signed the bill into law, Con-
gressman Michael Synar and eleven others opposed to the law filed suit
in the Court of Appeals for the District of Columbia Circuit challeng-
ing the constitutionality of the Act. A three-judge panel held, in an
opinion joined by then-Judge Antonin Scalia, that the empowerment
of the comptroller general was unconstitutional. An appeal was
promptly made to the Supreme Court which expedited consideration
of the case.
The Court’s decision was seven to two, and the majority’s opinion
was announced by Chief Justice Burger. Justice Stevens concurred and
was joined by Justice Marshall. Dissents were by Justices White and
Blackmun.

“1 Chief Justice BURGER delivers the opinion of the Court.

The question presented by these appeals is whether the assignment by
Congress to the Comptroller General of the United States of certain func-
tions under the Balanced Budget and Emergency Deficit Control Act of
1985 violates the doctrine of separation of powers.
On December 12, 1985, the President signed into law the Balanced
Budget and Emergency Deficit Control Act of 1985, popularly known as the
“Gramm-Rudman-Hollings Act.” The purpose of the Act is to eliminate the
federal budget deficit. To that end, the Act sets a “maximum deficit amount”
for federal spending for each of fiscal years 1986 through 1991. The size of
that maximum deficit amount progressively reduces to zero in fiscal year
1991. If in any fiscal year the federal budget deficit exceeds the maximum
deficit amount by more than a specified sum, the Act requires across-
the-board cuts in federal spending to reach the targeted deficit level, with
half of the cuts made to defense programs and the other half made to non-
defense programs. The Act exempts certain priority programs from these
Guts Sec. 2D):
These “automatic” reductions are accomplished through a rather com-
plicated procedure, spelled out in Sec. 251, the so-called “reporting provi-
sions” of the Act. Each year, the Directors of the Office of Management and
Budget (OMB) and the Congressional Budget Office (CBO) independently
estimate the amount of the federal budget deficit for the upcoming fiscal
year. If that deficit exceeds the maximum targeted deficit amount for that
fiscal year by more than a specified amount, the Directors of OMB and
CBO independently calculate, on a program-by-program basis, the budget
 B | Appointment and Removal Powers | 301

reductions necessary to ensure that the deficit does not exceed

the maxi-
mum deficit amount. The Act then requires the Directors
to report jointly
their deficit estimates and budget reduction calculations to
the Comptroller
General.
The Comptroller General, after reviewing the Directors’
reports, then
reports his conclusions to the President. Sec, 251 (b). The
President in turn
must issue a “sequestration” order mandating the spending reducti
ons speci-
fied by the Comptroller General. Sec. 252. There follows a period
during
which Congress may by legislation reduce spending to obviate, in
whole or
in part, the need for the sequestration order. If such reductions are
not en-
acted, the sequestration order becomes effective and the spending
reductions
included in that order are made... .
Within hours of the President’s signing of the Act, Congressman Synar,
who had voted against the‘ Act, filed a complaint seeking declaratory
relief
that the Act was unconstitutional. Eleven other Members later joined Con-
gressman Synar’s suit. A virtually identical lawsuit was also filed by the
Na-
tional Treasury Employees Union. The Union alleged that its members had
been injured as a result of the Act’s automatic spending reduction provision
s,
which have suspended certain cost-of-living benefit increases to the Union’s
members.
A three-judge District Court, appointed pursuant to 2 U.S.C.A.
Sec. 922(a)(5) (Supp. 1986), invalidated the reporting provisions. Synar v. United
States, 626 ESupp. 1374 (DC 1986) (SCALIA, JOHNSON, GASGIA JI): set:
Although the District Court concluded that the Act survived a delega-
tion doctrine challenge, it held that the role of the Comptroller General in
the deficit reduction process violated the constitutionally imposed separation
of powers. The court first explained that the Comptroller General exercises
executive functions under the Act. However, the Comptroller General, while
appointed by the President with the advice and consent of the Senate, is re-
movable not by the President but only by a joint resolution of Congress or
by impeachment. The District Court reasoned that this arrangement could
not be sustained under this Court’s decisions in Myers v. United States, 272
US. 52 (1926), and Humphrey’s Executor v. United States, 295 U.S. 602 (935):
Under the separation of powers established by the Framers of the Constitu-
tion, the court concluded, Congress may not retain the power of removal
over an officer performing executive functions. . . .
Appeals were taken directly to this Court pursuant to Sec. 274(b) of the
Act. We noted probable jurisdiction and expedited consideration of the ap-
peals. We affirm. ...
We noted recently that “|t]he Constitution sought to divide the dele-
gated powers of the new Federal Government into three defined categories,
Legislative, Executive, and Judicial,” INS v. Chadha, 462 U.S. 919 (1983). The
declared purpose of separating and dividing the powers of government, of
course, was to “diffus[e] power the better to secure liberty.” Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579 (JACKSON, J., concurring). Justice
JACKSON’s words echo the famous warning of Montesquieu, quoted by
James Madison in The Federalist No. 47, that “ ‘there can be no liberty where
the legislative and executive powers are united in the same person, or body
of magistrates’... .” The Federalist No. 47.
Even a cursory examination of the Constitution reveals the influence of
392 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS ae
ee ee

Montesquieu’s thesis that checks and balances were the foundation of a

structure of government that would protect liberty. The Framers provided a
vigorous legislative branch and a separate and wholly independent executive
branch, with each branch responsible ultimately to the people. The Framers
also provided for a judicial branch equally independent with “[t]he judicial
Power .. . extending] to all Cases, in Law and Equity, arising under this
Constitution, and the Laws of the United States.” Art. II, Sec. 2.
Other, more subtle, examples of separated powers are evident as well.
Unlike parliamentary systems such as that of Great Britain, no person who is
an officer of the United States may serve as a Member of the Congress.
Art. I, Sec. 6. Moreover, unlike parliamentary systems, the President, under
Article II, is responsible not to the Congress but to the people, subject only
to impeachment proceedings which are exercised by the two Houses as rep-
resentatives of the people. Art. II, Séc. 4. And even in the impeachment of a
President the presiding officer of the ultimate tribunal is not a member of the
legislative branch, but the Chief Justice of the United States. Arti SéevS:
That this system of division and separation of powers produces conflicts,
confusion, and discordance at times is inherent, but it was deliberately so
structured to assure full, vigorous and open debate on the great issues affect-
ing the people and to provide avenues for the operation of checks on the ex-
ercise of governmental power.
The Constitution does not contemplate an active role for Congress in
the supervision of officers charged with the execution of the laws it enacts.
The President appoints “Officers of the United States” with the “Advice and
Consent of the Senate... ””Article II, Sec. 2. Once the appointment has been
made and confirmed, however, the Constitution explicitly provides for re-
moval of Officers of the United States by Congress only upon impeachment
by the House of Representatives and conviction by the Senate. An impeach-
ment by the House and trial by the Senate can rest only on “Treason, Bribery
or other high Crimes and Misdemeanors.” Article II, Sec. 4. A direct con-
gressional role in the removal of officers charged with the execution of the
laws beyond this limited one is inconsistent with separation of powers. .. .
This Court first directly addressed this issue in Myers v. United States. At
issue in Myers was a statute providing that certain postmasters could be re-
moved only “by and with the advice and consent of the Senate.” The Presi-
dent removed one such postmaster without Senate approval, and a lawsuit
ensued. Chief Justice TAFT, writing for the Court, declared the statute un-
constitutional on the ground that for Congress to “draw to itself, or to either
branch of it, the power to remove or the right to participate in the exercise
of that power ... would be . .. to infringe the constitutional principle of the
separation of governmental powers.” . . .
A decade later, in Humphrey’s Executor v. United States (1935), relied upon
heavily by appellants, a Federal Trade Commissioner who had been removed
by the President sought back pay. Humphrey’s Executor involved an issue not
presented either in the Myers case or in this case—i.e., the power of Congress
to limit the President’s powers of removal of a Federal Trade Commissioner.
_..The relevant statute permitted removal “by the President,” but only “for
inefficiency, neglect of duty, or malfeasance in office.” Justice SUTHER-
LAND, speaking for the Court, upheld the statute, holding that “illimitable
power of removal is not possessed by the President [with respect to Federal
 B | Appointment and Removal Powers | 393

Trade Commissioners].” The Court distinguished Myers, reaffir

ming its hold-
ing that congressional participation in the removal of executi
ve officers is
unconstitutional.The Court reached a similar result in Weiner v. United States,
357 U.S. 349 (1958), concluding that, under Humphrey’s Executor
, the Presi-
dent did not have unrestrained removal authority over a member
of the War
Crimes Commission.
In light of these precedents, we conclude that Congress cannot
reserve
for itself the power of removal of an officer charged with the executio
n of
the laws except by impeachment. To permit the execution of the
laws to
be vested in an officer answerable only to Congress would, in
practical
terms, reserve in Congress control over the execution of the laws. As the
Dis-
trict Court observed, “Once an officer is appointed, it is only the authorit
y
that can remove him, and not the authority that appointed him, that
he must
fear and, in the performance of his functions, obey.’ The structure of
the Constitution does not permit-Congress to execute the laws; it follows
that Congress cannot grant to an officer under its control what it does
not
possess... .
The dangers of congressional usurpation of Executive Branch functions
have long been recognized. “[T]he debates of the Constitutional Conven-
tion, and the Federalist Papers, are replete with expressions of fear that the
Legislative Branch of the National Government will aggrandize itself at the
expense of the other two branches.” Buckley v. Valeo, 424 US. 1 (1976). In-
deed, we also have observed only recently that “[t]he hydraulic pressure in-
herent within each of the separate Branches to exceed the outer limits of its
power, even to accomplish desirable objectives, must be resisted.’ With these
principles in mind, we turn to consideration of whether the Comptroller
General is controlled by Congress... . .
The critical factor lies in the provisions of the statute defining the
Comptroller General’s office relating to removability, Although the Comp-
troller General is nominated by the President from alist of three individuals
recommended by the Speaker of the House of Representatives and the Pres-
ident pro tempore of the Senate and confirmed by the Senate, he is remov-
able only at the initiative of Congress. He may be removed not only by
impeachment but also by Joint Resolution of Congress “at any time” resting
on any one of the following bases:
“(i) permanent disability;
“(i1) inefficiency;
“(i1) neglect of duty;
“(iv) malfeasance; or
“(v) a felony or conduct involving moral turpitude.”
This provision was included, as one Congressman explained in urging
passage of the Act, because Congress “felt that [the Comptroller General]
should be brought under the sole control of Congress, so that Congress at
the moment when it found he was inefficient and was not carrying on the
duties of his office as he should and as the Congress expected, could remove
him without the long, tedious process ofa trial by impeachment.”
It is clear that Congress has consistently viewed the Comptroller Gen-
eral as an Officer of the Legislative Branch. The Reorganization Acts of 1945
and 1949, for example, both stated that the Comptroller General and the
GAO are “a part of the legislative branch of the Government.” Similarly, in
394 | THE PRESIDENT AS Cuter ExeECUTIVE IN DOMESTIC AFFAIRS
(di
a ni

-
the Accounting and Auditing Act of 1950, Congress required the Comptrol
ler General to conduct audits “as an agent of the Congress. ”
Against this background, we see no escape from the conclusion that, be-
cause Congress had retained removal authority over the Comptroller Gen-
eral, he may not be entrusted with executive powers. The remaining question
is whether the Comptroller General has been assigned such powers in the
Balanced Budget and Emergency Deficit Control Act of 1985....
The primary responsibility of the Comptroller General under the in-
stant Act is the preparation of a “report.” This report must contain detailed
estimates of projected federal revenues and expenditures. The report must
also specify the reductions, if any, necessary to reduce the deficit to the tar-
get for the appropriate fiscal year. The reductions must be set forth on a
program-by-program basis. ...
The executive nature of the Comptroller General’s functions under the
Act is revealed in Sec. 252(a)(3) which gives the Comptroller General the ul-
timate authority to determine the budget cuts to be made. Indeed, the
Comptroller General commands the President himself to carry out, without
the slightest variation (with exceptions not relevant to the constitutional is-
sues presented), the directive of the Comptroller General as to the budget
reductions:

“The [Presidential] order must provide for reductions in the manner

specified in section 251(a)(3), must incorporate the provisions of the
[Comptroller General’s] report submitted under section 251 (b), and
must be consistent with such report in all respects. The President may not
modify or recalculate any of the estimates, determinations, specifications,
bases, amounts, or percentages set forth in the report submitted under
- section 251(b) in determining the reductions to be specified in the
order with respect to programs, projects, and activities, or with re-
spect to budget activities, within an account. . . .”Sec. 252(a)(3)
(emphasis added).

Congress of course initially determined the content of the Balanced

Budget and Emergency Deficit Control Act; and undoubtedly the content of
the Act determines the nature of the executive duty. However, as Chadha
makes clear, once Congress makes its choice in enacting legislation, its par-
ticipation ends. Congress can thereafter control the execution of its enact-
ment only indirectly—by passing new legislation. Chadha. By placing the
responsibility for execution of the Balanced Budget and Emergency Deficit
Control Act in the hands of an officer who is subject to removal only by it-
self, Congress in effect has retained control over the execution of the Act and
has intruded into the executive function. The Constitution does not permit
such intrusion. ...
No one can doubt that Congress and the President are confronted with
fiscal and economic problems of unprecedented magnitude, but “the fact that
a given law or procedure is efficient, convenient, and useful in facilitating
functions of government, standing alone, will not save it if it is contrary to
the Constitution. Convenience and efficiency are not the primary objec-
tives—or the hallmarks—of democratic government... 2” Chadha....
We conclude the District Court correctly held that the powers vested in
 B | Appointment and Removal Powers | 395

the Comptroller General under Sec. 251 violate the command of the
Con-
stitution that the Congress play no direct role in the execution
of the laws.
Accordingly, the judgment and order of the District Court are affirmed.

Justice STEVENS, with whom Justice MARSHALL Joins, concurring.

When this Court is asked to invalidate a statutory provision that has
been approved by both Houses of the Congress and signed by the President
,
particularly an Act of Congress that confronts a deeply vexing national prob-
lem, it should only do so for the most compelling constitutional reasons. I
agree with the Court that the “Gramm-Rudman-Hollings” Act contains a
constitutional infirmity so severe that“the flawed provision may not stand. I
disagree with the Court, however, on the reasons why the Constitution pro-
hibits the Comptroller General from exercising the powers assigned to him
by Sec. 251(b) and Sec. 251(c)(2) of the Act. It is not the dormant, carefully
circumscribed congressional removal power that represents the primary con-
stitutional evil. Nor do I agree with the conclusion ofboth the majority and
the dissent that the analysis depends on a labeling of the functions assigned
to the Comptroller General as “executive powers.” Rather, I am convinced
that the Comptroller General must be characterized as an agent of Congress
because of his longstanding statutory responsibilities; that the powers as-
signed to him under the Gramm-Rudman-Hollings Act require him to
make policy that will bind the Nation; and that, when Congress, or a com-
ponent or an agent of Congress, seeks to make policy that will bind the
Nation, it must follow the procedures mandated by Article I of the Constitu-
tion—through passage by both Houses and presentment to the President. In
short, Congress may not exercise its fundamental power to formulate na-
tional policy by delegating that power to one of its two Houses, to a legisla-
tive committee, or to an individual agent of the Congress such as the Speaker
of the House of Representatives, the Sergeant at Arms of the Senate, or the
Director of the Congressional Budget Office. INS v. Chadha (1983). That
principle, I believe, is applicable to the Comptroller General.

- | Justice WHITE, dissenting.

The Court, acting in the name of separation of powers, takes upon itself
to strike down the Gramm-Rudman-Hollings Act, one of the most novel
and far-reaching legislative responses to a national crisis since the New Deal.
The basis of the Court’s action is a solitary provision of another statute that
was passed over sixty years ago and has lain dormant since that time. I cannot
concur in the Court’s action. Like the Court, I will not purport to speak to
the wisdom of the policies incorporated in the legislation the Court in-
validates; that is a matter for the Congress and the Executive, both of which
expressed their assent to the statute barely half a year ago. I will, however,
address the wisdom of the Court’s willingness to interpose its distressingly
formalistic view of separation of powers as a bar to the attainment of govern-
mental objectives through the means chosen by the Congress and the Presi-
dent in the legislative process established by the Constitution. . . .
Before *xamining the merits of the Court’s argument, I wish to empha-
size what it is that the Court quite pointedly and correctly does not hold:
namely, that “executive” powers of the sort granted the Comptroller by the
396 | THe PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS
ee

Act may only be exercised by officers removable at will by the President. The
Court’s apparent unwillingness to accept this argument, which has been ten-
dered in this Court by the Solicitor General, is fully consistent with the
Court’s longstanding recognition that it is within the power of Congress un-
der the “Necessary and Proper” Clause, Art. I, Sec. 8, to vest authority that
falls within the Court’s definition of executive power in officers who are not
subject_to removal at will by the President and are therefore not under the
President’s direct control. See, e.g., Humphrey’s Executor v. United States (1935);
Wiener v. United States (1958). In an earlier day, in which simpler notions of
the role of government in society prevailed, it was perhaps plausible to insist
that all “executive” officers be subject to an unqualified presidential removal
power, see Myers v. United States (1926); but with the advent and triumph of
the-administrative state and the accompanying multiplication of the tasks
undertaken by the Federal Government, the Court has been virtually com-
pelled to recognize that Congress may reasonably deem it “necessary and
proper” to vest some among the broad new array of governmental functions
in officers who are free from the partisanship that may be expected of agents
wholly dependent upon the President. .. .
If, as the Court seems to agree, the assignment of “executive” powers
under Gramm-Rudman to an officer not removable at will by the President
would not in itself represent a violation of the constitutional scheme of sep-
arated powers, the question remains whether, as the Court concludes, the
fact that the officer to whom Congress has delegated the authority to im-
plement the Act is removable by a joint resolution of Congress should re-
quire invalidation of the Act. The Court’s decision, as I have stated above, is
based on a syllogism: the Act vests the Comptroller with “executive power”;
such power may not be exercised by Congress or its agents; the Comptroller
is.an agent of Congress because he is removable by Congress; therefore the
Act is invalid. I have no quarrel with the proposition that the powers exer-
cised by the Comptroller under the Act may be characterized as “executive”
in that they involve the interpretation and carrying out of the Act’s mandate.
I can also accept the general proposition that although Congress has consid-
erable authority in designating the officers who are to execute legislation,
the constitutional scheme of separated powers does prevent Congress from
reserving an executive role for itself or for its “agents.” Buckley v. Valeo,
(WHITE, J., concurring in part and dissenting in part). I cannot accept,
however, that the exercise of authority by an officer removable for cause by
a joint resolution of Congress is analogous to the impermissible execution of
the law by Congress itself, nor would I hold that the congressional role in
the removal process renders the Comptroller an “agent” of the Congress, in-
capable of receiving “executive” power... .
The deficiencies in the Court’s reasoning are apparent. First, the Court
baldly mischaracterizes the removal provision when it suggests that it allows
Congress to remove the Comptroller for “executing the laws in any fashion
found to be unsatisfactory”; in fact, Congress may remove the Comptroller
only for one or more of five specified reasons, which “although not so nar-
row as to deny Congress any leeway, circumscribe Congress’ power to some
extent by providing a basis for judicial review of congressional removal.”
Ameron, Inc. v. United States Army Corps of Engineers, 787 F2d 875 (CA 3
1986) (BECKER, J., concurring in part). Second, and more to the point, the
Court overlooks or deliberately ignores the decisive difference between the
 B | Appointment and Removal Powers | 397

congressional removal provision and the legislative veto struck down

in
Chadha: under the Budget and Accounting Act, Congress may remove the
Comptroller only through a joint resolution, which by definition must
be
passed by both Houses and signed by the President. See United States v. Cali-
fornia, 332 U.S. 19 (1947). In other words, a removal of the Comptroller un-
der the statute satisfies the requirements of bicameralism and presentment laid down
in Chadha. The majority’s citation of Chadha for the proposition that Con-
gress may only control the acts of officers of the United States “by passing
new legislation,’ in no sense casts doubt on the legitimacy of the removal
provision, for that provision allows Congress to effect removal only through
action that constitutes legislation as defined in Chadha. ...
The statute does not permit anyone to remove the Comptroller at will;
removal is permitted only for specified cause, with the existence of cause to
be determined by Congres’ following a hearing. Any removal under the
statute would presumably be subjeet to post-termination judicial review to
ensure that a hearing had in fact been held and that the finding of cause for
removal was not arbitrary. See Ameron, Inc. v. United States Army Corps of En-
gineers (BECKER, J., concurring in part). These procedural and substantive
limitations on the removal power militate strongly against the characteriza-
tion of the Comptroller as a mere agent of Congress by virtue of the removal
authority. Indeed, similarly qualified grants of removal power are generally
deemed to protect the officers to whom they apply and to establish their in-
dependence from the domination of the possessor of the removal power. See
Humphrey’s Executor v. United States. Removal authority limited in such a
manner is more properly viewed as motivating adherence to a substantive
standard established by law than as inducing subservience to the particular
institution that enforces that standard. That the agent enforcing the standard
is Congress may be of some significance to the Comptroller, but Congress’
substantively limited removal power will undoubtedly be less of a spur to
subservience than Congress’ unquestionable and unqualified power to enact
legislation reducing the Comptroller’s salary, cutting the funds available to his
department, reducing his personnel, limiting or expanding his duties, or even
abolishing his position altogether.
More importantly, the substantial role played by the President in the
process of removal through joint resolution reduces to utter insignificance
the possibility that the threat of removal will induce subservience to the
Congress. As I have pointed out above, a joint resolution must be presented
to the President and is ineffective if it is vetoed by him, unless the veto is
overridden by the constitutionally prescribed two-thirds majority of both
Houses of Congress. The requirement of presidential approval obviates the
possibility that the Comptroller will perceive himself as so completely at the
mercy of Congress that he will function as its tool. If the Comptroller’s con-
duct in office is not so unsatisfactory to the President as to convince the lat-
ter that removal is required under the statutory standard, Congress will have
no independent power to coerce the Comptroller unless it can muster a
two-thirds majority in both Houses—a feat of bipartisanship more difficult
_than that required to impeach and convict. The incremental in terrorem effect
of the possivility of congressional removal in the face of a presidential veto is
therefore exceedingly unlikely to have any discernible impact on the extent
of congressional influence over the Comptroller.
The practical result of the removal provision is not to render the Comp-
398 | THe PResIpDENT as Cuter EXECUTIVE IN DOMESTIC AFFAIRS

troller unduly dependent upon or subservient to Congress, but to render

him one of the most independent officers in the entire federal establishment.
Those who have studied the office agree that the procedural and substantive
limits on the power of Congress and the President to remove the Comp-
troller make dislodging him against his will practically impossible. As one
scholar put it nearly fifty years ago, “Under the statute the Comptroller
General, once confirmed, is safe so long as he avoids a public exhibition
of personal immorality, dishonesty, or failing mentality.” H. Mansfield, The
Comptroller General 75-76 (1939). The passage of time has done little to cast
doubt on this view: of the six Comptrollers who have served since 1921, none
has been threatened with, much less subjected to, removal. Recent students of
the office concur that “[bJarring resignation, death, physical or mental in-
capacity, or extremely bad behavior, the Comptroller General is assured his
tenure if he wants it, and not a day more.” F Mosher, The GAO 242 (1979).
The threat of “here-and-now subservience,” is obviously remote indeed.
Realistic consideration of the nature of the Comptroller General’s rela-
tion to Congress thus reveals that the threat to separation of powers conjured
up by the majority is wholly chimerical. The power over removal retained by
the Congress is not a power that is exercised outside the legislative process as
established by the Constitution, nor does it appear likely that it is a power
that adds significantly to the influence Congress may exert over executive
officers through other, undoubtedly constitutional exercises of legislative
power and through the constitutionally guaranteed impeachment power. In-
deed, the removal power is so constrained by its own substantive limits and
by the requirement of presidential approval “that, as a practical matter, Con-
gress has not exercised, and probably will never exercise, such control over
the Comptroller General that his non-legislative powers will threaten the
goal of dispersion of power, and hence the goal of individual liberty, that sep-
aration of powers serves.” Ameron, Inc. v. United States Army Corps of Engineers
(BECKER, J., concurring in part).
The majority’s contrary conclusion rests on the rigid dogma that, out-
side of the impeachment process, any “direct congressional role in the re-
moval of officers charged with the execution of the laws .. . is inconsistent
with separation of powers.” Reliance on such an unyielding principle to
strike down a statute posing no real danger of aggrandizement of congres-
sional power is extremely misguided and insensitive to our constitutional
TOE.
I dissent.

Morrison v. Olson
487 US. 654, 108 S.CT. 2597 (1988)

In the wake of the “Watergate crisis” (see “Unraveling the Watergate

Affair” later in this chapter) Congress passed the Ethics in Government
Act in 1978, which expired in 1999 due to bipartisan opposition and
disgust over Kenneth Starr’s over $40 million investigation of President
 B | Appointment and Removal Powers | 399

and Mrs. Clinton’s Whitewater land deal in Arkansas and the president’s
affair with White House intern Monica Lewinsky. The law provided for
independent counsel to investigate presidential subordinates if war-
ranted after a preliminary review by the attorney general. The attorney
general must request the appointment of counsel from a “Special Divi-
sion” of the U.S. Court of Appeals for the District of Columbia. Once
appointed, counsel may be removed by the attorney general only for
reasons specified in the act.
Independent counsels initially provoked controversy with the
appointment of a special prosecutor assigned to investigate President
Nixon’s involvement in the Watergate cover-up. In 1973, Nixon or-
dered the dismissal of Archibald Cox, the Watergate special prosecutor.
After the attorney general and his assistant resigned rather than remove
Cox, Acting Attorney General Robert H. Bork discharged him. A
lower federal court, in Nader v. Bork, 366 ESupp. 104 (D.D.C., 1973),
later held that the dismissal was illegal.
The constitutionality of independent counsel was controversial
again in 1987, when four separate counsels were investigating the Iran-
Contra affair and allegations of wrongdoing by Attorney General Ed-
win Meese III and other former presidential aides. This case, however,
arose from independent counsel Alexia Morrison’s 1986 investigation
of allegations that former Assistant Attorney General Theodore Olson
(who was later President George W. Bush’s solicitor general) lied be-
fore a congressional subcommittee in 1983 concerning the withhold-
ing of Environmental Protection Agency documents from Congress.
Olson challenged the constitutionality of Morrison’s appointment in
the U.S. Court of Appeals for the District of Columbia.A three-judge
panel split two to one when finding the appointment of independent
counsel to violate principles of separation of powers. Morrison then
appealed to the Supreme Court, which expedited briefing and oral ar-
guments in the spring of 1988. President Ronald Reagan’s last ap-
pointee to the Court did not participate in the decision. With the
exception of Justice Antonin Scalia, who issued a sharp dissenting
opinion, the rest of the Court joined in Chief Justice William Rehn-
quist’s opinion upholding the constitutionality of the appointment of
special prosecutors. Three months after the Court’s ruling, Morrison
concluded her two-year investigation, deciding that there was not
enough evidence to seek an indictment of Olson. The independent
counsel law expired in 1999.
The Court’s decision was seven to one, and the majority’s opinion
‘was announced by Chief Justice Rehnquist, with Justice Kennedy not
participating. Justice Scalia dissented.

Chief Justice REHNQUIST delivers the opinion of the Court.

400 | THE PresmpeNnT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

This case presents us with a challenge to the independent counsel pro-

visions of the Ethics in Government Act of 1978. We hold today that these
provisions of the Act do not violate the Appointments Clause of the Consti-
tution, Art. II, Sec. 2, cl. 2, or the limitations of Article III, nor do they im-
permissibly interfere with the President’s authority under Article II in
violation of the constitutional principle of separation of powers. .. .
The Appointments Clause of Article II reads as follows:

“(The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the Supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but
the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments.”

The parties do not dispute that “[t]he Constitution for purposes of appoint-
ment ... divides all its officers into two classes.’ United States v. Germaine, 99
US. (9 Otto) 508 (1879). As we stated in Buckley v. Valeo, 424 U.S. 1 (1976),
“[p]rincipal officers are selected by the President with the advice and con-
sent of the Senate. Inferior officers Congress may allow to be appointed by
the President alone, by the heads of departments, or by the Judiciary.” The
initial question is, accordingly, whether appellant is an “inferior” or a “princi-
pal” officer. If she is the latter, as the Court of Appeals concluded, then the
Act is in violation of the Appointments Clause.
The line between “inferior” and “principal” officers is one that is far
from clear, and the Framers provided little guidance into where it should be
drawn. ... We need not attempt here to decide exactly where the line falls
between the two types of officers, because in our view appellant clearly
falls on the “inferior officer” side of that line. Several factors lead to this
conclusion.
First, appellant is subject to removal by a higher Executive Branch offi-
cial. Although appellant may not be “subordinate” to the Attorney General
(and the President) insofar as she possesses a degree of independent dis-
cretion to exercise the powers delegated to her under the Act, the fact that
she can be removed by the Attorney General indicates that she is to some
degree “inferior” in rank and authority. Second, appellant is empowered by
the Act to perform only certain, limited duties. An independent counsel’s
role is restricted primarily to investigation and, if appropriate, prosecution for
certain federal crimes. Admittedly, the Act delegates to appellant “full power
and independent authority to exercise all investigative and prosecutorial
functions and powers of the Department of Justice,’ but this grant of author-
ity does not include any authority to formulate policy for the Government
or the Executive Branch, nor does it give appellant any administrative duties
outside of those necessary to operate her office. The Act specifically provides
that in policy matters appellant is to comply to the extent possible with the
policies of the Department. ...
Third, appellant’s office is limited in jurisdiction. Not only is the Act it-
self restricted in applicability to certain federal officials suspected of certain
 B | Appointment and Removal Powers | 40x
ae
serious federal crimes, but an independent counsel can only act within the
scope of the jurisdiction that has been granted by the Special Division
pursuant to a request by the Attorney General. Finally, appellant’s office is
limited in tenure. . . . In our view, these factors relating to the “ideas of
tenure, duration ... and duties” of the independent counsel, Germaine, are
sufficient to establish that appellant is an “inferior” officer in the constitu-
tional sense. . . .
This does not, however, end our inquiry under the Appointments
Clause. Appellees argue that even if appellant is an “inferior” officer, the
Clause does not empower Congress to place the power to appoint such an
officer outside the Executive Branch. They contend that the Clause does not
contemplate congressional authorization of “interbranch appointments,” in
which an officer of one branch is appointed by officers of another branch.
The relevant language of the Appointments Clause is worth repeating. It
reads: “. . . but the Congress may by Law vest the Appointment of such in-
ferior Officers, as they think proper, in the President alone, in the courts of
Law, or in the Heads of Departments.” On its face, the language of this “ex-
cepting clause,” admits of no limitation on interbranch appointments. In-
deed, the inclusion of “‘as they think proper” seems clearly to give Congress
significant discretion to determine whether it is “proper” to vest the ap-
pointment of, for example, executive officials in the “courts of Law’...
We also note that the history of the clause provides no support for ap-
pellees’ position. Throughout most of the process of drafting the Constitu-
tion, the Convention concentrated on the problem of who should have the
authority to appoint judges. [T]here was little or no debate on the question
of whether the Clause empowers Congress to provide for interbranch ap-
pointments, and there is nothing to suggest that the Framers intended to pre-
vent Congress from having that power.
We do not mean to say that Congress’ power to provide for interbranch
appointments of “inferior officers” is unlimited. In addition to separation of
powers concerns, which would arise if such provisions for appointment had
the potential to impair the constitutional functions assigned to one of the
branches, [Ex parte] Siebold [100 U.S. 371 (1880)] itself suggested that Con-
gress’ decision to vest the appointment power in the courts would be im-
proper if there was some “incongruity” between the functions normally
performed by the courts and the performance of their duty to appoint... . In
this case, however, we do not think it impermissible for Congress to vest the
power to appoint independent counsels in a specially created federal court.
... Congress of course was concerned when it created the office of inde-
pendent counsel with the conflicts of interest that could arise in situations
when the Executive Branch is called upon to investigate its own high-
ranking officers. If it were to remove the appointing authority from the Ex-
ecutive Branch, the most logical place to put it was in the Judicial Branch. In
the light of the Act’s provision making the judges of the Special Division in-
eligible to participate in any matters relating to an independent counsel they
have appointed, we do not think that appointment of the independent coun-
sels by the court runs afoul of the constitutional limitation on “incongruous”
interbranch appointments.
Appellees next contend that the powers vested in the Special Division
by the Act conflict with Article HI of the Constitution.
402 | THe PRresIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS
ee eee

Most importantly, the Act vests in the Special Division the power to
choose who will serve as independent counsel and the power to define his
or her jurisdiction.
Clearly, once it is accepted that the Appointments Clause gives Congress
the power to vest the appointment of officials such as the independent coun-
sel in the “courts of Law,” there can be no Article III objection to the Special
Division’s exercise of that power, as the power itself derives from the Ap-
pointments Clause, a source of authority for judicial action that is indepen-
dent of Article IID: .
The Act also vests in the Special Division various powers and duties in
relation to the independent counsel that, because they do not involve ap-
pointing the counsel or defining her jurisdiction, cannot be said to derive
from. the Division’s Appointments Clause authority. These duties include
granting extensions for the Attorney General’s preliminary investigation; re-
ceiving the report of the Attorney General at the conclusion of his prelimi-
nary investigation ... referring matters to the counsel upon request, receiving
reports from the counsel regarding expenses incurred . . . receiving a report
from the Attorney General following the removal of an independent coun-
sel; granting attorney’s fees upon request to individuals who were investi-
gated but not indicted by an independent counsel; receiving a final report
from the counsel, Sec. 594(h)(1)(B); deciding whether to release the counsel’s
final report to Congress or the public and determining whether any protec-
tive orders should be issued, Sec. 594(h)(2); and terminating an independent
counsel when his task is completed, Sec. 596(b) (2).
Leaving aside for the moment the Division’s power to terminate an in-
dependent counsel, we do not think that Article III absolutely prevents Con-
gress from vesting these other miscellaneous powers in the Special Division
pursuant to the Act. As we observed above, one purpose of the broad prohi-
bition upon the courts’ exercise of “executive or administrative duties of a
nonjudicial nature,” Buckley, is to maintain the separation between the judi-
ciary and the other branches of the Federal Government by ensuring that
judges do not encroach upon executive or legislative authority or undertake
tasks that are more properly accomplished by those branches. In this case, the
miscellaneous powers described above do not impermissibly trespass upon
the authority of the Executive Branch. Some of these allegedly “supervisory”
powers conferred on the court are passive: the Division merely “receives” re-
ports from the counsel or the Attorney General, it is not entitled to act on
them or to specifically approve or disapprove of their contents. Other provi-
sions of the Act do require the court to exercise some judgment and dis-
cretion, but the powers granted by these provisions are themselves essentially
ministerial. The Act simply does not give the Division the power to “super-
vise” the independent counsel in the exercise of her investigative or prosecu-
torial authority. And, the functions that the Special Division is empowered
to perform are not inherently “Executive”; indeed, they are directly analo-
gous to functions that federal judges perform in other contexts, such as de-
ciding whether to allow disclosure of matters occurring before a grand jury,
see Fed. Rule Crim.Proc. 6(e), deciding to extend a grand jury investigation,
Rule 6(g), or awarding attorney’s fees... .
We are more doubtful about the Special Division’s power to terminate
the office of the independent counsel pursuant to Sec. 596(b) (2). As appellees
 B | Appointment and Removal Powers | 403

suggest, the power to terminate, especially when exercised by the Division

on its own motion, is “administrative” to the extent that it requires the Spe-
cial Division to monitor the progress of proceedings of the independent
counsel and come to a decision as to whether the counsel’s job is “com-
pleted.” It also is not a power that could be considered typically “judicial,” as
it has few analogues among the court’s more traditional powers. Nonetheless,
we do not, as did the Court of Appeals, view this provision as a significant
judicial encroachment upon executive power or upon the prosecutorial dis-
cretion of the independent counsel. . ..
Nor do we believe, as appellees contend, that the Special Division’s ex-
ercise of the various powers specifically granted to it under the Act poses any
threat to the “impartial and independent federal adjudication of claims
within the judicial power of the United States.” We reach this conclusion for
two reasons. First, the Act as it currently stands gives the Special Division it-
self no power to review any of the actions of the independent counsel or any
of the actions of the Attorney General with regard to the counsel. Accord-
ingly, there is no risk of partisan or biased adjudication of claims regarding
the independent counsel by that court. Second, the Act prevents members of
the Special Division from participating in “any judicial proceeding concern-
ing a matter which involves such independent counsel while such indepen-
dent counsel is serving in that office or which involves the exercise of such
independent counsel’s official duties, regardless of whether such independent
counsel is still serving in that office.” (emphasis added); see also Sec. 596(a)(3)
(preventing members of the Special Division from participating in review
of the Attorney General’s decision to remove an independent counsel). We
think both the special court and its judges are sufficiently isolated by these
statutory provisions from the review of the activities of the independent
counsel so as to avoid any taint of the independence of the judiciary such as
would render the Act invalid under Article III. ...
We now turn to consider whether the Act is invalid under the constitu-
tional principle of separation of powers. Two related issues must be addressed:
The first is whether the provision of the Act restricting the Attorney Gen-
eral’s power to remove the independent counsel to only those instances in
which he can show “good cause,” taken by itself, impermissibly interferes
with the President’s exercise of his constitutionally appointed functions. The
second is whether, taken as a whole, the Act violates the separation of pow-
ers by reducing the President’s ability to control the prosecutorial powers
wielded by the independent counsel.
Unlike both Bowsher v. Synar, [478 U.S. 714 (1986)] and Myers, this case
does not involve an attempt by Congress itself to gain a role in the removal
of executive officials other than its established powers of impeachment and
conviction. The Act instead puts the removal power squarely in the hands of
the Executive Branch; an independent counsel may be removed from office,
“only by the personal action of the Attorney General, and only for good
cause.” There is no requirement of congressional approval of the Attorney
General’s removal decision, though the decision is subject to judicial review.
In our view, the removal provisions of the Act make this case more analogous
to Humph-2y’s Executor v. United States, 295 U.S. 602 (1935), and Wiener v.
United States, 357 U.S. (1958), than to Myers or Bowsher. ...
Appellees contend that Humphrey’s Executor and Wiener are distinguish-
404 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

able from this case because they did not involve officials who performed
a “core executive function.” They argue that our decision in Humphrey’s
Executor rests on a distinction between “purely executive” officials and
officials who exercise “quasi-legislative” and “quasi-judicial” powers. In
their view, when a “purely executive” official is involved, the governing
precedent is Myers, not Humphrey’s Executor. And, under Myers, the Pres-
ident must have absolute discretion to discharge “purely” executive officials
at will.
We undoubtedly did rely on the terms “quasi-legislative” and “quasi-
judicial” to distinguish the officials involved in Humphrey’s Executor and
Wiener from those in Myers, but our present considered view is that the de-
termination of whether the Constitution allows Congress to impose a “good
cause”’-type restriction on the President’s power to remove an official cannot
be made to turn on whether or not'that official is classified as “purely exec-
utive.” The analysis contained in our removal cases is designed not to define
rigid categories of those officials who may or may not be removed at will by
the President, but to ensure that Congress does not interfere with the Presi-
dent’s exercise of the “executive power” and his constitutionally appointed
duty to “take care that the laws be faithfully executed” under Article II. My-
ers was undoubtedly correct in its holding, and in its broader suggestion that
there are some “purely executive” officials who must be removable by the
President at will if he is to be able to accomplish his constitutional role... .
But as the Court noted in Wiener,

“The assumption was short-lived that the Myers case recognized the
President’s inherent constitutional power to remove officials no
matter what the relation of the executive to the discharge of their
duties and no matter what restrictions Congress may have imposed
regarding the nature of their tenure.”...

At the other end of the spectrum from Myers, the characterization of the
agencies in Humphrey’s Executor and Wiener as “quasi-legislative” or “quasi-
judicial” in large part reflected our judgment that it was not essential to the
President’s proper execution of his Article II powers that these agencies be
headed up by individuals who were removable at will. We do not mean to
suggest that an analysis of the functions served by the officials at issue is ir-
relevant. But the real question is whether the removal restrictions are of such
a nature that they impeded the President’s ability to perform his constitu-
tional duty, and the functions of the officials in question must be analyzed in
that light.
Considering for the moment the “good cause” removal provision in iso-
lation from the other parts of the Act at issue in this case, we cannot say that
the imposition of a “good cause” standard for removal by itself unduly tram-
mels on executive authority. There is no real dispute that the functions per-
formed by the independent counsel are “executive” in the sense that they are
law enforcement functions that typically have been undertaken by officials
within the Executive Branch. As we noted above, however, the independent
counsel is an inferior officer under the Appointments Clause, with limited
jurisdiction and tenure and lacking policymaking or significant administra-
tive authority. Although the counsel exercises no small amount of discretion
 B | Appointment and Removal Powers | 405

and judgment in deciding how to carry out her duties under the Act, we
simply do not see how the President’s need to control the exercise of that
discretion is so central to the functioning of the Executive Branch as to re-
quire as a matter of constitutional law that the counsel be terminable at will
by the President.
Nor do we think that the “good cause” removal provision at issue here
impermissibly burdens the President’s power to control or supervise the inde-
pendent counsel, as an executive official, in the execution of her duties under
the Act. This is not a case in which the power to remove an executive official
has been completely stripped from the President, thus providing
no means for the President to ensure the “faithful execution” of the laws.
Rather, because the independent counsel may be terminated for “good
cause,” the Executive, through the Attorney General, retains ample authority
to assure that the counsel is competently performing her statutory responsi-
bilities in a manner that comports.with the provisions of the Act. Although
we need not decide in this case exactly what is encompassed within the term
“good cause” under the Act, the legislative history of the removal provision
also makes clear that the Attorney General may remove an independent
counsel for “misconduct.” Here, as with the provision of the Act conferring
the appointment authority of the independent counsel on the special court,
the congressional determination to limit the removal power of the Attorney
General was essential, in the view of Congress, to establish the necessary in-
dependence of the office. We do not think that this limitation as it presently
stands sufficiently deprives the President of control over the independent
counsel to interfere impermissibly with his constitutional obligation to ensure
the faithful execution of the laws.
The final question to be addressed is whether the Act, taken as a whole,
violates the principle of separation of powers by unduly interfering with the
role of the Executive Branch....
We observe first that this case does not involve an attempt by Congress
to increase its own powers at the expense of the Executive Branch. Unlike
some of our previous cases, most recently Bowsher v. Synar, this case simply
does not pose a “dange[r] of congressional usurpation of Executive Branch
functions.” Indeed, with the exception of the power of impeachment—which
applies to all officers of the United States—Congress retained for itself no
powers of control or supervision over an independent counsel. The Act does
empower certain members of Congress to request the Attorney General to
apply for the appointment of an independent counsel, but the Attorney Gen-
eral has no duty to comply with the request, although he must respond
within a certain time limit. Sec. 529(g). Other than that, Congress’ role under
the Act is limited to receiving reports or other information and oversight of
the independent counsel’s activities, Sec. 595(a), functions that we have recog-
nized generally as being incidental to the legislative function of Congress. .. .
Similarly, we do not think that the Act works any judicial usurpation of
properly executive functions. As should be apparent from our discussion of
the Appointments Clause above, the power to appoint inferior officers such
as independent counsels is not in itself an “executive” function in the consti-
tutional sénse, at least when Congress has exercised its power to vest the ap-
pointment of an inferior office in the “courts of Law.”...
Finally, we do not think that the Act “impermissibly undermine[s]” the
406 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

powers of the Executive Branch or “disrupts the proper balance between the
coordinate branches [by] prevent[ing] the Executive Branch from accom-
plishing its constitutionally assigned functions,” Nixon v.Administrator of Gen-
eral Services, [433 U.S. 425 (1977)]. It is undeniable that the Act reduces the
amount of control or supervision that the Attorney General and, through
him, the President exercises over the investigation and prosecution of a cer-
tain class of alleged criminal activity. The Attorney General is not allowed to
appoint the individual of his choice; he does not determine the counsel’s
jurisdiction; and his power to remove a counsel is limited. Nonetheless, the
Act does give the Attorney General several means of supervising or control-
ling the prosecutorial powers that may be wielded by an independent coun-
sel. Most importantly, the Attorney General retains the power to remove the
counsel for “good cause,’ a power that we have already concluded provides
the Executive with substantial ability to ensure that the laws are “faithfully
executed” by an independent counsel. . . .
In sum, we conclude today that it does not violate the Appointments
Clause for Congress to vest the appointment of independent counsels in the
Special Division; that the powers exercised by the Special Division under the
Act do not violate Article III; and that the Act does not violate the separation
of powers principle by impermissibly interfering with the functions of the
Executive Branch. The decision of the Court of Appeals is therefore
Reversed.

“| Justice SCALIA, dissenting.

The principle of separation of powers is expressed in our Constitution
in the first section of each of the first three Articles. Article I, Sec. 1 provides
that “[a]ll legislative Powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and House of Representa-
tives.” Article II, Sec. 1 provides that “‘[t]he judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior Courts as
the Congress may from time to time ordain andestablish.” And the provision
at issue here, Art. II, Sec. 1, cl. 1 provides that “|t]he executive Power shall be
vested in a President of the United States of America.”
But just as the mere words of a Bill of Rights are not self-effectuating,
the framers recognized “[t]he insufficiency of a mere parchment delineation
of the boundaries” to achieve the separation of powers. Federalist No. 73,
(Hamilton). “[T]he great security,’ wrote Madison, “against a gradual con-
centration of the several powers in the same department consists in giving to
those who administer each department the necessary constitutional means
and personal motives to resist encroachments of the others. The provision for
defense must in this, as in all other cases, be made commensurate to the dan-
ger of attack.” Federalist No. 51. Madison continued:

“But it is not possible to give to each department an equal

power of self-defense. In republican government, the legislative au-
thority necessarily predominates. The remedy for this inconve-
niency is to divide the legislature into different branches; and to
render them, by different modes of election and different principles
of action, as little connected with each other as the nature of their ©
 aB | Appointment and Removal Powers | 407
Na
common functions and their common dependence on the society
will admit. ...As the weight of the legislative authority requires that
it should be thus divided, the weakness of the executive may re-
quire, on the other hand, that it should be fortified.”

The major “fortification” provided, of course, was the veto power. But in ad-
dition to providing fortification, the founders conspicuously and very con-
sciously declined to sap the executive’s strength in the same way they had
weakened the legislature: by dividing the executive power... .
That is what this suit is about. Power. The allocation of power among
Congress, the President and the courts in such fashion as to preserve the
equilibrium the Constitution sought to establish—so that “a gradual con-
centration of the several powers in the same department,” Federalist No. 51
(J. Madison), can effectivelybe ’ resisted. Frequently an issue of this sort will
come before the Court clad, so to speak, in sheep’s clothing: the potential of
the asserted principle to effect important change in the equilibrium of
power is not immediately evident, and must be discerned by a careful and
perceptive analysis. But this wolf comes as a wolf... .
[Bly the application of this statute in the present case, Congress has ef-
fectively compelled a criminal investigation of a high-level appointee of the
President in connection with his actions arising out of a bitter power dispute
between the President and the Legislative Branch. Mr. Olson may or may
not be guilty of a crime; we do not know. But we do know that the investi-
gation of him has been commenced, not necessarily because the President or
his authorized subordinates believe it is in the interest of the United States,
in the sense that it warrants the diversion of resources from other efforts, and
is worth the cost in money and in possible damage to other governmental
interests; and not even, leaving aside those normally considered factors, be-
cause the President or his authorized subordinates necessarily believe that an
investigation is likely to unearth a violation worth prosecuting; but only be-
cause the Attorney General cannot affirm, as Congress demands, that there
are no reasonable grounds to believe that further investigation is warranted. The
decisions regarding the scope of that further investigation, its duration, and,
finally, whether or not prosecution should ensue, are likewise beyond the
control of the President and his subordinates. . . .
The Court devotes most of its attention to such relatively technical de-
tails as the Appointments Clause and the removal power, addressing briefly
and only at the end of its opinion the separation of powers. As my prologue
suggests, I think that has it backwards. Our opinions are full of the recogni-
tion that it is the principle of separation of powers, and the inseparable corol-
lary that each department’s “defense must . .. be made commensurate to the
danger of attack,” Federalist No. 51 (J. Madison), which gives comprehensible
content to the appointments clause, and determines the appropriate scope of
the removal power. Thus, while I will subsequently discuss why our appoint-
ments and removal jurisprudence does not support today’s holding, I begin
_ with a consideration of the fountainhead of that jurisprudence, the separa-
tion and equilibration of powers... .
To repeat, Art. II, Sec. 1, cl. 1 of the Constitution provides: “The execu-
tive Power shall be vested in a President of the United States.” As I described
at the outset of this opinion, this does not mean some of the executive power,
408 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

but all of the executive power. It seems to me, therefore, that the decision of
the Court of Appeals invalidating the present statute must be upheld on fun-
damental separation-of-powers principles if the following two questions are
answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an
investigation to decide whether to prosecute) the exercise of purely executive
power? (2) Does the statute deprive the President of the United States of ex-
clusive control over the exercise of that power? Surprising to say, the Court
appears to concede an affirmative answer to both questions, but seeks to avoid
the inevitable conclusion that since the statute vests some purely executive
power in a person who is not the President of the United States it is void.
The Court concedes that “[t]here is no real dispute that the functions
performed by the independent counsel are ‘executive’,”’ though it qualifies
that concession by adding “in the sense that they are ‘law enforcement’ func-
tions that typically have been undertaken by officials within the Executive
Branch.” The qualifier adds nothing but atmosphere. In what other sense can
one identify “the executive Power” that is supposed to be vested in the Pres-
ident (unless it includes everything the Executive Branch is given to do)
except by reference to what has always and everywhere—if conducted by
Government at all—been conducted never by the legislature, never by the
courts, and always by the executive. There is no possible doubt that the inde-
pendent counsel’s functions fit this description. She is vested with the “full
power and independent authority to exercise all investigative and prosecutorial
functions and powers of the Department of Justice [and] the Attorney Gen-
eral.” Governmental investigation and prosecution of crimes is a quintessen-
tially executive function. ...
As for the second question, whether the statute before us deprives the
President of exclusive control over that quintessentially executive activity:
The Court does not, and could not possibly, assert that it does not. That is in-
deed the whole object of the statute. Instead, the Court points out that the
President, through his Attorney General, has at least some control. That con-
cession is alone enough to invalidate the statute, but I cannot refrain from
pointing out that the Court greatly exaggerates the extent of that “some”
presidential control. “Most importan[t]” among these controls, the Court as-
serts, is the Attorney General’s “power to remove the counsel for ‘good
cause. ” This is somewhat like referring to shackles as an effective means
of locomotion. As we recognized in Humphrey’s Executor v. United States
(1935)—indeed, what Humphrey’s Executor was all about—limiting removal
power to “good cause” is an impediment to, not an effective grant of, presi-
dential control. We said that limitation was necessary with respect to mem-
bers of the Federal Trade Commission, which we found to be “an agency of
the legislative and judicial departments,” and “wholly disconnected from the
executive department” because “it is quite evident that one who holds his
office only during the pleasure of another, cannot be depended upon to
maintain an attitude of independence against the latter’s will.’ What we in
Humphrey’s Executor found to be a means of eliminating presidential control,
the Court today considers the “most importan[t]” means of assuring presi-
dential control. Congress, of course, operated under no such illusion when it
enacted this statute, describing the “good cause” limitation as “protecting the
independent counsel’s ability to act independently of the President’s direct
control” since it permits removal only for “misconduct.”
 B | Appointment and Removal Powers | 409

Moving on to the presumably “less important” controls that the Presi-

dent retains, the Court notes that no independent counsel may be appointed
without a specific request from the Attorney General. As I have discussed
above, the condition that renders such a request mandatory (inability to find
“no reasonable grounds to believe” that further investigation is warranted) is
so insubstantial that the Attorney General’s discretion is severely confined.
And once the referral is made, it is for the Special Division to determine the
scope and duration of the investigation. And in any event, the limited power
over referral is irrelevant to the question whether, once appointed, the inde-
pendent counsel exercises executive power free from the President’s control.
Finally, the Court points out that the Act directs the independent counsel to
abide by general Justice Department policy, except when not “possible.” The
exception alone shows this to be an empty promise. Even without that, how-
ever, one would be hard put to come up with many investigative or prosecu-
torial “policies” (other than those~ imposed by the Constitution or by
Congress through law) that are absolute. Almost all investigative and pros-
ecutorial decisions—including the ultimate decision whether, after a techni-
cal violation of the law has been found, prosecution is warranted—involve
the balancing of innumerable legal and practical considerations. In sum, the
balancing of various legal, practical and political considerations, none of
which is absolute, is the very essence of prosecutorial discretion. To take this
away is to remove the core of the prosecutorial function, and not merely
“some” presidential control.
As I have said, however, it is ultimately irrelevant how much the statute
reduces presidential control. The case is over when the Court acknowledges,
as it must, that “[i]t is undeniable that the Act reduces the amount of control
or supervision that the Attorney General and, through him, the President ex-
ercises over the investigation and prosecution of a certain class of alleged
criminal activity.” It effects a revolution in our constitutional jurisprudence
for the Court, once it has determined that (1) purely executive functions are
at issue here, and (2) those functions have been given to a person whose ac-
tions are not fully within the supervision and control of the President,
nonetheless to proceed further to sit in judgment of whether “the President’s
need to control the exercise of [the independent counsel’s] discretion is so
central to the functioning of the Executive Branch” as to require complete
control (emphasis added), whether the conferral of his powers upon some-
one else “sufficiently deprives the President of control over the independent
counsel to interfere impermissibly with [his] constitutional obligation to en-
sure the faithful execution of the laws” (emphasis added), and whether “the
Act give[s] the Executive Branch sufficient control over the independent
counsel to ensure that the President is able to perform his constitutionally as-
signed duties” (emphasis added). It is not for us to determine, and we have
never presumed to determine, how much of the purely executive powers of
government must be within the full control of the President. The Constitu-
tion prescribes that they all are. ...
The Court has, nonetheless, replaced the clear constitutional prescrip-
tion that the executive power belongs to the President with a “balancing
test.” What “re the standards to determine how the balance is to be struck,
that is, how much removal of presidential power is too much? Many coun-
tries of the world get along with an Executive that is much weaker than
410 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

ours—in fact, entirely dependent upon the continued support of the legisla
ture. Once we depart from the text of the Constitution, just where short of
that do we stop? The most amazing feature of the Court’s opinion is that it
does not even purport to give an answer. It simply announces, with no analy-
sis, that the ability to control the decision whether to investigate and prose-
cute the President’s closest advisors, and indeed the President himself, is
not “so central to the functioning of the Executive Branch” as to be consti-
tutionally required to be within the President’s control. Apparently that is
so because we say it is so. Evidently, the governing standard is to be what
might be called the unfettered wisdom of a majority of this Court, revealed
to an obedient people on.a case-by-case basis. This is not only not the gov-
ernment of laws that the Constitution established; it is not a government of
laws.at all.
In my view, moreover, even as an ad hoc, standardless judgment the
Court’s conclusion must be wrong. Before this statute was passed, the Presi-
dent, in taking action disagreeable to the Congress, or an executive officer
giving advice to the President or testifying before Congress concerning one
of those many matters on which the two branches are from time to time at
odds, could be assured that his acts and motives would be adjudged—insofar
as the decision whether to conduct a criminal investigation and to prosecute
is concerned—in the Executive Branch, that is, in a forum attuned to the in-
terests and the policies of the Presidency. That was one of the natural advan-
tages the Constitution gave to the Presidency, just as it gave Members of
Congress (and their staffs) the advantage of not being prosecutable for any-
thing said or done in their legislative capacities. See U.S. Const., Art. I, Sec. 6,
cl. 1; Gravel v. United States, 408 U.S. 606 (1972). It is the very object of this
legislation to eliminate that assurance of a sympathetic forum. Unless it can
honestly be said that there are “no reasonable grounds to believe” that fur-
ther investigation is warranted, further investigation must ensue; and the
conduct of the investigation, and determination of whether to prosecute, will
be given to a person neither selected by nor subject to the control of the
President—who will in turn assemble a staff by finding out, presumably, who
is willing to put aside whatever else they are doing, for an indeterminate pe-
riod of time, in order to investigate and prosecute the President or a particu-
lar named individual in his administration. The prospect is frightening (as I
will discuss at some greater length at the conclusion of this opinion) even
outside the context of a bitter, interbranch political dispute. Perhaps the
boldness of the President himself will not be affected—though I am not even
sure of that. (How much easier it is for Congress, instead of accepting the
political damage attendant to the commencement of impeachment proceed-
ings against the President on trivial grounds—or, for that matter, how easy it
is for one of the President’s political foes outside of Congress—simply to
trigger a debilitating criminal investigation of the Chief Executive under this
law.) But as for the President’s high-level assistants, who typically have no
political base of support, it is as utterly unrealistic to think that they will not
be intimidated by this prospect, and that their advice to him and their advo-
cacy of his interests before a hostile Congress will not be affected, as it would
be to think that the Members of Congress and their staffs would be un-
affected by replacing the Speech or Debate Clause with a similar provision.
It deeply wounds the President, by substantially reducing the President’s abil-
 B | Appointment and Removal Powers | 411

ity to protect himself and his staff. That is the whole object of the law, of
course, and I cannot imagine why the Court believes it does not succeed.
Besides weakening the Presidency by reducing the zeal of his staff, it
must also be obvious that the institution of the independent counsel en-
feebles him more directly in his constant confrontations with Congress, by
eroding his public support. Nothing is so politically effective as the ability to
charge that one’s opponent and his associates are not merely wrong-headed,
naive, ineffective, but, in all probability, “crooks.” And nothing so eftectively
gives an appearance of validity to such charges as a Justice Department inves-
tigation and, even better, prosecution. The present statute provides ample
means for that sort of attack. ... .
As I indicated earlier, the basic separation-of-powers principles I have
discussed are what give life and content to ourjurisprudence concerning the
President’s power to appoint and remove officers. The same result of un-
constitutionality is therefore plainly ihdicated by our case law in these areas... .
Because appellant (who all parties and the Court agree is an officer of
the United States) was not appointed by the President with the advice and
consent of the Senate, but rather by the Special Division of the United States
Court of Appeals, her appointment is constitutional only if (1) she is an “in-
ferior” officer within the meaning of the above clause, and (2) Congress may
vest her appointment in a court of law.
As to the first of these inquiries, the Court does not attempt to “decide
exactly” what establishes the line between principal and “inferior” officers,
but is confident that, whatever the line may be, appellant “clearly falls on the
‘inferior officer’ side” of it. The Court gives three reasons: First, she “is sub-
ject to removal by a higher Executive branch official,” namely the Attorney
General. Second, she is “empowered by the Act to perform only certain,
limited duties.” Third, her office is “limited in jurisdiction” and “limited in
tenure:)i: ;
The first of these lends no support to the view that appellant is an in-
ferior officer. Appellant is removable only for “good cause” or physical or
mental incapacity. By contrast, most (if not all) principal officers in the Exec-
utive Branch may be removed by the President at will. I fail to see how the
fact that appellant is more difficult to remove than most principal officers
helps to establish that she is an inferior officer. . . .
The second reason offered by the Court—that appellant performs only
certain, limited duties—may be relevant to whether she is an inferior officer,
but it mischaracterizes the extent of her powers. ...
The final set of reasons given by the Court for why the independent
counsel clearly is an inferior officer emphasizes the limited nature of her
Jurisdiction and tenure. Taking the latter first, I find nothing unusually lim-
ited about the independent counsel’s tenure. To the contrary, unlike most
high-ranking Executive Branch officials, she continues to serve until she (or
the Special Division) decides that her work is substantially completed. . . .
This particular independent prosecutor has already served more than two
years, which is at least as long as many cabinet officials. As to the scope of her
_ jurisdiction, there can be no doubt that is small (though far from unimpor-
tant). But ~ithin it she exercises more than the full power of the Attorney
General.
More fundamentally, however, it is not clear from the Court’s opinion
412 | THe PrestpENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

why the factors it discusses—even if applied correctly to the facts of this

case—are determinative of the question of inferior officer status. The appar-
ent source of these factors is a statement in United States v. Germaine, 99 U.S.
(9 Otto) 508 (1879) (discussing United States v. Hartwell, 6 Wall. 385 (1868)),
that “the term [officer] embraces the ideas of tenure, duration, emolument
and duties” Besides the fact that this was dictum, it was dictum 1n a case
where the distinguishing characteristics of inferior officers versus superior
officers were in no way relevant, but rather only the distinguishing charac-
teristics of an “‘officer of the United States” (to which the criminal statute at
issue applied) as opposed to a mere employee. Rather than erect a theory of
who is an inferior officer on the foundation of such an irrelevancy,I think it
preferable to look to the text of the Constitution and the division of power
that-it establishes. These demonstrate, I think, that the independent counsel is
not an inferior officer because she is not subordinate to any officer in the Ex-
ecutive Branch (indeed, not even to the President). Dictionaries in use at the
time of the Constitutional Convention gave the word “inferiour” two mean-
ings which it still bears today: (1) “[l]ower in place, .. . station, .. . rank oflife,
... value or excellency,’ and (2) “[s]ubordinate.” S. Johnson, Dictionary of the
English Language (6th ed. 1785). In a document dealing with the structure
(the constitution) of a government, one would naturally expect the word to
bear the latter meaning—indeed, in such a context it would be unpardon-
ably careless to use the word unless a relationship of subordination was in-
tended. If what was meant was merely “lower in station or rank,’ one would
use instead a term such as “lesser officers.’ At the only other point in the
Constitution at which the word “inferior” appears, it plainly connotes a rela-
tionship of subordination. Article III vests the judicial Power of the United
States in “one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish.” U.S. Const., Art. III, Sec. 1 (em-
phasis added). In Federalist No. 81, Hamilton pauses to describe the “inferior”
courts authorized by Art. III as inferior in the sense that they are “subordi-
nate” to the Supreme Court. ...
That “inferior” means “subordinate” is also consistent with what little
we know about the evolution of the Appointments Clause. . . .
To be sure, it is not a sufficient condition for “inferior” officer status that
one be subordinate to a principal officer. Even an officer who is subordinate
to a department head can be a principal officer... .
The independent counsel is not even subordinate to the President. The
Court essentially admits as much, noting that “appellant may not be ‘subor-
dinate’ to the Attorney General (and the President) insofar as she possesses a
degree of independent discretion to exercise the powers delegated to her un-
der the Act.’ In fact, there is no doubt about it. As noted earlier, the Act
specifically grants her the “full power and independent authority to exercise all
investigative and prosecutorial functions of the Department of Justice” and
makes her removable only for “good cause,” a limitation specifically intended
to ensure that she be independent of, not subordinate to, the President and the
Attorney General.
Because appellant is not subordinate to another officer, she is not an “in-
ferior” officer and her appointment other than by the President with the
advice and consent of the Senate is unconstitutional... .
There is of course no provision in the Constitution stating who may re-
 B | Appointment and Removal Powers | 413

move executive officers, except the provisions for removal by impeachment.

Before the present decision it was established, however, (1) that the Presi-
dent’s power to remove principal officers who exercise purely executive
powers could not be restricted, see Myers v. United States, 272 U.S. 52 (1926),
and (2) that his power to remove inferior officers who exercise purely exec-
utive powers, and whose appointment Congress had removed from the usual
procedure of presidential appointment with Senate consent, could be re-
stricted, at least where the appointment had been made by an officer of the
Executive Branch... .
The Court could have resolved the removal power issue in this case by
simply relying upon its erroneous conclusion that the independent counsel
was an inferior officer, and then extending our holding that the removal of
inferior officers appointed by the Executive can be restricted, to a new hold-
ing that even the removal of inferior officers appointed by the courts can be
restricted. That would in my view_be a considerable and unjustified exten-
sion, giving the Executive full discretion in neither the selection nor the re-
moval of a purely executive officer. The course the Court has chosen,
however, is even worse.
Since our 1935 decision in Humphrey’s Executor v. United State-—which
was considered by many at the time the product of an activist, anti- New
Deal court bent on reducing the power of President Franklin Roosevelt—it
has been established that the line of permissible restriction upon removal of
principal officers lies at the point at which the powers exercised by those of-
ficers are no longer purely executive. Thus, removal restrictions have been
generally regarded as lawful for so-called “independent regulatory agen-
cies,’ such as the Federal Trade Commission, the Interstate Commerce Com-
mission, and the Consumer Products Safety Commission, which engage
substantially in what has been called the “quasi-legislative activity” of rule-
making, and for members of Article I courts, such as the Court of Military
Appeals who engage in the “quasi-judicial” function of adjudication. It has
often been observed, correctly in my view, that the line between “purely ex-
ecutive” functions and “quasi-legislative” or “quasi-judicial” functions is not a
clear one or even a rational one... . But at least it permitted the identifica-
tion of certain officers, and certain agencies, whose functions were entirely
within the control of the President. Congress had to be aware of that restric-
tion in its legislation. Today, however, Humphrey’s Executor is swept into the
dustbin of repudiated constitutional principles. “[O]ur present considered
view,’ the Court says, “is that the determination of whether the Constitution
allows Congress to impose a ‘good cause’-type restriction on the President’s
power to remove an official cannot be made to turn on whether or not that
official is classified as ‘purely executive’ ”” What Humphrey’s Executor (and
presumably Myers) really means, we are now told, is not that there are any
“rigid categories of those officials who may or may not be removed at will
by the President,” but simply that Congress cannot “interefere with the Pres-
ident’s exercise of the ‘executive power’ and his constitutionally appointed
duty to ‘take care that the laws be faithfully executed’ ”...
One can hardly grieve for the shoddy treatment given today to
' Humphrey’s Executor, which, after all, accorded the same indignity (with much
less justification) to Chief Justice TAFT’s opinion 10 years earlier in Myers v,
United States, supra—gutting, in six quick pages devoid of textual or historical
 414 | Tue PRrEsIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

precedent for the novel principle it set forth, a carefully researched and rea-
soned 70-page opinion. It is in fact comforting to witness the reality that he
who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the
Constitution. Humphrey’s Executor at least had the decency formally to ob-
serve the constitutional principle that the President had to be the repository
of all executive power which, as Myers carefully explained, necessarily means
that he must be able to discharge those who do not perform executive func-
tions according to his liking. As we noted in Bowsher, once an officer is ap-
_ pointed “ ‘it is only the authority that can remove him, and not the authority
that appointed him, that he must fear and, in the performance of his func-
tions, obey’ ” By contrast, “our present considered view” is simply that any
Executive officer’s removal can be restricted, so long as the President remains
“able to accomplish his constitutional role.” There are now no lines. If the re-
moval of a prosecutor, the virtual embodiment of the power to “take care
that the laws be faithfully executed,” can be restricted, what officer’s removal
cannot? This is an open invitation for Congress to experiment. What about a
special Assistant Secretary of State, with responsibility for one very narrow
area of foreign policy, who would not only have to be confirmed by the
Senate but could also be removed only pursuant to certain carefully designed
restrictions? Could this possibly render the President “[un]able to accomplish
his constitutional role”? Or a special Assistant Secretary of Defense for Pro-
curement? The possibilities are endless, and the Court does not understand
what the separation of powers, what “[a]mbition . . . counteract[ing] ambi-
tion,” Federalist No. 51 (Madison), is all about, if it does not expect Congress
to try them. As far as I can discern from the Court’s opinion, it is now open
season upon the President’s removal power for all executive officers, with not
even the superficially principled restriction of Humphrey’s Executor as cover.
The Court essentially says to the President “Trust us. We will make sure that
you are able to accomplish your constitutional role.” I think the Constitution
gives the President—and the people—more protection than that.
The purpose of the separation and equilibration of powers in general,
and of the unitary Executive in particular, was not merely to assure effective
government but to preserve individual freedom. Those who hold or have
held offices covered by the Ethics in Government Act are entitled to that
protection as much as the rest of us, and I conclude my discussion by con-
sidering the effect of the Act upon the fairness of the process they receive.
Only someone who has worked in the field of law enforcement can
fully appreciate the vast power and the immense discretion that are placed in
the hands of a prosecutor with respect to the objects of his investigation. . ..
Under our system of government, the primary check against prosecuto-
rial abuse is a political one. The prosecutors who exercise this awesome dis-
cretion are:selected and can be removed by a President, whom the people
have trusted enough to elect. Moreover, when crimes are not investigated
and prosecuted fairly, nonselectively with a reasonable sense of proportion,
the President pays the cost in political damage to his administration. .. .
The notion that every violation of law should be prosecuted, includ-
ing—indeed, especially—every violation by those in high places, is an attrac-
tive one, and it would be risky to argue in an election campaign that that is
not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be
done, though the heavens may fall. The reality is, however, that it is not an
 B | Appointment and Removal Powers | 415

absolutely overriding value, and it was with the hope that we would
be able
to acknowledge and apply such realities that the Constitution spared
us, by
life tenure, the necessity of election campaigns. I cannot imagine that
there
are not many thoughtful men and women in Congress who realize that
the
benefits of this legislation are far outweighed by its harmful effect upon
our
system of government, and even upon the nature of Justice received by
those
men and women who agree to serve in the Executive Branch. But it is difi_
cult to vote not to enact, and even more difficult to vote to repeal,
a statute
called, appropriately enough, the Ethics in Government Act. If Congress is
controlled by the party other than the one to which the President belongs, it
has little incentive to repeal it; if it is controlled by the same party, it dare not.
By its short-sighted action today, I fear the Court has permanently en-
cumbered the Republic with an institution that will do it great harm.
Worse than what it has done, however, is the manner in which it has
done it.A government of laws mearis a government ofrules. Today’s decision
on the basic issue of fragmentation of executive power is ungoverned by
rule, and hence ungoverned by law. It extends into the very heart of our
most significant constitutional function the “totality of the circumstances”
mode of analysis that this Court has in recent years become fond of. Taking
all things into account, we conclude that the power taken away from the
President here is not really too much. The next time executive power is as-
signed to someone other than the President we may conclude, taking all
things into account, that it is too much. That opinion, like this one, will not
be confined by any rule. We will describe, as we have today (though I hope
more accurately) the effects of the provision in question, and will authorita-
tively announce: “The President’s need to control the exercise of the [subject
officer’s] discretion is so central to the functioning of the Executive Branch
as to require complete control.” This is not analysis; it is ad hoc judgment.
And it fails to explain why it is not true that—as the text of the Constitution
seems to require, as the Founders seemed to expect, and as our past cases
have uniformly assumed—all purely executive power must be under the con-
trol of the President.
The ad hoc approach to constitutional adjudication has real attraction,
even apart from its work-saving potential. It is guaranteed to produce a re-
sult, in every case, that will make a majority of the Court happy with the law.
The law is, by definition, precisely what the majority thinks, taking all things
into account, it ought to be. I prefer to rely upon the judgment of the wise
men who constructed our system, and of the people who approved it, and of
two centuries of history that have shown it to be sound. Like it or not, that
Judgment says, quite plainly, that “‘[t]he executive Power shall be vested in a
President of the United States.”
416 | THe PrestpenT AS Cuter EXECUTIVE IN DOMESTIC AFFAIRS

G Legislative Powers in the

Administrative State

The president’s role in initiating and formulating legislation as well as

in overseeing and controlling its implementation has expanded enor-
mously as a result of Congress’s delegation of its powers to the execu-
tive branch and the growth of the institutional presidency. As noted
earlier, the president’s State of the Union address has become an occa-
sion for the presentation of his legislative and budget recommendations
to Congress. Although George Washington and John Adams personally
delivered their reports to Congress, for more than a century—from
Thomas Jefferson in 1801 to 1917, when Woodrow Wilson reinstated
the practice—presidents sent only a written message to Congress. Al-
though Congress is given the power of the purse (in Article I, Sec-
tion 9), since the Budget and Accounting Act of 1921 the president has
assumed responsibility for submitting budget estimates to Congress,
which then may increase or decrease specific items in the “executive
budget.” More recently, the Office of Management and Budget was
given the major responsibility for preparing budget estimates for the
White House. Presidents may also issue executive orders and proclama-
tions. In addition, Presidents Reagan and George W. Bush issued alarge
number of “presidential signing statements’—expressing presidential
intent—when signing bills into law. (See the CONSTITUTIONAL
HISTORY box in this section on Presidential Signing Statements and
Legislative Powers.)
To safeguard against congressional usurpation of presidential power,
the Constitutional Convention guaranteed the president a role in the
passage of legislation. Article I, Section 7, requires the president’s ap-
proval or disapproval of “every order, resolution, or vote to which the
concurrence of the Senate and the House of Representatives may be
necessary.” The president may veto legislation, although not particular
items in a bill, by returning a bill unsigned to the house in which
it originated, along with his objections. If within ten days of receiving
a bill the president neither signs nor vetoes it, the bill becomes law with-
out his signature. But if Congress goes out of session within that period,
then the president may exercise what is called a “pocket veto” by simply
not returning thebill. The president’s veto power over legislation is qual-
ified, however, because it may be overridden by a two-thirds vote of
both houses. Congress may also pass “concurrent resolutions,” which do
not require approval of the president to become law. :
 C | Legislative Powers in the Administrative State | 417

Broad delegations of congressional lawmaking power to the execu-

tive branch are almost invariably upheld by the Court. This is so even
though the Constitution delegates the lawmaking power to Congress
and despite the age-old Latin maxim—or nondelegation doctrine—that
“delegated power may not be [re]delegated.” Still, the Court’s approac
h
to reviewing the lawmaking powers of the executive branch has
evolved, particularly with the growth of the administrative state in the
twentieth century.
For most of the nineteenth century, Congress delegated very little
and the executive branch remaifted small. In Wayman v. Southard,
23 US. 1 (1825), the Marshall Court initially sanctioned delegated
powers as necessary “to fill in the details” and to implement the general
provisions of legislation. In the late nineteenth century in response to
the Industrial Revolution, though, Congress began creating inde-
pendent regulatory commiissions, like the Interstate Commerce Com-
mission (ICC) in 1887, and delegating more powers. When these
delegations were challenged, the Court upheld the delegation of
_lawmaking power so long as Congress laid “down by legislative act
an intelligible principle to which the person or body authorized to
take action is directed to conform.” As aresult, Congress delegates to
agencies extensive powers under exceedingly broad standards, such as
authorizing, for example, the Federal Communications Commission
(FCC) to regulate the airwaves in the “public convenience, interest or
necessity.” In effect, Congress provides legislative mandates for agencies to
enact regulations.
During the New Deal, when a number of new agencies were cre-
ated in the 1930s, such as the Food and Drug Administration, the Court
did enforce the nondelegation doctrine and imposed due process re-
quirements on agency rulemaking. Two 1935 cases struck down major
New Deal legislation aimed at easing the Depression, reasoning that it
impermissibly delegated power.The “hot oil case,” Panama Refining Com-
pany v. Ryan, 293 U.S. 388 (1935), invalidated part of the National In-
dustrial Recovery Act of 1933 for giving the president authority to
exclude from interstate commerce oil that was produced in excess of
state regulations. The other was known as “the sick chickens case,”
Schechter Poultry Corporation v. United States (excerpted below). The fol-
lowing year the Court also struck down the Guffey Coal Act, in Carter
v. Carter Coal Co., 298 U.S. 238 (1936), as an impermissible delegation of
power to set up a regulatory code for the coal industry.
After the “constitutional crisis” in 1937, the Court abandoned the
‘nondelegation ‘doctrine and has not found any other legislation to run
afoul of the doctrine. The confrontation over the Court’s pre-1937 rul-
ings and the continued expansion of administrative agencies nonetheless
resulted in the enactment of the Administrative Procedure Act (APA) of
1946, a uniform code for regulatory policymaking. With the APA, Con-
gress inaugurated a new era in administrative law. A central rationaliza-
tion for broad delegations of lawmaking power to the executive branch
during the New Deal was administrative expertise over complex eco-
nomic and social regulations. The expertise of agencies also became an
important justification for judicial deference to the executive branch and
Congress’s broad delegation of its lawmaking power.
A second generation of new federal agencies and delegations fur-
ther expanded the executive branch’s regulatory powers in the 1970s
with the creation of the Environmental Protection Agency (1972), the
Consumer Product Safety Commission (1972), and the Occupational
Safety and Health Administration (1973), among others. Congress not
only gave these new and older agencies expanded responsibilities for
regulating complex health-safety and environmental risks but it also
provided for expanded opportunities to challenge regulations and regu-
latory inaction in federal courts. Congress did so because of concerns
that the Republican administration of Richard Nixon would not ag-
gressively enact health, safety, and environmental regulations. Busi-
nesses, corporations, and industry groups in turn increasingly opposed
new regulations as too costly, challenging them in courts and lobbying
for deregulatory reforms.
As a result, in the 1970s and 1980s federal courts became more in-
volved in reviewing challenges to agencies’ regulations and divided over
the exercise of judicial review. On one hand, Judge David Bazelon
championed imposing heightened due process requirements on agen-
cies, an approach known as “strict procedures ensure correct results.”
He contended that “the best way for courts to guard against unreason-
able or erroneous administrative decisions is not for judges themselves
to scrutinize the technical merits of each decision. Rather, it is to es-
tablish a decision-making process which assures a reasoned decision
that can be held up to the scrutiny of the scientific community and the
public.” Accordingly, the judiciary had a major role in supervising
the regulatory process and should ensure public participation in, and
the reasoned elaboration of the basis for, agency rulemaking. On the
other hand, Judge Harold Leventhal championed the so-called “hard
look” approach to exercising review. Instead of imposing additional
procedural requirements, he maintained that courts should engage in
searching, substantive review of the technical basis for agency decisions.’
The Supreme Court initially embraced the “hard look” approach
in Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense
Council, Inc., 435 U.S. 519 (1978). Writing for the Court, Rehnquist re-
pudiated the “strict procedures ensure correct results” approach as judi-
 C | Legislative Powers in the Administrative State | 419

cial “Monday morning quarterbacking” that “clearly runs the risk of

‘propel|ling] the courts into the domain which Congress has set aside
exclusively for the administrative agency” ” However, the “hard look”
approach was not unproblematic. It was no less interventionist in sanc-
tioning heightened judicial scrutiny of the basis for regulations and re-
mained ill-defined as a guideline.
The ambiguity of the “hard look” approach and the inevitable
problems of judges’ differing views of the substantive basis for regula-
tions were subsequently underscored in Industrial Union Department,
AFL-CIO v, American Petroleum Institute (1980), involving a challenge to
the OSHA’: regulation of benzene, a carcinogen. After Democratic
president Jimmy Carter won election in 1976, his administration
moved to regain what it deemed ground lost in health, safety, and
environmental regulation during the Nixon and Ford administrations.
Like other agencies, the OSHA maintained there was no safe threshold
level of carcinogenic exposure and it was impossible to calculate the
number of lives that would be-saved by a 1 ppm benzene standard. That
standard was immediately attacked as too costly and unsupported, since
the risks at such a low level of exposure were impossible to quantify.
On appeal, the Court had to decide whether the OSHA had presented
sufficient analysis for its regulation, but the justices split five to four and
only three joined Stevens’s opinion for the Court. In his view, the
OSHA failed to establish a significant risk of regulating benzene below
the level of 10 ppm. By contrast, Rehnquist, who cast the crucial fifth
vote in a concurring opinion in American Petroleum Institute (excerpted
below) argued that the OSHA provision should be invalidated on the
basis of the nondelegation doctrine, thereby forcing Congress to estab-
lish more precise standards for agency rulemaking. The four dis-
senters—Justices Marshall, Brennan, White, and Blackmun—disagreed.
In their view, the nondelegation doctrine was “moribund,” as Marshall
put in FPC v. New England Power Co., 415 U.S. 345 (1974), and the ma-
jority had taken the “hard look” approach too far, imposing its own
philosophy of regulating health risks for that of the agency. Just “as the
Constitution does not enact Mr. Herbert Spenser’s Social Statics? ” as
Marshall put it, “so the responsibility to scrutinize federal administrative
action does not authorize this Court to strike its own balance between
the costs and benefits of occupational safety standards.”
The Court’s ruling in American Petroleum Institute generated confu-
sion and the Court sought clarity a year later when reviewing the
OSHA’s cotton dust standard in American Textile Manufacturers Institute,
Inc. v. Donovan, 452 U.S. 490 (1981). Since cotton dust is not a carcino-
gen, it did not fall under the OSHA’s generic carcinogen policy, but the
agency interpreted its legislative mandate as requiring the most protec-
420 | THe PresiDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

tive standard feasible. Businesses challenged the standard as too costly

and argued that the standard should be supported by a “cost-risk-
benefit” assessment. But, the Carter administration contended that such
an assessment was not required and would result in a lower standard.
The controversy then escalated when in 1981 Republican president
Ronald Reagan issued an executive order requiring a cost-benefit
analysis for all new federal regulations, including the OSHA's cotton
dust standard. On appeal, the Court held the OSH Act did not require
but permitted a cost-risk-benefit assessment for the regulation. Writing
for the Court, Justice Brennan emphasized that, on the one hand,
judges have no technical expertise or standards to apply in such cases
and, on the other hand, the executive branch has discretion in inter-
preting the law. In short, the principal check on the executive branch
lies with Congress and presidential elections, not the courts.
The Supreme Court finally held that courts should defer to exective
branch agencies’ interpretation of ambiguous delegations of lawmaking
power by Congress in Chevron v. Natural Resources Defense Council,
467 USS. 837 (1984). In that case, the Court unanimously upheld the
Reagan administration’s “bubble policy” for regulating air pollution. The
dispute centered on whether the EPA could abandon an earlier policy,
requiring each emission source within a plant to be assessed indepen-
dently, and substitute a policy giving a plant wide or “bubble” definition
of polluting “sources” under the Clean Air Act. The “bubble policy” per-
mitted particular pollution-emitting sources to exceed air pollution
control standards, so long as the emissions on a plant-wide basis were at
or below overall air-quality standards. The policy was de-regulatory in
that polluters would not incur the higher costs of installing expensive
controls for particular pollutants. On appeal, Justice Stevens upheld the
“bubble policy” and explained that courts should defer to White House
directives to agencies and agencies’ interpretations of their legislative
mandates when those mandates are ambiguous. In his words: “if the
statute is silent or ambiguous with respect to the specific issue, the ques-
tion for the courts is whether the agency’s answer 1s based on a permis-
sible construction of the statute.” Judicial deference to Congress’s broad
delegation of lawmaking authority and to the executive branch’s inter-
pretation of its legislative mandates was warranted, because

judges are not experts in the field, and are not part of either politi-
cal branch of the government. Courts must, in some cases, reconcile
competing political interests, but not on the basis of the judges’ per-
sonal policy preferences. In contrast, an agency to which Congress
had delegated policymaking responsibilities may, within the limits
of that delegation, properly rely upon the incumbent administra-
tion’s views of wise policy to inform its judgments. While agencies
 C | Legislative Powers in the Administrative State | 421

are not directly accountable to the people, the Chief Executive is,
and it is entirely appropriate for this political branch of the Govern-
ment to make such policy choices—resolving the competing inter-
ests which Congress itself either inadvertently did not resolve, or
intentionally left to be resolved by the agency charged with the ad-
ministration of the statute in light of everyday realities.

The so-called Chevron doctrine of judicial deference has prevailed.

In Rust v. Sullivan, 500 U.S. 173 (1991) (see Vol. 2, Ch. 5), for example,
the Court upheld regulations adopted by the Reagan administration
that forbid federal funding of family planning organizations that also
provided abortion-related services, even though such organizations had
received funding for almost two decades. There, Chief Justice Rehn-
quist reiterated that when statutory interpretation is ambiguous, courts
should defer to the executive branch’s construction, even if it reverses a
prior interpretation of Congress’s legislation.
The president and the executive branch also exercise significant
power when interpreting and enforcing legislation under the obligation
to “take Care that the Laws be faithfully executed.” But controversies
arise when the president and his subordinates refuse to enforce laws
deemed in conflict with their legal policy goals or detrimental to the
nation. While some courts have ruled that the “take care” clause poses a
duty to enforce the laws, even those with which the president dis-
agrees, the judiciary tends to defer to the executive branch in rec-
ognizing that traditional principles of prosecutorial discretion allow
agencies to decide when and how to enforce laws.
A related controversy involves whether, given the obligation to
faithfully execute the laws, the president may impound funds for spe-
cific programs that Congress has appropriated. Richard M. Nixon,
among other presidents, claimed an inherent power to refuse to spend
funds or otherwise carry out laws as authorized by Congress. The
Court has not yet resolved this constitutional issue. But in Tiain v. City
of New York, 420 U.S. 35 (1975), it held as a statutory matter that the
president could not withhold funds provided by Congress for the en-
forcement of the Federal Water Pollution Control Act.
Congress nevertheless retains significant powers of overseeing its
delegations to the executive branch, through its appropriation and
oversight hearings in particular. When delegating broad power to exec-
utive agencies, Congress also frequently required agencies to report
their decisions to Congress and authorized one or both houses to over-
turn, within a specified period of time, agency decisions by passing a
“legislative»veto:’ But in a far-reaching 1983 ruling, in Immigration and
Naturalization Service v. Chadha (1983) (see excerpt below), the Court
ruled that “legislative vetoes” violate the principle of separation of
422 | THe PresmipenT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

powers. In spite of Chadha, however, Congress has enacted more than

400 new legislative vetoes, requiring the executive branch to obtain for
certain decisions the approval of specific congressional committees and
giving those committees veto authority.’ .
The Court, however, struck down Congress’s delegation to the
president of the power of line-item vetoes in Clinton v. City of New York
(1998) (excerpted below). As in Chadha, the Court held that the Line
Item Veto Act of 1996 violates the presentment clause of Article I, Sec-
tion 7, Clause 2.

Notes

1. J. W Hampton,
Jr. & Co. v. United States, 276 U.S. 394 (1928).
2. International Harvester Co. v. Ruckelshaus, 478 FE 2d 615, 652 (D.C. Cir., 1973); and
David Bazelon, “Coping with Technology through the Legal Process,” 62 Cornell Law
Review 817 (1977).
3. See Harold Leventhal, “Environmental Decisionmaking and the Role of the
Courts,’ 122 University of Pennsylvania Law Review 509 (1974).
4. See Louis Fisher and Neal Devins, eds., Political Dynamics of Constitutional Law,
3d ed. (St. Paul, MN: West, 2001).

SELECTED BIBLIOGRAPHY

Adler, David Gray, and Genovese, Michael A., eds. The Presidency and the Law: The
Clinton Legacy. Lawrence: University Press of Kansas, 2002.
Barber, Sotirios. The Constitution and the Delegation of Congressional Power. Chicago:
University of Chicago Press, 1975.
Cameron, Charles. Veto Bargaining: Presidents and the Politics of Negative Power. New
York: Cambridge University Press, 1999.
Cooper, Phillip J. By Order of the President: The Use and Abuse of Executive Direct Action.
Lawrence: University Press of Kansas, 2002.
Craig, Barbara. Chadha. New York: Oxford University Press, 1988.
Fisher, Louis. Presidential Spending Power. Princeton, NJ: Princeton University Press,
Oe
Korn, Jessica. The Power of Separation: American Constitutionalism and the Myth of the
Legislative Veto. Princeton, NJ: Princeton University Press, 1996.
May, Christopher. Presidential Defiance of “Unconstitutional” Laws. Westport, CT: Green-
wood Press, 1998.
Murchison, Kenneth. The Snail Darter Case: TVA versus the Endangered Species Act.
Lawrence: University Press of Kansas, 2007.
O’Brien, David M. What Process Is Due? Courts and Science-Policy Disputes. New York:
Russell Sage Foundation, 1987.
Spitzer, Robert. The Presidential Veto: Touchstone of the American Presidency. Albany: State
University of New York Press, 1988. ;
 C | Legislative Powers in the Administrative State | 423

SSS

= CONSTITUTIONAL HIsTORY
a le

Presidential Signing Statements and

Legislative Powers

President George W. Bush opposed an amendment to an appropriations

bill, sponsored by Senator John McCain (R-Az) and supported overwhelm-
ingly in the House of Representatives, prohibiting the “cruel, inhuman, or
degrading” treatment of detainees in U.S. custody. Although Bush eventually
signed the bill in 2006, he issued a-presidential signing statement declaring
that the provision, among others, was only “advisory.” He thus renewed de-
bate over the uses of presidential signing statements and the assertion of
greater presidential power in domestic and foreign affairs.
Presidential signing statements, issued when a president signsa bill into
law, have served four functions. First, they explain to the public the potential
impact or significance of the legislation. Second, they may direct subordinate
officials in the executive branch on how to interpret and implement the law.
Third, they may inform Congress and the public that the president deems a
particular provision unconstitutional. However, some presidents and scholars
have maintained that such bills should not be signed into law and instead
returned to Congress, although four justices—Justices O’Connor, Scalia,
Kennedy, and Souter—noted in a concurring opinion, in Freytag v. C.LR.,
501 USS. 868 (1991), that the president may “disregard [laws] when they are
unconstitutional.” Fourth, and most controversial, is the use of presidential
signing statements to add an “executive history” to the legislative history on
which courts may draw when reviewing the executive branch’s implementa-
tion of the law.
Prior to the 1980s administration of Ronald Reagan, the use of presi-
dential signing statements was infrequent and limited to the first three func-
tions. Only some sixteen times did thirteen different presidents issue them,
ranging from Andrew Jackson to John Tyler, Abraham Lincoln, Andrew
Johnson, Theodore Roosevelt, Woodrow Wilson, Franklin D. Roosevelt,
Harry Truman, Dwight D. Eisenhower, Richard M. Nixon, Gerald Ford, and
Jimmy Carter.
During the Reagan administration extensive use of presidential signing
statements was made to establish an “executive history” of legislation for the
use of the executive branch and the judiciary. Notably, as a young attorney
then in the administration, Justice Samuel Alito, Jr., championed their use for
establishing presidential intent in signing legislation and for maintaining “‘a
unitary executive.” While Presidents George H.W. Bush and Bill Clinton also
issued such statements, George W. Bush made extensive use of them, even
though federal courts have yet to give them much weight. In response and in
424 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

EEUU
opposition, the American Bar Association has sought legislation providing for
judicial review of the constitutionality of the president’s disregarding provi-
sions of a bill signed into law or interpreting provisions inconsistent with the
clear intent of Congress.

For further reading, see Walter Dellinger, Memorandum for Bernard N. Nussbaum,
counsel to the president, “The Legal Significance of Presidential Signing Statements”
(November 3, 1993), available at www.usdoj.gov:/olc/signing . Phillip Cooper,
htm,
“George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing
Statements,” 35 Presidential Studies Quarterly 525-532 (2005).

Schechter Poultry Corporation v. United States

295 U.S. 495, 55 S.CT. 837 (1935)

In 1933 Congress passed the National Industrial Recovery Act, under

its power to regulate interstate commerce and as part of President
Franklin D. Roosevelt’s New Deal Program, to help stimulate the econ-
omy and reduce unemployment. Under the act, the National Recovery
Administration was authorized to set fair codes for business competi-
tion, including standards for wages, hours, and working conditions.
The Schechter brothers operated slaughterhouses in New York
City, which received live chickens from outside the state, slaughtered
them, and then sold them to local stores. They were convicted in a fed-
eral district court of violating a number of standards set by the National
Recovery Administration. After an appellate court affirmed, they ap-
pealed to the Supreme Court.
The Court granted the Schechters’ petition for certiorari and ruled
in their favor on two grounds. First, the Court found that the Schech-
ters were engaged in intrastate commerce that had only an indirect ef-
fect on interstate commerce and, therefore, their business was outside
the scope of Congress’s regulatory power over interstate commerce.
Second, in the excerpt here, Chief Justice Charles Evans Hughes found
a portion of the National Industrial Recovery Act authorizing the es-
tablishment of a Live Poultry Code to be an unconstitutional delega-
tion of power to the executive branch.
The Court’s decision was unanimous, and the opinion was an-
nounced by Chief Justice Hughes.A concurring opinion was delivered
by Justice Cardozo, who was joined by Justice Stone.

| Chief Justice HUGHES delivers the opinion of the Court.

 C | Legislative Powers in the Administrative State | 425

The Question of the Delegation of Legislative Power—We recently had oc-

casion to review the pertinent decisions and the general principles which
govern:the determination of this question. Panama Refining Company v. Ryan,
293 U.S. 388 [(1935)]. The Constitution provides that “All legislative powers
herein granted shall be vested in a Congress of the United States, which shall
consist ofa Senate and House ofRepresentatives.” Article 1, Sec. 1. And
the
Congress is authorized “To make all Laws which shall be necessary and
proper for carrying into Execution” its general powers. Article 1, Sec. 8,
par. 18. The Congress is not permitted to abdicate or to transfer to others the
essential legislative functions with which it is thus vested. We have repeat-
edly recognized the necessity of adapting legislation to complex conditions
involving a host of details with which the national Legislature cannot deal
directly. We pointed out in the Panama Refining Company Case that the
Constitution has never been regarded as denying to Congress the necessary
resources of flexibility and practicatity, which will enable it to perform its
function in laying down policies and establishing standards, while leaving to
selected instrumentalities the making of subordinate rules within prescribed
limits and the determination of facts to which the policy as declared by the
Legislature is to apply. But we said that the constant recognition of the ne-
cessity and validity of such provisions, and the wide range of administrative
authority which has been developed by means of them, cannot be allowed to
obscure the limitations of the authority to delegate, if our constitutional sys-
tem is to be maintained....
Accordingly, we look to the statute to see whether Congress has over-
stepped these limitations—whether Congress in authorizing “codes of fair
competition” has itself established the standards of legal obligation, thus per-
forming its essential legislative function, or, by the failure to enact such stan-
dards, has attempted to transfer that function to others.
The aspect in which the question is now presented is distinct from that
which was before us in the case of the Panama Refining Company. There
the subject of the statutory prohibition was defined. National Industrial Re-
covery Act, Sec. 9 (c), 15 USCA Sec. 709 (c). That subject was the trans-
portation in interstate and foreign commerce of petroleum and petroleum
products which are produced or withdrawn from storage in excess of the
amount permitted by state authority. The question was with respect to the
range of discretion given to the President in prohibiting that transportation.
As to the “codes of fair competition,” under section 3 of the act, the question
is more fundamental. It is whether there is any adequate definition of the
subject to which the codes are to be addressed.
What is meant by “fair competition” as the term is used in the act?
Does it refer to a category established in the law, and is the authority to
make codes limited accordingly? Or is it used as a convenient designation
for whatever set of laws the formulators ofa code for a particular trade or
industry may propose and the President may approve (subject to certain
restrictions), or the President may himself prescribe, as being wise and
beneficent provisions for the government of the trade or industry in order
to accomplish the broad purposes of rehabilitation, correction, and expan-
‘sion which are stated in the first section of title 1? [That section . .. is as
follows:
426 | THe PrestDENT As CHIEF EXECUTIVE IN DOMESTIC AFFAIRS
SS Se e

“Section 1. A national emergency productive of widespread un-

employment and disorganization of industry, which burdens
interstate and foreign commerce, affects the public welfare, and
undermines the standards of living of the American people, is
hereby declared to exist. It is hereby declared to be the policy of
Congress to remove obstructions to the free flow of interstate and
foreign commerce which tend to diminish the amount thereof; and
to provide for the general welfare by promoting the organization of
industry for the purpose of cooperative action among trade groups,
to induce and maintain united action of labor and management un-
der adequate governmental sanctions and supervision, to eliminate
unfair competitive practices, to promote the fullest possible utiliza
tion of the present productive capacity of industries, to avoid undue
restriction of production (except as may be temporarily required),
to increase the consumption of industrial and agricultural products
by increasing purchasing power, to reduce and relieve unemploy-
ment, to improve standards of labor, and otherwise to rehabilitate
industry and to conserve natural resources.’|

The act does not define “fair competition.” “Unfair competition,” as

known to the common law, is a limited concept. Primarily, and strictly, it re-
lates to the palming off of one’s goods as those of a rival trader. . . .
In recent years, its scope has been extended. It has been held to apply
to misappropriation as well as misrepresentation, to the selling of another's
goods as one’s own—to misappropriation of what equitably belongs to a com-
petitor. Unfairness in competition has been predicated on acts which le out-
side the ordinary course of business and are tainted by fraud or coercion or
conduct otherwise prohibited by law. But it is evident that in its widest range,
“unfair competition,” as it has been understood in the law, does not reach the
objectives of the codes which are authorized by the National Industrial Re-
covery Act. The codes may, indeed, cover conduct which existing law con-
demns, but they are not limited to conduct of that sort. The government does
not contend that the act contemplates such a limitation. It would be opposed
both to the declared purposes of the act and to its administrative construction.
The Federal Trade Commission Act (section 5 [15 USCA Sec. 45]) in-
troduced the expression “unfair methods of competition,” which were de-
clared to be unlawful. That was an expression new in the law. Debate
apparently convinced the sponsors of the legislation that the words “unfair
competition,” in the light of their meaning at common law, were too narrow.
We have said that the substituted phrase has a broader meaning, that it does
not admit of precise definition; its scopé being left to judicial determination
as controversies arise... .
What are “unfair methods of competition” are thus to be determined in
particular instances, upon evidence, in the light of particular competitive
conditions and of what is found to be a specific and substantial public inter-
est. To make this possible, Congress set up a special procedure.A commission,
a quasi judicial body, was created. Provision was made for formal complaint,
for notice and hearing, for appropriate findings of fact supported -by ade-
quate evidence, and for judicial review to give assurance that the action of
the commission is taken within its statutory authority. ...
 C | Legislative Powers in the Administrative State | 427

In providing for codes, the National Industrial Recovery Act dispenses

with this administrative procedure and with any administrative procedure of
an analogous character. But the difference between the code plan of the Re-
covery Act and the scheme of the Federal Trade Commission Act lies not
only in procedure but in subject-matter. We cannot regard the “fair competi-
tion” of the codes as antithetical to the “unfair methods of competition” of
the Federal Trade Commission Act. The “fair competition” of the codes has a
much broader range and a new significance. The Recovery Act provides that
it shall not be construed to impair the powers of the Federal Trade Commis-
sion, but, when a code is approved, its provisions are to be the “standards of
fair competition” for the trade or industry concerned, and any violation of
such standards in any transaction in or affecting interstate or foreign com-
merce is to be deemed “‘an unfair method of competition” within the mean-
ing of the Federal Trade Commission Act.
For a statement of the authorized objectives and content of the “codes
of fair competition,” we are referred repeatedly to the “Declaration of Pol-
icy” in section 1 of title 1 of the Recovery Act (15 USCA Sec. 701). Thus
the approval ofa code by the President is conditioned on his finding that it
“will tend to effectuate the policy of this title’? The President is authorized
to impose such conditions “for the protection of consumers, competitors,
employees, and others, and in furtherance of the public interest, and may
provide such exceptions to and exemptions from the provisions of such
code, as the President in his discretion deems necessary to effectuate the pol-
icy herein declared.” The “policy herein declared” is manifestly that set forth
in section 1. That declaration embraces a broad range of objectives. Among
them we find the elimination of “unfair competitive practices.” But, even if
this clause were to be taken to relate to practices which fall under the ban of
existing law, either common law or statute, it is still only one of the author-
ized aims described in section 1....
Under section 3, whatever “may tend to effectuate” these general pur-
poses may be included in the “codes of fair competition.” We think the con-
clusion is inescapable that the authority sought to be conferred by section 3
was not merely to deal with “unfair competitive practices” which offend
against existing law, and could be the subject of judicial condemnation with-
out further legislation, or to create administrative machinery for the applica-
tion of established principles of law to particular instances of violation.
Rather, the purpose is clearly disclosed to authorize new and controlling
prohibitions through codes of laws which would embrace what the formula-
tors would propose, and what the President would approve or prescribe, as
wise and beneficent measures for the government of trades and industries in
order to bring about their rehabilitation, correction, and development, ac-
cording to the general declaration of policy in section 1. Codes of laws of
this sort are styled “codes of fair competition.”
We find no real controversy upon this point, and we must determine the
validity of the code in question in this aspect. ...
The question, then, turns upon the authority which section 3 of the
Recovery Act vests in the President to approve or prescribe. If the codes
have standir.z as penal statutes, this must be due to the effect of the ex-
ecutive action. But Congress cannot delegate legislative power to the Presi-
dent to exercise an unfettered discretion to make whatever laws he thinks
428 | Tur PresiDENT as Cuter EXECUTIVE IN DOMESTIC AFFAIRS

may be needed or advisable for the rehabilitation and expansion of trade

or industry. See Panama Refining Company v. Ryan, supra, and cases there
reviewed.
Accordingly we turn to the Recovery Act to ascertain what limits have
been set to the exercise of the President’s discretion: First, the President, as a
condition of approval, is required to find that the trade or industrial associa-
tions or groups which propose a code “impose no inequitable restrictions on
admission to membership” and are “truly representative.’ That condition,
however, relates only to the status of the initiators of the new laws and not to
the permissible scope of such laws. Second, the President is required to find
that the code is not “designed to promote monopolies or to eliminate or op-
press small enterprises and will not operate to discriminate against them.”
And-to this is added a proviso that the code “shall not permit monopolies or
monopolistic practices.” But these restrictions leave virtually untouched the
field of policy envisaged by section 1, and, in that wide field of legislative
possibilities, proponents of a code, refraining from monopolistic designs, may
roam at will, and the President may approve or disapprove their proposals as
he may see fit. That is the precise effect of the further finding that the Presi-
dent is to make—that the code “will tend to effectuate the policy of this ti-
tle”?While this is called a finding, it is really but a statement of an opinion as
to the general effect upon the promotion of trade or industry of a scheme of
laws. These are the only findings which Congress has made essential in order
to put into operation a legislative code having the aims described in the
“Declaration of Policy.”
Nor is the breadth of the President’s discretion left to the necessary im-
plications of this limited requirement as to his findings. As already noted, the
President in approving a code may impose his own conditions, adding to or
taking from what is proposed, as “in his discretion” he thinks necessary “to
effectuate the policy” declared by the act. Of course, he has no less liberty
when he prescribes a code on his own motion or on complaint, and he is
free to prescribe one if a code has not been approved. The act provides for
the creation by the President of administrative agencies to assist him, but the
action or reports of such agencies, or of his other assistants—their recom-
mendations and findings in relation to the making of codes—have no sanc-
tion beyond the will of the President, who may accept, modify, or reject
them as he pleases. Such recommendations or findings in no way limit the
authority which section 3 undertakes to vest in the President with no other
conditions than those there specified. And this authority relates to a host of
different trades and industries, thus extending the President’s discretion to all
the varieties of laws which he may deem to be beneficial in dealing with the
vast array of commercial and industrial activities throughout the country.
Such a sweeping delegation of legislative power finds no support in the
decisions upon which the government especially relies. By the Interstate
Commerce Act, Congress has itself provided a code of laws regulating the
activities of the common carriers subject to the act, in order to assure the
performance of their services upon just and reasonable terms, with adequate
facilities and without unjust discrimination. Congress from time to time has
elaborated its requirements, as needs have been disclosed. To facilitate the ap-
plication of the standards prescribed by the act, Congress has provided an ex-
pert body. That administrative agency, in dealing with particular cases, is
 C | Legislative Powers in the Administrative State | 429
ee
required to act upon notice and hearing, and its orders must be supported by
findings of fact which in turn are sustained by evidence. .. .
To summarize and conclude upon this point: Section 3 of the Recovery
Act is without precedent. It supplies no standards for any trade, industry, or
activity. It does not undertake to prescribe rules of conduct to be applied to
particular states of fact determined by appropriate administrative procedure.
Instead of prescribing rules of conduct, it authorizes the making of codes to
prescribe them. For that legislative undertaking, section 3 sets up no stan-
dards, aside from the statement of the general aims of rehabilitation, correc-
tion, and expansion described in section 1. In view ofthe scope of that broad
declaration and of the nature of the few restrictions that are imposed, the
discretion of the President in approving or prescribing codes, and thus enact-
ing laws for the government of trade and industry throughout the country, is
virtually unfettered. We think that the code-making authority thus conferred
is an unconstitutional delegation of legislative power.

Justice CARDOZO, concurring.

The delegated power of legislation which has found expression in this
code is not canalized within banks that keep it from overflowing. It is un-
confined and vagrant, if | may borrow my own words in an earlier opinion.
Panama Refining Co. v. Ryan... .
This court has held that delegation may be unlawful, though the act to
be performed is definite and single, if the necessity, time, and occasion of
performance have been left in the end to the discretion of the delegate. I
thought that ruling went too far. I pointed out in an opinion that there had
been “no grant to the Executive of any roving commission to inquire into
evils and then, upon discovering them, do anything he pleases.” Choice,
though within limits, had been given him “as to the occasion, but none
whatever as to the means.” Here, in the case before us, is an attempted dele-
gation not confined to any single act nor to any class or group of acts iden-
tified or described by reference to a standard. Here in effect.is a roving
commission to inquire into evils and upon discovery correct them.
_ I have said that there is no standard, definite or even approximate, to
which legislation must conform. Let me make my meaning more precise. If
codes of fair competition are codes eliminating “unfair” methods of compe-
tition ascertained upon inquiry to prevail in one industry or another, there is
no unlawful delegation of legislative functions when the President is directed
to inquire into such practices and denounce them when discovered. . . .
But there is another conception of codes of fair competition, their sig-
nificance and function, which leads to very different consequences, though it
is one that is struggling now for recognition and acceptance. By this other
conception a code is not to be restricted to the elimination of business prac-
tices that would be characterized by general acceptation as oppressive or un-
fair. It is to include whatever ordinances may be desirable or helpful for the
well-being or prosperity of the industry affected. In that view, the function
of its adoption is not merely negative, but positive; the planning of improve-
ments as well as the extirpation of abuses. What is fair, as thus conceived, is
not sometht:g to be contrasted with what is unfair or fraudulent or tricky.
The extension becomes as wide as the field of industrial regulation. If that
conception shall prevail, anything that Congress may do within the limits of
430 | TH PRESIDENT AS CuiEF EXECUTIVE IN DOMESTIC AFFAIRS

the commerce clause for the betterment of business may be done by the
President upon the recommendation of a trade association by calling it a
code. This is delegation running riot. No such plenitude of power is suscep-
tible of transfer. The statute, however, aims at nothing less, as one can learn
both from its terms and from the administrative practice under it. Nothing
less is aimed at by the code now submitted to our scrutiny.
The code does not confine itself to the suppression of methods of com-
petition that would be classified as unfair according to accepted business
standards or accepted norms of ethics. It sets up a comprehensive body of
rules to promote the welfare of the industry, if not the welfare of the nation,
without reference to standards, ethical or commercial, that could be known
or predicted in advance of its adoption... .

I am authorized to state thatJustice STONE joins in this opinion.

Industrial Union Department,

AFL-CIO v. American Petroleum Institute
448 U.S. 607, 100 S.CT. 2844 (1980)

In the Occupational Safety and Health Act, Congress delegated the

power to regulate carcinogenic and toxic substances by authorizing the
Occupational Safety and Health Administration (OSHA) to set stan-
dards that “most adequately assure, to the extent feasible, on the basis of
the best available evidence, that no employee will suffer impairment of
health or functional capacity.”
After years of study, the OSHA issued a temporary emergency
standard for occupational exposure to benzene at 1 part per million
(ppm). The American Petroleum Institute and a coalition of other ben-
zene producers and users immediately challenged the standard. After
the United States Court of Appeals for the Fifth Circuit struck down
OSHA’s standard, the Industrial Union Department of the AFL-CIO
appealed to the Supreme Court.
The Court’s decision was five to four, and the opinion announced
by Justice Stevens commanded only three votes—those of Chief Justice
Burger and Justices Stewart and Powell. Justices Powell and Rehnquist
and Chief Justice Burger concurred. The dissent was by Justice Mar-
shall, who was joined by Justices Brennan, White, and Blackmun.
The crucial fifth vote for the Court’s decision was cast by Justice
Rehnquist, who issued a concurring opinion (reprinted here) that in-
vokes the nondelegation doctrine, rather than the reasons set forth by
Justice Stevens, for overturning the benzene regulation.
 C | Legislative Powers in the Administrative State | 431

Justice REHNQUIST, concurring.

The statutory provision at the center of the present controversy,

Sec. 6(b)(5) of the Occupational Safety and Health Act of 1970, states, in rel-
evant part, that the Secretary of Labor

*. . in promulgating standards dealing with toxic materials

or harmful physical agents . . . shall set the standard which most
adequately assures, to the extent feasible, on the basis of the best avail-
able evidence, that no employee will suffer material impairment of
health or functional capacity even if such employee has regular ex-
posure to the hazard dealt with by such standard for the period of
his working life.”

According to the Secretary, who is one of the petitioners herein, Sec. 6(b) (5)
imposes upon him an absolute duty, in regulating harmful substances like
benzene for which no safe level is known, to set the standard for permissible
exposure at the lowest level that “can be achieved at bearable cost with avail-
able technology.” Brief for Federal Parties 57. While the Secretary does not
attempt to refine the concept of “bearable cost,’ he apparently believes that
_a proposed standard is economically feasible so long as its impact “will not be
such as to threaten the financial welfare of the affected firms or the general
economy.’ ...
Respondents reply, and the lower court agreed, that Sec. 6(b)(5) must be
read in light of another provision in the same Act, Sec. 3(8), which defines an
“occupational health and safety standard” as

“.. . a standard which requires conditions, or the adoption

or use of one or more practices, means, methods, operations,
or processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.”

According to respondents, Sec. 6(b)(5), as tempered by Sec. 3(8), requires the

Secretary to demonstrate that any particular health standard is justifiable on
the basis of a rough balancing of costs and benefits.
In considering these alternative interpretations, my colleagues manifest a
good deal of uncertainty, and ultimately divide over whether the Secretary
produced sufficient evidence that the proposed standard for benzene will re-
sult in any appreciable benefits at all. This uncertainty, I would suggest, is
eminently justified, since I believe that this litigation presents the Court
with what has to be one of the most difficult issues that could confront a
decision-maker: whether the statistical possibility of future deaths should
ever be disregarded in light of the economic costs of preventing those deaths.
I would also suggest that the widely varying positions advanced in the briefs
of the parties and in the opinions of Justice STEVENS, the CHIEF JUS-
TICE, Justice POWELL, and Justice MARSHALL demonstrate, perhaps bet-
ter than any other fact, that Congress, the governmental body best suited and
‘most obligated to make the choice confronting us in this litigation, has im-
properly delegated that choice to the Secretary of Labor and, derivatively, to
this Court.
432 | THe PrestDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

In his Second Tieatise of Civil Government, published in 1690, John Locke

wrote that “[t]he power of the legislative, being derived from the people by a
positive voluntary grant and institution, can be no other than what that pos-
itive grant conveyed, which being only to make laws, and not to make legis-
lators, the legislative can have no power to transfer their authority of making
laws and place it in other hands.” Two hundred years later, this Court ex-
pressly recognized the existence of and the necessity for limits on Congress’
ability to delegate its authority to representatives of the Executive Branch:
“That Congress cannot delegate legislative power to the president is a
principle universally recognized as vital to the integrity and maintenance
of the system of government ordained by the Constitution.” Field v. Clark,
143 US. 649 [(1892)]....
Viewing the legislation at issue here in light of these principles, I believe
that it fails to pass muster. Read literally, the relevant portion of Sec. 6(b)(5)
is completely precatory, admonishing the Secretary to adopt the most pro-
tective standard if he can, but excusing him from that duty if he cannot. In
the case ofa hazardous substance for which a “safe” level is either unknown
or impractical, the language of Sec. 6(b)(5) gives the Secretary absolutely no
indication where on the continuum of relative safety he should draw his line.
Especially in light of the importance of the interests at stake, I have no doubt
that the provision at issue, standing alone, would violate the doctrine against
uncanalized delegations of legislative power. For me the remaining question,
then, is whether additional standards are ascertainable from the legislative
history or statutory context of Sec. 6(b)(5) or, if not, whether such a stan-
dardless delegation was justifiable in light of the “inherent necessities” of the
situation. ...
As formulated and enforced by this Court, the nondelegation doctrine
serves three important functions. First, and most abstractly, it ensures to the
extent consistent with orderly governmental administration that important
choices of social policy are made by Congress, the branch of our Govern-
ment most responsive to the popular will... . Second, the doctrine guaran-
tees that, to the extent Congress finds it necessary to delegate authority, it
provides the recipient of that authority with an “intelligible principle” to
guide the exercise of the delegated discretion. ... Third, and derivative of the
second, the doctrine ensures that courts charged with reviewing the exercise
of delegated legislative discretion will be able to test that exercise against as-
certainable standards. . ..
I believe the legislation at issue here fails on all three counts. The deci-
sion whether the law of diminishing returns should have any place in the
regulation of toxic substances is quintessentially one of legislative policy. For
Congress to pass that decision on to the Secretary in the manner it did vio-
lates, in my mind, John Locke’s caveat—reflected in the cases cited earlier in
this opinion—that legislatures are to make laws, not legislators. Nor, as I
think the prior discussion amply demonstrates, do the provisions at issue or
their legislative history provide the Secretary with any guidance that might
lead him to his somewhat tentative conclusion that he must eliminate ex-
posure to benzene as far as technologically and economically possible. Fi-
nally, I would suggest that the standard of “feasibility” renders meaningful
judicial review impossible..
 C | Legislative Powers in the Administrative State | 433

Immigration and Naturalization Service v. Chadha

462 USS. 919, 103 S.CT. 2764 (1983)

Jagdish Rai Chadha was admitted into the United States on a non-
immigrant student visa in 1966. Following the expiration of the visa in
1972, the district director of the Immigration and Naturalization
Service (INS) ordered Chadha to show why he should not be de-
ported. At a hearing in 1974, Chadha agreed that he was deportable but
requested time to apply for a suspension of deportation. Upon his ap-
plication, the deportation .order was suspended, pending a hearing by
the INS. fs
Under the Immigration and Naturalization Act, any suspension of
deportation orders must be reported by the attorney general to Con-
gress, which then may veto the orders under Section 244(c)2 of the
INS Act. The House of Representatives subsequently passed a resolu-
tion opposing the granting of permanent residence to Chadha and five
other aliens.
On the basis of the House’s veto of the INS’s suspension of
Chadha’s deportation, an immigration judge reopened deportation hear-
ings. Chadha unsuccessfully challenged the proceedings on the ground
that Section 244(c)2 was unconstitutional. After the Board of Immigra-
tion Appeals affirmed the judge’s order reinstating deportation, Chadha
appealed to the Court of Appeals for the Ninth Circuit. That court held
that the House’s “legislative veto” overturning the INS’s suspension or-
der violated the principle of separation of powers. The Supreme Court
granted a petition for certiorari.
_ The Court’s decision was seven to two, and the majority’s opinion
was announced by Chief Justice Burger. Justice Powell delivered a con-
curring opinion. Justices White and Rehnquist dissented.

(1 Chief Justice BURGER delivers the opinion of the Court.

We granted certiorari . . . [to consider] a challenge to the constitutionality
of the provision in Sec. 244(c)(2) of the Immigration and Nationalization
Act, authorizing one House of Congress, by resolution, to invalidate the de-
cision of the Executive Branch, pursuant to authority delegated by Congress
to the Attorney General of the United States, to allow a particular deportable
alien to remain in the United States. ...
We begin, of course, with the presumption that the challenged statute is
_valid. Its wisdom is not the concern of the courts; if a challenged action does
not violate vne Constitution, it must be sustained:
434 | THe Prestpent As Curler EXECUTIVE IN DOMESTIC AFFAIRS

Jagdish Rai Chadha with his wife and one of their three daughters.
(Terrence McCarthy /New York Times Pictures)

“Once the meaning of an enactment is discerned and its constitu-

tionality determined, the judicial process comes to an end. We do
not sit as a committee of review, nor are we vested with the power
of veto.” Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).

By the same token, the fact that a given law or procedure is efficient,
convenient, and useful in facilitating functions of government, standing
alone, will not save it if it is contrary to the Constitution. Convenience
and efficiency are not the primary objectives—or the hallmarks—of demo-
cratic government and our inquiry is sharpened rather than blunted by the
fact that Congressional veto provisions are appearing with increasing fre-
quency in statutes which delegate authority to executive and independent
agencies:

“Since 1932, when the first veto provision was enacted into law,
295 congressional veto-type procedures have been inserted in 196
different statutes as follows: from 1932 to 1939, five statutes were af-
fected; from 1940-49, nineteen statutes; between 1950-59, thirty-
four statutes; and from 1960-69, forty-nine. From the year 1970
through 1975, at least one hundred sixty-three such provisions were
included in eighty-nine laws.” Abourezk, The Congressional Veto:
A Contemporary Response to Executive Encroachment on Les;
islative Prerogatives, 52 Ind.L.Rev, 323, 324 (1977)...
 C | Legislative Powers in the Administrative State | 435

Justice WHITE undertakes to make a case for the proposition that the
one-House veto is a useful “political invention” and we need not challenge
that assertion.We can even concede this utilitarian argument although the
long range political wisdom of this “invention” is arguable. But policy argu-
ments supporting even useful “political inventions” are subject to the de-
mands of the Constitution which defines powers and, with respect to this
subject, sets out just how those powers are to be exercised.
Explicit and unambiguous provisions of the Constitution prescribe and
define the respective functions of the Congress and of the Executive in the
legislative process. Since the precise terms of those familiar provisions are crit-
ical to the resolution of this case, we set them out verbatim. Art. I provides:

“All legislative Powers herein granted shall be vested in a Congress

of the United States, which shall consist ofa Senate and a House of
Representatives.”
Art. I; Sec. 1. (Emphasis added).
“Every Bill which shall have passed the House of Representa-
tives and the Senate, shall, before it becomes a Law, be presented to
the President of the United States; . . .” Art. I, Sec. 7, cl. 2. (Empha-
sis added).
“Every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessary (ex-
cept on a question of Adjournment) shall be presented to the Presi-
dent of the United States; and before the Same shall take Effect,
shall be approved by him, or being disapproved by him, shall be
repassed by two thirds of the Senate and House of Representatives,
according to the Rules and Limitations prescribed in the Case of a
Bill” Art. I, Sec. 7, cl. 3. (Emphasis added).

These provisions of Art. I are integral parts of the constitutional design

for the separation of powers. We have recently noted that “[t]he principle of
separation of powers was not simply an abstract generalization in the minds
of the Framers: it was woven into the documents that they drafted in
Philadelphia in the summer of 1787.” Buckley v, Valeo, [424 U.S. 1 (1976)]. Just
as. we relied on the textual provision of Art. I, Sec. 2, cl. 2, to vindicate the
principle of separation of powers in Buckley, we find that the purposes
underlying the Presentment Clauses, Art. I, Sec. 7, cls. 2, 3, and the bicameral
requirement of Art. I, Sec. 1 and Sec. 7, cl. 2, guide our resolution of the im-
portant question presented in this case. The very structure of the articles del-
egating and separating powers under Arts. I, II, and III exemplify the concept
of separation of powers and we now turn to Art.I....
The President’s role in the lawmaking process also reflects the Framers’
careful efforts to check whatever propensity a particular Congress might
have to enact oppressive, improvident, or ill-considered measures. The Presi-
dent’s veto role in the legislative process was described later during public
debate on ratification:

“It establishes a salutary check upon the legislative body, calculated

to guard the community against the effects of faction, precipitancy,
or of any impulse unfriendly to the public good which may happen
436 | Tue PrestpENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

to influence a majority of that body. ...The primary inducement

to conferring the power in question upon the Executive is to en-
able him to defend himself; the secondary one is to increase the
chances in favor of the community against the passing of bad
laws through haste, inadvertence, or design.” The Federalist No. 73
(A. Hamilton)... .

The bicameral requirement ofArt. I, Secs. 1, 7 was of scarcely less con-

cern to the Framers than was the Presidential veto and indeed the two con-
cepts are interdependent. By providing that no law could take effect without
the concurrence of the prescribed majority of the Members of both Houses,
the Framers reemphasized their belief, already remarked upon in connection
with the Presentment Clauses, that legislation should not be enacted unless it
has been carefully and fully considered by the Nation’s elected officials. . . .
Hamilton argued that a Congress comprised of a single House was anti-
thetical to the very purposes of the Constitution. Were the Nation to adopt
a Constitution providing for only one legislative organ, he warned:

“we shall finally accumulate, in a single body, all the most important
prerogatives of sovereignty, and thus entail upon our posterity one
of the most execrable forms of government that human infatuation
ever contrived. Thus we should create in reality that very tyranny
which the adversaries of the new Constitution either are, or affect
to be, solicitous to avert.” The Federalist No. 22... .

We see therefore that the Framers were acutely conscious that the bi-
cameral requirement and the Presentment Clauses would serve essential con-
stitutional functions. The President’s participation in the legislative process
was to protect the Executive Branch from Congress and to protect the
whole people from improvident laws. The division of the Congress into two
distinctive bodies assures that the legislative power would be exercised only
after opportunity for full study and debate in separate settings. The Presi-
dent’s unilateral veto power, in turn, was limited by the power of two thirds
of both Houses of Congress to overrule a veto thereby precluding final arbi-
trary action of one person. It emerges clearly that the prescription for
legislative action in Art. I, Secs. 1, 7 represents the Framers’ decision that the
legislative power of the Federal government be exercised in accord with a
single, finely wrought and exhaustively considered, procedure.
The Constitution sought to divide the delegated powers of the new fed-
eral government into three defined categories, legislative, executive and judi-
cial, to assure, as nearly as possible, that each Branch of government would
confine itself to its assigned responsibility. The hydraulic pressure inherent
within each of the separate Branches to exceed the outer limits of its power,
even to accomplish desirable objectives, must be resisted.
Although not “hermetically” sealed from one another the powers dele-
gated to the three Branches are functionally identifiable. When any Branch
acts, it is presumptively exercising the power the Constitution has delegated to
it. When the Executive acts, it presumptively acts in an executive or adminis-
trative capacity as defined in Art. I]. And when, as here, one House of Con-
gress purports to act, it is presumptively acting within its assigned sphere. -
 C | Legislative Powers in the Administrative State | 437

Beginning with this presumption, we must nevertheless establish that

the challenged action under Sec. 244(c)(2) is of the kind to which the pro-
cedural requirements of Art. I, Sec. 7 apply. Not every action taken by either
House is subject to the bicameralism and presentment requirements of Art. I.
Whether actions taken by either House are, in law and fact, an exercise of
legislative power depends not on their form but upon “whether they contain
matter which is properly to be regarded as legislative in its character and
effectty;
Examination of the action taken here by one House pursuant to
Sec. 244(c)(2) reveals that it was essentially legislative in purpose and effect. In
purporting to exercise power defined in Art. I, Sec. 8, cl. 4 to “establish an
uniform Rule of Naturalization,” the House took action that had the purpose
and effect of altering the legal rights, duties and relations of persons, including
the Attorney General, Executive Branch officials and Chadha, all outside the
legislative branch. Section 244(c)(2) purports to authorize one House of
Congress to require the Attorney General to deport an individual alien whose
deportation otherwise would be cancelled under Sec. 244. The one-House
veto operated in this case to overrule the Attorney General and mandate
Chadha’s deportation; absent the House action, Chadha would remain in the
United States. Congress has acted and its action has altered Chadha’s status.
The legislative character of the one-House veto in this case is confirmed
by the character of the Congressional action it supplants. Neither the House
of Representatives nor the Senate contends that, absent the veto provision in
Sec. 244(c)(2), either of them, or both of them acting together, could effec-
tively require the Attorney General to deport an alien once the Attorney
General, in the exercise of legislatively delegated authority, had determined
the alien should remain in the United States. Without the challenged pro-
vision in Sec. 244(c)(2), this could have been achieved, if at all, only by legis-
lation requiring deportation. Similarly, a veto by one House of Congress
under Sec. 244(c)(2) cannot be justified as an attempt at amending the stan-
dards set out in Sec. 244(a)(1), or as a repeal of Sec. 244 as applied to Chadha.
Amendment and repeal of statutes, no less than enactment, must conform
with Art. I.
The nature of the decision implemented by the one-House veto in this
case further manifests its legislative character. After long experience with the
clumsy, time-consuming private bill procedure, Congress made a deliberate
choice to delegate to the Executive Branch, and specifically to the Attorney
General, the authority to allow deportable aliens to remain in this country in
certain specified circumstances. It is not disputed that this choice to delegate
authority is precisely the kind of decision that can be implemented only in
accordance with the procedures set out in Art. I. Disagreement with the
Attorney General’s decision on Chadha’s deportation—that is, Congress’
decision to deport Chadha—no less than Congress’ original choice to dele-
gate to the Attorney General the authority to make that decision, involves
determinations of policy that Congress can implement in only one way; bi-
cameral passage followed by presentment to the President. Congress must
abide by its delegation of authority until that delegation is legislatively al-
tered or revoked.
Finally, we see that when the Framers intended to authorize either
House of Congress to act alone and outside of its prescribed bicameral leg-
438 | THe Prestpent As CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

islative role, they narrowly and precisely defined the procedure for such
action. There are but four provisions in the Constitution, explicit and un-
ambiguous, by which one House may act alone with the unreviewable force
of law, not subject to the President’s veto:
(a) The House of Representatives alone was given the power to initiate
impeachments. Art. I, Sec. 2, cl. 6;
(b) The Senate alone was given the power to conduct trials following
impeachment on charges initiated by the House and to convict following
trialvArtilScesonel..a:
(c) The Senate alone was given final unreviewable power to approve or
to disapprove presidential appointments. Art. II, Sec. 2, cl. 2;
(d) The Senate alone was given unreviewable power to ratify treaties ne-
gotiated by the President. Art. II, Sec. 2, cl. 2.
Clearly, when the Draftsmen sought to confer special powers on one
House, independent of the other House, or of the President, they did so in
explicit, unambiguous terms. These carefully defined exceptions from pre-
sentment and bicameralism underscore the difference between the legislative
functions of Congress and other unilateral but important and binding one-
House acts provided for in the Constitution. These exceptions are narrow,
explicit, and separately justified; none of them authorize the action chal-
lenged here. On the contrary, they provide further support for the conclu-
sion that Congressional authority is not to be implied and for the conclusion
that the veto provided for in Sec. 244(c)(2) is not authorized by the consti-
tutional design of the powers of the Legislative Branch.
Since it is clear that the action by the House under Sec. 244(c)(2) was
not within any of the express constitutional exceptions authorizing one
House to act alone, and equally clear that it was an exercise of legislative
power, that action was subject to the standards prescribed in Article I. The
bicameral requirement, the Presentment Clauses, the President’s veto, and
Congress’ power to override a veto were intended to erect enduring checks
on each Branch and to protect the people from the improvident exercise of
power by mandating certain prescribed steps. To preserve those checks, and
maintain the separation of powers, the carefully defined limits on the power
of each Branch must not be eroded. To accomplish what has been attempted
by one House of Congress in this case requires action in conformity with
the express procedures of the Constitution’s prescription for legislative ac-
tion: passage by a majority of both Houses and presentment to the President.
The veto authorized by Sec. 244(c)(2) doubtless has been in many re-
spects a convenient shortcut; the “sharing” with the Executive by Congress
of its authority over aliens in this manner is, on its face, an appealing com-
promise. In purely practical terms, it is obviously easier for action to be taken
by one House without submission to the President; but it is crystal clear
from the records of the Convention, contemporaneous writings and debates,
that the Framers ranked other values higher than efficiency. The records of
the Convention and debates in the States preceding ratification underscore
the common desire to define and limit the exercise of the newly created fed-
eral powers affecting the states and the people. There is unmistakable expres-
sion of a determination that legislation by the national Congress be a step-
by-step, deliberate and deliberative process.
The choices we discern as having been made in the Constitutional
 C | Legislative Powers in the Administrative State | 439

Convention impose burdens on governmental processes that often seem

clumsy, inefficient, even unworkable, but those hard choices were con-
sciously made by men who had lived under a form of government that per-
mitted arbitrary governmental acts to go unchecked. There is no support in
the Constitution or decisions of this Court for the proposition that the
cumbersomeness and delays often encountered in complying with explicit
Constitutional standards may be avoided, either by the Congress or by the
President. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
With all the obvious flaws of delay, untidiness, and potential for abuse, we
have not yet found a better way to preserve freedom than by making the ex-
ercise of power subject to the carefully crafted restraints spelled out in the
Constitution. ;
We hold that the Congressional veto provision in Sec. 244(c)(2) is sever-
able from the Act and that it is unconstitutional. Accordingly, the judgment
of the Court of Appeals is
Affirmed.

| Justice POWELL, concurring.

The Court’s decision, based on the Presentment Clauses, Art. I, Sec. 7,
cls. 2 and 3, apparently will invalidate every use of the legislative veto. The
breadth of this holding gives one pause. Congress has included the veto in
literally hundreds of statutes, dating back to the 1930s. Congress clearly
views this procedure as essential to controlling the delegation of power to
administrative agencies. One reasonably may disagree with Congress’ assess-
ment of the veto’s utility, but the respect due its judgment as a coordinate
branch of Government cautions that our holding should be no more exten-
sive than necessary to decide this case. In my view, the case may be decided
on a narrower ground. When Congress finds that a particular person does
not satisfy the statutory criteria for permanent residence in this country it
has assumed a judicial function in violation of the principle of separation of
powers. Accordingly, I concur only in the judgment. ...

Justice WHITE, dissenting.

Today the Court not only invalidates Sec. 244(c)(2) of the Immigration
and Nationality Act, but also sounds the death. knell for nearly 200 other
statutory provisions in which Congress has reserved a “legislative veto.” For
this reason, the Court’s decision 1s of surpassing importance. And it is for this
reason that the Court would have been well-advised to decide the case, if
possible, on the narrower grounds of separation of powers, leaving for full
consideration the constitutionality of other congressional review statutes op-
erating on such varied matters as war powers and agency rule-making, some
of which concern the independent regulatory agencies.
The prominence of the legislative veto mechanism in our contemporary
political system and its importance to Congress can hardly be overstated. It
has become a central means by which Congress secures the accountability of
executive and independent agencies. Without the legislative veto, Congress is
‘faced witha Hobson’s choice: either to refrain from delegating the necessary
authority, leaving itself with a hopeless task of writing laws with the requisite
specificity to cover endless special circumstances across the entire policy
440 | THe PRrEsIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

landscape, or in the alternative, to abdicate its lawmaking function to the ex-

ecutive branch and independent agencies. To choose the former leaves major
national problems unresolved; to opt for the latter risks unaccountable
policymaking by those not elected to fill that role. Accordingly, over the past
five decades, the legislative veto has been placed in nearly 200 statutes. The
device is known in every field of governmental concern: reorganization,
budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the
environment and the economy... .
[T]he legislative veto is more than “efficient, convenient, and useful.” It
is an important if not indispensable political invention that allows the Presi-
dent and Congress to resolve major constitutional and policy differences, as-
sures the accountability of independent regulatory agencies, and preserves
Congress’ control over lawmaking. Perhaps there are other means of accom-
modation and accountability, but the increasing reliance of Congress upon
the legislative veto suggests that the alternatives to which Congress must
now turn are not entirely satisfactory.
The history of the legislative veto also makes clear that it has not been a
sword with which Congress has struck out to aggrandize itself at the expense
of the other branches—the concerns of Madison and Hamilton. Rather, the
veto has been a means of defense, a reservation of ultimate authority neces-
sary if Congress is to fulfill its designated role under Article I as the nation’s
lawmaker. While the President has often objected to particular legislative ve-
toes, generally those left in the hands of congressional committees, the Exec-
utive has more often agreed to legislative review as the price for a broad
delegation of authority. To be sure, the President may have preferred un-
restricted power, but that could be precisely why Congress thought it essen-
tial to retain a check on the exercise of delegated authority.
For all these reasons, the apparent sweep of the Court’s decision today is
regrettable. The Court’s Article I analysis appears to invalidate all legisla-
tive vetoes irrespective of form or subject. Because the legislative veto is
commonly found as a check upon rulemaking by administrative agencies
and upon broad-based policy decisions of the Executive Branch, it is partic-
ularly unfortunate that the Court reaches its decision in a case involving
the exercise of a veto over deportation decisions regarding particular in-
dividuals. Courts should always be wary of striking statutes as unconsti-
tutional; to strike an entire class of statutes based on consideration of a
somewhat atypical and more-readily indictable exemplar of the class is
irresponsible. . . .
If the legislative veto were as plainly unconstitutional as the Court
strives to suggest, its broad ruling today would be more comprehensible. But,
the constitutionality of the legislative veto is anything but clearcut. The issue
divides scholars, courts, attorneys general, and the two other branches of the
National Government. If the veto devices so flagrantly disregarded the re-
quirements of Article I as the Court today suggests, I find it incomprehen-
sible that Congress, whose members are bound by oath to uphold the
Constitution, would have placed these mechanisms in nearly 200 separate
laws over a period of 50 years.
The reality of the situation is that the constitutional question posed to-
day is one of immense difficulty over which the executive and legislative
branches—as well as scholars and judges—have understandably disagreed.
 C | Legislative Powers in the Administrative State | 441
I heen
That disagreement stems from the silence of the Constitution on the precise
question: The Constitution does not directly authorize or prohibit the leg-
islative veto. Thus, our task should be to determine whether the legislative
veto is consistent with the purposes ofArt. I and the principles of Separation
of Powers which are reflected in that Article and throughout the Constitu-
tion. We should not find the lack of a specific constitutional authorization
for the legislative veto surprising, and I would not infer disapproval of the
mechanism from its absence. From the summer of 1787 to the present
the government of the United States has become an endeavor far beyond the
contemplation of the Framers. Only within the last half century has the
complexity and size of the Federal Government’s responsibilities grown so
greatly that the Congress must rely on the legislative veto as the most effec-
tive if not the only means to insure their role as the nation’s lawmakers. But
the wisdom of the Framers was to anticipate that the nation would grow and
new problems of governance would require different solutions. Accordingly,
our Federal Government was intentionally chartered with the flexibility to
respond to contemporary needs without losing sight of fundamental demo-
cratic principles. This was the spirit in which Justice JACKSON penned his
influential concurrence in the Steel Seizure Case:

“The actual art of governing under our Constitution does not and
cannot conform to judicial definitions of the power of any of its
branches based on isolated clauses or even single Articles torn from
context. While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the dispersed
powers into a workable government.” Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579 (1952).

This is the perspective from which we should approach the novel con-
stitutional questions presented by the legislative veto. In my view, neither
Article I of the Constitution nor the doctrine of separation of powers is vi-
olated by this mechanism by which our elected representatives preserve their
voice in the governance of the nation....
It is long-settled that Congress may “exercise its best judgment in the
selection of measures, to carry into execution the constitutional powers of
the government,’ and “avail itself of experience, to exercise its reason, and
to accommodate its legislation to circumstances.” McCulloch v. Maryland,
4 Wheat. 316 (1819) ...
The Court heeded this counsel in approving the modern administrative
state. The Court’s holding today that all legislative-type action must be en-
acted through the lawmaking process ignores that legislative authority is rou-
tinely delegated to the Executive branch, to the independent regulatory
agencies, and to private individuals and groups. ...
This Court’s decisions sanctioning such delegations make clear that Ar-
ticle I does not require all action with the effect of legislation to be passed as
a law.
Theoretically, agencies and officials were asked only to “fill up the de-
‘tails,’ and the rule was that “Congress cannot delegate any part of its legisla-
tive power except under a limitation of a prescribed standard.” . . .
In practice, however, restrictions on the scope of the power that could
442 | THe Presipent as CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

be delegated diminished and all but disappeared. In only two instances did the
Court find an unconstitutional delegation. Panama Refining Co. v. Ryan, 293
USS. 388 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
The wisdom and the constitutionality of these broad delegations are
matters that still have not been put to rest. But for present purposes, these
cases establish that by virtue of congressional delegation, legislative power
can be exercised by independent agencies and Executive departments with-
out the passage of new legislation. ...
If Congress may delegate lawmaking power to independent and execu-
tive agencies, it is most difficult to understand Article I as forbidding Con-
gress from also reserving a check on legislative power for itself. Absent
the veto, the agencies receiving delegations of legislative or quasi-legislative
power may issue regulations having the force of law without bicameral ap-
proval and without the President’s signature. It is thus not apparent why the
reservation of a veto over the exercise of that legislative power must be sub-
ject to a more exacting test. In both cases, it is enough that the initial statu-
tory authorizations comply with the Article I requirements. . . .
I regret that I am in disagreement with my colleagues on the fun-
damental questions that this case presents. But even more I regret the de-
structive scope of the Court’s holding. It reflects a profoundly different con-
ception of the Constitution than that held by the Courts which sanctioned
the modern administrative state. Today’s decision strikes down in one fell
swoop provisions in more laws enacted by Congress than the Court has cu-
mulatively invalidated in its history. .. .

Clinton v. City of New York

524 USS. 417, 118 S.CT. 2091 (1998)

After avoiding a ruling on the constitutionality of congressional delega-

tion to the president of the power of line-item veto in Raines v, Byrd,
521 US. 811 (1997), by denying several senators and representatives
standing to challenge the law, the Court struck down the Line Item
Veto Act of 1996. The pertinent facts are discussed by Justice Stevens in
his opinion for the Court.
The Court’s decision was six to three and its opinion announced
by Justice Stevens. Justice Kennedy filed a concurring opinion. Justice
Scalia filed an opinion concurring in part and dissenting in part, which
Justice O’Connor joined. Justice Breyer filed a dissenting opinion,
which Justices O’Connor and Scalia joined in part.

() Justice STEVENS delivered the opinion of the Court.

The Line Item Veto Act (Act) was enacted in April 1996 and became ef-
fective on January 1, 1997.The following day, six Members of Congress who
 C | Legislative Powers in the Administrative State | 443
eee
had voted against the Act brought suit in the District Court for the District
of Columbia challenging its constitutionality. On April 10, 1997, the District
Court entered an order holding that the Act is unconstitutional. We deter-
mined, however, that the Members of Congress did not have standing to sue
because they had not “alleged a sufficiently concrete injury to have estab-
lished Article III standing,” Raines v. Byrd (1997)...
Less than two months after our decision in that case, the President exer-
cised his authority to cancel one provision in the Balanced Budget Act of
1997, and two provisions in the Taxpayer Relief Act of 1997. Appellees,
claiming that they had been injured by two of those cancellations, filed these
cases in the District Court. That Court again held the statute invalid and we
again expedited our review. We now hold that these appellees have standing
to challenge the constitutionality of the Act and, reaching the merits, we
agree that the cancellation procedures set forth in the Act violate the Pre-
sentment Clause, Art. I, Sec.-7, cl. 2, of the Constitution. . . .
Appellees filed two separate actions against the President and other fed-
eral officials challenging these two cancellations. The plaintiffs in the first
case are the City of New York, two hospital associations, one hospital, and
two unions representing health care employees. The plaintiffs in the second
are a farmers’ cooperative [Snake River Cooperative] consisting of about
30 potato growers in Idaho and an individual farmer who is a member and
_ officer of the cooperative. The District Court consolidated the two cases and
determined that at least one of the plaintiffs in each had standing under Ar-
ticle III of the Constitution. ...
The Line Item Veto Act gives the President the power to “cancel in
whole” three types of provisions that have been signed into law: “‘(1) any dol-
lar amount of discretionary budget authority; (2) any item of new direct
spending; or (3) any limited tax benefit.” It is undisputed that the New York
case involves an “item of new direct spending” and that the Snake River case
involves a “limited tax benefit” as those terms are defined in the Act. It is also
undisputed that each of those provisions had been signed into law pursuant
to Article I, Section 7, of the Constitution before it was canceled.
The Act requires the President to adhere to precise procedures when-
ever he exercises his cancellation authority. In identifying items for cancella-
tion he must consider the legislative history, the purposes, and other relevant
information about the items. He must determine, with respect to each can-
cellation, that it will “(i) reduce the Federal budget deficit; (ii) not impair any
essential Government functions; and (iii) not harm the national interest.”
Moreover, he must transmit a special message to Congress notifying it of
each cancellation within five calendar days (excluding Sundays) after the
enactment of the canceled provision. It is-undisputed that the President
meticulously followed these procedures in these cases.
A cancellation takes effect upon receipt by Congress of the special mes-
sage from the President. If, however, a “disapproval bill” pertaining to a spe-
cial message is enacted into law, the cancellations set forth in that message
become “null and void.” The Act sets forth a detailed expedited procedure
for the consideration of a “disapproval bill,’ but no such bill was passed for
either of the cancellations involved in these cases. A majority vote of both
' Houses is sufficient to enact a disapproval bill. The Act does not grant the
President the authority to cancel a disapproval bill, but he does, of course, re-
tain his constitutional authority to veto such a bill....
444 | Tur PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

There are important differences between the President’s “return” of a

bill pursuant to Article I, Section 7, and the exercise of the President’s can-
cellation authority pursuant to the Line Item Veto Act. The constitutional re-
turn takes place before the bill becomes law; the statutory cancellation
occurs after the bill becomes law. The constitutional return is of the entire
bill; the statutory cancellation is of only a part. Although the Constitution
expressly authorizes the President to play a role in the process of enacting
statutes, it is silent on the subject of unilateral Presidential action that either
repeals or amends parts of duly enacted statutes.
There are powerful reasons for construing constitutional silence on this
profoundly important issue as equivalent to an express prohibitioThe n. pro-
cedures governing the enactment of statutes set forth in the text of Article I
were the product of the great debates and compromises that produced the
Constitution itself. Familiar historical materials provide abundant support for
the conclusion that the power to enact statutes may only “be exercised in ac-
cord with a single, finely wrought and exhaustively considered, procedure.”
[INS v.] Chadha, 462 U.S. [919 (1983)]. Our first President understood the
text of the Presentment Clause as requiring that he either “approve all
the parts ofa Bill, or reject it in toto.” What has emerged in these cases from
the President’s exercise of his statutory cancellation powers, however, are
truncated versions of two bills that passed both Houses of Congress. They
are not the product of the “finely wrought” procedure that the Framers de-
signed. |...
The Government advances two related arguments to support its position
that despite the unambiguous provisions of the Act, cancellations do not
amend or repeal properly enacted statutes in violation of the Presentment
Clause. First, relying primarily on Field v. Clark, 143 U.S. 649 (1892), the
Government contends that the cancellations were merely exercises of dis-
cretionary authority granted to the President by the Balanced Budget Act and
the Taxpayer Relief Act read in light of the previously enacted Line Item Veto
Act. Second, the Government submits that the substance of the authority to
cancel tax and spending items “is, in practical effect, no more and no less than
the power to ‘decline to spend’ specified sums of money, or to ‘decline to im-
plement’ specified tax measures.” Neither argument is persuasive. .. .
[In Field v. Clark, the Court identified] three critical differences between
the power to suspend the exemption from import duties and the power to
cancel portions of a duly enacted statute. First, the exercise of the suspension
power was contingent upon a condition that did not exist when the Tariff
Act was passed: the imposition of “reciprocally unequal and unreasonable”
import duties by other countries. In contrast, the exercise of the cancellation
power within five days after the enactment of the Balanced Budget and Tax
Reform Acts necessarily was based on the same conditions that Congress
evaluated when it passed those statutes. Second, under the Tariff Act, when
the President determined that the contingency had arisen, he had a duty to
suspend; in contrast, while it is true that the President was required by the
Act to make three determinations before he canceled a provision, those de-
terminations did not qualify his discretion to cancel or not to cancel. Finally,
whenever the President suspended an exemption under the Tariff Act, he was
executing the policy that Congress had embodied in the statute. In contrast,
whenever the President cancels an item of new direct spending or a limited
 C | Legislative Powers in the Administrative State | 445

tax benefit he is rejecting the policy judgment made by Congress and re-
lying on his own policy judgment. Thus, the conclusion in Field v. Clark that
the suspensions mandated by the Tariff Act were not exercises of legislative
power does not undermine our opinion that cancellations pursuant to the
Line Item Veto Act are the functional equivalent of partial repeals of Acts of
Congress that fail to satisfy Article I, Section 7.
The Government’ reliance upon other tariff and import statutes, dis-
cussed in Field, that contain provisions similar to the one challenged in Field
is unavailing for the same reasons. .. .
Neither are we persuaded by the Government’s contention that the
President’s authority to cancel new direct spending and tax benefit items is
no greater than his traditional authority to decline to spend appropriated
funds. .. . It is argued that the Line Item Veto Act merely confers comparable
discretionary authority over the expenditure of appropriated funds. The crit-
ical difference between this statute and all of its predecessors, however, is that
unlike any of them, this Act gives the President the unilateral power to
change the text of duly enacted statutes. None of the Act’s predecessors
could even arguably have been construed to authorize such a change.
Although they are implicit in what we have already written, . . . it is ap-
propriate to emphasize three points.
First, we express no opinion about the wisdom of the procedures au-
thorized by the Line Item Veto Act. Many members of both major political
parties who have served in the Legislative and the Executive Branches have
long advocated the enactment of such procedures for the purpose of “en-
suring greater fiscal accountability in Washington.” ...We do not lightly con-
clude that their action was unauthorized by the Constitution. We have,
however, twice had full argument and briefing on the question and have
concluded that our duty is clear.
Second, .. . because we conclude that the Act’s cancellation provisions
violate Article I, Section 7, of the Constitution, we find it unnecessary to
consider the District Court’s alternative holding that the Act “impermissibly
disrupts the balance of powers among the three branches of government.”
Third, our decision rests on the narrow ground that the procedures
authorized by the Line Item Veto Act are not authorized by the Constitu-
HON =
If there is to be a new procedure in which the President will play a dif-
ferent role in determining the final text of what may “become a law,” such
change must come not by legislation but through the amendment proce-
dures set forth in ArticleV of the Constitution. Cf U.S. Term Limits, Inc. v.
Thorton, 514 U.S. 779 (1995).
The judgment of the District Court is affirmed.
It is so ordered.

1 Justice KENNEDY, concurring.

I write to respond to my colleague Justice BREYER, who observes that
the statute does not threaten the liberties of individual citizens, a point on
which I disagree. The argument is related to his earlier suggestion that our
role is lessened here because the two political branches are adjusting their
own powers between themselves. To say the political branches have a some-
what free hand to reallocate their own authority would seem to require ac-
 446 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS eee
SN

ceptance of two premises: first, that the public good demands it, and second,
that liberty is not at risk. The former premise 1s inadmissible.The Constitu-
tion’s structure requires a stability which transcends the convenien ce of the
moment. The latter premise, too, is flawed. Liberty is always at stake when
one or more of the branches seek to transgress the separation of powers.
Separation of powers was designed to implement a fundamental insight:
concentration of power in the hands ofa single branch is a threat to liberty.
The Federalist states the axiom in these explicit terms: “The accumulation of
all powers, legislative, executive, and judiciary, in the same hands . . . may
justly be pronounced the very definition oftyranny.” The Federalist No. 47.
So convinced were the Framers that liberty of the person inheres in structure
that at first they did not consider a Bill of Rights necessary. It was at Madi-
son’s insistence that the First Congress enacted the Bill of Rights. It would
be a grave mistake, however, to think a Bill of Rights in Madison’s scheme
then or in sound constitutional theory now renders separation of powers of
lesser importance. ...
Separation of powers helps to ensure the ability of each branch to be
vigorous in asserting its proper authority. In this respect the device operates
on a horizontal axis to secure a proper balance of legislative, executive, and
judicial authority. Separation of powers operates on a vertical axis as well, be-
tween each branch and the citizens in whose interest powers must be exer-
cised. The citizen has a vital interest in the regularity of the exercise of
governmental power. If this point was not clear before Chadha, it should have
been so afterwards. Though Chadha involved the deportation of a person,
while the case before us involves the expenditure of money or the grant of a
tax exemption, this circumstance does not mean that the vertical operation
of the separation of powers is irrelevant here. By increasing the power of the
President beyond what the Framers envisioned, the statute compromises the
political liberty of our citizens, liberty which the separation of powers seeks
(0 SCCUIE yar:

“) Justice BREYER, with whom Justice O. CONNOR and Justice

SCALIA join as to Part III, dissenting.

a II
I approach the constitutional question before us with three general consider-
ations in mind. First, the Act represents a legislative effort to provide the
President with the power to give effect to some, but not to all, of the expen-
diture and revenue-diminishing provisions contained in a single massive ap-
propriations bill. And this objective is constitutionally proper.
When our Nation was founded, Congress could easily have provided
the President with this kind of power. In that time period, our population
was less than four million, federal employees numbered fewer than 5,000, an-
nual federal budget outlays totaled approximately $4 million, and the entire
operative text of Congress’s first general appropriations law read as follows:

“Be it enacted ... that there be appropriated for the service of

the present year, to be paid out of the monies which arise, either
from the requisitions heretofore made upon the several states, or
from the duties on import and tonnage, the following sums, viz. A
 C | Legislative Powers in the Administrative State | 447
ne SS aaa aaa iene ane a
sum not exceeding two hundred and sixteen thousand dollars for
defraying the expenses of the civil list, under the late and present
government; a sum not exceeding one hundred and thirty-seven
thousand dollars for defraying the expenses of the department of
war; a sum not exceeding one hundred and ninety thousand dollars
for discharging the warrants issued by the late board of treasury, and
remaining unsatisfied; and a sum not exceeding ninety-six thousand
dollars for paying the pensions to invalids.”

At that time, a Congress, wishing to give a President the power to select

among appropriations, could simply-have embodied each appropriation in a
separate bill, each bill subject to a separate Presidential veto.
Today, however, our population is about 250 million, the Federal
Government employs more than four million people, the annual federal
budget is $1.5 trillion, and a typical budget appropriations bill may have a
dozen titles, hundreds of sections, and spread across more than 500 pages of
the Statutes at Large. Congress cannot divide such abill into thousands, or
tens of thousands, of separate appropriations bills, each one of which the
President would have to sign, or to veto, separately. Thus, the question is
whether the Constitution permits Congress to choose a particular novel
means to achieve this same, constitutionally legitimate, end.
Second, the case in part requires us to focus upon the Constitution’s
generally phrased structural provisions, provisions that delegate all “legisla-
tive” power to Congress and vest all “executive” power in the President. The
Court, when applying these provisions, has interpreted them generously in
terms of the institutional arrangements that they permit... .
Third, we need not here referee a dispute among the other two
branches..4..,
These three background circumstances mean that, when one measures
the literal words of the Act against the Constitution’s literal commands, the
fact that the Act may closely resemble a different, literally unconstitutional,
arrangement is beside the point. To drive exactly 65 miles per hour on an
interstate highway closely resembles an act that violates the speed limit. But
it does not violate that limit, for small differences matter when the question
is one of literal violation of law. No more does this Act literally violate the
Constitution’s words.
The background circumstances also mean that we are to interpret non-
literal Separation of Powers principles in light of the need for “workable
government.” Youngstown Sheet and Tube Co. [Sawyer, 343 U.S. 579 (1952)]
(JACKSON, J., concurring). If we apply those principles in light of that ob-
jective, as this Court has applied them in the past, the Act is constitutional.

a Il
‘The Court believes that the Act violates the literal text of the Constitution.
A simple syllogism captures its basic reasoning:
Major Premise: The Constitution sets forth an exclusive method for en-
acting, repealing, or amending laws.
Minor Premise: The Act authorizes the President to “repeal or amend”
laws in a different way, namely by announcing a cancellation of a portion of
a previously enacted law.
Conclusion:
The Act is inconsistent with the Constitution.
448 | THe PRESIDENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS

I find this syllogism unconvincing, however, because its Minor Premise

is faulty. When the President “canceled” the two appropriation measures
law. He
now before us, he did not repeal any law nor did he amend any
followed the law, leaving the statutes, as they are literally written,
simply
TvAC Parente
Because one cannot say that the President’s exercise of the power the
Act grants is, literally speaking, a “repeal” or “amendment,” the fact that the
Act’s procedures differ from the Constitution’s exclusive procedures for en-
acting (or repealing) legislation is beside the point. The Act itself was enacted
in accordance with these procedures, and its failure to require the President
to satisfy those procedures does not make the Act unconstitutional.

a IV

Because I disagree with the Court’s holding of literal violation, I must con-
sider whether the Act nonetheless violates Separation of Powers principles—
principles that arise out of the Constitution’s vesting of the “executive
Power” in “a President,” U.S. Const., Art. II, Sec. 1, and “all legislative Pow-
ers” in “a Congress,” Art. I, Sec. 1. There are three relevant Separation of
Powers questions here: (1) Has Congress given the President the wrong kind
of power, i.e., “non-Executive” power? (2) Has Congress given the President
the power to “encroach” upon Congress’ own constitutionally reserved terri-
tory? (3) Has Congress given the President too much power, violating the
doctrine of “nondelegation”? These three limitations help assure “adequate
control by the citizen’s representatives in Congress,” upon which Justice
KENNEDY properly insists. And with respect to this Act, the answer to all
these questions is “no.”
- Viewed conceptually, the power the Act conveys is the right kind of
power. It is “executive.” As explained above, an exercise of that power “ex-
ecutes” the Act. Conceptually speaking, it closely resembles the kind of dele-
gated authority—to spend or not to spend appropriations, to change or not
to change tariff rates—that Congress has frequently granted the President,
any differences being differences in degree, not kind.
The fact that one could also characterize this kind of power as “legisla-
tive,” say, if Congress itself (by amending the appropriations bill) prevented
a provision from taking effect, is beside the point... .
If there is a Separation of Powers violation, then, it must rest, not upon
purely conceptual grounds, but upon some important conflict between the
Act and a significant Separation of Powers objective.
The Act does not undermine what this Court has often described as the
principal function of the Separation of Powers, which is to maintain the tri-
partite structure of the Federal Government—and thereby protect individual
liberty—by providing a “safeguard against the encroachment or aggrandizement
of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1 (1976).
[O]ne cannot say that the Act “encroaches” upon Congress’ power,
when Congress retained the power to insert, by sumple majority, into any fu-
ture appropriations bill, into any section of any such bill, or into any phrase
of any section, a provision that says the Act will not apply. Congress also re-
tained the power to “disapprove,” and thereby reinstate, any of the President’s
cancellations. And it is Congress that drafts and enacts the appropriations
 C | Legislative Powers in the Administrative State | 449

statutes that are subject to the Act in the first place—and thereby defines the
outer limits of the President’s cancellation authority. Thus this Act is not
the sort of delegation “without . . . sufficient check” that concerns Justice
KENNEDY. Indeed, the President acts only in response to, and on the terms
set by, the Congress.
Nor can one say that the Act’s basic substantive objective is constitution-
ally improper, for the earliest Congresses could have, and often did, confer on
the President this sort of discretionary authority over spending. And, if an in-
dividual Member of Congress, who say, favors aid to Country A but not
to Country B, objects to the Act on the ground that the President may
“rewrite” an appropriations law to do the opposite, one can respond, “But a
majority of Congress voted that he have that power; you may vote to exempt
the relevant appropriations provision from the Act; and if you command a
majority, your appropriation issafe.’ Where the burden of overcoming leg-
islative inertia lies is within the power of Congress to determine by rule.
Where is the encroachment?
Nor can one say the Act’s grant of power “agerandizes” the Presidential
office. The grant is limited to the context of the budget. It is limited to the
power to spend, or not to spend, particular appropriated items, and the
power to permit, or not to permit, specific limited exemptions from gener-
ally applicable tax law from taking effect. . . .
The “nondelegation” doctrine represents an added constitutional check
upon Congress’ authority to delegate power to the Executive Branch. And it
raises a more serious constitutional obstacle here. The Constitution permits
Congress to “seek assistance from another branch” of Government, the “ex-
tent and character” of that assistance to be fixed “according to common sense
and the inherent necessities of the governmental co-ordination.” J. W7 Hamp-
ton,Jr.& Co. v. United States, 276 U.S. [394 (1928)]. But there are limits on the
way in which Congress can obtain such assistance; it “cannot delegate any
part of its legislative power except under the limitation of a prescribed stan-
dard.” United States v. Chicago, M., St. P & PR. Co., 282 US. 311 (1931). Or,
in Chief Justice TAFT’s more familiar words, the Constitution permits only
those delegations where Congress “shall lay down by legislative act an intel-
ligible principle to which the person or body authorized to [act] is directed
to conform.”J. W Hampton.
The Act before us seeks to create such a principle in three ways. The
first is procedural. The Act tells the President that, in “identifying dollar
amounts [or] ...items ... for cancellation” (which I take to refer to his se-
lection of the amounts or items he will “prevent from having legal force or
effect”), he is to “consider,” among other things, “the legislative history, con-
struction, and purposes of the law which contains [those amounts or items,
and] ...any specific sources of information referenced in such law or ... the
best available information. ...”
The second is purposive. The clear purpose behind the Act, confirmed
by its legislative history, is to promote “greater fiscal accountability” and to
“eliminate wasteful federal spending and .. . special tax breaks.”
The third is substantive.
The President must determine that, to “prevent”
the item o. amount “from having legal force or effect” will “reduce the Fed-
eral budget deficit; . . . not impair any essential Government functions;
and ...not harm the national interest.”
450 | THE PRESIDENT AS Cuter EXECUTIVE IN DOMESTIC AFFAIRS

s
The resulting standards are broad. But this Court has upheld standard
that are equally broad, or broader. .. .

av

In sum, I recognize that the Act before us is novel. In a sense, it skirts a consti-
tutional edge. But that edge has to do with means, not ends. The means chosen
do not amount literally to the enactment, repeal, or amendment of a law. Nor,
for that matter, do they amount literally to the “line item veto” that the Act’s ti-
tle announces. Those means do not violate any basic Separation of Powers prin-
ciple. They do not improperly shift the constitutionally foreseen balance of
power from Congress to the President. Nor, since they comply with Separation
of Powers principles, do they threaten the liberties of individual citizens. They
represent an experiment that may, or may not, help representative government
work better. The Constitution, in my view, authorizes Congress and the Presi-
dent to try novel methods in this way. Consequently, with respect, I dissent.

(1 Justice SCALIA, with whom Justice O’CONNOR joins, and with whom
Justice BREYER joins as to Part III, concurring in part and dissenting in part.

aw [il
I do not believe that Executive cancellation of this item of direct spending
violates the Presentment Clause.
The Presentment Clause requires, in relevant part, that “every Bill which
shall have passed the House of Representatives and the Senate, shall, before it
becomes a Law, be presented to the President of the United States; If he ap-
prove he shall sign it, but if not he shall return it’’ There is no question that
enactment of the Balanced Budget Act complied with these requirements:
the House and Senate passed the bill, and the President signed it into law. It
was only after the requirements of the Presentment Clause had been satisfied
that the President exercised his authority under the Line Item Veto Act to
cancel the spending item. Thus, the Court’s problem with the Act is not that
it authorizes the President to veto parts of a bill and sign others into law, but
rather that it authorizes him to “cancel’”—prevent from “having legal force
or effect”—certain parts of duly enacted statutes.
Article I, Sec. 7 of the Constitution obviously prevents the President from
cancelling a law that Congress has not authorized him to cancel. Such action
cannot possibly be considered part of his execution of the law, and if it is leg-
islative action, as the Court observes, “ ‘repeal of statutes, no less than enact-
ment, must conform with Art. I?” But that is not this case. It was certainly
arguable, as an original matter, that Art. I, Sec. 7 also prevents the President from
cancelling a law which itself authorizes the President to cancel it. But as the
Court acknowledges, that argument has long since been made and rejected. In
1809, Congress passed a law authorizing the President to cancel trade restric-
tions against Great Britain and France if either revoked edicts directed at the
United States. Joseph STORY regarded the conferral of that authority as en-
tirely unremarkable in The Orono, 18 E Cas. 830 (CCD Mass. 1812). The Tariff
Act of 1890 authorized the President to “suspend, by proclamation to: that ef-
fect” certain of its provisions if he determined that other countries were im-
posing “reciprocally unequal and unreasonable” duties. This Court upheld the
 C | Legislative Powers in the Administrative State | 451
t e
constitutionality of that Act in Field v, Clark, reciting the history since 1798 of
statutes conferring upon the President the power to “discontinue the prohibi-
tions and restraints hereby enacted and declared,’ ‘suspend the operation of the
aforesaid act,” and “declare the provisions of this act to be inoperative.” . ..
I turn, then, to the crux of the matter: whether Congress’ authorizing
the President to cancel an item of spending gives him a power that our his-
tory and traditions show must reside exclusively in the Legislative Branch. I
may note, to begin with, that the Line Item Veto Act is not the first statute to
authorize the President to “cancel” spending items. In Bowsher v. Synar, 478
US. 714 (1986), we addressed the constitutionality of the Balanced Budget
and Emergency Deficit Control Act of 1985, which required the President, if
the federal budget deficit exceeded a certain amount, to issue a “‘sequestra-
tion” order mandating spending reductions specified by the Comptroller
General. The effect of sequestration was that “amounts sequestered .. . shall
be permanently cancelled.’ We held that the Act was unconstitutional, not
because it impermissibly gave the Executive legislative power, but because it
gave the Comptroller General, an officer of the Legislative Branch over
whom Congress retained removal power, “the ultimate authority to deter-
mine the budget cuts to be made,’ “functions . . . plainly entailing execution
of the law in constitutional terms.” The President’s discretion under the Line
~ Item Veto Act is certainly broader than the Comptroller General’s discretion
was under the 1985 Act, but it is no broader than the discretion traditionally
granted the President in his execution of spending laws....
Certain Presidents have claimed Executive authority to withhold appro-
priated funds even absent an express conferral of discretion to do so. In 1876,
for example, President Grant reported to Congress that he would not spend
money appropriated for certain harbor and river improvements, because “un-
der no circumstances [would he] allow expenditures upon works not clearly
national,” and in his view, the appropriations were for “works of purely private
or local interest, in no sense national.” President Franklin D. Roosevelt im-
pounded funds appropriated for a flood control reservoir and levee in Okla-
homa. President Truman ordered the impoundment of hundreds of millions
of dollars that had been appropriated for military aircraft. President Nixon,
the Mahatma Ghandi of all impounders, asserted at a press conference in 1973
that his “constitutional right” to impound appropriated funds was “absolutely
clear.’ Our decision two years later in Tiain v. City of New York, 420 U.S. 35
(1975), proved him wrong, but it implicitly confirmed that Congress may
confer discretion upon the executive to withhold appropriated funds, even
funds appropriated for a specific purpose. The statute at issue in Train author-
ized spending “not to exceed” specified sums for certain projects, and directed
that such “sums authorized to be appropriated .. . shall be allotted” by the Ad-
ministrator of the Environmental Protection Agency. Upon enactment of this
statute, the President directed the Administrator to allot no more than a cer-
tain part of the amount authorized. This Court held, as a matter of statutory
interpretation, that the statute did not grant the Executive discretion to with-
hold the funds, but required allotment of the full amount authorized.
The short of the matter is this: Had the Line Item Veto Act authorized
the Preside.:t to “decline to spend” any item of spending contained in the
Balanced Budget Act of 1997, there is not the slightest doubt that authoriza-
tion would have been constitutional. What the Line Item Veto Act does
452 | THE PresiIDENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS

instead—authorizing the President to “cancel” an item of spending—is

technically different. But the technical difference does not relate to the tech-
nicalities of the Presentment Clause, which have been fully complied with;
and the doctrine of unconstitutional delegation, which is at issue here, is pre-
The title of the Line Item Veto Act,
eminently not a doctrine of technicalities.
which was perhaps designed to simplify for public comprehension, or perhaps
merely to comply with the terms of a campaign pledge, has succeeded in fak-
ing out the Supreme Court. The President's action it authorizes in fact is not
a line-item veto and thus does not offend Art. I, Sec. 7; and insofar as the sub-
stance of that action is concerned, it is no different from what Congress has
permitted the President to do since the formation of the Union....
For the foregoing reasons, I respectfully dissent.

= THE DEVELOPMENT OF LAW

Presidential Vetoes, 1789-2007

PRESIDENT REGULAR POCKET TOTAL OVERRIDDEN

VETOES VETOES VETOES
Washington 2 0 Z. 0
J. Adams 0 0 0 0
Jefferson 0 0 0 0
Madison 5 2 a 0
Monroe il 0 1 0
J. Q. Adams 0 0 0 0
Jackson 5 a 12 0
Van Buren 0 1 1 0
W. Harrison 0 0 0 0
Tyler 6 a 10 1
Polk p 1 3 0
Taylor 0) 0 0 0
Fillmore 0 0 0 0
Pierce 9 0 9 5
Buchanan 4 g 7 0
Lincoln 2 5 I 0
A. Johnson 21 8 29 15
Grant 45 49 94 4
Hayes 12 1 13 1
Garfield 0 0 0. 0
Arthur 4 8 ie, 1
Cleveland 346 238 584 7
B. Harrison 19 25 44 1
McKinley 6 36 42 m
T. Roosevelt 42 40 82 1
 D | Accountability and Immunities | 453

NN

PRESIDENT REGULAR POCKET TOTAL OVERRIDDEN

VETOES VETOES VETOES
Taft 30 9 39 1
Wilson 3 fia 44 6
Harding 5 1 6 0
Coolidge 20 30 50 4
Hoover 21 16 a 3
E D. Roosevelt Sf2 263 635 9
Truman 180 70 250 12
Eisenhower 73 108 181 2
Kennedy 12 9 21 0
L. B. Johnson 16. 14 30 0
Nixon 26 a 43 7
Ford 48 18 66 12
Carter 133 18 31 2
Reagan a? Oo 78 7
G. H.W. Bush 29 17 44 1
Clinton 36 0 36 2
G. W. Bush 6 1 7 1

Totals: 1,489 1,069 2,558 107

Source: U.S. Senate Historical Office, Senate Library; Congressional Research Ser-
vice, as of January 2008.

D | Accountability and Immunities

The president is politically accountable through the electoral process

when running for reelection and in trying to win passage of his pro-
grams by Congress. Both Houses also have the power to hold hearings
and investigate actions by the president and the executive branch. But
the president may not be removed from office (under Article I, Sec-
tion 4) except “by Impeachment for, and Conviction of, Treason,
Bribery, or other High Crimes and Misdemeanors.” (The Twenty-fifth
Amendment, however, provides an additional procedure for removing a
president who because of disability is unable to discharge the powers
and duties of his office.)
Congressional investigations of actions of the executive branch may
‘lead to confrontations, when presidents withhold information, or claim
an inherent power to withhold information as a matter of “executive
privilege” in the interests of preserving the confidentiality of White
454 | THE PRESIDENT AS Cutler EXECUTIVE IN DOMESTIC AFFAIRS

es

Richard Nixon after his resignation. (AP/Wide World Photos, Inc.)

House communications and national security.’ Since George Washing-

ton, presidents have asserted the power to deny Congress sensitive
information, dealing with treaty negotiations, for instance, military
operations, and executive branch investigations. But they have done so
with greater frequency and over a broader range of matters since World
War II. Most of the disputes arising between the president and
Congress have thus far been resolved by negotiations. The Court, how-
ever, recognizes limits to congressional investigatory powers (see Ch. 5)
and specifically that Congress “cannot inquire into matters which are
within the exclusive province of one of the other branches of Govern-
ment.”*
The Court expressly acknowledged the constitutional status of
a president’s claim of “executive privilege” in United States v. Nixon
(1974) (see excerpt below). But this case involved the assertion by Pres-
ident Richard M. Nixon of an absolute and unreviewable claim of “‘ex-
ecutive privilege” within the context of a criminal investigation, and
not a congressional hearing, by a special prosecutor assigned to investi-
gate the administration’s involvement with a break-in of the head-
quarters of the Democratic National Committee in the Watergate hotel
and its subsequent attempts to cover up the Watergate affair’ —
A number of other constitutional issues bearing on presidential ac-
 D | Accountability and Immunities | 455

countability and immunity arose due to the Watergate affair. For one,
questions persisted about whether the chief executive may be subject to
subpoenas and injunctions and what happens ifhe resists. In Mississippi
v.Johnson, 4 Wall. 162 (1875), the Court declined to issue an injunction
against the president on the grounds that if he balked, it would be
“without power to enforce its process.’ But the Nixon Court upheld
the subpoenas against the president, and he complied with its ruling.
Another question, avoided by the Court in Nixon, involves
whether the president may be subject to criminal indictment while in
office.’ Article I, Section 3, makes clear that on leaving office the presi-
dent may be indicted and subject to criminal and civil prosecutions for
actions taken while in office. After resigning, Nixon avoided further
criminal prosecution because his successor, Gerald R. Ford, granted
him “a full, free and absolute pardon . . . for all offenses against the
United States which he:. . . committed or may have committed or
taken part in during” his presidency.
Although Nixon evaded criminal prosecution after leaving of-
fice, he faced several civil suits that raised the related issue of whether
the president enjoys immunity from civil liability. Initially, a suit was
brought by Morton Halperin, a former National Security Council em-
ployee. He sued Nixon, Henry Kissinger, and several presidential aides
for maintaining wiretaps on his home telephone, even after he left
government service. In Halperin v. Kissinger, 606 F.2d 1192 (1979), the
Court of Appeals for the District of Columbia Circuit ruled that Nixon
enjoyed a qualified immunity but, along with his former aides, was sub-
ject to the suit. That ruling was left undisturbed when the Supreme
Court split four to four, with Justice Rehnquist not participating, when
reviewing its appeal in Kissinger v. Halperin, 452 U.S. 713 (1981).
In two companion cases against Nixon and former senior advisers,
the Court upheld absolute immunity for the president, but concluded
that senior aides enjoy only qualified immunity in civil liability suits. In
Nixon v, Fitzgerald, 457 U.S. 731 (1982), newly appointed Justice Sandra
Day O’Connor cast the crucial vote in deciding that the president “‘is
entitled to absolute immunity from damages liability predicated on his
official acts.”A former Pentagon employee, A. Ernest Fitzgerald, sought
damages from Nixon and several White House aides after he was fired
for publicly criticizing military cost overruns. The justices split five to
four in sustaining Nixon’s claim of absolute immunity as “a functionally
mandated incident of the President’s unique office, rooted in the con-
stitutional tradition of the separation of powers and supported by our
- history.” Yet in Harlow v, Fitzgerald, 457 U.S. 800 (1982), the companion
case brought by Fitzgerald against several White House aides involved
in his firing, the Court ruled that senior presidential advisers forfeit im-
456 | THe Presipent as Cuter EXECUTIVE IN Domestic AFFAIRS

munity if they know or should have known that their actions violate
individuals’ constitutional rights.
The impeachment proceedings against Nixon posed other impor-
tant constitutional questions. Under Article I, the House of Represen-
tatives has “the sole power of impeachment,” which it exercises by
passing, by majority vote, “articles of impeachment.” The Senate is
given “the sole power to try all impeachments.” Basically, the House
functions as a prosecutor and the Senate sits as a court in passing judg-
ment on impeachment. Article II, section 4, further specifies that the
president and other government officials may be “removed from Office
on Impeachment for, and Conviction of, Treason, Bribery, or other
high Crimes and Misdemeanors.’ Besides Nixon, impeachment pro-
ceedings have been brought against eleven federal judges—seven of
whom have been convicted—one senator and three members of the
executive branch, President Andrew Johnson in 1868 and the secretary
of war in 1876, and President Bill Clinton in 1998-1999.
A major question in Nixon’s impeachment involved the meaning of
“high crimes and misdemeanors”; specifically, whether the president
could be impeached for other than indictable criminal offenses. Nixon’s
attorneys advanced the view that impeachment requires not only “‘a
criminal offense, but one of a very serious nature, committed in one’s
governmental capacity.At ” the other extreme, Gerald Ford, as congress-
man, urged in the House of Representatives during his 1970 drive to
impeach Justice William O. Douglas that “an impeachable offense is
whatever a majority of the House of Representatives considers it to be
at a given moment in history; conviction results from whatever offense
or offenses two-thirds of the other body considers to be sufficiently se-
rious to require removal of the accused from office.” The staff and
a majority of the House Judiciary Committee ultimately took a position
midway between these two extreme views. They concluded that the vi-
olation of criminal laws was not necessary for impeachment, if the of-
fenses were nevertheless serious. In their view, “[t]o confine impeachable
conduct to indictable offenses may well be to set a standard so restrictive
as not to reach conduct that might adversely affect the system of govern-
ment. Some of the most grievous offenses against our constitutional
form of government may not entail violations of the criminal law.”
In voting three articles of impeachment against President Nixon,
the majority of the House Judiciary Committee adopted the latter po-
sition, charging the president with (1) obstruction of justice during the
Watergate cover-up; (2) abuse of presidential power by misusing the
FBI, CIA, and other governmental agencies; and (3) contempt of Con-
gress in refusing to obey the committee’s subpoenas for White House
materials (see below). ,
The unconditional pardon granted Nixon by President Gerald
 D | Accountability and Immunities | 457

Ford was controversial and elicited wide public disapproval. Article II,
Section 2, gives the president the “power to grant reprieves and pardons
for offenses against the United States, except in cases of impeachment.”
Although the constitutional convention rejected a proposal that would
have limited the pardon power to cover only individuals indicted and
convicted of criminal offenses, some lawyers challenged the constitu-
tionality of Ford’s pardon on the ground that Nixon had not been
criminally indicted (although he was named as an unindicted co-
conspirator in the Watergate cover-up).A federal district judge, in Mur-
phy v. Ford, 390 ESupp. 1372 (1975), however, upheld Ford’s pardon. In
doing so, the judge found support in the very broad language of the
Supreme Court’s opinion, in Ex parte Garland, 4 Wall. (71 U.S.) 333
(1867), that the president’s pardoning power “extends to every offense
known to the law, and may be exercised at any time after its commis-
sion, either before legal proceedings are taken, or during their pen-
dency, or after conviction and judgment [and] cannot be fettered by
legislative restrictions.”
One additional constitutional question arising in the aftermath
of Watergate and bearing on presidential accountability and immuni-
ties was settled in Nixon v.Administrator of General Services, 433 U.S. 425
(1977). Presidential papers have historically been the property of the
president, but because of the circumstances of Nixon’s resignation and
ongoing criminal investigations of his administration, Congress passed
the Presidential Recordings and Materials Preservation Act of 1974. It
authorized the General Services Administration to hold and screen
Nixon’s presidential materials, returning purely private papers to him
and making the rest available to the public. Nixon attacked the con-
stitutionality of the act for violating separation of powers, executive
privilege, and his constitutionally protected privacy rights, but the
Court rejected his claims and upheld the legislation.
The issues of accountability and immunity loomed large in the
presidency of William Jefferson Clinton. In Clinton v. Jones (1997) (ex-
cerpted below) the Court unanimously rejected President Clinton’s
claim of immunity while in the Oval Office from civil suits, specifically
a suit filed by Paula Jones, who had sought damages for alleged sexual
harassment by then-governor Clinton in 1991. That suit was subse-
quently dismissed and settled out of court. But almost a quarter of a
century after Nixon resigned rather than face impeachment, the House
of Representatives impeached Clinton. On December 11 and 12, 1998,
the House Judiciary Committee approved four articles of impeachment
' (excerpted below).A week later, on December 17, 1998, the full House
approved two of those articles. Article I impeached the president for
committing perjury and giving misleading testimony to a federal grand
jury investigating the Paula Jones case and his “‘sexual” relationship with
458 | THe PRESIDENT AS Curr EXECUTIVE IN DomeEsTIC AFFAIRS

a White House intern, Monica Lewinsky. The House also approved Ar-
ticle III, impeaching the president for obstructing justice in an effort to
delay, conceal, and cover up evidence related to the Jones lawsuit. Pres-
ident Clinton, thus, became the second president to be impeached and
to face a trial in the Senate; in February 1999, the Senate acquitted
him. In 1868, President Andrew Johnson was impeached for firing his
Secretary of War, Edwin M. Stanton, in violation of the Tenure in Of-
fice Act of 1867. That law was passed over Johnson’s veto, because he
deemed it an unconstitutional limitation on presidential powers, and
prohibited the president from removing any official appointed by him
without the consent of the Senate. Conviction in the Senate requires a
two-thirds vote and Johnson was ‘acquitted by just one vote.
Finally, in a potentially wide-ranging ruling supporting the powers
of the presidency in domestic affairs, the Court limited United States v.
Nixon (1974) in holding that confidentiality may be preserved without
invoking executive privilege in Cheney v. U.S. District Court for the Dis-
trict of Columbia, 542 U.S. 367 (2004). Shortly after taking office Presi-
dent George W. Bush appointed Vice President Dick Cheney to head
an advisory group on energy policy, the National Energy Policy De-
velopment Group (NEPDG). Subsequently, Judicial Watch and the
Sierra Club filed a suit seeking copies of all records of the individuals
who attended NEPDG meetings under the Federal Advisory Com-
mittee Act, which imposes disclosure requirements except for advisory
groups composed completely of officers and employees of the federal
government. The Judicial Watch contended that energy corporations
were so active in the NEPDG’s deliberations as to make them de facto
members. The district court agreed and the Bush administration ap-
pealed to the Court of Appeals for the District of Columbia, asking it
to vacate the decision to permit pretrial discovery of the NEPDG’s
records. The appellate court dismissed the appeal and the administra-
tion’s claim that, instead of relying on executive privilege, confidential-
ity was based on the principle of separation of powers and disclosure
would harm the presidency. That decision was appealed by the admin-
istration.
Writing for the Court, Justice Kennedy distinguished United States
v. Nixon, which rejected the claim of an absolute unreviewable claim of
executive privilege within a criminal proceeding, and the dispute in
Cheney over the pretrial discovery in a civil suit for executive branch
records. Justice Kennedy explained:

The distinction Nixon drew between criminal and civil proceedings

is not just a matter of formalism. The need for information for use
in civil cases, while far from negligible, does not share the urgency
or significance of the criminal subpoena requests in Nixon. As
 D | Accountability and Immunities | 459
ee
Nixon recognized, the right to production of relevant evidence in
civil proceedings does not have the same “constitutional dimen-
StONs.. «4
a ”

[In addition, the] discovery requests are directed to the Vice

President and other senior Government officials who served on the
NEPDG to give advice and make recommendations to the Presi-
dent. The Executive Branch, at its highest level, is seeking the aid of
the courts to protect its constitutional prerogatives. [S]pecial consid-
erations control when the Executive Branch’s interests in maintain-
ing the autonomy of its office and safeguarding the confidentiality
of its communications are implicated. This Court has held, on more
than one occasion, that “[t]he high respect that is owed to the office
of the Chief Executive ... is a matter that should inform the con-
duct of the entire proceeding, including the timing and scope of
discovery,’ Clinton [v.Jones, 520 U.S. 681 (1997)], and that the Exec-
utive’s “constitutional responsibilities and status [are] factors coun-
seling judicial deference and restraint” in the conduct of litigation
against it, Nixon v, Fitzgerald, 457 U.S. [731 (1982)]....
The observation in Nixon that production of confidential in-
formation would not disrupt the functioning of the Executive
Branch cannot be applied in a mechanistic fashion to civil litiga-
tion. In the criminal justice system, there are various constraints, al-
beit imperfect, to filter out insubstantial legal claims. . . . In contrast,
there are no adequate checks in the civil discovery process here... .
Given the breadth of the discovery requests in this case [for all
records] compared to the narrow subpoena: orders [for specific
White House tape recordings] in United States v. Nixon, our prece-
dent provides no support for the proposition that the Executive
Branch “shall bear the burden” of invoking executive privilege with
sufficient specificity and of making particularized objections. . . .
Nixon does not leave [courts] the sole option of inviting the
Executive Branch to invoke executive privilege while remaining
otherwise powerless to modify a party’s overly broad discovery re-
quests. Executive privilege is an extraordinary assertion of power
“not to be lightly invoked.” Once executive privilege is asserted,
coequal branches of the Government are set on a collision course.
The Judiciary is forced into the difficult task of balancing the need
for information in a judicial proceeding and the Executive’s Article
II prerogatives.This inquiry places courts in the awkward position
of evaluating the Executive’s claims of confidentiality and auton-
omy, and pushes to the fore difficult questions of separation of pow-
ers and checks and balances. These “occasion{s] for constitutional
confrontation between the two branches” should be avoided when-
ever possible.

The case was remanded for further proceedings. Dissenting Justices

Ginsburg and Souter maintained the lower court which could “accom-
modate separation of powers concerns” by limiting discovery at the
460 | THE PRESIDENT AS CHIEF EXECUTIVE IN Domestic AFFAIRS

government’s request. Justices Thomas and Scalia, concurring and dis-

senting in part, accepted Cheney’s argument that the Court should bar
all pretrial discovery, rather than permit the case to proceed.

NOTES

1. For an examination of the history of claims to executive privilege, see Raoul

Berger, Executive Privilege (Cambridge, MA: Harvard University Press, 1974).
2. Barenblatt v. United States, 360 U.S. 109 (1959).
3. For a further discussion of some of the constitutional issues arising out of the
Watergate affair, see Philip B. Kurland, Watergate and the Constitution (Chicago: Uni-
versity of Chicago Press, 1978).
4. See Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, MA: Har-
vard University Press, 1973); and Raoul Berger, “The President, Congress, and the
Courts—Must Impeachment Precede Indictment?” 83 Yale Law Journal 1111 (1974).
5. Gerald Ford, Congressional Record, 91st Cong., 2d sess., Apr. 15, 1970, HO12—
11913.
6. Quoted and discussed in Congressional Quarterly, 1970 CQ Almanac (Washing-
ton, DC: Congressional Quarterly, 1970), 1025.

SELECTED BIBLIOGRAPHY

Baker, Peter. Inside the Impeachment and Trial of William Jefferson Clinton. New York:
Scribner's, 2000.
Ball, Howard. “We Have a Duty”: The Supreme Court and the Watergate Tapes Litigation.
New York: Greenwood, 1990.
Berger, Raoul. Impeachment: The Constitutional Problems. Cambridge, MA: Harvard
University Press, 1973.
. Executive Privilege. Cambridge, MA: Harvard University Press, 1974.
Black, Charles. Impeachment:A Handbook. New Haven, CT: Yale University Press, 1998.
Fisher, Louis. The Politics of Executive Privilege. Durham, N.C.: Carolina Academic
Press, 2004.
Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical
Analysis. Princeton, NJ: Princeton University Press, 1996.
Kurland, Philip. Watergate and the Constitution. Chicago: University of Chicago Press,
1978.
Posner, Richard. An Affair of State: The Investigation, Impeachment, and Trial of President
Clinton. Cambridge, MA: Harvard University Press, 1999.
Rae, Nicol, and Campbell, Colton C. Impeaching Clinton: Partisan Strife on Capitol Hill.
Lawrence: University Press of Kansas, 2004.
Rozell, Mark. Executive Privilege: The Dilemma of Secrecy and Democratic Accountability.
2d ed. Lawrence: University Press of Kansas, 2000.
Sirica, John. To Set the Record Straight: The Break-in, the Tapes, the Conspirators, the Par-
don. New York: W. W. Norton, 1979.
Von Tassel, Emily Field, and Finkelman, Paul. Impeachable Offenses. Washington, De:
(CZORPressmlS 938
 D | Accountability and Immunities | 461

United States v. Nixon

418 USS. 683, 94 S.CT. 3090 (1974)

On the night of June 17, 1972, five men broke into the headquarters of
the National Democratic Party in the Watergate complex in Washing-
ton, D.C. “The plumbers,” as they were called, were caught by some
off-duty policemen, while planting bugging devices so they could mon-
itor the Democratic party’s campaign plans for the fall presidential
election. On the next day it was learned that one of them worked for
President Nixon’s reelectton committee.
Nixon and his associates managed to cover up involvement in the
break-in and won reelection. But congressional committees continued
to search for links between the break-in and the White House. At the
same time, Judge John Sirica presided over the trial of the five burglars
and pressed for full disclosure of White House involvement. In spring
1973, the Senate Select Committee on Presidential Activities of 1972
began its investigations. Nixon’s former counsel, John Dean, became
the star witness, revealing much of the president’s involvement in the
cover-up. A surprise witness, former White House aide Alexander
Butterfield, then disclosed that Nixon had tape-recorded conversations
in the Oval Office. The possibility of evidence in the tapes showing
Nixon’s direct involvement deepened the Watergate crisis.
The Senate committee and a special prosecutor, Archibald Cox,
appointed to investigate illegal activities of the White House, immedi-
ately sought a small number of the tapes. Nixon refused to relinquish
them, claiming executive privilege to withhold information that might
damage national security interests.
The special prosecutor subpoenaed Nixon’s attorneys to turn over
the tapes. When Nixon again refused, Judge Sirica ordered their release
but Nixon would still not comply. Cox appealed to the Court of Ap-
peals for the District of Columbia Circuit, whose judges urged that a
compromise be found. When none could be reached, the court ruled
that Nixon had to surrender the tapes.
After the appellate court’s ruling, Nixon announced that he would
release summaries of the relevant conversations. But Cox found the
deal unacceptable. Nixon then ordered the “Saturday Night Massacre.”
Chief of Staff Alexander Haig told Attorney General Elliot Richardson
to fire the special prosecutor. Instead, Richardson resigned, as did the
' deputy attorney general. Finally, Solicitor General Robert H. Bork be-
came the acting attorney general and fired Cox. But this unleashed a
wave of public anger and within four days Nixon told Judge Sirica that
nine tapes would be forthcoming.
 462 | THe PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

Ds

= CONSTITUTIONAL HISTORY

Unraveling the Watergate Affair

June 17, 1972—Five men are arrested in the Democratic National Commit-
tee’s headquarters in the Watergate Hotel in Washington, D.C. One,
James W. McCord, Jr., is the security director of the Committee to
Re-Elect the President. Two others, E. Howard Hunt, Jr., and Gordon
Liddy, who have White House and Nixon campaign ties, are linked to
the burglars.
September 15—A federal grand jury indicts Hunt, Liddy, and the Watergate
burglars; however, despite evidence of a wider conspiracy, the Justice
Department closes its investigation.
January 8, 1973—The Watergate burglary trial begins. Five defendants plead
guilty; Liddy and Hunt are convicted after trial.
March 19—In aletter to Judge John J. Sirica, McCord says that the defen-
dants were pressured to plead guilty, that perjury was committed, and
that others were involved.
April 30—The White House announces the resignation of Attorney General
Richard Kleindienst and presidential aides John Ehrlichman and H.R.
Haldeman, and the firing of presidential counselor John Dean.
June 25—John Dean begins testifying before the Senate Watergate Commit-
tee, revealing that the Watergate break-in was part of a White House
_ program of political espionage and that President Nixon was part of an
attempt to cover up the Watergate affair.
July 16—Alexander P. Butterfield, a former White House aide, discloses that
there is a tape recorder in the Oval Office used to record presidential
conversations.
July 26—After the president refuses to release the White House tapes,
the committee obtains subpoenas for several of the taped conversa-
tions.
October 20—The Saturday Night Massacre. The special Watergate prosecutor,
Archibald Cox, is fired by Acting Attorney General Robert H. Bork, af
ter Attorney General Elliot Richardson and Deputy Attorney General
William Ruckelshaus refuse to dismiss Cox and resign instead.
November 5—President Nixon appoints.a new special prosecutor, Leon Ja-
worski, who continues to request that the president turn over tapes of
his conversations bearing on Watergate.
March 1, 1974—Seven former presidential aides are indicted for the Water-
gate cover-up and President Nixon is named as an unindicted co-
conspirator.
May 9—The House Judiciary Committee begins impeachment proceed-
ings.

OS a a SY
 D | Accountability and Immunities | 463

epeeeeieseenconctenceeeee==geempeereeoeesgsoeeeeremeenmemens
eer eceteanceey teen
July 24—The Supreme Court rules, in United States v. Nixon, that the presi-
dent must turn over the subpoenaed White House tapes to the special
prosecutor.
July 27—The House Judiciary Committee approves an article of impeach-
ment, charging the president with obstruction ofjustice. Later two addi-
tional articles are approved.
August 5—The president releases transcripts of three conversations with
H. R. Haldeman made six days after the break-in. They reveal that he
ordered a halt to the Federal Bureau ofInvestigation’s (FBI) probe of the
Watergate break-in and cover-up to prevent discovery that his reelection
campaign committee was involved.
August 8—Amid growing public outcry calling for his removal from office,
President Nixon announces he will resign.
August 9—President Nixon resighs and Vice-President Gerald R. Ford is
sworn in as president.
September 8—President Ford pardons former President Nixon.

The release of the nine tapes served only to intensify the contro-
versy, when it was discovered that an eighteen-and-a-half-minute seg-
ment of the first conversation after the break-in had been erased. That
and other revelations prodded the House of Representatives to create a
committee to investigate the possibility of impeachment. And by Feb-
ruary 1974, the House directed its Judiciary Committee to begin hear-
ings on impeachment.
Nixon continued to refuse to give additional tapes to the Judiciary
Committee and Leon Jaworski, who had replaced Cox as special prose-
cutor. Then on March 1, 1974, the federal grand jury investigating
Watergate indicted top White House aides. It also secretly named
Nixon as an unindicted coconspirator and asked that the information
against him be turned over to the House Judiciary Committee.
The Judiciary Committee subpoenaed all documents and tapes re-
lated to Watergate, but Nixon remained adamant about his right to de-
cide what to release. Jaworski countered by asking Sirica to enforce a
subpoena for sixty-four tapes. When Nixon still would not yield, Ja-
worski appealed directly to the Supreme Court.
On May 31, 1974, the Court announced that it would grant the
appeal on an expedited basis. On July 8, during oral arguments, Ja-
worski argued that the basic issue was who is to be the arbiter of what
the Constitution says? Nixon’s claim of executive privilege in with-
holding the tapes, he insisted, placed the president above the law. Ja-
worski conceded that the Constitution might provide “for such a thing
as executive privilege.’ But what he,denied was that Nixon, or any
464 | THe Presipenr as Cuter EXECUTIVE IN DOMESTIC AFFAIRS

president, could claim an absolute, unreviewable privilege. If he had

that power, the president, not the Court, would be the supreme inter-
preter of the Constitution.
After Jaworski argued for an hour, Nixon’s attorney, James St. Clair,
asked that the case be dismissed. He argued that there was a “fusion”
between the criminal prosecution of presidential aides, on the one
hand, and the impeachment proceedings against Nixon, on the other.
Information used at the trial of the Watergate conspirators would be
turned over to Congress for use against the president. That, he claimed,
violated the principle of separation of powers. The dispute, he unsuc-
cessfully urged, “is essentially a political dispute. It is a dispute that this
Court ought not to be drawn into.”
When the justices later discussed the case in private conference, all
agreed that the Court had jurisdiction, that the case did not raise a po-
litical question, and that the case should be decided as soon as possible.
All agreed, furthermore, that Nixon’s claim of executive privilege could
not withstand scrutiny. That portion of the Court’s opinion dealing
with the claim of executive privilege is excerpted here.
The Court’s decision was unanimous; the opinion was announced
by Chief Justice Burger, with Justice Rehnquist not participating.

Chief Justice BURGER delivers the opinion of the Court.

[W]e turn to the claim that the subpoena should be quashed because it
demands “confidential conversations between a President and his close advi-
sors that it would be inconsistent with the public interest to produce.” The
first contention is a broad claim that the separation of powers doctrine pre-
cludes judicial review of a President’s claim of privilege. The second con-
tention is that if he does not prevail on the claim of absolute privilege, the
court should hold as a matter of constitutional law that the privilege prevails
over the subpoena duces tecum.
In the performance of assigned constitutional duties each branch of the
Government must initially interpret the Constitution, and the interpretation
of its powers by any branch is due great respect from the others. The Presi-
dent’s counsel, as we have noted, reads the Constitution as providing an ab-
solute privilege of confidentiality for all Presidential communications. Many
decisions of this Court, however, have unequivocally reaffirmed the hold-
ing of Marbury v. Madison, {1 Cr. 137 (1803)], that “[i]t is emphatically the
province and duty of the judicial department to say what the law is.”
Our system of government “requires that federal courts on occasion
interpret the Constitution in a manner at variance with the construction
given the document by another branch.” Powell v. McCormack, [395 U.S. 486
(1969)]. And in Baker v. Carr, [369 U.S. 186 (1962)]}, the Court stated:

“[D]eciding whether a matter has in any measure been committed

by the Constitution to another branch of government, or whether
the action of that branch exceeds whatever authority has been ~
 D | Accountability and Immunities | 465

committed, is itself a delicate exercise in constitutional interpreta-

tion, and is a responsibility of this Court as ultimate interpreter of
the Constitution.”

Notwithstanding the deference each branch must accord the others, the “ju-
dicial Power of the United States” vested in the federal courts by Art. III, § 1,
of the Constitution can no more be shared with the Executive Branch than
the Chief Executive, for example, can share with the Judiciary the veto
power, or the Congress share with the Judiciary the power to override a
Presidential veto. Any other conclusion would be contrary to the basic con-
cept of separation of powers and the checks and balances that flow from
the scheme of atripartite government. We therefore reaffirm that it is the
province and duty of this Court “to say what the law is” with respect to the
claim of privilege presented in this case. Marbury v. Madison. .. .
In support of his claim of absolute privilege, the President’s counsel
urges two grounds, one of which is common to all governments and one of
which is peculiar to our system of separation of powers. The first ground is
the valid need for protection of communications between high Government
officials and those who advise and assist them in the performance of their
manifold duties: the importance of this confidentiality is too plain to require
further discussion. Human experience teaches that those who expect public
dissemination of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the decision-
making process. Whatever the nature of the privilege of confidentiality of
Presidential communications in the exercise of Art. II powers, the privilege
can be said to derive from the supremacy of each branch within its own as-
signed area of constitutional duties. Certain powers and privileges flow from
the nature of enumerated powers; the protection of the confidentiality of
Presidential communications has similar constitutional underpinnings.
The second ground asserted by the President’s counsel in support of the
claim of absolute privilege rests on the doctrine of separation of powers.
Here it is argued that the independence of the Executive Branch within its
own sphere, Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Kil-
bourn v. Thompson, 103 U.S. 168 (1881), insulates a President from a judicial
subpoena in an ongoing criminal prosecution, and thereby protects confi-
dential Presidential communications.
However, neither the doctrine of separation of powers, nor the need for
confidentiality of high-level communications, without more, can sustain an
absolute, unqualified Presidential privilege of immunity from judicial process
under all circumstances. The President’s need for complete candor and ob-
jectivity from advisers calls for great deference from the courts. However,
when the privilege depends solely on the broad, undifferentiated claim of
public interest in the confidentiality of such conversations, a confrontation
with other values arises. Absent a claim of need to protect military, diplo-
matic, or sensitive national security secrets, we find it difficult to accept the
argument that even the very important interest in confidentiality of Presi-
dential communications is significantly diminished by production of such
material for in camera inspection with all the protection that a district court
will be obliged to provide.
The impediment that an absolute, unqualified privilege would place in
466 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS
ce

the way of the primary constitutional duty of the Judicial Branch to do jus-
tice in criminal prosecutions would plainly conflict with the function of the
courts under Art. III. In designing the structure of our Government and di-
viding and allocating the sovereign power among three co-equal branches,
the Framers of the Constitution sought to provide a comprehensive system,
but the separate powers were not intended to operate with absolute inde-
pendences.”,
To read the Art. II powers of the President as providing an absolute priv-
ilege as against a subpoena essential to enforcement of criminal statutes on
no more than a generalized claim of the public interest in confidentiality of
nonmilitary and nondiplomatic discussions would upset the constitutional
balance of “a workable government” and gravely impair the role of the
courts under Art. II.
Since we conclude that the legitimate needs of the judicial process may
outweigh Presidential privilege, it is necessary to resolve those competing in-
terests in a manner that preserves the essential functions of each branch. The
right and indeed the duty to resolve that question does not free the Judiciary
from according high respect to the representations made on behalf of the
President. United States v. Burr, [4 Cr. (8 U.S.) 470 (1807)].
The expectation of a President to the confidentiality of his conversations
and correspondence, like the claim of confidentiality of judicial deliberations,
for example, has all the values to which we accord deference for the privacy
of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Pres-
idential decisionmaking.A President and those who assist him must be free to
explore alternatives in the process of shaping policies and making decisions
and to do so in a way many would be unwilling to express except privately.
These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of Govern-
ment and inextricably rooted in the separation of powers under the Constitu-
tion. In Nixon v, Sirica, 159 U.S. App. D.C. 58 (1973), the Court of Appeals
held that such Presidential communications are “presumptively privileged”
and this position is accepted by both parties in the present litigation. We agree
with Chief Justice MARSHALL’ observation, therefore, that “[i]n no case of
this kind would a court be required to proceed against the president as against
an ordinary individual.” United States v. Burr... .
But this presumptive privilege must be considered in light of our his-
toric commitment to the rule of law. This is nowhere more profoundly
manifest than in our view that “the twofold aim [of criminal justice] is that
guilt shall not escape or innocence suffer.” Berger v. United States [295 U.S. 78
(1935)].We have elected to employ an adversary system of criminal justice in
which the parties contest all issues before a court of law. The need to de-
velop all relevant facts in the adversary system is both fundamental and com-
prehensive. The ends of criminal justice would be defeated if judgments were
to be founded on a partial or speculative presentation of the facts. The very
integrity of the judicial system and public confidence in the system depend
on full disclosure of all the facts, within the framework of the rules of evi-
dence. To ensure that justice is done, it is imperative to the function of courts
that compulsory process be available for the production of evidence needed
either by the prosecution or by the defense.
 D | Accountability and Immunities | 467

Only recently the Court restated the ancient proposition of law, albeit in
the context ofa grand jury inquiry rather than atrial.

“that ‘the public .. . has a right to every man’s evidence, except for
those persons protected by a constitutional, common-law, or statu-
tory privilege. ...”

The privileges referred to by the Court are designed to protect weighty and
legitimate competing interests. Thus, the Fifth Amendment to the Constitu-
tion provides that no man “shall be compelled in any criminal case to be a
witness against himself-’ And, generally, an attorney or a priest may not be
required to disclose what has been revealed in professional confidence. These
and other interests are recognized in law by privileges against forced dis-
closure, established in the Constitution, by statute, or at common law. What-
ever their origins, these exceptions-to the demand for every man’s evidence
are not lightly created nor expansively construed, for they are in derogation
of the search for truth.
In this case the President challenges a subpoena served on him as a third
party requiring the production of materials for use in a criminal prosecution
on the claim that he has a privilege against disclosure of confidential com-
munications. He does not place his claim of privilege on the ground they are
military or diplomatic secrets. As to these areas of Art. II duties the courts
have traditionally shown the utmost deference to presidential responsibilities.
No case of the Court, however, has extended this high degree of deference
to a President’s generalized interest in confidentiality. Nowhere in the Con-
stitution, as we have noted earlier, is there any explicit reference to a privi-
lege of confidentiality, yet to the extent this interest relates to the effective
discharge of a President’s powers, it is constitutionally based....
In this case we must weigh the importance of the general privilege of
confidentiality of presidential communications in performance of his respon-
sibilities against the inroads of such a privilege on the fair administration of
criminal justice. The interest in preserving confidentiality is weighty indeed
and entitled to great respect. However we cannot conclude that advisers will
be moved to temper the candor of their remarks by the infrequent occasions
of disclosure because of the possibility that such conversations will be called
for in the context ofa criminal prosecution.
On the other hand, the allowance of the privilege to withhold evidence
that is demonstrably relevant in a criminal trial could cut deeply into the
guarantee of the process of law and gravely impair the basic function of
the courts. A President’s acknowledged need for confidentiality in the com-
munications of his office is general in nature, whereas the constitutional
need for production of relevant evidence in a criminal proceeding is specific
and central to the fair adjudication of a particular criminal case in the ad-
ministration of justice. Without access to specific facts a criminal prosecution
may be totally frustrated. The President’s broad interest in confidentiality of
communications will not be violated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending
criminal Cases.
We conclude that when the ground for asserting privilege as to sub-
poenaed materials sought for use in a criminal trial is based only on the gen-
468 | THe Presmpent as Curer EXECUTIVE IN DOMESTIC AFFAIRS

eralized interest in confidentiality, it cannot prevail over the fundamental

demands of due process of law in the fair administration of criminal justice.
The generalized assertion of privilege must yield to the demonstrated, spe-
cific need for evidence in a pending criminal trial. We have earlier deter-
mined that the District Court did not err in authorizing the issuance of the
subpoena. If a president concludes that compliance with a subpoena would
be injurious to the public interest he may properly, as was done here, invoke
a claim of privilege on the return of the subpoena. Upon receiving a claim
of privilege from the Chief Executive, it became the further duty of the Dis-
trict Court to treat the subpoenaed material as presumptively privileged and
to require the Special Prosecutor to demonstrate that the presidential mate-
rial was “essential to the justice of the [pending criminal] case.” United States
v. Burr. Here the District Court treated the material as presumptively privi-
leged, proceeded to find that the Special Prosecutor had made asufficient
showing to rebut the presumption and ordered an in camera [“in chambers”]
examination of the subpoenaed material. On the basis of our examination of
the record we are unable to conclude that the District Court erred in order-
ing the inspection. Accordingly we affirm the order of the District Court
that subpoenaed materials be transmitted to that court. We now turn to the
important question of the District Court’s responsibilities in conducting the
in camera examination of presidential materials or communications delivered
under the compulsion of the subpoena duces tecum.
It is elementary that in camera inspection of evidence 1s always a proce-
dure calling for scrupulous protection against any release or publication of
material not found by the court, at that stage, probably admissible in evidence
and relevant to the issues of the trial for which it is sought. That being true of
an ordinary situation, it is obvious that the District Court has a very heavy re-
sponsibility to see to it that Presidential conversations, which are either not
relevant or not admissible, are accorded that high degree of respect due the
President of the United States. Chief Justice MARSHALL, sitting as a trial
judge in the Burr case was extraordinarily careful to point out that

“fijn no case of this kind would a court be required to proceed

against the president as against an ordinary individual.” .. .

MARSHALL statement cannot be read to mean in any sense that a Presi-

dent is above the law, but relates to the singularly unique role under Art. II of
a President’s communications and activities related to the performance of
duties under that Article. Moreover, a President’s communications and activ-
ities encompass a vastly wider range of sensitive material than would be true
of any “ordinary individual.” It is therefore necessary in the public interest to
afford Presidential confidentiality the greatest protection consistent with the
fair administration of justice. The need for confidentiality even as to idle
conversations with associates in which casual reference might be made
concerning political leaders within the country or foreign statesmen is too
obvious to call for further treatment. We have no doubt that the Dis-
trict Judge will at all times accord to Presidential records that high degree of
deference suggested in United States v. Burr, and will discharge his responsi-
bility to see to it that until released to the Special Prosecutor no in camera
 D | Accountability and Immunities | 469

material is revealed to anyone. This burden applies with even greater force
to excised material; once the decision is made to excise, the material is re-
stored to its privileged status and should be returned under seal to its lawful
custodian.
Since this matter came before the Court during the pendency of a
criminal prosecution, and on representations that time is of the essence, the
mandate shall issue forthwith.
Affirmed.

Articles of Impeachment against President

Richard M. Nixon Recommended by the
House Judiciary Committee

Resolved, That Richard M. Nixon, President of the United States, is im-

peached for high crimes and misdemeanors, and that the following ae of
impeachment be exhibited to the Senate:
Articles of impeachment exhibited by the House of Representatives of
the United States of America in the name of itself and of all of the people of
the United States of America, against Richard M. Nixon, President of the
United States of America, in maintenance and support of its impeachment
against him for high crimes and misdemeanors.

ARTIGEEVI

In his conduct of the office of President of the United States, Richard M.

Nixon, in violation of his constitutional oath faithfully to execute the office
of President of the United States and, to the best of his ability, preserve, pro-
tect, and defend the Constitution of the United States, and in violation of his
constitutional duty to take care that the laws be faithfully executed, has pre-
vented, obstructed, and impeded the administration of justice, in that:
On June 17, 1972, and prior thereto, agents of the Committee for the
Re-election of the President committed unlawful entry of the headquarters
of the Democratic National Committee in Washington, District of Colum-
bia, for the purpose of securing political intelligence. Subsequent thereto,
Richard M. Nixon, using the powers of his high office, engaged, personally
and through his subordinates and agents, in a course of conduct or plan de-
signed to delay, impede, and obstruct the investigation of such unlawful en-
try; to cover up, conceal and protect those responsible; and to conceal the
_existence and scope of other unlawful covert activities.
The means used to implement this course of conduct or plan included
one or more of the following:
1. Making or causing to be made false or misleading statements to law-
fully authorized investigative officers and employees of the United States;
2. Withholding relevant and material evidence or information from law-
fully authorized investigative officers and employees of the United States;
470 | THE PRESIDENT AS CHIEF EXECUTIVE IN DOMESTIC AFFAIRS

3. Approving, condoning, acquiescing in, and counseling witnesses with

respect to the giving of false or misleading statements to lawfully authorized
investigative officers and employees of the United States and false or mis-
leading testimony in duly instituted judicial and congressional proceedings;.
4. Interfering or endeavoring to interfere with the conduct of investiga-
tions by the Department of Justice of the United States, the Federal Bureau
of Investigation, the Office of Watergate Special Prosecution Force, and
Congressional committees;
5. Approving, condoning, and acquiescing in, the surreptitious payment
of substantial sums of money for the purpose of obtaining the silence or in-
fluencing the testimony of witnesses, potential witnesses or individuals who
participated in such illegal entry and other illegal activities;
6. Endeavoring to misuse the Central Intelligence Agency, an agency of
the United States;
7. Disseminating information received from officers of the Department
of Justice of the United States to subjects of investigations conducted by law-
fully authorized investigative officers and employees of the United States, for
the purpose of aiding and assisting such subjects in their attempts to avoid
criminal liability;
8. Making false or misleading public statements for the purpose of
deceiving the people of the United States into believing that a thorough
and complete investigation had been conducted with respect to allegations
of misconduct on the part of personnel of the executive branch of the
United States and personnel of the Committee for the Re-election of the
President, and that there was no involvement of such personnel in such mis-
conduct; or
9. Endeavoring to cause prospective defendants, and individuals duly
tried and convicted, to expect favored treatment and consideration in return
for their silence or false testimony, or rewarding individuals for their silence
or false testimony.
In all of this, Richard M. Nixon has acted in a manner contrary to his
trust as President and subversive of constitutional government, to the great
prejudice of the cause of law and justice and to the manifest injury of the
people of the United States.
Wherefore Richard M. Nixon, by such conduct, warrants impeachment
and trial, and removal from office.

ARTICLE I

Using the powers of the office of president of the United States, Richard M.
Nixon, in violation of his constitutional oath faithfully to execute the office
of president of the United States and, to-the best of his ability, preserve, pro-
tect and defend the Constitution of the United States, and in disregard of his
constitutional duty to take care that the laws be faithfully executed, has re-
peatedly engaged in conduct violating the constitutional rights of citizens,
impairing the due and proper administration of justice and the conduct of
lawful inquiries, or contravening the laws governing agencies of the execu-
tive branch and the purposes of these agencies.
This conduct has included one or more of the following:
1. He has, acting personally and through his subordinates and agents, en-
deavored to obtain from the Internal Revenue Service, in violation of the
 D | Accountability and Immunities | 471

constitutional rights of citizens, confidential information contained in in-

come tax returns for purposes not authorized by law and to cause, in viola-
tion of the constitutional rights of citizens, income tax audits or other
income tax investigations to be initiated or conducted in a discriminatory
manner.
2. He misused the Federal Bureau of Investigation, the Secret Service
and other executive personnel in violation or disregard of the constitutional
rights of citizens by directing or authorizing such agencies or personnel
to conduct or continue electronic surveillance or other investigations for
purposes unrelated to national security, the enforcement of laws or any
other lawful function of his office; and he did direct the concealment of
certain records made by the Federal Bureau of Investigation of electronic
surveillance.
3. He has, acting personally and through his subordinates and agents, in
violation or disregard of the constitutional rights of citizens, authorized and
permitted to be maintained asecret investigative unit within the office of the
president, financed in part with money derived from campaign contributions
to him, which unlawfully utilized the resources of the Central Intelligence
Agency, engaged in covert and unlawful activities and attempted to prejudice
the constitutional right of an accused to afair trial.
4. He has failed to take care that the laws were faithfully executed by
failing to act when he knew or had reason to know that his close subordi-
nates endeavored to impede and frustrate lawful inquiries by duly constituted
executive, judicial and legislative entities concerning the unlawful entry into
the headquarters of the Democratic National Committee and the cover-up
thereof, and concerning other unlawful activities including those relating to
the confirmation of Richard Kleindienst as attorney general of the United
States, the electronic surveillance of private citizens, the break-in into the of-
fice of Dr. Lewis Fielding and the campaign financing practices of the Com-
mittee to Re-elect the President.
5. In disregard of the rule of law, he knowingly misused the executive
power by interfering with agencies of the executive branch, including the
Federal Bureau of Investigation, the Criminal Division and the Office of
Watergate Special Prosecution Force, of the Department of Justice and the
Central Intelligence Agency, in violation of his duty to take care that the laws
be faithfully executed.
In all of this, Richard M. Nixon has acted in a manner contrary to his
trust as president and subversive of constitutional government, to the great
prejudice of the cause of law and justice and to the manifest injury of the
people of the United States.
Wherefore Richard M. Nixon, by such conduct, warrants impeachment
and trial and removal from office.

ARTICLE II

In his conduct of the office of president of the United States, Richard M.

Nixon, contrary to his oath faithfully to execute the office of president of
the United States and, to the best of his ability, preserve, protect and defend
the Constitution of the United States, and in violation of his constitutional
duty to take care that the laws be faithfully executed, has failed without law-
ful cause or excuse to produce papers and things as directed by duly author-
 472 | THE PRESIDENT AS CHIEF EXECUTIVE IN DomestTIc AFFAIRS
ae cate ee a ee

ized subpoenas issued by the Committee on the Judiciary of the House of

Representatives on April 11, 1974; May 15, 1974; May 30, 1974, and June 24,
1974, and willfully disobeyed such subpoenas.
The subpoenaed papers and things were deemed necessary by the com-
mittee in order to resolve by direct evidence fundamental, factual questions
relating to presidential direction, knowledge or approval of actions demon-
strated by other evidence to be substantial grounds for impeachment of the
president.
In refusing to produce these papers and things Richard M. Nixon sub-
stituting his judgment as to what materials were necessary for the inquiry,
interposed the powers of the presidency against the lawful subpoenas of the
House of Representatives, thereby assuming to himself functions and judg-
ments necessary to the exercise of the sole power of impeachment vested by
the Constitution in the House of Representatives.
In all of this, Richard M. Nixon has acted in a manner contrary to his
trust as president and subversive of constitutional government, to the great
prejudice of the cause of law and justice and to the manifest injury of the
people of the United States.
Wherefore, Richard M. Nixon by such conduct, warrants impeachment
and trial and removal from office.

Clinton v. Jones
520 U.S. 681, 117 S.CT. 1636 (1997)

The facts are discussed in the excerpt below. The Court’s decision was
unanimous and its opinion announced by Justice Stevens. Justice Breyer
filed a concurring opinion.

“1 Justice STEVENS delivered the opinion of the Court.

This case raises a constitutional and a prudential question concerning
the Office of the President of the United States. Respondent, a private citi-
zen, seeks to recover damages from the current occupant of that office based
on actions allegedly taken before his term began. The President submits that
in all but the most exceptional cases the Constitution requires federal courts
to defer such litigation until his term ends and that, in any event, respect for
the office warrants such a stay. Despite the force of the arguments supporting
the President’s submissions, we conclude that they must be rejected.
Petitioner, William Jefferson Clinton, was elected to the Presidency in
1992, and re-elected in 1996. His term of office expires on January 20, 2001.
In 1991 he was the Governor of the State of Arkansas. Respondent, Paula
Corbin Jones, is a resident of California. In 1991 she lived in Arkansas, and
was an employee of the Arkansas Industrial Development Commission.
On May 6, 1994, she commenced this action in the United States District
Court for the Eastern District of Arkansas by filing a complaint naming
petitioner and Danny Ferguson, a former Arkansas State Police officer, as
 D | Accountability and Immunities | 473

defendants.The complaint alleges two federal claims, and two state law claims
over which the federal court has jurisdiction because of the diverse citizenship
of the parties.
As the case comes to us, we are required to assume the truth of
the detailed—but as yet untested—factual allegations in the complaint.
Those allegations principally describe events that are said to have oc-
curred on the afternoon of May 8, 1991, during an official conference held
at the Excelsior Hotel in Little Rock, Arkansas. The Governor delivered a
speech at the conference; respondent—working as a state employee—stafted
the registration desk. She alleges that Ferguson persuaded her to leave her
desk and to visit the Governor in a business suite at the hotel, where he
made “abhorrent” sexual advances that she vehemently rejected. She further
claims that her superiors at work subsequently dealt with her in a hostile and
rude manner, and changed her duties to punish her for rejecting those ad-
vances. Finally, she alleges that after petitioner was elected President, Fergu-
son defamed her by making a statement to a reporter that implied she had
accepted petitioner’s alleged overtures, and that various persons authorized to
speak for the President publicly branded her a liar by denying that the inci-
dent had occurred... .
The District Judge denied the motion to dismiss on immunity grounds
and ruled that discovery in the case could go forward, but ordered any trial
stayed until the end of petitioner’s Presidency. Although she recognized that
a “thin majority” in Nixon v. Fitzgerald [457 U.S. 731 (1982)] had held that
“the President has absolute immunity from civil damage actions arising out
of the execution of official duties of office?’ she was not convinced that “a
President has absolute immunity from civil causes of action arising prior to
assuming the office.” She was, however, persuaded by some of the reasoning
in our opinion in Fitzgerald that deferring the trial if one were required
would be appropriate. Relying in part on the fact that respondent had failed
to bring her complaint until two days before the 3-year period of limitations
expired, she concluded that the public interest in avoiding litigation that
might hamper the President in conducting the duties of his office out-
weighed any demonstrated need for an immediate trial. . . .
Petitioner’s principal submission—that “‘in all but the most exceptional
cases,” the Constitution affords the President temporary immunity from civil
damages litigation arising out of events that occurred before he took of-
fice—cannot be sustained on the basis of precedent.
Only three sitting Presidents have been defendants in civil litigation in-
volving their actions prior to taking office. Complaints against Theodore
Roosevelt and Harry Truman had been dismissed before they took office;
the dismissals were affirmed after their respective inaugurations. Two com-
panion cases arising out of an automobile accident were filed against John F.
Kennedy in 1960 during the Presidential campaign. After taking office, he
unsuccessfully argued that his status as Commander in Chief gave him a
right to a stay under the Soldiers’ and Sailors’ Civil Relief Act of 1940. The
motion for a stay was denied by the District Court, and the matter was set-
tled out of court. Thus, none of those cases sheds any light on the constitu-
tional issue before us.
The "principal rationale for affording certain public servants immunity
from suits for money damages arising out of their official acts is inapplicable
to unofficial conduct. In cases involving prosecutors, legislators, and judges
474 | THE PRESIDENT AS CHIEF EXECUTIVE IN DomesTIc AFFAIRS

President William Jefferson Clinton. (Corbis /Bettman)

we have repeatedly explained that the immunity serves the public interest in
enabling such officials to perform their designated functions effectively with-
out fear that a particular decision may give rise to personal liability. We
explained in Ferri v. Ackerman, 444 U.S. 193 (1979): “As public servants, the
prosecutor and the judge represent the interest of society as a whole. The
conduct of their official duties may adversely affect a wide variety of differ-
ent individuals, each of whom may be a potential source of future contro-
versy. The societal interest in providing such public officials with the
maximum ability to deal fearlessly and impartially with the public at large
has long been recognized as an acceptable justification for official immunity.
The point of immunity for such officials is to forestall an atmosphere of in-
timidation that would conflict with their resolve to perform their designated
functions in a principled fashion.” That rationale provided the principal basis
 D | Accountability and Immunities | 475

for our holding that a former President of the United States was “entitled to
absolute immunity from damages liability predicated on his official acts,”
Fitzgerald. Our central concern was to avoid rendering the President “unduly
cautious in the discharge of his official duties.”
This reasoning provides no support for an immunity for unofficial con-
duct. As we explained in Fitzgerald, “the sphere of protected action must be
related closely to the immunity’s justifying purposes.” Because of the Presi-
dent’s broad responsibilities, we recognized in that case an immunity from
damages claims arising out of official acts extending to the “outer perimeter
of his authority.” But we have never suggested that the President, or any
other official, has an immunity that extends beyond the scope of any action
taken in an official capacity. ,
Moreover, when defining the scope of an immunity for acts clearly
taken within an official capacity, we have applied a functional approach: “Fre-
quently our decisions have held that an official’s absolute immunity should
extend only to acts in performance of particular functions of his office.” As
our opinions have made clear, immunities are grounded in “the nature of the
function performed, not thé identity of the actor who performed it.”
Petitioner’s effort to construct an immunity from suit for unofficial acts
grounded purely in the identity of his office is unsupported by precedent... .
Petitioner’s strongest argument supporting his immunity claim is based
on the text and structure of the Constitution. He does not contend that the
occupant of the Office of the President is “above the law,” in the sense that
his conduct is entirely immune from judicial scrutiny. The President argues
merely for a postponement of the judicial proceedings that will determine
whether he violated any law. His argument is grounded in the character of
the office that was created by Article II of the Constitution, and relies on
separation of powers principles that have structured our constitutional
arrangement since the founding.
As a starting premise, petitioner contends that he occupies a unique of-
fice with powers and responsibilities so vast and important that the public in-
terest demands that he devote his undivided time and attention to his public
duties. He submits that—given the nature of the office—the doctrine of sep-
aration of powers places limits on the authority of the Federal Judiciary to
interfere with the Executive Branch that would be transgressed by allowing
this action to proceed....
[But] the lines between the powers of the three branches are not always
neatly defined. But in this case there is no suggestion that the Federal Judi-
ciary is being asked to perform any function that might in some way be de-
scribed as “executive.” Respondent is merely asking the courts to exercise
their core Article III jurisdiction to decide cases and controversies. Whatever
the outcome of this case, there is no possibility that the decision will curtail
the scope of the official powers of the Executive Branch. The litigation of
questions that relate entirely to the unofficial conduct of the individual who
happens to be the President poses no perceptible risk of misallocation of ei-
ther judicial power or executive power.
Rather than arguing that the decision of the case will produce either an
agerandizement of judicial power or a narrowing of executive power, peti-
tioner contends that—as a by-product of an otherwise traditional exercise of
judicial power—burdens will be placed on the President that will hamper
476 | Tue Presipent as Crier EXECUTIVE IN DOMESTIC AFFAIRS

the performance of his official duties. We have recognized that “even when a
branch does not arrogate power to itself . . . the separation-of-powers doc-
trine requires that a branch not impair another in the performance of its
constitutional duties.” As a factual matter, petitioner contends that this partic-
ular case—as well as the potential additional litigation that an affirmance of
the Court of Appeals judgment might spawn—may impose an unacceptable
burden on the President’s time and energy, and thereby impair the effective
performance of his office.
Petitioner’s predictive judgment finds little support in either history or
the relatively narrow compass of the issues raised in this particular case. As
we have already noted, in the more-than-200-year history of the Republic,
only three sitting Presidents have been subjected to suits for their private ac-
tions. If the past is any indicator, it seems unlikely that a deluge of such liti-
gation will ever engulf the Presidency. As for the case at hand, if properly
managed by the District Court, it appears to us highly unlikely to occupy
any substantial amount of petitioner's time... .
In sum, “‘it is settled law that the separation-of-powers doctrine does not
bar every exercise of jurisdiction over the President of the United States.”
Fitzgerald. If the Judiciary may severely burden the Executive Branch by re-
viewing the legality of the President’s official conduct, and if it may direct
appropriate process to the President himself, it must follow that the federal
courts have power to determine the legality of his unofficial conduct. The
burden on the President’s time and energy that is a mere by-product of such
review surely cannot be considered as onerous as the direct burden imposed
by judicial review and the occasional invalidation of his official actions. We
therefore hold that the doctrine of separation of powers does not require
federal courts to stay all private actions against the President until he leaves
office.
[W]e are persuaded that it was an abuse of discretion for the District
Court to defer the trial until after the President leaves office. Such a lengthy
and categorical stay takes no account whatever of the respondent’s interest in
bringing the case to trial. The complaint was filed within the statutory limi-
tations period—albeit near the end of that period—and delaying trial would
increase the danger of prejudice resulting from the loss of evidence, includ-
ing the inability of witnesses to recall specific facts, or the possible death of a
patty... =
The Federal District Court has jurisdiction to decide this case. Like
every other citizen who properly invokes that jurisdiction, respondent has a
right to an orderly disposition of her claims. Accordingly, the judgment of
the Court of Appeals is affirmed.
It is so ordered.
 D | Accountability and Immunities | 477

Articles of Impeachment against President William

Jefferson Clinton Recommended by the House
Judiciary Committee and Approved by the
House of Representatives

On December 11 and 12, 1998, the House of Representatives Judiciary

Committee approved four articles’of impeachment. One week later, on
December 19, 1998, the full House approved two of those articles, Ar-
ticles I and III, by the following votes:
ao

Article Democrats Republicans Total

I (grand jury perjury)
For: 5 223 228
Against: 201 5 206
II (perjury in Jones case)
For: 5 200 205
Against: 201 28 229
II (obstruction of justice)
For: > 216 224
Against: 200 12 2ib2.

Article Democrats Republicans Total

IV (false statements to Congress)
For: 1 147 148
Against: 204 81 285

After a trial presided over by Chief Justice Rehnquist, on Febru-

ary 12, 1999, the Senate voted to acquit President Clinton on both
counts. The vote was:

Article Democrats Republicans Total

On Perjury
Por: 0 45 45
Against: AS 10 Sys)

Article Democrats Republicans Total

‘On Obstruction of Justice
Fou 0 50 50
Against: 45 5 50

The four articles recommended by the House Judiciary Committee

were:
478 | Tue Presipent As Cuter EXECUTIVE IN DOMESTIC AFFAIRS

Resolved that William Jefferson Clinton, President of the United States, is

impeached for high crimes and misdemeanors, and that the following articles
of impeachment be exhibited to the United States Senate:
Articles of impeachment exhibited by the House of Representatives of
the United States of America in the name of itself and of the people of the
United States of America, against William Jefferson Clinton, President of the
United States of America, in maintenance and support of its impeachment
against him for high crimes and misdemeanors.

ARTICLE I

In his conduct while President of the United States, William Jefferson Clin-
ton, in violation of his constitutional oath faithfully to execute the office of
President of the United States and, to the best of his ability, preserve, protect
and defend the Constitution of the United States, and in violation of his con-
stitutional duty to take care that the laws be faithfully executed, has willfully
corrupted and manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of justice, in that:
On Aug. 17, 1998, William Jefferson Clinton swore to tell the truth, the
whole truth and nothing but the truth before a Federal grand jury of the
United States. Contrary to that oath, William Jefferson Clinton willfully
provided perjurious, false and misleading testimony to the grand jury con-
cerning one or more of the following: (1) the nature and details of his rela-
tionship with a subordinate Government employee; (2) prior perjurious, false
and misleading testimony he gave in a Federal civil rights action brought
against him; (3) prior false and misleading statements he allowed his attorney
to make to a Federal judge in that civil rights action; and (4) his corrupt ef
forts to influence the testimony of witnesses and to impede the discovery of
evidence in that civil rights action.
In doing this, William Jefferson Clinton has undermined the integrity of
his office, has brought disrepute on the Presidency, has betrayed his trust as
President, and has acted in a manner subversive of the rule of law and justice,
to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants im-
peachment and trial and removal from office and disqualification to hold and
enjoy any office of honor, trust or profit under the United States.

ARTICLE I

In his conduct while President of the United States, William Jefferson Clinton,
in violation of his constitutional oath faithfully to execute the office of Presi-
dent of the United States and, to the best of his ability, preserve, protect and
defend the Constitution of the United States, and in violation of his constitu-
tional duty to take care that the laws be faithfully executed, has willfully cor-
rupted and manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of justice, in that:
(1) On Dec. 23, 1997, William Jefferson Clinton, in sworn answers to
written questions asked as part of a Federal civil rights action brought against
him, willfully provided perjurious, false and misleading testimony in response
to questions deemed relevant by a Federal judge concerning conduct and
proposed conduct with subordinate employees.
 D | Accountability and Immunities | 479

(2) On Jan. 17, 1998, William Jefferson Clinton swore under oath to tell
the truth, the whole truth and nothing but the truth in a deposition given as
part of a Federal civil rights action brought against him. Contrary to that
oath, William Jefferson Clinton provided perjurious, false and misleading
testimony in response to questions deemed relevant by a Federal judge
concerning the nature and details of his relationship with a subordinate
Government employee, his knowledge of that employee’s involvement and
participation in the civil rights action brought against him and his corrupt
efforts to influence the testimony of that employee.
In all of this, William Jefferson Clinton has undermined the integrity of
his office, has brought disrepute on the Presidency, has betrayed his trust as
President, and has acted in a manner subversive of the rule of law and justice,
to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants im-
peachment and trial, and removal, from office and disqualification to hold
and enjoy any office of honor, trust or profit under the United States.

ARTICLE IU

In his conduct while President of the United States, William Jefferson Clin-
ton, in violation of his constitutional oath faithfully to execute the office of
President of the United States and, to the best of his ability, preserve, protect
and defend the Constitution of the United States, and in violation of his
constitutional duty to take care that the laws be faithfully executed, has pre-
vented, obstructed and impeded the administration of justice, and has to that
end engaged personally and through his subordinates and agents, in a course
of conduct or scheme designed to delay, impede, cover up and conceal the
existence of evidence and testimony related to a Federal civil rights action
brought against him in a duly instituted judicial proceeding.
The means used to implement this course of conduct or scheme in-
cluded one or more of the following acts:
(1) On or about Dec. 17, 1997, William Jefferson Clinton corruptly en-
couraged a witness in a Federal civil rights action brought against him to ex-
ecute a sworn affidavit in that proceeding that he knew to be perjurious,
false and misleading.
(2) On or about Dec. 17, 1997, William Jefferson Clinton corruptly en-
couraged a witness in a Federal civil rights action brought against him to
give perjurious, false and misleading testimony if and when called to testify
personally in that proceeding.
(3) On or about Dec. 28, 1997, William Jefferson Clinton corruptly en-
gaged in, encouraged or supported a scheme to conceal evidence that had
been subpoenaed in a Federal civil rights action brought against him.
(4) Beginning on or about Dec. 7, 1997, and continuing through and in-
cluding Jan. 14, 1998, William Jefferson Clinton intensified and succeeded in
an effort to secure job assistance to a witness in a Federal civil rights action
brought against him in order to corruptly prevent the truthful testimony of
that witness in that proceeding at a time when the truthful testimony of that
witness would have been harmful to him.
(5) On Jan. 17, 1998, at his disposition in a Federal civil rights action
brought against him, William Jefferson Clinton corruptly allowed his attor-
ney to make false and misleading statements to a Federal judge characteriz-
480 | THE PRESIDENT AS CHIEF EXECUTIVE IN DomesTIC AFFAIRS
7ee

ing an affidavit, in order to prevent questioning deemed relevant by the

judge. Such false and misleading statements were subsequently acknowledged
by his attorney in a communication to that judge.
(6) On or about Jan. 18 and Jan. 20-21, 1998, William Jefferson Clinton
related a false and misleading account of events relevant to a Federal civil
rights action brought against him to a potential witness in that proceeding, in
order to corruptly influence the testimony of that witness.
(7) On or about Jan. 21, 23 and 26, 1998, William Jefferson Clinton
made false and misleading statements to potential witnesses in a Federal
grand jury proceeding in order to corruptly influence the testimony of
those witnesses. The false and misleading statements made by William Jeffer-
son Clinton were repeated by the witnesses to the grand jury, causing the
grand jury to receive false and misleading information.
In all of this, William Jefferson Clinton has undermined the integrity of
his office, has brought disrepute on the Presidency, has betrayed his trust as
President, and has acted in a manner subversive of the rule of law and jus-
tice, to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants im-
peachment and trial, and removal from office and disqualification to hold
and enjoy any office of honor, trust or profit under the United States.

ARTICLE IV

Using the powers and influence of the office of President of the United
States, William Jefferson Clinton, in violation of his constitutional oath faith-
fully to execute the office of President of the United States and, to the best
of his ability, preserve, protect and defend the Constitution of the United
States, and in disregard of his constitutional duty to take care that the laws be
faithfully executed, has engaged in conduct that resulted in misuse and abuse
of his high office, impaired the due and proper administration of justice and
the conduct of lawful inquiries, and contravened the authority of the legisla-
tive branch and the truth-seeking purpose of a coordinate investigative pro-
ceeding in that, as President, William Jefferson Clinton, refused and failed to
respond to certain written requests for admission and willfully made perjuri-
ous, false and misleading sworn statements in response to certain written re-
quests for admission propounded to him as part of the impeachment inquiry
vested by the Constitution in the House of Representatives and exhibited
contempt for the inquiry.
In doing this, William Jefferson Clinton has undermined the integrity of
his office, has brought disrepute on the Presidency, has betrayed his trust as
President, and has acted in a manner subversive of the rule of law and jus-
tice, to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants im-
peachment and trial, and removal from office and disqualification to hold
and enjoy any office of honor, trust or profit under the United States.
CONGRESS: MEMBERSHIP,
IMMUNITIES, AND
INVESTIGATORY POWERS

pees I of the Constitution provides that all legislative powers

“shall be vested in a Congress of the United States.” In contrast
with the general powers delegated to the president, the powers given
Congress are enumerated in considerable detail. Section 8 of the
Article lists seventeen specific powers, including the power to regulate
commerce, to coin money, to raise and support armies, and to declare
war. Congress also has the residual power of passing laws “necessary and
proper” to executing its authority. In addition, various constitutional
amendments—notably, the Thirteenth, Fourteenth, and Fifteenth
Amendments—further expand the powers of Congress.
The authority to make laws does not exhaust congressional pow-
ers, however. Congress has the implied power of investigating subjects
on which it might legislate and regulate. Both houses assume a judicial
function during impeachment proceedings, and the Senate has an exec-
utive role in ratifying treaties and consenting to the president’s nom-
ination of high government officials (see Ch. 4). If presidential and
vice-presidential candidates fail to win a majority vote in the electorial
college, the Twelfth Amendment gives both houses an electoral role in
choosing the president and vice president. Finally, ArticleV gives Con-
gress the power to propose constitutional amendments, subject to rati-
fication by three-quarters of the states.
This .chapter examines controversies that have arisen over the
structure, membership, and immunities of Congress, as well as Con-

481
482 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

gress’s investigatory and contempt powers. Chapter 6 turns to the

constitutional politics of the legislative, taxing, and spending powers of
Congress.

A | Membership and Immunities

The structure of Congress is bicameral: the Senate represents the states

and the House represents the people, based on each state’s population.
This registers a major compromise forged during the Constitutional
Convention over the interests of densely and sparsely populated states
in achieving representative government.
Each state is guaranteed two representatives in the Senate; hence,
with the addition of new states, Alaska (1959) and Hawaii (1959), the
size of the Senate has grown from 26 (two senators from each of the
thirteen original states) to 100. To ensure that the Senate represents
the interests of state governments, the Constitution originally provided
for election of senators by state legislatures. But the Seventeenth
Amendment (ratified in 1913) made direct popular vote the basis for
senatorial election.
Because representation in the House turns on population, a num-
ber of controversies have arisen over its composition. The Framers 1ni-
tially provided for sixty-five representatives, based on an estimate of the
population (or one representative for every 30,000 people in each
state). They also provided for a census within three years after the first
Congress, and every ten years thereafter, for determining the appor-
tionment of representatives. Although declining to rule on the constitu-
tional question of whether the Census clause, in Article 1, Section 2,
clause 3, mandating reapportionment after each decennial census, re-
quires an actual house-by-house count or permits adjustments based on
statistical samples, the Court held that as a matter of statutory law the
use of the latter is impermissible. Because of criticisms that the Census
Bureau undercounts children, minorities, and the poor, in 1991
Congress authorized the bureau to study how to “achieve the most
accurate population count possible.” But when the bureau proposed
supplementing the census count in 2000 with statistical adjustments,
its plans were immediately challenged by several states and Republi-
can members of the House of Representatives, who feared that the
outcome would favor Democrats and affect congressional redistricting
following the 2000 census.A bare majority, in Department of Commerce v,
U.S. House of Representatives, 525 U.S. 316 (1999), ruled that the
use of statistical samples would run afoul of the Census Act’s require-
 A | Membership and Immunities | 483

ment for an actual enumeration. However, in Utah v Evans, 536 U.S.

452 (2002), a bare majority upheld the use of a statistical measure
known as “hot-deck imputation,” which estimates data on missing
households in arriving at the final census count, and which Congress
had approved and that had been used in four previous censuses.
In establishing the basis for representation, the Framers were forced
into another compromise due to conflicting interests of Northern and
Southern states. As a result, all “free persons” and indentured servants,
plus “three-fifths of all other persons [slaves],” were to be counted. With
the ratification of the Thirteenth Amendment in 1865, slavery was
abolished and blacks were given equal weight in the apportionment of
representation. The Fourteenth Amendment (1868) formally specifies
that apportionment “among the several states [be] according to their re-
spective numbers, counting the whole number of persons in each State,
excluding Indians not taxed.”
The basis for apportioning representatives in the House was not
further specified and was left for the states and Congress to determine.
State legislatures may establish “the times, places and manner of hold-
ing elections,” but Congress may also “make or alter such regulations.”
Throughout the nineteenth century, after each census Congress passed
apportionment statutes increasing the number of representatives to
435 by 1911. Congress then froze the size of the House and created a
mechanism for the reapportionment of representatives after each census
mii1929%
Once the size of the House was frozen, controversies emerged over
the malapportionment of districts and gerrymandering—the practice
of the majority party in state legislatures to redraw district lines to en-
sure the election of incumbents and party faithful. Beginning in 1842,
Congress required the states to provide “contiguous, equal districts.”
But this requirement was omitted in the 1929 apportionment statute.
And Wood v. Broom, 287 U.S. 1 (1932), held that Congress intentionally
repealed the requirement for equal voting districts in each state.
The Court in the 1940s and 1950s took the position that mal-
apportionment of districts was a “political question” for Congress to deal
with. In Colegrove v. Green, 328 U.S. 549 (1946), for example, district
lines in Illinois had not been redrawn since 1901. As a result, the voting
strength of Chicago residents was significantly diluted in favor of rural
districts. Such reapportionment controversies, in the words of Justice
Frankfurter, constituted a “political thicket” the Court should not enter.
In Baker v. Carr (1962) (see excerpt in Ch. 2), however, a majority
of the Warren ‘Court held that the “political question” doctrine was no
longer an obstacle to cases challenging the malapportionment of state
legislative districts. Two years later, in Wesberry v. Sanders (1964) (ex-
cerpted in Ch. 8), Justice Black declared that the principle of equal
congressional districts was constitutionally mandated. In his view,
“(T]he command of Art. 1, Sec. 2, that Representatives be chosen by
the People of the several States’ means that as nearly as 1s practicable
one man’s vote in a congressional election is to be worth as much as
another’s.” Still, dissenting Justices Harlan and Stewart contended that
the Framers of the Constitution “would [not] have subscribed to the
principle of ‘one person, one vote’” and that the Court had no au-
thority “to step into every situation where the political branch may be
thought to have fallen short.”
In its reapportionment rulings, the Warren Court never addressed
the question of extending the principle of “one person one vote” from
redistricting within a state to the allocation of congressional districts
among the states. That issue was finally raised in U.S. Department of
Commerce v. Montana, 503 U.S. 442 (1992). There, the Rehnquist Court
unanimously declined to extend the principle of “one person, one
vote” to representation in the House of Representatives. In an unusual
move, the Court expedited an appeal of a three judge-district court
ruling that the 1991 apportionment of seats in the House of Represen-
tatives violated the principle of “one person, one vote.” In the lower
court’s words, “The goal of Article I, section 2 [which requires the rep-
resentatives be apportioned ‘according to their respective Numbers’ is
equal representation, not relatively equal representation.” Montana sued
over the loss of 1 of its 2 representatives, arguing that its population of
803,000 would make it the most populous congressional district in the
country; under the 1991 reapportionment scheme the average district
included 570,000 people.
Since the size of the House of Representatives is not constitution-
ally fixed and was frozen at 435, in 1941 Congress adopted a method of
reapportionment that aims at the smallest relative, rather than absolute,
differences in representation. The district court, nevertheless, held that
equal representation required a reduction in the state’s absolute, instead
of relative, difference from the theoretically ideal congressional district.
Under this method of apportioning the 435 House seats, Montana
would retain two seats, while Washington would forfeit one of its seats.
The disparity in terms of raw numbers would be smaller, although
Washington’s average congressional district would be 52 percent bigger
than Montana’s two smaller districts. Moreover, the principle of “one
person, one vote” appears impossible to enforce in this area, unless the
size of the House is increased, because the Constitution mandates both
that each state have at least one representative and that no congressional
district cut across state lines.
When reversing the lower court’s ruling in U.S. Department of Com-
 A | Membership and Immunities | 485

merce v. Montana, the Court rejected both the federal government’s

claim that the political question doctrine applied and Montana’s claim
that it was unconstitutionally denied equal representation. In dismiss-
ing the argument that the case presented a nonjusticiable political ques-
tion, Justice Stevens reaffirmed the holding in Baker v. Carr that federal
courts have jurisdiction over reapportionment controversies. When
turning then to the merits of the case, Stevens observed that

[t]he constitutional guarantee of a minimum of one Representative

for each State inexorably compels a significant departure from the
ideal [of equal representation]. In Alaska, Vermont, and Wyom-
ing, where the statewide districts are less populous than the ideal
district, every vote is'more valuable than the national average.
Moreover, the need to allocate a fixed number of indivisible
Representatives among 50 States of varying populations makes it
virtually impossible to have the same size district in any pair of
States, let alone in all 50. Accordingly, although “common sense”
supports a test requiring “a good-faith effort to achieve precise
mathematical equality” within each state, the constraints imposed
by Article I, section 2, itself make that goal illusionary for the Na-
tion as a whole.

Qualifications for membership in Congress are specified as well in

Article I. Representatives must be at least twenty-five years old, must
have been U.S. citizens for seven years, and must reside in the state from
which they are elected. Besides the residency requirement, senators
must be thirty years of age and must have been citizens for nine years.
Members in both houses are also disqualified from simultaneously
holding positions in the executive branch, although they may assume
temporary diplomatic assignments.'
Each house is authorized to judge “the elections, returns and qual-
ifications of its members.” But questions have arisen over whether duly
elected members may be denied their seats for reasons other than age,
citizenship, and residency. Both houses have occasionally had additional
requirements for membership. During the Civil War, for instance, the
Test Oath Act of 1862 required members to pledge that they would not
participate in rebellion. However, Powell v. McCormack (1969) (see ex-
cerpt below) held that members could not be excluded for reasons
other than those specified in Article I. Subsequently, Roudebush v.
Hartke, 405 U.S. 15 (1972), held that congressional authority over its
membership did not prevent Indiana from recounting the ballots cast in
a closely contested 1970 election for one of that state’s U.S. senators.
In the 1990s, a grassroots movement succeeded in persuading
twenty-three states to adopt term limits. Term limits was also a promi-
nent feature of the House Republicans’ “Contract with America” in the
1994 elections; however, in March 1995, the House defeated four dif-
ferent versions of a constitutional amendment imposing term limits. A
bare majority of the Court subsequently struck down state-imposed
term limits in U.S. Term Limits, Inc. v. Thornton (1995) (excerpted be-
low). Justice Stevens declared unconstitutional such limits on member-
ship in Congress and left no doubt that any term limitations on
members of Congress require amending the Constitution. By contrast,
Chief Justice Rehnquist and Justices O’Connor and Scalia joined Jus-
tice Thomas’s dissent, maintaining that the Constitution was silent on
the matter and that the states retained authority to add qualifications
for their representatives in Congress beyond those specified in Article I
for members’ age, citizenship, and: residency.
In response to the ruling in U.S. Term Limits, Inc. v. Thornton, a year
later Missouri amended its state constitution to require placing of the
words “Disregarded Voters’ Instruction on Term Limits” on the ballot
next to the name of an incumbent who failed to support term limits
and who ran for reelection. For candidates who are not incumbents and
refuse to vow to support term limits, the law required placing the label
“Declined to Pledge to Support Term Limits” next to their names.
Donald Gralike, a congressional candidate, challenged the constitution-
ality of the law. As in U.S. Term Limits, writing for the Court in Cook v.
Gralike, 531 U.S. 510 (2001), Justice Stevens struck down Missouri’s law
for running afoul of the Elections Clause of Article 1, Section 4, by im-
permissibly attempting to add to the qualifications for holding congres-
sional office beyond those specified for members’ age, citizenship, and
residency. Chief Justice Rehnquist and Justices Kennedy and Thomas
each filed concurring opinions.
Membership in Congress carries certain privileges and immunities.
Members “shall in all cases, except treason, felony and breach of the
peace, be privileged from arrest during their attendance at the session
of their respective houses, and in going to and returning from the same;
and for any speech or debate in either house, they shall not be ques-
tioned in any other place.’ These privileges and immunities are rooted
in the struggles between the English Parliament and the Crown that re-
sulted in certain parliamentary privileges. They are designed to prevent
harassment of representatives by the executive branch.
The speech or debate clause means that representatives may not be
held legally accountable for statements made in their official capacity.
Kilbourn v. Thompson, 103 U.S. 168 (1881), initially interpreted this pro-
tection to include “words spoken in debate” and anything “generally
done in a session of the House by one of its members in relation to the
business before it.’ However, in Gravel v. United States (1972) (see ex-
cerpt below) the Court drewa line between the “legislative business” of
 A | Membershi
ee ee ee ee p andehImmunities | 487
| BOF
representatives and their broader “political activities.” On the one hand,
Senator Mike Gravel’s reading of portions of the “Pentagon Papers,” a
classified history of America’s involvement in Vietnam, into the public
record during a Senate committee session was protected by the speech
or debate clause. On the other hand, arrangements he made to have the
papers published by a commercial publisher were deemed “not part and
parcel of the legislative process.”
The scope of “legislative business” covered by the speech or debate
clause is broad, as demonstrated by Eastland v. United States Servicemen’s
Fund (1975) (see excerpt below). There the Court upheld a Senate sub-
comunittee’s investigation, which threatened an organization’s First
Amendment freedoms of.speech, press, and right of association, by ex-
pansively reading the speech or debate clause to be a shield against ju-
dicial scrutiny and interference with legislative work.
The Court defers to; Congress on matters “within the sphere of
legitimate legislative activity,’ but continues to draw a sharp line be-
tween representatives’ “legislative business” and “political activities.” In
_ Hutchinson v. Proxmire (1979) (see excerpt below) the Court decided
that Senator William Proxmire was immune from libel suits for state-
ments made on the Senate floor and read into the Congressional
Record, but not for those in press releases, newsletters, and telephone
calls to executive agencies.
In defining the scope of protected “legislative activities,’ the Court
confronts particular difficulties in cases arising from criminal prosecu-
tions of members of Congress. United States v. Johnson, 383 U.S. 169
(1966), unanimously found that a representative, who made a speech on
the floor of the House in exchange for money, was protected against
having his speeches introduced at trial for the purpose of showing his
part in a conspiracy to defraud the government. This ruling forbidding
the use of “legislative acts or the motivation for legislative acts” in pros-
ecutions was narrowed in United States v. Brewster, 408 U.S. 501 (1972).
There the Court held that newsletters mailed to constituents and
speeches delivered outside of Congress could be used as evidence in
prosecutions for bribery and conspiracy. Bribery and a representative’s
“promise to deliver a speech, a vote, or to solicit other votes is not
‘speech or debate, ” Still, criminal prosecution of such activities re-
ane

mains difficult. For, as the Court reaffirmed in United States v. Helstoski,

442 US. 477 (1979), the speech or debate clause precludes both the use
of “legislative acts” as evidence and judicial inquiry into representatives’
“motivations” during criminal trials.’
Finally, the Court has had to grapple with whether legislative aides
and others involved in the work of Congress enjoy the same immuni-
ties as elected representatives under the speech or debate clause. Recall
 GATORY POWERS
488 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTI

ing the
that Gravel “treated as one” the senator and his aides in constru
earlier case,
protection afforded by the speech or debate clause. But an
a Sen-
Dombrowski v. Eastland, 387 U.S. 82 (1967), ruled that counsel for
tee, could
ate committee, although not the senator chairing the commit
ac-
be sued for conspiring to violate the rights of a group of political
tivists. And despite the implications of Gravel, the Court maintai ns that
legislative immunity “is less absolute, although applicable, when applied
to officers or employees of a legislative body, rather than to legislators
s of
themselves.”’” Thus in Doe v. McMillan, 412 U.S. 306 (1973), member
a congressional committee and their immediate staffs could not be sued
for issuing a report containing libelous statements about schoolchildren
in the District of Columbia whereas, other legislative personnel—in-
cluding the Government Printing Office—are not likewise protected.
In the Court’s words, legislative personnel “who participate in distribu-
tions of actionable material beyond the reasonable bounds of the leg-
islative task, enjoy no Speech or Debate immunity.”

NOTES

1. Members of Congress often hold commissions in the Armed Forces Reserves,

however. In Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), the
Court avoided deciding whether such commissions are incompatible with congres-
sional membership by denying the plaintiffs standing to raise the issue.
2. In Tenney v. Brandhove, 341 U.S. 367 (1951), legislative immunity was extended to
members of state legislatures. However, United States v. Gillock, 445 U.S. 360 (1980),
held that the speech or debate clause did not protect state legislators from federal
prosecution.

SELECTED BIBLIOGRAPHY

Balinski, Michel, and Young, H. Peyton. Fair Representation: Meeting the Ideal of One
Man, One Vote. New Haven, CT: Yale University Press, 1982.
Bushnell, Eleanore. Crimes, Follies, and Misfortunes: The Federal Impeachment Trials.
Champaign: University of Illinois Press, 1992.
Carey, John M., Niemi, Richard, and Powell, Lynda. Term Limits in the State Legisla-
tures. Ann Arbor: University of Michigan Press, 2000.
Lee, Frances E., and Oppenheimer, Bruce I. Sizing Up the Senate: The Unequal Conse-
quences of Equal Representation. Chicago: University of Chicago Press, 1999.
Volcansek, Mary. None Called forJustice: Judicial Impeachment. Champaign: University of
Illinois Press, 1993.
 ee A | Membership and Immunities | 489

Adam Clayton Powell, Jr., Representative, Democrat, is shown in Washington, DC on

Jan 11, 1945. (AP Photo)

Powell v. McCormack
395 US. 486, 89 S.CT. 1944 (1969)

Adam Clayton Powell was an influential and controversial black

congressman from Harlem, New York, elected initially in 1942 to Con-
gress. In November 1966, he won reelection, amid allegations of im-
proper use of government funds and misusing his position as chair of
the House Education and Labor Committee. But in January 1967 he
was denied his seat by a vote of the House of Representatives to ex-
clude him. Powell then ran in a special election to fill his seat and again
won reelection. He also filed a lawsuit against Speaker of the House
John McCormack and several congressional officers, seeking an injunc-
tion ordering the House to seat him. Powell contended that the House
could exclude him for no other reason than failing to meet the re-
quirements of age, citizenship, and residency set forth in Article I. A
year earlier, in Bond v. Floyd, 385 U.S. 116 (1966), the Supreme Court
-had held.that the Georgia legislature violated Julian Bond’s First
Amendment rights by refusing to seat him due to his public opposition
to the draft and the Vietnam War. Still a federal district court dismissed
490 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

Powell’s complaint, ruling that it had no jurisdiction over the dispute.

After a court of appeals affirmed that decision, Powell appealed to the
Supreme Court. It reversed, holding that federal courts have juris-
diction over suits filed by congressmen against the sergeant at arms
(who is an officer, but not an elected member of the House) and no
jurisdiction over suits brought by members against the speaker (who is
also an elected member of the House), that the issue presented was not
a “political question,” and that Powell had been unconstitutionally ex-
cluded from Congress.
The Court’s decision was seven to one, with Justice Fortas not par-
ticipating, and the majority’s opinion was announced by Chief Justice
Warren.A concurring opinion was delivered by Justice Douglas. Justice
Stewart dissented.

Chief Justice WARREN delivers the opinion of the Court.

Respondents assert that the Speech or Debate Clause of the Constitu-
tion, Art. I, Sec. 6, is an absolute bar to petitioner’s action. ...
The Speech or Debate Clause, adopted by the Constitutional Conven-
tion without debate or opposition, finds its roots in the conflict between
Parliament and the Crown culminating in the Glorious Revolution of 1688
and the English Bill of Rights of 1689. Drawing upon this history, we con-
cluded in United States v.Johnson, [383 U.S. 169 (1966)], that the purpose of
this clause was “to prevent intimidation [of legislators] by the executive and
accountability before a possibly hostile judiciary.’ Although the clause sprang
from a fear of seditious libel actions instituted by the Crown to punish un-
favorable speeches made in Parliament, we have held that it would be a “nar-
row view” to confine the protection of the Speech or Debate Clause to
words spoken in debate. Committee reports, resolutions, and the act of vot-
ing are equally covered, as are “things generally done in a session of the
House by one of its members in relation to the business before it.” . . .
Our cases make it clear that the legislative immunity created by the
Speech or Debate Clause performs an important function in representative
government. It insures that legislators are free to represent the interests of
their constituents without fear that they will be later called to task in the
courts for that representation. Thus, in Tenney v. Brandhove, [341 U.S. 367
(1951)], the Court quoted the writings of James Wilson as illuminating the
reason for legislative immunity: “In order to enable and encourage a represen-
tative of the publick to discharge his publick trust with firmness and success,
it is indispensably necessary, that he should enjoy the fullest liberty of speech,
and that he should be protected from the resentment of every one, however
powerful, to whom the exercise of that liberty may occasion offense.”
Legislative immunity does not, of course, bar all judicial review of leg-
islative acts. That issue was settled by implication as early as 1803, see Marbury
v. Madison, 1 Cranch (5 U.S.) 137 [(1803)], and expressly in Kilbourn v,
Thompson [103 U.S. 168 (1881)], the first of this Court’s cases interpreting the
reach of the Speech or Debate Clause. Challenged in Kilbourn was the con-
stitutionality of a House Resolution ordering the arrest and imprisonment of
 A | Membership and Immunities | 49x
cg ee ee
a recalcitrant witness who had refused to respond to a subpoena issued by a
House investigating committee. While holding that the Speech or Debate
Clause barred Kilbourn’s action for false imprisonment brought against sev-
eral members of the House, the Court nevertheless reached the merits of
Kilbourn’s attack and decided that, since the House had no power to punish
for contempt, Kilbourn’s imprisonment pursuant to the resolution was un-
constitutional. It therefore allowed Kilbourn to bring his false imprisonment
action against Thompson, the House’s Sergeant at Arms, who had executed
the warrant for Kilbourn’s arrest.
The Court first articulated in Kilbourn and followed in Dombrowski v.
Eastland [387 U.S. 82 (1967)], the doctrine that, although an action against a
Congressman may be barred by the Speech or Debate Clause, legislative em-
ployees who participated in the unconstitutional activity are responsible for
their acts. Despite the fact! that petitioners brought this suit against several
House employees—the Sergeant.at/Arms, the Doorkeeper and the Clerk—as
well as several Congressmen, respondents argue that Kilbourn and Dombrowski
are distinguishable. Conceding that in Kilbourn the presence of the Sergeant at
Arms and in Dombrowski the presence of a congressional subcommittee coun-
sel as defendants in the litigation allowed judicial review of the challenged
congressional action, respondents urge that both cases concerned an affirma-
tive act performed by the employee outside the House having a direct effect
upon a private Citizen. Here, they continue, the relief sought relates to actions
taken by House agents solely within the House. Alternatively, respondents
insist that Kilbourn and Dombrowski prayed for damages while petitioner
Powell asks that the Sergeant at Arms disburse funds, an assertedly greater
interference with the legislative process. We reject the proffered distinctions. .. .
Freedom of legislative activity and the purposes of the Speech or De-
bate Clause are fully protected if legislators are relieved of the burden of de-
fending themselves. In Kilbourn and Dombrowski we thus dismissed the action
against members of Congress but did not regard the Speech or Debate
Clause as a bar to reviewing the merits of the challenged congressional ac-
tion since congressional employees were also sued. Similarly, though this ac-
tion may be dismissed against the Congressmen petitioners are entitled to
maintain their action against House employees and to judicial review of the
propriety of the decision to exclude petitioner Powell... .

EXCLUSION OR EXPULSION.

The resolution excluding petitioner Powell was adopted by a vote in excess

of two-thirds of the 434 Members of Congress—307 to 116. Article I, Sec. 5,
grants the House authority to expel a member “with the Concurrence of
two thirds.” Respondents assert that the House may expel a member for any
reason whatsoever and that, since a two-thirds vote was obtained, the proce-
dure by which Powell was denied his seat in the 90th Congress should be re-
garded as an expulsion, not an exclusion... .
Although respondents repeatedly urge this Court not to speculate as to
the reasons for Powell’s exclusion, their attempt to equate exclusion with ex-
pulsion would require a similar speculation that the House would have voted
to expel Powell had it been faced with that question. Powell had not been
seated at the time House Resolution No. 278 was debated and passed. After
492 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

a motion to bring the Select Committee’s proposed resolution to an imme-

mandated
diate vote had been defeated, an amendment was offered which
Powell’s exclusion. Mr. Celler, chairman of the Select Committee, then posed
a parliamentary inquiry to determine whether a two-thirds vote was neces-
sary to pass the resolution if so amended “in the sense that it might amount
to an expulsion.” The Speaker replied that “action by a majority vote would
be in accordance with the rules”” Had the amendment been regarded as an
attempt to expel Powell, a two-thirds vote would have been constitutionally
required. The Speaker ruled that the House was voting to exclude Powell,
and we will not speculate what the result might have been if Powell had
been seated and expulsion proceedings subsequently instituted. .. .
[Under] Art. I, Sec. 5, we necessarily must determine the meaning of the
phrase to “be the Judge of the Qualifications of its own Members.” Peti-
tioners argue that the records of the debates during the Constitutional Con-
vention: available commentary from the post-Convention, pre-ratification
period; and early congressional applications of Art. 1, Sec. 5, support their
construction of the section. Respondents insist, however, that a careful exam-
ination of the pre-Convention practices of the English Parliament and
American colonial assemblies demonstrates that by 1787, a legislature’s power
to judge the qualifications of its members was generally understood to en-
compass exclusion or expulsion on the ground that an individual’s character
or past conduct rendered him unfit to serve. When the Constitution and the
debates over its adoption are thus viewed in historical perspective, argue re-
spondents, it becomes clear that the “qualifications” expressly set forth in the
Constitution were not meant to limit the long-recognized legislative power
to exclude or expel at will, but merely to establish “standing incapacities,”
which could be altered only by a constitutional amendment. Our examina-
tion of the relevant historical materials leads us to the conclusion that peti-
tioners are correct and that the Constitution leaves the House without
authority to exclude any person, duly elected by his constituents, who meets
all the requirements for membership expressly prescribed in the Constitu-
tion). .
Relying heavily on Charles Warren’s analysis of the Convention debates,
petitioners argue that the proceedings manifest the Framers’ unequivocal
intention to deny either branch of Congress the authority to add to or
otherwise vary the membership qualifications expressly set forth in the
Constitution. We do not completely agree, for the debates are subject to
other interpretations. However, we have concluded that the records of the
debates, viewed in the context of the bitter struggle for the right to freely
choose representatives which had recently concluded in England and in light
of the distinction the Framers made between the power to expel and the
power to exclude, indicate that petitioners’ ultimate conclusion is correct.
The Convention opened in late May 1787. By the end of July, the dele-
gates adopted, with a minimum of debate, age requirements for membership
in both the Senate and the House. The Convention then appointed a Com-
mittee of Detail to draft a constitution incorporating these and other resolu-
tions adopted during the preceding months. Two days after the Committee
was appointed, George Mason of Virginia, moved that the Committee con-
sider a clause “ ‘requiring certain qualifications of landed property & citizen-
ship’ ” and disqualifying from membership in Congress persons who had
 A | Membership and Immunities | 493

unsettled accounts or who were indebted to the United States. A vigorous

debate ensued. Charles Pinckney and General Charles C. Pinckney both of
South Carolina, moved to extend these incapacities to both the judicial and
executive branches of the new government. But John Dickinson, of
Delaware, opposed the inclusion of any statement of qualifications in the
Constitution. He argued that it would be “impossible to make a compleat
one, and a partial one would by implication tie up the hands of the Legisla-
ture from supplying the omissions.” Dickinson’s argument was rejected; and,
after eliminating the disqualification of debtors and the limitation to
“landed” property, the Convention adopted Mason’s proposal to instruct the
Committee of Detail to draft a property qualification. . . .
The Committee reported in early August, proposing no change in the
age requirement; however, it did recommend adding citizenship and resi-
dency requirements for membership. After first debating what the precise re-
quirements should be, on August 8, 1787, the delegates unanimously adopted
the three qualifications embodied in Art. I, Sec. 2....
On August 10, the Convention considered the Committee of Detail’s
proposal that the “Legislature of the United States shall have authority to es-
tablish such uniform qualifications of the members of each House, with re-
gard to property, as to the said Legislature shall seem expedient.” The debate
_ on this proposal discloses much about the views of the Framers on the issue
of qualifications. For example, James Madison urged its rejection, stating that
the proposal would vest
“an improper & dangerous power in the Legislature. The qualifica-
tions of electors and elected were fundamental articles in a Repub-
lican Govt. and ought to be fixed by the Constitution. If the
Legislature could regulate those of either, it can by degrees subvert
the Constitution. A Republic may be converted into an aristocracy
or oligarchy as well by limiting the number capable of being
elected, as the number authorised to elect... . It was a power also,
which might be made subservient to the views of one faction agst.
another. Qualifications founded on artificial distinctions may be de-
vised, by the stronger in order to keep out partizans of [a weaker]
faction.”

Significantly, Madison’s argument was not aimed at the imposition of a prop-

erty qualification as such, but rather at the delegation to the Congress of the
discretionary power to establish any qualifications. . . .
The debates at the state conventions also demonstrate the Framers’
understanding that the qualifications for members of Congress had been
fixed in the Constitution. Before the New York convention, for example,
Hamilton emphasized: “[T]he true principle of a republic is, that the people
should choose whom they please to govern them. Representation is imper-
fect in proportion as the current of popular favor is checked. This great
source of free government, popular election, should be perfectly pure, and
the most unbounded liberty allowed.” In Virginia, where the Federalists faced
powerful opposition by advocates of popular democracy, Wilson Carey
' Nicholas, a future member of both the House and Senate and later Governor
of the State, met the arguments that the new Constitution violated demo-
cratic principles with the following interpretation ofArt. I, Sec. 2, cl. 2, as it
494 | Concress: MEMBERSHIP, IMMUNITIES , AND INVESTIGATORY POWERS
er ora a ee

respects the qualifications of the elected: “It has ever been considered a great
security to liberty, that very few should be excluded from the right of being
chosen to the legislature. This Constitution has amply attended to this idea.
We find no qualifications required except those of age and residence, which
create a certainty of their judgment being matured, and of being attached to
their state.” In short, both the intention of the Framers, to the extent it can
be determined, and an examination of the basic principles of our democratic
system persuade us that the Constitution does not vest in the Congress a dis-
cretionary power to deny membership by a majority vote. ...
Therefore, we hold that, since Adam Clayton Powell, Jr., was duly
elected by the voters of the 18th Congressional District of New York and
was not ineligible to serve under any provision of the Constitution, the
House was without power to exclude him from its membership. .. .

Justice DOUGLAS, concurring.

While I join the opinion of the Court, I add a few words. As the Court
says, the important constitutional question is whether the Congress has the
power to deviate from or alter the qualifications for membership as a Repre-
sentative contained in Art. I, Sec. 2, cl. 2, of the Constitution. Up to now the
understanding has been quite clear to the effect that such authority does not
exist. “Each House shall be the Judge of the Elections, Returns and Qualifi-
cations of its own Members. . . .” Contests may arise over whether an elected
official meets the “qualifications” of the Constitution, in which event the
House is the sole judge. But the House is not the sole judge when “qualifi-
cations” are added which are not specified in the Constitution. ...
At the root ... is the basic integrity of the electoral process. Today we
proclaim the constitutional principle of ““one man, one vote.” When that
principle is followed and the electors choose a person who is repulsive to the
Establishment in Congress, by what constitutional authority can that group
of electors be disenfranchised?

U.S. Term Limits, Inc. v. Thornton

514 U.S. 779, 115 S.CT. 1842 (1995)

In 1992 Arkansas voters approved Amendment 73 to their state consti-

tution and imposed term limits on three categories of elected officials.
Section 1 provides that no elected official in the executive branch of
the state government may serve for more than two terms. Section 2
provides that no member of the state house of representatives may serve
for more than three two-year terms and no state senator may serve for
more than two four-year terms. Section 3 further specified that state
representatives to the U.S. House of Representatives may not be certi-
fied as candidates or be eligible for having their names placed on the
ballot after having served for three or more terms. That section similarly
 A | Membership and Immunities | 495

limited candidates from running for the U.S. Senate after they served
two or more terms there.
Within weeks of the adoption of Arkansas’s term-limitation
amendment, the League of Women Voters sought a declaratory judg-
ment that Section 3 was an unconstitutional additional qualification
under Article 1 of the U.S. Constitution. A state lower court and the
Arkansas state supreme court agreed, whereupon U.S. Term Limits,
Inc., an organization advocating term limits for elected officials, ap-
pealed to the Supreme Court.
The Court’s decision was five to four and the majority’s opinion
was announced by Justice Stevens. Justice Kennedy filed a concurring
opinion. Justice Thomas filed a dissenting opinion, joined by Chief Jus-
tice Rehnquist and Justices O’Connor and Scalia.

Justice STEVENS delivered the opinion of the Court.

The Constitution sets forth qualifications for membership in the Con-
gress of the United States. Article I, Sec. 2, cl. 2, which applies to the House
of Representatives, provides: “No Person shall be a Representative who shall
not have attained to the Age of twenty five Years, and been seven Years a Cit-
izen of the United States, and who shall not, when elected, be an Inhabitant
of that State in which he shall be chosen.” Article I, Sec. 3, cl. 3, which ap-
plies to the Senate, similarly provides: “No Person shall be a Senator who
shall not have attained to the Age of thirty Years, and been nine Years a Citi-
zen of the United States, and who shall not, when elected, be an Inhabitant
of that State for which he shall be chosen.”
Today’s cases present a challenge to an amendment to the Arkansas State
Constitution that prohibits the name of an otherwise-eligible candidate for
Congress from appearing on the general election ballot if that candidate has
already served three terms in the House of Representatives or two terms in
the Senate. The Arkansas Supreme Court held that the amendment violates
the Federal Constitution. We agree with that holding. Such a state-imposed
restriction is contrary to the “fundamental principle of our representative
democracy,’ embodied in the Constitution, that “the people should choose
whom they please to govern them.” Powell v. McCormack, 395 U.S. 486
(1969). Allowing individual States to adopt their own qualifications for con-
gressional service would be inconsistent with the Framers’ vision of a uni-
form National Legislature representing the people of the United States. If
the qualifications set forth in the text of the Constitution are to be changed,
that text must be amended. ...
Twenty-six years ago, in Powell v. McCormack, we reviewed the history
and text of the Qualifications Clauses in a case involving an attempted ex-
clusion of a duly elected Member of Congress. The principal issue was
whether the power granted to each House in Art. I, Sec. 5, to judge the
“Qualifications of its own Members” includes the power to impose qualifi-
cations other than those set forth in the text of the Constitution. In an opin-
ion by Chief Justice WARREN for eight Members of the Court, we held
that it does not....
 496 | ConcGress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS
Sea CPP INS! Te ia OO Teae Se ee ee

We started our analysis in Powell by examining the British experience

with qualifications for membership in Parliament, focusing in particular on
the experience of John Wilkes. While serving as a member of Parliament,
Wilkes had published an attack on a peace treaty with France. This literary
endeavor earned Wilkes a conviction for seditious libel and a 22-month
prison sentence. In addition, Parliament declared Wilkes ineligible for
membership and ordered him expelled. Despite (or perhaps because of)
these difficulties, Wilkes was reelected several times. Parliament, however,
persisted in its refusal to seat him. After several years of Wilkes’ efforts, the
House of Commons voted to expunge the resolutions that had expelled
Wilkes and had declared him ineligible, labeling those prior actions “subver-
sive of the rights of the whole body of electors of this kingdom.” After re-
viewing Wilkes’ “long and bitter struggle for the right of the British
electorate to be represented by men of their own choice,’ we concluded in
Powell that “on the eve of the Constitutional Convention, English precedent
stood for the proposition that ‘the law of the land had regulated the qualifi-
cations of members to serve in parliament’ and those qualifications were ‘not
occasional but fixed’ ”
Against this historical background, we viewed the Convention debates
as manifesting the Framers’ intent that the qualifications in the Constitution
be fixed and exclusive. We found particularly revealing the debate concern-
ing a proposal made by the Committee of Detail that would have given
Congress the power to add property qualifications. James Madison argued
that such a power would vest “ ‘an improper & dangerous power in the Leg-
islature? ” by which the Legislature “ “can by degrees subvert the Constitu-
TONS
We also recognized in Powell that the post-Convention ratification de-
bates confirmed that the Framers understood the qualifications in the Con-
stitution to be fixed and unalterable by Congress. ... Moreover, we reviewed
the debates at the state conventions and found that they “also demonstrate
the Framers’ understanding that the qualifications for members of Congress
had been fixed in the Constitution.”
The exercise by Congress of its power to judge the qualifications of
its Members further confirmed this understanding. We concluded that,
during the first 100 years of its existence, “Congress strictly limited its
power to judge the qualifications of its members to those enumerated in the
Constitution.”
As this elaborate summary reveals, our historical analysis in Powell was
both detailed and persuasive.
We thus conclude now, as we did in Powell, that
history shows that, with respect to Congress, the Framers intended the Con-
stitution to establish fixed qualifications... .
Our reaffirmation of Powell, does not necessarily resolve the specific
questions presented in these cases. For petitioners argue that whatever the
constitutionality of additional qualifications for membership imposed by
Congress, the historical and textual materials discussed in Powell do not sup-
port the conclusion that the Constitution prohibits additional qualifications
imposed by States. In the absence of such a constitutional prohibition, peti-
tioners argue, the Tenth Amendment and the principle of reserved power
require that States be allowed to add such qualifications. . . . j
Contrary to petitioners’ assertions, the power to add qualifications is not
 A | Membership and Immunities | 497

part of the original powers of sovereignty that the Tenth Amendment re-
served to the States. Petitioners’ Tenth Amendment argument misconceives
the nature of the right at issue because that Amendment could only “re-
serve” that which existed before. As Justice STORY recognized, “the states
can exercise no powers whatsoever, which exclusively spring out of the exis-
tence of the national government, which the constitution does not delegate
to them. ... No state can say, that it has reserved, what it never possessed.”
Justice STORY’s position thus echoes that of Chief Justice MARSHALL in
McCulloch v. Maryland, 17 U.S. 316 (1819). In McCulloch, the Court rejected
the argument that the Constitution’s silence on the subject of state power
to tax corporations chartered by Congress implies that the States have “‘re-
served” power to tax such federal instrumentalities. . . .
With respect to setting qualifications for service in Congress, no such
right existed before the Gonstitution was ratified. The contrary argument
overlooks the revolutionary character of the government that the Framers
conceived. Prior to the adoption of the Constitution, the States had joined
together under the Articles of Confederation. In that system, “the States re-
tained most of their sovereignty, like independent nations bound together
only by treaties.” Wesberry v. Sanders, 376 U.S. 1 (1964). After the Constitu-
tional Convention convened, the Framers were presented with, and eventu-
ally adopted a variation of, “a plan not merely to amend the Articles of
Confederation but to create an entirely new National Government with a
National Executive, National Judiciary, and a National Legislature.” In adopt-
ing that plan, the Framers envisioned a uniform national system, rejecting the
notion that the Nation was a collection of States, and instead creating a di-
rect link between the National Government and the people of the United
States. In that National Government, representatives owe primary allegiance
not to the people of a State, but to the people of the Nation....
Two other sections of the Constitution further support our view of the
Framers’ vision. First, consistent with STORY’s view, the Constitution pro-
vides that the salaries of representatives should “be ascertained by Law, and
paid out of the Treasury of the United States,” Art. I, Sec. 6, rather than by in-
dividual States. The salary provisions reflect the view that representatives owe
their allegiance to the people, and not to States. Second, the provisions gov-
erning elections reveal the Framers’ understanding that powers over the elec-
tion of federal officers had to be delegated to, rather than reserved by, the
States. It is surely no coincidence that the context of federal elections pro-
vides one of the few areas in which the Constitution expressly requires ac-
tion by the States, namely that “the Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State
by the legislature thereof.” This duty parallels the duty under Article II that
“Each State shall appoint, in such Manner as the Legislature thereof may di-
rect, a Number of Electors.” Art. II, Sec. 1, cl. 2. These Clauses are express
delegations of power to the States to act with respect to federal elections.
This conclusion is consistent with our previous recognition that, in cer-
tain limited contexts, the power to regulate the incidents of the federal sys-
tem is not a reserved power of the States, but rather is delegated by the
Constitution. .. .
We find further evidence of the Framers’ intent in Art. 1, Sec. 5, cl. 1,
which provides: “Each House shall be the Judge of the Elections, Returns
498 | ConcRESS: MEMBERSHIP, IMMUNITIES, AND _INVESTIGATORY POWERS

and Qualifications of its own Members.” That Art. I, Sec. 5 vests a federal tri-
bunal with ultimate authority to judge a Member’s qualifications is fully
consistent with the understanding that those qualifications are fixed in the
Federal Constitution, but not with the understanding that they can be al-
tered by the States. If the States had the right to prescribe additional qualifi-
cations—such as property, educational, or professional qualifications—for
their own representatives, state law would provide the standard for judging a
Member's eligibility. As we concluded in Murdock v. Memphis, 87 U.S. 590
(1875), federal questions are generally answered finally by federal tribunals
because rights which depend on federal law “should be the same every-
where” and “their construction should be uniform.” . . . The Constitution’s
provision for each House to be the judge of its own qualifications thus pro-
vides further evidence that the Framers believed that the primary source of
those qualifications would be federal law. . . .
Our conclusion that States lack the power to impose qualifications vin-
dicates the same “fundamental principle of our representative democracy”
that we recognized in Powell, namely that “the people should choose whom
they please to govern them.” As we noted earlier, the Powell Court recog-
nized that an egalitarian ideal—that election to the National Legislature
should be open to all people of merit—provided acritical foundation for the
Constitutional structure... .
Similarly, we believe that state-imposed qualifications, as much as con-
gressionally imposed qualifications, would undermine the second critical
idea recognized in Powell: that an aspect of sovereignty is the right of the
people to vote for whom theywish. Again, the source of the qualification is
of little moment in assessing the qualification’s restrictive impact.
Finally, state-imposed restrictions, unlike the congressionally imposed
restrictions at issue in Powell, violate a third idea central to this basic princi-
ple: that the right to choose representatives belongs not to the States, but to
the people. From the start, the Framers recognized that the “great and radical
vice” of the Articles of Confederation was “the principle of LEGISLATION
for STATES or GOVERNMENTS, in their CORPORATE or COLLEC-
TIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS
of whom they consist.” The Federalist No. 15 (Hamilton). Thus the Framers,
in perhaps their most important contribution, conceived of a Federal
Government directly responsible to the people, possessed of direct power
over the people, and chosen directly, not by States, but by the people. The
Framers implemented this ideal most clearly in the provision, extant from
the beginning of the Republic, that calls for the Members of the House of
Representatives to be “chosen every second Year by the People of the several
States.” Art. I, Sec. 2, cl. 1. Following the adoption of the 17th Amendment in
1913, this ideal was extended to elections for the Senate. The Congress of the
United States, therefore, is not a confederation of nations in which separate
sovereigns are represented by appointed delegates, but is instead a body com-
posed of representatives of the people... .
Petitioners argue that, even if States may not add qualifications, Amend-
ment 73 is constitutional because it is not such a qualification, and because
Amendment 73 is a permissible exercise of state power to regulate the
“Times, Places and Manner of Holding Elections.” We reject these con-
tentions.
 A | Membership and Immunities | 499

Unlike Sections 1 and 2 of Amendment 73, which create absolute bars

to service for long-term incumbents running for state office, Section 3
merely provides that certain Senators and Representatives shall not be certi-
fied as candidates and shall not have their names appear on theballot. They
may run as write-in candidates and, if elected, they may serve. Petitioners
contend that only a legal bar to service creates an impermissible qualifica-
tion, and that Amendment 73 is therefore consistent with the Constitu-
toni Ast:
The merits of term limits, or “rotation,” have been the subject of debate
since the formation of our Constitution, when the Framers unanimously re-
jected a proposal to add such limits to the Constitution. The cogent argu-
ments on both sides of the question that were articulated during the process
of ratification largely retain their force today. Over half the States have
adopted measures that impose such limits on some offices either directly or
indirectly, and the Nation as a whole, notably by constitutional amendment,
has imposed a limit on the number of terms that the President may serve.
Term limits, like any other qualification for office, unquestionably restrict the
ability of voters to vote for whom they wish. On the other hand, such limits
may provide for the infusion of fresh ideas and new perspectives, and may
decrease the likelihood that representatives will lose touch with their con-
stituents. It is not our province to resolve this longstanding debate.
We are, however, firmly convinced that allowing the several States to
adopt term limits for congressional service would effect a fundamental
change in the constitutional framework. Any such change must come not by
legislation adopted either by Congress or by an individual State, but rather—
as have other important changes in the electoral process—through the
Amendment procedures set forth in ArticleV.The Framers decided that the
qualifications for service in the Congress of the United States be fixed in
the Constitution and be uniform throughout the Nation. That decision re-
flects the Framers’ understanding that Members of Congress are chosen by
separate constituencies, but that they become, when elected, servants of the
people of the United States. They are not merely delegates appointed by sep-
arate, sovereign States; they occupy offices that are integral and essential
components of a single National Government. In the absence of a properly
passed constitutional amendment, allowing individual States to craft their
own qualifications for Congress would thus erode the structure envisioned
by the Framers, a structure that was designed, in the words of the Preamble
to our Constitution, to form a “more perfect Union.”
The judgment is affirmed.

“) Justice THOMAS, with whom the CHIEF JUSTICE, Justice

O’CONNOR, and Justice SCALIA join, dissenting.
I dissent. Nothing in the Constitution deprives the people of each State
of the power to prescribe eligibility requirements for the candidates who
seek to represent them in Congress. The Constitution is simply silent on this
question. And where the Constitution is silent, it raises no bar to action by
the States*or the people. ...
Our system of government rests on one overriding principle: all power
stems from the consent of the people. To phrase the principle in this way,
500 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

however, is to be imprecise about something important to the notion of “re-

served” powers. The ultimate source of the Constitution’s authority is the
consent of the people of each individual State, not the consent of the un-
differentiated people of the Nation as a whole.
The ratification procedure erected by Article VII makes this point clear.
The Constitution took effect once it had been ratified by the people gath-
ered in convention in nine different States. But the Constitution went into
effect only “between the States so ratifying the same,” Art. VII; it did not bind
the people of North Carolina until they had accepted it.
When they adopted the Federal Constitution, of course, the people of
each State surrendered some of their authority to the United States (and
hence to entities accountable to the people of other States as well as to
themselves). They affirmatively deprived their States of certain powers, see,
e.g., Art. I, Sec. 10, and they affirmatively conferred certain powers upon the
Federal Government, see, e.g., Art. I, Sec. 8. Because the people of the several
States are the only true source of power, however, the Federal Government
enjoys no authority beyond what the Constitution confers: the Federal
Government’s powers are limited and enumerated. .. .
In each State, the remainder of the people’s powers—“the powers not
delegated to the United States by the Constitution, nor prohibited by it to
the States,’ Amdt. 10—are either delegated to the state government or re-
tained by the people. The Federal Constitution does not specify which of
these two possibilities obtains; it is up to the various state constitutions to de-
clare which powers the people of each State have delegated to their state
government. As far as the Federal Constitution is concerned, then, the States
can exercise all powers that the Constitution does not withhold from them.
The Federal Government and the States thus face different default rules:
where the Constitution is silent about the exercise of a particular power—
that is, where the Constitution does not speak either expressly or by neces-
sary implication—the Federal Government lacks that power and the States
enjoy it.
These basic principles are enshrined in the Tenth Amendment, which
declares that all powers neither delegated to the Federal Government nor
prohibited to the States “are reserved to the States respectively, or to the peo-
ple.” With this careful last phrase, the Amendment avoids taking any position
on the division of power between the state governments and the people of
the States: it is up to the people of each State to determine which “reserved”
powers their state government may exercise. But the Amendment does make
clear that powers reside at the state level except where the Constitution re-
moves them from that level. All powers that the Constitution neither dele-
gates to the Federal Government nor prohibits to the States are controlled by
the people of each State. ...
The majority is therefore quite wrong to conclude that the people of
the States cannot authorize their state governments to exercise any powers
that were unknown to the States when the Federal Constitution was drafted.
Indeed, the majority’s position frustrates the apparent purpose of the
Amendment’s final phrase. The Amendment does not preempt any limita-
tions on state power found in the state constitutions, as it might have done if
it simply had said that the powers not delegated to the Federal Government
are reserved to the States. But the Amendment also does not prevent the
 A | Membership and Immunities | 501

people of the States from amending their state constitutions to remove limi-
tations that were in effect when the Federal Constitution and the Bill of
Rights were ratified... .
The majority settles on “the Qualifications Clauses” as the constitutional
provisions that Amendment 73 violates. Because I do not read those provi-
sions to impose any unstated prohibitions on the States, it is unnecessary for
me to decide whether the majority is correct to identify Arkansas’ ballot-
access restriction with laws fixing true term limits or otherwise prescribing
“qualifications” for congressional office. . . . [T]he Qualifications Clauses are
merely straightforward recitations of the minimum eligibility requirements
that the Framers thought it essential for every Member of Congress to meet.
They restrict state power only in that they prevent the States from abolishing
all eligibility requirements for membership in Congress.
Because the text of the Qualifications Clauses does not support its posi-
tion, the majority turns instead to its vision of the democratic principles that
animated the Framers. But the majority’s analysis goes to a question that is
not before us: whether Congress has the power to prescribe qualifications for
its own members. . . . [T]he democratic principles that contributed to the
Framers’ decision to withhold this power from Congress do not prove that
the Framers also deprived the people of the States of their reserved authority
to set eligibility requirements for their own representatives... .
To the extent that they bear on this case, the records of the Philadelphia
Convention affirmatively support my unwillingness to find hidden meaning
in the Qualifications Clauses, while the surviving records from the ratifica-
tion debates help neither side. As for the postratification period, five States
supplemented the constitutional disqualifications in their very first election
laws. The historical evidence thus refutes any notion that the Qualifications
Clauses were generally understood to be exclusive. Yet the majority must es-
tablish just such an understanding in order to justify its position that the
Clauses impose unstated prohibitions on the States and the people. In my
view, the historical evidence is simply inadequate to warrant the majority’s
conclusion that the Qualifications Clauses mean anything more than what
they say....
[T]oday’s decision reads the Qualifications Clauses to impose substantial
implicit prohibitions on the States and the people of the States. I would not
draw such an expansive negative inference from the fact that the Constitu-
tion requires Members of Congress to be a certain age, to be inhabitants of
the States that they represent, and to have been United States citizens for a
specified period. Rather, I would read the Qualifications Clauses to do no
more than what they say. I respectfully dissent.
502 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

Gravel v. United States

408 U.S. 606, 92 S.CT. 2614 (1972)

On the morning of June 29, 1971, the Supreme Court ruled, in New
York Times Co. v. United States, 403 U.S. 713 (1971) (see excerpt in
Vol. 1, Ch. 4), that the Nixon administration could not enjoin the pub-
lication of a stolen, top-secret history of America’s involvement in the
Vietnam War, known as the “Pentagon Papers.’ That evening, to give
the “Pentagon Papers” wider circulation, Alaska’s Senator Mike Gravel
convened his Subcommittee on Public Buildings and Grounds. He read
summaries of the papers and later entered all forty-seven volumes of
the study into public record as an exhibit. In addition, he arranged to
have the papers published (without profit for himself) by a private com-
mercial publisher, the Beacon Press. Subsequently, a federal grand jury
investigating the release of the “Pentagon Papers” subpoenaed Gravel’s
aide, Leonard Rodberg. Gravel and Rodberg moved to quash the sub-
poena based on the privileges afforded by the speech or debate clause.A
court of appeals issued an order barring the grand jury’s inquiry into
Gravel’s and Rodberg’s motives and actions in entering the “Pentagon
Papers” into public record and arranging for their publication by a pri-
vate publisher. But it held that the publisher was not exempt from the
grand jury’s inquiry. Both Gravel and the government appealed to the
Supreme Court. Gravel claimed that his arrangements to have the papers
privately published were protected by the speech or debate clause, while
the government maintained that they and the activities of Gravel’s aide
were not shielded from the grand jury’s investigation.
The Court’s decision was five to four, and the majority’s opinion
announced by Justice Blackmun was written by Justice White. Dissents
were by Justices Douglas, Brennan, joined by Justice Marshall, and
Stewart.

— Justice BLACKMUN delivers the opinion of the Court by Justice

WHITE.

Because the claim is that a Member’s aide shares the Member’s constitu-
tional privilege, we consider first whether and to what extent Senator Gravel
himself is exempt from process or inquiry by a grand jury investigating the
commission of a crime. Our frame of reference is Art. I, Sec. 6, cl. 1, of the
Constitution.The last sentence of the Clause provides Members of Congress
with two distinct privileges. Except in cases of “Treason, Felony and Breach
of the Peace,’ the Clause shields Members from arrest while attending or
 A | Membership and Immunities | 503

traveling to and fromasession of their House. History reveals, and prior cases
so hold, that this part of the Clause exempts Members from arrest in civil
cases only. Nor does freedom from arrest confer immunity on a Member
from service of process as a defendant in civil matters ... or as a witness in a
criminal case. It is, therefore, sufficiently plain that the constitutional freedom
from arrest does not exempt Members of Congress from the operation of the
ordinary criminal laws, even though imprisonment may prevent or interfere
with the performance of their duties as Members. Indeed, implicit in the
narrow scope of the privilege of freedom from arrest is, as Jefferson noted,
the judgment that legislators ought not to stand above the law they create
but ought generally to be bound by it as are ordinary persons.
In recognition, no doubt, of the force of this part of Sec. 6, Senator
Gravel disvows any assertion of general immunity from the criminal law. But
he points out that the last portion of Sec. 6 affords Members of Congress an-
other vital privilege—they may notbe questioned in any other place for any
speech or debate in either House. The claim is not that while one part of
Sec. 6 generally permits prosecutions for treason, felony, and breach of the
peace, another part nevertheless broadly forbids them. Rather, his insistence
is that the Speech or Debate Clause at the very least protects him from crim-
inal or civil liability and from questioning elsewhere than in the Senate, with
respect to the events occurring at the subcommittee hearing at which the
Pentagon Papers were introduced into the public record. To us this claim is
incontrovertible. The Speech or Debate Clause was designed to assure a co-
equal branch of the government wide freedom of speech, debate, and de-
liberation without intimidation or threats from the Executive Branch. It
thus protects Members against prosecutions that directly impinge upon or
threaten the legislative process. We have no doubt that Senator Gravel may
not be made to answer—either in terms of questions or in terms of defend-
ing himself from prosecution—for the events that occurred at the subcom-
mittee meeting. Our decision is made easier by the fact that the United
States appears to have abandoned whatever position it took to the contrary
in the lower courts.
Even so, the United States strongly urges that because the Speech or
Debate Clause confers a privilege only upon “Senators and Representatives,”
Rodberg himself has no valid claim to constitutional immunity from grand
jury inquiry. In our view, both courts below correctly rejected this position.
We agree with the Court of Appeals that for the purpose of construing the
privilege a Member and his aide are to be “treated as one.” . . . Both courts
recognized what the Senate of the United States urgently presses here: that it
is literally impossible, in view of the complexities of the modern legislative
process, with Congress almost constantly in session and matters of legislative
concern constantly proliferating, for Members of Congress to perform their
legislative tasks without the help of aides and assistants; that the day-to-day
work of such aides is so critical to the Members’ performance that they must
be treated as the latter’s alter egos; and that if they are not so recognized, the
central role of the Speech or Debate Clause—to prevent intimidation of leg-
islators by the Executive and accountability before a possibly hostile judiciary
will inevitably be diminished and frustrated.
It is true that the Clause itself mentions only “Senators and Representa-
504 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS
ee ee ee

tives,” but prior cases have plainly not taken aliteralistic approach in applying
the privilege. The Clause also speaks only of “Speech or Debate,” but the
Court’s consistent approach has been that to confine the protection of the
Speech or Debate Clause to words spoken in debate would be an unaccept-
ably narrow view. Committee reports, resolutions, and the act of voting are
equally covered. ... Rather than giving the clause a cramped construction,
the Court has sought to implement its fundamental purpose of freeing the
legislator from executive and judicial oversight that realistically threatens to
control his conduct as a legislator. We have little doubt that we are neither
exceeding our judicial powers nor mistakenly construing the Constitution
by holding that the Speech or Debate Clause applies not only to a Member
but also to his aides insofar as the conduct of the latter would be a protected
legislative act if performed by the Member himself. .. .
The United States fears the abuses that history reveals have occurred
when legislators are invested with the power to relieve others from the oper-
ation of otherwise valid civil and criminal laws. But these abuses, it seems to
us, are for the most part obviated if the privilege applicable to the aide 1s
viewed, as it must be, as the privilege of the Senator, and invocable only by
the Senator or by the aide on the Senator’s behalf, and if in all events the
privilege available to the aide is confined to those services that would be im-
mune legislative conduct if performed by the Senator himself. This view
places beyond the Speech or Debate Clause a variety of services characteris-
tically performed by aides for Members of Congress, even though within the
scope of their employment. It likewise provides no protection for criminal
conduct threatening the security of the person or property of others,
whether performed at the direction of the Senator in preparation for or in
execution of a legislative act or done without his knowledge or direction.
Neither does it immunize Senator or aide from testifying at trials or grand
jury proceedings involving third-party crimes where the questions do not
require testimony about or impugn alegislative act. Thus. our refusal to dis-
tinguish between Senator and aide in applying the Speech or Debate Clause
does not mean that Rodberg is for all purposes exempt from grand jury
questioning.
We are convinced also that the Court of Appeals correctly determined
that Senator Gravel’s alleged arrangement with Beacon Press to publish the
Pentagon Papers was not protected speech or debate within the meaning
of Art. I, Sec. 6, cl. 1, of the Constitution. . . . Legislative acts are not all-
encompassing. The heart of the Clause is speech or debate in either House.
Insofar as the Clause is construed to reach other matters, they must be an in-
tegral part of the deliberative and communicative processes by which Mem-
bers participate in committee and House proceedings with respect to the
consideration and passage or rejection of proposed legislation or with respect
to other matters which the Constitution places within the jurisdiction of ei-
ther House. As the Court of Appeals put it, the courts have extended the
privilege to matters beyond pure speech or debate in either House, but “only
when necessary to prevent indirect impairment of such deliberations.” .. .
Here, private publication by Senator Gravel through the cooperation of
Beacon Press was in no way essential to the deliberations of the Senate; nor
does questioning as to private publication threaten the integrity or inde-
pendence of the Senate by impermissibly exposing its deliberations to exec-
 A | Membership and Immunities | 505

utive influence. The Senator had conducted his hearings; the record and any
report that was forthcoming were available both to his committee and the
Senate. Insofar as we are advised, neither Congress nor the full committee
ordered or authorized the publication. We cannot but conclude that the Sen-
ator’s arrangements with Beacon Press were not part and parcel of the
legislative process. ...
The Speech or Debate Clause recognizes speech, voting, and other leg-
islative acts as exempt from liability that might otherwise attach, it does not
privilege either Senator or aide to violate an otherwise valid criminal law in
preparing for or implementing legislative acts. If republication of these classi-
fied papers would be a crime under an Act of Congress, it would not be en-
titled to immunity under the Speech or Debate Clause. It also appears that
the grand jury was pursuing this very subject in the normal course of a valid
investigation. The Speech or Debate Clause does not in our view extend im-
munity to Rodberg, as a Senator’s aide, from testifying before the grand jury
about the arrangement between Senator Gravel and Beacon Press or about
his own participation, if any, in the alleged transaction, so long as legislative
acts of the Senator are not impugned.
Similar considerations lead us to disagree with the Court of Appeals
insofar as it fashioned, tentatively at least, a nonconstitutional testimonial
privilege protecting Rodberg from any questioning by the grand jury con-
cerning the matter of republication of the Pentagon Papers. This privilege,
thought to be similar to that protecting executive officials from liability for
libel was considered advisable “[t]o the extent that a congressman has re-
sponsibility to inform his constituents...’ But we cannot carry a judicially
fashioned privilege so far as to immunize criminal conduct proscribed by an
Act of Congress or to frustrate the grand jury’s inquiry into whether publi-
cation of these classified documents violated a federal criminal statute. The
so-called executive privilege has never been applied to shield executive offi-
cers from prosecution for crime, the Court of Appeals was quite sure that
third parties were neither immune from liability nor from testifying about
the republication matter, and we perceive no basis for conferring a testimo-
nial privilege on Rodberg as the Court of Appeals seemed to do....
' Because the Speech or Debate Clause privilege applies both to Senator
and aide, it appears to us that [the lower court’s] order, alone, would afford
ample protection for the privilege if it forbade questioning any witness, in-
cluding Rodberg: (1) concerning the Senator’s conduct, or the conduct of
his aides, at the June 29, 1971, meeting of the subcommittee; (2) concerning
the motives and purposes behind the Senator’s conduct, or that of his aides,
at that meeting; (3) concerning communications between the Senator and
his aides during the term of their employment and related to said meeting or
any other legislative act of the Senator; (4) except as it proves relevant to
investigating possible third-party crime, concerning any act, in itself not
criminal, performed by the Senator, or by his aides in the course of their em-
ployment, in preparation for the subcommittee hearing. We leave the final
form of such an order to the Court of Appeals in the first instance, or, if that
court prefers, to the District Court.
The judgment of the Court of Appeals is vacated and the cases are re-
manded to that court for further proceedings consistent with this opinion.
So ordered.
 506 | ConcGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS
S
ea Le A ene eme

| Justice BRENNAN, with whom Justice DOUGLAS and Justice

MARSHALL join, dissenting.
In holding that Senator Gravel’s alleged arrangement with Beacon Press
to publish the Pentagon Papers is not shielded from extra-senatorial inquiry
by the Speech or Debate Clause, the Court adopts what for me is a far too
narrow view of the legislative function. The Court seems to assume that
words spoken in debate or written in congressional reports are protected by
the Clause, so that if Senator Gravel had recited part of the Pentagon Papers
on the Senate floor or copied them into a Senate report, those acts could not
be questioned “in any other Place.” Yet because he sought a wider audience,
to publicize information deemed relevant to matters pending before his own
committee, the Senator suddenly loses his immunity and is exposed to grand
jury investigation and possible prosecution for the republication. The expla-
nation for this anomalous result is the Court’s belief that “Speech or Debate”
encompasses only acts necessary to the internal deliberations of Congress
concerning proposed legislation. “Here,” according to the Court, “private
publication by Senator Gravel through the cooperation of Beacon Press was
in no way essential to the deliberations of the Senate.” Therefore, “the Sena-
tor’s arrangements with Beacon Press were not part and parcel of the legisla-
tive process.”
Thus, the Court excludes from the sphere of protected legislative activ-
ity a function that I had supposed lay at the heart of our democratic system.
I speak, of course, of the legislator’s duty to inform the public about matters
affecting the administration of government. That this “informing function”
falls into the class of things “generally done in a session of the House by one
of its members in relation to the business before it.” .. .
Unlike the Court, ...I think that the activities of Congressmen in com-
municating with the public are legislative acts protected by the Speech or
Debate Clause. I agree with the Court that not every task performed by a
legislator is privileged; intervention before Executive departments is one that
is not. But the informing function carries a far more persuasive claim to the
protections of the Clause. It has been recognized by this Court as something
“generally done” by Congressmen, the Congress itself has established special
concessions designed to lower the cost of such communication, and, most
important, the function furthers several well-recognized goals of representa-
tive government. To say in the face of these facts that the informing function
is not privileged merely because it is not necessary to the internal delibera-
tions of Congress is to give the Speech or Debate Clause an artificial and
narrow reading unsupported by reason... .

Eastland v. United States Servicemen’s Fund

42% JUS. 491,,95:S.G% 1813 (1975)

The United States Servicemen’s Fund was a nonprofit organization

that, among other activities, ran coffeehouses near military bases and
 A | Membership and Immunities | 507

distributed “underground newspapers” critical of the Vietnam War. Sen-

ator James Eastland, as chair of the Senate Subcommittee on Internal
Security, undertook an investigation of the organization and sub-
poenaed a bank for the release of the fund’s financial records. The fund
sought in federal district court to stop enforcement of the subpoena on
the grounds that its bank records contained privileged information
about its membership protected by the First Amendment freedoms of
speech, press, and right of association. But the district court ruled that
the fund failed to show irreparable damage from the disclosure of its
bank records and that congressional interests in conducting its investi-
gation prevailed. An appellate court, however, reversed on concluding
that the purpose of the subpoena was to discover the identities of
the fund’s donors and that constituted a substantial interference with
the organization’s First Amendment rights. Senator Eastland and other
members of the subcommittee appealed to the Supreme Court.
The Court’s decision was eight to one; the majority’s opinion was
announced by Chief Justice Burger. Justice Marshall concurred and was
joined by Justices Brennan and Stewart. Justice Douglas dissented.

) Chief Justice BURGER delivers the opinion of the Court.

The question to be resolved is whether the actions of the petitioners fall
within the “sphere of legitimate legislative activity.’ If they do, the petition-
ers “shall not be questioned in any other Place” about those activities since
the prohibitions of the Speech or Debate Clause are absolute... .
Without exception, our cases have read the Speech or Debate Clause
broadly to effectuate its purposes. ...The purpose of the Clause is to insure
that the legislative function the @erceniten allocates to Sg may be
performed independently. ..
The applicability of dhe’Clause to private civil actions is supported by
the absoluteness of the terms “shall not be questioned,” and the sweep of the
terms “in any other Place.” In reading the Clause broadly we have said that
legislators acting within the sphere of legitimate legislative activity “should
be protected not only from the consequences of litigation’s results but also
from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S.
[82 (1967)]. Just as a criminal prosecution infringes upon the independence
which the Clause is designed to preserve, a private civil action, whether for
an injunction or damages, creates a distraction and forces Members to divert
their time, energy, and attention from their legislative tasks to defend the lit-
igation. Private civil actions also may be used to delay and disrupt the leg-
islative function. Moreover, whether a criminal action is instituted by the
Executive Branch, or a civil action is brought by private parties, judicial
power is still brought to bear on Members of Congress and legislative inde-
pendence is imperiled. We reaffirm that once it is determined that Members
‘are acting*within the “legitimate legislative sphere” the Speech or Debate
Clause is an absolute bar to interference. Doe v. McMillan, 412 U.S. [306
(1973)]....
508 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS
a

The power to investigate and to do so through compulsory process

plainly falls within that definition. This Court has often noted that the power
to investigate is inherent in the power to make laws because fa] legislative
body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or
change.” Issuance of subpoenas such as the one in question here has long
been held to be a legitimate use by Congress of its power to investigate. . . .
The particular investigation at issue here is related to and in furtherance
ofa legitimate task of Congress... . On this record the pleadings show that
the actions of the Members and the Chief Counsel fall within the “sphere of
legitimate legislative activity.’ The Subcommittee was acting under an un-
ambiguous resolution from the Senate authorizing it to make a complete
study of the “administration, operation, and enforcement of the Internal Se-
curity Act of 1950. ...” That grant of authority is sufficient to show that the
investigation upon which the Subcommittee had embarked concerned a
subject on which “legislation could be had.” .. .
We conclude that the Speech or Debate Clause provides complete im-
munity for the Members for issuance of this subpoena. We draw no distinc-
tion between the Members and the Chief Counsel. In Gravel [v. United
States, 408 U.S. 606 (1979)], we made it clear that “the day-to-day work of
such aides is so critical to the Members’ performance that they must be
treated as [the Members’] alter egos. . . 2” Here the complaint alleges that the
“Subcommittee members and staff caused the ... subpoena to be issued . ..
under the authority of Senate Resolution 366... .” The complaint thus does
not distinguish between the activities of the Members and those of the Chief
Counsel. Contrast, Dombrowski v. Eastland. Since the Members are immune
because the issuance of the subpoena is “essential to legislating,” their aides
share that immunity. .. .
Respondents also contend that the subpoena cannot be protected by the
speech or debate immunity because the “sole purpose” of the investigation is
to force “public disclosure of beliefs, opinions, expressions and associations of
private citizens which may be unorthodox or unpopular.’ Respondents view
the scope of the privilege too narrowly. Our cases make clear that in deter-
mining the legitimacy of a congressional act we do not look to the motives
alleged to have prompted it. ... Nor is the legitimacy of a congressional in-
quiry to be defined by what it produces. The very nature of the investigative
function—like any research—is that it takes the searchers up some “blind al-
leys” and into nonproductive enterprises. To be a valid legislative inquiry
there need be no predictable end result.
Finally, respondents argue that the purpose of the subpoena was to “ha-
rass, chill, punish and deter” them in the exercise of their First Amendment
rights and thus that the subpoena cannot be protected by the Clause. Their
theory seems to be that once it is alleged that First Amendment rights may
be infringed by congressional action the Judiciary may intervene to protect
those rights; the Court of Appeals seems to have subscribed to that theory.
That approach, however, ignores the absolute nature of the speech or debate
protection and our cases which have broadly construed that protection. ...
Reversed and remanded.
 A | Membership and Immunities | 509

Hutchinson v. Proxmire
FAS 0; 111, 00 O.b 2079 (1079)

In March 1975, Senator William Proxmire initiated the ‘““Golden Fleece

of the Month” award to publicize wasteful government spending. The
second award went to several government agencies for funding research
on animal aggression by Dr. Ronald Hutchinson. Proxmire announced
the award on a floor of the Senate in a speech (printed in part in the
opinion below) and in press releases and newsletters to constituents. His
legislative assistant also discussed the award and Hutchinson’s study
with the sponsoring agencies. Funding for the study was eventually
withdrawn. And Hutchinson filed a suit in federal district court, con-
tending that erroneous statements made by Proxmire and his aide de-
famed him and resulted in a loss of income. The district judge ruled
that Proxmire’s statements on the Senate floor and in press releases were
covered by the speech or debate clause, but not those made in news-
letters and television interviews. However, the court also held that
Hutchinson was a “public figure” and could collect damages only if
Proxmire’s statements were made with “actual malice’—with the
knowing or reckless disregard of their truth or falsity. Because the judge
found no evidence of actual malice, Hutchinson was not awarded dam-
ages. After an appellate court affirmed that ruling, Hutchinson appealed
to the Supreme Court, which granted his petition for certiorari.
The Court’s decision was seven to two, and the majority’s opinion
was announced by Chief Justice Burger. A separate opinion, in part
concurring and dissenting, was delivered by Justice Stewart. Dissent was
by Justice Brennan.

(| Chief Justice BURGER delivers the opinion of the Court.

Ronald Hutchinson, a research behavioral scientist, sued respondents,
William Proxmire, a United States Senator, and his legislative assistant, Mor-
ton Schwartz, for defamation arising out of Proxmire’s giving what he called
his “Golden Fleece” award. The “award” went to federal agencies that had
sponsored Hutchinson’s research. Hutchinson alleged that in making the
award and publicizing it nationwide, respondents had libeled him, damaging
him in his professional and academic standing, and had interfered with his
contractual relations. The District Court granted summary judgment for re-
spondents and the Court of Appeals affirmed. ...
We reverse and remand to the Court of Appeals for further proceedings
consistent with this opinion.
Respondent Proxmire is a United States Senator from Wisconsin. In
March 1975, he initiated the “Golden Fleece of the Month Award” to pub-
licize what he perceived to be the most egregious examples of waste-
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ful governmental spending. The second such award, in April 1975, went to
the National Science Foundation, the National Aeronautics and Space Ad-
ministration, and the Office of Naval Research, for spending almost half
a million dollars during the preceding seven years to fund Hutchinson’s
research.a. :
The bulk of Hutchinson’s research was devoted to the study of emo-
tional behavior. In particular, he sought an objective measure of aggression,
concentrating upon the behavior patterns of certain animals, such as the
clenching of jaws when they were exposed to various aggravating stressful
stimuli. The National Aeronautics and Space Agency and the Navy were in-
terested in the potential of this research for resolving problems associated
with confining humans in close quarters for extended periods of time in
space and undersea exploration. ...
In the speech Proxmire described the federal grants for Hutchinson’s re-
search, concluding with the following comment:

“The funding of this nonsense makes me almost angry enough

to scream and kick or even clench my jaw. It seems to me it is out-
rageous.
“Dr. Hutchinson’s studies should make the taxpayers as well as
his monkeys grind their teeth. In fact, the good doctor has made a
fortune from his monkeys and in the process made a monkey out of
the American taxpayer.
“Tt is time for the Federal Government to get out of this ‘mon-
key business. In view of the transparent worthlessness of Hutchin-
son’s study of jaw-grinding and biting by angry or hard-drinking
monkeys, it is time we put a stop to the bite Hutchinson and the
bureaucrats who fund him have been taking of the taxpayer.”

In May 1975, Proxmire referred to his Golden Fleece Awards in a newsletter

sent to about 100,000 people whose names were on a mailing list that in-
cluded constituents in Wisconsin as well as persons in other states. The
newsletter repeated the essence of the speech and the press release. Later in
1975, Proxmire appeared on atelevision interview program where he referred
to Hutchinson’s research, though he did not mention Hutchinson by name.
The Speech or Debate Clause has been directly passed on by this Court rel-
atively few times in 190 years. ... Literal reading of the Clause would, of course,
confine its protection narrowly to a “Speech or Debate in either House.” But the
Court has given the Clause a practical rather than a strictly literal reading which
would limit the protection to utterances made within the four walls of either
Chamber. Thus, we have held that committee hearings are protected, even if held
outside the Chambers; committee reports are also protected. ...
Nearly a century ago, in Kilbourn v. Thompson, 103 U.S. 168 (1881), this
Court held that the Clause extended “to things generally done in a session of
the House by one of its members in relation to the business before it.” . . .
Whatever imprecision there may be in the term “legislative activities,” it
is clear that nothing in history or in the explicit language of the Clause sug-
gests any intention to create an absolute privilege from liability or suit for
defamatory statements made outside the Chamber. . . .
In Gravel v. United States, 408 U.S. 606 (1972) we recognized that the
 B | Investigatory, Contempt, and Impeachment Powers | 511

doctrine denying immunity for republication had been accepted in the

United States. ...
We reach a similar conclusion here.A speech by Proxmire in the Senate
would be wholly immune and would be available to other Members of
Congress and the public in the Congressional Record. But neither the
newsletters nor the press release was “essential to the deliberations of the
Senate” and neither was part of the deliberative process. .. .
Voting and preparing committee reports are the individual and collec-
tive expressions of opinion within the legislative process. As such, they are
protected by the Speech or Debate Clause. Newsletters and press releases, by
contrast, are primarily means of informing those outside the legislative fo-
rum; they represent the views and will of a single Member. It does not dis-
parage either their value or their importance to hold that they are not
entitled to the protection of the Speech or Debate Clause.

Justice BRENNAN, dissenting.

I disagree with the Court’s conclusion that Senator Proxmire’s news-
letters and press releases fall outside the protection of the speech or debate
immunity. In my view, public criticism by legislators of unnecessary govern-
mental expenditures, whatever its form, is a legislative act shielded by the
- Speech or Debate Clause.

B | Investigatory, Contempt, and

Impeachment Powers

A congressional power to investigate is not expressly granted, but in-

stead an implied power incident to lawmaking. Congress, as the Court
recognized, “cannot legislate wisely or effectively in the absence of in-
formation respecting the conditions which the legislation is intended
to affect or change.”!
The power was asserted by the House in its first major investiga-
tion in 1792. Following an Indian defeat of an expedition led by Major
General St. Clair, a House committee requested President George
Washington to release all papers and records related to the incident. The
president’s cabinet considered the request and decided to turn over the
materials, but also agreed that

the Executive ought to communicate such papers as the public

good would permit, and ought to refuse those, the disclosure of
which would injure the public . . . [In addition, the Cabinet con-
cluded,] that neither the committee nor House hada right to call
on thé Head of a Department, who and whose papers were under
the President alone; but that the committee should instruct their
chairman to move the House to address the President.’
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ee eee

Although the materials in the St. Clair episode were given to Congress,
the basis was set for presidential claims of “executive privilege” when
the president withheld documents and for confrontations between the
executive branch and Congress over its investigatory power.
Congress’s investigatory power is backed by the power to find in
contempt individuals who disrupt its proceedings or refuse to testify be-
fore its committees and to have them arrested and imprisoned.’ Unlike
the investigative and contempt powers of the English Parliament, how-
ever, congressional exercise of these powers remains subject to judicial
review. In Anderson v. Dunn, 6 Wheat. (19 U.S.) 204 (1821), the Marshall
Court expressed concerns about the procedural safeguards afforded indi-
viduals charged with contempt, when holding that they could not be
imprisoned beyond the session of the House finding them in contempt.
As a result of these concerns and the irregularity of contempt proceed-
ings, Congress passed legislation in 1857 requiring individuals sum-
moned by either House to appear as witnesses. If they refused to appear
or to answer “pertinent questions,” a committee could direct the ser-
geant at arms to hold them until they testified. Alternatively, the com-
mittee could punish them by finding them in contempt and directing a
United States attorney to seek their indictment by a federal grand jury,
and thereupon prosecute them in a federal district court.’
Initially, the Court took a narrow view of congressional investiga-
tory and contempt powers in Kilbourn v. Thompson, 103 U.S. 168
(1881). Hallet Kilbourn refused to answer certain questions and to de-
liver to a House committee private papers bearing on a real estate deal.
He was found in contempt and imprisoned for forty-five days. On ap-
peal, the Court concluded that the House was overzealous in its inquiry
and intruded into a matter already pending in the courts. In doing so,
the Court announced three principles limiting congressional investiga-
tions: (1) they may not intrude in areas reserved for the executive
branch or the courts, (2) they are limited to matters on which Congress
may legitimately legislate, and (3) the House resolutions authorizing
such investigations must indicate the congressional intent in legislating
on the subject under investigation.
The Court later qualified Kilbourn and adopted a broader view of
Congress's powers in a case arising from an investigation of Attorney
General Harry M. Daugherty and other Department of Justice officials
in connection with the Teapot Dome scandal, which involved graft and
corruption in the administration of President Warren G. Harding.
Mally S. Daugherty, the brother of the attorney general, refused to ap-
pear before and to bring records subpoenaed by a Senate committee. In
McGrain v, Daugherty, 273 U.S. 135 (1927), the Court unanimously af-
firmed Congress’s power to compel a private individual totestify. Al-
 B | Investigatory, Contempt, and Impeachment Powers | 513

though noting that Congress has no “general power to inquire into

private matters,” the Court ruled that it may investigate legitimate sub-
jects of potential legislation, or which have a “proper legislative pur-
pose,” and require testimony pertinent to that inquiry.’
After affirming Congress’s broad investigatory powers, the Court
then confronted claims that individuals’ civil liberties were being de-
nied by congressional inquiries. This was especially so during the early
Cold War years in the 1940s and 1950s, when fear of Communism was
at its peak. At that time the House Un-American Activities Committee
(HUAC) (finally abolished in 1974) and the Senate Permanent Investi-
gations Subcommittee, chaired by Senator Joseph R. McCarthy, sub-
poenaed hundreds of individuals in and out of government to testify
about alleged Communist activities of their own and their acquain-
tances. In response to challenges to these investigations, the Court ruled
that witnesses may refuse to answer vague or irrelevant questions and
that the committees’ inquiries may not go beyond its authorizing
resolutions.® In addition, the Warren Court, in 1955, reversed the con-
-victions of individuals who had refused to testify about their alleged
membership in the Communist Party on the grounds that that would
violate their Fifth Amendment privilege against self-incrimination.’
The problem for witnesses claiming the Fifth Amendment when
refusing to testify before the HUAC was that they could not “take the
Fifth” selectively. If they took it for one, they took it for all questions.
Those who did were then open to any form of questioning which
might imply, if not prove, their support of Communist activities. As a
result, many witnesses were often branded, in the words of Senator
McCarthy, “Fifth Amendment Communists.” They could forgo their
Fifth Amendment rights by testifying in exchange for a congressional
grant of immunity (which guaranteed that their testrmony would not
be used against them in criminal trial).* Still, whether they claimed the
Fifth Amendment in refusing to testify or waived that right and testi-
fied, they frequently suffered damage to their reputations and lost their
jobs due to the adverse publicity.
The Firsts Amendment provides another possible defense against
congressional inquiries. Claims that the HUAC abridged witnesses’
freedoms of speech and association and aimed simply at punishing
them for their political views, nonetheless, had little success until
Watkins v. United States (1957) (see excerpt below). There Chief Justice
Warren acknowledged the relevancy of the First Amendment, warning
that “there is no congressional power to expose for the sake of ex-
‘ posure.” But in‘reversing Watkins’s conviction for contempt for refusing
to answer certain questions, Warren ultimately rested the Court’s deci-
sion on the due process clause of the Fifth Amendment.
514 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

Two years later, a First Amendment challenge to the House’s inves-

tigation of the Communist Party was squarely faced and rejected. In
Barenblat v. United States (1959) (see excerpt below), the Court divided
five to four in finding that First Amendment interests were overridden
by those of Congress in ensuring society's self-preservation. This ruling
provoked a sharp dissent from Justice Black in one of his most-notable
opinions.
The Court remained divided five to four in finding congressional
interests in investigations to outweigh First Amendment claims until
Justices Frankfurter and Whittaker retired in 1962.” They were replaced
by Democratic president John F Kennedy’s appointees, Justices Byron
White and Arthur Goldberg, andthe latter cast the pivotal vote in Gib-
son v. Florida Legislative Investigation Committee (1963) (see excerpt be-
low), upholding the First Amendment in a case involving state rather
than congressional investigations. Since Gibson the Court has continued
to acknowledge First Amendment limitations on the scope of legislative
investigations.”
The Court has not yet squarely dealt with a claim of executive
privilege in withholding government documents from a congressional
investigatory committee. However, in Barenblatt the Court noted that
Congress “‘cannot inquire into matters which are within the exclusive
province of one of the other branches of Government.” Arguably, this
would include materials bearing on a treaty being negotiated, for ex-
ample, or confidential White House communications, and “sensitive”
investigatory files. There have been a number of clashes between Con-
gress and the executive branch over the withholding of information
from congressional committees, but thus far compromises have been
achieved before litigation has reached the Court.
In Walter L. Nixon v. United States, 506 U.S. 224 (1993) (excerpted
below), the Rehnquist Court heard a challenge to the Senate’s proce-
dure for impeachments. The Constitution gives the Senate the sole
power to “try all impeachments,” and throughout the nineteenth cen-
tury the full Senate in effect functioned like a jury in hearing the evi-
dence presented in impeachment trials conducted on the floor of the
Senate. In 1935 the Senate adopted a new procedure, although not used
until the mid-1980s, under which a committee of twelve senators con-
ducts an impeachment hearing and then presents a report to the full
Senate, which votes on each article of impeachment. Former federal
judge Walter Nixon challenged the constitutionality of the Senate’s
committee procedure, but in his opinion for the Court Chief Justice
Rehnquist held that Nixon presented a nonjusticiable political question
and that the Senate’s procedure was constitutional. By contrast, con-
curring Justices White and Blackmun found no barrier to judicial
 B | Investigatory, Contempt, and Impeachment Powers | 515

review, while also agreeing that the impeachment committee procedure

did not violate the Constitution.

NOTES

1. McGrain v. Daugherty, 273 U.S. 135 (1927).

2. Thomas Jefferson, The Writings of Thomas Jefferson, Vol. 1 (Washington, DC: Memo-
rial Edition, 1903), 303-305.
3. Groppi v. Leslie, 404 U.S. 496 (1972), upheld the use of contempt powers against
those disrupting legislative proceedings. _
4. This procedure for contempt proceedings was upheld in In re Chapman, 166 U.S.
661 (1897). In 1978, Congress also provided that if a witness refuses to comply with
a Senate subpoena, the Senate ‘may request a court order requiring immediate com-
pliance, subject to its imposing the penalty of civil contempt for a witness’s continued
refusal to testify.
5. See also Sinclair v. United States, 279 U.S. 263 (1929). Note, however, that under
Eastland v, United States Servicemens’ Fund (1975) (excerpted in this chapter), the Court
does not require a “predictable end result” of a “valid legislative inquiry” and that
_ congressional investigations may lead up “blind alleys.”
6. United States v. Rumely, 345 U.S. 41 (1953); Deutch v. United States, 367 U.S. 456
(1961); and Gojack v. United States, 384 U.S. 702 (1966).
7. See Quinn v. United States, 349 U.S. 155 (1955); and Emspak v. United States,
349 US. 190 (1955).
8. Ullmann v. United States, 350 U.S. 422 (1956), upheld the Immunity Act of 1954,
permitting congressional committees to grant immunity for witnesses who waived
their Fifth Amendment rights and testified. See also Kastigar v. United States, 406 U.S.
441 (1972).
9. See Wilkinson v. United States, 365 U.S. 399 (1961); and Braden v, United States,
365 U.S. 431 (1961).
10. See, for example, DeGregory v. Attorney General of New Hampshire, 383 U.S. 825
(1966). But see again the Burger Court’s ruling in Eastland v. United States Servicemens’
Fund (1975) (in this chapter) on how congressional committees are shielded by the
speech or debate clause.

SELECTED BIBLIOGRAPHY

Bushnell, Eleanore. Crimes, Follies, and Misfortunes: The Federal Impeachment Trials.
Champaign: University of Illinois Press, 1992.
Goodman, Walter. The Committee: The Extraordinary Career of the House Committee on
Un-American Activities. New York: Farrar, Straus & Giroux, 1968.
Hamilton, James. The Power to Probe:A Study of Congressional Investigations. New York:
Random House, 1976.
McGeary, M. Nelson. The Development of Congressional Investigative Power. New York:
’ Columbia University Press, 1940.
Pritchett, C. Herman. Congress versus the Supreme Court: 1957-1960. Minneapolis:
University of Minnesota Press, 1961.
516 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND _INVESTIGATORY POWERS
Ne

Rehnquist, William H. Grand Inquests: The Historic Impeachments ofJustice Samuel Chase
and President Andrew Johnson. New York: Morrow, 1992.
Volcansek, Mary. None Called for Justice: Judicial Impeachment. Champaign: University of
Illinois Press, 1993.

Watkins v. United States

354 U.S. 178, 77 S.CT. 1173 (1957)

John Watkins was one of 129 people found in contempt of Congress

for refusing to answer questions about the Communist Party and other
“subversive organizations,’ when appearing before the House Un-
American Activities Committee between 1950 and 1965. In 1954, as a
labor organizer for the United Automobile Workers, he was summoned
and appeared before the subcommittee. Although testifying about his
activities and those of others he believed still to be members of the
Communist Party, Watkins declined to answer questions about the ac-
tivities of those who were no longer members. Because these questions
did not bear on his activities, he could not invoke his Fifth Amend-
ment privilege against self-incrimination when refusing to testify. In-
stead, Watkins contended that these questions were irrelevant and not
pertinent to the committee’s investigation. The House voted him in
contempt and Watkins was convicted in a federal district court. After
a court of appeals upheld his conviction, Watkins appealed to the
Supreme Court.
The Court’s decision was six to one, and the majority’s opinion
was announced by Chief Justice Warren, with Justices Burton and
Whittaker not participating. A concurring opinion was delivered by
Justice Frankfurter. Justice Clark dissented.

Chief Justice WARREN delivers the opinion of the Court.

This is a review by certiorari ofa conviction for “contempt of Congress.”
The misdemeanor is alleged to have been committed during a hearing be-
fore a congressional investigating committee. It is not the case of a truculent
or contumacious witness who refuses to answer all questions or who, by
boisterous or discourteous conduct, disturbs the decorum of the committee
room. Petitioner was prosecuted for refusing to make certain disclosures
which he asserted to be beyond the authority of the committee to demand.
The controversy thus rests upon fundamental principles of the power of the
Congress and the limitations upon that power. We approach the questions
presented with conscious awareness of the ae ramifications that can
follow from a decision of this nature.
 B | Investigatory, Contempt, and Impeachment Powers | 517

We start with several basic premises on which there is general agree-

ment. The power of the Congress to conduct investigations is inherent in the
legislative process. That power is broad. It encompasses inquiries concerning
the administration of existing laws as well as proposed or possibly needed
statutes. It includes surveys of defects in our social, economic or political sys-
tem for the purpose of enabling the Congress to remedy them. It compre-
hends probes into departments of the Federal Government to expose
corruption, inefficiency or waste. But, broad as is this power of inquiry, it is
not unlimited. There is no general authority to expose the private affairs of
individuals without justification in terms of the functions of the Congress.
This was freely conceded by the Solicitor General in his argument of this
case. Nor is the Congress a law enforcement or trial agency. These are func-
tions of the executive and judicial departments of government. No inquiry is
an end in itself; it must be related to, and in furtherance of, a legitimate task
of the Congress. Investigations conducted solely for the personal aggrandize-
ment of the investigators or to “punish” those investigated are indefensible.
It is unquestionably the duty of all citizens to cooperate with the Con-
gress in its efforts to obtain the facts needed for intelligent legislative action.
It is their unremitting obligation to respond to subpoenas, to respect the dig-
nity of the Congress and its committees and to testify fully with respect to
_ matters within the province of proper investigation. This, of course, assumes
that the constitutional rights of witnesses will be respected by the Congress
as they are in a court of justice. The Bill of Rights is applicable to investiga-
tions as to all forms of governmental action. Witnesses cannot be compelled
to give evidence against themselves. They cannot be subjected to unreason-
able search and seizure. Nor can the First Amendment freedoms of speech,
press, religion, or political belief and association be abridged. ...
The history of contempt of the legislature in this country is notably dif-
ferent from that of England. In the early days of the United States, there lin-
gered the direct knowledge of the evil effects of absolute power. Most of the
instances of use of compulsory process by the first Congresses concerned
matters affecting the qualification or integrity of their members or came
about in inquiries dealing with suspected corruption or mismanagement of
government officials. Unlike the English practice, from the very outset the
use of contempt power by the legislature was deemed subject to judicial re-
view. ...
There was very little use of the power of compulsory process in early
years to enable the Congress to obtain facts pertinent to the enactment of
new statutes or the administration of existing laws. The first occasion for
such an investigation arose in 1827 when the House of Representatives was
considering a revision of the tariff laws. In the Senate, there was no use of a
fact-finding investigation in aid of legislation until 1859. In the Legislative
Reorganization Act, the Committee on Un-American Activities was the
only standing committee of the House of Representatives that was given the
power to compel disclosures. . . .
It is not surprising, from the fact that the Houses of Congress so spar-
ingly employed the power to conduct investigations, that there have been
’ few cases requiring judicial review of the power. The Nation was almost one
hundred years old before the first case reached this Court to challenge the
use of compulsory process as a legislative device, rather than in inquiries
518 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS
ee

concerning the elections or privileges of Congressmen. In Kilbourn v. Thomp-

son, 103 U.S. 168 [(1881)], decided in 1881, an investigation had been au-
thorized by the House of Representatives to learn the circumstances
surrounding the bankruptcy of Jay Cooke & Company, in which the United
States had deposited funds. The committee became particularly interested in
a private real estate pool that was a part of the financial structure. The Court
found that the subject matter of the inquiry was “‘in its nature clearly judicial
and therefore one in respect to which no valid legislation could be enacted.”
The House had thereby exceeded the limits of its own authority.
Subsequent to the decision in Kilbourn, until recent times, there were
very few cases dealing with the investigative power. The matter came to the
fore again when the Senate undertook to study the corruption in the han-
dling of oil leases in the 1920’. In McGrain v. Daugherty, 273 U.S. 135
[(1927)], and Sinclair v. United States, 279 U.S. 263 [(1929)], the Court applied
the precepts of Kilbourn to uphold the authority of the Congress to conduct
the challenged investigations. The Court recognized the danger to effective
and honest conduct of the Government if the legislature’s power to probe
corruption in the executive branch were unduly hampered.
In the decade following World War II, there appeared a new kind of
congressional inquiry unknown in prior periods of American history. Princi-
pally this was the result of the various investigations into the threat of sub-
version of the United States Government, but other subjects of congressional
interest also contributed to the changed scene. This new phase of legislative
inquiry involved a broad-scale intrusion into the lives and affairs of private
citizens. It brought before the courts novel questions of the appropriate lim-
its of congressional inquiry. Prior cases, like Kilbourn, McGrain and Sinclair,
had defined the scope of investigative power in terms of the inherent limita-
tions of the sources of that power. In the more recent cases, the emphasis
shifted to problems of accommodating the interest of the Government with
the rights and privileges of individuals. The central theme was the applica-
tion of the Bill of Rights as a restraint upon the assertion of governmental
power in this form.
It was during this period that the Fifth Amendment privilege against
self-incrimination was frequently invoked and recognized as a legal limit
upon the authority of a committee to require that witness answer its ques-
tions. Some early doubts as to the applicability of that privilege before a leg-
islative committee never matured. When the matter reached this Court, the
Government did not challenge in any way that the Fifth Amendment pro-
tection was available to the witness, and such a challenge could not have pre-
vailed. It confined its argument to the character of the answers sought and to
the adequacy of the claim of privilege. .. .
A far more difficult task evolved from the claim by witnesses that the
committees’ interrogations were infringements upon the freedoms of the
First Amendment. Clearly, an investigation is subject to the command that
the Congress shall make no law abridging freedom of speech or press or as-
sembly. While it is true that there is no statute to be reviewed, and that an
investigation is not a law, nevertheless an investigation is part of law-
making. It is justified solely as an adjunct to the legislative process. The First
Amendment may be invoked against infringement of the protected freedoms
by law or by lawmaking.
 B | Investigatory, Contempt, and Impeachment Powers | 519

Abuses of the investigative process may imperceptibly lead to abridge-

ment of protected freedoms. The mere summoning of a witness and com-
pelling him to testify, against his will, about his beliefs, expressions or
associations is a measure of governmental interference. And when those
forced revelations concern matters that are unorthodox, unpopular, or even
hateful to the general public, the reaction in the life of the witness may be
disastrous. This effect is even more harsh when it is past beliefs, expressions or
associations that are disclosed and judged by current standards rather than
those contemporary with the matters exposed. Nor does the witness alone
suffer the consequences. Those who are identified by witnesses and thereby
placed in the same glare of publicity are equally subject to public stigma,
scorn and obloquy. Beyond that, there is the more subtle and immeasurable
effect upon those who tend to adhere to the most orthodox and uncontro-
versial views and associations in order to avoid a similar fate at some future
time. That this impact is partly the result of nongovernmental activity by
private persons cannot relieve the investigators of their responsibility for ini-
tiating the reaction.
The Court recognized the restraints of the Bill of Rights upon congres-
sional investigations in United States v. Rumely, 345 U.S. 41 [(1953)]. The
magnitude and complexity of the problem of applying the First Amendment
_ to that case led the Court to construe narrowly the resolution describing the
committee's authority. It was concluded that, when First Amendment rights
are threatened, the delegation of power to the committee must be clearly re-
vealed in its charter. ...
We have no doubt that there is no congressional power to expose for
the sake of exposure. The public is, of course, entitled to be informed con-
cerning the workings of its government. That cannot be inflated into a gen-
eral power to expose where the predominant result can only be an invasion
of the private rights of individuals. But a solution to our problem is not to be
found in testing the motives of committee members for this purpose. Such is
not our function. Their motives alone would not vitiate an investigation
which had been instituted by a House of Congress if that assembly’s legisla-
tive purpose is being served. ...
It would be difficult to imagine a less explicit authorizing resolution.
Who can define the meaning of “un-American”? What is that single, solitary
“principle of the form of government as guaranteed by our Constitution’?
There is no need to dwell upon the language, however. At one time, perhaps,
the resolution might have been read narrowly to confine the Committee to
the subject of propaganda. The events that have transpired in the fifteen years
before the interrogation of petitioner make such a construction impossible at
this date. ...
Combining the language of the resolution with the construction it has
been given, it is evident that the preliminary control of the Committee exer-
cised by the House of Representatives is slight or non-existent. No one
could reasonably deduce from the charter the kind of investigation that the
Committee was directed to make. As a result, we are asked to engage in a
process of retroactive rationalization. Looking backward from the events that
‘ transpired,»we ate asked to uphold the Committee’s actions unless it appears
that they were clearly not authorized by the charter. As a corollary to this in-
verse approach, the Government urges that we must view the matter hos-
 POWERS
520 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY

pitably to the power of the Congress—that if there is any legislative purpose

which might have been furthered by the kind of disclosure sought, the wit-
ness must be punished for withholding it. No doubt every reasonable indul-
gence of legality must be accorded to the actions ofa coordinate branch of
our Government. But such deference cannot yield to an unnecessary and
unreasonable dissipation of precious constitutional freedoms.
The Government contends that the public interest at the core of the in-
vestigations of the Un-American Activities Committee is the need by the
Congress to be informed of efforts to overthrow the Government by force
and violence so that adequate legislative safeguards can be erected. From this
core, however, the Committee can radiate outward infinitely to any topic
thought to be related in some way to armed insurrection. The outer reaches
of this domain are known only by the content of “un-Ameri can activities.”
Remoteness of subject can be aggravated by a probe for a depth of detail
even farther removed from any basis of legislative action. A third dimension
is added when the investigators turn their attention to the past to collect
minutiae on remote topics, on the hypothesis that the past may reflect upon
the present.
The consequences that flow from this situation are manifold. In the first
place, a reviewing court is unable to make the kind of judgment made by the
Court in United States v. Rumely, sapra. The Committee is allowed, in essence,
to define its own authority, to choose the direction and focus of its activities.
In deciding what to do with the power that has been conferred upon them,
members of the Committee may act pursuant to motives that seem to them
to be the highest. Their decisions, nevertheless, can lead to ruthless exposure
of private lives in order to gather data that is neither desired by the Congress
nor useful to it. Yet it is impossible in this circumstance, with constitutional
freedoms in jeopardy, to declare that the Committee has ranged beyond the
area committed to it by its parent assembly because the boundaries are so
nebulous.
More important and more fundamental than that, however, it insulates
the House that has authorized the investigation from the witnesses who are
subjected to the sanctions of compulsory process. There is a wide gulf be-
tween the responsibility for the use of investigative power and the actual
exercise of that power. This is an especially vital consideration in assuring re-
spect for constitutional liberties. Protected freedoms should not be placed in
danger in the absence of a clear determination by the House or the Senate
that a particular inquiry is justified by a specific legislative need.
It is, of course, not the function of this Court to prescribe rigid rules for
the Congress to follow in drafting resolutions establishing investigating com-
mittees. That is a matter peculiarly within the realm of the legislature, and its
decisions will be accepted by the courts up to the point where their own
duty to enforce the constitutionally protected rights of individuals is affected.
An excessively broad charter, like that of the House Un-American Activities
Committee, places the courts in an untenable position if they are to strike a
balance between the public need for a particular interrogation and the right
of citizens to carry on their affairs free from unnecessary governmental
interference. It is impossible in such a situation to ascertain whether any leg-
islative purpose justifies the disclosures sought and, if so, the importance of
that information to the Congress in furtherance of its legislative function.
 B | Investigatory, Contempt, and Impeachment Powers | 521
Se
The reason no court can make this critical judgment is that the House of
Representatives itself has never made it. Only the legislative assembly initiat-
ing an investigation can assay the relative necessity of specific disclosures.
Absence of the qualitative consideration of petitioner’s questioning by
the House of Representatives aggravates a serious problem, revealed in this
case, in the relationship of congressional investigating committees and the
witnesses who appear before them. Plainly these committees are restricted to
the missions delegated to them, i.e., to acquire certain data to be used by the
House or the Senate in coping with a problem that falls within its legislative
sphere. No witness can be compelled to make disclosures on matters outside
that area. This is a jurisdictional concept of pertinency drawn from the na-
ture ofa congressional committee’s source of authority. It is not wholly dif-
ferent from nor unrelated to the element of pertinency embodied in the
criminal statute under which petitioner was prosecuted. When the definition
of jurisdictional pertinency is as uncertain and wavering as in the case of the
Un-American Activities Committee, it becomes extremely difficult for the
Committee to limit its inquiries to statutory pertinency.
Since World War II, the Congress has practically abandoned its original
practice of utilizing the coercive sanction of contempt proceedings at the bar
of the House. The sanction there imposed is imprisonment by the House
until the recalcitrant witness agrees to testify or disclose the matters sought,
provided that the incarceration does not extend beyond adjournment. The
Congress has instead invoked the aid of the federal judicial system in pro-
tecting itself against contumacious conduct. It has become customary to re-
fer these matters to the United States Attorneys for prosecution under
criminal law.
The appropriate statute is found in 2 U.S.C. Sec. 192. It provides:

“Every person who having been summoned as a witness by the

authority of either House of Congress to give testimony or to pro-
duce papers upon any matter under inquiry before either House, or
any joint committee established by a joint or concurrent resolution
of the two Houses of Congress, or any committee of either House
of Congress, willfully makes default, or who, having appeared, re-
fuses to answer any question pertinent to the question under in-
quiry, shall be deemed guilty of a misdemeanor, punishable by a fine
of not more than $1,000 nor less than $100 and imprisonment in a
common jail for not less than one month nor more than twelve
months.”

In fulfillment of their obligation under this statute, the courts must ac-
cord to the defendants every right which is guaranteed to defendants in all
other criminal cases. Among these is the right to have available, through a
sufficiently precise statute, information revealing the standard of criminality
before the commission of the alleged offense. Applied to persons prosecuted
under Sec. 192, this raises a special problem in that the statute defines the
crime as refusal to answer “any question pertinent to the question under in-
“ quiry.” Part of the standard of criminality, therefore, is the pertinency of the
questions propounded to the witness.
The problem attains proportion when viewed from the standpoint of
522 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS
eS

the witness who appears before a congressional committee. He must decide

at the time the questions are propounded whether or not to answer. .. .An
erroneous determination on his part, even if made in the utmost good faith,
does not exculpate him if the court should later rule that the questions were
pertinent to the question under inquiry.
It is obvious that a person compelled to make this choice is entitled to
have knowledge of the subject to which the interrogation is deemed perti-
nent. That knowledge must be available with the same degree of explicitness
and clarity that the Due Process Clause requires in the expression of any el-
ement of a criminal offense. The “vice of vagueness” must be avoided here as
in all other crimes. There are several sources that can outline the “question
under inquiry” in such a way that the rules against vagueness are satisfied.
The authorizing resolution, the remarks of the chairman or members of
the committee, or even the nature of the proceedings themselves, might
sometimes make the topic clear. This case demonstrates, however, that these
sources often leave the matter in grave doubt.
Fundamental fairness demands that no witness be compelled to [deter-
mine whether a question is pertinent to a legitimate legislative purpose] .. .
with so little guidance. Unless the subject matter has been made to appear
with undisputable clarity, it is the duty of the investigative body, upon objec-
tion of the witness on grounds of pertinency, to state for the record the sub-
ject under inquiry at that time and the manner in which the propounded
questions are pertinent thereto. To be meaningful, the explanation must de-
scribe what the topic under inquiry is and the connective reasoning whereby
the precise questions asked relate to it.
The statement of the Committee Chairman in this case, in response to
petitioner’s protest, was woefully inadequate to convey sufficient information
as to the pertinency of the questions to the subject under inquiry. Petitioner
was thus not accorded a fair opportunity to determine whether he was
within his rights in refusing to answer, and his conviction is necessarily in-
valid under the Due Process Clause of the Fifth Amendment.
We are mindful of the complexities of modern government and the
ample scope that must be left to the Congress as the sole constitutional de-
pository of legislative power. Equally mindful are we of the indispensable
function, in the exercise of that power, of congressional investigations. The
conclusions we have reached in this case will not prevent the Congress,
through its committees, from obtaining any information it needs for the
proper fulfillment of its role in our scheme of government. The legislature is
free to determine the kinds of data that should be collected. It is only those
investigations that are conducted by use of compulsory process that give rise
to a need to protect the rights of individuals against illegal encroachment.
That protection can be readily achieved through procedures which prevent
the separation of power from responsibility and which provide the constitu-
tional requisites of fairness for witnesses.A measure of added care on the part
of the House and the Senate in authorizing the use of compulsory process
and by their committees in exercising that power would suffice. That is a
small price to pay if it serves to uphold the principles of limited, constitu-
tional government without constricting the power of the Congress to in-
form itself.
 B | Investigatory, Contempt, and Impeachment Powers | 523

| Justice CLARK, dissenting.

As I see it the chief fault in the majority opinion is its mischievous curb-
ing of the informing function of the Congress. .. .
[T]he Court reverses the judgment because: (1) The subject matter of
the inquiry was not “made to appear with undisputable clarity” either
through its “charter” or by the Chairman at the time of the hearing and,
therefore, Watkins was deprived of a clear understanding of “the manner in
which the propounded questions [were] pertinent thereto”; and (2) the pres-
ent committee system of inquiry of the House, as practiced by the Un-
American Activities Committee, does not provide adequate safeguards for
the protection of the constitutional fight of free speech. I subscribe to nei-
ther conclusion. ...
I think the Committee, here was acting entirely within its scope and that
the purpose of its inquiry was set out with “undisputable clarity.” In the first
place, the authorizing language of the Reorganization Act must be read as a
whole, not dissected. It authorized investigation into subversive activity, its
extent, character, objects, and diffusion. While the language might have been
more explicit than using such words as “un-American,” or phrases like “prin-
ciple of the form of government,” still these are fairly well understood terms.
We must construe them to give them meaning if we can. Our cases indicate
that rather than finding fault with the use of words or phrases, we are bound
to presume that the action of the legislative body in granting authority to
the Committee was with a legitimate object “if [the action] is capable of be-
ing so construed.” ... Before we can deny the authority “it must be obvious
that” the Committee has “exceeded the bounds of legislative power.’ Tenney
v. Brandhove, 341 U.S. 367 [(1951)}. The fact that the Committee has often
been attacked has caused close scrutiny of its acts by the House as a whole
and the House has repeatedly given the Committee its approval. “Power” and
“responsibility” have not been separated. But the record in this case does not
stop here. It shows that at the hearings involving Watkins, the Chairman
made statements explaining the functions of the Committee. And, further-
more, Watkins’ action at the hearing clearly reveals that he was well ac-
quainted with the purpose of the hearing. It was to investigate Communist
infiltration into his union. This certainly falls within the grant of authority
from the Reorganization Act and the House has had ample opportunity to
limit the investigative scope of the Committee if it feels that the Committee
has exceeded its legitimate bounds. I do not see how any First Amendment
rights were endangered here. There is nothing in the First Amendment that
provides the guarantees Watkins claims. That Amendment was designed to
prevent attempts by law to curtail freedom of speech. It forbids Congress
from making any law “abridging the freedom of speech, or of the press.” It
guarantees Watkins’ right to join any organization and make any speech that
does not have an intent to incite to crime. ... But Watkins was asked
whether he knew named individuals and whether they were Communists.
He refused to answer on the ground that his rights were being abridged.
What he was actually seeking to do was to protect his former associates, not
himself, from embarrassment. He had already admitted his own involvement.
He sought to vindicate the rights, if any, of his associates. .. .
524 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

As already indicated, even if Watkins’ associates were on the stand they

could not decline to disclose their Communist connections on First Amend-
ment grounds. While there may be no restraint by the Government of one’s
beliefs, the right of free belief has never been extended to include the with-
holding of knowledge of past events or transactions. There is no general priv-
ilege of silence. The First Amendment does not make speech or silence
permissible to a person in such measure as he chooses. Watkins has here ex-
ercised his own choice as to when he talks, what questions he answers, and
when he remains silent. A witness is not given such a choice by the Amend-
ment. Remote and indirect disadvantages such as “public stigma, scorn and
obloquy” may be related to the First Amendment, but they are not enough
to block investigation.

Barenblatt v. United States

360 USS. 109, 79 S.CT. 1081 (1959)

The ruling in Watkins v. United States (1957) (see preceding excerpt)

touched off a firestorm of protest in Congress. Conservative Repub-
licans and southern Democrats charged that the Warren Court
“{ijntruded on Congress’s right of investigation by reversing certain ci-
tations for contempt of Congress” and “[e]ndangered the national secu-
rity by rulings in subversive activities cases.” In particular, Indiana’s
Senator William Jenner introduced a bill that would withdraw the
Supreme Court’s jurisdiction over, among other things, “any committee
or subcommittee of the United States Congress or any action or pro-
ceedings against a witness charged with contempt of Congress.” While
the Jenner and other bills were being debated in Congress, the justices
granted review of the case brought by Lloyd Barenblatt, a college pro-
fessor, convicted for refusing to answer certain questions asked by a
subcommittee of the House Un-American Activities Committee. Jus-
tice Harlan’s opinion for a bare majority of the Court, in affirming
Barenblatt’s conviction, further discusses the facts of the case. Notably,
on the same day this decision was announced, in Uphaus v. Wyman,
364 USS. 388 (1959), the Court also ruled that a director of a summer
camp could be forced to supply the names of all guests at the camp
during a two-year period to the New Hampshire attorney general,
who was investigating for the state legislature whether there were any
“subversive persons” in the state. The rulings in Barenblatt and Uphaus
helped diffuse the controversy over the Court, and Jenner’s and similar
Court-curbing legislation was defeated in Congress.
The Court’s decision was five to four, and the majority’s
opinion was announced by Justice Harlan. Justice Black dissented and
 B | Investigatory, Contempt, and Impeachment Powers | 525

was joined by Chief Justice Warren and Justice Douglas, as did Justice
Brennan.

| Justice HARLAN delivers the opinion of the Court.

Once more the Court is required to resolve the conflicting constitu-
tional claims of congressional power and of an individual’s right to resist its
exercise. The congressional power in question concerns the internal process
of Congress in moving within its legislative domain; it involves the utiliza-
tion of its committees to secure “testimony needed to enable it efficiently
to exercise a legislative function belonging to it under the Constitution.”
... Broad as it is, the power is not, however, without limitations. Since Con-
gress may only investigate into those areas in which it may potentially legis-
late or appropriate, it cannot inquire into matters which are within the
exclusive province of one of the other branches of the Government. Lacking
the judicial power given to the Judiciary, it cannot inquire into matters that
are exclusively the concern of the Judiciary. Neither can it supplant the Ex-
ecutive in what exclusively belongs to the Executive. And the Congress, in
common with all branches of the Government, must exercise its powers sub-
ject to the limitations placed by the Constitution on governmental action,
’ more particularly in the context of this case the relevant limitations of the
Bill of Rights.
The congressional power of inquiry, its range and scope, and an individ-
ual’s duty in relation to it, must be viewed in proper perspective. The power
and the right of resistance to it are to be judged in the concrete, not on the
basis of abstractions. In the present case congressional efforts to learn the
extent of a nationwide, indeed worldwide, problem have brought one of
its investigating committees into the field of education. Of course, broadly
viewed, inquiries cannot be made into the teaching that is pursued in any
of our educational institutions. When academic teaching-freedom and_ its
corollary learning-freedom, so essential to the well-being of the Nation, are
claimed, this Court will always be on the alert against intrusion by Congress
into this constitutionally protected domain. But this does not mean that the
Congress is precluded from interrogating a witness merely because he is a
teacher. An educational institution is not a constitutional sanctuary from inquiry
into matters that may otherwise be within the constitutional legislative domain
merely for the reason that inquiry is made of someone within its walls. . . .
We here review petitioner’s conviction .. . for contempt of Congress,
arising from his refusal to answer certain questions put to him by a Sub-
committee of the House Committee on Un-American Activities during the
course of an inquiry concerning alleged Communist infiltration into the
field of education. ...
Pursuant to a subpoena, and accompanied by counsel, petitioner on
June 28, 1954, appeared as a witness before this congressional Subcommittee.
After answering a few preliminary questions and testifying that he had been
a graduate student and teaching fellow at the University of Michigan from
1947 to 1950 and an instructor in psychology at Vassar College from 1950 to
' shortly before his appearance before the Subcommittee, petitioner objected
generally to the right of the Subcommittee to inquire into his “political” and
“religious” beliefs or any “other personal and private affairs” or “associational
526 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

activities,” upon grounds set forth in a previously prepared memorandum

which he was allowed to file with the Subcommittee. Thereafter petitioner
specifically declined to answer each of the following five questions:

“Are you now a member of the Communist Party? [Count

One.|
“Have you ever been a member of the Communist Party?
{Count Two.|
“Now, you have stated that you knew Francis Crowley. Did
you know Francis Crowley as a member of the Communist Party?
[Count Three.|
“Were you ever a member of the Haldane Club of the Com-
munist Party while at the University of Michigan? [Count Four.]
“Were you a member while a student of the University of
Michigan Council ofArts, Sciences, and Professions?” [Count Five.]

In each instance the grounds of refusal were those set forth in the prepared
statement. Petitioner expressly disclaimed reliance upon “the Fifth Amend-
ment: - 1.
Petitioner’s various contentions resolve themselves into three proposi-
tions: First, the compelling of testimony by the Subcommittee was neither
legislatively authorized nor constitutionally permissible because of the vague-
ness of Rule XI of the House of Representatives, Eighty-third Congress, the
charter of authority of the parent Committee. Second, petitioner was not ad-
equately apprised of the pertinency of the Subcommittee’s questions to the
subject matter of the inquiry. Third, the questions petitioner refused to an-
swer infringed rights protected by the First Amendment.

SUBCOMMITTEE’S AUTHORITY TO COMPEL TESTIMONY.

At the outset it should be noted that Rule XI authorized this Subcommittee

to compel testimony within the framework of the investigative authority
conferred on the Un-American Activities Committee. Petitioner contends
that Watkins v. United States, [354 U.S. 178 (1957)], nevertheless held the
grant of this power in all circumstances ineffective because of the vagueness
of Rule XI in delineating the Committee jurisdiction to which its exercise
was to be appurtenant... .
The Watkins case cannot properly be read as standing for such a propo-
sition.A principal contention in Watkins was that the refusals to answer were
Justified because the requirement of 2 U.S.C. Sec. 192, that the questions
asked be “pertinent to the question under inquiry” had not been satisfied. . . .
This Court reversed the conviction solely on that ground, holding that
Watkins had not been adequately apprised of the subject matter of the Sub-
committee’s investigation or the pertinency thereto of the questions he re-
fused to answer. In so deciding the Court drew upon Rule XI only as one of
the facets in the total mise en scéne in its search for the “question under in-
quiry” in that particular investigation.That the vagueness of Rule XI was not
alone determinative is also shown by the Court’s further statement that aside
from the Rule “the remarks of the chairman or members of the committee,
or even the nature of the proceedings themselves, might sometimes make the
 B | Investigatory, Contempt, and Impeachment Powers | 527

topic [under inquiry] clear.” In short, while Watkins was critical of Rule XI,
it did not involve the broad and inflexible holding petitioner now attributes
to it.
Petitioner also contends, independently of Watkins, that the vagueness of
Rule XI deprived the Subcommittee of the right to compel testimony
in this investigation into Communist activity. We cannot agree with this
contention which in its furthest reach would mean that the House Un-
American Activities Committee under its existing authority has no right to
compel testimony in any circumstances. Granting the vagueness of the Rule,
we may not read it in isolation from its long history in the House of Repre-
sentatives. Just as legislation is often given meaning by the gloss of legislative
reports, administrative interpretation, and long usage, so the proper meaning
of an authorization to a congressional committee is not to be derived alone
from its abstract terms unrelated to the definite content furnished them by
the course of congressional actions. The Rule comes to us with a “‘persuasive
gloss of legislative history” which shows beyond doubt that in pursuance of
its fepaliene concerns in the domain of “national security” the House has
clothed the Un-American Activities Committee with pervasive authority to
investigate Communist activities in this country... .

PERTINENCY CLAIM.

Undeniably a conviction for contempt under 2 U.S.C. Sec. 192 cannot stand
unless the questions asked are pertinent to the subject matter of the investi-
gation. Watkins v. United States. But the factors which led us to rest decision
on this ground in Watkins were very different from those involved here.
In Watkins the petitioner had made specific objection to the Sub-
committee’s questions on the ground of pertinency; the question under in-
quiry had not been disclosed in any illuminating manner; and the questions
asked the petitioner were not only amorphous on their face, but in some in-
stances clearly foreign to the alleged subject matter of the investigation—
“Communism in labor.”
In contrast, petitioner in the case before us raised no objections on the
ground of pertinency at the time any of the questions were put to him..
We need not, however, rest decision on petitioner's failure to hea on
this score, for here “‘pertinency” was made to appear “with undisputable clar-
ity.’ First of all, it goes without saying that the scope of the Committee’s
authority was for the House, not a witness, to determine, subject to the ulti-
mate reviewing responsibility of this Court. What we deal with here is
whether petitioner was sufficiently apprised of “the topic under inquiry”
thus authorized ‘“‘and the connective reasoning whereby the precise questions
asked relate[d] to it.” In light of his prepared memorandum of constitutional
objections there can be no doubt that this petitioner was well aware of the
Subcommittee’s authority and purpose to question him as it did. In addition
the other sources of this information which we recognized in Watkins . . .
leave no room for a “pertinency” objection on this record. The subject mat-
ter of the inquiry had been identified at the commencement of the investi-
gation as Communist infiltration into the field of education. Just prior to
petitioner’s appearance before the Subcommittee, the scope of the day’s hear-
ings had been announced as “in the main communism in education and the
experiences and background in the party by Francis X. 'T. Crowley. It will
528 | Concress: MEMBERSHIP, IMMUNITIES, AND _INVESTIGATORY POWERS

deal with activities in Michigan, Boston, and in some small degree, New
York.” Petitioner had heard the Subcommittee interrogate the witness Crow-
ley along the same lines as he, petitioner, was evidently to be questioned, and
had listened to Crowley’s testimony identifying him as a former member of
an alleged Communist student organization at the University of Michigan
while they both were in attendance there. Further, petitioner had stood mute
in the face of the Chairman’s statement as to why he had been called as a
witness by the Subcommittee. And, lastly, unlike Watkins, petitioner refused
to answer questions as to his own Communist Party affiliations, whose perti-
nency of course was clear beyond doubt... .

CONSTITUTIONAL CONTENTIONS.

The precise constitutional issue confronting us is whether the Subcommit-

tee’s inquiry into petitioner’s past or present membership in the Communist
Party transgressed the provisions of the First Amendment, which of course
reach and limit congressional investigations. ... Undeniably, the First Amend-
ment in some circumstances protects an individual from being compelled to
disclose his associational relationships. However, the protections of the First
Amendment, unlike a proper claim of the privilege against self-incrimination
under the Fifth Amendment, do not afford a witness the right to resist in-
quiry in all circumstances. Where First Amendment rights are asserted to bar
governmental interrogation resolution of the issue always involves a balanc-
ing by the courts of the competing private and public interests at stake in
the particular circumstances shown. These principles were recognized in the
Watkins case, where, in speaking of the First Amendment in relation to con-
gressional inquiries, we said, “It is manifest that despite the adverse effects
which follow upon compelled disclosure of private matters, not all such in-
quiries are barred. The critical element is the existence of, and the weight to
be ascribed to, the interest of the Congress in demanding disclosures from an
unwilling witness.” .. .
That Congress has wide power to legislate in the field of Communist
activity in this Country, and to conduct appropriate investigations in aid
thereof, is hardly debatable. The existence of such power has never been
questioned by this Court, and it is sufficient to say, without particularization,
that Congress has enacted or considered in this field a wide range of legisla-
tive measures, not a few of which have stemmed from recommendations of
the very Committee whose actions have been drawn in question here. In the
last analysis this power rests on the right of self-preservation, “the ultimate
value of any society.” ...
On these premises, this Court in its constitutional adjudications has
consistently refused to view the Communist Party as an ordinary political
party, and has upheld federal legislation aimed at the Communist problem
which in a different context would certainly have raised constitutional issues
of the gravest character. . . . To suggest that because the Communist Party
may also sponsor peaceable political reforms the constitutional issues before
us should now be judged as if that Party were just an ordinary political party
from the standpoint of national security, is to ask this Court to blind itself to
world affairs which have determined the whole course of our national pol-
icy since the close of World War II... . An investigation of advocacy of or
preparation for overthrow certainly embraces the right to identify-a witness
 B | Investigatory, Contempt, and Impeachment Powers | 529

as a member of the Communist Party, and to inquire into the various mani-
festations of the Party’s tenets. The strict requirements of a prosecution under
the Smith Act are not the measure of the permissible scope of a congres-
sional investigation into “overthrow,” for of necessity the investigatory
process must proceed step by step. Nor can it fairly be concluded that this in-
vestigation was directed at controlling what is being taught at our universities
rather than at overthrow. The statement of the Subcommittee Chairman at
the opening of the investigation evinces no such intention, and so far as this
record reveals nothing thereafter transpired which would justify our holding
that the thrust of the investigation later changed. The record discloses con-
siderable testimony concerning the foreign domination and revolutionary
purposes and efforts of the Communist Party. That there was also testimony
on the abstract philosophical level does not detract from the dominant
theme of this investigation—Communist infiltration furthering the alleged
ultimate purpose of overthrow. And certainly the conclusion would not be
justified that the questioning of petitioner would have exceeded permissible
bounds had he not shut off the Subcommittee at the threshold.
Nor can we accept the further contention that this investigation should
not be deemed to have been in furtherance ofa legislative purpose because
the true objective of the Committee and of the Congress was purely “ex-
posure.” So long as Congress acts in pursuance of its constitutional power,
the Judiciary lacks authority to intervene on the basis of the motives which
spurred the exercise of that power. “It is, of course, true,’ as was said in
McCray v. United States [195 U.S. 27 (1904)], “that if there be no authority in
the judiciary to restrain a lawful exercise of power by another department of
the government, where a wrong motive or purpose has impelled to the ex-
ertion of the power, that abuses of a power conferred may be temporarily ef-
fectual. The remedy for this however, lies, not in the abuse by the judicial
authority of its functions, but in the people, upon whom, after all, under our
institutions, reliance must be placed for the correction of abuses committed
in the exercise of a lawful power.’ These principles of course apply as well to
committee investigations into the need for legislation as to the enactments
which such investigations may produce. ...
We conclude that the balance between the individual and the govern-
mental interests here at stake must be struck in favor of the latter, and that
therefore the provisions of the First Amendment have not been offended.
We hold that petitioner’s conviction for contempt of Congress discloses
no infirmity, and that the judgment of the Court of Appeals must be af-
firmed.
Affirmed.

() Justice BLACK, with whom the CHIEF JUSTICE and Justice

DOUGLAS join, dissenting.
The First Amendment says in no equivocal language that Congress shall
pass no law abridging freedom of speech, press, assembly or petition. The ac-
tivities of this Committee, authorized by Congress, do precisely that, through
exposure, obloquy and public scorn. See Watkins v. United States. The Court
does not really deny this fact but relies on a combination of three reasons for
permitting the infringement: (A) The notion that despite the First Amend-
530 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

ment’s command Congress can abridge speech and association if this Court
decides that the governmental interest in abridging speech is greater than an
individual’s interest in exercising that freedom, (B) the Government's right to
“preserve itself?’ (C) the fact that the Committee is only after Communists
or suspected Communists in this investigation. . . .
To apply the Court’s balancing test under such circumstances is to read
the First Amendment to say “Congress shall pass no law abridging freedom
of speech, press, assembly and petition, unless Congress and the Supreme
Court reach the joint conclusion that on balance the interest of the Govern-
ment in stifling these freedoms is greater than the interest of the people in
having them exercised.” This is closely akin to the notion that neither the
First Amendment nor any other provision of the Bill of Rights should be
enforced unless the Court believes it is reasonable to do so. Not only does this
violate the genius of our written Constitution, but it runs expressly counter to
the injunction to Court and Congress made by Madison when he intro-
duced the Bill of Rights. “If they [the first ten amendments] are incorpo-
rated into the Constitution, independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights: they will be an
impenetrable bulwark against every assumption of power in the Legislative or
Executive; they will be naturally led to resist every encroachment upon rights
expressly stipulated for in the Constitution by the declaration of rights.” Un-
less we return to this view of our judicial function, unless we once again ac-
cept the notion that the Bill of Rights means what it says and that this Court
must enforce that meaning, I am of the opinion that our great charter of lib-
erty will be more honored in the breach than in the observance.
But even assuming what I cannot assume, that some balancing is proper
in this case, I feel that the Court after stating the test ignores it completely. At
most it balances the right of the Government to preserve itself, against
Barenblatt’s right to refrain from revealing Communist affiliations. Such a
balance, however, mistakes the factors to be weighed. In the first place, it
completely leaves out the real interest in Barenblatt’s silence, the interest of
the people as a whole in being able to join organizations, advocate causes
and make political “mistakes” without later being subjected to governmental
penalties for having dared to think for themselves. It is this right, the right to
err politically, which keeps us strong as a Nation. For no number of laws
against communism can have as much effect as the personal conviction
which comes from having heard its arguments and rejected them, or from
having once accepted its tenets and later recognized their worthlessness. In-
stead, the obloquy which results from investigations such as this not only sti-
fles “mistakes” but prevents all but the most courageous from hazarding any
views which might at some later time become disfavored. This result, whose
importance cannot be overestimated, is doubly crucial when it affects the
universities, on which we must largely rely for the experimentation and de-
velopment of new ideas essential to our country’s welfare. It is these interests
of society, rather than Barenblatt’s own right to silence, which I think the
Court should put on the balance against the demands of the Government, if
any balancing process is to be tolerated. Instead they are not mentioned,
while on the other side the demands of the Government are vastly overstated
and called “self preservation.”
Moreover, I cannot agree with the Court’s notion that First Amendment
 B | Investigatory, Contempt, and Impeachment Powers | 53%

freedoms must be abridged in order to “preserve” our country. That notion

rests on the unarticulated premise that this Nation’s security hangs upon its
power to punish people because of what they think, speak or write about, or
because of those with whom they associate for political purposes. The
Government, in its brief, virtually admits this position when it speaks of the
“communication of unlawful ideas.” I challenge this premise, and deny that
ideas can be proscribed under our Constitution. ...
I would reverse this conviction.

Gibson v. Florida Legislative

Investigation Committee.
372 US. 539, 83 S.CT. 889 (1963)

Following the watershed ruling in Brown v. Board of Education of Topeka,

Kansas, 347 U.S. 483 (1954) (see Vol. 2, Ch. 12), the National Associa-
~ tion for the Advancement of Colored People (NAACP) spearheaded
further litigation to force Southern states to begin school desegrega-
tion. As a result, the NAACP was subject to great hostility, as state offi-
cials sought in a variety of ways to thwart its activities. In Alabama,
officials endeavored to stop the NAACP’s efforts by requiring it to reg-
ister and produce alist of its members. The NAACP complied, except
for producing its membership list on the ground that that violated its
First Amendment right to freedom of association. After being found in
contempt and fined $100,000 for refusing to turn over its membership
lists, the NAACP appealed to the Supreme Court. In National Associa-
tion for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958)
(see Vol. 2, Ch. 5), the Court upheld the organization’s claims that dis-
closure of its membership lists would abridge its First Amendment right
of lawful association. In 1958, the Florida Supreme Court likewise
ruled that the NAACP could not be compelled to release its member-
ship lists to a state legislative committee. But it also held that the “cus-
todian” of its records could be compelled to bring them to the hearings
and to refer to them in answering questions. The next year, the Florida
legislature established a Legislative Investigation Committee to investi-
gate “subversive organizations’—such as the Communist party—and
their infiltration of the NAACP. Theodore Gibson, the president of the
Miami branch of the NAACP, was subpoenaed to appear and to bring
the membership lists of his branch for reference to hearings of the
committe.. Gibson agreed to answer questions about members but re-
fused to bring the records to the committee’s hearings. He contended
532 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

that that request infringed on members’ freedom of association. After a

state court found him in contempt and the Florida Supreme Court af-
firmed, Gibson appealed to the Supreme Court, and a bare majority re-
versed the decision of the state supreme court.
The Court’s decision was five to four, and the majority’s opinion
was announced by Justice Goldberg. Concurring opinions were deliv-
ered by Justices Black and Douglas. Dissents were by Justices White and
Harlan, who was joined by Justices Clark and Stewart.

Justice GOLDBERG delivers the opinion of the Court.

We are here called upon once again to resolve a conflict between indi-
vidual rights of free speech and association and governmental interest in
conducting legislative investigations. Prior decisions illumine the contending
principles.
This Court has repeatedly held that rights of association are within the
ambit of the constitutional protections afforded by the First and Fourteenth
Amendments. .. . The respondent Committee does not contend otherwise,
nor could it, for, as was said in N.A.A.C.P. v. Alabama, “It is beyond debate
that freedom to engage in association for the advancement of beliefs and
ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process
Clause of the Fourteenth Amendment, which embraces freedom of speech.”
And it is equally clear that the guarantee encompasses protection of privacy
of association 1n organizations such as that of which the petitioner is presi-
dent; indeed, in both the Bates [v. Little Rock, 361 U.S. 516 (1960)] and AI-
abama cases, this Court held N.A.A.C.P. membership lists of the very type
here in question to be beyond the States’ power of discovery in the circum-
stances there presented.
The First and Fourteenth Amendment rights of free speech and free as-
sociation are fundamental and highly prized, and “need breathing space to
survive.” N.A.A.C.P v. Button, 371 U.S. 415 [(1963)]. “Freedoms such as these
are protected not only against heavy-handed frontal attack, but also from
being stifled by more subtle governmental interference.” Bates v. Little Rock.
And, as declared in N.A.A.C.P. v, Alabama, “It is hardly a novel perception
that compelled disclosure of affiliation with groups engaged in advocacy may
constitute [an] ... effective . . . restraint on freedom of association. . . . This
Court has recognized the vital relationship between freedom to associate and
privacy in one’s associations. . . . Inviolability of privacy in group association
may in many circumstances be indispensable to preservation of freedom of
association, particularly where a group espouses dissident beliefs.’ So it is
here.
At the same time, however, this Court’s prior holdings demonstrate that
there can be no question that the State has power adequately to inform it-
self—through legislative investigation, if it so desires—in order to act and
protect its legitimate and vital interests. . . .
Significantly, the parties are in substantial agreement as to the proper test
to be applied to reconcile the competing claims of government and individ-
ual and to determine the propriety of the Committee’s demands. As declared
by the respondent Committee in its brief to this Court, “Basically, this case
 B | Investigatory, Contempt, and Impeachment Powers | 533

hinges entirely on the question of whether the evidence before the Com-
mittee [was] . . . sufficient to show probable cause or nexus between the
N.A.A.C.P. Miami. Branch, and Communist activities.” We understand this
to mean—regardless of the label applied, be it “nexus,” “foundation,” or
whatever—that it is an essential prerequisite to the validity of an investiga-
tion which intrudes into the area of constitutionally protected rights of
speech, press, association and petition that the State convincingly show a sub-
stantial relation between the information sought and a subject of overriding
and compelling state interest. Absent such a relation between the N.A.A.C.P.
and conduct in which the State may have a compelling regulatory concern,
the Committee has not “demonstrated so cogent an interest in obtaining and
making public” the membership information sought to be obtained as to
“justify the substantial abridgement of associational freedom which such dis-
closures will effect”...
Applying these principles to the facts of this case, the respondent Com-
mittee contends that the prior decisions of this Court ... compel aresult
here upholding the legislative right of inquiry. In Barenblatt [v. United States,
360 U.S. 109 (1959)], Wilkinson [v. United States, 365 U.S. 431 (1961)], and
Braden |v. United States, 365 U.S. 431 (1961)], however, it was a refusal to an-
swer a question or questions concerning the witness’ own past or present
membership in the Communist Party which supported his conviction. It is ap-
parent that the necessary preponderating governmental interest and, in fact,
the very result in those cases were founded on the holding that the Com-
munist Party is not an ordinary or legitimate political party, as known in this
country, and that, because of its particular nature, membership therein is itself
a permissible subject of regulation and legislative scrutiny. Assuming the
correctness of the premises on which those cases were decided, no further
demonstration of compelling governmental interest was deemed necessary,
since the direct object of the challenged questions there was discovery of
membership in the Communist Party, a matter held pertinent to a proper
subject then under inquiry.
Here, however, it is not alleged Communists who are the witnesses be-
fore the Committee and it is not discovery of their membership in that party
which is the object of the challenged inquiries. Rather, it is the N.A.A.C.P.
itself which is the subject of the investigation, and it is its local president, the
petitioner, who was called before the Committee and held in contempt be-
cause he refused to divulge the contents of its membership records. There
is no suggestion that the Miami branch of the N.A.A.C.P. or the national
organization with which it is affiliated was, or is, itself a subversive organi-
zation. Nor is there any indication that the activities or policies of the
N.A.A.C.P. were either Communist dominated or influenced. In fact, this
very record indicates that the association was and is against communism
and has voluntarily taken steps to keep Communists from being members.
Each year since 1950, the N.A.A.C.P. has adopted resolutions barring Com-
‘munists from membership in the organization. Moreover, the petitioner tes-
tified that all prospective officers of the local organization are thoroughly
investigated for Communist or subversive connections and, though subver-
sive activities Constitute grounds for termination of association membership,
no such expulsions from the branch occurred during the five years preceding
the investigation.
534 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

Thus, unlike the situation in Barenblatt, Wilkinson, and Braden, supra, the
Committee was not here seeking from the petitioner or the records of which
he was custodian any information as to whether he, himself, or even other
persons were members of the Communist Party, Communist front or affili-
ated organizations, or other allegedly subversive groups; instead, the entire
thrust of the demands on the petitioner was that he disclose whether other
persons were members of the N.A.A.C_P,, itselfa concededly legitimate and
nonsubversive organization. Compelling such an organization, engaged in
the exercise of First and Fourteenth Amendment rights, to disclose its
membership presents, under our cases, a question wholly different from
compelling the Communist Party to disclose its own membership. Moreover,
even to say, as in Barenblatt .. . that it is permissible to inquire into the sub-
ject of Communist infiltration of educational or other organizations does not
mean that it is permissible to demand or require from such other groups dis-
closure of their membership by inquiry into their records when such dis-
closure will seriously inhibit or impair the exercise of constitutional rights
and has not itself been demonstrated to bear a crucial relation to a proper
governmental interest or to be essential to fulfillment of a proper govern-
mental purpose. The prior holdings that governmental interest in controlling
subversion and the particular character of the Communist Party and its ob-
jectives outweigh the right of individual Communists to conceal party mem-
bership or affiliations by no means require the wholly different conclusion
that other groups—concededly legitimate—automatically forfeit their rights
to privacy of association simply because the general subject matter of the
legislative inquiry is Communist subversion or infiltration. The fact that
governmental interest was deemed compelling in Barenblatt, Wilkinson, and
Braden and held to support the inquiries there made into membership in the
Communist Party does not resolve the issues here, where the challenged
questions go to membership in an admittedly lawful organization.
In the absence of directly determinative authority, we turn, then, to con-
sideration of the facts now before us. Obviously, if the respondent were still
seeking discovery of the entire membership list, we could readily dispose of
this case on the authority of Bates v, Little Rock, and N.A.A.C.P. v, Alabama,
supra; a like result would follow if it were merely attempting to do piecemeal
what could not be done in a single step. Though there are indications that
the respondent Committee intended to inquire broadly into the N.A.A.C.P.
membership records, there is no need to base our decision today upon a pre-
diction as to the course which the Committee might have pursued if initially
unopposed by the petitioner. Instead, we rest our result on the fact that
the record in this case is insufficient to show a substantial connection be-
tween the Miami branch of the N.A.A.C.P. and Communist activities which
the respondent Committee itself concedes is an essential prerequisite to
demonstrating the immediate, substantial, and subordinating state interest
necessary to sustain its right of inquiry into the membership lists of the
association.
Basically, the evidence relied upon by the respondent to demonstrate the
necessary foundation consists of the testimony ofR. J. Strickland, an investi-
gator for the Committee and its predecessors, and Arlington Sands, a former
association official. .
Strickland identified by name some 14 persons whom he said either
 B | Investigatory, Contempt, and Impeachment Powers | 535

were or had been Communists or members of Communist “front” or “affili-

ated” organizations. His description of their connection with the association
was simply that “each of them has been a member of and/or participated in
the meetings and other affairs of the N.A.A.C.P. in Dade County, Florida.”
In addition, one of the group was identified as having made, at an unspeci-
fied time, a contribution of unspecified amount to the local organization.
We do not know from this ambiguous testimony how many of the 14
were supposed to have been N.A.A.C.P. members. For all that appears, and
there is no indicated reason to entertain a contrary belief, each or all of the
named persons may have attended no more than one or two wholly public
meetings of the N.A.A.C.P., and such attendance, like their membership, to
the extent it existed, in the association, may have been wholly peripheral and
begun and ended many years prior even to commencement of the present
investigation in 1956. In addition, it is not clear whether the asserted Com-
munist affiliations and the association with the N.A.A.C.P., however slight,
coincided in time... .
This summary of the evidence discloses the utter failure to demonstrate
the existence of any substantial relationship between the N.A.A.C.P. and
subversive or Communist activities. In essence, there is here merely indirect,
less than unequivocal, and mostly hearsay testimony that in years past some
14 people who were asserted to be, or to have been, Communists or mem-
bers of Communist front or “affiliated organizations” attended occasional
meetings of the Miami branch of the N.A.A.C.P. “and/or” were members of
that branch, which had a total membership of about 1,000....
Of course, a legislative investigation—as any investigation—must pro-
ceed “step by step,” Barenblatt v. United States, but step by step or in totality, an
adequate foundation for inquiry must be laid before proceeding in such a
manner as will substantially intrude upon and severely curtail or inhibit con-
stitutionally protected activities or seriously interfere with similarly protected
associational rights. No such foundation has been laid here. The respondent
Committee has failed to demonstrate the compelling and subordinating gov-
ernmental interest essential to support direct inquiry into the membership
records of the N.A.A.C.P.
Nothing we say here impairs or denies the existence of the underlying
legislative right to investigate or legislate with respect to subversive activities
by Communists or anyone else; our decision today deals only with the man-
ner in which such power may be exercised and we hold simply that groups
which themselves are neither engaged in subversive or other illegal or im-
proper activities nor demonstrated to have any substantial connections with
such activities are to be protected in their rights of free and private associa-
tion! <2:
To permit legislative inquiry to proceed on less than an adequate foun-
dation would be to sanction unjustified and unwarranted intrusions into the
very heart of the constitutional privilege to be secure in associations in
legitimate organizations engaged in the exercise of First and Fourteenth
Amendment rights; to impose a lesser standard than we here do would be in-
consistent with the maintenance of those essential conditions basic to the
preservation of our democracy.
The judgment below must be and is reversed.
Reversed.
 536 | Concress: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS
Se —————E———————

“) Justice HARLAN, with whom Justice CLARK, Justice STEWART, and

Justice WHITE join, dissenting.
This Court rests reversal on its finding that the Committee did not have
sufficient justification for including the Miami Branch of the N.A.A.C.P.
within the ambit of its investigation—that, in the language of our cases [Up-
haus v. Wyman, 360 U.S. 72 (1959)], an adequate “nexus” was lacking between
the N.A.A.C.P. and the subject matter of the Committee’s inquiry.
The Court’s reasoning is difficult to grasp. I read its opinion as basically
proceeding on the premise that the governmental interest in investigating
Communist infiltration into admittedly nonsubversive organizations, as dis-
tinguished from investigating organizations themselves suspected of sub-
versive activities, is not sufficient to overcome the countervailing right to
freedom of association. On this basis “nexus” is seemingly found lacking be-
cause it was never claimed that the N.A.A.C.P. Miami Branch had itself en-
gaged in subversive activity, and because none of the Committee’s evidence
relating to any of the 52 alleged Communist Party members was sufficient to
attribute such activity to the local branch or to show that it was dominated,
influenced, or used “by Communists.”
But, until today, I had never supposed that any of our decisions relating
to state or federal power to investigate in the field of Communist subversion
could possibly be taken as suggesting any difference in the degree of govern-
mental investigatory interest as between Communist infiltration of organiza-
tions and Communist activity by organizations... .
Given the unsoundness of the basic premise underlying the Court’s
holding as to the absence of “nexus,” this decision surely falls of its own
weight. For unless “nexus” requires an investigating agency to prove in ad-
vance the very things it is trying to find out, I do not understand how it can
be said that the information preliminarily developed by the Committee’s in-
vestigator was not sufficient to satisfy, under any reasonable test, the require-
ment om nexus.) 2
I also find it difficult to see how this case really presents any
serious question as to interference with freedom of association. Given the
willingness of the petitioner to testify from recollection as to individual
memberships in the local branch of the N.A.A.C.P., the germaneness of the
membership records to the subject matter of the Committee’s investigation,
and the limited purpose for which their use was sought—as an aid to re-
freshing the witness’ recollection, involving their divulgence only to the pe-
titioner himself . ..—this case of course bears no resemblance whatever to
N.A.A.C.P v, Alabama, or Bates v, Little Rock. In both of those cases the State
had sought general divulgence of local N.A.A.C.P. membership lists without
any showing of a justifying state interest.In effect what we are asked to hold
here is that the petitioner had a constitutional right to give only partial or
inaccurate testimony, and that indeed seems to me the true effect of the
Court’s holding today.
 B | Investigatory, Contempt, and Impeachment Powers | 537

Walter L. Nixon v. United States

s06nUiS/224H1135S:017320(1903)

Walter Nixon, a former chief judge of the federal district court for
southern Mississippi, was tried and convicted by a jury of two counts of
making false statements before a federal grand jury and sentenced to
prison. The grand jury had investigated reports that Nixon accepted
money from a friend in exchange for seeking to halt the federal prose-
cution of his friend’s son. Subsequently, because Nixon refused to resign
from his judgeship and continued to receive his judicial salary while in
prison, the House of Representatives adopted three articles of im-
peachment; two articles charged Nixon with giving false testimony to
the grand jury and the third with bringing the judiciary into disrepute.
The Senate then voted to invoke its own Impeachment Rule XI, under
which the presiding officer appoints a committee of Senators to “re-
_ ceive evidence and take testimony.’ That committee held four days of
hearings, during which ten witnesses, including Nixon, testified. The
committee subsequently presented a transcript and a report to the full
Senate, which debated the articles of impeachment for three hours and
allowed Nixon to make a personal appeal. Following Nixon’s convic-
tion by a vote of eighty-nine to eight in the Senate, he filed a suit
claiming that the Senate’s expedited impeachment procedure was un-
constitutional. After a federal district and appellate court rejected his
claim as nonjusticiable, Nixon appealed to the Supreme Court.
The Court’s decision was unanimous, and the opinion was an-
nounced by Chief Justice Rehnquist. Concurrences were by Justices
Stevens, White, and Souter.

“1 Chief Justice REHNQUIST delivers the opinion of the Court.

In this case, we must examine Article I, Section 3, Clause 6, to deter-
mine the scope of authority conferred upon the Senate by the Framers re-
garding impeachment. It provides:

“The Senate shall have the sole power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirma-
tion. When the President of the United States is tried, the Chief
Justice shall preside: And no person shall be convicted without the
Concurrence of two-thirds of the members present.”

- The language and structure of this Clause are revealing. The first sentence is
a grant of authority to the Senate, and the word “sole” indicates that this au-
thority is reposed in the Senate and nowhere else. . . .
538 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND _INVESTIGATORY POWERS

Petitioner argues that the word “try” in the first sentence imposes by
implication an additional requirement on the Senate in that the proceedings
must be in the nature of a judicial trial. From there petitioner goes on to ar-
gue that this limitation precludes the Senate from delegating to a select com-
mittee the task of hearing the testimony of witnesses, as was done pursuant
to senate: Rule x1)
There are several difficulties with this position which lead us ultimately
to reject it. The word “try” both in 1787 and later, has considerably broader
meanings than those to which petitioner would limit it... .
The Framers labored over the question of where the impeachment
power should lie. Significantly, in at least two considered scenarios the power
was placed with the Federal Judiciary. .. . According to Alexander Hamilton,
the Senate was the “most fit depositary of this important trust” because its
members are representatives of the people. See The Federalist, No. 65. The
Supreme Court was not the proper body because the Framers “doubted
whether the members of that tribunal would, at all times, be endowed with
sO eminent a portion of fortitude as would be called for in the execution of
so difficult a task” or whether the Court “would possess the degree of credit
and authority” to carry out its judgment if it conflicted with the accusation
brought by the Legislature—the people’s representatives. .. .
There are two additional reasons why the Judiciary, and the Supreme
Court in particular, were not chosen to have any role in impeachments. First,
the Framers recognized that most likely there would be two sets of proceed-
ings for individuals who commit impeachable offenses—the impeachment
trail and a separate criminal trial... .The Framers deliberately separated the
two forums to avoid raising the specter of bias and to ensure independent
judgments. ...
Second, judicial review would be inconsistent with the Framers’ insis-
tence that our system be one of checks and balances. In our constitutional
system, impeachment was designed to be the only check on the Judicial
Branch by the Legislature... .
In addition to the textual commitment argument, we are persuaded that
the lack of finality and the difficulty of fashioning relief counsel against jus-
ticiability. See Baker v. Carr. We agree with the Court of Appeals that opening
the door of judicial review to the procedures used by the Senate in trying
impeachments would “expose the political life of the country to months,
or perhaps years, of chaos.” This lack of finality would manifest itself most
dramatically if the President were impeached. The legitimacy of any suc-
cessor, and hence his effectiveness, would be impaired severely, not merely
while the judicial process was running its course, but during any retrial that
a differently constituted Senate might conduct if its first judgment of con-
viction were invalidated. Equally uncertain is the question of what relief
a court may give other than simply setting aside the judgment of convic-
tion. Could it order the reinstatement of a convicted federal judge, or order
Congress to create an additional judgeship if the seat had been filled in the
interim?
Petitioner finally contends that a holding of nonjusticiability cannot be
reconciled with our opinion in Powell v. McCormack, 395 U.S. 486 (1969).
The relevant issue in Powell was whether courts could review the House of
Representatives’ conclusion that Powell was “unqualified” to sit as a Member
because he had been accused of misappropriating public funds and abusing
 B | Investigatory, Contempt, and Impeachment Powers | 539

the process of the New York courts. We stated that the question of justicia-
bility turned on whether the Constitution committed authority to the
House to judge its members’ qualifications, and if so, the extent of that com-
mitment. Article I, Section 5 provides that “Each House shall be the Judge of
the Elections, Returns and Qualifications of its own Members.” In turn, Ar-
ticle I, Section 2 specifies three requirements for membership in the House:
The candidate must be at least twenty-five years of age, a citizen of the
United States for no less than seven years, and an inhabitant of the State he is
chosen to represent. We held that, in light of the three requirements specified
in the Constitution, the word “qualifications
—of” which the House was to
be the Judge—was of a precise, limited nature.
Our conclusion in Powell was based on the fixed meaning of “qualifica-
tions” set forth in Article I, Section 2....In the case before us, there is no
separate provision of the Constitution which could be defeated byallowing
the Senate final authority to determine the meaning of the word “try” in the
Impeachment Trial Clause. We agree with Nixon that courts possess power
to review either legislative or executive action that transgresses identifiable
textual limits. ... But we conclude, after exercising that delicate responsibil-
ity, that the word “try” in the Impeachment Clause does not provide an
identifiable textual limit on the authority which is committed to the Senate.

| Justice SOUTER concurred in a separate opinion in which, unlike Justice

WHITE, he argued that the issue was nonjusticiable, although for different rea-
sons than given by Chief Justice REHNQUIST.

= CONSTITUTIONAL HISTORY

Impeachment Trials

Article I provides that the House of Representatives “shall have the sole
Power of Impeachment,” and that the Senate has “the sole Power to try all
Impeachments,” as well as requires a two-thirds vote for conviction. Article II
further specifies that the president and all civil officers shall be impeached for
“Treason, Bribery, or other high Crimes and Misdemeanors.”
The process was designed to be difficult and infrequently employed, ex-
cept for removing officials who committed “great offenses.” Indeed, after the
partisan-driven effort to impeach Justice Samuel Chase failed to result in
conviction, Thomas Jefferson lamented that impeachment was “a mere scare-
crow.” Still, more than fifty judges have resigned rather than face impeach-
ment. In addition, two judges, as well as President Richard M. Nixon in
1974, resigned in order to evade impeachment trials.
There have been only fifteen Senate trials, resulting in seven convic-
tions. Not all of those tried had allegedly committed criminal offenses. Most
had other ,roblems. Charges of alcoholism, senility, or violations of ethical
conduct have often been leveled at judges. Others were targets of opposing
political forces.
eS
540 | CONGRESS: MEMBERSHIP, IMMUNITIES, AND INVESTIGATORY POWERS

POLITICAL COMPOSITION SENATE

NAME (YEAR) PARTY /OFFICE HOUSE SENATE VOTE

William Blount Democratic- 58 Federalists 20 Federalists Yes 11.

(1799) Republican 48 Democratic- 12 Democratic- No 14
Senator Republicans Republicans

John Pickering Federalist 69 Republicans 25 Republicans Yes 19

(1804) Judge 36 Federalists 9 Federalists No 7
Convicted

Samuel Chase Federalist 102 Republicans 25 Republicans Yes 19

(1805) Justice 39 Federalists 9 Federalists No 15

James H. Peck Republican 139 Democrats 36 Democrats Yes 21

(1830-1831) Judge 74 Republicans 6 Whigs No 22
3 Federalists
3 Republicans

West H. Humphreys Democrat 105 Republicans 27 Republicans Yes 39

(1862) Judge 43 Democrats 14 Democrats No 0
30 Other 7 Other Convicted

Andrew Johnson Democrat 143 Republicans 42 Republicans Yes 35

(1868) President 49 Democrats 12 Democrats No 19

William W. Belknap Douglas Democrat 169 Democrats 45 Republicans Yes 37

(1876) Secretary of War 109 Republicans 12 Democrats No 19
14 Other

Charles Swayne Republican 207 Republicans 58 Republicans Yes 35

(1905) Judge 178 Democrats 32 Democrats No 47

Robert Archbald Republican 228 Democrats 51 Republicans Yes 68

(1913) Judge 161 Republicans 45 Democrats No 5
Convicted

Harold Louderback Republican 220 Democrats 60 Democrats Yes 45

(1933) Judge 21 Republicans 35 Republicans No 34
1 Other 1 Other

Halsted Ritter Republican 319 Democrats 70 Democrats Yes 56

(1936) Judge 103 Republicans 26 Republicans No 28
10 Other Convicted
Harry E. Clairborne Democrat 253 Democrats 53 Republicans Yes 87
(1986) Judge 182 Republicans 47 Democrats No 10
Convicted

Alcee Hastings Democrat 262 Democrats 57 Democrats Yes 69

(1989) Judge 173 Republicans 43 Republicans No 26
Convicted
Walter Nixon, Jr. Democrat 262 Democrats 57 Democrats Yes 89
(1989) Judge 173 Republicans 43 Republicans No 8
Convicted
William J. Clinton Democrat 229 Republicans 55 Republicans Yes 45/50*
(1999) President 206 Democrats 45 Democrats No 55/50*
(*2 counts)
a SR SE
 B | Investigatory, Contempt, and Impeachment Powers | 541

SY
Because of the difficulties of impeachment and problems with judicial disci-
pline and removal, some scholars and politicians argue that federal judges—
who under Article III, section 1 hold their offices subject to “good
Behavior”—may be removed by means other than impeachment. Since
Article HI conditions judicial tenure upon “good Behavior,” it arguably
provides a broader basis for removing judges than Article II’s impeachment
provision.
CONGRESS: LEGISLATIVE,
TAXING, AND SPENDING
POWERS

he legislative powers of Congress, as noted in the last chapter, are

expressly enumerated. Article 1 lists seventeen specific powers, in-
cluding the power to regulate commerce, to lay and collect taxes, and to
“provide for the common Defense and general welfare of the United
States.” In addition, Congress was given an important residual power of
enacting all laws “necessary and proper” to the execution of its author-
ity and other delegated powers.
Basically, Congress may enact four types of laws: those that (1) pro-
vide substantive or procedural rules of general application governing,
for example, interstate commerce; (2) govern the collection of revenues
for the national government; (3) appropriate revenues for expenditure
by the government; and (4) confer benefits on or adjust claims of indi-
viduals against the government. Although extensive, this power is not
unlimited. Congress may not, for example, pass ex post facto laws (crim-
inal statutes that have retroactive application). Nor may it deny or in-
fringe on guarantees of the Bill of Rights.
The detailed enumeration of Congress’s legislative powers registers
the Framers’ aim of correcting the defects of the Articles of Confeder-
ation by creating a national government with vastly greater, although
nonetheless limited, powers. As James Madison explains in The Federal-
ist, No. 42, under the Articles of Confederation a central problem was
that the Continential Congress could not effectively regulate com-
merce among the states or with foreign nations. For this reason, among
seventeen areas over which legislative power is granted in Article I, the

542
 Congress: Legislative, Taxing, and Spending Powers | 543

commerce clause empowers Congress “to regulate commerce with for-

eign nations, and among the several states, and with Indian tribes.”
In specifically enumerating legislative powers, the Constitutional
Convention rejected Alexander Hamilton’s proposal that Congress have
the “power to pass all laws which they shall judge necessary to the
common defense and general welfare of the Union’’! However, the
convention agreed to add the necessary and proper clause, recognizing
an implied power of Congress “[t]o make all Laws which shall be neces-
sary and proper for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.”
Besides enumerated and implied powers, Congress possesses in-
herent powers that flow from the concept of sovereignty. For example,
the Constitution does not specifically confer on Congress the power to
govern territories acquired by acquisition or through treaties. Yet as
Chief Justice Marshall observed, “The right to govern may be the
inevitable consequence of the right to acquire territory. Whichever
_ may be the source, whence the power is derived, the possession of it
is unquestioned.” In United States v. Kagama, 118 U.S. 375 (1886),
the Court more emphatically acknowledged the inherent powers of
Congress:

[T]his power of Congress to organize territorial governments and

make laws for their inhabitants, arises not so much from the clause
in the Constitution in regard to disposing or making rules and reg-
ulations concerning the Territory and other property of the United
States, as from the ownership of the country in which the Territo-
ries are, and the right of exclusive’ sovereignty which must exist in
the National Government and can be found nowhere else.

In addition to enumerated, implied, and inherent powers, constitutional

amendments are a source of expanding congressional powers. In partic-
ular, the “Reconstruction Amendments” (the Thirteenth, Fourteenth,
and Fifteenth Amendments) contain provisions expanding Congress’s
enforcement powers; they generated major controversy over the passage
of the Voting Rights Act, forbidding racial discrimination in voting, see
South Carolina v. Katzenbach (1966) (see excerpt in Ch. 8).
While the Constitutional Convention aimed at ensuring extensive
legislative powers for Congress, it also sought to preserve for the states
those powers not delegated to the national government. But during
the ratification period Anti-Federalists charged that Congress was given
. too much, power, especially with “the sweeping” necessary and proper
clause. As the pamphleteer Centinel cautioned in the fall of 1787,“ What-
ever law congress may deem necessary and proper for carrying into
544 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

& CONSTITUTIONAL HISTORY

Formal Amendments and Methods of

Amending the Constitution

Only twenty-seven of the thirty-one amendments proposed by Congress,

from the over 11,500 proposed amendments introduced in Congress, have
been successfully passed and ratified by the states. Two of the most recent
proposals that have failed to win approval involved granting home rule and
Senate representation to residents of the District of Columbia and the ill-
fated Equal Rights Amendment, which would have recognized the equal
rights of women.

Four Methods of Amending the Constitution

Methods of Proposal Methods of Ratification

IS se Bs Usual : =

By two-thirds vote , By state legislatures

of both houses in three-fourths
Method Not
of Congress. | Yet Tried of the states.

Method Used

Bynatonal | neat
ae Only Once:

constitutional =i» By ratifying

convention called by | conventions in
Congress at request | three-fourths
of the states.
 Congress: Legislative, Taxing, and Spending Powers | 545

SS

The Time Taken to Ratify Amendments to the Constitution

AMENDMENT NUMBER
AND CONTENT DATE TIME TO RATIFY

1-10 The Bill of Rights 1791 1 year, 2.5 months

11 Lawsuits against states 1798 3 years, 10 months
12 Presidential elections 1804 8.5 months
13 Abolition of slavery 1865 10.5 months
14 Equal civil rights _ 1868 2 years, 1.5 months
15 Voting rights for freemen
(black men) 1870 1 year, 1 month
16 Federal income tax 1915 3 years, 7.5 months
17 Senatorial elections - L913 1 year, 0.5 month
18 Prohibition 1919 1 year, 1.5 months
19 Women’s suffrage 1920 1 year, 2.5 months
20 ‘Terms of office 1933 11 months
21 Repeal of prohibition 1933 9.5 months
22 Limit on president’s terms 1951 3 years, 11.5 months
23 Voting rights for the
District of Columbia 1961 9 months
24 Abolition of poll taxes 1964 1 year, 5.5 months
25 Presidential succession 1965 1 year, 6.5 months
26 Eighteen-year-olds’
suffrage L971 4 months
27 Ban on midterm
salary increases
for Congress 1992 203 years

execution any of the powers vested in them, may be enacted; and by

virtue of this clause, they may control and abrogate any and every of
the laws of the state governments, on the allegation that they interfere
with the execution of their powers.’ Likewise, when opposing New
York’s ratification of the Constitution, leading Anti-Federalist Brutus
warned that under the necessary and proper clause Congress “may so
exercise this power as entirely to annihilate all the state governments,
and reduce this country to one single government.”*
Because of the Anti-Federalists’ opposition and dire predictions, the
first Congress added the Tenth Amendment. It underscores that “pow-
ers not delegated to the United States by the Constitution .. . are re-
served to the States respectively, or to the people.’ However, the Tenth
Amendment by no means resolved the essential tension between con-
. gressional,and state powers (see Ch. 7).
Constitutional controversies continue to arise from the debate ini-
tially sparked by the Federalists and Anti-Federalists over the scope of
546 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

Congress’s legislative powers and competing claims of ‘states’ rights”

and federalism. In this chapter the development of Congress’s expansive
legislative powers is examined, and in Chapter 7 their limitations and
the scope of states’ regulatory powers over commerce are considered.

= CONSTITUTIONAL HISTORY

A Tiventy-seventh Amendment after 203 Years

In 1789 James Madison proposed twelve amendments to the Constitution,

and ten known as the Bill of Rights were ratified in 1791. More than 200
years later, one of his two unratified amendments finally received the crucial
vote of three-fourths of the states. Madison’s proposed second amendment,
which became the Twenty-seventh Amendment, provides that “[n]o law
varying the compensation for the services of the Senators and Representa-
tives shall take effect, until an election of Representatives shall have
intervened.”
Some congressional leaders initially disagreed about whether an amend-
ment could take effect 203 years after its proposal. But after the archivist of
the United States verified that the bills ratified in each state were the same
and certified the amendment, it took effect. Subsequently, for politically
symbolic reasons, Congress approved of the amendment by a vote of 99 to 0
in the Senate and 414 to 3 in the House.
ArticleV of the Constitution does not specify a time limit for states’ rat-
ification. Of the more than 10,000 proposed amendments, four others passed
Congress and remain outstanding. One, also proposed in 1789, would base
the size of the House of Representative on one representative for every
30,000 people until the House reached 100 members, then one representa-
tive for every 40,000 until the House grew to 200, with Congress determin-
ing its size thereafter. An 1810 proposal would deny citizenship to anyone
accepting a title or office from an “emperor, king, prince, or foreign power.”
In 1861 Congress passed an amendment allowing slavery to continue. And in
1924 Congress approved another allowing it to regulate child labor and
overturning rulings of the Supreme Court to the contrary.
In addition, thirty-two states—two short of the necessary two-thirds
—have petitioned Congress to pass a balanced budget amendment, and
nineteen have asked for an amendment banning abortion. Two other amend-
ments—the Equal Rights Amendment (Vol. 2, Ch. 12, “Constitutional His-
tory”) and a proposal giving the District of Columbia representation in
Congress—were defeated.
The first Congress did not set a deadline for ratification of its amend-
ments. Nor did Congress do so until 1917 when it required ratification of
the prohibition amendment within seven years. When that requirement was
challenged in Dillion v. Gloss, 256 U.S. 368 (1921), the Court held that “rati-
SSS SS a a a EES
 Congress: Legislative, Taxing, and Spending Powers | 547

NN

ication must be within some reasonable time after [an amendment’s] pro-
posal” and Congress’s power to set a deadline was “an incident of its power
to designate the mode of ratification.” Subsequently, the question of whether
the proposed child labor amendment could be ratified thirteen years after its
proposal arose in Coleman v, Miller, 307 U.S. 433 (1939). In that case, the
Court ruled that that was a political question for Congress, not the judiciary,
to decide.

SSS SEED

NOTES

1. A. Hamilton, in Records of the Federal Convention, Vol. 3, ed. Max Farrand (New
Haven, CT: Yale University Press, 1911), 617, 627.
2. American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 516 (1828).
3. The Centinel, in The Complete Anti-Federalist, Vol. 2, ed. Herbert J. Storing
(Chicago: University of Chicago Press, 1981), 168-169.
_ 4. Brutus, in The Complete Anti-Federalist, Vol. 2, ed. Herbert J. Storing (Chicago:
University of Chicago Press, 1981), 366.

SELECTED BIBLIOGRAPHY

Devins, Neil, and Whittington, Keith, eds. Congress and the Constitution. Durham, NC:
Duke University Press, 2005.
Frankfurter, Felix. The Commerce Clause under Marshall, Taney and Waite. Chapel Hill:
University of North Carolina Press, 1971.
Gunther, Gerald, ed. John Marshall’s Defense of McCulloch v. Maryland. Palo Alto, CA:
Stanford University Press, 1969.
Kyvig, David. Explicit and Authentic Acts: Amending the Constitution, 1776-1995.
Lawrence: University Press of Kansas, 1996.
Levinson, Sanford, ed. Responding to Imperfection: The Theory and Practice of Constitu-
tional Amendment. Princeton, NJ: Princeton University Press, 1995.
Vile, John R., ed. Proposed Amendments to the U.S. Constitution: 1787-2001. New York:
The Lawbook Exchange, 2003.
. Constitutional Change in the United States:A Comparative Study of the Role of
Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions.
New York: Praeger, 1994.
. Contemporary Questions Surrounding the Constitutional Amending Process. New
York: Praeger, 1993.
548 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

A The Classic View of Congress’s

Legislative Powers

The scope of Congress’s legislative powers, and, indeed, the power of

the national government, became the focus of an enduring struggle al-
most immediately after ratification of the Constitution. In December
1790, Secretary of the Treasury Alexander Hamilton proposed that
Congress charter a national bank. The ensuing debate over its consti-
tutionality pitted Hamilton and the Federalists against Madison and
Jefferson over not just the allocation of governmental power but funda-
mental principles of constitutional interpretation and politics.
Hamilton contended that a national bank was needed and would
strengthen the national government by aiding in tax collection, admin-
istering public finances, and in securing loans to the government. And
he persuasively argued that Congress had the broad constitutional au-
thority to establish such a corporation:

Now it appears to the Secretary of the Treasury, that this general

principle is inherent in the very definition of Government and essential to
every step of the progress to be made by that of the United States;
namely—that every power vested in a Government is in its nature
sovereign, and includes by force of the term, a right to employ all the
means requisite, and fairly applicable to the attainment of the ends of
such power; and which are not precluded by restrictions & excep-
tions specified in the constitution; or not immoral, or not contrary
to the essential ends of political activity. . ..
It is not denied, that there are implied, as well as express powers, and
that the former are as effectually delegated as the latter... .
Then it follows, that as a power of erecting a corporation may as
well be implied as any other thing; it may as well be employed as an
instrument or mean of carrying into execution any of the specified
powers, as any other instrument or mean whatever. The only ques-
tion must be, in this as in every other case, whether the mean to be
employed, or in this instance the corporation to be erected, has a
natural relation to any of the acknowledged objects or lawful ends
of the government. Thus a corporation may not be erected by con-
gress, for superintending the police of the city of Philadelphia be-
cause they are not authorized to regulate the police of that city; but
one may be erected in relation to the collection of taxes, or to the
trade with foreign countries, or the trade between the States, or
with the Indian Tribes, because it is the province of the federal
government to regulate those objects & because it is incident to
 A | The Classic View of Congress’s Legislative Powers | 549

a general sovereign or legislative power to regulate a thing, to employ

all the means which relate to its regulation to the best & greatest
advantage... .

[T]he doctrine which is contended for ... does not affirm that the
National government is sovereign in all respects, but that it is sover-
eign to a certain extent: that is, to the extent of the objects of its
specified powers.

It leaves therefore a criterion of what is constitutional, and of what

is not so. This criterion is the end to which the measure relates as a
mean. If the end be clearly comprehended within any of the speci-
fied powers, & if the measure have an obvious relation to that end,
and is not forbidden by any particular provision of the constitu-
tion—it may be safely deemed to come within the compass of the
national authority.’ -

The Senate, half of whose. members had been delegates to the Consti-
tutional Convention, unanimously endorsed Hamilton’s proposal.
By contrast, in the House of Representatives, Madison maintained
that creation of the bank was beyond the scope of Congress’s delegated
powers:

Mark the reasoning on which the validity of the bill depends. To

borrow money is made the end, and the accumulation of capitals
implied as the means. The accumulation of money is then the end,
and the Bank implied as the means. The Bank is then the end, and
a charter of incorporation ... implied as the means.
If implications, thus remote and thus multiplied, can be linked
together, a chain may be formed that will reach every object of
legislation, every object within the whole compass of political
economy... .
[T]he proposed Bank could not be called necessary to the Govern-
ment; at most could be but convenient. Its uses to the Government
could be supplied by keeping the taxes a little in advance; by loans
from individuals; by other Banks, over which the Government
would have equal command; nay greater, as it might grant or refuse
to these the privilege (a free and irrevocable gift to the proposed
Bank) of using their notes in the Federal Revenue.’

Jefferson, serving as Secretary of State, expressed similar opposition. In a

memorandum to President Washington, he explained:

I consider the foundation of the Constitution as laid on this

ground: That “all powers not delegated to the United States, by the
Constitution, nor prohibited by it to the States, are reserved to the
States or to the people.” To take a single step beyond the boun-
550 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

daries thus specially drawn around the powers of Congress is to

take possession of a boundless field of power, no longer susceptible
of any definition.
The incorporation of a bank, and the powers assumed by this bill,
have not, in my opinion, been delegated to the United States by the
Constitution. ...
It has been urged that a bank will give great facility or convenience
in the collection of taxes. Suppose this were true; yet the Constitu-
tion allows only the means which are “necessary,” not those which
are merely “convenient” for effecting the enumerated powers. If
such a latitude of construction be allowed to this phrase as to give
any non-enumerated power, it will go to every one, for there is not
one which ingenuity may not torture into a convenience in some in-
stance or other, to some one of so long a list of enumerated powers. It
would swallow up all the delegated powers, and reduce the whole
to one power, as before observed. Therefore it was that the Consti-
tution restrained them to the necessary means, that is to say, to those
means without which the grant of power would be nugatory.°

Despite these arguments, by a vote of thirty-nine to twenty the

House adopted abill chartering the bank. On February 25, 1791, Wash-
ington signed the act incorporating, and granting a twenty-year charter
to, the first Bank of the United States.
When the bank’s charter expired in 1811, its renewal was defeated
in Congress by just one vote. Jeffersonian-Republicans and private
business and banking interests led the opposition. Notably, though,
President Madison and Jefferson now supported the bank and deemed
its constitutionality settled. Four years later Congress established the
second Bank of the United States with another twenty-year charter.
This time, economic hardships brought about by the War of 1812 and
the national government’s reliance on state banks for loans, rather than
the constitutionality of the bank, was the overriding consideration in
Congress.
Opposition to a national bank, however, remained strong in the
states and eventually led to the landmark decision in McCulloch v. Mary-
land (1819) (see excerpt below). Chief Justice Marshall, an ardent Fed-
eralist, upheld the constitutionality of the bank with a broad reading of
congressional powers reminiscent of Hamilton’s arguments decades ear-
lier. In his classic formulation: “Let the end be legitimate, let it be
within the scope of the constitution, and all means which are appropri-
ate, which are plainly adapted to that end, which are not prohibited, but
consistent with the letter and spirit of the constitution, are constitu-
tional.”
Although Madison and Jefferson agreed with McCulloch’s holding,
they continued to bristle at the expansive interpretation of the power
 A The Classic View of Congress’s Legislative Powers | 551

of Congress and the national government advanced by the Marshall

Court. In Jefferson’s words, “The judiciary of the United States is the
subtle core of sappers and miners constantly working underground to
undermine the foundations of our confederated fabric. They are con-
struing our Constitution from a coordination of general [i.e., national]
and special [i.e., state] government to a general and supreme one alone.
This will lay all things at their feet.”
Opposition persisted and support for the bank gradually dimin-
ished by 1832, when Congress passed another bill extending the bank’s
charter. President Andrew Jackson vetoed the bill and again challenged
the Marshall Court’s interpretation of and authority over the Constitu-
tion (see “Jackson’s Veto Message of 1832,” excerpted in Ch. 1).
The Marshall Court nonetheless successfully established the basis
for a broad interpretation of Congress’s plenary power. Moreover, Mar-
shall’s analysis in McCulloch rests on the Constitution’s structure and al-
location of governmental authority, rather than primarily on_ its
granting congressional authority to make all necessary and proper laws.
And that analysis was subsequently incorporated into the necessary and
proper clause in justifying expansive legislation. In the Legal Tender
Cases, 110 U.S. 421 (1884), for example, the national government’s use
of legal tender to repay private debts was upheld as a “necessary and
proper” exercise of its power to create a national currency, based on its
express authority to coin money.® Later, in Katzenbach v. Morgan, 384
US. 641 (1966), the Court again reaffirmed Congress’s plenary power
under the necessary and proper clause when upholding the Voting
Rights Act of 1965, which forbids racial discrimination in voting.
Five years after McCulloch, Marshall further advanced his vision of
national governmental power by broadly construing the commerce
clause in Gibbons v. Ogden (1824) (see excerpt below). Congress itself
did not even assert its authority over commerce among the states until
the late nineteenth century. Yet Gibbons affirmed broad congressional
authority in striking down state regulations for infringing on the
power, even if unexercised, of Congress. Marshall did so by (1) defining
“commerce” as all “intercourse” that (2) “affects more states than one,”
and holding that Congress’s power over commerce is (3) complete and
(4) does not stop at state boundaries.
Gibbons was immediately heralded for securing the freedom of
interstate transportation. As a result, tax and other barriers erected
among the states were eliminated, the basis for a national “common
market” was laid, and economic growth in the country promoted. In
_addition, Marshall’s definition of commerce as intercourse among the
states woula later serve as a basis for upholding federal regulation under
the commerce clause over an expanding range of activities, including,
552 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

Chief Justice John Marshall. (Portrait by Rembrandt Peale, Collection of the Supreme Court
of the United States)

for example, the sale of lottery tickets,’ “white slave trade,”* oil pipes
running across state lines,’ and radio waves."
Through a broad interpretation of the plenary powers of Congress
in McCulloch and Gibbons, the Marshall Court advanced the interests of
the national government over those of the states and buttressed its own
power of judicial review.

NorES

1. A. Hamilton, “Opinion on the Constitutionality of an Act to Establish a Bank,” in

The Papers of Alexander Hamilton, Vol. 8, ed. Harold C. Syrett (New York: Columbia
University Press, 1961-1979), 97.
2. J. Madison, in The Debates and Proceedings in the Congress of the United States, Vol. 2
(Washington, DC: Gales and Seaton, 1834), 1944-1954.
3. T. Jefferson, “Opinion on the Constitutionality of the Bill for Establishing a Na-
tional Bank,” in The Papers of Thomas Jefferson, Vol. 19, ed. Julian Boyd (Princeton, NJ:
Princeton University Press, 1974), 275.
4. Quoted and further discussed in Dumas Malone, Jefferson: The President CBOs
Little, Brown, 1970), 146-153.
 A | The Classic View of Congress’s Legislative Powers | 553

5. See Charles Black, Structure and Relationship in Constitutional Law (Baton Rouge:
Louisiana State University Press, 1969).
6. The Court upheld as well the Interstate Commerce Act of 1887 as a necessary and
proper exercise of congressional authority, Interstate Commerce Commission v. Brimson,
154 US. 447 (1894). For other decisions relying on the necessary and proper clause,
see Lichter v. United States, 334 U.S. 743 (1948); Adams v. Maryland, 347 U.S. 179
(1954); and United States v. Oregon, 366 U.S. 643 (1961).
7. Champion v.Ames, 188 U.S. 321 (1907).
8. See Hale v. United States, 227 U.S. 308 (1913); and Caminetti v. United States, 242
US. 470 (1917).
9. The Pipe Line Cases, 234 U.S. 548 (1914).
10. Federal Radio Commission v. Nelson Brothers, 289 U.S. 266 (1933).

SELECTED BIBLIOGRAPHY

Corwin, Edward S. The Commerce Power versus State Rights. Princeton, NJ: Princeton
University Press, 1936.
Elkin, Stephen. Reconstructing the Commercial Republic. Chicago: University of Chicago
Press, 2006.

Frankfurter, Felix. The Commerce Clause under Marshall, Taney and Waite. Chapel Hill:
University of North Carolina Press, 1937.
Killenbeck, Mark. McCulloch v. Maryland: Securing A Nation. Lawrence: University
Press of Kansas, 2006.

McCulloch v. Maryland
4 Wueat. (17 U.S.) 316 (1819)

Two years after Congress chartered the second Bank of the United
States, Maryland passed a law imposing an annual tax of $15,000 on all
banks operating in the state that were not chartered by the state legisla-
ture. James McCulloch, the cashier for the Maryland branch of the
Bank of the United States, refused to pay the tax assessed against the
bank. As a result, Maryland successfully sued McCulloch, who then ap-
pealed to the Supreme Court.
The Court’s decision was unanimous, and the opinion was an-
nounced by Chief Justice Marshall.

“) Chief Justice MARSHALL delivers the opinion of the Court.

In the*case now to be determined, the defendant, a sovereign state, de-
nies the obligation of a law enacted by the legislature of the Union, and the
plaintiff, on his part, contests the validity of an act which has been passed by
554 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS
ee

the legislature of that state. The constitution of our country, in its most inter-
esting and vital parts, is to be considered; the conflicting powers of the
government of the Union and of its members, as marked in that constitu-
tion, are to be discussed; and an opinion given, which may essentially influ-
ence the great operations of the government. No tribunal can approach such
a question without a deep sense ofits importance, and of the awful responsi-
bility involved in its decision. But it must be decided peacefully, or remain a
source of hostile legislation, perhaps of hostility of a still more serious nature;
and if it is to be so decided, by this tribunal alone can the decision be made.
On the Supreme Court of the United States has the constitution of our
country devolved this important duty.
The first question made in the cause is, has Congress power to incorpo-
rate a bank?
It has been truly said that this can scarcely be considered as an open
question, entirely unprejudiced by the former proceedings of the nation re-
specting it. The principle now contested was introduced at a very early pe-
riod of our history, has been recognized by many successive legislatures, and
has been acted upon by the judicial department, in cases of peculiar delicacy,
as a law of undoubted obligation.
It will not be denied that a bold and daring usurpation might be re-
sisted, after an acquiescence still longer and more complete than this. But it
is conceived that a doubtful question, one on which human reason may
pause, and the human judgment be suspended, -in the decision of which the
great principles of liberty are not concerned, but the respective powers of
those who are equally the representatives of the people, are to be adjusted; if
not put at rest by the practice of the government, ought to receive a consid-
erable impression from that practice. An exposition of the constitution, delib-
erately established by legislative acts, on the faith of which an immense
property has been advanced, ought not to be lightly disregarded.
The power now contested was exercised by the first Congress elected
under the present constitution. The bill for incorporating the bank of the
United States did not steal upon an unsuspecting legislature, and pass un-
observed. Its principle was completely understood, and was opposed with
equal zeal and ability. After being resisted, first in the fair and open field of
debate, and afterwards in the executive cabinet, with as much persevering tal-
ent as any measure has ever experienced, and being supported by arguments
which convinced minds as pure and as intelligent as this country can boast, it
became a law. The original act was permitted to expire; but a short experi-
ence of the embarrassments to which the refusal to: revive it exposed the
government, convinced those who were most prejudiced against the measure
of its necessity and induced the passage. of the present law. It would require
no ordinary share of intrepidity to assert that a measure adopted under these
circumstances was a bold and plain usurpation, to which the constitution
gave no countenance.
These observations belong to the cause; but they are not made under
the impression that, were the question entirely new, the law would be found
irreconcilable with the constitution.
In discussing this question, the counsel for the state of Maryland have
deemed it of some importance, in the construction of the constitution, to
consider that instrument not as emanating from the people, but as the act of
 A | The Classic View of Congress’s Legislative Powers | 555

sovereign and independent states. The powers of the general government, it

has been said, are delegated by the states, who alone are truly sovereign; and
must be exercised in subordination to the states, who alone possess supreme
dominion.
It would be difficult to sustain this proposition. The convention which
framed the constitution was indeed elected by the state legislatures. But the
instrument, when it came from their hands, was a mere proposal, without
obligation, or pretensions to it. It was reported to the then existing Congress
of the United States, with a request that it might “be submitted to a conven-
tion of delegates, chosen in each state by the people thereof, under the rec-
ommendation of its legislature, for their assent and ratification.” This mode
of proceeding was adopted; and by the convention, by Congress, and by the
state legislatures, the instrument was submitted to the people. They acted
upon it in the only manner in which they can act safely, effectively, and
wisely, on such a subject, by assembling in convention. It is true, they assem-
bled in their several states—and where else should they have assembled? No
political dreamer was ever wild enough to think of breaking down the lines
which separate the states, and of compounding the American people into
one common mass. Of consequence, when they act, they act in their
states. But the measures they adopt do not, on that account, cease to be
the measures of the people themselves, or become the measures of the state
governments.
From these conventions the constitution derives its whole authority. The
government proceeds directly from the people; is “ordained and established”
in the name of the people; and is declared to be ordained, “in order to form
a more perfect union, establish justice, insure domestic tranquillity, and secure
the blessings of liberty to themselves and to their posterity.’ The assent of the
states, in their sovereign capacity, is implied in calling a convention, and thus
submitting that instrument to the people. But the people were at perfect
liberty to accept or reject it; and their act was final. It required not the
affirmance, and could not be negatived, by the state governments.
The con-
stitution, when thus adopted, was of complete obligation, and bound the
state sovereignties. .. .
The government of the Union, then (whatever may be the influence of
this fact on the case), is, emphatically, and truly, a government of the people.
In form and in substance it emanates from them. Its powers are granted by
them, and are to be exercised directly on them, and for their benefit.
This government is acknowledged by all to be one of enumerated pow-
ers. The principle, that it can exercise only the powers granted to it, would
seem too apparent to have required to be enforced by all those arguments
which its enlightened friends, while it was depending before the people,
found it necessary to urge, that principle is now universally admitted. But the
question respecting the extent of the powers actually granted, is perpetually
arising, and will probably continue to arise, as long as our system shall exist.
In discussing these questions, the conflicting powers of the general and
state governments must be brought into view, and the supremacy of their re-
spective laws, when they are in opposition, must be settled.
If any-one ‘proposition could command the universal assent of mankind,
we might expect it would be this—that the government of the Union,
though limited in its powers, is supreme within its sphere of action. This
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oe ee
eS

would seem to result necessarily from its nature. It is the government of all;
its powers are delegated by all; it represents all, and acts for all. Though any
one state may be willing to control its operations, no state is willing to allow
others to control them. The nation, on those subjects on which it can act,
must necessarily bind its component parts. But this question is not left to
mere reason; the people have, in express terms, decided it by saying, “this
constitution, and the laws of the United States, which shall be made in pur-
suance thereof,” “shall be the supreme law of the land,” and by requiring that
the members of the state legislatures, and the officers of the executive and ju-
dicial departments of the states shall take the oath of fidelity to it...
Among the enumerated powers, we do not find that of establishing a
bank or creating a corporation. But there is no phrase in the instrument
which, like the articles of confederation, excludes incidental or implied pow-
ers; and which requires that everything granted shall be expressly and
minutely described. Even the 10th amendment, which was framed for the
purpose of quieting the excessive jealousies which had been excited, omits
the word “expressly,” and declares only that the powers “not delegated to the
United States, nor prohibited to the states, are reserved to the states or to the
people”; thus leaving the question, whether the particular power which may
become the subject of contest has been delegated to the one government, or
prohibited to the other, to depend on a fair construction of the whole in-
strument. The men who drew and adopted this amendment had experienced
the embarrassments resulting from the insertion of this word in the articles of
confederation, and probably omitted it to avoid those embarrassments. A
constitution, to contain an accurate detail of all the subdivisions of which its
great powers will admit, and of all the means by which they may be carried
into execution, would partake of a prolixity of a legal code, and could
scarcely be embraced by the human mind. It would probably never be
understood by the public. Its nature, therefore, requires, that only its great
outlines should be marked, its important objects designated, and the minor
ingredients which compose those objects be deduced from the nature of the
objects themselves. That this idea was entertained by the framers of the
American constitution, is not only to be inferred from the nature of the in-
strument, but from the language. Why else were some of the limitations,
found in the ninth section of the 1st article, introduced? It is also, in some
degree warranted by their having omitted to use any restrictive term which
might prevent its receiving a fair and just interpretation. In considering this
question, then, we must never forget that it is a constitution we are ex-
pounding.
Although, among the enumerated powers of government, we do not
find the word “bank” or “incorporation,* we find the great power to lay and
collect taxes; to borrow money; to regulate commerce; to declare and con-
duct war; and to raise and support armies and navies. The sword and the
purse, all the external relations, and no inconsiderable portion of the indus-
try of the nation, are entrusted to its government. It can never be pretended
that these vast powers draw after them others of inferior importance, merely
because they are inferior. Such an idea can never be advanced. But it may
with great reason be contended, that a government, entrusted with such am-
ple powers, on the due execution of which the happiness and prosperity of
the nation so vitally depends, must also be entrusted with ample means for
 A | The Classic View of Congress’s Legislative Powers | 557

the execution. The power being given, it is the interest of the nation to facil-
itate its execution. It can never be their interest, as cannot be presumed to
have been their intention, to clog and embarrass its execution in withholding
the most appropriate means. Throughout this vast republic, from the St.
Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to
be collected and expended, armies are to be marched and supported. The ex-
igencies of the nation may require that the treasure raised in the north
should be transported to the south, that raised in the east conveyed to the
west, or that this order should be reversed. Is that construction of the consti-
tution to be preferred which would render these operations difficult, haz-
ardous, and expensive? Can we adopt that construction (unless the words
imperiously require it) which would impute to the framers of that instru-
ment, when granting these powers for the public good, the intention of im-
peding their exercise by withholding a choice of means? ...
On what foundation does this argument rest? On this alone: The power
of creating a corporation is one appertaining to sovereignty, and is not ex-
pressly conferred on Congress. This is true. But all legislative powers apper-
tain to sovereignty. The original power of giving the law on any subject
whatever, is a sovereign power; and if the government of the Union is re-
strained from creating a corporation, as a means for performing its functions,
_ on the single reason that the creation of a corporation is an act of sover-
eignty; if the sufficiency of this reason be acknowledged, there would be
some difficulty in sustaining the authority of Congress to pass other laws for
the accomplishment of the same objects. .. .
But the constitution of the United States has not left the right of Con-
gress to employ the necessary means for the execution of the powers con-
ferred on the government to general reasoning. To its enumeration of powers
is added that of making “all laws which shall be necessary and proper, for car-
rying into execution the foregoing powers, and all other powers vested by
this constitution, in the government of the United States, or in any depart-
ment thereof.”
The counsel for the State of Maryland have urged various arguments, to
prove that this clause, though in terms a grant of power, is not so in effect;
but is really restrictive of the general right, which might otherwise be im-
plied, of selecting means for executing the enumerated powers... .
[T]he argument on which most reliance is placed, is drawn from the pe-
culiar language of this clause. Congress is not empowered by it to make all
laws, which may have relation to the powers conferred on the government;
but such only as may be “necessary and proper” for carrying them into exe-
cution. The word “necessary” is considered as controlling the whole sen-
tence, and as limiting the right to pass laws for the execution of the granted
powers, to such as are indispensable, and without which the power would be
nugatory. That it excludes the choice of means, and leaves to Congress, in
each case, that only which is most direct and simple.
Is it true that this is the sense in which the word “necessary” is always
used? Does it always import an absolute physical necessity, so strong that one
thing, to which another may be termed necessary, cannot exist without that
other? We*think it does not. If reference be had to its use, in the common af-
fairs of the world, or in approved authors, we find that it frequently imports
no more than that one thing is convenient, or useful, or essential to another.
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To employ the means necessary to an end, is generally understood as em-

ploying any means calculated to produce the end, and not as being confined
to those single means, without which the end would be entirely unattain-
able. Such is the character of human language, that no word conveys to the
mind, in all situations, one single definite idea; and nothing is more common
than to use words in a figurative sense. Almost all compositions contain
words, which, taken in their rigorous sense, would convey a meaning differ-
ent from that which is obviously intended. It is essential to just construction,
that many words which import something excessive should be understood in
a more mitigated sense—in that sense which common usage justifies. The
word “necessary” is of this description. It has not a fixed character peculiar to
itself. It admits of all degrees of comparison; and is often connected with
other words, which increase or diminish the impression the mind receives of
the urgency it imports. A thing may be necessary, very necessary, absolutely
or indispensably necessary. To no mind would the same idea be conveyed by
these several phrases. This comment on the word is well illustrated by the
passage cited at the bar, from the 10th section of the 1st article of the consti-
tution. It is, we think, impossible to compare the sentence which prohibits a
state from laying “imposts or duties on imports or exports, except what may
be absolutely necessary for executing its inspection laws,” with that which
authorizes Congress “to make all laws which shall be necessary and proper
for carrying into execution” the powers of the general government, without
feeling a conviction that the convention understood itself to change materi-
ally the meaning of the word “necessary,” by prefixing the word “absolutely.”
This word, then, like others, is used in various senses; and, in its construction,
the subject, the context, the intention of the person using them, are all to be
taken into view.
Let this be done in the case under consideration.
The subject is the ex-
ecution of those great powers on which the welfare of a nation essentially
depends. It must have been the intention of those who gave these powers, to
insure, as far as human prudence could insure, their beneficial execution. This
could not be done by confiding the choice of means to such narrow limits as
not to leave it in the power of Congress to adopt any which might be ap-
propriate, and which were conducive to the end. This provision is made in a
constitution intended to endure for ages to come, and, consequently, to be
adapted to the various crises of human affairs. To have prescribed the means
by which government should, in all future time, execute its powers, would
have been to change, entirely, the character of the instrument, and give it the
properties of a legal code. It would have been an unwise attempt to provide,
by immutable rules, for exigencies which, if foreseen at all, must have been
seen dimly, and which can be best provided for as they occur. To have de-
clared that the best means shall not be used, but those alone without which
the power given would be nugatory, would have been to deprive the legisla-
ture of the capacity to avail itself of experience, to exercise its reason, and to
accommodate its legislation to circumstances. If we apply this principle of
construction to any of the powers of the government, we shall find it so per-
nicious in its operation that we shall be compelled to discard it... .
So, with respect to the whole penal code of the United States: whence
arises the power to punish in cases not prescribed by the constitution? All
admit that the government may, legitimately, punish any violation of its laws;
 A | The Classic View of Congress’s Legislative Powers | 559

and yet, this is not among the enumerated powers of Congress. The right to
enforce the observance of law, by punishing its infraction, might be denied
with more plausibility because it is expressly given in some cases. Congress is
empowered “to provide for the punishment of counterfeiting the securities
and current coin of the United States,” and “to define and punish piracies
and felonies committed on the high seas, and offenses against the law of na-
tions.” The several powers of Congress may exist, in a very imperfect state, to
be sure, but they may exist and be carried into execution, although no pun-
ishment should be inflicted in cases where the right to punish is not ex-
pressly given.
Take, for example, the power “to establish post-offices and post-roads.”
This power is executed by the single act of making the establishment. But,
from this has been inferred the power and duty of carrying the mail along
the post-road, from one post-office to another. And, from this implied power,
has again been inferred the right to punish those who steal letters from the
post-office, or rob the mail. It may be said, with some plausibility, that the
right to carry the mail, and to punish those who rob it, is not indispensably
necessary to the establishment of a post-office and post-road. This right is in-
deed essential to the beneficial exercise of the power, but not indispensably
necessary to its existence. So, of the punishment of the crimes of stealing or
falsifying a record or process of a court of the United States, or of perjury in
such court. To punish these offenses is certainly conducive to the due ad-
ministration of justice. But courts may exist, and may decide the causes
brought before them, though such crimes escape punishment.
The baneful influence of this narrow construction on all the operations
of the government, and the absolute impracticability of maintaining it with-
out rendering the government incompetent to its great objects, might be il-
lustrated by numerous examples drawn from the constitution, and from our
laws.~..
In ascertaining the sense in which the word “necessary” is used in this
clause of the constitution, we may derive some aid from that with which it is
associated. Congress shall have power “to make all laws which shall be neces-
sary and proper to carry into execution” the powers of the government. If
the word “necessary” was used in that strict and rigorous sense for which the
counsel for the state of Maryland contend, it would be an extraordinary de-
parture from the usual course of the human mind, as exhibited in composi-
tion, to add a word, the only possible effect of which is to qualify that strict
and rigorous meaning; to present to the mind the idea of some choice of
means of legislation not straightened and compressed within the narrow lim-
its for which gentlemen contend.
But the argument which most conclusively demonstrates the error of
the construction contended for by the counsel for the state of Maryland, is
founded on the intention of the convention, as manifested in the whole
clause. To waste time and argument in proving that without it Congress
might carry its powers into execution, would be not much less idle than to
hold a lighted taper to the sun. As little can it be required to prove, that in
the absence of this clause, Congress would have some choice of means. That
it might employ those which, in its judgment, would most advantageously
effect the object to be accomplished. That any means adapted to the end, any
means which tended directly to the execution of the constitutional powers
 | CONGRESS: LEGISLATIVE,
560aang TAXING, AND SPENDING POWERS
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of the government, were in themselves constitutional. This clause, as con-

strued by the state of Maryland, would abridge, and almost annihilate this
useful and necessary right of the legislature to select its means. That this
could not be intended, is, we should think, had it not been already contro-
verted, too apparent for controversy. We think so for the following reasons:
1st. The clause is placed among the powers of Congress, not among the
limitations on those powers.
2d. Its terms purport to enlarge, not to diminish the powers vested in
the government. It purports to be an additional power, not a restriction on
those already granted. No reason has been, or can be assigned for thus con-
cealing an intention to narrow the discretion of the national legislature un-
der words which purport to enlarge it... .
The result of the most careful and attentive consideration bestowed
upon this clause is, that if it does not enlarge, it cannot be construed to re-
strain the powers of Congress, or to impair the right of the legislature to ex-
ercise its best judgment in the selection of measures to carry into execution
the constitutional powers of the government. If no other motive for its in-
sertion can be suggested, a sufficient one is found in the desire to remove all
doubts respecting the right to legislate on that vast mass of incidental powers
which must be involved in the constitution, if that instrument be not a
splendid bauble.
We admit, as all must admit, that the powers of the government are lim-
ited, and that its limits are not to be transcended. But we think the sound
construction of the constitution must allow to the national legislature that
discretion, with respect to the means by which the powers it confers are to
be carried into execution, which will enable that body to perform the high
duties assigned to it, in the manner most beneficial to the people. Let the end
be legitimate, let it be within the scope of the constitution, 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 con-
stitutional. ...
If a corporation may be employed indiscriminately with other means to
carry into execution the powers of the government, no particular reason can
be assigned for excluding the use of a bank, if required for its fiscal opera-
tions. To use one, must be within the discretion of Congress, if it be an ap-
propriate mode of executing the powers of government. That it is a
convenient, a useful, and essential instrument in the prosecution of its fiscal
Operations, is not now a subject of controversy. All those who have been con-
cerned in the administration of our finances, have concurred in representing
the importance and necessity; and so strongly have they been felt, that states-
men of the first class, whose previous opinions against it had been confirmed
by every circumstance which can fix the human judgment, have yielded
those opinions to the exigencies of the nation. Under the confederation,
Congress, justifying the measure by its necessity, transcended perhaps its
powers to obtain the advantage of a bank; and our own legislation attests the
universal conviction of the utility of this measure. The time has passed away
when it can be necessary to enter into any discussion in order to prove the
importance of this instrument, as a means to effect the legitimate objects of
the government.
But, were its necessity less apparent, none can deny its being an appro-
 A | The Classic View of Congress’s Legislative Powers | 561

priate measure; and if it is, the degree of its necessity, as has been very justly
observed, is to be discussed in another place. Should Congress, in the execu-
tion of its powers, adopt measures which are prohibited by the constitution;
or should Congress, under the pretext of executing its powers, pass laws for
the accomplishment of objects not entrusted to the government, it would
become the painful duty of this tribunal, should a case requiring such a de-
cision come before it, to say that such an act was not the law of the land. But
where the law is not prohibited, and is really calculated to effect any of the
objects entrusted to the government, to undertake here to inquire into the
degree of its necessity, would be to pass the line which circumscribes the ju-
dicial department, and to tread on legislative ground. This court disclaims all
pretensions to such a power. ... ;
It being the opinion of the court that the act incorporating the bank
is constitutional, and that the power of establishing a branch in the state
of Maryland might be properly exercised by the bank itself, we proceed to
inquire:
2. Whether the state of Maryland may, without violating the constitu-
tion, tax that branch?
That the power of taxation is one of vital importance; that it is retained
by the states; that it is not abridged by the grant of a similar power to the
government of the Union; that it is to be concurrently exercised by the two
governments: are truths which have never been denied. But, such is the para-
mount character of the constitution that its capacity to withdraw any subject
from the action of even this power, is admitted. The states are expressly for-
bidden to lay any duties on imports or exports, except what may be ab-
solutely necessary for executing their inspection laws. If the obligation of
this prohibition must be conceded—if it may restrain a state from the exer-
cise of its taxing power on imports and exports—the same paramount char-
acter would seem to restrain, as it certainly may restrain, a state from such
other exercise of this power, as is in its nature incompatible with, and repug-
nant to, the constitutional laws of the Union. A law, absolutely repugnant to
another, as entirely repeals that other as if express terms of repeal were used.
On this ground the counsel for the bank place its claim to be exempted
from the power of a state to tax its operations. There is no express provision
for the case, but the claim has been sustained on a principle which so entirely
pervades the constitution, is so intermixed with the materials which com-
pose it, so interwoven with its web, so blended with its texture, as to be in-
capable of being separated from it without rendering it into shreds.
This great principle is, that the constitution and the laws made in pur-
suance thereof are supreme; that they control the constitution and laws of the
respective states, and cannot be controlled by them. From this, which may be
almost termed an axiom, other propositions are deduced as corollaries, on
the truth or error of which, and on their application to this case, the cause
has been supposed to depend. These are, 1st. that a power to create implies a
power to preserve. 2d. That a power to destroy, if wielded by a different hand,
is hostile to, and incompatible with these powers to create and to preserve.
3d. That where this repugnancy exists, that authority which is supreme must
control, not yiéld to that over which it is supreme. . ..
That the power of taxing it by the states may be exercised so as to de-
stroy it, is too obvious to be denied. But taxation is said to be an absolute
562 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

power, which acknowledges no other limits than those expressly prescribed

in the constitution, and like sovereign power of every other description, is
trusted to the discretion of those who use it. But the very terms of this argu-
ment admit that the sovereignty of the state, in the article of taxation itself, is
subordinate to, and may be controlled by the constitution of the United
States. How far it has been controlled by that instrument must be a question
of construction. In making this construction, no principle not declared can
be admissible, which would defeat the legitimate operations of a supreme
government. It is of the very essence of supremacy to remove all obstacles to
its action within its own sphere, and so to modify every power vested in sub-
ordinate governments as to exempt its own operations from their own influ-
ence. This effect need not be stated in terms. It is so involved in the
declaration of supremacy, so necessarily implied in it, that the expression of it
We must, therefore, keep it in view while
could not make it more certain.
construing the constitution.
The argument on the part of the state of Maryland is, not that the states
may directly resist a law of Congress, but that they may exercise their ac-
knowledged powers upon it, and that the constitution leaves them this right
in the confidence that they will not abuse it.
Before we proceed to examine this argument, and to subject it to the
test of the constitution, we must be permitted to bestow a few considerations
on the nature and extent of this original right of taxation, which is acknowl-
edged to remain with the states. It is admitted that the power of taxing the
people and their property is essential to the very existence of government,
and may be legitimately exercised on the objects to which it is applicable, to
the utmost extent to which the government may choose to carry it. The
only security against the abuse of this power is found in the structure of the
government itself. In imposing a tax the legislature acts upon its constituents.
This is in general a sufficient security against erroneous and oppressive
taxation.
The people of a state, therefore, give to their government a right of tax-
ing themselves and their property, and as the exigencies of government can-
not be limited, they prescribe no limits to the exercise of this right, resting
confidently on the interest of the legislator, and on the influence of the con-
stituents over their representative, to guard them against its abuse. But the
means employed by the government of the Union have no such security, nor
is the right of a state to tax them sustained by the same theory. Those means
are not given by the people of a particular state, not given by the constituents
of the legislature, which claim the right to tax them, but by the people of all
the states. They are given by all for the benefit of all—and upon theory,
should be subjected to that government only which belongs to all... .
We find, then, on just theory, a total failure of this original right to tax
the means employed by the government of the Union, for the execution of
its powers. The right never existed, and the question whether it has been sur-
rendered, cannot arise.
But, waiving this theory for the present, let us resume the inquiry,
whether this power can be exercised by the respective states, consistently
with a fair construction of the constitution.
That the power to tax involves the power to destroy; that the power to
destroy may defeat and render useless the power to create; that there is a
 A | The Classic View of Congress’s Legislative Powers | 563

plain repugnance, in conferring on one government a power to control the

constitutional measures of another, which other, with respect to those very
measures, is declared to be supreme over that which exerts the control, are
propositions not to be denied. But all inconsistencies are to be reconciled by
the magic of the word confidence. Taxation, it is said, does not necessarily
and unavoidably destroy. To carry it to the excess of destruction would be an
abuse, to presume which, would banish that confidence which is essential to
all government.
But is this a case of confidence? Would the people of any one state trust
those of another with a power to control the most insignificant operations of
their state government? We know they would not. Why, then, should we sup-
pose that the people of any one state should be willing to trust those of an-
other with a power to control the operations of a government to which they
have confided the most important and most valuable interests? In the legisla-
ture of the Union alone, are all represented. The legislature of the Union
alone, therefore, can be trusted by the people with the power of controlling
measures which concern all, in the confidence that it will not be abused.
This, then, is not a case of confidence, and we must consider it as it really is.
If we apply the principle for which the state of Maryland contends, to
the constitution generally, we shall find it capable of changing totally the
_ character of that instrument. We shall find it capable of arresting all the
measures of the government, and of prostrating it at the foot of the states.
The American people have declared their constitution, and the laws made in
pursuance thereof, to be supreme; but this principle would transfer the su-
premacy, in fact, to the states... .
It has also been insisted, that, as the power of taxation in the general and
state governments is acknowledged to be concurrent, every argument which
would sustain the right of the general government to tax banks chartered by
the states, will equally sustain the right of the states to tax banks chartered by
the general government.
But the two cases are not on the same reason. The people of all the states
have created the general government, and have conferred upon it the general
power oftaxation. The people of all the states, and the states themselves, are
represented in Congress, and, by their representatives, exercise this power.
When they tax the chartered institutions of the states, they tax their con-
stituents; and these taxes must be uniform. But, when a state taxes the oper-
ations of the government of the United States, it acts upon institutions
created, not by their own constituents, but by people over whom they claim
no control. It acts upon the measures of a government created by others as
well as themselves, for the benefit of others in common with themselves.
The
difference is that which always exists, and always must exist, between the ac-
tion of the whole on a part, and the action of a part on the whole—between
the laws of a government declared to be supreme, and those of a government
which, when in opposition to those laws, is not supreme.
But if the full application of this argument could be admitted, it might
bring into question the right of Congress to tax the state banks, and could
not prove the right of the states to tax the Bank of the United States. ...
We are unanimously of the opinion that the law passed by the legisla-
ture of Maryland, imposing a tax on the Bank of the United States, is un-
constitutional and void.
564 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

Gibbons v. Ogden
g Wueat. (22 U.S.) 1 (1824)

Robert Livingston and Robert Fulton were granted by the New York
legislature a monopoly on the operation of steamboats in the state’s wa-
ters. They in turn licensed Aaron Ogden to exclusively operate a ferry
between New York City and various ports in New Jersey. Subsequently,
on the basis of his license, Ogden sought in New York courts an in-
junction against Thomas Gibbons, who ran a competing ferry between
New York City and Elizabethtown Point, New Jersey. Gibbons coun-
tered that his boats were licensed under a 1793 act of Congress for
vessels “employed in the coasting trade and fisheries.’ But when en-
joining Gibbons from operating his ferries, the New York courts up-
held Ogden’s claims on the grounds that the 1793 act covered only
coasting vessels and Congress had not passed legislation specifically reg-
ulating steamboats. Gibbons then appealed to the Supreme Court,
which held that the monopoly granted by New York interfered with
Congress's power to regulate interstate commerce.
The Court’s decision was unanimous, and the opinion was an-
nounced by Chief Justice Marshall. Justice Johnson concurred.

“Chief Justice MARSHALL delivers the opinion of the Court.

The appellant contends that this decree is erroneous, because the laws
which purport to give the exclusive privilege it sustains, are repugnant to
... that clause in the constitution which authorizes Congress to regulate
commerce. ...
[The Constitution] contains an enumeration of powers expressly
granted by the people to their government. It has been said that these pow-
ers ought to be construed strictly. But why ought they to be so construed? Is
there one sentence in the constitution which gives countenance to this rule?
In the last of the enumerated powers, that which grants, expressly, the means
of carrying all others into execution, Congress is authorized “to make all
laws which shall be necessary and proper” for the purpose. But this limitation
on the means which may be used, is not extended to the powers which are
conferred; nor is there one sentence in the constitution which has been
pointed out by the gentlemen of the bar, or which we have been able to dis-
cern, that prescribes this rule. We do not, therefore, think ourselves justified
in adopting it. What do gentlemen mean byastrict construction? If they
contend only against that enlarged construction which would extend words
beyond their natural and obvious import, we might question the application
of the term, but should not controvert the principle. If they contend for that
narrow construction which, in support of some theory not to be found in
the constitution, would deny to the government those powers which the
words of the grant, as usually understood, import, and which are consistent
with the general views and objects of the instrument; for that narrow con-
 A | The Classic View of Congress’s Legislative Powers | 565

struction, which would cripple the government and render it unequal to the
objects for which it is declared to be instituted, and to which the powers
given, as fairly understood, render it competent; then we cannot perceive the
propriety of this strict construction, nor adopt it as the rule by which the
constitution is to be expounded. As men, whose intentions require no con-
cealment, generally employ the words which most directly and aptly express
the ideas they intend to convey, the enlightened patriots who framed our
constitution, and the people who adopted it, must be understood to have
employed words in their natural sense, and to have intended what they have
said. ...We know of no rule for construing the extent of such powers, other
than is given by the language of the instrument which confers them, taken in
connection with the purposes for which they were conferred.
The words are: “Congress shall have power to regulate commerce with
foreign nations, and among the several states, and with the Indian tribes.”
The subject to be regulated is commerce; and our constitution being, as
was aptly said at the bar, one of enumeration, and not of definition, to ascer-
tain the extent of the power it becomes necessary to settle the meaning of
the word. The counsel for the appellee would limit it to traffic, to buying and
selling, or the interchange of commodities, and do not admit that it compre-
hends navigation. This would restrict a general term, applicable to many ob-
_ jects, to one of its significations. Commerce, undoubtedly, is traffic, but it is
something more; it is intercourse. It describes the commercial intercourse
between nations, and parts of nations, in all its branches, and is regulated by
prescribing rules for carrying on that intercourse. The mind can scarcely
conceive a system for regulating commerce between nations, which shall ex-
clude all laws concerning navigation, which shall be silent on the admission
of the vessels of the one nation into the ports of the other, and be confined
to prescribing rules for the conduct of individuals, in the actual employment
of buying and selling, or of barter. ...
All America understands, and has uniformly understood, the word
“commerce” to comprehend navigation. It was so understood, and must have
been so understood, when the constitution was framed. The power over
commerce, including navigation, was one of the primary objects for which
the people of America adopted their government, and must have been con-
templated in forming it. The convention must have used the word in that
sense; because all have understood it in that sense, and the attempt to restrict
it comes too late. ...
The word used in the constitution, then, comprehends, and has been al-
ways understood to comprehend, navigation within its meaning; and a power
to regulate navigation is as expressly granted as if that term had been added
to the word “commerce.”
To what commerce does this power extend? The constitution informs
us, to commerce “with foreign nations, and among the several states, and
with the Indian tribes.”
It has, we believe, been universally admitted that these words compre-
hend every species of commercial intercourse between the United States and
foreign nations. No sort of trade can be carried on between this country and
any othersto which this power does not extend. It has been truly said, that
commerce, as the word is used in the constitution, is a unit, every part of
which is indicated by the term.
If this be the admitted meaning of the word, in its application to foreign
566 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

nations, it must carry the same meaning throughout the sentence, and remain
a unit, unless there be some plain intelligible cause which alters it.
The subject to which the power is next applied, is to commerce “among
the several states.” The word “among” means intermingled with. A thing
which is among others, is intermingled with them. Commerce among the
states cannot stop at the external boundary line of each state, but may be in-
troduced into the interior.
It is not intended to say that these words comprehend that commerce
which is completely internal, which is carried on between man and man in
a state, or between different parts of the same state, and which does not ex-
tend to or affect other states. Such a power would be inconvenient, and is
certainly unnecessary.
Comprehensive as the word “among” is, it may very properly be re-
stricted to that commerce which concerns more states than one. The phrase
is not one which would probably have been selected to indicate the com-
pletely interior traffic of a state, because it is not an apt phrase for that pur-
pose; and the enumeration of the particular classes of commerce to which
the power was to be extended, would not have been made had the intention
been to extend the power to every description. The enumeration pre-
supposes something not enumerated; and that something, if we regard the
language or the subject of the sentence, must be the exclusively internal
commerce of a state. The genius and character of the whole government
seem to be, that its action is to be applied to all the external concerns of the
nation, and to those internal concerns which affect the states generally; but
not to those which are completely within a particular state, which do not af-
fect other states, and with which it is not necessary to interfere, for the pur-
pose of executing some of the general powers of the government. The
completely internal commerce ofa state, then, may be considered as reserved
for the state itself.
But, in regulating commerce with foreign nations, the power of Con-
gress does not stop at the jurisdictional lines of the several states. It would be
a very useless power if it could not pass those lines. The commerce of the
United States with foreign nations, is that of the whole United States. Every
district has a right to participate in it. The deep streams which penetrate our
country in every direction, pass through the interior of almost every state in
the Union, and furnish the means of exercising this right. If Congress has the
power to regulate it, that power must be exercised whenever the subject ex-
ists. If it exists within the states, if a foreign voyage may commence or termi-
nate at a port within a state, then the power of Congress may be exercised
within a state.
This principle is, if possible, still more clear, when applied to commerce
“among the several states.” They either join each other, in which case they
are separated by a mathematical line, or they are remote from each other, in
which case other states lie between them. What is commerce “among” them;
and how is it to be conducted? Can a trading expedition between two ad-
joining states commence and terminate outside of each? And if the trading
intercourse be between two states remote from each other, must it not com-
mence in one, terminate in the other, and probably pass through a third?
Commerce among the states must, of necessity, be commerce with the states.
In the regulation of trade with the Indian tribes, the action of the law, es-
 A | The Classic View of Congress’s Legislative Powers | 567

pecially when the constitution was made, was chiefly within a state. The
power of Congress, then, whatever it may be, must be exercised within the
territorial jurisdiction of the several states. The sense of the nation, on this
subject, is unequivocally manifested by the provisions made in the laws for
transporting goods, by land, between Baltimore and Providence, between
New York and Philadelphia, and between Philadelphia and Baltimore.
We are now arrived at the inquiry, What is this power?
It is the power to regulate; that is, to prescribe the rule by which com-
merce is to be governed. This power, like all others vested in Congress, is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the constitution. These are expressed
in plain terms, and do not affect the questions which arise in this case, or
which have been discussed at the bar. If, as has always been understood, the
sovereignty of Congress, though limited to specified objects, is plenary as to
those objects, the power over commerce with foreign nations, and among the
several States, is vested in Congress as absolutely as it would be ina single
government, having in its constitution the same restrictions on the exercise of
the power as are found in the constitution of the United States. The wisdom
and the discretion of Congress, their identity with the people, and the influ-
ence which their constituents possess at election, are, in this, as in many other
instances, as that, for example, of declaring war, the sole restraints on which
they have relied, to secure them from its abuse. They are the restraints on
which the people must often rely solely, in all representative governments.
The power of Congress, then, comprehends navigation within the limits
of every state in the Union; so far as that navigation may be, in any manner,
connected with “commerce with foreign nations, or among the several states,
or with the Indian tribes.” It may, of consequence, pass the jurisdictional line
of New York, and act upon the very waters to which the prohibition now
under consideration applies.
But it has been urged with great earnestness, that although the power of
Congress to regulate commerce with foreign nations, and among the several
states, be co-extensive with the subject itself, and have no other limits than
are prescribed in the constitution, yet the states may severally exercise the
same power within their respective jurisdictions. In support of this argument,
it is said that they possessed it as an inseparable attribute of sovereignty, be-
fore the formation of the constitution, and still retain it, except so far as they
have surrendered it by that instrument; that this principle results from the na-
ture of the government, and is secured by the tenth amendment; that an af-
firmative grant of power is not exclusive, unless in its own nature it be such
that the continued exercise of it by the former possessor is inconsistent with
the grant, and that this is not of that description.
The appellant, conceding these postulates, except the last, contends that
full power to regulate a particular subject, implies the whole power, and
leaves no residuum; that a grant of the whole is incompatible with the exis-
tence of a right in another to any part of it....
The grant of the power to lay and collect taxes is, like the power to reg-
ulate commerce, made in general terms, and has never been understood to
interfere with the exercise of the same power by the states; and hence has
been drawn an argument which has been applied to the question under con-
sideration. But the two grants are not, it is conceived, similar in their terms
568 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS
eee ee ee eeee———

or their nature. Although many of the powers formerly exercised by the

states, are transferred to the government of the Union, yet the state govern-
ments remain, and constitute a most important part of our system. The
power of taxation is indispensable to their existence, and is a power which, in
its own nature, is capable of residing in, and being exercised by, different au-
thorities at the same time. ...
Congress is authorized to lay and collect taxes, etc., to pay the debts, and
provide for the common defense and general welfare of the United States.
This does not interfere with the power of the states to tax for the support of
their own governments; nor is the exercise of that power by the states an ex-
ercise of any portion of the power that is granted to the United States. ...
There is no analogy, then, between the power of taxation and the power of
regulating commerce. ...
The sole question is, can a state regulate commerce with foreign nations
and among the states, while Congress is regulating it? .. .
[I]nspection laws are said to be regulations of commerce, and are cer-
tainly recognized in the constitution, as being passed in the exercise of a
power remaining with the states.
That inspection laws may have a remote and considerable influence on
commerce, will not be denied; but that a power to regulate commerce is the
source from which the right to pass them is derived, cannot be admitted. The
objects of inspection laws is to improve the quality of articles produced by
the labor of the country; to fit them for exportation; or, it may be, for do-
mestic use. They act upon the subject before it becomes an article of foreign
commerce, or of commerce among the states, and prepared it for that pur-
pose. They form a portion of that immense mass of legislation which em-
braces everything within the territory of a state not surrendered to the
general government; all which can be most advantageously exercised by the
states themselves. Inspection laws, quarantine laws, health laws of every de-
scription, as well as laws for regulating the internal commerce of a state, and
those which respect turnpike-roads, ferries, etc., are component parts of this
mass.
No direct general power over these objects is granted to Congress; and,
consequently, they remain subject to state legislation. If the legislative power
of the Union can reach them, it must be for national purposes; it must be
where the power is expressly given for a special purpose, or is clearly inci-
dental to some power which is expressly given. It is obvious, that the
government of the Union, in the exercise of its express powers, that, for
example, of regulating commerce with foreign nations and among the states,
may use means that may also be employed byastate, in the exercise of its ac-
knowledged power; that, for example, of regulating commerce within the
state. If Congress license vessels to sail from one port to another, in the same
state, the act is supposed to be, necessarily, incidental to the power expressly
granted to Congress, and implies no claim of a direct power to regulate the
purely internal commerce of a state, or to act directly on its system of police.
So, if a state, in passing laws on subjects acknowledged to be within its con-
trol, and with a view to those subjects, shall adopt a measure of the same
character with one which Congress may adopt, it does not derive its author-
ity from the particular power which has been granted, but from some other,
which remains with the state, and may be executed by the same means: All
 B | From Legal Formalism to the New Deal Crisis | 569

experience shows that the same measures, or measures scarcely distinguish-

able from each other, may flow from distinct powers; but this does not prove
that the powers themselves are identical. Although the means used in their
execution may sometimes approach each other so nearly as to be con-
founded, there are other situations in which they are sufficiently distinct to
establish their individuality.
In our complex system, presenting the rare and difficult scheme of one
general government, whose action extends over the whole, but which pos-
sesses only certain enumerated powers, and of numerous state governments,
which retain and exercise all powers not delegated to the Union, contests re-
specting power must arise. Were it even otherwise, the measures taken by the
respective governments to execute their acknowledged powers, would often
be of the same description, and might, sometimes, interfere. This, however,
does not prove that the one. is exercising, or has a right to exercise, the pow-
ers of the other... . a
[The Act of 1793, licensing steamboats] demonstrates the opinion of
Congress, that steamboats may be enrolled and licensed, in common with
vessels usingsails. They are, of course, entitled to the same privileges, and can
no more be restrained from navigating waters, and entering ports which are
free to such vessels, than if they were wafted on their voyage by the winds,
. instead of being propelled by the agency of fire. The one element may be as
legitimately used as the other, for every commercial purpose authorized by
the laws of the Union; and the act of a state inhibiting the use of either to
any vessel having a license under the act of Congress, comes, we think, in di-
rect collision with that act....
Powerful and ingenious minds, taking, as postulates, that the powers ex-
pressly granted to the government of the Union are to be contracted, by
construction, into the narrowest possible compass, and that the original pow-
ers of the States are retained, if any possible construction will retain them,
may, by a course of well digested, but refined and metaphysical reasoning,
founded on these premises, explain away the constitution of our country, and
leave it a magnificent structure indeed, to look at, but totally unfit for use.
They may so entangle and perplex the understanding, as to obscure princi-
ples which were before thought quite plain, and induce doubts where, if the
mind were to pursue its own course, none would be perceived. In such a
case, it is peculiarly necessary to recur to safe and fundamental principles to
sustain those principles, and, when sustained, to make them the tests of the
arguments to be examined.

B From Legal Formalism to the

New Deal Crisis

Chief Justice Marshall’s unitary conception of commerce and standard

for determining Congress’: power over commerce—whether com-
merce “extend[s] to or affect[s] other states’”—was nationalist. Indeed,
570 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS
on———————

following Gibbons he struck down a Maryland law requiring importers

to pay a license fee on the grounds that states could not tax items im-
ported through foreign commerce so long as they remained in their
“original package.”’
Gibbons also implied, however, a distinction between Congress's
power over interstate commerce and that of the states over intrastate
commerce. Although holding that Congress’s power over commerce
“among the several states” is complete and “cannot stop at the external
boundary line of each state, but may be introduced into the interior,’
Chief Justice Marshall also observed,
“It is not intended to say that these
words comprehend that commerce which is completely internal, which
is carried on between man and man inastate, or between different
parts of the same state, and which does not extend to or affect other
states. Such a power would be inconvenient, and is certainly unneces-
sary.’ And he added, “Comprehensive as the word ‘among’ is, it may
very properly be restricted to that commerce which concerns more
states than one.” Hence, “the completely internal commerce ofa state,”
Marshall noted, “may be considered as reserved for the state itself.”
From Marshall’s dicta in Gibbons the Court under Chief Justice
Roger Taney, who was more sympathetic to claims of states’ rights,
developed the interstate-intrastate distinction. In The License Cases,
5 How. (46 U.S.) 504 (1847), Taney suggested two separate, mutually
exclusive commerce powers in noting the existence of “internal or do-
mestic commerce, which belongs to the states, and over which congress
can exercise no control.” Two years later, Justice John McLean further
elaborated this view: “All commercial action within the limits ofa state,
and which does not extend to any other state or foreign country, is ex-
clusively under state regulation,”
With the introduction into constitutional law of the interstate-
intrastate commerce distinction, the touchstone for determining the
powers of Congress and the states became whether commerce crossed a
state line. Not until after the Civil War, however, did Congress actually
assert its power over commerce. And in the absence of congressional
statutes the Court employed the interstate-intrastate distinction to up-
hold state regulations. In Paul v. Virginia, 8 Wall. (75 U.S.) 168 (1869), for
instance, state regulation of interstate insurance companies was upheld
on the grounds that “issuing a policy of insurance is not a transaction of
commerce” and insurance contracts “are not articles of commerce.”
By the late nineteenth century the interstate-intrastate distinction
was applied in a formalistic way. This development reflected political
changes in the country and in the Court. A new era in government
regulation was inaugurated with the passage of the Interstate’ Com-
merce Act of 1887 and the Sherman Antitrust Act of 1890. The Inter-
 B | From Legal Formalism to the New Deal Crisis | 57%

state Commerce Act created the first regulatory commission in the

United States, the ICC, and authorized it to investigate and regulate the
operation of interstate railroads. The Sherman Antitrust Act made it il-
legal for interstate businesses to form trusts, combinations, or monopo-
lies and authorized the executive branch to prosecute businesses that
formed monopolies and entered into conspiracies to restrain trade and
fix prices. This expansion of congressional power responded to pres-
sures brought by the Industrial Revolution and a successful national
economy. It also registered a new conception of the role of the national
government in promoting freedom that had evolved since the Re-
construction era. At the same time, industries, railroad companies, and
corporations, opposing regulation by the national government, con-
tended that only states could regulate their activities; yet, states could
not regulate those businesses that operated in more than one state. Co-
incidentally, the Court’s composition also changed with the addition of
Justices who had been corporate lawyers and sympathized with private
business interests. In 1888, Melville Fuller, a successful commercial at-
torney, was appointed chief justice and joined on the bench conserva-
tive Justices Stephen Field and Samuel Miller. He was then followed by
others opposed to social change and embracing laissez-faire capitalism,
notably, Justices David Brewer (in 1890), Edward White (in 1894), and
Rufus Peckham (in 1896).°
Between 1887 and 1937 the Court relied on the interstate-
intrastate dichotomy in upholding state regulations and striking down
congressional legislation as unauthorized under the commerce clause.
In doing so the Court invented some additional rules for further defin-
ing the boundaries between state and federal power. One of the most
important of these was that between the activities of production, or man-
ufacturing (over which states enjoyed virtually exclusive authority), and
those of distribution, or commercial transportation (which Congress might
regulate). This production /distribution rule enabled the Court, on the one
hand, to uphold state regulation or taxation of commercial interests that
sought exemption by claiming their activities were subject only to con-
gressional regulation and, on the other hand, to strike down federal
regulations and thereby limit the reach of congressional power over
commerce.
For example, in Kidd v. Pearson, 128 U.S. 1 (1888), the Court up-
held Iowa’s ban on the manufacture of liquor as applied to a distillery in
the state that exported its entire product to other states. In rejecting the
distillery’s claim that manufacturing a product sold exclusively out of
state constituted interstate commerce, the Court observed, “No distinc-
tion is more popular to the common mind, or more clearly expressed
in economic and political literature, than that between manufacturing
 572 | CONGRESS: LEGISLATIVE, [AXING, a AND SPENDING POWERS
Be
eee

and commerce. Manufacturing is transformation—the fashioning of

raw materials into a change of form for use. The functions of com-
merce are different. The buying and selling and the transportation inci-
dent thereto constitute commerce.”
United States v. E. C. Knight Company (1895) (see excerpt below) il-
lustrates the Court’s use of the production/distribution rule to defeat
the congressional power under the commerce clause. In that case, over
the forceful dissent of Justice Harlan, the Fuller Court ruled that the
Sherman Antitrust regulation of monopolies did not apply to the coun-
try’s largest sugar refining company because it viewed the company’s
production of sugar as a local activity distinctly separate from the in-
dustry’s sugar distribution.
The Court later applied the production/distribution rule in defin-
ing the scope of congressional and state regulatory powers over min-
ing;’ fishing, farming, and oil production;’ and hydroelectric power.°
The most extreme use of the rule came in Hammer v. Dagenhart (1918)
(see excerpt below), when a bare majority of the Court struck down
the Federal Child Labor Act of 1916. A year earlier, in Wilson v. New,
243 U.S. 332 (1917), the justices divided five to four in upholding em-
ployment regulations for railroad workers. However, in Hammer the
majority found that Congress impermissibly barred shipment in inter-
state commerce of goods produced in factories that employed children
under fourteen or allowed children between the ages of fourteen and
sixteen to work more than eight hours a day or more than six days a
week. In his opinion for the majority, Justice Day narrowly read federal
power over commerce to be limited to regulating the means of trans-
portation. And he distinguished earlier cases upholding congressional
regulation of lottery tickets, prostitution, and impure food’ on the
grounds that these goods are harmful per se, whereas goods produced
by child labor are harmless. Justice Holmes, writing for the dissenters,
rejected the majority’s formalistic reasoning and blasted it for reading its
own “moral conceptions” into constitutional law.
Hammer was extraordinary in challenging congressional authority
and was eventually overruled in United States v. Darby (1941) (see ex-
cerpt below). Still, even when a majority of the Court could be mus-
tered to uphold progressive legislation it relied on other formal rules
and tests derived from the distinction between interstate and intrastate
commerce. In particular, the Court rationalized federal regulation on an
“effect on commerce” rule, that is, whether an activity within a state
has an obvious effect or impact on interstate commerce so as to justify
the exercise of federal power. But applying this rule required the Court
to invent various tests for gauging the impact of local activities on in-
terstate commerce.
 B | From Legal Formalism to the New Deal Crisis | 573

One test used to implement the effects rule was whether local ac-
tivities were in the stream of commerce. This was the basis for the Court’s
rejecting the claim of Chicago stockyard firms, made when challenging
federal prosecutions for conspiring to restrain trade, that the purchase
and sale of cattle in Chicago stockyards was not commerce among the
states. As Justice Holmes observed in Swift & Company v. United States,
£96;U.S,375 (1905):

Commerce among the states is not a technical legal conception, but

a practical one, drawn from the course of business. When cattle are
sent for sale from a place in one State, with the expectation that
they will end their transit, after purchase, in another, and when in
effect they do so, with, only the interruption necessary to find a
purchaser at the stock yards, and when this is a typical, constantly
recurring course, the current thus existing is a current of commerce
among the States, and the purchase of the cattle is a part and inci-
dent of such commerce.

The stream of commerce test was subsequently employed in sustaining

federal regulation of stockyards* and grain and cotton exchanges.”
Another test centered on whether intrastate commerce was so
physically intermingled or intertwined with interstate commerce as to
make it impractical to distinguish federal and state regulatory powers.
In Southern Railway Co. v. United States, 222 U.S. 20 (1911), the Court
upheld federal regulations applied to a company carrying on its inter-
state railroad three cars not equipped with safety couplers, as required
under the Safety Appliance Act, even though these cars were used solely
in intrastate transportation. In Justice Van Devanter’s words, “This is so,
not because Congress possesses any power to regulate intrastate com-
merce as such, but because its power to regulate interstate commerce is
plenary and consequently may be exerted to secure the safety of the
persons and property transported therein and of those who are em-
ployed in such transportation, no matter what may be the source of the
dangers which threaten it.”
The Shreveport doctrine was yet another test used to justify the exer-
cise of federal power over intrastate commerce. The Shreveport Rate
Case, 234 U.S. 342 (1914), affirmed an order of the ICC requiring
Texas intrastate rates from Dallas and Houston to be equalized with the
interstate rates for travel from Shreveport, Louisiana, to Texas. This was
because the interstate rates set by the ICC for transportation from
Shreveport to Texas were higher than those for intrastate travel set by
the Texas Railroad Commission. And as a result Shreveport was eco-
_nomically disadvantaged in competing for trade in Texas. In sustaining
federal power here, Justice Hughes explained, “Wherever the interstate
and intrastate transactions of carriers are so related that the government
574 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

of the one involves the control of the other, it is Congress, and not the
State, that is entitled to prescribe the final and dominant rule, for
otherwise Congress would be denied the exercise of its constitutional
authority and the State, and not the Nation, would be supreme within
the national field.”
Finally, the Court employed a distinction between direct and indirect
effects on commerce. Note that in E. C. Knight, Chief Justice Fuller
held that the government cannot forbid the merger of sugar companies
under the Sherman Antitrust Act based on the possibility that “trade or
commerce might be indirectly affected.” But as with the other tests, the
problem remained how the categories of direct and indirect effects
were to be defined in practice. And the Court’s rigid definition of them
when striking down important pieces of President Franklin D. Roo-
sevelt’s program for economic recovery during the Depression precipi-
tated the crisis over the New Deal.
In Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935)
(see excerpt in Ch. 4), Chief Justice Hughes struck down the National
Industrial Recovery Act as an unconstitutional delegation of power. In
addition, he found that the Schechter Corporation in Brooklyn, New
York, was neither engaged in interstate commerce nor part of the
stream of commerce. Nor did Schechter’s purchase and transportation
of chickens from elsewhere in New York and Pennsylvania to its
slaughterhouse, where they were sold to local retailers, have a direct ef-
fect on interstate commerce. Although Hughes did not try further to
define direct and indirect effects, he observed that it was “clear in prin-
ciple” and “a fundamental one, essential to the maintenance of our con-
stitutional system. Otherwise,” he added, “there would be virtually no
limit to the federal power and for all practical purposes we should have
a completely centralized government.”
One year later in Carter v. Carter Coal Company, 298 U.S. 238
(1936), the Court split sharply over striking down another piece of
New Deal legislation, the Bituminous Coal Conservation Act, under
which codes for employment practices were established for the coal in-
dustry. This time Justice Sutherland, writing for the majority, endeav-
ored to precisely demark the difference between direct and indirect
effects on commerce:

The word “direct” implies that the activity or condition invoked or

blamed shall operate proximately—not mediately, remotely, or col-
laterally—to produce the effect. It connotes the absence of an effi-
cient intervening agency or condition. And the extent of the effect
bears no logical relation to its character. The distinction between a
direct and an indirect effect turns, not upon the magnitude of either
the cause or the effect, but merely upon the manner in which the
effect has been brought about. If the production by one man of a
 B | From Legal Formalism to the New Deal Crisis | 575
i a ee
single ton of coal intended for interstate sale and shipment . . . af-
fects interstate commerce indirectly, the effect does not become di-
rect by multiplying the tonnage, or increasing the number of men
employed, or adding to the expense or complexities of the business,
or by all combined.

In applying the distinction here, Sutherland further observed:

Much stress is put upon the evils which come from the struggle be-
tween employers and employees over the matter of wages, working
conditions, the right of collective-bargaining, etc., and the resulting
strikes, curtailment and irregularity of production and effect on
prices; and it is insisted that interstate commerce is greatly affected
thereby. But . . . the conclusive answer is that the evils are all local
evils over which the federal government has no legislative control.
The relation of employer and employee is a local relation. ... And
the controversies and evils, which it is the object of the act to regu-
late and minimize, are local controversies and evils affecting local
work undertaken to accomplish that local result. Such effect as they
may have upon commerce, however extensive it may be, is second-
ary and indirect. An increase in the greatness of the effect adds to its
importance. It does not alter its character.

This rigid use of the direct and indirect effects test provoked a sharp
dissent from Justice Cardozo who, along with Justices Brandeis and
Stone, maintained that Congress’s commerce power was “as broad as
the need that evokes it.”
The Court’s striking down important New Deal legislation in
Schechter and Carter Coal Company resulted in a major confrontation be-
tween it and the country. President Roosevelt, after winning a landslide
reelection in 1936, was embittered by the invalidation of his programs.
And he responded by proposing judicial reforms that would expand the
size of the Court to fifteen. His “Court-packing plan” called for the ap-
pointment of a new member of the Court for every justice over sev-
enty years of age. That would have enabled him to secure a majority on
the Court sympathetic to his programs (see “President Roosevelt’s Ra-
dio Broadcast, March 9, 1937,’ in Ch. 1).

NotTES

1: Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827).

2. The Passenger Cases, 7 How. 283 (1849).
3. For further discussion, see Benjamin R. Twiss, Lawyers and the Constitution: How
‘Laissez Faire*Cameé to the Supreme Court (1942); and William F Swindler, Court and
Constitution in the 20th Century: The Old Legality, 1889-1932 (Indianapolis: Bobbs-
Merrill, 1969).
4. United Mine Workers v. Coronado Coal Company, 259 U.S. 344 (1922).
576 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

5. Champlin Refining Company v. Corporation Commission, 286 USS. 210 (1932).

6. Utah Power and Light v. Pfost, 286 U.S. 165 (1932).
7. See the discussion and cases cited in section A of this chapter.
8. Stafford v. Wallace, 258 U.S. 495 (1922).
9 . Chicago Board ofTiade v, Olsen, 262 U.S. 543 (1923); and Allenberg Cotton Company,
Inc. v. Pittman, 419 U.S. 20 (1974).

SELECTED BIBLIOGRAPHY

Corwin, Edward S. Liberty against Government. Baton Rouge: Louisiana State Univer-
sity Press, 1948.
Horowitz, Morton. The Transformation ofAmerican Law, 1780-1860. Cambridge, MA:
Harvard University Press, 1977.
Leuchtenburg, William. The Supreme Court Reborn: The Constitutional Revolution in the
Age of Roosevelt. New York: Oxford University Press, 1995.
McCloskey, Robert. American Conservativism: In the Age of Enterprise 1865-1910.
Cambridge, MA: Harvard University Press, 1951.

United States v. E. C. Knight Company

POW Sab so. C1 240K 1805)

The Sherman Antitrust Act of 1890 made it illegal for businesses to

contract, combine, or conspire to create a trust or monopoly for the
purpose of restraining free trade and monopolizing interstate or for-
eign commerce. The American Sugar Refining Company, which al-
ready controlled a majority of the sugar-refining companies in the
United States, subsequently purchased stock in and arranged to control
four other companies, including E. C. Knight. The American Sugar
Refining Company would thereby control over 98 percent of the
country’s sugar-refining business. The Department of Justice sought a
court order forbidding the stock sale and other ar-rangements made by
E. C. Knight, the American Sugar Refining Company, and three other
Philadelphia firms. It contended that the companies had conspired and
entered into combinations in restraint of trade in violation of the Sher-
man Antitrust Act. But lower federal courts denied relief, holding that
the companies were engaged in manufacturing, not interstate com-
merce, and hence not subject to the anti-trust regulations. The govern-
ment thereupon appealed to the Supreme Court.
The Court’s decision was eight to one, and the majority’s opinion
was announced by Chief Justice Fuller. Justice Harlan dissented.
 B | From Legal Formalism to the New Deal Crisis | 577

Chief Justice FULLER delivers the opinion of the Court.

By the purchase of the stock of the four Philadelphia refineries with
shares of its own stock the American Sugar Refining Company acquired
nearly complete control of the manufacture of refined sugar within the
United States. The bill charged that the contracts under which these pur-
chases were made constituted combinations in restraint of trade, and that in
entering into them the defendants combined and conspired to restrain the
trade and commerce in refined sugar among the several states and with for-
eign nations, contrary to the act of congress ofJuly 2, 1890.
The relief sought was the cancellation of the agreements under which
the stock was transferred, the redelivery of the stock to the parties respec-
tively, and an injunction against the further performance of the agreements
and further violations of the act... .
The fundamental question is whether, conceding that the existence of a
monopoly in manufacture is established by the evidence, that monopoly can
be directly suppressed under the act of congress in the mode attempted by
this bill.
It cannot be denied that the power of a state to protect the lives, health,
and property of its citizens, and to preserve good order and the public
morals, “the power to govern men and things within the limits of its domin-
ion,” is a power originally and always belonging to the states, not surrendered
by them to the general government, nor directly restrained by the constitu-
tion of the United States, and essentially exclusive. The relief of the citizens
of each state from the burden of monopoly and the evils resulting from the
restraint of trade among such citizens was left with the states to deal with,
and this court has recognized their possession of that power even to the ex-
tent of holding that an employment or business carried on by private indi-
viduals, when it becomes a matter of such public interest and importance as
to create a common charge or burden upon the citizen, in other words,
when it becomes a practical monopoly, to which the citizen is compelled to
resort, and by means of which a tribute can be exacted from the commu-
nity,—is subject to regulation by state legislative power. On the other hand,
the power of congress to regulate commerce among the several states is also
exclusive. The constitution does not provide that interstate commerce shall
be free, but, by the grant of this exclusive power to regulate it, it was left free,
except as congress might impose restraints. Therefore it has been determined
that the failure of congress to exercise this exclusive power in any case is an
expression of its will that the subject shall be free from restrictions or im-
positions upon it by the several states, and if a law passed byastate in the ex-
ercise of its acknowledged powers comes into conflict with that will, the
congress and the state cannot occupy the position of equal opposing sover-
eignties, because the constitution declares its supremacy, and that of the laws
passed in pursuance thereof; and that which is not supreme must yield to that
which is supreme. “Commerce undoubtedly is traffic,’ said Chief Justice
MARSHALL, “but it is something more; it is intercourse. It describes the
commercial intercourse between nations and parts of nations in all its
branches, and is regulated by prescribing rules for carrying on that inter-
‘course.” That which belongs to commerce is within the jurisdiction of the
United States, but that which does not belong to commerce is within the
jurisdiction of the police power of the state. ...
 578 ON| CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS
Oe SS

The argument is that the power to control the manufacture of refined

sugar is a monopoly over a necessary of life, to the enjoyment of which by a
large part of the population of the United States interstate commerce is in-
dispensable, and that, therefore, the general government, in the exercise of
the power to regulate commerce, may repress such monopoly directly, and
set aside the instruments which have created it. But this argument cannot be
confined to necessaries of life merely, and must include all articles of general
consumption. Doubtless the power to control the manufacture of a given
thing involves, in a certain sense, the control of its disposition, but this is a
secondary, and not the primary, sense; and, although the exercise of that
power may result in bringing the operation of commerce into play, it does
not control it, and affects it only incidentally and indirectly. Commerce suc-
ceeds to manufacture, and is not a part of it. The power to regulate com-
merce is the power to prescribe:the rule by which commerce shall be
governed, and is a power independent of the power to suppress monopoly.
But it may operate in repression of monopoly whenever that comes within
the rules by which commerce is governed, or whenever the transaction is it-
self a monopoly of commerce.
It is vital that the independence of the commercial power and of the
police power, and the delimitation between them, however sometimes per-
plexing, should always be recognized and observed, for, while the one fur-
nishes the strongest bond of union, the other is essential to the preservation
of the autonomy of the states as required by our dual form of government;
and acknowledged evils, however grave and urgent they may appear to be,
had better be borne, than the risk be run, in the effort to suppress them, of
more serious consequences by resort to expedients of even doubtful consti-
tutionality.
It will be perceived how far-reaching the proposition is that the power
of dealing with a monopoly directly may be exercised by the general govern-
ment whenever interstate or international commerce. may be ultimately
affected. The regulation of commerce applies to the subjects of commerce,
and not to matters of internal police. Contracts to buy, sell, or exchange
goods to be transported among the several states, the transportation and its
instrumentalities, and articles bought, sold, or exchanged for the purposes of
such transit among the states, or put in the way of transit, may be regulated;
but this is because they form part of interstate trade or commerce. The fact
that an article is manufactured for export to another state does not of itself
make it an article of interstate commerce, and the intent of the manufacturer
does not determine the time when the article or product passes from the
control of the state and belongs to commerce... .
Contracts, combinations, or conspiracies to control domestic enterprise
in manufacture, agriculture, mining, production in all its forms, or to raise or
lower prices or wages, might unquestionably tend to restrain external as well
as domestic trade, but the restraint would be an indirect result, however in-
evitable, and whatever its extent, and such result would not necessarily deter-
mine the object of the contract, combination, or conspiracy... .
Slight reflection will show that, if the national power extends to all con-
tracts and combinations in manufacture, agriculture, mining, and other pro-
ductive industries, whose ultimate result may affect external commerce,
comparatively little of business corporations and affairs would be left for state
control.
 B | From Legal Formalism to the New Deal Crisis | 579

It was in the light of well-settled principles that the act ofJuly 2, 1890,
was framed. Congress did not attempt thereby to assert the power to deal
with monopoly directly as such; or to limit and restrict the rights of corpo-
rations created by the states or the citizens of the states in the acquisition,
control, or disposition of property; or to regulate or prescribe the price or
prices at which such property or the products thereof should be sold; or to
make criminal the acts of persons in the acquisition and control of property
which the states of their residence or creation sanctioned or permitted. Aside
from the provisions applicable where congress might exercise municipal
power, what the law struck at was combinations, contracts, and conspiracies
to monopolize trade and commerce among the several states or with foreign
nations; but the contracts and acts of the defendants related exclusively to the
acquisition of the Philadelphia refineries and the business of sugar refining in
Pennsylvania, and bore no direct relation to commerce between the states or
with foreign nations. The object was manifestly private gain in the manufac-
ture of the commodity, but not through the control of interstate or foreign
commerce. It is true that the bill alleged that the products of these refineries
were sold and distributed amiong the several states, and that all the companies
were engaged in trade or commerce with the several states and with foreign
nations; but this was no more than to say that trade and commerce served
_ manufacture to fulfill its function. Sugar was refined for sale, and sales were
probably made at Philadelphia for consumption, and undoubtedly for resale
by the first purchasers throughout Pennsylvania and other states, and re-
fined sugar was also forwarded by the companies to other states for sale.
Nevertheless it does not follow that an attempt to monopolize, or the ac-
tual monopoly of, the manufacture was an attempt, whether executory or
consummated, to monopolize commerce, even though, in order to dispose of
the product, the instrumentality of commerce was necessarily invoked. There
was nothing in the proofs to indicate any intention to put a restraint upon
trade or commerce, and the fact, as we have seen, that trade or commerce
might be indirectly affected, was not enough to entitle complainants to a de-
cree.

(1 Justice HARLAN, dissenting.

The court holds it to be vital in our system of government to recognize
and give effect to both the commercial power of the nation and the police
powers of the states, to the end that the Union be strengthened, and the au-
tonomy of the states preserved. In this view I entirely concur. Undoubtedly,
the preservation of the just authority of the states is an object of deep con-
cern to every lover of his country... . But it is equally true that the preserva-
tion of the just authority of the general government is essential as well to the
safety of the states as to the attainment of the important ends for which that
government was ordained by the people of the United States; and the de-
struction of that authority would be fatal to the peace and well-being of the
American people. ...
It would seem to be indisputable that no combination of corporations
or individuals can, of right, impose unlawful restraints upon interstate trade,
whether ufon transportation or upon such interstate intercourse and traffic
as precede transportation, any more than it can, of right, impose unreason-
able restraints upon the completely internal traffic ofa state. The supposition
cannot be indulged that this general proposition will be disputed. If it be true
580 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS
Ee

that a combination of corporations or individuals may, so far as the power of

congress is concerned, subject interstate trade, in any of its stages, to un-
lawful restraints, the conclusion is inevitable that the constitution has failed
to accomplish one primary object of the Union, which was to place com-
merce among the states under the control of the common government of all
the people, and thereby relieve or protect it against burdens or restrictions
imposed, by whatever authority, for the benefit of particular localities or spe-
Cialinterests!. 04
The power of congress covers and protects the absolute freedom of such
intercourse and trade among the states as may or must succeed manufacture
and precede transportation from the place of purchase. This would seem to
be conceded, for the court in the present case expressly declare that “con-
tracts to buy, sell, or exchange goods to be transported among the several
states, the transportation and its instrumentalities, and articles bought, sold, or
exchanged for the purpose of such transit among the states, or put in the way
of transit, may be regulated, but this is because they form part of interstate
trade or commerce.” Here is a direct admission—one which the settled doc-
trines of this court justify—that contracts to buy, and the purchasing of
goods to be transported from one state to another, and transportation, with
its instrumentalities, are all parts of interstate trade or commerce. Each part of
such trade is then under the protection of congress. . . .
In my judgment, the citizens of the several states composing the Union
are entitled of right to buy goods in the state where they are manufactured,
or in any other state, without being confronted by an illegal combination
whose business extends throughout the whole country, which, by the law
everywhere, is an enemy to the public interests, and which prevents such
buying, except at prices arbitrarily fixed by it. I insist that the free course of
trade among the states cannot coexist with such combinations. When I speak
of trade I mean the buying and selling of articles of every kind that are rec-
ognized articles of interstate commerce. Whatever improperly obstructs the
free course of interstate intercourse and trade, as involved in the buying and
selling of articles to be carried from one state to another, may be reached by
congress under its authority to regulate commerce among thestates. The ex-
ercise of that authority so as to make trade among the states in all recognized
articles of commerce absolutely free from unreasonable or illegal restrictions
imposed by combinations is justified by an express grant of power to con-
gress, and would redound to the welfare of the whole country. I am unable
to perceive that any such result would imperil the autonomy of the states,
especially as that result cannot be attained through the action of any one
StALe Shear
To the general government has been committed the control of commer-
cial intercourse among the states, to the end that it may be free at all times
from any restraints except such as congress may impose or permit for the
benefit of the whole country. The common government of all the people is
the only one that can adequately deal with a matter which directly and inju-
riously affects the entire commerce of the country, which concerns equally all
the people of the Union, and which, it must be confessed, cannot be ade-
quately controlled by any one state. Its authority should not be so weakened
by construction that it cannot reach and eradicate evils that, beyond all ques-
tion, tend to defeat an object which that government is entitled, by the con-
 B | From Legal Formalism to the New Deal Crisis | 581

stitution, to accomplish. “Powerful and ingenious minds,” this court has said,
“taking, as postulates, that the powers expressly granted to the government of
the Union are to be contracted by construction into the narrowest possible
compass, and that the original powers of the states are retained, if any possible
construction will retain them, may, by a course of well-digested but refined
and metaphysical reasoning, founded on these premises, explain away the con-
stitution of our country, and leave it, a magnificent structure, indeed, to look
at, but totally unfit for use. They may so entangle and perplex the under-
standing as to obscure principles which were before thought quite plain, and
induce doubts where, if the mind were to pursue its own course, none would
be perceived.” Gibbons v. Ogden, 9 Wheat. 1 [1824].

Hammer v. Dagenhart
APS SSE Boo ee S20 TOTS)

The Federal Child Labor Act of 1916 forbade the shipment in inter-
state commerce of goods produced in factories employing children un-
der the age of fourteen or allowing children between ages fourteen and
sixteen to work more than eight hours a day, at night, or for more than
six days a week. Roland Dagenhart, the father of two minor sons who
worked in a cotton mill in North Carolina, sought in federal district
court an injunction against W. C. Hammer, a United States attorney,
from enforcing the act. The district judge granted the injunction on the
ground that the legislation was unconstitutional. The government, then,
appealed to the Supreme Court, which granted review and struck
down the Federal Child Labor Act.
The Court’s decision was five to four, and the majority’s opinion
was announced by Justice Day. Dissent was by Justice Holmes, who was
joined by Justices McKenna, Brandeis, and Clarke.

(\ Justice DAY delivers the opinion of the Court.

[T]he power [to regulate commerce] is one way to control the means by
which commerce is carried on, which is directly the contrary of the assumed
right to forbid commerce from moving and thus destroying it as to particu-
lar commodities. But it is insisted that adjudged cases in this court establish
the doctrine that the power to regulate given to Congress incidentally in-
cludes the authority to prohibit the movement of ordinary commodities and
therefore that the subject is not open for discussion. The cases demonstrate
the contrary. They rest upon the character of the particular subjects dealt
with and the fact that the scope of governmental authority, state or national,
‘possessed over them is such that the authority to prohibit is as to them but
the exertion of the power to regulate.
The first of these cases is Champion v. Ames, 188 U.S. 321 [(1903)], the
582 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS
a

so-called Lottery Case, in which it was held that Congress might pass a law
having the effect to keep the channels of commerce free from use in the
transportation of tickets used in the promotion of lottery schemes. In Hipo-
lite Egg Co. v. United States, 220 U.S. 45 [(1911)]. This court sustained the
power of Congress to pass the Pure Food and Drug Act, which prohibited
the introduction into the states by means of interstate commerce of impure
foods and drugs. In Hoke v. United States, 227 U.S. 308 [(1913)], this court
sustained the constitutionality of the so-called “White Slave Traffic Act,”
whereby the transportation of a woman in interstate commerce for the pur-
pose of prostitution was forbidden. ...
In each of these instances the use of interstate transportation was neces-
sary to the accomplishment of harmful results. In other words, although the
power over interstate transportation was to regulate, that could only be ac-
complished by prohibiting the use of the facilities of interstate commerce to
effect the evil intended.
This element is wanting in the present case. The thing intended to be
accomplished by this statute is the denial of the facilities of interstate com-
merce to those manufacturers in the states who employ children within the
prohibited ages. The act in its effect does not regulate transportation among
the states, but aims to standardize the ages at which children may be em-
ployed in mining and manufacturing within the states. The goods shipped
are of themselves harmless. The act permits them to be freely shipped after
thirty days from the time of their removal from thefactory. When offered for
shipment, and before transportation begins, the labor of their production is
over, and the mere fact that they were intended for interstate commerce
transportation does not make their production subject to federal control un-
der the commerce power. ... The making of goods and the mining of coal
are not commerce, nor does the fact that these things are to be afterwards
shipped, or used in interstate commerce, make their production a part
thereof a.
Over interstate transportation, or its incidents, the regulatory power of
Congress is ample, but the production of articles, intended for interstate
commerce, is a matter of local regulation.
If it were otherwise, all manufacture intended for interstate shipment
would be brought under federal control to the practical exclusion of the au-
thority of the states, a result certainly not contemplated by the framers of the
Constitution when they vested in Congress the authority to regulate com-
merce among the States... .
It is further contended that the authority of Congress may be exerted to
control interstate commerce in the shipment of child-made goods because of
the effect of the circulation of such goods in other states where the evil of
this class of labor has been recognized by local legislation, and the right to
thus employ child labor has been more rigorously restrained than in the state
of production. In other words, that the unfair competition, thus engendered,
may be controlled by closing the channels of interstate commerce to manu-
facturers in those states where the local laws do not meet what Congress
deems to be the more just standard of other states.
There is no power vested in Congress to require the states to exercise
their police power so as to prevent possible unfair competition. Many causes
may co-operate to give one state, by reason of local laws or conditions, an
 B | From Legal Formalism to the New Deal Crisis | 583

economic advantage over others. The commerce clause was not intended to
give to Congress a general authority to equalize such conditions. In some of
the states laws have been passed fixing minimum wages for women, in oth-
ers the local law regulates the hours of labor of women in various employ-
ments. Business done in such states may be at an economic disadvantage
when compared with states which have no such regulations; surely, this fact
does not give Congress the power to deny transportation in interstate com-
merce to those who carry on business where the hours of labor and the rate
of compensation for women have not been fixed by a standard in use in
other states and approved by Congress.
The grant of power to Congress over the subject ofinterstate commerce
was to enable it to regulate such commerce, and not to give it authority to
control the states in their exercise of the police power over local trade and
manufacture. .
The grant of authority over a purely federal matter was not intended to
destroy the local power always existing and carefully reserved to the states in
the Tenth Amendment to the Constitution. . . .
In interpreting the Constitution it must never be forgotten that the na-
tion is made up of states to which are entrusted the powers of local govern-
ment. And to them and to the people the powers not expressly delegated to
the national government are reserved. ... The power of the states to regulate
‘their purely internal affairs by such laws as seem wise to the local authority
is inherent and has never been surrendered to the general government. .. . To
sustain this statute would not be in our judgment a recognition of the lawful
exertion of congressional authority over interstate commerce, but would
sanction an invasion by the federal power of the control of a matter purely
local in its character, and over which no authority has been delegated
to Congress in conferring the power to regulate commerce among the
states...
For these reasons we hold that this law exceeds the constitutional au-
thority of Congress. It follows that the decree of the District Court must be
Affirmed.

_ ) Justice HOLMES, dissenting.

[I]f an act is within the powers specifically conferred upon Congress, it
seems to me that it is not made any less constitutional because of the indirect
effects that it may have, however obvious it may be that it will have those ef-
fects, and that we are not at liberty upon such grounds to hold it void.
The first step in my argument is to make plain what no one is likely to
dispute—that the statute in question is within the power expressly given to
Congress if considered only as to its immediate effects and that if invalid it is
so only upon some collateral ground. The statute confines itself to prohibit-
ing the carriage of certain goods in interstate or foreign commerce. Congress
is given power to regulate such commerce in unqualified terms. It would not
be argued today that the power to regulate does not include the power to
prohibit. Regulation means the prohibition of something, and when inter-
state commerce is the matter to be regulated I cannot doubt that the regula-
‘tion may prohibit any part of such commerce that Congress sees fit to
forbid. At all events it is established by the Lottery Case and others that have
followed it that a law is not beyond the regulative power of Congress merely
584 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

because it prohibits certain transportation out and out. Champion v. Ames, 188
US. 321 [(1903)]. So I repeat that this statute in its immediate operation is
clearly within the Congress’s constitutional power.
The question then is narrowed to whether the exercise of its otherwise
constitutional power by Congress can be pronounced unconstitutional be-
cause of its possible reaction upon the conduct of the States in a matter upon
which I have admitted that they are free from direct control. I should have
thought that that matter had been disposed of so fully as to leave no room
for doubt. I should have thought that the most conspicuous decisions of this
Court had made it clear that the power to regulate commerce and other
constitutional powers could not be cut down or qualified by the fact that it
might interfere with the carrying out of the domestic policy of any State.
The manufacture of oleomargarine is as much a matter of State regula-
tion as the manufacture of cotton.cloth. Congress levied a tax upon the
compound when colored so as to resemble butter that was so great as obvi-
ously to prohibit the manufacture and sale. In a very elaborate discussion the
present Chief Justice excluded any inquiry into the purpose of an act which
apart from that purpose was within the power of Congress. .. . Fifty years
ago a tax on state banks, the obvious purpose and actual effect of which was
to drive them, or at least their circulation, out of existence, was sustained, al-
though the result was one that Congress had no constitutional power to re-
quire. The Court made short work of the argument as to the purpose of the
Act. “The Judicial cannot prescribe to the Legislative Departments of the
_Government limitations upon the exercise of its acknowledged powers.”
Veazie Bank v. Fenno, 8 Wall. [75 U.S.] 533 [(1869)]....
The notion that prohibition is any less prohibition when applied to
things now thought evil I do not understand. But if there is any matter upon
which civilized countries have agreed—far more unanimously than they have
with regard to intoxicants and some other matters over which this country is
now emotionally aroused—it is the evil of premature and excessive child la-
bor. I should have thought that if we were to introduce our own moral con-
ceptions where in my opinion they do not belong, this was preeminently a
case for upholding the exercise of all its powers by the United States.
But I had thought that the propriety of the exercise of a power admit-
ted to exist in some cases was for the consideration of Congress alone and
that this Court always had disavowed the right to intrude its judgment upon
questions of policy or morals. It is not for this Court to pronounce when
prohibition is necessary to regulation if it ever may be necessary—to say that
it is permissible as against strong drink but not as against the product of ru-
ined lives.
The Act does not meddle with anything belonging to the States. They
may regulate their internal affairs and their domestic commerce as they like.
But when they seek to send their products across the State line they are no
longer within their rights. If there were no Constitution and no Congress
their power to cross the line would depend upon their neighbors. Under the
Constitution such commerce belongs not to the States but to Congress to
regulate. It may carry out its views of public policy whatever indirect effect
they may have upon the activities of the States. Instead of being encountered
by a prohibitive tariff at her boundaries the State encounters the public pol-
icy of the United States which it is for Congress to express. The public pol-
 C | From the New Deal Crisis to the Administrative State | 585

icy of the United States is shaped with a view to the benefit of the nation as
a whole. ...The national welfare as understood by Congress may require a
different attitude within its sphere from that of some self-seeking State. It
seems to me entirely constitutional for Congress to enforce its understanding
by all the means at its command.

Justice MCKENNA, Justice BRANDEIS, and Justice CLARKE

concur in this opinion.

C | From the New Deal Crisis to the

Administrative State

A groundswell of opposition to the Court was emerging in the coun-

try by February 5, 1937, when President Roosevelt sent his “Court-
packing plan” to Congress. Besides Schechter and Carter Coal, the Court
had struck down provisions of the National Industrial Recovery Act in
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); a railroad retirement
program in Railroad Retirement Board v. Alton R.R. Co., 295 U.S. 330
(1935); and a scheme for farm subsidies under the Agricultural Adjust-
ment Act in United States v, Butler, 297 U.S. 1 (1936).' In addition, a
New York minimum wage law for women was overturned byafive-to-
four vote in Morehead v, New York ex rel. Tipaldo, 298 U.S. 587 (1936).
The only significant New Deal legislation sustained (five to four) was
that dealing with eliminating the gold standard and devaluation of the
dollar.* The constitutionality of crucial New Deal programs was thus in
doubt and for the Court to still rule on, including the National Labor
Relations Act (or Wagner Act), the Social Security Act, and the Public
Utility Holding Company Act.
While the Senate Judiciary Committee considered FDR’s proposal
for expanding the Court in the spring of 1937, Senator Burton
Wheeler, an opponent of the plan, at the suggestion of Justice Brandeis,
asked Chief Justice Hughes if he would send a letter to the committee
indicating what the justices thought about their workload and whether
more justices were needed. On March 21, Hughes responded with a
skillfully crafted letter implying that all the justices opposed the plan.
(Hughes in fact talked only with Van Devanter and Brandeis; Cardozo
and Stone later strongly disapproved of his actions and would have re-
.fused to sign the letter.) Immediately, Wheeler proclaimed that the
Court was “unanimous with reference to the letter of the Chief Jus-
tice” and used the letter to mobilize opposition.
586 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

More dramatically on March 29, the Court voted five to four to

uphold Washington state’s minimum wage law in West Coast Hotel
Company v. Parrish, 300 U.S. 379 (1937) (see Vol. 2, Ch. 3). Then, two
weeks later in National Labor Relations Board v.Jones & Laughlin Steel
Corporation (1937) (see excerpt below) the justices in a five-to-four de-
cision upheld a vital part of the New Deal program, the National Labor
Relations Act. Both cases signified a “switch in time that saved nine,”
because the Court had been split five to four when striking down pro-
gressive state and federal legislation. Justices Sutherland, McReynolds,
Butler, and Van Devanter—the “Four Horsemen’”—voted together
as a laissez-faire protectionist bloc, while Stone and Cardozo followed
Brandeis in supporting progressive economic legislation. Hughes and
Roberts were the swing votes, the latter, less-tractable justice casting the
pivotal vote striking down FDR’s programs. But Roberts was per-
suaded by Hughes in December to change his mind, and when these
rulings came down they dealt a death blow to FDR’s Court-packing
plan.
Chief Justice Hughes’s opinion in Jones & Laughlin, upholding the
National Labor Relations Board’s (NLRB) jurisdiction over any person
engaging in unfair labor practices “affecting commerce,” reaffirmed
Congress’s plenary power under the commerce clause, at once return-
ing to the themes expounded in Gibbons and laying the basis for the
contemporary exercise of congressional power. And underscoring the
Court’s renewed deference to Congress on the day Jones & Laughlin
came down, the justices approved enforcement of the Wagner Act
against a trailer manufacturer and a small clothing company.* Almost in-
variably since Jones & Laughlin, the Court has approved extending the
coverage of the act over a wide range of businesses and labor relations.°
Congress responded to the Court’s changed position and passed
the Fair Labor Standards Act of 1938, one of the last major pieces of
New Deal legislation. The act makes it unlawful to ship in interstate
commerce goods produced in violation of employment standards set by
the law for all employees “engaged in commerce or in the production
of goods for commerce.’ The justices unanimously upheld the act in
United States v. Darby Lumber Company (1941) (see excerpt below) and
expressly overruled its earlier decision in Hammer v. Dagenhart.
The following year in Wickard v. Filburn (1942) (see excerpt be-
low), the Court again demonstrated that it would affirm extensive con-
gressional power and in the process discarded the direct and indirect
effects rule. In this case, marketing penalties under the Agricultural Ad-
justment Act of 1938 were upheld against a farmer who grew only
twenty-three acres of wheat for consumption on his farm alone.
These rulings typify the modern Court’s approach to congressional
 C | From the New Deal Crisis to the Administrative State | 587

power under the commerce clause. Congressional regulation of naviga-

ble waters and hydroelectric power,’ for example, and extensive en-
forcement of the Sherman Antitrust Act were thus sanctioned.’ With
few exceptions in the aftermath of the New Deal crisis the Court le-
gitimated a steady expansion of the reach of congressional power (see
Ch. 7).
One consequence of the Court’s legitimizing expansive congres-
sional control over commerce has been to enlarge Congress’s power to
make federal criminal law.’ Under the commerce clause, for instance,
Congress passed the Consumer Credit Protection Act of 1968, the
Omnibus Crime Control and Safe Streets Act of 1968, and the Federal
Travel Act of 1970, all of which impose criminal penalties for various
activities bearing some connection to interstate transportation." Perez
v. United States, 402 U.S. 146 (1971), is indicative of how deferential the
Court became after its 1937 turnaround. There Justice Douglas for the
majority upheld Congress’s prohibition of “loan sharking’”—that is, or-
ganized crime’s extraction of payments for loans—under the Consumer
Credit Protection Act on the grounds that congressional hearings had
established a connection between local loan sharks and interstate com-
merce. Only dissenting Justice Stewart protested that

the Framers of the Constitution never intended that the National

Government might define as a crime and prosecute such wholly lo-
cal activity through the enactment of federal criminal laws. .. . [I]t
is not enough to say that some loan sharking is a national problem,
for all crime is a national problem. It is not enough to say that some
loan sharking has interstate characteristics, for any crime may have
an interstate setting.

Another significant use of Congress’: commerce power was in pass-

ing civil rights legislation. On the authority of the commerce clause,
Congress enacted the Civil Rights Act of 1964, banning racial dis-
crimination in public accommodations and, in Title VII of the act, dis-
crimination in employment, as well as created the Equal Employment
Opportunity Commission. So too, Title VII of the Civil Rights Act of
1968 prohibits discrimination on the basis of race, color, religion, or na-
tional origin in the sale or rental of housing. When constitutional chal-
lenges were initially made to the Civil Rights Act, the Court rebuffed
them in Heart of Atlanta Motel, Inc. v. United States (1964) (see excerpt
below) and Katzenbach v. McClung (1964) (see excerpt below)."' See also
. South Carolina v. Katzenbach (1966), upholding Congress’s power to en-
act the Voting Rights Act of 1965 (see excerpt in Ch. 8).
Congress’s ever broader assertion of its power under the Commerce
588 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

Clause and the Court’s New Deal jurisprudence supporting the expan-
sion of the administrative state drew increasing criticism from conserva-
tives and advocates of “states’ rights.” In several sharply divided rulings,
bare majorities of the Burger and Rehnquist Courts sought to resurrect
the Tenth and Eleventh Amendments as a barrier to Congress’s power
(see Ch. 7, Section B). In addition, the Court handed down several im-
portant recent rulings on Congress’s commerce power that signal the
emergence on the high bench of a majority willing to defend states’ in-
terests and to limit congressional power, at least in the area of expanding
federal criminal law under the Commerce Clause.
Writing for a bare majority in United States v. Lopez (1995) (ex-
cerpted below), Chief Justice Rehnquist struck down the Gun-Free
School Zones Act of 1990, which had made it a federal crime to possess
a firearm within one thousand feet of a school. This was only the second
ruling to limit Congress’; power under the Commerce Clause in almost
sixty years. While the chief justice’s opinion was written broadly, in a
concurring opinion Justice Thomas appeared to go even further by call-
ing into question the Court’s post-1937 jurisprudence in the area. Justices
Stevens and Souter wrote separate dissenting opinions, while also joining,
along with Justice Ginsburg, a major dissent by Justice Breyer, who
sharply disagreed with both the majority’s second-guessing of Congress
in striking down the act and the basis for the majority’s doing so.
The ruling and reasoning in Lopez invited further litigation attack-
ing the constitutionality of not only Congress’s power to enact federal
criminal law but also legislation bearing on education, health, safety,
and the environment. In Reno v. Condon (2000) (excerpted below),
however, the Court unanimously upheld the Drivers’ Privacy Protec-
tion Act, which forbids states from selling drivers’ personal information,
such as home address and telephone number. Over the objections of
South Carolina, Chief Justice Rehnquist ruled that such information is
a “thing in commerce” and thus within Congress’s power to regulate.
But Chief Justice Rehnquist again commanded Lopez’s bare majority in
United States v. Morrison (2000) (excerpted below), striking down the
Violence Against Women Act of 1994. In the majority’s view Congress
both failed to show that violence against women had a “substantial ef-
fect on interstate commerce” and exceeded its power under Section 5
of the Fourteenth Amendment. In the latter respect the Court reaf-
firmed its holding in City of Boerne v. Flores (1997) (excerpted below).
In City of Boerne the Court struck down the Religious Freedom
Restoration Act of 1993 (RFRA), which Congress enacted following
the ruling in Employment Division, Department of Human Resources of
Oregon v. Smith, 492 U.S. 872 (1990) (in Vol. 2, Ch. 6) and established as
a matter of federal law the pre-Smith test for balancing claims to reli-
gious freedom against governmental interests in generally applicable
 C | From the New Deal Crisis to the Administrative State | 589

laws. In City of Boerne, the Court held that Congress exceeded its au-
thority under the enforcement clause of Section 5 of the Fourteenth
Amendment because Congress’s power under Section 5 is solely reme-
dial and does not authorize congressional expansion of constitutional
rights beyond the scope of that recognized by the Court. Morrison in
turn reaffirmed that limitation on congressional power.
In several recent cases, the Court also considered the scope of con-
gressional authority and the balance between federal and state govern-
ments’ powers under the Controlled Substances Act (CSA). Gonzales v.
O Centro Espirita Beneficente Uniao- do Vegetal, 126 S.Ct. 1211 (2006),
with Justice Alito not participating, unanimously held that the RFRA
permitted federal courts to make exceptions on a case-by-case basis
from the CSA for the importation of drugs to be used in a “‘sincere ex-
ercise of religion.”A small religious sect challenged under the RFRA a
ban on the importation of hoasca (pronounced “‘wass-ca”), used in
sacramental tea originating in the Amazon rainforest, even though the
CSA bans all use of the hallucinogen. Writing for the Court, Chief Jus-
tice Roberts noted that peyote, another hallucinogen, had been made
an exception to the CSA for the use by Native Americans for thirty-
five years and rejected the Bush administration’s arguments that it had
compelling governmental interests in forbidding the importation of
hoasca based on (1) protecting the health of users, (2) preventing the di-
version of the drug to recreational users, and (3) complying with the
1971 U.N. Convention on Psychotropic Substances.
In two other decisions, majorities on the Court went in different
directions. On the one hand, in Gonzales v. Raich (2005) (excerpted be-
low), the Court upheld congressional power and the federal prosecu-
tion of users of medicinal marijuana. Ten states had legalized the
medicinal use of marijuana, but writing for the Court Justice Stevens
upheld congressional power to criminalize such use. Chief Justice
Rehnquist and Justices O'Connor and Thomas dissented. On the other
hand, in Gonzales v. Oregon (2006) (excerpted below) the Court ruled
that the attorney general’s directive barring physician-suicide exceeded
his authority under the CSA, and upheld Oregon’s Death with Dignity
Act, which permits doctors to prescribe certain lethal substances to as-
sist in the painless death of competent but terminally ill individuals.
Chief Justice Roberts and Justices Scalia and Thomas dissented.

NOotrES

' 1. The Court also struck down the Farm Mortgage Act and the Municipal Bank-
ruptcy Act in, respectively, Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555
(1935); and Ashton v. Cameron County District, 298 U.S. 513 (1936).
2. By five-to-four votes, however, the Court sustained New York laws on unemploy-
 590 TAXING, AND SPENDING POWERS
| Concress: LEGISLATIVE, ee
Ne ee Se

ment compensation and setting minimum prices for milk, in Associated Industries v,
Department of Labor, 299 U.S. 587 (1936); and Nebbia v. New York, 291 U.S. 502 (1934).
And in Home Building & Loan Co. v, Blaisdell (1934) (see Vol. 2, Ch. 3), a bare majority
upheld the Minnesota Mortgage Moratorium law.
3. See The Gold Clause Cases, 294 U.S. 240 (1935). The Court also upheld federal
legislation prohibiting the shipment in interstate commerce of convict-made goods
into states that prohibited such goods. See Whitfield v. Ohio, 297 U.S. 431 (1936); and
Kentucky Whip and Collar Co. v, Illinois Central Railroad Co., 299 U.S. 334 (1937).
4. National Labor Relations Board v. Freuhauf Tiailer Co., 301 U.S. 49 (1937); and Na-
tional Labor Relations Board v. Friedman-Harry Marks Clothing Company, 301 U.S. 58
(loans
5. In McCulloch v, Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963), the
Court denied the NLRB’ jurisdiction over foreign seamen and, in NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490 (1979), over lay faculty in Catholic high schools.
6. See Associated Press v. NLRB, 301 U.S. 103 (1937); Consolidated Edison Co. v.
NLRB, 305 U.S. 197 (1938); Santa Cruz Fruit Packing Co. v. NLRB, 303 U.S. 453
(1938); NLRB v. Fainblatt, 306 U.S. 601 (1939); Polish Alliance v. Labor Board, 322 USS.
643 (1944); Guss v. Utah Labor Board, 353 U.S. 1 (1957); and NLRB v. Reliance Fuel Oil
Corporation, 371 U.S. 224 (1963).
7. See United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940), upholding
the Federal Water Power Act of 1920; Arizona v, California, 283 U.S. 423 (1931), up-
holding the Boulder Canyon Project Act of 1928; and Tennessee Electric Power Com-
pany v. T:VA., 306 US. 118 (1939), denying utility companies standing to challenge
the constitutionality of the Tennessee Valley Authority.
8. See United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944), up-
holding application of antitrust laws to insurance companies; and Goldfarb v. Virginia
State Bar, 421 U.S. 773 (1975), holding that a bar association’s imposition of mini-
mum fees for legal services constituted price fixing. In Flood v. Kuhn, 407 U.S. 258
(1972), however, the Court upheld an exemption for organized baseball from the
Sherman Act, when denying a challenge to the “reserve clause,’ under which a club
that first signs a player obtains an exclusive right to his services.
9. Prior to 1937 the Court upheld congressional power to ban interstate transporta-
tion of stolen cars, in Brooks v. United States, 267 U.S. 432 (1925); and to enact the
Federal Kidnapping Act, in Gooch v. United States, 297 U.S. 124 (1936).
10. While the Court has not seriously questioned the constitutionality of such legis-
lation, it has on occasion reversed convictions under these statutes. United States v,
Bass, 404 U.S. 336 (1971), for example, overturned a conviction under the Omnibus
Crime Control and Safe Streets Act because there was no showing that firearms were
used in interstate commerce, whereas Scarbough v. United States, 431 U.S. 563 (1977),
affirmed a conviction based on the government’s showing that firearms had moved at
least once in commerce.
11. In addition, in Daniel v. Paul, 395 U.S. 298 (1969), the Court upheld enforce-
ment of provisions of the Civil Rights against a “private club” in Arkansas, which
racially discriminated in selling its “memberships” for twenty-five cents on the grounds
that the club served interstate travelérs and served food that had moved in interstate
commerce.
 C | From the New Deal Crisis to the Administrative State | 591

SELECTED BIBLIOGRAPHY

Baker, Leonard. Back to Back: The Duel between FDR and the Supreme Court. New York:
Macmillan, 1967.
Cortner, Richard C. Civil Rights and Public Accommodations: The Heart of Atlanta Motel
and McClung Cases. Lawrence: University Press of Kansas, 2001.
Cushman, Barry. Rethinking the New Deal: The Structure of a Constitutional Revolution.
New York: Oxford University Press, 1998.
Leuchtenburg, William E. The Supreme Court Reborn: The Constitutional Revolution in
the Age of Roosevelt. New York: Oxford University Press, 1995.
. Franklin D. Roosevelt and the New Deal. New York: Harper Perennial, 1963.
Murchison, Kenneth. The Snail Darter Case: TVA versus the Endangered Species Act.
Lawrence; University Press of Kansas, 2007.
Pritchett, C. Herman. The Roosevelt Cotirt:A Study in Judicial Politics and Values. New
York: Macmillan, 1947.
Schoenbrod, David. Power without Responsibility: How the Congress Abuses the People
through Delegation. New Haven, CT: Yale University Press, 1993.

National Labor Relations Board v, Jones &

Laughlin Steel Corporation
Bor, U.S. I, S57 oeT. O85 11037)

After the Court struck down the National Industrial Recovery Act in
Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935) (see
excerpt in Vol. 1, Ch. 4), Congress passed the National Labor Relations
Act, or so-called Wagner Act. With that act Congress again sought to
protect the right of workers to organize and to encourage collective
bargaining, created the new NLRB, and authorized it to prevent unfair
labor practices on the rationale that they might lead to strikes that
would affect the ow of commerce. An affiliate of the Amalgamated As-
sociation of Iron & Tin Workers of America charged before the NLRB
that Jones & Laughlin, one of the largest steel producers in the country,
discouraged employees from joining the union and fired ten employees
for their union activities. Following a hearing, the NLRB ordered Jones
& Laughlin to reinstate the ten employees. The corporation refused to
do so, contending that the Wagner Act was unconstitutional because
it governed labor relations, not commerce. The NLRB, as provided in
_ the act, petitioned a federal court of appeals to enforce its order, but
that court’ declined, and the NLRB appealed to the Supreme Court.
Although the Court had unanimously struck down the National In-
592 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

CONGRESS DECIDED AT
THE NUMBER OF JUSTICES AT SIX.

Bs a

CONGRESS PLANNED ON A CHANGE TO FIVE,

BUT THE SIX REMAINED VERY MUCH ALIVE.

SEVEN HIGH JUDGES, ALL IN A LINE —

TWO MORE ADDED, AND

TEN HIGH JUDGES, VERY SEDATES

WHEN CONGRESS GOT THROUGH THERE WERE ONLY EIGHT.

peek ey Ee eee DE Se was a wake

WOULD A JUSTICE FEEL LIKE A PACKED SARDING
{(F THE NUMBER WAS RAISED TO — SAY—= FIFTEEN?

A famous Herblock cartoon blasting President Franklin D. Roosevelt’s 1937 “court-

packing” plan. (From Herblock: A Cartoonist’s Life, Times Books, 1998. Courtesy the
Estate of Herbert L. Block.)

dustrial Recovery Act two years earlier in Schechter, Chief Justice

Hughes managed to mass a bare majority in this case for upholding
Congress’s power to enact the National Labor Relations Act.
The Court’s decision was five to four, and the majority’s opinion
was announced by Chief Justice Hughes. Justice McReynolds dissented
and was joined by Justices Van Devanter, Sutherland, and Butler.

Chief Justice HUGHES delivers the opinion of the Court.

 C | From the New Deal Crisis to the Administrative State | 593

In a proceeding under the National Labor Relations Act of 1935 the

National Labor Relations Board found that the respondent, Jones & Laugh-
lin Steel Corporation, had violated the act by engaging in unfair labor prac-
tices affecting commerce... . The unfair labor practices charged were that the
corporation was discriminating against members of the union with regard to
hire and tenure of employment, and was coercing and intimidating its em-
ployees in order to interfere with their self-organization. ...
Jones & Laughlin .. . is engaged in the business of manufacturing iron
and steel in plants situated in Pittsburgh and nearby Aliquippa, Pa. It manu-
factures and distributes a widely diversified line of steel and pig iron, being
the fourth largest producer of steel in the United States. With its sub-
sidiaries—nineteen in number—it i$ a completely integrated enterprise,
owning and operating ore, coal and limestone properties, lake and river
transportation facilities and, terminal railroads located at its manufacturing
plants. It owns or controls mines in Michigan and Minnesota. It operates
four ore steamships on the Great Lakes, used in the transportation of ore to
its factories. It owns coal mines in Pennsylvania. It operates towboats and
steam barges used in carrying coal to its factories. It owns limestone proper-
ties in various places in Pennsylvania and West Virginia. It owns the Monon-
gahela connecting railroad which connects the plants of the Pittsburgh works
_and forms an interconnection with the Pennsylvania, New York Central and
Baltimore & Ohio Railroad systems. It owns the Aliquippa & Southern
Railroad Company, which connects the Aliquippa works with the Pittsburgh
& Lake Erie, part of the New York Central system. Much of its product is
shipped to its warehouses in Chicago, Detroit, Cincinnati and Memphis,—to
the last two places by means of its own barges and transportation equipment.
In Long Island City, New York, and in New Orleans it operates structural
steel fabricating shops in connection with the warehousing of semifinished
materials sent from its works. Through one of its wholly-owned subsidiaries
it owns, leases, and operates stores, warehouses, and yards for the distribution
of equipment and supplies for drilling and operating oil and gas mills and for
pipe lines, refineries and pumping stations. It has sales offices in.twenty cities
in the United States and a wholly-owned subsidiary which is devoted exclu-
sively to distributing its product in Canada. Approximately 75 per cent of its
product is shipped out of Pennsylvania.
Summarizing these operations, the Labor Board concluded that the
works in Pittsburgh and Aliquippa “might be likened to the heart of a self-
contained, highly integrated body. They draw in the raw materials from
Michigan, Minnesota, West Virginia, Pennsylvania in part through arteries
and by means controlled by the respondent; they transform the materials and
then pump them out to all parts of the nation through the vast mechanism
which the respondent has elaborated.”
To carry on the activities of the entire steel industry, 33,000 men mine
ore, 44,000 men mine coal, 4,000 men quarry limestone, 16,000 men man-
ufacture coke, 343,000 men manufacture steel, and 83,000 men transport its
product. Respondent has about 10,000 employees in its Aliquippa plant,
which is located in a community of about 30,000 persons.
Respondent points to evidence that the Aliquippa plant, in which the
discharged men were employed, contains complete facilities for the produc-
tion of finished and semifinished iron and steel products from raw materials.
594 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

... [T]he iron ore which is procured from mines in Minnesota and Michigan
and transported to respondent’s plant is stored in stock piles for future use,
the amount of ore in storage varying with the season but usually being
enough to maintain operations from nine to ten months. .. .
Practically all the factual evidence in the case .. . supports the findings o
the Board that respondent discharged these men “because of their union ac-
tivity and for the purpose of discouraging membership in the union.” We
turn to the questions of law which respondent urges in contesting the valid-
ity and application of the act.
First. The Scope of the Act.—The act is challenged in its entirety as an at-
tempt to regulate all industry, thus invading the reserved powers of the States
over their local concerns. It is asserted that the references in the act to inter-
state and foreign commerce are colorable at best; that the act is not a true
regulation of such commerce or of:matters which directly affect it, but on
the contrary has the fundamental object of placing under the compulsory
supervision of the federal government all industrial labor relations within the
nation.
The critical words of [the Act] prescribing the limits of the Board’s au-
thority in dealing with the labor practices, are “affecting commerce.” The act
specifically defines . . . ‘affecting commerce’ [as] in commerce, or burdening
or obstructing commerce or the free flow of commerce, or having led or
tending to lead to a labor dispute burdening or obstructing commerce or the
free flow of commerce.”
This definition is one of exclusion as well as inclusion. The grant of au-
thority to the Board does not purport to extend to the relationship between
all industrial employees and employers. Its terms do not impose collective
bargaining upon all industry regardless of effects upon interstate or foreign
commerce. It purports to reach only what may be deemed to burden or ob-
struct that commerce and, thus qualified, it must be construed as contem-
plating the exercise of control within constitutional bounds. It is a familiar
principle that acts which directly burden or obstruct interstate or foreign
commerce, or its free flow, are within the reach of the congressional power.
Acts having that effect are not rendered immune because they grow out of
labor disputes. . . .
It is the effect upon commerce, not the source of the injury which is the
criterion. Whether or not particular action does affect commerce in such a
close and intimate fashion as to be subject to federal control, and hence to lie
within the authority conferred upon the Board, is left by the statute to be
determined as individual cases arise. We are thus to inquire whether in the
instant case the constitutional boundary has been passed.
Second. The Unfair Labor Practices in Question. . . . [I]n its present applica-
tion, the statute goes no further than to safeguard the right of employees to
self-organization and to select representatives of their own choosing for col-
lective bargaining or other mutual protection without restraint or coercion
by their employer.
That is a fundamental right. Employees have as clear a right to organize
and select their representatives for lawful purposes as the respondent has to
organize in business and select its own officers and agents. Discrimination
and coercion to prevent the free exercise of the right of employees to self-
organization and representation is a proper subject for condemnation by
 C | From the New Deal Crisis to the Administrative State | 595

competent legislative authority. Long ago we stated the reason for labor or-
ganizations. We said that they were organized out of the necessities of the sit-
uation; that a single employee was helpless in dealing with an employer; that
he was dependent ordinarily on his daily wage for the maintenance of him-
self and family; that, if the employer refused to pay him the wages that he
thought fair, he was nevertheless unable to leave the employ and resist arbi-
trary and unfair treatment; that union was essential to give laborers opportu-
nity to deal on an equality with their employer. . . .
Third. The Application of the Act to Employees Engaged in Production.—The
Principle Involved. Respondent says that, whatever may be said of employees
engaged in interstate commerce, the industrial relations and activities in the
manufacturing department of respondent’s enterprise are not subject to fed-
eral regulation. The argument rests upon the proposition that manufacturing
in itself is not commerce.
The government Beer eutnes these cases. The various parts of oes
dent’s enterprise are Hasauihed as interdependent and as thus involving “a
great movement of iron ore, coal and limestone along well-defined paths to
the steel mills, thence through them, and thence in the form of steel products
into the consuming centers of the country—a definite and well-understood
course of business.” It is urged that these activities constitute a “stream” or
_ “flow” of commerce, of which the Aliquippa manufacturing plant is the fo-
cal point, and that industrial strife at that point would cripple the entire
movement. ...
We do not find it necessary to determine whether these features of de-
fendant’s business dispose of the asserted analogy to the “stream of com-
merce” cases. The instances in which that metaphor has been used are but
particular, and not exclusive, illustrations of the protective power which the
government invokes in support of the present act. The congressional author-
ity to protect interstate commerce from burdens and obstructions is not lim-
ited to transactions which can be deemed to be an essential part of a “flow”
of interstate or foreign commerce. Burdens and obstructions may be due to
injurious action springing from other sources. . . . Although activities may be
intrastate in character when separately considered, if they have such a close
and substantial relation to interstate commerce that their control is essential
or appropriate to protect that commerce from burdens and obstructions,
Congress cannot be denied the power to exercise that control. Schechter
Corporation v. United States. Undoubtedly the scope of this power must be
considered in the light of our dual system of government and may not be
extended so as to embrace effects upon interstate commerce so indirect and
remote that to embrace them, in view of our complex society, would effec-
tually obliterate the distinction between what is national and what is local
and create a completely centralized government. . . The question is neces-
sarily one of degree. ...
That intrastate activities, by reason of close and intimate relation to
interstate commerce, may fall within federal control is demonstrated in the
case of carriers who are engaged in both interstate and intrastate trans-
portation. There federal control has been found essential to secure the free-
- dom of interstate traffic from interference or unjust discrimination and to
promote the efficiency of the interstate service. The Shreveport Case (Houston,
E. & WTR. Co. v. United States), 234 U.S. 342 [(1914)]....
596 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

The close and intimate effect which brings the subject within the reach
of federal power may be due to activities in relation to productive industry
although the industry when separately viewed is local... .
It is thus apparent that the fact that the employees here concerned were
engaged in production is not determinative. The question remains as to the
effect upon interstate commerce of the labor practice involved. In the
Schechter Case, we found that the effect there was so remote as to be beyond
the federal power. To find “immediacy or directness” there was to find it “al-
most everywhere,” a result inconsistent with the maintenance of our federal
system. In the Carter Case [Carter v. Carter Coal Co., 298 U.S. 238 (1936)], the
Court was of the opinion that the provisions of the statute relating to pro-
duction were invalid upon several grounds,—that there was improper dele-
gation of legislative power, and that the requirements not only went beyond
any sustainable measure of protection of interstate commerce but were also
inconsistent with due process. These cases are not controlling here.
Fourth. Effects of the Unfair Labor Practice in Respondent’s Enterprise. Giving
full weight to respondent’s contention with respect to a break in the com-
plete continuity of the “stream of commerce” by reason of respondent’s man-
ufacturing operations, the fact remains that the stoppage of those operations
by industrial strife would have a most serious effect upon interstate com-
merce. In view of respondent’s far-flung activities, it is idle to say that the ef-
fect would be indirect or remote. It is obvious that it would be immediate
and might be catastrophic. We are asked to shut our eyes to the plainest facts
of our national life and to deal with the question of direct and indirect ef-
fects in an intellectual vacuum. Because there may be but indirect and re-
mote effects upon interstate commerce in connection with a host of local
enterprises throughout the country, it does not follow that other industrial
activities do not have such a close and intimate relation to interstate com-
merce as to make the presence of industrial strife a matter of the most urgent
national concern. When industries organize themselves on a national scale,
making their relation to interstate commerce the dominant factor in their
activities, how can it be maintained that their industrial labor relations con-
stitute a forbidden field into which Congress may not enter when it is nec-
essary to protect interstate commerce from the paralyzing consequences of
industrial war? We have often said that interstate commerce itself is a practi-
cal conception. It is equally true that interferences with that commerce must
be appraised by a judgment that does not ignore actual experience.
Experience has abundantly demonstrated that the recognition of the
right of employees to self-organization and to have representatives of their
own choosing for the purpose of collective bargaining is often an essential
condition of industrial peace. Refusal to confer and negotiate has been one
of the most prolific causes of strife. This is such an outstanding fact in the
history of labor disturbances that it is a proper subject of judicial notice and
requires no citation of instances. ...
The steel industry is one of the great basic industries of the United
States, with ramifying activities affecting interstate commerce at every point.
The Government aptly refers to the steel strike of 1919-1920 with its far-
reaching consequences. The fact that there appears to have been no major
disturbance in that industry in the more recent period did not dispose of the
 C | From the New Deal Crisis to the Administrative State | 597

possibilities of future and like dangers to interstate commerce which Con-

gress was entitled to foresee and to exercise its protective power to forestall.
It is not necessary again to detail the facts as to respondent’s enterprise. In-
stead of being beyond the pale, we think that it presents in a most striking
way the close and intimate relation which a manufacturing industry may
have to interstate commerce and we have no doubt that Congress had con-
stitutional authority to safeguard the right of respondent’s employees to self-
organization and freedom in the choice of representatives for collective
bargaining.

(| Justice MCREYNOLDS, dissenting.

Justice VAN DEVANTER,, Justice SUTHERLAND, Justice BUTLER
and I are unable to agree with the decisions just announced. .. .
Considering the far-reaching import of these decisions, the departure
from what we understand has beer consistently ruled here, and the extra-
ordinary power confirmed to a Board of three, the obligation to present our
views becomes plain.
The Court as we think departs from well-established principles followed
in Schechter Poultry Corporation v. United States, and Carter v. Carter Coal Co... .
It puts into the hands of a Board power of control over purely local in-
- dustry beyond anything heretofore deemed permissible. . . .
We are told that Congress may protect the “stream of commerce” and
that one who buys raw material without the state, manufactures it therein,
and ships the output to another state is in that stream. Therefore it is said he
may be prevented from doing anything which may interfere with its flow.
This, too, goes beyond the constitutional limitations heretofore en-
forced. If a man raises cattle and regularly delivers them to a carrier for
interstate shipment, may Congress prescribe the conditions under which he
may employ or discharge helpers on the ranch? The products of a mine pass
daily into interstate commerce; many things are brought to it from other
states. Are the owners and the miners within the power of Congress in re-
spect of the latter’s tenure and discharge? May a mill owner be prohibited
from closing his factory or discontinuing his business because so to do would
stop the flow of products to and from his plant in interstate commerce? ...
If the ruling of the Court just announced is adhered to, these questions
suggest some of the problems certain to arise. ...
That Congress has power by appropriate means, not prohibited by the
Constitution, to prevent direct and material interference with the conduct of
interstate commerce is settled doctrine. But the interference struck at must
be direct and material, not some mere possibility contingent on wholly un-
certain events; and there must be no impairment of rights guaranteed. A state
by taxation on property may indirectly but seriously affect the cost of trans-
portation; it may not lay a direct tax upon the receipts from interstate trans-
portation. The first is an indirect effect, the other direct. ...
The things inhibited by the Labor Act relate to the management of a
manufacturing plant—something distinct from commerce and subject to the
authority of the state. And this may not be abridged because of some vague
' possibility*of distant interference with commerce... .
It seems clear to us that Congress has transcended the powers granted.
598 | Concress: LEGISLATIVE, [AXING, AND SPENDING POWERS

United States v. Darby Lumber Company

RTD UNS TTOO SOM SOT aor (104T)

Fred Darby, the owner of a Georgia lumber business, was indicted for
violating provisions of the Fair Labor Standards Act of 1938. That act
prohibits in interstate commerce the shipping and producing of goods
for commerce by companies whose employees are paid less than the
minimum wage (set, at the time, at twenty cents per hour by the act) or
who work more than forty hours a week without overtime pay, and re-
quires companies to keep records on their employees’ wages and hours.
In federal district court, a judge quashed the indictment on finding the
act unconstitutional because, relying on Hammer v. Dagenhart, 247 U.S.
251 (1918) (excerpted in section B of this chapter) and other rulings of
the Supreme Court, Congress had no authority to control the condi-
tions of production and manufacturing under the commerce clause.
The Department of Justice appealed that ruling to the Supreme Court,
which after granting and hearing the case reversed the lower court and
overturned Hammer v. Dagenhart.
The Court’s decision was unanimous, and the opinion was an-
nounced by Justice Stone.

“) Justice STONE delivers the opinion of the Court.

The Fair Labor Standards Act set up a comprehensive legislative scheme
for preventing the shipment in interstate commerce of certain products and
commodities produced in the United States under labor conditions as re-
spects wages and hours which fail to conform to standards set up by the Act.
Its purpose ...is to exclude from interstate commerce goods produced for
the commerce and to prevent their production for interstate commerce,
under conditions detrimental to the maintenance of the minimum standards
of living necessary for health and general well-being; and to prevent the
use of interstate commerce as the means of competition in the distribu-
tion of goods so produced, and as the means of spreading and perpetuat-
ing such substandard labor conditions among the workers of the several
Statesn ey
[We] confine our decision to the. validity and construction of the
statuves?
While manufacture is not of itself interstate commerce the shipment of
manufactured goods interstate is such commerce and the prohibition of such
shipment by Congress is indubitably a regulation of the commerce. The
power to regulate commerce is the power “to prescribe the rule by which
commerce is to be governed.” Gibbons v. Ogden. It extends not only to those
regulations which aid, foster and protect the commerce, but embraces those
which prohibit it. It is conceded that the power of Congress to prohibit
transportation in interstate commerce includes noxious articles, stolen ati-
 C | From the New Deal Crisis to the Administrative State | 599

cles, kidnapped persons, and articles such as intoxicating liquor or convict

made goods, traffic in which is forbidden or restricted by the laws of the
state of destination... .
But it is said that the present prohibition falls within the scope of none
of these categories; that while the prohibition is nominally a regulation of
the commerce its motive or purpose is regulation of wages and hours of per-
sons engaged in manufacture, the control of which has been reserved to the
states and upon which Georgia and some of the states of destination have
placed no restriction; that the effect of the present statute is not to exclude
the prescribed articles from interstate commerce in aid of state regulation as
in Kentucky Whip & Collar Co. v. Illinois Central R. Co., [299 U.S. 334 (1937)]
but instead, under the guise of a regulation of interstate commerce, it under-
takes to regulate wages and hours within the state contrary to the policy of
the state which has elected to leave them unregulated.
The power of Congress over interstate commerce “is complete in itself,
may be exercised to its utmost extent, and acknowledges no limitations,
other than are prescribed by the constitution.” Gibbons v. Ogden. That power
can neither be enlarged nor diminished by the exercise or non-exercise of
state power. Congress, following its own conception of public policy con-
cerning the restrictions which may appropriately be imposed on interstate
commerce, is free to exclude from the commerce articles whose use in the
states for which they are destined it may conceive to be injurious to the
public health, morals or welfare, even though the state has not sought to reg-
ulate their use. ...
Such regulation is not a forbidden invasion of state power merely be-
cause either its motive or its consequence is to restrict the use of articles
of commerce within the states of destination and is not prohibited unless
by other Constitutional provisions. It is no objection to the assertion of
the power to regulate interstate commerce that its exercise is attended by
the same incidents which attend the exercise of the police power of the
States ae!
The motive and purpose of the present regulation is plainly to make ef-
fective the Congressional conception of public policy that interstate com-
merce should not be made the instrument of competition in the distribution
of goods produced under substandard labor conditions, which competition 1s
injurious to the commerce and to the states from and to which the com-
merce flows. The motive and purpose of a regulation of interstate commerce
are matters for the legislative judgment upon the exercise of which the
Constitution places no restriction and over which the courts are given no
control. ...
Whatever their motive and purpose, regulations of commerce which do
not infringe some constitutional prohibition are within the plenary power
conferred on Congress by the Commerce Clause. Subject only to that limi-
tation, presently to be considered, we conclude that the prohibition of the
shipment interstate of goods produced under the forbidden substandard la-
bor conditions is within the constitutional authority of Congress.
In the more than a century which has elapsed since the decision of Gib-
bons v, Ogden, these principles of constitutional interpretation have been so
long and repeatedly recognized by this Court as applicable to the Commerce
Clause, that there would be little occasion for repeating them now were
600 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

it not for the decision of this Court twenty-two years ago in Hammer v.
Dagenhart. . . .
Hammer v. Dagenhart has not been followed. The distinction on which
the decision was rested that Congressional power to prohibit interstate
commerce is limited to articles which in themselves have some harmful
or deleterious property—a distinction which was novel when made and un-
supported by any provision of the Constitution—has long since been aban-
doned.
The conclusion is inescapable that Hammer v. Dagenhart was a departure
from the principles which have prevailed in the interpretation of the com-
merce clause both before and since the decision and that such vitality, as a
precedent, as it then had has long since been exhausted. It should be and
now is overruled.
Validity of the wage and hour requirements. Section 15(a)(2) and Secs. 6 and
7 require employers to conform to the wage and hour provisions with re-
spect to all employees engaged in the production of goods for interstate
commerce. As appellee’s employees are not alleged to be “engaged in inter-
state commerce” the validity of the prohibition turns on the question
whether the employment, under other than the prescribed labor standards, of
employees engaged in the production of goods for interstate commerce is so
related to the commerce and so affects it as to be within the reach of the
power of Congress to regulate it....
[W]e think the acts alleged in the indictment are within the sweep of
the statute. The obvious purpose of the Act was not only to prevent the
interstate transportation of the proscribed product, but to stop the initial step
toward transportation, production with the purpose of so transporting it.
Congress was not unaware that most manufacturing businesses shipping their
product in interstate commerce make it in their shops without reference to
its ultimate destination and then after manufacture select some of it for ship-
ment interstate and some intrastate according to the daily demands of their
business, and that it would be practically impossible, without disrupting man-
ufacturing businesses, to restrict the prohibited kind of production to the
particular pieces of lumber, cloth, furniture or the like which later move in
interstate rather than intrastate commerce. . . .
There remains the question whether such restriction on the production
of goods for commerce is a permissible exercise of commerce power. The
power of Congress over interstate commerce is not confined to the regula-
tion of commerce among the states. It extends to those activities intrastate
which so affect interstate commerce or the exercise of the power of Con-
gress over it as to make regulation of them appropriate means to the attain-
ment of a legitimate end, the exercise of the granted power of Congress to
regulate interstate commerce. ...
Congress, having by the present Act adopted the policy of excluding
from interstate commerce all goods produced for the commerce which do
not conform to the specified labor standards, it may choose the means rea-
sonably adapted to the attainment of the permitted end, even though they
involve control of intrastate activities. Such legislation has often been sus-
tained with respect to powers, other than the commerce power granted to
the national government, when the means chosen, although not themselves
within the granted power, were nevertheless deemed appropriate aids to the
 C | From the New Deal Crisis to the Administrative State | 601

accomplishment of some purpose within an admitted power of the national

government. . . . A familiar like exercise of power is the regulation of
intrastate transactions which are so commingled with or related to interstate
commerce that all must be regulated if the interstate commerce is to be ef-
fectively controlled... .
Similarly Congress may require inspection and preventive treatment of
all cattle in a disease infected area in order to prevent shipment in interstate
commerce of some of the cattle without the treatment. It may prohibit the
removal, at destination, of labels required by the Pure Food & Drugs Act,
21 US.C.A. Sec. 1 et seq., to be affixed to articles transported in interstate
commerce.
We think also that Sec. 15(a)(2), now under consideration, is sustainable
independently of Sec. 15(a)(1), which prohibits shipment or transportation of
the proscribed goods. As we have said the evils aimed at by the Act are the
spread of substandard labor conditions through the use of the facilities of
interstate commerce for competition by the goods so produced with those
produced under the prescribed or better labor conditions; and the con-
sequent dislocation of the commerce itself caused by the impairment or de-
struction of local businesses by competition made effective through interstate
commerce. The Act is thus directed at the suppression ofa method or kind of
_competition in interstate commerce which it has in effect condemned as
“unfair,” as the Clayton Act has condemned other “unfair methods of com-
petition” made effective through interstate commerce. ...
The means adopted by Sec. 15(a) (2) for the protection of interstate
commerce by the suppression of the production of the condemned goods for
interstate commerce is so related to the commerce and so affects it as to be
within the reach of the commerce power. .. .
Our conclusion is unaffected by the Tenth Amendment which provides:
“The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or
to the people.” The amendment states but a truism that all is retained which
has not been surrendered. There is nothing in the history of its adoption
to suggest that it was more than declaratory of the relationship between
the national and state governments as it had been established by the Consti-
tution before the amendment or that its purpose was other than to allay
fears that the new national government might seek to exercise powers not
granted, and that the states might not be able to exercise fully their reserved
powers. ...
Validity of the requirement of records of wages and hours. Sec. 15(a) (5) and
Sec. 11(c). These requirements are incidental to those for the prescribed
wages and hours, and hence validity of the former turns on validity of the
latter. Since, as we have held, Congress may require production for interstate
commerce to conform to those conditions, it may require the employer, as a
means of enforcing the valid law, to keep a record showing whether he has in
fact complied with it. The requirement for records even of the intrastate
transaction is an appropriate means to the legitimate end.
 602 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

Wickard v. Filburn
207 Sy DID P63) SCT 824 to4r)

Under the Agricultural Adjustment Act of 1938, as amended in 1941,

Secretary of Agriculture Claude Wickard was directed to set national
acreage allotments for wheat to stabilize agricultural production. This
required apportioning the allotments among the states and establishing
quotas for individual farmers, who were subject to penalties for grow-
ing more wheat than their assigned quota. The act also provided that if
more than one-third of the farmers subject to the regulations objected
_ by referendum to the proposed national allotments, then the act would
be suspended. Filburn owned a small dairy farm in Ohio and was allot-
ted a little over eleven acres for wheat. But he planted twenty-three
acres, intending to use the excess crops to feed his livestock, and har-
vested 239 bushels more than his allotted 222 bushels under the pro-
gram. As a result, he was fined $117.11, based on a penalty of $0.49 for
each bushel produced in excess of his quota. Filburn refused to pay and
filed a complaint in federal district court, asking for an injunction
against enforcement of the penalty and for a declaratory judgment that
the legislation as applied to him violated the commerce clause and the
Fifth Amendment. A three-judge court issued an injunction on the
grounds that the secretary of agriculture had made misleading speeches
in support of the adoption of the quotas by referendum. The govern-
ment then appealed to the Supreme Court, which reversed the lower
court’s holding and addressed (in the excerpt here) the constitutional
challenge to Congress’; commerce power.
The Court’s decision was unanimous, and the opinion was an-
nounced by Justice Jackson.

“1 Justice JACKSON delivers the opinion of the Court.

It is urged that under the Commerce Clause of the Constitution, Arti-
cle I, Sec. 8, clause 3, Congress does not possess the power it has in this in-
stance sought to exercise. The question would merit little consideration since
our decision in United States v. Darby [(1941)], sustaining the federal power to
regulate production of goods for commerce except for the fact that this Act
extends federal regulation to production not intended in any part for com-
merce but wholly for consumption on the farm. The Act includes a defini-
tion of “market” and its derivatives so that as related to wheat in addition to
its conventional meaning it also means to dispose of “by feeding (in any
form) to poultry or livestock which, or the products of which, are sold,
bartered, or exchanged, or to be so disposed of?’ Hence, marketing quotas
 C | From the New Deal Crisis to the Administrative State | 603

not only embrace all that may be sold without penalty but also what may be
consumed on the premises. . . .
Appellee says that this is a regulation of production and consumption of
wheat. Such activities are, he urges, beyond the reach of Congressional power
under the Commerce Clause, since they are local in character, and their ef-
fects upon interstate commerce are at most “indirect.” In answer the Govern-
ment argues that the statute regulates neither production nor consumption,
but only marketing; and, in the alternative, that if the Act does go beyond the
regulation of marketing it is sustainable as a “‘necessary and proper” imple-
mentation of the power of Congress over interstate commerce.
The Government’s concern lest the Act be held to be a regulation of
production or consumption rather than of marketing is attributable to a few
dicta and decisions of this Court which might be understood to lay it down
that activities such as “production,” “manufacturing,’ and “mining” are
strictly “local” and, except in special circumstances which are not present
here, cannot be regulated under the commerce power because their effects
upon interstate commerce are, as matter of law, only “indirect.” Even today,
when this power has been held to have great latitude, there is no decision of
this Court that such activities may be regulated where no part of the prod-
uct is intended for interstate commerce or intermingled with the subjects
thereof. We believe that a review of the course of decision under the Com-
merce Clause will make plain, however, that questions of the power of Con-
gress are not to be decided by reference to any formula which would give
controlling force to nomenclature such as “production” and “indirect” and
foreclose consideration of the actual effects of the activity in question upon
interstate commerce.
At the beginning Chief Justice MARSHALL described the federal
commerce power with a breadth never yet exceeded. Gibbons v. Ogden
[(1824)]. He made emphatic the embracing and penetrating nature of this
power by warning that effective restraints on its exercise must proceed from
political rather than from judicial processes... .
For nearly a century, however, decisions of this Court under the Com-
merce Clause dealt rarely with questions of what Congress might do in the
exercise of its granted power under the Clause and almost entirely with the
permissibility of state activity which it was claimed discriminated against or
burdened interstate commerce. During this period there was perhaps little
occasion for the affirmative exercise of the commerce power, and the influ-
ence of the Clause on American life and law was a negative one, resulting
almost wholly from its operation as a restraint upon the powers of the
Braces not
It was not until 1887 with the enactment of the Interstate Commerce
Act that the interstate commerce power began to exert positive influence in
American law and life. This first important federal resort to the commerce
power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter,
mainly after 1903, by many others. These statutes ushered in new phases of
adjudication, which required the Court to approach the interpretation of the
Commerce Clause in the light of an actual exercise by Congress of its power
‘ thereunder.
When it first dealt with this new legislation, the Court adhered to its
604 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

earlier pronouncements, and allowed but little scope to the power of Con-
gress. United States v. E. C. Knight Co. [(1895)]. These earlier pronouncements
also played an important part in several of the five cases in which this Court
later held that Acts of Congress under the Commerce Clause were in excess
of its power....
The Court’s recognition of the relevance of the economic effects in the
application of the Commerce Clause exemplified by this statement has made
the mechanical application of legal formulas no longer feasible. Once an eco-
nomic measure of the reach of the power granted to Congress in the Com-
merce Clause is accepted, questions of federal power cannot be decided
simply by finding the activity in question to be “production” nor can con-
sideration of its economic effects be foreclosed by calling them “indirect.” . . .
Whether the subject of the regulation in question was “production,”
“consumption,” or “marketing” is, therefore, not material for purposes of de-
ciding the question of federal power before us. That an activity is of local
character may help in a doubtful case to determine whether Congress in-
tended: to reachitaa,
The wheat industry has been a problem industry for some years. Largely
as a result of increased foreign production and import restrictions, annual ex-
ports of wheat and flour from the United States during the ten-year period
ending in 1940 averaged less than 10 per cent of total production, while dur-
ing the 1920's they averaged more than 25 per cent. The decline in the ex-
port trade has left a large surplus in production which in connection with an
abnormally large supply of wheat and other grains in recent years caused
congestion in a number of markets; tied up railroad cars; and caused elevators
in some instances to turn away grains, and railroads to institute embargoes to
prevent further congestion. .. .
The maintenance by government regulation of a price for wheat un-
doubtedly can be accomplished as effectively by sustaining or increasing the
demand as by limiting the supply. The effect of the statute before us is to re-
strict the amount which may be produced for market and the extent as well
to which one may forestall resort to the market by producing to meet his
own needs. That appellee’s own contribution to the demand for wheat may
be trivial by itself is not enough to remove him from the scope of federal
regulation where, as here, his contribution, taken together with that of many
others similarly situated, is far from trivial... .
One of the primary purposes of the Act in question was to increase the
market price of wheat and to that end to limit the volume thereof that could
affect the market. It can hardly be denied that a factor of such volume and
variability as home-consumed wheat would have a substantial influence on
price and market conditions. This may arise because being in marketable
condition such wheat overhangs the market and if induced by rising prices
tends to flow into the market and check price increases. But if we assume
that it is never marketed, it supplies a need of the man who grew it which
would otherwise be reflected by purchases in the open market. Home-
grown wheat in this sense competes with wheat in commerce. The stimula-
tion of commerce is a use of the regulatory function quite as definitely as
prohibitions or restrictions thereon. This record leaves us in no doubt that
Congress may properly have considered that wheat consumed on the farm
where grown if wholly outside the scheme of regulation would have a sub-
 C | From the New Deal Crisis to the Administrative State | 605

stantial effect in defeating and obstructing its purpose to stimulate trade

therein at increased prices.
It is said, however, that this Act, forcing some farmers into the market to
buy what they could provide for themselves, is an unfair promotion of the
markets and prices of specializing wheat growers. It is of the essence of reg-
ulation that it lays a restraining hand on the self-interest of the regulated and
that advantages from the regulation commonly fall to others. The conflicts of
economic interest between the regulated and those who advantage by it are
wisely left under our system to resolution by the Congress under its more
flexible and responsible legislative process. Such conflicts rarely lend them-
selves to judicial determination. And with the wisdom, workability, or fair-
ness, of the plan of regulation we have nothing to do.

Heart ofAtlanta Motel, Inc. v. United States

379 US. 241, 85 S.CT. 348 (1964)

and

Katzenbach v. McClung
379 U.S. 294, 85 S.CT. 377 (1964)

Through litigation, sit-ins, and marches, the civil rights movement

sought to end racial discrimination in public schools and public accom-
modations. The Warren Court responded in cases such as Peterson v,
Greenville, 373 U.S. 244 (1963), ruling that a restaurant that discrimi-
nated against blacks ran afoul of the Fourteenth Amendment's “equal
protection of the law” because a city ordinance required the separation
of races. However, the Court was limited by the “‘state action” doctrine,
announced in The Civil Rights Cases, 109 U.S. 3 (1883) (see Vol. 2,
Ch. 12), holding that the Fourteenth Amendment does not prohibit
discrimination in privately owned public accommodations like hotels
and restaurants unless private discrimination is “sanctioned in some way
by the state” or “done under state authority.” In addition, litigation was
costly and had limited effectiveness.
With the Civil Rights Act of 1964, or so-called Public Accommo-
dations Act, Congress responded by forbidding racial discrimination or
. segregation in hotels, motels, restaurants, and catering establishments of
all kinds, as well as bars, barber shops, gasoline stations, entertainment,
and other facilities on the premises of the establishments covered by the
606 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

Moreton Rolleson, Jr., owner of the Heart of Atlanta Motel, challenged the constitu-
tionality of the Civil Rights Act of 1964, which, on the basis of Congress’s power to
regulate interstate commerce, prohibits racial discrimination in privately owned pub-
lic accommodations. (Corbis)

act—excluded were “private clubs,” boarding houses with five or fewer

rooms for rent, and other facilities closed to the public. In passing the
act, Congress relied on its authority under the commerce clause and its
enforcement power in Section 5 of the Fourteenth Amendment. When
the Department of Justice sought to enforce the act, constitutional
challenges were immediately raised.
In the Heart of Atlanta Motel case, the owners of a downtown At-
lanta hotel refused to rent any of their 216 rooms to blacks and unsuc-
cessfully sought a declaratory judgment from a three-judge district
court that the legislation was unconstitutional. The hotel advertised in
national magazines and on billboards, and about 75 percent of its guests
were from out ofstate. The Heart of Atlanta Hotel appealed the district
court’s injunction against its refusal to comply with the act to the
Supreme Court.
In the other case, the owner of Ollie’s Barbecue, a local restaurant
in Birmingham, Alabama, successfully fought enforcement of the act in
federal district court. In this instance, the lower court found the act’s
provision barring racial discrimination in any restaurant that “serves or
offers to serve interstate travelers, or a substantial portion of the food
which it serves ... has moved in commerce” to apply, since about half
of the food served in the restaurant had “moved” in commerce. How-
ever, the court concluded that the restaurant, which began operation in
 C | From the New Deal Crisis to the Administrative State | 607

1925, would lose substantial business if it were forced to serve blacks.

Attorney General Nicholas Katzenbach appealed that decision to the
Supreme Court.
Justice Tom Clark’s opinion for the majority in both cases upholds
the constitutionality of the Civil Rights Act solely on Congress’s
authority under the commerce clause, whereas Justices Douglas and
Goldberg would have relied on the Fourteenth Amendment as well.
Justice Black’s concurring opinion raises issues about whether there are
any limits on congressional power to regulate commerce.
The Court’s decision was unanimous, and the opinion was an-
nounced by Justice Clark. Concurrences were by Justices Black,
Douglas, and Goldberg.

Justice CLARK delivers the opinion of the Court [in Heart of

Atlanta Motel, Inc. v. United States/.
Congress first evidenced its interest in civil rights legislation in the Civil
Raghts or Enforcement Act of April 9, 1866.There followed four Acts with a
fifth, the Civil Raghts Act of March 1, 1875, culminating the series. In 1883
this Court struck down the public accommodations sections of the 1875 Act
in the Civil Rights Cases. No major legislation in this field had been enacted
by Congress for 82 years when the Civil Rights Act of 1957 became law. It
was followed by the Civil Rights Act of 1960. Three years later, on June 19,
1963, the late President Kennedy called for civil rights legislation in a mes-
sage to Congress to which he attached a proposed bill. Its stated purpose was

“to promote the general welfare by eliminating discrimination

based on race, color, religion, or national origin in . . . public ac-
commodations through the exercise by Congress of the powers
conferred upon it ...to enforce the provisions of the fourteenth
_ and fifteenth amendments, to regulate commerce among the several
States, and to make laws necessary and proper to execute the pow-
ers conferred upon it by the Constitution.”

Bills were introduced in each House of the Congress, embodying the Presi-
dent’s suggestion... .
After extended hearings each of these bills was favorably reported to its
respective house... . . Although each bill originally incorporated extensive
findings of fact these were eliminated from the bills as they were reported. ...
Our only frame of reference as to the legislative history of the Act is, there-
fore, the hearings, reports and debates on the respective bills in each house.
The Act as finally adopted was most comprehensive, undertaking to
prevent through peaceful and voluntary settlement discrimination in voting,
as well as in places of accommodation and public facilities, federally
‘secured program’ and in employment. Since Title II is the only portion un-
der attack here, we confine our consideration to those public accommoda-
tion provisions.
608 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDINGSSPOWERS
Dee ee ee

TITLE 11 OF THE ACT.

This Title is divided into seven sections beginning with Sec. 201(a) which
provides that:

“All persons shall be entitled to the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, and accommoda-
tions of any place of public accommodation, as defined in this sec-
tion, without discrimination or segregation on the ground of race,
color, religion, or national origin.”

There are listed in Sec. 201(b) four classes of business establishments, each of
which “serves the public” and “is a place of public accommodation” within
the meaning of Sec. 201(a) “if its operations affect commerce, or if discrimi-
nation or segregation by it is supported by State action.” The covered estab-
lishments are ...

any inn, hotel, motel, or other establishment which provides lodg-

ing to transient guests, other than an establishment located within a
building which contains not more than five rooms for rent or hire
and which is actually occupied by the proprietor of such establish-
ment as his residence... .

Section 201(c) defines the phrase “affect commerce” as applied to the above
establishments. It first declares that “any inn, hotel, motel, or other establish-
ment which provides lodging to transient guests” affects commerce per se... .

The Civil Rights Cases, 109 US. 3, 3 S.Ct. 18 (1883), and their Application.
In light of our ground for decision, it might be well at the outset to dis-
cuss the Civil Rights Cases, supra, which declared provisions of the Civil
Rights Act of 1875 unconstitutional. 18 Stat. 335, 336. We think that deci-
sion inapposite, and without precedential value in determining the constitu-
tionality of the present Act. Unlike Title II of the present legislation, the
1875 Act broadly proscribed discrimination in “inns, public conveyances on
land or water, theaters, and other places of public amusement,” without lim-
iting the categories of affected businesses to those impinging upon interstate
commerce. In contrast, the applicability of Title I] is carefully limited to
enterprises having a direct and substantial relation to the interstate flow of
goods and people, except where state action is involved. Further, the fact that
certain kinds of businesses may not in 1875 have been sufficiently involved
in interstate commerce to warrant bringing them within the ambit of the
commerce power is not necessarily dispositive of the same question today.
Our populace had not reached its present mobility, nor were facilities, goods
and services circulating as readily in interstate commerce as they are today.
Although the principles which we apply today are those first formulated by
Chief Justice MARSHALL in Gibbons v. Ogden, the conditions of transporta-
tion and commerce have changed dramatically, and we must apply those
principles to the present state of commerce. The sheer increase in volume of
interstate traffic alone would give discriminatory practices which inhibit
travel a far larger impact upon the Nation’s commerce than such practices
 C | From the New Deal Crisis to the Administrative State | 609

had on the economy of another day. Finally, there is language in the Civil
Rights Cases which indicates that the Court did not fully consider whether
the 1875 Act could be sustained as an exercise of the commerce power... .

THE BASIS OF CONGRESSIONAL ACTION.

While the Act as adopted carried no congressional findings the record of its
passage through each house is replete with evidence of the burdens that dis-
crimination by race or color places upon interstate commerce. .. .
This testimony included the fact that our people have become increas-
ingly mobile with millions of people of all races traveling from State to State;
that Negroes in particular have been the subject of discrimination in transient
accommodations, having to travel great distances to secure the same; that of-
ten they have been unable to obtain accommodations and have had to call
upon friends to put them up overnight, and that these conditions had become
so acute as to require the listing of available lodging for Negroes in a special
guidebook which was itself “dramatic testimony to the difficulties” Negroes
encounter in travel... . These ‘exclusionary practices were found to be nation-
wide, the Under Secretary of Commerce testifying that there is “no question
that this discrimination in the North still exists to a large degree” and in the
West and Midwest as well... . This testimony indicated a qualitative as well
as quantitative effect on interstate travel by Negroes. The former was the
obvious impairment of the Negro traveler’s pleasure and convenience that
resulted when he continually was uncertain of finding lodging. As for the lat-
ter, there was evidence that this uncertainty stemming from racial discrimina-
tion had the effect of discouraging travel on the part of a substantial portion
of the Negro community. This was the conclusion not only of the Under
Secretary of Commerce but also of the Administrator of the Federal Aviation
Agency who wrote the Chairman of the Senate Commerce Committee that
it was his “belief that air commerce is adversely affected by the denial to a
substantial segment of the traveling public of adequate and desegregated pub-
lic accommodations.” We shall not burden this opinion with further details
since the voluminous testimony presents overwhelming evidence that dis-
crimination by hotels and motels impedes interstate travel.

THE POWER OF CONGRESS OVER INTERSTATE TRAVEL.

The same interest in protecting interstate commerce which led Congress to

deal with segregation in interstate carriers and the white-slave traffic has
prompted it to extend the exercise of its power to gambling, Lottery Case
(Champion v. Ames), [188 U.S. 321] (1903); to criminal enterprises, Brooks v,
United States, [267 U.S. 432] (1925); to deceptive practices in the sale of
products, Federal Trade Comm. v. Mandel Bros., Inc., [359 U.S. 385] (1959); to
fraudulent security transactions, Securities & Exchange Comm. v. Ralston Purina
Co., [346 U.S. 119] (1953); to misbranding of drugs, Weeks v. United States,
[232 USS. 383] (1918); to wages and hours, United States v. Darby, [321 U.S.
100] (1941); to members of labor unions, National Labor Relations Board v,
Jones & Laughlin Steel Corp., [310 U.S. 1] (1937); to crop control, Wickard v.
‘Filburn (1942); to discrimination against shippers, United States v. Baltimore &
Ohio R. Co., [317 U.S. 111] (1948); to the protection of small business from
injurious price cutting, Moore v. Mead’s Fine Bread Co., [333 U.S. 169] (1954);
610
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| CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

to resale price maintenance, Hudson Distributors, Inc. v. Eli Lilly & Co., [348
USS. 115] (1964); Schwegmann Bros. v. Calvert Distillers Corp., [377 U.S. 386]
(1951); to professional football, Radovich v. National Football League, [352 OS:
445] (1957); and to racial discrimination by owners and managers of termi-
nal restaurants, Boynton v. Com. of Virginia, [362 U.S. 454] (1960).
That Congress was legislating against moral wrongs in many of these ar-
eas rendered its enactments no less valid. In framing Title I of this Act Con-
gress was-also dealing with what it considered a moral problem. But that fact
does not detract from the overwhelming evidence of the disruptive effect
that racial discrimination has had on commercial intercourse. It was this bur-
den which empowered Congress to enact appropriate legislation, and, given
this basis for the exercise of its power, Congress was not restricted by the fact
that the particular obstruction to interstate commerce with which it was
dealing was also deemed a moral and social wrong.
It is said that the operation of the motel here is of a purely local charac-
ter. But, assuming this to be true, “[i]f it is interstate commerce that feels the
pinch, it does not matter how local the operation which applies the
squeeze.” United States v. Women’s Sportswear Mfg. Ass’n, 336 U.S. 460 (1949).
... Thus the power of Congress to promote interstate commerce also in-
cludes the power to regulate the local incidents thereof, including local ac-
tivities in both the States of origin and destination, which might have a
substantial and harmful effect upon that commerce. One need only examine
the evidence which we have discussed above to see that Congress may—as it
has—prohibit racial discrimination by motels serving travelers, however “lo-
cal” their operations may appear.
Nor does the Act deprive appellant of liberty or property under the
Fifth Amendment. The commerce power invoked here by the Congress is a
specific and plenary one authorized by the Constitution itself. The only
questions are: (1) whether Congress had a rational basis for finding that racial
discrimination by motels affected commerce, and (2) if it had such a basis,
whether the means it selected to eliminate that evil are reasonable and ap-
propriate. If they are, appellant has no “right” to select its guests as it sees fit,
free from governmental regulation. ...
We ... conclude that the action of the Congress in the adoption of the
Act as applied here to a motel which concededly serves interstate travelers is
within the power granted it by the Commerce Clause of the Constitution, as
interpreted by this Court for 140 years. It may be argued that Congress
could have pursued other methods to eliminate the obstructions it found
in interstate commerce caused by racial discrimination. But this is a matter
of policy that rests entirely with the Congress not with the. courts. How
obstructions in commerce may be removed—what means are to be em-
ployed—is within the sound and exclusive discretion of the Congress. It is
subject only to one caveat—that the means chosen by it must be reasonably
adapted to the end permitted by the Constitution. We cannot say that its
choice here was not so adapted. The Constitution requires no more.

“| Justice CLARK delivers the opinion of the Court [in Katzenbach v.

McClung].
Ollie’s Barbecue is a family-owned restaurant in Birmingham, Alabama,
specializing in barbecued meats and homemade pies, with a seating capacity
 C | From the New Deal Crisis to the Administrative State | 61x

of 220 customers. It is located on a state highway 11 blocks from an inter-

state one and a somewhat greater distance from railroad and busstations. The
restaurant caters to a family and white-collar trade with a take-out service
for Negroes. It employs 36 persons, two-thirds of whom are Negroes.
In the 12 months preceding the passage of the Act, the restaurant pur-
chased locally approximately $150,000 worth of food, $69,683 or 46% of
which was meat that it bought from a local supplier who had procured it
from outside the State. The District Court expressly found that a substantial
portion of the food served in the restaurant had moved in interstate com-
merce. The restaurant has refused to serve Negroes in its dining accommoda-
tions since its original opening in 1927, and since July 2, 1964, it has been
operating in violation of the Act. The court below concluded that if it were
required to serve Negroes it would lose a substantial amount of business. . . .
The basic holding in Heart of Atlanta Motel, answers many of the con-
tentions made by the appellees. There we outlined the overall purpose and
operational plan of Title II and found it a valid exercise of the power to reg-
ulate interstate commerce insofar as it requires hotels and motels to serve
transients without regard to their race or color. In this case we consider its
application to restaurants which serve food a substantial portion of which has
moved in commerce. . . . Sections 201(b) (2) and (c) place any “restaurant . . .
principally engaged in selling food for consumption on the premises” under
the Act “if... it serves or offers to serve interstate travelers or a substantial
portion of the food which it serves . .. has moved in commerce.”
Ollie’s Barbecue admits that it is covered by these provisions of the
PG yo,
As we noted in Heart of Atlanta Motel both Houses of Congress con-
ducted prolonged hearings on the Act. And, as we said there, while no formal
findings were made, which of course are not necessary, it is well that we
make mention of the testimony at these hearings the better to understand
the problem before Congress and determine whether the Act is a reasonable
and appropriate means toward its solution. The record is replete with testi-
mony of the burdens placed on interstate commerce by racial discrimination
in restaurants. ...
~ Moreover there was an impressive array of testimony that discrimination
in restaurants had a direct and highly restrictive effect upon interstate travel
by Negroes. This resulted, it was said, because discriminatory practices pre-
vent Negroes from buying prepared food served on the premises while on a
trip, except in isolated and unkempt restaurants and under most unsatisfac-
tory and often unpleasant conditions. This obviously discourages travel and
obstructs interstate commerce for one can hardly travel without eating. Like-
wise, it was said, that discrimination deterred professional, as well as skilled,
people from moving into areas where such practices occurred and thereby
caused industry to be reluctant to establish there. .. .
_ We believe that this testimony afforded ample basis for the conclusion
that established restaurants in such areas sold less interstate goods because of
the discrimination, that interstate travel was obstructed directly by it, that
business in general suffered and that many new businesses refrained from
‘establishing* there as a result of it. Hence the District Court was in error
in concluding that there was no connection between discrimination and
the movement of interstate commerce. The court’s conclusion that such a
612 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

connection is outside “common experience” flies in the face of stubborn

fact. Ae
The appellees contend that Congress has arbitrarily created a conclusive
presumption that all restaurants meeting the criteria set out in the Act “affect
commerce.” Stated another way, they object to the omission of a provision
for a case-by-case determination—judicial or administrative—that racial dis-
crimination in a particular restaurant affects commerce.
But Congress’ action in framing this Act was not unprecedented. In
United States v. Darby (1941), this Court held constitutional the Fair Labor
Standards Act of 1938....
Here, as there, Congress has determined for itself that refusals of service
to Negroes have imposed burdens both upon the interstate flow of food and
upon the movement of products generally. Of course, the mere fact that
Congress has said when particular activity shall be deemed to affect com-
merce does not preclude further examination by this Court. But where we
find that the legislators, in light of the facts and testimony before them, have
a rational basis for finding a chosen regulatory scheme necessary to the pro-
tection of commerce, our investigation is at an end. The only remaining
question—one answered in the affirmative by the court below—is whether
the particular restaurant either serves or offers to serve interstate travelers or
serves food a substantial portion of which has moved in interstate com-
imercests:
Confronted as we are with the facts laid before Congress, we must con-
clude that it had a rational basis for finding that racial discrimination in
restaurants had a direct and adverse effect on the free flow of interstate com-
merce. Insofar as the sections of the Act here relevant are concerned,
Secs. 201(b) (2) and (c), Congress prohibited discrimination only in those es-
tablishments having a close tie to interstate commerce, i.e., those, like the
McClungs’, serving food that has come from out of the State. We think in so
doing that Congress acted well within its power to protect and foster com-
merce in extending the coverage of Title II only to those restaurants offering
to serve interstate travelers or serving food, a substantial portion of which has
moved in interstate commerce.
The absence of direct evidence connecting discriminatory restaurant
service with the flow of interstate food, factor on which the appellees place
much reliance, is not, given the evidence as to the effect of such practices on
other aspects of commerce, a crucial matter.
The power of Congress in this field is broad and sweeping; where it
keeps within its sphere and violates no express constitutional limitation it has
been the rule of this Court, going back almost to the founding days of the
Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we
find to be plainly appropriate in the resolution of what the Congress found
to be a national commercial problem of the first magnitude. We find it in no
violation of any express limitations of the Constitution and we therefore de-
clare it valid.
The judgment is therefore reversed.

Justice BLACK, concurring.

It requires no novel or strained interpretation of the Commerce Clause
to sustain Title II as applied [here]... . At least since Gibbons v. Ogden, decided
 C | From the New Deal Crisis to the Administrative State | 613

in 1824 in an opinion by Chief Justice John MARSHALL, it has been uni-

formly accepted that the power of Congress to regulate commerce among
the States is plenary, “complete in itself, may be exercised to its utmost ex-
tent, and acknowledges no limitations, other than are prescribed in the con-
stitution.” Nor is “Commerce” as used in the Commerce Clause to be
limited to a narrow, technical concept. It includes not only, as Congress has
enumerated in the Act, “travel, trade, traffic, commerce, transportation, or
communication,” but also all other unitary transactions and activities that
take place in more States than one. That some parts or segments of such uni-
tary transactions may take place only in one State cannot, of course, take
from Congress its plenary power to regulate them in the national interest.
The facilities and instrumentalities used to carry on this commerce, such as
railroads, truck lines, ships, rivers, and even highways are also subject to con-
gressional regulation, so far as is necessary to keep interstate traffic upon fair
and equal terms... .
Furthermore, it has long beeri held that the Necessary and Proper
Clause, Art. I, Sec. 8, cl. 18, adds to the commerce power of Congress the
power to regulate local instrumentalities operating within a single State if
their activities burden the flow of commerce among the States... .
The Heart of Atlanta Motel is a large 216-room establishment strategi-
cally located in relation to Atlanta and interstate travelers. It advertises exten-
sively by signs along interstate highways and in various advertising media. As
a result of these circumstances approximately 75% of the motel guests are
transient interstate travelers. It is thus an important facility for use by inter-
state travelers who travel on highways, since travelers in their own cars must
find lodging places to make their journeys comfortably and safely. . . .
The foregoing facts are more than enough, in my judgment, to show
that Congress acting within its discretion and judgment has power under the
Commerce Clause and the Necessary and Proper Clause to bar racial dis-
crimination in the Heart of Atlanta Motel.

(1 Justice DOUGLAS, concurring.

Though I join the Court’s opinions, I am somewhat reluctant here . . .
to rest solely on the Commerce Clause. My reluctance is not due to any
conviction that Congress lacks power to regulate commerce in the interests
of human rights. It is rather my belief that the right of people to be free of
state action that discriminates against them because of race, like the “right of
persons to move freely from State to State” (Edwards v. People of State of Cali-
fornia) [314 US. 160 (1941)], “occupies a more protected position in our
constitutional system than does the movement of cattle, fruit, steel and coal
across state lines.”...
Hence I would prefer to rest on the assertion of legislative power con-
tained in Sec. 5 of the Fourteenth Amendment which states: “The Congress
shall have power to enforce, by appropriate legislation, the provisions of this
article’—a power which the Court concedes was exercised at least in part in
this Act.
A decision based on the Fourteenth Amendment would have a more
‘settling effect, making unnecessary litigation over whether a particular res-
taurant or inn is within the commerce definitions of the Act or whether
a particular customer is an interstate traveler. Under my construction, the
614 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS ee
Neen eee ee eeeeeee eee eee ee

Act would apply to all customers in all the enumerated places of public
accommodation. And that construction would put an end to all obstruction-
ist strategies and finally close one door on a bitter chapter in American
history. . . .

United States v. Lopez

SiAs9 1SA GallSuds aT, L024 O05)

Shortly after the enactment of the Gun-Free School Zones Act of

1990, which made it a federal crime to possess a firearm within 1,000
feet of public or private schools, Alfonso Lopez, Jr., a twelfth-grade stu-
dent, was arrested for carrying a .38 caliber handgun into Edison High
School in San Antonio, Texas. Lopez was initially charged with violating
Texas’s law against firearm possession on school premises, but those
charges were dropped after federal agents charged him with violating
the Gun-Free School Zones Act. Subsequently, a federal district court
found Lopez guilty and sentenced him to six months imprisonment
and two years probation. On appeal, Lopez’s attorneys challenged his
conviction on the ground the Gun-Free School Zones Act was un-
constitutional because Congress exceeded its power under the Com-
merce Clause in enacting the legislation. The Court of Appeals for the
Fifth Circuit agreed and reversed his conviction. The federal govern-
ment appealed that decision.
The Court’s decision was five to four and the majority’s opinion
was announced by Chief Justice Rehnquist. Justices Kennedy and
Thomas filed concurring opinions. Justices Stevens, Souter, and Breyer
filed dissenting opinions, which Justice Ginsburg joined.

(| Chief Justice REHNQUIST delivered the opinion of the Court.

We start with first principles. The Constitution creates a Federal
Government of enumerated powers. As James Madison wrote, “the powers
delegated by the proposed Constitution to the federal government are few
and defined. Those which are to remain in the State governments are nu-
merous and indefinite.” The Federalist No. 45....The Constitution delegates
to Congress the power “to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” The Court, through
Chief Justice MARSHALL, first defined the nature of Congress’ commerce
power in Gibbons v. Ogden, 9 Wheat. 1 (1824): “Commerce, undoubtedly, is
traffic, but it is something more: it is intercourse. It describes the commercial
intercourse between nations, and parts of nations, in all its branches, and is
regulated by prescribing rules for carrying on that intercourse”’ The com-
merce power “is the power to regulate; that is, to prescribe the rule by which
 C | From the New Deal Crisis to the Administrative State | 615

commerce is to be governed. This power, like all others vested in Congress,

is complete in itself, may be exercised to its utmost extent, and acknowledges
no limitations, other than are prescribed in the constitution.” The Gibbons
Court, however, acknowledged that limitations on the commerce power are
inherent in the very language of the Commerce Clause. “It is not intended
to say that these words comprehend that commerce, which is completely in-
ternal, which is carried on between man and man in a State, or between dif-
ferent parts of the same State, and which does not extend to or affect other
States. Such a power would be inconvenient, and is certainly unnecessary.”
“Comprehensive as the word ‘among’ is, it may very properly be restricted to
that commerce which concerns more States than one. ...The enumeration
presupposes something not enumerated; and that something, if we regard the
language or the subject of the sentence, must be the exclusively internal
commerce of a State.”
For nearly a century thereafter, the Court’s Commerce Clause decisions
dealt but rarely with the extent of Congress’ power, and almost entirely with
the Commerce Clause as a limit on state legislation that discriminated
against interstate commerce. Under this line of precedent, the Court held
that certain categories of activity such as “production,” “manufacturing,” and
“mining” were within the province of state governments, and thus were be-
yond the power of Congress under the Commerce Clause. See Wickard v. Fil-
burn, 317 U.S. 111 (1942) (describing development of Commerce Clause
jurisprudence).
In 1887, Congress enacted the Interstate Commerce Act, and in 1890,
Congress enacted the Sherman Antitrust Act. These laws ushered in a new
era of federal regulation under the commerce power. When cases involv-
ing these laws first reached this Court, we imported from our negative
Commerce Clause cases the approach that Congress could not regulate
activities such as “production,” “manufacturing,” and “‘mining.” See, e.g.,
United States v. E. C. Knight Co., 156 U.S. 1 (1895) (“Commerce succeeds to
manufacture, and is not part of it”); Carter v. Carter Coal Co., 298 U.S. 238
(1936) (“Mining brings the subject matter of commerce into existence.
Commerce disposes of it.”). Simultaneously, however, the Court held that,
where the interstate and intrastate aspects of commerce were so mingled
together that full regulation of interstate commerce required incidental
regulation of intrastate commerce, the Commerce Clause authorized such
regulation.
In A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935),
the Court struck down regulations that fixed the hours and wages of indi-
viduals employed by an intrastate business because the activity being regu-
lated related to interstate commerce only indirectly. In doing so, the Court
characterized the distinction between direct and indirect effects of intrastate
transactions upon interstate commerce as “a fundamental one, essential to the
maintenance of our constitutional system.” .. .
Two years later, in the watershed case of NLRB v, Jones & Laughlin Steel
Corp., 301 U.S. 1 (1937), the Court upheld the National Labor Relations Act
against a Commerce Clause challenge, and in the process, departed from the
‘distinction betwéen “direct” and “indirect” effects on interstate commerce.
The Court held that intrastate activities that “have such a close and substan-
tial relation to interstate commerce that their control is essential or appro-
616 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS
e
2) SS
SSl

priate to protect that commerce from burdens and obstructions” are within
Congress’ power to regulate.
In United States v, Darby, 312 U.S. 100 (1941), the Court upheld the Fair
Labor Standards Act, stating: “The power of Congress over interstate com-
merce is not confined to the regulation of commerce among the states. It ex-
tends to those activities intrastate which so affect interstate commerce or the
exercise of the power of Congress over it as to make regulation of them ap-
propriate means to the attainment of a legitimate end, the exercise of the
granted power of Congress to regulate interstate commerce.”
In Wickard v. Filburn, the Court upheld the application of amendments
to the Agricultural Adjustment Act of 1938 to the production and consump-
tion of home-grown wheat. The Wickard Court explicitly rejected earlier
distinctions between direct and indirect effects on interstate commerce, stat-
ing: “Even if appellee’s activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by Congress if it ex-
erts a substantial economic effect on interstate commerce, and this irrespec-
tive of whether such effect is what might at some earlier time have been
defined as ‘direct’ or ‘indirect? ” .. .
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Com-
merce Clause jurisprudence that greatly expanded the previously defined au-
thority of Congress under that Clause. In part, this was a recognition of the
great changes that had occurred in the way business was carried on in this
country. Enterprises that had once been local or at most regional in nature
had become national in scope. But the doctrinal change also reflected a view
that earlier Commerce Clause cases artificially had constrained the authority
of Congress to regulate interstate commerce.
But even these modern-era precedents which have expanded congres-
sional power under the Commerce Clause confirm that this power is subject
to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of
the interstate commerce power “must be considered in the light of our dual
system of government and may not be extended so as to embrace effects
upon interstate commerce so indirect and remote that to embrace them, in
view of our complex society, would effectually obliterate the distinction be-
tween what is national and what is local and create a completely centralized
government.” Since that time, the Court has heeded that warning and
undertaken to decide whether a rational basis existed for concluding that a
regulated activity sufficiently affected interstate commerce.
Similarly, in Maryland v. Wirtz, 392 U.S. 183 (1968), the Court re-
affirmed that “the power to regulate commerce, though broad indeed, has
limits” that “the Court has ample power” to enforce. In response to the dis-
sent’s warnings that the Court was powerless to enforce the limitations on
Congress’ commerce powers because “all activities affecting commerce, even
in the minutest degree, [Wickard], may be regulated and controlled by Con-
gress,’ (DOUGLAS, J., dissenting), the Wirtz Court replied that the dissent
had misread precedent as “neither here nor in Wickard has the Court de-
clared that Congress may use a relatively trivial impact on commerce as an
excuse for broad general regulation of state or private activities.” Rather, “the
Court has said only that where a general regulatory statute bears a substantial
relation to commerce, the de minimis character of individual instances aris-
ing under that statute is of no consequence.” ;
 C | From the New Deal Crisis to the Administrative State | 617

Consistent with this structure, we have identified three broad categories

of activity that Congress may regulate under its commerce power. First,
Congress may regulate the use of the channels of interstate commerce. Sec-
ond, Congress is empowered to regulate and protect the instrumentalities
of interstate commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities. Finally, Congress’
commerce authority includes the power to regulate those activities having a
substantial relation to interstate commerce, those activities that substantially
affect interstate commerce.
Within this final category, admittedly, our case law has not been clear
whether an activity must “affect” or “substantially affect” interstate com-
merce in order to be within Congress’ power to regulate it under the Com-
merce Clause. We conclude, consistent with the great weight of our case law,
that the proper test requires an analysis of whether the regulated activity
“substantially affects” interstate commerce.
We now turn to consider the power of Congress, in the light of this
framework, to enact Section 922(q). The first two categories of authority
may be quickly disposed of: Section 922(q) is not a regulation of the use of
the channels of interstate commerce, nor is it an attempt to prohibit the
interstate transportation of a commodity through the channels of commerce;
‘nor can Section 922(q) be justified as a regulation by which Congress has
sought to protect an instrumentality of interstate commerce or a thing in in-
terstate commerce. Thus, if Section 922(q) is to be sustained, it must be un-
der the third category as a regulation of an activity that substantially affects
interstate commerce.
First, we have upheld a wide variety of congressional Acts regulating
intrastate economic activity where we have concluded that the activity sub-
stantially affected interstate commerce. Examples include the regulation of
intrastate coal mining; intrastate extortionate credit transactions, restaurants
utilizing substantial interstate supplies, inns and hotels catering to interstate
guests, and production and consumption of home-grown wheat. These ex-
amples are by no means exhaustive, but the pattern is clear. Where economic
activity substantially affects interstate commerce, legislation regulating that
activity will be sustained. . ..
Section 922(q) is a criminal statute that by its terms has nothing to do
with “commerce” or any sort of economic enterprise, however broadly one
might define those terms. Section 922(q) is not an essential part of a larger
regulation of economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated. It cannot, therefore, be
sustained under our cases upholding regulations of activities that arise out of
or are connected with a commercial transaction, which viewed in the aggre-
gate, substantially affects interstate commerce. .. .
The Government’s essential contention, in fine, is that we may deter-
mine here that Section 922(q) is valid because possession of a firearm in a lo-
cal school zone does indeed substantially affect interstate commerce. The
Government argues that possession of a firearm in a school zone may result
in violent crime and that violent crime can be expected to affect the func-
‘tioning of the national economy in two ways. First, the costs of violent crime
are substantial, and, through the mechanism of insurance, those costs are
spread throughout the population. Second, violent crime reduces the
618
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| Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

willingness of individuals to travel to areas within the country that are per-
ceived to be unsafe. The Government also argues that the presence of guns in
schools poses a substantial threat to the educational process by threatening
the learning environment. A handicapped educational process, in turn, will
result in a less productive citizenry. That, in turn, would have an adverse ef-
fect on the Nation’s economic well-being. As a result, the Government ar-
gues that Congress could rationally have concluded that Section 922(q)
substantially affects interstate commerce.
We pause to consider the implications of the Government’s arguments.
The Government admits, under its “costs of crime” reasoning, that Congress
could regulate not only all violent crime, but all activities that might lead to
violent crime, regardless of how tenuously they relate to interstate com-
merce. .. . [I]f we were to accept the Government’s arguments, we are hard-
pressed to posit any activity by an individual that Congress is without power
to regulate... .
To uphold the Government’s contentions here, we would have to pile
inference upon inference in a manner that would bid fair to convert con-
gressional authority under the Commerce Clause to a general police power
of the sort retained by the States. Admittedly, some of our prior cases have
taken long steps down that road, giving great deference to congressional ac-
tion. The broad language in these opinions has suggested the possibility of
additional expansion, but we decline here to proceed any further. To do so
would require us to conclude that the Constitution’s enumeration of powers
does not presuppose something not enumerated, and that there never will be
a distinction between what is truly national and what is truly local. This we
are unwilling to do.
For the foregoing reasons the judgment of the Court of Appeals is
Affirmed.

“1 Justice THOMAS, concurring.

Although I join the majority, I write separately to observe that our case
law has drifted far from the original understanding of the Commerce Clause.
In a future case, we ought to temper our Commerce Clause jurisprudence in
a manner that both makes sense of our more recent case law and is more
faithful to the original understanding of that Clause. ... In an appropriate
case, I believe that we must further reconsider our “substantial effects” test
with an eye toward constructing a standard that reflects the text and history
of the Commerce Clause without totally rejecting our more recent Com-
merce Clause jurisprudence. ...
At the time the original Constitution was ratified, “commerce” con-
sisted of selling, buying, and bartering, as well as transporting for these
purposes. As one would expect, the term “commerce” was used in contra-
distinction to productive activities such as manufacturing and agriculture.
Alexander Hamilton, for example, repeatedly treated commerce, agricul-
ture, and manufacturing as three separate endeavors. See, e.g., The Federalist
No. 36, (referring to “agriculture, commerce, manufactures”); id., No. 21
(distinguishing commerce, arts, and industry); id., No. 12 (asserting that com-
merce and agriculture have shared interests).
Moreover, interjecting a modern sense of commerce into the Constitu-
tion generates significant textual and structural problems. For example, one
 C | From the New Deal Crisis to the Administrative State | 619

cannot replace “commerce” with a different type of enterprise, such as man-

ufacturing. When a manufacturer produces a car, assembly cannot take place
“with a foreign nation” or “with the Indian Tribes.” Parts may come from
different States or other nations and hence may have been in the flow of
commerce at one time, but manufacturing takes place at a discrete site. Agri-
culture and manufacturing involve the production of goods; commerce en-
compasses traffic in such articles... .
The Constitution not only uses the word “commerce” in a narrower
sense than our case law might suggest, it also does not support the proposi-
tion that Congress has authority over all activities that “substantially affect”
interstate commerce. The Commerce Clause does not state that Congress
may “regulate matters that substantially affect commerce with foreign Na-
tions, and among the several States, and with the Indian Tribes.” In contrast,
the Constitution itself temporarily prohibited amendments that would “af-
fect” Congress’ lack of authority to_prohibit or restrict the slave trade or to
enact unproportioned direct taxation... .
Put simply, much if not all of Art. I, Section 8 (including portions of the
Commerce Clause itself) would be surplusage if Congress had been given
authority over matters that substantially affect interstate commerce. An inter-
pretation of cl. 3 that makes the rest of Section 8 superfluous simply cannot
-be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed
Just such an interpretation: the power we have accorded Congress has swal-
lowed Art. I, Section 8.
Indeed, if a “substantial effects” test can be appended to the Commerce
Clause, why not to every other power of the Federal Government? There is
no reason for singling out the Commerce Clause for special treatment. Ac-
cordingly, Congress could regulate all matters that “substantially affect” the
Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that
case, the clauses of Section 8 all mutually overlap, something we can assume
the Founding Fathers never intended.
Our construction of the scope of congressional authority has the addi-
tional problem of coming close to turning the Tenth Amendment on its
head. Our case law could be read to reserve to the United States all powers
not expressly prohibited by the Constitution. Taken together, these funda-
mental textual problems should, at the very least, convince us that the “sub-
stantial effects” test should be reexamined... .
Apart from its recent vintage and its corresponding lack of any ground-
ing in the original understanding of the Constitution, the substantial effects
test suffers from the further flaw that it appears to grant Congress a police
power over the Nation. When asked at oral argument if there were any lim-
its to the Commerce Clause, the Government was at a loss for words. Like-
wise, the principal dissent insists that there are limits, but it cannot muster
even one example. ...
The substantial effects test suffers from this flaw, in part, because of its
“ageregation principle.” Under so-called “class of activities” statutes, Con-
gress can regulate whole categories of activities that are not themselves either
“interstate” or “commerce.” In applying the effects test, we ask whether the
‘class of activities as a whole substantially affects interstate commerce, not
whether any specific activity within the class has such effects when consid-
ered in isolation.
 620 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS
Dt Bt ea oP en ee a ee ee

The aggregation principle is clever, but has no stopping point. Suppose

all would agree that gun possession within 1,000 feet of a school does not
substantially affect commerce, but that possession of weapons generally
(knives, brass knuckles, nunchakus, etc.) does. Under our substantial effects
doctrine, even though Congress cannot single out gun possession, it can pro-
hibit weapon possession generally. But one always can draw the circle
broadly enough to cover an activity that, when taken in isolation, would not
have substantial effects on commerce. Under our jurisprudence, if Congress
passed an omnibus “substantially affects interstate commerce” statute, pur-
porting to regulate every aspect of human existence, the Act apparently
would be constitutional. Even though particular sections may govern only
trivial activities, the statute in the aggregate regulates matters that substan-
tially affect commerce.
This extended discussion .. . reveals that our substantial effects test is far
removed from both the Constitution and from our early case law and that
the Court’s opinion should not be viewed as “radical” or another “wrong
turn” that must be corrected in the future... .

(| Justice SOUTER, dissenting.

In reviewing congressional legislation under the Commerce Clause, we
defer to what is often a merely implicit congressional judgment that its reg-
ulation addresses a subject substantially affecting interstate commerce “if
there is any rational basis for such a finding.” Hodel v, Virginia Surface Mining
& Reclamation Assn., Inc., 452 U.S. 264 (1981). If that congressional determi-
nation is within the realm of reason, “the only remaining question for judi-
cial inquiry is whether ‘the means chosen by Congress [are] reasonably
adapted to the end permitted by the Constitution’ ” Hodel, quoting Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
The practice of deferring to rationally based legislative judgments “is a
paradigm of judicial restraint.” In judicial review under the Commerce
Clause, it reflects our respect for the institutional competence of the Con-
gress on a subject expressly assigned to it by the Constitution and our appre-
ciation of the legitimacy that comes from Congress’s political accountability
in dealing with matters open to a wide range of possible choices.
It was not ever thus, however, as even a brief overview of Commerce
Clause history during the past century reminds us. The modern respect for
the competence and primacy of Congress in matters affecting commerce de-
veloped only after one of this Court’s most chastening experiences, when it
perforce repudiated an earlier and untenably expansive conception of judicial
review in derogation of congressional commerce power. A look at history’s
sequence will serve to show how today’s decision tugs the Court off course,
leading it to suggest opportunities for further developments that would be
at odds with the rule of restraint to which the Court still wisely states
adherence.
Notwithstanding the Court’s recognition of a broad commerce power
in Gibbons v, Ogden, 9 Wheat. 1 (1824) (MARSHALL, C. J.), Congress saw
few occasions to exercise that power prior to Reconstruction, and it was re-
ally the passage of the Interstate Commerce Act of 1887 that opened a new
age of congressional reliance on the Commerce Clause for authority to ex-
ercise general police powers at the national level. Although the Court upheld
 C | From the New Deal Crisis to the Administrative State | 621

a fair amount of the ensuing legislation as being within the commerce

power, the period from the turn of the century to 1937 is better noted for a
series of cases applying highly formalistic notions of “commerce” to in-
validate federal social and economic legislation, see, e.g., Carter v. Carter Coal
Co., 298 U.S. 238 (1936) (striking Act prohibiting unfair labor practices in
coal industry as regulation of “mining” and “production,” not “commerce”);
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (striking
congressional regulation of activities affecting interstate commerce only “in-
directly”); Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking Act prohibiting
shipment in interstate commerce of goods manufactured at factories using
child labor because the Act regulated “manufacturing,” not “commerce’”);
Adair v. United States, 208 U.S. 161 (1908) (striking protection oflabor union
membership as outside “commerce’”).
These restrictive views: of commerce subject to congressional power
complemented the Court’s activism in limiting the enforceable scope of state
economic regulation. It is most familiar history that during this same period
the Court routinely invalidated state social and economic legislation under
an expansive conception of Fourteenth Amendment substantive due process.
See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (striking state law establish-
ing maximum working hours for bakers). The fulcrums of judicial review in
_ these cases were the notions of liberty and property characteristic of laissez-
faire economics, whereas the Commerce Clause cases turned on what was
ostensibly a structural limit of federal power, but under each conception of
judicial review the Court’s character for the first third of the century showed
itself in exacting judicial scrutiny of a legislature’s choice of economic ends
and of the legislative means selected to reach them.
It was not merely coincidental, then, that sea changes in the Court’s
conceptions of its authority under the Due Process and Commerce Clauses
occurred virtually together, in 1937, with West Coast Hotel Co. v. Parrish,
[300 U.S. 379], and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1....In
West Coast Hotel, the Court’s rejection of a due process challenge to a state
law fixing minimum wages for women and children marked the abandon-
ment of its expansive protection of contractual freedom. Two weeks later,
Jones & Laughlin affirmed congressional commerce power to authorize
NLRB injunctions against unfair labor practices. The Court’s finding that the
regulated activity had a direct enough effect on commerce has since been
seen as beginning the abandonment, for practical purposes, of the formalistic
distinction between direct and indirect effects.
In the years following these decisions, deference to legislative policy
judgments on commercial regulation became the powerful theme under
both the Due Process and Commerce Clauses, and in due course that defer-
ence became articulate in the standard of rationality review. In due process
litigation, the Court’s statement of a rational basis test came quickly. The
parallel formulation of the Commerce Clause test came later, only be-
cause complete elimination of the direct/indirect effects dichotomy and ac-
ceptance of the cumulative effects doctrine, Wickard v. Filburn, 317 U.S. 111
(1942), so far settled the pressing issues of congressional power over com-
“merce as fo leave the Court for years without any need to phrase a test
explicitly deferring to rational legislative judgments. The moment came,
however, with the challenge to congressional Commerce Clause authority to
622 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

prohibit racial discrimination in places of public accommodation, when the

Court simply made explicit what the earlier cases had implied: “where we
find that the legislators, in light of the facts and testimony before them, have
a rational basis for finding a chosen regulatory scheme necessary to the pro-
tection of commerce, our investigation is at an end.” Katzenbach v. McClung,
379 US. 294 (1964), discussing United States v. Darby; see Heart ofAtlanta Mo-
tel, Inc. v. United States, 379 U.S. 241 (1964). Thus, under commerce, as under
due process, adoption of rational basis review expressed the recognition that
the Court had no sustainable basis for subjecting economic regulation as
such to judicial policy judgments, and for the past half-century the Court has
no more turned back in the direction of formalistic Commerce Clause re-
view (as in deciding whether regulation of commerce was sufficiently direct)
than it has inclined toward reasserting the substantive authority of Lochner
due process (as in the inflated protection of contractual autonomy).
There is today, however, a backward glance at both the old pitfalls, as the
Court treats deference under the rationality rule as subject to gradation ac-
cording to the commercial or noncommercial nature of the immediate sub-
ject of the challenged regulation. The distinction between what is patently
commercial and what is not looks much like the old distinction between
what directly affects commerce and what touches it only indirectly. And the
act of calibrating the level of deference by drawing a line between what is
patently commercial and what is less purely so will probably resemble the
process of deciding how much interference with contractual freedom was fa-
tal. Thus, it seems fair to ask whether the step taken by the Court today does
anything but portend a return to the untenable jurisprudence from which
the Court extricated itself almost 60 years ago. The answer is not reassuring.
To be sure, the occasion for today’s decision reflects the century’s end, not its
beginning. But if it seems anomalous that the Congress of the United States
has taken to regulating school yards, the act in question is still probably no
more remarkable than state regulation of bake shops 90 years ago. In any
event, there is no reason to hope that the Court’s qualification of rational ba-
sis review will be any more successful than the efforts at substantive eco-
nomic review made by our predecessors as the century began. Taking the
Court’s opinion on its own terms, Justice BREYER has explained both the
hopeless porosity of “commercial” character as a ground of Commerce
Clause distinction in America’s highly connected economy, and the inconsis-
tency of this categorization with our rational basis precedents from the last
D0) years...

“| Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and

Justice GINSBURG join, dissenting.
In my view, the statute falls well within the scope of the commerce
power as this Court has understood that power over the last half-century.
In reaching this conclusion, I apply three basic principles of Commerce
Clause interpretation. First, the power to “regulate Commerce . . . among
the several States” encompasses the power to regulate local activities insofar
as they significantly affect interstate commerce. See, e.g., Gibbons v, Ogden,
9 Wheat. 1 (1824) (MARSHALL, C. J.); Wickard v. Filburn, 317 U.S. 111
(1942). As the majority points out, the Court, in describing how much of an
 C | From the New Deal Crisis to the Administrative State | 623

effect the Clause requires, sometimes has used the word “substantial” and
sometimes has not... .I use the word “significant” because the word “sub-
stantial” implies a somewhat narrower power than recent precedent suggests.
But, to speak of “substantial effect” rather than “significant effect’ would
make no difference in this case.
Second, in determining whether a local activity will likely have a signif-
icant effect upon interstate commerce, a court must consider, not the effect
of an individual act (a single instance of gun possession), but rather the cu-
mulative effect of all similar instances (i.e., the effect of all guns possessed in
or near schools). Third, the Constitution requires us to judge the connection
between a regulated activity and interstate commerce, not directly, but at one
remove. Courts must give Congress 4 degree of leeway in determining the
existence of a significant factual connection between the regulated activity
and interstate commerce—both because the Constitution delegates the com-
merce power directly to Congress and because the determination requires an
empirical judgment of a kind that’a legislature is more likely than a court
to make with accuracy. The traditional words “rational basis” capture this
leeway. ...
Applying these principles to the case at hand, we must ask whether
Congress could have had a rational basis for finding a significant (or substan-
tial) connection between gun-related school violence and interstate com-
merce. Or, to put the question in the language of the explicit finding that
Congress made when it amended this law in 1994: Could Congress ration-
ally have found that “violent crime in school zones,” through its effect on the
“quality of education,” significantly (or substantially) affects “interstate” or
“foreign commerce’? As long as one views the commerce connection, not as
a “technical legal conception,” but as “a practical one,’ Swift & Co. v. United
States, 196 U.S. 375 (1905) (HOLMES, J.), the answer to this question must
be yes. Numerous reports and studies—generated both inside and outside
government—make clear that Congress could reasonably have found the
empirical connection that its law, implicitly or explicitly, asserts.
For one thing, reports, hearings, and other readily available literature
make clear that the problem of guns in and around schools is widespread and
extremely serious. These materials report, for example, that four percent of
American high school students (and six percent of inner-city high school
students) carry a gun to school at least occasionally; that 12 percent of urban
high school students have had guns fired at them; that 20 percent of those
students have been threatened with guns; and that, in any 6-month period,
several hundred thousand school children are victims of violent crimes in or
near their schools. And, they report that this widespread violence in schools
throughout the Nation significantly interferes with the quality of education
in those schools. Based on reports such as these, Congress obviously could
have thought that guns and learning are mutually exclusive. And, Congress
could therefore have found a substantial educational problem—teachers un-
able to teach, students unable to learn—and concluded that guns near
schools contribute substantially to the size and scope of that problem.
Having found that guns in schools significantly undermine the quality
of education in our Nation’s classrooms, Congress could also have found,
given the effect of education upon interstate and foreign commerce, that
gun-related violence in and around schools is a commercial, as well as a hu-
624 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

man, problem. Education, although far more than a matter of economics, has
long been inextricably intertwined with the Nation’s economy. When this
Nation began, most workers received their education in the workplace, typ-
ically (ike Benjamin Franklin) as apprentices. As late as the 1920's, many
workers still received general education directly from their employers—from
large corporations, such as General Electric, Ford, and Goodyear, which cre-
ated schools within their firms to help both the worker and the firm.
(Throughout most of the 19th century fewer than one percent of all Ameri-
cans received secondary education through attending a high school.) As pub-
lic school enrollment grew in the early 20th century, the need for industry
to teach basic educational skills diminished. But, the direct economic link
between basic education and industrial productivity remained. Scholars
estimate that nearly a quarter of America’s economic growth in the early
years of this century is traceable directly to increased schooling. . . . Increas-
ing global competition also has made primary and secondary education eco-
nomically more important. .. .
The economic links I have just sketched seem fairly obvious. Why then
is it not equally obvious, in light of those links, that a widespread, serious,
and substantial physical threat to teaching and learning also substantially
threatens the commerce to which that teaching and learning is inextricably
tied? That is to say, guns in the hands of six percent of inner-city high school
students and gun-related violence throughout a city’s schools must threaten
the trade and commerce that those schools support. The only question, then,
is whether the latter threat is (to use the majority’s terminology) “substan-
tial.’ And, the evidence of (1) the extent of the gun-related violence prob-
lem, (2) the extent of the resulting negative effect on classroom learning, and
(3) the extent of the consequent negative commercial effects, when taken to-
gether, indicate a threat to trade and commerce that is “substantial.” At the
very least, Congress could rationally have concluded that the links are “sub-
stantial.”
In sum, a holding that the particular statute before us falls within the
commerce power would not expand the scope of that Clause. Rather, it sim-
ply would apply pre-existing law to changing economic circumstances. See
Heart ofAtlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). It would rec-
ognize that, in today’s economic world, gun-related violence near the class-
room makes a significant difference to our economic, as well as our social,
well-being. . ..
The majority’s holding—that Section 922 falls outside the scope of the
Commerce Clause—creates three serious legal problems. First, the majority’s
holding runs contrary to modern Supreme Court cases that have upheld
congressional actions despite connections to interstate or foreign commerce
that are less significant than the effect of school violence... .
In Katzenbach v. McClung, 379 U.S. 294 (1964), this Court upheld, as
within the commerce power, a statute prohibiting racial discrimination at lo-
cal restaurants, in part because that discrimination discouraged travel by
African Americans and in part because that discrimination affected purchases
of food and restaurant supplies from other States. In Daniel v. Paul, 395 USS.
298 (1969), this Court found an effect on commerce caused by an amuse-
ment park located several miles down a country road in the middle
of Alabama—because some customers (the Court assumed), some food,
 C | From the New Deal Crisis to the Administrative State | 625

15 paddleboats, and a jukebox had come from out of State. In both of these
cases, the Court understood that the specific instance of discrimination (at a
local place of accommodation) was part of a general practice that, considered
as a whole, caused not only the most serious human and social harm, but had
nationally significant economic dimensions as well. It is difficult to distin-
guish the case before us, for the same critical elements are present. . .. Most
importantly, like the local racial discrimination at issue in McClung and
Daniel, the local instances here, taken together and considered as a whole,
create a problem that causes serious human and social harm, but also has
nationally significant economic dimensions. . . .
The second legal problem the Court creates comes from its apparent be-
lief that it can reconcile its holding with earlier cases by making acritical dis-
tinction between “commercial” and noncommercial “‘transaction|s].” That is
to say, the Court believes the Constitution would distinguish between two
local activities, each of which has an identical effect upon interstate com-
merce, if one, but not the other, is “Commercial” in nature. As a general mat-
ter, this approach fails to heed this Court’s earlier warning not to turn
“questions of the power of Congress” upon “formulas” that would give
“controlling force to nomenclature such as ‘production’ and ‘indirect’ and
foreclose consideration of the actual effects of the activity in question upon
Interstate commerce.” Wickard. Moreover, the majority’s test is not consistent
with what the Court saw as the point of the cases that the majority now
characterizes. Although the majority today attempts to categorize Perez [v.
United States, 402 U.S. 146 (1971)], McClung, and Wickard as involving
intrastate “economic activity,’ the Courts that decided each of those cases did
not focus upon the economic nature of the activity regulated. Rather, they
focused upon whether that activity affected interstate or foreign commerce.
In fact, the Wickard Court expressly held that Wickard’s consumption of
home grown wheat, “though it may not be regarded as commerce,” could
nevertheless be regulated—‘‘whatever its nature”’—so long as “it exerts a
substantial economic effect on interstate commerce.” ...
Regardless, if there is a principled distinction that could work both here
and in future cases, Congress (even in the absence of vocational classes, in-
dustry involvement, and private management) could rationally conclude that
schools fall on the commercial side of the line. In 1990, the year Congress
enacted the statute before us, primary and secondary schools spent $230 bil-
lion—that is, nearly a quarter of a trillion dollars—which accounts for a sig-
nificant portion of our $5.5 trillion Gross Domestic Product for that year.
... Certainly, Congress has often analyzed school expenditure as if it were a
commercial investment, closely analyzing whether schools are efficient,
whether they justify the significant resources they spend, and whether they
can be restructured to achieve greater returns. Why could Congress, for
Commerce Clause purposes, not consider schools as roughly analogous to
commercial investments from which the Nation derives the benefit of an ed-
ucated work force?
The third legal problem created by the Court’s holding is that it threat-
ens legal uncertainty in an area of law that, until this case, seemed reasonably
_ well settled. Congress has enacted many statutes (more than 100 sections of
the Unitea States Code), including criminal statutes (at least 25 sections),
that use the words “affecting commerce” to define their scope. Do these, or
626 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

similar, statutes regulate noncommercial activities? If so, would that alter the
meaning of “affecting commerce” in a jurisdictional element? More impor-
tantly, in the absence of a jurisdictional element, are the courts nevertheless
to take Wickard (and later similar cases) as inapplicable, and to judge the ef-
fect of a single noncommercial activity on interstate commerce without con-
sidering similar instances of the forbidden conduct? However these questions
are eventually resolved, the legal uncertainty now created will restrict Con-
gress’ ability to enact criminal laws aimed at criminal behavior that, consid-
ered problem by problem rather than instance by instance, seriously threatens
the economic, as well as social, well-being of Americans. .. .

Reno v. Condon
528 US. 141, 120 S.CT. 666 (2000)

Congress enacted the Drivers’ Privacy Protection Act of 1994 to pro-

tect individuals’ privacy and other interests. The law regulates the dis-
closure of personal information contained in the records of state motor
vehicle departments. Specifically, it forbids the disclosure of personal in-
formation—name, address, telephone number, identification number,
photograph, and medical information—except for certain purposes re-
lated, for instance, to driver safety and motor vehicle recalls. The law
also regulates the resale of such information by private parties and
imposes penalties for violations. South Carolina and some other states
regularly sold such information and immediately challenged the consti-
tutionality of the law. Charlie Condon, South Carolina’s attorney
general, argued that the law violated the Tenth and Eleventh Amend-
ments and was incompatible with principles of federalism. A federal
district court agreed and was affirmed by the Court of Appeals for
the Fourth Circuit. Attorney General Janet Reno appealed and the
Supreme Court granted review.
The appellate court’s decision was reversed in a unanimous opinion
for the Court delivered by Chief Justice Rhenquist.

1 Chief Justice REHNQUIST delivered the opinion of the Court.

The Driver’s Privacy Protection Act of 1994 (DPPA or Act) regulates
the disclosure of personal information contained in the records of state mo-
tor vehicle departments (DMVs). We hold that in enacting this statute Con-
gress did not run afoul of the federalism principles enunciated in New York v.
United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898
(LOOT) Boge
The United States asserts that the DPPA is a proper exercise of Con-
gress’ authority to regulate interstate commerce under the Commerce
 C | From the New Deal Crisis to the Administrative State | 627

Clause. The United States bases its Commerce Clause argument on the fact
that the personal, identifying information that the DPPA regulates is a
“thin[g] in interstate commerce,” and that the sale or release of that informa-
tion in interstate commerce is therefore a proper subject of congressional
regulation. United States v. Lopez, 514 U.S. 549 (1995). We agree with the
United States’ contention. The motor vehicle information which the States
have historically sold is used by insurers, manufacturers, direct marketers, and
others engaged in interstate commerce to contact drivers with customized
solicitations. The information is also used in the stream of interstate com-
merce by various public and private entities for matters related to interstate
motoring. Because drivers’ information is, in this context, an article of com-
merce, its sale or release into the interstate stream of business is sufficient to
support congressional regulation. We therefore need not address the Govern-
ment’s alternative argument that the States’ individual, intrastate activities in
gathering, maintaining, and distributing drivers’ personal information has a
sufficiently substantial impact on interstate commerce to create a constitu-
tional base for federal legislation.
But the fact that drivers’ personal information is, in the context of this
case, an article in interstate commerce does not conclusively resolve the con-
stitutionality of the DPPA. In New York and Printz, we held federal statutes
invalid, not because Congress lacked legislative authority over the subject
matter, but because those statutes violated the principles of federalism con-
tained in the Tenth Amendment... .
We agree with South Carolina’s assertion that the DPPA’s provisions
will require time and effort on the part of state employees, but reject the
State’s argument that the DPPA violates the principles laid down in either
New York or Printz. We think, instead, that this case is governed by our deci-
sion in South Carolina v. Baker, 485 U.S. 505 (1988). In Baker, we upheld a
statute that prohibited States from issuing unregistered bonds because the law
“regulate[d] state activities,’ rather than “‘seek[ing] to control or influence
the manner in which States regulate private parties.” We further noted:
“The NGA [National Governors Association] nonetheless contends that
Section 310 has commandeered the state legislative and administrative
process because many state legislatures had to amend a substantial number of
statutes in order to issue bonds in registered form and because state officials
had to devote substantial effort to determine how best to implement a
registered bond system. Such ‘commandeering’ is, however, an inevitable
consequence of regulating a state activity. Any federal regulation de-
mands compliance. That a State wishing to engage in certain activity must
take administrative and sometimes legislative action to comply with fed-
eral standards regulating that activity is a commonplace that presents no
constitutional defect.”
Like the statute at issue in Baker, the DPPA does not require the States
in their sovereign capacity to regulate their own citizens. The DPPA regu-
lates the States as the owners of databases. It does not require the South Car-
olina Legislature to enact any laws or regulations, and it does not require
state officials to assist in the enforcement of federal statutes regulating private
_ individuals, We accordingly conclude that the DPPA is consistent with the
constitutioual principles enunciated in New York and Printz... .
The judgment of the Court of Appeals is therefore Reversed.
628 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

= IN COMPARATIVE PERSPECTIVE

The European Court ofJustice and the

European Union

The European Court of Justice (ECJ), formally known as the Court of

Justice for the European Communities, was created in 1957. Along with the
Council of Ministers, the European Commission, the European Parliament,
and later the Court of Auditors, the ECJ was created to promote the goal of
achieving economic integration in Europe. The ECJ’s role is to create a uni-
form system of law. Originally, only six countries—Belgium, France, West
Germany, Italy, Luxembourg, and the Netherlands—participated, but subse-
quently other countries joined in treaties creating what has evolved from the
European Coal and Steel Community (ECSC) into the European Economic
Community (EEC) and, as of 1995, into the European Union (EU). In 1973,
Denmark, Ireland, and Britain became new members, followed by Greece in
1981, and Portugal and Spain in 1986. In 1995, Austria, Finland, and Sweden
joined, bringing the total number in the European Union to fifteen. In
2004, ten more central eastern European countries joined, bringing the total
to twenty-five. In 2007, Bulgaria and Romania were admitted and enlarged
the EU to twenty-seven member states.
The European Court of Justice, located in Luxembourg, is independent
and composed of fifteen judges, one judge recommended by each country
and appointed by unanimous approval of all member states; there are also six
advocates-general. The judges and advocates-general serve six-year staggered
terms and vow not to consider national interests in making their decisions. All
decisions are unanimous, no dissenting opinions are issued, and even the
opinions announcing the decisions are not signed by their authors. ECJ
Judges also take an oath “to preserve the secrecy of the deliberations of the
Court,’ as a further measure to ensure their independence and insulation
from political pressures. Cases may be brought by other EU institutions,
member states or “directly affected” EU citizens, or by reference from national
courts for preliminary rulings on EU law that the ECJ has not yet settled.
Since its inception, the EC]’s caseload has grown steadily. In 1988, a Court of
First Instance was created to ease the ECJ’s workload and backlog of cases.
Still, in the 1990s the ECJ annually handed down around three hundred de-
cisions and took on average two to three years to decide each case.
The ECJ has been compared to the U.S. Supreme Court in the early
nineteenth century under Chief Justice John Marshall, whose rulings striking
down state taxes, trade barriers, and other regulations under the Interstate
Commerce Clause promoted an economic common market and solidified
the Court’s power of judicial review. Critics of the ECJ complain that it has
become too activist, indeed, more activist than the Marshall Court, because it
a aa a
 C | From the New Deal Crisis to the Administrative State | 629

has turned the Treaty of Rome into a kind of constitution that gives it the
power of constitutional judicial review. During the 1960s and 1970s the ECJ
laid the groundwork with precedents promoting the value of European integra-
tion. By the 1980s and 1990s, the EC] had not only established its power of ju-
dicial review but also (1) the supremacy of EU law over that of member states’
legislation, (2) the competence and superiority of EU institutions over areas, such
as environmental protection and human rights, that the Treaty was originally
silent about, and (3) expanded the legal policy areas over which it has jurisdiction
by expanding standing for private parties to sue on the basis of treaty provisions
and acts of EU institutions that require implementing legislation.
In Firma Foto-Frost v. Hauptzollamt Ltibeck-Ost, Case 314/85, 1987 ECR
4199, 53 CMLR 57 (1987), for instance, the ECJ ruled that national courts
have the power to declare EU acts valid, but not invalid, within their coun-
tries. The EC] also ruled that a national court must refuse to enforce a na-
tional law or statute that contravenes EU laws while questions concerning
the compatibility of the national law and EU law are pending before the
EC], thereby mandating a type of judicial review. (See R. v. Secretary of State
for Transport, ex parte Factortame, A.C. 603 [1991].)
In addition, EU law based on treaties and legislation initially contained
few provisions dealing with individual rights. Yet the EC)’s decisions on citi-
zens’ standing to sue when “directly affected” by EU law expanded its juris-
diction over member states’ legislation and power to strike down legislation
for contravening EU law. As aresult, the ECJ has moved not only in the di-
rection of promoting an economic common market, but also toward devel-
oping human rights law based on the doctrines of the “direct effect” and the
supremacy of EU law. In J. Nold, Kohlen- und Baustoffgrobhandlung v. Com-
mission of the European Communities, Case 4/73, 1974 ECR 491, 2 CMLR
338 (1974), the ECJ invoked an international treaty, the European Conven-
tion for the Protection of Human Rights, in addition to the constitutions of
member states, as a source for its declaration of fundamental rights.
Paralleling the U.S. Supreme Court’s incorporation of guarantees of the
Bill of Rights into the Fourteenth Amendment and application of them to
the states (see Vol. 2, Ch. 4), the ECJ has also “discovered” fundamental rights
in the constitutions and treaties of member states. (See, for example, Yvonne
van Duyn v. Home Office, Case 41/74 1974 ECR 1337 [1974]). Moreover, the
ECJ has enforced human rights principles against not only the member states
but also corporations and private parties. For example, in Gabrielle Defrenne v.
Société Anonyme Belge Navigation Aérienne Sabena, Case 43/75, 1976 ECR
455 (1976), the ECJ identified a fundamental right to equal pay for equal
work, citing the International Labour Organization Convention, and held
that Sabena Airlines had violated that right in requiring stewardesses to re-
tire upon their fortieth birthday.
For further reading, see Damian Chalmers, C. Hadjiemmanvil, and G. Monti, eds.,
' European Union Law (New York: Cambridge University Press, 2006); Anthony Arnull,
The European Union and Its Court ofJustice (New York: Oxford University Press, 1999);
re eee
Laer
630 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

a
Paolo Mengozzi, European Community Law (Boston: Kluwer Law International, 1999);
Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (New York:
Oxford University Press, 2000); Karen J. Alter, Establishing the Supremacy of European
Law (New York: Oxford University Press, 2001); and Grainne de Barca and J. H. H.
Weiler, The European Court of Justice (New York: Oxford University Press, 2001).

City of Boerne v. Flores

SPIOUSIS507, 117)S.G1 2157 (1907)

Situated on a hill in the city of Boerne, Texas, is St. Peter Catholic

Church, built in 1923 and replicating the mission style of the region’s
earlier history. The church seats about 230 worshipers, but in the 1990s
became too small to accommodate the growing number of parish-
ioners. Accordingly, the Archbishop of San Antonio gave permission to
the parish to enlarge the building. Shortly afterward, however, the
Boerne City Council passed an ordinance authorizing the city’s His-
toric Landmark Commission to prepare a preservation plan with
proposed historic landmarks and districts. Under the ordinance, the
Commission must preapprove construction affecting historic landmarks
or buildings in a historic district. When the Archbishop applied for a
building permit so construction could proceed, city authorities, relying
on the ordinance and the designation of the church as a historic land-
mark, denied the application. The Archbishop in turn challenged that
decision in federal district court, claiming that the city violated the
church’s religious freedom as guaranteed by the Religious Freedom
Restoration Act of 1993 (RFRA). Congress enacted that law following
the Supreme Court’s ruling in Employment Division, Department of Hu-
man Resources of Oregon v. Smith, 492 U.S. 872 (1990) (in Vol. 2, Ch. 6)
and established as a matter of federal statutory law the pre-Smith test for
balancing claims to religious freedom against governmental interests in
otherwise generally applicable laws, like Boerne’s zoning ordinance.
And in defending the decision to deny the church a building permit,
attorneys for the city countered that Congress had exceeded its en-
forcement powers under Section 5 of the Fourteenth Amendment in
enacting the RFRA. The district court held the RFRA unconstitu-
tional as a violation of the separation of powers. When the Court of
Appeals for the Fifth Circuit reversed, the city of Boerne sobae to
the Supreme Court, which granted certiorari.
The Court’s decision was six to three and its opinion delivered ie
 C | From the New Deal Crisis to the Administrative State | 631

Justice Kennedy. Justices Stevens and Scalia filed concurring opinions.

Justice O’Connor filed a dissenting opinion, which Justices Souter and
Breyer joined in part. In a brief dissent omitted here, Justice Souter re-
iterated his doubts, expressed in Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 492 U.S. 872 (1990) (in Vol. 2, Ch. 6), about the precedential
value of Smith, and indicated that the Court here should have either re-
considered the soundness of the Smith rule or dismissed this case as im-
providently granted. In another brief dissent, Justice Breyer expressed
agreement with Justice O’Connor’s dissent except for her views of
Congress's enforcement power under Section 5 of the Fourteenth
Amendment, an issue which he would not have reached in this case.

(1 Justice KENNEDY delivered the opinion of the Court, in which

Chief Justice REHNQUIST and Justices STEVENS, THOMAS,
and GINSBURG joined, and in all but Part III-A-1 of which
Justice SCALIA joined.
A decision by local zoning authorities to deny a church a building per-
mit was challenged under the Religious Freedom Restoration Act of 1993
(RFRA). The case calls into question the authority of Congress to enact
RFRA. We conclude the statute exceeds Congress’ power. . ..

a II
Congress enacted RFRA in direct response to the Court’s decision in Em-
ployment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).
There we considered a Free Exercise Clause claim brought by members of
the Native American Church who were denied unemployment benefits
when they lost their jobs because they had used peyote. In evaluating the
claim, we declined to apply the balancing test set forth in Sherbert v. Verner,
374 US. 398 (1963), under which we would have asked whether Oregon’s
prohibition substantially burdened a religious practice and, if it did, whether
the burden was justified by a compelling government interest. . . . The appli-
cation of the Sherbert test, the Smith decision explained, would have produced
an anomaly in the law, a constitutional right to ignore neutral laws of gen-
eral applicability. The anomaly would have been accentuated, the Court rea-
soned, by the difficulty of determining whether a particular practice was
central to an individual’s religion. We explained, moreover, that it “is not
within the judicial ken to question the centrality of particular beliefs or prac-
tices to a faith, or the validity of particular litigants’ interpretations of those
Creeds ays:
Four Members of the Court disagreed. They argued the law placed a
substantial burden on the Native American Church members so that it could
be upheld only if the law served a compelling state interest and was narrowly
tailored to achieve that end. Justice O';CONNOR concluded Oregon had
. satisfied the test, while Justice BLACKMUN, joined by Justice BRENNAN
and Justice MARSHALL, could see no compelling interest justifying the
law’s application to the members.
632| CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS
aNa ac Ya cae 2

These points of constitutional interpretation were debated by Members

of Congress in hearings and floor debates. Many criticized the Court’s
reasoning, and this disagreement resulted in the passage of RFRA. Congress
announced:

“(1) The framers of the Constitution, recognizing free exercise

of religion as an unalienable right, secured its protection in the First
Amendment to the Constitution;
“(2) laws ‘neutral’ toward religion may burden religious exer-
cise as surely as laws intended to interfere with religious exercise;
“(3) governments should not substantially burden religious ex-
ercise without compelling justification;
“(4) in Employment Division v. Smith, 494 U.S. 872 (1990), the
Supreme Court virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by laws
neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal
court rulings is a workable test for striking sensible balances
between religious liberty and competing prior governmental
interests.”
The Act’s stated purposes are:
(1) to restore the compelling interest test as set forth in Sher-
bert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972) and to guarantee its application in all cases where free exer-
cise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious
exercise is substantially burdened by government.”

_ RFRA prohibits “government” from “substantially burdening” a per-

son’s exercise of religion even if the burden results from a rule of general
applicability unless the government can demonstrate the burden “(1) is in
furtherance of a compelling governmental interest; and (2) is the least restric-
tive means of furthering that compelling governmental interest.’ The Act’s
mandate applies to any “branch, department, agency, instrumentality, and of-
ficial (or other person acting under color of law) of the United States,’ as
well as to any “State, or . . . subdivision of a State.” ...

m III (A)
Under our Constitution, the Federal Government is one of enumerated
powers. McCulloch v. Maryland, 4 Wheat. 316 (1819). The judicial authority to
determine the constitutionality of laws, in cases and controversies, is based on
the premise that the “powers of the legislature are defined and limited; and
that those limits may not be mistaken, or forgotten, the constitution is writ-
ten.” Marbury v. Madison, 1 Cranch 137 (1803).
Congress relied on its Fourteenth Amendment enforcement power in
enacting the most far reaching and substantial of RFRA’s provisions, those
which impose its requirements on the States... .
The parties disagree over whether RFRA is a proper exercise of Con-
gress’ Section 5 power “to enforce” by “appropriate legislation” the constitu-
tional guarantee that no State shall deprive any person of “‘ife, liberty, or
 C | From the New Deal Crisis to the Administrative State | 633

property, without due process of law” nor deny any person “equal protection
of the laws.” ...
All must acknowledge that Section 5 is “a positive grant of legislative
power” to Congress, Katzenbach v. Morgan, 384 U.S. 641 (1966). In Ex parte
Virginia, 100 U.S. 339 (1880), we explained the scope of Congress’ Section 5
power in the following broad terms: “Whatever legislation is appropriate,
that is, adapted to carry out the objects the amendments have in view, what-
ever tends to enforce submission to the prohibitions they contain, and to se-
cure to all persons the enjoyment of perfect equality of civil rights and the
equal protection of the laws against State denial or invasion, if not prohib-
ited, is brought within the domain of congressional power.’ Legislation
which deters or remedies constitutional violations can fall within the sweep
of Congress’ enforcement power even if in the process it prohibits conduct
which is not itself unconstitutional and intrudes into “legislative spheres of
autonomy previously reserved to the States.” Fitzpatrick v. Bitzer, 427 U.S. 445
(1976). For example, the Court uphéld a suspension of literacy tests and sim-
ilar voting requirements under Congress’ parallel power to enforce the pro-
visions of the Fifteenth Amendment, see U.S. Const., Amdt. 15, Sec. 2, as a
measure to combat racial discrimination in voting, South Carolina v. Katzen-
bach, 383 U.S. 301 (1966), despite the facial constitutionality of the tests
under Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959). We
have also concluded that other measures protecting voting rights are within
Congress’ power to enforce the Fourteenth and Fifteenth Amendments, de-
spite the burdens those measures placed on the States... .
It is also true, however, that “‘as broad as the congressional enforcement
power is, it is not unlimited.” Oregon v. Mitchell, 400 U.S. 112 (1970). In as-
sessing the breadth of Section 5’s enforcement power, we begin with its text.
Congress has been given the power “to enforce” the “provisions of this arti-
cle.” We agree with respondent, of course, that Congress can enact legislation
under Section 5 enforcing the constitutional right to the free exercise of re-
ligion. The “provisions of this article,’ to which Section 5 refers, include the
Due Process Clause of the Fourteenth Amendment. Congress’ power to
enforce the Free Exercise Clause follows from our holding in Cantwell v.
Connecticut, 310 U.S. 296 (1940), that the “fundamental concept of liberty
embodied in [the Fourteenth Amendment’s Due Process Clause] embraces
the liberties guaranteed by the First Amendment.”
Congress’ power under Section 5, however, extends only to “enforcing”
the provisions of the Fourteenth Amendment. The Court has described this
power as “remedial,” South Carolina v. Katzenbach. The design of the Amend-
ment and the text of Section 5 are inconsistent with the suggestion that
Congress has the power to decree the substance of the Fourteenth Amend-
ment’s restrictions on the States. Legislation which alters the meaning of the
Free Exercise Clause cannot be said to be enforcing the Clause. Congress
does not enforce a constitutional right by changing what the right is. It has
been given the power “to enforce,” not the power to determine what consti-
tutes a constitutional violation. Were it not so, what Congress would be en-
forcing would no longer be, in any meaningful sense, the “provisions of [the
. Fourteenth Amendment].”
While tne line between measures that remedy or prevent unconstitutional
actions and measures that make a substantive change in the governing law is
634 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS
eR

not easy to discern, and Congress must have wide latitude in determining
where it lies, the distinction exists and must be observed. There must be a con-
gruence and proportionality between the injury to be prevented or remedied
and the means adopted to that end. Lacking such a connection, legislation may
become substantive in operation and effect. History and our case law support
drawing the distinction, one apparent from the text of the Amendment.

a1

The Fourteenth Amendment’s history confirms the remedial, rather than

substantive, nature of the Enforcement Clause. The Joint Committee on Re-
construction of the 39th Congress began drafting what would become the
Fourteenth Amendment in January 1866.The objections to the Committee's
first draft of the Amendment, and the rejection of the draft, have a direct
bearing on the central issue of defining Congress’ enforcement power. In
February, Republican Representative John Bingham of Ohio reported the
following draft amendment to the House of Representatives on behalf of
the Joint Committee: “The Congress shall have power to make all laws
which shall be necessary and proper to secure to the citizens of each State
all privileges and immunities of citizens in the several States, and to all per-
sons in the several States equal protection in the rights of life, liberty, and
property.”
The proposal encountered immediate opposition, which continued
through three days of debate. Members of Congress from across the political
spectrum criticized the Amendment, and the criticisms had a common
theme:The proposed Amendment gave Congress too much legislative power
at the expense of the existing constitutional structure. Democrats and con-
servative Republicans argued that the proposed Amendment would give
Congress a power to intrude into traditional areas of state responsibility, a
power inconsistent with the federal design central to the Constitution. Typi-
fying these views, Republican Representative Robert Hale of New York
labeled the Amendment “an utter departure from every principle ever
dreamed of by the men who framed our Constitution,’ and warned that un-
der it “all State legislation, in its codes of civil and criminal jurisprudence
and procedures ... may be overridden, may be repealed or abolished, and the
law of Congress established instead.” .. .
As a result of these objections having been expressed from so many dif-
ferent quarters, the House voted to table the proposal until April. The
Amendment in its early form was not again considered. Instead, the Joint
Committee began drafting a new article of Amendment, which it reported
to Congress on April 30, 1866.
Section 1 of the new draft Amendment imposed self-executing limits on
the States. Section 5 prescribed that “the Congress shall have power to en-
force, by appropriate legislation, the provisions of this article.’ The revised
Amendment proposal did not raise the concerns expressed earlier regarding
broad congressional power to prescribe uniform national laws with respect
to life, liberty, and property. After revisions not relevant here, the new mea-
sure passed both Houses and was ratified in July 1868 as the Fourteenth
Amendment. ...
The design of the Fourteenth Amendment has proved significant also in
maintaining the traditional separation of powers between Congress and. the
 C | From the New Deal Crisis to the Administrative State | 635

Judiciary. The first eight Amendments to the Constitution set forth self-
executing prohibitions on governmental action, and this Court has had pri-
mary authority to interpret those prohibitions. The Bingham draft, some
thought, departed from that tradition by vesting in Congress primary power
to interpret and elaborate on the meaning of the new Amendment through
legislation. Under it, “Congress, and not the courts, was to judge whether or
not any of the privileges or immunities were not secured to citizens in the
several States.” While this separation of powers aspect did not occasion the
widespread resistance which was caused by the proposal’s threat to the fed-
eral balance, it nonetheless attracted the attention of various Members. As
enacted, the Fourteenth Amendment confers substantive rights against the
States which, like the provisions of the Bill of Rights, are self-executing. The
power to interpret the Constitution in a case or controversy remains in
the Judiciary.

a2

The remedial and preventive nature of Congress’ enforcement power, and

the limitation inherent in the power, were confirmed in our earliest cases on
the Fourteenth Amendment. In the Civil Rights Cases, 109 U.S. 3 (1883), the
Court invalidated sections of the Civil Rights Act of 1875 which prescribed
‘criminal penalties for denying to any person “the full enjoyment of” public
accommodations and conveyances, on the grounds that it exceeded Con-
gress’ power by seeking to regulate private conduct. The Enforcement
Clause, the Court said, did not authorize Congress to pass “general legisla-
tion upon the rights of the citizen, but corrective legislation; that is, such as
may be necessary and proper for counteracting such laws as the States may
adopt or enforce, and which, by the amendment, they are prohibited from
making or enforcing. . . 2” Although the specific holdings of these early cases
might have been superseded or modified, see, e.g., Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241 (1964), their treatment of Congress’ Sec-
tion 5 power as corrective or preventive, not definitional, has not been ques-
tioned. ...

w 3
Any suggestion that Congress has a substantive, non-remedial power under
the Fourteenth Amendment is not supported by our case law. In Oregon v,
Mitchell, a majority of the Court concluded Congress had exceeded its en-
forcement powers by enacting legislation lowering the minimum age of vot-
ers from 21 to 18 in state and local elections. The five Members of the Court
who reached this conclusion explained that the legislation intruded into an
area reserved by the Constitution to the States. . ..
If Congress could define its own powers by altering the Fourteenth
Amendment’s meaning, no longer would the Constitution be “superior para-
mount law, unchangeable by ordinary means.” It would be “on a level with
ordinary legislative acts, and, like other acts, .. . alterable when the legislature
shall please to alter it.’ Marbury v. Madison. Under this approach, it is difficult
‘to conceive of a’principle that would limit congressional power. Shifting leg-
islative majorities could change the Constitution and effectively circumvent
the difficult and detailed amendment process contained in Article V.
636 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

We now turn to consider whether RFRA can be considered enforce-

ment legislation under Section 5 of the Fourteenth Amendment.

= III (B)
If Congress can prohibit laws with discriminatory effects in order to prevent
racial discrimination in violation of the Equal Protection Clause, see Fullilove
v. Klutznick, 448 U.S. 448 (1980), then it can do the same, respondent argues,
to promote religious liberty.
While preventive rules are sometimes appropriate remedial measures,
there must be a congruence between the means used and the ends to be
achieved. The appropriateness of remedial measures must be considered in
light of the evil presented. Strong measures appropriate to address one harm
may be an unwarranted response to another, lesser one. .. .
Regardless of the state of the legislative record, RFRA cannot be con-
sidered remedial, preventive legislation, if those terms are to have any mean-
ing. RFRA 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. It appears, instead, to attempt a substantive change
in constitutional protections. Preventive measures prohibiting certain types of
laws may be appropriate when there is reason to believe that many of the
laws affected by the congressional enactment have a significant likelihood of
being unconstitutional. Remedial legislation under Section 5 “should be
adapted to the mischief and wrong which the [Fourteenth] Amendment was
intended to provide against.” Civil Rights Cases.
RFRA is not so confined. Sweeping coverage ensures its intrusion at
every level of government, displacing laws and prohibiting official actions of
almost every description and regardless of subject matter. RFRA’s restric-
tions apply to every agency and official of the Federal, State, and local
Governments. RFRA has no termination date or termination mechanism.
Any law is subject to challenge at any time by any individual who alleges a
substantial burden on his or her free exercise of religion.
The reach and scope of RFRA distinguish it from other measures
passed under Congress’ enforcement power, even in the area of voting rights.
In South Carolina v. Katzenbach, the challenged provisions were confined to
those regions of the country where voting discrimination had been most fla-
grant and affected a discrete class of state laws, i.e., state voting laws. Further-
more, to ensure that the reach of the Voting Rights Act was limited to those
cases in which constitutional violations were most likely (in order to reduce
the possibility of overbreadth), the coverage under the Act would terminate
“at the behest of States and political subdivisions in which the danger of sub-
stantial voting discrimination has not materialized during the preceding five
years.” This is not to say, of course, that Section 5 legislation requires termi-
nation dates, geographic restrictions or egregious predicates. Where, however,
a congressional enactment pervasively prohibits constitutional state action in
an effort to remedy or to prevent unconstitutional state action, limitations of
this kind tend to ensure Congress’ means are proportionate to ends legiti-
mate under Section 5.
The stringent test RFRA demands of state laws reflects a lack of pro-
portionality or congruence between the means adopted and the legitimate
end to be achieved. If an objector can show a substantial burden on his free
 C | From the New Deal Crisis to the Administrative State | 637

exercise, the State must demonstrate a compelling governmental interest and

show that the law is the least restrictive means of furthering its interest.
Claims that a law substantially burdens someone’s exercise of religion will of-
ten be difficult to contest. Laws valid under Smith would fall under RFRA
without regard to whether they had the object of stifling or punishing free
exercise. We make these observations not to reargue the position of the ma-
jority in Smith but to illustrate the substantive alteration of its holding at-
tempted by RFRA....
The substantial costs RFRA exacts, both in practical terms of imposing
a heavy litigation burden on the States and in terms of curtailing their
traditional general regulatory power, far exceed any pattern or practice of
unconstitutional conduct under the Free Exercise Clause as interpreted in
Smith. Simply put, RFRA is not designed to identify and counteract state
laws likely to be unconstitutional because of their treatment of religion.
In most cases, the state laws to which RFRA applies are not ones which
will have been motivated by religious bigotry. If a state law dispropor-
tionately burdened a particular class of religious observers, this circum-
stance might be evidence of an impermissible legislative motive. RFRA’s
substantial burden test, however, is not even a discriminatory effects or dis-
parate impact test. It is a reality of the modern regulatory state that nu-
merous state laws, such as the zoning regulations at issue here, impose a
substantial burden on a large class of individuals. When the exercise of reli-
gion has been burdened in an incidental way by a law of general application,
it does not follow that the persons affected have been burdened any more
than other citizens, let alone burdened because of their religious beliefs. In
addition, the Act imposes in every case a least restrictive means require-
ment—a requirement that was not used in the pre-Smith jurisprudence
RFRA purported to codify—which also indicates that the legislation is
broader than is appropriate if the goal is to prevent and remedy constitu-
tional violations. ...
Broad as the power of Congress is under the Enforcement Clause of the
Fourteenth Amendment, RFRA contradicts vital principles necessary to
maintain separation of powers and the federal balance. The judgment of the
Court of Appeals sustaining the Act’s constitutionality is reversed.

1 Justice STEVENS, concurring.

In my opinion, the Religious Freedom Restoration Act of 1993
(RFRA) is a “law respecting an establishment of religion” that violates the
First Amendment to the Constitution.
If the historic landmark on the hill in Boerne happened to be a museum
or an art gallery owned by an atheist, it would not be eligible for an exemp-
tion from the city ordinances that forbid an enlargement of the structure.
Because the landmark is owned by the Catholic Church, it is claimed that
RFRA gives its owner a federal statutory entitlement to an exemption from
a generally applicable, neutral civil law. Whether the Church would actually
prevail under the statute or not, the statute has provided the Church with
-a legal weapon that no atheist or agnostic can obtain. This governmental
preference ior religion, as opposed to irreligion, is forbidden by the
First Amendment. Wallace v. Jaffree, 472 U.S. 38 (1985).
638 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS
SS = 85500 —o

Justice SCALIA, with whom Justice STEVENS joins, concurring in part.

I write to respond briefly to the claim ofJustice O; CONNOR’ dissent
(hereinafter “the dissent”) that historical materials support a result contrary
to the one reached in Employment Div., Dept. of Human Resources ofOre. v.
Smith, 494 U.S. 872 (1990). The material that the dissent claims is at odds
with Smith either has little to say about the issue or is in fact more consis-
tent with Smith than with the dissent’s interpretation of the Free Exercise
Clauses ee
The dissent first claims that Smith’s interpretation of the Free Exercise
Clause departs from the understanding reflected in various statutory and
constitutional protections of religion enacted by Colonies, States, and Terri-
tories in the period leading up to the ratification of the Bill of Rights. But
the protections afforded by those enactments are in fact more consistent with
Smith’s interpretation of free exercise than with the dissent’s understanding of
it. [T]he early “free exercise” enactments cited by the dissent protect only
against action that is taken “for” or “‘in respect of” religion; or action taken
“on account of” religion; or “discriminatory” action; or, finally (and unhelp-
fully for purposes of interpreting “free exercise” in the Federal Constitution),
action that interferes with the “free exercise” of religion. It is eminently ar-
guable that application of neutral, generally applicable laws of the sort the
dissent refers to—such as zoning laws—would not constitute action taken
“for,” “in respect of,’ or “on account of” one’s religion, or “discriminatory”
action.
Assuming, however, that the affirmative protection of religion accorded
by the early “free exercise” enactments sweeps as broadly as the dissent’s the-
ory would require, those enactments do not support the dissent’s view, since
they contain “provisos” that significantly qualify the affirmative protection
they grant. According to the dissent, the “provisos” support its view because
they would have been “superfluous” if “the Court was correct in Smith that
generally applicable laws are enforceable regardless of religious conscience.” I
disagree. In fact, the most plausible reading of the “free exercise” enactments
(if their affirmative provisions are read broadly, as the dissent’s view requires)
is a virtual restatement of Smith: Religious exercise shall be permitted so
long as it does not violate general laws governing conduct. The “provisos” in
the enactments negate a license to act in a manner “unfaithfull to the Lord
Proprietary” (Maryland Act Concerning Religion of 1649), or “behave” in
other than a “peaceable and quiet” manner (Rhode Island Charter of 1663),
or “disturb the public peace” (New Hampshire Constitution), or interfere
with the “peace [and] safety of the State” (New York, Maryland, and Georgia
Constitutions), or “demean” oneself in other than a “peaceable and orderly
manner” (Northwest Ordinance of 1787). At the time these provisos were
enacted, keeping “peace” and “order” seems to have meant, precisely, obeying
the laws: “Every breach of law is against the peace.” Even as late as 1828,
when Noah Webster published his American Dictionary of the English Lan-
guage, he gave as one of the meanings of“peace”: “8. Public tranquility; that
quiet, order and security which is guaranteed by the laws; as, to keep the
peace; to break the peace.” This limitation upon the scope of religious exer-
cise would have been in accord with the background political philosophy of
 C | From the New Deal Crisis to the Administrative State | 639

the age (associated most prominently with John Locke), which regarded
freedom as the right “to do only what was not lawfully prohibited.” And
while, under this interpretation, these early “free exercise” enactments sup-
port the Court’s judgment in Smith, I see no sensible interpretation that
could cause them to support what I understand to be the position ofJustice
O'CONNOR, or any of Smith’s other critics. No one in that camp, to my
knowledge, contends that their favored “compelling state interest” test con-
forms to any possible interpretation of “breach of peace and order”—i.e.,
that only violence or force, or any other category of action (more limited
than “violation of law”) which can possibly be conveyed by the phrase
“peace and order,” justifies state prohibition of religiously motivated con-
duct.
Apart from the early “free exercise” enactments of Colonies, States, and
Territories, the dissent calls attention to those bodies’, and the Continental
Congress’, legislative accommodation of religious practices prior to ratifica-
tion of the Bill of Rights. This accommodation—which took place both be-
fore and after enactment of the state constitutional protections of religious
liberty—suggests (according to the dissent) that “the drafters and ratifiers of
the First Amendment . . . assumed courts would apply the Free Exercise
Clause similarly.” But that legislatures sometimes (though not always) found
it “appropriate” to accommodate religious practices does not establish that
accommodation was understood to be constitutionally mandated by the Free
Exercise Clause. As we explained in Smith, “To say that a nondiscriminatory
religious-practice exemption is permitted, or even that it is desirable, is not
to say that it is constitutionally required.”
The dissent’s final source of claimed historical support consists of state-
ments of certain of the Framers in the context of debates about proposed
legislative enactments or debates over general principles (not in connection
with the drafting of State or Federal Constitutions). Those statements are
subject to the same objection as was the evidence about legislative accom-
modation: There is no reason to think they were meant to describe what was
constitutionally required (and judicially enforceable), as opposed to what was
thought to be legislatively or even morally desirable. .. .

“) Justice O.CONNOR, with whom Justice BREYER joins except as to a

portion of Part I, dissenting.
I dissent from the Court’s disposition of this case. 1 agree with the Court
that the issue before us is whether the Religious Freedom Restoration Act
(RFRA) is a proper exercise of Congress’ power to enforce Section 5 of the
Fourteenth Amendment. But as a yardstick for measuring the constitutional-
ity of RFRA, the Court uses its holding in Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872 (1990), the decision that prompted
Congress to enact RFRA as a means of more rigorously enforcing the Free
Exercise Clause. I remain of the view that Smith was wrongly decided, and I
would use this case to reexamine the Court’s holding there. Therefore, I
would direct the parties to brief the question whether Smith represents
‘the correct*understanding of the Free Exercise Clause and set the case for
reargument. If the Court were to correct the misinterpretation of the Free
640 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS
2

Exercise Clause set forth in Smith, it would simultaneously put our First
Amendment jurisprudence back on course and allay the legitimate concerns
of a majority in Congress who believed that Smith improperly restricted re-
ligious liberty. We would then be in a position to review RFRA in light ofa
proper interpretation of the Free Exercise Clause... .

a II
I shall not restate what has been said in other opinions, which have demon-
strated that Smith is gravely at odds with our earlier free exercise precedents.
See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)
(SOUTER, J., concurring); Smith (O° CONNOR, J., concurring). Rather,
I examine here the early American tradition of religious free exercise to
gain insight into the original understanding of the Free Exercise Clause—an
inquiry the Court in Smith did not undertake. We have previously recog-
nized the importance of interpreting the Religion Clauses in light of their
history.
The historical evidence casts doubt on the Court’s current interpreta-
tion of the Free Exercise Clause. The record instead reveals that its drafters
and ratifiers more likely viewed the Free Exercise Clause as a guarantee that
government may not unnecessarily hinder believers from freely practicing
their religion, a position consistent with our pre-Smith jurisprudence. . . .
The term “free exercise” appeared in an American legal document as
early as 1648, when Lord Baltimore extracted from the new Protestant gov-
ernor of Maryland and his councilors a promise not to disturb Christians,
particularly Roman Catholics, in the “free exercise” of their religion. Soon
after, in 1649, the Maryland Assembly enacted the first free exercise clause by
passing the Act Concerning Religion: “Noe person . . . professing to believe
in Jesus Christ, shall from henceforth bee any waies troubled, Molested or
discountenanced for or in respect of his or her religion nor in the free exer-
cise thereof... nor any way [be] compelled to the beleife or exercise of any
other Religion against his or her consent, soe as they be not unfaithful to the
Lord Proprietary, or molest or conspire against the civill Government.”
Rhode Island’s Charter of 1663 used the analogous term “liberty of con-
science.” It protected residents from being “in any ways molested, punished,
disquieted, or called into question, for any differences in opinion, in matters
of religion, and do not actually disturb the civil peace of our said colony.”
The Charter further provided that residents may “freely, and fully have and
enjoy his and their own judgments, and conscience in matters of religious
concernments. . . .; they behaving themselves peaceably and quietly and not
using this liberty to licentiousness and profaneness; nor to the civil injury, or
outward disturbance of others.’ Various agreements between prospective set-
tlers and the proprietors of Carolina, New York, and New Jersey similarly
guaranteed religious freedom, using language that paralleled that of the
Rhode Island Charter of 1663.
These documents suggest that, early in our country’s history, several
colonies acknowledged that freedom to pursue one’s chosen religious beliefs
was an essential liberty. . . .
The principles expounded in these early charters re-emerged over
a century later in state constitutions that were adopted in the flurry of
 C | From the New Deal Crisis to the Administrative State | 641

constitution-drafting that followed the American Revolution. By 1789, every

State but Connecticut had incorporated some version of a free exercise
clause into its constitution. Origins of Free Exercise 1455. These state provi-
sions, which were typically longer and more detailed than the federal Free
Exercise Clause, are perhaps the best evidence of the original understanding
of the Constitution’s protection of religious liberty. After all, it is reasonable
to think that the States that ratified the First Amendment assumed that the
meaning of the federal free exercise provision corresponded to that of their
existing state clauses. The precise language of these state precursors to the
Free Exercise Clause varied, but most guaranteed free exercise of religion or
liberty of conscience, limited by particular, defined state interests. . . .
The practice of the colonies and early States bears out the conclusion
that, at the time the Bill of Rights was ratified, it was accepted that govern-
ment should, when possible,'accommodate religious practice. . . . Neverthe-
less, tension between religious conscience and generally applicable laws,
though rare, was not unknown in pre-Constitutional America. Most com-
monly, such conflicts arose from oath requirements, military conscription,
and religious assessments. The ways in which these conflicts were resolved
suggest that Americans in the colonies and early States thought that, if an in-
dividual’s religious scruples prevented him from complying with a generally
applicable law, the government should, if possible, excuse the person from the
law’s coverage. For example, Quakers and certain other Protestant sects re-
fused on Biblical grounds to subscribe to oaths or “swear” allegiance to civil
authority. Without accommodation, their beliefs would have prevented them
from participating in civic activities involving oaths, including testifying in
court. Colonial governments created alternatives to the oath requirement for
these individuals. In early decisions, for example, the Carolina proprietors ap-
plied the religious liberty provision of the Carolina Charter of 1665 to
permit Quakers to enter pledges in a book. Similarly, in 1691, New
York enacted a law allowing Quakers to testify by affirmation, and in 1734,
it permitted Quakers to qualify to vote by affirmation. By 1789, virtually all
of the States had enacted oath exemptions. ...

@ Il
The Religion Clauses of the Constitution represent a profound commitment
to religious liberty. Our Nation’s Founders conceived of a Republic recep-
tive to voluntary religious expression, not of a secular society in which reli-
gious expression is tolerated only when it does not conflict with a generally
applicable law. As the historical sources discussed above show, the Free Exer-
cise Clause is properly understood as an affirmative guarantee of the right to
participate in religious activities without impermissible governmental inter-
ference, even where a believer’s conduct is in tension with a law of general
application. Certainly, it is in no way anomalous to accord heightened pro-
tection to a right identified in the text of the First Amendment. .. .
Although it may provide a bright line, the rule the Court declared in
Smith does not faithfully serve the purpose of the Constitution. Accordingly,
‘I believe tht it is essential for the Court to reconsider its holding in Smith—
and to do so in this very case. I would therefore direct the parties to brief this
issue and set the case for reargument.
642 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

United States v. Morrison

529 U.S. 598, 120 S.CT. 1740 (2000)

After holding extensive hearings on gender-motivated violence and

finding that such violence costs the national economy $3 billion annu-
ally, Congress enacted the Violence Against Women Act of 1994, which
made violence against women a federal crime and, in Section 13981 of
the U.S. Code, created as a remedy a private cause of action for victims
to sue their attackers for damages. In 1994, Christy Brzonkala, a first-
year student at Virginia Polytechnic Institute and State University, was
allegedly raped in her dormitory room by two football players, Antonio
Morrison and James Crawford. No criminal charges were filed against
the latter, but subsequently Brzonkala sued them for damages under the
Violence Against Women Act. A federal district court, however, con-
cluded that the law was an unconstitutional intrusion on traditional
state concerns, and the Court of Appeals for the Fourth Circuit agreed,
relying on United States v. Lopez, 514 U.S. 549 (1995), and City of Boerne
v, Flores, 5521 U.S. 507 (1997). The U.S. government and Brzonkala ap-
pealed, and 36 states joined a brief in support of the law. The Supreme
Court granted review.
The decision of the appellate court was affirmed by a five-to-four
vote. Chief Justice Rehnquist delivered the opinion for the Court. Jus-
tice Thomas filed a concurring opinion. Justices Souter and Breyer
filed dissenting opinions, which were joined by Justices Ginsburg and
Stevens.

() Chief Justice REHNQUIST delivered the opinion of the Court.

The United States Court of Appeals for the Fourth Circuit, sitting en
banc, struck down Section 13981 because it concluded that Congress lacked
constitutional authority to enact the section’s civil remedy. Believing that
these cases are controlled by our decisions in United States v. Lopez, 514 US.
549 (1995), United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights
Cases, 109 U.S. 3 (1883), we affirm... .
Every law enacted by Congress must be based on one or more of its
powers enumerated in the Constitution. Congress explicitly identified the
sources of federal authority on which it relied in enacting Section 13981. It
said that a “federal civil rights cause of action” is established “| p]ursuant to
the affirmative power of Congress under section 5 of the Fourteenth
Amendment to the Constitution, as well as under section 8 of Article I of the
Constitution.” We address Congress’ authority to enact this remedy under
each of these constitutional provisions in turn.
As we discussed at length in Lopez, our interpretation of the Commerce
Clause has changed as our Nation has developed. We need not repeat that
 C | From the New Deal Crisis to the Administrative State | 643

detailed review of the Commerce Clause’s history here; it suffices to say that,
in the years since NLRB v, Jones & Laughlin Steel Corp., 301 U.S. 1 (1937),
Congress has had considerably greater latitude in regulating conduct
and transactions under the Commerce Clause than our previous case law
permitted.
As we observed in Lopez, modern Commerce Clause jurisprudence has
“identified three broad categories of activity that Congress may regulate un-
der its commerce power.” “First, Congress may regulate the use of the chan-
nels of interstate commerce” (citing Heart ofAtlanta Motel, Inc. v. United States,
379 US. 241, 256 [(1964)]; United States v. Darby, 312 U.S. 100 [(1941)]).
“Second, Congress is empowered to regulate and protect the instrumentali-
ties of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities” (citing
Shreveport Rate Cases, 234 U.S. 342 [1914]; Southern R. Co. v. United States,
222 US. 20 [(1911)]; Perez [v. United States, 402 U.S. 146 (1971)]). “Finally,
Congress’ commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce, i.e., those activities that
substantially affect interstate commerce” (citing Jones & Laughlin Steel).
Petitioners do not contend that these cases fall within either of the first
two of these categories of Commerce Clause regulation. They seek to sustain
Section 13981 as a regulation of activity that substantially affects interstate
commerce. Given Section 13981’s focus on gender-motivated violence
wherever it occurs (rather than violence directed at the instrumentalities of
interstate commerce, interstate markets, or things or persons in interstate
commerce), we agree that this is the proper inquiry.
Since Lopez most recently canvassed and clarified our case law gov-
erning this third category of Commerce Clause regulation, it provides the
proper framework for conducting the required analysis of Section 13981. In
Lopez, we held that the Gun-Free School Zones Act of 1990, 18 U.S.C. Sec-
tion 922(q) (1) (A), which made it a federal crime to knowingly possess a
firearm in a school zone, exceeded Congress’ authority under the Com-
merce Clause. Several significant considerations contributed to our decision.
First, ...““Where economic activity substantially affects interstate com-
merce, legislation regulating that activity will be sustained.” .. .
The second consideration that we found important ... was that the
statute contained “no express jurisdictional element which might limit its
reach to a discrete set of firearm possessions that additionally have an explicit
connection with or effect on interstate commerce.” Such a jurisdictional el-
ement may establish that the enactment is in pursuance of Congress’ regula-
tion of interstate commerce.
Third, we noted that neither Section 922(q) “nor its legislative history
contain[s] express congressional findings regarding the effects upon interstate
commerce of gun possession in a school zone.” While “Congress normally is
not required to make formal findings as to the substantial burdens that an ac-
tivity has on interstate commerce,” the existence of such findings may “en-
able us to evaluate the legislative judgment that the activity in question
substantially affect[s] interstate commerce, even though no such substantial
effect [is] visible to the naked eye.”
Finally, our decision in Lopez rested in part on the fact that the link be-
tween gun possession and a substantial effect on interstate commerce was at-
644 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

tenuated. .. . We rejected these “costs of crime” and “national productivity”

arguments because they would permit Congress to “regulate not only all vi-
olent crime, but all activities that might lead to violent crime, regardless of
how tenuously they relate to interstate commerce.”
With these principles underlying our Commerce Clause jurisprudence
as reference points, the proper resolution of the present cases 1s clear.
Gender-motivated crimes of violence are not, in any sense of the phrase,
economic activity. While we need not adopt a categorical rule against aggre-
gating the effects of any noneconomic activity in order to decide these cases,
thus far in our Nation’s history our cases have upheld Commerce Clause
regulation of intrastate activity only where that activity 1s economic in
nature.
Like the Gun-Free School Zones Act at issue in Lopez, Section 13981
contains no jurisdictional element establishing that the federal cause of ac-
tion is in pursuance of Congress’ power to regulate interstate commerce. Al-
though Lopez makes clear that such a jurisdictional element would lend
support to the argument that Section 13981 is sufficiently tied to interstate
commerce, Congress elected to cast Section 13981’s remedy over a wider,
and more purely intrastate, body of violent crime.
In contrast with the lack of congressional findings that we faced in
Lopez, Section 13981 is supported by numerous findings regarding the seri-
ous impact that gender-motivated violence has on victims and their families.
But the existence of congressional findings is not sufficient, by itself, to sus-
tain the constitutionality of Commerce Clause legislation. As we stated in
Lopez, “{S]imply because Congress may conclude that a particular activity
substantially affects interstate commerce does not necessarily make it so.”
Rather, “[w]hether particular operations affect interstate commerce suffi-
ciently to come under the constitutional power of Congress to regulate
them is ultimately a judicial rather than a legislative question, and can be set-
tled finally only by this Court.”
In these cases, Congress’ findings are substantially weakened by the fact
that they rely so heavily on a method of reasoning that we have already re-
jected as unworkable if we are to maintain the Constitution’s enumeration of
powers. Congress found that gender-motivated violence affects interstate
commerce “by deterring potential victims from traveling interstate, from en-
gaging in employment in interstate business, and from transacting with busi-
ness, and in places involved in interstate commerce; by diminishing national
productivity, increasing medical and other costs, and decreasing the supply of
and the demand for interstate products.” Given these findings and petition-
ers’ arguments, the concern that we expressed in Lopez that Congress might
use the Commerce Clause to completely obliterate the Constitution’s dis-
tinction between national and local authority seems well founded. . . . If ac-
cepted, petitioners’ reasoning would allow Congress to regulate any crime as
long as the nationwide, aggregated impact of that crime has substantial ef-
fects on employment, production, transit, or consumption. Indeed, if Con-
gress may regulate gender-motivated violence, it would be able to regulate
murder or any other type of violence since gender-motivated violence, as a
subset of all violent crime, is certain to have lesser economic impacts than
the larger class of which it is a part....
We accordingly reject the argument that Congress may regulate non-
 C | From the New Deal Crisis to the Administrative State | 645

economic, violent criminal conduct based solely on that conduct’s aggregate

effect on interstate commerce. The Constitution requires a distinction be-
tween what is truly national and what is truly local. In recognizing this fact
we preserve one of the few principles that has been consistent since the
Clause was adopted. The regulation and punishment of intrastate violence
that is not directed at the instrumentalities, channels, or goods involved in
interstate commerce has always been the province of the States.
Because we conclude that the Commerce Clause does not provide
Congress with authority to enact Section 13981, we address petitioners’ al-
ternative argument that the section’s civil remedy should be upheld as an
exercise of Congress’ remedial power under Section 5 of the Fourteenth
Amendment.
The principles governing an analysis of congressional legislation under
Section 5 are well settled. . .. City of Boerne v. Flores, 521 U.S. 507 (1997).
Section 5 is “a positive grant of legislative power,’ Katzenbach v. Morgan, 384
US. 641 (1966), that includes authority to “prohibit conduct which is not it-
self unconstitutional and [to] intrud[e] into ‘legislative spheres of autonomy
previously reserved to the States.” ”” However, “[a]s broad as the congressional
enforcement power is, it is not unlimited.” Oregon v. Mitchell, 400 U.S. 112
(2970) tesk:
As our cases have established, state-sponsored gender discrimination vi-
olates equal protection unless it “serves important governmental objectives
and the discriminatory means employed” are “substantially related to the
achievement of those objectives.” United States v. Virginia, 518 U.S. 515
(1996). However, the language and purpose of the Fourteenth Amendment
place certain limitations on the manner in which Congress may attack dis-
criminatory conduct. These limitations are necessary to prevent the Four-
teenth Amendment from obliterating the Framers’ carefully crafted balance
of power between the States and the National Government. Foremost
among these limitations is the time-honored principle that the Fourteenth
Amendment, by its very terms, prohibits only state action.
Shortly after the Fourteenth Amendment was adopted, we decided two
cases interpreting the Amendment’s provisions, United States v. Harris, 106
USS. 629 (1883), and the Civil Rights Cases, 109 U.S. 3 (1883). In Harris, the
Court considered a challenge to Section 2 of the Civil Rights Act of 1871.
That section sought to punish “private persons” for “conspiring to deprive
any one of the equal protection of the laws enacted by the State.” We con-
cluded that this law exceeded Congress’ Section 5 power because the law
was “directed exclusively against the action of private persons, without refer-
ence to the laws of the State, or their administration by her officers.”
We reached a similar conclusion in the Civil Rights Cases. In those con-
solidated cases, we held that the public accommodation provisions of the
Civil Rights Act of 1875, which applied to purely private conduct, were be-
yond the scope of the Section 5 enforcement power. . . .
Petitioners alternatively argue that, unlike the situation in the Civil
Rights Cases, here there has been gender-based disparate treatment by state
authorities, whereas in those cases there was no indication of such state ac-
‘tion. Theresis abundant evidence, however, to show that the Congresses that
enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that
of Congress in enacting Section 13981:There were state laws on the books
646
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| CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

bespeaking equality of treatment, but in the administration of these laws

there was discrimination against newly freed slaves. . . .
But even if that distinction were valid, we do not believe it would save
Section 13981’s civil remedy. For the remedy is simply not “corrective in its
character, adapted to counteract and redress the operation of such prohibited
[s]tate laws or proceedings of [s]tate officers.” Civil Rights Cases. Or, as we
have phrased it in more recent cases, prophylactic legislation under Section 5
must have a “congruence and proportionality between the injury to be pre-
vented or remedied and the means adopted to that end.” Florida Prepaid Post-
secondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999); Flores.
Section 13981 is not aimed at proscribing discrimination by officials which
the Fourteenth Amendment might not itself proscribe; it is directed not at
any State or state actor, but at individuals who have committed criminal acts
motivated by gender bias..
[Section 13981] 1s, eas alike any of the Section 5 remedies that
we have previously upheld. For example, in Katzenbach v. Morgan, 384 U.S.
641 (1966), Congress prohibited New York from imposing literacy tests as a
prerequisite for voting because it found that such a requirement disenfran-
chised thousands of Puerto Rican immigrants who had been educated in the
Spanish language of their home territory. That law, which we upheld, was
directed at New York officials who administered the State’s election law and
prohibited them from using a provision of that law. In South Carolina v.
Katzenbach, 383 U.S. 301 (1966), Congress imposed voting rights require-
ments on States that, Congress found, had a history of discriminating against
blacks in voting. The remedy was also directed at state officials in those
Statesueaae
For these reasons, we conclude that Congress’ power under Section 5
does not extend to the enactment of Section 13981.

| Justice THOMAS, concurring.

The majority opinion correctly applies our decision in United States v.
Lopez and I join it in full. I write separately only to express my view that the
very notion of a “substantial effects” test under the Commerce Clause is in-
consistent with the original understanding of Congress’ powers and with this
Court’s early Commerce Clause cases. By continuing to apply this rootless
and malleable standard, however circumscribed, the Court has encouraged
the Federal Government to persist in its view that the Commerce Clause has
virtually no limits. Until this Court replaces its existing Commerce Clause
jurisprudence with a standard more consistent with the original understand-
ing, we will continue to see Congress appropriating state police powers un-
der the guise of regulating commerce.

(| Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG,

and Justice BREYER join, dissenting.
Congress has the power to legislate with regard to activity that, in the
aggregate, has a substantial effect on interstate commerce. See Wickard v. Fil-
burn, 317 U.S. 111 (1942). The fact of such a substantial effect is not an issue
for the courts in the first instance, but for the Congress, whose institutional
capacity for gathering evidence and taking testimony far exceeds ours. By
 C | From the New Deal Crisis to the Administrative State | 647
eee ee ee. See eennee VerWee cereNe see coeten «| EY
passing legislation, Congress indicates its conclusion, whether explicitly or
not, that facts support its exercise of the commerce power. The business of
the courts is to review the congressional assessment, not for soundness but
simply for the rationality of concluding that a jurisdictional basis exists in
fact. Any explicit findings that Congress chooses to make, though not dispos-
itive of the question of rationality, may advance judicial review by identifying
factual authority on which Congress relied.
One obvious difference from United States v. Lopez is the mountain of
data assembled by Congress here showing the effects of violence against
women on interstate commerce. Passage of the Act in 1994 was preceded by
four years of hearings, which included testimony from physicians and law
professors; from survivors of rape and domestic violence; and from represen-
tatives of state law enforcement and private business. The record includes re-
ports on gender bias from task forces in 21 States, and we have the benefit of
specific factual findings in the eight separate Reports issued by Congress and
its committees over the long course leading to enactment.
With respect to domestic violence, Congress received evidence for the
following findings: “Three out of four American women will be victims of
violent crimes sometime during their life.” “Violence is the leading cause of
injuries to women ages 15 to 44.’ “[A]s many as 50 percent of homeless
women and children are fleeing domestic violence.’ “Since 1974, the assault
rate against women has outstripped the rate for men by at least twice for
some age groups and far more for others.” “[BJattering is the single largest
cause of injury to women in the United States.” “An estimated 4 million
American women are battered each year by their husbands or partners.”
“Over 1 million women in the United States seek medical assistance each
year for injuries sustained [from] their husbands or other partners.” “Between
2,000 and 4,000 women die every year from [domestic] abuse.” “Partial esti-
mates show that violent crime against women costs this country at least
3 billion—not million, but billion—dollars a year.” “[E]stimate[s] suggest that
we spend $5 to $10 billion a year on health care, criminal justice, and other
social costs of domestic violence.”
The evidence as to rape was similarly extensive, supporting these con-
clusions: “|The incidence of | rape rose four times as fast as the total national
crime rate over the past 10 years.” “According to one study, close to half a
million girls now in high school will be raped before they graduate.” “[One
hundred twenty-five thousand] college women can expect to be raped dur-
ing this—or any—year.’ ““[T]hree-quarters of women never go to the movies
alone after dark because of the fear of rape and nearly 50 percent do not use
public transit alone after dark for the same reason.” “[Forty-one] percent of
judges surveyed believed that juries give sexual assault victims less credibility
than other crime victims.” “Less than 1 percent of all [rape] victims have
collected damages.” “|A]n individual who commits rape has only about
4 chances in 100 of being arrested, prosecuted, and found guilty of any of-
fense.” “Almost one-quarter of convicted rapists never go to prison and an-
other quarter received sentences in local jails where the average sentence 1s
11 months.” “[A]lmost 50 percent of rape victims lose their jobs or are
forced to quit because of the crime’s severity.”
Based on the data thus partially summarized, Congress found that
“crimes of violence motivated by gender have a substantial adverse effect on
648 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS
Seo

interstate commerce, by deterring potential victims from traveling interstate,

from engaging in employment in interstate business, and from transacting
with business, and in places involved, in interstate commerce[,] “by diminish-
ing national productivity, increasing medical and other costs, and decreasing
the supply of and the demand for interstate products.’ ”
Congress thereby explicitly stated the predicate for the exercise of its
Commerce Clause power. Is its conclusion irrational in view of the data
amassed? True, the methodology of particular studies may be challenged, and
some of the figures arrived at may be disputed. But the sufficiency of the ev-
idence before Congress to provide a rational basis for the finding cannot se-
riously be questioned.
Indeed, the legislative record here is far more voluminous than the
record compiled by Congress and found sufficient in two prior cases up-
holding Title II of the Civil Rights Act of 1964 against Commerce Clause
challenges. In Heart ofAtlanta Motel, Inc. v. United States, 379 U.S. 241 (1964),
and Katzenbach v. McClung, 379 U.S. 294 (1964), the Court referred to evi-
dence showing the consequences of racial discrimination by motels and
restaurants on interstate commerce. Congress had relied on compelling anec-
dotal reports that individual instances of segregation costs thousands to mil-
lions of dollars.
While Congress did not, to my knowledge, calculate aggregate dollar
values for the nationwide effects of racial discrimination in 1964, in 1994 it
did rely on evidence of the harms caused by domestic violence and sexual
assault, citing annual costs of $3 billion in 1990, and $5 to $10 billion in
1993. Equally important, though, gender-based violence in the 1990's was
shown to operate in a manner similar to racial discrimination in the 1960's
in reducing the mobility of employees and their production and consump-
tion of goods shipped in interstate commerce. Like racial discrimination,
“(o]ender-based violence bars its most likely targets—women—from full
partic[ipation] in the national economy.’
If the analogy to the Civil Rights Act of 1964 is not plain enough, one
can always look back a bit further. In Wickard, we upheld the application of
the Agricultural Adjustment Act to the planting and consumption of home-
grown wheat. The effect on interstate commerce in that case followed from
the possibility that wheat grown at home for personal consumption could
either be drawn into the market by rising prices, or relieve its grower of any
need to purchase wheat in the market. The Commerce Clause predicate was
simply the effect of the production of wheat for home consumption on sup-
ply and demand in interstate commerce. Supply and demand for goods in
interstate commerce will also be affected by the deaths of 2,000 to 4,000
women annually at the hands of domestic abusers, and by the reduction in
the work force by the 100,000 or more rape victims who lose their jobs each
year or are forced to quit. Violence against women may be found to affect
interstate commerce and affect it substantially.
The Act would have passed muster at any time between Wickard in 1942
and Lopez in 1995, a period in which the law enjoyed a stable understanding
that congressional power under the Commerce Clause, complemented by
the authority of the Necessary and Proper Clause, Art. I. Sec. 8, cl. 18, ex-
tended to all activity that, when aggregated, has a substantial effect on inter-
state commerce. As already noted, this understanding was secure even against
 C | From the New Deal Crisis to the Administrative State | 649

the turmoil at the passage of the Civil Rights Act of 1964, in the aftermath
of which the Court not only reaffirmed the cumulative effects and rational
basis features of the substantial effects test, see Heart of Atlanta, McClung, but
declined to limit the commerce power through a formal distinction between
legislation focused on “commerce” and statutes addressing “moral and social
wrong{s].”
The fact that the Act does not pass muster before the Court today is
therefore proof, to a degree that Lopez was not, that the Court’s nominal ad-
herence to the substantial effects test is merely that. Although a new
Jurisprudence has not emerged with any distinctness, it is clear that some
congressional conclusions about obviously substantial, cumulative effects on
commerce are being assigned lesser values than the once-stable doctrine
would assign them. These devaluations are accomplished not by any express
repudiation of the substantial. effects test or its application through the aggre-
gation of individual conduct, but by supplanting rational basis scrutiny with
a new criterion of review.
Thus the elusive heart of the majority’s analysis in these cases is its state-
ment that Congress’s findings of fact are “weakened” by the presence of a
disfavored “method of reasoning.” This seems to suggest that the “substantial
effects” analysis is not a factual enquiry, for Congress in the first instance
with subsequent judicial review looking only to the rationality of the con-
gressional conclusion, but one of a rather different sort, dependent upon a
uniquely judicial competence.
This new characterization of substantial effects has no support in our
cases (the self-fulfilling prophecies of Lopez aside), least of all those the ma-
jority cites. Perhaps this explains why the majority is not content to rest on
its cited precedent but claims a textual justification for moving toward its
new system of congressional deference subject to selective discounts. .. .
The premise that the enumeration of powers implies that other powers
are withheld is sound; the conclusion that some particular categories of sub-
ject matter are therefore presumptively beyond the reach of the commerce
power is, however, a non sequitur. From the fact that Art. I, Sec. 8, cl. 3 grants
an authority limited to regulating commerce, it follows only that Congress
may claim no authority under that section to address any subject that does
not affect commerce. It does not at all follow that an activity affecting com-
merce nonetheless falls outside the commerce power, depending on the spe-
cific character of the activity, or the authority of a State to regulate it along
with Congress. My disagreement with the majority is not, however, confined
to logic, for history has shown that categorical exclusions have proven as un-
workable in practice as they are unsupportable in theory.
Chief Justice. MARSHALL’s seminal opinion in Gibbons v. Ogden,
[9 Wheat 1 (1824)], construed the commerce power from the start with “a
breadth never yet exceeded,” Wickard v. Filburn. In particular, it is worth not-
ing, the Court in Wickard did not regard its holding as exceeding the scope
of Chief Justice MARSHALL’ view of interstate commerce; Wickard applied
an aggregate effects test to ostensibly domestic, noncommercial farming con-
sistently with Chief Justice MARSHALL’ indication that the commerce
‘power may*be understood by its exclusion of subjects, among others, “which
do not affect other States.’ This plenary view of the power has either pre-
vailed or been acknowledged by this Court at every stage of our juris-
650 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS ee
ee

prudence. And it was this understanding, free of categorical qualifications,

that prevailed in the period after 1937 through Lopez, as summed up by Jus-
tice HARLAN: “Of course, the mere fact that Congress has said when par-
ticular activity shall be deemed to affect commerce does not preclude further
examination by this Court. But where we find that the legislators have a
rational basis for finding a chosen regulatory scheme necessary to the protec-
tion of commerce, our investigation is at an end.” Maryland v. Wirtz, 392 US.
183 (1968).
Justice HARLAN spoke with the benefit of hindsight, for he had seen
the result of rejecting the plenary view, and today’s attempt to distinguish be-
tween primary activities affecting commerce in terms of the relatively com-
mercial or noncommercial character of the primary conduct proscribed
comes with the pedigree of near-tragedy that I outlined in United States v.
Lopez (dissenting opinion). In the half century following the modern activa-
tion of the commerce power with passage of the Interstate Commerce Act in
1887, this Court from time to time created categorical enclaves beyond
congressional reach by declaring such activities as “mining,” “production,”
“manufacturing,” and union membership to be outside the definition of
“commerce” and by limiting application of the effects test to “direct” rather
than “indirect” commercial consequences. See, e.g., United States v. E. C.
Knight Co., 156 U.S. 1 (1895) (narrowly construing the Sherman Antitrust
Act in light of the distinction between “commerce” and “manufacture”);
Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating law prohibiting inter-
state shipment of goods manufactured with child labor as a regulation of
“manufacture”); A. L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935) (invalidating regulation of activities that only “indirectly” affected
commerce); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (holding that reg-
ulation of unfair labor practices in mining regulated “production,” not
“commerce”.
Since adherence to these formalistically contrived confines of com-
merce power in large measure provoked the judicial crisis of 1937, one might
reasonably have doubted that Members of this Court would ever again toy
with a return to the days before NLRB v, Jones & Laughlin Steel Corp., 301
US. 1 (1937), which brought the earlier and nearly disastrous experiment to
an end. And yet today’s decision can only be seen as a step toward recaptur-
ing the prior mistakes. . . .
Why is the majority tempted to reject the lesson so painfully learned in
19372 An answer emerges from contrasting Wickard with one of the prede-
cessor Cases it superseded. It was obvious in Wickard that growing wheat for
consumption right on the farm was not “commerce” in the common vocab-
ulary, but that did not matter constitutionally so long as the aggregated activ-
ity of domestic wheat growing affected commerce substantially. Just a few
years before Wickard, however, it had certainly been no less obvious that
“mining” practices could substantially affect commerce, even though Carter
Coal Co. had held mining regulation beyond the national commerce power.
When we try to fathom the difference between the two cases, it is clear that
they did not go in different directions because the Carter Coal Court could
not understand a causal connection that the Wickard Court could grasp; the
difference, rather, turned on the fact that the Court in Carter Coal had a rea-
son for trying to maintain its categorical, formalistic distinction, while that
 C | From the New Deal Crisis to the Administrative State | 651

reason had been abandoned by the time Wickard was decided. The reason
was laissez-faire economics, the point of which was to keep government
interference to a minimum. The Court in Carter Coal was still trying to cre-
ate a laissez-faire world out of the 20th-century economy, and formalistic
commercial distinctions were thought to be useful instruments in achieving
that object. The Court in Wickard knew it could not do any such thing and
in the aftermath of the New Deal had long since stopped attempting the im-
possible. Without the animating economic theory, there was no point in con-
triving formalisms in a war with Chief Justice MARSHALL’ conception of
the commerce power.
If we now ask why the formalistic economic/noneconomic distinction
might matter today, after its rejection in Wickard, the answer is not that the
majority fails to see causal connections in an integrated economic world.
The answer is that in the minds of the majority there is a new animating
theory that makes categorical formalism seem useful again. Just as the old
formalism had value in the service of an economic conception, the new one
is useful in serving a conception of federalism. It is the instrument by which
assertions of national power are to be limited in favor of preserving a sup-
posedly discernible, proper sphere of state autonomy to legislate or refrain
from legislating as the individual States see fit. The legitimacy of the Court’s
current emphasis on the noncommercial nature of regulated activity, then,
does not turn on any logic serving the text of the Commerce Clause or on
the realism of the majority’s view of the national economy. The essential is-
sue is rather the strength of the majority’s claim to have a constitutional war-
rant for its current conception of a federal relationship enforceable by this
Court through limits on otherwise plenary commerce power. This concep-
tion is the subject of the majority’s second categorical discount applied today
to the facts bearing on the substantial effects test.
The Court finds it relevant that the statute addresses conduct tradition-
ally subject to state prohibition under domestic criminal law, a fact said to
have some heightened significance when the violent conduct in question is
not itself aimed directly at interstate commerce or its instrumentalities.
Again, history seems to be recycling, for the theory of traditional state con-
cern as grounding a limiting principle has been rejected previously, and more
thanionéesiis’:
The objection to reviving traditional state spheres of action as a consid-
eration in commerce analysis, however, not only rests on the portent of in-
coherence, but is compounded by a further defect just as fundamental. The
defect, in essence, is the majority’s rejection of the Founders’ considered
judgment that politics, not judicial review, should mediate between state and
national interests as the strength and legislative jurisdiction of the National
Government inevitably increased through the expected growth of the na-
tional economy. Whereas today’s majority takes a leaf from the book of the
old judicial economists in saying that the Court should somehow draw the
line to keep the federal relationship in a proper balance, Madison, Wilson,
and MARSHALL understood the Constitution very differently.
Although Madison had emphasized the conception of a National
‘Government of discrete powers (a conception that a number of the ratifying
conventions thought was too indeterminate to protect civil liberties), Madi-
son himself must have sensed the potential scope of some of the powers
652 | ConcGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS
555 85888 58588 “8 8989885555055

granted (such as the authority to regulate commerce), for he took care in

The Federalist No. 46 to hedge his argument for limited power by explaining
the importance of national politics in protecting the States’ interests. The Na-
tional Government “will partake sufficiently of the spirit [of the States], to be
disinclined to invade the rights of the individual States, or the prerogatives of
their governments.” ...
Politics as the moderator of the congressional employment of the com-
merce power was the theme many years later in Wickard, for after the Court
acknowledged the breadth of the Gibbons formulation it invoked Chief Jus-
tice MARSHALL yet again in adding that “(h)e made emphatic the embrac-
ing and penetrating nature of this power by warning that effective restraints
on its exercise must proceed from political rather than judicial processes.”
Wickard.
As with “conflicts of economic interest,’ so with supposed conflicts of
sovereign political interests implicated by the Commerce Clause: the Consti-
tution remits them topolitics. The point can be put no more clearly than the
Court put it the last time it repudiated the notion that some state activities
categorically defied the commerce power as understood in accordance with
generally accepted concepts. [In Garcia v. San Antonio Metropolitan Transit Au-
thority, 469 U.S. 528 (1985), the Court] concluded that “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 safe-
guards inherent in the structure of the federal system than by judicially cre-
ated limitations on federal power.” .. .
All of this convinces me that today’s ebb of the commerce power rests
on error, and at the same time leads me to doubt that the majority’s view
will prove to be enduring law. There is yet one more reason for doubt. Al-
though we sense the presence of Carter Coal, Schechter, and [National League of
Cities v.| Usery [426 U.S. 833 (1976)], once again, the majority embraces
them only at arm’s-length. Where such decisions once stood for rules, today’s
opinion points to considerations by which substantial effects are discounted.
Cases standing for the sufficiency of substantial effects are not overruled;
cases overruled since 1937 are not quite revived. The Court’s thinking be-
tokens less clearly a return to the conceptual straitjackets of Schechter and Carter
Coal and Usery than to something like the unsteady state of obscenity law
between Redrup v. New York, 386 U.S. 767 (1967), and Miller v. California, 413
U.S. 15 (1973), a period in which the failure to provide a workable defini-
tion left this Court to review each case ad hoc. As our predecessors learned
then, the practice of such ad hoc review cannot preserve the distinction be-
tween the judicial and the legislative, and this Court, in any event, lacks the
institutional capacity to maintain such a regime for very long. This one will
end when the majority realizes that the conception of the commerce power
for which it entertains hopes would inevitably fail the test expressed in Jus-
tice HOLMES’s statement that “[t]he first call of a theory of law is that it
should fit the facts.” The facts that cannot be ignored today are the facts of
integrated national commerce and a political relationship between States and
Nation much affected by their respective treasuries and constitutional modi-
fications adopted by the people. The federalism of some earlier time is no
 C | From the New Deal Crisis to the Administrative State | 653

more adequate to account for those facts today than the theory of laissez-
faire was able to govern the national economy 70 years ago.

Justice BREYER, with whom Justice STEVENS joins, and with whom
Justice SOUTER and Justice GINSBURG join as to Part I-A, dissenting.
The majority holds that the federal commerce power does not extend
to such “noneconomic” activities as “noneconomic, violent criminal con-
duct” that significantly affects interstate commerce only if we “aggregate” the
interstate “effect[s]” of individual instances. Justice SOUTER explains why
history, precedent, and legal logic militate against the majority’s approach. I
agree and join his opinion. I add that the majority’s holding illustrates the
difficulty of finding a workable judicial Commerce Clause touchstone—a set
of comprehensible interpretive rules that courts might use to impose some
meaningful limit, but not too great a limit, upon the scope of the legislative
authority that the Commerce Clause delegates to Congress.
Consider the problems. The “economic/noneconomic” distinction is
not easy to apply. Does the local street corner mugger engage in “economic”
activity or “noneconomic” activity when he mugs for money? See Perez v,
United States, 402 U.S. 146 (1971) (aggregating local “loan sharking” in-
stances); United States v. Lopez, 514 U.S. 549 (1995) (loan sharking is eco-
nomic because it consists of “intrastate extortionate credit transactions’).
Would evidence that desire for economic domination underlies many brutal
crimes against women save the present statute?
The line becomes yet harder to draw given the need for exceptions. The
Court itself would permit Congress to aggregate, hence regulate, “non-
economic” activity taking place at economic establishments. See Heart ofAt-
lanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (upholding civil rights
laws forbidding discrimination at local motels); Katzenbach v. McClung, 379
U.S. 294 (1964) (same for restaurants); Lopez (recognizing congressional
power to aggregate, hence forbid, noneconomically motivated discrimination
at public accommodations).
More important, why should we give critical constitutional importance
to the economic, or noneconomic, nature of an interstate-commerce-
affecting cause? If chemical emanations through indirect environmental
change cause identical, severe commercial harm outside a State, why should
it matter whether local factories or home fireplaces release them? The Con-
stitution itself refers only to Congress’ power to “regulate Commerce .. .
among the several States,” and to make laws “necessary and proper’’ to im-
plement that power. The language says nothing about either the local nature,
or the economic nature, of an interstate-commerce-affecting cause... .
Most important, the Court’s complex rules seem unlikely to help secure
the very object that they seek, namely, the protection of “areas of traditional
state regulation” from federal intrusion. The Court's rules, even if broadly in-
terpreted, are underinclusive. The local pickpocket is no less a traditional
subject of state regulation than is the local gender-motivated assault. Re-
gardless, the Court reaffirms, as it should, Congress’ well-established and
frequently "exercised power to enact laws that satisfy a commerce-related
jurisdictional prerequisite—for example, that some item relevant to the fed-
erally regulated activity has at some time crossed astate line.
654 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

And in a world where most everyday products or their component parts

cross interstate boundaries, Congress will frequently find it possible to redraft
a statute using language that ties the regulation to the interstate movement of
some relevant object, thereby regulating local criminal activity or, for that
matter, family affairs. Although this possibility does not give the Federal
Government the power to regulate everything, it means that any substantive
limitation will apply randomly in terms of the interests the majority seeks to
protect. How much would be gained, for example, were Congress to reenact
the present law in the form of “An Act Forbidding Violence Against Women
Perpetrated at Public Accommodations or by Those Who Have Moved in,
or through the Use of Items that Have Moved in, Interstate Commerce”?
Complex Commerce Clause rules creating fine distinctions that achieve only
random results do little to further the important federalist interests that called
them into being. That is why modern (pre-Lopez) case law rejected them... .
For these reasons, as well as those set forth by Justice SOUTER, this
statute falls well within Congress’s Commerce Clause authority, and I dissent
from the Court’s contrary conclusion... .

Gonzales v. Raich
$45.U.S. 1,425. S.CT.2195,(2005)

Two seriously ill Californians, Angel McClary Raich and Diane Mon-
son, used marijuana for medicinal purposes. Under California’s Com-
passionate Use Act of 1996, they could legally do so; nine other states
had similar laws. Raich received her marijuana free of charge from her
caregivers, while Monson cultivated her own in the backyard. In 2002,
deputies from the sheriff’s department and federal Drug Enforcement
Agency (DEA) agents arrived at Monson’s home. The sheriff’s deputies
determined that Monson’s cultivation and use of marijuana was legal
under state law. But the DEA agents contended that Monson was in vi-
olation of the federal Controlled Substances Act (CSA), which desig-
nates marijuana as a Schedule I “controlled substance” and makes it
unlawful to possess, manufacture, or distribute such substances. After a
three-hour standoff between the county district attorney and the U.S.
attorney, the DEA agents seized and destroyed Monson’s cannabis
plants. Subsequently, Raich and Monson filed a lawsuit and sought an
injunction against the enforcement of the federal statute.A federal dis-
trict court denied the motion, but on appeal the U.S. Court of Appeals
for the Ninth Circuit reversed, holding that, based on rulings in United
States, v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529
US. 598 (2000), the application of the CSA to Raich and Monson ex-
ceeded Congress’s regulatory power under the Commerce Clause, and
 C | From the New Deal Crisis to the Administrative State | 655

rejected the government’s argument that the “aggregation principle”

upheld in Wickard v. Filburn, 317 U.S. 111 (1942), applied, ruling that
the principle was inapplicable to the activities of Raich and Monson.
The Department of Justice appealed that decision, and the Supreme
Court granted review.
The appellate court’s decision was reversed on a vote of six to
three. Justice Stevens delivered the opinion of the Court and Justice
Scalia filed a concurring opinion. Chief Justice Rehnquist and Justices
O’Connor and Thomas dissented.

| Justice STEVENS delivered the opinion of the Court.

California is one of at least nine States that authorize the use of mari-
juana for medicinal purposes. The question presented in this case is whether
the power vested in Congress by Article I, Section 8, of the Constitution
“Tt]o make all Laws which shall be necessary and proper for carrying into
Execution” its authority to “regulate Commerce with foreign Nations, and
among the several States” includes the power to prohibit the local cultivation
and use of marijuana in compliance with California law... .
The obvious importance of the case prompted our grant ofcertiorari. The
case is made difficult by respondents’ strong arguments that they will suffer
irreparable harm because, despite a congressional finding to the contrary,
marijuana does have valid therapeutic purposes. The question before us,
however, is not whether it is wise to enforce the statute in these circum-
stances; rather, it is whether Congress’ power to regulate interstate markets
for medicinal substances encompasses the portions of those markets that are
supplied with drugs produced and consumed locally. Well-settled law con-
trols our answer. The CSA is a valid exercise of federal power, even as applied
to the troubling facts of this case. We accordingly vacate the judgment of the
Court of Appeals.
Shortly after taking office in 1969, President Nixon declared a national
“war on drugs.” As the first campaign of that war, Congress set out to enact
legislation that would consolidate various drug laws on the books into a
comprehensive statute, provide meaningful regulation over legitimate sources
of drugs to prevent diversion into illegal channels, and strengthen law en-
forcement tools against the traffic in illicit drugs. That effort culminated in
the passage of the Comprehensive Drug Abuse Prevention and Control Act
Of 1970.
In enacting the CSA, Congress classified marijuana as a Schedule I drug.
This preliminary classification was based, in part, on the recommendation of
the Assistant Secretary of HEW “that marihuana be retained within schedule
I at least until the completion of certain studies now underway.” Sched-
ule I drugs are categorized as such because of their high potential for abuse,
lack of any accepted medical use, and absence of any accepted safety for use
in medically supervised treatment. ...
Respondents in this case do not dispute that passage of the CSA, as part
~ of the Comprehensive Drug Abuse Prevention and Control Act, was well
within Congress’ commerce power. Nor do they contend that any provision
or section of the CSA amounts to an unconstitutional exercise of congres-
656 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

sional authority. Rather, respondents’ challenge is actually quite limited; they

argue that the CSA’s categorical prohibition of the manufacture and posses-
sion of marijuana as applied to the intrastate manufacture and possession of
marijuana for medical purposes pursuant to California law exceeds Con-
gress’ authority under the Commerce Clause.
In assessing the validity of congressional regulation, none of our Com-
merce Clause cases can be viewed in isolation. As charted in considerable
detail in-United States v. Lopez, [514 U.S. 549 (1995)] our understanding of
the reach of the Commerce Clause, as well as Congress’ assertion of author-
ity there under, has evolved over time. The Commerce Clause emerged as
the Framers’ response to the central problem giving rise to the Constitution
itself: the absence of any federal commerce power under the Articles of Con-
federation. For the first century of our history, the primary use of the Clause
was to preclude the kind of discriminatory state legislation that had once
been permissible. Then, in response to rapid industrial development and an
increasingly interdependent national economy, Congress “ushered in a new
era of federal regulation under the commerce power,” beginning with the
enactment of the Interstate Commerce Act in 1887, and the Sherman An-
titrust Act in 1890. Cases decided during that “new era,’ which now spans
more than a century, have identified three general categories of regulation in
which Congress is authorized to engage under its commerce power. First,
Congress can regulate the channels of interstate commerce. Perez v. United
States, 402 U.S. 146 (1971). Second, Congress has authority to regulate and
protect the instrumentalities of interstate commerce, and persons or things in
interstate commerce. Third, Congress has the power to regulate activities that
substantially affect interstate commerce. NLRB v, Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937). Only the third category is implicated in the case at hand.
Our case law firmly establishes Congress’ power to regulate purely local
activities that are part of an economic “class of activities” that have a substan-
tial effect on interstate commerce. See, e.g., Perez; Wickard v. Filburn, 317 US.
111 (1942). As we stated in Wickard, “even if appellee’s activity be local and
though it may not be regarded as commerce, it may still, whatever its nature,
be reached by Congress if it exerts a substantial economic effect on interstate
commerce.” We have never required Congress to legislate with scientific ex-
actitude. When Congress decides that the “ ‘total incidence’ ” of a practice
poses a threat to a national market, it may regulate the entire class. In this
vein, we have reiterated that when “ ‘a general regulatory statute bears a sub-
stantial relation to commerce, the de minimis character of individual in-
stances arising under that statute is of no consequence. ”
Our decision in Wickard is of particular relevance. In Wickard, we upheld
the application of regulations promulgated under the Agricultural Adjust-
ment Act of 1938, which were designed to control the volume of wheat
moving in interstate and foreign commerce in order to avoid surpluses and
consequent abnormally low prices. The regulations established an allotment
of 11.1 acres for Filburn’s 1941 wheat crop, but he sowed 23 acres, intending
to use the excess by consuming it on his own farm. Filburn argued that even
though we had sustained Congress’ power to regulate the production of
goods for commerce, that power did not authorize “federal regulation [of]
production not intended in any part for commerce but wholly for consump-
tion on the farm.” Justice JACKSON’s opinion for a unanimous Court-re-
 C | From the New Deal Crisis to the Administrative State | 657

jected this submission. Wickard thus establishes that Congress can regulate
purely intrastate activity that is not itself “commercial,” in that it is not pro-
duced for sale, if it concludes that failure to regulate that class of activity
would undercut the regulation of the interstate market in that commodity.
The similarities between this case and Wickard are striking. Like the
farmer in Wickard, respondents are cultivating, for home consumption, a fun-
gible commodity for which there is an established, albeit illegal, interstate
market. Just as the Agricultural Adjustment Act was designed “to control the
volume [of wheat] moving in interstate and foreign commerce in order to
avoid surpluses . . 2” and consequently control the market price, a primary
purpose of the CSA is to control the supply and demand of controlled sub-
stances in both lawful and unlawful drug markets. In Wickard, we had no dif-
ficulty concluding that Congress had a rational basis for believing that, when
viewed in the aggregate, leaving home-consumed wheat outside the regula-
tory scheme would have a substantial influence on price and market condi-
tions. Here too, Congress had a rational basis for concluding that leaving
home-consumed marijuana outside federal control would similarly affect
price and market conditions.
More concretely, one concern prompting inclusion of wheat grown for
home consumption in the 1938 Act was that rising market prices could draw
such wheat into the interstate market, resulting in lower market prices. The
parallel concern making it appropriate to include marijuana grown for home
consumption in the CSA is the likelihood that the high demand in the
interstate market will draw such marijuana into that market. While the
diversion of homegrown wheat tended to frustrate the federal interest in
stabilizing prices by regulating the volume of commercial transactions in the
interstate market, the diversion of homegrown marijuana tends to frustrate
the federal interest in eliminating commercial transactions in the interstate
market in their entirety. In both cases, the regulation is squarely within Con-
gress’ commerce power because production of the commodity meant for
home consumption, be it wheat or marijuana, has a substantial effect on sup-
ply and demand in the national market for that commodity.
Nonetheless, respondents suggest that Wickard differs from this case
in-three respects: (1) the Agricultural Adjustment Act, unlike the CSA, ex-
empted small farming operations; (2) Wickard involved a “quintessential eco-
nomic activity’—a commercial farm—whereas respondents do not sell
marijuana; and (3) the Wickard record made it clear that the aggregate pro-
duction of wheat for use on farms had a significant impact on market prices.
Those differences, though factually accurate, do not diminish the preceden-
tial force of this Court’s reasoning.
The fact that Wickard’s own impact on the market was “trivial by itself”
was not a sufficient reason for removing him from the scope of federal regu-
lation. That the Secretary of Agriculture elected to exempt even smaller
farms from regulation does not speak to his power to regulate all those
whose aggregated production was significant, nor did that fact play any role
in the Court’s analysis. Moreover, even though Wickard was indeed a com-
mercial farmer, the activity he was engaged in—the cultivation of wheat for
. home consumption—was not treated by the Court as part of his commercial
farming operation....
In assessing the scope of Congress’ authority under the Commerce
658 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

Clause, we stress that the task before us is a modest one. We need not deter-
mine whether respondents’ activities, taken in the aggregate, substantially af-
fect interstate commerce in fact, but only whether a “rational basis” exists for
so concluding. Given the enforcement difficulties that attend distinguishing
between marijuana cultivated locally and marijuana grown elsewhere, and
concerns about diversion into illicit channels, we have no difficulty conclud-
ing that Congress had arational basis for believing that failure to regulate the
intrastate manufacture and possession of marijuana would leave a gaping hole
in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation
to regulate the interstate market in a fungible commodity, Congress was act-
ing well within its authority to “make all Laws which shall be necessary and
proper” to “regulate Commerce . . . among the several States.” That the reg-
ulation ensnares some purely intrastate activity is of no moment. As we have
done many times before, we refuse to excise individual components of that
larger scheme.
To support their contrary submission, respondents rely heavily on two
of our more recent Commerce Clause cases. In their myopic focus, they
overlook the larger context of modern-era Commerce Clause jurisprudence
preserved by those cases. Moreover, even in the narrow prism of respondents’
creation, they read those cases far too broadly. Those two cases, of course, are
Lopez and [United States v.] Morrison, 529 U.S. 598 [(2000)]. As an initial
matter, the statutory challenges at issue in those cases were markedly differ-
ent from the challenge respondents pursue in the case at hand. Here, respon-
dents ask us to excise individual applications of a concededly valid statutory
scheme. In contrast, in both Lopez and Morrison, the parties asserted that a
particular statute or provision fell outside Congress’ commerce power in its
entirety. This distinction is pivotal for we have often reiterated that “[w]here
the class of activities is regulated and that class is within the reach of federal
power, the courts have no power ‘to excise, as trivial, individual instances’ of
the class.”
Unlike those at issue in Lopez and Morrison, the activities regulated by
the CSA are quintessentially economic. “Economics” refers to “the produc-
tion, distribution, and consumption of commodities.’ The CSA is a statute
that regulates the production, distribution, and consumption of commodities
for which there is an established, and lucrative, interstate market. Prohibiting
the intrastate possession or manufacture of an article of commerce is a ra-
tional (and commonly utilized) means of regulating commerce in that prod-
uct. Such prohibitions include specific decisions requiring that a drug be
withdrawn from the market as a result of the failure to comply with regula-
tory requirements as well as decisions excluding Schedule I drugs entirely
from the market. Because the CSA is a.statute that directly regulates eco-
nomic, commercial activity, our opinion in Morrison casts no doubt on its
constitutionality.
The Court of Appeals was able to conclude otherwise only by isolating
a “separate and distinct” class of activities that it held to be beyond the reach
of federal power, defined as “the intrastate, noncommercial cultivation, pos-
session and use of marijuana for personal medical purposes on the advice of
a physician and in accordance with state law’? The court characterized this
class as “different in kind from drug trafficking.” The differences between the
members of a class so defined and the principal traffickers in Schedule I sub-
 C | From the New Deal Crisis to the Administrative State | 659

stances might be sufficient to justify a policy decision exempting the nar-

rower class from the coverage of the CSA.The question, however, is whether
Congress’ contrary policy judgment, i.e., its decision to include this narrower
“class of activities” within the larger regulatory scheme, was constitutionally
deficient. We have no difficulty concluding that Congress acted rationally in
determining that none of the characteristics making up the purported class,
whether viewed individually or in the aggregate, compelled an exemption
from the CSA; rather, the subdivided class of activities defined by the Court
of Appeals was an essential part of the larger regulatory scheme.
First, the fact that marijuana is used “for personal medical purposes on
the advice of a physician” cannot itself serve as a distinguishing factor. The
CSA designates marijuana as contraband for any purpose... .
Second, limiting the activity to marijuana possession and cultivation “in
accordance with state law” cannot serve to place respondents’ activities be-
yond congressional reach. The Supremacy Clause unambiguously provides
that if there is any conflict between federal and state law, federal law shall
prevail. It is beyond peradventure that federal power over commerce is “ “su-
perior to that of the States to provide for the welfare or necessities of their
inhabitants. an
So, from the “separate and distinct’ class of activities identified by the
Court of Appeals (and adopted by the dissenters), we are left with “the in-
trastate, noncommercial cultivation, possession and use of marijuana.” Thus
the case for the exemption comes down to the claim that a locally cultivated
product that is used domestically rather than sold on the open market is not
subject to federal regulation. Given the findings in the CSA and the undis-
puted magnitude of the commercial market for marijuana, our decisions in
Wickard v. Filburn and the later cases endorsing its reasoning foreclose that
claim.

() Justice SCALIA, concurring in the judgment.

Since Perez v. United States, 402 U.S. 146 (1971), our cases have mechan-
ically recited that the Commerce Clause permits congressional regulation of
three categories: (1) the channels of interstate commerce; (2) the instrumen-
talities of interstate commerce, and persons or things in interstate commerce;
The first two
and (3) activities that “substantially affect” interstate commerce.
categories are self-evident, since they are the ingredients of interstate com-
merce itself. The third category, however, is different in kind, and its recita-
tion without explanation is misleading and incomplete.
It is misleading because, unlike the channels, instrumentalities, and
agents of interstate commerce, activities that substantially affect interstate
commerce are not themselves part of interstate commerce, and thus the
power to regulate them cannot come from the Commerce Clause alone.
Rather, as this Court has acknowledged, Congress’s regulatory authority
over intrastate activities that are not themselves part of interstate commerce
(including activities that have a substantial effect on interstate commerce)
derives from the Necessary and Proper Clause. And the category of “ac-
- tivities that substantially affect interstate commerce” is incomplete because
the authority to enact laws necessary and proper for the regulation of inter-
state commerce is not limited to laws governing intrastate activities that
 660 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS ae
Sa ee ee

substantially affect interstate commerce. Where necessary to make a reg-

ulation of interstate commerce effective, Congress may regulate even those
intrastate activities that do not themselves substantially affect interstate
commerce.
Our cases show that the regulation of intrastate activities may be neces-
sary to and proper for the regulation of interstate commerce in two general
circumstances. Most directly, the commerce power permits Congress not
only to devise rules for the governance of commerce between States but also
to facilitate interstate commerce by eliminating potential obstructions, and to
restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1 (1937).That is why the Court has repeatedly sustained
congressional legislation on the ground that the regulated activities had a
substantial effect on interstate commerce. Lopez and Morrison recognized the
expansive scope of Congress’s authority in this regard: “[T]he pattern is clear.
Where economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained.”
This principle is not without limitation. In Lopez and Morrison, the
Court—conscious of the potential of the “substantially affects” test to
“obliterate the distinction between what is national and what is local; ”°—
rejected the argument that Congress may regulate noneconomic activity
based solely on the effect that it may have on interstate commerce through a
remote chain of inferences. Thus, although Congress’s authority to regulate
intrastate activity that substantially affects interstate commerce is broad, it
does not permit the Court to “pile inference upon inference” in order to es-
tablish that noneconomic activity has a substantial effect on interstate com-
merce. As we implicitly acknowledged in Lopez, however, Congress’s
authority to enact laws necessary and proper for the regulation of interstate
commerce is not limited to laws directed against economic activities that
have a substantial effect on interstate commerce. Though the conduct in
Lopez was not economic, the Court nevertheless recognized that it could be
regulated as “an essential part of a larger regulation of economic activity, in
which the regulatory scheme could be undercut unless the intrastate activity
were regulated.” This statement referred to those cases permitting the regula-
tion of intrastate activities “which in a substantial way interfere with or ob-
struct the exercise of the granted power.”
Although this power “to make .. . regulation effective” commonly over-
laps with the authority to regulate economic activities that substantially af-
fect interstate commerce, and may in some cases have been confused with
that authority, the two are distinct. The regulation of an intrastate activity
may be essential to a comprehensive regulation of interstate commerce even
though the intrastate activity does not itself “substantially affect” interstate
commerce. Moreover, as the passage from Lopez quoted above suggests, Con-
gress may regulate even noneconomic local activity if that regulation is a
necessary part of a more general regulation of interstate commerce. The rel-
evant question is simply whether the means chosen are “reasonably adapted”
to the attainment of a legitimate end under the commerce power... .
As the Court said in the Shreveport Rate Cases, [234 U.S. 342 (1914)], the
Necessary and Proper Clause does not give “Congress .. . the authority to
regulate the internal commerce of a State, as such,” but it does allow Con-
gress “to take all measures necessary or appropriate to” the effective regula-
 C | From the New Deal Crisis to the Administrative State | 661

tion of the interstate market, “although intrastate transactions . .. may thereby

be controlled.”
Today’s principal dissent objects that, by permitting Congress to regulate
activities necessary to effective interstate regulation, the Court reduces Lopez
and Morrison to “little more than a drafting guide.” (O’; CONNOR, J.). I
think that criticism unjustified. Unlike the power to regulate activities that
have a substantial effect on interstate commerce, the power to enact laws en-
abling effective regulation of interstate commerce can only be exercised in
conjunction with congressional regulation of an interstate market, and it ex-
tends only to those measures necessary to make the interstate regulation ef-
fective. As Lopez itself states, and the Court affirms today, Congress may
regulate noneconomic intrastate activities only where the failure to do so
“could ... undercut” its regulation of interstate commerce. This is not a
power that threatens to obliterate the line between “what is truly national
and what is truly local.” ... 2
Lopez and Morrison affirm that Congress may not regulate certain
“purely local” activity within the States based solely on the attenuated effect
that such activity may have in the interstate market. But those decisions do
not declare noneconomic intrastate activities to be categorically beyond the
reach of the Federal Government....
The application of these principles to the case before us is straightfor-
ward. In the CSA, Congress has undertaken to extinguish the interstate mar-
ket in Schedule I controlled substances, including marijuana. The Commerce
Clause unquestionably permits this. The power to regulate interstate com-
merce “extends not only to those regulations which aid, foster and protect
the commerce, but embraces those which prohibit it.’ To effectuate its ob-
jective, Congress has prohibited almost all intrastate activities related to
Schedule I substances—both economic activities (manufacture, distribution,
possession with the intent to distribute) and noneconomic activities (simple
possession). That simple possession is a noneconomic activity is immaterial
to whether it can be prohibited as a necessary part of a larger regulation.
Rather, Congress’s authority to enact all of these prohibitions’ of intrastate
controlled-substance activities depends only upon whether they are appro-
priate means of achieving the legitimate end of eradicating Schedule I sub-
stances from interstate commerce.
By this measure, I think the regulation must be sustained. .. .

(1) Justice O,;CONNOR, with whom The CHIEF JUSTICE and Justice
THOMAS join as to all but Part III, dissenting.
We enforce the “outer limits” of Congress’ Commerce Clause authority
not for their own sake, but to protect historic spheres of state sovereignty
from excessive federal encroachment and thereby to maintain the distribu-
tion of power fundamental to our federalist system of government. One of
federalism’s chief virtues, of course, is that it promotes innovation by allow-
ing for the possibility that “a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic experi-
- ments without risk to the rest of the country.” New State Ice Co. v. Liebmann,
285 US. 262 (1932) (BRANDEIS, J., dissenting).
This case exemplifies the role The States’ core
of States as laboratories.
662 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

police powers have always included authority to define criminal law and to
protect the health, safety, and welfare of their citizens. Exercising those pow-
ers, California (by ballot initiative and then by legislative codification) has
come to its own conclusion about the difficult and sensitive question of
whether marijuana should be available to relieve severe pain and suffering.
Today the Court sanctions an application of the federal Controlled Sub-
stances Act that extinguishes that experiment, without any proof that the
personal Cultivation, possession, and use of marijuana for medicinal purposes,
if economic activity in the first place, has a substantial effect on interstate
commerce and is therefore an appropriate subject of federal regulation. In so
doing, the Court announces a rule that gives Congress a perverse incentive
to legislate broadly pursuant to the Commerce Clause—nestling question-
able assertions of its authority into comprehensive regulatory schemes—
rather than with precision. That rule and the result it produces in this case
are irreconcilable with our decisions in Lopez and United States v. Morrison,
529 U.S. 598 (2000). Accordingly I dissent. .. .

Justice THOMAS, dissenting.

As I explained at length in United States v. Lopez, 514 U.S. 549 (1995),
the Commerce Clause empowers Congress to regulate the buying and sell-
ing of goods and services trafficked across state lines. The Clause’s text, struc-
ture, and history all indicate that, at the time of the founding, the term
“ ‘commerce’ consisted of selling, buying, and bartering, as well as transport-
ing for these purposes.” Commerce, or trade, stood in contrast to productive
activities like manufacturing and agriculture. Throughout founding-era dic-
tionaries, Madison’s notes from the Constitutional Convention, The Federalist
Papers, and the ratification debates, the term “commerce” is consistently used
to mean trade or exchange—not all economic or gainful activity that has
some attenuated connection to trade or exchange. The term “commerce”
commonly meant trade or exchange (and shipping for these purposes) not
simply to those involved in the drafting and ratification processes, but also to
the general public.
Even the majority does not argue that respondents’ conduct is itself
“Commerce among the several States.” Monson and Raich neither buy nor
sell the marijuana that they consume. They cultivate their cannabis entirely
in the State of California—it never crosses state lines, much less as part of a
commercial transaction. Certainly no evidence from the founding suggests
that “commerce” included the mere possession of a good or some purely
personal activity that did not involve trade or exchange for value. In the early
days of the Republic, it would have been unthinkable that Congress could
prohibit the local cultivation, possession, and consumption of marijuana.
On this traditional understanding of “commerce,” the Controlled Sub-
stances Act (CSA) regulates a great deal of marijuana trafficking that is inter-
state and commercial in character. The CSA does not, however, criminalize
only the interstate buying and selling of marijuana. Instead, it bans the entire
market—intrastate or interstate, noncommercial or commercial—for mari-
juana. Respondents are correct that the CSA exceeds Congress’ commerce
power as applied to their conduct, which is purely intrastate and noncom-
mercial... .
 C | From the New Deal Crisis to the Administrative State | 663

The majority prevents States like California from devising drug policies
that they have concluded provide much-needed respite to the seriously ill. It
does so without any serious inquiry into the necessity for federal regulation
or the propriety of “displac[ing] state regulation in areas of traditional state
concern.” Our federalist system, properly understood, allows California and a
growing number of other States to decide for themselves how to safeguard
the health and welfare of their citizens. I would affirm the judgment of the
Court of Appeals. I respectfully dissent.

Gonzales v. Oregon
126 S.CT. 904 (2006)

In 1994, Oregon voters approved a ballot initiative and enacted the

Death with Dignity Act, permitting doctors to legally prescribe certain
lethal substances to assist in the death of competent terminally-ill indi-
viduals. However, in 2001 former U.S. Attorney General John Ashcroft
took the position that physician-assisted suicide violates the Controlled
Substances Act (CSA) of 1970, because assisting in suicide is not a “le-
gitimate medical purpose” that justifies the dispensing of any controlled
substance. He issued what became known as the “Ashcroft Directive,”
under which doctors distributing controlled substances to assist suicide
could have their registration under the act revoked and criminally pros-
ecuted for violating federal law. In 2002, a doctor, a pharmacist, a group
of terminally-ill patients, and Oregon challenged the directive in federal
district court. That court ruled that the directive was invalid and en-
joined its enforcement. Subsequently, a divided three-judge panel of the
US. Court of Appeals for the Ninth Circuit agreed. The court empha-
sized the issue of “states’ rights,’ observing that: “The principle that
state governments bear the primary responsibility for evaluating physi-
cian assisted suicide follows from our concept of federalism, which re-
quires that state lawmakers, not the federal government are the primary
regulators of professional [medical] conduct.” The Department of Jus-
tice appealed that decision and the Supreme Court granted review.
The appellate court’s decision was affirmed bya six to three vote.
Justice Kennedy delivered the opinion of the Court. Justice Scalia,
joined by Chief Justice Roberts, and Justice Thomas filed dissenting
opinions.

(1 Justice KENNEDY delivered the opinion of the Court.

The question before us is whether the Controlled Substances Act allows
the United States Attorney General to prohibit doctors from prescribing reg-
664 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

ulated drugs for use in physician-assisted suicide, notwithstanding a state law

permitting the procedure. As the Court has observed, “Americans are en-
gaged in an earnest and profound debate about the morality, legality, and
practicality of physician-assisted suicide.” Washington v. Glucksberg, 521 U.S.
702 (1997). The dispute before us is in part a product of this political and
moral debate, but its resolution requires an inquiry familiar to the courts: in-
terpreting a federal statute to determine whether Executive action is author-
ized by, or otherwise consistent with, the enactment. ...
We turn first to the text and structure of the CSA. Enacted in 1970 with
the main objectives of combating drug abuse and controlling the legitimate
and illegitimate traffic in controlled substances, the CSA creates a compre-
hensive, closed regulatory regime criminalizing the unauthorized manufac-
ture, distribution, dispensing, and possession of substances classified in any of
the Act’s five schedules. Gonzales v..Raich, 545 U.S. 1 (2005). The Act places
substances in one of five schedules based on their potential for abuse or de-
pendence, their accepted medical use, and their accepted safety for use under
medical supervision. Schedule I contains the most severe restrictions on ac-
cess and use, and Schedule
V the least. Congress classified a host of substances
when it enacted the CSA, but the statute permits the Attorney General to
add, remove, or reschedule substances. He may do so, however, only after
making particular findings, and on scientific and medical matters he is re-
quired to accept the findings of the Secretary of Health and Human Services
(Secretary).
The present dispute involves controlled substances listed in Schedule I,
substances generally available only pursuant to a written, nonrefillable pre-
scription by a physician. A 1971 regulation promulgated by the Attorney
General requires that every prescription for a controlled substance “be issued
for a legitimate medical purpose by an individual practitioner acting in the
usual course of his professional practice.”. . .
Executive actors often must interpret the enactments Congress has
charged them with enforcing and implementing. The parties before us are in
sharp disagreement both as to the degree of deference we must accord the
Interpretive Rule’s substantive conclusions and whether the Rule is author-
ized by the statutory text at all. Although balancing the necessary respect for
an agency's knowledge, expertise, and constitutional office with the courts’
role as interpreter of laws can be a delicate matter, familiar principles guide
us. An administrative rule may receive substantial deference if it interprets
the issuing agency’s own ambiguous regulation. Auer v. Robbins, 519 U.S. 452
(1997). An interpretation of an ambiguous statute may also receive substan-
tial deference. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837 (1984). Deference in accordance with Chevron, however, is
warranted only “when it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that au-
thority.” United States v. Mead Corp., 533 U.S. 218 (2001). Otherwise, the in-
terpretation is “entitled to respect” only to the extent it has the “power to
persuade.” Skidmore v. Swift & Co., 323 U.S. 134 (1944).
In our view Aver and the standard of deference it accords to an agency
are inapplicable here. Aver involved a disputed interpretation of the Fair La-
bor Standards Act of 1938 as applied to a class of law enforcement officers.
 C | From the New Deal Crisis to the Administrative State | 665

Under regulations promulgated by the Secretary of Labor, an exemption

from overtime pay depended, in part, on whether the employees met the
“salary basis” test. In this Court the Secretary of Labor filed an amicus brief
explaining why, in his view, the regulations gave exempt status to the officers.
We gave weight to that interpretation, holding that because the applicable
test was “a creature of the Secretary’s own regulations, his interpretation of it
is, under our jurisprudence, controlling unless plainly erroneous or inconsis-
tent with the regulation.”
In Aver, the underlying regulations gave specificity to a statutory scheme
the Secretary was charged with enforcing and reflected the considerable ex-
perience and expertise the Department of Labor had acquired over time
with respect to the complexities of the Fair Labor Standards Act. Here, on
the other hand, the underlying regulation does little more than restate the
terms of the statute itself. The language the Interpretive Rule addresses
comes from Congress, not the Attorney General, and the near-equivalence
of the statute and regulation belies the Government’s argument for Auer
deference. «.
Just as the Interpretive Rule receives no deference under Aver, neither
does it receive deference under Chevron. Ifa statute is ambiguous, judicial re-
view of administrative rulemaking often demands Chevron deference; and the
rule is judged accordingly. All would agree, we should think, that the statu-
tory phrase “legitimate medical purpose” is a generality, susceptible to more
precise definition and open to varying constructions, and thus ambiguous in
the relevant sense. Chevron deference, however, is not accorded merely be-
cause the statute is ambiguous and an administrative official is involved. To
begin with, the rule must be promulgated pursuant to authority Congress
has delegated to the official.
The Attorney General has rulemaking power to fulfill his duties under
the CSA.The specific respects in which he is authorized to make rules, how-
ever, instruct us that he is not authorized to make a rule declaring illegiti-
mate a medical standard for care and treatment of patients that is specifically
authorized under state law.
The starting point for this inquiry is, of course, the language of the del-
egation provision itself. In many cases authority is clear because the statute
gives an agency broad power to enforce all provisions of the statute. The
CSA does not grant the Attorney General this broad authority to promulgate
rules.
The CSA gives the Attorney General limited powers, to be exercised in
specific ways. His rulemaking authority under the CSA is described in two
provisions: (1) “The Attorney General is authorized to promulgate rules and
regulations and to charge reasonable fees relating to the registration and con-
trol of the manufacture, distribution, and dispensing of controlled substances
and to listed chemicals.’ and (2) “The Attorney General may promulgate
and enforce any rules, regulations, and procedures which he may deem nec-
essary and appropriate for the efficient execution of his functions under this
subchapter.” As is evident from these sections, Congress did not delegate to
the Attorney General authority to carry out or effect all provisions of the
CSA. Rather, le can promulgate rules relating only to “registration” and
“control” [of drugs] and “for the efficient execution of his functions” under
the statute. ...
666 | CONGRESS: LEGISLATIVE, TAXING, AND SPENDING POWERS

The structure of the CSA, then, conveys unwillingness to cede medical

judgments to an Executive official who lacks medical expertise. . . .
In deciding whether the CSA can be read as prohibiting physician-
assisted suicide, we look to the statute’s text and design. The statute and our
case law amply support the conclusion that Congress regulates medical prac-
tice insofar as it bars doctors from using their prescription-writing powers as
a means to engage in illicit drug dealing and trafficking as conventionally
understood. Beyond this, however, the statute manifests no intent to regulate
the practice of medicine generally. The silence is understandable given the
structure and limitations of federalism, which allow the States “ ‘great lati-
tude under their police powers to legislate as to the protection of the lives,
limbs, health, comfort, and quiet of all persons.” ” Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996). ...
In the face of the CSA’s silence on the practice of medicine generally
and its recognition of state regulation of the medical profession it is difficult
to defend the Attorney General’s declaration that the statute impliedly crim-
inalizes physician-assisted suicide. . . .

UL) Justice SCALIA, with whom CHIEF JUSTICE ROBERTS and Justice
THOMAS join, dissenting.
Contrary to the Court’s analysis, this case involves not one but three in-
dependently sufficient grounds for reversing the Ninth Circuit’s judgment.
First, the Attorney General’s interpretation of “legitimate medical purpose”
is clearly valid, given the substantial deference we must accord it under Auer
v. Robbins and his two remaining conclusions follow naturally from this inter-
pretation. Second, even if this interpretation of the regulation is entitled to
lesser deference or no deference at all, it is by far the most natural interpre-
tation of the Regulation—whose validity is not challenged here. Third, even
if that interpretation of the Regulation were incorrect, the Attorney Gen-
eral’s independent interpretation of the statutory phrase “public interest” and
his implicit interpretation of the statutory phrase “public health and safety”
are entitled to deference under Chevron U. S. A. Inc. v. Natural Resources De-
fense Council, Inc., and they are valid under Chevron. For these reasons, I re-
spectfully dissent. ...

(| Justice THOMAS, dissenting.

When Angel Raich and Diane Monson challenged the application of
the Controlled Substances Act (CSA) to their purely intrastate possession
of marijuana for medical use as authorized under California law, a majority
of this Court determined that the CSA effectively invalidated California’s
law because “the CSA is a comprehensive regulatory regime specifically de-
signed to regulate which controlled substances can be utilized for medicinal
purposes, and in what manner.” Gonzales v. Raich (2005).The majority em-
ployed unambiguous language, concluding that the “manner” in which con-
trolled substances can be utilized “for medicinal purposes” is one of the “core
activities regulated by the CSA.” And, it described the CSA as creating a
comprehensive framework for regulating the production, distribution, and
possession of . . . ‘controlled substances, ” including those substances that
“ ‘have a useful and legitimate medical purpose?” in order to “foster the
beneficial use of those medications” and “to prevent their misuse.”
 D | Taxing and Spending Powers | 667

Today the majority beats a hasty retreat from these conclusions. ... The
majority does so based on its conclusion that the CSA is only concerned
with the regulation of “medical practice insofar as it bars doctors from using
their prescription-writing powers as a means to engage in illicit drug dealing
and trafficking as conventionally understood.” In other words, in stark con-
trast to Raich’s broad conclusions about the scope of the CSA as it pertains to
the medicinal use of controlled substances, today this Court concludes that
the CSA is merely concerned with fighting “ “drug abuse’ ” and only insofar
as that abuse leads to “addiction or abnormal effects on the nervous system.”
The majority’s newfound understanding of the CSA as a statute of lim-
ited reach is all the more puzzling because it rests upon constitutional prin-
ciples that the majority of the Court rejected in Raich. Notwithstanding the
States’ “ ‘traditional police powers to define the criminal law and to protect
the health, safety, and welfare of their citizens? ” the Raich majority con-
cluded that the CSA applied to the intrastate possession of marijuana for me-
dicinal purposes authorized by California law because “Congress could have
rationally” concluded that such an application was necessary to the regula-
tion of the “larger interstate marijuana market.” Here, by contrast, the major-
ity’s restrictive interpretation of the CSA is based in no small part on “the
structure and limitations of federalism, which allow the States “great latitude
under their police powers to legislate as to the protection of the lives, limbs,
_ health, comfort, and quiet of all persons.” According to the majority, these
“background principles of our federal system . . . belie the notion that Con-
gress would use ...an obscure grant of authority to regulate areas tradition-
ally supervised by the States’ police power.” ...
I agree with limiting the applications of the CSA in a manner consistent
with the principles of federalism and our constitutional structure. Raich
(THOMAS, J., dissenting). But that is now water over the dam. The rele-
vance of such considerations was at its zenith in Raich, when we considered
whether the CSA could be applied to the intrastate possession of a con-
trolled substance consistent with the limited federal powers enumerated by
the Constitution. Such considerations have little, if any, relevance where, as
here, we are merely presented with a question of statutory interpretation,
and not the extent of constitutionally permissible federal power. . . . Accord-
ingly, I respectfully dissent.

D | Taxing and Spending Powers

Congress has broad (but not unlimited) powers to tax and spend under
Sections 8 and 9of Article 1.The first clause of Section 8 provides that
“t]he Congress shall have power to lay and collect Taxes, Duties, Im-
posts and Excises, to pay the debts and provide for the common defense
and general welfare of the United States.” Since McCulloch v. Maryland
_ (1819) (excerpted in Section A of this chapter), congressional power to
tax has been construed to be plenary and to reach virtually “every sub-
ject.”! Article 1, Section 9, though, limits Congress’s power in providing
that “[{nJo capitation, or other direct tax shall be laid, unless in propor-
668 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

tion to the census or enumeration herein before directed to be taken.”

This prohibition of “direct” taxation was interpreted as barring only
capitation and land taxes in Hylton v. United States, 3 U.S. (3 Dall.) 171
(1796), which upheld a federal tax on carriages.
A major controversy, however, erupted over Congress’s levying fed-
eral income. taxes. Congress resorted to taxing incomes to raise
revenues. during the Civil War and the Court initially rebuffed the ar-
gument that income taxes were unconstitutional direct taxes in Springer
v. United States, 102 U.S. 586 (1881). Charles Pollock, a major stock-
holder in the Farmers’ Loan and Trust Company, challenged the consti-
tutionality of congressional legislation in 1894 that imposed a tax of
2 percent on income in excess of $4,000. He sought to enjoin his bank
from paying the tax on the grounds that it amounted to direct taxation
and a denial of property rights under the due process clause.
Federal income tax was a piece of progressive legislation and at-
tacked by Pollock’s attorney, Joseph H. Choate, as ““communistic in its
purposes and tendencies, and is defended here upon principles as com-
munistic, socialistic—what should I call them—populistic as ever have
been addressed to any political assembly in the world,” Justice Howell
E. Jackson was ill with tuberculosis and absent from the bench when
the Fuller Court heard Pollock v. Farmer’s Loan and Trust Co., 157 USS.
428 (1895). Six of the eight justices who heard the case accepted
Choate’s argument that an income tax levied on land violated Article I,
Section 9. But the eight justices were equally divided over whether in-
come from personal property was a direct tax.
Because of the importance of the controversy, Choate asked
that the Court rehear the case. And six weeks later, in Pollock v. Farmer’s
Loan and Trust Co., 158 U.S. 601 (1895), a bare majority struck down
as unconstitutional the entire system of federal income tax. Giving
vent to the Court’s defense of property rights and laissez-faire capital-
ism (see Vol. 2, Ch. 3), Chief Justice Fuller announced, “Taxes on real
estate being indisputably direct taxes, taxes on the rents or income of
real estate are equally direct taxes. . .. [And] taxes on personal property,
or on the income from personal property, are likewise direct taxes.”
The four dissenters in Pollock protested the majority’s turning its
back on a century of precedents upholding Congress’s plenary power
in an attempt to block the forces of change brought by the current of
progressive politics. In Justice John Harlan’s words,

The practical effect of the decision today is to give certain kinds of

property a position of favoritism and advantage inconsistent with
the fundamental principles of our social organization, and to invest
them with power and influence that may be perilous to that-por--
 D | Taxing and Spending Powers | 669

tion of the American people upon whom rests the larger part of the
burden of the government, and who ought not to be subjected to
the dominion of aggregated wealth any more than the property of
the country should be at the mercy of the lawless.

As a result of Pollock and the Court’s defense of interests in private

property under the guise ofa “liberty of contract” (see Vol. 2, Ch. 3) be-
tween 1887 and 1937, the Court was criticized by progressives for
becoming the instrument of the rich and of corporate America. A
movement to overturn the Court’s ruling finally led to the passage and
ratification in 1913 of the Sixteenth Amendment, which provides that
“Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several
States, and without regard to any census or enumeration.”
The Court’s defense of laissez-faire capitalism and stand against
progressive legislation ultimately concluded with the “constitutional
crisis” of 1937 and the Court’s reversal of its interpretation of Con-
-gress’s power under the commerce clause and abandonment of the doc-
trine of a “liberty of contract” (see section C, in this chapter, and Vol. 2,
Ch. 3). In the 1920s and 1930s, though, the Court carried its defense of
laissez-faire capitalism over to its construction of Congress’s taxing
power and thereby sharply limited that power. This was so in spite of
the fact that since 1789 Congress had passed protective tariffs and laws
taxing activities for purposes other than primarily raising revenues. In
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 294 (1928), the Court
affirmed the constitutionality of such uses of taxation, observing that
“the existence of other motives in the selection of the subjects of taxes
can not invalidate Congressional action.” Indeed, in McCray v. United
States, 194 U.S. 27 (1904), a congressional tax on oleomargarine that
was colored to look like butter was upheld with the Court disclaiming
any power to scrutinize “the motives or purposes of Congress when
enacting legislation.”
In the Court’s confrontation with progressive legislation and the
New Deal, Congress’s power to tax for purposes other than raising rev-
enues was nevertheless sharply limited. In response to the Court’s strik-
ing down the Child Labor Act of 1916 in Hammer v. Dagenhart (1918)
(excerpted in Section B of this chapter), Congress passed the Federal
Child Labor Tax Act of 1919, imposing a 10 percent tax on the annual
profits of businesses using child labor in violation of the law’s standards
for employing child labor. When this law was attacked in Bailey v. Drexel
. Furniture Co., 259 U.S. 20 (1922), the Taft Court struck it down for im-
posing a regulatory penalty on the use of child labor instead of being a
tax per se.’
670 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

Along with the Court’s “switch in time that saved nine” in National
Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) (ex-
cerpted in Section C of this chapter) and West Coast Hotel v. Parrish, 300
USS. 379 (1937) (see Vol. 2, Ch. 3), a bare majority of the Court af-
firmed a major piece of New Deal legislation, the Social Security
Act of 1935, in Steward Machine Co. v. Davis (1937) (see excerpt below).
Notice that as in NLRB and West Coast Hotel, the Four Horsemen
—Justices Butler, McReynolds, Sutherland, and Van Devanter—
dissented from the revolution in constitutional politics that these rul-
ings signified.
The Court, though, persisted for a time in imposing its notion of
“dual federalism,” which it initially developed as a limitation on con-
gressional power over commerce (see Vol. 1, Ch. 7). United States v.
Kahriger (1953) (see excerpt below) illustrates how the doctrine of
“dual federalism” remained infused in the Court’s interpretation of the
use of Congress’s taxing power to regulate certain activities. Kahriger’s
sustaining of Congress’s power to tax the earnings of gamblers and to
require them to register was eventually overturned as an infringement
of an individual’s Fifth Amendment privilege against self-incrimination
in Marchetti v. United States, 390 U.S. 39 (1968).
Since the constitutional revolution forged in 1937, the Court has
generally upheld Congress’s broad powers to tax and spend when re-
jecting arguments, like those advanced by the four dissenters in Steward
Machine Co., that the Tenth Amendment’s reserved powers for the states
limit Congress. In Brown v. Public Agencies Opposed to Social Security En-
trapment, 477 U.S. 41 (1986), for example, the Burger Court unani-
mously upheld Congress’s amending the Social Security Act to deny
the right of states to withdraw participating state and local employees
from the social security system.
Since 1937 the Court has also consistently affirmed Congress’s
broad power to spend for the purpose of promoting the general wel-
fare. Buckley v. Valeo, 424 U.S. 1 (1976) (see Vol. 1, Ch. 8), for instance,
upheld the major provisions of the Federal Election Campaign Act of
1976 and when doing so turned aside the argument that public financ-
ing of presidential elections was contrary to the “general welfare.’ The
general welfare clause, observed the Court, is “a general grant of power,
the scope of which is quite expansive [and] for Congress to decide
which expenditures will promote the general welfare.”
South Dakota v. Dole (1987) (see excerpt below), sustained Con-
gress’s authorizing the secretary of transportation to withhold federal
highway funds from states that failed to enact laws setting the minimum
drinking age at twenty-one. Notably, dis-senting Justices Brennan and
O’Connor contended that Congress’s spending power was limited by
 D | Taxing and Spending Powers | 671

the Twenty-first Amendment, which repealed the Eighteenth Amend-

ment’s prohibition on the manufacturing and sale of liquor and re-
served the power of regulating liquor to the states.
Finally, it bears noting that the taxing power is a concurrent power,
exercised by Congress and thestates. Article I, Section 10, though, pro-
hibits the states from laying “any Imposts or Duties on Imports or
Exports, except what may be absolutely necessary for executing its in-
spection Laws.” The major limitation on states’ powers of taxation is,
nonetheless, Congress’s power over interstate commerce. Basically, states
may not adopt taxes that discriminate against interstate commerce or
that have “the practical effect” of unduly favoring states and localities.
In Davis v. Michigan Department of Treasury, 489 U.S. 803 (1989), for ex-
ample, the Rehnquist Court, with only Justice Stevens dissenting, ruled
that states may not tax federal pensions if they exempt from taxation
the pensions of retired state and local employees. In Wardair Canada, Inc.
v. Florida Department of Revenue, 477 U.S. 1 (1986), Justice Brennan sum-
marized the tests used by the Court in determining the constitutional-
ity of a state tax affecting interests in interstate commerce: “When a
state tax is challenged as violative of the dormant interstate Commerce
Clause, we have asked four questions: is the tax applied to an activity
with a substantial nexus with the taxing State; is the tax fairly appor-
tioned; does the tax discriminate against interstate commerce; is the tax
fairly related to the services provided by the State.”

Notes

1. License Tax Cases, 5. Wall. 462 (1867). See also Brushaber v. Union Pacific Rail Road,
240 US. 1 (1916).
2. Quoted in Alpheus T. Mason and William Beany, The Supreme Court in a Free Soct-
ety (Englewood Cliffs, NJ: Prentice-Hall, 1959), 131.
3. See also Head Money Cases, 112 U.S. 580 (1884); United States v, Doremus, 249 USS.
86 (1919); and Sunshine Anthracite Coal Co. v, Adkins, 310 U.S. 381 (1940).
4. See also United States v. Constantine, 296 U.S. 287 (1935).

Steward Machine Co. v. Davis

301 USS. 548, 57 S.CT. 883 (1937)

As part ofthe New Deal, Congress passed the Social Security Act of
1935, requiring employers of eight or more employees to pay a federal
excise tax on a percentage of their employees’ wages. Under the pro-
672 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

gram, the funds were collected as general revenue and deposited in the
United States Treasury. Employers who contributed to state unemploy-
ment funds could credit such payments against the federal tax, but state
unemployment compensation funds had to meet federal standards and
to be deposited with the U.S. Treasury.
Steward Machine Company paid $46.14 to the federal government
under the law, but then promptly sued Harwell Davis, an Internal Rev-
enue Service official, for a refund on the grounds that the Social Secu-
rity Act was unconstitutional. A federal district court dismissed the
complaint. After that decision was upheld by a court of appeals, Steward
Machine Company appealed to the Supreme Court, which affirmed
the ruling of the appellate court.
The Court’s decision was five to four, and the majority’s opinion
was announced by Justice Cardozo. Justices McReynolds, Sutherland,
who was joined by Justice Van Devanter, and Butler filed dissents.

Li Justice CARDOZO delivers the opinion of the Court.

The validity of the tax imposed by the Social Security Act (42 U.S.C.A.
Secs. 301-1305) on employers of eight or more is here to be determined. ...
The assault on the statute proceeds on an extended front. Its assailants
take the ground that the tax is not an excise; that it is not uniform through-
out the United States as excises are required to be; that its exceptions are so
many and arbitrary as to violate the Fifth Amendment; that its purpose was
not revenue, but an unlawful invasion of the reserved powers of the states; and
that the states in submitting to it have yielded to coercion and have aban-
doned governmental functions which they are not permitted to surrender.
The objections will be considered seriatim with such further explana-
tion as may be necessary to make their meaning clear.
First: The tax, which is described in the statute as an excise, is laid with
uniformity throughout the United States as a duty, an impost, or an excise
upon the relation of employment... .
The subject-matter of taxation open to the power of the Congress is as
comprehensive as that open to the power of the states, though the method of
apportionment may at times be different. “The Congress shall have Power to
lay and collect Taxes, Duties, Imposts and Excises.” Article 1, Sec. 8. If the tax
is a direct one, it shall be apportioned according to the census or enumera-
tion. If it is a duty, impost, or excise, it shall be uniform throughout the
United States. Together, these classes include every form of tax appropriate to
sovereignty. . . Whether the tax is to be classified as an “excise” is in truth
not of critical importance. If not that, it is an “impost.”A capitation or other
“direct” tax it certainly is not. “Although there have been, from time to time,
intimations that there might be some tax which was not a direct tax, nor in-
cluded under the words “duties, imposts, and excises? such a tax, for more
than 100 years of national existence, has as yet remained undiscovered,
notwithstanding the stress of particular circumstances has invited thorough
investigation into sources of revenue.” There is no Se from that
thovehtl in later cases, but rather a new emphasis ofit.
 D | Taxing and Spending Powers | 673

The tax being an excise, its imposition must conform to the canon of
uniformity. There has been no departure from this requirement. According to
the settled doctrine, the uniformity exacted is geographical, not intrinsic... .
Second: The excise is not invalid under the provisions of the Fifth
Amendment by force of its exemptions.
The statute does not apply, as we have seen, to employers of less than
eight. It does not apply to agricultural labor, or domestic service in a private
home or to some other classes of less importance. Petitioner contends that
the effect of these restrictions is an arbitrary discrimination vitiating the tax.
The Fifth Amendment unlike the Fourteenth has no equal protection
clause?)..
The classifications and exemptions directed by the statute now in con-
troversy have support in considerations of policy and practical convenience
that cannot be condemned as arbitrary. . . .
Third: The excise is not void as.involving the coercion of the states in
contravention of the Tenth Amendment or of restrictions implicit in our fed-
eral form of government.
The proceeds of the excise when collected are paid into the Treasury at
Washington, and thereafter are subject to appropriation like public moneys
generally. No presumption can be indulged that they will be misapplied or
wasted. Even if they were collected in the hope or expectation that some other
and collateral good would be furthered as an incident, that without more
would not make the act invalid. This indeed is hardly questioned. The case for
the petitioner is built on the contention that here an ulterior aim is wrought
into the very structure of the act, and what is even more important that
the aim is not only ulterior, but essentially unlawful. In particular, the
90 per cent credit is relied upon as supporting that conclusion. But before the
statute succumbs to an assault upon these lines, two propositions must be made
out by the assailant. There must be a showing in the first place that separated
from the credit the revenue provisions are incapable of standing by themselves.
There must be a showing in the second place that the tax and the credit in
combination are weapons of coercion, destroying or impairing the autonomy
of the states. The truth of each proposition being essential to the success of the
assault, we pass for convenience to a consideration of the second, without
pausing to inquire whether there has been a demonstration of the first.
To draw the line intelligently between duress and inducement, there is
need to remind ourselves of facts as to the problem of unemployment that
are now matters of common knowledge. ...The relevant statistics are gath-
ered in the brief of counsel for the government. Of the many available fig-
ures a few only will be mentioned. During the years 1929 to 1936, when the
country was passing through acyclical depression, the number of the un-
employed mounted to unprecedented heights. Often the average was more
than 10 million; at times a peak was attained of 16 million or more. Disaster
to the breadwinner meant disaster to dependents. Accordingly the roll of the
unemployed, itself formidable enough, was onlya partial roll of the destitute
or needy. The fact developed quickly that the states were unable to give the
requisite relief. The problem had become national in area and dimensions.
‘There was feed of help from the nation if the people were not to starve. It is
too late today for the argument to be heard with tolerance that ina crisis so
extreme the use of the moneys of the nation to relieve the unemployed and
674 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

their dependents is a use for any purpose narrower than the promotion of
the general welfare. . . .
The Social Security Act is an attempt to find a method by which all
these public agencies may work together to a common end. Every dollar of
the new taxes will continue in all likelihood to be used and needed by the na-
tion as long as states are unwilling, whether through timidity or for other mo-
tives, to do what can be done at home. At least the inference is permissible
that Congress so believed, though retaining undiminished freedom to spend
the money as it pleased. On the other hand, fulfillment of the home duty will
be lightened and encouraged by crediting the taxpayer upon his account with
the Treasury of the nation to the extent that his contributions under the laws
of the locality have simplified or diminished the problem of relief . . .
Who then is coerced through the operation of this statute? Not the tax-
payer. He pays in fulfillment of the: mandate of the local legislature. Not the
state. Even now she does not offer a suggestion that in passing the un-
employment law she was affected by duress. For all that appears, she is satis-
fied with her choice, and would be sorely disappointed if it were now to be
annulled. The difficulty with the petitioner’s contention is that it confuses
motive with coercion. “Every tax is in some measure regulatory. To some ex-
tent it interposes an economic impediment to the activity taxed as compared
with others not taxed.” Sonzinsky v. United States [300 U.S. 506 (1937)]. In
like manner every rebate from a tax when conditioned upon conduct is in
some measure a temptation. But to hold that motive or temptation is equiv-
alent to coercion is to plunge the law in endless difficulties. . . .
In ruling as we do, we leave many questions open. We do not say that a
tax is valid, when imposed by act of Congress, if it is laid upon the condition
that a state may escape its operation through the adoption of a statute un-
related in subject-matter to activities fairly within the scope of national pol-
icy and power. No such question is before us... .
The judgment is affirmed.

Justice MCREYNOLDS, dissenting.

That portion of the Social Security legislation here under consideration,
I think, exceeds the power granted to Congress. It unduly interferes with the
orderly government of the state by her own people and otherwise offends
the Federal Constitution. .. .
Forever, so far as we can see, the states are expected to function under
federal direction concerning an internal matter. By the sanction of this ad-
venture, the door is open for progressive inauguration of others of like kind
under which it can hardly be expected that the states will retain genuine in-
dependence of action. And without independent states a Federal Union as
contemplated by the Constitution becomes impossible. .. .

(| Justice SUTHERLAND, with whom Justice VAN DEVANTER joins,

dissenting.
[T]he question with which I have difficulty is whether the administra-
tive provisions of the act invade the governmental administrative powers of
the several states reserved by the Tenth Amendment. A state may enter into
contracts; but a state cannot, by contract or statute, surrender the execution,
 D | Taxing and Spending Powers | 675

or a share in the execution, of any of its governmental powers either to a sis-

ter state or to the federal government, any more than the federal government
can surrender the control of any of its governmental powers to a foreign na-
tion. The power to tax is vital and fundamental, and, in the highest degree,
governmental in character. Without it, the state could not exist. Fundamental
also, and no less important, is the governmental power to expend the mon-
eys realized from taxation, and exclusively to administer the laws in respect
of the character of the tax and the methods of laying and collecting it and
expending the proceeds. ...
The precise question, therefore, which we are required to answer by an
application of these principles is whether the congressional act contemplates
a surrender by the state to the federal government, in whole or in part, of
any state governmental power to administer its own unemployment law or
the state pay roll-tax funds which it has collected for the purposes of that
law. An affirmative answer to this question, I think, must be made.
I do not, of course, doubt the power of the state to select and utilize a
depository for the safe-keeping of its funds; but it is quite another thing to
agree with the selected depository that the funds shall be withdrawn for cer-
tain stipulated purposes, and for no other. Nor do I doubt the authority of
the federal government and a state government to co-operate to a common
end, provided each of them is authorized to reach it. But such co-operation
must be effectuated by an exercise of the powers which they severally pos-
sess, and not by an exercise, through invasion or surrender, by one of them of
the governmental power of the other..
For the foregoing reasons, I think the judgment below should be
reversed.

United States v. Kahriger

BASH IS..2.2. 73a. Ca0S 10) (1953)

Mr. Kahriger was indicted for failing to register as a gambler and to pay
an occupation tax on his earnings as a gambler as required by Congress
under the Gamblers’ Occupational Tax Act of 1951. At a hearing in a
federal district court, Kahriger moved to dismiss the charge on the
grounds that the law was unconstitutional in infringing on the states’
police powers under the Tenth Amendment and his Fifth Amendment
right against self-incrimination. The district court granted Kahriger’s
motion and the government appealed to the Supreme Court.
- The Court’s decision was six to three, and the majority’s opinion
was announced by Justice Reed. A concurring opinion was delivered
by Justice Jackson. Justices Frankfurter, Black, and Douglas dissented.

(1 Justice REED delivers the opinion of the Court.

676 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS

The issue raised by this appeal is the constitutionality of the occupational

tax provisions of the Revenue Act of 1951, which levy a tax on persons en-
gaged in the business of accepting wagers, and require such persons to regis-
ter with the Collector of Internal Revenue. The unconstitutionality of the tax
is asserted on two grounds. First, it is said that Congress, under the pretense of
exercising its power to tax has attempted to penalize illegal intrastate gambling
through the regulatory features of the Act, 26 U.S.C. (Supp.V) Sec. 3291, 26
US.C.A-Sec. 3291, and has thus infringed the police power which is reserved
to the states. Secondly, it is urged that the registration provisions of the tax vi-
olate the privilege against self-incrimination and are arbitrary and vague, con-
trary to the guarantees of the Fifth Amendment. ...
The substance of respondent’s position with respect to the Tenth
Amendment is that Congress has chosen to tax a specified business which
is not within its power to regulate. The precedents are many upholding
taxes similar to this wagering tax as a proper exercise of the federal taxing
power....
Appellee would have us say that because there is legislative history indi-
cating a congressional motive to suppress wagering, this tax is not a proper
exercise of such taxing power. In The License Cases [Thurlow v. Massachusetts,
5 How. 504 (1847)], it was admitted that the federal license “discouraged”
the activities. The intent to curtail and hinder, as well as tax, was also mani-
fest in the following cases, and in each of them the tax was upheld: Veazie
Bank v, Fenno, 8 Wall. 533 [(1869)] (tax on paper money issued by state
banks); McCray v. United States, 195 U.S. 27 [(1904)] (tax on colored oleo-
margarine); United States v. Doremus, 249 U.S. 86 [(1919)] and Nigro v. United
States, 276 U.S. 332 [(1928)] (tax on narcotics); Sonzinsky v. United States, 300
US. 506 [(1937)] (tax on firearms); United States v. Sanchez, 340 U.S. 42
[(1950)] (tax on marihuana).
It is conceded that a federal excise tax does not cease to be valid merely
because it discourages or deters the activities taxed. Nor is the tax invalid be-
cause the revenue obtained its negligible. Appellee, however, argues that the
sole purpose of the statute is to penalize only illegal gambling in the states
through the guise of a tax measure. As with the above excise taxes which we
have held to be valid, the instant tax has a regulatory effect. But regardless of
its regulatory effect, the wagering tax produces revenue. As such it surpasses
both the narcotics and firearms taxes which we have found valid.
It is axiomatic that the power of Congress to tax is extensive and some-
times falls with crushing effect on businesses deemed unessential or inimical
to the public welfare, or where, as in dealings with narcotics, the collection of
the tax also is difficult.
As is well known, the constitutional restraints on tax-
ing are few....
Where federal legislation has rested on other congressional powers, such
as the Necessary and Proper Clause or the Commerce Clause, this Court has
generally sustained the statutes, despite their effect on matters ordinarily con-
sidered state concern. When federal power to regulate is found, its exercise is
a matter for Congress. Where Congress has employed the taxing clause a
greater variation in the decisions has resulted. The division in this Court has
been more acute. Without any specific differentiation between the power to
tax and other federal powers, the indirect results from the exercise of the
power to tax have raised more doubts. . . . It is hard to understand why the
 D | Taxing and Spending Powers | 677

power to tax should raise more doubts because of indirect effects than other
federal powers. ...
Unless there are provisions, extraneous to any tax need, courts are with-
out authority to limit the exercise of the taxing power. All the provisions of
this excise are adapted to the collection of a valid tax.
Nor do we find the registration requirements of the wagering tax offen-
sive. All that is required is the filing of names, addresses, and places of busi-
ness. This is quite general in tax returns. Such data are directly and intimately
related to the collection of the tax and are “obviously supportable as in aid of
a revenue purpose.” Sonzinsky v. United States, [(1937)]. The registration pro-
visions make the tax simpler to collect.
Appellee’s second assertion is that the wagering tax is unconstitutional
because it is a denial of the privilege against self-incrimination as guaranteed
by the Fifth Amendment.
Since appellee failed to register for the wagering tax, it is difficult to see
how he can now claim the privilege even assuming that the disclosure of vi-
olations of law is called for. In United States v. Sullivan, 274 U.S. 259 [(1927)],
defendant was convicted of refusing to file an income tax return....
Assuming that respondent can raise the self-incrimination issue, that
privilege has relation only to past acts, not to future acts that may or may not
be committed. If respondent wishes to take wagers subject to excise taxes, he
must pay an occupational tax and register. Under the registration provisions
of the wagering tax, appellee is not compelled to confess to acts already
committed, he is merely informed by the statute that in order to engage in
the business of wagering in the future he must fulfill certain conditions.

South Dakota v. Dole

483 U.S. 203, 107 S.CT. 2793 (1987)

In response to widespread concern over the numbers of minors in-

volved in automobile accidents while under the influence of alcohol
and at the insistence of the administration of President Ronald Reagan,
Congress amended the Surface Transportation Assistance Act in 1984 to
encourage states to raise the minimum drinking age to twenty-one.
The secretary of transportation was authorized to withhold part of a
state’s federal highway funds for 1987 and 1988 if, by October 1986,
the state did not raise its minimum drinking age.
In South Dakota individuals nineteen years old or older could pur-
chase beer with a 3.2 percent alcohol content, and the state refused to
change its law because the state legislature deemed Congress’s action an
intrusion on the powers of the states under the Tenth and Twenty-first
Amendmenis. As a result, the state was expected to lose $4 million in
federal highway funds in 1987 and double that in 1988. The state,
678 | CONGRESS: LEGISLATIVE, [AXING, AND SPENDING POWERS

The suit
therefore, sued Elizabeth Dole, the secretary of transportation.
was dismissed by a federal district court and the state appealed the affir-
mance of that decision by a federal appellate court to the Supreme
Court. Although considered a strong supporter of the powers of the
states, Chief Justice William Rehnquist delivered the Court’s opinion
upholding Congress’s spending power, whereas dissenting Justices
WilliamBrennan and Sandra Day O’Connor agreed that Congress
here had run afoul of the Twenty-first Amendment.
The Court’s decision was seven to two, and the majority’s opinion
was announced by Chief Justice Rehnquist. Justices Brennan and
O’Connor dissented.

Chief Justice REHNQUIST delivers the opinion of the Court.

Here, Congress has acted indirectly under its spending power to encour-
age uniformity in the States’ drinking ages.As we explain below, we find this
legislative effort within constitutional bounds even if Congress may not reg-
ulate drinking ages directly.
The Constitution empowers Congress to “lay and collect Taxes, Duties,
Imposts, and Excises, to pay the Debts and provide for the common Defence
and general Welfare of the United States.” Art. I, Sec. 8, cl. 1. Incident to this
power, Congress may attach conditions on the receipt of federal funds, and
has repeatedly employed the power “to further broad policy objectives by
conditioning receipt of federal moneys upon compliance by the recipient
with federal statutory and administrative directives.” Fullilove v. Klutznick,
448 US. 448 [1980]. The breadth of this power was made clear in United
States v. Butler, 297 U.S. 1 (1936), where the Court, resolving a longstanding
debate over the scope of the Spending Clause, determined that “the power of
Congress to authorize expenditure of public moneys for public purposes is
not limited by the direct grants of legislative power found in the Constitu-
tion.” Thus, objectives not thought to be within Article I’s “enumerated leg-
islative fields,’ may nevertheless be attained through the use of the spending
power and the conditional grant of federal funds.
The spending power is of course not unlimited, but is instead subject to
several general restrictions articulated in our cases. The first of these limita-
tions is derived from the language of the Constitution itself: the exercise of
the spending power must be in pursuit of “the general welfare.” Second, we
have required that if Congress desires to condition the States’ receipt of fed-
eral funds, it “must do so unambiguously, . . . enabl[ing] the States to exercise
their choice knowingly, cognizant of the consequences of their participa-
tion.” Third, our cases have suggested (without significant elaboration) that
conditions on federal grants might be illegitimate if they are unrelated “to
the federal interest in particular national projects or programs.” Finally, we
have noted that other constitutional provisions may provide an independent
bar to the conditional grant of federal funds... .
South Dakota does not seriously claim that Sec. 158 is inconsistent with
any of the first three restrictions mentioned above. We can readily conclude
that the provision is designed to serve the general welfare, especially in light
 D | Taxing and Spending Powers | 679

of the fact that “the concept of welfare or the opposite is shaped by Con-
gress... .” Helvering v. Davis [301 U.S. 619 (1937)]. Congress found that the
differing drinking ages in the States created particular incentives for young
persons to combine their desire to drink with their ability to drive, and that
this interstate problem required a national solution. The means it chose to
address this dangerous situation were reasonably calculated to advance the
general welfare. . ..
The remaining question about the validity of Sec. 158—and the basic
point of disagreement between the parties—is whether the Twenty-first
Amendment constitutes an “independent constitutional bar” to the condi-
tional grant of federal funds. Petitioner, relying on its view that the Twenty-
first Amendment prohibits direct regulation of drinking ages by Congress,
asserts that “Congress may not use the spending power to regulate that
which it is prohibited from regulating directly under the Twenty-first
Amendment.” But our cases show that this “independent constitutional bar”
limitation on the spending power is not of the kind petitioner suggests.
United States v. Butler [297 U.S. 1 (1936)], for example, established that the
constitutional limitations on Congress when exer-cising its spending power
are less exacting than those on its authority to regulate directly.
We have also held that a perceived Tenth Amendment limitation on
congressional regulation of state affairs did not concomitantly limit the range
of conditions legitimately placed on federal grants.
Our decisions have recognized that in some circumstances the financial
inducement offered by Congress might be so coercive as to pass the point at
which “pressure turns into compulsion.” Steward Machine Co. v. Davis [301
US. 548 (1937)]. Here, however, Congress has directed only that a State de-
siring to establish a minimum drinking age lower than 21 lose arelatively
small percentage of certain federal highway funds. Petitioner contends that
the coercive nature of the program is evident from the degree of success it
has achieved. We cannot conclude however, that a conditional grant of fed-
eral money of this sort is unconstitutional simply by reason of its success in
achieving the congressional objective. .. .
Accordingly, the judgment of the Court of Appeals is
Affirmed.

(i Justice BRENNAN, dissenting.

I agree with Justice O';CONNOR that regulation of the minimum age
of purchasers of liquor falls squarely within the ambit of those powers re-
served to the State by the Twenty-first Amendment. Since States possess this
constitutional power, Congress can not condition a federal grant in a manner
that abridges this right. The Amendment, itself, strikes the proper balance be-
tween federal and state authority. I therefore dissent.

“) Justice O’CONNOR, dissenting.

The Court today upholds the National Minimum Drinking Age
Amendment, 23 U.S.C. Sec. 158 (1982 ed., Supp. II), as a valid exercise of
the Spendin® Power conferred by Article I, Sec. 8. But Sec. 158 is not a con-
dition on spending reasonably related to the expenditure of federal funds and
cannot be justified on that ground. Rather, it is an attempt to regulate the
 680 | Concress: LEGISLATIVE, TAXING, AND SPENDING POWERS ee
e
oe Nh te ee S

sale of liquor, an attempt that lies outside Congress’ power to regulate com-
merce because it falls within the ambit of Sec. 2 of the Twenty-first Amend-
ments.
When Congress appropriates money to build a highway, it is entitled to
insist that the highway be a safe one. But it is not entitled to insist as a con-
dition of the use of highway funds that the State impose or change regula-
tions in other areas of the State’s social and economic life because of an
attenuated or tangential relationship to highway use or safety. Indeed, if the
rule were otherwise, the Congress could effectively regulate almost any area
of a State’s social, political, or economic life on the theory that use of the
interstate transportation system is somehow enhanced... .
If the Spending Power is to be limited only by Congress’ notion of the
general welfare, the reality, given the vast financial resources of the Federal
Government, is that the Spending, Clause gives “power to the Congress to
tear down the barriers, to invade the states’ jurisdiction, and to become a
parliament of the whole people, subject to no restrictions save such as are
self-imposed.” United States v. Butler. This, of course, as Butler held, was not
the Framers’ plan and it is not the meaning of the Spending Clause.
Our later cases are consistent with the notion that, under the Spending
Power, the Congress may only condition grants in ways that can fairly be said
to be related to the expenditure of federal funds. For example, in Fullilove
v. Klutznick, 448 U.S. 448 (1980), the Court upheld a condition on federal
grants that 10% of the money be “set aside” for contracts with minority busi-
ness enterprises. But the Court found that the condition could be justified as
a valid regulation under the Commerce Power and Sec. 5 of the Fourteenth
Amendment... .
As discussed above, a condition that a State will raise its drinking age to
21 cannot fairly be said to be reasonably related to the expenditure of funds
for highway construction. The only possible connection, highway safety, has
nothing to do with how the funds Congress has appropriated are expended.
Rather than a condition determining how federal highway money shall be
expended, it is a regulation determining who shall be able to drink liquor. As
such it is not justified by the Spending Power.
 THE STATES AND AMERICAN
FEDERALISM

ee is a distinctive feature and integral part of American con-

stitutional politics and the administration of public affairs. Yet, in
denoting the separation of state and national powers, federalism con-
ceals complex and ambiguous connections. This is because there oc-
curred a fundamental conceptual change in the understanding of
federalism during the founding period. The Constitutional Convention
rejected the eighteenth-century notion of federalism as a confederation
or league of equal and independent sovereign states. But there still re-
mained wide-ranging disagreement over the exact relationship of the
national government to the states. In creating a new form of federal-
ism, the Constitution thus laid the basis for ongoing debates and polit-
ical. struggles over the roles and responsibilities of national and state
governments in providing social services. In addition, as Canadian po-
litical scientist Ronald L. Watts underscores: “ ‘Federalism’ is basically
not a descriptive but a normative term and refers to the advocacy of
multi-tiered government combining elements of shared-rule and re-
gional self-rule.” (For further discussion see the INCOMPARATIVE
PERSPECTIVE box in this section).
During the founding period, the meaning of federalism was less
clear and more controversial than today. The terms of constitutional
politics were fluid and ambiguous. States were spoken of as sovereign,
free, and independent, yet coordinate, coequal, and coextensive with the
national government. As one delegate opposing Maryland’s ratification
of the Constitution, Luther Martin, complained, “the language of the
States being sovereign and independent was once familiar and under-
stood” but now “strange and obscure.”
2

681
 Referring to the states as both independent and coordinate pro-
jected the appealing imagery of a union of two gravitational centers of
authority: nation and state. This “compound government of the United
States,” James Madison explained, “is without a model, and to be ex-
plained by itself, not by similitude or analogies.”* Still, it seems fair to
say the meaning of federalism was not fully grasped by its supporters or
opponents; without any such model, each side was continuing to prof-
fer its own definition during a process of political give and take.
Supporters of the Constitution shrewdly co-opted the label “Fed-
eralist” and worked an irreversible change in the meaning of federalism.
In the eighteenth century, federalism denoted a “confederal system,” a
league of formally equal and independent sovereign states, much like
the European Union today. And the Constitutional Convention in
1787 was called for the purpose of remedying the defects of (con)fed-
eralism in the nation’s first constitution. The Articles of Confederation
specified (in Article II) that “[e]ach 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 Con-
gress assembled.”
What had been associated with federalism—namely, states’ sover-
eignty—was denied during the Constitutional Convention. Even be-
fore the convention, Madison among others sought a middle ground
between the existing (con)federation of states and their complete con-
solidation into a single republic. Yet states’ sovereignty was even ex-
cluded from this middle ground. “[A] due supremacy of national
authority,’ along with room for “the local authorities wherever they
can be subordinately useful,” is what Madison wanted. In any event, a
national veto “in all cases whatsoever on the legislative acts of the States
[was] the least possible encroachment on the State jurisdictions.”*
During the convention, compromises forced acceptance of a
“mixed form” of government, combining national and federal ele-
ments.As Madison analyzed the proposed constitution in The Federalist,
No. 39, “In its foundation it is federal, not national; in the sources
from which the ordinary powers of the government are drawn, it
is partly federal and partly national; in the operation of these powers,
it is national, not federal; in the extent of them, again, it 1s federal,
not national; and, finally in the authoritative mode of introducing
amendments, it is neither wholly federal nor wholly national.” This ac-
count implicitly denies the sovereignty, although not the existence or
status, of the states. Nor could it have been otherwise. By definition
sovereignty is indivisible and absolute. Supporters and opponents of the
second constitution agreed it was “a solecism in politics for two co-
ordinate sovereignties to exist together.”
The drafters and defenders of the Constitution did not claim sov-
 The States and American Federalism | 683

ereignty for the proposed federal government, any more than did most
of those in opposition, the Anti-Federalists, claim absolute sovereignty
for the states. Sovereignty was considered to reside in the nation, in the
people of the several states.
The method of ratifying the Constitution called for by the con-
vention (in Article VII) is revealing in this regard. Under the Articles of
Confederation, amendments were to be ratified by all state legislatures.
Instead of having the Constitution submitted to state legislatures, how-
ever, the convention recommended that Congress send the document
to the states for ratification by special conventions of the people, and
that at least nine states give their approval. Congress and the thirteen
states agreed, thereby amending the Articles of Confederation and af-
firming the principle of popular sovereignty.
Ratification by special state conventions was politically strategic. It
also signified that the Constitution was not a mere treaty “among the
Governments and Independent States,’ but the expression of “the
supreme authority of the people themselves.”® This was in keeping
with the widely held view, expressed in the Declaration of Indepen-
dence, that “the good people of these colonies” acted, in some respects,
as one people. And popular, not state, sovereignty is boldly proclaimed
in the opening line of the Constitution’s Preamble, “We the People .. .
form a more Perfect Union.”
The significance of such explicit repudiation of states’ sovereignty
was not lost on some Anti-Federalists. During Virginia’s ratifying con-
vention, Patrick Henry thundered, “what right had they to say, We, the
People? . . . [W]ho authorized them to speak the language of, Vz,
the People, instead of We, the States? States are the characteristics, and the
soul of a confederation. If the States are not the agents of this com-
pact, it must be one great consolidated National Government of the
people of all the States.” But Henry’s position was on the losing side of
history. The pretense of state sovereignty had undermined the Articles
of Confederation and discredited the traditional understanding of fed-
eralism. The Constitution remedied that defect, Federalists and most
Anti-Federalists agreed, much as Abraham Lincoln later claimed the
existence of the states depended on a union older than the states
themselves.*
Most Anti-Federalists were as committed to the union as to the
states. Far from inflexible in their understanding of federalism, they re-
luctantly accepted a constitution that by earlier standards hardly em-
bodied principles of federalism. They considered themselves the “true”
Federalists in defending the states because states, smaller in size and
more accountable to the people, were deemed essential to preserving
individual liberty.
The Federal Farmer, an Anti-Federalist pamphleteer, referred to
684 | THe StaTEs AND AMERICAN FEDERALISM

those insisting on “distinct republics” connected under a “federal head”

as “pretended federalists.” Traditional federalism could not “answer
the purposes of government,” any more than complete consolidation
would prove practical. Like other “true federalists” and those “honest
federalists” among the Constitution’s supporters, he embraced a “partial
consolidation” of the states “united under an efficient federal head.”
The deep division between the Federalists and Anti-Federalists was
over republicanism and preservation of individual liberty. The debate
no longer revolved around “whether the proposed union deprived
states of the full sovereignty befitting members of a federal system, but
whether the proposed union threatened to deprive them of their inde-
pendence.’"’ Differences turned on, questions of degree: how far and in
what form the federal government’s power would extend. Federal
power was limited, but “limitations were not to be imposed by consid-
erations of state sovereignty.’'' Such considerations were ruled out by
the way in which federalism was redefined as a separation of govern-
mental power within a union of states sharing in a larger national po-
litical structure and process.
The meaning of America’s new federalism was by no means settled
with ratification of the Constitution or the Bill of Rights in 1791.
That and other important questions of constitutional politics remained
unresolved. As John Mercer anticipated toward the end of the Consti-
tutional Convention, “It is a great mistake to suppose that the paper
we are to propose will govern the United States. It is the men whom it
will bring into the government and interest in maintaining it that is
to govern them. The paper will only mark out the. mode and the
form. Men are the substance and must do the business.’ The “true
and safe construction” of the Constitution, Madison likewise allowed,
would emerge with the “uniform sanction of successive legislative
bodies; through a period of years and under the varied ascendency of
parties”
The idea of states’ sovereignty continued to inspire imaginations.
Differences within the Court provoked the first crisis over federalism in
1793. In Chisholm v. Georgia, 2 Dall. 419 (1793), Justice James Wilson, a
former delegate to the Constitutional Convention and Pennsylvania’s
ratifying convention, held that citizens of one state could sue another
state in federal courts. “As to the purposes of the union,” he emphati-
cally stated, “Georgia is not a sovereign state.” That provoked an angry
dissent from Justice James Iredell, a Southerner who had attended
North Carolina’s ratifying convention. His dissent invited the adoption
of the Eleventh Amendment, overturning Chisholm and guaranteeing
sovereign immunity for states from lawsuits brought by citizens of
other states.
Five years later, a major reassertion of state sovereignty came from
 The States and American Federalism | 685

none other than James Madison and Thomas Jefferson, during their
heated confrontation with the Federalists. In 1798, they issued the
Virginia and Kentucky Resolutions (see Ch. 1) in response to the
Alien and Sedition Acts, which aimed at silencing Jeffersonian-
Republicans. Besides contending the acts ran afoul of the First Amend-
ment, Madison and Jefferson claimed the states had the power to judge
the constitutionality of federal law. Jefferson went so far as to assert that
states could nullify federal laws they deemed unconstitutional. The
“sovereign and independent” states, in his words, “have the unquestion-
able right to judge . . . and, that a nullification [by] those sovereignties,
of all unauthorized acts done under color of that instrument is the
rightful remedy.”
The Virginia and Kentucky Resolutions were extreme in both
claiming state nullification as an attribute of state sovereignty and re-
turning to the older view of federalism. That view of federalism, to be
sure, periodically resurfaced in various parts of the country. But Madi-
son’s and Jefferson’s invocation of states’ sovereignty failed to command
support among the states. Moreover, it neither accurately reflected their
understanding of the Constitution nor accorded with their practices
once each became president. The language of the Virginia and Ken-
tucky Resolutions was that of protest marshaled in a moment of per-
sonal and political confrontation.”
Although no longer prevailing, the doctrine of states’ sovereignty
survived into the 1800s. Its revival came in the South, where it gradu-
ally evolved along with the political career of South Carolina’s John
C. Calhoun. Elected to Congress in 1810 as a fierce nationalist, Cal-
houn emerged in the 1820s as an advocate of states’ sovereignty and an
apologist for slavery. In futile efforts to preserve the South’s way of life,
he advanced the ideas of state nullification of federal law and of a
“concurrent majority,’ by which either the North or South could veto
the will of the national majority as registered in congressional legisla-
tion. Calhoun’s theory of state sovereignty survived his death in 1850
as a rationale for the Confederacy.
It took three decades for these ideas to culminate in the Civil War.
In 1832, no state followed South Carolina in nullifying a federal tariff
based on then Vice President Calhoun’s theory of state sovereignty.
President Andrew Jackson rebuffed the state’s action as inconsistent
with the union, and the state backed down. No state, again, joined
South Carolina’s 1851 call to secede in protest of the Compromise of
1850, which admitted California into the Union as a “free state.”
Southern.states continued to look for accommodation and vindi-
cation of their interests in the Supreme Court under Chief Justice
Roger B. Taney. He did not disappoint them. But his decision in Dred
Scott v. Sandford, 60 U.S. 393 (1857) (see Vol. 2, Ch. 12), spelled disaster
686 | THE STATES AND AMERICAN FEDERALISM

for the Court and the country. Taney sustained the power of southern
states by striking down Congress’s Missouri Compromise, excluding
slavery from the territories. As far as the Constitution and the federal
government were concerned, he proclaimed, blacks possessed “no
rights.” His decision triggered resistance in northern states, which in
turn underscored for Southerners that their interests could not be pre-
served within the union. Immediately following Lincoln’s inauguration
in 1861, ten slaveholding states sided with South Carolina in forming
the Confederate States of America.
The Civil War was as much over constitutional principle as eco-
nomics, slavery, and differences in northern and southern ways of life.
Secessionists frankly denied what earlier Anti-Federalists, even if reluc-
tantly, conceded; namely, state sovereignty has no place within the
framework of the Constitution. Alas, the nation’s sovereignty had to be
redeemed on the battlefield.
Defenders of states’ sovereignty were defeated but not laid to rest by
the war. During the Reconstruction period, the Supreme Court sought
to accommodate both by developing a non sequitur, the doctrine of
“dual federalism.” “The Constitution,’ as the Supreme Court observed
in Texas v. White, 7 Wall. (74 U.S.) 700 (1869), “look[ed] to an indestruc-
table Union composed of indestructable States.” Justice Samuel Miller
pushed further in The Slaughterhouse Cases, 16 Wall. 36 (1873) (see Vol. 2,
Ch. 3), advancing the idea of dual citizenship in sharply limiting the
Fourteenth Amendment’s application to the states. In The Civil Rights
Cases, 109 U.S. 3 (1883) (see Vol. 2, Ch. 12), the last major piece of Re-
construction legislation, the Civil Rights Act of 1875, was overturned.
The Supreme Court then effectively returned control of race relations
to the states by upholding the doctrine of separate but equal in Plessy v.
Ferguson, 163 U.S. 537 (1896) (see Vol. 2, Ch. 12), which upheld an 1890
Louisiana law requiring “equal but separate accommodations for the
white and colored races” in all state passenger railway cars.
When the doctrine of separate but equal was held inapplicable to
public schools in Brown v. Board of Education, 347 U.S. 483 (1954) (see
Vol. 2, Ch. 12), the Warren Court’s landmark school desegregation deci-
sion provoked massive resistance, violent protests, and widespread non-
compliance. Controversy over states’ sovereignty was rekindled, and the
discredited idea of state nullification, or interposition, revived. But in
Bush v, Orleans School Board, 364 U.S. 500 (1960), in response to states’
resistance to desegregation, the Court underscored that “[t]he conclu-
sion is clear that [state] interposition is not a constitutional doctrine.”
While the vices and virtues of the national political process for
safeguarding the interests of the states continue to be debated," it bears -
pointing out that the Constitution recognizes few “attributes of state
sovereignty’ and even fewer present insurmountable barriers to the ex-
 The States and American Federalism | 687

ercise of federal power. Article I guarantees the people of each state

representation in the House and the representation of the states in the
Senate. Article IV provides that no new state shall be created from ter-
ritory in an existing state or group of states without the states’ consent.
ArticleV guarantees equal state representation in the Senate. The Tenth
Amendment suggests other attributes, such as the power to tax and leg-
islate, but only to the extent that they are not superseded or preempted
by Congress. And the Eleventh Amendment protects states from being
sued in federal courts by citizens of other states or foreign countries.
That the Constitution omits any affirmative mention of states’ sover-
eignty does not appear fatal for its defenders, because the Constitution
limits federal powers to those specifically enumerated and does so against
the background of existing state governments. In other words, the enu-
meration of federal powers presupposed the states, whose powers are not
conferred by the Constitution. Still, the absence of any constitutional af-
firmation of states’ sovereignty carries great weight in light of the dis-
association of federalism from states’ sovereignty, and indeed the rejection
of the latter, during the adoption and ratification of the Constitution.
In addition, the Constitution expressly grants plenary powers to
the federal government and sharply limits states’ powers. The states are
prohibited, in Article I, from conducting independent foreign and
monetary policies, imposing export duties, impairing the obligations of
contract, granting titles of nobility, and passing bills of attainder or ex
post facto laws. Under Article III, they have no sovereign immunity from
suits by other states or the United States.’ Article IV further constrains
them in several ways, including limiting their powers to determine state
citizenship and to control their geographical boundaries. Most notably,
Article IV puts into the hands of the federal government, not the states,
the responsibility for guaranteeing that each state has a “Republican
Form of Government.” Finally, the supremacy clause in Article VI not
only declares the supremacy of federal over state laws but forces state
courts in certain cases to apply federal law. Support for states’ sover-
eignty thus cannot be constitutionally grounded in geographical terri-
tory or in terms of exclusive authority over its people, due to the
coexistence and supremacy of the federal government.
In creating a new form of federalism, the Constitution presumed
the existence, not the sovereignty, of the states. Indisputably, the states
have a crucial role and responsibility in the administration of social
services. Congress and the federal government depend heavily on them
in sharing the burdens of governing. Individuals find continued protec-
tion for civil liberties and civil rights in the states and state constitu-
tional law. As Justice Louis Brandeis pointed out, dissenting in New State
Ice Co. v. Liebmann, 285 U.S. 262 (1932): “It is one of the happy inci-
dents of the federal system that a single courageous state may, if its cit-
688 | Tue Srares AND AMERICAN FEDERALISM

izens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.”
This chapter examines the constitutional politics of federalism and
continuing controversies over the powers of the states and intergovern-
mental relations. Issues involving state powers to regulate commerce
and other subjects not preempted by Congress are taken up (see also
Vol. 1, Ch.-6).Then the focus is on the contemporary debate within the
Rehnquist Court over the Tenth Amendment, which recognizes the
“reserved” powers of the states. Finally, judicial federalism, the inde-
pendence and interrelation of federal and state courts, as well as
changes in the role of state supreme courts in interpreting federal and
state constitutions are discussed.

NOTES

1. Ronald Watts, Comparing Federal Systems, 2d ed. (Montreal: McGill-Queen’s Uni-

versity Press, 1999), 6.
2. Quoted in James Madison, Notes of Debates in the Federal Convention of 1787
(Athens: Ohio University Press, 1966), 217.
3. Quoted and further discussed in Rufas S. Davis, The Federal Principle (Berkeley:
University of California Press, 1978), 118.
4. James Madison to George Washington, April 16, 1787, reprinted in Philip Kurland
and Ralph Lerner, eds., The Founders’ Constitution, Vol. 1 (Chicago: University of
Chicago Press, 1987), 250.
5. Quoted and discussed in Herbert J. Storing, What the Anti-Federalists Were For
(Chicago: University of Chicago Press, 1981), 12.
6. James Madison, in The Records of the Federal Convention of 1787, Vol. 1, ed. Max
Farrand (New Haven, CT: Yale University Press, 1974), 122-123.
7. Patrick Henry, in The Complete Anti-Federalist, Vol. 5, ed. Herbert J. Storing
(Chicago: University of Chicago Press, 1981), 211.
8. See Abraham Lincoln, “Message to Congress, Special Session,” July 4, 1861, in A
Compilation of the Messages and Papers of the Presidents, 20 vols., ed. J. D. Richardson
(New York: Bureau of National Literature, 1917).
9. Federal Farmer, in The Founders’ Constitution, Vol. 1, ed. Kurland and Lerner,
258-259, 273.
10. Kurland and Lerner, The Founders’ Constitution,
Vol. 1, ed. Kurland and Lerner, 243.
11. William Murphy, The Triumph of Nationalism (Chicago: Quadrangle, 1967), 410.
See also S. Huntington, “The Founding Fathers and the Division of Powers.” in Area
and Power, ed. Authur Maas (Glencoe, IL: Free Press, LOSO ASO}
12. Quoted in Madison, Notes of Debates in the Federal Convention of 1787, 455-456.
13. Quoted and further discussed in Robert Morgan, James Madison on the Constitu-
tion and the Bill of Rights (Westport, CT: Greenwood, 1988), 196.
14. See “Virginia Resolutions of 1798,” and “Kentucky Resolutions of 1798 and -
1799,” in The Debates in the Several State Conventions on the Adoption of the Federal Con-
 The States and American Federalism | 689

stitution, Vol. 4, ed. Jonathan Elliot (New York: Burt Franklin Reprints, 1974), Ch. 1,
528-529, 540-544.
15. See Dumas Malone, Jefferson and the Ordeal of Liberty (Boston: Little, Brown,
1962)8395:
16. See and compare Jesse Choper, Judicial Review and the National Political Process
(Chicago: University of Chicago Press, 1980) with Martin H. Redish, The Constitu-
tion as Political Structure (New York: Oxford University Press, 1995).
17. See Monaco v. Mississippi, 292 U.S. 313 (1934).

SELECTED BIBLIOGRAPHY

Beer, Samuel. To Make a Nation: The Rediscovery of American Federalism. Cambridge,

MA: Harvard University Press, 1993.
Berger, Raoul. Federalism: The Founders’ Design. Norman: University of Oklahoma
Press, 1987. :
Choper, Jesse. Judicial Review and the National Political Process. Chicago: University of
Chicago Press, 1980.
Elkins, Stanley, and Mckitrick, Eric. The Age of Federalism. New York: Oxford Univer-
sity Press, 1993.
Greve, Michael S. Real Federalism: Why It Matters, How It Could Happen. Washington,
DC: American Enterprise Institute, 1999.
Kincaid, John, and G.A.Tarr, eds., Constitutional Origins, Structure, and Change in Federal
Countries. Montreal: McGill-Queens University Press, 2005.
Nicolaidis, Kalypso, and Howse, Robert, eds. The Federal Vision: Legitimacy and Levels
of Governance in the United States and the European Union. New York: Oxford Univer-
sity Press, 2002.
Noonan, John. Narrowing the Nation’s Power: The Supreme Court Sides with the States.
Berkeley: University of California Press, 2002.
Redish, Martin H. The Constitution as Political Structure. New York: Oxford University
Press, 1995.
Waltenberg, Eric, and Swinford, Bill. Litigating Federalism: The States before the Supreme
Court. Westport, CT: Greenwood Press, 1999.

Watts, Ronald L. Comparing Federal Systems. 2d ed. Montreal: McGill-Queen’s Uni-

versity Press, 1999.

= IN COMPARATIVE PERSPECTIVE

Federalism, Federations, and Confederations

In revising the Articles of Confederation in 1787, the Constitutional

Convention rejected the premise of that document and the prevailing Euro-
pean theory of sovereign state by recognizing instead that sovereignty resides
re
———
690 | THe STATES AND AMERICAN FEDERALISM

in the people and that units of government—national, state, and local—

exercise only delegated powers. Most other contemporary federal systems
have borrowed from the American model of federalism because of its suc-
cess in promoting political unification and integration, while also allowing
for power sharing in intergovernmental relations and for setting limits on
governmental authority.
The three other principal models for contemporary federalism are the
Canadian, German, and Swiss systems. Canada combines a federal system
with a parliamentary form of government that has authority to legislate on
all matters pertaining to “peace, order, and good government.’ The system
was established in 1867, in part to prevent the conflicts similar to those be-
tween the states that led to the American Civil War. In each of the ten
provinces, the lieutenant governor is appointed by the prime minister and
must approve any provincial law before it goes into effect. The legislative
powers of the provinces are thus checked and limited. However, the
provinces retain residual powers, and unlike the U.S. Supreme Court, the
Canadian judiciary has generally encouraged decentralization in recognition
of its multicultural society. As a consequence, Canadian provinces exercise
greater power and the national government is weaker than in the United
States. In addition, the special status claimed by French-speaking Quebec has
led to intergovernmental relations that alternate between periods of central-
ization and decentralization.
The Federal Republic of Germany, whose Basic Laws of 1949 became
the constitution with the reunification of East and West Germany in 1990, is
often referred to as an example of cooperative federalism. Its sixteen states,
or lander, exercise a great deal of power, far more than states do in the
United States. The central government has a president and a bicameral par-
liament composed of an upper house, the Federal Council, and a lower
house, the National Assembly, as well as an independent judiciary. The central
government has exclusive authority over foreign affairs, money, immigration,
and telecommunications. But the lander retain residual powers over all other
matters and have concurrent powers over civil and criminal law, health, and
the public welfare. Moreover, national legislation does not become law unless
approved by a majority of the Federal Council, whose members are selected
by legislatures in the lander, not by popular elections.
Switzerland established a confederation on the basis of regional govern-
ments (cantons). The cantons reflect the ethnic and linguistic differences of
their German-, French-, and Italian-speaking populations. All three languages
are officially recognized by the central government. But of the twenty-two
cantons, eighteen are unilingual, three are bilingual, and one is trilingual.
They exercise most lawmaking powers and are represented in the National
Council, a bicameral legislature, and the Council of States. In 2000, a new
federal constitution was adopted that further entrenches the triparite division
of powers at the levels of the federal government, the cantons, and the mu-
nicipalities.
Te
 A | States’ Power over Commerce and Regulation | 691

Among the countries with federal systems are these:

Argentine Republic Malaysia
Commonwealth of Australia United Mexican States
Federal Republic of Austria Islamic Republic of Pakistan
Federative Republic of Brazil Russian Federation
Canada Swiss Confederation
Federal Islamic Republic of United Arab Emirates
Comoros United States of America
Federal Republic of Germany Republic of Venezuela
Republic of India

In addition, a number of other countries have federal relations or de-

centralized arrangements within a unitary government. Those countries in-
clude Belgium, South Africa, and the United Kingdom of Great Britain and
Northern Ireland.
Finally, with the emergence of permanent multinational communities
and the dissolution of the former Soviet Union, there is a kind of revival in
the formation of confederations and confederal arrangements of sovereign
states, largely due to the forces of international economic competition and
the goal of promoting economic common markets through the elimination
of trade barriers. The European Union is a prime example, but there are
others, such as the Association of the South East Asian Nations (ASEAN).
For further reading see Kalypso Nicolaidis and Robert Howse, eds., The Federal Vision
(New York: Oxford University Press, 2002); John Kincaid and G. Alan Tarr, eds., A
Global Dialogue on Federalism (Montreal: McGill-Queen’s University Press, 2005); and
Ann L. Griffiths, ed., Handbook of Federal Countries 2005 (Montreal; McGill-Queen’s
University Press, 2005).

A States’ Power over Commerce and

Regulation

Congress's ineffective regulation of commerce, as Madison explained in

the Federalist, No. 42, was a central problem with the Articles of Con-
federation. For that reason, Article I of the Constitution specifically
empowers Congress “to regulate commerce with foreign nations, and
among the several states, and with Indian tribes.”
Congress,remained reluctant to assert its authority over commerce
until the jate nineteenth century. But in Gibbons v. Ogden, 9 Wheat. 1
(1824) (see Vol. 1, Ch. 6). Chief Justice John Marshall set forth an en-
692 | Tue STATES AND AMERICAN FEDERALISM

during principle of constitutional law. He held that Congress’s power is

plenary and does not stop at state lines, while defining commerce as all
“intercourse” that “affects more states than one.” His standard for deter-
mining the scope of congressional power was nationalist and immedi-
ately heralded for securing the freedom of interstate transportation. As
a result, tax and other barriers erected among the states were elimi-
nated, the- basis for a national “common market” was laid, and eco-
nomic growth in the country was promoted.
In Gibbons, though, Marshall also implied a distinction between
Congress's power over interstate commerce and that of the states over
intrastate commerce. “[T]he completely internal commerce of a State,”
he noted, “may be considered as reserved for the State itself’? Under
Marshall’s successor, Chief Justice Taney, the Court proved much more
sympathetic to state power over commerce. In Mayor of City of New
York v. Miln, 36 U.S. (11 Pet.) 102 (1837), for example, the Taney Court
upheld a New York law aimed at discouraging the immigration of in-
digents. The law required shipmasters entering New York’s port from
another state or country to report on their passengers and, if demanded
by the mayor, to pay bonds for foreign passengers who later went on
welfare rolls. When holding that the law was an exercise of state police
powers, akin to inspection laws and “not a regulation of commerce,”
Justice Philip Barbour explained, “We think it as competent and as nec-
essary for a State to provide precautionary measures against the moral
pestilence of paupers, vagabonds, and possibly convicts, as it is to guard
against the physical pestilence which may arise from unsound and in-
fectious articles imported, or from a ship, the crew of which may be la-
boring under an infectious disease.” But dissenting Justice Joseph Story,
who was a leading intellectual influence as a Harvard law school pro-
fessor and Chief Justice Marshall’s closest ally on the Court, countered
that the law was an unconstitutional restraint on interstate commerce
and fell “directly within the principles established in the case of Gib-
bons v. Ogden.”
The Taney Court’s interpretation in Miln was extreme and is no
longer controlling. In Edwards v. California, 314 U.S. 160 (1941), the
Court unanimously struck down California’s law making it a mis-
demeanor to knowingly bring an indigent into the state. A majority
agreed that California’s law was “an unconstitutional barrier to inter-
state commerce,” while four other justices deemed the law to violate a
fundamental right to interstate travel. The Court further repudiated
Miln in Shapiro v. Thompson, 394 U.S. 618 (1969), when holding that
states may not impose one-year residency requirements as a condition
for receiving public assistance.
Of far more lasting significance than Miln is Cooley v. The Board of
 A | States’ Power over Commerce and Regulation | 693

Wardens of the Port of Philadelphia (1852) (see excerpt below), in which

the Taney Court held that in some areas the regulation of commerce is
a shared power of national and state governments. And for the first
time the Court grappled with the issue of what standard should be
employed in drawing the line differentiating the areas of permissible
state regulation from those exclusively subject to Congress’s power un-
der the commerce clause.
The commerce clause is not, of course, self-interpreting. And there
have been four rival interpretive theories of the relationship between
the national government and the states in regulating commerce. In Gib-
bons, Marshall rejected Ogden’s argument that there is a concurrent power
over commerce, akin to the taxing power that both national and state
governments may exercise. On this theory, no area of commerce would
be exclusively reserved for Congress. Under the supremacy clause of
Article VI, federal regulation would displace that of the states, but states
could regulate in the absence of federal regulation. Marshall, though,
rejected this theory and the analogy drawn between the powers to tax
and to regulate commerce.
Justice William Johnson’s concurring opinion in Gibbons advanced
what has been called the dormant power theory. On this interpretation,
the commerce clause would bar state regulation of commerce regard-
less of whether Congress had exercised its powers over commerce.
Marshall took no position on this theory in Gibbons, but a majority
embraced it in The Passenger Cases, 7 How. 283 (1849), holding that
state taxing power is limited over interstate commerce by the “affirma-
tive grants of power to the general government.”' However, writing for
the Court in Cooley, Justice Benjamin Curtis rejected this theory.
Curtis also rejected a third interpretation, that of mutual exclusive-
ness. In Gibbons, Marshall appeared to accept this view when rejecting
the concurrent powers theory and noting that states could regulate in-
ternal commerce with inspection and health laws, for example, as well
as “everything within the territory of a State, not surrendered to [the]
general government.’
In Cooley, Curtis proposed a fourth theory, that of selective exclusive-
ness. According to this theory, Congress’s power is complete and exclu-
sive in some areas, while in others the states are free to regulate
commerce. As to the standard for distinguishing the subjects of national
versus state regulation, Curtis proposed, “Whatever subjects of this
power are in their nature national, or admit only of one uniform sys-
tem, or plan of regulation, may justly be said to be of such a nature as
to require exclusive legislation by Congress.”
As aivsult of the Court’s writing the theory of selective exclusive-
ness into the constitutional law of the commerce clause, it inevitably
694 | Tue Stares AND AMERICAN FEDERALISM

Chief Justice Roger B. Taney.A photograph (the subject’s name is misspelled on the
mat but is the correct pronunciation) taken in the 1850s. (National Portrait Gallery,
Smithsonian Institution)

had to define the categories subject to state regulation and those exclu-
sively reserved for Congress. Central to the Court’s subsequent inter-
pretation and line drawing has been whether or not states regulate
commerce in the absence of federal legislation.
In those areas where Congress has not yet legislated, the Court ba-
sically applies the standard set down in Cooley, State regulation is valid
if the activity is basically local and the Court determines there is no
need for a uniform national standard. In Bob-Lo Excursion Co. v. Michi-
gan, 333 U.S. 28 (1948), for example, Michigan’s civil rights act was up-
held as applied against an amusement park running an excursion
steamer to an island on the Canadian side of the Detroit river. Bob-Lo
Excursion Company refused to transport blacks and contended that the
state law was inapplicable because it was engaged in foreign commerce
and hence subject only to congressional legislation. The Court rejected
that claim, observing, “It is difficult to imagine what national interest or
policy, whether of securing uniformity in regulating commerce, affect-
ing relations with foreign nations or otherwise, could reasonably be-
found to be adversely affected by applying Michigan’s statute to those
facts or to outweigh her interest in doing so.”
 A | States’ Power over Commerce and Regulation | 695

When determining whether an activity subject to state regulation

is “essentially local,’ the Court considers the burden placed on inter-
state commerce byastate regulation. South Carolina Highway Department
v. Barnwell Brothers, 303 U.S. 177 (1938), upheld a state law forbidding
on state highways trucks and trailers wider than ninety inches and
weighing more than 20,000 pounds, despite its being stricter than the
laws of surrounding states. However, Southern Pacific Co. v. Arizona
(1945) (see excerpt below), overturned a regulation of the length of
trains as an undue burden on interstate commerce, touching a subject
requiring a national standard. See also Bibb v. Navajo Freight Lines, Inc.
(1959) (see excerpt below).
A related controversy involves whether state regulation aims to dis-
criminate against businesses in other states so as to erect commercial or
other barriers. In such controversies, the Court must decide whether a
state regulation is too burdensome and what kinds and levels of bur-
dens are acceptable. Maine v. Taylor (1986) (see excerpt below) is in-
structive on the Court’s analysis of this kind of controversy.
In a significant ruling that could increase the number of dormant
commerce clause cases coming to the Court, Wyoming v. Oklahoma, 502
USS. 437 (1992) (in Vol. 1, Ch. 2), extended standing to states to chal-
lenge the constitutionality of other states’ regulations under the com-
merce clause on the grounds that those regulations diminished the
state’s tax revenues.
When Congress has enacted legislation regulating interstate
commerce, challenges to state regulation require the Court to decide
whether Congress has completely occupied the field and whether states
may still enact nonconflicting legislation. Since McCulloch v. Maryland,
4 Wheat. 316 (1819) (excerpted in Ch. 6), the Court has maintained
that federal legislation preempts conflicting state regulation under the
supremacy clause of Article VI.’
Cooley’s holding that some subjects are inherently local far from
solved the problem of determining which subjects are “national” and
which are exclusively “local.” In the éarly nineteenth century, the Court
attempted to resolve this problem in several ways. In Brown v.Maryland,
25 USS. 419 (1827), the Marshall Court ruled that states could not tax
items of interstate commerce as long as they remained in their “origi-
nal package.”? And in Wilson v. Black Bird Creek Marsh Co., 27 US. 245
(1829), the Marshall Court suggested that the purpose of legislation
may be important, when ruling that a state’s authorization for a dam on
a stream deep enough to be used by boats in interstate commerce did
not violate the commerce clause.
Rather than attempting to define activities that are inherently local
or determine the purpose of state legislation, the Court now generally
employs the doctrine offederal preemption—that Congress has preempted
 696 | THe STaTEs AND AMERICAN FEDERALISM

state regulation in an area by its own legislation. Sometimes a federal

statute expressly preempts state regulation. In Shaw v. Delta Air Lines,
463 US. 85 (1983), the Court held that the federal Employment
Retirement Income Security Act (ERISA) preempted “all State laws
insofar as they . .. relate to any employee benefit plan.” In other
circumstances, though, Congress may not explicitly state that it is pre-
empting state regulation, and the Court must analyze the costs and
benefits of state regulation under the federal preemption doctrine. The
doctrine has been applied in a large number of areas. In Pennsylvania v.
Nelson (1956) (see excerpt below), Chief Justice Warren outlined the
basic considerations in applying the doctrine. Other important rulings
limiting state regulatory powers are Missouri v. Holland, 252 U.S. 416
(1920) (excerpted in Vol. 1, Ch. 3); Steward Machine Co. v. Davis, 301
US. 548 (1937) (excerpted in Vol. 1, Ch. 6); and South Dakota v, Dole,
483) U.S/203 (1987) (excerpted in Vol. 1, Ch: 6).

= CONSTITUTIONAL HISTORY

The Court’s Rulings on Federal Preemption of

State Laws in Historical Perspective

The Court in a series of recent rulings has sharply limited the federal
government's regulatory powers by limiting Congress’s power to enact legis-
lation under the Interstate Commerce Clause and Section 5 of the Four-
teenth Amendment (as discussed in Vol. 1, Ch. 6), as well as under the Tenth
and Eleventh Amendments (as discussed in the next section). However, the
Court continues to uphold federal preemption of state laws. The tables be-
low put the Court’s record into historical perspective.

RULINGS ON STATUTORY FEDERAL PREEMPTION, 192 I—2007

UPHELD STATE OR LOCAL
PREEMPTION LAWS NOT
COURT She seoyots ode Halse
Speers tee NUMBER
UPS (%) PREEMPTED (%)
pa o\Z0) Pog) PREEMPLED (70)
Taft Court (1921-1930) 2i 1 (50) 1 (50)
Hughes Court (1930-1941) 6 3 (50) 3 (50)
Stone Court (1941-1946) 6 4 (66) Z (Oo)
Vinson Court (1946-1953) 4 St(75) 1 (25)
Warren Court (1953-1969) 33 18 (55) 7 (45)
Burger Court (1969-1986) TL 36 (46) 41 (53)
Rehnquist Court (1986-2005) 106 57 (54) 49 (45)
Roberts Court (2005-_ ) 1 (100)
Total 255 123 62) 112 (47)
SS
 A | States’ Power over Commerce and Regulation | 697

SS
Source: David M. O’Brien, “The Rehnquist Court and Federal Preemption: In Search of a The-
ory,” 23 Publiu The Journal
s: of Federalism 15 (1993), and as updated by the author in consultation
and with appreciation for the database constructed by Michael Greve and Kim Hendrickson of
the American Enterprise Institute, and as updated by the author through the Court’s October
2006-2007 term.

RULINGS ON PREEMPTION IN THE ABSENCE OF A CONGRESSIONAL STATUTE,

DORMANT COMMERCE CLAUSE CASES, 1921-2007
UPHELD STATE OR LOCAL
PREEMPTION LAWS NOT
COURT
i k NUMBER (%) PREEMPTED (%)
EN 0) es /PREEMPTED (0).
Taft Court (1921-1930) 2 1 (50) 1,0)
Hughes Court (1930-1941) 1 1 (100)
Stone Court (1941-1946) 3 3 (100)
Vinson Court (1946-1953) :
Warren Court (1953-1969) 4 L225) Dil Ze)
Burger Court (1969-1986) 20 8 (40) 12 (60)
Rehnquist Court (1986-2005) 33 20 (60) 13 (40)
Roberts Court (2005- ) 1 1(100)
Total 64 Code) 31 (48)
Source: Id.

NOTES

1. See also The License Cases, 5 How. 504 (1847).

2. See also Havenstein v, Lynham, 100 U.S. 483 (1880).
3. See also Leisy v. Hardin, 135 U.S. 100 (1890). Brown v. Maryland, however, was lim-
ited in Michigan Tire Co. v. Wages, 423 U.S. 276 (1976).

SELECTED BIBLIOGRAPHY

Corwin, Edward S. The Commerce Clause versus States Rights. Princeton, NJ: Princeton
University Press, 1936.

Frankfurter, Felix. The Commerce Clause. Introduction by Wallace Mendelson.

Chicago: Quadrangle, 1964.
Goodman, Frank, ed. The Supreme Court’s Federalism: Real or Imagined? Thousand
Oaks, CA: Sage, 2001.
Zimmerman, Joseph F Congressional Preemption; Regulatory Federalism. Albany: State
University of New York, 2005.
698 | Tur STATES AND AMERICAN FEDERALISM

Cooley v. The Board of Wardens of the

Port of Philadelphia
12°Hows (53°U:S.)) 2201(0851)

In 1803, Pennsylvania passed a law requiring, with certain exceptions,

ships entering or leaving Philadelphia’s harbor to employ a pilot from
the city to navigate and provided that shipowners who failed to comply
were required to pay one-half of the pilotage fees into a pilot’s pension
fund. When two of Aaron Cooley’s ships did not use local pilots, the
Board of Wardens of the Port of Philadelphia sued in a court of com-
mon pleas, which found in their favor. The Pennsylvania Supreme
Court affirmed, and Cooley appealed to the Supreme Court, arguing
that the law was an unconstitutional tax on commerce and not a pilot
regulation, since Congress had passed in 1789 a law permitting the
states to regulate pilots.
The Court’s decision was seven to two, and the opinion was an-
nounced by Justice Curtis. A separate opinion, concurring in the deci-
sion but dissenting from the Court’s reasoning, was delivered by Justice
Daniel. Justices Wayne and McLean dissented.

“I Justice CURTIS delivers the opinion of the court.

That the power to regulate commerce includes the regulation of navi-
gation, we consider settled. And when we look to the nature of the service
performed by pilots, to the relations which that service and its compensa-
tions bear to navigation between the several States, and between the ports of
the United States, and foreign countries, we are brought to the conclusion,
that the regulation of the qualifications of pilots, of the modes and times of
offering and rendering their services, of the responsibilities which shall rest
upon them, of the powers they shall possess, of the compensation they may
demand, and of the penalties by which their rights and duties may be en-
forced, do constitute regulations of navigation, and consequently of com-
merce, within the just meaning of this clause of the Constitution. ...
It becomes necessary, therefore, to consider whether this law of Penn-
sylvania, being a regulation of commerce, is valid.
The Act of Congress of the 7th of August, 1789, sec. 4, is as follows:

“That all pilots in the bays, inlets, rivers, harbors, and ports of the
United States, shall continue to be regulated in conformity with the
existing laws of the States, respectively, wherein such pilots may be,
or with such laws as the States may respectively hereafter enact for
the purpose, until further legislative provision shall be made by
Congress.”
 A | States’ Power over Commerce and Regulation | 699

If the law of Pennsylvania, now in question, had been in existence at

the date of this Act of Congress, we might hold it to have been adopted by
Congress, and thus made a law of the United States, and so valid. Because
this Act does, in effect, give the force of an Act of Congress, to the then ex-
isting state laws on this subject, so long as they should continue unrepealed
by the State which enacted them.
But the law on which these actions are founded was not enacted till
1803. What effect, then, can be attributed to so much of the Act of 1789 as
declares that pilots shall continue to be regulated in conformity “with such
laws as the States may respectively hereafter enact for the purpose, until fur-
ther legislative provision shall be made by Congress?”
If the States were divested of the power to legislate on this subject by the
grant of the commercial power to Congress, it is plain this Act could not con-
fer upon them power thus to legislate. If the Constitution excluded the States
from making any law regulating commerce, certainly Congress cannot regrant,
or in any manner reconvey to the States that power. And yet this Act of 1789
gives its sanction only to laws enacted by the States. This necessarily implies a
constitutional power to legislate; for only a rule created by the sovereign power
of a state acting in its legislative capacity, can be deemed a law, enacted by a
state; and if the State has so limited its sovereign power that it no longer ex-
tends to a particular subject, manifestly it cannot, in any proper sense, be said to
enact laws thereon. Entertaining these views we are brought directly and un-
avoidably to the consideration of the question, whether the grant of the com-
mercial power to Congress, did per se deprive the States of all power to
regulate pilots. This question has never been decided by this court, nor, in our
Judgment, has any case depending upon all the considerations which must
govern this one, come before this court. The grant of commercial power to
Congress does not contain any terms which expressly exclude the States from
exercising an authority over its subject matter. If they are excluded it must be
because the nature of the power, thus granted to Congress, requires that a sim-
ilar authority should not exist in the States. If it were conceded on the one
side, that the nature of this power, like that to legislate for the District of Co-
lumbia, is absolutely and totally repugnant to the existence of similar power in
the States, probably no one would deny that the grant of the power to Con-
gress, as effectually and perfectly excludes the States from all future legislation
on the subject, as if express words had been used to exclude them. And on the
other hand, if it were admitted that the existence of this power in Congress,
like the power of taxation, is compatible with the existence of a similar power
in the States, then it would be in conformity with the contemporary exposi-
tion of the Constitution (Federalist, No. 32), and with the judicial construction,
given from time to time by this court, after the most deliberate consideration,
to hold that the mere grant of such a power to Congress, did not imply a pro-
hibition on the States to exercise the same power; that it is not the mere
existence of such a power, but its exercise by Congress, which may be in-
compatible with the exercise of the same power by the States, and that the
States may legislate in the absence of congressional regulations. . . .
The diversities of opinion, therefore, which have existed on this subject,
have arisen from the different views taken of the nature of this power. But
when the i:ature of a power like this is spoken of, when it is said that the na-
700 | THE STATES AND AMERICAN FEDERALISM

ture of the power requires that it should be exercised exclusively by Con-

gress, it must be intended to refer to the subjects of that power, and to say
they are of such a nature as to require exclusive legislation by Congress.
Now, the power to regulate commerce, embraces a vast field, containing not
only many, but exceedingly various subjects, quite unlike in their nature;
some imperatively demanding a single uniform rule, operating equally on
the commerce of the United States in every port; and some like the subject
now in question, as imperatively demanding that diversity, which alone can
meet the local necessities of navigation.
Either absolutely to affirm, or deny, that the nature of this power re-
quires exclusive legislation by Congress, is to lose sight of the nature of the
subjects of this power, and to assert concerning all of them, what is really
applicable but to a part. Whatever subjects of this power are in their nature
national, or admit only of one uniform system, or plan of regulation, may
justly be said to be of such a nature as to require exclusive legislation by
Congress. That this cannot be affirmed of laws for the regulation of pilots
and pilotage is plain. The Act of 1789 contains a clear and authoritative dec-
laration by the first Congress, that the nature of this subject is such, that un-
til Congress should find it necessary to exert its power, it should be left to
the legislation of the States; that it is local and not national; that it is likely to
be the best provided for, not by one system, or plan of regulations, but by as
many as the legislative discretion of the several States should deem applica-
ble to the local peculiarities of the ports within their limits.
Viewed in this light, so much of this Act of 1789 as declares that pilots
shall continue to be regulated “by such laws as the States may respectively
hereafter enact for that purpose,” instead of being held to be inoperative,
as an attempt to confer on the States a power to legislate, of which the Con-
stitution had deprived them, is allowed an appropriate and important signifi-
cation. It manifests the understanding of Congress, at the outset of the
government, that the nature of this subject is not such as to require its ex-
clusive legislation. The practice of the States, and of the national govern-
ment, has been in conformity with this declaration, from the origin of the
national government to this time; and the nature of the subject, when exam-
ined, is such as to leave no doubt of the superior fitness and propriety, not to
say the absolute necessity, of different systems of regulation, drawn from lo-
cal knowledge and experience, and conformed to local wants. How, then,
can we say, that by the mere grant of power to regulate commerce, the States
are deprived of all the power to legislate on this subject, because from the
nature of the power the legislation of Congress must be exclusive. This
would be to affirm that the nature of the power is, in any case, something
different from the nature of the subject to which, in such case, the power ex-
tends, and that the nature of the power nécessarily demands, in all cases, ex-
clusive legislation by Congress, while the nature of one of the subjects of
that power, not only does not require such exclusive legislation, but may be
best provided for by many different systems enacted by the States, in con-
formity with the circumstances of the ports within their limits. In constru-
ing an instrument designed for the formation of a government, and in
determining the extent of one of its important grants of power to legislate,
we can make no such distinction between the nature of the power and the
 A | States’ Power over Commerce and Regulation | 701

nature of the subject on which that power was intended practically to oper-
ate, nor consider the grant more extensive by affirming of the power, what is
not true of its subject now in question.
It is the opinion of a majority of the court that the mere grant to Con-
gress of the power to regulate commerce, did not deprive the States of
power to regulate pilots, and that although Congress has legislated on this
subject, its legislation manifests an intention, with a single exception, not to
regulate this subject, but to leave its regulation to the several States. To these
precise questions, which are all we are called on to decide, this opinion must
be understood to be confined. It does not extend to the question what other
subjects, under the commercial power, are within the exclusive control of
Congress, or may be regulated by the States in the absence of all congres-
sional legislation; nor to the general question how far any regulation of a
subject by Congress may be deemed to operate as an exclusion of all legisla-
tion by the States upon the same subject. We decide the precise questions be-
fore us, upon what we deem sound principles, applicable to this particular
subject in the state in which the legislation of Congress has left it. We go no
farthier-tri.
We are of opinion that this state law was enacted by virtue of a power,
residing in the State to legislate; that it is not in conflict with any law of
Congress; that it does not interfere with any system which Congress has es-
tablished by making regulations, or by intentionally leaving individuals to
their own unrestricted action; that this law is therefore valid, and the judge-
ment of the Supreme Court of Pennsylvania in each case must be affirmed.

“1 Justice McLEAN, dissenting.

It is with regret that I feel myself obliged to dissent from the opinion of
a majority of my brethren in this case.
As expressing my views on the question involved, I will copy a few sen-
tences from the opinion of Chief Justice MARSHALL in the opinion in
Gibbons v. Ogden. “It has been said,” says that illustrious judge, “that the Act of
August 7th, 1789, acknowledges a concurrent power in the States to regulate
the conduct of pilots, and hence is inferred an admission of their concurrent
right with Congress to regulate commerce with foreign nations and amongst
the States. But this inference is not, we think, justified by the fact.” ...
“The Act unquestionably manifests an intention to leave this subject en-
tirely to the States, until Congress should think proper to interpose; but the
very enactment of such a law indicates an opinion that it was necessary; that
the existing system would not be applicable to the new state of things, unless
expressly applied to it by Congress. But this section is confined to pilots
within the bays, inlets, rivers, harbors, and ports of the United States, which
are, of course, in whole or in part, also within the limits of some particular
state. The acknowledged power of a state to regulate its police, its domestic
trade, and to govern its own citizens, may enable it to legislate on this sub-
ject, to a considerable extent; and the adoption of its system by Congress,
and the application of it to the whole subject of commerce, does not seem
to the court to imply a right in the States so to apply it of their own au-
thority. But the adoption of the state system being temporary, being only
‘until further legislative provision shall be made by Congress, shows conclu-
702 | THE STATES AND AMERICAN FEDERALISM

sively, an opinion that Congress could control the whole subject, and might
adopt the system of the States or provide one of its own.”
Why did Congress pass the Act of 1789, adopting the pilot laws of the
respective States? Laws they unquestionably were, having been enacted by
the States before the adoption of the Constitution. But were they laws un-
der the Constitution? If they had been so considered by Congress, they
would not have been adopted by a special Act. There is believed to be no in-
stance in-the legislation of Congress, where a state law has been adopted,
which, before its adoption, applied to federal powers.To suppose such a case,
would be an imputation of ignorance as to federal powers, least of all
chargeable against the men who formed the Constitution and who best
understood it.
Congress adopted the pilot laws of the States, because it was well
understood, they could have had no force, as regulations of foreign com-
merce or of commerce among the States, if not so adopted. By their adop-
tion they were made Acts of Congress, and ever since they have been so
considered and enforced.
Each State regulates the commerce within its limits; which is not within
the range of federal powers. So far, and no farther could effect have been
given to the pilot laws of the States, under the Constitution. But those laws
were only adopted “until further legislative provisions shall be made by Con-
gress.
This shows that Congress claimed the whole commercial power on this
subject, by adopting the pilot laws of the States, making them Acts of Con-
gress; and also by declaring that the adoption was only until some further
legislative provision could be made by Congress.

1 Justice DANIEL, concurring in the judgment and dissenting from the

Court's reasoning.
I agree with the majority in their decision, that the judgments of the
Supreme Court of Pennsylvania in these cases should be affirmed, though I
cannot go with them in the process or argument by which their conclusion
has been reached. .. . The power delegated to Congress by the Constitution
relates properly to the terms on which commercial engagements may be
prosecuted; the character of the articles which they may embrace; the per-
mission or terms according to which they may be introduced; and do not
necessarily nor even naturally extend to the means of precaution and safety
adopted within the waters or limits of the States by the authority of the lat-
ter for the preservation of vessels and cargoes, and the lives of navigators or
passengers. These last subjects are essentially local—they must depend upon
local necessities which call them into existence, must differ according to the
degrees of that necessity. It is admitted, on all hands, that they cannot be uni-
form or even general, but must vary so as to meet the purposes to be ac-
complished. ...The true question here is, whether the power to enact pilot
laws is appropriate and necessary, or rather most appropriate and necessary to
the State or the federal governments. It being conceded that this power has
been exercised by the States from their very dawn of existence; that it can be
practically and beneficially applied by the local authorities only; it being.
conceded, as it must be, that the power to pass pilot laws, as such, has not
 A | States’ Power over Commerce and Regulation | 703

been in any express terms delegated to Congress, and does not necessarily
conflict with the right to establish commercial regulations, I am forced to
conclude that this is an original and inherent power in the States, and not
one to be merely tolerated, or held subject to the sanction of the federal
government.

Southern Pacific Co. v. Arizona

925.U S761. 0S 05. I51S (1945) 4

In 1940, Arizona’s state attorney general sued the Southern Pacific

Company for operating two interstate trains in violation of the state’s
Train Limit Law of 1912, prohibiting the operation of trains with
more than fourteen passenger or seventy freight cars. Attorneys for the
company attacked the constitutionality of the law on grounds that it
violated the commerce clause and the due process clause of the Four-
teenth Amendment. The trial court found in favor of the Southern Pa-
cific Company but the Supreme Court of Arizona reversed. Southern
Pacific then appealed to the Supreme Court.
The Court’s decision was seven to two, and the majority’s opinion
was announced by Chief Justice Stone. Justice Rutledge concurred,
and Justices Black and Douglas dissented.

(1 Chief Justice STONE delivers the opinion of the Court.

Although the commerce clause conferred on the national government
power to regulate commerce, its possession of the power does not exclude
all state power of regulation. ... [I]t has been recognized that, in the absence
of conflicting legislation by Congress, there is a residuum of power in the
state to make laws governing matters of local concern which nevertheless in
some measure affect interstate commerce or even, to some extent, regulate it.
... Thus the states may regulate matters which, because of their number and
diversity, may never be adequately dealt with by Congress. ... When the reg-
ulation of matters of local concern is local in character and effect, and its
impact on the national commerce does not seriously interfere with its oper-
ation, and the consequent incentive to deal with them nationally is slight,
such regulation has been generally held to be within state authority.
But ever since Gibbons v. Ogden, the states have not been deemed to have
authority to impede substantially the free flow of commerce from state to
state, or to regulate those phases of the national commerce which, because of
the need of national uniformity, demand that their regulation, if any, be pre-
scribed by a single authority. Whether or not this long recognized distribution
~ of power between the national and the state governments is predicated upon
the implications of the commerce clause itself, or upon the presumed in-
tention of Congress, where Congress has not spoken, the result is the same.
704 | THe STATES AND AMERICAN FEDERALISM

In the application of these principles some enactments may be found to

be plainly within and others plainly without state power. But between these
extremes lies the infinite variety of cases in which regulation of local mat-
ters may also operate as a regulation of commerce, in which reconciliation of
the conflicting claims of state and national power is to be attained only by
some appraisal and accommodation of the competing demands of the state
and national interests involved... .
For a hundred years it has been accepted constitutional doctrine that the
commerce clause, without the aid of Congressional legislation, thus affords
some protection from state legislation inimical to the national commerce,
and that in such cases, where Congress has not acted, this Court, and not the
state legislature, is under the commerce clause the final arbiter of the com-
peting demands of state and national interests. .. .
Congress has undoubted power to redefine the distribution of power
over interstate commerce. It may either permit the states to regulate the
commerce in a manner which would otherwise not be permissible, or ex-
clude state regulation even of matters of peculiarly local concern which
nevertheless affect interstate commerce... .
But in general Congress has left it to the courts to formulate the rules
thus interpreting the commerce clause in its application, doubtless because it
has appreciated the destructive consequences to the commerce of the nation
if their protection were withdrawn and has been aware that in their applica-
tion state laws will not be invalidated without the support of relevant factual
material which will “afford a sure basis” for an informed judgment. Mean-
while, Congress has accommodated its legislation, as have the states, to these
rules as an established feature of our constitutional system. There has thus
been left to the states wide scope for the regulation of matters of local state
concern, even though it in some measure affects the commerce, provided it
does not materially restrict the free flow of commerce across state lines, or
interfere with it in matters with respect to which uniformity of regulation is
of predominant national concern.
Hence the matters for ultimate determination here are the nature and
extent of the burden which the state regulation of interstate trains, adopted
as a safety measure, imposes on interstate commerce, and whether the relative
weights of the state and national interests involved are such as to make in-
applicable the rule, generally observed, that the free flow of interstate com-
merce and its freedom from local restraints in matters requiring uniformity
of regulation are interests safeguarded by the commerce clause from state in-
terference.am
The findings show that the operation of long trains, that is trains of
more than fourteen passenger and more than seventy freight cars, is standard
practice over the main lines of the railroads of the United States, and that, if
the length of trains is to be regulated at all, national uniformity in the regu-
lation adopted, such as only Congress can prescribe, is practically indispensa-
ble to the operation of an efficient and economical national railway system.
On many railroads passenger trains of more than fourteen cars and freight
trains of more than seventy cars are operated, and on some systems freight
trains are run ranging from one hundred and twenty-five to one hundred
and sixty cars in length... .
In Arizona, approximately 93% of the freight traffic and 95% of the pas-
 A | States’ Power over Commerce and Regulation | 705

senger traffic is interstate. Because of the Train Limit Law appellant is re-
quired to haul over 30% more trains in Arizona than would otherwise have
been necessary. The record shows a definite relationship between operating
costs and the length of trains, the increase in length resulting in a reduction
of operating costs per car. The additional cost of operation of trains com-
plying with the Train Limit Law in Arizona amounts for the two railroads
traversing that state to about $1,000,000 a year. The reduction in train
lengths also impedes efficient operation. More locomotives and more man-
power are required; the necessary conversion and reconversion of train
lengths at terminals and the delay caused by breaking up and remaking long
trains upon entering and leaving the state in order to comply with the law,
delays the traffic and diminishes its volume moved in a given time, especially
when traffic is heavy. ...
The unchallenged findings leave no doubt that the Arizona Train Limit
Law imposes a serious burden on the interstate commerce conducted by ap-
pellant. It materially impedes the movement of appellant’s interstate trains
through that state and interposes a substantial obstruction to the national
policy proclaimed by Congress, to promote adequate, economical and effi-
cient railway transportation service. Enforcement of the law in Arizona,
while train lengths remain unregulated or are regulated by varying standards
in other states, must inevitably result in an impairment of uniformity of ef-
ficient railroad operation because the railroads are subjected to regulation
which is not uniform in its application. ...
We think, as the trial court found, that the Arizona Train Limit Law,
viewed as a safety measure, affords at most slight and dubious advantage, if
any, over unregulated train lengths. . . .
Here we conclude that the state does go too far. Its regulation of train
lengths, admittedly obstructive to interstate train operation, and having a se-
riously adverse effect on transportation efficiency and economy, passes be-
yond what is plainly essential for safety since it does not appear that it will
lessen rather than increase the danger of accident. Its attempted regulation of
the operation of interstate trains cannot establish nation-wide control such
as 1s essential to the maintenance of an efficient transportation system, which
Congress alone can prescribe. The state interest cannot be preserved at the
expense of the national interest by an enactment which regulates interstate
train lengths without securing such control, which is a matter of national
concern. To this the interest of the state here asserted is subordinate.
Appellees especially rely on South Carolina Highway Dept. v. Barnwell
Bros. [303 U.S. 177 (1938)] as supporting the state’s authority to regulate the
length of interstate trains... .
South Carolina State Highway Dept. v. Barnwell Bros. was concerned with
the power of the state to regulate the weight and width of motor cars pass-
ing interstate over its highways, a legislative field over which the state has a
far more extensive control than over interstate railroads. In that case ... we
were at pains to point out that there are few subjects of state regulation af-
fecting interstate commerce which are so peculiarly of local concern as is
the use of the state’s highways. Unlike the railroads local highways are built,
~ owned and maintained by the state or its municipal subdivisions. The state is
responsible for their safe and economical administration. Regulations affect-
ing the safety of their use must be applied alike to intrastate and interstate
706 | THE STATES AND AMERICAN FEDERALISM

traffic. The fact that they affect alike shippers in interstate and intrastate com-
merce in great numbers, within as well as without the state, is a safeguard
against regulatory abuses. Their regulation is akin to quarantine measures,
game laws, and like local regulations of rivers, harbors, piers, and docks, with
respect to which the state has exceptional scope for the exercise of its regu-
latory power, and which, Congress not acting, have been sustained even
though they materially interfere with interstate commerce. . ..
The contrast between the present regulation and the highway safety reg-
ulations, in point of the nature of the subject of regulation and the state’s
interest in it, illustrate and emphasize the considerations which enter into a
determination of the relative weights of state and national interests where
state regulation affecting interstate commerce is attempted. Here examina-
tion of all the relevant factors makes it plain that the state interest is out-
weighed by the interest of the nation in an adequate, economical and
efficient railway transportation service, which must prevail.
Reversed.

(| Justice BLACK, dissenting.

[W]hether it is in the interest of society for the length of trains to be
governmentally regulated is a matter of public policy. Someone must fix that
policy—either the Congress, or the state, or the courts.A century and a half
of constitutional history and government admonishes this Court to leave
that choice to the elected legislative representatives of the people them-
selves, where it properly belongs both on democratic principles and the re-
quirements of efficient government.

1 Justice DOUGLAS, dissenting.

My view has been that the courts should intervene only where the state
legislation discriminated against interstate commerce or was out of harmony
with laws which Congress had enacted. It seems to me particularly appropri-
ate that that course be followed here. For Congress has given the Interstate
Commerce Commission broad powers of regulation over interstate carriers.
The Commission is the national agency which has been entrusted with the
task of promoting a safe, adequate, efficient, and economical transportation
service. It is the expert on this subject. It is in a position to police the field.
And if its powers prove inadequate for the task, Congress, which has para-
mount authority in this field, can implement them....
Whether the question arises under the Commerce Clause or the Four-
teenth Amendment, I think the legislation is entitled to a presumption of va-
lidity. If a State passed a law prohibiting the hauling of more than one
freight car at a time, we would have a situation comparable in effect to a state
law requiring all railroads within its borders to operate on narrow gauge
tracks. The question is one of degree and calls for a close appraisal of the
facts. | am not persuaded that the evidence adduced by the railroads over-
comes the presumption of validity to which this trainlimit law is entitled.
 A | States’ Power over Commerce and Regulation | 707

Bibb v. Navajo Freight Lines, Inc.

359 US. 520, 79 S.CT. 962 (1959)

Attorneys for Navajo Freight Lines, Inc., a New Mexico corporation,

sought an injunction in federal district court against the enforcement of
an Illinois law requiring all trucks and trailers to have special mud-
guards, unlike those required in other states. A federal district court
found this an undue burden on interstate commerce. Joseph Bibb, the
director of Illinois’s Department of Public Safety, appealed to the
Supreme Court.
The Court’s decision was unanimous, and the opinion was _an-
nounced by Justice Douglas. Justice Harlan concurred and was joined
by Justice Stewart.

(I) Justice DOUGLAS delivers the opinion of the Court.

We are asked in this case to hold that an Illinois statute requiring the use
of a certain type of rear fender mudguard on trucks and trailers operated on
the highways of that State conflicts with the Commerce Clause of the Con-
stitution. .. .
The power of the State to regulate the use of its highways is broad and
pervasive. We have recognized the peculiarly local nature of this subject of
safety, and have upheld state statutes applicable alike to interstate and
intrastate commerce, despite the fact that they may have an impact on inter-
state commerce. The regulation of highways “is akin to quarantine measures,
game laws, and like local regulations of rivers, harbors, piers, and docks, with
respect to which the state has exceptional scope for the exercise of its regu-
latory power, and which, Congress not acting, have been sustained even
though they materially interfere with interstate commerce.” Southern Pacific
Co. v. State of Arizona. ...
These safety measures carry a strong presumption of validity when chal-
lenged in court. If there are alternative ways of solving a problem, we do not
sit to determine which of them is best suited to achieve a valid state objec-
tive. Policy decisions are for the state legislature, absent federal entry into the
field. Unless we can conclude on the whole record that “the total effect of
the law as a safety measure in reducing accidents and casualties is so slight or
problematical as not to outweigh the national interest in keeping interstate
commerce free from interferences which seriously impede it” (Southern Pa-
cific Co. v. State of Arizona), we must uphold the statute.
The District Court found that “since it is impossible for a carrier oper-
ating in interstate commerce to determine which of its equipment will be
used in a particular area, or on a particular day, or days, carriers operating
into or through Illinois . . . will be required to equip all their trailers in ac-
’ cordance with the requirements of the Illinois Splash Guard statute.” With
two possible exceptions the mudflaps required in those States which have
mudguard regulations would not meet the standards required by the Illinois
708 | Tr STATES AND AMERICAN FEDERALISM

statute. The cost of installing the contour mudguards is $30 or more per ve-
hicle. The District Court found that the initial cost of installing those mud-
guards on all the trucks owned by the appellees ranged from $4,500 to
$45,840. There was also evidence in the record to indicate that the cost of
maintenance and replacement of these guards is substantial.
Illinois introduced evidence seeking to establish that contour mudguards
had a decided safety factor in that they prevented the throwing of debris
into the faces of drivers of passing cars and into the windshields of a fol-
lowing vehicle. But the District Court in its opinion stated that it was “con-
clusively shown that the contour mud flap possesses no advantages over the
conventional or straight mud flap previously required in [Illinois and
presently required in most of the states” and that “there is rather convincing
testimony that use of the contour flap creates hazards previously unknown
to those using the highways.”
These findings on cost and on safety are not the end of our problem... .
State control of the width and weight of motor trucks and trailers sustained
in South Carolina State Highway Dept. v. Barnwell Bros., [303 U.S. 177 (1935)],
involved nice questions of judgment concerning the need of those regula-
tions so far as the issue of safety was concerned. That case also presented the
problem whether interstate motor carriers, who were required to replace all
equipment or keep out of the State, suffered an unconstitutional restraint on
interstate commerce. The matter of safety was said to be one essentially for
the legislative judgment; and the burden of redesigning or replacing equip-
ment was said to be a proper price to exact from interstate and intrastate
motor carriers alike. ...
Cost taken into consideration with other factors might be relevant in
some cases to the issue of burden on commerce. But it has assumed no such
proportions here. If we had here only a question whether the cost of adjust-
ing an interstate operation to these new local safety regulations prescribed by
Illinois unduly burdened interstate commerce, we would have to sustain the
law under the authority of the Sproles [v. Binford, 286 U.S. 347 (1937)], Barn-
well, and Maurer [v. Hamilton, 309 U.S. 598 (1940)], cases. The same result
would obtain if we had to resolve the much discussed issues of safety pre-
sented in this case.
This case presents a different issue. The equipment in the Sproles, Barn-
well, and Maurer cases could pass muster in any State, so far as the records in
those cases reveal. We were not faced there with the question whether one
State could prescribe standards for interstate carriers that would conflict with
the standards of another State, making it necessary, say, for an interstate car-
rier to shift its cargo to differently designed vehicles once another state line
was reached. We had a related problem in. Southern Pacific Co. v. State of Ari-
zona, where the Court invalidated a statute of Arizona prescribing a maxi-
mum length of 70 cars for freight trains moving through that State... .
An order of the Arkansas Commerce Commission, already mentioned,
requires that trailers operating in that State be equipped with straight or con-
ventional mudflaps. Vehicles equipped to meet the standards of the Illinois
statute would not comply with Arkansas standards, and vice versa. Thus if a
trailer is to be operated in both States, mudguards would have to be inter-
changed, causing a significant delay in an operation where prompt move-
ment may be of the essence. It was found that from two to four hours of
 A | States’ Power over Commerce and Regulation | 709

labor are required to install or remove a contour mudguard. Moreover, the

contour guard is attached to the trailer by welding and if the trailer is con-
veying a cargo of explosives (e.g., for the United States Government) it
would be exceedingly dangerous to attempt to weld on a contour mudguard
without unloading the trailer. . . .
This in summary is the rather massive showing of burden on interstate
commerce which appellees made at the hearing... .
This is one of those cases—few in number—where local safety mea-
sures that are nondiscriminatory place an unconstitutional burden on inter-
state commerce. . . . The conflict between the Arkansas regulation and the
Illinois regulation also suggests that this regulation of mudguards is not one
of those matters “admitting of diversity of treatment, according to the spe-
cial requirements of local conditions,” to use the words of Chief Justice
HUGHES in Sproles v. Binford. A State which insists on a design out of line
with the requirements of almost all the other States may sometimes place a
great burden of delay and inconvenience on those interstate motor carriers
entering or crossing its territory. Such a new safety device—out of line with
the requirements of the other States—may be so compelling that the inno-
vating State need not be the one to give way. But the present showing—bal-
anced against the clear burden on commerce—is far too inconclusive to
make this mudguard meet that test.
We deal not with absolutes but with questions of degree. The state legis-
latures plainly have great leeway in providing safety regulations for all vehi-
cles—interstate as well as local. Our decisions so hold. Yet the heavy burden
which the Illinois mudguard law places on the interstate movement of trucks
and trailers seems to us to pass the permissible limits even for safety regulations.
Affirmed.

Maine v. Taylor
477 US. 131, 106 S.CT. 2440 (1986)

Justice Harry Blackmun discusses the facts of this case, challenging

Maine’s law prohibiting the importation of live baitfish, in his opinion
for the Court.
The Court’s decision was eight to one, and the majority’s opinion
was announced by Justice Blackmun. Justice Stevens dissented.

1 Justice BLACKMUN delivers the opinion of the Court.

_ Appellee Robert J. Taylor operates a bait business in Maine. Despite a
Maine statute prohibiting the importation of live baitfish, he arranged to
have 158,000 live golden shiners delivered to him from outside the State.
The shipment was intercepted, and a federal grand jury in the District of
* Maine indicted’Taylor for violating and conspiring to violate the Lacey Act
Amendments of 1981. Section 3(a)(2)(A) of those Amendments makes it a
federal crime “‘to import, export, transport, sell, receive, acquire, or purchase
710 | THe STATES AND AMERICAN FEDERALISM

in interstate or foreign commerce .. . any fish or wildlife taken, possessed,

transported, or sold in violation of any law or regulation of any State or in
violation of any foreign law.”
Taylor moved to dismiss the indictment on the ground that Maine’s im-
port ban unconstitutionally burdens interstate commerce and therefore may
not form the basis for a federal prosecution under the Lacey Act. . . . Maine
intervened to defend the validity of its statute, arguing that the ban legiti-
mately protects the State’s fisheries from parasites and non-native species that
might be included in shipments of live baitfish. The District Court found
the statute constitutional and denied the motion to dismiss. The Court of
Appeals for the First Circuit reversed, agreeing with Taylor that the under-
lying state statute impermissibly restricts interstate trade. ... Maine appealed... .
Maine’s statute restricts interstate trade in the most direct manner possible,
blocking all inward shipments of live baitfish at the State’s border. Still, as both
the District Court and the Court of Appeals recognized, this fact alone does
not render the law unconstitutional. The limitation imposed by the Commerce
Clause on state regulatory power “is by no means absolute,’ and “the States re-
tain authority under their general police powers to regulate matters of ‘legiti-
mate local concern} even though interstate commerce may be affected.” . . .
In determining whether a State has overstepped its role in regulating
interstate commerce, this Court has distinguished between state statutes that
burden interstate transactions only incidentally, and those that affirmatively
discriminate against such transactions. While statutes in the first group violate
the Commerce Clause only if the burdens they impose on interstate trade
are “clearly excessive in relation to the putative local benefits” statutes in the
second group are subject to more demanding scrutiny. The Court explained
in Hughes v. Oklahoma, 441 U.S. 322 (1979), that once a state law is shown to
discriminate against interstate commerce “either on its face or in practical ef-
fect,’ the burden falls on the State to demonstrate both that the statute
“serves a legitimate local purpose,” and that this purpose could not be served
as well by available nondiscriminatory means... .
The District Court and the Court of Appeals both reasoned correctly
that, since Maine’s import ban discriminates on its face against interstate
trade, it should be subject to the strict requirements of Hughes v. Oklahoma,
notwithstanding Maine’s argument that those requirements were waived by
the Lacey Act Amendments of 1981. It is well established that Congress may
authorize the States to engage in regulation that the Commerce Clause
would otherwise forbid. But because of the important role the Commerce
Clause plays in protecting the free flow of interstate trade, this Court has ex-
empted state statutes from the implied limitations of the Clause only when
the congressional direction to do so has been “‘unmistakably clear.’ . . .
Maine’s ban on the importation of live baitfish thus is constitutional
only if it satisfies the requirements ordinarily applied under Hughes v. Okla-
homa to local regulation that discriminates against interstate trade: the statute
must serve a legitimate local purpose, and the purpose must be one that can-
not be served as well by available nondiscriminatory means.
The District Court found after an evidentiary hearing that both parts of
the Hughes test were satisfied, but the Court of Appeals disagreed. We con-
clude that the Court of Appeals erred in setting aside the findings of the
District Court. ...
Nor do we think that much doubt is cast on the legitimacy of Maine’s
 A | States’ Power over Commerce and Regulation | 7X1
ee ee ert Ie
purposes by what the Court of Appeals took to be signs of protectionist in-
tent. Shielding in-state industries from out-of-state competition is almost
never a legitimate local purpose, and state laws that amount to “simple eco-
nomic protectionism” consequently have been subject to a “virtually per se
rule of invalidity.’ ...
The Commerce Clause significantly limits the ability of States and lo-
calities to regulate or otherwise burden the flow of interstate commerce, but
it does not elevate free trade above all other values. As long as a State does
not needlessly obstruct interstate trade or attempt to “place itself in a posi-
tion of economic isolation,” Baldwin v. G.A.F Seelig, Inc., 294 U.S. 511
(1935), it retains broad regulatory authority to protect the health and safety
of its citizens and the integrity of its natural resources The
. evidence in this
case amply supports the District Court’s findings that Maine’s ban on the
importation of live baitfish serves legitimate local purposes that could not
adequately be served by available nondiscriminatory alternatives. This is not a
case of arbitrary discrimination agaiiist interstate commerce; the record sug-
gests that Maine has legitimate reasons, “apart from their origin, to treat
[out-of-state baitfish] differently,” Philadelphia v. New Jersey, 437 U.S. [617
(1978)]. The judgment of the Court of Appeals setting aside appellee’s con-
viction is therefore reversed.

Justice STEVENS, dissenting.

There is something fishy about this case. Maine is the only State in the
Union that blatantly discriminates against out-of-state baitfish by flatly pro-
hibiting their importation. Although golden shiners are already present and
thriving in Maine (and, perhaps not coincidentally, the subject of a flourish-
ing domestic industry), Maine excludes golden shiners grown and harvested
(and, perhaps not coincidentally sold) in other States. This kind of stark dis-
crimination against out-of-state articles of commerce requires rigorous justi-
fication by the discriminating State. . . .
This is not to derogate the State’s interest in ecological purity. But the
invocation of environmental protection or public health has never been
thought to confer some kind of special dispensation from the general prin-
ciple of nondiscrimination in interstate commerce... .
If Maine wishes to rely on its interest in ecological preservation, it must
show that interest, and the infeasibility of other alternatives, with far greater
specificity. Otherwise, it must further that asserted interest in a manner far
less offensive to the notions of comity and cooperation that underlie the
Commerce Clause. .. .

Pennsylvania v. Nelson
350 US. 497, 76 S.Cr. 477 (1956)

Steve Nelson, a member of the Communist Party, was convicted in a

state trial court of violating Pennsylvania’s Sedition Act, making the ad-
vocacy of the overthrow of the government a crime. He was sentenced
to twenty years of imprisonment, fined $10,000, and assigned the costs
712 | THe STATES AND AMERICAN FEDERALISM

of his prosecution in the sum of $13,000. On appeal, the Pennsylvania

State Supreme Court overturned Nelson’s conviction after concluding
that the state law was superseded by federal legislation, the Smith Act of
1940. The Commonwealth of Pennsylvania appealed that ruling to the
Supreme Court of the United States.
The Court’s decision was six to three, and the majority’s opinion
was announced by Chief Justice Warren. Justice Reed dissented and
was joined by Justices Burton and Minton.

Chief Justice WARREN delivers the opinion of the Court.

It should be said at the outset that the decision in this case does not af-
fect the right of States to enforce their sedition laws at times when the Fed-
eral Government has not occupied the field and is not protecting the entire
country from seditious conduct. The distinction between the two situations
was clearly recognized by the court below. Nor does it limit the jurisdiction
of the States where the Constitution and Congress have specifically given
them concurrent jurisdiction, as was done under the Eighteenth Amend-
ment and the Volstead Act. ... Neither does it limit the right of the State to
protect itself at any time against sabotage or attempted violence of all kinds.
Nor does it prevent the State from prosecuting where the same act consti-
tutes both a federal offense and a state offense under the police power. ...
Where, as in the instant case, Congress has not stated specifically
whether a federal statute has occupied a field in which the States are other-
wise free to legislate, different criteria have furnished touchstones for deci-
sion. Thus,

-“Tt}his Court, in considering the validity of state laws in the light of

... federal laws touching the same subject, has made use of the fol-
lowing expressions: conflicting; contrary to; occupying the field; re-
pugnance; difference; irreconcilability; inconsistency; violation;
curtailment; and interference. But none of these expressions pro-
vides an infallible constitutional test or an exclusive constitutional
yardstick. In the final analysis, there can be no one crystal clear dis-
tinctly marked formula.” Hines v. Davidowitz, 312 U.S. 52 [(1941)].

In this case, we think that each of several tests of supersession is met.

First,“[t]he scheme of federal regulation [is] so pervasive as to make rea-
sonable the inference that Congress left no room for the States to supple-
ment it.” Rice v. Santa Fe Elevator Corp. [331 U.S. 218 (1947)]. The Congress
determined in 1940 that it was necessary for it to re-enter the field of anti-
subversive legislation, which had been abandoned by it in 1921. In that year,
it enacted the Smith Act which proscribes advocacy of the overthrow of any
government—federal, state or local—by force and violence and organization
of and knowing membership in a group which so advocates. Conspiracy to
commit any of these acts is punishable under the general criminal conspiracy
provisions in 18 U.S.C. Sec. 371, 18 ULS. C.A. Sec. 371.The Internal Security
Act of 1950 is aimed more directly at Communist organizations. It distin-
guishes between “Communist-action organizations” and “Communist-front
organizations,” requiring such organizations to register and to file annual re-
 A | States’ Power over Commerce and Regulation | 713
a
ports with the Attorney General giving complete details as to their officers
and funds. Members of Communist-action organizations who have not been
registered by their organization must register as individuals. Failure to regis-
ter in accordance with the requirements of Sections 786-787 is punishable
by a fine of not more than $10,000 for an offending organization and by a
fine of not more than $10,000 or imprisonment for not more than five years
or both for an individual offender—each day of failure to register constitut-
ing a separate offense. And the Act imposes certain sanctions upon both “ac-
tion” and “front” organizations and their membersThe . Communist Control
Act of 1954 declares “that the Communist Party of the United States, al-
though purportedly a political party, is in fact an instrumentality of a con-
spiracy to overthrow the Government of the United States” and that “its role
as the agency of a hostile foreign power renders its existence a clear present
and continuing danger to the security of the United States.” It also contains
a legislative finding that the Communist Party is a “ ‘communist-action’ or-
ganization” within the meaning of the Internal Security Act of 1950 and
provides that “knowing” members of the Communist Party are “subject to
all the provisions and penalties” of that Act. It furthermore sets up a new
classification of ““Communist-infiltrated organizations” and provides for the
imposition of sanctions against them.
We examine these Acts only to determine the congressional plan. Look-
ing to all of them in the aggregate, the conclusion is inescapable that Con-
gress has intended to occupy the field of sedition. Taken as a whole, they
evince a congressional plan which makes it reasonable to determine that no
room has been left for the States to supplement it. Therefore, a state sedition
statute is superseded regardless of whether it purports to supplement the
federal law. ...
Second, the federal statutes “‘touch a field in which the federal interest is
so dominant that the federal system [must] be assumed to preclude enforce-
ment of state laws on the same subject.” Rice v. Santa Fe Elevator Corp. Con-
gress has devised an all-embracing program for resistance to the various forms
of totalitarian aggression. Our external defenses have been strengthened, and
a plan to protect against internal subversion has been made by it. It has appro-
priated vast sums, not only for our own protection, but also to strengthen
freedom throughout the world. It has charged the Federal Bureau of Investi-
gation and the Central Intelligence Agency with responsibility for intelligence
concerning Communist seditious activities against our Government, and has
denominated such activities as part of a world conspiracy. It accordingly pro-
scribed sedition against all government in the nation—national, state and
local. Congress declared that these steps were taken “to provide for the com-
mon defense, to preserve the sovereignty of the United States as an inde-
pendent nation, and to guarantee to each State a republican form of
government... .’ Congress having thus treated seditious conduct as a matter
of vital national concern, it is in no sense a local enforcement problem. ...
Third, enforcement of state sedition acts presents a serious danger of
conflict with the administration of the federal program. Since 1939, in order
to avoid a hampering of uniform enforcement of its program by sporadic
‘local proseéutions, the Federal Government has urged local authorities not
to intervene in such matters, but to turn over to the federal authorities im-
mediately and unevaluated all information concerning subversive activities. . . .
In his brief, the Solicitor General states that forty-two States plus Alaska
714 | Tue STATES AND AMERICAN FEDERALISM

and Hawaii have statutes which in some form prohibit advocacy of the vio-
lent overthrow of established government. These statutes are entitled anti-
sedition statutes, criminal anarchy laws, criminal syndicalist laws, etc.
Although all of them are primarily directed against the overthrow of the
United States Government, they are in no sense uniform. And our attention
has not been called to any case where the prosecution has been successfully
directed against an attempt to destroy state or local government. Some of
these Acts are studiously drawn and purport to protect fundamental rights by
appropriate definitions, standards of proof and orderly procedures in keeping
with the avowed congressional purpose “to protect freedom from those who
would destroy it, without infringing upon the freedom of all our people.’
Others are vague and are almost wholly without such safeguards. Some even
purport to punish mere membership in subversive organizations which the
federal statutes do not punish where federal registration requirements have
been fulfilled.
When we were confronted with a like situation in the field of labor-
management relations, Justice JACKSON wrote:

“A multiplicity of tribunals and a diversity of procedures are quite

as apt to produce incompatible or conflicting adjudications as are
different rules of substantive law.”

Should the States be permitted to exercise a concurrent jurisdiction in this

area, federal enforcement would encounter not only the difficulties men-
tioned by Justice JACKSON, but the added conflict engendered by different
criteria of substantive offenses.
Since we find that Congress has occupied the field to the exclusion of
parallel state legislation, that the dominant interest of the Federal Govern-
ment precludes state intervention, and that administration of state Acts
would conflict with the operation of the federal plan, we are convinced that
the decision of the Supreme Court of Pennsylvania is unassailable. . . .
The judgment of the Supreme Court of Pennsylvania is affirmed.

=# THE DEVELOPMENT OF LAW

Other Rulings on State Regulation of Commerce in

the Absence of Federal Legislation

CASE RULING

Dean Milk Company v. City of — Invalidated an ordinance prohibiting the

Madison, 340 U.S. 349 (1956) © sale of milk in the city of Madison, Wis-
consin, unless it was bottled at an ap-
proved plant, for erecting an economic barrier against the sale of milk
produced in Illinois.
 A | States’ Power over Commerce and Regulation | 715

SS

CASE RULING te ee ee

Head v. New Mexico Board of Upheld a state law forbidding the ad-
Examiners, 374 U.S. 424 vertising of the price of eyeglasses and
(1963) rejected the claim of an out-of-state op-
tometrist that the law burdened interstate
commerce.
Colorado Anti-Discrimination Upheld a state antidiscrimination law as
Commission, v. Continental applied to Continental Airlines, an inter-
Airlines, 372 U.S. 714 (1963) state Carrier, as posing no undue burden.
Great Atlantic & Pacific Tea Held that Mississippi may not bar sales of
Co. v. Cottrell, 424 U.S. 366 milk produced in Louisiana that met its
(1976) health standards simply because Louisiana
refused to sign a reciprocity agreement.
Hunt v. Washington State Apple Struck down North Carolina’s labeling
Advertising Commission, 432 requirements for apples as an undue bur-
US. 305 (1977) den on and discrimination against Wash-
ington state apple growers.
City of Philadelphia v. New Jer- Struck down New Jersey’s ban on the
sey, 437 U.S. 617 (1978) disposal of out-of-state garbage as an un-
due burden on interstate commerce.
Exxon Corporation v. Governor Upheld a state prohibition against pro-
of Maryland, 437 U.S. 117 ducers and refiners of petroleum products
(1978) from operating service stations in the
state.
Hughes v. Oklahoma, 441 U.S. Struck down a law forbidding the ship-
322 (1979) ping of minnows for out-of-state sales.
Raymond Motor Transportation Invalidated Wisconsin’s and Jowa’s bans
v. Rice and Kassell v. Consoli- on the operation on state highways of
dated Freightways Corporation, sixty-five-foot double trucks as burdens
450 U.S. 662 (1981) on interstate commerce.
Minnesota v. Clover Leaf Upheld a conservation law “banning the
Creamery Co., 449 U.S. 459 retail sale of milk in plastic nonreturnable,
(1981) nonrefillable containers, but permitting
such sale in other nonreturnable, non-
refillable containers, such as paperboard milk cartons” as an “incidential bur-
den imposed on commerce.”
New England Power Co. v. New Held that states may not forbid compa-
Hampshire, 455 U.S. 331 nies from selling power to other states
P1982) even though produced by utilities in the
state.
716 | THE STATES AND AMERICAN FEDERALISM

ee ee ea eae ne

GASE RULING

Sporhase v. Nebraska, 458 U.S. | Upheld a Nebraska law requiring permits

941 (1982) for the shipment and sale of ground wa-
ter insofar as permits were issued on
findings that the shipment and sale were
(1) reasonable, (2) not contrary to the conservation of water, and (3) not
detrimental to the public welfare, but held that the state could not require a
reciprocity agreement with the state to which the water was shipped and sold.

Hartigan v. General Electric Let stand lower court rulings that states
Company and Don’t Waste may not ban out-of-state nuclear waste
Washington Legal Defense Foun- from being transported and stored within
dation v. Washington, 461 U.S. their borders.
913 (1983)

White v. Massachusetts Council, Upheld a restriction on public works

460 U.S. 204 (1983) contracts to companies agreeing to use
Boston workers in at least half of their
jobs.

South-Central Timber Develop- | Congress authorized Alaska to require

ment, Inc. v. Wunnicke, 467 that timber cut on federal land in the
US. 82 (1984) state be processed within the state prior
to export, but failed to similarly regulate
timber on state land. Alaska’s requirement that timber cut on state land be
processed within the state, nevertheless, has an undue burden on interstate
commerce in affecting out-of-state processing markets.

Brown-Forman Distillers Corp. v. Held that states may not force an out-
New York Liquor Authority, 476 of-state merchant to seek regulatory ap-
U.S. 573)(1986) proval in one state before conducting
business in another.

Goldberg v. Sweet, 488 U.S.980 A 5 percent state tax on all telephone

(1988) calls, including interstate calls, does not
violate the commerce clause.

Cotton Petroleum v. New Mexico, States are not specifically preempted by

490 U.S. 163 (1989) Congress from taxing oil and gas taken
from Indian reservations.

Healy v. Beer Institute, Inc.,.491 Struck down as an undue burden on

USS. 324 (1989) commerce Connecticut’s statute requir-
ing out-of-state shippers of beer to affirm
that their prices for products sold in state are not higher than the prices of
those products sold out of state.
SS a a a a
 A | States’ Power over Commerce and Regulation | 717

SS

CASE RULING

Trinova Corporation v, Michi- Upheld Michigan’s “single business tax,”

gan Department of Treasury, 498 a value-added tax (VAT), levied against a
U.S. 358 (1991) multistate business. With Justice Souter
not participating, Justice Kennedy held
for the majority that Michigan’s tax did not discriminate against out-of-state
business or run afoul of either the commerce clause or the due process
clause. State taxes, when challenged by multistate businesses for violating the
commerce clause, are permissible, observed Justice Kennedy, so long as they
meet a four-pronged text: “the tax is applied to an activity with a substantial
nexus with the taxing State, is fairly apportioned, does not discriminate
against interstate commerce, and is fairly related to the services provided by
the State.” Complete Auto Tiansit, Inc. v. Brady, 430 U.S 274 (1977). Justice
Scalia concurred, while Justice Stevens, joined by Justice Blackmun, dissented
on the grounds that due process principles were violated by the state’s value-
added taxes.

Wyoming v. Oklahoma, To promote local jobs and to increase tax

502 U.S. 437 (1992) revenues, Oklahoma in 1986 enacted a
law requiring its public utilities to pur-
chase a certain percentage of Oklahoma-mined coal. As a result, its public
utilities purchased less Wyoming-mined coal, and Wyoming lost revenues that
it would have received from severance taxes on coal that would have other-
wise been sold to Oklahoma’s public utilities. Writing for the Court, Justice
White struck down Oklahoma’s statute as violating the commerce clause,
which “prohibits economic protectionism—that is, regulatory measures de-
signed to benefit in-state economic interests by burdening out-of-state com-
petitors.” In a dissenting opinion, Justice Scalia, joined by Chief Justice
Rehnquist and Justice Thomas, argued that Wyoming did not have standing
to. bring the suit and objected to the majority’s finding that the state’s loss of
revenue was within the “zone of interests” covered by the commerce clause.

Chemical Waste Management v. _ States may not impose a fee on hazardous

Hunt, 504 U.S. 334 (1992) waste generated in another state and
dumped at a commercial facility in its
jurisdiction, while not imposing the same fee on waste generated and
dumped within its borders. The Alabama State Supreme Court held that al-
though the fee posed a burden on interstate commerce, the fee was permis-
sible because it aimed at protecting health and safety and not economic
protectionism for in-state businesses. But by an eight-to-one vote the Court
reversed on the basis of its prior ruling in Philadelphia v. New Jersey, 437 USS.
617 (1978), thatstate prohibitions of solid waste imported from other states
amount to economic protectionism in violation of the commerce clause.
Chief Justice Rehnquist dissented.
 718 | THe Stares AND AMERICAN FEDERALISM

SSE ET TE TT

CASE RULING

For Gratiol Sanitary Landfill v. Held that a county’s refusal, authorized by

Michigan Department of Natural state law, to allow the disposal within the
Resources, 504 U.S. 353 (1992) county of any solid waste generated out-
side the county unconstitutionally dis-
criminates against interstate commerce. A federal appellate court had upheld
the law on the grounds that the county’s policy treated both out-of-county
and out-of-state solid waste equally. But by a seven-to-two vote the Court
struck down Michigan’s waste import restrictions as protectionist and dis-
criminatory in violation of the interstate commerce clause. Chief Justice
Rehnquist and Justice Blackmun dissented.

Quill Corporation v. North Da- — Quill Corporation challenged a state law

kota, 504 U.S. 298 (1992) that required companies located in other
states to collect a state sales tax on mail
order sales as a violation of the due process clause and Congress’s power to
regulate interstate commerce. Writing for the majority, Justice Stevens over-
turned in part a ruling in National Bellas Hess v. Department of Revenue of Illi-
nois, 386 U.S. 753 (1967), that had upheld a due process challenge to such
state sales taxes. Although now reversing that holding, Stevens reaffirmed Na-
tional Bellas Hess’s ruling that such taxes pose an undue burden on interstate
commerce in the absence of congressional legislation. He underscored, how-
ever, that Congress could authorize states to levy such taxes. The sole dis-
senter, Justice White, argued that even in the absence of congressional
legislation, states should have the power to collect such taxes and National
Bellas Hess should be given “the complete burial it justly deserves.”

Kraft General Foods v. Iowa Struck down Iowa’s provision disallowing

Dept. of Revenue, 505 U.S. 71 tax credits for business taxes paid to for-
(1992) eign countries. Writing for the Court,
Justice Stevens held that that provision
discriminates against foreign commerce in violation of the commerce clause.

Itel Containers International Cor-

Writing for the Court, Justice Kennedy
" poration v. Huddleston, 507 U.S.upheld a state tax on international trans-
60 (1993) port containers and rejected a commerce
clause challenge upon concluding that
Congress had not intended to preempt such taxation in approving an inter-
national Container Convention.

Northwest Airlines, Inc. v. Rejected a dormant commerce-clause

County of Kent, Michigan, challenge to an airport fee scheme that
510 U.S. 355 (1994) discriminated between commercial air-
lines and general aviation by assessing
higher fees on the former.
SSS SS
 A | States’ Power over Commerce and Regulation | 719

a a es

CASE RULING
Oregon Waste Systems, Inc. v. Struck down Oregon’s surcharge on the
Department of Environmental disposal of out-of-state solid waste in its
Quality of the State of Oregon, _ landfills as discriminatory economic pro-
511 U.S. 93 (1994) tectionism in violation of the dormant
commerce clause.

C&A Carbone, Inc. v. Town of | Struck down an ordinance requiring all

Clarkstown, New York, 511 U.S. nonhazardous solid waste within the
383 (1994) town to be deposited at a local transfer
station. Writing for the majority, Justice
Kennedy held that the ordinance deprived out-of-state businesses of access
to the local market and thereby unconstitutionally discriminated in favor of
local businesses. fe

Associated Industries of Missouri Writing for the Court, Justice Thomas in-
v. Lohman, 511 U.S. 641 validated a statewide “additional use tax”
(1994) on goods purchased outside of the state
for impermissibly discriminating against
interstate commerce.

West Lynn Creamery, Inc. v. Struck down a Massachusetts pricing or-

Healy, 512 U.S. 186 (1994) der on all milk sold within the state and
subsidy for in-state dairy farmers as eco-
nomically discriminatory and a violation of the commerce clause. Justice
Stevens wrote for the majority, and Chief Justice Rehnquist, joined by Jus-
tice Thomas, dissented.

Barclays Bank PLC v. Franchise Writing for the Court’s majority, Justice
Tax Board of California and Ginsburg upheld a controversial state pol-
Colgate-Palmolive Co. v. Fran- icy of taxing multinational corporations
chise Tax Board of California, based on their worldwide income, rather
512 U.S. 1201 (1994) than on their earnings within the state,
over objections that the policy discrimi-
nates against foreign and interstate commerce. The majority reaffirmed that
state tax policies may run afoul of the commerce clause if the tax (1) applies
to an activity lacking a “‘substantial nexus to the taxing state”; (2) is not fairly
apportioned; (3) discriminates against interstate commerce; or (4) is not fairly
related to the services provided byastate. In addition, in cases involving the
taxation of foreign commerce the Court examines (5) whether there is an
“enhanced risk of multiple taxation,’ and (6) whether astate’s tax interferes
‘with the federal government’s capacity to “speak with one voice when regu-
lating commercial relations with foreign governments.” Justice Ginsburg
found California’s “worldwide combined reporting” method of taxation to
survive all but ‘the third criterion. However, the justice concluded that Bar-
clays had failed to show that the state’s method of taxation in fact operated
a
720 | THE STATES AND AMERICAN FEDERALISM

CASE RULING

to impose an inordinate burden on multinational corporations. Justice

O’Connor, joined by Justice Thomas, dissented.

Oklahoma Tax Commission v. Writing for the majority, Justice Souter

Jefferson Lines, Inc., 514 U.S. upheld a state sales tax on bus tickets for
175 (1995) interstate travel sold within the state
over the objection that the tax imposed
an undue burden on interstate commerce and was inconsistent with the
Commerce Clause. Justices Breyer and O’Connor dissented.

Fulton Corporation v. Faulkner, Writing for the Court, Justice Souter

516 U.S. 325 (1996) struck down North Carolina’s tax on
state residents who own stock in compa-
nies that do no business within the state, while exempting residents who
own stock in companies doing business within the state, as a violation of the
dormant commerce clause.

General Motors Corporation v. Ohio imposes general sales and use taxes
Tracy, Tax Commissioner of Ohio, on natural gas purchases from all sellers,
D1 UES2275)(1997) whether in-state or out-of-state, includ-
ing state regulated utilities but not inde-
pendent producers and marketers. In an appeal of a challenge to the consti-
tutionality of that distinction, Justice Souter held that Ohio’s differential tax
treatment of natural gas sales does not violate the dormant commerce clause.
Justice Stevens dissented.

Camps Newfound/Owatonna, Inc. Writing for a bare majority, Jus-

v. Town of Harrison, 520 U.S. tice Stevens struck down Maine’s statute
564 (1997) governing tax exemptions for charitable
institutions that gave more limited bene-
fits to institutions serving primarily nonresidents as a violation of the dor-
mant commerce clause. Chief Justice Rehnquist and Justices Scalia, Thomas,
and Ginsburg dissented.

Pharmaceutical Research and Held that Maine’s Act to Establish Fairer

Manufacturers of America v. Pricing for Prescription Drugs does not
Walsh, 538 U.S. 644 (2003) violate the dormant commerce clause.
Due to increasing Medicaid costs for
prescription drugs, Congress authorized requiring drug companies to pay re-
bates to states for their Medicaid purchases. Under Maine’s program, the state
negotiates rebates with drug companies. If a company does not enter into an
agreement, then doctors are required to obtain the state’s approval for re-
imbursement for prescription drugs under Medicaid. Writing for the Court,
Justice Stevens held that Maine’s law, aimed at promoting discount drugs, did
not discriminate against out-of-state drug manufacturers in violation of the
commerce clause.
eS
 A | States’ Power over Commerce and Regulation | 721

eS
SS

CASE RULING

American Insurance Association Invalidated California’s 1999 Holo-

v. Garamendi, 539 U.S. caust Victim Insurance Relief Act,
396 (2003) which required all insurance com-
panies in the state that sold individ-
ual policies in Europe between 1920 and 1945 to disclose the names of pol-
icyholders and beneficiaries, in order to assist Holocaust survivors in collect-
ingbenefits. Writing for the Court, Justice Souter held that the law infringed
on the president’s foreign policy-making powers, and in particular the Ger-
man Foundation Agreement, under which the United States and Germany
established a fund and a procedure for compensating insurance companies’
victims during the Nazi era. Justice Souter also rejected California’s assertion
that Congress had authorized in the McCarran-Ferguson Act, rather than
preempting under its interstate commerce power, state laws of the sort at is-
sue. Justices Ginsburg, Stevens, Scalia, and Thomas dissented.

Granholm v. Heald, A bare majority struck down

544 U.S. 460 (2005) Michigan and New York laws that
forbid wineries located out of state
from shipping wine directly to consumers. The ruling will have wide-ranging
consequences for alcohol sales on the Internet and affect laws in eighteen
other states. Writing for the Court, Justice Kennedy noted that there was a
“patchwork of laws,’ with some states banning all direct shipments, others
only out-of-state shipments, and some requiring reciprocity. That amounted to
“an ongoing, low-level trade war” that discriminated against interstate com-
merce. Such discrimination, Justice Kennedy ruled, was “neither authorized
nor permitted by the Twenty-first Amendment,’ which gives states the author-
ity to regulate the importation of liquor. Justice Kennedy emphasized that the
Twenty-first Amendment “should not be subordinated to the dormant Com-
merce Clause,” and that “in all but the narrowest circumstances, state laws vio-
late the Commerce Clause if they mandate differential treatment of in-state
and out-of-state economic interests that benefits the former and burdens the
later.’ Justices Stevens and Thomas issued dissenting opinions, which Chief
Justice Rehnquist and Justice O’Connor joined.

American Trucking Associations, Inc. Writing for the Court, Justice

v. Michigan Public Service Commission, Breyer ruled that the dormant
545 U.S. 429 (2005) Commerce Clause does not pre-
clude Michigan from imposing a
$100 annual fee on trucks engaged in intrastate commercial hauling, and
_does not discriminate against interstate commerce.

United Haulers Association v. Writing for the Court, Chief Jus-

Onedia-Herkimer Solid Waste tice Roberts held that the dormant
Management Authority, 127 S.Ct. commerce clause is not violated
1786 (2007) when state and local governments
impose additional fees on private
se eee ee ee
722 | THe STATES AND AMERICAN FEDERALISM

haulers of solid waste, so long as they do not discriminate between in and

out public disposal authorities. Justice Alito, joined by Justices Stevens and
Kennedy, dissented.

@ THE DEVELOPMENT OF LAW

Other Rulings on State Regulatory Powers in

Alleged Conflict with Federal Legislation

CASE RULING

Allen-Bradley Local v. Wisconsin Federal legislation did not preempt states

Employment Relations Board, from punishing offensive conduct related
315 U.S. 740 (1942) to “traditionally local matters as public
safety and order and the use of streets and
highways.”
Hill v, Florida, 325 U.S. 528 State law requiring licenses for labor
(1945) union agents conflicted with the National
Labor Relations Act.
International Union v. O’Brien, State laws interfering with the right to
339 U.S. 454 (1950) strike are preempted by federal legislation.
Garner v. Teamsters Union, State forbidden from barring peaceful
346 U.S. 485 (1953) picketing.
Weber v. Anheuser-Busch, 348 State antitrust laws preempted as applied
U.S. 468 (1955), and Team- to enjoying labor strikes and collective
sters Union v, Oliver, 358 U.S. bargaining agreements.
255 (1957)
Farmers Educational & Coopera- The Federal Communications Act, re-
tive Union v. WDAY, 360 USS. quiring broadcasters to carry some politi-
525 (1958) cal speeches without censoring them,
occupied the field and thus immunized
broadcasters from liability under state libel laws.
Huron Portland Cement Co. v. Upheld the conviction of a ship operat-
Detroit, 362 U.S. 440 (1960) ing in interstate commerce and whose
boiler met federal standards, for violating
Detroit’s smoke-abatement ordinance.

City of Burbank v. Lockheed Air Struck down local noise abatement ordi-
Terminal, 411 U.S. 624 (1973) nance as being preempted by federal air-
line regulations.
SS
 A | States’ Power over Commerce and Regulation | 723

a a a a ey

CASE RULING
Jackson Transit Authority v. Held that the urban Mass Transportation
Amalgamated Transit Union, Act of 1964 did not preempt states from
457 U.S. 15 (1982) their traditional control over labor relations
involving local governments and unions.
Pacific Gas & Electric Co. v. Held the Atomic Energy Act does not
State Energy Commission, 461 preempt states from some regulation of
U.S. 190 (1983) nuclear power plants; states may forbid
the building of plants until the federal
government has approved of the methods of nuclear waste disposal.
Silkwood v. Kerr-McGee Corpora- Held that state laws for awarding punitive
tion, 464 U.S. 283 (1984) damages for injuries resulting from es-
caped plutonium at a nuclear power plant
are not preempted; held that state safety, but not economic, regulations are
preempted.
Metropolitan Life Insurance Co. Upheld state regulation of insurance
v. Ward, 470 U.S. 869 (1985) contracts as not constituting interstate
commerce.
Nantahala Power & Light Co. States may not differ from the Federal
v. Thornburg, 476 U.S. 953 Energy Regulatory Commission’s stan-
(1986) dards in setting intrastate retail rates.
Mississippi Power & Light Co. Federal Energy Regulatory Commission
v. Mississippi ex rel. Moore, 487 preempted state rate-making authority.
US. 354 (1988)
Felder v. Casey, 487 U.S. 131 Section 1983 of the United States Code,
(1988) providing for federal civil rights suits, pre-
empts Wisconsin’s notice-of-claim statute
(which had barred lawsuits against any state governmental agency or officer
unless a written notice of the injury suffered was submitted within 120 days
of the injury).
California v. Federal Energy Reg- Held that California’s regulations setting
ulatory Commission, 495 U.S. standards for minimum stream flows on a
490 (1990) river, in which federally licensed hydro-
electric power plant was located, were
preempted by the Federal Power Act.
Perpich v. Department of Defense, The Court held that, over the objections
496 U.S. 334 (1990) of a state governor, the federal govern-
ment may order state National Guard
troops to take part in peacetime training abroad, and reaffirmed federal pre-
- emption based dn the recognition of “the supremacy of the federal govern-
ment in the area of military affairs.”
EE ES
(a
724 | THe STATES AND AMERICAN FEDERALISM

CASE RULING

Gregory v. Ashcroft, 501 U.S. Upheld Missouri’s law requiring manda-

452 (1991) tory retirement of state judges at the age
of seventy over objections that the law vi-
olated the Fourteenth Amendment equal protection clause and the federal
Age Discrimination in Employment Act.

Wisconsin Public Intervenor v. The Court held that local and _ state
Mortier, 501 U.S. 597 (1991) governments may regulate pesticide uses
because such regulations were not pre-
empted by the federal Fungicide and Rodenticide Act of 1972.

Dennis v. Higgins, 498 U.S. 439 The Court held that government officials
(1991) could be held liable under Section 1983
of the U.S. Code when they are found to
have violated the commerce clause. Writing for the majority, Justice White
construed the commerce clause to confer “rights, privileges, or immunities”
within the meaning of Section 1983. Justice Kennedy, joined by Chief Jus-
tice Rehnquist, dissented from the Court’s expansive reading of the com-
merce clause, pointing out that the majority’s ruling would increase “the
burden that a state or local government will face in defending its economic
regulation and taxation.”

Ingersoll-Rand v. McClendon, The Court unanimously held that em-

498 U.S. 133 (1991) ployees who claim they were fired so
their employers would not have to pay
pension benefits may not bring suits in state courts for punitive damages.
Writing for the Court, Justice O’Connor held that the Employee Retire-
ment Income Security Act of 1974 preempts such action in state courts by
barring such firing and providing for reinstatement of employees and pay-
ment of lost wages and benefits.

County of Yakima v. Confeder- Held that the Indiana General Allotment

ated Tribes and Bands of the Ya- Act of 1887 permits states and localities
kima Indian Nation, 502 U.S. to impose ad valorem taxes on land owned
251 (1992) by Native Americans but does not allow
excise taxes on the sale of Indian lands.
Gade v. National Solid Wastes The Court affirmed a federal appellate
Management Association, 505 court decision that struck Ilinois’s licens-
U.S. 88 (1992) ing and training requirements for workers
in hazardous waste sites on the grounds
that the Occupational Safety and Health Act (OSHA) preempted states from
adopting standards stricter than mandated by OSHA, even though the
state asserted its requirements were adopted for environment, and not occu-
pational, reasons. Justices Souter, Blackmun, Stevens, and Thomas dissented.
LL
 A | States’ Power over Commerce and Regulation | 725

CASE RULING

Morales v. Trans World Airlines, Held that states may not ban deceptive
504 U.S. 374 (1992) advertising by airplane companies. A
federal appellate court held that state
regulations of how airlines advertise their fares were preempted by the Fed-
eral Aviation Act, which gives the federal government sole regulatory
authority over airline “rates, routes, or services.’ With Justice Souter
not participating, a bare majority affirmed the lower court’s decision that
states were preempted by federal law from regulating airlines’ advertising.

Arkansas v. Oklahoma and En- Upheld the Environmental Protection

vironmental Protection Agency v. Agency’s (EPA) action permitting dis-
Oklahoma, 503 U.S. 91 (1992) charges from a new disposal site in
Arkansas, located thirty-eight miles above
the Oklahoma state line, over the objections that the discharges would vio-
late Oklahoma’s environmental standards, and ruled that the EPA’s regulatory
decisions under the Clean Water Act preempt state common law and the fed-
eral common law of nuisance.

Cipollone v. Liggett Group, Inc., | Held that the Federal Cigarette Labeling
505 U.S. 504 (1992) and Advertising Act of 1965, as amended
by the Public Health Cigarette Smoking
Act of 1969, preempts some lawsuits but not those based on breach of war-
ranty, intentionally fraudulent misrepresentation, and concealment of health
risks as well as conspiracy to misrepresent the health consequences of smok-
ing. Justice Scalia and Thomas, dissenting in part, would have held that all
suits were preempted.

The District of Columbia v.The Held that the Employee Retirement In-
Greater Washington Board of come Security Act (ERISA) does not
Trade, 506 U.S. 125 (1992) preempt a District of Columbia statute
requiring employers who provide health-
insurance coverage to continue to provide coverage to employees who are
receiving workers’ compensation.
CSX Transportation v. Easter- Held that the Federal Railroad Safety Act
brook, 507 U.S. 658 (1993) of 1970 preempts a wrongful-death suit
against a railroad for the death of a truck
driver who collided with a train, allegedly due to inadequate warnings at
crossing and the train’s excessive speed. Justice Thomas and Souter dissented
and concurred in part.
Northwest Airlines, Inc. v. Rebuffed a challenge to an airport system
County of Kent, Michigan, of collecting fees based on charging com-
510 U.S. 355 (1994) mercial airlines 100 percent of their
square footage allocation costs, but only
20 percent of the same costs incurred by general aviation. Writing for the
I SEEDED
I
 726 | THe STATES AND AMERICAN FEDERALISM

CASE RULING

majority, Justice Ginsburg held that that system did not violate the Anti-
Head Tax Act or burden interstate commerce. Justice Thomas dissented.
Livades v. Bradshaw, 512 U.S. Writing for the Court, Justice Souter
107 (1994) held that a collective-bargaining agree-
ment was preempted under provisions of
the National Labor Relations Act.
Doctor’s Associates, Inc. v. Casa- Writing for the Court, Justice Ginsburg
rotto, 517 U.S. 681 (1996) struck down a Montana law governing
arbitration agreements as preempted by
the Federal Arbitration Act. Justice Thomas dissented.

United States v. Locke, 529 The Court unanimously struck down

U.S. 89 (2000) Washington’s navigational regulations as
preempted by the Oil Pollution Act of
1990. Following the oil spill of the Exxon Valdez in 1989, Washington en-
acted regulations that were more extensive and stringent than those set forth
in federal statutes and international treaties.

Crosby v. National Foreign Trade The Court unanimously — invalidated

Council, 530 U.S. 363 (2000) — Massachusetts’s 1996 law restricting pub-
lic agencies from contracting with com-
panies that also conduct business with Burma (Myanmar). Writing for the
Court, Justice Souter held that federal laws imposing conditional sanctions
on Burma preempted the state law and the state law ran contrary to Con-
gress’s authorization for the president to set national policy toward Burma.

Egelhoff v. Egelhoff, 532 Writing for the Court, Justice Thomas

U.S. 141 (2001) invalidated a Washington statute, provid-
ing that the designation of a spouse as the
beneficiary of a nonprobate asset is automatically revoked upon divorce, as
preempted by the Employee Retirement Income Security Act of 1974
(ERISA). Justices Breyer and Stevens dissented.

Lorillard Tobacco v. Reilly, Invalidated Massachusetts’s restrictions

533 U.S. 901 (2001) on the advertising of tobacco products as
preempted by the Federal Cigarette Label-
ing and Advertising Act. Justices Souter and Stevens filed separate opinions in
part dissenting and concurring; Justices Ginsburg and Breyer joined the lat-
ter’s opinion.

Kentucky Association of HealthWriting for a unanimous Court, Justice

Plans, Inc. v. Miller, 538 Scalia held that the Employment Retire-
U.S. 329 (2003) ment Income Security Act (ERISA) does
not preempt Kentucky’s Any Willing Pro-
vider (AWP) laws because they are regulations of the insurance industry.
Health Management Organizations (HMOs) had exclusive networks with
SEEN
 A | States’ Power over Commerce and Regulation | 727

RS

CASE RULING

health-care providers and sought to have the state’s AWP laws invalidated on
the ground they were preempted by ERISA’s regulation of employee bene-
fit plans. But the Court held that Kentucky’s laws regulated insurance pro-
grams and thus HMOs in the state could not restrict access to particular
health-care providers.
Beneficial National Bank v. Held that the National Bank Act provides
Anderson, 539 U.S. 1 (2003) the exclusive basis for usury claims against
national banks and preempts state usury
laws.
Hillside Dairy, Inc. v. Lyons, Held that California’s milk pricing regu-
939,U.S. 59 (2003) lations, which favored in-state farmers,
wére not exempt from Congress’ inter-
state Commerce power and the Federal Agriculture and Reform Act of
1996.
Aetna Health Inc. v. Davila, Held that the Employee Retirement In-
542 U.S. 200 (2004) come Security Act of 1974 (ERISA) pre-
empts the Texas Health Care Liability Act
and bars suits against health maintenance organizations (HMOs) for their re-
fusal to provide certain services in state courts, rather than federal courts
where the potential liability of HMOs is more limited.
Bates v. Dow Agrosciences, Writing for the Court, Justice Stevens
544 U.S. 4331 (2005) held that the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA) does not
preempt state laws and tort relief lawsuits in state courts against manufactur-
ers for negligently designed and manufactured products. Because the FIFRA
does not provide for suits in federal courts, the ruling was significant since a
contrary ruling would have denied consumers any opportunity to sue man-
ufacturers. However, Justice Stevens also emphasized that not all state lawsuits
under federal statutes are permitted. Preemption of each federal statute must
be determined in light of its own statutory language, legislative history, and
the history of litigation over a regulated product. Justices Scalia and Thomas
dissented.
Mid-Con Freight Systems, Inc. Federal law requires interstate truckers to
v. Michigan Public Service obtain a federal permit and by 1991 some
Commission, 545 U.S. 440 thirty-nine states also demanded such
(2005) proof. Because of differences in the states,
Congress created a Single State Registra-
tion System (SSRS), which allows companies to file one set of state and fed-
eral registration forms, and prohibits states from imposing additional registra-
tion fees. Michigan imposed an annual $100 fee for state licensed trucks and its
law was challenged. Writing for the Court, Justice Breyer held that the federal
law did not preempt Michigan’s law because the federal statute only applies
to the SSRS registration and does not preclude additional state regulations.
a
728 | Tue STATES AND AMERICAN FEDERALISM

B The Tenth and Eleventh

Amendments and the States

In response to the Anti-Federalists’ concerns about safeguarding indi-

vidual liberty, the first Congress adopted the Bill of Rights, including
the Tenth Amendment, which provides that “[t]he powers not delegated
to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.’ The
amendment long stood, as the Court put it in United States v. Darby
Lumber Company, 312 U.S. 100 (1941) (excerpted in Ch. 6), as a truism,
without independent force in constraining federal powers. It reaffirms
the Constitution’s structure and limitations of federal powers to those
specifically granted. Indeed, during the First Congress’s debate over the
amendment, Elbridge Gerry, who had been a delegate from Massachu-
setts to the Constitutional Convention, proposed inserting the word
expressly so the amendment would read, “the powers not expressly dele-
gated by the Constitution, nor prohibited to the States, are reserved to
the States respectively, or to the people.’ Rejection of his proposal and
the addition of the last clause—reserving powers “to the people”—
underscores that the federal government’s powers are delegated and
plenary; any others belong to the people of the states.
Chief Justice William Rehnquist championed the idea of states’
sovereignty. In National League of Cities v. Usery, 426 U.S. 833 (1976), he
persuaded four other justices to hold that the exercise of congressional
power over commerce threatened “the separate and independent exis-
tence” of the states as “sovereign political entit[ies].’ On that basis, he
struck down three 1974 amendments to the Fair Labor Standards Act
extending minimum-wage and maximum-hours standards to all state,
county, and municipal employees.
National League of Cities v. Usery bitterly divided the Court, how-
ever. Just a year before, with only Rehnquist dissenting, the Court up-
held federal restrictions on salary increases for state employees.' Indeed,
not since striking down much of the early New Deal legislation and
the constitutional crisis of 1937 had the Court sought to limit Con-
gress’s power in this area. And Rehnquist was forced to overturn Mary-
land v. Wirtz, 392 U.S. 183 (1968), upholding similar labor standards for
state employees in hospitals, institutions, and schools. In that earlier rul-
ing, Justice John Harlan saw no point in denying congressional power
over state employees when it indisputably covered all private-sector.
employees. Rehnquist conceded that federal regulation of state em-
 B | The Tenth and Eleventh Amendments and the States | 729

Chief Justice nominee John Roberts (front, right) carrying the coffin of Chief Jus-
tice Rehnquist into the Supreme Court on September 6, 2005. (Kevin Wolf/Associ-
ated Press)

ployees was “within the scope of the Commerce Clause.” But he as-
serted that “there are attributes of sovereignty attaching to every state
government that may not be impaired by Congress, not because Con-
gress lacks an affirmative grant of legislative authority to reach the mat-
ter, but because the Constitution prohibits it from exercising the
authority in that manner.”
Rehnquist supported his decision with a structural reading of the
Tenth Amendment. As interpreted by Rehnquist, the amendment is an
“affirmative limitation” on Congress “akin to” others in the Bill of
Rights, “running in favor of the States as States.” Congress may not
regulate the “States qua States” or deny their “freedom to structure in-
tegral operations in areas of traditional governmental functions.” Thus
despite conceding Congress’s power to regulate the working conditions
of state employees and finding no express prohibitions to its doing so,
_ Rehnquist held that extending federal labor standards to state employ-
ees was “tot within the authority granted Congress.” In delivering his
opinion in National League of Cities v. Usery, Rehnquist wrote,
730 | THe STATES AND AMERICAN FEDERALISM

It is one thing to recognize the authority of Congress to enact laws

regulating individual businesses necessarily subject to the dual
sovereignty of the government of the Nation and of the State in
which they reside. It is quite another to uphold a similar exercise of
congressional authority directed not to private citizens, but to the
States as States. We have repeatedly recognized that there are attri-
butes of sovereignty attaching to every state government which
may_not be impaired by Congress, not because Congress may lack
an affirmative grant of legislative authority to reach the matter, but
because the Constitution prohibits it from exercising the authority
in that manner... .
One undoubted attribute of state sovereignty is the State’s power to
determine the wages which shall be paid to those whom they em-
ploy in order to carry out their governmental functions, what hours
those persons will work, and what compensation will be provided
where these employees may be called upon to work overtime.

Among the four dissenters in National League of Cities, Justice

William J. Brennan, Jr., protested that the Constitution neither guaran-
tees state sovereignty nor requires or permits its judicial enforcement
and reiterated that “restraints on [Congress’s commerce power] must
proceed from political rather than judicial processes.”
It bears emphasizing, though, that Rehnquist’s interpretation of the
Tenth Amendment was modest in limiting congressional powers only
under the commerce clause. Within a week of National League of Cities,
he held the Fourteenth Amendment empowers Congress to prohibit
state and local employers, no less than those in the private sector, from
practicing racial discrimination in violation of the Civil Rights Act of
1964.* Moreover, he relied on South Carolina v. Katzenbach, 383 USS.
301 (1966) (excerpted in Ch. 8), a decision clearly denying states’ sov-
ereignty in upholding the 1965 Voting Rights Act, which authorizes
federal examiners to determine voter qualifications and approve state
voting laws. Nor does the Tenth Amendment stand as an obstacle to
Congress's taxing and spending powers. In South Dakota v. Dole,
483 U.S. 203 (1987) (excerpted in Ch. 6), Rehnquist upheld the with-
holding of federal highway funds from states refusing to adopt a mini-
mum drinking age of twenty-one.
National League of Cities nonetheless renewed debate over federal-
ism. Besides raising states’ sovereignty to the level of constitutional law,
Rehnquist left unexplained both how “traditional” or “essential” state
activities were to be determined and why the Court, not Congress,
should define and defend them. Subsequent decisions reformulated
Rehnquist's ruling into a three-pronged test for curbing Congress’s
commerce power based on showing that legislation (1) regulated “States
as States,’ (2) addressed “matters that are indisputably ‘attributes-of state
 B | The Tenth and Eleventh Amendments and the States | 73%

sovereignty,” and (3) would force “States’ compliance” in ways that “di-
rectly impair their ability ‘to structure integral operations in areas of tra-
ditional function.’”* But on this test, a majority of the Court refused to
further limit Congress’s control over state and local employees.‘
Finally, Justice Harry Blackmun, who cast the crucial fifth vote in
National League of Cities, changed his mind about the wisdom of judi-
cial line-drawing in defense of interests of the states as states. In Gar-
cia v. San Antonio Metropolitan Transit Authority (1985) (see excerpt
below), he joined the four justices who had dissented in National
League of Cities and expressly overturned that ruling. Garcia’s majority
reaffirmed that federalism is a political structure in which states’ inter-
ests are represented, for better or worse, in the national political
process. And that is precisely what Garcia’s dissenters deny in maintain-
ing that the national political process inadequately safeguards states’
“sphere of sovereignty,’ and that the Court stands as a last defense for
states’ sovereignty.
State powers have been eroded, Garcia’s dissenters point out, due to
several factors: “the recent expansion of the commerce power,” the
“unprecedented growth of federal regulatory activity,’ the Seventeenth
Amendment’s substitution of popular election of senators for that of
selection by state legislatures as originally provided, and “the expanded
influence of national interest groups” in Congress and the national
political process. In addition to other developments, the Fourteenth
Amendment greatly expanded congressional power, the Sixteenth
Amendment gave Congress the power to levy a federal income tax, the
Court has expansively read Congress’s taxing and spending powers
since the New Deal, and (see Vol. 2, Ch. 4) the Court nationalized the
Bill of Rights, making those guarantees limit the powers of the states
no less than the federal government.
As the Court’s composition changed in the late 1980s and early
1990s, support for defending the states’ interests appeared to grow
among the justices. One of the most important initial rulings in which
the Rehnquist Court defended states’ interests involved two Missouri
state judges who attacked the constitutionality of the state’s age-seventy
mandatory retirement for judges and other public officials. They con-
tended that Missouri’s retirement law violated the Fourteenth Amend-
ment equal protection clause and the federal Age Discrimination in
Employment Act (ADEA) of 1967. But attorneys for the state defended
the retirement law on federalist grounds. Writing for the Court in Greg-
ory v.Ashcroft, 501 U.S. 452 (1991), Justice O’Connor upheld Missouri's
-mandatory retirement law as applied to state judges upon recognizing
the “dual sovereignty” of the national and state governments. In her
words,
732 | THe Starrs AND AMERICAN FEDERALISM

As every schoolchild learns, our Constitution establishes a system of

dual sovereignty between the States and the Federal Government.
This Court also has recognized this fundamental principle [in Texas
v. White, 7 Wall. 700, 725 (1869), and Lane County v. Oregon, 7 Wall.
71, 76 (1869)]....The Constitution created a Federal Government
of limited powers. “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.” U.S. Const., Amdt. 10.
The States thus retain substantial sovereign authority under our
constitutional system... .

Upon that constitutional analysis, Justice O’Connor reasoned that

when important principles of federalism are at stake, Congress must
make a “plain statement” of whether in exercising 1ts powers under the
Commerce Clause it “intends to preempt the historic powers of the
States: This plain statement rule,” according to O’Connor, “is noth-
ing more than an acknowledgment that the States retain substantial
sovereign powers under our constitutional scheme, powers with which
Congress does not readily interfere.’ O’Connor also noted with regard
to Congress’s powers under Section 5 of the Fourteenth Amendment
and the Court’s application of the Fourteenth Amendment equal pro-
tection clause that prior cases had upheld state regulations—pertaining
to the denial of public employment to aliens (see Vol. 2, Ch. 12)—upon
a “political function” exception-theory. On that basis, the Court had
held that States may exclude individuals from positions “intimately re-
lated to the process of democratic self-government.” “These cases,”
O’Connor claimed, also “stand in recognition of the authority of the
people of the States to determine the qualifications of their most im-
portant government officials. . . 2’ It is a power reserved to the States
under the Tenth Amendment and guaranteed them by that provision of
the Constitution under which the United States “guarantee[s] to every
State in this Union a Republican Form of Government.” U.S. Const.,
Art. IV, sec. 4.
Conceding that the Court was “constrained in our ability to con-
sider the limits that the state-federal balance places in Congress’s pow-
ers under the Commerce Clause,’ O’Connor nonetheless emphasized
that “the plain statement rule” would’permit the Court to strike down
the application of a federal regulation to the states, and uphold state
regulations, unless Congress expressly stated that it intended to preempt
the states. As O’Connor put it, “[I]nasmuch as this Court in Garcia has
left primarily to the political process the protection of the States against
intrusive exercises of Congress’s Commerce Clause powers, we must be
absolutely certain that Congress intended such an exercise.”
In a separate opinion, in part concurring and dissenting, and in
 B | The Tenth and Eleventh Amendments and the States | 733

which Justice Stevens joined, Justice White took strong exception to

the majority’s analysis and its broad application of the “plain statement
rule” in determining whether Congress has preempted state laws and
regulations. As Justice White explained:

The majority’s plain statement rule is not only unprecedented, it di-

rectly contravenes our decisions in Garcia v. San Antonio Metropolitan
Tiansit Authority, 469 U.S. 528 (1985), and South Carolina v. Baker,
485 U.S. 505 (1988). In those cases we made it clear “that States
must find their protection from congressional regulation through
the national political process, not through judicially defined spheres
of unregulable state activity.’ We also rejected as “unsound in prin-
ciple and unworkable in practice” any test for state immunity that
requires a judicial determination of which state activities are “tradi-
tional,” “integral,” or “necessary.”The majority disregards those de-
cisions in its attempt to carve out areas of state activity that will
receive special protection from federal legislation.
The majority’s approach is also unsound because it will serve only
to confuse the law. First, the majority fails to explain the scope of
its rule. Is the rule limited to federal regulation of the qualifications
of state officials? Or does it apply more broadly to the regulation of
any “‘state governmental functions’? Second, the majority does not
explain its requirement that Congress’s intent to regulate a particu-
lar state activity be “plain to anyone reading [the federal statute].”
Does that mean that it is now improper to look to the purpose or
history of a federal statute in determining the scope of the statute’s
limitations on state activities? If so, the majority’s rule is completely
inconsistent with our preemption jurisprudence. See, e.g., Hills-
borough County v. Automated Medical Laboratories, Inc., 471 U.S. 707
(1985) (preemption will be found where there is a “clear and man-
ifest purpose” to displace state law). The vagueness of the majority’s
rule undoubtedly will lead States to assert that various federal
~ statutes no longer apply to a wide variety of State activities if Con-
gress has not expressly referred to those activities in the statute.
Congress, in turn, will be forced to draft long and detailed lists of
which particular state functions it meant to regulate.
My disagreement with the majority does not end with its un-
warranted announcement of the plain statement rule. Even more
disturbing is its treatment of Congress’s power under Section 5 of
the Fourteenth Amendment. Section 5 provides that “[t]he Con-
gress shall have power to enforce, by appropriate legislation, the
provisions of this article.” Despite that sweeping constitutional del-
egation of authority to Congress, the majority holds that its plain
statement rule will apply with full force to legislation enacted to
enforce the Fourteenth Amendment. . .

The Rehnquist Court’s renewed deference to the states in Gregory

v. Ashcroft and Coleman v. Thompson, 501 U.S. 722 (1991), prompted
734 | THe STATES AND AMERICAN FEDERALISM

some legal scholars to speculate that the Court might overrule Garcia.
Yet, when the Court was asked to reconsider Garcia in New York v,
United States, 505 U.S. 144 (1992) (excerpted below), it declined to do
so. Writing for the majority in New York v, United States, Justice O’Con-
nor nonetheless strongly defended “state sovereignty” when striking
down one section of Congress’s 1985 statute requiring states that fail to
comply with their obligation to provide sites for radioactive waste by
1996 to take title of and assume liability for all undisposed waste. No-
tably, though, O’Connor rests the decision not on Garcia and the Tenth
Amendment, but instead on Congress’s exceeding its power under the
commerce clause. Finally, without invoking the Tenth Amendment, a
bare majority of the Rehnquist Court held that Congress exceeded its
power and intruded on states’ powers when enacting the Gun-Free
School Zones Act of 1990, in United States v. Lopez, 514 U.S. 549
(1995) (excerpted in Vol. 1, Ch. 6). However, the Tenth Amendment as
a limitation on congressional power was reemphasized by Justice Scalia
in his opinion for a bare majority in Printz v. United States and Mack v.
United States (excerpted below). There, the Court struck down a key
provision of the Brady Handgun Violence Prevention Act of 1993,
requiring state and local law enforcement officials to conduct back-
ground checks on gun purchasers.
In addition, a bare majority of the Rehnquist Court resurrected
the Eleventh Amendment as a limitation on congressional power under
Article I. In Seminole Tribe of Florida v. Florida (1996) (excerpted below)
Chief Justice Rehnquist ruled that Congress, in the Indian Gaming
Regulatory Act of 1988, impermissibly gave Indian tribes standing to
sue states in federal courts in order to force them to negotiate compacts
for the tribes to run casinos and other gambling activities on reserva-
tions. In that and subsequent cases, Justices Stevens, Souter, Ginsburg,
and Breyer dissented.
In a series of five to four rulings, the Court extended its ruling in
Seminole Tribe (see in this section the box THE DEVELOPMENT OF
LAW: Other Recent Rulings on the Eleventh Amendment). Notably,
in Alden v. Maine (1999) (excerpted below) a bare majority held that
the “structure and history” of the Constitution not only shields states
from suits filed in federal courts but also makes them immune from
lawsuits in state courts that seek to enforce federal rights against them.
Here, Maine’s probation officers sought to force the state to pay for
overtime work, as provided by amendments to the Fair Labor Standards
Act of 1938.
However, Nevada Department of Human Resources v. Hibbs, 538 U.S.
721 (2003) (excerpted below), affirmed congressional power to abro-
gate states’ immunity in authorizing private lawsuits against states for
 B | The Tenth and Eleventh Amendments and the States | 735

violations of the Family and Medical Leave Act of 1993. Congress, rea-
soned Chief Justice Rehnquist, had the power to do so under Section
5 of the Fourteenth Amendment in order to enforce the amendment’s
bar against gender discrimination.The ruling reaffirmed that Congress
may abrogate states’ Eleventh Amendment immunity if it bases legisla-
tion on its remedial power under Section 5 of the Fourteenth Amend-
ment to enforce the constitutional guarantee of the equal protection of
the law; gender discrimination, unlike age discrimination, is impermis-
sible under the Fourteenth Amendment (see Vol. 2, Ch. 12). In addition,
a bare majority, in Tennessee v. Lane, 541 U.S. 428 (2004), held that
Congress may abrogate state immunity in Title 2 of the Americans
with Disabilities Act (ADA) of 1990 but limited its holding to suits to
force states to provide access for the disabled to courthouses, and did
not address access to other public facilities. Writing for the Court, Jus-
tice Stevens found Congress had established a nationwide problem of
discrimination against the disabled and their exercise of a fundamental
right to judicial proceedings. On that basis he distinguished Board of
Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), in which
for a bare majority Chief Justice Rehnquist held that Congress lacked
the authority to abrogate state immunity from lawsuits filed under
Title 1 of the ADA, which forbids discrimination against the disabled
in state employment. (For a further discussion see THE DEVELOP-
MENT OF LAW box in this chapter.)

NOTES

1. See Fry v. United States, 421 U.S. 524 (1975).

2. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
3. Hodel v. Virginia Surface Mining, 452 U.S. 264, 287-288 (1981). In a footnote, the
majority added a fourth requirement and important qualification: “Demonstrating
that these three requirements are met does not, however, guarantee that a Tenth
Amendment challenge to congressional commerce power action will succeed. There
are situations in which the nature of the federal interest advanced may be such that it
justifies state submission.”
4. See Hodel v. Virginia Surface Mining, 452 U.S. 264 (1981); FERC v. Mississippi,
456 U.S. 742 (1982); United Transportation Union v. Long Island Railroad Company,
455 US. 678 (1982); and EEOC v, Wyoming, 460 U.S. 222 (1983).

SELECTED BIBLIOGRAPHY

Beer, Samuel H. To Make a Nation: The Rediscovery of American Federalism. Cambridge,

‘MA: Belknap: Press, 1993.
Berger, Raoul. Federalism: The Founders’ Design. Norman: University of Oklahoma
Press, 1987.
736 | THE STtaTES AND AMERICAN FEDERALISM

Greve, Michael S. Real Federalism: Why It Matters, How It Could Happen. Washington,
DC: American Enterprise Institute, 1999.
Lofgren, Charles A. Government from Reflection and Choice. New York: Oxford Univer-
sity Press, 1986.
Mason, Alpheus Thomas. The States Rights Debate. Englewood Cliffs, NJ: Prentice-
Hall, 1964.
McAffee, Thomas; Bybee, Jay and Bryant, Christopher. Powers Reserved for the People
and the States:A History of the Ninth and Tenth Amendments. Westport, CT: Praeger,
2006.
McDonald, Forrest. States’ Rights and the Union: Imperium in Imperio, 1776-1876.
Lawrence: University Press of Kansas, 2000.
Noonan, John T., Jr. Narrowing the Nation’s Power: The Supreme Court Sides with the
States. Berkeley: University of California Press, 2002.
Storing, Herbert. The Complete Anti-Federalist, 7 Vols. Chicago: University of Chicago
Press, 1981.

= INSIDE THE COURT

Rethinking Federalism in Garcia v. San Antonio

Metropolitan Transit Authority

In National League of Cities v. Usery, 426 U.S. 833 (1976), a bare majority for
the first time since the 1937 New Deal crisis resurrected the Tenth Amend-
ment as an affirmative limitation on Congress, when striking down an
amendment to the Fair Labor Standards Act of 1938. The justices were bit-
terly divided over whether there was a principle for the Court to enforce in
order to protect “traditional state functions,’ or whether they should defer to
the political process to define the boundaries of federalism. Justice Harry
Blackmun cast the pivotal vote and expressed his concerns in a concurrence.
Almost a decade later, in Garcia v. San Antonio Metropolitan Transit Author-
ity (SAMTA) (excerpted in this chapter), the SAMTA contended that it did
not have to pay Joe Garcia and other employees federal overtime wages be-
cause it was exempt from such federal mandates under National League of
Cities. After hearing oral arguments on March 19, 1984, the justices discussed
their votes in private conference on March 21, with Chief Justice Burger
leading the discussion:
BURGER: This case presents a constitutional policy choice. Private mass
transit has faded out and large cities have gone public. Yet, water and
transit systems are basically local. This is like water in that respect and is
here to stay. The federal government can attach conditions. I don’t think
that [United Transportation Union v.] Long Island [455 U.S. 678 (1982), in
which a majority of the Court held that the federal Railway Labor
SS a a a a
 B | The Tenth and Eleventh Amendments and the States | 737

Act preempted state laws governing a state-owned railroad] controls this

case. Pass until draft circulates, but inclined to affirm.

BRENNAN: The issue presented is whether a publicly owned and operated

mass transit system is a “traditional state function” for the purposes of
the Tenth Amendment. In my view, it is not.
Over 80 percent of the publicly owned mass transit systems became
public after 1966, when the Fair Labor Standards Act was amended to
apply to publicly owned mass transit. As in Long Island Railroad, these
states acquired their mass transit operations knowing that the operations
would be subject to federal regulation. Reverse.
WHITE: Agree with Brennan.
MARSHALL: Agree with Brennan. |
BLACKMUN: This is a tough case for me after my concurrence in National
League. Municipal mass transit reeks of localism, like police, fire, and so
forth. A good opinion can be written either way. | come down on the
side that this is local, and vote to affirm.

‘POWELL: A principled decision could be written either way. Agree with

Harry. But, we are talking here of driving people to and from their
work—a service that is essential to provide in cities like Richmond. Vote
to affirm.
REHNQUIST: Agree with Harry and Lewis. Affirm.
STEVENS: Let the democratic process work. Otherwise, the Court would
basically be engaging in substantive due process; it has no standards to
enforce here. Municipalities have political power and it is not for the
Court to protect them from Congress. Reverse.
O’CONNOR: The third National League test—traditional state functions—
is the point. History does not freeze traditional public service—the issue
is whether Congress goes too far. Affirm.
With Justice Blackmun at the center, though inclined to adhere to Na-
tional League of Cities, the justices appeared equally divided and, thus, after
conference Chief ‘Justice Burger assigned him to write the opinion for the
Court. But when working on the draft, Justice Blackmun changed his mind
As a result,
about what is and how to determine a “traditional state function.’
he produced a draft questioning National League of Cities. In the first draft
that circulated on June 11, 1986, he explained:
A review of the operation of the “traditional governmental func-
tion” standard in this and other cases now persuades us that the at-
tempt to draw the boundaries of state regulatory immunity in
terms of “traditional governmental functions” is both unworkable
and inconsistent with the principles of federalism on which Na-
tional League of Cities rests.
Leanne eee eee reer
738 | Ter StaTEs AND AMERICAN FEDERALISM

SS
However, he stopped short of overruling National League of Cities and in-
stead reaffirmed “the fundamental premise of National League of Cities that
Congress’s authority under the Commerce Clause must accommodate the
special rule of the States in the federal system. We hold, however, thatthe
necessary accommodation between federal power and state autonomy is re-
alized when Congress places no burden on the States that it has not placed
on private parties as well.”
Along with his draft opinion, in a memorandum to the conference,
Blackmun further explained the course he had taken:
You will recall that the conference vote in these cases was 5—4 to
affirm, with my own vote shaky on the affirming side. I assume that
it is because of this that the Chief Justice assigned the cases to me,
on his frequently stated reference to the “least persuaded.”
I have spent a lot of time on these cases. I have finally decided to
come down on the side of reversal. I have been able to find no
principled way in which to affirm. It seems to me that our custom-
ary reliance on the “historical” and the “traditional” is misplaced
and that something more fundamental is required to eliminate the
widespread confusion in the area. The enclosed draft of a proposed
opinion reflects my views.
I realize that this means (1) that the cases should be reassigned and
(2) ‘that some of you may feel the cases should go over for re-
argument. Perhaps this can be discussed at conference.
Chief Justice Burger was angry over Blackmun’s writing an opinion
that reached a result contrary to the conference vote. Moreover, the Court
was two weeks from ending the term and he therefore did not favor re-
assigning the opinion for the Court. Instead, Chief Justice Burger immedi-
ately moved to carry the case over for reargument the next term. Justices
O’Connor, Powell, and Rehnquist immediately agreed. By contrast, Justice
Stevens strongly objected to hearing rearguments. Justices Brennan, Black-
mun, and Marshall agreed with him. Although agreeing to join the Black-
mun draft, Justice White was ambivalent about hearing rearguments, but at
conference he voted to carry the case over. Justices Powell and O’Connor
also pressed for asking counsel to address the question of “whether or not
the principles of the Tenth Amendment as set forth in National League of
Cities v. Usery, 426 U.S. 833 (1976), should be reconsidered.” They aimed to
force Blackmun’s hand and to make him take a stand on that issue, which his
original draft had evaded. For his part, Blackmun promptly shot back, warn-
ing: “I venture to say .. . that if the question is to be presented, National
League of Cities just might end up being overruled. In the opinion I prepared
this Term, and as to which some took umbrage, it was not overruled.”
The justices heard rearguments on the first Monday in October 1984.
Afterward, on October 3, they discussed the case at conference:
 B | The Tenth and Eleventh Amendments and the States | 739

BURGER: 79 percent of mass transit is now public. Congress may want

federal control, but Congress must assert its conditions. Affirm.
BRENNAN: I was ready to join Harry’s opinion last term, and stand ready
to do so. If there is sentiment for expressly overruling National League of
Cities, | would join that. In fact, that may be required by Harry’s analy-
sis. Reverse.

WHITE: Reverse and overrule National League.

MARSHALL: Still with Harry and would overrule National League.
BLACKMUN: It was a disappointing oral argument from all concerned.
The
traditional government function test does not work. Reverse.
POWELL: Agree with the traditional governmental function test as whether
it is essentially a matter of local or national concern.A balancing test is
required. I don’t think that the federal interest here is that great. Affirm.
REHNQUIST: Affirm.

STEVENS: There is no doubt what Congress meant here. Any balancing

here is for Congress to do, as Brennan says. This is a classic case where it
is wrong for the judiciary to intervene. Reverse.
O’CONNOR: This is a watershed case... . The Framers encouraged a sys-
tem of dual sovereignty, state and federal sovereignty. The pay of state
employees is for the states to determine. The Court has a role in pro-
tecting the states. Affirm.
The conference discussion only served to solidify Justice Blackmun’s de-
cision to remain aligned with the four dissenters in National League of Cities
and to revise his draft opinion from the previous term and overrule National
League of Cities in Garcia.
Sources: Justice William
J. Brennan, Jr., Papers, and Justice Harry A. Blackmun Papers,
Box 412, Manuscripts Division, Library of Congress; and Del Dickson, ed., The
Supreme Court in Conference (1940-1985) (New York: Oxford University Press, 2001).

Garcia v. San Antonio Metropolitan

Transit Authority
469 U.S. 528, 105 S.CT. 1005 (1985)

In 1974, Congress amended the Fair Labor Standards Act (FLSA) to ap-
ply to virtually all state and local government employees and to require
state and local governments to comply with minimum -wage and
740 | THE STATES AND AMERICAN FEDERALISM

overtime standards. The San Antonio Metropolitan Transit Authority

(SAMTA) sought in federal district court a declaratory judgment ex-
empting it from FLSA’s provisions on the grounds that the amendment
to the law violated the Tenth Amendment. The court entered a sum-
mary judgment, without hearing oral arguments, for the transit author-
ity. Joe Garcia, a transit authority employee, appealed that decision to
the Supreme Court.
The Court’s decision was five to four, and the majority’s opinion
was announced by Justice Blackmun. Dissents were by Justices Powell,
O’Connor, and Rehnquist and joined by Chief Justice Burger.

Justice BLACKMUN delivers. the opinion of the Court.

We revisit in these cases an issue raised in National League of Cities v.
Usery, 426 U.S. 833 (1976). In that litigation, this Court, by a sharply divided
vote, ruled that the Commerce Clause does not empower Congress to en-
force the minimum-wage and overtime provisions of the Fair Labor Stan-
dards 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.
In the present cases, a Federal District Court concluded that municipal
ownership and operation of a mass-transit system is a traditional govern-
mental function and thus, under National League of Cities, is exempt from the
obligations imposed by the FLSA. Faced with the identical question, three
Federal Courts of Appeals and one state appellate court have reached the op-
posite conclusion.
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 govern-
mental 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
overtuleds >.
Appellees have not argued that SAMTA [San Antonio Metropolitan
Transit Authority] is immune from regulation under the FLSA on the
ground that it is a local transit system engaged in intrastate commercial ac-
tivity. In a practical sense, SAMTA’s operations might well be characterized
as “local.” Nonetheless, it long has been settled that Congress’ authority un-
der the Commerce Clause extends to intrastate economic activities that af-
fect interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Recl.
Assn., 452 U.S. 264 (1981); Heart of Atlanta Motel, Inc. v. United States, 379
US. 241 (1964); Wickard v. Filburn, 317 U.S. 111 (1942); United States v,
Darby, 312 U.S. 100 (1941). Were SAMTA aprivately owned and operated
enterprise, it could not credibly argue that Congress exceeded the bounds of
its Commerce Clause powers in prescribing minimum wages and overtime
 B | The Tenth and Eleventh Amendments and the States | 741

rates for SAMTA’s employees. Any constitutional exemption from the re-
quirements of the FLSA therefore must rest on SAMTA’s status as a govern-
mental entity rather than on the “local” nature of its operations.
The prerequisites for governmental immunity under National League of
Cities were summarized by this Court in Hodel. . . . Under that summary,
four conditions must be satisfied before a state activity may be deemed im-
mune from aparticular federal regulation under the Commerce Clause. First,
it is said that the federal statute at issue must regulate “the ‘States as States.’ ”
Second, the statute must “address matters that are indisputably ‘attribute[s] of
state sovereignty. ” Third, state compliance with the federal obligation must
“directly impair [the States’] ability ‘to structure integral operations in areas
of traditional governmental functions.’ ” Finally, the relation of state and
federal interests must not be such that “the nature of the federal interest . . .
justifies state submission.” .. .
The controversy in the present cases has focused on the third Hodel
requirement—that the challenged’ federal statute trench on “traditional
governmental functions.” The District Court voiced a common concern:
“Despite the abundance of adjectives, identifying which particular state
functions are immune remains difficult.’ Just how troublesome the task has
been is revealed by the results reached in other federal cases. Thus, [lower]
courts have held that regulating ambulance services, . . . licensing automobile
drivers, . .. operating a municipal airport, ... performing solid waste disposal,
... and operating a highway authority, ...are functions protected under Na-
tional League of Cities. At the same time, courts have held that issuance of in-
dustrial development bonds, . . . regulation of intrastate natural gas sales, . . .
regulation of traffic on public roads, ... regulation of air transportation, .. .
operation of a telephone system, . . . leasing and sale of natural gas, . . . oper-
ation of a mental health facility, ... and provision of in-house domestic ser-
vices for the aged and handicapped, . . . are not entitled to immunity. We find
it difficult, if not impossible, to identify an organizing principle that places
each of the cases in the first group on one side of a line and each of the
cases in the second group on the other side. The constitutional distinction
between licensing drivers and regulating traffic, for example, or between op-
erating a highway authority and operating a mental health facility, is elusive
at best.
Thus far, this Court itself has made little headway in defining the scope
of the governmental functions deemed protected under National League of
Cities. In that case the Court set forth examples of protected and un-
protected functions, ... but provided no explanation of how those examples
were identified. The only other case in which the Court has had occasion to
address the problem is [Transportation Union v.] Long Island [455 U.S. 678
(1982)]. We there observed: “The determination of whether a federal law
impairs a state’s authority with respect to ‘areas of traditional [state] func-
tions’ may at times be a difficult one.” The accuracy of that statement is
demonstrated by this Court’s own difficulties in Long Island in developing a
workable standard for “traditional governmental functions.” We relied in
large part there on “the historical reality that the operation of railroads is not
among the functions traditionally performed by state and local governments,”
but we simultaneously disavowed “a static historical view of state functions
generally immune from federal regulation” (first emphasis added; second em-
742 | THe STATES AND AMERICAN FEDERALISM

phasis in original). We held that the inquiry into a particular function’s “tra-
ditional” nature was merely a means of determining whether the federal
statute at issue unduly handicaps “basic state prerogatives” but we did not of-
fer an explanation of what makes one state function a “basic prerogative”
and another function not basic. Finally, having disclaimed _a rigid reliance on
the historical pedigree of state involvement in a particular area, we nonethe-
less found it appropriate to emphasize the extended historical record offed-
eral involvement in the field of rail transportation. .. .
Many constitutional standards involve “‘undoubte[d] . . . gray areas,” Fry
v. United States, 421 U.S. 542 (1975) (dissenting opinion), and, despite the dif
ficulties that this Court and other courts have encountered so far, it normally
might be fair to venture the assumption that case-by-case development
would lead to a workable standard for determining whether a particular
governmental function should be immune from federal regulation under the
Commerce Clause. A further cautionary note is sounded, however, by the
Court’s experience in the related field of state immunity from federal taxa-
tion. In South Carolina v. United States [199 U.S. 437] (1905), the Court held
for the first time that the state tax immunity recognized in Collector v. Day
[11 Wall. 113] (1871), extended only to the “ordinary” and “strictly govern-
mental” instrumentalities of state governments and not to instrumentalities
“used by the State in the carrying on of an ordinary private business.” While
the Court applied the distinction outlined in South Carolina for the following
AO years, at no time during that period did the Court develop a consistent
formulation of the kinds of governmental functions that were entitled to
immunity. The Court identified the protected functions at various times as
“essential,” “usual,” “traditional,” or “strictly governmental.” While “these dif-
ferences in phraseology ... must not be too literally contradistinguished” .. .
they reflect an inability to specify precisely what aspects of a governmental
function made it necessary to the “unimpaired existence” of the States. In-
deed, the Court ultimately chose “not, by an attempt to formulate any gen-
eral test, [to] risk embarrassing the decision of cases [concerning] activities of
a different kind which may arise in the future.” ...
If these tax immunity cases had any common thread, it was in the at-
tempt to distinguish between “governmental” and “proprietary” functions. To
say that the distinction between “governmental” and “proprietary” proved to
be stable, however, would be something of an overstatement. . . . It was this
uncertainty and instability that led the Court in New York v. United States [326
US. 572] (1946), unanimously to conclude that the distinction between
“governmental” and “proprietary” functions was “untenable” and must be
abandoned... .
The distinction the Court discarded as unworkable in the field of tax
immunity has proved no more fruitful in the field of regulatory immunity
under the Commerce Clause. Neither do any of the alternative standards
that might be employed to distinguish between protected and unprotected
governmental functions appear manageable. We rejected the possibility of
making immunity turn on a purely historical standard of “tradition” in Long
Island, and properly so. The most obvious defect of a historical approach to
state immunity is that it prevents a court from accommodating changes in
the historical functions of States, changes that have resulted in a number of
once-private functions like education being assumed by the States-and their
 B | The Tenth and Eleventh Amendments and the States | 743

subdivisions. At the same time, the only apparent virtue of a rigorous histor-
ical standard, namely, its promise of a reasonably objective measure for state
immunity, is illusory. Reliance on history as an organizing principle results in
linedrawing of the most arbitrary sort; the genesis of state governmental
functions stretches over a historical continuum from before the Revolution
to the present, and courts would have to decide by fiat precisely how long-
standing a pattern of state involvement had to be for federal regulatory au-
thority to be defeated.
A nonhistorical standard for selecting immune governmental functions
is likely to be just as unworkable as is a historical standard. The goal of iden-
tifying “uniquely” governmental functions, for example, has been rejected by
the Court in the field of governmental tort liability in part because the no-
tion of a “uniquely” governmental function is unmanageable. Another possi-
bility would be to confine immunity to “necessary” governmental services,
that is, services that would be provided inadequately or not at all unless the
government provided them. ...The set of services that fits into this category,
however, may well be negligible. The fact that an unregulated market pro-
duces less of some service than a State deems desirable does not mean that
the State itself must provide the service; in most if not all cases, the State can
“contract out” by hiring private firms to provide the service or simply by
providing subsidies to existing suppliers. It also is open to question how well
equipped courts are.
We believe, however, that there is a more fundamental problem at work
here, a problem that explains why the Court was never able to provide a ba-
sis for the governmental/proprietary distinction in the intergovernmental tax
immunity cases and why an attempt to draw similar distinctions with respect
to federal regulatory authority under National League of Cities is unlikely to
succeed regardless of how the distinctions are phrased. The problem is that
neither the governmental proprietary distinction nor any other that purports
to separate out important governmental functions can be faithful to the role
of federalism in a democratic society. The essence of our federal system is
that within the realm of authority left open to them under the Constitution,
the States must be equally free to engage in any activity that their citizens
choose for the common weal, no matter how unorthodox or unnecessary
anyone else—including the judiciary—deems state involvement to be. Any
rule of state immunity that looks to the “traditional,” “integral,” or “neces-
sary” nature of governmental functions inevitably invites an unelected fed-
eral judiciary to make decisions about which state policies it favors and
which ones it dislikes. ““The science of government ... is the science of ex-
periment,” Anderson v. Dunn [19 U.S. 204] (1821), and the States cannot
serve as laboratories for social and economic experiment, see New State Ice
Co. v. Liebmann, 285 U.S. 262 (1932) (BRANDEIS, J., dissenting), if they
must pay an added price when they meet the changing needs of their citi-
zenry by taking up functions that an earlier day and a different society left in
private hands....
We therefore now reject, as unsound in principle and unworkable in
practice, a rule of state immunity from federal regulation that turns on a ju-
' dicial appraisal 6f whether a particular governmental function is “integral” or
“traditional.” Any such rule leads to inconsistent results at the same time that
it disserves principles of democratic self-governance, and it breeds inconsis-
744 | Tue STATES AND AMERICAN FEDERALISM
ee

tency 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 accord-
ingly return to the underlying issue that confronted this Court in National
League of Citie-—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 oc-
cupy a special position in our constitutional system and that the scope of
Congress’ authority under the Commerce Clause must reflect that position.
Of course, the Commerce Clause by its specific language does not provide
any special limitation on Congress’ actions with respect to the States. . . . It is
equally true, however, that the text of the Constitution provides the begin-
ning rather than the final answer to every inquiry into questions of federal-
ism, for “[b]ehind the words of the constitutional provisions are postulates
which limit and control.” Monaco v. Mississippi, 292 U.S. 313 (1934). National
League of Cities reflected the general conviction that the Constitution pre-
cludes “the National Government [from] devour[ing] the essentials of state
sovereignty.” Maryland v. Wirtz, 392 U.S. [183 (1968)] (dissenting opinion).
In order to be faithful to the underlying federal premises of the Consti-
tution, courts must look for the “postulates which limit and control.”
What has proved problematic is not the perception that the Constitu-
tion’s federal structure imposes limitations on the Commerce Clause, but
rather the nature and content of those limitations. One approach to defining
the limits on Congress’ authority to regulate the States under the Commerce
Clause is to identify certain underlying elements of political sovereignty that
are deemed essential to the States’ “separate and independent existence.” Lane
County v. Oregon [7 Wall. 71] (1869). This approach obviously underlay the
Court’s use of the “traditional governmental function” concept in National
League of Cities. It also has led to the separate requirement that the chal-
lenged federal statute “address matters that are indisputably ‘attribute[s] of
state sovereignty.’ ” Hodel. In National League of Cities itself, for example, the
Court concluded that decisions by a State concerning the wages and hours
of its employees are an “undoubted attribute of state sovereignty.” . . .The
opinion did not explain what aspects of such decisions made them such an
“undoubted attribute?’ and the Court since then has remarked on the un-
certain scope of the concept. See EEOC v. Wyoming, [460 U.S. 266 (1983)].
The point of the inquiry, however, has remained to single out particular fea-
tures of a State’s internal governance that are deemed to be intrinsic parts of
state sovereignty.
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” ele-
ments 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 con-
traction of state sovereignty by authorizing Congress to exercise a wide
range of legislative powers and (in conjunction with the Supremacy Clause
 B | The Tenth and Eleventh Amendments and the States | 745

of Article VI) to displace contrary state legislation. By providing for final re-
view of questions of federal law in this Court, Article III curtails the sover-
eign power of the States’ judiciaries to make authoritative determinations of
law. See Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). Finally, the developed
application, through the Fourteenth Amendment, of the greater part of the
Bill of Rights to the States limits the sovereign authority that States other-
wise would possess to legislate with respect to their citizens and to conduct
their own affairs.
The States unquestionably do “retai[n] a significant measure of sover-
eign authority.’ They do so, however, only to the extent that the Constitu-
tion has not divested them of their original powers and transferred those
powers to the Federal Government. In the words of James Madison to the
Members of the First Congress: “Interference with the power of the States
was no constitutional criterion of the power of Congress. If the power was
not given, Congress could not exercise it; if given, they might exercise it, al-
though it should interfere with the laws, or even the Constitution of the
States. 4:
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. Only recently, this
Court recognized that the purpose of the constitutional immunity recog-
nized in National League of Cities is not to preserve “a sacred province of
state autonomy.” EEOC v. Wyoming. With rare exceptions, like the guarantee,
in Article IV, Sec. 3, of state territorial integrity, the Constitution does not
carve out express elements of state sovereignty that Congress may not em-
ploy its delegated powers to displace. James Wilson reminded the Penn-
sylvania ratifying convention in 1787: “It is true, indeed, sir, although it
presupposes the existence of state governments, yet this Constitution does
not suppose them to be the sole power to be respected.” 2 Debates in the Sev-
eral State Conventions on the Adoption of the Federal Constitution 439 (J. Elliot
2d ed. 1876). The power of the Federal Government is a “power to be
respected” as well, and the fact that the States remain sovereign as to all pow-
ers not vested in Congress or denied them by the Constitution offers no
guidance about where the frontier between state and federal power lies. In
short, we have no license to employ freestanding conceptions of state sov-
ereignty when measuring congressional authority under the Commerce
Clause.
When we look for the States’ “residuary and inviolable sovereignty,’ The
Federalist No. 39 (J. Madison), in the shape of the constitutional scheme
rather than in predetermined notions of sovereign power, a different measure
of state sovereignty emerges. Apart from the limitation on federal authority
inherent in the delegated nature of Congress’ Article I powers, the principal
means chosen by the Framers to ensure the role of the States in the federal
system lies in the structure of the Federal Government itself. It is no novelty
to observe that the composition of the Federal Government was designed in
large part to protect the States from over-reaching by Congress. The Framers
thus gave the States a role in the selection both of the Executive and the Leg-
islative Branches of the Federal Government. The States were vested with in-
' direct influence’ over the House of Representatives and the Presidency by
their control of electoral qualifications and their role in presidential elections.
USS. Const., Art. I, Sec. 2, and Art. II, Sec. 1. They were given more direct in-
746 | THE STATES AND AMERICAN FEDERALISM

fluence in the Senate, where each State received equal representation and
each Senator was to be selected by the legislature of his State. Art. I, Sec. 3.
The significance attached to the States’ equal representation in the Senate is
underscored by the prohibition of any constitutional amendment divesting a
State of equal representation without the State’s consent. Art.V. .. .
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 work-
ings 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.
The effectiveness of the federal political process in preserving the States’
interests is apparent even today in the course of federal legislation. On the
one hand, the States have been able to direct a substantial proportion of fed-
eral revenues into their own treasuries in the form of general and program-
specific grants in aid. The federal role in assisting state and local governments
is a longstanding one; Congress provided federal land grants to finance state
governments from the beginning of the Republic, and direct cash grants
were awarded as early as 1887 under the Hatch Act. In the past quarter-
century alone, federal grants to States and localities have grown from $7 bil-
lion to $96 billion. As a result, federal grants now account for about one-fifth
of state and local government expenditures.The States have obtained federal
funding for such services as police and fire protection, education, public
health and hospitals, parks and recreation, and sanitation. Moreover, at the
same time that the States have exercised their influence to obtain federal
support, they have been able to exempt themselves from a wide variety of
obligations imposed by Congress under the Commerce Clause. For exam-
ple, the Federal Power Act, the National Labor Relations Act, the Labor-
Management Reporting and Disclosure Act, the Occupational Safety and
Health Act, the Employee Retirement Insurance Security Act, and the Sher-
man Act all contain express or implied exemptions for States and their sub-
divisions. The fact that some federal statutes such as the FLSA extend general
obligations to the States cannot obscure the extent to which the political po-
sition of the States in the federal system has served to minimize the burdens
that the States bear under the Commerce Clause. . . .
[A]gainst this background, we are convinced that the fundamental limi-
tation that the constitutional scheme imposes on the Commerce Clause to
protect the “States as States” is one of process rather than one of result. Any
substantive restraint on the exercise of Commerce Clause powers must find
its justification in the procedural nature of this basic limitation, and it must
be tailored to compensate for possible failings in the national political process
rather than to dictate a “sacred province of state autonomy.” ...
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. .
This analysis makes clear that Congress’ action in affording SAMTA
employees the protections of the wage and hour provisions of the FLSA
 B | The Tenth and Eleventh Amendments and the States | 747

contravened no affirmative limit on Congress’ power under the Commerce

Clause. The judgment of the District Court therefore must be reversed. .. .

“1 Justice POWELL, with whom the CHIEF JUSTICE, Justice

REHNQUIST and Justice O'CONNOR join, dissenting.
The Court today, in its 5-4 decision, overrules National League of Cities
v. Usery (1976), a case in which we held that Congress lacked authority to
impose the requirements of the Fair Labor Standards Act on state and local
governments. Because I believe this decision substantially alters the federal
system embodied in the Constitution, I dissent.
There are, of course, numerous examples over the history of this Court
in which prior decisions have been reconsidered and overruled. There have
been few cases, however, in which the principle of stare decisis and the ra-
tionale of recent decisions were ignored as abruptly as we now witness. The
reasoning of the Court in National League of Cities, and the principle applied
there, have been reiterated consistently over the past eight years. Since its de-
cision in 1976, National League of Cities has been cited and quoted in opin-
ions joined by every member of the present Court. ...
Whatever effect the Court’s decision may have in weakening the appli-
cation of stare decisis, it is likely to be less important than what the Court has
done to the Constitution itself. A unique feature of the United States is the
federal system of government guaranteed by the Constitution and implicit in
the very name of our country. Despite some genuflecting in 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. . ..
Much of the Court’s opinion is devoted to arguing that it is difficult to
define a priori “traditional governmental functions.’ National League of Cities
neither engaged in, nor required, such a task. The Court discusses and con-
demns as standards “traditional governmental function{s],’ “purely historical”
functions, “ ‘uniquely’ governmental functions,’ and “ ‘necessary’ govern-
mental services.” But nowhere does it mention that National League of Cities
adopted a familiar type of balancing test for determining whether Com-
merce Clause enactments transgress constitutional limitations imposed by the
federal nature of our system of government. This omission is noteworthy,
since the author of today’s opinion joined National League of Cities and con-
curred separately to point out that the Court’s opinion in that case “adopt{s]
a balancing approach [that] does not outlaw federal power in areas . . . where
the federal interest is demonstrably greater and where state . . . compliance
with imposed federal standards would be essential.” (BLACKMUN, J., con-
curring)....
In overruling National League of Cities, the Court incorrectly character-
izes the mode of analysis established therein and developed in subsequent
cases.
Moreover, the statute at issue in this case, the FLSA, is the identi-
cal statute that was at issue in National League of Cities. Although Justice
BLACKMUN% concurrence noted that he was “not untroubled by certain
possible implications of the Court’s opinion” in National League of Cities, it
also stated that “the result with respect to the statute under challenge here
748 | THe StaTES AND AMERICAN FEDERALISM

[the FLSA] is necessarily correct” (emphasis added). His opinion for the Court
today does not discuss the statute, nor identify any changed circumstances
that warrant the conclusion today that National League of Cities is necessarily
wrong.
Today’s opinion does not explain how the States’ role in the electoral
process guarantees that particular exercises of the Commerce Clause power
will not infringe on residual State sovereignty. Members of Congress are
elected from the various States, but once in office they are members of the
federal government. ...
The Court apparently thinks that the State’s success at obtaining federal
funds for various projects and exemptions from the obligations of some fed-
eral statutes is indicative of the “effectiveness of the federal political process
in preserving the States’ interests.” But such political success is not relevant to
the question whether the political processes are the proper means of enforcing
constitutional limitations. The fact that Congress generally does not trans-
gress constitutional limits on its power to reach State activities does not make
judicial review any less necessary to rectify the cases in which it does do so.
The States’ role in our system of government is a matter of constitutional
law, not of legislative grace. “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the
States, respectively, or to the people.’ U.S. Const., Amend. 10.
More troubling than the logical infirmities in the Court’s reasoning is
the result of its holding, i.e., that federal political officials, invoking the
Commerce Clause, are the sole judges of the limits of their own power. This
result is inconsistent with the fundamental principles of our constitutional
system. See, e.g., The Federalist No. 78 (Hamilton). At least since Marbury v.
Madison it has been the settled province of the federal judiciary “to say what
the law is” with respect to the constitutionality of acts of Congress. In re-
jecting the role of the judiciary in protecting the States from federal over-
reaching, the Court’s opinion offers no explanation for ignoring the teaching
of the most famous case in our history.
In our federal system, the States have a major role that cannot be pre-
empted by the national government. As contemporaneous writings and the
debates at the ratifying conventions make clear, the States’ ratification of
the Constitution was predicated on this understanding of federalism. In-
deed, the Tenth Amendment was adopted specifically to ensure that the im-
portant role promised the States by the proponents of the Constitution was
fealizeids yy:
[T]he harm to the States that results from federal overreaching under
the Commerce Clause is not simply a matter of dollars and cents. Nor is it a
matter of the wisdom or folly of certain policy choices. 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.
The emasculation of the powers of the States that can result from the
Court’s decision is predicated on the Commerce Clause as a power “dele-
gated to the United States” by the Constitution. The relevant language states:
“Congress shall have power ... to regulate commerce with foreign nations
and among the several states and with the Indian tribes.’ Art. I, Sec. 8. Sec-
 B | The Tenth and Eleventh Amendments and the States | 749

tion eight identifies a score of powers, listing the authority to lay taxes, bor-
row money on the credit of the United States, pay its debts, and provide for
the common defense and the general welfare before its brief reference to
“Commerce.” It is clear from the debates leading up to the adoption of the
Constitution that the commerce to be regulated was that which the states
themselves lacked the practical capability to regulate. Indeed, the language of
the clause itself focuses on activities that only a national government could
regulate: commerce with foreign nations and Indian tribes and “among” the
several states.
To be sure, this Court has construed the Commerce Clause to accom-
modate unanticipated changes over the past two centuries. As these changes
have occurred, the Court has had to decide whether the federal government
has exceeded its authority by regulating activities beyond the capability of a
single state to regulate or beyond legitimate federal interests that outweighed
the authority and interests of the States. In so doing, however, the Court
properly has been mindful of the essential role of the States in our federal
system.
The opinion for the Court in National League of Cities was faithful to
history in its understanding of federalism.The Court observed that “our fed-
eral system of government imposes definite limits upon the authority of
Congress to regulate the activities of States as States by means of the com-
merce power.’ The Tenth Amendment was invoked to prevent Congress
from exercising its “power in a fashion that impairs the States’ integrity or
their ability to function effectively in a federal system.” . . .
This Court has recognized repeatedly that state sovereignty is a funda-
mental component of our system of government. More than a century ago,
in Lane County v. Oregon (1868), the Court stated that the Constitution rec-
ognized “the necessary existence of the States, and, within their proper
spheres, the independent authority of the States.” It concluded, as Madison
did, that this authority extended to “nearly the whole charge of interior reg-
ulation; to [the States] and to the people all powers not expressly delegated
to the national government are reserved.” Recently, in Community Communi-
cations Co. v. City of Boulder [455 U.S. 40] (1982), the Court recognized that
the state action exemption from the antitrust laws was based on state sover-
eignty. Similarly, in United Transportation Union v. Long Island R. Co. (1982), al-
though finding the Railway Labor Act applicable to a stateowned railroad,
the unanimous Court was careful to say that the States possess constitution-
ally preserved sovereign powers. .. .
In contrast, the Court today propounds a view of federalism that pays
only lip service to the role of the States. Although it says that the States “un-
questionably do ‘retai[n] a significant measure of sovereign authority, ” it
fails to recognize the broad, yet specific areas of sovereignty that the Framers
intended the States to retain. Indeed, the Court barely acknowledges that the
Tenth Amendment exists. That Amendment states explicitly that “[t]he pow-
ers not delegated to the United States . . . are reserved to the States.” U.S.
Const., Amend. 10. The Court recasts this language to say that the States re-
tain their sovereign powers “only to the extent that the Constitution has not
divested them of their original powers and transferred those powers to the
Federal Government.” This rephrasing is not a distinction without a differ-
ence; rather, it reflects the Court’s unprecedented view that Congress is free
750 | THE STATES AND AMERICAN FEDERALISM

under the Commerce Clause to assume a State’s traditional sovereign power,

and to do so without judicial review of its action. Indeed, the Court’s view
of federalism appears to relegate the States to precisely the trivial role a
opponents of the Constitution feared they would occupy.
In National League of Cities, we spoke of fire prevention, police protec-
tion, sanitation, and public health as “typical of [the services] performed
by state and local governments in discharging their dual functions of ad-
ministering the public law and furnishing public services.” Not only are
these activities remote from any normal concept of interstate commerce,
they are also activities that epitomize the concerns of local, democratic self-
government. In emphasizing the need to protect traditional governmental
functions, we identified the kinds of activities engaged in by state and local
governments that affect the everyday lives of citizens. These are services that
people are in a position to understand and evaluate, and in a democracy, have
the right to oversee. We recognized that “it is functions such as these which
governments are created to provide ...” and that the states and local govern-
ments are better able than the national government to perform them.
The Court maintains that the standard approved in National League of
Cities “disserves principles of democratic self-government.” In reaching this
conclusion, the Court looks myopically only to persons elected to positions
in the federal government. It disregards entirely the far more effective role of
democratic self-government at the state and local levels. One must compare
realistically the operation of the state and local governments with that of the
federal government. Federal legislation is drafted primarily by the staffs of
the congressional committees. In view of the hundreds of bills introduced at
each session of Congress and the complexity of many of them, it is virtually
impossible for even the most conscientious legislators to be truly familiar
with many of the statutes enacted. Federal departments and agencies cus-
tomarily are authorized to write regulations. Often these are more important
than the text of the statutes. As is true of the original legislation, these are
drafted largely by staff personnel. The administration and enforcement of
federal laws and regulations necessarily are largely in the hands of staff and
civil service employees. These employees may have little or no knowledge of
the States and localities that will be affected by the statutes and regulations
for which they are responsible. In any case, they hardly are as accessible and
responsive as those who occupy analogous positions in State and local
governments. ...
The question presented in this case is whether the extension of the
FLSA to the wages and hours of employees of a city-owned transit system
unconstitutionally impinges on fundamental state sovereignty. The Court’s
sweeping holding does far more than simply answer this question in the neg-
ative. In overruling National League of Cities, today’s opinion apparently au-
thorizes federal control, under the auspices of the Commerce Clause, over
the terms and conditions of employment of all state and local employees.
Thus, for purposes of federal regulation, the Court rejects the distinction be-
tween public and private employers that had been drawn carefully in Na-
tional League of Cities. The Court’s action reflects a serious misunderstanding,
if not an outright rejection, of the history of our country and the intention
of the Framers of the Constitution. ...
As I view the Court’s decision today as rejecting the basic precepts of
 B | The Tenth and Eleventh Amendments and the States | 751

our federal system and limiting the constitutional role of judicial review, I
dissent.

Justice O°’CONNOR, with whom Justice POWELL and Justice

REHNQUIST join, dissenting.
The Court today surveys the battle scene of federalism and sounds a re-
treat. Like Justice POWELL, I would prefer to hold the field and, at the very
least, render a little aid to the wounded. I join Justice POWELL’ opinion. I
also write separately to note my fundamental disagreement with the major-
ity’s views of federalism and the duty of this Court. ...
In my view, federalism cannot be*reduced to the weak “essence” distilled
by the majority today. There is more to federalism than the nature of the
constraints that can be imposed on the States in “the realm of authority left
open to them by the Constitution.’ The central issue of federalism, of
course, is whether any realm is left ‘open to the States by the Constitution—
whether any area remains in which a State may act free of federal interfer-
ence... . The true “essence” of federalism is that the States as States have
legitimate interests which the National Government is bound to respect
even though its laws are supreme. Younger v. Harris, 401 U.S. 37 (1971). If
federalism so conceived and so carefully cultivated by the Framers of our
Constitution is to remain meaningful, this Court cannot abdicate its consti-
tutional responsibility to oversee the Federal Government’s compliance with
its duty to respect the legitimate interests of the States.
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 cor-
rectly 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
Staves =
We would do well to recall the constitutional basis for federalism and
the development of the commerce power which has come to displace it. The
text of the Constitution does not define the precise scope of state authority
other than to specify, in the Tenth Amendment, that the powers not dele-
gated to the United States by the Constitution are reserved to the States. In
the view of the Framers, however, this did not leave state authority weak or
defenseless; the powers delegated to the United States, after all, were “few
and defined.” The Federalist No. 45.The Framers’ comments indicate that the
sphere of state activity was to be a significant one, as Justice POWELL’
opinion clearly demonstrates. The States were to retain authority over those
local concerns of greatest relevance and importance to the people. ...
The problems of federalism in an integrated national economy are ca-
pable of more’responsible resolution than holding that the States as States re-
tain no status apart from that which Congress chooses to let them retain. The
proper resolution, I suggest, lies in weighing state autonomy as a factor in the
752 | THe STATES AND AMERICAN FEDERALISM

balance when interpreting the means by which Congress can exercise 1ts au-
thority on the States as States. It is insufficient, in assessing the validity of
congressional regulation of a State pursuant to the commerce power, to ask
only whether the same regulation would be valid if enforced against a pri-
vate party... .As far as the Constitution is concerned, a State should not be
equated with any private litigant. ... Instead, the autonomy of a State is an
essential component of federalism. If state autonomy is ignored in assessing
the means by which Congress regulates matters affecting commerce, then
federalism becomes irrelevant simply because the set of activities remaining
beyond the reach of such a commerce power “may well be negligible.”
It has been difficult for this Court to craft bright lines defining the scope
of the state autonomy protected by National League of Cities. Such difficulty is
to be expected whenever constitutional concerns as important as federalism
and the effectiveness of the commerce power come into conflict. Regardless
of the difficulty, it is and will remain the duty of this Court to reconcile these
concerns in the final instance. That the Court shuns the task today by appeal-
ing to the “essence of federalism” can provide scant comfort to those who
believe our federal system requires something more than a unitary, centralized
government. I would not shirk the duty acknowledged by National League of
Cities and its progeny, and I share Justice REHNQUIST’s belief that this
Court will in time again assume its constitutional responsibility.
I respectfully dissent.

New York v. United States

505 USS. 144, 112 S.CT. 2408 (1992)

In the late 1970s, federal policy makers began confronting the prospect
that the country would soon run out of disposal sites for low-level
radioactive waste. Federal authorities began targeting three states—
Nevada, South Carolina, and Washington—as possible disposal sites but
encountered widespread criticism from those and other states. Finally,
based largely on recommendations made by the National Governors’
Association, Congress enacted the Low-Level Radioactive Waste Policy
Act of 1980, which established a federal policy of holding each state
“responsible for providing for the availability of capacity either within
or outside the State for the disposal of low-level radioactive waste gen-
erated within its borders,’ upon finding that such waste could be dis-
posed of “most safely and efficiently ... on a regional basis’? The act
authorized the states to enter into regional compacts that, after ratifica-
tion by Congress, would have authority in 1986 to restrict the use of
disposal facilities to waste generated by states within each region.
By 1985, however, only three regional compacts had been formed,
 B | The Tenth and Eleventh Amendments and the States | 753

all around the three targeted states. As a result, the following year the
authorities for three regional compacts would have the authority to ex-
clude the disposal of radioactive waste generated in states not belong-
ing to one of the compacts, and thirty-one states would thus be left
with no ensured site for the disposal of their radioactive wastes. Con-
gress therefore amended its earlier legislation with the Low-Level
Radioactive Waste Policy Amendments Act of 1985.
The 1985 act, which was also based on proposals submitted by the
National Governors’ Association, achieved a kind of political compro-
mise between the targeted and untargeted states. The targeted states
agreed to continue, for seven years, to dispose of radioactive waste gen-
erated in other states, while the nontargeted states agreed to provide
disposal sites for their own waste by 1992. The law also provided three
kinds of incentives for states to comply with their obligation to dispose
of waste generated within their own borders by 1992: (1) Monetary in-
centives: States or compacts disposing of all radioactive waste generated
within their borders by January 1, 1993, might receive special funding
from surcharges collected by the targeted states and held in escrow by
the Department of Energy. (2) Access incentives: States or compacts
that failed to meet specified deadlines for disposing of their waste
would be charged double surcharges and be denied access to disposal
sites in targeted states thereafter, and those states failing to operate dis-
posal facilities by January 1, 1992, could be charged triple surcharges.
(3) A “take-title provision”: States or compacts that failed to provide
disposal sites for all wastes generated within the state or compact by
January 1, 1996, would be obligated to take title of all undisposed waste
and assume liability for all damages incurred by the waste’s generator,
which could not dispose of it because of the state’s or compact’s failure
to provide a disposal site.
New York, which generates a large share of the nation’s low-level
radioactive waste, complied with the 1985 law’s requirements for siting
and financing of disposal facilities by selecting five potential disposal
sites. But residents in two of the counties selected as disposal sites filed
suit and were later joined by New York State authorities. They argued
that the 1985 amendments were unconstitutional and intruded on
states’ rights as guaranteed by the Tenth Amendment. The Court of Ap-
peals for the Second Circuit, however, rejected that argument and New
York appealed to the Supreme Court.
The Court’s decision was six to three; the majority’s opinion was
announced by Justice O’Connor. Justices White and Stevens delivered
separate opinions, in part concurring and in part dissenting, in which
Justice Biackmun joined.
754 | THe STATES AND AMERICAN FEDERALISM

(1 Justice O'CONNOR delivers the opinion of the Court.

[T]he Tenth Amendment “states but a truism that all is retained which
has not been surrendered.” United States v. Darby, 312 U.S. 100 (1941). ...
This has been the Court’s consistent understanding: “The States unquestion-
ably do retain a significant measure of sovereign authority ...to the extent
that the Constitution has not divested them of their original powers and
transferred those powers to the Federal Government.” Garcia v. San Antonio
Metropolitan Transit Authority. [469 U.S. 528 (1985)].
Congress exercises its conferred powers subject to the limitations con-
tained in the Constitution. Thus, for example, under the Commerce Clause
Congress may regulate publishers engaged in interstate commerce, but Con-
gress is constrained in the exercise of that power by the First Amendment.
The Tenth Amendment likewise restrains the power of Congress, but this
limit is not derived from the text of the Tenth Amendment itself, which, as
we have discussed, is essentially a tautology. Instead, the Tenth Amendment
confirms that the power of the Federal Government is subject to limits that
may, in a given instance, reserve power to the States. The Tenth Amendment
thus directs us to determine, as in this case, whether an incident of state sov-
ereignty is protected by a limitation on an Article I power... .
[The federal] framework has been sufficiently flexible over the past two
centuries to allow for enormous changes in the nature of government. The
Federal Government undertakes activities today that would have been un-
imaginable to the Framers in two senses; first, because the Framers would
not have conceived that any government would conduct such activities; and
second, because the Framers would not have believed that the Federal
Government, rather than the States, would assume such responsibilities. Yet
the powers conferred upon the Federal Government by the Constitution
were phrased in language broad enough to allow for the expansion of the
Federal Government’s role. Among the provisions of the Constitution that
have been particularly important in this regard, three concern us here.
First, the Constitution allocates to Congress the power “to regulate
Commerce ... among the several States.” Art. I, Sec. 8, cl. 3... . Second, the
Constitution authorizes Congress “to pay the Debts and provide for the .. .
general Welfare of the United States.’ Art. I, Sec. 8, cl. 1... . The Court’s
broad construction of Congress’ power under the Commerce and Spending
Clauses has of course been guided, as it has with respect to Congress’ power
generally, by the Constitution’s Necessary and Proper Clause, which author-
izes Congress “to make all Laws which shall be necessary and proper for car-
rying into Execution the foregoing Powers.” U.S. Const., Art. I., Sec. 8, cl. 18.
Finally, The Constitution provides that “the Laws of the United States
... Shall be the supreme Law of the Land ... any Thing in the Constitution
or Laws of .any State to the Contrary notwithstanding.” U.S. Const., Art. VI,
a2 PA
The actual scope of the Federal Government’s authority with respect to
the States has changed over the years, therefore, but the constitutional struc-
ture underlying and limiting that authority has not. In the end, just as a cup
may be half empty or half full, it makes no difference whether one views the
question at issue in this case as one of ascertaining the limits of the power
delegated to the Federal Government under the affirmative provisions of the
Constitution or one of discerning the core of sovereignty retained by the
 B | The Tenth and Eleventh Amendments and the States | 755.

States under the Tenth Amendment. Either way, we must determine whether
any of the three challenged provisions of the Low-Level Radioactive Waste
Policy Amendments Act of 1985 oversteps the boundary between federal
and state authority. ...
Most of our recent cases interpreting the Tenth Amendment have con-
cerned the authority of Congress to subject state governments to generally
applicable laws. The Court’s jurisprudence in this area has traveled an un-
steady path. See Maryland v. Wirtz, 392 U.S. 183 (1968) (state schools and
hospitals are subject to Fair Labor Standards Act); Garcia v. San Antonio Metro-
politan Tiansit Authority, 469 U.S. 528 (1985) (overruling National League of
Cities) (state employers are once again subject to Fair Labor Standards Act).
This case presents no occasion to apply or revisit the holdings of any of
these cases, as this is not a case in which Congress has subjected a State to the
same legislation applicable to private parties. Cf. FERC v. Mississippi, 456
US. 742 (1982).
This case instead concerns thé circumstances under which Congress
may use the States as implements of regulation; that is, whether Congress
may direct or otherwise motivate the States to regulate in a particular field or
a particular way. Our cases have established a few principles that guide our
resolution of the issue.
As an initial matter, Congress may not simply ““commandeer the legisla-
tive processes of the States by directly compelling them to enact and enforce
a federal regulatory program.” Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U.S. 264 (1981). ...
While Congress has substantial powers to govern the Nation directly, in-
cluding in areas of intimate concern to the States, the Constitution has never
been understood to confer upon Congress the ability to require the States to
govern according to Congress’ instructions. . . .
This is not to say Congress lacks the ability to encourage a State to reg-
ulate in a particular way, or that Congress may not hold out incentives to the
States as a method of influencing a State’s policy choices. Our cases have
identified a variety of methods, short of outright coercion, by which Con-
gress may urge a State to adopt a legislative program consistent with federal
interests. Two of these methods are of particular relevance here.
First, under Congress’ spending power, “Congress may attach condi-
tions on the receipt of federal funds.” South Dakota v. Dole, 483 U.S. [203
(L987) |e
Second, where Congress has the authority to regulate private activity
under the Commerce Clause, we have recognized Congress’ power to offer
States the choice of regulating that activity according to federal standards or
having state law, pre-empted by federal regulation. .. .
By contrast, where the Federal Government compels States to regulate,
the accountability of both state and federal officials is diminished. If the cit-
izens of New York, for example, do not consider that making provision for
‘the disposal of radioactive waste is in their best interest, they may elect state
officials who share their view. That view can always be pre-empted under the
Supremacy Clause if it is contrary to the national view, but in such a case it
is the Federal Government that makes the decision in full view of the pub-
lic, and it will be federal officials that suffer the consequences if the decision
turns out to be detrimental or unpopular. But where the Federal Govern-
756 | Tue STATES AND AMERICAN FEDERALISM

ment directs the States to regulate, it may be state officials who will bear the
brunt of public disapproval, while the federal officials who devised the regu-
latory program may remain insulated from the electoral ramifications of
their decision. Accountability is thus diminished when, due to federal co-
ercion, elected state officials cannot regulate in accordance with the views of
the local electorate in matters not pre-empted by federal regulation.
With these principles in mind, we turn to the three challenged provi-
sions of the Low-Level Radioactive Waste Policy Amendments Act of 1985.
The first set of incentives works in three steps. First, Congress has au-
thorized States with disposal sites to impose a surcharge on radioactive waste
received from other States. Second, the Secretary of Energy collects a por-
tion of this surcharge and places the money in an escrow account. Third,
States achieving a series of milestones receive portions of this fund.
The first of these steps is an unexceptionable exercise of Congress’
power to authorize the States to burden interstate commerce. .. .
The second step, the Secretary’s collection of a percentage of the sur-
charge, is no more than a federal tax on interstate commerce, which peti-
tioners do not claim to be an invalid exercise of either Congress’ commerce
or taxing power.
The third step is a conditional exercise of Congress’ authority under the
Spending Clause: Congress has placed conditions—the achievement of the
mulestones—on the receipt of federal funds... .
This third so-called “incentive” offers States, as an alternative to regulat-
ing pursuant to Congress’ direction, the option of taking title to and posses-
sion of the low level radioactive waste generated within their borders and
becoming liable for all damages waste generators suffer as a result of the
States’ failure to do so promptly. In this provision, Congress has crossed the
line distinguishing encouragement from coercion... .
The take title provision offers state governments a “choice” of either ac-
cepting ownership of waste or regulating according to the instructions of
Congress. . . . Because an instruction to state governments to take title to
waste, standing alone, would be beyond the authority of Congress, and be-
cause a direct order to regulate, standing alone, would also be beyond the au-
thority of Congress, it follows that Congress lacks the power to offer the
States a choice between the two. Unlike the first two sets of incentives, the
take title incentive does not represent the conditional exercise of any con-
gressional power enumerated in the Constitution. In this provision, Congress
has not held out the threat of exercising its spending power or its commerce
power; it has instead held out the threat, should the States not regulate
according to one federal instruction, of simply forcing the States to submit
to another federal instruction. A choice between two unconstitutionally
coercive regulatory techniques is no choice at all. Either way, “the Act
commandeers the legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program,” Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc., an outcome that has never been
understood to lie within the authority conferred upon Congress by the
Constitution. .. .
The take title provision appears to be unique. No other federal statute
has been cited which offers a state government no option other than that of
implementing legislation enacted by Congress. Whether one views the take
 B | The Tenth and Eleventh Amendments and the States | 757

title provision as lying outside Congress’ enumerated powers, or as infringing

upon the core of state sovereignty reserved by the Tenth Amendment, the
provision is inconsistent with the federal structure of our Government es-
tablished by the Constitution. . . .
... The Constitution permits both the Federal Government and the
States to enact legislation regarding the disposal of low level radioactive
waste. The Constitution enables the Federal Government to pre-empt state
regulation contrary to federal interests, and it permits the Federal Govern-
ment to hold out incentives to the States as a means of encouraging them to
adopt suggested regulatory schemes. It does not, however, authorize Con-
gress simply to direct the States to provide for the disposal of the radioactive
waste generated within their borders: While there may be many constitu-
tional methods of achieving regional self-sufficiency in radioactive waste dis-
posal, the method Congress has chosen is not one of them.The judgment of
the Court of Appeals is accordingly
Affirmed in part and reversed in part.

| Justice WHITE, with ivhom Justices BLACKMUN and STEVENS

join, concurring and dissenting in part.
My disagreement with the Court’s analysis begins at the basic descrip-
tive level of how the legislation at issue in this case came to be enacted....
To read the Court’s version of events, one would think that Congress was
the sole proponent of a solution to the Nation’s low-level radioactive waste
problem. Not so. The Low-Level Radioactive Waste Policy Act of 1980
(1980 Act), and its amendatory Act of 1985, resulted from the efforts of state
leaders to achieve a state-based set of remedies to the waste problem. They
sought not federal preemption or intervention, but rather congressional
sanction of interstate compromises they had reached. . .
In my view, New York’s actions subsequent to enactment of the 1980
and 1985 Acts fairly indicate its approval of the interstate agreement process
embodied in those laws within the meaning of Art. I, Sec. 10, cl. 3, of the
Constitution, which provides that “no State shall, without the Consent of
Congress, .. . enter into any Agreement or Compact with another State.”
First, the States—including New York—worked through their Governors
to petition Congress for the 1980 and 1985 Acts. As I have attempted to
demonstrate, these statutes are best understood as the products of collective
state action, rather than as impositions placed on States by the Federal
Government. Second, New York acted in compliance with the requisites of
both statutes in key respects, thus signifying its assent to the agreement
achieved among the States as codified in these laws. .. .
The Court announces that it has no occasion to revisit such decisions as
Gregory v.Ashcroft, [501 U.S. 452] (1991); South Carolina v. Baker, 485 U.S. 505
(1988); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985); EEOC v. Wyoming, 460 U.S. 226 (1983); and National League of Cities
v, Usery, U.S. 833 (1976), because “this is not a case in which Congress has
subjected a State to the same legislation applicable to private parties.” Al-
though this statement sends the welcome signal that the Court does not in-
tend to cui a wide swath through our recent Tenth Amendment precedents,
it nevertheless is unpersuasive. I have several difficulties with the Court’s
 758 | THe STATES AND AMERICAN FEDERALISM

analysis in this respect: it builds its rule around an insupportable and illogical
distinction in the types of alleged incursions on state sovereignty; it derives
its rule from cases that do not support its analysis; it fails to apply the appro-
priate tests from the cases on which it purports to base its rule; and it omits
any discussion of the most recent and pertinent test for determining the take
title provision’s constitutionality.
The Court’s distinction between a federal statute’s regulation of States
and private parties for general purposes, as opposed to a regulation solely on
the activities of States, is unsupported by our recent Tenth Amendment
cases. In no case has the Court rested its holding on such a distinction.
Moreover, the Court makes no effort to explain why this purported distinc-
tion should affect the analysis of Congress’ power under general principles of
federalism and the Tenth Amendment. The distinction, facilely thrown out, is
not based on any defensible theory, Certainly one would be hard-pressed to
read the spirited exchanges between the Court and dissenting Justices in Na-
tional League of Cities, and in Garcia v. San Antonio Metropolitan Transit Author-
ity, as having been based on the distinction now drawn by the Court. An
incursion on state sovereignty hardly seems more constitutionally acceptable
if the federal statute that “commands” specific action also applies to pri-
vate parties. The alleged diminution in state authority over its own affairs is
not any less because the federal mandate restricts the activities of private
parulestaer

Printz v. United States

and

Mack v. United States

$21 U.S. 898, 117'S.CT. 2365 (1997)

In 1993, after seven years of debate Congress enacted the Brady Hand-
gun Violence Prevention Act as an amendment to the Gun Control Act
of 1968.The law was named after James S. Brady, who was disabled in
the 1981 assassination attempt on President Ronald Reagan. Among
other provisions, the law required state and local law enforcement offi-
cials to conduct background checks on prospective handgun pur-
chasers. That provision was challenged by two chief law enforcement
officers, Jay Printz of Ravalli County, Montana, and Richard Mack of
Graham County, Arizona. They argued that the federal provision was
unconstitutional because Congress has no authority to require state and
local officials to carry out federal laws. Besides claiming that the law
was an unfunded federal mandate, they claimed that the law was
burdensome and diverted resources and time from their investigative
responsibilities. A federal district court agreed but the Court of Appeals
 B | The Tenth and Eleventh Amendments and the States | 759

for the Ninth Circuit reversed and Printz and Mack, supported by the
National Rifle Association, appealed.
The Court’s decision was five to four and its opinion delivered by
Justice Scalia. Justices O’Connor and Thomas filed concurring opin-
ions. Justice Stevens filed a dissenting opinion, which was joined by Jus-
tices Souter, Ginsburg, and Breyer. Justices Souter and Breyer also filed
separate dissenting opinions.

Justice SCALIA delivered the opinion of the Court.

The question presented in these Cases is whether certain interim provi-
sions of the Brady Handgun Violence Prevention Act, commanding state and
local law enforcement officers to conduct background checks on prospective
handgun purchasers and to perform certain related tasks, violate the Consti-
tution. ... By
[T]he Brady Act purports to direct state law enforcement officers to
participate, albeit only temporarily, in the administration of a federally en-
acted regulatory scheme. Regulated firearms dealers are required to forward
Brady Forms not to a federal officer or employee, but to the CLEOs [chief
law enforcement officers], whose obligation to accept those forms is implicit
in the duty imposed upon them to make “reasonable efforts” within five days
to determine whether the sales reflected in the forms are lawful. While the
CLEOs are subjected to no federal requirement that they prevent the sales
determined to be unlawful (it is perhaps assumed that their state-law duties
will require prevention or apprehension), they are empowered to grant, in ef-
fect, waivers of the federally prescribed 5-day waiting period for handgun
purchases by notifying the gun dealers that they have no reason to believe
the transactions would be illegal.
The petitioners here object to being pressed into federal service, and
contend that congressional action compelling state officers to execute federal
laws is unconstitutional.
Because there is no constitutional text speaking to this precise question,
the answer to the CLEOs’ challenge must be sought in historical under-
standing and practice, in the structure of the Constitution, and in the
jurisprudence of this Court. We treat those three sources in that order... .
The Government observes that statutes enacted by the first Congresses
required state courts to record applications for citizenship, to transmit ab-
stracts of citizenship applications and other naturalization records to the
Secretary of State, and to register aliens seeking naturalization and issue cer-
tificates of registry. It may well be, however, that these requirements applied
only in States that authorized their courts to conduct naturalization proceed-
ings. Other statutes of that era apparently or at least arguably required state
courts to perform functions unrelated to naturalization, such as resolving
‘controversies between a captain and the crew of his ship concerning the sea-
worthiness of the vessel, hearing the claims of slave owners who had appre-
hended fugitive slaves and issuing certificates authorizing the slave's forced
removal to the State from which he had fled, taking proof of the claims of
Canadian iefugees who had assisted the United States during the Revolu-
tionary War, and ordering the deportation of alien enemies in times of war.
760 | THE STATES AND AMERICAN FEDERALISM

These early laws establish, at most, that the Constitution was originally
understood to permit imposition of an obligation on state judges to enforce
federal prescriptions, insofar as those prescriptions related to matters appro-
priate for the judicial power. That assumption was perhaps implicit in one of
the provisions of the Constitution, and was explicit in another. In accord
with the so-called Madisonian Compromise, Article II, Sec. 1, established
only a Supreme Court, and made the creation of lower federal courts op-
tional with the Congress—even though it was obvious that the Supreme
Court alone could not hear all federal cases throughout the United States.
And the Supremacy Clause, Art. VI, cl. 2, announced that “the Laws of the
United States ... shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby.” It is understandable why courts should
have been viewed distinctively in this regard; unlike legislatures and execu-
tives,they applied the law of other sovereigns all the time. The principle
underlying so-called “transitory” causes of action was that laws which oper-
ated elsewhere created obligations in justice that courts of the forum state
would enforce. The Constitution itself, in the Full Faith and Credit Clause,
Art. IV, Sec. 1, generally required such enforcement with respect to obliga-
tions arising in other States.
For these reasons, we do not think the early statutes imposing obliga-
tions on state courts imply a power of Congress to impress the state execu-
tive into its service. Indeed, it can be argued that the numerousness of these
statutes, contrasted with the utter lack of statutes imposing obligations on
the States’ executive (notwithstanding the attractiveness of that course to
Congress), suggests an assumed absence of such power. The only early fed-
eral law the Government has brought to our attention that imposed duties
on state executive officers is the Extradition Act of 1793, which required the
“executive authority” of a State to cause the arrest and delivery of a fugitive
from justice upon the request of the executive authority of the State from
which the fugitive had fled. That was in direct implementation, however, of
the Extradition Clause of the Constitution itself; see Art. IV, Sec. 2.
Not only do the enactments of the early Congresses, as far as we are
aware, contain no evidence of an assumption that the Federal Government
may command the States’ executive power in the absence of a particularized
constitutional authorization, they contain some indication of precisely the
opposite assumption. On September 23, 1789—the day before its proposal of
the Bill of Rights—the First Congress enacted a law aimed at obtaining state
assistance of the most rudimentary and necessary sort for the enforcement of
the new Government’s laws: the holding of federal prisoners in state jails at
federal expense. Significantly, the law issued not a command to the States’
executive, but a recommendation to their legislatures. . . . Moreover, when
Georgia refused to comply with the request, Congress’ only reaction was a
law authorizing the marshal in any State that failed to comply with the Rec-
ommendation of September 23, 1789, to rent a temporary jail until provi-
sion for a permanent one could be made.
In addition to early legislation, the Government also appeals to other
sources we have usually regarded as indicative of the original understanding
of the Constitution. It points to portions of The Federalist which reply to
criticisms that Congress’s power to tax will produce two sets of revenue of-
ficers—for example, “Brutus’s” assertion in his letter to the New York Jour-
PE a9
 B | The Tenth and Eleventh Amendments and the States | 761%

nal of December 13, 1787, that the Constitution “opens a door to the ap-
pointment of a swarm of revenue and excise officers to prey upon the hon-
est and industrious part of the community, eat up their substance, and riot
on the spoils of the country.’ “Publius” responded that Congress will proba-
bly “make use of the State officers and State regulations, for collecting” fed-
eral taxes, The Federalist No. 36 (A. Hamilton), and predicted that “the
eventual collection [of internal revenue] under the immediate authority
of the Union, will generally be made by the officers, and according to the
rules, appointed by the several States,’ No. 45 (J. Madison). The Govern-
ment also invokes The Federalist’’ more general observations that the Consti-
tution would “enable the [national] government to employ the ordinary
magistracy of each [State] in the execution of its laws,’ No. 27 (A. Hamil-
ton), and that it was “extremely probable that in other instances, particularly
in the organization of the judicial power, the officers of the States will
be clothed in the correspondent authority of the Union,” No. 45 (J. Madi-
son). But none of these statements necessarily implies—what is the critical
point here—that Congress could impose these responsibilities without
the consent of the States..They appear to rest on the natural assumption
that the States would consent to allowing their officials to assist the Federal
Government. ...
Justice SOUTER contends that his interpretation of Federalist No. 27 is
“supported by No. 44,’ written by Madison, wherefore he claims that
“Madison and Hamilton” together stand opposed to our view. In fact, Feder-
alist No. 44 quite clearly contradicts Justice SOUTER’s reading. In that
Number, Madison justifies the requirement that state officials take an oath to
support the Federal Constitution on the ground that they “will have an es-
sential agency in giving effect to the federal Constitution.” If the dissent’s
reading of Federalist No. 27 were correct (and if Madison agreed with it),
one would surely have expected that “essential agency” of state executive of-
ficers (if described further) to be described as their responsibility to execute
the laws enacted under the Constitution. Instead, however, Federalist No. 44
continues with the following description: “The election of the President and
Senate will depend, in all cases, on the legislatures of the several States. And
the election of the House of Representatives will equally depend on the
same authority in the first instance; and will, probably, forever be conducted
by the officers and according to the laws of the States.” It is most implausi-
ble that the person who labored for that example of state executive officers’
assisting the Federal Government believed, but neglected to mention, that
they had a responsibility to execute federal laws. If it was indeed Hamilton's
view that the Federal Government could direct the officers of the States,
that view has no clear support in Madison’s writings, or as far as we are
aware, in text, history, or early commentary elsewhere.
To complete the historical record, we must note that there is not only
an absence of executive-commandeering statutes in the early Congresses,
- but there is an absence of them in our later history as well, at least until very
recent years. The Government points to the Act of August 3, 1882, which
enlisted state officials “to take charge of the local affairs of immigration in
the ports within such State, and to provide for the support and relief of such
immigrai.‘s therein landing as may fall into distress or need of public aid”; to
inspect arriving immigrants and exclude any person found to be a “convict,
762 | Tue STATES AND AMERICAN FEDERALISM

lunatic, idiot,’ or indigent; and to send convicts back to their country of ori-
gin “without compensation.” The statute did not, however, mandate those
duties, but merely empowered the Secretary of the Treasury “to enter into
contracts with such State’. . . officers as may be designated for that purpose
by the governor of any State.” ...
The constitutional practice we have examined above tends to negate the
existence of the congressional power asserted here, but is not conclusive. We
turn next to consideration of the structure of the Constitution, to see if we
can discern among its “essential postulates,” Principality of Monaco v. Missis-
sippi, 292 U.S. 313 (1934), a principle that controls the present cases.
It is incontestible that the Constitution established a system of “dual
sovereignty.” Gregory v.Ashcroft, 501 U.S. 452 (1991). Although the States sur-
rendered many of their powers to the new Federal Government, they
retained “a residuary and inviolable sovereignty,’ The Federalist No. 39
(J. Madison). This is reflected throughout the Constitution’s text, including
(to mention only a few examples) the prohibition on any involuntary reduc-
tion or combination of a State’s territory, Art. IV, Sec. 3; the Judicial Power
Clause, Art. III, Sec. 2, and the Privileges and Immunities Clause, Art. IV,
Sec. 2, which speak of the “Citizens” of the States; the amendment provi-
sion, Article V, which requires the votes of three-fourths of the States to
amend the Constitution; and the Guarantee Clause, Art. IV, Sec. 4, which
“presupposes the continued existence of the states and . .. those means and
instrumentalities which are the creation of their sovereign and reserved
rights,” Helvering v. Gerhardt, 304 U.S. 405 (1938). Residual state sovereignty
was also implicit, of course, in the Constitution’s conferral upon Congress of
not all governmental powers, but only discrete, enumerated ones, Art. I,
Sec. 8, which implication was rendered express by the Tenth Amendment’s
assertion that “the powers not delegated to the United States by the Consti-
tution, nor prohibited by it to the States, are reserved to the States respec-
tively, or to the people.”
The Framers’ experience under the Articles of Confederation had per-
suaded them that using the States as the instruments of federal governance
was both ineffectual and provocative of federal-state conflict. Preservation of
the States as independent political entities being the price of union, and “the
practicality of making laws, with coercive sanctions, for the States as political
bodies” having been, in Madison’s words, “exploded on all hands” of the
Federal Convention of 1787, the Framers rejected the concept of a central
government that would act upon and through the States, and instead de-
signed a system in which the state and federal governments would exercise
concurrent authority over the people—who were, in Hamilton’s words, “the
only proper objects of government,” The Federalist No. 15.We have set forth
the historical record in more detail elsewhere, see New York v. United States,
and need not repeat it here. It suffices to repeat the conclusion: “The
Framers explicitly chose a Constitution that confers upon Congress the
power to regulate individuals, not States.” The great innovation of this design
was that “our citizens would have two political capacities, one state and one
federal, each protected from incursion by the other”—‘a legal system un-
precedented in form and design, establishing two orders of government,
each with its own direct relationship, its own privity, its own set of mutual
rights and obligations to the people who sustain it and are governed by it.”
 B | The Tenth and Eleventh Amendments and the States | 763

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (KENNEDY, J., con-
curring). The Constitution thus contemplates that a State’s government will
represent and remain accountable to its own citizens. See New York; United
States v. Lopez, 514 U.S. 549 (1995) (KENNEDY, J., concurring). As Madison
expressed it: “The local or municipal authorities form distinct and indepen-
dent portions of the supremacy, no more subject, within their respective
spheres, to the general authority than the general authority is subject to
them, within its own sphere.” The Federalist No. 39.
We have thus far discussed the effect that federal control of state officers
would have upon the first element of the “double security” alluded to by
Madison: the division of power between State and Federal Governments. It
would also have an effect upon the second element: the separation and equi-
libration of powers between the three branches of the Federal Government
itself. The Constitution does not leave to speculation who is to administer the
laws enacted by Congress; the President, it says, “shall take Care that the Laws
be faithfully executed,” Art. II, Sec.3, personally and through officers whom
he appoints (save for such inferior officers as Congress may authorize to be
appointed by the “Courts of Law” or by “the Heads of Departments” who
are themselves presidential appointees), Art. II, Sec. 2. The Brady Act effec-
ively transfers this responsibility to thousands of CLEQOs in the 50 States,
who are left to implement the program without meaningful Presidential con-
trol (if indeed meaningful Presidential control is possible without the power
to appoint and remove).The insistence of the Framers upon unity in the Fed-
eral Executive—to insure both vigor and accountability—s well known. That
unity would be shattered, and the power of the President would be subject to
reduction, if Congress could act as effectively without the President as with
him, by simply requiring state officers to execute its laws... .
When we were at last confronted squarely with a federal statute that un-
ambiguously required the States to enact or administer a federal regulatory
program, our decision should have come as no surprise. At issue in New York
v. United States, 505 U.S. 144 (1992), were the so-called “take title” provisions
of the Low-Level Radioactive Waste Policy Amendments Act of 1985,
which required States either to enact legislation providing for the disposal of
radioactive waste generated within their borders, or to take title to, and pos-
session of the waste—effectively requiring the States either to legislate pur-
suant to Congress’s directions, or to implement an administrative solution.
We concluded that Congress could constitutionally require the States to do
neither. “The Federal Government,” we held, “may not compel the States to
enact or administer a federal regulatory program.” ...
Finally, the Government puts forward a cluster of arguments that can be
grouped under the heading: “The Brady Act serves very important purposes,
is most efficiently administered by CLEOs during the interim period, and
places a minimal and only temporary burden upon state officers.” There is
considerable disagreement over the extent of the burden, but we need not
‘pause over that detail. Assuming all the mentioned factors were true, they
might be relevant if we were evaluating whether the incidental application
to the States of a federal law of general applicability excessively interfered
with the functioning of state governments. But where, as here, it is the
whole obj-ct of the law to direct the functioning of the state executive, and
hence to compromise the structural framework of dual sovereignty, such a
764 | THe STATES AND AMERICAN FEDERALISM

“balancing” analysis is inappropriate. It is the very principle of separate state

sovereignty that such a law offends, and no comparative assessment of the
various interests can overcome that fundamental defect. ...
What we have said makes it clear enough that the central obligation 1m-
posed upon CLEOs by the interim provisions of the Brady Act—the obliga-
tion to “make a reasonable effort to ascertain within 5 business days whether
receipt or possession [of a handgun] would be in violation of the law, in-
cluding research in whatever State and local recordkeeping systems are avail-
able and in a national system designated by the Attorney General’’—is
unconstitutional. Extinguished with it, of course, is the duty implicit in the
background-check requirement that the CLEO accept notice of the con-
tents of, and a copy of, the completed Brady Form, which the firearms dealer
is required to provide to him....
We held in New York that Congress cannot compel the States to enact or
enforce a federal regulatory prograni. Today we hold that Congress cannot cir-
cumvent that prohibition by conscripting the State’s officers directly. The Fed-
eral Government may neither issue directives requiring the States to address
particular problems, nor command the States’ officers, or those of their politi-
cal subdivisions, to administer or enforce a federal regulatory program. It mat-
ters not whether policymaking is involved, and no case-by-case weighing of
the burdens or benefits is necessary; such commands are fundamentally in-
compatible with our constitutional system of dual sovereignty. Accordingly, the
judgment of the Court of Appeals for the Ninth Circuit is reversed.

Justice O. CONNOR, concurring.

Our precedent and our Nation’s historical practices support the Court’s
holding today. The Brady Act violates the Tenth Amendment to the extent it
forces States and local law enforcement officers to perform background
checks on prospective handgun owners and to accept Brady Forms from
firearms dealers. Our holding, of course, does not spell the end of the ob-
jectives of the Brady Act. States and chief law enforcement officers may vol-
untarily continue to participate in the federal program. Moreover, the
directives to the States are merely interim provisions scheduled to terminate
November 30, 1998. Congress is also free to amend the interim program to
provide for its continuance on a contractual basis with the States if it wishes,
as it does with a number of other federal programs. .. .

“Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG,

and Justice BREYER join, dissenting.
When Congress exercises the powers delegated to it by the Constitu-
tion, it may impose affirmative obligations on executive and judicial officers
of state and local governments as well as ordinary citizens. This conclusion is
firmly supported by the text of the Constitution, the early history of the
Nation, decisions of this Court, and a correct understanding of the basic
structure of the Federal Government.
These cases do not implicate the more difficult questions associated
with congressional coercion of state legislatures addressed in New York v,
United States, 505 U.S. 144 (1992). Nor need we consider the wisdom of re-
lying on local officials rather than federal agents to carry out aspects of a
 B | The Tenth and Eleventh Amendments and the States | 765

federal program, or even the question whether such officials may be required
to perform a federal function on a permanent basis. The question is whether
Congress, acting on behalf of the people of the entire Nation, may require
local law enforcement officers to perform certain duties during the interim
needed for the development of a federal gun control program. It is remark-
ably similar to the question, heavily debated by the Framers of the Constitu-
tion, whether the Congress could require state agents to collect federal taxes.
Or the question whether Congress could impress state judges into federal
service to entertain and decide cases that they would prefer to ignore.
Indeed, since the ultimate issue is one of power, we must consider its
implications in times of national emergency. Matters such as the enlistment
of air raid wardens, the administration of a military draft, the mass inocula-
tion of children to forestall an epidemic, or perhaps the threat of an inter-
national terrorist, may require a national response before federal personnel
can be made available to respond. If the Constitution empowers Congress
and the President to make an apprepriate response, is there anything in the
Tenth Amendment,
“in historical understanding and practice, in the structure
of the Constitution, [or] in the jurisprudence of this Court” that forbids the
enlistment of state officers to make that response effective? More narrowly,
what basis is there in any of those sources for concluding that it is the Mem-
bers of this Court, rather than the elected representatives of the people, who
should determine whether the Constitution contains the unwritten rule that
the Court announces today?
Perhaps today’s majority would suggest that no such emergency is pre-
sented by the facts of these cases. But such a suggestion is itself an expression
of a policy judgment. And Congress’ view of the matter is quite different
from that implied by the Court today. ...
The text of the Constitution provides a sufficient basis for a correct dis-
position of this case.
Article I, Sec. 8, grants the Congress the power to regulate commerce
among the States. Putting alongside the revisionist views expressed by Justice
THOMAS in his concurring opinion in United States v. Lopez, 514 U.S. 549
(1995), there can be no question that that provision adequately supports the
regulation of commerce in handguns effected by the Brady Act. Moreover,
the additional grant of authority in that section of the Constitution “to
make all Laws which shall be necessary and proper for carrying into Execu-
tion the foregoing Powers” is surely adequate to support the temporary en-
listment of local police officers in the process of identifying persons who
should not be entrusted with the possession of handguns. In short, the affir-
mative delegation of power in Article I provides ample authority for the
congressional enactment.
Unlike the First Amendment, which prohibits the enactment of a cate-
gory of laws that would otherwise be authorized by Article I, the Tenth
Amendment imposes no restriction on the exercise of delegated powers. Us-
ing language that plainly refers only to powers that are “not” delegated to
Congress, it provides: “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States re-
spectively, or to the people.” U.S. Const., Amdt. 10. The Amendment con-
firms the ,rinciple that the powers of the Federal Government are limited
to those affirmatively granted by the Constitution, but it does not purport to
766 | Tuer STATES AND AMERICAN FEDERALISM

limit the scope or the effectiveness of the exercise of powers that are dele-
gated to Congress. Thus, the Amendment provides no support for a rule that
immunizes local officials from obligations that might be imposed on ordi-
nary citizens. Indeed, it would be more reasonable to infer that federal law
may impose greater duties on state officials than on private citizens because
another provision of the Constitution requires that “all executive and judi-
cial Officers, both of the United States and of the several States, shall be
bound by Oath or Affirmation, to support this Constitution.” U.S. Const.,
Arc VISES}
There is not a clause, sentence, or paragraph in the entire text of the
Constitution of the United States that supports the proposition that a local
police officer can ignore a command contained in a statute enacted by Con-
gress pursuant to an express delegation of power enumerated in Article I.
Under the Articles of Confederation the National Government had the
power to issue commands to the several sovereign states, but it had no au-
thority to govern individuals directly. Thus, it raised an army and financed its
operations by issuing requisitions to the constituent members of the Con-
federacy, rather than by creating federal agencies to draft soldiers or to im-
pose taxes.
That method of governing proved to be unacceptable, not because it
demeaned the sovereign character ‘of the several States, but rather because it
was cumbersome and inefficient. Indeed, a confederation that allows each of
its members to determine the ways and means of complying with an over-
riding requisition is obviously more deferential to state sovereignty concerns
than a national government that uses its own agents to impose its will di-
rectly on the citizenry. The basic change in the character of the government
that the Framers conceived was designed to enhance the power of the na-
tional government, not to provide some new, unmentioned immunity for
state officers. Because indirect control over individual citizens (“the only
proper objects of government”) was ineffective under the Articles of Con-
federation, Alexander Hamilton explained that “we must extend the author-
ity of the Union to the persons of the citizens.” The Federalist No. 15.
Indeed, the historical materials strongly suggest that the Founders in-
tended to enhance the capacity of the federal government by empowering
it—as a part of the new authority to make demands directly on individual
citizens—to act through local officials. Hamilton made clear that the new
Constitution, “by extending the authority of the federal head to the individ-
ual citizens of the several States, will enable the government to employ the
ordinary magistracy of each, in the execution of its laws.” The Federalist
No. 27. Hamilton’s meaning was unambiguous; the federal government was
to have the power to demand that local officials implement national policy
programs. As he went on to explain: “It is easy to perceive that this will tend
to destroy, in the common apprehension, all distinction between the sources
from which [the state and federal governments] might proceed; and will give
the federal government the same advantage for securing a due obedience to
its authority which is enjoyed by the government of each State.”
More specifically, during the debates concerning the ratification of the
Constitution, it was assumed that state agents would act as tax collectors for
the federal government. Opponents of the Constitution had repeatedly ex-
pressed fears that the new federal government’s ability to impose taxes di-
 B | The Tenth and Eleventh Amendments and the States | 767

rectly on the citizenry would result in an overbearing presence of federal tax

collectors in the States. Federalists rejoined that this problem would not arise
because, as Hamilton explained, “the United States . . . will make use of the
State officers and State regulations for collecting” certain taxes. No. 36. Sim-
ilarly, Madison made clear that the new central government’s power to raise
taxes directly from the citizenry would “not be resorted to, except for sup-
plemental purposes of revenue ...and that the eventual collection, under the
immediate authority of the Union, will generally be made by the officers ...
appointed by the several States.” No. 45....
We are far truer to the historical record by applying a functional ap-
proach in assessing the role played by these early state officials. The use of
state judges and their clerks to perform executive functions was, in historical
context, hardly unusual. And, of course, judges today continue to perform a
variety of functions that may more properly be described as executive. The
majority’s insistence that this evidence of federal enlistment of state officials
to serve executive functions is irrelevant simply because the assistance of
“judges” was at issue rests on empty formalistic reasoning of the highest
Order,
The Court concludes its review of the historical materials with a refer-
ence to the fact that our decision in INS v. Chadha, 462 U.S. 919 (1983), in-
validated a large number of statutes enacted in the 1970's, implying that
recent enactments by Congress that are similar to the Brady Act are not en-
titled to any presumption of validity. But in Chadha, unlike this case, our de-
cision rested on the Constitution’s express bicameralism and presentment
requirements, not on judicial inferences drawn from asilent text and a his-
torical record that surely favors the congressional understanding. Indeed, the
majority’s opinion consists almost entirely of arguments against the substan-
tial evidence weighing in opposition to its view; the Court’s ruling is strik-
ingly lacking in affirmative support. Absent even a modicum of textual
foundation for its judicially crafted constitutional rule, there should be a pre-
sumption that if the Framers had actually intended such a rule, at least one
of them would have mentioned it.
The Court’s “structural” arguments are not sufficient to rebut that pre-
sumption. The fact that the Framers intended to preserve the sovereignty of
the several States simply does not speak to the question whether individual
state employees may be required to perform federal obligations, such as reg-
istering young adults for the draft, creating state emergency response com-
missions designed to manage the release of hazardous substances, collecting
and reporting data on underground storage tanks that may pose an environ-
mental hazard, and reporting traffic fatalities, and missing children to a fed-
eral agency.
As we explained in Garcia v. San Antonio Metropolitan Tiansit Authority,
469 U.S. 528 (1985): “The principal means chosen by the Framers to ensure
the role of the States in the federal system lies in the structure of the Federal
Government itself. It is no novelty to observe that the composition of the
Federal Government was designed in large part to protect the States from
overreaching by Congress.” Given the fact that the Members of Congress are
elected by the’ people of the several States, with each State receiving an
equivalent number of Senators in order to ensure that even the smallest
States have a powerful voice in the legislature, it is quite unrealistic to assume
768 | THe STATES AND AMERICAN FEDERALISM

that they will ignore the sovereignty concerns of their constituents. It is far
more reasonable to presume that their decisions to impose modest burdens
on state officials from time to time reflect a considered judgment that the
people in each of the States will benefit therefrom. .. .
Accordingly, I respectfully dissent.

(1 Justice SOUTER, dissenting.

In deciding these cases, which I have found closer than I had antici-
pated, it is The Federalist that finally determines my position. I believe that
the most straightforward reading of No. 27 is authority for the Govern-
ment’s position here, and that this reading is both supported by No. 44 and
consistent with Nos. 36 and 45.
Hamilton in No. 27 first notes that because the new Constitution would
authorize the National Government to bind individuals directly through na-
tional law, it could “employ the ordinary magistracy of each [State] in the
execution of its laws.” Were he to stop here, he would not necessarily be
speaking of anything beyond the possibility of cooperative arrangements by
agreement. But he then addresses the combined effect of the proposed Su-
premacy Clause, and state officers’ oath requirement, U.S. Const., Art. VI,
cl. 3, and he states that “the Legislatures, Courts and Magistrates of the re-
spective members will be incorporated into the operations of the national
government, as far as its just and constitutional authority extends; and will be
rendered auxiliary to the enforcement of its laws.’ The Federalist No. 27.
The natural reading of this language is not merely that the officers of the
various branches of state governments may be employed in the performance
of national functions; Hamilton says that the state governmental machinery
“will be incorporated” into the Nation’s operation, and because the “‘auxil-
iary” status of the state officials will occur because they are “bound by the
sanctity of an oath,’ I take him to mean that their auxiliary functions will be
the products of their obligations thus undertaken to support federal law, not
of their own, or the States’, unfettered choices. Madison in No. 44 supports
this reading in his commentary on the oath requirement. He asks why state
magistrates should have to swear to support the National Constitution, when
national officials will not be required to oblige themselves to support the
state counterparts. His answer is that national officials “‘will have no agency
in carrying the State Constitutions into effect. The members and officers of
the State Governments, on the contrary, will have an essential agency in giv-
ing effect to the Federal Constitution.” The Federalist No. 44 (J. Madison).
He then describes the state legislative “agency” as action necessary for select-
ing the President, see U.S. Const., Art. II, Sec. 1, and the choice of Senators,
see U.S. Const., Art. I, Sec. 3 (repealed by Amendment XVII). The Su-
premacy Clause itself, of course, expressly refers to the state judges’ obliga-
tions under federal law, and other numbers of The Federalist give examples
of state executive “agency” in the enforcement of national revenue laws... .
In the light of all these passages, I cannot persuade myself that the state-
ments from No. 27 speak of anything less than the authority of the National
Government, when exercising an otherwise legitimate power (the commerce
power, say), to require state “auxiliaries” to take appropriate action. To be
sure, it does not follow that any conceivable requirement may be imposed on
any state official. | continue to agree, for example, that Congress may not re-
 B | The Tenth and Eleventh Amendments and the States | 769

quire a state legislature to enact a regulatory scheme and that New York v,
United States, 505 U.S. 144 (1992) was rightly decided (even though I now
believe its dicta went too far toward immunizing state administration as well
as state enactment of such a scheme from congressional mandate); after all,
the essence of legislative power, within the limits of legislative jurisdiction, is
a discretion not subject to command. But insofar as national law would re-
quire nothing from astate officer inconsistent with the power proper to his
branch of tripartite state government (say, by obligating a state judge to ex-
ercise law enforcement powers), I suppose that the reach of federal law as
Hamilton described it would not be exceeded, cf. Garcia v. San Antonio Met-
ropolitan Transit Authority, 469 U.S. 528 (1965) (without precisely delineating
the outer limits of Congress’s Commerce Clause power, finding that the
statute at issue was not “destructive of state sovereignty”). ...

Seminole Tribe of Florida v. Florida

S17 US. 44,116 S.CT. 1114 (1996)

In 1988, Congress enacted the Indian Gaming Regulatory Act, author-

izing Indian tribes to conduct gaming activities in conformance with
compacts agreed to by the tribe and the state in which the gaming ac-
tivities are located. The act also imposed on the states a duty to negoti-
ate compacts in “good faith” with Indian tribes and authorized tribes to
bring suits in federal courts against a state that failed to negotiate a
gaming compact. Subsequently, after negotiations between Florida and
the Seminole Tribe broke down in 1991, the tribe sued the state in fed-
eral court. Attorneys for Florida, however, moved to have the suit dis-
missed on the grounds that the act violated the Eleventh Amendment
and that the suit violated the state’s sovereign immunity from suits in
federal court. The federal district court dismissed that motion and the
state’s attorneys appealed to the Court of Appeals for the Eleventh
Circuit, which reversed the lower court upon concluding that the
Eleventh Amendment bars Congress from abrogating a state’s Eleventh
Amendment immunity from suits in federal courts. The Seminole Tribe
appealed that decision to the Supreme Court, which granted review.
The Court’s decision was five to four. Chief Justice Rehnquist an-
nounced the opinion for the majority, and Justices Stevens and Souter
filed dissenting opinions. Justices Ginsburg and Breyer joined the latter
justice’s dissent.

Chief Justice REHNQUIST delivered the opinion of the Court.

The Indian Gaming Regulatory Act provides that an Indian tribe may
conduct certain gaming activities only in conformance with a valid compact
770 | THe STATES AND AMERICAN FEDERALISM

between the tribe and the State in which the gaming activities are located.
The Act, passed by Congress under the Indian Commerce Clause, U.S.
Const., Art. I, sec. 10, cl. 3, imposes upon the States a duty to negotiate in
good faith with an Indian tribe toward the formation of a compact, and
authorizes a tribe to bring suit in federal court against a State in order to
compel performance of that duty. We hold that notwithstanding Congress’
clear intent to abrogate the States’ sovereign immunity, the Indian Com-
merce Clause does not grant Congress that power, and therefore [provisions
of the act] cannot grant jurisdiction over a State that does not consent
to be sued. We further hold that the doctrine of Ex parte Young, 209 USS.
123 (1908), may not be used to enforce [the act’s provisions] against a state
official... .
The Eleventh Amendment provides: “The Judicial power of the United
States shall not be construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States by Citizens of an-
other State, or by Citizens or Subjects of any Foreign State.” Although the
text of the Amendment would appear to restrict only the Article III diversity
jurisdiction of the federal courts, “we have understood the Eleventh Amend-
ment to stand not so much for what it says, but for the presupposition .. .
which it confirms.” Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991).
That presupposition, first observed over a century ago in Hans v. Louisi-
ana, 134 U.S. 1 (1890), has two parts: first, that each State is a sovereign
entity in our federal system; and second, that “ ‘it is inherent in the nature
of sovereignty not to be amenable to the suit of an individual without its
GONSent. ores
[O]ur inquiry into whether Congress has the power to abrogate uni-
laterally the States’ immunity from suit is narrowly focused on one question:
Was the Act in question passed pursuant to a constitutional provision grant-
ing Congress the power to abrogate? Previously, in conducting that inquiry,
we have found authority to abrogate under only two provisions of the Con-
stitution. In Fitzpatrick |v. Bitzer, 427 U.S. 445 (1976)], we recognized that the
Fourteenth Amendment, by expanding federal power at the expense of state
autonomy, had fundamentally altered the balance of state and federal power
struck by the Constitution. We noted that Section 1 of the Fourteenth
Amendment contained prohibitions expressly directed at the States and that
Section 5 of the Amendment expressly provided that ““The Congress shall
have the power to enforce, by appropriate legislation, the provisions of this
article.” We held that through the Fourteenth Amendment, federal power
extended to intrude upon the province of the Eleventh Amendment and
therefore that Section 5 of the Fourteenth Amendment allowed Congress to
abrogate the immunity from suit guaranteed by that Amendment.
In only one other case has congressional abrogation of the States’
Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas
Co., 491 U.S. 1 (1989), a plurality of the Court found that the Interstate
Commerce Clause granted Congress the power to abrogate state sovereign
immunity, stating that the power to regulate interstate commerce would be
“incomplete without the authority to render States liable in damages.” Jus-
tice WHITE added the fifth vote necessary to the result in that case, but
wrote separately in order to express that he “[did] not agree with much of
[the plurality’s] reasoning.” . . .
 B | The Tenth and Eleventh Amendments and the States | 77%

Both parties make their arguments from the plurality decision in Union
Gas, and we, too, begin there. We think it clear that Justice BRENNAN’s
opinion finds Congress’ power to abrogate under the Interstate Commerce
Clause from the States’ cession of their sovereignty when they gave Congress
plenary power to regulate interstate commerce. Respondents’ focus else-
where is misplaced. While the plurality decision states that Congress’ power
under the Interstate Commerce Clause would be incomplete without the
power to abrogate, that statement is made solely in order to emphasize
the broad scope of Congress’ authority over interstate commerce. Moreover,
respondents’ rationale would mean that where Congress has less authority,
and the States have more, Congress’ means for exercising that power must
be greater. We read the plurality opinion to provide just the opposite. In-
deed, it was in those circumstances where Congress exercised complete
authority that Justice BRENNAN thought the power to abrogate most
necessary.
Following the rationale of the Union Gas plurality, our inquiry is limited
to determining whether the Indian Commerce Clause, like the Interstate
Commerce Clause, is a grant of authority to the Federal Government at the
expense of the States. The answer to that question is obvious. If anything,
the Indian Commerce Clause accomplishes a greater transfer of power from
the States to the Federal Government than does the Interstate Commerce
Clause. This is clear enough from the fact that the States still exercise some
authority over interstate trade but have been divested of virtually all author-
ity over Indian commerce and Indian tribes. Under the rationale of Union
Gas, if the States’ partial cession of authority over a particular area includes
cession of the immunity from suit, then their virtually total cession of au-
thority over a different area must also include cession of the immunity from
suit. We agree with the petitioner that the plurality opinion in Union Gas al-
lows no principled distinction in favor of the States to be drawn between
the Indian Commerce Clause and the Interstate Commerce Clause.
Never before the decision in Union Gas had we suggested that the
bounds of Article III could be expanded by Congress operating pursuant to
any constitutional provision other than the Fourteenth Amendment. Indeed,
it had seemed fundamental that Congress could not expand the jurisdiction
of the federal courts beyond the bounds of Article III.The plurality’s citation
of prior decisions for support was based upon what we believe to be a mis-
reading of precedent. The plurality claimed support for its decision from a
case holding the unremarkable, and completely unrelated, proposition that
the States may waive their sovereign immunity, and cited as precedent propo-
sitions that had been merely assumed for the sake of argument in earlier
cases.
Reconsidering the decision in Union Gas, we conclude that none of the
policies underlying stare decisis require our continuing adherence to its hold-
ing. The decision has, since its issuance, been of questionable precedential
value, largely because a majority of the Court expressly disagreed with the
rationale of the plurality. The case involved the interpretation of the Consti-
tution and therefore may be altered only by constitutional amendment or re-
vision bysthis Court. Finally, both the result in Union Gas and the plurality’s
rationale depart from our established understanding of the Eleventh Amend-
ment and undermine the accepted function of Article III. We feel bound to
772 | THe STATES AND AMERICAN FEDERALISM

conclude that Union Gas was wrongly decided and that it should be, and
now is, overruled... .
In overruling Union Gas today, we reconfirm that the background prin-
ciple of state sovereign immunity embodied in the Eleventh Amendmentis
not so ephemeral as to dissipate when the subject of the suit is an area, like
the regulation of Indian commerce, that is under the exclusive control of
the Federal Government. Even when the Constitution vests in Congress
complete law-making authority over a particular area, the Eleventh Amend-
ment prevents congressional authorization of suits by private parties against
unconsenting States. The Eleventh Amendment restricts the judicial power
under Article III, and Article I cannot be used to circumvent the constitu-
tional limitations placed upon federal jurisdiction. Petitioner’s suit against the
State of Florida must be dismissed for a lack of jurisdiction... .

Justice SOUTER, with whom Justice GINSBURG and Justice

BREYER join, dissenting.
I part company from the Court because I am convinced that its decision
is fundamentally mistaken, and for that reason I respectfully dissent.
It is useful to separate three questions: (1) whether the States enjoyed
sovereign immunity if sued in their own courts in the period prior to ratifi-
cation of the National Constitution; (2) if so, whether after ratification the
States were entitled to claim some such immunity when sued ina federal
court exercising jurisdiction either because the suit was between a State and
a non-state litigant who was not its citizen, or because the issue in the case
raised a federal question; and (3) whether any state sovereign immunity rec-
ognized in federal court may be abrogated by Congress.
The answer to the first question is not clear, although some of the
Framers assumed that States did enjoy immunity in their own courts. The
second question was not debated at the time of ratification, except as to
citizen-state diversity jurisdiction; there was no unanimity, but in due course
the Court in Chisholm v. Georgia [2 Dall. 419 (1793)] answered that a state
defendant enjoyed no such immunity. As to federal question jurisdiction,
state sovereign immunity seems not to have been debated prior to ratifica-
tion, the silence probably showing a general understanding at the time that
the States would have no immunity in such cases.
The adoption of the Eleventh Amendment soon changed the result in
Chisholm, not by mentioning sovereign immunity, but by eliminating citizen-
state diversity jurisdiction over cases with state defendants. I will explain why
the Eleventh Amendment did not affect federal question jurisdiction, a no-
tion that needs to be understood for the light it casts on the soundness of
Hans’s holding that States did enjoy sovereign immunity in federal question
suits. The Hans Court erroneously assumed that a State could plead sovereign
immunity against a noncitizen suing under federal question jurisdiction, and
for that reason held that a State must enjoy the same protection in a suit by
one of its citizens. The error of Hans’s reasoning is underscored by its clear
inconsistency with the Founders’ hostility to the implicit reception of
common-law doctrine as federal law, and with the Founders’ conception of
sovereign power as divided between the States and the National Government
for the sake of very practical objectives.
 B | The Tenth and Eleventh Amendments and the States | 773

The Court’s answer today to the third question is likewise at odds with
the Founders’ view that common law, when it was received into the new
American legal systems, was always subject to legislative amendment. In ig-
noring the reasons for this pervasive understanding at the time of the ratifi-
cation, and in holding that a nontextual common-law rule limits a clear
grant of congressional power under Article I, the Court follows a course that
has brought it to grief before in our history, and promises to do so again.
Beyond this third question that elicits today’s holding, there is one fur-
ther issue. To reach the Court’s result, it must not only hold the Hans doc-
trine to be outside the reach of Congress, but must also displace the doctrine
of Ex parte Young, 209 U.S. 123 (1908), that an officer of the government
may be ordered prospectively to follow federal law, in cases in which the
government may not itself be sued directly. None of its reasons for dis-
placing Young’s jurisdictional doctrine withstand scrutiny.
The doctrine of sovereign immunity comprises two distinct rules,
which are not always separately recognized. The one rule holds that the King
or the Crown, as the font of law, is not bound by the law’s provisions; the
other provides that the King or Crown, as the font of justice, is not subject
to suit in its own courts. The one rule limits the reach of substantive law; the
other, the jurisdiction of the courts. We are concerned here only with the
latter rule, which took its common-law form in the high middle ages... .
Whatever the scope of sovereign immunity might have been in
the Colonies, however, or during the period of Confederation, the proposal
to establish a National Government under the Constitution drafted in 1787
presented a prospect unknown to the common law prior to the American
experience: the States would become parts of a system in which sovereignty
over even domestic matters would be divided or parcelled out between the
States and the Nation, the latter to be invested with its own judicial power
and the right to prevail against the States whenever their respective substan-
tive laws might be in conflict. With this prospect in mind, the 1787 Con-
stitution might have addressed state sovereign immunity by eliminating
whatever sovereign immunity the States previously had, as to any matter sub-
ject to federal law or jurisdiction; by recognizing an analogue to the old im-
munity in the new context of federal jurisdiction, but subject to abrogation
as to any matter within that jurisdiction; or by enshrining a doctrine of in-
violable state sovereign immunity in the text, thereby giving it constitutional
protection in the new federal jurisdiction.
The 1787 draft in fact said nothing on the subject, and it was this very
silence that occasioned some, though apparently not widespread, dispute
among the Framers and others over whether ratification of the Constitution
would preclude a State sued in federal court from asserting sovereign immu-
nity as it could have done on any matter of nonfederal law litigated in its
own courts....
The argument among the Framers and their friends about sovereign im-
munity in federal citizen-state diversity cases, in any event, was short lived
and ended when this Court, in Chisholm v. Georgia, chose between the con-
stitutional alternatives of abrogation and recognition of the immunity en-
joyed at common law. The 4-to-1 majority adopted the reasonable (although
not compeiled) interpretation that the first of the two Citizen-State Diver-
sity Clauses abrogated for purposes of federal jurisdiction any immunity the
774 | THe STares AND AMERICAN FEDERALISM

States might have enjoyed in their own courts, and Georgia was accordingly
held subject to the judicial power in a common-law assumpsit action by a
South Carolina citizen suing to collect a debt. ...
The Eleventh Amendment, of course, repudiated Chisholm and clearly di-
vested federal courts of some jurisdiction as to cases against state parties: “The
Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign
State”’ There are two plausible readings of this provision’s text. Under the first,
it simply repeals the Citizen-State Diversity Clauses of Article III for all cases
in which the State appears as a defendant. Under the second, it strips the fed-
eral courts of jurisdiction in any case in which a state defendant is sued by a
citizen not its own, even if jurisdiction might otherwise rest on the existence
of a federal question in the suit. Neither reading of the Amendment, of
course, furnishes authority for the Court’s view in today’s case, but we need to
choose between the competing readings for the light that will be shed on the
Hans doctrine and the legitimacy of inflating that doctrine to the point of
constitutional immutability as the Court has chosen to do.
The history and structure of the Eleventh Amendment convincingly
show that it reaches only to suits subject to federal jurisdiction exclusively
under the Citizen-State Diversity Clauses. In precisely tracking the language
in Article II providing for citizen-state diversity jurisdiction, the text of the
Amendment does, after all, suggest to common sense that only the Diversity
Clauses are being addressed... . If the Framers of the Eleventh Amendment
had meant it to immunize States from federal question suits like those that
might be brought to enforce the Treaty of Paris, they would surely have
drafted the Amendment differently.
It should accordingly come as no surprise that the weightiest commen-
tary following the amendment’s adoption described it simply as constrict-
ing the scope of the Citizen-State Diversity Clauses. In Cohens v. Virginia,
6 Wheat. 264 (1821), for instance, Chief Justice MARSHALL, writing for
the Court, emphasized that the amendment had no effect on federal courts’
jurisdiction grounded on the “arising under” provision of Article III and
concluded that “a case arising under the constitution or laws of the United
States, is cognizable in the Courts of the Union, whoever may be the parties
to that case.’ The point of the Eleventh Amendment, according to Cohens,
was to bar jurisdiction in suits at common law by Revolutionary War debt
creditors, not “to strip the government of the means of protecting, by
the instrumentality of its Courts, the constitution and laws from active
violation.”
In sum, reading the Eleventh Amendment solely as a limit on citizen-
state diversity jurisdiction has the virtue of coherence with this Court’s
practice, with the views of John MARSHALL, with the history of the
Amendment’s drafting, and with its allusive language. Today’s majority does
not appear to disagree, at least insofar as the constitutional text is concerned;
the Court concedes, after all, that “the text of the Amendment would appear
to restrict only the Article III diversity jurisdiction of the federal courts.” . ..
Hans was indeed a leap in the direction of today’s holding, even though
it does not take the Court all the way. The parties in Hans raised, and the
Court in that case answered, only what I have called the second question,
 B | The Tenth and Eleventh Amendments and the States | 775

that is, whether the Constitution, without more, permits a State to plead
sovereign immunity to bar the exercise of federal question jurisdiction. Al-
though the Court invoked a principle of sovereign immunity to cure what it
took to be the Eleventh Amendment’s anomaly of barring only those state
suits brought by noncitizen plaintiffs, the Hans Court had no occasion to
consider whether Congress could abrogate that background immunity by
statute. Indeed (except in the special circumstance of Congress’s power to
enforce the Civil War Amendments), this question never came before our
Court until Union Gas, and any intimations of an answer in prior cases were
mere dicta. In Union Gas the Court held that the immunity recognized in
Hans had no constitutional status and was subject to congressional abroga-
tion. Today the Court overrules Union -Gas and holds just the opposite. In de-
ciding how to choose between these two positions, the place to begin is with
Hans’s holding that a principle of sovereign immunity derived from the
common law insulates a state from federal question jurisdiction at the suit of
its Own citizen. A critical examination of that case will show that it was
wrongly decided, as virtually every recent commentator has concluded. It
follows that the Court’s further step today of constitutionalizing Hans’s rule
against abrogation by Congress compounds and immensely magnifies the
century-old mistake of Hans itself and takes its place with other historic ex-
amples of textually untethered elevations of judicially derived rules to the
status of inviolable constitutional law... .
Three critical errors in Hans weigh against constitutionalizing its hold-
ing as the majority does today. The first we have already seen: the Hans
Court misread the Eleventh Amendment. It also misunderstood the condi-
tions under which common-law doctrines were received or rejected at the
time of the Founding, and it fundamentally mistook the very nature of sov-
ereignty in the young Republic that was supposed to entail a State’s immu-
nity to federal question jurisdiction in a federal court... .
While the States had limited their reception of English common law to
principles appropriate to American conditions, the 1787 draft Constitution
contained no provision for adopting the common law at all. This omission
stood in sharp contrast to the state constitutions then extant, virtually all of
which contained explicit provisions dealing with common-law reception.
Since the experience in the States set the stage for thinking at the national
level, this failure to address the notion of common-law reception could not
have been inadvertent. Instead, the Framers chose to recognize only particu-
lar common-law concepts, such as the writ of habeas corpus, U. S. Const.,
Art. I, Sec. 9, cl. 2, and the distinction between law and equity, U. S. Const.,
Amdt. VII, by specific reference in the constitutional text. This approach re-
flected widespread agreement that ratification would not itself entail a gen-
eral reception of the common law of England.
The Framers also recognized that the diverse development of the
common law in the several states made a general federal reception imposs-
ible. “The common law was not the same in any two of the Colonies,”
Madison observed; “in some the modifications were materially and exten-
sively different.” ...
Given the refusal to entertain any wholesale reception of common law,
given the failure of the new Constitution to make any provision for adop-
tion of common law as such, and given the protests already quoted that no
776 | THe STATES AND AMERICAN FEDERALISM

general reception had occurred, the Hans Court and the Court today cannot
reasonably argue that something like the old immunity doctrine somehow
slipped in as a tacit but enforceable background principle. The evidence is
even more specific, however, that there was no pervasive understanding that
sovereign immunity had limited federal question jurisdiction. .. .
As a matter of political theory, this federal arrangement of dual dele-
gated sovereign powers truly was a more revolutionary turn than the late war
had been. Before the new federal scheme appeared, 18th-century political
theorists had assumed that “there must reside somewhere in every political
unit a single, undivided, final power, higher in legal authority than any other
power, subject to no law, a law unto itself?” The American development of
divided sovereign powers, which “shattered ... the categories of government
that had dominated Western thinking for centuries,’ was made possible only
by a recognition that the ultimate sovereignty rests in the people themselves.
The people possessing this plenary bundle of specific powers were free to
parcel them out to different governments and different branches of the same
government as they saw fit. ...
Given this metamorphosis of the idea of sovereignty in the years lead-
ing up to 1789, the question whether the old immunity doctrine might have
been received as something suitable for the new world of federal question
jurisdiction is a crucial one. The answer is that sovereign immunity as it
would have been known to the Framers before ratification thereafter became
inapplicable as a matter of logic in a federal suit raising a federal question.
The old doctrine, after all, barred the involuntary subjection of a sovereign
to the system of justice and law of which it was itself the font, since to do
otherwise would have struck the common-law mind from the Middle Ages
onward as both impractical and absurd. But the ratification demonstrated
that state governments were subject to a superior regime of law in a judicial
system established, not by the State, but by the people through aspecific del-
egation of their sovereign power to a National Government that was para-
mount within its delegated sphere. When individuals sued States to enforce
federal rights, the Government that corresponded to the “sovereign” in the
traditional common-law sense was not the State but the National Govern-
ment, and any state immunity from the jurisdiction of the Nation’s courts
would have required a grant from the true sovereign, the people, in
their Constitution, or from the Congress that the Constitution had em-
powered. ...
State immunity to federal question jurisdiction would, moreover, have
run up against the common understanding of the practical necessity for the
new federal relationship. According to Madison, the “multiplicity,” “mutabil-
ity,’ and “injustice” of then-extant state laws were prime factors requiring
the formation of a new government. These factors, Madison wrote to Jeffer-
son, “contributed more to that uneasiness which produced the Convention,
and prepared the Public mind for a general reform, than those which ac-
crued to our national character and interest from the inadequacy of the
Confederation to its immediate objects.’ These concerns ultimately found
concrete expression in a number of specific limitations on state power, in-
cluding provisions barring the States from enacting bills of attainder or ex
post facto laws, coining money or emitting bills of credit, denying the priv-
ileges and immunities of out-of-staters, or impairing the obligation of
 B | The Tenth and Eleventh Amendments and the States | 777

contracts. But the proposed Constitution also dealt with the old problems af-
firmatively by granting the powers to Congress enumerated in Article I, Sec-
tion 8, and by providing through the Supremacy Clause that Congress could
preempt State action in areas of concurrent state and federal authority.
Given the Framers’ general concern with curbing abuses by state govern-
ments, it would be amazing if the scheme of delegated powers embodied in
the Constitution had left the National Government powerless to render the
States judicially accountable for violations of federal rights. And of course
the Framers did not understand the scheme to leave the government power-
Tess te?
History confirms the wisdom of Madison’s abhorrence of constitution-
alizing common-law rules to place them beyond the reach of congressional
amendment. The Framers feared judicial power over substantive policy and
the ossification of law that would result from transforming common law
into constitutional law, and their fears have been borne out every time the
Court has ignored Madison’s counsel on subjects that we generally group
under economic and social policy. It is, in fact, remarkable that as we near the
end of this century the Court should choose to open a new constitutional
chapter in confining legislative judgments on these matters by resort to tex-
tually unwarranted common-law rules, for it was just this practice in the
century’s early decades that brought this Court to the nadir of competence
that we identify with Lochner v. New York, 198 U.S. 45 (1905).
It was the defining characteristic of the Lochner era, and its charac-
teristic vice, that the Court treated the common-law background (in those
days, common-law property rights and contractual autonomy) as paramount,
while regarding congressional legislation to abrogate the common law on
these economic matters as constitutionally suspect. See, e.g., Adkins v. Chil-
dren’s Hospital of D.C., 261 U.S.525 (1923) (finding abrogation of common-
law freedom to contract for any wage an unconstitutional “compulsory
exaction”).
And yet the superseding lesson that seemed clear after West Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937), that action within the legislative
power is not subject to greater scrutiny merely because it trenches upon the
case law’s ordering of economic and social relationships, seems to have been
lost on the Court.
The majority today, indeed, seems to be going Lochner one better. When
the Court has previously constrained the express Article I powers by resort
to common-law or background principles, it has done so at least in an os-
tensible effort to give content to some other written provision of the Con-
stitution, like the Due Process Clause, the very object of which is to limit
the exercise of governmental power. . . . Today, however, the Court is not
struggling to fulfill a responsibility to reconcile two arguably conflicting and
Delphic constitutional provisions, nor is it struggling with any Delphic text
at all. For even the Court concedes that the Constitution’s grant to Congress
of plenary power over relations with Indian tribes at the expense of
any state claim to the contrary is unmistakably clear, and this case does
not even arguably implicate a textual trump to the grant of federal question
jurisdiction. ...
In Ex.parte-Young, this Court held that a federal court has jurisdiction in
a suit against a state officer to enjoin official actions violating federal law,
even though the State itself may be immune. Under Young, “a federal court,
778 | Tre STATES AND AMERICAN FEDERALISM

consistent with the Eleventh Amendment, may enjoin state officials to con-
form their future conduct to the requirements of federal law.” .. .
Absent the application of Ex parte Young, 1 would, of course, follow
Union Gas in recognizing congressional power under Article I to abrogate
Hans immunity. Since the reasons for this position, supra, tend to unsettle
Hans as well as support Union Gas, 1 should add a word about my reasons for
continuing to accept Hans’s holding as a matter of stare decisis.
The Hans doctrine was erroneous, but it has not previously proven to be
unworkable or to conflict with later doctrine or to suffer from the effects of
facts developed since its decision (apart from those indicating its original er-
rors). I would therefore treat Hans as it has always been treated in fact until to-
day, as a doctrine of federal common law. For, as so understood, it has formed
one of the strands of the federal relationship for over a century now, and the
stability of that relationship is itself. a value that stare decisis aims to respect.
In being ready to hold that the relationship may still be altered, not by
the Court but by Congress, I would tread the course laid out elsewhere in
our cases. The Court has repeatedly stated its assumption that insofar as the
relative positions of States and Nation may be affected consistently with the
Tenth Amendment, they would not be modified without deliberately ex-
pressed intent. See Gregory v. Ashcroft, 501 U.S. [452 (1991)]. The plain state-
ment rule, which “assures that the legislature has in fact faced, and intended
to bring into issue, the critical matters involved in the judicial decision,” 1s
particularly appropriate in light of our primary reliance on “the effectiveness
of the federal political process in preserving the States’ interests.” Garcia v. San
Antonio Metropolitan Authority, 469 U.S. 528 (1985). Hence, we have required
such a plain statement when Congress pre-empts the historic powers of the
States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), imposes a condi-
tion on the grant of federal moneys, South Dakota v. Dole, 483 U.S. 203
(1987), or seeks to regulate a State’s ability to determine the qualifications of
its own officials.
When judging legislation passed under unmistakable Article I powers,
no further restriction could be required. Nor does the Court explain why
more could be demanded. In the past, we have assumed that a plain state-
ment requirement is sufficient to protect the States from undue federal en-
croachments upon their traditional immunity from suit. It is hard to contend
that this rule has set the bar too low, for (except in Union Gas) we have never
found the requirement to be met outside the context of laws passed under
Section 5 of the Fourteenth Amendment. The exception I would recognize
today proves the rule, moreover, because the federal abrogation of state im-
munity comes as part of a regulatory scheme which is itself designed to in-
vest the States with regulatory powers that Congress need not extend to
them. This fact suggests to me that the “political safeguards of federalism are
working, that a plain statement rule is an adequate check on congressional
overreaching, and that today’s abandonment of that approach is wholly un-
warranted. ...
 B | The Tenth and Eleventh Amendments and the States | 779

Alden v. Maine
527 US. 706, 119 S.CT. 2240 (1999)

The pertinent facts are discussed by Justice Kennedy in his opinion for
the Court, affirming the decision of the Maine Supreme Judicial
Court. The Court’s decision was five to four. Justice Souter filed a dis-
senting opinion, which was joined by Justices Stevens, Ginsburg, and
Breyer.

Justice KENNEDY delivered the opinion of the Court.

In 1992, petitioners, a group of probation officers, filed suit against their
employer, the State of Maine, in the United States District Court for the
District of Maine. The officers alleged the State had violated the overtime
provisions of the Fair Labor Standards Act of 1938 (FLSA), and sought com-
pensation and liquidated damages. While the suit was pending, this Court de-
cided Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), which made it clear
that Congress lacks power under Article I to abrogate the States’ sovereign
immunity from suits commenced or prosecuted in the federal courts. Upon
consideration of Seminole Tribe, the District Court dismissed petitioners’ ac-
tion, and the Court of Appeals affirmed. Petitioners then filed the same ac-
tion in state court. The state trial court dismissed the suit on the basis of
sovereign immunity, and the Maine Supreme Judicial Court affirmed. . . .
We hold that the powers delegated to Congress under Article I of the
United States Constitution do not include the power to subject nonconsent-
ing States to private suits for damages in state courts. We decide as well that
the State of Maine has not consented to suits for overtime pay and liqui-
dated damages under the FLSA. On these premises we affirm the judgment
sustaining dismissal of the suit.
The Eleventh Amendment makes explicit reference to the States’ immu-
nity from suits “commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign
State”” We have, as a result, sometimes referred to the States’ immunity from
suit as “Eleventh Amendment immunity.’ The phrase is convenient short-
hand but something of a misnomer, for the sovereign immunity of the States
neither derives from nor is limited by the terms of the Eleventh Amend-
ment. Rather, as the Constitution’s structure, and its history, and the author-
itative interpretations by this Court make clear, the States’ immunity from
suit is a fundamental aspect of the sovereignty which the States enjoyed be-
fore the ratification of the Constitution, and which they retain today (either
literally or by virtue of their admission into the Union upon an equal foot-
ing with the other States) except as altered by the plan of the Convention or
certain constitutional Amendments.
Although the Constitution establishes a National Government with
broad, often plenary authority over matters within its recognized compe-
tence, the founding document “specifically recognizes the States as sovereign
entities.” Seminole Tribe of Fla. Various textual provisions of the Constitution
780 | Tur STATES AND AMERICAN FEDERALISM

assume the States’ continued existence and active participation in the funda-
mental processes of governance. See Printz v. United States, 521 U.S. 898
(1997) (citing Art. III, Sec. 2; Art. IV, Secs. 2-4; Art.V). The limited and enu-
merated powers granted to the Legislative, Executive, and Judicial Branches
of the National Government, moreover, underscore the vital role reserved to
the States by the constitutional design. Any doubt regarding the constitu-
tional role of the States as sovereign entities is removed by the Tenth Amend-
ment, which, like the other provisions of the Bill of Rights, was enacted
to allay lingering concerns about the extent of the national power. The
Amendment confirms the promise implicit in the original document: “The
powers not delegated to the United States by the Constitution, nor pro-
hibited by it to the States, are reserved to the States respectively, or to the
people.”
The federal system established .by our Constitution preserves the sover-
eign status of the States in two ways. First, it reserves to them a substantial
portion of the Nation’s primary sovereignty, together with the dignity and
essential attributes inhering in that status... .
Second, even as to matters within the competence of the National
Government, the constitutional design secures the founding generation’s re-
jection of “the concept of a central government that would act upon and
through the States” in favor of “a system in which the State and Federal
Governments would exercise concurrent authority over the people—who
were, in Hamilton’s words, “the only proper objects of government.” Printz.
In this the founders achieved a deliberate departure from the Articles of
Confederation: Experience under the Articles had “exploded on all hands”
the “practicality of making laws, with coercive sanctions, for the States as po-
litical bodies.” .. .
The generation that designed and adopted our federal system considered
immunity from private suits central to sovereign dignity. When the Constitu-
tion was ratified, it was well established in English law that the Crown could
not be sued without consent in its own courts. See Chisholm v, Georgia,
2 Dall. 419 (1793) (IREDELL, J., dissenting). . ..
[The Court’s decision in Chisholm v. Georgia met with widespread oppo-
sition and resulted in the adoption and ratification of the Eleventh Amend-
ment, guaranteeing states’ sovereign immunity against lawsuits by citizens of
other states.] Each House spent but a single day discussing the Amendment,
and the vote in each House was close to unanimous. All attempts to weaken
the Amendment were defeated. . . .
It might be argued that the Chisholm decision was a correct interpreta-
tion of the constitutional design and that the Eleventh Amendment repre-
sented a deviation from the original understanding. This, however, seems
unsupportable. First, despite the opinion of Justice IREDELL, the majority
failed to address either the practice or the understanding that prevailed in the
States at the time the Constitution was adopted. Second, even a casual read-
ing of the opinions suggests the majority suspected the decision would be
unpopular and surprising. . . .
The text and history of the Eleventh Amendment also suggest that
Congress acted not to change but to restore the original constitutional de-
sign. Although earlier drafts of the Amendment had been phrased as express
limits on the judicial power granted in Article III, the adopted text addressed
 B | The Tenth and Eleventh Amendments and the States | 781

the proper interpretation of that provision of the original Constitution, see

US. Const., Amdt. 11 (“The Judicial Power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States”). By its terms, then, the Eleventh Amend-
ment did not redefine the federal judicial power but instead overruled the
ourtw t
The Court has been consistent in interpreting the adoption of the
Eleventh Amendment as conclusive evidence “that the decision in Chisholm
was contrary to the well-understood meaning of the Constitution,’ Seminole
Tribe, and that the views expressed by Hamilton, Madison, and Marshall dur-
ing the ratification debates, and by Justice IREDELL in his dissenting opin-
ion in Chisholm, reflect the original understanding of the Constitution. In
accordance with this understanding, we have recognized a “presumption that
no anomalous and unheard-of proceedings or suits were intended to be
raised up by the Constitution—anomalous and unheard of when the consti-
tution was adopted.” As a consequénce, we have looked to “history and ex-
perience, and the established order of things,” rather than “[a]dhering to the
mere letter” of the Eleventh Amendment in determining the scope of the
States’ constitutional immunity from suit... .
[Prior] holdings reflect a settled doctrinal understanding, consistent with
the views of the leading advocates of the Constitution’s ratification, that
sovereign immunity derives not from the Eleventh Amendment but from the
structure of the original Constitution itself. The Eleventh Amendment con-
firmed rather than established sovereign immunity as a constitutional princi-
ple; it follows that the scope of the States’ immunity from suit is demarcated
not by the text of the Amendment alone but by fundamental postulates im-
plicit in the constitutional design. ...
In this case we must determine whether Congress has the power, under
Article I, to subject nonconsenting States to private suits in their own courts.
As the foregoing discussion makes clear, the fact that the Eleventh Amend-
ment by its terms limits only “[t]he Judicial power of the United States” does
not resolve the question. To rest on the words of the Amendment alone
would be to engage in the type of ahistorical literalism we have rejected in
interpreting the scope of the States’ sovereign immunity since the discredited
decision in Chisholm.
While the constitutional principle of sovereign immunity does pose a
bar to federal jurisdiction over suits against nonconsenting States, this is not
the only structural basis of sovereign immunity implicit in the constitutional
design. Rather, “[t]here is also the postulate that States of the Union, still
possessing attributes of sovereignty, shall be immune from suits, without their
consent, save where there has been a surrender of this immunity in the plan
of the convention.” This separate and distinct structural principle is not di-
rectly related to the scope of the judicial power established by Article III, but
inheres in the system of federalism established by the Constitution. In exer-
‘cising its Article I powers Congress may subject the States to private suits in
their own courts only if there is “compelling evidence” that the States were
required to surrender this power to Congress pursuant to the constitutional
design.
Petitioners contend the text of the Constitution and our recent sover-
eign immunity decisions establish that the States were required to relinquish
782 | Te STATES AND AMERICAN FEDERALISM

this portion of their sovereignty. [But, we disagree.] The Constitution, by

delegating to Congress the power to establish the supreme law of the land
when acting within its enumerated powers, does not foreclose a State from
asserting immunity to claims arising under federal law merely because that
law derives not from the State itself but from the national power. A contrary
view could not be reconciled with ... Employees of Dept. of Public Health and
Welfare of Mo..v. Department of Public Health and Welfare of Mo., 411 U.S. 279
(1973), which recognized that the FLSA was binding upon Missouri but
nevertheless upheld the State’s immunity to a private suit to recover under
that Act; or with numerous other decisions to the same effect. We reject any
contention that substantive federal law by its own force necessarily overrides
the sovereign immunity of the States. When a State asserts its immunity to
suit, the question is not the primacy of federal law but the implementation
of the law in a manner consistent with the constitutional sovereignty of the
Statess)..24
Whether Congress has authority under Article I to abrogate a State’s
immunity from suit in its own courts is, then, a question of first impression.
In determining whether there is “compelling evidence” that this derogation
of the States’ sovereignty is “inherent in the constitutional compact,” we
continue our discussion of history, practice, precedent, and the structure of
the Constitution.
We look first to evidence of the original understanding of the Consti-
tution. Petitioners contend that because the ratification debates and the
events surrounding the adoption of the Eleventh Amendment focused on
the States’ immunity from suit in federal courts, the historical record gives no
instruction as to the founding generation’s intent to preserve the States’ im-
munity from suit in their own courts.
We believe, however, that the founders’ silence is best explained by the
simple fact that no one, not even the Constitution’s most ardent opponents,
suggested the document might strip.the States of the immunity. In light of
the overriding concern regarding the States’ war-time debts, together with
the well known creativity, foresight, and vivid imagination of the Constitu-
tion’s opponents, the silence is most instructive. It suggests the sovereign’s
right to assert immunity from suit in its own courts was a principle so
well established that no one conceived it would be altered by the new
Constitution. ...
[W]hile the Eleventh Amendment by its terms addresses only “the Judi-
cial power of the United States,” nothing in Chisholm, the catalyst for the
Amendment, suggested the States were not immune from suits in their own
courte
In ight of the language of the Constitution and the historical context,
it is quite apparent why neither the ratification debates nor the language of
the Eleventh Amendment addressed the States’ immunity from suit in their
own courts. The concerns voiced at the ratifying conventions, the furor
raised by Chisholm, and the speed and unanimity with which the Amend-
ment was adopted, moreover, underscore the jealous care with which the
founding generation sought to preserve the sovereign immunity of the
Statessen,.
Our final consideration is whether a congressional power to ‘subject
nonconsenting States to private suits in their own courts is consistent with
 B | The Tenth and Eleventh Amendments and the States | 783

the structure of the Constitution. We look both to the essential principles

of federalism and to the special role of the state courts in the constitutional
design. ...
Petitioners contend that immunity from suit in federal court suffices to
preserve the dignity of the States. Private suits against nonconsenting States,
however, present “the indignity of subjecting a State to the coercive process
of judicial tribunals at the instance of private parties,” In re Ayers, [123 U.S.
443 (1887)], regardless of the forum. Not only must a State defend or default
but also it must face the prospect of being thrust, by federal fiat and against
its will, into the disfavored status of a debtor, subject to the power of private
citizens to levy on its treasury or perhaps even government buildings or
property which the State administers-on the public’s behalf. . ..
A general federal power to authorize private suits for money damages
would place unwarranted strain on the States’ ability to govern in accordance
with the will of their citizens. Today, as at the time of the founding, the allo-
cation of scarce resources among Competing needs and interests lies at the
heart of the political process. While the judgment creditor of the State may
have a legitimate claim for compensation, other important needs and worth-
while ends compete for access to the public fisc. Since all cannot be satisfied
in full, it is inevitable that difficult decisions involving the most sensitive and
political of judgments must be made. If the principle of representative
government is to be preserved to the States, the balance between competing
interests must be reached after deliberation by the political process estab-
lished by the citizens of the State, not by judicial decree mandated by the
Federal Government and invoked by the private citizen.
By “split[ting] the atom of sovereignty,” the founders established “two
orders of government, each with its own direct relationship, its own privity,
its own set of mutual rights and obligations to the people who sustain it and
are governed by it.” Saenz v, Roe, 526 U.S. 489 (1999). When the Federal
Government asserts authority over a State’s most fundamental political
processes, it strikes at the heart of the political accountability so essential to
our liberty and republican form of government.
The asserted authority would blur not only the distinct responsibilities
of the State and National Governments but also the separate duties of the
judicial and political branches of the state governments, displacing “‘state
decisions that ‘go to the heart of representative government.’ ” Gregory ».
Ashcroft, 501 U.S. 452 (1991).A State is entitled to order the processes of its
own governance, assigning to the political branches, rather than the courts,
the responsibility for directing the payment of debts. If Congress could dis-
place a State’s allocation of governmental power and responsibility, the judi-
cial branch of the State, whose legitimacy derives from fidelity to the law,
would be compelled to assume a role not only foreign to its experience but
beyond its competence as defined by the very constitution from which its
existence derives. ...
In light of history, practice, precedent, and the structure of the Consti-
tution, we hold that the States retain immunity from private suit in their
own courts, an immunity beyond the congressional power to abrogate by Ar-
ticle I legislation.
The constitutional privilege of a State to assert its sovereign immunity
in its own courts does not confer upon the State a concomitant right to dis-
5
784 | Tre STATES AND AMERICAN FEDERALISM

regard the Constitution or valid federal law. The States and their officers are
bound by obligations imposed by the Constitution and by federal statutes
that comport with the constitutional design. We are unwilling to assume the
States will refuse to honor the Constitution or obey the binding laws of the
United States.
Sovereign immunity, moreover, does not bar all judicial review of state
compliance with the Constitution and valid federal law. Rather, certain lim-
its are implicit in the constitutional principle of state sovereign immunity.
The first of these limits is that sovereign immunity bars suits only in the
absence of consent. Many States, on their own initiative, have enacted
statutes consenting to a wide variety of suits. The rigors of sovereign immu-
nity are thus “mitigated by a sense of justice which has continually ex-
panded by consent the suability of the sovereign.” Great Northern Life Ins. Co.
[v. Read, 322 U.S. 47 (1944)]. Nor, subject to constitutional limitations, does
the Federal Government lack the authority or means to seek the States’ vol-
untary consent to private suits. Cf. South Dakota v. Dole, 483 U.S. 203 (1987).
We have held also that in adopting the Fourteenth Amendment, the
people required the States to surrender a portion of the sovereignty that had
been preserved to them by the original Constitution, so that Congress may
authorize private suits against nonconsenting States pursuant to its Section 5
enforcement power. By imposing explicit limits on the powers of the States
and granting Congress the power to enforce them, the Amendment “funda-
mentally altered the balance of state and federal power struck by the Con-
stitution.” Seminole Tribe. When Congress enacts appropriate legislation to
enforce this Amendment, see City of Boerne v. Flores, 521 U.S. 507 (1997),
federal interests are paramount, and Congress may assert an authority over
the States which would be otherwise unauthorized by the Constitution.
The second important limit to the principle of sovereign immunity is
that it bars suits against States but not lesser entities. The immunity does not
extend to suits prosecuted against a municipal corporation or other govern-
mental entity which is not an arm of the State. Nor does sovereign immu-
nity bar all suits against state officers. Some suits against state officers are
barred by the rule that sovereign immunity is not limited to suits which
name the State as a party if the suits are, in fact, against the State. The rule,
however, does not bar certain actions against state officers for injunctive or
declaratory relief. Compare Ex parte Young, 209 U.S. 123 (1908), and In re
Ayers, supra, with Seminole Tribe, supra, and Edelman v.Jordan, 415 ULS. 651
(1974). Even a suit for money damages may be prosecuted against a state of-
ficer in his individual capacity for unconstitutional or wrongful conduct
fairly attributable to the officer himself, so long as the relief is sought not
from the state treasury but from the officer personally. . . .
[Finally, t]he State of Maine has not questioned Congress’ power to pre-
scribe substantive rules of federal law to which it must comply. Despite an
initial good-faith disagreement about the requirements of the FLSA, it is
conceded by all that the State has altered its conduct so that its compliance
with federal law cannot now be questioned. The Solicitor General of the
United States has appeared before this Court, however, and asserted that the
federal interest in compensating the States’ employees for alleged past viola-
tions of federal law is so compelling that the sovereign State of Maine must
be stripped of its immunity and subjected to suit in its own courts by -its
 B | The Tenth and Eleventh Amendments and the States | 785

own employees. Yet, despite specific statutory authorization, the United

States apparently found the same interests insufficient to justify sending even
a single attorney to Maine to prosecute this litigation. The difference be-
tween a suit by the United States on behalf of the employees and a suit by
the employees implicates a rule that the National Government must itself
deem the case of sufficient importance to take action against the State; and
history, precedent, and the structure of the Constitution make clear that, un-
der the plan of the Convention, the States have consented to suits of the
first kind but not of the second. The judgment of the Supreme Judicial
Court of Maine is Affirmed.

(| Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG,

and Justice BREYER join, dissenting.
In Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), a majority of this
Court invoked the Eleventh Amendment to declare that the federal judicial
power under Article III of the Constitution does not reach a private action
against a State, even on a federal question. In the Court’s conception, how-
ever, the Eleventh Amendment was understood as having been enhanced by
a “background principle” of state sovereign immunity (understood as immu-
nity to suit) that operated beyond its limited codification in the Amend-
ment, dealing solely with federal citizen-state diversity jurisdiction. To the
Seminole Tribe dissenters, of whom I was one, the Court’s enhancement
of the Amendment was at odds with constitutional history and at war
with the conception of divided sovereignty that is the essence of American
federalism.
Today’s issue arises naturally in the aftermath of the decision in Seminole
Tribe. ... In thus complementing its earlier decision, the Court of course con-
fronts the fact that the state forum renders the Eleventh Amendment beside
the point, and it has responded by discerning a simpler and more straightfor-
ward theory of state sovereign immunity than it found in Seminole Tribe: a
State’s sovereign immunity from all individual suits is a “fundamental aspect”
of state sovereignty “confirm[ed]” by the Tenth Amendment. As a conse-
quence, Seminole Tribe’s contorted reliance on the Eleventh Amendment and
its background was presumably unnecessary; the Tenth would have done the
work with an economy that the majority in Seminole Tribe would have wel-
comed. Indeed, if the Court’s current reasoning is correct, the Eleventh
Amendment itself was unnecessary. Whatever Article III may originally have
said about the federal judicial power, the embarrassment to the State of Geor-
gia occasioned by attempts in federal court to enforce the State’s war debt
could easily have been avoided if only the Court that decided Chis-
holm v. Georgia, 2 Dall. 419 (1793), had understood a State's inherent, Tenth
Amendment right to be free of any judicial power, whether the court be state
or federal, and whether the cause of action arise under state or federal law.
The sequence of the Court’s positions prompts a suspicion of error, and
skepticism is confirmed by scrutiny of the Court’s efforts to justify its hold-
ing. There is no evidence that the Tenth Amendment constitutionalized a
concept of savereign immunity as inherent in the notion of statehood, and
no evide..ce that any concept of inherent sovereign immunity was under-
stood historically to apply when the sovereign sued was not the font of the
786 | Tre STares AND AMERICAN FEDERALISM

law. Nor does the Court fare any better with its subsidiary lines of reasoning,
that the state-court action is barred by the scheme of American federalism, a
result supposedly confirmed by a history largely devoid of precursors to the
action considered here. The Court’s federalism ignores the accepted author-
ity of Congress to bind States under the FLSA and to provide for enforce-
ment of federal rights in state court. The Court’s history simply disparages
the capacity of the Constitution to order relationships in a Republic that has
changed since the founding.
On each point the Court has raised it is mistaken, and I respectfully dis-
sent from its judgment.

Nevada Department of Human Resources v. Hibbs

So bnkddag bol telabel O72 (2003)

The Family and Medical Leave Act of 1993 (FMLA) entitles eligible
employees to take up to twelve weeks of unpaid leave annually for at-
tending to illnesses within the immediate family. The FMLA also cre-
ates a private right of action to seek damages against an employer for
violating provisions of the law. William Hibbs worked for the Nevada
Department of Human Resources and in 1997 sought leave under the
FMLA in order to care for his ailing wife. His request was granted but
after twelve weeks on leave the agency notified him that he must re-
turn to work. When Hibbs failed to do so, his employment was termi-
nated. Subsequently, Hibbs sued Nevada in federal district court for
violations of the FMLA. The district court held that Hibbs was barred
from filing the FMLA claim against the state on the basis of the
Eleventh Amendment. However, on appeal the Court of Appeals for
the Ninth Circuit reversed that decision and ruled that states’ sovereign
immunity under the Eleventh Amendment was overridden by Con-
gress’s power under Section 5 of the Fourteenth Amendment to enact
laws aimed at enforcing the equal protection of the law and address the
persistence of gender discrimination. The state appealed that decision
and the Supreme Court granted certiorari.
The Supreme Court affirmed by a vote of six to three. Chief Jus-
tice Rehnquist delivered the opinion for the Court. Justices Souter and
Stevens each filed concurring opinions. Justices Scalia and Kennedy
filed dissenting opinions; Justice Thomas joined the dissent.

| CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eli-
gible employees to take up to 12 work weeks of unpaid leave annually for
 B | The Tenth and Eleventh Amendments and the States | 787

any of several reasons, including the onset of a “serious health condition” in

an employee’s spouse, child, or parent. The Act creates a private right of ac-
tion to seek both equitable relief and money damages “against any employer
(including a public agency) in any Federal or State court of competent juris-
diction,’ Section 2617 (a) (2), should that employer “interfere with, restrain,
or deny the exercise of? FMLA rights. We hold that employees of the State
of Nevada may recover money damages in the event of the State’s failure to
comply with the family-care provision of the Act... .
For over a century now, we have made clear that the Constitution does
not provide for federal jurisdiction over suits against nonconsenting States.
Board of Tiustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001); Kimel v. Florida
Bad. of Regents, 528 U.S. 62 (2000); College Savings Bank v. Florida Prepaid Post-
secondary Ed. Expense Bd.,527 U.S. 666 (1999); Seminole Tribe of Fla. v. Florida,
517 US. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890).
Congress may, however, abrogate such immunity in federal court if it
makes its intention to abrogate unmistakably clear in the language of the
statute and acts pursuant to a valid exercise of its power under Section 5 of
the Fourteenth Amendment. The clarity of Congress’ intent here is not fairly
debatable. The Act enables employees to seek damages “against any employer
(including a public agency) in any Federal or State court of competent juris-
diction,” and Congress has defined “public agency” to include both “the
government of a State or political subdivision thereof” and “any agency of
...a State, or a political subdivision of a State.’ We held in Kimel that, by us-
ing identical language in the Age Discrimination in Employment Act of
1967 (ADEA), Congress satisfied the clear statement rule of Dellmuth
[v, Muth, 491 U.S. 223 (1989)]. This case turns, then, on whether Congress
acted within its constitutional authority when it sought to abrogate the
States’ immunity for purposes of the FMLA’s family-leave provision.
In enacting the FMLA, Congress relied on two of the powers vested in
it by the Constitution: its Article I commerce power and its power under
Section 5 of the Fourteenth Amendment to enforce that Amendment's guar-
antees. Congress may not abrogate the States’ sovereign immunity pursuant
to its Article I power over commerce. Seminole Tribe. Congress may, however,
abrogate States’ sovereign immunity through a valid exercise of its Section 5
power, for “the Eleventh Amendment, and the principle of state sovereignty
which it embodies, are necessarily limited by the enforcement provisions of
Section 5 of the Fourteenth Amendment.” Fitzpatrick v. Bitzer, 427 U.S. 445
(1976). See also Garrett; Kimel.
Two provisions of the Fourteenth Amendment are relevant here: Section
5 grants Congress the power “to enforce” the substantive guarantees of Sec-
tion 1—among them, equal protection of the laws—by enacting “appropriate
legislation.” Congress may, in the exercise of its Section 5 power, do more
than simply proscribe conduct that we have held unconstitutional. “Congress’
power to enforce” the Amendment includes the authority both to remedy
-and to deter violation of rights guaranteed thereunder by prohibiting a some-
what broader swath of conduct, including that which is not itself forbidden
by the Amendment’ text.’ ” Garrett; City of Boerne v. Flores, 521 U.S. 507
(1997); Katzenbach v. Morgan, 384 U.S. 641 (1966). In other words, Congress
may enac. so-called prophylactic legislation that proscribes facially constitu-
tional conduct, in order to prevent and deter unconstitutional conduct.
 788 | Tue STATES AND AMERICAN FEDERALISM

City of Boerne also confirmed, however, that it fails to this Court, not
Congress, to define the substance of constitutional guarantees. “The ultimate
interpretation and determination of the Fourteenth Amendment’s substan-
tive meaning remains the province of the Judicial Branch.” Kimel. Section 5
legislation reaching beyond the scope of Section 1’s actual guarantees must
be an appropriate remedy for identified constitutional violations, not “an
attempt to substantively redefine the States’ legal obligations.” We distin-
guish appropriate prophylactic legislation from “substantive redefinition of
the Fourteenth Amendment right at issue” by applying the test set forth in
City of Boerne: Valid Section 5 legislation must exhibit “congruence and pro-
portionality between the injury to be prevented or remedied and the means
adopted to that end.”
The FMLA aims to protect the right to be free from gender-based dis-
crimination in the workplace. We have held that statutory classifications that
distinguish between males and females are subject to heightened scrutiny.
See, e.g., Craig v. Boren, 429 U.S. 190 (1976). For a gender-based classification
to withstand such scrutiny, it must “serv[e] important governmental objec-
tives,” and “the discriminatory means employed [must be] substantially re-
lated to the achievement of those objectives.” United States v. Virginia, 518
US. 515 (1996). The State’s justification for such a classification “must not
rely on overbroad generalizations about the different talents, capacities, or
preferences of males and females.” We now inquire whether Congress had
evidence of a pattern of constitutional violations on the part of the States in
this area.
The history of the many state laws limiting women’s employment op-
portunities is chronicled in-—and, until relatively recently, was sanctioned
by—this Court’s own opinions. For example, in Bradwell v. State, 16 Wall. 130
(1873) (Illinois), and Goesaert v. Cleary, 335 U.S. 464 (1948) (Michigan), the
Court upheld state laws prohibiting women from practicing law and tending
bar, respectively. State laws frequently subjected women to distinctive restric-
tions, terms, conditions, and benefits for those jobs they could take. In Muller
v. Oregon, 208 U.S. 412 (1908), for example, this Court approved astate law
limiting the hours that women could work for wages, and observed that 19
States had such laws at the time. Such laws were based on the related beliefs
that (1) woman is, and should remain, “the center of home and family life,’
Hoyt v. Florida, 368 U.S. 57 (1961), and (2) “a proper discharge of [a
woman's] maternal functions—having in view not merely her own health,
but the well-being of the race—justiflies] legislation to protect her from the
greed as well as the passion of man,” Muller. Until our decision in Reed v,
Reed, 404 U.S. 71 (1971), “it remained the prevailing doctrine that govern-
ment, both federal and state, could withhold from women opportunities
accorded men so long as any ‘basis in reason’ ”—such as the above beliefs——
“could be conceived for the discrimination.” Virginia.
Congress responded to this history of discrimination by abrogating
States’ sovereign immunity in Title VII of the Civil Rights Act of 1964, and
we sustained this abrogation in Fitzpatrick. But state gender discrimination
did not cease. “[I]t can hardly be doubted that ... women still face pervasive,
although at times more subtle, discrimination . . . in the job market.” Frontiero
v. Richardson, 411 U.S. 677 (1973). According to evidence that was before
Congress when it enacted the FMLA, States continue to rely on invalid gen-
 B | The Tenth and Eleventh Amendments and the States | 789

der stereotypes in the employment context, specifically in the administration

of leave benefits. Reliance on such stereotypes cannot justify the States’ gen-
der discrimination in this area. Virginia. The long and extensive history of sex
discrimination prompted us to hold that measures that differentiate on the
basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the per-
sistence of such unconstitutional discrimination by the States justifies Con-
gress’ passage of prophylactic Section 5 legislation.
As the FMLA’ legislative record reflects, a 1990 Bureau of Labor Statis-
tics (BLS) survey stated that 37 percent of surveyed private-sector employees
were covered by maternity leave policies, while only 18 percent were cov-
ered by paternity leave policies. The corresponding numbers from a similar
BLS survey the previous year were 33 percent and 16 percent, respectively.
While these data show an increase in the percentage of employees eligible
for such leave, they also show a widening of the gender gap during the same
period. Thus, stereotype-based beliefs about the allocation of family duties
remained firmly rooted, and employers’ reliance on them in establishing dis-
criminatory leave policies remained widespread.
Congress also heard testimony that “[p]arental leave for fathers . . . is
rare. Even . . . [w]here child-care leave policies do exist, men, both in the
public and private sectors, receive notoriously discriminatory treatment in
their requests for such leave.” (Washington Council of Lawyers). Many States
offered women extended “maternity” leave that far exceeded the typical
4- to 8-week period of physical disability due to pregnancy and childbirth,
but very few States granted men a parallel benefit: Fifteen States provided
women up to one year of extended maternity leave, while only four pro-
vided men with the same. This and other differential leave policies were not
attributable to any differential physical needs of men and women, but rather
to the pervasive sex-role stereotype that caring for family members is
women’s work.
Finally, Congress had evidence that, even where state laws and policies
were not facially discriminatory, they were applied in discriminatory ways... .
In sum, the States’ record of unconstitutional participation in, and fos-
tering of, gender-based discrimination in the administration of leave benefits
is-weighty enough to justify the enactment of prophylactic Section 5 legisla-
tion.
We reached the opposite conclusion in Garrett and Kimel. In those cases,
the Section 5 legislation under review responded to a purported tendency of
state officials to make age- or disability-based distinctions. Under our equal
protection case law, discrimination on the basis of such characteristics is not
judged under a heightened review standard, and passes muster if there is “a
rational basis for doing so at a class-based level, even if it ‘is probably not
true’ that those reasons are valid in the majority of cases.” Kimel. Thus, in or-
der to impugn the constitutionality of state discrimination against the dis-
abled or the elderly, Congress must identify, not just the existence of age- or
‘disability-based state decisions, but “a widespread pattern” of irrational re-
liance on such criteria. We found no such showing with respect to the
ADEA and Title I of the Americans with Disabilities Act of 1990 (ADA).
Kimel.
Here, however, Congress directed its attention to state gender discrimi-
nation, which triggers a heightened level of scrutiny. Because the standard
 790 | Tr STATES AND AMERICAN FEDERALISM

for demonstrating the constitutionality of a gender-based classification is

more difficult to meet than our rational-basis test—it must “serv[e] impor-
tant governmental objectives” and be “substantially related to the achieve-
ment of those objectives,” Virginia,—it was easier for Congress to show a
pattern of state constitutional violations. Congress was similarly successful in
South Carolina v. Katzenbach, 383 U.S. 301 (1966), where we upheld the Vot-
ing Rights Act of 1965: Because racial classifications are presumptively in-
valid, most of the States’ acts of race discrimination violated the Fourteenth
Amendment... .
Unlike the statutes at issue in City of Boerne, Kimel, and Garrett, which
applied broadly to every aspect of state employers’ operations, the FMLA is
narrowly targeted at the fault line between work and family—precisely
where sex-based overgeneralization has been and remains strongest—and ef-
fects only one aspect of the employment relationship. .. .
The judgment of the Court of Appeals is therefore Affirmed.

Justice KENNEDY, with whom Justice SCALIA Justice THOMAS join,

dissenting.
The specific question is whether Congress may impose on the States
this entitlement program of its own design, with mandated minimums for
leave time, and then enforce it by permitting private suits for money dam-
ages against the States. This in turn must be answered by asking whether sub-
jecting States and their treasuries to monetary liability at the insistence of
private litigants is a congruent and proportional response to a demonstrated
pattern of unconstitutional conduct by the States. If we apply the teaching
of these and related cases, the family leave provision of the Act, Section 2612
(a) (1) (C), in my respectful view, is invalid to the extent it allows for private
suits against the unconsenting States.
Congress does not have authority to define the substantive content of
the Equal Protection Clause; it may only shape the remedies warranted by
the violations of that guarantee. City of Boerne. This requirement has special
force in the context of the Eleventh Amendment, which protects a State’s
fiscal integrity from federal intrusion by vesting the States with immunity
from private actions for damages pursuant to federal laws. The Commerce
Clause likely would permit the National Government to enact an entitle-
ment program such as this one; but when Congress couples the entitlement
with the authorization to sue the States for monetary damages, it blurs the
line of accountability the State has to its own citizens. These basic concerns
underlie cases such as Garrett and Kimel. . . .
The Court is unable to show that States have engaged in a pattern of
unlawful conduct which warrants the remedy of opening state treasuries to
private suits. The inability to adduce evidence of alleged discrimination,
coupled with the inescapable fact that the federal scheme is not a remedy but
a benefit program, demonstrate the lack of the requisite link between any
problem Congress has identified and the program it mandated.
In examining whether Congress was addressing a demonstrated “pattern
of unconstitutional employment discrimination by the States.” the Court
gives superficial treatment to the requirement that we “identify with some
precision the scope of the constitutional right at issue.” Garrett. The Court
 B | The Tenth and Eleventh Amendments and the States | 79%

suggests the issue is “the right to be free from gender-based discrimination in

the workplace,” and then it embarks on a survey of our precedents speaking
to “|t]he history of the many state laws limiting women’s employment op-
portunities.” All would agree that women historically have been subjected to
conditions in which their employment opportunities are more limited than
those available to men. As the Court acknowledges, however, Congress re-
sponded to this problem by abrogating States’ sovereign immunity in Title
VII of the Civil Rights Act of 1964.The provision now before us has a dif-
ferent aim than Title VII. It seeks to ensure that eligible employees, irrespec-
tive of gender, can take a minimum amount of leave time to care for an ill
relative.
The relevant question, as the Court seems to acknowledge, is whether,
notwithstanding the passage of Title VI and similar state legislation, the
States continued to engage in widespread discrimination on the basis of
gender in the provision of family leave benefits. If such a pattern were
shown, the Eleventh Amendment ‘would not bar Congress from devising a
congruent and proportional remedy. The evidence to substantiate this charge
must be far more specific, however, than a simple recitation of a general his-
tory of employment discrimination against women. When the federal statute
seeks to abrogate state sovereign immunity, the Court should be more care-
ful to insist on adherence to the analytic requirements set forth in its own
precedents. Persisting overall effects of gender-based discrimination at the
workplace must not be ignored; but simply noting the problem is not a sub-
stitute for evidence which identifies some real discrimination the family
leave rules are designed to prevent. ...
The paucity of evidence to support the case the Court tries to make
demonstrates that Congress was not responding with a congruent and pro-
portional remedy to a perceived course of unconstitutional conduct. Instead,
it enacted a substantive entitlement program of its own. If Congress had
been concerned about different treatment of men and women with respect
to family leave, a congruent remedy would have sought to ensure the bene-
fits of any leave program enacted by a State are available to men and women
on an equal basis. Instead, the Act imposes, across the board, a requirement
that States grant a minimum of 12 weeks of leave per year. This requirement
may represent Congress’ considered judgment as to the optimal balance be-
tween the family obligations of workers and the interests of employers, and
the States may decide to follow these guidelines in designing their own
family leave benefits. It does not follow, however, that if the States choose
to enact a different benefit scheme, they should be deemed to engage in
unconstitutional conduct and forced to open their treasuries to private suits
for damages... .
 792 | THe STATES AND AMERICAN FEDERALISM

=# THE DEVELOPMENT OF LAW

Other Recent Rulings on the Eleventh Amendment

CASE VOTE RULING

Florida Prepaid Postsecondary 5:4 Writing for the Court, Chief Jus-
Education Expense Board v. tice Rehnquist held that Congress
College Savings Bank, exceeded its powers in abrogating
327 U.S. 62 78(1999) states’ sovereign immunity in en-
acting the Patent and Plant Variety
Protection Remedy Clarification Act. Relying on Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996), Chief Justice Rehnquist also ruled that Congress
exceeded its power under the Commerce Clause of Article I and its en-
forcement power under Section 5 of the Fourteenth Amendment, as inter-
preted in City of Boerne v. Flores, 521 U.S. 507 (1997) (excerpted in Vol. 1,
Ch. 6). Justices Stevens, Souter, Ginsburg, and Breyer dissented.

Kimel v. Florida Board of 5:4 Writing for the Court, Justice

Regents, 527 U.S. 62 O’Connor held that Congress ex-
(2000) ceeded its powers in abrogating
states’ sovereign immunity under
the Eleventh Amendment in extending the Age Discrimination in Employ-
ment Act to state employees and ruled that state employees may not bring
suits in federal courts to enforce provisions of the law. Justices Stevens,
Souter, Ginsburg, and Breyer dissented.

Board of Trustees of the 5:4 The Court held that state em-
University of Alabama v. ployees may not sue their state
Garrett, 531 U.S. 356 employers under the Americans
(2001) with Disabilities Act of 1990 (ADA),
which prohibits employers from
“discriminat[ing] against a qualified individual with a disability” in employ-
ment. Writing for the Court, Chief Justice Rehnquist reaffirmed that Con-
gress may abrogate states’ Eleventh Amendment immunity when it both
unequivocally intends to do so and acts pursuant to its constitutional author-
ity. Kimel v, Florida Bd. of Regents, 528 U.S. 62 (2000). While Congress may
_ not base abrogation of state immunity upon its Article I power to regulate
interstate commerce, it may do so under Section 5 of the Fourteenth
Amendment, which authorizes Congress to enforce the Fourteenth Amend-
ment’s protection by enacting “appropriate legislation.” City of Boerne v.
Flores, 521 U.S. 507 (1997). The Court has held, however, that disability,
like age, is not a protected suspect or quasi-suspect classification under the
Fourteenth Amendment. City of Cleburne, Texas v. Cleburne Living Center,
473 US. 432 (1985) (discussed in Vol. 2, Ch. 12). Thus, Congress exceeded
SS a Sa ET
 B | The Tenth and Eleventh Amendments and the States | 793

CASE VOTE RULING

its enforcement and remedial powers under the Fourteenth Amendment

and unconstitutionally abrogated states’ sovereign immunity under the Elev-
enth Amendment.

Kansas v. Colorado, 6:3 Writing for the Court, Justice

B3a00S.. (2001) Stevens rejected the contention
that the Eleventh Amendment bars
a state from recovering monetary damages from another state in a suit on
original jurisdiction; Kansas sued Colorado over the diversion of water from
the Arkansas River and sought a damage award. Justice O’Connor filed an
opinion in part concurring and dissenting, which Justices Scalia and Thomas
joined.
Lapides v. Board of Regents 8:07 Writing for a unanimous Court,
of The University System of Justice Breyer held a state’s removal
Georgia, 534 U.S. 1052 of a lawsuit filed against it from
(2002) a state court to a federal court
constitutes a waiver of the state’s
Eleventh Amendment immunity.
Verizon Maryland v. Public 8:0 With Justice O’Connor not par-
Service Commission of ticipating, the Court held unani-
Maryland, 535 U.S. 467 mously that states are not immune
(2002) from suits brought over the imple-
mentation of the Telecommunica-
tions Act of 1996.
Federal Maritime 5:4 Writing for the Court, Justice
Commission v. South Thomas held that states’ sovereign
Carolina State Ports immunity bars the Federal Mar-
Authority, 535 U.S. 743 itime Commission (FMC) from
(2002) adjudicating a private party’s com-
plaint against a nonconsenting state
in an administrative law proceeding. Justice Thomas reasoned that dual
sovereignty is a defining feature of the nation and an integral component
of states’ sovereignty is their immunity from private suits. Although the
Eleventh Amendment provides that the “judicial Power of the United States”
does not “extend to any suit, in law or equity,’ brought by citizens of one
state against another state, that provision does not define states’ sovereign im-
munity but instead is only one particular exemplification of that immunity.
Since administrative adjudications were virtually unheard of in the eigh-
‘teenth and nineteenth centuries, so there was little evidence of the framers’
intent. Accordingly, Justice Thomas reasoned that based on the presumption
that the Constitution was not intended to permit any proceedings against
states that were “anomalous and unheard of when the Constitution was
adopted,” Hans v, Louisiana, 134 U.S. 1 (1890), the Court should give great
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 794 | THe STATES AND AMERICAN FEDERALISM

CASE VOTE RULING

weight to the fact that the states were not subject to private suits in adminis-
trative adjudications at the time of the founding. In holding that Hans’s pre-
sumption of immunity applies, Justice Thomas observed that administrative
law judges and trial judges play similar roles and administrative and judicial
proceedings share similar features. In addition, he concluded that it would be
strange if Congress were prohibited from exercising its Article I powers to
abrogate state sovereign immunity in Article III judicial proceedings, but per-
mitted to use its powers to create court-like administrative tribunals to
which state sovereign immunity did not apply. Justices Stevens and Breyer
issued dissenting options and were joined by Justices Souter and Ginsburg.

Nevada Department of 6:3" Writing for the Court, Chief Jus-

Human Resources v. tice Rehnquist held that Congress
Hibbs, 538 U.S. 721 (2003) had the power to abrogate states’
sovereign immunity in authorizing
private lawsuits against states for violations of the Family and Medical Leave
Act of 1993. Congress, reasoned the chief justice, passed the act, and had the
power to do so under Section 5 of the Fourteenth Amendment, in enforcing
the amendment’s prohibition against gender discrimination. Justices Scalia,
Kennedy, and Thomas dissented.
Frew v. Hawkins, 9:0 Writing for the Court, Justice
540 U.S. 431 (2004) Kennedy held that states are not
immune under the Eleventh
Amendment from complying with their obligations under a consent degree
enforcing federal law, even for monetary damages for retrospective relief for
failure to enforce federal laws. Linda Frew sued Texas for failing to provide
medical care for her children under the federal Early and Periodic Screening,
Diagnostic, and Treatment (EPSDT) program. State officials did not raise an
Eleventh Amendment claim or object to the suit in federal court. But after
the court approved a consent degree they claimed that it was unenforceable
under the Eleventh Amendment. Justice Kennedy ruled that the Eleventh
Amendment does not bare enforcement of a consent degree pertaining to
states’ providing EPSDT services and, although generally not for damages for
retrospective relief for a state’s failure to comply with federal law, here the
damages were enforceable as part of a federal court order that enforced
states’ compliance with federal law.
Tennessee v. Lane, 5:4 Writing for the Court, Justice
541 U.S. 509 (2004) Stevens held that Congress has the
power under Section 5 of the
Fourteenth Amendment to authorize lawsuits against states to force their
compliance with Title 2 of the Americans with Disabilities Act (ADA) of
1990 and rejected the claim that such suits are barred by the Eleventh
Amendment. But, the holding was narrow and limited to suits against states
SSS a a a a I
 B | The Tenth and Eleventh Amendments and the States | 795

CASE VOTE RULING

to force them to provide access for the disabled to courthouses. The ruling
did not address access to other public “services, programs, or activities” where
fundamental rights are not at issue. Justice Stevens justified the exercise of
Congress’s remedial power on finding that “Congress learned that many in-
dividuals, in many states across the country, were being excluded from court-
houses and court proceedings by reason of their disabilities.” On that basis he
distinguished the five-to-four decision, in Board of Tiustees of University ofAl-
abama v. Garrett, 531 U.S. 356 (2001), in which Chief Justice Rehnquist held
that Title I of the ADA, barring discrimination against people with disabili-
ties in state employment, did not abrogate states’ Eleventh Amendment im-
munity. Writing for the dissenters—Justices Scalia, Kennedy, and Thomas—in
Lane, Chief Justice Rehnquist maintained that Congress lacked the authority
to abrogate state immunity from suits to enforce the ADA under all of its
provisions, and dismissed evidence of a congressional finding of discrimina-
tion against the disabled as merely “‘anecdotal” and insufficient to establish
systematic discrimination. Justice O’Connor cast the pivotal vote in Garrett
and Lane.

United States v. Georgia, 9:0 Writing for the Court, Justice Scalia
126 S.Ct. 877 (2006) held that Title I] of the Americans
with Disabilities Act (ADA) of 1990
created a private cause of action to
sue state officials for monetary damages for violating constitutional rights
and that Section 5 of the Fourteenth Amendment, which gives Congress the
power to enact legislation to enforce the amendment, includes the power to
abrogate Eleventh Amendment state immunity. The case, involving a para-
plegic prison inmate claiming that prison officials violated his Eight Amend-
ment rights, was remanded for reconsideration of whether the state had
violated the inmate’s rights.
Central Virginia Community 5:4 Writing for the majority, Justice
College v. Katz, 126 S.Ct. Stevens held that states are not im-
990 (2006) mune from bankruptcy proceedings
and, like other creditors, are bound
to a bankruptcy court’s orders. After reviewing the history of the bankruptcy
clause in Article I, Section 8, Justice Stevens concluded that the Constitution
created a national uniform bankruptcy system. Justice Thomas filed a dissent,
which was joined by Chief Justice Roberts and Justices Scalia and Kennedy.
Northern Insurance Co. v. 9:0 Writing for the Court, Justice
‘Chatham County, Georgia, Thomas held that the Eleventh
126 S.Ct, 1689 (2006) Amendment does not bar admiralty
suits against counties and that coun-
ties do not qualify as an “arm of the state” in such cases.

Laan erreer eer ee eee eer ees

796 | THe STATES AND AMERICAN FEDERALISM

C | Judicial Federalism

Judicial power is divided and decentralized in the United States. Along-

side the federal judiciary, each state has its own independent judicial
system. Article HI, Section 2 (see Ch. 2) gives the Supreme Court juris-
diction over cases “arising under the Constitution” and controversies
between states and citizens of different states. The supremacy clause of
Article VI, of course, necessitates that the Court has authority to review
decisions of state supreme courts when in conflict with federal law. In
addition, the Judiciary Act of 1789 in Section 5 extended federal ap-
pellate jurisdiction to the final judgments and decrees “in the highest
court of law or equity of a State in which a decision in the suit could
be had” in three areas: where a state draws into question the validity of
federal law; where a state statute was challenged as “repugnant to the
constitution, treaties or laws of the United States” but upheld; and
where state courts construing federal law decide against the title, right,
privilege, or exemption claimed.
The Court’s review of state supreme court decisions has been a
source of long-standing controversy in constitutional politics. In Fair-
fax’s Devisee v. Hunter's Lessee, 7 Cr. (11 US.) 603 (1813), for example,
Virginia refused to honor a ruling of the Marshall Court reversing a
decision of that state’s supreme court on the rights of British subjects
under the Jay Treaty. Virginia maintained that despite being bound
by the Constitution, its interpretations of federal law (not those of fed-
eral courts) were controlling. Three years later, Justice Joseph Story re-
asserted federal judicial power to review state court decisions in Martin
v. Hunter’ Lessee (1816) (see excerpt below), when rebuffing Virginia’s
contention by pointing out that the Constitution was established not
by the states but the “people of the United States.”!
Periodically, state courts, legislatures, and government officials have
balked at enforcing federal law and asserted the power of state nullifi-
cation. In one of the Court’s first encounters with such a controversy,
arising from the Pennsylvania legislature’s refusal to comply with a
lower federal court decision, in United States v. Peters, 5 Cr. 115 (1809),
Chief Justice Marshall dismissed out of hand the state’s position: “If
the legislatures of the several States may, at will, annul the judgments of
the courts of the United States, and destroy the rights acquired under
those judgments, the constitution itself becomes a solemn mockery;
and the nation is deprived of the means of enforcing its laws by the in-
strumentality of its own tribunals.”
 C | Judicial Federalism | 797

Prior to the Civil War, a number of northern states refused to

comply with the Fugitive Slave Act of 1850 requiring the return of es-
caped slaves. In Ableman v. Booth, 21 How. (62 U.S.) 506 (1859), arising
from the Wisconsin state supreme court’s declaration that the fugitive
slave law was unconstitutional, the Taney Court resoundingly reasserted
federal supremacy. Although a strong defender of state power, Chief
Justice Taney declared that “no power is more clearly conferred by the
Constitution and laws of the United States, than the power of this
court to decide, ultimately and finally, all cases arising under such Con-
stitution and laws.” :
State nullification or interposition was revived by southern states in
opposition to the Warren Court’s 1954 landmark ruling on school de-
segregation. The Alabama legislature, for example, declared,

WHueREAS the states, being the parties to the constitutional com-

pact, it follows of necessity that there can be no tribunal above their
authority to decide, in the last resort, whether the compact made by
them be violated; and consequently, they must decide themselves, in
the last resort, such questions as may be of sufficient magnitude to
require their interposition. ...
The decisions and orders of the Supreme Court of the United
States relating to the separation of races in the public schools are, as
a matter of right, null, void, and of no effect; and ... as a matter of
right, this State is not bound to abide thereby.

The Court, however, once again rejected that contention in the con-
troversy over the opposition of Little Rock, Arkansas, to school deseg-
regation in Cooper v. Aaron (1958) (see excerpt below).
State courts may exercise concurrent jurisdiction with federal
courts, unless Congress has conferred exclusive jurisdiction on the fed-
eral judiciary. Article VI also provides that “the judges in every state shall
be bound [by the Supremacy Clause], anything in the Constitution or
laws of any state to the contrary notwithstanding.”
Although neither federal nor state courts may issue injunctions en-
joining each others’ proceedings,’ federal courts may enjoin state offi-
cials from enforcing unconstitutional state laws. The injunctive power
was first asserted in Osborn v. Bank of the United States, 9 Wheat. 738
(1824), though the Marshall Court held that state officials could be en-
joined only after a court had declared a state law invalid. Ex parte Young,
209 U.S. 123 (1908) further expanded federal injunctive powers, when
holding that a state attorney general could be enjoined from enforcing
a statute while the statute’s validity is being determined in a federal
court. In iesponse to that ruling, in 1910 Congress enacted legislation
798 | Tue STATES AND AMERICAN FEDERALISM

forbidding federal judges sitting alone from enjoining the enforcement

of state laws and requiring that such injunctions be issued by a panel or
three-judge court.
The injunctive power of federal courts was greatly expanded ‘in
Dombrowski v. Pfister 380 U.S. 82 (1967). There the Warren Court held
that where a state law is vague and susceptible to unconstitutional ap-
plication, federal courts may enjoin its enforcement until a state court
has issued a declaratory judgment narrowing its construction. Subse-
quent rulings, however, have substantially limited Dombrowski.* The
leading case is Younger v. Harris (1971) (see excerpt below).’
Another important instrument for federal supervision of state
courts is the use of habeas corpus review of the constitutionality for
holding a person in prison and the law and procedure under which
he was convicted and sentenced. The Court requires that defendants
exhaust state remedies before seeking habeas corpus review in federal
district courts.° As a result of the Warren Court’s extension of the guar-
antees of the Bill of Rights to the states (see Vol. 2, Ch. 4), the number
of applications for habeas corpus review escalated in the 1970s and
1980s. In response, the Burger and Rehnquist Courts have moved to
cut back sharply on the availability of federal habeas corpus review.’
Stone v. Powell (1976) (excerpted below) is a leading illustrative case.
The Rehnquist Court went much further in cutting back on the
opportunities for inmates in state prisons to pursue habeas corpus appeals
in federal courts. In the process the Court overturned Fay v. Noia, 372
USS. 391 (1963), which had held that federal courts could consider the
petitions of prison inmates who had failed properly to appeal their
cases in state courts, so long as they had not “deliberately bypassed” the
appellate system in state courts. Writing for the Court in Coleman v.
Thompson, 501 U.S. 722 (1991), however, Justice O’Connor took ex-
actly the opposite view in laying down a new rule under which almost
any failure by a prison convict to satisfy a state’s appellate procedures
will result in his or her forfeiting the right to file a habeas corpus petition
in federal courts. Justice O’Connor observed that

[t]his is a case about federalism. It concerns the respect that federal

courts owe the States and the States’ procedural rules when review-
ing the claims of state prisoners in federal habeas corpus. .. .
This Court will not review a question of federal law decided by a
state court if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to support
the judgment... .
In the habeas context, the application of the independent and ade-
quate state ground doctrine is grounded in concerns of comity and
 C |Judicial Federalism | 799

federalism. Without the rule, a federal district court would be able

to do in habeas what this Court could not do on direct review;
habeas would offer state prisoners whose custody was supported by
independent and adequate state grounds an end run around the
limits of this Court’s jurisdiction and a means to undermine the
States’ interest in enforcing its laws... .

In Michigan v. Long, 463 U.S. 1032 (1983) ... [the Court ruled that]
a state court that wishes to look to federal law for guidance or as an
alternative holding while still relying on an independent and ade-
quate state ground can avoid the presumption by stating “clearly
and expressly that [its decision] is... based on bona fide separate,
adequate, and independent grounds.” .. . Long [involved the direct
review of a state supreme court decision. By contrast] the problem
of ambiguous state court decisions in the application of the inde-
pendent and adequate state ground doctrine in a federal habeas case
[was first addressed] in Harris v. Reed, 489 U.S. 255 (1989)... .In
Harris [the Court] applied in federal habeas the presumption this
Court adopted in Long for direct review cases... . After Harris, fed-
eral courts on habeas corpus review of state prisoner claims, like this
Court on direct review of state court judgments, will presume that
there is no independent and adequate state ground for a state court
decision when the decision “fairly appears to rest primarily on fed-
eral law, or to be interwoven with the federal law, and when the ad-
equacy and independence of any possible state law ground is not
clear from the face of the opinion.” ...
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state proce-
dural rule, federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental mis-
catriage’ of yustice.’.-’:

In addition, the Rehnquist Court redrew the lines of judicial feder-

alism in other ways that further reduce federal courts’ supervisory role
over both the enforcement of federal legislation and decisions of state
courts. Writing for the Court in Sue Suter v. Artist M., 503 U.S. 347
(1992), Chief Justice Rehnquist held that abused and neglected children
do not have an implied right to sue in federal court to enforce provi-
sions of the Adoption Assistance and Child Welfare Act of 1980. That
act requires, as a condition of receiving federal funding for children’s
foster care and adoption services, that states “make reasonable efforts” to
prevent child abuse and neglect. Rehnquist construed the statute to “not
unambiguously confer an enforceable right” on the children and held
_ that it was up to federal agencies, not private citizens or federal courts,
to ensure siates’ compliance with the statute.
Still, a bare majority stopped short of substantially cutting back on
800 | THe STATES AND AMERICAN FEDERALISM

federal courts’ habeas corpus review of claims of Miranda and Fifth

Amendment violations in Withrow v. Williams, 507 U.S. 680 (1993) (see
excerpt below). In that case Michigan prosecutors had asked the Court
to extend the reasoning in Stone v. Powell, 428 U.S. 465 (1976) (see ex-
cerpt below), to requests for federal habeas corpus review of state prison-
ers’ claim of Miranda violations. Note that the bare majority in Withrow
declined to extend Stone v. Powell on the ground that Stone dealt with
habeas review of cases involving violations of the exclusionary rule—a
rule that the Court deems not to be “a personal constitutional right,”
but only a prudential rule aimed at deterring illegal searches and
seizures. By contrast, in his opinion for the Court Justice Souter held
that Miranda protects “a fundamental trial right” that justifies. federal
habeas review.
However, another bare majority affirmed a more rigorous standard
for federal courts setting aside convictions of state prisoners who claim
violations of their Miranda rights. Chief Justice Rehnquist ruled that
when exercising habeas review federal courts may set aside convictions
only if the errors made at trial in not honoring Miranda have a “sub-
stantial and injurious effect or influence in determining the jury’s ver-
dict.” In doing so, the chief justice rejected the less-stringent standard of
whether the error was “harmless beyond a reasonable doubt.” As a result,
prisoners must show that they suffered “actual prejudice” due to a state
trial court’s errors. Here, in Brecht v. Abrahamson, 507 U.S. 619 (1993),
Justices White, Souter, Blackmun, and O’Connor dissented.
Finally, in a splintered ruling the Court stopped just short of jetti-
soning much of Ex parte Young, 209 U.S. 123 (1908). Although the
Eleventh Amendment’s provision for the states * “sovereign immunity”
generally bars suits against states in federal courts, Ex parte Young held
that state officials may be sued and enjoined from enforcing state laws
that are said to be unconstitutional, even though those laws have not
yet been ruled invalid. At issue in Idaho v. Coeur d’Alene Tribe, 521 U.S.
261 (1997), was whether the state could be sued in federal court in a
dispute over ownership of a lake bed, part of which is on an Indian
reservation. A bare majority—including Chief Justice Rehnquist and
Justices Kennedy, O’Connor, Scalia, and Thomas—held that the suit
bore too directly and intrusively on Idaho’s “sovereign interest in its
lands and waters.”

NOTES

1. See also Cohens v. Virginia, 6 Wheat. 264 (1821).

2. Prigg v. Pennsylvania, 16 Pet. 539 (1942), held that states could not be forced to en-
force federal penal statutes, but that ruling was subsequently abandoned.
 C | Judicial Federalism | 801

3. Congress limited the powers of the federal courts in 1793 and with a number of
later statutes. The Court denied the power of states to enjoin the proceedings of
lower federal courts as essential to the independence of the two judicial systems. See
McKim v. Voorhies, 7 Cr. 279 (1812); and United States ex rel. Riggs v. Johnson County,
6 Wall. 166 (1868).
4. See Steffel v. Thompson, 415 U.S. 452 (1974); Kugler v. Helfant, 421 U.S. 117 (1975);
Rizzo v. Goode, 423 U.S. 362 (1976); Justice v. Vail, 430 U.S. 327 (1977); and Middlesex
County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982).
5. Huffman v. Purse, Ltd., 420 U.S. 592 (1975), extended Younger to civil proceedings.
6. See, for example, Pitchess v. Davis, 421 U.S. 482 (1975).
7. See also Francis v. Henderson, 425 U.S~536 (1976); Estelle v. Williams, 425 US.
501 (1976); Holmberg v. Parratt, 431 U.S. 969 (1977); and Rose v. Lundy, 455 U.S. 509
(1982).

SELECTED BIBLIOGRAPHY

Fiss, Owen. The Civil Rights Injunction. Bloomington: Indiana University Press, 1978.
Latzer, Barry. State Constitutions and Criminal Law. Westport, CT: Greenwood, 1991.
Lopeman, Charles. The Activist Advocate: Policy Making in State Supreme Courts. New
York: Praeger, 1999.
Solimine, Michael, and Walker, James. Respecting State Courts. Westport, CT: Green-
wood, 1999.
Stumpf, Harry, and Culver, John. The Politics of State Courts. White Plains, NY: Long-
man, 1992.
Tarr, G. Allan, and Porter, Mary C. State Supreme Courts in State and Nation. New
Haven, CT: Yale University Press, 1988.

Martin v. Hunter’s Lessee

t Wueat. (14 U.S.) 304, 14 S.CT-97 (1816)

Denny Martin sought to recover a body of land in Virginia he inher-

ited from Lord Fairfax and contended that his rights were secured un-
der the Treaty of Peace with Great Britian in 1783. Virginia’s highest
appellate court had denied his and other British citizens’ land rights,
but the Supreme Court reversed that decision in Fairfax’s Devisee v,
Hunter’s Lessee, 7 Cr. (11 U.S.) 603 (1813). However, on remand of that
case the Virginia court refused to abide by the Supreme Court's rul-
ing and held unconstitutional the portion of Section 25 of the Judi-
_ciary Act of 1789 which extended federal jurisdiction over decisions
of state supreme courts. Martin once again appealed to the Supreme
Court.
802 | THE STATES AND AMERICAN FEDERALISM

The Court’s decision was unanimous, and the opinion was an-
nounced by Justice Story. Justice Johnson concurred.

Justice STORY delivers the opinion of the Court.

The third article of the constitution is that which must principally at-
tract our attention. The first section declares, “the judicial power of the
United States shall be vested in one Supreme Court, and in such other [sic]
inferior courts as the Congress may, from time to time, ordain and establish.”
The second section declares, that “the judicial power shall extend to all cases
in law or equity, arising under this constitution, the laws of the United
States, and the treaties made, or which shall be made, under their authority;
to all cases affecting ambassadors, other public ministers and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to which the
United States shall be a party; to controversies between two or more states;
between a state and citizens of another state; between citizens of different
states; between citizens of the same state, claiming lands under the grants of
different states; and between astate or the citizens thereof, and foreign states,
citizens, or subjects.” It then proceeds to declare, that “in all cases affecting
ambassadors, other public ministers and consuls, and those in which astate
shall be a party, the Supreme Court shall have original jurisdiction. In all the
other cases before mentioned the Supreme Court shall have appellate juris-
diction, both as to law and fact, with such exceptions, and under such regu-
lations, as the Congress shall make.” . . .
Let this article be carefully weighed and considered.
The language of the
article throughout is manifestly designed to be mandatory upon the legisla-
ture. Its obligatory force is so imperative that Congress could not, without a
violation of its duty, have refused to carry it into operation. The judicial
power of the United States shall be vested (not may be vested) in one
supreme court, and in such inferior courts as Congress may, from time to
time, ordain and establish... .
The judicial power must, therefore, be vested in some court, by Con-
gress; and to suppose that it was not an obligation binding on them, but
might, at their pleasure, be omitted or declined, is to suppose that, under the
sanction of the constitution they might defeat the constitution itself; a con-
struction which would lead to such a result cannot be sound....
If, then, it is the duty of Congress to vest the judicial power of the
United States, it is a duty to vest the whole judicial power. The language, if
imperative as to one part, is imperative as to all. If it were otherwise, this
anomaly would exist, that Congress might successively refuse to vest the juris-
diction in any one class of cases enumerated in the constitution, and thereby
defeat the jurisdiction as to all; for the constitution has not singled out any
class on which Congress are bound to act in preference to others... .
This leads us to the consideration of the great question as to the nature
and extent of the appellate jurisdiction of the United States. We have already
seen that appellate jurisdiction is given by the constitution to the Supreme
Court in all cases, where it has not original jurisdiction; subject, however, to
such exceptions and regulations as Congress may prescribe. It is, therefore,
capable of embracing every case enumerated in the constitution, which is
not exclusively to be decided by way of original jurisdiction. .. .
 C | Judicial Federalism | 803

[B]y the terms of the constitution, the ... appellate power is not limited
by the terms of the third article to any particular courts. The words are, “the
Judicial power (which includes appellate power) shall extend to all cases,”
etc., and “in all other cases before mentioned the Supreme Court shall have
appellate jurisdiction.” It is the case, then, and not the court, that gives the
jurisdiction. If the judicial power extends to the case, it will be in vain to
search in the letter of the constitution for any qualification as to the tribunal
where it depends. . ..
If the constitution meant to limit the appellate jurisdiction to cases
pending in the courts of the United States, it would necessarily follow that
the jurisdiction of these courts would, in all the cases enumerated in the con-
stitution, be exclusive of state tribunals: How otherwise could the jurisdiction
extend to all cases arising under the constitution, laws and treaties of the
United States, or to all cases of admiralty and maritime jurisdiction? If some
of these cases might be entertained by state tribunals, and no appellate juris-
diction as to them should exist, then’the appellate power would not extend to
all, but to some, cases. If state tribunals might exercise concurrent jurisdiction
over all or some of the other: classes of cases in the constitution without con-
trol, then the appellate jurisdiction of the United States might, as to such
cases, have no real existence, contrary to the manifest intent of the constitu-
tion. Under such circumstances, to give effect to the judicial power, it must
be construed to be exclusive; and this not only when the casus fae-
deris should arise directly, but when it should arise, incidentally, in cases pend-
ing in state courts. This construction would abridge the jurisdiction of such
courts far more than has been ever contemplated in any act of Congress... .
[I]t is plain that the framers of the constitution did contemplate that
cases within the judicial cognizance of the United States not only might but
would arise in the state courts, in the exercise of their ordinary jurisdiction.
With this view the sixth article declares, 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, anything in the constitution or laws of any state to the
contrary notwithstanding.” It is obvious that this obligation is imperative
upon the state judges in their official, and not merely in their private, capac-
ities. From the very nature of their judicial duties they would be called upon
to pronounce the law applicable to the case in judgment. They were not to
decide merely according to the laws or constitution of the state, but accord-
ing to the constitution, laws and treaties of the United States—‘the supreme
lawsot thesland 7...
It must, therefore, be conceded that the constitution not only contem-
plated, but meant to provide for cases within the scope of the judicial power
of the United States, which might yet depend before state tribunals. It was
foreseen that in the exercise of their ordinary jurisdiction, state courts would
incidentally take cognizance of cases arising under the constitution, the laws
and treaties of the United States. Yet to all these cases the judicial power, by
the very terms of the constitution, is to extend. It cannot extend by original
. jurisdiction if that was already rightfully and exclusively attached in the state
courts, which (as has been already shown) may occur; it must, therefore, ex-
tend by appellate jurisdiction, or not at all. It would seem to follow that the
804 | THe STATES AND AMERICAN FEDERALISM

appellate power of the United States must, in such cases, extend to state tri-
bunals; and if in such cases, there is no reason why it should not equally at-
tach upon all others within the purview of the constitution.
It has been argued that such an appellate jurisdiction over state courtsis
inconsistent with the genius of our governments, and the spirit of the con-
stitution. That the latter was never designed to act upon state sovereignties,
but only upon the people, and that if the power exists, it will materially im-
pair the sovereignty of the states, and the independence of their courts. We
cannot yield to the force of this reasoning; it assumes principles which we
cannot admit, and draws conclusions to which we do not yield our assent.
It is a mistake that the constitution was not designed to operate upon
states, in their corporate capacities. It is crowded with provisions which re-
strain or annul the sovereignty of the states in some of the highest branches
of their prerogatives. The tenth section of the first article contains a long list
of disabilities and prohibitions imposed upon the states. Surely, when such es-
sential portions of state sovereignty are taken away, or prohibited to be exer-
cised, it cannot be correctly asserted that the constitution does not act upon
the states. The language of the constitution is also imperative upon the states
as to the performance of many duties. It is imperative upon the state legisla-
tures to make laws prescribing the time, places, and manner of holding elec-
tions for senators and representatives, and for electors of President and
Vice-President. And in these, as well as some other cases, Congress have a
right to revise, amend, or supersede the laws which may be passed by state
legislatures. When, therefore, the states are stripped of some of the highest at-
tributes of sovereignty, and the same are given to the United States; when the
legislatures of the states are, in some respects, under the control of Congress,
and in every case are, under the constitution, bound by the paramount au-
thority of the United States; it is certainly difficult to support the argument
that the appellate power over the decisions of state courts is contrary to the
genius of our institutions. The courts of the United States can, without ques-
tion, revise the proceedings of the executive and legislative authorities of the
states, and if they are found to be contrary to the constitution, may declare
them to be of no legal validity. Surely the exercise of the same right over ju-
dicial tribunals is not a higher or more dangerous act of sovereign power.
Nor can such a right be deemed to impair the independence of state
judges. It is assuming the very ground in controversy to assert that they pos-
sess an absolute independence of the United States. In respect to the powers
granted to the United States, they are not independent; they are expressly
bound to obedience by the letter of the constitution; and if they should un-
intentionally transcend their authority, or misconstrue the constitution, there
is no more reason for giving their judgments an absolute and irresistible
force than for giving it to the acts of the other co-ordinate departments of
state sovereignty. . ..
There is an additional consideration, which is entitled to great weight.
The constitution of the United States was designed for the common and
equal benefit of all the people of the United States. The judicial power was
granted for the same benign and salutary purposes. It was not to be exercised
exclusively for the benefit of parties who might be plaintiffs, and would elect
the national forum, but also for the protection of defendants who might be
entitled to try their rights, or assert their privileges, before the same forum.
 C | Judicial Federalism | 805

Yet, if the construction contended for be correct, it will follow, that as the
plaintiff may always elect the state court, the defendant, may be deprived of
all the security which the constitution intended in aid of his rights. Such a
state of things can in no respect be considered as giving equal rights. . ..
On the whole, the court are of opinion that the appellate power of the
United States does extend to cases pending in the state courts; and that the
25th section of the judiciary act, which authorizes the exercise of this juris-
diction in the specified cases, by a writ of error, is supported by the letter
and spirit of the constitution. We find no clause in that instrument which
limits this power; and we dare not interpose a limitation where the people
have not been disposed to create one.

Cooper v. Aaron
358 US. 1, 78 S.Cr. 1401 (1958)

In 1958, Governor Orval Faubus encouraged southern segregationists

to oppose the Supreme Court’s ruling on school desegregation, and vi-
olence erupted in Little Rock, Arkansas. The federal National Guard
had to be called out to maintain order. The school board in Little Rock
pleaded with the Supreme Court to postpone its mandate for the de-
segregation of public schools. The Court granted the petition and ex-
pedited proceedings, hearing oral arguments three days after the
petition was filed.
After the justices unanimously voted to deny the school board’s re-
quest for a delay in desegregating its public schools, Justice Brennan
prepared a draft of the opinion that would announce the Court’s deci-
sion. But in an unusual move all nine justices gathered in their private
conference room and reworked portions of the opinion. The Court
also took the unusual step of noting in the opinion that three jus-
tices—Brennan, Harlan, and Whittaker—were not on the Court when
the landmark ruling in Brown v. Board of Education of Topeka, Kansas
(1954) (see Vol. 2, Ch. 12) was handed down but that they would have
joined the unanimous decision if they had been. All nine justices then
signed the Court’s opinion to emphasize their unanimity and because
Justice Frankfurter insisted on adding a concurring opinion. This de-
parture from the typical practice of having one justice sign the opinion
was strongly opposed by Douglas and angered Brennan and Chief Jus-
tice Warren. But all agreed to depart in this way so that Frankfurter’s
concurring opinion “would not be accepted as any dilution or inter-
_ pretation of the views expressed in the Court’s joint opinion.” Frank-
furter insisted on publishing a concurring opinion because many of his
806 | THE STATES AND AMERICAN FEDERALISM

former students at Harvard Law School were leading members of the

southern bar and because the ex-justice (and former governor of South
Carolina) James Byrnes had published an attack on Brown and an article
written by one of Frankfurter’s favorite former law clerks, Alexander
Bickel. As a clerk, Bickel had prepared a lengthy research report on seg-
regated schools when the Court first considered Brown. Later, when
back at Harvard, Bickel revised and published it in the Harvard Law Re-
view. Given Byrnes’s attack, Frankfurter personally felt the need to lec-
ture southern lawyers on the legitimacy of the Court’s ruling in Brown.

(1 The CHIEF JUSTICE, Justice BLACK, Justice FRANKFURTER,

Justice DOUGLAS, Justice BURTON, Justice CLARK, Justice HARLAN,
Justice BRENNAN, and Justice WHITTAKER deliver the opinion of the
Court.
As this case reaches us it raises questions of the highest importance to
the maintenance of our federal system of government. It necessarily involves
a claim by the Governor and Legislature of a State that there is no duty on
state officials to obey federal court orders resting on this Court’s considered
interpretation of the United States Constitution. Specifically it involves ac-
tions by the Governor and Legislature of Arkansas upon the premise that
they are not bound by our holding in Brown v. Board of Education [1954].
That holding was that the Fourteenth Amendment forbids States to use their
governmental powers to bar children on racial grounds from attending
schools where there is state participation through any arrangement, manage-
ment, funds or property. We are urged to uphold a suspension of the Little
Rock School Board’s plan to do away with segregated public schools in Lit-
tle Rock until state laws and efforts to upset and nullify our holding in
Brown v. Board of Education have been further challenged and tested in the
courts. We reject these contentions. .. .
In affirming the judgment of the Court of Appeals which reversed the
District Court we have accepted without reservation the position of the
School Board, the Superintendent of Schools, and their counsel that they
displayed entire good faith in the conduct of these proceedings and in deal-
ing with the unfortunate and distressing sequence of events which has been
outlined. We likewise have accepted the findings of the District Court as to
the conditions at Central High School during the 1957-1958 school year,
and also the findings that the educational progress of all the students, white
and colored, of that school has suffered and will continue to suffer if the
conditions which prevailed last year are permitted to continue.
The significance of these findings, however, is to be considered in light
of the fact, indisputably revealed by the record before us, that the conditions
they depict are directly traceable to the actions of legislators and executive
officials of the State of Arkansas, taken in their official capacities, which re-
flect their own determination to resist this Court’s decision in the Brown case
and which have brought about violent resistance to that decision in Arkansas.
In its petition for certiorari filed in this Court, the School Board itself de-
scribes the situation in this language: “The legislative, executive, and judicial
departments of the state government opposed the desegregation of Little
 C | Judicial Federalism | 807

Rock schools by enacting laws, calling out troops, making statements villify-
ing federal law and federal courts, and failing to utilize state law enforcement
agencies and judicial processes to maintain public peace.”
One may well sympathize with the position of the Board in the face of
the frustrating conditions which have confronted it, but, regardless of the
Board’s good faith, the actions of the other state agencies responsible for
those conditions compel us to reject the Board’s legal position. Had Central
High School been under the direct management of the State itself, it could
hardly be suggested that those immediately in charge of the school should
be heard to assert their own good faith as a legal excuse for delay in imple-
menting the constitutional rights of these respondents, when vindication of
those rights was rendered difficult or impossible by the actions of other state
officials. The situation here is in no different posture because the members of
the School Board and the Superintendent of Schools are local officials; from
the point of view of the Fourteenth Amendment, they stand in this litiga-
tion as the agents of the State.... ~
The controlling legal principles are plain. The command of the Four-
teenth Amendment is that no “State” shall deny to any person within its
jurisdiction the equal protection of the laws. “‘A State acts by its legislative, its
executive, or its judicial authorities. It can act in no other way. The constitu-
tional provision, therefore, must mean that no agency of the State, or of the
officers or agents by whom its powers are exerted, shall deny to any person
within its jurisdiction the equal protection of the laws. Whoever, by virtue of
public position under a State government ... denies or takes away the equal
protection of the laws, violates the constitutional inhibition; and as he acts in
the name and for the State, and is clothed with the State’s power, his act is that
of the State. This must be so, or the constitutional prohibition has no mean-
ing.” Ex parte Virginia, 100 U.S. 339 [(1880)]. Thus the prohibitions of the
Fourteenth Amendment extend to all action of the State denying equal pro-
tection of the laws; whatever the agency of the State taking the action, or
whatever the guise in which it is taken. In short, the constitutional rights of
children not to be discriminated against in school admission on grounds
of race or color declared by this Court in the Brown case can neither be nul-
lified openly-and directly by state legislators or state executive or judicial offi-
cers, nor nullified indirectly by them through evasive schemes for segregation
whether attempted “ingeniously or ingenuously.” Smith v, Texas, 311 U.S. 128
[(1940)]....
What has been said, in the light of the facts developed, is enough to dis-
pose of the case. However, we should answer the premise of the actions of
the Governor and Legislature that they are not bound by our holding in the
Brown case. It is necessary only to recall some basic constitutional proposi-
tions which are settled doctrine.
Article VI of the Constitution makes the Constitution the “supreme Law
of the Land.” In 1803, Chief Justice MARSHALL, speaking for a unanimous
Court, referring to the Constitution as “the fundamental and paramount law
of the nation,’ declared in the notable case of Marbury v. Madison that “Tt is
emphatically the province and duty of the judicial department to say what
the lawis.” This decision declared the basic principle that the federal judiciary
is supreme ‘n the exposition of the law of the Constitution, and that princi-
ple has ever since been respected by this Court and the Country as a perma-
808 | THE STATES AND AMERICAN FEDERALISM
nn

nent and indispensable feature of our constitutional system. It follows that the
interpretation of the Fourteenth Amendment enunciated by this Court in the
Brown case is the supreme law of the land, and Art. VI of the Constitution
makes it of binding effect on the States “any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.” Every state legislator and
executive and judicial officer is solemnly committed by oath taken pursuant
to Art. VI, Sec, 3 “to support this Constitution.” . . .
No state legislator or executive or judicial officer can war against the
Constitution without violating his undertaking to support it. Chief Justice
MARSHALL spoke for a unanimous Court in saying that: “If the legisla
tures of the several states may, at will, annul the judgments of the courts of
the United States, and destroy the rights acquired under those judgments, the
constitution itself becomes a solemn mockery. . . 2” United States v. Peters,
5 Cranch 115 [(1809)].
It is, of course, quite true that the responsibility for public education is
primarily the concern of the States, but it is equally true that such responsi-
bilities, like all other state activity, must be exercised consistently with federal
constitutional requirements as they apply to state action. The Constitution
created a government dedicated to equal justice under law. The Fourteenth
Amendment embodied and emphasized that ideal. State support of segre-
gated schools through any arrangement, management, funds, or property
cannot be squared with the Amendment’s command that no State shall deny
to any person within its jurisdiction the equal protection of the laws. The
right of a student not to be segregated on racial grounds in schools so main-
tained is indeed so fundamental and pervasive that it is embraced in the con-
cept of due process of law. Bolling v. Sharpe, 347 U.S. 497 [1954]. The basic
decision in Brown was unanimously reached by this Court only after the case
had been briefed and twice argued and the issues had been given the most
serious consideration. Since the first Brown opinion three new Justices have
come to the Court. They are at one with the Justices still on the Court who
participated in that basic decision as to its correctness, and that decision is
now unanimously reaffirmed. The principles announced in that decision and
the obedience of the States to them, according to the command of the
Constitution, are indispensable for the protection of the freedoms guaran-
teed by our fundamental charter for all of us. Our constitutional ideal of
equal justice under law is thus made a living truth.

(1 Justice FRANKFURTER, concurring.

While unreservedly participating with my brethren in our joint opinion,
I deem it appropriate also to deal individually with the great issue here at
stakeyee . ;
We are now asked to hold that the illegal, forcible interference by the
State of Arkansas with the continuance of what the Constitution com-
mands, and the consequences in disorder that it entrained, should be recog-
nized as justification for undoing what the Board of Education had
formulated, what the District Court in 1955 had directed to be carried out,
and what was in process of obedience. No explanation that may be offered
in support of such a request can obscure the inescapable meaning -that law
should bow to force. To yield to such a claim would be to enthrone official
 C | Judicial Federalism | 809

lawlessness and lawlessness if not checked is the precursor of anarchy... .

The duty to abstain from resistance to “the supreme Law of the Land,”
US. Const., Art. VI, Sec. 2, as declared by the organ of our Government for
ascertaining it, does not require immediate approval of it nor does it deny
the right of dissent. Criticism need not be stilled. Active obstruction or defi-
ance is barred. Our kind of society cannot endure if the controlling author-
ity of the Law as derived from the Constitution is not to be the tribunal
specially charged with the duty of ascertaining and declaring what is “the
supreme Law of the Land.”

Younger v. Harris
401 USS. 37, 91 S.CT. 746 (1971)

John Harris, Jr., was indicted in state court for violating California’s
Criminal Syndicalism Act, which forbade the advocacy of criminal
syndicalism or teaching of the “necessity or propriety of committing
any crime, sabotage, violence or any unlawful method of terrorism as a
means of accomplishing” economic and political change. While his
prosecution was pending in state court, he promptly filed a complaint
in federal district court, asking that it enjoin Evelle Younger, the district
attorney of Los Angeles County, from prosecuting him on the grounds
that the law unconstitutionally denied him the freedom of speech and
press under the First and Fourteenth Amendments. A three-judge fed-
eral court held in a declaratory judgment that California’s law was void
for vagueness and overbreadth in violation of the First and Fourteenth
Amendments and, accordingly, issued an injunction restraining Younger
from prosecuting Harris in state court. Younger then appealed to the
Supreme Court, which reversed the lower federal court’s declaratory
judgment and injunction.
The Court’s decision was eight to one; the majority’s opinion was
announced by Justice Black. Justices Brennan and Stewart concurred
and were joined by Justices White, Marshall, and Harlan. Justice
Douglas delivered a dissenting opinion.

1 Justice BLACK delivers the opinion of the Court.

Since the beginning of this country’s history Congress has, subject to
few exceptions, manifested a desire to permit state courts to try state cases
free from interference by federal courts. In 1793 an Act unconditionally pro-
vided: “‘[N]or shall a writ of injunction be granted to stay proceedings in any
-court of a state...” A comparison of the 1793 Act with 28 US.C.
Sec. 2283, ics presentday successor, graphically illustrates how few and minor
have been the exceptions granted from the flat, prohibitory language of the
810 | THE StaTES AND AMERICAN FEDERALISM

old Act. During all this lapse of years from 1793 to 1970 the statutory ex-
ceptions to the 1793 congressional enactment have been only three: (1) “ex-
cept as expressly authorized by Act of Congress”; (2) “where necessary in aid
of its jurisdiction”; and (3) “to protect or effectuate its judgments.” In addi-
tion, a judicial exception to the long-standing policy evidenced by the
statute has been made where a person about to be prosecuted ina state court
can show that he will, if the proceeding in the state court is not enjoined,
suffer irreparable damages. See Ex parte Young, 209 U.S. 123 (1908).
The precise reasons for this long-standing public policy against federal
court interference with state court proceedings have never been specifically
identified but the primary sources of the policy are plain. One is the basic
doctrine of equity jurisprudence that courts of equity should not act, and
particularly should not act to restrain a criminal prosecution, when the mov-
ing party has an adequate remedy at law and will not suffer irreparable injury
if denied equitable relief. The doctrine may originally have grown out of cir-
cumstances peculiar to the English judicial system and not applicable in this
country, but its fundamental purpose of restraining equity jurisdiction within
narrow limits is equally important under our Constitution, in order to prevent
erosion of the role of the jury and avoid a duplication of legal proceedings
and legal sanctions where a single suit would be adequate to protect the rights
asserted. This underlying reason for restraining courts of equity from interfer-
ing with criminal prosecutions is reinforced by an even more vital considera-
tion, the notion of “comity,” that is, a proper respect for state functions, a
recognition of the fact that the entire country is made up of a Union of sep-
arate state governments, and a continuance of the belief that the National
Government will fare best if the States and their institutions are left free to
perform their separate functions in their separate ways. This, perhaps for lack
of a better and clearer way to describe it, is referred to by many as “Our Fed-
eralism,” and one familiar with the profound debates that ushered our Federal
Constitution into existence is bound to respect those who remain loyal to the
ideals and dreams of “Our Federalism.” The concept does not mean blind
deference to “States’ Rights” any more than it means centralization of control
over every important issue in our National Government and its courts. The
Framers rejected both these courses. What the concept does represent is a sys-
tem in which there is sensitivity to the legitimate interests of both State and
National Governments, and in which the National Government, anxious
though it may be to vindicate and protect federal rights and federal interests,
always endeavors to do so in ways that will not unduly interfere with the le-
gitimate activities of the States. It should never be forgotten that this slogan,
“Our Federalism,’ born in the early struggling days of our Union of States,
occupies a highly important place in our Nation’s history and its future.
This brief discussion should be enough to suggest some of the reasons
why it has been perfectly natural for our cases to repeat time and time again
that the normal thing to do when federal courts are asked to enjoin pending
proceedings in state courts is not to issue such injunctions. . . .
In [earlier] cases the Court stressed the importance of showing irrepara-
ble injury, the traditional prerequisite to obtaining an injunction. In addition,
however, the Court also made clear that in view of the fundamental policy
against federal interference with state criminal prosecutions, even irreparable
injury is insufficient unless it is “both great and immediate.” Certain types of
 C | Judicial Federalism | 811

injury, in particular, the cost, anxiety, and inconvenience of having to defend

against a single criminal prosecution, could not by themselves be considered
“irreparable” in the special legal sense of that term. Instead, the threat to the
plaintiff’s federally protected rights must be one that cannot be eliminated
by his defense against a single criminal prosecution. ...
[I]n Douglas [v. City of Jeannette, 319 U.S. 157 (1943)], we made clear, af-
ter reaffirming this rule, that:

“It does not appear from the record that petitioners have been
threatened with any injury other than that incidental to every
criminal proceeding brought lawfully and in good faith. . . -”

This is where the law stood when the Court decided Dombrowski v.
Pfister, 380 U.S. 479 (1965), and held that an injunction against the enforce-
ment of certain state criminal statutes could properly issue under the
circumstances presented in that case?In Dombrowski, unlike many of the ear-
lier cases denying injunctions, the complaint made substantial allegations
that:

“the threats to enforce the statutes against appellants are not made
with any expectation of securing valid convictions, but rather are
part of a plan to employ arrests, seizures, and threats of prosecution
under color of the statutes to harass appellants and discourage them
and their supporters from asserting and attempting to vindicate the
constitutional rights of Negro citizens of Louisiana.” ...

[T]he Court in Dombrowski went on to say:

“But the allegations in this complaint depict a situation in which

defense of the State’s criminal prosecution will not assure adequate
vindication of constitutional rights. They suggest that a substantial
loss of or impairment of freedoms of expression will occur if ap-
pellants must await the state court’s disposition and ultimate review
in this Court of any adverse determination. These allegations, if
true, clearly show irreparable injury.” .. .

And the Court made clear that even under these circumstances the District
Court issuing the injunction would have continuing power to lift it at
any time and remit the plaintiffs to the state courts if circumstances war-
vanited cach.
It is against the background of these principles that we must judge the
propriety of an injunction under the circumstances of the present case. Here
a proceeding was already pending in the state court, affording Harris an op-
portunity to raise his constitutional claims. There is no suggestion that this
single prosecution against Harris is brought in bad faith or is only one of a
series of repeated prosecutions to which he will be subjected. In other
words, the injury that Harris faces is solely “that incidental to every criminal
_ proceeding brought lawfully and in good faith,” Douglas, and therefore under
the settled doctrine we have already described he is not entitled to equitable
relief “even if such statutes are unconstitutional.” . ..
812 | THE STATES AND AMERICAN FEDERALISM

It is undoubtedly true, as the Court stated in Dombrowski, that “[a] crim-

inal prosecution under a statute regulating expression usually involves im-
ponderables and contingencies that themselves may inhibit the full exercise
of First Amendment freedoms.” But this sort of “chilling effect,” as the
Court called it, should not by itself justify federal intervention. In the first
place, the chilling effect cannot be satisfactorily eliminated by federal injunc-
tive relief. 1.
Moreover, the existence of a “chilling effect,’ even in the area of First
Amendment rights, has never been considered a sufficient basis, in and of it-
self, for prohibiting state action. Where a statute does not directly abridge
free speech, but—while regulating a subject within the State’s power—tends
to have the incidental effect of inhibiting First Amendment rights, it is well
settled that the statute can be upheld if the effect on speech is minor in re-
lation to the need for control of the conduct and the lack of alternative
means for doing so... .
Beyond all this is another, more basic consideration. Procedures for test-
ing the constitutionality of a statute “on its face” in the manner apparently
contemplated by Dombrowski, and for then enjoining all action to enforce the
statute until the State can obtain court approval for a modified version, are
fundamentally at odds with the function of the federal courts in our consti-
tutional plan. The power and duty of the judiciary to declare laws unconsti-
tutional is in the final analysis derived from its responsibility for resolving
concrete disputes brought before the courts for decision; a statute apparently
governing a dispute cannot be applied by judges, consistently with their
obligations under the Supremacy Clause, when such an application of the
statute would conflict with the Constitution. Marbury v. Madison (1803). But
this vital responsibility, broad as it is, does not amount to an unlimited power
to survey the statute books and pass judgment on laws before the courts are
called upon to enforce them....
For these reasons, fundamental not only to our federal system but also to
the basic functions of the Judicial Branch of the National Government
under our Constitution, we hold that the Dombrowski decision should not
be regarded as having upset the settled doctrines that have always confined
very narrowly the availability of injunctive relief against state criminal pros-
ecutions.

“1 Justice DOUGLAS, dissenting.

Dombrowski represents an exception to the general rule that federal
courts should not interfere with state criminal prosecutions. The exception
does not arise merely because prosecutions are threatened to which the First
Amendment will be the proffered defense. Dombrowski governs statutes
which are a blunderbuss by themselves or when used en masse—those that
have an “overbroad” sweep. “If the rule were otherwise, the contours of reg-
ulation would have to be hammered out case by case—and tested only by
those hardy enough to risk criminal prosecution to determine the proper
scope of regulation.” It was in the context of overbroad state statutes that we
spoke of the “chilling effect upon the exercise of First Amendment rights”
caused by state prosecutions..
The special circumstances oehea federal intervention in a state criminal
 C | Judicial Federalism | 813

proceeding is permissible are not restricted to bad faith on the part of state
officials or the threat of multiple prosecutions. They also exist where for any
reason the state statute being enforced is unconstitutional on its face.

Stone v. Powell
428 US. 465, 96 S.CT. 3037 (1976)

Lloyd Powell was convicted of murder in state court, in part on the ba-
sis of his testimony concerning a revolver found in his possession when
he was arrested for violating an ordinance prohibiting vagrancy. The
trial judge rejected his claim that the testimony should have been ex-
cluded because the ordinance was unconstitutional and that, therefore,
the arrest was invalid. A state appellate court agreed, and Powell then
applied for habeas corpus relief in federal district court. The federal dis-
trict court concluded that the arresting officer had probable cause to
arrest Powell. And even if the vagrancy ordinance were unconstitu-
tional, the deterrent purpose of the Fourth Amendment’s exclusionary
rule did not require the suppression at trial of statements Powell made
to the arresting officer at the time of his arrest. The Court of Appeals
for the Ninth Circuit then reversed. And California’s prison warden,
W.T. Stone, appealed to the Supreme Court.
The Court’s decision was six to three, and the majority’s opinion
was announced by Justice Powell. Chief Justice Burger delivered a con-
curring opinion. Dissents were by Justice White and Justice Brennan,
who was joined by Justice Marshall.

(1 Justice POWELL delivers the opinion of the Court.

The question presented is whether a federal court should consider, in
ruling on a petition for habeas corpus relief filed by a state prisoner, a claim
that evidence obtained by an unconstitutional search or seizure was intro-
duced at his trial, when he has previously been afforded an opportunity for
full and fair litigation of his claim in the state courts. The issue is of consid-
erable importance to the administration of criminal justice. . ..
Respondents allege violations of Fourth Amendment rights guaranteed
them through the Fourteenth Amendment. The question is whether state
prisoners—who have been afforded the opportunity for full and fair consid-
eration of their reliance upon the exclusionary rule with respect to seized
evidence by the state courts at trial and on direct review—may invoke their
claim again on federal habeas corpus review. The answer is to be found by
weighing the utility of the exclusionary rule against the costs of extending it
to collatera: review of Fourth Amendment claims.
The costs of applying the exclusionary rule even at trial and on direct
814 | THe STATES AND AMERICAN FEDERALISM

review are well known: the focus of the trial, and the attention of the par-
ticipants therein, is diverted from the ultimate question of guilt or innocence
that should be the central concern in a criminal proceeding. Moreover, the
physical evidence sought to be excluded is typically reliable and often the
most probative information bearing on the guilt or innocence of the defen-
dant... .Application of the rule thus deflects the truthfinding process and
often frees the guilty. The disparity in particular cases between the error
committed by the police officer and the windfall afforded a guilty defendant
by application of the rule is contrary to the idea of proportionality that is
essential to the concept of justice. Thus, although the rule is thought to de-
ter unlawful police activity in part through the nurturing of respect for
Fourth Amendment values, if applied indiscriminately it may well have the
opposite effect of generating disrespect for the law and administration of
justice. These long-recognized costs of the rule persist when a criminal con-
viction is sought to be overturned on collateral review on the ground that a
search-and-seizure claim was erroneously rejected by two or more tiers of
state courts.
Evidence obtained by police officers in violation of the Fourth Amend-
ment is excluded at trial in the hope that the frequency of future violations
will decrease. Despite the absence of supportive empirical evidence, we have
assumed that the immediate effect of exclusion will be to discourage law en-
forcement officials from violating the Fourth Amendment by removing
the incentive to disregard it. More importantly, over the long term, this
demonstration that our society attaches serious consequences to violation of
constitutional rights is thought to encourage those who formulate law en-
forcement policies, and the officers who implement them, to incorporate
Fourth Amendment ideals into their value system.
We adhere to the view that these considerations support the implemen-
tatron of the exclusionary rule at trial and its enforcement on direct appeal
of state court convictions. But the additional contribution, if any, of the
consideration of search-and-seizure claims of state prisoners on collateral re-
view is small in relation to the costs. To be sure, each case in which such
claim is considered may add marginally to an awareness of the values pro-
tected by the Fourth Amendment. There is no reason to believe, however,
that the overall educative effect of the exclusionary rule would be apprecia-
bly diminished if search-and-seizure claims could not be raised in federal
habeas corpus review of state convictions. Nor is there reason to assume that
any specific disincentive already created by the risk of exclusion of evidence
at trial or the reversal of convictions on direct review would be enhanced if
there were the further risk that a conviction obtained in state court and af-
firmed on direct review might be overturned in collateral proceedings often
occurring years after the incarceration of the defendant. The view that the
deterrence of Fourth Amendment violations would be furthered rests on the
dubious assumption that law enforcement authorities would fear that federal
habeas review might reveal flaws in a search or seizure that went undetected
at trial and on appeal. Even if one rationally could assume that some addi-
tional incremental deterrent effect would be presented in isolated cases, the
resulting advance of the legitimate goal of furthering Fourth Amendment
rights would be outweighed by the acknowledged costs to other values vital
to a rational system of criminal justice.
In sum, we conclude that where the State has provided an opportunity
 C | Judicial Federalism | 815

for full and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that evidence ob-
tained in an unconstitutional search or seizure was introduced at his trial. In
this context the contribution of the exclusionary rule, if any, to the effectu-
ation of the Fourth Amendment is minimal, and the substantial societal costs
of application of the rule persist with special force.
Accordingly, the judgments of the Courts of Appeals are
Reversed.
“1 Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
The Court adheres to the holding of Mapp [v. Ohio, 367 U.S. 643 (1961)]
that the Constitution “require[d] exclusion” of the evidence admitted at re-
spondents’ trials. However, the Court holds that the Constitution “does not
require” that respondents be accorded habeas relief if they were accorded “an
opportunity for full and fair litigation of [their] Fourth Amendment claim[s]”
in state courts. Yet once the Constitution was interpreted by Mapp to require
exclusion of certain evidence at trial, the Constitution became irrelevant to
the manner in which that constitutional right was to be enforced in the fed-
eral courts; that inquiry is only a matter of respecting Congress’ allocation of
federal judicial power between this Court’s appellate jurisdiction and a federal
district court’s habeas jurisdiction. Indeed, by conceding that today’s “decision
does not mean that the federal [district] court lacks jurisdiction over [respon-
dents’] claim[s]” the Court admits that respondents have sufficiently alleged
that they are “in custody in violation of the Constitution” within the mean-
ing of Sec. 2254 and that there is no “constitutional” rationale for today’s
holding. Rather, the constitutional “interest balancing” approach to this case is
untenable, and I can only view the constitutional garb in which the Court
dresses its result as a disguise for rejection of the longstanding principle that
there are no “second class” constitutional rights for purposes of federal habeas
jurisdiction; it is nothing less than an attempt to provide a veneer of re-
spectability for an obvious usurpation of Congress’ Art. IIT power to delineate
the jurisdiction of the federal courts.
[T]he real ground of today’s decision—a ground that is particularly
troubling in light of its portent for habeas jurisdiction generally—is the
Court’s novel reinterpretation of the habeas statutes; this would read the
statutes as requiring the District Courts routinely to deny habeas relief to
prisoners “in custody in violation of the Constitution or laws of the United
States” as a matter of judicial “discretion”—a “discretion” judicially manu-
factured today contrary to the express statutory language—because such
claims are “different in kind” from other constitutional violations in that they
“do not ‘impugn the integrity of the fact-finding process’ ” and because ap-
plication of such constitutional strictures “often frees the guilty.’ Much in
the Court’s opinion suggests that a construction of the habeas statutes to
_deny relief for non-“guilt-related” constitutional violations, based on this
Court’s vague notions of comity and federalism is the actual premise for to-
day’s decision, and although the Court attempts to bury its underlying prem-
ises in footnotes, those premises mark this case as a harbinger of future
eviscerations of the habeas statutes that plainly does violence to congressional
power to frame the statutory contours of habeas jurisdiction. ...
To the extent the Court is actually premising its holding on an interpre-
tation of 28 USS.C. Sec. 2243 or Sec. 2254, it is overruling the heretofore
 816 | THe STATES AND AMERICAN FEDERALISM

settled principle that federal habeas relief is available to redress any denial of
asserted constitutional rights, whether or not denial of the right affected the
truth or fairness of the fact-finding process. . . .
Without even paying the slightest deference to principles of stare decisis
or acknowledging Congress’ failure for two decades to alter the habeas
statutes in light of our interpretation of congressional intent to render all
federal constitutional contentions cognizable on habeas, the Court today
rewrites Congress’ jurisdictional statutes as heretofore construed and bars ac-
cess to federal courts by state prisoners with constitutional claims distasteful
to a majority of my Brethren. ...
I would address the Court’s concerns for effective utilization of scarce
Judicial resources, finality principles, federal-state friction, and notions of
“federalism” only long enough to note that such concerns carry no more
force with respect to non-“guilt-related” constitutional claims than they do
with respect to claims that affect the accuracy of the fact-finding process.
Congressional conferral of federal habeas jurisdiction for the purpose of enter-
taining petitions from state prisoners necessarily manifested a conclusion that
such concerns could not be controlling, and any argument for discriminating
among constitutional rights must therefore depend on the nature of the
constitutional right involved. ...
[U]nlike the Court I consider that the exclusionary rule is a constitu-
tional ingredient of the Fourth Amendment, any modification of that rule
should at least be accomplished with some modicum of logic and justifica-
tion not provided today. ...
The Court does not disturb the holding of Mapp v. Ohio that, as a mat-
ter of federal constitutional law, illegally obtained evidence must be excluded
from the trial of a criminal defendant whose rights were transgressed during
the search that resulted in acquisition of the evidence. In light of that con-
stitutional rule it is a matter for Congress, not this Court, to prescribe what
federal courts are to review state prisoners’ claims of constitutional error
committed by state courts. Until this decision, our cases have never departed
from the construction of the habeas statutes as embodying a congressional
intent that, however substantive constitutional rights are delineated or ex-
panded, those rights may be asserted as a procedural matter under federal
habeas jurisdiction. Employing the transparent tactic that today’s is a decision
construing the Constitution, the Court usurps the authority—vested by the
Constitution in the Congress—to reassign federal judicial responsibility for
reviewing state prisoners’ claims of failure of state courts to redress viola-
tions of their Fourth Amendment rights. Our jurisdiction is eminently un-
suited for that task, and as a practical matter the only result of today’s holding
will be that denials by the state courts of claims by state prisoners of viola-
- tions of their Fourth Amendment rights will go unreviewed bya federal tri-
bunal. I fear that the same treatment ultimately will be accorded state
prisoners’ claims of violations of other constitutional rights; thus the poten-
tial ramifications of this case for federal habeas jurisdiction generally are
ominous. The Court, no longer content just to restrict forthrightly the con-
stitutional rights of the citizenry, has embarked on a campaign to water
down even such constitutional rights as it purports to acknowledge by the
device of foreclosing resort to the federal habeas remedy for their redress.
I would affirm the judgments of the Courts of Appeals.
 C | Judicial Federalism | 817

Withrow v. Williams
507 U.S. 680, 113 S.CT. 1745 (1993)

Upon arriving at Robert Williams’s house, two police officers asked

him to go to the police station for questioning about a double murder,
and he agreed. After Williams had been searched but not handcuffed,
Williams and the officers drove to the station. There Williams was ques-
tioned about the crime and, though initially denying any involvement,
soon implicated himself. When continuing their questioning, police
assured Williams that their only concern was the identity of the
“shooter. After consulting each other, the officers decided not to ad-
vise Williams of his rights under Miranda v. Arizona, 384 U.S. 436
(1966). And when Williams persisted in his denials, one officer rebuffed
him, saying:

You know everything that went down. You just don’t want to talk
about it. What it’s gonna amount to is you can talk about it now
and give us the truth and we're gonna check it out and see if it fits
or else we’re simply gonna charge you and lock you up and you can
just tell it to a defense attorney and let him try and prove differ-
ently.

That apparently worked, for Williams then admitted he gave the mur-
der weapon to the killer, who in turn called him after the crime and
told him where the weapon was discarded. Williams still maintained
that he had not been present at the crime scene. But at this point, some
forty minutes after police began their questioning, the officers read
Williams his Miranda rights. Williams waived those rights and subse-
quently made several more inculpatory statements. Despite his prior
denials, Williams admitted that he drove the murderer to and from the
scene of the crime, witnessed the murders, and helped dispose of in-
criminating evidence.
At a pretrial hearing Williams's attorney moved to suppress his re-
sponses to the initial interrogation, but the judge held that Williams had
been given a timely warning of his Miranda rights. Williams was later
convicted and given two concurrent life sentences. Subsequently, Wil-
liams petitioned for a writ of habeas corpus, alleging that his Miranda
‘rights were violated. A federal district court agreed that Williams was in
custody for Miranda purposes when police threatened to “lock [him]
up,” and thus the trial court should have excluded all statements
Williams made from that point until he received the Miranda warnings.
The Court of Appeals for the Seventh Circuit affirmed and summarily
 818 | THe STATES AND AMERICAN FEDERALISM

rejected the state’s argument that the rule in Stone v. Powell, 428 U.S.
465 (1976), should apply to bar habeas review of Williams’s Miranda
claim. Michigan appealed and the Supreme Court granted certiorari.
The Court’s decision was five to four, with Justice Souter an-
nouncing the majority’s opinion. Separate opinions, in part concurring
and in part dissenting, by Justices O’Connor and Scalia were joined by
Chief Justice Rehnquist and Justice Thomas, respectively.

(i Justice SOUTER delivers the opinion of the court.

In Stone v. Powell, 428 U.S. 465 (1976), we held that when a state has
given a full and fair chance to litigate a Fourth Amendment claim, federal
habeas review is not available to a state prisoner alleging that his conviction
rests on evidence obtained through an unconstitutional search or seizure. To-
day we hold that Stone’s restriction on the exercise of federal habeas juris-
diction does not extend to a state prisoner’s claim that his conviction rests on
statements obtained in violation of the safeguards mandated by Miranda v,
Arizona, 384 U.S. 436 (1966). ...
We have made it clear that Stone’s limitation on federal habeas relief was
not jurisdictional in nature, but rested on prudential concerns counseling
against the application of the Fourth Amendment exclusionary rule on col-
lateral review. We recognized that the exclusionary rule, held applicable to
the States in Mapp v. Ohio, 367 U.S. 643 (1961), “is not a personal constitu-
tional right”; it fails to redress “the injury to the privacy of the victim of the
search or seizure” at issue, “for any ‘reparation comes too late’ ” Stone (quot-
ing Linkletter v. Walker, 381 U.S. 618 [(1965)]). The rule serves instead to de-
ter future Fourth Amendment violations, and we reasoned that its application
on.collateral review would only marginally advance this interest in deter-
rence. On the other side of the ledger, the costs of applying the exclusion-
ary rule on habeas were comparatively great... .
In this case, the argument for extending Stone falls short. To understand
why, a brief review of the derivation of the Miranda safeguards, and the pur-
poses they were designed to serve, is in order.
The Self-Incrimination Clause of the Fifth Amendment guarantees that
no person “shall be compelled in any criminal case to be a witness against
himself” In Bram v. United States, 168 U.S. 532 (1897), the Court held that
the Clause barred the introduction in federal cases of involuntary confes-
sions made in response to custodial interrogation. We did not recognize the
Clause’s applicability to state cases until 1964, however, see Malloy v. Hogan,
378 US. 1, and, over the course of 30 years ... we analyzed the admissibility
_ of confessions in such cases as a question of due process under the Four-
teenth Amendment. Under this approach, we examined the totality of cir-
cumstances to determine whether a confession had been “ ‘made freely,
voluntarily and without compulsion or inducement of any sort’ ” Haynes v,
Washington, 373 U.S. 503 (1963) (quoting Wilson v. United States, 162 US.
613 [(1896)]). Indeed, we continue to employ the totality-of-circumstances
approach when addressing a claim that the introduction of an involuntary
confession has violated due process. E.g., Arizona v. Fulminante (1991): ...
Petitioner, supported by the United States as amicus curiae, argues that
 C | Judicial Federalism | 819

Miranda’s safeguards are not constitutional in character, but merely “prophy-

lactic,’ and that in consequence habeas review should not extend to a claim
that a state conviction rests on statements obtained in the absence of those
safeguards. We accept petitioner’s premise for purposes of this case, but not
her conclusion. ...
As we explained in Stone, the Mapp rule “is not a personal constitutional
right,” but serves to deter future constitutional violations; although it miti-
gates the juridical consequences of invading the defendant’s privacy, the ex-
clusion of evidence at trial can do nothing to remedy the completed and
wholly extrajudicial Fourth Amendment violation. Nor can the Mapp rule
be thought to enhance the soundness of the criminal process by improving
the reliability of evidence introduced_at trial. Quite the contrary, as we ex-
plained in Stone, the evidence excluded under Mapp “is typically reliable and
often the most probative information bearing on the guilt or innocence of
the defendant.” ;
Miranda differs from Mapp in -both respects. “Prophylactic” though it
may be, in protecting a defendant’s Fifth Amendment privilege against self-
incrimination Miranda safeguards “a fundamental trial right.” The privilege
embodies “principles of humanity and civil liberty, which had been secured
in the mother country only after years of struggle,’ Bram, and reflects “many
of our fundamental values and most noble aspirations . . 2” Murphy v. Water-
front Comm’n of New York Harbor, 378 U.S. 52 (1964)....
Finally, and most importantly, eliminating review of Miranda claims
would not significantly benefit the federal courts in their exercise of habeas
jurisdiction, or advance the cause of federalism in any substantial way. As one
amicus concedes, eliminating habeas review of Miranda issues would not pre-
vent a state prisoner from simply converting his barred Miranda claim into a
due process claim that his conviction rested on an involuntary confession. In-
deed, although counsel could provide us with no empirical basis for project-
ing the consequence of adopting petitioner's position, it seems reasonable to
suppose that virtually all Miranda claims would simply be recast in this way.
If that is so, the federal courts would certainly not have heard the last of
Miranda on collateral review. Under the due process approach, as we have
already seen, courts look to the totality of circumstances to determine
whether a confession was voluntary. We could lock the front door against
Miranda, but not the back.
We thus fail to see how abdicating Miranda’s bright-line (or, at least,
brighter-line) rules in favor of an exhaustive totality-of-circumstances ap-
proach on habeas would do much of anything to lighten the burdens placed
on busy federal courts. We likewise fail to see how purporting to eliminate
Miranda issues from federal habeas would go very far to relieve tensions as M-
randa may now raise between the two judicial systems. .. .

(1 Justice O?;CONNOR, with whom the CHIEF JUSTICE joins,

concurring in part and dissenting in part.
Today the Court permits the federal courts to overturn on habeas the
conviction of a double-murderer, not on the basis of an inexorable constitu-
tional or s.atutory command, but because it believes the result desirable from
the standpoint of equity and judicial administration. Because the principles
820 | THE STATES AND AMERICAN FEDERALISM

that inform our habeas jurisprudence—finality, federalism, and fairness—

counsel decisively against the result the Court reaches, I respectfully dissent
from this holding... .
The consideration the Court identifies as being “most important” of all,
is an entirely pragmatic one. Specifically, the Court “projects” that excluding
Miranda questions from habeas will not significantly promote efficiency or
federalism because some Miranda issues are relevant to a statement’s volun-
tariness. It is true that barring Miranda claims from habeas poses no barrier to
the adjudication of voluntariness questions. But that does not make it “rea-
sonable to suppose that virtually all Miranda claims [will] simply be recast”
and litigated as voluntariness claims. .. .
As the Court emphasizes today, Miranda’s prophylactic rule is now 26
years old; the police and the state courts have indeed grown accustomed to
it. But it is precisely because the rule is well accepted that there is little fur-
ther benefit to enforcing it on habéas. ... In my view, Miranda imposes such
grave costs and produces so little benefit on habeas that its continued applica-
tion is neither tolerable nor justified. .. .

Cl Justice SCALIA, with whom Justice THOMAS joins, concurring in part

and dissenting in part.
In my view, both the Court and Justice O; CONNOR disregard the
most powerful equitable consideration: that Williams has already had full and
fair opportunity to litigate this claim. He had the opportunity to raise it in
the Michigan trial court; he did so and lost. He had the opportunity to seek
review of the trial court’s judgment in the Michigan Court of appeals; he
did so and lost. Finally, he had the opportunity to seek discretionary review
of that Court of Appeals judgment in both the Michigan Supreme Court
and this Court; he did so and review was denied. The question at this stage is
whether, given all that, a federal habeas court should now reopen the issue
and adjudicate the Miranda claim anew. The answer seems to me obvious: it
should not. That would be the course followed by a federal habeas court re-
viewing a federal conviction; it mocks our federal system to accord state
convictions less respect. .. .

D | State Courts and State

Constitutional Law

State courts handle the overwhelming volume of all litigation—well

over 90 percent of all filings. Over 300,000 civil and 50,000 criminal
cases are annually filed in federal courts. By comparison, state courts
annually face over 26 million filings. The type of litigation in state
courts also tends to diverge from that in federal courts. Apart from
criminal cases, the largest portion of state supreme court litigation in-
 D | State Courts and State Constitutional Law | 821

volves economic issues—whether relating to state regulation of public

utilities, zoning, and small businesses or labor relations and workmen’s
compensation, natural resources, energy, and the environment. Litiga-
tion varies from state to state as well, depending on factors such as pop-
ulation size, urbanization, and socioeconomic conditions. '
The Supreme Court’s nationalization of guarantees of the Bill of
Rights (see Vol. 2, Ch. 4) profoundly altered constitutional politics and
the federal-state court relationships. With the increasing prominence of
the federal judiciary, the role of state courts and state constitutional law
tended to be overshadowed, but that is no longer the case.
The important role of state courts in interpreting their own state
constitutions is underscored by the fact the Supreme Court intrudes on
state court policy making in only a very narrow class of litigation—the
class of cases in which state courts deal with questions of federal legis-
lation and federal constitutional law. Federal questions rarely emerge
from the grist of state courts, emphasized Justice Brennan, a former
New Jersey state supreme court judge: “If cases were grains of sand,
federal question cases would be hard to find on the beach. The final and
vital decisions of most controversies upon which depend life, liberty,
and property are made by the state courts.”’ If a case does not raise a
substantial federal question or is decided on independent state grounds—a
state constitution or bill of rights—then the Court declines review and
respects the principle of comity between federal and state judiciaries.
Federal-state court relations have always been uneasy, but they have
evolved rather dramatically in the last thirty years with the changes in
the composition and direction of the Supreme Court. In the 1950s and
1960s, when state supreme courts tended to be much more conserva-
tive than the Warren Court, relations were often especially acrimo-
nious. The Conference of State Chief Justices in 1958 went so far as to
pass a resolution condemning the Warren Court for its erosion of fed-
eralism and its tendency “to adopt the role of policymaker without
proper judicial restraint.”’ By contrast, in the 1970s, 1980s, and 1990s
the direction of the Burger and Rehnquist Courts’ policy-making
moved in more conservative directions, while some state supreme
courts became far more protective of individual rights. Although not
outright reversing some of the most controversial and landmark Warren
Court rulings, the Burger and Rehnquist Courts refused further exten-
sions and achieved retrenchment in a number of areas. More liberal
state supreme courts accordingly refused to follow the rulings of the
Court when interpreting individual rights under state constitutional
law. “Why should we always be the tail being wagged by the Federal
dog?” asked New Hampshire State Supreme Court Justice Charles
Douglas and other state judges. “Liberal state courts have taken the
822 | THe STarEs AND AMERICAN FEDERALISM

doctrines of federalism and states’ rights, heretofore associated with

[conservatives] like George Wallace,’ California’s Justice Stanley Mosk
explained, “and adapted them to give citizens more rights under their
state constitutions rather than to oppress them.”* .
The resurgence in state constitutional law protecting individual
rights has renewed controversy within the Supreme Court over its
power to patrol the decisions of state supreme courts, particularly in
the area of individual rights. The shift in state constitutional law in the
view of Brennan was a sign of “the strength of our federal system.”
Oregon State Supreme Court Justice Hans Linde, a leading influence
on the development of state constitutional law, agreed. He argued that
state courts should turn to their state constitutions first because they are
“first in time and first in logic:”

It was not unheard of in 1776, long before the drafting of the Fed-
eral Constitution, for the revolutionaries of that day to declare in
their charters of their new states that [individuals enjoyed certain
fundamental rights and liberties]. . . .
Far from being the model for the states, the Federal Bill of Rights
was added to the Constitution to meet demands for the same guar-
antees against the new central government that people had secured
against their own local officials. Moreover, the states that adopted
new constitutions during the following decades took their bills of
rights from the preexisting state constitutions rather than from the
federal amendments. .. .

The Federal Bill of Rights did not supersede those of the states. It
was not interposed between the citizen and his state. When the Fifth
Amendment was invoked against the City of Baltimore in 1833,
John Marshall replied that its adoption “could never have occurred
to any human being, as a mode of doing that which might be ef-
fected by the state itself?’ Only the Civil War made it clear that it
might sometimes be necessary to use federal law as a mode of doing
that which a state could but did not effect for itself—the protection
of some of its citizens against those in control of its government.

It is the Fourteenth Amendment that has bound the states to ob-

serve the guarantees of the Federal Bill of Rights. ...
We tend to forget how recently the application of the Federal Bill
of Rights to the states developed. Throughout the nineteenth cen-
tury and the first quarter of the twentieth, state courts decided
questions on constitutional rights under their own state constitu-
tions. In 1925, it was only a hypothesis that the states were bound
by the First Amendment. That was really settled only after 1937.
Fifth Amendment guarantees against compulsory self-incrimination
and double jeopardy did not bind the states until 1964 and 1969,
respectively. I shall not go through the catalogue; most of the deci-
 D | State Courts and State Constitutional Law | 823

sions binding the states to observe the procedures of the Fourth,

Fifth, and Sixth amendments date from the same period. Of course,
the states had all these guarantees in their own laws long before the
Federal Bill of Rights was applied to the states. State courts had
been administering these laws, sometimes generously, more often
not, for a century or more without awaiting an interpretation of
the United States Supreme Court.
Historically, the states’ commitment to individual rights came first.
Restraints on the federal government were patterned upon the
states’ declarations of rights. . ..
Just as rights under state constitutions were first in time, they also
are first in the logic of constitutional law. For lawyers, the point is
quickly made. Whenever a person asserts a particular right, and a
state court recognizes and protects that right under state law, then
the state is not depriving the person of whatever federal claim he
or she might otherwise assert. There is no federal question.’

In contrast to what Justice Brennan maintained, and others who

share his views, the more conservative members of the Court have
sought to bring state courts into line by reversing decisions vindicat-
ing broader constitutional rights than they approved. Michigan v. Long
(1983) (excerpted below) is illustrative of the Court’s concern. There
Justice O’Connor for the majority ruled that state supreme courts must
clearly indicate that their rulings rest on adequate and independent state
grounds; otherwise the Court will feel free to reverse those rulings with
which it disagrees. People v. P J. Video, Inc. (1986) (excerpted below) il-
lustrates how state supreme courts may nevertheless refuse to back
down from their interpretation of guarantees for individual rights, even
after their prior decisions have been reversed by the Supreme Court.
For another state supreme court ruling declining to follow the Su-
_preme Court, see, for example, Commonwealth of Kentucky v. Wasson
(1992) (in Vol. 1, Ch. 2).

NoTES

1. See for example, Henry Glick and Kenneth Vines, State Court Systems (Englewood
Cliffs, NJ: Prentice-Hall, 1973).
(1960).
2. William J. Brennan, “Address,” 31 Pennsylvania Bar Association Quarterly 394
Judicial
3. “Report of the Committee on Federal-State Relationships as Affected by
A7784 (Aug. 25,
Decisions,” reprinted in Cong. Record, 73rd Cong., 2d sess., Appendix,
1958).
in American Politics,
4. Quoted in David M. O’Brien, Storm Center: The Supreme Court
8th ed.(New’York: W. W. Norton, 2008).
n of Individual
5. See William J. Brennan, Jr., “State Constitutions and the Protectio
Rights,” 90 Harvard Law Review 489 (oT 1).
 824 | THe STATES AND AMERICAN FEDERALISM

6. Hans Linde, “First Things First: Rediscovering the States’ Bill of Rights,’ 9 Uni-
versity of Baltimore Law Review 379 (1980).

SELECTED BIBLIOGRAPHY

Brennan, William J., Jr. “Guardians of Our Liberties—State Courts No Less Than
Federal.” In Judges on Judging: Views from the Bench. 2d ed. Edited by David M.
O’Brien. Washington, DC: C.Q. Press, 2004.
Friesen, Jennifer. State Constitutional Law. New York: Bender, 1995, and updates.
Langer, Laura. Judicial Review in State Supreme Courts:A Comparative Study. Albany:
State University of New York Press, 2002.
Latzer, Barry. State Constitutions and Criminal Justice. New York: Greenwood Press,
1991.
Lopeman, Charles. The Activist Advocate: Policy Making in State Supreme Courts. New
York: Praeger, 1999.
Porter, Mary, and Tarr, Allan, eds. State Supreme Courts: Policymakers in the Federal Sys-
tem. Westport, CT: Greenwood Press, 1982.
Stumpf, Harry, and Culver, John. The Politics of State Courts. New York: Longman,
1992)
Solimine, Michael, and Walker, James. Respecting State Courts. Westport, CT: Green-
wood Press, 1999.
Tarr, G. Alan. Understanding State Constitutions. Princeton, NJ: Princeton University
Press, 1998.
, ed. Constitutional Politics in the States. Westport: Greenwood Press, 1996.

Michigan v. Long
463 US. 1036, 103 S.CT. 3469 (1983)

David Long was convicted of possession of marijuana, and he ap-

pealed. A state appellate court affirmed his conviction, but the Michi-
gan Supreme Court reversed on the grounds that police had made an
illegal search in violation of “the Fourth Amendment to the United
States Constitution and Art. 1 Section 11 of the Michigan Constitu-
_tion” (emphasis added). The state attorney general appealed that ruling
to the Supreme Court.
The Court’s decision was six to three, and the majority’s opinion
was announced by Justice O’Connor. Concurrence was by Justice
Blackmun. Dissents were by Justices Brennan, whom Justice Marshall
joined, and Stevens.

1 Justice O'CONNOR delivers the opinion of the Court.

 D | State Courts and State Constitutional Law | 825

In Terry v. Ohio, 392 U.S. 1 (1968), we upheld the validity of a protec-

tive search for weapons in the absence of probable cause to arrest because it
is unreasonable to deny a police officer the right “to neutralize the threat of
physical harm,” when he possesses an articulable suspicion that an individual
is armed and dangerous. We did not, however, expressly address whether such
a protective search for weapons could extend to an area beyond the person
in the absence of probable cause to arrest. In the present case, respondent
David Long was convicted for possession of marihuana found by police in
the passenger compartment and trunk of the automobile that he was driv-
ing. The police searched the passenger compartment because they had reason
to believe that the vehicle contained weapons potentially dangerous to the
officers. We hold that the protective search of the passenger compartment
was reasonable under the principles articulated in Terry and other decisions
of this Court. We also examine Long’s argument that the decision below
rests upon an adequate and independent state ground, and we decide in favor
of our jurisdiction. ...
Before reaching the merits, we must consider Long’s argument that we
are without jurisdiction to; decide this case because the decision below rests
on an adequate and independent state ground. The court below referred
twice to the State Constitution in its opinion, but otherwise relied exclu-
sively on federal law. Long argues that the Michigan courts have provided
greater protection from searches and seizures under the State Constitution
than is afforded under the Fourth Amendment, and the references to the
State Constitution therefore establish an adequate and independent ground
for the decision below.
Although we have announced a number of principles in order to help
us determine whether various forms of references to state law constitute ad-
equate and independent state grounds, we openly admit that we have thus far
not developed a satisfying and consistent approach for resolving this vexing
issue. In some instances, we have taken the strict view that if the ground of
decision was at all unclear, we would dismiss the case. ... In other instances,
we have vacated or continued a case in order to obtain clarification about
the nature of a state-court decision. ...In more recent cases, we have our-
selves examined state law to determine whether state courts have used fed-
eral law to guide their application of state law or to provide the actual basis
for the decision that was reached. ...
This ad hoc method of dealing with cases that involve possible adequate
and independent state grounds is antithetical to the doctrinal consistency
that is required when sensitive issues of federal-state relations are involved.
Moreover, none of the various methods of disposition that we have em-
ployed thus far recommends itself as the preferred method that we should
apply to the exclusion of others, and we therefore determine that it is ap-
propriate to reexamine our treatment of this jurisdictional issue in order to
achieve the consistency that is necessary.
The process of examining state law is unsatisfactory because it requires
us to interpret state laws with which we are generally unfamiliar, and which
often, as in this case, have not been discussed at length by the parties. Vacation
and continuance for clarification have also been unsatisfactory both because
of the dciay and decrease in efficiency of judicial administration and, more
important, because these methods of disposition place significant burdens on
826 | THE STATES AND AMERICAN FEDERALISM

state courts to demonstrate the presence or absence of our jurisdiction. ...

Finally, outright dismissal of cases is clearly not a panacea because it cannot
be doubted that there is an important need for uniformity in federal law, and
that this need goes unsatisfied when we fail to review an opinion that rests
primarily upon federal grounds and where the independence of an alleged
state ground is not apparent from the four corners of the opinion. We have
long recognized that dismissal is inappropriate “where there is strong indica-
tion ... that the federal constitution as judicially construed controlled the
decision below.” .. .
Respect for the independence of state courts, as well as avoidance of
rendering advisory opinions, have been the cornerstones of this Court’s re-
fusal to decide cases where there is an adequate and independent state
ground. It is precisely because of this respect for state courts, and this desire
to avoid advisory opinions, that we do not wish to continue to decide issues
of state law that go beyond the opinion that we review, or to require state
courts to reconsider cases to clarify the grounds of their decisions. Accord-
ingly, when, as in this case, a state court decision fairly appears to rest primar-
ily on federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not clear
from the face of the opinion, we will accept as the most reasonable explana-
tion that the state court decided the case the way it did because it believed
that federal law required it to do so. If a state court chooses merely to rely
on federal precedents as it would on the precedents of all other jurisdictions,
then it need only make clear bya plain statement in its judgment or opinion
that the federal cases are being used only for the purpose of guidance, and
do not themselves compel the result that the court has reached. In this way,
both justice and judicial administration will be greatly improved. If the state
court decision indicates clearly and expressly that it is alternatively based on
bona fide separate, adequate, and independent grounds, we, of course, will
not undertake to review the decision.
This approach obviates in most instances the need to examine state law
in order to decide the nature of the state court decision, and will at the same
time avoid the danger of our rendering advisory opinions. It also avoids the
unsatisfactory and intrusive practice of requiring state courts to clarify their
decisions to the satisfaction of this Court. We believe that such an approach
will provide state judges with a clearer opportunity to develop state juris-
prudence unimpeded by federal interference, and yet will preserve the in-
tegrity of federal law....
The principle that we will not review judgments of state courts that rest
on adequate and independent state grounds is based, in part, on “the limita-
tions of our own jurisdiction.” The jurisdictional concern is that we not
“render an advisory opinion, and if the same judgment would be rendered
by the state court after we corrected its views of federal laws, our review
could amount to nothing more than an advisory opinion.” Our requirement
of a “plain statement” that a decision rests upon adequate and independent
state grounds does not in any way authorize the rendering of advisory opin-
ions. Rather, in determining, as we must, whether we have jurisdiction to re-
view a case that is alleged to rest on adequate and independent state grounds
. . we merely assume that there are no such grounds when it is nat clear
from the opinion itself that the state court relied upon an adequate and in-
 D | State Courts and State Constitutional Law | 827

dependent state ground and when it fairly appears that the state court rested
its decision primarily on federal law.
Our review of the decision below under this framework leaves us un-
convinced that it rests upon an independent state ground. Apart from its two
citations to the State Constitution, the court below relied exclusively on its
understanding of Terry and other federal cases. Not a single state case was
cited to support the state court’s holding that the search of the passenger
compartment was unconstitutional. Indeed, the court declared that the
search in this case was unconstitutional because “[t]he Court of Appeals er-
roneously applied the principles of Terry v. Ohio to the search of the interior
of the vehicle in this case.’ The references to the State Constitution in no
way indicate that the decision below. rested on grounds in any way indepen-
dent from the state court’s interpretation of federal law. Even if we accept
that the Michigan Constitution has been interpreted to provide independent
protection for certain rights also secured under the Fourth Amendment, it
fairly appears in this case that the Michigan Supreme Court rested its deci-
sion primarily on federal law.
Rather than dismissing the case, or requiring that the state court re-
consider its decision on our behalf solely because of a mere possibility that an
adequate and independent ground supports the judgment, we find that we
have jurisdiction in the absence of a plain statement that the decision below
rested on an adequate and independent state ground. It appears to us that the
state court “felt compelled by what it understood to be federal constitutional
considerations to construe . . . its own law in the manner it did.” ...
The court below held, and respondent Long contends, that Deputy
Howell’s entry into the vehicle cannot be justified under the principles set
forth in Terry because “Terry authorized only a limited pat-down search of a
person suspected of criminal activity” rather than a search of an area. Al-
though Terry did involve the protective frisk of a person, we believe that the
police action in this case is justified by the principles that we have already es-
tablished in Terry and other cases... .
The judgment of the Michigan Supreme Court is reversed, and the case
is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.

“i Justice STEVENS, dissenting.

The jurisprudential questions presented in this case are far more impor-
tant than the question whether the Michigan police officer’s search of re-
spondent’s car violated the Fourth Amendment. The case raises profoundly
significant questions concerning the relationship between two sovereigns—
the State of Michigan and the United States of America.
The Supreme Court of the State of Michigan expressly held “that the
deputies’ search of the vehicle was proscribed by the Fourth Amendment to
the United States Constitution and Art. 1, Sec. 11 of the Michigan Constitu-
tion” (emphasis added). The state law ground is clearly adequate to support
the judgment, but the question whether it is independent of the Michigan
Supreme Court’s understanding of federal law is more difficult. Four possi-
ble ways of resolving that question present themselves: (1) asking the Michi-
gan Suprune Court directly, (2) attempting to infer from all possible sources
of state law what the Michigan Supreme Court meant, (3) presuming that
828 | THe STATES AND AMERICAN FEDERALISM

adequate state grounds are independent unless it clearly appears otherwise, or

(4) presuming that adequate state grounds are not independent unless it
clearly appears otherwise. This Court has, on different occasions, employed
each of the first three approaches; never until today has it even hinted at the
fourth. In order to “achieve the consistency that is necessary,’ the Court to-
day undertakes a reexamination of all the possibilities. It rejects the first ap-
proach as inefficient and unduly burdensome for state courts, and rejects the
second approach as an inappropriate expenditure of our resources. Although
I find both of those decisions defensible in themselves, I cannot accept the
Court’s decision to choose the fourth approach over the third—to presume
that adequate state grounds are intended to be dependent on federal law un-
less the record plainly shows otherwise. I must therefore dissent. .. .
I believe that in reviewing the decisions of state courts, the primary role
of this Court is to make sure that persons who seek to vindicate federal rights
have been fairly heard. That belief fesonates with statements in many of our
prior cases....
Until recently we had virtually no interest in cases of this type. Thirty
years ago, this Court reviewed only one. Nevada v. Stacher, 358 U.S. 907
(1953). Indeed, that appears to have been the only case during the entire
1953 Term in which a State even sought review of a decision by its own ju-
diciary. Fifteen years ago, we did not review any such cases, although the to-
tal number of requests had mounted to three. Some time during the past
decade, perhaps about the time of the 5-to-4 decision in Zacchini v. Scripps-
Howard Broadcasting Co., 433 U.S. 562 (1977), our priorities shifted. The result
is a docket swollen with requests by States to reverse judgments that their
courts have rendered in favor of their citizens. | am confident that a future
Court will recognize the error of this allocation of resources. When that day
comes, I think it likely that the Court will also reconsider the propriety of
today’s expansion of our jurisdiction.
The Court offers only one reason for asserting authority over cases such
as the one presented today: “an important need for uniformity in federal law
[that] goes unsatisfied when we fail to review an opinion that rests primarily
upon federal grounds and where the independence of an alleged state
ground is not apparent from the four corners of the opinion.” Of course, the
supposed need to “review an opinion” clashes directly with our oft-repeated
reminder that “our power is to correct wrong judgments, not to revise opin-
ions.” The clash is not merely one of form: the “need for uniformity in fed-
eral law” is truly an ungovernable engine. That same need is no less present
when it is perfectly clear that a state ground is both independent and
adequates™,,.
I respectfully dissent.

People v. P_J. Video, Inc.

68 N.Y. 2D 296, sor N.E. 2D $56 (N.Y., 1986)

In New York v. P J. Video, Inc., 475 U.S. 868 (1986), the Supreme Court
reversed a ruling of the New York Court of Appeals (the state’s highest
 D | State Courts and State Constitutional Law | 829

appellate court), which had held that a state court judge erred when is-
suing a search warrant for the seizure of allegedly obscene videocassette
films. The New York court ruled that for the seizure of books and
films, which are subject to First Amendment protection, a “higher”
standard of probable cause applies than the usual “fair probability” that
evidence of crime will be found on a police search. The Supreme
Court reversed and remanded the case back to the New York court for
further proceedings not inconsistent with its rejection of a “higher”
standard of probable cause for search warrants for allegedly obscene
materials. But the New York Court of Appeals responded with the
opinion delivered by Judge Simons.

Cl Judge SIMONS.

In our earlier decision in this case we held that the issuing magistrate
erred in approving a warrant authorizing the seizure of video cassette films
as evidence that defendants were promoting obscenity. . . .
On certiorari review, the Supreme Court judged probable cause by apply-
ing the totality of the circumstances/fair probability test of Illinois v. Gates
' [462 U.S. 213 (1983)].The Gates rule originally was adopted to test the reli-
ability of anonymous informants’ tips. It overruled the established two-
pronged Aguilar-Spinelli test (Aguilar v. Texas, 378 U.S. 108 [(1964)]; Spinelli v.
United States, 393 U.S. 410 [(1969)]) which required a court to review both
the basis of the informant’s knowledge and the reliability of his information,
to permit a magistrate to now decide whether, given all the circumstances set
forth in the police affidavit, there is a fair probability that contraband or evi-
dence of a crime will be found in a particular place. In this case, the
Supreme Court extended the reach of this “totality of the circumstances/
fair probability” standard and applied it, for the first time, to an obscenity
case to permit the magistrate to focus generally on the explicit nature of
pornographic material without specifically considering the other statutory
elements of the crime (see, New York v. P J. Video). Having done so, it re-
manded the case to us for our further consideration.
State courts are bound by the decisions of the Supreme Court when re-
viewing Federal statutes or applying the Federal Constitution. Under estab-
lished principles of federalism, however, the States also have sovereign
powers. When their courts interpret State statutes or the State Constitution
the decisions of these courts are conclusive if not violative of Federal law.
Although State courts may not circumscribe rights guaranteed by the Fed-
eral Constitution, they may interpret their own law to supplement or expand
them. ... Thus, notwithstanding that the evidence before the magistrate was
sufficient to establish probable cause under the Federal Constitution, we have
the power on remand to interpret article I, Sec. 12 of the New York Consti-
tution as requiring more. We turn then to the question whether we should
measure probable cause in this case by different standards under the State
Constitution.
Courts and commentators have identified many considerations and con-
cerns upon which a State court may rely when determining that its Consti-
tution accords greater protection to individual liberties and rights than the
protection guaranteed by the Federal Constitution. . ..
830 | THe STATES AND AMERICAN FEDERALISM

One basis for relying on the State Constitution arises from an interpre-
tive review of its provisions. If the language of the State Constitution differs
from that of its Federal counterpart, then the court may conclude that there
is a basis for a different interpretation of it. Such an analysis considers
whether the textual language of the State Constitution specifically recog-
nizes rights not enumerated in the Federal Constitution; whether language
in the State Constitution is sufficiently unique to support a broader interpre-
tation of the individual right under State law; whether the history of the
adoption of the text reveals an intention to make the State provision co-
extensive with, or broader than, the parallel Federal provision; and whether
the very structure and purpose of the State Constitution serves to expressly
affirm certain rights rather than merely restrain the sovereign power of the
State. To contrast, noninterpretive review proceeds from a judicial perception
of sound policy, justice and fundamental fairness. . . . A noninterpretive
analysis attempts to discover, for example, any preexisting State statutory or
common law defining the scope of the individual right in question; the his-
tory and traditions of the State in its protection of the individual right; any
identification of the right in the State Constitution as being one of peculiar
State or local concern; and any distinctive attitudes of the State citizenry to-
ward the definition, scope or protection of the individual right.
Our determination rests on noninterpretive grounds. We rely principally
on established Federal and State law because we believe the arguments sup-
porting that body of law are more persuasive than the arguments supporting
application of the Gates rule in this obscenity case, and are consistent with
the admonition of an earlier Supreme Court that constitutional provisions
for the security of persons and property are to be liberally construed (see,
Boyd v. United States, 116 U.S. 616 [(1886)]). Our decision, however, is also
based on principles of federalism and on New York’s long tradition of inter-
preting our State Constitution to protect individual rights. In this case, we
consider two fundamental rights, the right of free expression and the right of
citizens to be free from unlawful governmental intrusions.
In the past we have frequently applied the State Constitution, in both
civil and criminal matters, to define a broader scope of protection than that
accorded by the Federal Constitution in cases concerning individual rights
and liberties. Our conduct in the area of Fourth Amendment rights has been
somewhat more restrained because the history of section 12 supports the
presumption that the provision “against unlawful searches and seizures con-
tained in NY Constitution, article I, Sec. 12 conforms with that found in the
4th Amendment, and that this identity of language supports a policy of uni-
formity between State and Federal courts.” ... Based on this, we have sought
to fashion search and seizure rules that promote consistency in the interpre-
tations we have given these parallel clauses. The interest of Federal-State uni-
formity, however, is simply one consideration to be balanced against other
considerations that may argue for a different State rule. When weighed
against the ability to protect fundamental constitutional rights, the practical
need for uniformity can seldom be a decisive factor. Thus, notwithstanding
an interest in conforming our State Constitution’s restrictions on searches
and seizures to those of the Federal Constitution where desirable, this court
has adopted independent standards under the State Constitution’ when
doing so best promotes “predictability and precision in judicial review of
 D | State Courts and State Constitutional Law | 831

search and seizure cases and the protection of the individual rights of our
citizens oe),
In addition, we have sought to provide and maintain “bright line” rules
to guide the decisions of law enforcement and judicial personnel who must
understand and implement our decisions in their day-to-day operations in
the field. To this end, we have rejected the reasoning behind the so-called
good-faith exception to the warrant requirement recently articulated by the
Supreme Court, refusing, on State constitutional grounds, to apply it. Simi-
larly, although asked to do so, we have not reached out to adopt the Gates
“totality of the circumstances” test in warrant cases, and we have declined to
extend it to review warrantless arrests predicated on hearsay information. ...
These decisions reflect a concern that the Fourth Amendment rules
governing police conduct have been muddied, and judicial supervision of
the warrant process diluted, thus heightening the danger that our citizens’
rights against unreasonable police intrusions might be violated. We see the
Supreme Court’s present ruling as 4 similar dilution of the requirements of
judicial supervision in the warrant process and as a departure from prior law
on the subject. As we read the court’s decision, it condones a probable cause
determination by a magistrate based only upon the strength of the showing
of probable cause as it relates to one of several necessary elements of the
crime involved. While the “totality of the circumstances/fair probability”
formulation may satisfy some as an acceptable analytical framework when
used to evaluate whether an informant’s tip should be credited as one ele-
ment bearing on probable cause, the argument for its validity breaks down
where, as here, the standard is applied in a different, nonhearsay, probable
cause context...
Several years ago we summarized our past decisions on the subject, re-
stating a rigorous, fact-specific standard of review imposed upon the magis-
trate determining probable cause. . . . It imposed a specific, nondelegable
burden on the magistrate which required that he, not the police, determine
probable cause, and it required that his determination be objectively verifi-
able. . . This is the standard that should be applied to protect the rights of
New York citizens.
Our decision to rely on article I, Sec. 12, rather than on the Supreme
Court’s Fourth Amendment pronouncement in this case, is motivated also by
concerns of federalism and separation of powers. The States exist as sover-
eign entities independent of the national Government and the Tenth
Amendment reserves to them and the people “[t]he powers not delegated to
the United States by the Constitution, nor prohibited by it to the States”
(U.S. Const. 10th Amend.).... One of the powers reserved to the States is
the power to define what conduct shall be criminal within its borders. .. .
Given that our Legislature, consonant with Federal constitutional mandates
has determined that an offensive, explicit depiction of sexual conduct, stand-
ing alone, is not obscene, neither an issuing magistrate nor a reviewing court
can legitimately override that legislative intent and find probable cause that
the crime of obscenity has been committed based solely on a showing that
sexually oriented material is explicit and offensive. The Supreme Court’s de-
cision in this case has, in effect, stated that certain elements of our statutory
definition Jf a crime are not significant. We are not free to similarly ignore
or recast the legislative mandate. .. .
832 | THe STATES AND AMERICAN FEDERALISM

The legal reasoning supporting our views, our understanding of princi-

ples of federalism, and this State’s legal and cultural traditions all lead us to
conclude that we should depart from the Federal rule stated in this case. We
hold, therefore, that this warrant application did not demonstrate the proba-
ble cause required under the provisions of Article I, Sec. 12 of the State
Constitution and accordingly, on reargument following remand from the
United States Supreme Court, we affirm the order of the County Court.

Commonwealth of Kentucky v. Wasson

842 S.W. 2D 487 (1992)

In this case, the Kentucky Supreme Court rejected the analysis in

Bowers v. Hardwick, 478 U.S. 186 (1986) and struck down its state ban
on homosexual sodomy. Pertinent portions of the opinion appear in
Volume 1, Chapter 2. See also THE DEVELOPMENT OF LAW:
Other Recent State Supreme Court Decisions Declining to Follow the
U.S. Supreme Court’s Rulings in Volume 1, Chapter 2, and Volume 2,
(hapter,2.

®# THE DEVELOPMENT OF LAW

Other Recent State Supreme Court Decisions

Declining to Follow the U.S. Supreme Court’s
Rulings

(reprise; see Volume 1, Chapter 2.)

REPRESENTATIVE
GOVERNMENT, VOTING
RIGHTS, AND ELECTORAL
P@lsuhhGS

FE and representative government is the bedrock for the constitu-

tional politics of free government. It is the basis for political strug-
gles over governmental accountability, federalism, majority rule versus
minority rights, and much else. The idea was not new to the Framers,
but the Constitution provided a foundation for an unprecedented ex-
periment in representative government and for later expansion of the
franchise.
- John Locke, the English philosopher, championed “fair and equal”
representation in his Second Tieatise of Government (1689), when attack-
ing the rotten boroughs of the British system of representing towns
and counties:

[Section] 157. Things of this World are in so constant a Flux, that

nothing remains long in the same State. . . . But things not always
changing equally, and private interest often keeping up Customs and
Priviledges, when the reasons of them are ceased, it often comes to
pass, that in Governments, where part of the Legislative consists of
Representatives chosen by the People, that in tract of time this Repre-
sentation becomes very unequal and disproportionate to the reasons it
was at first establish’d upon. To what gross absurdities the following
of Custom, when Reason has left it, may lead, we may be satisfied
when we see the bare Name of a Town, of which there remains not
so much as the ruines, where scarce so much Housing as a Sheep-

833
834 | REPRESENTATIVE GOVERNMENT

coat; or more inhabitants than a Shepherd is to be found, sends as

many Representatives to the Assembly of Lawmakers, as a whole
County numerous in People, and powerful in riches. This Stranger
stands amazed at, and every one must confess needs a remedy. .. .
[W |henever the People shall chuse their Representatives upon just
and undeniable equal measures suitable to the original Frame of the
Government, it cannot be doubted to be the will and act of the So-
ciety, whoever permitted, or caused them so to do.'

Denial of representation to the colonies gave rise to the slogan

‘No taxation without representation.’ On October 14, 1774, the Con-
tinental Congress proclaimed,

[T]he foundation of English liberty, of all free government, is a

right in the people to participate in their legislative council: and as
the English colonists are not represented, and from their local and
other circumstances, cannot properly be represented in the British
parliament, they are entitled to a free and exclusive power of legis-
lation in their several provincial legislatures, where their right of
representation can alone be preserved, in all cases of taxation and
internal policy, subject only to the negative of their sovereign, in
such manner as has been heretofore used and accustomed.’

Two years later, the failure of King George III to respond to colo-
nial demands for fair and equal representation was cited as one of the
justifications for revolution in the Declaration of Independence: “He
has dissolved Representative Houses repeatedly, for opposing with
manly firmness his invasions in the rights of the people. He has refused
for a long time, after such dissolutions, to cause others to be elected,
whereby the Legislative Powers, incapable of Annihilation, have re-
turned to the People at large for their exercise.”
Following the Declaration of Independence and the Revolution-
ary War, novel institutions of representative government emerged in the
states and in the eventual formulation of the national government. But
that was only the beginning. The history of the constitutional politics
of the franchise and representative government is one of long-fought
struggles to expand voting rights and to make the electoral process
more democratic.

NOTES

1. John Locke, Tivo Treatises of Government, ed. Peter Laslett (New York: Mentor,
1960), 418-419.
2. “Declaration and Resolves of the First Continental Congress, 1774,” reprinted in
The Roots of the Bill of Rights,Vol. 1, ed. Bernard Schwartz (New York: Chelsea House,
1980), 217.
 REPRESENTATIVE GOVERNMENT | 835

= CONSTITUTIONAL HISTORY

Thomas Paine on the Right to Vote and

Representative Government

The revolutionary pamphleteer, Thomas Paine, in his Dissertation on the First

Principles of Government (1795), linked the right to vote with representative
government in a natural rights argument:
The true and only true basis of representative government is
equally of rights. Every man has a right to one vote, and no more
in the choice of representatives.
The rich have no more right to ex-
clude the poor from the right-of voting, or of electing and being
elected, than the poor have to exclude the rich; and wherever it is
attempted, or proposed, on either side, it is a question of force and
not of right. Who is he that would exclude another? That other has
a right to exclude him....
Personal rights, of which the right of voting for representatives 1s
one, are a species of property of the most sacred kind: and he that
would employ his pecuniary property, or presume upon the influ-
ence it gives him, to dispossess or rob another of his property as he
would use fire-arms, and merits to have it taken from him.
Inequality of rights is credited by a combination in one part of the
community to exclude another part from its rights. Whenever it be
made an article of a constitution, or a law, that the right of voting,
or of electing and being elected, shall appertain exclusively to per-
sons possessing that quantity to exclude those who do not possess
the same quantity. It is investing themselves with powers as a self-
created part of society, to the exclusion of the rest....
To take away this right is to reduce a man to slavery, for slavery
consists in being subject to the will of another, and he that has not
a vote in the election of representatives is in this case. The proposal
therefore to disfranchise any class of men is as criminal as the pro-
posal to take away property.

SELECTED BIBLIOGRAPHY

Goldwin, Robert, and Schambra, William, eds. How Democratic Is the Constitution?
Washington, DC: American Enterprise Institute, 1980.
Kurland, Philip B., and Lerner, Ralph, eds. The Founders’ Constitution, Vol. 1. Chicago:
University of Chicago Press, 1987.
Kromkowski, Charles. Recreating the American Republic: Rules of Apportionment, Consti-
tutional Change, and American Political Development, 1700-1870. Cambridge, MA:
Cambridge University Press, 2002.
836 | REPRESENTATIVE GOVERNMENT

McDonald, Forrest. Novus Ordo Seclorum: The Intellectual Origins of the Constitution.
Lawrence: University of Kansas Press, 1985.
White, Morton. The Philosophy of the American Revolution. New York: Oxford Univer-
sity Press, 1978.

A | Representative Government
and the Franchise

The Framers agreed that representative government was the only alter-
native to both the tyranny of being ruled and that of direct democracy;
both were deemed politically unacceptable. Still, there was disagree-
ment as to who was to be represented as well as to how to achieve rep-
resentation.
Anti-Federalists, such as the Federal Farmer, argued that “‘a full and
equal representation is that in which the interests, feelings, opinions, and
views of the people are collected, in such a manner as they would be
were all the people assembled.”' Anti-Federalists tended to reside in rural
and agricultural areas and wanted assurance of representation of their
people. They distrusted the Federalists, those in urban areas along the At-
lantic seaboard and associated with commercial and banking interests. As
Republicus, the pen name of a Kentucky Anti-Federalist, put it, “the
constitution should provide for a fair and equal representation. That is
that every member of the union have a freedom of suffrage and that
every equal number of people have an equal number of representatives.”
By contrast, Federalists tended to take a dim view of those who, in
Alexander Hamilton’s words, wanted “an actual representation of all
classes of the people by persons of each class.” The Federalists favored
representation by a natural aristocracy—“gentlemen of fortune and
ability,’ as Hamilton put it during the Constitutional Convention.’ So,
too, John Adams feared that representation might be carried so far as
“to confound and destroy all distinctions, and prostrate all ranks to one
common level.”*
To allay the fears of both supporters and opponents of the Consti-
tution, in The Federalist, Nos. 10 and 63, James Madison made the in-
genious argument that representative government ina large, “extended
republic” would prevent the spread of two kinds of political “diseases”:
the corruption of representatives who play on their popularity to ex-
ploit voters and to dominate the people, and the election of represen-
tatives bent on venting popular passions and prejudices by denying
individual rights.
 A | Representative Government and the Franchise | 837

[T]he greater number of citizens and extent of territory which

may be brought within the compass of republican, than of demo-
cratic government; and it is this circumstance principally which
renders factious combinations less to be dreaded in the former, than
in the latter. The smaller the society, the fewer probably will be the
distinct parties and interests composing it; the fewer the distinct
parties and interests, the more frequently will a majority be found
of the same party; and the smaller the number of individuals com-
posing a majority, and the smaller the compass within which they
are placed, the more easily will they concert and execute their plans
of oppression. Extend the sphere, and you take in a greater variety
of parties and interests; you make it less probable that a majority of
the whole will have a common motive to invade the rights of other
citizens; or if such a common motive exists, it will be more difficult
for all who feel it to discover their own strength, and to act in uni-
son with each other. ... -
The influence of factious leaders may kindle a flame within their
particular States, but will be unable to spread a general conflagra-
tion through the other States: a religious sect, may degenerate into
a political faction in a part of the Confederacy; but the variety of
sects dispersed over the entire face of it, must secure the national
Councils against any danger from that source... .
In the extent and proper structure of the Union, therefore, we be-
hold a Republican remedy for the diseases most incident to Re-
publican Government. And accordingly to the degree of pleasure
and pride, we feel in being Republicans, ought to be our zeal in
cherishing the spirit and supporting the character of Federalists.

In granting the franchise, however, the states followed the British-

colonial model. Voting rights were generally limited to “freeholders”
(white males who owned land and were at least twenty-one years old)
and some states imposed religious qualifications as well. Under the
Articles of Confederation, each state was free to determine the qualifi-
cations of voters. The Constitution did not change that. At the Consti-
tutional Convention, Gouverneur Morris had proposed that the federal
franchise be limited to freeholders. But Benjamin Franklin, among
others, took issue with that, observing that “[i]t 1s of great conse-
quence that we should not depress the virtue & public spirit of our
common people; of which they displayed a great deal during the war.”
In spite of the revolutionary rhetoric, there thus remained great in-
equalities. Thomas Jefferson, for instance, lamented that Virginia’s con-
stitution of 1776 limited voting rights only to the minority of that
state’s freeholders and disenfranchised the majority of those “who pay
and fight.”
The Constitution, along with subsequent amendments, deals with
voting rights more than any other subject. Remarkably, though, the
 838 | REPRESENTATIVE GOVERNMENT

universe and qualification of voters are not affirmatively defined. In-

stead, the Constitution and amendments have made the franchise more
inclusive by progressively eliminating barriers for exercising voting
rights and excluding blacks, women, poor, and the young from the
electorate. Representation and voting rights are addressed in two sec-
tions of Article 1. Section 2, providing that electors of members of the
House of Representatives “have the qualification requisite for electors
of the most numerous branch of the state legislature,” was a compro-
mise designed to ensure a popular basis for the House without creating
a national electorate independent of state electorates. The times, places,
and manner clause of Section 4 gives Congress the power to require
that representatives be elected from districts, rather than on a statewide
basis. As discussed in Chapter 3, the Seventeenth Amendment (rati-
fied in 1913) provides for the popular election of senators. Five
other amendments greatly expanded the franchise and made the elec-
toral process more democratic: the Fourteenth, Fifteenth, Nineteenth,
Twenty-fourth, and Twenty-sixth Amendments.
The Framers, however, wholly failed to foresee the rise of political
parties. Yet, after more than a decade of Federalist domination of the
presidency and Congress, the fourth presidential election in 1800
brought into office Thomas Jefferson and the Jeffersonian-Republicans.
Ever since, state and federal elections have been a contest between can-
didates of opposing political parties. And one consequence of the
emergence of political parties was the expansion of the franchise and
electorate. Notably, during Andrew Jackson’s presidency (1829-1837)
the property qualification was eliminated or replaced with a taxpayer
qualification. Still, the electorate remained principally that of white
males over twenty-one years old.
The struggle for further extension of suffrage grew from an 1848
convention of women in Seneca Falls, New York. There, Elizabeth
Stanton pushed for the convention’s adoption of a resolution “that it is
the duty of the women of this country to secure to themselves their sa-
cred right to the elective franchise.” Stanton was supported by Freder-
ick Douglass, the great black orator and abolitionist. Douglass tied equal
rights for women with the abolition of slavery. And from this early be-
_ ginning of the women’s movement through the Civil War, suffrage for
women and suftrage for blacks were linked.
Following the Civil War, two Reconstruction amendments held
out the possibility of voting rights for women and blacks. Ratified
in 1868, the Fourteenth Amendment’s first section guaranteed “the
privileges and immunities of citizens of the United States” against
abridgement by the states. Section 2 provides that any state denying
participation in state or federal elections to “any of the male inhabitants
 A | Representative Government and the Franchise | 839

of such State, being twenty-one years of age, and citizens of the United
States . . . except for participating in rebellion, or other crime” shall
have the number of its representatives and delegates to the Electoral
College proportionately reduced.
The narrow victory of General Ulysses S. Grant in the 1868 presi-
dential election then convinced the Republican party that to maintain
its control of Congress it needed black votes. And so it proposed the
Fifteenth Amendment (ratified in 1870), specifically guaranteeing black
voting rights by forbidding the abridgement of any citizen’s right to
vote “on account of race, color, or previous condition of servitude.”
Despite continued disenfranchisement, some women held out
hope that they might win the right to vote in federal election by claim-
ing it was a guarantee of the Fourteenth Amendment’ privileges and
immunities clause. This was Susan B. Anthony’s defense when prose-
cuted for casting a ballot in a federal election in 1872, but it was re-
jected by a lower federal court. The Court then dashed the hopes of
another woman seeking to vote in a Missouri election. Minor v. Happer-
sett, 21 Wall, (88 U.S.) 162 (1875), held that “the Constitution of the
United States does not confer the right of suffrage upon anyone.” Two
more cases the following year rejected the argument that the Fifteenth
Amendment affirmatively grants voting rights.’
Women had somewhat greater success in winning the right to vote
in the states. In 1870, Wyoming’s territorial legislature extended the
right to them. Still, by 1913 only nine states allowed women to vote. In
1912, however, the Progressive Party of Theodore Roosevelt supported
woman's suftrage. Political pressure continued to mount during World
War I as larger numbers of women entered the work force and con-
tributed to the war effort. In 1918, President Woodrow Wilson en-
dorsed women’s suffrage, and the next year Congress submitted a
constitutional amendment to the states. The Nineteenth Amendment
was ratified in 1920.
Although blacks were guaranteed the right to vote by the Four-
teenth and Fifteenth Amendments, and were elected to office in the
South during Reconstruction, barriers of various sorts soon emerged.
Poll taxes, literacy tests, and other obstacles (discussed in section C of
this chapter) effectively disenfranchised blacks by the turn of the twen-
tieth century. Breedlove v, Suttles, 302 U.S. 277 (1937), held that poll
taxes did not violate the Fourteenth and Fifteenth Amendments. That
ruling sparked a campaign in the 1940s and 1950s to get the states and
Congress to abolish poll taxes. The campaign had considerable success
in the states; by 1960 only Alabama, Arkansas, Mississippi, Texas, and
Virginia retained poll taxes. Congress finally banned poll taxes in fed-
eral elections with the Twenty-fourth Amendment (ratified in 1964).
840 | REPRESENTATIVE GOVERNMENT

When Virginia’s powerful Harry Byrd political machine sought to

evade the law by requiring voters to either pay a poll tax or file a cer-
tificate of residency at least six months before an election, it was re-
buffed in Harman v. Forssenius, 380 U.S. 578 (1965). The Warren Court
went even further in Harper v. Virginia State Board of Elections, 383 U.S.
663 (1966), ruling that while the Twenty-fourth Amendment barred
poll taxes in federal elections, the Fourteenth Amendment equal protec-
tion clause forbade poll taxes in state elections, and thereby overturned
Breedlove.
Among the goals of the civil rights movement in the 1950s and
1960s was the elimination of all barriers to black voting rights. Martin
Luther King, Jr., launched voter-registration drives in the South, where
there was widespread resistance and often violence. Congress had
passed civil rights acts in 1957 and 1960, but they proved ineffective in
placing the burden of eliminating voter discrimination on federal dis-
trict court judges.
Finally, on the authority of Section 2 of the Fifteenth Amendment,
which gives Congress the power to enforce “by appropriate legislation”
the amendment’s prohibition against racial discrimination in voting,
Congress passed the Voting Rights Act of 1965. It outlaws any “voting
qualification or prerequisite to voting” that denies the right to vote on
account of race or color. Specifically banned are literacy tests,® tests for
educational achievement and understanding,’ proofs of “good moral
character,’ and vouchers for the qualifications of registered voters. Such
tests were banned in any state or subdivision where less than 50 percent
of the persons of voting age were registered on November 1, 1964, or
voted in that November's election. Moreover, while the above voting
restrictions were suspended, the act provides that states and localities
must receive the approval of the district court of the District of Co-
lumbia or the US. attorney general prior to implementing any changes
in election laws. In addition, the law authorizes the U.S. Civil Service
Commission to appoint federal voting-examiners to register voters
where the attorney general deemed that was necessary to the enforce-
ment of the Fifteenth Amendment.
The Voting Rights Act of 1965 remains controversial. The Court,
though, affirmed its constitutionality in South Carolina v. Katzenbach
(1966) (excerpted below)."” In 1970 the act, which had a five-year
limitation, was extended and amended to ban all literacy tests and
modified the factors triggering the attorney general’s preclearance of
changes in states’ voting laws. The law was again extended in 1975 for
seven more years.
When amending the Voting Rights Act in 1970, Congress also en-
acted a provision forbidding in any local, state, and federal election the
 A | Representative Government and the Franchise | 841

denial of the right to vote “on account of age if such citizen is eigh-
teen years or older.’ Although opposing the lowering of the voting age
at a time when there was widespread opposition among college stu-
dents to the Vietnam War, President Nixon signed the act into law but
directed Attorney General John Mitchell to challenge its constitutional-
ity. In Oregon v. Mitchell, 400 U.S. 112 (1970), the Court was sharply
split over Congress’s power to extend the franchise in state as well as in
national elections. Four justices thought Congress had the power; four
Justices disagreed. Justice Hugo Black cast the deciding vote, holding
that Congress could lower the voting age in national but not in state
and local elections. Congress immediately responded to that decision,
and within six months the states ratified the Twenty-sixth Amendment
(1974) }
Despite some resistance from within the Reagan administration,
the law was further extended in 1982 for twenty-five years. The princi-
pal controversy revolved around the standards for determining whether
states or localities had discriminatory voting practices. In City of Mobile
v. Bolden, 446 U.S. 55 (1980), the Burger Court upheld Mobile’s system
of electing a three-member city commission with at-large elections.
At-large elections may work to the disadvantage of blacks and other
minorities, and in Mobile, although 40 percent of the city was black,
no black had ever been elected to the commission.'’ Civil rights organ-
izations contended that Congress should ban election systems that “re-
sult” in discrimination. But opponents countered that a “results test”
would eventually lead to proportional elections. In the end, the Voting
Rights Act of 1982 provides that in cases challenging electoral discrim-
ination, judges should look at “the totality of circumstances,’ the
process and results of an election.
In 1982, Congress renewed and revised the Voting Rights Act,
which in turn sparked a new round of litigation that finally reached
the Supreme Court in the early 1990s. Congress amended the act in
1982 so as to reverse the Court’ ruling in City of Mobile v.
Bolden, 446 U.S. 55 (1980), which had construed the act to require
proof of a “discriminatory intent” for establishing a violation of the
Voting Rights Act. Instead of a “discriminatory intent” test, Congress
wrote into law a “results test” under which minority voters simply must
show that they had less opportunity than other residents in a district to
elect representatives and public officials. In addition, the 1982 amend-
ments substituted “representatives” for “legislators” in the act. And
that invited the question of whether “representatives” includes elected
_ state judges and provided a basis for challenging state judicial election
systems.
In 1988 a group of black voters challenged Georgia’s judicial-
 842 | REPRESENTATIVE GOVERNMENT

election system, pointing out that only 5 of that state’s 135 trial judges
were black. A three-judge federal district court ruled against Georgia,
and on that basis the Department of Justice declared that the state’s ju-
dicial election system was discriminatory in diluting the strength of
black voters by requiring candidates to attain a majority, rather than a
mere plurality, vote and by requiring them to run for specific judge-
ships in multijudge districts. In a separate lawsuit, black and Hispanic
citizens challenged the at-large system for electing district judges in a
number of Texas’s metropolitan counties; at-large elections tend to
work against electing minority candidates. They pointed out, for exam-
ple, that in Harris County, Texas’s largest district, blacks counted for
18 percent of the voting age population, while only 3 of the 59 judges
(or 5 percent) were black. Although a federal district court held that the
Texas judicial election system was subject to the Voting Rights Act, the
Court of Appeals for the Fifth Circuit held that judicial elections are
not covered because judges “do not represent the people, they serve the
people,’ and the Voting Rights Act only guarantees minorities an equal
opportunity to elect “representatives of their choice.’ Likewise, in the
Georgia case, the state contended that Section 5 did not apply to judi-
cial elections, and even if it did, it should not apply here because while
Georgia had created new judgeships since 1964, its electoral system was
not new. But, in contrast to the Fifth Circuit, a federal district court re-
jected those arguments.
The Rehnquist Court thus confronted two separate questions:
(1) Do provisions of the Voting Rights Act apply to judicial elections?
(2) If the act applies, what methods of electing state judges run afoul of
the act? Without hearing oral arguments on the first, threshold, ques-
tion, the Court unanimously said “yes” and rejected the argument that
judicial elections are exempt from provisions of the Voting Rights Act.
It did so in a simple one-sentence order that “summarily affirmed” the
ruling of the district court, in Georgia State Board of Elections v. Brooks,
498 U.S. 916 (1990).
By summarily affirming the lower court in the Georgia cases, how-
ever, the Rehnquist Court provided no guidance for the Justice De-
partment or lower courts when reviewing challenges to various state
. judicial election systems. Accordingly, the Court also granted review of
several other cases involving attacks on various methods of electing
state judges.
Three cases that involved Louisiana’s judicial elections were
granted as well. Two, Chisom v. Roemer, 501 U.S. 380 (1991), and United
States v. Roemer, 501 U.S. 380 (1991), challenged Louisiana’s method of
electing justices to its seven-member state supreme court. Five of those
justices are elected from single-member districts, while two are elected
 A | Representative Government and the Franchise | 843

in at-large elections in a sixth voting district. Black voters in the sixth

district argued that the at-large elections diluted their voting strength.
They also contended that if the at-large district were divided along
parish lines and split into two districts, a majority of the black voters in
one of those new districts would have a chance to elect a black justice;
no black has been elected to the Louisiana state supreme court in this
century.
By a vote of six to three in Chisom, the Court held that Section 2
of the Voting Rights Act applies to judicial elections. Writing for the
majority, Justice Stevens reasoned that if Congress had intended to ex-
clude judicial elections from the coverage of the Voting Rights Act, it
would have explicitly said so. The Court’s holding in Wells v. Edwards,
409 U.S. 1095 (1973), that the “one-person, one-vote” rule was in-
applicable to judicial elections, Stevens observed, does not mean that
judicial elections are entirely immune from vote dilution claims. Wells,
he pointed out, rejected a constitutional claim and, therefore, had no
relevance to a correct interpretation of the Voting Rights Act, which
was enacted to provide additional protection for voting rights not ade-
quately protected by the Constitution itself.
The Voting Rights Act, without major controversy except from
Southern states objecting to the continuation of the requirement for
DoJ preapproval of changes in their voting laws, was again renewed in
2006.

NOTES

1. Letters of the Federal Farmer, in The Complete Anti-Federalist,

Vol. 2, ed. Herbert J.
Storing (Chicago: University of Chicago Press, 1980), 287—288.
2. Republicus, in The Complete Anti- Federalist, Vol. 5, ed. Herbert J. Storing (Chicago:
University of Chicago Press, 1980), 167.
3. Alexander Hamilton, in The Records of the Federal Convention of 1787, Vol. 2, ed.
Max Farrand (New Haven, CT: Yale University Press, 1937), 298-299.
4. John Adams to James Sullivan, May 26, 1776, in The Founders’ Constitution, Vol. 1,
ed. Philip Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987),
394-395.
5. Benjamin Franklin, The Records of the Federal Convention of 1787,Vol. 2, ed. Max
Farrand (New Haven, CT: Yale University Press, 1974), 204.
6. Thomas Jefferson, Notes on the State of Virginia (Chapel Hill: University of North
Carolina Press, 1954), 118-119.
7. See United States v, Reese, 92 U.S. 214 (1876); and United States v. Cruikshank, 92
USS. 542 (1876). The Court, however, reconsidered these rulings with respect to
black, although not female, voting rights in Ex Parte Yarbrough, 110 U.S. 651 (1884).
8. The Court upheld literacy tests in Guinn v. United States, 23 U.S. 347 (1915); and
Lassiter v. Northhampton County Board of Elections, 360 U.S. 45 (1959).
844 | REPRESENTATIVE GOVERNMENT

9. The Court upheld tests for whether potential voters understood their state and
federal constitution in Williams v. Mississippi, 170 U.S. 213 (1898).
10. See also Allen v. State Board of Elections, 393 U.S. 544 (1969); Perkins v. Matthews,
400 U.S. 379 (1971); Georgia v. United States, 411 U.S. 526 (1973); City of Rome v.
United States, 446 U.S. 156 (1980); and the discussion in section B of this chapter.
11. The Court struck down at-large elections where it found invidious discrimina-
tion. See Rogers v. Herman Lodge, 458 U.S. 613 (1982). But held that there was no
voter discrimination in City of Lockhart v. United States, 460 U.S. 125 (1983). See also
Thornburg v. Gingles, 478 U.S. 30 (1986).

SELECTED BIBLIOGRAPHY

Ball, Howard, Krane, Dale, and Lauth, Thomas P. Compromised Compliance: Implementa-
tion of the 1965 Voting Rights Act. Westport, CT: Greenwood Press, 1982.
Goldman, Robert. Reconstruction and Black Suffrage: Losing the Vote in Reese and Cruik-
shank. Lawrence: University of Kansas Press, 2001.
Guinier, Lani. The Tyranny of the Majority: Fundamental Fairness and Representative
Democracy. New York: Free Press, 1994.
Hamilton, Charles. The Bench and the Ballot: Southern Federal Judges and Black Voters.
New York: Oxford University Press, 1973.
Hasen, Richard L. The Supreme Court and Election Law: Judging Equality from Baker v,
Carr to Bush v. Gore, New York: New York University Press, 2003.
Keyssar, Alexander. The Right to Vote: The Contested History of Democracy in the United
States. New York: Basic Books, 2000.
Landsberg, Brian. Free to Vote at Last: The Alabama Origins of the 1965 Voting Rights Act.
Lawrence: University Press of Kansas, 2007.
Moore, Wayne. Constitutional Rights and the Powers of the Pep Princeton, NJ:
Princeton University Press, 1996.
Thernstrom, Abigail. Whose Votes Count? Affirmative Action and Minority Voting Rights.
Cambridge, MA: Harvard University Press, 1987.

South Carolina v. Katzenbach

383 US. 301, 86 S.Cr. 803 (1966)

Shortly after the passage of the Voting Rights Act of 1965, South Car-
olina filed suit in the Supreme Court, under its original jurisdiction,
seeking a declaration of the unconstitutionality of several sections of
the law and an order refraining Nicholas Katzenbach, the attorney gen-
eral, from enforcing its provisions. South Carolina contended that the
act violated the Tenth Amendment and the principle of equal treatment
of the states. Katzenbach defended the law as appropriate legislation
pursuant to the enforcement of the Fifteenth Amendment.
 A | Representative Government and the Franchise | 845

The Court’s decision was unanimous; and the opinion was an-
nounced by Chief Justice Warren. Justice Black concurred.

Chief Justice WARREN delivers the opinion of the Court.

The Voting Rights Act was designed by Congress to banish the blight of
racial discrimination in voting, which has infected the electoral process in
parts of our country for nearly a century. The Act creates stringent new reme-
dies for voting discrimination where it persists on a pervasive scale, and in
addition the statute strengthens existing remedies for pockets of voting dis-
crimination elsewhere in the country. Congress assumed the power to pre-
scribe these remedies from Sec. 2 of the Fifteenth Amendment, which
authorizes the National Legislature to effectuate by “appropriate” measures
the constitutional prohibition against racial discrimination in voting. We hold
that the sections of the Act which are properly before us are an appropriate
means for carrying out Congress’ constitutional responsibilities and are conso-
nant with all other provisions of the Constitution. We therefore deny South
Carolina’s request that enforcement of these sections of the Act be enjoined.
The constitutional propriety of the Voting Rights Act of 1965 must be
judged with reference to the historical experience which it reflects. Before
enacting the measure, Congress explored with great care the problem of
racial discrimination in voting... .
Two points emerge vividly from the voluminous legislative history of
the Act contained in the committee hearings and floor debates. First: Con-
gress felt itself confronted by an insidious and pervasive evil which had been
perpetuated in certain parts of our country through unremitting and in-
genious defiance of the Constitution. Second: Congress concluded that the
unsuccessful remedies which it had prescribed in the past would have to be
replaced by sterner and more elaborate measures in order to satisfy the clear
commands of the Fifteenth Amendment. . .
The Fifteenth Amendment to the Constitution was ratified in 1870.
Promptly thereafter Congress passed the Enforcement Act of 1870, which
made it a crime for public officers and private persons to obstruct exercise of
the right to vote. The statute was amended in the following year to provide
for detailed federal supervision of the electoral process, from registration to
the certification of returns. As the years passed and fervor for racial equality
waned, enforcement of the laws became spotty and ineffective, and most of
their provisions were repealed in 1894. The remnants have had little signifi-
cance in the recently renewed battle against voting discrimination.
Meanwhile, beginning in 1890, the States of Alabama, Georgia, Lou-
isiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests
still in use which were specifically designed to prevent Negroes from voting.
Typically, they made the ability to read and write a registration qualification
and also required completion of a registration form. These laws were based
on the fact that as of 1890 in each of the named States, more than two-
thirds of the adult Negroes were illiterate while less than one-quarter of the
adult whites were unable to read or write. At the same time, alternate tests
were prescribed in all of the named States to assure that white illiterates
would not be deprived of the franchise. These included grandfather clauses,
property qualifications, “good character” tests, and the requirement that reg-
istrants “understand” or “interpret” certain matters.
846 | REPRESENTATIVE GOVERNMENT

The course of subsequent Fifteenth Amendment litigation in this Court

demonstrates the variety and persistence of these and similar institutions de-
signed to deprive Negroes of the right to vote. Grandfather clauses were in-
validated in Guinn v. United States, 238 U.S. 347 [(1915)]; and Myers .v.
Anderson, 238 U.S. 368 [(1915)]. Procedural hurdles were struck down in Lane
v, Wilson, 307 U.S. 268 [(1939)]. The white primary was outlawed in Smith v.
Allwright, 321 U.S. 649 [(1944)]; and Terry v. Adams, 345 U.S. 461 [(1953)].
Improper challenges were nullified in United States v. Thomas, 362 U.S. 58
[(1960)]. Racial gerrymandering was forbidden by Gomillion v, Lightfoot, 364
US. 339 [(1960)]. Finally, discriminatory application of voting tests was con-
demned in Schnell v. Davis, 336 U.S. 933 [(1949)]; Alabama v. United States, 371
US. 37 [(1962)]; and Louisiana v. United States, 380 U.S. 145 [(1965)].
According to the evidence in recent Justice Department voting suits, the
latter stratagem is now the principal method used to bar Negroes from the
pollsini.
In recent years, Congress has repeatedly tried to cope with the problem
by facilitating case-by-case litigation against voting discrimination. The Civil
Rights Act of 1957 authorized the Attorney General to seek injunctions
against public and private interference with the right to vote on racial
grounds. Perfecting amendments in the Civil Rights Act of 1960 permitted
the joinder of States as parties defendant, gave the Attorney General access to
local voting records, and authorized courts to register voters in areas of sys-
tematic discrimination. Title I of the Civil Raghts Act of 1964 expedited the
hearing of voting cases before three-judge courts and outlawed some of the
tactics used to disqualify Negroes from voting in federal elections.
Despite the earnest efforts of the Justice Department and of many fed-
eral judges, these new laws have done little to cure the problem of voting
discrimination. According to estimates by the Attorney General during hear-
ings on the Act, registration of voting-age Negroes in Alabama rose only
from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely inched
ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it in-
creased only from 4.4% to 6.4% between 1954 and 1964. In each instance,
registration of voting-age whites ran roughly 50 percentage points or more
ahead of Negro registration. . . .
The Voting Rights Act of 1965 reflects Congress’ firm intention to rid
the country of racial discrimination in voting. The heart of the Act is a com-
plex scheme of stringent remedies aimed at areas where voting discrimina-
tion has been most flagrant. Section 4 (a)—(d) lays down a formula defining
the States and political subdivisions to which these new remedies apply. The
first of the remedies, contained in Sec. 4 (a), is the suspension of literacy tests
and similar voting qualifications for a period of five years from the last oc-
currence of substantial voting discrimination. Section 5 prescribes a second
remedy, the suspension of all new voting regulations pending review by fed-
eral authorities to determine whether their use would perpetuate voting dis-
crimination. The third remedy, covered in Secs. 6(b), 7, 9, and 13(a), is the
assignment of federal examiners on certification by the Attorney General to
list qualified applicants who are thereafter entitled to vote in all elections.
Other provisions of the Act prescribe subsidiary cures for persistent vot-
ing discrimination. Section 8 authorizes the appointment of federal poll-
watchers in places to which federal examiners have already been assigned.
 A | Representative Government and the Franchise | 847

Section 10(d) excuses those made eligible to vote in sections of the country
covered by Sec. 4 (b) of the Act from paying accumulated past poll taxes for
state and local elections. Section 12(e) provides for balloting by persons
denied access to the polls in areas where federal examiners have been ap-
pointed.
The remaining remedial portions of the Act are aimed at voting dis-
crimination in any area of the country where it may occur. Section 2
broadly prohibits the use of voting rules to abridge exercise of the franchise
on racial grounds. Sections 3, 6(a), and 13(b) strengthen existing procedures
for attacking voting discrimination by means of litigation. Section 4(e) ex-
cuses citizens educated in American schools conducted in a foreign language
from passing English-language literacy tests. Section 10(a)—(c) facilitates con-
stitutional litigation challenging the imposition of all poll taxes for state and
local elections. Sections 11 and 12(a)—(d) authorize civil and criminal sanc-
tions against interference with the exercise of rights guaranteed by the
scl hs ~
These provisions of the Voting Rights Act of 1965 are challenged on
the fundamental ground that they exceed the powers of Congress and en-
croach on an area reserved to the States by the Constitution. South Carolina
and certain of the amici curiae also attack specific sections of the Act for
more particular reasons. They argue that the coverage formula prescribed in
Sec. 4(a)-(d) violates the principle of the equality of States, denies due
process by employing an invalid presumption and by barring judicial review
of administrative findings, constitutes a forbidden bill of attainder, and im-
pairs the separation of powers by adjudicating guilt through legislation. They
claim that the review of new voting rules required in Sec. 5 infringes Arti-
cle III by directing the District Court to issue advisory opinions. They con-
tend that the assignment of federal examiners authorized in Sec. 6(b)
abridges due process by precluding judicial review of administrative findings
and impairs the separation of powers by giving the Attorney General judicial
functions; also that the challenge procedure prescribed in Sec. 9 denies due
process on account of its speed. Finally, South Carolina and certain of the
amici curiae maintain that Secs. 4(a) and 5, buttressed by Sec. 14(b) of the Act,
abridge due process by limiting litigation to a distant forum.
Some of these contentions may be dismissed at the outset. The word
“person” in the context of the Due Process Clause of the Fifth Amendment
cannot, by any reasonable mode of interpretation, be expanded to encompass
the States of the Union, and to our knowledge this has never been done by
any court... . Likewise, courts have consistently regarded the Bill of Attain-
der Clause of Article I and the principle of the separation of powers only as
protections for individual persons and private groups, those who are pecu-
liarly vulnerable to non-judicial determinations of guilt. Nor does a State
have standing as the parent of its citizens to invoke these constitutional pro-
visions against the Federal Government, the ultimate parens patriae of every
‘American citizen. The objections to the Act which are raised under these
provisions may therefore be considered only as additional aspects of the ba-
sic question presented by the case: Has Congress exercised its powers under
the Fifteenth Amendment in an appropriate manner with relation to the
States?
The ground rules for resolving this question are clear. The language and
848 | REPRESENTATIVE GOVERNMENT

purpose of the Fifteenth Amendment, the prior decisions construing its sev-
eral provisions, and the general doctrines of constitutional interpretation, all
point to one fundamental principle. As against the reserved powers of the
States, Congress may use any rational means to effectuate the constitutional
prohibition of racial discrimination in voting... .
The basic test to be applied in a case involving Sec. 2 of the Fifteenth
Amendment is the same as in all cases concerning the express powers of
Congress with relation to the reserved powers of the States. Chief Justice
MARSHALL laid down the classic formulation, 50 years before the Fif-
teenth Amendment was ratified:

“Let the end be legitimate, let it be within the scope of the consti-
tution, 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.” McCulloch v.
Maryland, 4 Wheat. 316 [(1819)]....

We therefore reject South Carolina’s argument that Congress may ap-

propriately do no more than to forbid violations of the Fifteenth Amend-
ment in general terms—that the task of fashioning specific remedies or of
applying them to particular localities must necessarily be left entirely to the
courts. Congress is not circumscribed by any such artificial rules under
Sec. 2 of the Fifteenth Amendment. In the oft-repeated words of Chief Jus-
tice MARSHALL, referring to another specific legislative authorization in
the Constitution, “This power, like all others vested in Congress, is complete
in itself, may be exercised to its utmost extent, and acknowledges no limita-
tions, other than are prescribed in the constitution.’ Gibbons v. Ogden,
9 Wheat. 1 [(1824)]....
- After enduring nearly a century of widespread resistance to the Fif
teenth Amendment, Congress has marshalled an array of potent weapons
against the evil, with authority in the Attorney General to employ them ef-
fectively. Many of the areas directly affected by this development have indi-
cated their willingness to abide by any restraints legitimately imposed upon
them. We here hold that the portions of the Voting Rights Act properly be-
fore us are a valid means for carrying out the commands of the Fifteenth
Amendment. Hopefully, millions of non-white Americans will now be able
to participate for the first time on an equal basis in the government under
which they live. We may finally look forward to the day when truly “[t]he
right of citizens of the United States to vote shall not be denied or abridged
by the United States or by any State on account of race, color, or previous
condition of servitude.”
The bill of complaint is dismissed.
Bill dismissed.

\) Justice BLACK, concurring in part.

Though ...I agree with most of the Court’s conclusions, I dissent from
its holding that every part of Sec. 5 of the Act is constitutional. Section 4(a),
to which Sec. 5 is linked, suspends for five years all literacy tests and similiar
devices in those States coming within the formula of Sec. 4(b). Section 5
 A | Representative Government and the Franchise | 849

goes on to provide that a State covered by Sec. 4(b) can in no way amend its
constitution or laws relating to voting without first trying to persuade the
Attorney General of the United States or the Federal District Court for the
District of Columbia that the new proposed laws do not have the purpose
and will not have the effect of denying the right to vote to citizens on ac-
count of their race or color. I think this section is unconstitutional on at least
two grounds. ...
[I]t is hard for me to believe that a justiciable controversy can arise in
the constitutional sense from a desire by the United States Government or
some of its officials to determine in advance what legislative provisions a
State may enact or what constitutional amendments it may adopt. If this dis-
pute between the Federal Government and the States amounts to a case or
controversy it is a far cry from the traditional constitutional notion of a case
or controversy as a dispute over the meaning of enforceable laws or the
manner in which they are applied. And if by this section Congress has cre-
ated a case or controversy, and I de not believe it has, then it seems to me
that the most appropriate judicial forum for settling these important ques-
tions is this Court acting under its original Art. III, Sec. 2, jurisdiction to try
cases in which aState is a party. At least a trial in this Court would treat the
States with the dignity to which they should be entitled as constituent mem-
bers of our Federal Union. ...
My second and more basic objection to Sec. 5 is that Congress has here
exercised its power under Sec. 2 of the Fifteenth Amendment through the
adoption of means that conflict with the most basic principles of the Con-
stitution. .. . Section 5, by providing that some of the States cannot pass state
laws or adopt state constitutional amendments without first being compelled
to beg federal authorities to approve their policies, so distorts our constitu-
tional structure of government as to render any distinction drawn in the
Constitution between state and federal power almost meaningless. One of
the most basic premises upon which our structure of government was
founded was that the Federal Government was to have certain specific and
limited powers and no others, and all other power was to be reserved either
“to the States respectively, or to the people.” Certainly if all the provisions of
our Constitution which limit the power of the Federal Government and re-
serve other power to the States are to mean anything, they mean at least that
the States have power to pass laws and amend their constitutions without
first sending their officials hundreds of miles away to beg federal authorities
to approve them. Moreover, it seems to me that Sec. 5 which gives federal
officials power to veto state laws they do not like is in direct conflict with
the clear command of our Constitution that “The United States shall guar-
antee to every State in this Union a Republican Form of Government.” I
cannot help but believe that the inevitable effect of any such law which
forces any one of the States to entreat federal authorities in faraway places
for approval of local laws before they can become effective is to create the
‘impression that the State or States treated in this way are little more than
conquered provinces. And if one law concerning voting can make the States
plead for this approval by a distant federal court or the United States Attor-
ney General, gther laws on different subjects can force the States to seek the
advance upproval not only of the Attorney General but of the President
himself or any other chosen members of his staff. It is inconceivable to me
850 | REPRESENTATIVE GOVERNMENT

that such a radical degradation of state power was intended in any of the
provisions of our Constitution or its Amendments. Of course I do not mean
to cast any doubt whatever upon the indisputable power of the Federal Goy-
ernment to invalidate a state law once enacted and operative on the ground
that it intrudes into the area of supreme federal power. But the Federal Gov-
ernment has heretofore always been content to exercise this power to protect
federal supremacy by authorizing its agents to bring lawsuits against state of-
ficials once an operative state law has created an actual case and controversy.
A federal law which assumes the power to compel the States to submit in
advance any proposed legislation they have for approval by federal agents ap-
proaches dangerously near to wiping the States out as useful and effective
units in the government of our country. I cannot agree to any constitutional
interpretation that leads inevitably to such aresult... .
In this and other prior Acts Congress has quite properly vested the At-
torney General with extremely broad power to protect voting rights of citi-
zens against discrimination on account of race or color. Section 5 viewed in
this context is of very minor importance and in my judgment is likely to
serve more as an irritant to the States than as an aid to the enforcement of
the Act. I would hold Sec. 5 invalid for the reasons stated above with full
confidence that the Attorney General has ample power to give vigorous, ex-
peditious and effective protection to the voting rights of all citizens.

=# THE DEVELOPMENT OF LAW

Other Rulings Interpreting the Voting Rights Act

CASE VOTE RULING

Gaston County v. United States, 7:1 Because of past racial discrimi-

395 U.S. 285 (1969) nation in the electoral system,
the Court held that “impartial”
administration of literacy tests would serve only to “perpetuate these [past]
inequities in a different form.”
Perkins v. Matthews, 400 U.S. 7:2 Localities covered by the Voting
SL90( L971) Rights Act may not annex terri-
tory or relocate polling places
without prior federal approval.
City of Richmond, Virginia v. 6:3 Upheld the annexation of
United States, 422 U.S. 358 twenty-three square miles of
(1975) the county of Richmond that
resulted in a black population of
42 percent rather than 52 percent prior to annexation; no violation of the
Voting Rights Act.
NNN SS
 A | Representative Government and the Franchise | 851

CASE VOTE RULING

Beer v. United States, 425 U.S. 5:3 The Voting Rights Act does not
130 (1976) require redrawing district lines
to give black voters proportional
representation; the act only bars dilution of the black vote and any “retro-
gression in the position of racial minorities with respect to their effective ex-
ercise of the electoral franchise.”

United Jewish Organizations v. 8:0 Held that the Fourteenth and

Carey, 430 (1976) p
Fifteenth Amendments and the
Civil Rughts Act were not vio-
lated by a reapportionment plan that diluted the votes of Hasidic Jews by
splitting their community into two assembly districts to secure several pre-
dominantly nonwhite voting districts.

United States v. Board of Com- 6:3 Held that the Voting Rights Act
missioners of Sheffield, Alabama, requirement for preclearance by
435 U.S. 110 (1978) the Department of Justice of
changes in election laws applies
to all elections; here, to the municipal election of city councilmen.

City of Mobile, Alabama v. 6:3 At-large elections did not violate

Bolden, 446 U.S. 55 (1980) black voting rights.

City of Rome v. United States, 7:2 Annexation violated the Voting

446 U.S. 156 (1980) Rights Act.

Rogers v. Lodge, 458 U.S. 613 6:3 Held that “intent” is necessary
(1982) to show that changes in election
law result in invidious voting di-
lution.

City of Lockhart v. United 6:3 City’s election plan subject to

States, 460 U.S. 125 (1983) preclearance.

Thornburg v. Gingles, 478 6:3 Held that (1) the use of multi-
U.S. 30 (1986) member districts does not im-
pede minority voters to elect
representatives, unless a block of majority voters usually defeats minority
candidates; (2) minority voters who challenge the use of multimember dis-
tricts must demonstrate impermissible vote dilution; and (3) concluded that
in the last six elections there was proportionate representation of blacks.

Chisom v. Roemer, 501 U.S. 6:3 Held that the Voting Rights Act,
380 (1991) as amended, applies to state
. judicial elections. Chief Justice
Rehnquist and Justices Kennedy and Scalia dissented.
852 | REPRESENTATIVE GOVERNMENT

ee

CASE VOTE RULING

Houston Lawyers’ Association 6:3 The Court held that Section2

v. Texas Attorney General, 501 of the Voting Rights Act applied
U.S. 449 (1991) to Texas’s elections of state trial
court judges. Justice Stevens
wrote for the majority and Justice Scalia for the dissenters.
Presley v. Etowah County Com- 6:3 The Court gave local govern-
mission, 502 U.S. 491 (1992) ments greater freedom to change
their political structure without
obtaining prior approval from the Department of Justice under Section 5 of
the Voting Rights Act. After the election of a black commissioner, the white
majority county commission changed its system of allocating money, from
one in which each commissioner had full authority over funds allocated to
his or her district to a common fund under the control of the voting major-
ity on the commission. Justice Kennedy held that the county did not have to
obtain prior approval because the change did not involve “voting changes”
covered by the act. The Voting Rights Act, according to Justice Kennedy, cov-
ers only four kinds of “voting changes”: (1) in the manner of voting, such as
switching from single-district to at-large elections; (2) in candidacy qualifica-
tions; (3) in voter registration; and (4) affecting the creation or abolition of
an elected office. Each of these kinds of changes relates directly to the elec-
toral process, whereas Justice Kennedy deemed changes in the internal oper-
ations of an elected body to have no direct relation to voting. Justices
Stevens, Blackmun, and White dissented.

Growe, Secretary of State of 9:0 Unanimously reversing a district

Minnesota v. Emison, 507 U.S. court decision that imposed a
25-(1993) reapportionment plan creating a
minority-domuinated state senate
district in Minnesota’s legislature, the Court held that federal courts must de-
fer to state courts when parallel lawsuits challenging redistricting plans are
pending.

Voinovich v. Quilter, 507 U.S. 9:0 Unanimously reversing a lower

149 (1993) court ruling that struck down
the creation of black-majority vot-
ing districts, the Court held that states are free to design reapportionment
plans that include majority-minority districts so long as the end result does
not violate the Voting Rights Act by “diminishing or abridging the vot-
ing strength of the protected class.’ Here, Ohio Democrats challenged a
Republican-sponsored plan that Democrats claimed packed minorities into
voting districts that already had elected black state legislators, while diluting
blacks’ voting strength in other predominantly white districts. Writing for the
Court, Justice O’Connor observed that “the practice challenged here, the
 A | Representative Government and the Franchise | 853

CASE VOTE RULING

creation of majority-minority districts, does not invariably minimize or

maximize minority voting strength. Instead, it can have either effect or
neither. On the one hand, creating majority-black districts necessarily leaves
few black voters and therefore diminishes black-voter influence in predomi-
nantly white districts. On the other hand, the creation of majority-black dis-
tricts can enhance the influence of black voters. Placing black voters in a
district in which they constitute a sizeable and therefore ‘safe’ majority en-
sures that they are able to elect their candidate of choice. Which effect the
practice has, if any at all, depends entirely on the facts and circumstances of
each case.”

Morse v. Republican Party of 5:4 A bare majority of the Court

Virginia, 517 U.S. 116 (1996) i ruled that provisions of the
Voting Rights Act extend to
changes made in political parties’ requirements for primary elections. Virginia
delegated its authority over primary elections to the major political parties in
the state. The Court held that the party’s nominating convention effectively
constituted a state primary election and thus was subject to the provisions of
the Voting Rights Act. The four dissenters—Chief Justice Rehnquist and Jus-
tices Kennedy, Scalia, and Thomas—countered that the act did not extend to
parties’ nominating conventions, because political parties are not “state
actors.”

Young v. Fordice, 520 U.S. 9:0 Held that Mississippi was re-
273 (1997) quired under Section 5 of the
Voting Rights Act to obtain
the Department of Justice’s pre-
clearance approval before implementing the federal Motor Voter law of 1995
in a way that would make it the only state with separate registration proce-
dures for federal and state elections. Writing for the Court, Justice Breyer ob-
served that the dual registration system “contains numerous examples of
new, significantly different administrative practices” that posed “a potential
for discriminatory impact” on minority voters.

Reno v. Bossier Parish School 72 Writing for the majority, Justice

Board, 520 U.S. 1206 (1997) O’Connor rejected the Depart-
ment of Justice’s decade-old pol-
icy of denying preclearance under Section 5 of the Voting Rights Act to
changes in electoral redistricting in the nine southern states not only when
they would weaken the position of minority voters but also when redistrict-
ing plans would not improve those voters’ position as much as theoretic-
ally possible. Under the policy of the Department of Justice, preclearance
under Section 5 was denied if redistricting plans failed to satisfy the stan-
dard of Section 2 of the act, which applies nationwide and does not require
EEE
 854 | REPRESENTATIVE GOVERNMENT

a ELA

CASE VOTE RULING

proof that minority voters would be in a worse position but rather that they
would not be in as strong a position to elect minorities as possible. However,
Justice O’Connor held that policy to make it more difficult for the nine
southern states to obtain preclearance under Section 5 than Congress had in-
tended.
Abrams v. Johnson, 521 U.S. 5:4 In Miller v. Johnson, 512 U.S. 622
74 (1997) (1995), the Court invalidated
Georgia’s congressional __re-
districting plan, which created three majority-black districts out of the state’s
eleven districts, because race was the predominant factor in the redistricting
plan. On remand, the federal district court deferred to the legislature to draw
a new plan, but it could not reach agreement. The district court thus drew its
own plan, containing only one majority-black district. The 1996 general
elections were held under that plan, but voters and the Department of Jus-
tice challenged the plan on the ground that it did not adequately take into
account the interests of the state’s black population. Writing for a bare ma-
jority as in Miller v. Johnson, Justice Kennedy upheld the lower court’s
redistricting plan and held that the court had abused neither its remedial
powers nor its discretion in deciding that it could not draw two majority-
black districts without engaging in racial gerrymandering. In holding that
the redistricting did not violate either Section 2 or Section 5 of the Voting
Rights Act and did not violate the constitutional guarantee of “one person,
one vote” under Article 1, Section 2, Justice Kennedy reaffirmed that race
“must not be a predominant factor in drawing the district lines.” As in Miller
v, Johnson, Justices Breyer, Ginsburg, Souter, and Stevens dissented.
Lopez v. Monterey County, 8:1 Writing for the Court, Justice
529°U.5. 20001999) O’Connor held that a county
covered by Section 5 of the Vot-
ing Rights Act of 1965, which requires designated states and subdivisions to
obtain Department of Justice approval for any proposed changes in election
laws, in a state (California) not covered by Section 5, must still receive federal
preclearance for voting changes. Justice Thomas dissented.
Reno v. Bossier Parish School 5:4 Writing for the majority, Justice
Board, 528 U.S. 320 (2000) Scalia ruled that Section 5 of the
Voting Rughts Act does not pro-
hibit Department of Justice preclearance of a redistricting plan adopted with
an ostensibly discriminatory but nonretrogressive purpose. The Department
of Justice had objected to a plan to give all twelve voting districts white ma-
jorities, even though about 20 percent of the population was black. The de-
partment contended that it could deny preclearance approval because the
plan would dilute black voting strength. But Justice Scalia rejected that inter-
pretation of the Voting Rights Act in holding that preclearance could be de-
DR a aS a EE
 A | Representative Government and the Franchise | 855

CASE VOTE RULING

nied only if a redistricting plan would put blacks in a worse position or to

prevent “backsliding.’ That narrower interpretation was deemed by the
Court’s majority to be justified given “the substantial federalism costs that
the preclearance procedure already exacts” from state and local governments.
Justices Stevens, Souter, Ginsburg, and Breyer dissented.
Georgia v. Ashcroft, 539 U.S. 5:4 Held that under Section 5 of the
461 (2003) Voting Rights Act, legislative and
congressional districts may be re-
drawn in ways that shrink black voting majorities in order to create more
Democratic-leaning districts. Georgia’s redistricting reduced black majorities
in three districts to just over 50 percent, down from 62 to 55 percent, in or-
der to increase the likelihood that Democrats would be elected. A federal
district court held that this action violated the Voting Rights Act, but the
Supreme Court reversed, holding that in assessing the racial regressive effect
all factors may be considered, including a minority group’s voting participa-
tion in a coalitional district. Justices Stevens, Souter, Ginsburg, and Breyer
dissented.

B | Voting Rights and the

Reapportionment Revolution

Despite disenfranchisement of large segments of the population in the

nineteenth century, Congress and the states by and large adhered to the
principle of representation based on equal population. In the North-
west Ordinance of 1787, for example, Congress provided that represen-
tation in territorial legislatures was to be based on population. As
discussed in Chapter 5, from 1842 to 1929 Congress required that
members of the House of Representatives be elected from “contigu-
ous, equal districts.” Between 1790 and 1889, no state was admitted
into the union that did not guarantee representation in its state legisla-
ture based on population. And thirty-six of the original state constitu-
tions required that representation in state houses be based primarily on
population.
But in the late nineteenth and early twentieth centuries, with the
influx of immigrants and the emergence of large urban areas due to the
Industria! Revolution, many states bowed to political pressures and re-
fused to reapportion state legislative districts. As a result, votes in rural
856 | REPRESENTATIVE GOVERNMENT

areas greatly outweighed those in urban areas. As discussed in Chap-

ter 2, Justice Frankfurter insisted in Colegrove v. Green, 328 U.S. 549
(1946), that reapportionment was a “political question” for Congress
and state legislatures, not the Court, to decide. In that case, Illinois had
not redrawn its electoral district lines since 1901 and the voting in-
equalities were as great as nine to one in some districts. But Illinois was
by no means unique in failing to reapportion its legislative houses. In
1910, 41.9 million people lived in urban areas, while 49.9 lived in rural
areas. Fifty years later, in 1960, 125.2 million lived in urban areas,
whereas only 54 million lived in rural areas.
In 1960, the Warren Court confronted the related issue of racial
malapportionment. In Gomillion v. Lightfoot (1960) (excerpted below),
the Court rebuffed an attempt by Tuskegee, Alabama, to redraw its elec-
toral lines so as to exclude virtually all black voters from within the
city’s limits.
Finally, in Baker v. Carr, 369 U.S. 186 (1962) (excerpted in Vol-
ume 1, Chapter 2), the Court responded to the malapportionment con-
troversy, holding that reapportionment was no longer a nonjusticiable
controversy. Years later, after leaving the bench, Chief Justice Earl War-
ren explained in a television interview that Baker was more important
than the Court’s landmark school desegregation ruling:

[IJn my mind the most important case we have had in all those
years was the case of Baker v. Carr, which is what we might call the
" parent case of the one man, one vote doctrine, which guarantees to
every American citizen participating in government an equal value
of his vote to that of any other vote that is cast in the particular
election. And the reason I say that is not because it decided any par-
ticular issue at the time but the courts had vacillated on that ques-
tion for a great many years and there were decisions that ended up
three, three, three, without a majority of the vote in any of them.
And which were, the net result of which were to stratify the situa-
tion in states where the legislature was grossly malapportioned, and
some places it remained that way for sixty or seventy years and
there was no way that the people of the state could get a constitu-
tional amendment on which to vote, because the people who were
[in] the malapportioned legislatures wouldn’t submit that kind of
an amendment to them, and there was no way under their state
government for the people to initiate such a measure... . [W]e held
in Baker v. Carr that it was a judicial question, and that the courts,
therefore, had jurisdiction. ... And I believe that if we had had the
decision shortly after the Fourteenth Amendment was adopted, that
most of these problems that are confronting us today, particularly
the racial problems, would have been solved by the political process
where they should have been decided, rather than through the
courts acting only under the bare bones of the Constitution. And if-
 B | Voting Rights and the Reapportionment Revolution | 857

Blacks and everybody else could vote, the people who were in the
majority in these various states had an opportunity to elect their
people instead of having some district with large votes that were
just about like the old so-called rotten boroughs over in England.'

While Baker announced the coming of the “reapportionment revolu-

tion” by inviting litigation challenging malapportioned legislatures, it
did not address head-on the merits of the reapportionment contro-
versy. Not until the following year did Justice Douglas announce the
principle of “one person, one vote.’ When striking down Georgia’s
county-unit system of primary elections for state offices for diluting
the votes of urbanites in Gray v. Sanders, 372 U.S. 368 (1963), Douglas
declared that “[t]he conception of political equality from the Declara-
tion of Independence, to Lincoln’s Gettysburg address, to the Fifteenth,
Seventeenth, and Nineteenth Amendments can mean only one thing—
one person, one vote.”
The next year, the Warren Court handed down seventeen reappor-
tionment rulings. In the two leading cases, the Court advanced the
principle of one person, one vote as the “essence of self-government”
when extending it to malapportioned congressional districts, in Wes-
berry v. Sanders (1964) (excerpted below), and to state legislative districts
in Reynolds v. Sims (1964) (excerpted below).
The Court’s 1964 reapportionment rulings far from settled the
controversy or put an end to litigation. The Court’s rulings affected the
apportionment of forty-eight states and there were already challenges
to forty-one states’ apportionment in the lower federal courts.
The Court also further extended the principle of one person, one
vote to most elections for local offices, although not all.* In Hadley uv.
Junior College District of Metropolitan Kansas City, Missouri, 397 U.S. 50
(1970), Justice Black underscored the Court’s determination to apply
the principle of one person, one vote to virtually every local election:

We ... hold today that as a general rule, whenever a state or local

government decides to select persons by popular election or per-
form governmental functions, the equal protection clause of the
Fourteenth Amendment requires that each qualified voter must be
given an equal opportunity to participate in that election, and when
members of an elected body are chosen from separate districts, each
district must be established on a basis which will insure, as far as
practicable, that equal numbers of voters can vote for proportion-
ally equal numbers of officials.

Note, however, that the Court unanimously refused to apply the prin-
ciple of “‘one person, one vote” to the apportionment of the House of
Representatives, in U.S. Department of Commerce v. Montana, 503 USS.
858 | REPRESENTATIVE GOVERNMENT

442 (1992) (see Vol. 1, Ch. 5). In a related controversy growing out of
the 1990 census, the Court held that the federal government did not
have to adjust census figures that undercounted blacks, Hispanics, and
other minorities in some metropolitan areas and along the country’s
borders. New York City challenged the census figures, which are used
in congressional redistricting and in calculating federal funding for the
states, as a violation of minority voting rights. Although acknowledging
that blacks were undercounted by 4.8 percent, Hispanics by 5.2 per-
cent, Native Americans by 5 percent, and Asian-Pacific Islanders by
3.1 percent, the secretary of the Department of Commerce, who over-
sees the Census Bureau, decided that it was too costly to adjust the
headcount to make it more accurate. Subsequently, Wisconsin and
Oklahoma joined the suit on the side of the Commerce Department,
in order to preserve their federal funding under the 1990 census. With-
out dissent, the Supreme Court held that Congress, which delegated its
authority to the commerce secretary, has virtually unlimited discretion
in deciding how to conduct the decennial census. Writing for the
Court in Wisconsin v. City of New York, 517 U.S. 1 (1996), Chief Justice
Rehnquist observed that the Census Bureau had “made an extraordi-
nary effort to conduct an accurate enumeration, and was successful in
counting 98.4 percent of the population.”
The Court also continued to confront controversies arising from
the use of multimember districts. These districts have been attacked,
and sometimes adopted, for aiming to dilute the vote of minorities by
expanding the size of a district. The Court held that multimember dis-
tricts are not unconstitutional per se.’ Whitcomb v. Chavis, 403 U.S. 124
(1971), upheld the use of multimember districts, despite considerable
evidence that the votes of black and poor residents were diluted. Al-
though the Court has expressed a preference for single-member dis-
tricts in court-drawn plans,* City of Mobile v. Bolden, 446 U.S. 55 (1980),
reaffirmed that vote dilution in multimember districts is unconstitu-
tional only if there is evidence of an “intent” to discriminate. But as al-
ready noted, Congress responded to that ruling in the Voting Rights
Act of 1982 by rejecting an “intent” standard and substituting a “‘total-
ity of circumstances” standard for determining whether an electoral
system 1s discriminatory. In Rogers v. Herman Lodge, 458 U.S. 613 (1982),
the Burger Court ordered the establishment of single-member districts
as a remedy for invidious discrimination in the at-large electoral system
in Burke County, Georgia.’
The Court continues as well to confront litigation challenging the
disparity in the weight of votes in electoral systems. Notably, the Court
has continued to grapple with the line-drawing problem created by the
Warren Court’s holding that mathematical exactitude is not necessary
to ensure the principle of one person, one vote, but rather “honest and
 B | Voting Rights and the Reapportionment Revolution | 859

=# THE DEVELOPMENT OF LAW

Rulings Extending the Principle of One Person,

One Vote to Local Governments

CASE VOTE RULING

Avery v. Midland County, 6:3 Held district lines for voting for
Texas, 390 U.S. 474 (1968) 4 county commissioners were dis-
proportionate and diluted local
votes.
Kramer v. Union Free School 6:3 Held New York statute limiting
District, 395 U.S. 621 (1969) voting in school district elections
to homeowners violated the Four-
teenth Amendment.

Hadley v. Junior College District 6:3 Found that the selection of jun-
of Metropolitan Kansas City, ior college trustees was based on
397 -U.s. 50°(1970) disproportionate voting and held
that virtually all state and local
elections must abide by the principle of one person, one vote.
Board of Estimate of City of 9:0 Applied principle of “one per-
New York v. United States, son, one vote” to New York
489 U.S. 688 (1989) Board of Estimate.

ee eee ee ee ee eS!

good faith effort[s] to construct districts... as nearly of equal popula-

tion as is practicable.”
As further indicated in the box THE DEVELOPMENT OF LAW:
Judicial Standards in Reapportionment Cases, the Court has consis-
tently allowed greater variations in the population ranges for state leg-
islative districts than for congressional districts. At the same time, the
Court also rather consistently approved a narrowing of the acceptable
population ranges for both state legislative and congressional districts.
Notably, Gaffney v. Cummings, 412 U.S. 735 (1973), upheld a population
range of plus-or-minus 7.8 percent in Connecticut’s state legislative
districts and observed that states may undertake “not to minimize or
eliminate the political strength of any group or party, but to recognize
it and, through districting, provide a rough sort of proportional repre-
sentation.” In Gaffney, the Court also held that the burden of proof
shifts to the plaintiffs who are claiming malapportionment. A decade
later, in Karcher v. Daggett, 462 U.S. 725 (1983), a bare majority rejected
860 | REPRESENTATIVE GOVERNMENT

The Warren Court made sweeping changes in constitutional law and politics. But
with the exception of the Court’s 1954 landmark ruling on school desegregation, a
solid majority on the Warren Court did not emerge until after the appointments of
Justices Byron White and Arthur Goldberg in 1962. Seated, left to right, are Justices
Tom C. Clark and Hugo L. Black, Chief Justice Earl Warren, and Justices William O.
Douglas and John Harlan. Standing, left to right, are Justices Byron R. White, William
J. Brennan, Jr., Potter Stewart, and Arthur J. Goldberg. (Photo by Harris & Ewing,
Collection of the Supreme Court of the United States)

New Jersey’s plan for congressional districting with a total population

variation of 0.69 percent. Writing for the Court and a plurality in
Karcher, Justice Brennan held that the “as nearly as practicable” standard
for apportioning congressional districts is inconsistent with the adop-
tion of fixed numerical standards for justifying population variations,
and that the acceptability of the justification for population variations
turns on the circumstances of each case.
In Karcher v. Daggett, a majority—a majority consisting of concur-
ring Justice Stevens and the four dissenters (Chief Justice Burger
and Justices Powell, Rehnquist, and White)—indicated that political
gerrymandering may be a greater threat to fair representation than
population variations in voting districts. Gerrymandering is a term
describing efforts to draw district lines to preserve partisan power. It
originated in Massachusetts in 1812, where the state legislature pro-
duced a salamander-shaped district, named after the governor, Elbridge
Gerry. Since then it has been commonplace in the politics of congres-
sional and state legislative districting.
 B | Voting Rights and the Reapportionment Revolution | 861

= THE DEVELOPMENT OF LAw

Judicial Standards in Reapportionment Cases

STATE LEGISLATIVE DISTRICTS CONGRESS

Swann v. Adams, 385 U.S. 440 Duddleston v. Grills, 385 U.S. 155
(1967). Rejected population varia- (1967). Rejected Indiana’s congres-
tions of 30 percent in Florida state _ sional districting plan with 12.8 per-
senate and 40 percent in house cent maximum deviation among
districts. district populations.

Kilgarlin v. Hill, 386 U.S. 120 Kirkpatrick v. Priesler, 394 U.S. 542
(1967). Held that states must justify (1969). Rejected Missouri’s con-
deviations in population of plus 14.8 gressional population deviations of
percent and minus 11.6 percent. plus-or-minus 3 percent. Wells v.
Rockefeller, 394 U.S. 542 (1969). Re-
jected redistricting with population
range of approximately 6 percent
each way and defended as regional
communities of interest.

Mahan v. Howell, 410 U.S. 315 White v. Weiser 412 U.S. 783
(1973). Approved Virginia’s 16.4 (1973). Rejected Texas’s population
percent maximum population vari- range among congressional districts
ance range, as justified by consistent of plus 2.43 percent to minus
patterns of following local subdivi- 1.7 percent and suggested the adop-
sion lines. tion of an alternative plan with no
significant population deviations.

White v. Regester, 412 U.S. 755 Karcher v. Daggett, 462 U.S. 725
(1973). Upheld redistricting with (1983). Rejected New Jersey’s con-
population variations in the range gressional districting with a total vari-
of 10 percent, plus or minus, unless ation in population of 0.69 percent.
plaintiffs show discrimination.
Gaffney v. Cummings, 412 U.S. 735
(1973). Upheld Connecticut’s
population range of plus-or-minus
7.8 percent for state legislative dis-
tricts and ruled that the burden of
“proving malapportionment shifts to
the plaintiff.
———K——
een eee ei
862 | REPRESENTATIVE GOVERNMENT

The Original Gerrymander in 1812, with Head, Wings, and Claws by Gilbert Stuart.
(The Granger Collection, New York)

Gerrymandering is principally used either to safeguard incum-

bents’ seats or, more recently, to create districts in urban areas that will
ensure the election of an ethnic or racial minority. The Warren Court
repeatedly rejected opportunities to supervise this practice, except in
cases like Gomillion involving gerrymandering aimed at disenfrachising
minorities. In United Jewish Organizations v. Carey, 430 U.S. 144 (1977),
the Burger Court likewise dismissed the claims of Hasidic Jews, who
challenged the constitutionality of New York’s redistricting plan that
divided their community, thereby diluting their voting power, to estab-
lish several predominantly nonwhite voting districts. However, in
Davis v. Bandemer, 478 U.S. 106 (1986), the Court held that political
gerrymandering was a justiciable controversy. But a majority could
not agree on a standard for adjudicating such disputes. Almost two
decades later the Court revisited thé issue in Vieth v.Jubelirer (2004)
(excerpted below). There, a plurality—Chief Justice Rehnquist and
Justices O’Connor, Scalia, and Thomas—would have overruled Davis v.
Bandemer and held that political gerrymandering controversies are
nonjusticiable. Justice Kennedy, who cast the pivotal vote, would not
go along with that and maintained that an enforceable standard might
still emerge. The four dissenters—Justices Stevens, Souter, Ginsburg,
and Breyer—countered that the Court could formulate standards for
 B | Voting Rights and the Reapportionment Revolution | 863

adjudicating political gerrymandering disputes, but they could not

agree on a standard.
In a major and divisive ruling with broad political ramifications in
Shaw v. Reno, 509 U.S. 630 (1993) (excerpted below), the Rehnquist
Court held that the Fourteenth Amendment forbids racial gerryman-
dering unless the government demonstrates a “compelling reason” for
creating black or Hispanic congressional districts. Following the 1990
census, twenty-six new so-called minority-majority districts were cre-
ated in order to ensure black and Hispanic representation in Congress.
Yet, Justice O’Connor’s opinion for the Court applied the most rigor-
ous standard of review, or “strict scrutiny” test (for a further discussion
see the Rehnquist Court’s rulings on affirmative action in Vol. 2,
Ch. 12), and inspired each of the four dissenters to file separate dissent-
ing opinions.
The bare majority on the Rehnquist Court that decided Shaw v,
Reno held together in a series of other decisions interpreting the Voting
Rights Act (see THE DEVELOPMENT OF LAW: Other Post—Shaw v,
Reno Rulings on Racial Gerrymandering in this section), so as to strike
down the creation of most minority-majority voting districts. The
Court did finally uphold the racial redistricting of North Carolina’s
twelfth congressional district, which a bare majority had struck down in
Shaw v. Reno, in Hunt v. Cromartie (2001) (excerpted below), as a result of
Justice O’Connor’s joining the four dissenters from the previous Shaw v,
Reno line of rulings. However, in another five-to-four decision with Jus-
tice O’Connor rejoining the four conservatives and writing the opinion
for the Court, Georgia v. Ashcroft (2003) (excerpted below) held that re-
districting that shrinks black voting majorities in order to create more
Democratic-leaning or coalitional districts may be permissible and not
retrogressive in violation of the Voting Rights Act.
Finally, in a highly controversial case involving the Texas Re-
publicans’ mid-decennial redistricting and gerrymandering of con-
gressional districts, the Court was sharply fragmented. Traditionally,
redistricting has taken place after each census and partisan gerryman-
dering remains controversial. The Republican-dominated legislature re-
drew district lines in order to disadvantage Democrats, increase the size
of the Republican majority in the House of Representatives, and pre-
serve the seat of an incumbent—Representative Henry Bonilla—who
was losing support among the Latino majority in his district. In League
of United Latin American Citizens v. Perry, 126 S.Ct. 2594 (2006), Justice
Kennedy held for a plurality that such partisan redistricting is permissi-
ble. Chief Justice Roberts and Justices Stevens, Scalia, Souter, and
Breyer each issued separate opinions in part concurring and in part dis-
senting.
864 | REPRESENTATIVE GOVERNMENT

NOTES

1. “A Conversation with Earl Warren,’ WGBH-TV (Boston) Education Foundation

(1972), transcript pp. 15-16. :
2. The Court approved a system for electing the board of directors of a water dis-
trict that limited the electorate to landowners and weighted their votes in Salyer Land
Company v. Tulare Water Storage District, 410 U.S. 719 (1973). See also Gordon v, Lance,
403 U.S. 1 (1971); Holt Civic Club v. City ofTuscaloosa, 439 U.S. 60 (1978); and Ball v.
James, 451 U.S. 355 (1981).
3. See Fortson v. Dorsey, 379 U.S. 433 (1965); and Burns v. Richardson, 384 U.S. 73
(1966).
4. See Connor v.Johnson, 402 U.S. 690 (1971); Chapman v. Meier, 420 U.S. 1 (1975);
and East Carrol Parish School Board v. Marshall, 424 U.S. 636 (1976).
5. But see Thornburg v. Gingles, 478 U.S. 30 (1986), in the table in section A of this
chapter.

SELECTED BIBLIOGRAPHY

Baker, Gordon. The Reapportionment Revolution. New York: Random House, 1966.
Bybee, Keith. Mistaken Identity: The Supreme Court and the Politics of Minority Represen-
tation. Princeton, NJ: Princeton University Press, 1998.
Canon, David T. Race, Redistricting, and Representation. Chicago: University of Chicago
Press, 1999.
Davidson, Chandler, and Grofman, Bernard, eds. Quiet Revolution in the South. Prince-
ton, NJ: Princeton University Press, 1994.
Grofman, Bernard, ed. Race and Redistricting in the 1990s. New York: Agathon Press,
1999,
Grofman, Bernard, ed. Legacies of the 1964 Civil Rights Act. Charlottesville: University
Press of Virginia, 2000.
Guinier, Lani. The Tyranny of the Majority: Fundamental Fairness and Representative
Democracy. New York: Free Press, 1994.
Kousser, J. Morgan. Colorblind Justice: Minority Voting Rights and the Undoing of the Sec-
ond Reconstruction. Chapel Hill: University of North Carolina Press, 1999.
Lubin, David. The Paradox of Representation: Minority Interests in Congress. Princeton,
NJ: Princeton University Press, 1997.
Monmonier, Mark S. Bushmanders and Bullwinkles: How Politicians Manipulate Electronic
Maps. Chicago: University of Chicago Press, 2001.
Skerry, Peter. Counting on the Census? Race, Group Identity, and the Evasion of Politics.
Washington, DC: Brookings Institution Press, 2001.
Valelly, Richard. The Voting Rights Act. Washington, DC: C. Q. Press, 2005.
Yarbrough, Tinsley E. Race and Redistricting: The Shaw-Cromartie Cases. Lawrence: Uni-
versity Press of Kansas, 2003.
 B | Voting Rights and the Reapportionment Revolution | 865

Gomillion v. Lightfoot
364 U.S. 339, 81 S.CT. 125 (1960)

Charles Gomillion and several other black voters sued Phil Lightfoot,
the mayor of Tuskegee, Alabama, for denying their voting rights as
guaranteed under the Fifteenth Amendment. In 1957, Alabama’s legisla-
ture redrew the boundaries of Tuskegee’s electoral district from a square
shape to that of a figure with twenty-eight sides. The redistricting
placed virtually all black voters outside the city limits and in a district
that had no whites. (See map, following, which the Court included in
an appendix to its opinion.) A federal district court dismissed the suit,
and a court of appeals attirmed that ruling. Gomillion then appealed to
the Supreme Court, which granted review.
The Court’s decision was unanimous, and the opinion was an-
nounced by Justice Frankfurter.

TUSKEGEE, ALABAMA, BEFORE AND AFTER ACT 140

' The entire*area of the square comprised the city prior to Act 140. The irregular
black-bordered figure within the square represents the postenactment city.
866 | REPRESENTATIVE GOVERNMENT

(1 Justice FRANKFURTER delivers the opinion of the Court.

The complaint amply alleges a claim of racial discrimination. Against
this claim the respondents have never suggested, either in their brief or in
oral argument, any countervailing municipal function which Act 140 is de-
signed to serve. The respondents invoke generalities expressing the State’s un-
restricted power—unlimited, that is, by the United States Constitution—
to establish, destroy, or reorganize by contraction or expansion its politi-
cal subdivisions, to wit, cities, counties, and other local units. We freely
recognize the breadth and importance of this aspect of the State’s political
power....
In no case involving unequal weight in voting distribution that has
come before the Court did the decision sanction a differentiation on racial
lines whereby approval was given to unequivocal withdrawal of the vote
solely from colored citizens. Apart from all else, these considerations lift this
controversy out of the so-called “political” arena and into the conventional
sphere of constitutional litigation... .
When a State exercises power wholly within the domain of state inter-
est, it is insulated from federal judicial review. But such insulation is not car-
ried over when state power is used as an instrument for circumventing a
federally protected right. This principle has had many applications. It has
long been recognized in cases which have prohibited a State from exploiting
a power acknowledged to be absolute in an isolated context to justify the
imposition of an “unconstitutional condition.” What the Court has said in
those cases is equally applicable here, viz., that “Acts generally lawful may be-
come unlawful when done to accomplish an unlawful end, United States v,
Reading Co., 226 U.S. 324 [(1913)], and a constitutional power cannot be
used by way of condition to attain an unconstitutional result.” Western Union
Telegraph Co. v. Foster, 247 U.S. 105 [(1918)]. The petitioners are entitled to
prove their allegations at trial.
For these reasons, the principal conclusions of the District Court and
the Court of Appeals are clearly erroneous and the decision below must be
reversed.
Reversed.

Baker v. Carr
369 US. 186, 82 S.Cr. 691 (1962)

This watershed case inaugurated the “reapportionment revolution,” in

holding that federal courts had jurisdiction and reapportionment con-
troversies were justiciable, and not “political questions” to be decided
by the other branches of government. Although Baker did not address
the merits of the reapportionment dispute, it is no less important to this
chapter. Pertinent parts of this case are reprinted in Volume 1, Chap-
ten,
 B | Voting Rights and the Reapportionment Revolution | 867

Wesberry v. Sanders
376 US. 1, 84 S.CT. 526 (1964)

James Wesberry, Jr., and several other registered voters filed a suit in fed-
eral district court, asking it to declare unconstitutional Georgia’s statute
prescribing congressional districts. The 1931 statute created ten dis-
tricts. But according to the 1960 census, the Fifth Congressional Dis-
trict had a population of 823,680, while the average population of the
ten districts was 394,312, less than half of the Fifth District’s popula-
tion. Moreover, the Ninth District had a population of only 272,154,
less than one-third as many as the Fifth District. Wesberry contended
that because there was only one congressman for each district, the Fifth
District’s congressman had to represent from two to three times as
many people as other congressmen.A three-judge federal district court,
however, dismissed the suit. Wesberry then appealed to the Supreme
Court.
The Court’s decision was six to three, and the majority’s opinion
was announced by Justice Black.A separate opinion, in part concurring
and dissenting, was delivered by Justice Clark. Justice Harlan dissented
and was joined in part by Justice Stewart.

| Justice BLACK delivers the opinion of the Court.

We agree with the District Court that the 1931 Georgia apportionment
grossly discriminates against voters in the Fifth Congressional District.A sin-
gle Congressman represents from two to three times as many Fifth District
voters as are represented by each of the Congressmen from the other Geor-
gia congressional districts. The apportionment statute thus contracts the
value of some votes and expands that of others. If the Federal Constitution
intends that when qualified voters elect members of Congress each vote be
given as much weight as any other vote, then this statute cannot stand.
We hold that, construed in its historical context, the command of Art. I,
Sec. 2, that Representatives be chosen “by the People of the several States”
means that as nearly as is practicable one man’s vote in a congressional elec-
tion is to be worth as much as another’s. This rule is followed automatically, of
course, when Representatives are chosen as a group on astatewide basis, as
was a widespread practice in the first 50 years of our Nation’s history. It
would be extraordinary to suggest that in such statewide elections the votes of
inhabitants of some parts of a State, for example, Georgia’s thinly populated
Ninth District, could be weighted at two or three times the value of the votes
of people living in more populous parts of the State, for example, the Fifth
District around Atlanta. Cf. Gray v. Sanders, 372 U.S. 368 [(1963)]. We do not
believe that the Framers of the Constitution intended to permit the same
vote-diluting discrimination to be accomplished through the device of dis-
tricts containing widely varied numbers of inhabitants. To say that a vote is
868 | REPRESENTATIVE GOVERNMENT

worth more in one district than in another would not only run counter to
our fundamental ideas of democratic government, it would cast aside the
principle of a House of Representatives elected “by the People,” a principle
tenaciously fought for and established at the Constitutional Convention. The
history of the Constitution, particularly that part of it relating to the adoption
of Art. I, Sec. 2, reveals that those who framed the Constitution meant that, no
matter what the mechanics of an election, whether statewide or by districts, it
was population which was to be the basis of the House of Representatives.
During the Revolutionary War the rebelling colonies were loosely allied
in the Continental Congress, a body with authority to do little more than
pass resolutions and issue requests for men and supplies. Before the war
ended the Congress had proposed and secured the ratification by the States
of a somewhat closer association under the Articles of Confederation.
Though the Articles established a central government for the United States,
as the former colonies were even then called, the States retained most of
their sovereignty, like independent nations bound together only by treaties.
There were no separate judicial or executive branches: only a Congress con-
sisting of a single house. Like the members of an ancient Greek league, each
State, without regard to size or population, was given only one vote in that
house. It soon became clear that the Confederation was without adequate
power to collect needed revenues or to enforce the rules its Congress
adopted. Farsighted men felt that a closer union was necessary if the States
were to be saved from foreign and domestic dangers. :
The result was the Constitutional Convention of 1787, called for “the
sole and express purpose of revising the Articles of Confederation. . . .”
When the Convention met in May, this modest purpose was soon aban-
doned for the greater challenge of creating a new and closer form of
government than was possible under the Confederation. Soon after the Con-
vention assembled, Edmund Randolph of Virginia presented a plan not
merely to amend the Articles of Confederation but to create an entirely new
National Government with a National Executive, National Judiciary, and a
National Legislature of two Houses, one house to be elected by “the peo-
ple,” the second house to be elected by the first.
The question of how the legislature should be constituted precipitated
the most bitter controversy of the Convention. One principle was upper-
most in the minds of many delegates: that, no matter where he lived, each
voter should have a voice equal to that of every other in electing members
of Congress. In support of this principle, George Mason of Virginia

“argued strongly for an election of the larger branch by the people.

It was to be the grand depository of the democratic principle of
the Govt.”

James Madison agreed, saying “If the power is not immediately derived from
the people, in proportion to their numbers, we may make a paper confeder-
acy, but that will be all”...
Some delegates opposed election by the people. The sharpest objection
arose out of the fear on the part of small States like Delaware that if popu-
lation were to be the only basis of representation the populous States like
Virginia would elect a large enough number of representatives to wield
 B | Voting Rights and the Reapportionment Revolution | 869

overwhelming power in the National Government. Arguing that the Con-

vention had no authority to depart from the plan of the Articles of Confed-
eration which gave. each State an equal vote in the National Congress,
William Paterson of New Jersey said, “If the sovereignty of the States is to
be maintained, the Representatives must be drawn immediately from the
States, not from the people: and we have no power to vary the idea of equal
sovereignty.” To this end he proposed a single legislative chamber in which
each State, as in the Confederation, was to have an equal vote. A number of
delegates supported this plan.
The delegates who wanted every man’s vote to count alike were sharp
in their criticism of giving each State, regardless of population, the same
voice in the National Legislature. Madison entreated the Convention “to re-
nounce a principle wch. was confessedly unjust,’ and Rufus King of Massa-
chusetts “was prepared for every event, rather than sit down under a Govt.
founded in a vicious principle of representation and which must be as short-
lived as it would be unjust.” 4
The dispute came near ending the Convention without a Constitution.
Both sides seemed for a time to be hopelessly obstinate. Some delegations
threatened to withdraw from the Convention if they did not get their way.
Seeing the controversy growing sharper and emotions rising, the wise and
highly respected Benjamin Franklin arose and pleaded with the delegates on
both sides to “part with some of their demands, in order that they may join
in some accommodating proposition.” At last those who supported represen-
tation of the people in both houses and those who supported it in neither
were brought together, some expressing the fear that if they did not recon-
cile their differences, “some foreign sword will probably do the work for us.”
The deadlock was finally broken when a majority of the States agreed to
what has been called the Great Compromise, based on a proposal which had
been repeatedly advanced by Roger Sherman and other delegates from Con-
necticut. It provided on the one hand that each State, including little
Delaware and Rhode Island, was to have two Senators. As a further guaran-
tee that these Senators would be considered state emissaries, they were to be
elected by the state legislatures, Art. I, Sec. 3, and it was specially provided in
ArticleV that no State should ever be deprived of its equal representation in
the Senate. The other side of the compromise was that, as provided in Art. I,
- Sec. 2, members of the House of Representatives should be chosen “by the
People of the several States” and should be “apportioned among the several
States . . . according to their respective Numbers.” While those who wanted
both houses to represent the people had yielded on the Senate, they had not
yielded on the House of Representatives. William Samuel Johnson of Con-
necticut had summed it up well: “in one branch the people, ought to be rep-
resented; in the other, the States.”
The debates at the Convention make at least one fact abundantly clear:
that when the delegates agreed that the House should represent “peo-
ple” they intended that in allocating Congressmen the number assigned
to each State should be determined solely by the number of the State’s
inhabitants. . . .
It would defeat the principle solemnly embodied in the Great Compro-
mise—equal representation in the House for equal numbers of people—for
us to hold that, within the States, legislatures may draw the lines of con-
870 | REPRESENTATIVE GOVERNMENT

gressional districts in such a way as to give some voters a greater voice in

choosing a Congressman than others. The House of Representatives, the
Convention agreed, was to represent the people as individuals, and on a basis
of complete equality for each voter. The delegates were quite aware of what
Madison called the “vicious representation” in Great Britain whereby “rotten
boroughs” with few inhabitants were represented in Parliament on or almost
on a par with cities of greater population. Wilson urged that people must be
represented as individuals, so that America would escape the evils of the
English system under which one man could send two members to Parlia-
ment to represent the borough of Old Sarum while London’s million people
sent but four. The delegates referred to rotten borough apportionments in
some of the state legislatures as the kind of objectionable governmental ac-
tion that the Constitution should not tolerate in the election of congres-
sional representatives. .. .
It is in the light of such history that we must construe Art. I, Sec. 2, of
the Constitution, which, carrying out the ideas of Madison and those of like
views, provides that Representatives shall be chosen “by the People of the
several States” and shall be “apportioned among the several States . . . accord-
ing to their respective Numbers.” It is not surprising that our Court has held
that this Article gives persons qualified to vote a constitutional right to vote
and to have their votes counted. United States v. Mosley, 238 U.S. 383, [(1915)].
Ex parte Yarbrough, 110 U.S. 651 [(1884)]. Not only can this right to vote not
be denied outright, it cannot, consistently with Article I, be destroyed by al-
teration of ballots, see United States v. Classic, 313 U.S. 299 [(1941)], or diluted
by stuffing of the ballot box, see United States v. Saylor, 322 U.S. 385 [(1944)].
No right is more precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens, we must
live. Other rights, even the most basic, are illusory if the right to vote is
undermined. Our Constitution leaves no room for classification of people in
a way that unnecessarily abridges this right. In urging the people to adopt the
Constitution, Madison said in No. 57 of The Federalist:

“Who are to be the electors of the Federal Representatives?

Not the rich more than the poor; not the learned more than the ig-
norant; not the haughty heirs of distinguished names, more than
the humble sons of obscure and unpropitious fortune. The electors
are to be the great body of the people of the United States... .”

Readers surely could have fairly taken this to mean, “one person, one vote.”
Cf. Gray v. Sanders... .
While it may not be possible to draw congressional districts with math-
ematical precision, that is no excuse for ignoring our Constitution’s plain
objective of making equal representation for equal numbers of people the
fundamental goal for the House of Representatives. That is the high standard
of justice and common sense which the Founders set for us.
Reversed and remanded.

L) Justice HARLAN, dissenting.

I had not expected to witness the day when the Supreme Court of the
United States would render a decision which casts grave doubt on the con-
 B | Voting Rights and the Reapportionment Revolution | 871

stitutionality of the composition of the House of Representatives. It is not

an exaggeration to say that such is the effect of today’s decision. The Court’s
holding that the Constitution requires States to select Representatives either
by elections at large or by elections in districts composed ‘“‘as nearly as is
practicable” of equal population places in jeopardy the seats of almost all the
members of the present House of Representatives. .. .
Although the Court finds necessity for its artificial construction of Arti-
cle I in the undoubted importance of the right to vote, that right is not
involved in this case. All of the appellants do vote. The Court’s talk about
“debasement” and “dilution” of the vote is a model of circular reasoning, in
which the premises of the argument feed on the conclusion. Moreover, by
focusing exclusively on numbers in disregard of the area and shape of a con-
gressional district as well as party affiliations within the district, the Court
deals in abstractions which will be recognized even by the politically un-
sophisticated to have little relevance to the realities of political life.
In any event, the very sentence’of Art. I, Sec. 2, on which the Court ex-
clusively relies confers the right to vote for Representatives only on those
whom the State has found qualified to vote for members of “the most nu-
merous Branch of the State Legislature.” So far as Article I is concerned, it is
within the State’s power to confer that right only on persons of wealth or of
a particular sex or, if the State chose, living in specified areas of the State.
Were Georgia to find the residents of the Fifth District unqualified to vote
for Representatives to the State House of Representatives, they could not
vote for Representatives to Congress, according to the express words of
Art. I, Sec. 2. Other provisions of the Constitution would, of course, be rel-
evant, but, so far as Art. I, Sec. 2, is concerned, the disqualification would be
within Georgia’s power. How can it be, then, that this very same sentence
prevents Georgia from apportioning its Representatives as it chooses? The
truth is that it does not.
The Court purports to find support for its position in the third para-
graph of Art.1, Sec. 2, which provides for the apportionment of Representa-
tives among the States. The appearance of support in that section derives
from the Court’s confusion of two issues: direct election of Representatives
within the States and the apportionment of Representatives among the
States. Those issues are distinct, and were separately treated in the Constitu-
tion. The fallacy of the Court’s reasoning in this regard is illustrated by its
slide, obscured by intervening discussion from the intention of the delegates
at the Philadelphia Convention “that in allocating Congressmen the number
assigned to each State should be determined solely by the number of the
State’s inhabitants,” to a “principle solemnly embodied in the Great Com-
promise—equal representation in the House for equal numbers of people.”
The delegates did have the former intention and made clear provision for it.
Although many, perhaps most, of them also believed generally—but as-
suredly not in the precise, formalistic way of the majority of the Court—
that within the States representation should be based on population, they did
not surreptitiously slip their belief into the Constitution in the phrase “by
the People,” to be discovered 175 years later like a Shakespearian anagram.
Far from supporting the Court, the apportionment of Representatives
among the States shows how blindly the Court has marched to its decision.
Representatives were to be apportioned among the States on the basis
872 | REPRESENTATIVE GOVERNMENT ee
ne ee eee

of free population plus three-fifths of the slave population. Since no slave

voted, the inclusion of three-fifths of their number in the basis of appor-
tionment gave the favored States representation far in excess of their voting
population. If, then, slaves were intended to be without representation, Arti-
cle I did exactly what the Court now says it prohibited: it “weighted” the
vote of voters in the slave States. Alternatively, it might have been thought
that Representatives elected by free men of a State would speak also for the
slaves. But since the slaves added to the representation only of their own
State, Representatives from the slave States could have been thought to speak
only for the slaves of their own States, indicating both that the Convention
believed it possible for a Representative elected by one group to speak for
another nonvoting group and that Representatives were in large degree still
thought of as speaking for the whole population of a State.
There is a further basis for demonstrating the hollowness of the Court's
assertion that Article I requires “one man’s vote in a congressional election
_.. to be worth as much as another’s.” Nothing that the Court does today
will disturb the fact that although in 1960 the population of an aver-
age congressional district was 410,481, the States of Alaska, Nevada, and
Wyoming each have a Representative in Congress, although their respective
populations are 226,167, 285,278, and 330,066. In entire disregard of pop-
ulation, Art. I, Sec. 2, guarantees each of these States and every other State
“at Least one Representative.” It is whimsical to assert in the face of this
guarantee that an absolute principle of “equal representation in the House
for equal numbers of people” is “solemnly embodied” in Article I. All that
there is is a provision which bases representation in the House, generally but
not entirely, on the population of the States. The provision for representa-
tion of each State in the House of Representatives is not a mere exception
to the principle framed by the majority; it shows that no such principle is to
be found.
Finally in this array of hurdles to its decision which the Court sur-
mounts only by knocking them down is Sec. 4 of Art. I which states simply:

“The Times, Places and Manner of holding Elections for Sena-

tors and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing Sena-
tors.” (Emphasis added.)

The delegates were well aware of the problem of “rotten boroughs,” as ma-
terial cited by the Court and hereafter makes plain. It cannot be supposed
that delegates to the Convention would have labored to establish a principle
of equal representation only to bury it, one would have thought beyond dis-
covery, in Sec. 2, and omit all mention of it from Sec. 4, which deals explic-
itly with the conduct of elections. Section 4 states without qualification that
the state legislatures shall prescribe regulations for the conduct of elections
for Representatives and, equally without qualification, that Congress may
make or alter such regulations. There is nothing to indicate any limitation
whatsoever on this grant of plenary initial and supervisory power. The
Court’s holding is, of course, derogatory not only of the power of the state
legislatures but also of the power of Congress, both theoretically and as they
 B | Voting Rights and the Reapportionment Revolution | 873

have actually exercised their power. It freezes upon both, for no reason other
than that it seems wise to the majority of the present Court, a particular po-
litical theory for the-selection of Representatives. . ..
The upshot of all this is that the language of Art. I, Secs. 2 and 4, the sur-
rounding text, and the relevant history are all in strong and consistent direct
contradiction of the Court’s holding. The constitutional scheme vests in the
States plenary power to regulate the conduct of elections for Representatives,
and, in order to protect the Federal Government, provides for congressional
supervision of the States’ exercise of their power. Within this scheme, the ap-
pellants do not have the right which they assert, in the absence of provision
for equal districts by the Georgia Legislature or the Congress. The constitu-
tional right which the Court creates is manufactured out of whole cloth....
Believing that the complaint fails to disclose a constitutional claim, I
would affirm the judgment below dismissing the complaint.

“1 Justice STEWART disagreed with Justice HARLAN on the justiciability

of the controversy, but otherwise joined his opinion.

Reynolds v. Sims
377 USS. 533, 84 S.CT. 1362 (1964)

M. O. Sims and several other voters sued state and party officials in
federal district court, alleging that Alabama’s legislature was malappor-
tioned and denied them an equal voting right. Although the state’s con-
stitution provided for a reapportionment every ten years, none had
been undertaken since 1901. As a result, about one-fourth of the state’s
population could elect a majority of the state senators and representa-
tives. The ratios of people to legislators varied by as much as fourteen
to one in senate districts and up to sixteen to one in the lower house.
The district court judge agreed that Sims’s rights under the Fourteenth
Amendment equal protection clause were violated and ordered the
state to undertake reapportionment plans. Alabama’s legislature came up
with two plans but neither was based strictly on population. And the
district court declared them unconstitutional. At that, B. A. Reynolds
and several other state officials appealed to the Supreme Court.
The Court’s decision was eight to one, and the majority’s opinion
was announced by Chief Justice Warren. Justices Clark and Stewart
concurred; Justice Harlan dissented.

(1 Chief Justie WARREN delivers the opinion of the Court.

A predominant consideration in determining whether a State’s legisla-
tive apportionment scheme constitutes an invidious discrimination violative
874 | REPRESENTATIVE GOVERNMENT

of rights asserted under the Equal Protection Clause is that the rights
allegedly impaired are individual and personal in nature. As stated by the
Court in United States v. Bathgate, 246 U.S. 220 [(1918)], “[t]he right to vote
is personal. . . ”” While the result of a court decision ina state legislative ap-
portionment controversy may be to require the restructuring of the geo-
graphical distribution of seats in a state legislature, the judicial focus must be
concentrated upon ascertaining whether there has been any discrimination
against certain of the State’s citizens which constitutes an impermissible im-
pairment of their constitutionally protected right to vote. Like Skinner v.
Oklahoma, 316 U.S. 535 [(1942)], such a case “touches a sensitive and impor-
tant area of human rights,’ and “involves one of the basic civil rights of
man,” presenting questions of alleged “invidious discriminations . . . against
groups or types of individuals in violation of the constitutional guaranty of
just and equal laws.” Undoubtedly, the right of suffrage is a fundamental
matter in a free and democratic society. Especially since the right to exercise
the franchise in a free and unimpaired manner is preservative of other basic
civil and political rights, any alleged infringement of the right of citizens to
vote must be carefully and meticulously scrutinized. .. .
Legislators represent people, not trees or acres. Legislators are elected by
voters, not farms or cities or economic interests. As long as ours is a repre-
sentative form of government, and our legislatures are those instruments of
government elected directly by and directly representative of the people, the
right to elect legislators in a free and unimpaired fashion is a bedrock of our
political system. It could hardly be gainsaid that a constitutional claim had
been asserted by an allegation that certain otherwise qualified voters had
been entirely prohibited from voting for members of their state legislature.
And, if a State should provide that the votes of citizens in one part of the
State should be given two times, or five times, or 10 times the weight of
votes of citizens in another part of the State, it could hardly be contended
that the right to vote of those residing in the disfavored areas had not been
effectively diluted. It would appear extraordinary to suggest that a State
could be constitutionally permitted to enact a law providing that certain of
the State’s voters could vote two, five, or 10 times for their legislative repre-
sentatives, while voters living elsewhere could vote only once. And it is
inconceivable that a state law to the effect that, in counting votes for legisla-
tors, the votes of citizens in one part of the State would be multiplied by
two, five, or 10, while the votes of persons in another area would be counted
only at face value, could be constitutionally sustainable. Of course, the effect
of state legislative districting schemes which give the same number of repre-
sentatives to unequal numbers of constituents is identical. . . .
Logically, in a society ostensibly grounded on representative govern-
ment, it would seem reasonable that a majority of the people of a State
could elect a majority of that State’s legislators. To conclude differently, and
to sanction minority control of state legislative bodies, would appear to deny
majority rights in a way that far surpasses any possible denial of minority
rights that might otherwise be thought to result. Since legislatures are re-
sponsible for enacting laws by which all citizens are to be governed, they
should be bodies which are collectively responsive to the popular will. And
the concept of equal protection has been traditionally viewed as requiring
the uniform treatment of persons standing in the same relation to the
 B | Voting Rights and the Reapportionment Revolution | 875

governmental action questioned or challenged. With respect to the allocation

of legislative representation, all voters, as citizens of a State, stand in the same
relation regardless of where they live. Any suggested criteria for the differ-
entiation of citizens are insufficient to justify any discrimination, as to the
weight of their votes, unless relevant to the permissible purposes of legisla-
tive apportionment. Since the achieving of fair and effective representation
for all citizens is concededly the basic aim of legislative apportionment, we
conclude that the Equal Protection Clause guarantees the opportunity for
equal participation by all voters in the election of state legislators. Diluting
the weight of votes because of place of residence impairs basic constitutional
rights under the Fourteenth Amendment. ...
We are told that the matter of apportioning representation ina state leg-
islature is a complex and many-faceted one. We are advised that States can
rationally consider factors other than population in apportioning legislative
representation. We are admonished not to restrict the power of the States to
impose differing views as to political philosophy on their citizens. We are
cautioned about the dangers of entering into political thickets and mathe-
matical quagmires. Our answer is this: a denial of constitutionally protected
rights demands judicial protection; our oath and our office require no less of
us... .To the extent that a citizen’s right to vote is debased, he is that much
less a citizen. The fact that an individual lives here or there is not a legitimate
reason for overweighting or diluting the efficacy of his vote. The complex-
ions of societies and civilizations change, often with amazing rapidity. A
nation once primarily rural in character becomes predominantly urban.
Representation schemes once fair and equitable become archaic and out-
dated. But the basic principle of representative government remains, and
must remain, unchanged—the weight of a citizen’s vote cannot be made to
depend on where he lives... .
We hold that, as a basic constitutional standard, the Equal Protection
Clause requires that the seats in both houses of a bicameral state legislature
must be apportioned on a population basis. Simply stated, an individual’s
right to vote for state legislators is unconstitutionally impaired when its
weight is in a substantial fashion diluted when compared with votes of citi-
zens living in other parts of the State. ...
Much has been written since our decision in Baker v. Carr about the ap-
plicability of the so-called federal analogy to state legislative apportionment
arrangements. After considering the matter, the court below concluded that
no conceivable analogy could be drawn between the federal scheme and the
apportionment of seats in the Alabama Legislature under the proposed con-
stitutional amendment. We agree with the District Court, and find the fed-
eral analogy inapposite and irrelevant to state legislative districting schemes.
Attempted reliance on the federal analogy appears often to be little more
than an after-the-fact rationalization offered in defense of maladjusted state
apportionment arrangements. The original constitutions of 36 of our States
provided that representation in both houses of the state legislatures would be
based completely, or predominantly, on population. And the Founding Fa-
thers clearly had no intention of establishing a pattern or model for the ap-
portionment of seats in state legislatures when the system of representation
in the Federal Congress was adopted. Demonstrative of this is the fact that
the Northwest Ordinance, adopted in the same year, 1787, as the Federal
876 | REPRESENTATIVE GOVERNMENT ee

Constitution, provided for the apportionment of seats in territorial legisla-

tures solely on the basis of population.
The system of representation in the two Houses of the Federal Con-
gress is one ingrained in our Constitution, as part of the law of the land. It
is one conceived out of compromise and concession indispensable to the
establishment of our federal republic. Arising from unique historical cir-
cumstances, it is based on the consideration that in establishing our type of
federalism a group of formerly independent States bound themselves to-
gether under one national government. Admittedly, the original 13 States
surrendered some of their sovereignty in agreeing to join together “to form
a more perfect Union.” But at the heart of our constitutional system re-
mains the concept of separate and distinct governmental entities which
have delegated some, but not all, of their formerly held powers to the single
national government... . é
Political subdivisions of States—counties, cities, or whatever—never
were and never have been considered as sovereign entities. Rather, they have
been traditionally regarded as subordinate governmental instrumentalities
created by the State to assist in the carrying out of state governmental func-
tions. .. . The relationship of the States to the Federal Government could
hardly be less analogous. . . .
Since we find the so-called federal analogy inapposite to a consideration
of the constitutional validity of state legislative apportionment schemes, we
necessarily hold that the Equal Protection Clause requires both houses of a
state legislature to be apportioned on a population basis. The right ofa citi-
zen to equal representation and to have his vote weighted equally with those
of all other citizens in the election of members of one house of a bicameral
state legislature would amount to little if States could effectively submerge
the equal-population principle in the apportionment of seats in the other
howsene
By holding that as a federal constitutional requisite both houses of a
state legislature must be apportioned on a population basis, we mean that the
Equal Protection Clause requires that a State make an honest and good faith
effort to construct districts, in both houses of its legislature, as nearly of
equal population as is practicable. We realize that it is a practical impossibility
to arrange legislative districts so that each one has an identical number of
residents, or citizens, or voters. Mathematical exactness or precision is hardly
a workable constitutional requirement.
In Wesberry v. Sanders, the Court stated that congressional representation
must be based on population as nearly as is practicable. In implementing the
basic constitutional principle of representative government as enunciated by
the Court in Wesberry—equality of population among districts—some dis-
tinctions may well be made between congressional and state legislative repre-
sentation. Since, almost invariably, there is a significantly larger number of
seats in state legislative bodies to be distributed within a State than congres-
sional seats, it may be feasible to use political subdivision lines to a greater
extent in establishing state legislative districts than in congressional district-
ing while still affording adequate representation to all parts of the State. To
do so would be constitutionally valid, so long as the resulting apportionment
was one based substantially on population and the equal-population princi-
ple was not diluted in any significant way. .. .
 B | Voting Rights and the Reapportionment Revolution | 877

So long as the divergences from a strict population standard are based on

legitimate considerations incident to the effectuation of a rational state pol-
icy, some deviations from the equal-population principle are constitutionally
permissible with respect to the apportionment of seats in either or both of
the two houses of a bicameral state legislature. But neither history alone, nor
economic or other sorts of group interests, are permissible factors in at-
tempting to justify disparities from population-based representation. Citi-
zens, not history or economic interests, cast votes. Considerations of area
alone provide an insufficient justification for deviations from the equal-
population principle. Again, people, not land or trees or pastures, vote. Mod-
ern developments and improvements in transportation and communications
make rather hollow, in the mid-1960’s, most claims that deviations from
population-based representation can validly be based solely on geographical
considerations. Arguments for allowing such deviations in order to insure ef-
fective representation for sparsely settled areas and to prevent legislative dis-
tricts from becoming so large that the availability of access of citizens to
their representatives is impaired are today, for the most part, unconvincing.
A consideration that appears to be of more substance in justifying some
deviations from population-based representation in state legislatures is that of
insuring some voice to political subdivisions, as political subdivisions. Several
factors make more than insubstantial claims that a State can rationally con-
sider according political subdivisions some independent representation in at
least one body of the state legislature, as long as the basic standard of equal-
ity of population among districts is maintained. Local governmental entities
are frequently charged with various responsibilities incident to the operation
of state government. In many States much of the legislature’s activity in-
volves the enactment of so-called local legislation, directed only to the con-
cerns of particular political subdivisions. And a State may legitimately desire
to construct districts along political subdivision lines to deter the possibilities
of gerrymandering. However, permitting deviations from population-based
representation does not mean that each local governmental unit or political
subdivision can be given separate representation, regardless of population.
Carried too far, a scheme of giving at least one seat in one house to each po-
litical subdivision (for example, to each county) could easily result, in many
States, in a total subversion of the equal-population principle in that legisla-
tive body. This would be especially true in a State where the number of
counties is large and many of them are sparsely populated, and the number
of seats in the legislative body being apportioned does not significantly ex-
ceed the number of counties. Such a result, we conclude, would be constitu-
tionally impermissible. And careful judicial scrutiny must of course be given,
in evaluating state apportionment schemes, to the character as well as the de-
gree of deviations from astrict population basis. But if, even as a result of a
clearly rational state policy of according some legislative representation to
political subdivisions, population is submerged as the controlling considera-
tion in the apportionment of seats in the particular legislative body, then the
right of all of the State’s citizens to cast an effective and adequately weighted
vote would be unconstitutionally impaired... .
Affirmed and remanded.

1) Justice HARLAN, dissenting.

878 | REPRESENTATIVE GOVERNMENT

In my judgment, today’s decisions are refuted by the language of the

Amendment which they construe and by the inference fairly to be drawn
from subsequently enacted Amendments. They are unequivocally refuted by
history and by consistent theory and practice from the time of the adoption
of the Fourteenth Amendment until today.
The Court’s elaboration of its new “constitutional” doctrine indicates
how far—and how unwisely—it has strayed from the appropriate bounds of
its authority. The consequence of today’s decision is that in all but the hand-
ful of States which may already satisfy the new requirements the local Dis-
trict Court or, it may be, the state courts, are given blanket authority and the
constitutional duty to supervise apportionment of the State Legislatures. It is
difficult to imagine a more intolerable and inappropriate interference by the
judiciary with the independent legislatures of the States... .
Although the Court—necessarily, as I believe—provides only gener-
alities in elaboration of its main thesis, its opinion nevertheless fully
demonstrates how far removed these problems are from fields of judicial
competence. Recognizing that “indiscriminate districting” is an invitation to
“partisan gerrymandering,” the Court nevertheless excludes virtually every
basis for the formation of electoral districts other than “indiscriminate dis-
tricting.” In one or another of today’s opinions, the Court declares it un-
constitutional for a State to give effective consideration to any of the follow-
ing in establishing legislative districts:
(1) history;
(2) “economic or other sorts of group interests”’;
(S)tarea;
(4) geographical considerations;
(5) a desire “to insure effective representation for sparsely settled areas”;
bat6) “availability of access of citizens to their representatives”;
(7) theories of bicameralism (except those approved by the Court);
(8) occupation;
(9) “an attempt to balance urban and rural power”;
(10) the preference of a majority of voters in the State.
So far as presently appears, the only factor which a State may consider,
apart from numbers, is political subdivisions. But even “a clearly rational state
policy” recognizing this factor is unconstitutional if “population is sub-
merged as the controlling consideration. ...”
I know of no principle of logic or practical or theoretical politics, still
less any constitutional principle, which establishes all or any of these exclu-
sions. Certain it is that the Court’s opinion does not establish them. So far
as the Court says anything at all on this score, it says only that “legislators
represent people, not trees or acres”; that “citizens, not history or economic
interests, cast votes,” that “people, not land or trees or pastures, vote.” All this
may be conceded. But it is surely equally obvious, and, in the context of
elections, more meaningful to note that people are not ciphers and that leg-
islators can represent their electors only by speaking for their interests—
economic, social, political—many of which do reflect the place where the
electors live. The Court does not establish, or indeed even attempt to make
a case for the proposition that conflicting interests within a State can only
be adjusted by disregarding them when voters are grouped for purposes of
representation. ...
 B | Voting Rights and the Reapportionment Revolution | 879

These decisions also cut deeply into the fabric of our federalism. What
must follow from them may eventually appear to be the product of state leg-
islatures. Nevertheless, no thinking person can fail to recognize that the
aftermath of these cases, however desirable it may be thought in itself, will
have been achieved at the cost of a radical alteration in the relationship be-
tween the States and the Federal Government, more particularly the Federal
Judiciary. Only one who has an overbearing impatience with the federal sys-
tem and its political processes will believe that that cost was not too high or
was inevitable.
Finally, these decisions give support to a current mistaken view of the
Constitution and the constitutional function of this Court. This view, in a
nutshell, is that every major social ill in this country can find its cure in some
constitutional “principle,” and that this Court should “take the lead” in pro-
moting reform when other branches of government fail to act. The Constitu-
tion is not a panacea for every blot upon the public welfare, nor should this
Court, ordained as a judicial body,-be thought of as a general haven for re-
form movements.
The Constitution is an instrument of government, funda-
mental to which is the premise that in a diffusion of governmental authority
lies the greatest promise that this Nation will realize liberty for all its citizens.
This Court, limited in function in accordance with that premise, does not
serve its high purpose when it exceeds its authority, even to satisfy justified
impatience with the slow workings of the political process. For when, in the
name of constitutional interpretation, the Court adds something to the Con-
stitution that was deliberately excluded from it, the Court in reality substitutes
its view of what should be so for the amending process. . . .

Vieth v. Jubelirer
541 USS. 267, 124 S.CT. 1769 (2004)

After the 2000 census Pennsylvania lost two seats in the House of Rep-
resentatives, and the Republican-controlled legislature redrew the con-
gressional district lines in ways that disadvantaged Democratic
candidates. Three Democrats—Richard Vieth, Norman Jean Vieth, and
Susan Furey—challenged the constitutionality of that political gerry-
mander as a violation of the principle of one person, one vote. The
Supreme Court held, in Davis v. Bandemer, 478 U.S. 109 (1986), that
political gerrymandering controversies are justiciable but provided no
standard for adjudicating such disputes. Accordingly, the three-judge
district court dismissed Vieth’s claim. And an appeal was made to the
Supreme Court.
The lower court was affirmed by a vote of five to four. Justice
Scalia delivered the opinion for the Court, which was joined by Chief
Justice Kehnquist and Justices O’Connor and Thomas. They would
have overruled Davis v. Bandemer and ruled that political gerrymander-
880 | REPRESENTATIVE GOVERNMENT

ing controversies are nonjusticiable. In a concurring opinion, however,

Justice Kennedy agreed with the result but declined to overrule Davis
and held out the possibility of developing a standard for adjudicating
the constitutionality of political gerrymanders. Dissenting opinions
were filed by Justice Souter, which Justice Ginsburg joined; and Justices
Stevens and Breyer.

Justice SCALIA announced the judgment of the Court and delivered an

opinion, in which THE CHIEF JUSTICE, Justice O.;CONNOR, and Jus-
tice THOMAS join.
In Davis v. Bandemer (1986), this Court held that political gerrymander-
ing claims are justiciable, but could not agree upon a standard to adjudicate
them. The present appeal presents the questions whether our decision in
Bandemer was in error, and, if not, what the standard should be... .
Political gerrymanders are not new to the American scene. One scholar
traces them back to the Colony of Pennsylvania at the beginning of the
18th century, where several counties conspired to minimize the political
power of the city of Philadelphia by refusing to allow it to merge or expand
into surrounding jurisdictions, and denying it additional representatives. The
political gerrymander remained alive and well (though not yet known by
that name) at the time of the framing.
It is significant that the Framers provided a remedy for such practices in
the Constitution. Article 1, Sec. 4, while leaving in state legislatures the ini-
tial power to draw districts for federal elections, permitted Congress to
“make or alter” those districts if it wished... .
The power bestowed on Congress to regulate elections, and in particu-
lar to restrain the practice of political gerrymandering, has not lain dormant.
In the Apportionment Act of 1842, Congress provided that Representatives
must be elected from single-member districts “composed of contiguous ter-
ritory.’ Congress again imposed these requirements in the Apportionment
Act of 1862, and in 1872 further required that districts “contai[n] as nearly as
practicable an equal number of inhabitants.” In the Apportionment Act of
1901, Congress imposed a compactness requirement. The requirements of
contiguity, compactness, and equality of population were repeated in the
1911 apportionment legislation, but were not thereafter continued. Today,
only the single-member-district-requirement remains. Recent history, how-
ever, attests to Congress's awareness of the sort of districting practices appel-
lants protest, and of its power under Article I, Sec. 4, to control them. Since
1980, no fewer than five bills have been introduced to regulate Beh
mandering in congressional districting.
Eighteen years ago, we held that the Equal Protection Clause grants
judges the power—and duty—to control political gerrymandering, see Davis
v. Bandemer (1986). It is to consideration of this precedent that we now turn.
As CHIEF JUSTICE MARSHALL proclaimed two centuries ago, “i]t
is emphatically the province and duty of the judicial department to say what
the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, how-
ever, the law is that the judicial department has no business entertaining the
claim of unlawfulness—because the question is entrusted to one of the polit-
 B | Voting Rights and the Reapportionment Revolution | 881

ical branches or involves no judicially enforceable rights. See, e.g., Nixon v.

United States, 506 U.S. 224 (1993) (challenge to procedures used in Senate
impeachment proceedings). .. .
“The judicial Power” created by Article III, Sec. 1, of the Constitution is
not whatever judges choose to do, or even whatever Congress chooses to as-
sign them, see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). It is the
power to act in the manner traditional for English and American courts. One
of the most obvious limitations imposed by that requirement is that judicial
action must be governed by standard, by rule. Laws promulgated by the Leg-
islative Branch can be inconsistent, illogical, and ad hoc; law pronounced by
the courts must be principled, rational, and based upon reasoned distinctions.
Over the dissent of three Justices, the Court held in Davis v. Bandemer
that, since it was “not persuaded that there are no judicially discernible and
manageable standards by which political gerrymander cases are to be de-
cided” such cases were justiciable. The clumsy shifting of the burden of proof
for the premise (the Court was “riot persuaded” that standards do not exist,
rather than “persuaded” that they do) was necessitated by the uncomfortable
fact that the six-Justice majority could not discern what the judicially dis-
cernable standards might be... . The lower courts have lived with that assur-
ance of a standard (or more precisely, lack of assurance that there is
no standard), coupled with that inability to specify a standard, for the past
18 years. In that time, they have considered numerous political gerrymander-
ing claims; this Court has never revisited the unanswered question of what
standard governs... .
Eighteen years of judicial effort with virtually nothing to show for it
justify us in revisiting the question whether the standard promised by Bande-
mer exists. As the following discussion reveals, no judicially discernible and
manageable standards for adjudicating political gerrymandering claims have
emerged. Lacking them, we must conclude that political gerrymandering
claims are nonjusticiable and that Bandemer was wrongly decided.
We begin our review of possible standards with that proposed by Justice
WHITES plurality opinion in Bandemer because, as the narrowest ground for
our decision in that case, it has been the standard employed by the lower
courts. The plurality concluded that a political gerrymandering claim could
succeed only where plaintiffs showed “both intentional discrimination
against an identifiable political group and an actual discriminatory effect on
that group.” As to the intent element, the plurality acknowledged that “[a]s
long as redistricting is done byalegislature, it should not be very difficult to
prove that the likely political consequences of the reapportionment were in-
tended.” However, the effects prong was significantly harder to satisfy. Relief
could not be based merely upon the fact that a group of persons banded to-
gether for political purposes had failed to achieve representation commensu-
rate with its numbers, or that the apportionment scheme made its winning
of elections more difficult. Rather, it would have to be shown that, taking
‘ into account a variety of historic factors and projected election results, the
group had been “denied its chance to effectively influence the political
process” as a whole, which could be achieved even without electing a candi-
date. It would not be enough to establish, for example, that Democrats had
been “placed in a district with a supermajority of other Democratic voters”
or that the district “departs from pre-existing political boundaries.” Rather,
882 | REPRESENTATIVE GOVERNMENT

in a challenge to an individual district the inquiry would focus “on the op-
portunity of members of the group to participate in party deliberations in
the slating and nomination of candidates, their opportunity to register and
vote, and hence their chance to directly influence the election returns and to
secure the attention of the winning candidate.” A statewide challenge, by
contrast, would involve an analysis of “the voters’ direct or indirect influence
on the elections of the state legislature as a whole.” With what has proved to
be a gross understatement, the plurality acknowledged this was “of necessity
a difficult inquiry.” .. .
Because this standard was misguided when proposed, has not been im-
proved in subsequent application, and is not even defended before us today
by the appellants, we decline to affirm it as a constitutional requirement. .. .
Our one-person, one-vote cases, see Reynolds v. Sims, 377 U.S. 533
(1964); Wesberry v. Sanders, 376 U.S. 1 (1964), have no bearing upon this ques-
tion, neither in principle nor in practicality. Not in principle, because to say
that each individual must have an equal say in the selection of representatives,
and hence that a majority of individuals must have a majority say, is not at all
to say that each discernable group, whether farmers or urban dwellers or po-
litical parties, must have representation equivalent to its numbers. And not in
practicality, because the easily administrable standard of population equality
adopted by Wesberry and Reynolds enables judges to decide whether a viola-
tion has occurred (and to remedy it) essentially on the basis of three readily
determined factors—where the plaintiff lives, how many voters are in his dis-
trict, and how many voters are in other districts; whereas requiring judges to
decide whether a districting system will produce a statewide majority for a
majority party casts them forth upon a sea of imponderables, and asks them to
make determinations that not even election experts can agree upon....
We turn next to consideration of the standards proposed by today’s dis-
senters. ...
Justice STEVENS would . .. require courts to consider political gerry-
mandering challenges at the individual-district level. Much of his dissent is
addressed to the incompatibility of severe partisan gerrymanders with demo-
cratic principles. We do not disagree with that judgment, any more than we
disagree with the judgment that it would be unconstitutional for the Senate
to employ, in impeachment proceedings, procedures that are incompatible
with its obligation to “try” impeachments. See Nixon v. United States (1993).
The issue we have discussed is not whether severe partisan gerrymanders vi-
olate the Constitution, but whether it is for the courts to say when a viola-
tion has occurred, and to design a remedy. On that point, Justice STEVENS’s
dissent is less helpful, saying, essentially, that if we can do it in the racial
gerrymandering context we can do it here. ...
Justice SOUTER recognizes that thére is no existing workable standard
for adjudicating such claims. He proposes a “fresh start,’ a newly constructed
standard loosely based in form on our Title VII cases, and complete with a
five-step prima facie test sewn together from parts of, among other things,
our Voting Rights Act jurisprudence, law review articles, and apportionment
cases. Even if these self-styled “clues” to unconstitutionality could be man-
ageably applied, which we doubt, there is no reason to think they would de-
tect the constitutional crime which Justice SOUTER is investigating—an
“extremity of unfairness” in partisan competition.
 B | Voting Rights and the Reapportionment Revolution | 883

Under Justice SOUTER’s proposed standard, in order to challenge a

particular district, a plaintiff must show (1) that he is a member of a “cohe-
sive political group”; (2) “that the district of his residence .. . paid little or no
heed” to traditional districting principles; (3) that there were “specific corre-
lations between the district’s deviations from traditional districting principles
and the distribution of the population of his group”; (4) that a hypothetical
district exists which includes the plaintiff's residence, remedies the packing
or cracking of the plaintift’s group, and deviates less from traditional district-
ing principles; and (5) that “the defendants acted intentionally to manipulate
the shape of the district in order to pack or crack his group.’ When those
showings have been made, the burden would shift to the defendants to jus-
tify the district “by reference to objectives other than naked partisan advan-
tage.”
While this five-part test seems eminently scientific, upon analysis one
finds that each of the last ‘four steps requires a quantifying judgment that is
unguided and ill suited to the devélopment of judicial standards: How much
disregard of traditional districting principles? How many correlations be-
tween deviations and distribution? How much remedying of packing or
cracking by the hypothetical district? How many legislators must have had
the intent to pack and crack—and how efficacious must that intent have
been (must it have been, for example, a sine qua non cause of the districting,
or a predominant cause)? ... What is a lower court to do when, as will often
be the case, the district adheres to some traditional criteria but not others?
Justice SOUTER’s only response to this question is to evade it: “It is not
necessary now to say exactly how a district court would balance a good
showing on one of these indices against a poor showing on another, for
that sort of detail is best worked out case by case.” But the devil lurks pre-
cisely in such detail. The central problem is determining when political
gerrymandering has gone too far. It does not solve that problem to break
down the original unanswerable question (How much political motivation
and effect is too much?) into four more discrete but equally unanswerable
questions.
Justice SOUTER’s proposal is doomed to failure for a more basic rea-
son: No test—yea, not even a five-part test—can possibly be successful unless
one knows what he is testing for. Justice SOUTER .. . vaguely describes the
harm he is concerned with as vote dilution, a term which usually implies
some actual effect on the weight of a vote. But no element of his test looks
to the effect of the gerrymander on the electoral success, the electoral op-
portunity, or even the political influence, of the plaintiff group. We do not
know the precise constitutional deprivation his test is designed to identify
and prevent....
We agree with much of Justice BREYER’s dissenting opinion, which
convincingly demonstrates that “political considerations will likely play an
important, and proper, role in the drawing of district boundaries.” This places
~ Justice BREYER, like the other dissenters, in the difficult position of draw-
ing the line between good politics and bad politics. Unlike them, he would
tackle this problem at the statewide level.
The criterion Justice BREYER proposes is nothing more precise than
“the unj.stified use of political factors to entrench a minority in power.”
While he invokes in passing the Equal Protection Clause, it should be clear
884 | REPRESENTATIVE GOVERNMENT

to any reader that what constitutes unjustified entrenchment depends on his

own theory of “effective government.” While one must agree with Justice
BREYER’ incredibly abstract starting point that our Constitution sought to
create a “basically democratic” form of government, that is a long and im-
passable distance away from the conclusion that the judiciary may assess
whether a group (somehow defined) has achieved a level of political power
(somehow defined) commensurate with that to which they would be enti-
tled absent unjustified political machinations (whatever that means).
Justice BREYER provides no real guidance for the journey. Despite his
promise to do so, he never tells us what he is testing for, beyond the unhelp-
ful “unjustified entrenchment.’ .. .
Justice KENNEDY recognizes that we have “demonstrat[ed] the short-
comings of the other standards that have been considered to date.” He ac-
knowledges, moreover, that we “lack . . . comprehensive and neutral
principles for drawing electoral boundaries,” and that there is an “absence of
rules to limit and confine judicial intervention.” From these premises, one
might think that Justice KENNEDY would reach the conclusion that polit-
ical gerrymandering claims are nonjusticiable. Instead, however, he concludes
that courts should continue to adjudicate such claims because a standard may
one day be discovered. ...
Justice KENNEDY asserts that to declare nonjusticiability would be in-
cautious. Our rush to such a holding after a mere 18 years of fruitless litiga-
tion “contrasts starkly” he says, “with the more patient approach” that this
Court has taken in the past. We think not....
We conclude that neither Article I, Sec. 2, nor the Equal Protection
Clause, nor (what appellants only fleetingly invoke) Article I, Sec. 4, provides
a judicially enforceable limit on the political considerations that the States
and Congress may take into account when districting.
~ Considerations of stare decisis do not compel us to allow Bandemer to
stand. .. . Eighteen years of essentially pointless litigation have persuaded us
that Bandemer is incapable of principled application. We would therefore
overrule that case, and decline to adjudicate these political gerrymandering
claims. The judgment of the District Court is affirmed.

Justice KENNEDY, concurring in the judgment.

I would not foreclose all possibility of judicial relief if some limited and
precise rationale were found to correct an established violation of the Con-
stitution in some redistricting cases... .
The object of districting is to establish “fair and effective representation
for all citizens.” Reynolds v. Sims, 377 U.S. 533 (1964). At first it might seem
that courts could determine, by the exercise of their own judgment, whether
political classifications are related to this object or instead burden representa-
tional rights. The lack, however, of any agreed upon model of fair and effec-
tive representation makes this analysis difficult to pursue. . . .
It is not in our tradition to foreclose the judicial process from the at-
tempt to define standards and remedies where it is alleged that a constitu-
tional right is burdened or denied. Nor is it alien to the Judiciary to draw or
approve election district lines. Courts, after all, already do so in many in-
stances. A determination by the Court to deny all hopes of intervention
 B | Voting Rights and the Reapportionment Revolution | 885

could erode confidence in the courts as much as would a premature decision

to intervene.
Our willingness to enter the political thicket of the apportionment
process with respect to one-person, one-vote claims makes it particularly dif-
ficult to justify a categorical refusal to entertain claims against this other type
of gerrymandering. The plurality’s conclusion that absent an “easily adminis-
trable standard,” the appellants’ claim must be nonjusticiable contrasts starkly
with the more patient approach of Baker v. Carr (1962), not to mention the
controlling precedent on the question of justiciability of Davis v. Bandemer,
the case the plurality would overrule. .. .
Even putting Baker to the side—and so assuming that the existence of a
workable standard for measuring a gerrymander’s burden on representational
rights distinguishes one-person, one-vote claims from partisan gerrymander-
ing claims for justiciability purposes—I would still reject the plurality’s con-
clusions as to nonjusticiability. Relying on the distinction between a claim
having or not having a workablé standard of that sort involves a difficult
proof: proof of a categorical negative. That is, the different treatment of
claims otherwise so alike hinges entirely on proof that no standard could ex-
ist. This is a difficult proposition to establish, for proving a negative is a chal-
lenge in any context.
That no such standard has emerged in this case should not be taken to
prove that none will emerge in the future. Where important rights are in-
volved, the impossibility of full analytical satisfaction is reason to err on the
side of caution. Allegations of unconstitutional bias in apportionment are most
serious claims, for we have long believed that “the right to vote” is one of
“those political processes ordinarily to be relied upon to protect minorities.” ...
If suitable standards with which to measure the burden a gerrymander
imposes on representational rights did emerge, hindsight would show that
the Court prematurely abandoned the field. That is a risk the Court should
not takers".

Justice STEVENS, dissenting.

The central question presented by this case is whether political gerry-
mandering claims are justiciable. Although our reasons for coming to this
conclusion differ,-five Members of the Court are convinced that the plural-
ity’s answer to that question is erroneous. Moreover, as is apparent from our
separate writings today, we share the view that, even if these appellants are
not entitled to prevail, it would be contrary to precedent and profoundly un-
wise to foreclose all judicial review of similar claims that might be advanced
in the future. That we presently have somewhat differing views—concerning
both the precedential value of some of our recent cases and the standard that
should be applied in future cases—should not obscure the fact that the areas
of agreement set forth in the separate opinions are of far greater significance.
The concept of equal justice under law requires the State to govern im-
partially. See Romer v. Evans, 517 U.S. 620 (1996)... . In my view, when
partisanship is the legislature’s sole motivation—when any pretense of neu-
trality is.forsaken unabashedly and all traditional districting criteria are sub-
verted for partisan advantage—the governing body cannot be said to have
acted impartially.
886 | REPRESENTATIVE GOVERNMENT

Although we reaffirm the central holding of the Court in Davis v. Ban-

demer, we have not reached agreement on the standard that should govern
partisan gerrymandering claims. I would decide this case on a narrow
ground. ...
State action that discriminates against a political minority for the sole
and unadorned purpose of maximizing the power of the majority plainly vi-
olates the decisionmaker’s duty to remain impartial. Gerrymanders necessar-
ily rest-on legislators’ predictions that “members of certain identifiable
groups ... will vote in the same way.’ Mobile v. Bolden, 446 U.S. 55 (1980).“In
the line-drawing process, racial, religious, ethnic, and economic gerry-
manders are all species of political gerrymanders.’ Thus, the critical issue in
both racial and political gerrymandering cases is the same: whether a single
non-neutral criterion controlled the districting process to such an extent that
the Constitution was offended. This Court has treated that precise question
as justiciable in Gomillion [v. Lightfoot, 364 U.S. 339 (1960)] and in the Shaw
[v. Reno, 509 U.S. 630 (1993)] line of cases, and today’s plurality has supplied
no persuasive reason for distinguishing the justiciability of partisan gerry-
manders. Those cases confirm and reinforce the holding that partisan gerry-
mandering claims are justiciable. . . .
[While political considerations may properly influence the decisions of
our elected officials, when such decisions disadvantage members of a minor-
ity group—whether the minority is defined by its members’ race, religion, or
political affiliation—they must rest on a neutral predicate. Thus, the Equal
Protection Clause implements a duty to govern impartially that requires, at
the very least, that every decision by the sovereign serve some nonpartisan
public purpose.
In evaluating a claim that a governmental decision violates the Equal
Protection Clause, we have long required a showing of discriminatory pur-
pose. See Washington v. Davis, 426 U.S. 229 (1976). That requirement applies
with full force to districting decisions. The line that divides a racial or ethnic
minority unevenly between school districts can be entirely legitimate if cho-
sen on the basis of neutral factors—county lines, for example, or a natural
boundary such as a river or major thoroughfare. But if the district lines were
chosen for the purpose of limiting the number of minority students in the
school, or the number of families holding unpopular religious or political
views, that invidious purpose surely would invalidate the district. .. .
In sum, in evaluating a challenge to a specific district, I would apply the
standard set forth in the Shaw cases and ask whether the legislature allowed
partisan considerations to dominate and control the lines drawn, forsaking all
neutral principles. Under my analysis, if no neutral criterion can be identi-
fied to justify the lines drawn, and if the only possible explanation for a dis-
trict’s bizarre shape is a naked desire to increase partisan strength, then no
rational basis exists to save the district from an equal protection challenge.
Such a narrow test would cover only a few meritorious claims, but it would
preclude extreme abuses .. . and it would perhaps shorten the time period in
which the pernicious effects of such a gerrymander are felt. This test would
mitigate the current trend under which partisan considerations are becoming
the be-all and end-all in apportioning representatives. . . .

Justice SOUTER, with whom Justice GINSBURG joins, dissenting.

 B | Voting Rights and the Reapportionment Revolution | 887

The notion of fairness assumed to be denied ... has been described as

“each political group in a State [having] the same chance to elect representa-
tives of its choice as any other political group,” and as a “right to ‘fair and ef-
fective representation.’ ” It is undeniable that political sophisticates understand
such fairness and how to go about destroying it, although it cannot possibly
be described with the hard edge of one person, one vote. The difficulty has
been to translate these notions of fairness into workable criteria, as distinct
from mere opportunities for reviewing courts to make episodic judgments
that things have gone too far, the sources of difficulty being in the facts that
some intent to gain political advantage is inescapable whenever political
bodies devise a district plan, and some effect results from the intent. Thus, the
issue is one of how much is too much, and we can be no more exact in stat-
ing a verbal test for too much partisanship than we can be in defining too
much race consciousness when some is inevitable and legitimate. Instead of
coming up with a verbal formula for too much, then, the Court’s job must
be to identify clues, as objective as we can make them, indicating that parti-
san competition has reached an extremity of unfairness... .
Since this Court has created the problem no one else has been able to
solve, it is up to us to make afresh start. ... 1 would therefore preserve Davis’s
holding that political gerrymandering is a justiciable issue, but otherwise start
anew. I would adopt a political gerrymandering test analogous to the sum-
mary judgment standard crafted in McDonnell Douglas Corp. v. Green, 411 US.
792. (1973), calling for a plaintiff to satisfy elements of a prima facie cause of
action, at which point the State would have the opportunity not only to re-
but the evidence supporting the plaintiff’s case, but to offer an affirmative jus-
tification for the districting choices, even assuming the proof of the plaintiff’s
allegations. My own judgment is that we would have better luck at devising a
workable prima facie case if we concentrated as much as possible on suspect
characteristics of individual districts instead of statewide patterns. It is not that
a statewide view of districting is somehow less important; the usual point of
gerrymandering, after all, is to control the greatest number of seats overall.
But, as will be seen, we would be able to call more readily on some existing
law when we defined what is suspect at the district level, and for now I would
conceive of a statewide challenge as itself a function of claims that individual
districts are illegitimately drawn. Finally, in the same interest of threshold sim-
plicity, I would stick to problems of single-member districts; if we could not
devise a workable scheme for dealing with claims about these, we would have
to forget the complications posed by multi-member districts.
For a claim based on a specific single-member district, 1 would require
the plaintiff to make out a prima facie case with five elements. First, the res-
ident plaintiff would identify a cohesive political group to which he be-
longed, which would normally be a major party, as in this case and in Davis.
There is no reason in principle, however, to rule out a claimant from a minor
political party (which might, if it showed strength, become the target of vig-
~ orous hostility from one or both major parties in a State) or from a different
but politically coherent group whose members engaged in bloc voting, as a
large labor union might do.
Second, a plaintiff would need to show that the district of his residence,
see United States v. Hays, 515 US. 737 (1995) (requiring residence in a
challenged district for standing), paid little or no heed to those traditional
888 | REPRESENTATIVE GOVERNMENT

districting principles whose disregard can be shown straightforwardly: con-

tiguity, compactness, respect for political subdivisions, and conformity with
geographic features like rivers and mountains. Because such consid-
erations are already relevant to justifying small deviations from absolute
population equality, and because compactness in particular is relevant to
demonstrating possible majority-minority districts under the Voting Rights
Act of 1965, there is no doubt that a test relying on these standards would
fall within judicial competence. ...
Third, the plaintiff would need to establish specific correlations between
the district’s deviations from traditional districting principles and the distri-
bution of the population of his group. For example, one of the districts to
which appellants object most strongly in this case is District 6, which they
say “looms like a dragon descending on Philadelphia from the west, splitting
up towns and communities throughout Montgomery and Berks Counties.”
To make their claim stick, they would need to point to specific protuber-
ances on the draconian shape that reach out to include Democrats, or fissures
in it that squirm away from Republicans. They would need to show that
when towns and communities were split, Democrats tended to fall on one
side and Republicans on the other.
Fourth, a plaintiff would need to present the court with a hypothetical
district including his residence, one in which the proportion of the plaintiff’s
group was lower (in a packing claim) or higher (in a cracking one) and
which at the same time deviated less from traditional districting principles
than the actual district. This hypothetical district would allow the plaintiff to
claim credibly that the deviations from traditional districting principles were
not only correlated with, but also caused by, the packing or cracking of his
group. Drawing the hypothetical district would, of course, necessarily involve
redrawing at least one contiguous district, and a plaintiff would have to show
that this could be done subject to traditional districting principles without
packing or cracking his group (or another) worse than in the district being
challenged.
Fifth, and finally, the plaintiff would have to show that the defendants
acted intentionally to manipulate the shape of the district in order to pack or
crack his group. See Washington v. Davis, 426 U.S. 229 (1976). In substantiat-
ing claims of political gerrymandering under a plan devised by a single ma-
jor party, proving intent should not be hard, once the third and fourth
(correlation and cause) elements are established. . . .
A plaintiff who got this far would have shown that his State intention-
ally acted to dilute his vote, having ignored reasonable alternatives consistent
with traditional districting principles. | would then shift the burden to the
defendants to justify their decision by reference to objectives other than
naked partisan advantage. ...The State might, for example, posit the need to
avoid racial vote dilution. . . . This is not, however, the time or place for a
comprehensive list of legitimate objectives a State might present. The point
here is simply that the Constitution should not petrify traditional districting
objectives as exclusive, and it is enough to say that the State would be re-
quired to explain itself, to demonstrate that whatever reasons it gave were
more than a mere pretext for an old-fashioned gerrymander.
As for a statewide claim, I would not attempt an ambitious definition
without the benefit of experience with individual district claims, and for
 B | Voting Rights and the Reapportionment Revolution | 889

now I would limit consideration of a statewide claim to one built upon a

number of district-specific ones. Each successful district-specific challenge
would necessarily entail redrawing at least one contiguous district, and the
more the successful claims, the more surrounding districts to be redefined. At
a certain point, the ripples would reach the state boundary, and it would no
longer make any sense for a district court to consider the problems piece-
meal... .:.

Justice BREYER, dissenting.

I start with a fundamental principle. “We the People,” who “ordain[ed]
and establish[ed]” the American Constitution, sought to create and to protect
a workable form of government that is in its “ ‘principles, structure, and
whole mass, ” basically democratic. In a modern Nation of close to 300 mil-
lion people, the workable democracy that the Constitution foresees must
mean more than a guaranteed opportunity to elect legislators representing
equally populous electoral districts. . . .
Why doIrefer to these elementary constitutional principles? Because I
believe they can help courts identify at least one abuse at issue in this case. To
understand how that is so, one should begin by asking why single-member
electoral districts are the norm, why the Constitution does not insist that the
membership of legislatures better reflect different political views held by dif-
ferent groups of voters. History, of course, is part of the answer, but it does
not tell the entire story. The answer also lies in the fact that a single-member-
district system helps to assure certain democratic objectives better than many
“more representative” (i.e., proportional) electoral systems. Of course, single-
member districts mean that only parties with candidates who finish “first past
the post” will elect legislators. That fact means in turn that a party with a
bare majority of votes or even a plurality of votes will often obtain a large
legislative majority, perhaps freezing out smaller parties. But single-member
districts thereby diminish the need for coalition governments. And that fact
makes it easier for voters to identify which party is responsible for govern-
ment decisionmaking (and which rascals to throw out), while simultaneously
providing greater legislative stability.
If single-member districts are the norm, however, then political consid-
erations will likely play an important, and proper, role in the drawing of dis-
trict boundaries..In part, that is because politicians, unlike nonpartisan
observers, normally understand how “the location and shape of districts” de-
termine “the political complexion of the area.” It is precisely because politi-
cians are best able to predict the effects of boundary changes that the
districts they design usually make some political sense.
More important for present purposes, the role of political considerations
reflects a surprising mathematical fact. Given a fairly large state population
with a fairly large congressional delegation, districts assigned so as to be per-
fectly random in respect to politics would translate a small shift in politi-
~ cal sentiment, say a shift from 51% Republican to 49% Republican, into a
seismic shift in the makeup of the legislative delegation, say from 100% Re-
publican to 100% Democrat. Any such exaggeration of tiny electoral
changes—virtually wiping out legislative representation of the minority
party—wowuld itself seem highly undemocratic.
Given the resulting need for single-member districts with nonrandom
890 | REPRESENTATIVE GOVERNMENT

boundaries, it is not surprising that “traditional” districting principles have

rarely, if ever, been politically neutral. Rather, because, in recent political
memory, Democrats have often been concentrated in cities while Republi-
cans have often been concentrated in suburbs and sometimes rural areas,
geographically drawn boundaries have tended to “pac[k]” the former.
This is to say that traditional or historically-based boundaries are not,
and should not be, “politics free.” Rather, those boundaries represent a series
of compromises of principle—among the virtues of, for example, close rep-
resentation of voter views, ease of identifying “government” and “opposi-
tion” parties, and stability in government. They also represent an uneasy
truce, sanctioned by tradition, among different parties seeking political ad-
vantage.
As I have said, reference back to these underlying considerations helps to
explain why the legislature’s use of political boundary drawing considera-
tions ordinarily does not violate the Constitution’s Equal Protection Clause.
The reason lies not simply in the difficulty of identifying abuse or finding an
appropriate judicial remedy. The reason is more fundamental: Ordinarily,
there simply is no abuse. The use of purely political boundary-drawing fac-
tors, even where harmful to the members of one party, will often nonethe-
less find justification in other desirable democratic ends, such as maintaining
relatively stable legislatures in which a minority party retains significant rep-
resentation.
At the same time, these considerations can help identify at least one cir-
cumstance where use of purely political boundary-drawing factors can
amount to a serious, and remediable, abuse, namely the unjustified use of po-
litical factors to entrench a minority in power. By entrenchment I mean a
situation in which a party that enjoys only minority support among the pop-
ulace has nonetheless contrived to take, and hold, legislative power. By un-
justified entrenchment I mean that the minority’s hold on power is purely
the result of partisan manipulation and not other factors. These “other” fac-
tors that could lead to “justified” (albeit temporary) minority entrenchment
include sheer happenstance, the existence of more than two major parties,
the unique constitutional requirements of certain representational bodies
such as the Senate, or reliance on traditional (geographic, communities of in-
terest, etc.) districting criteria. ...
Courts need not intervene often to prevent the kind of abuse I have de-
scribed, because those harmed constitute a political majority, and a majority
normally can work its political will. Where a State has improperly gerry-
mandered legislative or congressional districts to the majority’s disadvantage,
the majority should be able to elect officials in statewide races—particularly
the Governor—who may help to undo the harm that districting has caused the
majority's party, in the next round of districting if not sooner. And where a
State has improperly gerrymandered congressional districts, Congress retains
the power to revise the State’s districting determinations.
Moreover, voters in some States, perhaps tiring of the political boundary-
drawing rivalry, have found a procedural solution, confiding the task to a
commission that is limited in the extent to which it may base districts on
partisan concerns. ...
But we cannot always count on a severely gerrymandered legislature it-
self to find and implement a remedy. The party that controls the process has
 B | Voting Rights and the Reapportionment Revolution | 891

no incentive to change it... .When it is necessary, a court should prove capa-

ble of finding an appropriate remedy. Courts have developed districting
remedies in other cases. ...The bottom line is that courts should be able to
identify the presence of one important gerrymandering evil, the unjustified
entrenching in power of a political party that the voters have rejected. They
should be able to separate the unjustified abuse of partisan boundary-drawing
considerations to achieve that end from their more ordinary and justified use.
And they should be able to design a remedy for extreme cases. .. .

Greensboro
Winston-Salem
e
Durham

Lee 12th District

Congressional District 12, Challenged in Shaw v. Reno (1993)

Shaw v. Reno
509 USS. 630, 113 S.CT. 2816 (1993)

After the 1990 census, North Carolina became eligible for a twelfth
congressional seat. But in order to comply with Section 5 of the Voting
Rights Act of 1965, which requires a covered jurisdiction to obtain
federal authorization for changes in its election practices and proce-
dures, North Carolina submitted to the Department of Justice a con-
gressional reapportionment plan with one majority-black district. The
Bush administration’s Department of Justice, however, objected to the
state’s initial plan because a second congressional district could have
been created to give blacks greater voting strength in the state’s south-
central and southeastern region. North Carolina’s general assembly thus
revised its plan to include a second majority-black district in the north-
central region. That new district stretched approximately 160 miles
along Interstate 85 and for much of its length was no wider than the
I-85 corridor. The constitutionality of that district was in turn attacked
892 | REPRESENTATIVE GOVERNMENT

by several white voters, including a Duke University law school profes-

sor.A three-judge district court dismissed the complaint on the ground
that under United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430
USS. 144 (1977), favoring minority voters was not discriminatory in the
constitutional sense and that the plan did not proportionally under-
represent white voters statewide. That decision was appealed to the Su-
preme Court, which granted certiorari.
The Court’s decision was five to four, with the majority’s opinion
announced by Justice O’Connor and dissents by Justices White, Black-
mun, Stevens, and Souter.

C) Justice O'CONNOR delivers the opinion of the Court.

An understanding of the nature of appellants’ claim is critical to our res-
olution 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 dis-
tricts 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, see
Plessy v. Ferguson, 163 U.S. 537 (1896) (HARLAN, J., dissenting), appellants
appear to concede that race-conscious redistricting is not always unconstitu-
tional. 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 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... .
Classifications of citizens solely on the basis of race “are by their very
nature odious to a free people whose institutions are founded upon the
doctrine of equality.’ Hirabayashi v. United States, 320 U.S. 81 (1943). They
threaten to stigmatize individuals by reason of their membership in a racial
group and to incite racial hostility. Accordingly, we have held that the Four-
teenth Amendment requires state legislation that expressly distinguishes
among citizens because of their race to be narrowly tailored to further a
compelling governmental interest. See, e.g., Wygant v. Jackson Bd. of Ed., 476
US. 267 (1986).
These principles apply not only to legislation that contains explicit
racial distinctions, but also to those “rare” statutes that, although race-neutral,
are, on their face, “unexplainable on grounds other than race.” Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)...
The Court applied the same reasoning to the “uncouth twenty-eight-
sided” municipal boundary line at issue in Gomillion [v. Lightfoot, 364 U.S. 339
(1960)]. 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... .
 B | Voting Rights and the Reapportionment Revolution | 893

The Court extended the reasoning of Gomillion to congressional dis-

tricting in Wright v. Rockefeller, 376 U.S. 52 (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 concen-
trated them in the other three. Every member of the Court assumed that the
plaintiffs’ allegation that the statute “segregated 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 dis-
senters thought the unusual shape of the district lines could “be explained
only in racial terms.” 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 per-
sons at all; it classifies tracts of land, or addresses. Moreover, redistricting dif-
fers 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 impermis-
sible race discrimination. As Wright demonstrates, when members of a racial
group live together in one community, a reapportionment plan that concen-
trates 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, to provide for compact districts of contiguous territory, or to main-
tain the integrity of political subdivisions.
The difficulty of proof, of course, does not mean that a racial gerry-
mander, 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 ir-
regular that, on its face, it rationally cannot be understood as anything other
than an effort to “segregate .. . voters” on the basis of race. Gomillion, in
which a tortured municipal boundary line was drawn to exclude black vot-
ers, 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 gerry-
“mandered 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 sep-
arated by geographical and political boundaries, and who may have little
in common with one another but the color of their skin, bears an un-
894 | REPRESENTATIVE GOVERNMENT

comfortable 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. ...
For these reasons, we conclude that a plaintiff challenging a re-
apportionment 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 the separation lacks sufficient jus-
tification. It is unnecessary for us to decide whether or how a reapportion-
ment 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.
. It is [also] for these reasons that race-based districting by our state legis-
latures demands close judicial scrutiny. . . .

“) Justice WHITE, with whom Justices BLACKMUN and STEVENS join,

dissenting.
The facts of this case mirror those presented in United Jewish Organiza-
tions of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977), where the Court
rejected a claim that creation of a majority-minority district violated the
Constitution, either as a per se matter or in light of the circumstances lead-
ing to the creation of such a district. Of particular relevance, five of the Jus-
tices reasoned that members of the white majority could not plausibly argue
that their influence over the political process had been unfairly cancelled, or
that such had been the State’s intent. Accordingly, they held that plaintifts
were not entitled to relief under the Constitution’s Equal Protection Clause.
On the same reasoning, I would affirm the district court’s dismissal of appel-
lants’ claim in this instance.
The Court today chooses not to overrule, but rather to sidestep, United
Jewish Organizations of Williamsburgh. It does so by glossing over the striking
similarities, focusing on surface differences, most notably the (admittedly un-
usual) shape of the newly created district, and imagining an entirely new
cause of action. Because the holding is limited to such anomalous circum-
stances, it perhaps will not substantially hamper a State’s legitimate efforts to
redistrict in favor of racial minorities. Nonetheless, the notion that North
Carolina’s plan, under which whites remain a voting majority in a dispropor-
tionate number of congressional districts, and pursuant to which the State
has sent its first black representatives since Reconstruction to the United
States Congress, might have violated appellants’ constitutional rights is both a
fiction and a departure from settled equal protection principles. Seeing no
good reason to engage in either, I dissent... .

(1 Justice STEVENS, dissenting.

For the reasons stated by Justice WHITE, the decision of the District
Court should be affirmed. I add these comments to emphasize that the two
 B | Voting Rights and the Reapportionment Revolution | 895

critical facts in this case are undisputed: first, the shape of District 12 is so
bizarre that it must have been drawn for the purpose of either advantaging
or disadvantaging a cognizable group of voters; and, second, regardless of
that shape, it was drawn for the purpose of facilitating the election of a sec-
ond black representative from North Carolina.
These unarguable facts, which the Court devotes most of its opinion to
proving, give rise to three constitutional questions: Does the Constitution
impose a requirement of contiguity or compactness on how the States may
draw their electoral districts? Does the Equal Protection Clause prevent a
State from drawing district boundaries for the purpose of facilitating the
election of a member of an identifiable group of voters? And, finally, if the
answer to the second question is generally “No,” should it be different when
the favored group is defined by race? Since I have already written at length
about these questions, my negative answer to each can be briefly explained.
The first question is easy. There is no independent constitutional. re-
quirement of compactness or contiguity, and the Court’s opinion (despite its
many references to the shape of District 12) does not suggest otherwise. ...
As for the second question, I believe that the Equal Protection Clause is
violated when the Court creates the kind of uncouth district boundaries
seen in Karcher v. Daggett, 462 U.S. 725 (1983), Gomillion v. Lightfoot, 364 U.S.
339 (1960), and this case, for the sole purpose of making it more difficult for
members of a minority group to win an election. The duty to govern im-
partially is abused when a group with power over the electoral process de-
fines electoral boundaries solely to enhance its own political strength at the
expense of any weaker group. That duty, however, is not violated when the
majority acts to facilitate the election of a member of a group that lacks
such power because it remains underrepresented in the state legislature—
whether that group is defined by political affiliation, by common economic
interests, or by religious, ethnic, or racial characteristics. The difference be-
tween constitutional and unconstitutional gerrymanders has nothing to do
with whether they are based on assumptions about the groups they affect,
but whether their purpose is to enhance the power of the group in control
of the districting process at the expense of any minority group, and thereby
to strengthen the unequal distribution of electoral power. ...
Finally, we must ask whether otherwise permissible redistricting to bene-
fit an underrepresented minority group becomes impermissible when the mi-
nority group is defined by its race. The Court today answers this question in
the affirmative, and its answer is wrong. If it is permissible to draw boundaries
to provide adequate representation for rural voters, for union members, for
Hasidic Jews, for Polish Americans, or for Republicans, it necessarily follows
that it is permissible to do the same thing for members of the very minority
group whose history in the United States gave birth to the Equal Protection
Clause.A contrary conclusion could only be described as perverse.

Justice SOUTER, dissenting.

Until today, the Court has analyzed equal protection claims involving
race in electoral districting differently from equal protection claims involving
other forms of governmental conduct, and before turning to the different
regimes of analysis it will be useful to set out the relevant respects in which
such districting differs from the characteristic circumstances in which a State
might otherwise consciously consider race. Unlike other contexts in which
896 | REPRESENTATIVE GOVERNMENT

we have addressed the State’s conscious use of race, see, e.g., Richmond v.J. A.
Croson Co., 488 U.S. 469 (1989) [city contracting]; Wygant v. Jackson Bd. of
Ed., 476 USS. 267 (1986) [teacher layoffs], electoral districting calls for deci-
sions that nearly always require some consideration of race for legitimate
reasons where there is a racially mixed population. As long as members of
racial groups have the commonality of interest implicit in our ability to talk
about concepts like “minority voting strength,” and “dilution of minority
votes,” Thornburg v. Gingles, 478 U.S. 30 (1986), and as long as racial bloc vot-
ing takes place, legislators will have to take race into account in order to
avoid dilution of minority voting strength in the districting plans they adopt.
One need look no further than the Voting Rights Act to understand that this
may be required, and we have held that race may constitutionally be taken
into account in order to comply with that Act. United Jewish Organizations of
Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977).
A second distinction between districting and most other governmental
decisions in which race has figured is that those other decisions using racial
criteria characteristically occur in circumstances in which the use of race to
the advantage of one person is necessarily at the obvious expense of a mem-
ber of a different race. Thus, for example, awarding government contracts on
a racial basis excludes certain firms from competition on racial grounds. See
Richmond v, J. A. Croson Co., supra. . . . In districting, by contrast, the mere
placement of an individual in one district instead of another denies no one
a right or benefit provided to others. All citizens may register, vote, and be
represented. ...
A consequence of this categorical approach is the absence of any need
for further searching “scrutiny” once it has been shown that a given district-
ing decision has a purpose and effect falling within one of those categories.
If a cognizable harm like dilution or the abridgment of the right to partici-
pate in the electoral process is shown, the districting plan violates the Four-
teenth Amendment. If not, it does not. Under this approach, in the absence
of an allegation of such cognizable harm, there is no need for further
scrutiny because a gerrymandering claim cannot be proven without the ele-
ment of harm....
The Court offers no adequate justification for treating the narrow cate-
gory of bizarrely shaped district claims differently from other districting
claims. The only justification I can imagine would be the preservation of
“sound districting principles,” such as compactness and contiguity. But as Jus-
tice WHITE points out, and as the Court acknowledges, we have held that
such principles are not constitutionally required, with the consequence that
their absence cannot justify the distinct constitutional regime put in place by
the Court today. ...
I respectfully dissent.
 B | Voting Rights and the Reapportionment Revolution | 897

Hunt v. Cromartie
532 US. 234, 121 S.Cr. 1452 (2001)

For the fourth time, the Court reviewed a challenge to the “racial
districting” of North Carolina’s congressional District 12, one of two
districts initially drawn in 1992 that contained a majority of African
American voters. Subsequently, as a result of further litigation, the dis-
trict was again redrawn in 1997 and 1998, and again challenged. The
district as drawn in 1992, 1997, and 1998 appeared as follows:
In Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I) (excerpted in this
chapter), the Court held that the legislature had drawn the former
district’s boundaries for race-based reasons in violation of the Equal
Protection Clause, observing that a violation may exist where the leg-
islature’s boundary drawing, though “race neutral on its face?’ none-
theless can be understood only as an effort to “separate voters into
different districts on the basis of race,’ and where the “separation lacks
sufficient justification.”
In Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw II), the Court reversed
a three-judge district court’s holding that the 1992 district did not vio-
late the Constitution. The Court deemed the district’s “unconven-
tional” snakelike shape, its predominantly African American racial
makeup, and its history to demonstrate a deliberate effort to create an
impermissible “majority-black” district.
The Court, then, considered a challenge to a new district as re-
drawn in 1997, in Hunt v. Cromartie, 526 U.S. 541 (1999) (Hunt I). A
three-judge district court found the legislature again to have used cri-
teria that were “facially race driven,” in violation of the Equal Protec-
tion Clause. It based this conclusion upon “uncontroverted material
facts” showing that the boundaries created an unusually shaped district;
split counties and cities; and placed almost all heavily Democratic-
registered, predominantly African American voting precincts inside the
district, while locating some heavily Democratic-registered, predomi-
nantly white precincts outside the district. This latter circumstance, the
court concluded, showed that the legislature was trying to maximize
the new district’s African American voting strength, not the district’s
Democratic voting strength. That decision, however, was reversed by
the Supreme Court in Hunt I on finding that neither the evidence by
itself nor this evidence coupled with the data on Democratic registra-
tion was.sufficient to show the unconstitutional race-based objective
that plaintiffs claimed.
On remand, the parties undertook additional discovery, the district
898 | REPRESENTATIVE GOVERNMENT

1992 1997 1998

Greensboro Greensboro
Winston-Salem Winston-Salem Winston-Salem

Charlotte Charlotte Charlotte

Congressional District 12 as Drawn and Redrawn in 1992, 1997, and 1998.

was redrawn in 1998, and the three-judge district court again held that
the legislature had unconstitutionally drawn the district’s boundaries.
The court found that the legislature had tried to cure the previous dis-
trict’s constitutional defects while also drawing a plan to maintain the
existing partisan balance in the State’s congressional delegation. It noted
that to achieve the latter goal, the legislature “drew the new plan (1) to
avoid placing two incumbents in the same district and (2) to preserve
the partisan core of the existing districts.’ But the court also found the
legislature to have used criteria that were “facially race driven” without
any compelling justification for doing so. The court based its conclu-
sion in part on the district’s snakelike shape, the way in which it split
cities and towns, and its heavily African American (47%) voting popu-
lation. The court also concluded that the legislature drew the bound-
aries in order “to collect precincts with high racial identification rather
than political identification.” The state appealed that decision and the
Supreme Court granted review.
The district court’s decision was reversed. The Court’s decision was
five to four and its opinion delivered by Justice Breyer. Justice Thomas
filed a dissenting opinion, which Chief Justice Rehnquist and Justices
Scalia and Kennedy joined.

(1 Justice BREYER delivered the opinion of the Court.

The issue in this case is evidentiary.
We must determine whether there is
adequate support for the District Court’s key findings, particularly the ulti-
mate finding that the legislature’s motive was predominantly racial, not polit-
ical. In making this determination, we are aware that, under Shaw I and later
cases, the burden of proof on the plaintiffs (who attack the district) is a “de-
manding one.” Miller v.Johnson, 515 U.S. 900 (1995) (O° CONNOR, J., con-
curring). The Court has specified that those who claim that a legislature
has improperly used race as a criterion, in order, for example, to create a
 B | Voting Rights and the Reapportionment Revolution | 899
EE I a, leanne TE het
majority-minority district, must show at a minimum that the “legislature
subordinated traditional race-neutral districting principles . . . to racial con-
siderations.” Race must not simply have been “a motivation for the drawing
of a majority minority district,’ Bush v. Vera, 517 U.S. 952 (1996) (O°CON-
NOR, J., principal opinion), but “the ‘predominant factor’ motivating the
legislature’s districting decision,” Cromartie [I].
The Court also has made clear that the underlying districting decision is
one that ordinarily falls within a legislature’s sphere of competence. Hence,
the legislature “must have discretion to exercise the political judgment nec-
essary to balance competing interests,’ and courts must “exercise extra-
ordinary caution in adjudicating claims that a State has drawn district lines
on the basis of race.” Caution is especially appropriate in this case, where the
State has articulated a legitimate political explanation for its districting deci-
sion, and the voting population is one in which race and political affiliation
are highly correlated.... — 3)
The critical District Court determination—the matter for which we re-
manded this litigation—consists of the finding that race rather than politics
predominantly explains District 12’s 1997 boundaries. That determination
rests upon three findings (the district’s shape, its splitting of towns and coun-
ties, and its high African-American voting population) that we previously
found insufficient to support summary judgment. Given the undisputed evi-
dence that racial identification is highly correlated with political affiliation in
North Carolina, these facts in and of themselves cannot, as a matter of law,
support the District Court’s judgment. The District Court rested, however,
upon five new subsidiary findings to conclude that District 12’s lines are the
product of no “mer[e] correlat[ion],” but are instead a result of the predom-
inance of race in the legislature’s line-drawing process.
In considering each subsidiary finding, we have given weight to the fact
that the District Court was familiar with this litigation, heard the testimony
of each witness, and considered all the evidence with care. Nonetheless, we
cannot accept the District Court’s findings as adequate for reasons which we
shall spell out in detail and which we can summarize as follows:
First, the primary evidence upon which the District Court relied for its
“race, not politics,’ conclusion is evidence of voting registration, not voting
behavior; and that is precisely the kind of evidence that we said was in-
adequate the last time this case was before us. Second, the additional evi-
dence to which appellees’ expert, Dr. Weber, pointed, and the statements
made by Senator Cooper and Gerry Cohen, simply do not provide signifi-
cant additional support for the District Court’s conclusion. Third, the Dis-
trict Court, while not accepting the contrary conclusion of appellants’
expert, Dr. Peterson, did not (and as far as the record reveals, could not) re-
ject much of the significant supporting factual information he provided.
Fourth, in any event, appellees themselves have provided us with charts sum-
marizing evidence of voting behavior and those charts tend to refute the
“court’s “race not politics,’ conclusion.
The District Court primarily based its “race, not politics,’ conclusion
upon its finding that “the legislators excluded many heavily-Democratic
precincts»from’ District 12, even when those precincts immediately border
the Twelfth and would have established a far more compact district.” This
finding, however—insofar as it differs from the remaining four—rests solely
900 | REPRESENTATIVE GOVERNMENT

upon evidence that the legislature excluded heavily white precincts with
high Democratic Party registration, while including heavily African-
American precincts with equivalent, or lower, Democratic Party registration.
Indeed, the District Court cites at length figures showing that the legislature
included “‘several precincts with racial compositions of 40 to 100 percent
African-American,” while excluding certain adjacent precincts “with less
than 35 percent African-American population” but which contain between
54% and 76% registered Democrats.
As we said before, the problem with this evidence is that it focuses upon
party registration, not upon voting behavior. And we previously found the
same evidence inadequate because registration figures do not accurately pre-
dict preference at the polls. In part this is because white voters registered as
Democrats “cross-over” to vote for a Republican candidate more often than
do African-Americans, who register, and vote Democratic between 95% and
97% of the time. A legislature trying to secure a safe Democratic seat is in-
terested in Democratic voting behavior. Hence, a legislature may, by placing
reliable Democratic precincts within a district without regard to race, end up
with a district containing more heavily African-American precincts, but the
reasons would be political rather than racial.
Insofar as the District Court relied upon voting registration data, partic-
ularly data that were previously before us, it tells us nothing new; and the
data do not help answer the question posed when we previously remanded
this litigation. . .. ;
The District Court also relied on two pieces of “direct” evidence of
discriminatory intent. The court found that a legislative redistricting leader,
Senator Roy Cooper, when testifying before a legislative committee in 1997,
had said that the 1997 plan satisfies a “need for ‘racial and partisan’ balance.”
The court concluded that the words “racial balance” referred to a 10-to-2
Caucasian/African-American balance in the State’s 12-member congres-
sional delegation. Hence, Senator Cooper had admitted that the legislature
had drawn the plan with race in mind... .We agree that one can read the
statement about “racial ... balance” as the District Court read it—to refer to
the current congressional delegation’s racial balance. But even as so read, the
phrase shows that the legislature considered race, along with other partisan
and geographic considerations; and as so read it says little or nothing about
whether race played a predominant role comparatively speaking.
The second piece of “direct” evidence relied upon by the District
Court is a February 10, 1997, e-mail sent from Gerry Cohen, a legislative
staff member responsible for drafting districting plans, to Senator Cooper
and Senator Leslie Winner. Cohen wrote: “I have moved Greensboro Black
community into the 12th, and now need to take [about] 60,000 out of the
12th. I await your direction on this.”
The reference to race—t.e., “Black community”—is obvious. But the
e-mail does not discuss the point of the reference. It does not discuss why
Greensboro’s African-American voters were placed in the 12th District; it
does not discuss the political consequences of failing to do so; it is addressed
only to two members of the legislature; and it suggests that the legislature
paid less attention to race in respect to the 12th District than in respect to
the 1st District, where the e-mail provides a far more extensive, detailed dis-
cussion of racial percentages. It is less persuasive than the kinds of direct ev-
 B | Voting Rights and the Reapportionment Revolution | 9or
Sana nTEEeeiire eee ee a
idence we have found significant in other redistricting cases. Nonetheless,
the e-mail offers some support for the District Court’s conclusion. .. .
We concede the record contains a modicum of evidence offering sup-
port for the District Court’s conclusion. That evidence includes the Cohen
e-mail, Senator Cooper’s reference to “racial balance,” and to a minor degree,
some aspects of Dr. Weber's testimony. The evidence taken together, how-
ever, does not show that racial considerations predominated in the drawing
of District 12’s boundaries. That is because race in this case correlates closely
with political behavior. The basic question is whether the legislature drew
District 12’s boundaries because of race rather than because of political be-
havior (coupled with traditional, nonracial districting considerations). It is
not, as the dissent contends, whether a legislature may defend its districting
decisions based on a “stereotype” about African-American voting behavior.
And given the fact that the party attacking the legislature’s decision bears the
burden of proving that racial considerations are “dominant and controlling,”
given the “demanding” nature of that burden of proof, and given the sensi-
tivity, the “extraordinary caution,” that district courts must show to avoid
treading upon legislative prerogatives, the attacking party has not successfully
shown that race, rather than politics, predominantly accounts for the result.
The record leaves us with the “definite and firm conviction” that the District
Court erred in finding to the contrary. And we do not believe that providing
appellees a further opportunity to make their “precinct swapping” arguments
in the District Court could change this result.
We can put the matter more generally as follows: In a case such as this
one where majority-minority districts (or the approximate equivalent) are at
issue and where racial identification correlates highly with political affilia-
tion, the party attacking the legislatively drawn boundaries must show at the
least that the legislature could have achieved its legitimate political objectives
in alternative ways that are comparably consistent with traditional districting
principles. That party must also show that those districting alternatives would
have brought about significantly greater racial balance. Appellees failed to
make any such showing here. We conclude that the District Court’s contrary
findings are clearly erroneous.
The judgment of the District Court is Reversed.

() Justice THOMAS, with whom THE CHIEF JUSTICE, Justice

SCALIA, and Justice KENNEDY join, dissenting.
The District Court’s conclusion that race was the predominant factor
motivating the North Carolina Legislature is a factual finding. See Hunt v.
Cromartie, 526 U.S. 541 (1999); Shaw v. Hunt, 517 U.S. 899 (1996); Miller v.
Johnson, 515 U.S. 900 (1995). Accordingly, we should not overturn the Dis-
trict Court’s determination unless it is clearly erroneous... .
Reviewing for clear error, I cannot say that the District Court’s view of
the evidence was impermissible. First, the court relied on objective measures
of compactness, which show that District 12 is the most geographically scat-
tered district in North Carolina, to support its conclusion that the district’s
design was not dictated by traditional districting concerns. Although this ev-
idence was available when we held that summary judgment was inappropri-
ate, we certainly did not hold that it was irrelevant in determining whether
racial gerrymandering occurred. On the contrary, we determined that there
902 | REPRESENTATIVE GOVERNMENT
a

was a triable issue of fact. Moreover, although we acknowledged “that a dis-

trict’s unusual shape can give rise to an inference of political motivation,” we
“doubtfed] that a bizarre shape equally supports a political inference and a
racial one.’ Hunt. As we explained, “[s]ome districts . . . are ‘so highly irregu-
lar that [they] rationally cannot be understood as anything other than an ef-
fort to segregat[e] voters’ on the basis of race.”
Second, the court relied on the expert opinion of Dr. Weber, who in-
terpreted statistical data to conclude that there were Democratic precincts
with low black populations excluded from District 12, which would have
created a more compact district had they been included. And contrary to the
Court’s assertion, Dr. Weber did not merely examine the registration data in
reaching his conclusions. Dr. Weber explained that he refocused his analysis
on performance. He did so in response to our concerns, when we reversed
the District Court’s summary judgment finding, that voter registration might
not be the best measure of the Democratic nature of a precinct. This fact was
not lost on the District Court, which specifically referred to those pages of
the record covering Dr. Weber’s analysis of performance.
Third, the court credited Dr. Weber’s testimony that the districting deci-
sions could not be explained by political motives. In the first instance, I, like
the Court, might well have concluded that District 12 was not significantly
“safer” than several other districts in North Carolina merely because its
Democratic reliability exceeded the optimum by only 3 percent. And I
might have concluded that it would make political sense for incumbents to
adopt a “the more reliable the better” policy in districting. However, I cer-
tainly cannot say that the court’s inference from the facts was impermissible.
Fourth, the court discredited the testimony of the State’s witness, Dr.
Peterson. Again, like the Court, if I were a district court judge, I might have
found that Dr. Weber’s insistence that one could not ignore the core was un-
persuasive. However, even if the core could be ignored, it seems to me that
Dr. Weber’s testimony—that Dr. Peterson had failed to analyze all of the seg-
ments and thus that his analysis was incomplete—reasonably could have sup-
ported the court’s conclusion.
Finally, the court found that other evidence demonstrated that race was
foremost on the legislative agenda: an e-mail from the drafter of the 1992
and 1997 plans to senators in charge of legislative redistricting, the computer
capability to draw the district by race, and statements made by Senator
Cooper that the legislature was going to be able to avoid Shaw’s majority-
minority trigger by ending just short of the majority. The e-mail, in combi-
nation with the indirect evidence, is evidence ample enough to support the
District Court’s finding for purposes of clear error review. The drafter of the
redistricting plans reported in the bluntest of terms: “I have moved Greens-
boro Black community into the 12th [District], and now need to take .. .
60,000 out of the 12th [District].”’ Certainly the District Court was entitled
to believe that the drafter was targeting voters and shifting district bound-
aries purely on the basis of race. The Court tries to belittle the import of this
evidence by noting that the e-mail does not discuss why blacks were being
targeted. However, the District Court was assigned the task of determining
whether, not why, race predominated. As I see it, this inquiry is sufficient to
answer the .constitutional question because racial gerrymandering offends
the Constitution whether the motivation is malicious or benign. It is not a
 B | Voting Rights and the Reapportionment Revolution | 903

defense that the legislature merely may have drawn the district based on the
stereotype that blacks are reliable Democratic voters. And regardless of
whether the e-mail tended to show that the legislature was operating under
an even stronger racial motivation when it was drawing District 1 than when
it was drawing District 12, I am convinced that the District Court permissi-
bly could have accorded great weight to this e-mail as direct evidence of a
racial motive. ...
The only question that this Court should decide is whether the District
Court’s finding of racial predominance was clearly erroneous. In light of the
direct evidence of racial motive and the inferences that may be drawn from
the circumstantial evidence, I am satisfied that the District Court’s finding
was permissible, even if not compelléd by the record.

= THE DEVELOPMENT OF Law

Other Post-Shaw v. Reno Rulings on

Racial Gerrymandering

CASE VOTE RULING

Johnson v. De Grandy, 512 U.S. 7:2 Writing for the majority, Jus-
997 (1994) tice Souter overturned a court-
ordered redistricting plan for
Florida’s House of Representatives. The plan would have increased the num-
ber of Hispanic majority districts from nine to eleven out of a total of
twenty districts. Although observing that such minority-majority districts are
permissible under the Voting Rights Act and sometimes necessary in order to
increase minorities’ representation, Justice Souter held that the act does not
require creating the greatest possible number of minority-majority districts.
Once a minority group has achieved representation in “rough proportion to
its population,” said Souter, the Voting Rights Act requires nothing more.
Notably, though, Justice Souter avoided ruling on such related issues as how
to measure the size of minority groups, whether as part of the overall popu-
lation, the voting-age population, or the number of citizens eligible to vote.
Specifying a “magic parameter,” claimed the justice, was not necessary here.
Justices Scalia and Thomas dissented.
Holder v. Hall, 512 U.S. 874 5:4 The decision, reversing an appel-
(1994) late court’s decision ordering
the change from a single-member
county commission to a five-member commission with districts drawn so
that at least one black commissioner could be elected, splintered the Court’s
bare majority three ways in different opinions. Black voters had challenged
the permissibility of the single-member commission under Section 2 of the
904 | REPRESENTATIVE GOVERNMENT SS
Cc a

CASE VOTE RULING

Voting Rights Act, in Bleckley, Georgia, where 20 percent of the population

is black but where a black commissioner had never been elected to office.
With only Chief Justice Rehnquist and Justice O’Connor joining his opin-
ion for the Court, Justice Kennedy rejected the claim that the Voting Rights
Act permits challenges to the size of a governmental body or organization.
He did so upon concluding that it was impossible to determine what size or
structure would be best. The result reached by these three justices was joined
by concurring Justices Scalia and Thomas, though for different reasons and in
order to form a bare majority. They agreed with the result, but they would
have held that the Voting Rights Act does not govern race-conscious dis-
tricting in the first place. Justice Thomas also expressly rejected over two
decades of the Court’s jurisprudence in the area of voting rights and the
idea that minority-vote dilution is central to interpreting the Voting
Rights Act. The four dissenters—Justices Blackmun, Ginsburg, Souter, and
Stevens—countered that it was “clear” from the history of Bleckley County
that the single-member commission had the effect of diluting the voting
power of blacks.

Miller v. Johnson, 512 U.S. 5:4 After the 1990 census, it was
622°(1995) determined that Georgia’s popu-
lation, 27 percent of whom are
black, merited an additional eleventh congressional district. Subsequently,
Georgia’s general assembly redrew district lines so as to create two minority-
majority districts and another in which blacks comprised more than 35 per-
cent of the voting-age population. The Bush administration’s Department
of Justice, however, rejected the plan and pushed an alternative “Max-
Black plan” that created three minority-majority districts. The assembly
accordingly redrew the districts, but the constitutionality of that redistrict-
ing was challenged as impermissible racial gerrymandering under the Four-
teenth Amendment. Writing for the Court, Justice Kennedy held that the
bizarreness of the redrawn district was not problematic, but the preoccupa-
tion with the racial composition of the districts triggered strict scrutiny, and
constituted impermissible redistricting, under the Fourteenth Amendment.
Justices Stevens, Souter, Ginsburg, and Breyer dissented.

Bush v. Vera, 517 U.S. 952 5:4 Following the 1990 census,
(1996) Texas was entitled to three addi-
tional congressional seats. Using
a computer program called “REDAPPL,” which permitted the manipulation
of district lines on a block-by-block level according to racial and other socio-
economic data, the Texas legislature created two districts that were predomi-
nantly Hispanic and one that was predominantly African American. The
constitutionality of those districts was subsequently challenged. Writing for
the Court, Justice O’Connor held that the redistricting based on the use of
 B | Voting Rights and the Reapportionment Revolution | 905

SSS

CASE VOTE RULING

REDAPPL was constitutionally impermissible. But Justice O’Connor did

not rule out the use of race as one factor in redistricting and in a separate
concurring opinion emphasized that compliance with Section 2 of the
Voting Rights Act may in some circumstances require the creation of
minority-majority districts. Dissenting Justice Stevens, joined by Justices
Souter, Ginsburg, and Breyer, countered that based on the facts of the case it
was not clear that race was the predominant factor in redrawing the district
line and emphasized that under the plan 97 percent of the incumbents were
reelected. f

Shaw v. Hunt, (Shaw II) 517 5:4 Following the ruling in Shaw v,
U.S. 899 5:4 (1996) “ Reno (Shaw I) (1993) (excerpted
in this chapter), the Court held
that the redistricting of North Carolina’s congressional districts and creation
of a second minority-majority district was permissible and narrowly tai-
lored to the state’s compelling interests in complying with Sections 2 and 5
of the Voting Rights Act. Writing for the Court, Chief Justice Rehnquist
ruled that compliance with Sections 2 and 5 of the Voting Rights Act does
not justify race-conscious redistricting and reaffirmed that race-dominated
redistricting does not survive strict scrutiny and runs afoul of the Four-
teenth Amendment. Dissenting Justice Stevens, joined by Justices Souter,
Ginsburg, and Breyer, countered that race was not the predominant factor
in the redistricting.

Lawyer v. Department ofJustice, 5:4 Writing for a bare majority, Jus-

521 WS49071(1997) tice Souter rejected a challenge
to the configuration of a Florida
legislative district under the Fourteenth Amendment’s equal protection
clause and the contention that a federal district court should have found a
proposed districting plan unconstitutional before approving a mediated re-
districting settlement. Following the 1990 census the state legislature
adopted a reapportionment plan, but the Department of Justice declined to
give it preclearance approval under the Voting Rights Act on the grounds
that it failed to create a minority-majority in the Tampa district. When the
state legislature failed to redraw the district because it was out of session, the
Supreme Court of Florida revised the redistricting plan to address the Justice
Department’s objection. That plan called for an irregularly shaped district
with a voting-age population 45.8 percent black and 9.4 percent Hispanic,
comprising portions of four counties. In 1994, six residents of that proposed
district challenged its constitutionality in federal district court.A three-judge
district court was convened and permitted intervention in the suit by the
state legislature, the governor, and a group of black and Hispanic voters.
Shortly after the Court decided Miller v._ Johnson, 512 U.S. 622 (1995), all the
parties agreed to the appointment of a mediator for the dispute. Subse-
906 | REPRESENTATIVE GOVERNMENT

eee
DN

CASE VOTE RULING

quently, in 1995 a settlement agreement was signed by all the parties except
the appellant. The agreement proposed revising the Tampa district by de-
creasing its length by 58 percent, reducing the black voting-age population
from 45.8 to 36.2 percent, and including portions of three counties instead
of four. The appellant, however, maintained that the district court was re-
quired to hold the original plan unconstitutional before adopting the revised
plan. The district court disagreed and in March 1996 approved the settle-
ment, concluding that the constitutional objection to the proposed district
was not established. In its view, the district’s shape and composition was
“demonstrably benign and satisfactorily tidy, especially given the prevailing
geography.” Dissenting from the majority’s affirmance of that decision, Jus-
tice Scalia, joined by Justices O’Connor, Kennedy, and Thomas, countered
that the lower court’s decision represented “an unprecedented intrusion
upon state sovereignty.”
Meadows v. Moon, 521 US. 9:0 Without comment, the Court
1113997) affirmed a federal district court’s
ruling invalidating Virginia’s only
majority-black congressional district as an unconstitutional racial gerry-
mander. The challenged district ran from Richmond to the Tidewater area in
irregular ways that made for a 64 percent black voting population.
Georgia v. Ashcroft, 539 5:4 The Court held that under Sec-
U.S. 461 (2003) tion 5 of the Voting Rights Act,
legislative and congressional dis-
tricts may be redrawn in ways that shrink black voting majorities in order to
create more Democratic-leaning districts. Georgia’s redistricting reduced
black majorities in three districts to just over 50 percent, down from 62 to
55 percent. Writing for the Court, Justice O’Connor held that in assessing
the racial regressive effect all factors may be considered, including a minority
group’s voting participation in a coalitional district. Dissenting Justices
Stevens, Souter, Ginsburg, and Breyer accused the majority of gutting the
act’s prohibition against redistricting that is regressive for minority voting
rights.

C | Campaigns and Elections

Since the 1960s, the Supreme Court has increasingly assumed a super-
visory role in overseeing the electoral process. This is only partially due
to the reapportionment revolution and the Court’s duty to ensure
 C | Campaigns and Elections | 907

compliance with the Voting Rights Act. In addition, the Court has ap-
plied the Fourteenth Amendment equal protection clause to bar invid-
ious forms of discrimination in the electoral process and interpreted
the First Amendment guarantee for freedom of association to protect
some aspects of political parties, campaigns, and elections.
Notably, in an extraordinary ruling in Bush v. Gore (2000) (ex-
cerpted below) the Court reversed the Florida state supreme court's
decision ordering manual recounts of statewide votes in the 2000 pres-
idential election. Seven members of the Court deemed the state
supreme court’s recount order to be standardless and thus in violation
of the Fourteenth Amendment equal protection clause. But a bare ma-
jority of the Court held that there was no remedy available, thereby se-
curing the election of President George W. Bush.
Besides striking down poll taxes and literacy tests,’ the Court has
limited the power of states to control access to elections through resi-
dency requirements for voters. The Voting Rights Act of 1970 limited
residency requirements to a thirty-day registration period for presi-
dential elections. While the Court in Dunn v. Blumstein, 405 U.S. 330
(1972), indicated that that period of time appeared “ample” for state
elections as well, fifty-day registration periods were subsequently up-
held.* The Court also ruled that states may not bar military personnel,
or others in a federal enclave, from voting in state elections.’ States may
deny convicted felons the right to vote, but O’Brien v. Kinner, 414 U.S.
524 (1974), held that persons in jail awaiting trial must be provided
with absentee ballots or an alternative means of voting.
Under the Fourteenth Amendment equal protection clause, the
Court strictly scrutinizes electoral systems for discriminating against
minorities and the poor by imposing special burdens on their running
for office and voting. In Newberry v. United States, 256 U.S. 232 (1921),
however, the Court took the view that primaries were “in no real sense
part of the manner of holding [an] election.’ Consequently, some
southern states sought to discriminate against blacks at this stage of the
electoral process. But Nixon v. Herndon, 273 U.S. 536 (1927), invalidated
Texas’s prohibition on blacks voting in primary elections as a denial of
the Fourteenth Amendment equal protection clause. Nixon v. Condon,
286 US. 73 (1932), then struck down another attempt by Texas to dis-
enfranchise blacks by authorizing political parties to specify the qualifi-
_cations of voters in primary elections. Following that ruling and in the
absence of state legislation, the Texas Democratic Party voted to deny
the participation of blacks in its primary elections. The Court upheld
this practice in Grovey v. Townsend, 295 U.S. 45 (1935), on Newberry’s
theory that primaries are exempt from the constitutional restraints that
bind official state action. Six years later, though, the Hughes Court
908 | REPRESENTATIVE GOVERNMENT

ruled that primaries are “an integral part” of the political process, when
sustaining the convictions of several Louisiana officials who tampered
with primary ballots in a congressional election. Finally, in Smith v, All-
wright, 321 U.S. 649 (1944), Newberry and Grovey were abandoned.
There the Court held that primaries and political parties, which are in
various ways subject to state regulation, are integral to the operation of
state and local governments and as such constitute “an agent of the
state” subject to the proscriptions of the Fourteenth and Fifteenth
Amendments. Terry v. Adams, 345 U.S. 461 (1953), extended this ruling
to unofficial primaries in Texas run by the Jaybird Party, a Democratic
county organization that excluded blacks. In the Court’s words, the
“Jaybird primary has become an integral part, indeed the only effective
part, of the elective process that determines who shall rule and govern
in the county.” As such, the Jaybird Party primary was invalid under the
Fifteenth Amendment.
The Court has also stood against other attempts by states to keep
third-party candidates off the ballot. Williams v. Rhodes, 393 U.S. 23
(1968), for example, invalidated an Ohio law requiring third parties (al-
though not established political parties) to file petitions with more than
400,000 signatures of registered voters to have a candidate’s name
placed on the ballot. In several other cases the Court struck down sim-
ilar state requirements for the submission of petitions and early filing
deadlines as a precondition for a candidate’s being placed on the ballot.‘
Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974), overturned
a law requiring loyalty oaths of candidates of minority parties as an in-
fringement of the First Amendment right of free speech and associa-
tion. A series of other rulings invalidated state laws imposing exorbitant
filing fees for getting on the ballot.’
The Court has dealt as well with a number of controversies arising
from political parties’ organization, conventions, and campaigns. After a
couple of contradictory rulings on the seating of delegates at party
conventions, Cousins v. Wigoda, 419 U.S. 477 (1975), held that the na-
tional party convention has the power to decide the credentials of con-
vention delegates and how delegates from state political parties will be
seated at a national convention. There the Court affirmed political par-
ties’ freedom to determine the composition of their conventions as
protected by First Amendment right of association. Democratic Party v.
LaFollette, 450 U.S. 107 (1981), further ruled that states could not man-
date that state delegates to a national political convention cast their
votes for the winner of the state’s presidential primary. However, Mar-
chioro v. Chaney, 442 U.S. 191 (1979), allowed that states could demand
that state political parties have at least two persons from each county in
the state.
 C | Campaigns and Elections | 909

Controversies over campaign finance have increasingly come to the

Court since Congress passed the Federal Election Campaign Act of
1971. That law limits the amount of money individuals and groups may
contribute to candidates and political parties, imposes spending limits
and reporting requirements, and created an eight-member commission
to oversee the law’s implementation. The Court was badly split in Buck-
ley v. Valeo (1976) (see excerpt below), when upholding limitations on
political contributions but overturning restrictions on campaign spend-
ing. In Brown v. Socialist Workers 74 Campaign Committee, 459 U.S. 87
(1982), requirements for the disclosure of lists of contributors as ap-
plied to the Socialist Workers Party were deemed to violate the First
Amendment right of freedom of association. Subsequently, Federal
Election Commission v. National Conservative Political Action Committee
(NCPAC) (1985) (excerpted below) invalidated the law’s restrictions on
campaign expenditures by political action committees. In both Buckley
and NCPAC, the Court balanced the First Amendment right of associ-
ation against Congress’s interest in eliminating corruption in campaigns
and electoral politics. The Court also struck down as a violation of the
First Amendment the limitations on independent campaign expendi-
tures by political parties as set forth in the Federal Election Campaign
Act (FECA). Under FECA, political parties may not spend more than
$20,000, or two cents times the voting age population of a state, in
Senate races; limits on expenditures in races for the House of Repre-
sentatives are about $30,000. In Colorado Republican Federal Campaign
Committee v. Federal Election Commission, 518 U.S. 515 (1996), the Court
held that the limits on expenditures in Senate races were unconstitu-
tional but it did not address the constitutionality of spending limits on
congressional elections or the larger issue of the FECA’s limitations on
political parties’ campaign expenditures made in conjunction with a
candidate’s campaign committee. In Federal Election Commission v. Col-
orado Republican Federal Campaign Committee, 533 U.S. 431 (2001), a bare
majority upheld that restriction on political parties’ expenditures. The
Court also upheld a 1907 restriction on corporations from directly
contributing to candidates for federal office in rejecting a challenge to
that law by a nonprofit advocacy corporation, the North Carolina
Right to Life, Inc., in Federal Election Commission v, Beaumont, 539 US.
146 (2003).
Finally, in McConnell v, Federal Election Commission (2003) (ex-
cerpted below) a bare majority not only reaffirmed but extended Buck-
ley v. Valeo in upholding most of the provisions of the Bipartisan
Campaign Reform Act (BCRA) of 2002. The BCRA bans the spend-
ing of “soft money” (unregulated money) and “issue advocacy” (com-
munications by corporations and unions) that target a specific audience
910 | REPRESENTATIVE GOVERNMENT

and mention a candidate by name, without mentioning the election,

within thirty days of a primary and 60 days of a general election. Un-
der the campaign finance reforms, individuals’ campaign contributions
are limited to $4,000 per candidate in an election cycle, and PACs are
limited to spending $10,000 per election cycle (primary and general
elections). So-called 527 groups, named for a section of the Internal
Revenue Service code, may still spend, as they notably did in the 2004
presidential election, unlimited money on election activities, so long as
they do not do so thirty days before a primary or in the last sixty days
before a general election, and they still use “hard money” to pay for ads
closer to election days. Although upholding most of the restrictions of
the BCRA, the Court struck down a provision that would have banned
all campaign contributions by individuals under the age of eighteen.
However, a bare majority of the Roberts Court held, in Federal
Election Commission v. Wisconsin Right to Life, Inc. (2007) (excerpted
below), that Section 203 of the Bipartisan Campaign Reform Act
(BCRA), known as the “McCain-Feingold law” after its sponsors,
which made it a crime for corporations and unions to use general funds
for “electioneering communications” that refer to a candidate within
thirty days of federal primary elections and sixty days of a general elec-
tion, was unconstitutional “as applied” to the campaign ads by the
Wisconsin Right to Life, Inc. and other organizations. Writing for a
plurality, Chief Justice Roberts, though, declined to overturn the bare
majority’ upholding of the provision in McConnell v. Federal Election
Commission, 540 U.S. 93 (2003) (excerpted in Vol. 1, Ch. 8). Concurring
Justices Scalia, Kennedy, and Thomas agreed, but would have expressly
overruled McConnell. By contrast, dissenting Justice Souter, joined by
Justices Stevens, Ginsburg, and Breyer, sharply disagreed and countered
that the majority had eftectively overturned McConnell.
Other issues affecting campaigns and elections have been dealt
with under the First Amendment’s safeguards for freedom of speech
and press. CBS, Inc. v. Federal Communications Commission, 453 U.S. 367
(1981), for instance, affirmed an FCC order that CBS, Inc., sell airtime
for advertisements for candidates running in the 1980 presidential
election.® For other rulings, see THE DEVELOPMENT OF LAW box
in this section. .
Under the First Amendment commercial speech doctrine (see
Vol. 2, Ch. 5), the Court has struck down state laws restricting the po-
litical expenditures and advertising of corporations. First National Bank
of Boston v. Bellotti, 435 U.S. 765 (1978), overturned Massachusetts’s law
forbidding corporations from publicizing their views on an income-tax
referendum and making campaign contributions. Consolidated Edison
Company of New York v. Public Service Commission of the State of New York,
 C | Campaigns and Elections | 91x

447 U.S. 530 (1980), and Pacific Gas & Electric v. Public Utilities Commis-
sion of California, 475 U.S. 1 (1986), held that states may not force
public utility companies to include in their newsletters and billing
statements the materials of third parties addressing controversial issues
of public policy with which the companies disagree.
In recent years, there has also been a growing concern not only
about limiting campaign contributions and expenditures but also about
imposing limits on what candidates may say in elections for judicial of-
fice. In Republican Party of Minnesota v, White (2002) (excerpted below),
however, a bare majority struck, down, as a violation of the First
Amendment, a state prohibition on candidates for judicial office an-
nouncing their views on controversial legal and political issues.
In a highly controversial ruling in Elrod v. Burns, 427 U.S. 347
(1976), the justices, voting five to three, with Justice Stevens not partic-
ipating, struck down the practice of patronage dismissals as an uncon-
stitutional restriction on city employees’ First Amendment freedoms.
The controversy and struggle within the Court over the permissibility
of political patronage continued in Branti v. Finkel, 445 U.S. 507 (1980).
There the justices, six to three, with Stewart, Powell, and Rehnquist
dissenting, ruled that the First Amendment protects district attorneys
from being discharged for expressing their political views. But after Jus-
tice Stewart retired in 1981 and was replaced by Justice O’Connor, the
Court held five to four (with Brennan, Blackmun, Marshall, and
Stevens now dissenting), in Connick v. Myers, 461 U.S. 138 (1983), that
the firing of state attorneys general for political reasons does not violate
the First Amendment. But in Rutan v. Republican Party of Illinois (1990)
(excerpted below), Justice Brennan pulled together a bare majority for
sharply limiting political patronage in the hiring, promoting, and trans-
ferring of most public employees.
The First Amendment protections recognized in Elrod, Branti, and
Rutan were in turn extended to independent contractors with the
government in Board of County Commissioners, Wabaunsee County, Kansas
v. Umbehr, 518 U.S. 668 (1996), and O’Hare Tiuck Service, Inc. v. City of
Northlake, 518 U.S. 712 (1996). Keen Umbehr, a trash hauler for the
county and an outspoken critic of the county board, had his contract
terminated (so that it would not be automatically renewed) and con-
tended that the county’s retaliation for his criticisms violated the First
_Amendment. The Court agreed, holding that the First Amendment pro-
tects independent contractors from termination of their government
contracts in retaliation for the exercise of their free speech. However,
reaffirming rulings in Connick v. Myers, 461 U.S. 128 (1983), and Picker-
ing v. Bourd of Ed. of Township High School Dist., 391 U.S. 563 (1968),
Justice O’Connor in her opinion for the Court emphasized that
912 | REPRESENTATIVE GOVERNMENT

Umbehr must show that the termination of his contract was moti-
vated by his speech on a matter of public concern, an initial show-
ing that requires him to prove more than the mere fact that he
criticized the Board members before they terminated him. If he
can make that showing, the Board will have a valid defense if it can
show, by a preponderance of the evidence, that, in light of their
knowledge, perceptions and policies at the time of the termination,
the Board members would have terminated the contract regardless
of his speech. The Board will also prevail if it can persuade the Dis-
trict Court that the County’s legitimate interests as contractor, def-
erentially viewed, outweigh the free speech interests at stake. And, if
Umbehr prevails, evidence that the Board members discovered facts
after termination that would have led to a later termination anyway,
and evidence of mitigation of his loss by means of his subsequent
contracts with the cities, would be relevant in assessing what rem-
edy is appropriate.

In O’Hare Truck Service, Inc., the protections accorded in Elrod, Branti,

and Rutan to government employees were extended by the Court to
independent contractors or regular providers of service to the govern-
ment. Here, the owner of O’Hare Truck Service, Inc., refused to con-
tribute to the mayor’s reelection campaign and instead supported his
opponent. After the mayor’s reelection, the owner’s contract was term1-
nated and he sued. Writing for the Court, Justice Breyer held that in-
dependent contractors, no less than public employees, may not be
discharged for refusing to support a political party or its candidates.
As
in -Rutan, Justice Scalia dissented in Umbehr and O’Hare Truck Service;
both of his dissents were joined by Justice Thomas.
Most recently, in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), the
Roberts Court split five to four in holding that government employees
do not receive First Amendment free speech protection against a super-
visor’s alleged retaliation for their on-the-job speech criticizing office
policy andpractices. Writing for the majority, however, Justice Kennedy
noted that employees still have First Amendment protection as citizens
to voice their views publicly in, for example, letters to the editor or
in op-ed articles in newspapers. Justices Souter, Stevens, Ginsburg, and
Breyer dissented.
Finally, in McCormick v. United States, 500 U.S. 257 (1991), the
Court revisited the issue of how and on what basis the line between
bribery and campaign contributions should be drawn. At issue in
McCormick was whether federal prosecutors may use, and on what evi-
dentiary basis, federal extortion laws to prosecute and punish state-
elected officials who allegedly extort bribery money but who claim
they were merely soliciting campaign contributions.A former West Vir-
ginia state legislator, Robert McCormick, appealed his conviction for
 C | Campaigns and Elections | 913

violating federal law by soliciting money a week before a state primary

election from a group of foreign doctors, who repeatedly failed to
qualify for medical licenses and who sought special legislation enabling
them to practice in the state. McCormick received five cash contribu-
tions, totaling $5,250, in violation of state laws limiting campaign con-
tributions to $50. In addition, he failed to report the money on both
campaign disclosure forms and his state and federal income tax returns.
Both federal prosecutors and McCormick’s attorney agreed that
campaign contributions do not constitute extortion without evidence
of out-and-out vote selling. But McCormick’s attorney argued that the
logic and evidence used to convict him would potentially render every
lawmaker who solicits campaign contributions a federal felon.
By a six-to-three vote overturning McCormick’s conviction, the
Rehnquist Court made it harder for federal prosecutors to prosecute
politicians for extortion in soliciting campaign contributions. Writing
for the majority, Justice Byron White held that prosecutors must show
that a campaign contributor gave money to apolitician in exchange for
an “explicit promise” of help. “Money,” as Justice White put it, “is con-
stantly being solicited on behalf of candidates, who run on platforms
and who claim support on the basis of their views and what they intend
to do or have done.” Regardless of “[w]hatever ethical considerations
and appearances may indicate,” he ruled that it would be “unrealistic” to
hold that legislators commit extortion when they do something for
constituents who have donated money to their campaigns in response to
their solicitations. “To hold otherwise,’ White concluded, “would open
to prosecution not only conduct that has long been thought to be well
within the law but also conduct that in a very real sense is unavoidable
so long as election campaigns are financed by private contributions or
expenditures, as they have been from the beginning of the nation.”

NOTES

1. In addition, the Court struck down so-called grandfather clauses, which exempted
persons from literacy tests if their ancestors were entitled to vote at some specified
time. See Guinn v. United States, 238 U.S. 347 (1915); and Lane v. Wilson, 307 U.S. 268
(1939).
2. Marston v. Lewis, 410 U.S. 679 (1973); and Burns v. Fortson, 410 U.S. 686 (1973).
3. See Carrington v. Rash, 380 U.S. 89 (1965); and Evans v, Cornman, 398 U.S. 419
O70):
4. See Moore v. Ogilvie, 394 U.S. 814 (1969), overturning Illinois’s requirement that
for candidates to get on the ballot, they must file petitions signed by 25,000 registered
voters, and the Court’s earlier ruling in MacDougall v. Green, 335 U.S. 281 (1948). An-
derson v. Célebrezze, 460 U.S. 780 (1983), struck down Ohio’s early filing deadline for
candidates not belonging to a major political party.
914 | REPRESENTATIVE GOVERNMENT

5. See Bullock v. Carter, 405 U.S. 134 (1972), striking down a Texas law requiring a fil-
ing fee of up to $8,900; and Lubin v. Parish, 415 U.S. 709 (1974), finding that Califor-
nia’s filing fees (of $701.50) for candidates was not unreasonable but, because there
were no alternative ways of getting on the ballot, the requirement was discriminatory.
See also Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979).
6. But see also CBS v. Democratic National Committee, 412 U.S. 94 (1973), approving
CBS's policy of refusing paid editorial advertisements (see Vol. 2, Ch. 5).

SELECTED BIBLIOGRAPHY

Banks, Christopher, ed. Superintending Democracy: The Courts and the Political Process.
Akron, OH: University of Akron Press, 2001.
Bugliosi, Vincent. The Betrayal of America: How the Supreme Court Undermined the Con-
stitution and Chose Our President. New York: Thunder’s Mouth Press, 2001.
Corrado, Anthony; Mann, Thomas; Oritz, Daniel; and Potter, Trevor. The New Cam-
paign Finance Sourcebook. Washington, DC: Brookings Institution, 2005.
Dershowitz, Alan M. Supreme Injustice: How the High Court Hijacked Election 2000.
New York: Oxford University Press, 2001.
Gais, Thomas. Improper Influence: Campaign Finance Law, Political Interest Groups, and the
Problem of Equality. Ann Arbor: University of Michigan Press, 1996.
Gillman, Howard. The Votes that Counted: How the Court Decided the 2000 Presidential
Election. Chicago: University of Chicago Press, 2001.
Issacharoff, Samuel; Karlan, Pamela; and Rildes, Richard, eds. The Law of Democracy:
Legal Structure of the Political Process. Westbury: The Foundation Press, 1998.
Morris, Roy, Jr. Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen
Election of 1876. New York: Simon & Schuster, 2003.
Posner, Richard. Breaking the Deadlock: The 2000 Election, the Constitution, and the
Courts. Princeton, NJ: Princeton University Press, 2001.
Ryden, David. Representation in Crisis: The Constitution, Interest Groups, and Political Par-
ties, Albany: SUNY Press, 1996.
. The U.S. Supreme Court and the Electoral Process. Washington, DC: George-
town University Press, 2000.
Smith, Bradley. Unfree Speech: The Folly of Campaign Finance Reform. Princeton, NJ:
Princeton University Press, 2001.
Urofsky, Melvin, Money and Free Speech: Campaign Finance Reform and the Courts,
Lawrence: University of Kansas Press, 2005.
Washington Post Staff. Deadlock: The Inside Story of America’s Closest Election. New
York: Public Affairs Press, 2001. :
 C | Campaigns and Elections | 915

Bush v. Gore
$30 WS Ose i215, C1, 525° 2000)

On the night of the presidential election, November 7, 2000, the

Democratic candidate, Vice President Albert Gore, won the national
popular vote but was locked in a bitter fight with the Republican can-
didate, Texas Governor George W. Bush, for Florida’s twenty-five elec-
toral votes, which would have put either over 270 votes, the portion of
the 528 votes of the Electoral College required to win. Based on pro-
jections, CNN and other news services initially declared Gore and then
Bush the winner, but ultimately concluded the election was too close
to call. The next day the Florida Division of Elections reported that
Bush had received 2,909,135 votes and Gore 2,907,351 votes, a margin
of 1,784 for Bush. Because the margin was less than one-half of one
percent of the votes cast, an automatic machine recount was con-
ducted, as required under Florida law. The result diminished Bush’s lead
to 327 votes and Gore then sought manual recounts in three coun-
ties—Volusia, Broward, and Miami-Dade—as allowed under Florida’s
law for protesting election results. Palm Beach County subsequently an-
nounced that it would manually recount all votes and Bush filed suit in
federal district court to bar that recounting. In the meantime, a dispute
arose over the deadline for canvassing boards to submit their returns to
the Florida secretary of state for certification. The secretary’s decision
declining to waive a November 14 deadline for certification was chal-
lenged in state courts, and the Florida supreme court ruled that the
manual recounts should be included in the final vote and extended the
certification deadline to November 26. Attorneys for Bush appealed
that decision to the U.S. Supreme Court, arguing that the state supreme
court had rewritten state election law. Before the Supreme Court heard
oral arguments in that case, the secretary of state certified Bush as the
winner of the election by 537 votes and Gore filed suit, as provided
under Florida law, contesting the election.
On Friday, December 1, oral arguments in Bush v. Palm Beach
County Canvassing Board, 531 U.S. 70 (2000), (Bush I), were heard, and
for the first time an audio recording of the arguments was made avail-
_able for public broadcasting immediately after the arguments. The fol-
lowing Monday, December 4, the Court unanimously vacated and
remanded the Florida Supreme Court’s decision extending the certifi-
cation date. The Court also directed the state supreme court to clarify
the basis for its decision—specifically, whether its ruling violated the
due process clause; Section 5 of the Electoral Count Act of 1887,
916 | REPRESENTATIVE GOVERNMENT

which provides a “safe harbor” for electoral votes receiving certification

by December 12; and Article II of the U.S. Constitution, which pro-
vides that “‘[e]ach state shall appoint, in such Manner as the Legislature
thereof may direct” the electors for president and vice president.
On December 7, the Florida Supreme Court heard oral arguments
in Gore’s contest of the vote certification and the following day, voting
four to three, ordered an immediate manual recount of all votes in the
state where no vote for president was machine recorded. That deci-
sion was in turn immediately appealed by Bush attorneys to the US.
Supreme Court which granted a stay of the statewide vote recount and
also granted review and set the date for oral arguments the following
Monday, December 11, in Bush v, Gore. In addition to arguing that the
vote recount ran afoul of Article II and Section 5 of the Electoral
Count Act, attorneys for Bush contended that the manual recount was
standardless and, thus, violated the Fourteenth Amendment equal pro-
tection clause. By contrast, Gore’s lawyers claimed that every vote should
be counted. The following night at 10 pm., December 12, the Court
handed down its decision reversing the state supreme court upon finding
that a standardless manual recount violated the equal protection clause
but that a remedy—a remedy providing for a recount of votes based on
clear standards—was impossible given the December 12 deadline.
The decision of the Court was delivered in a per curiam opinion. By
a vote of seven to two, with Justices Stevens and Ginsburg dissenting,
the state supreme court’s decision was held to run afoul of the equal
protection clause. By a vote of five to four, the Court held that there
was no remedy available. Chief Justice Rehnquist, joined by Justices
Scalia and Thomas, filed a concurring opinion. Justices Stevens, Souter,
Ginsburg, and Breyer each filed dissenting opinions.

PER CURIAM

The petition presents the following questions: whether the Florida Supreme
Court established new standards for resolving Presidential election contests,
thereby violating Art. II, Sec. 1, cl. 2, of the United States Constitution and
failing to comply with [Section 5 of the Electoral Count Act of 1887] and
whether the use of standardless manual recounts violates the Equal Protec-
tion and Due Process Clauses. With respect to the equal protection question,
we find a violation of the Equal Protection Clause. .. .
This case has shown that punch card balloting machines can produce an
unfortunate number of ballots which are not punched in a clean, complete
way by the voter. After the current counting, it is likely legislative bodies
nationwide will examine ways to improve the mechanisms and machinery
for voting.
The individual citizen has no federal constitutional right to vote for
electors for the President of the United States unless and until the state leg-
islature chooses a statewide election as the means to implement its power to
 C | Campaigns and Elections | 917

appoint members of the Electoral College... .The State, of course, after

granting the franchise in the special context of Article II, can take back the
power to appoint electors.
The right to vote is protected in more than the initial allocation of the
franchise. Equal protection applies as well to the manner of its exercise. Hav-
ing once granted the right to vote on equal terms, the State may not, by later
arbitrary and disparate treatment, value one person’s vote over that of an-
other. It must be remembered that “the right of suffrage can be denied by a
debasement or dilution of the weight of a citizen’s vote just as effectively as
by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377
US. 533 (1964).
The question before us . . . is whether the recount procedures the
Florida Supreme Court has adopted are consistent with its obligation to
avoid arbitrary and disparate treatment of the members of its electorate.
Much of the controversy seems to revolve around ballot cards designed
to be perforated by a stylus but ‘which, either through error or deliberate
omission, have not been perforated with sufficient precision for a machine to
count them. In some cases a piece of the card—a chad—is hanging, say by
two corners. In other cases there is no separation atall, just an indentation.
For purposes of resolving the equal protection challenge, it is not neces-
sary to decide whether the Florida Supreme Court had the authority under
the legislative scheme for resolving election disputes to define what a legal
vote is and to mandate a manual recount implementing that definition.
The recount mechanisms implemented in response to the decisions of the
Florida Supreme Court do not satisfy the minimum requirement for non-
arbitrary treatment of voters necessary to secure the fundamental right.
Florida’s basic command for the count of legally cast votes is to consider the
“intent of the voter.’ This is unobjectionable as an abstract proposition and a
starting principle. The problem inheres in the absence of specific standards to
ensure its equal application. The formulation of uniform rules to determine
intent based on these recurring circumstances is practicable and, we con-
clude, necessary. . . .
The want of those rules here has led to unequal evaluation of ballots in
various respects. As seems to have been acknowledged at oral argument, the
standards for accepting or rejecting contested ballots might vary not only
from county to county but indeed within a single county from one recount
team to another. ...
The State Supreme Court ratified this uneven treatment. It mandated
that the recount totals from two counties, Miami-Dade and Palm Beach, be
included in the certified total. The court also appeared to hold sub silentio
that the recount totals from Broward County, which were not completed
until after the original November 14 certification by the Secretary of State,
were to be considered part of the new certified vote totals even though the
county certification was not contested by Vice President Gore. Yet each of
the counties used varying standards to determine what was a legal vote.
Broward County used a more forgiving standard than Palm Beach County,
and uncovered almost three times as many new votes, a result markedly dis-
proportionate to the difference in population between the counties.
In addition, the recounts in these three counties were not limited to so-
called undervotes but extended to all of the ballots. The distinction has real
918 | REPRESENTATIVE GOVERNMENT

consequences. A manual recount of all ballots identifies not only those bal-
lots which show no vote but also those which contain more than one, the
so-called overvotes. Neither category will be counted by the machine. This is
not a trivial concern. At oral argument, respondents estimated there are as
many as 110,000 overvotes statewide.
As a result, the citizen whose ballot was
not read by a machine because he failed to vote for a candidate in a way
readable by a machine may still have his vote counted in a manual recount;
on the other hand, the citizen who marks two candidates in a way discern-
able by the machine will not have the same opportunity to have his vote
count, even if a manual examination of the ballot would reveal the requisite
indicia of intent. Furthermore, the citizen who marks two candidates, only
one of which is discernable by the machine, will have his vote counted even
though it should have been read as an invalid ballot. The State Supreme
Court’s inclusion of vote counts based on these variant standards exemplifies
concerns with the remedial processes that were under way.
That brings the analysis to yet a further equal protection problem. The
votes certified by the court included a partial total from one county, Miami-
Dade. The Florida Supreme Court’s decision thus gives no assurance that the
recounts included in a final certification must be complete. Indeed, it is re-
spondent’s submission that it would be consistent with the rules of the recount
procedures to include whatever partial counts are done by the time of final
certification, and we interpret the Florida Supreme Court’s decision to permit
this. This accommodation no doubt results from the truncated contest period
established by the Florida Supreme Court in Bush I, at respondents’ own urg-
ing. The press of time does not diminish the constitutional concern. A desire
for speed is not a general excuse for ignoring equal protection guarantees.
In addition to these difficulties the actual process by which the votes
were to be counted under the Florida Supreme Court’s decision raises fur-
ther concerns. That order did not specify who would recount theballots. The
county canvassing boards were forced to pull together ad hoc teams com-
prised of judges from various Circuits who had no previous training in han-
dling and interpreting ballots. Furthermore, while others were permitted to
observe, they were prohibited from objecting during the recount.
The recount process, in its features here described, is inconsistent with
the minimum procedures necessary to protect the fundamental right of each
voter in the special instance of a statewide recount under the authority of a
single state judicial officer. Our consideration is limited to the present cir-
cumstances, for the problem of equal protection in election processes gener-
ally presents many complexities. . . .
Upon due consideration of the difficulties identified to this point, it is
obvious that the recount cannot be conducted in compliance with the re-
quirements of equal protection and due process without substantial addi-
tional work. It would require not only the adoption (after opportunity for
argument) of adequate statewide standards for determining what is a legal
vote, and practicable procedures to implement them, but also orderly judicial
review of any disputed matters that might arise. .. .
The Supreme Court of Florida has said that the legislature intended the
State’s electors to “participat[e] fully in the federal electoral process,’ as pro-
vided in [Section 5 of the Electoral Count Act].That statute, in turn, réquires
that any controversy or contest that is designed to lead to a conclusive selec-
 C | Campaigns and Elections | 919

tion of electors be completed by December 12. That date is upon us, and
there is no recount procedure in place under the State Supreme Court’s
order that comports with minimal constitutional standards. Because it is
evident that any recount seeking to meet the December 12 date will be un-
constitutional for the reasons we have discussed, we reverse the judgment of
the Supreme Court of Florida ordering a recount to proceed.
Seven Justices of the Court agree that there are constitutional problems
with the recount ordered by the Florida Supreme Court that demand a rem-
edy. See SOUTER, J., dissenting; BREYER, J., dissenting. The only dis-
agreement is as to the remedy. Because the Florida Supreme Court has said
that the Florida Legislature intended to obtain the safe-harbor benefits of
[Section 5] Justice BREYER’s proposed remedy—remanding to the Florida
Supreme Court for its ordering of a constitutionally proper contest until
December 18—contemplates action in violation of the Florida election
code, and hence could not’be part of an “appropriate” order authorized by
[Florida law].
The judgment of the Supreme Court of Florida is reversed, and the
case is remanded for further proceedings not inconsistent with this opinion.

“1 Chief Justice REHNQUIST, with whom Justice SCALIA and Justice

THOMAS join, concurring.
We deal here not with an ordinary election, but with an election for the
President of the United States. ...In most cases, comity and respect for fed-
eralism compel us to defer to the decisions of state courts on issues of state
law. ... But there are a few exceptional cases in which the Constitution im-
poses a duty or confers a power on a particular branch of a State’s govern-
ment. This is one of them. Article I, Sec. 1, cl. 2, provides that “[e]ach State
shall appoint, in such Manner as the Legislature thereof may direct,” electors
for President and Vice President. Thus, the text of the election law itself, and
not just its interpretation by the courts of the States, takes on independent
significance. ...
If we are to respect the legislature’s Article II powers, therefore, we must
ensure that postelection state-court actions do not frustrate the legislative
desire to attain the “safe harbor” provided by [Section 5 of the Electoral
Count Act].
In Florida, the legislature has chosen to hold statewide elections to ap-
point the State’s 25 electors. Importantly, the legislature has delegated the au-
thority to run the elections and to oversee election disputes to the Secretary
of State, and to state circuit courts. Isolated sections of the code may well
admit of more than one interpretation, but the general coherence of the leg-
islative scheme may not be altered by judicial interpretation so as to wholly
change the statutorily provided apportionment of responsibility among these
various bodies. .. .
[I]n a Presidential election the clearly expressed intent of the legislature
must prevail. And there is no basis for reading the Florida statutes as requir-
ing the counting of improperly marked ballots, as an examination of the
Florida Supreme Court’s textual analysis shows. We will not parse that analy-
sis here, except to note that the principal provision of the election code on
which it relied was .. . entirely irrelevant. The State’s Attorney General (who
920 | REPRESENTATIVE GOVERNMENT

was supporting the Gore challenge) confirmed in oral argument here that
never before the present election had a manual recount been conducted on
the basis of the contention that “undervotes” should have been examined to
determine voter intent. For the court to step away from this established prac-
tice, prescribed by the Secretary of State, the state official charged by the leg-
islature with “responsibility to ‘[o]btain and maintain uniformity in the
application, operation, and interpretation of the election laws, ” was to de-
part from the legislative scheme.
The scope and nature of the remedy ordered by the Florida Supreme
Court jeopardizes the “legislative wish” to take advantage of the safe harbor
provided by [Section 5]. December 12, 2000, is the last date for a final deter-
mination of the Florida electors that will satisfy [Section] 5. Yet in the late
afternoon of December 8th—four days before this deadline—the Supreme
Court of Florida ordered recounts of tens of thousands of so-called “under-
votes” spread through 64 of the State’s 67 counties. This was done in a search
for elusive—perhaps delusive—certainty as to the exact count of 6 million
votes. But no one claims that these ballots have not previously been tabu-
lated; they were initially read by voting machines at the time of the election,
and thereafter reread by virtue of Florida’s automatic recount provision. No
one claims there was any fraud in the election. The Supreme Court of
Florida ordered this additional recount under the provision of the election
code giving the circuit judge the authority to provide relief that is “appro-
priate under such circumstances.” ...
Given all these factors, and in light of the legislative intent identified by
the Florida Supreme Court to bring Florida within the “safe harbor” provi-
sion of [Section] 5, the remedy prescribed by the Supreme Court of Florida
cannot be deemed an “appropriate” one as of December 8. It significantly
departed from the statutory framework in place on November 7, and au-
thorized open-ended further proceedings which could not be completed by
December 12, thereby preventing a final determination by that date.
For these reasons, in addition to those given in the per curiam, we would
reverse.

Cl Justice STEVENS, with whom Justice GINSBURG and Justice

BREYER join, dissenting.
The federal questions that ultimately emerged in this case are not sub-
stantial. Article II provides that “[e]ach State shall appoint, in such Manner as
the Legislature thereof may direct,a Number of Electors.” It does not create
state legislatures out of whole cloth, but rather takes them as they come—as
creatures born of, and constrained by, their state constitutions. Lest there be
any doubt, we stated over 100 years ago in McPherson v. Blacker, 146 U.S. 1
(1892), that “[w]hat is forbidden or required to be done by a State” in the
Article II context “is forbidden or required of the legislative power under
state constitutions as they exist.” In the same vein, we also observed that
“[t]he [State’s] legislative power is the supreme authority except as limited by
the constitution of the State.” The legislative power in Florida is subject to
judicial review pursuant to ArticleV of the Florida Constitution, and noth-
ing in Article II of the Federal Constitution frees the state legislature from
the constraints in the state constitution that created it....
 C | Campaigns and Elections | 921

It hardly needs stating that Congress, pursuant to [Section] 5 did not

impose any affirmative duties upon the States that their governmental
branches could “violate.” Rather, [Section] 5 provides a safe harbor for States
to select electors in contested elections “by judicial or other methods” estab-
lished by laws prior to the election day. Section 5, like Article II, assumes the
involvement of the state judiciary in interpreting state election laws and re-
solving election disputes under those laws. Neither [Section] 5 nor Article II
grants federal judges any special authority to substitute their views for those
of the state judiciary on matters of state law.
Nor are petitioners correct in asserting that the failure of the Florida
Supreme Court to specify in detail the precise manner in which the “intent
of the voter” is to be determined rises to the level of a constitutional viola-
tion. We found such a violation when individual votes within the same State
were weighted unequally, see Reynolds v. Sims, 377 U.S. 533 (1964), but we
have never before called into question the substantive standard by which a
State determines that a vote has been legally cast. And there is no reason to
think that the guidance provided to the factfinders, specifically the various
canvassing boards, by the “intent of the voter” standard is any less suffi-
cient—or will lead to results any less uniform—than, for example, the “be-
yond a reasonable doubt” standard employed every day by ordinary citizens
in courtrooms across this country.
[T]he majority effectively orders the disenfranchisement of an unknown
number of voters whose ballots reveal their intent—and are therefore legal
votes under state law—but were for some reason rejected by ballot-counting
machines... .
What must underlie petitioners’ entire federal assault on the Florida
election procedures is an unstated lack of confidence in the impartiality and
capacity of the state judges who would make the critical decisions if the
vote count were to proceed. Otherwise, their position is wholly without
merit. The endorsement of that position by the majority of this Court can
only lend credence to the most cynical appraisal of the work of judges
throughout the land. It is confidence in the men and women who adminis-
ter the judicial system that is the true backbone of the rule of law. Time will
one day heal the wound to that confidence that will be inflicted by today’s
decision. One thing, however, is certain. Although we may never know with
complete certainty the identity of the winner of this year’s Presidential elec-
tion, the identity of the loser is perfectly clear. It is the Nation’s confidence
in the judge as an impartial guardian of the rule of law.
I respectfully dissent.

1 Justice SOUTER, with whom Justice BREYER joins and with whom
Justice STEVENS and Justice GINSBURG join with regard to all but
Part C, dissenting.
The Court should not have reviewed either Bush v. Palm Beach County
Canvassing Bd., or this case, and should not have stopped Florida’s attempt to
recount all undervote ballots by issuing a stay of the Florida Supreme
Court’s orders during the period of this review. If this Court had allowed
the State to follow the course indicated by the opinions of its own Supreme
Court, it is entirely possible that there would ultimately have been no issue
922 | REPRESENTATIVE GOVERNMENT

requiring our review, and political tension could have worked itself out in
the Congress following the procedure provided in [Section 15 of the Elec-
toral Count Act]. The case being before us, however, its resolution by the
majority is another erroneous decision... .
The [Section] 5 issue is not serious. . .. Conclusiveness requires selection
under a legal scheme in place before the election, with results determined at
least six days before the date set for casting electoral votes. But no State is re-
quired to conform to [Section] 5 if it cannot do that (for whatever reason);
the sanction for failing to satisfy the conditions of [Section] 5 is simply loss
of what has been called its “safe harbor.’ And even that determination is to
be made, if made anywhere, in the Congress.
The second matter here goes to the State Supreme Court’s interpreta-
tion of certain terms in the state statute governing election “contests.” .. .
The issue is whether the judgment of the state supreme court has displaced
the state legislature’s provisions for election contests: is the law as declared
by the court different from the provisions made by the legislature, to which
the national Constitution commits responsibility for determining how each
State’s Presidential electors are chosen? . .
The starting point for evaluating the claim that the Florida Supreme
Court’s interpretation effectively re-wrote [Florida law] must be the lan-
guage of the provision on which Gore relies to show his right to raise this
contest: that the previously certified result in Bush’s favor was produced by
“rejection of a number of legal votes sufficient to change or place in doubt
the result of the election.’ None of the state court’s interpretations is un-
reasonable to the point of displacing the legislative enactment quoted. ...
In sum, the interpretations by the Florida court raise no substantial
questions under Article II... .

The

It is only on the third issue before us that there is a meritorious argument for
relief, as this Court’s Per Curiam opinion recognizes. . . . Petitioners have
raised an equal protection claim (or, alternatively, a due process claim, see
generally Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)), in the charge
that unjustifiably disparate standards are applied in different electoral juris-
dictions to otherwise identical facts. . . .
In deciding what to do about this, we should take account of the fact
that electoral votes are due to be cast in six days. 1 would therefore remand
the case to the courts of Florida with instructions to establish uniform stan-
dards for evaluating the several types of ballots that have prompted differing
treatments, to be applied within and among counties when passing on such
identical ballots in any further recounting (or successive recounting) that the
courts might order.
Unlike the majority, I see no warrant for this Court to assume that
Florida could not possibly comply with this requirement before the date set
for the meeting of electors, December 18....
I respectfully dissent.

(| Justice GINSBURG, with whom Justice STEVENS joins, and with

whom Justice SOUTER and Justice BREYER join as to Part I, dissenting.
 C | Campaigns and Elections | 923

a |

The extraordinary setting of this case has obscured the ordinary principle
that dictates its proper resolution: Federal courts defer to state high courts’
interpretations of their state’s own law. This principle reflects the core of fed-
eralism, on which all agree. The CHIEF JUSTICE’ solicitude for the Florida
Legislature comes at the expense of the more fundamental solicitude we
owe to the legislature’s sovereign. Were the other members of this Court as
mindful as they generally are of our system of dual sovereignty, they would
affirm the judgment of the Florida Supreme Court.

a II

I agree with Justice STEVENS that petitioners have not presented a sub-
stantial equal protection claim. Ideally, perfection would be the appropriate
standard for judging the recount. But we live in an imperfect world, one in
which thousands of votes have not been counted. I cannot agree that the
recount adopted by the Florida court, flawed as it may be, would yield a
result any less fair or precise than the certification that preceded that
recount.
Even if there were an equal protection violation, | would agree with
Justice STEVENS, Justice SOUTER, and Justice BREYER that the Court’s
concern about “the December 12 deadline” is misplaced. .. . More funda-
mentally, the Court’s reluctance to let the recount go forward—despite its
suggestion that “[t]he search for intent can be confined by specific rules de-
signed to ensure uniform treatment”—ultimately turns on its own judgment
about the practical realities of implementing a recount, not the judgment of
those much closer to the process... .
The Court assumes that time will not permit “orderly judicial review of
any disputed matters that might arise.’ But no one has doubted the good
faith and diligence with which Florida election officials, attorneys for all
sides of this controversy, and the courts of law have performed their duties.
Notably, the Florida Supreme Court has produced two substantial opinions
within 29 hours of oral argument. In sum, the Court’s conclusion that a
constitutionally adequate recount is impractical is a prophecy the Court’s
own judgment will not allow to be tested. Such an untested prophecy should
not decide the Presidency of the United States.
I dissent.

(1 Justice BREYER, with whom Justice STEVENS and Justice

GINSBURG join except as to Part IA (1), and with whom Justice
SOUTER joins as to Part I, dissenting.

= IA (1)
The majority raises three Equal Protection problems with the Florida
Supreme Court’s recount order: first, the failure to include overvotes in the
manual recount; second, the fact that all ballots, rather than simply the
undervotes, were recounted in some, but not all, counties; and third, the ab-
sence of a uniform, specific standard to guide the recounts.
As far as the first
924 | REPRESENTATIVE GOVERNMENT

issue is concerned, petitioners presented no evidence, to this Court or to any

Florida court, that a manual recount of overvotes would identify additional
legal votes. The same is true of the second, and, in addition, the majority’s
reasoning would seem to invalidate any state provision for a manual recount
of individual counties in a statewide election.
The majority’s third concern does implicate principles of fundamental
fairness. The majority concludes that the Equal Protection Clause requires
that a manual recount be governed not only by the uniform general standard
of the “clear intent of the voter,’ but also by uniform subsidiary standards
(for example, a uniform determination whether indented, but not perfo-
rated, “undervotes” should count)... .I agree that, in these very special
circumstances, basic principles of fairness may well have counseled the adop-
tion of a uniform standard to address the problem. In light of the majority’s
disposition, I need not decide whether, or the extent to which, as a remedial
matter, the Constitution would place limits upon the content of the uniform
standard.

= (2)
Nonetheless, there is no justification for the majority’s remedy, which is sim-
ply to reverse the lower court and ‘halt the recount entirely. An appropriate
remedy would be, instead, to remand this case with instructions that, even at
this late date, would permit the Florida Supreme Court to require recount-
ing all undercounted votes in Florida, including those from Broward, Volusia,
Palm Beach, and Miami-Dade Counties, whether or not previously re-
counted prior to the end of the protest period, and to do so in accordance
with a single-uniform substandard. . . .
By halting the manual recount, and thus ensuring that the uncounted
legal votes will not be counted under any standard, this Court crafts a rem-
edy out of proportion to the asserted harm. And that remedy harms the very
fairness interests the Court is attempting to protect. ...

a I]
The decision by both the Constitution’s Framers and the 1886 Congress to
minimize this Court’s role in resolving close federal presidential elections is
as wise as it is clear. However awkward or difficult it may be for Congress to
resolve difficult electoral disputes, Congress, being a political body, expresses
the people’s will far more accurately than does an unelected Court. And the
people’s will is what elections are about.
Moreover, Congress was fully aware of the danger that would arise
should it ask judges, unarmed with appropriate legal standards, to resolve a
hotly contested Presidential election contest. Just after the 1876 Presiden-
tial election, Florida, South Carolina, and Louisiana each sent two slates of
electors to Washington. Without these States, Tilden, the Democrat, had 184
electoral votes, one short of the number required to win the Presidency.
With those States, Hayes, his Republican opponent, would have had 185. In
order to choose between the two slates of electors, Congress decided to ap-
point an electoral commission composed of five Senators, five Representa-
tives, and five Supreme Court Justices. Initially the Commission was to be
evenly divided between Republicans and Democrats, with Justice DAVID
 C | Campaigns and Elections | 925

DAVIS, an Independent, to possess the decisive vote. However, when at the

last minute the Illinois Legislature elected Justice DAVIS to the United States
Senate, the final position on the Commission was filled by Supreme Court
Justice JOSEPH P. BRADLEY. The Commission divided along partisan
lines, and the responsibility to cast the deciding vote fell to Justice Bradley.
He decided to accept the votes by the Republican electors, and thereby
awarded the Presidency to Hayes.
Justice BRADLEY immediately became the subject of vociferous at-
tacks. BRADLEY was accused of accepting bribes, of being captured by
railroad interests, and of an eleventh-hour change in position after a night in
which his house “‘was surrounded ny the carriages” of Republican partisans
and railroad officials.
For present purposes, the Aieetee of this history lies in the fact that
the participation in the work of the electoral commission by five Justices, in-
cluding Justice BRADLEY, did not lend that process legitimacy. Nor did it
assure the public that the process had worked fairly, guided by the law.
Rather, it simply embroiled Members of the Court in partisan conflict,
thereby undermining respect for the judicial process. And the Congress that
later enacted the Electoral Count Act knew it.
This history may help to explain why I think it not only legally wrong,
but also most unfortunate, for the Court simply to have terminated the
Florida recount. . . . [A]bove all, in this highly politicized matter, the appear-
ance of a split decision runs the risk of undermining the public’s confidence
in the Court itself. That confidence is a public treasure. . . . It is a vitally nec-
essary ingredient of any successful effort to protect basic liberty and, indeed,
the rule of law itself. We run no risk of returning to the days when a Presi-
dent (responding to this Court’s efforts to protect the Cherokee Indians)
might have said, “JOHN MARSHALL has made his decision; now let him
enforce it!” But we do risk aself-inflicted wound—a wound that may harm
not just the Court, but the Nation....
I respectfully dissent.

Buckley v. Valeo
APAa, 51,090.94.F OF2 (1970)

In 1971, Congress enacted the Federal Election Campaign Act to safe-

guard against corruption in federal elections. The act, as amended in
1974, among other things provided that

1. Political contributions by individuals and groups were limited to

| $1,000 each and by political committees to $5,000 for any single
candidate in an election, with an annual limit of $25,000 on any in-
dividual contributor.
2 Independent spending by an individual or group “relative to a
clearly identified candidate” was limited to $1,000 per election.
926 | REPRESENTATIVE GOVERNMENT

3. Personal contributions by both the candidate and relatives toward a

campaign were limited according to the office being sought.
4. Overall expenditures by a candidate in an election were limited ac-
cording to the office being sought.
5. Political committees were required to keep records on contributions
and expenditures and to publicly disclose the identity of contribu-
tors and the reason for expenditures above a certain amount.
6. An eight-member commission was created to oversee enforcement
of the law.
7. The Internal Revenue Code was amended to provide for public fi-
nancing of primary and general elections with major party candi-
dates receiving “full” funding and “minor” or “new” party candidates
receiving a reduced proportion of funding on a dollar-matching basis.

Republican Senator James Buckley and former Democratic senator

and presidential candidate Eugene McCarthy, among others, sued Francis
Valeo, the secretary of the Senate, the clerk of the House of Representa-
tives, and others. Buckley contended that various provisions of the law
were unconstitutional and in violation of the appointments clause of Ar-
ticle II, Section 2, Clause 2, and the First and Fifth Amendments. The
Court of Appeals for the District of Columbia Circuit, however, rejected
most of Buckley’s arguments, and he appealed to the Supreme Court.
The Court’s decision on the various provisions challenged was
extraordinarily fragmented and its opinion announced per curiam, with
Justice Stevens not participating and_five justices dissenting in part. Sep-
arate Opinions, concurring in part and dissenting in part, were delivered
by Chief Justice Burger and Justices White, Marshall, Rehnquist, and
Blackmun.

PER CURIAM

These appeals present constitutional challenges to the key provisions of the

Federal Election Campaign Act of 1971 as amended in 1974....
The Act, summarized in broad terms, contains the following provisions:
(a) individual political contributions are limited to $1,000 to any single can-
didate per election, with an overall annual limitation of $25,000 by any con-
tributor; 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 con-
ventions by political parties are subject to prescribed limits; (b) contributions
and expenditures above certain threshold levels must be reported and pub-
licly disclosed; (c) a system for public funding of Presidential campaign activ-
ities is established by Subtitle H of the Internal Revenue Code; and (d) a
Federal Election Commission is established to administer and enforce the
Actos
 C | Campaigns and Elections | 927

In this Court, appellants argue that the Court of Appeals failed to give
this legislation the critical scrutiny demanded under accepted First Amend-
ment and equal protection principles. In appellants’ view, limiting the use of
money for political purposes constitutes a restriction on communication
violative of the First Amendment, since virtually all meaningful political
communications in the modern setting involve the expenditure of money.
Further, they argue that the reporting and disclosure provisions of the Act
unconstitutionally impinge on their right to freedom of association. Appel-
lants also view the federal subsidy provisions of Subtitle H as violative of the
General Welfare Clause, and as inconsistent with the First and Fifth Amend-
ments. Finally, appellants renew their attack on the Commission’s composi-
tion and powers... .

I. CONTRIBUTION AND EXPENDITURE LIMITATIONS

The intricate statutory scheme adopted by Congress to regulate federal elec-

tion campaigns includes restrictions on political contributions and expendi-
tures that apply broadly to ‘all phases of and all participants in the election
process. The major contribution and expenditure limitations in the Act pro-
hibit individuals from contributing more than $25,000 in a single year or
more than $1,000 to any single candidate for an election campaign and from
spending more than $1,000 a year “relative to a clearly identified candidate.”
Other provisions restrict a candidate’s use of personal and family resources in
his campaign and limit the overall amount that can be spent by a candidate
in campaigning for federal office. ...
A. General Principles The Act’s contribution and expenditure limitations
operate in an area of the most fundamental First Amendment activities. Dis-
cussion of public issues and debate on the qualifications of candidates are
integral to the operation of the system of government established by our
Constitution. ...
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, 391 U.S. 367 (1968). The O’Brien case involved a defen-
dant’s claim that the First Amendment prohibited his prosecution for burn-
ing his draft card because his act was “symbolic speech” engaged in as a
“demonstration against the war and against the draft’ ”...
We cannot share the view that the present Act’s contribution and ex-
penditure 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... .
Even if the categorization of the expenditure of money as conduct
were accévted; the limitations challenged here would not meet the O’Brien
test because the governmental interests advanced in support of the Act in-
volve “suppressing communication.” The interests served by the Act include
928 | REPRESENTATIVE GOVERNMENT

restricting the voices of people and interest groups who have money to
spend and reducing the overall scope of federal election campaigns. Al-
though the Act does not focus on the ideas expressed by persons or groups
subjected to its regulations, it is aimed in part at equalizing the relative abil-
ity of all voters to affect electoral outcomes by placing a ceiling on expendi-
tures for political expression by citizens and groups. Unlike O’Brien, where
the Selective Service System’s administrative interest in the preservation of
draft cards was wholly unrelated to their use as a means of communication,
it is beyond dispute that the interest in regulating the alleged “conduct” of
giving or spending money “arises in some measure because the communica-
tion allegedly integral to the conduct is itself thought to be harmful.” . ..
Nor can the Act’s contribution and expenditure limitations be sustained,
as some of the parties suggest, by reference to the constitutional principles
reflected in such decisions as Cox v. Louisiana [379 U.S. 536 (1965)], Adderley
v. Florida, 385 U.S. 39 (1966), and Kovacs v. Cooper, 336 U.S. 77 (1949). Those
cases stand for the proposition that the government may adopt reasonable
time, place, and manner regulations, which do not discriminate between
speakers or ideas, in order to further an important governmental interest un-
related to the restriction of communication. In contrast to O’Brien, where
the method of expression was held.to be subject to prohibition, Cox, Adder-
ley, and Kovacs involved place or manner restrictions on legitimate modes of
expression—picketing, parading, demonstrating, and using a soundtruck. The
critical difference between this case and those time, place and manner cases is
that the present Act’s contribution and expenditure limitations impose direct
quantity restrictions on political communication and association by persons,
groups, candidates and political parties in addition to any reasonable time,
place, and manner regulations otherwise imposed.
_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 virtu-
ally 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 infor-
mation has made these expensive modes of communication indispensible in-
struments of effective political speech.
The expenditure limitations contained in the Act represent substantial
rather than merely theoretical restraints on the quantity and diversity of po-
litical speech. The $1,000 ceiling on spending “relative to a clearly identified
candidate,’ 18 U.S.C. Sec. 608(e)(1), 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. Although
the Act’s limitations on expenditures by campaign organizations and politi-
cal parties provide substantially greater room for discussion and debate, they
would have required restrictions in the scope of a number of past congres-
sional and Presidential campaigns and would operate to constrain campaign-
ing by candidates who raise sums in excess of the spending ceiling.
By contrast with a limitation upon expenditures for political expression,
a limitation upon the amount that any one person or group may contribute
 C | Campaigns and Elections | 929

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 undifferenti-
ated, symbolic act of contributing. At most, the size of the contribution pro-
vides a very rough index of the intensity of the contributor’s support for the
candidate.A limitation on the amount of money a person may give to a can-
didate or campaign organization thus involves little direct restraint on his po-
litical communication, for it permits the symbolic expression of support
evidenced by a contribution but does not in any way infringe the contribu-
tor’s freedom to discuss candidates andissues. While contributions may result
in political expression if spent by a candidate or an association to present
views to the voters, the transformation of contributions into political debate
involves speech by someone other than the contributor.
Given the important role of contributions in financing political cam-
paigns, contribution restrictions could have a severe impact on political dia-
logue if the limitations prevented candidates and political committees from
amassing the resources necessary for effective advocacy. There is no indica-
tion, 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 po-
litical expression, rather than to reduce the total amount of money poten-
tially available to promote political expression. .. .
In sum, although the Act’s contribution and expenditure limitations
both implicate fundamental First Amendment interests, its expenditure ceil-
ings impose significantly more severe restrictions on protected freedoms of
political expression and association than do its limitations on financial con-
tributions.
Section 608(b) provides, with certain limited exceptions, that “no per-
son shall make contributions to any candidate with respect to any election
for Federal office which, in the aggregate, exceeds $1,000.” ...
[T]he primary First Amendment problem raised by the Act’s contribu-
tion limitations is their restriction of one aspect of the contributor’s freedom
of political association. The Court’s decisions involving associational free-
doms establish that the right of association is a “basic constitutional free-
dom” that is “closely allied to freedom of speech and a right which, like
free speech, lies at the foundation of a free society.’ In view of the funda-
mental nature of the right to associate, governmental “action which may
have the effect of curtailing the freedom to associate is subject to the closest
scrutiny.” NAACP v. Alabama [377 U.S. 288 (1968)]. Yet, it is clear that “[n]ei-
ther the right to associate nor the right to participate in political activities is
absolute.” Even a “ ‘significant interference’ with protected rights of political
association” may be sustained if the State demonstrates a sufficiently impor-
tant interest and employs means closely drawn to avoid unnecessary abridge-
ment of associational freedoms. .. .
It is unnecessary to look beyond the Act’s primary purpose—to limit
930 | REPRESENTATIVE GOVERNMENT

the actuality and appearance of corruption resulting from large individual

financial contributions—in order to find a constitutionally sufficient justifi-
cation for the $1,000 contribution limitation. Under a system of private fi-
nancing 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 oper-
ations 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 political quid pro quos from current
and potential office holders, the integrity of our system of representative
democracy is undermined. ...
Of almost equal concern as the danger of actual quid pro quo arrange-
ments is the impact of the appearance of corruption stemming from public
awareness of the opportunities for abuse inherent in a regime of large indi-
vidual financial contributions. ... Congress could legitimately conclude that
the avoidance of the appearance of improper influence “‘is also critical .. .
if confidence in the system of representative Government is not to be
eroded... .”
Appellants contend that the contribution limitations must be invalidated
because bribery laws and narrowly drawn disclosure requirements consti-
tuted a less restrictive means of dealing with “proven and suspected quid pro
quo arrangements.” But laws making criminal the giving and taking of bribes
deal with only the most blatant and specific attempts of those with money to
influence governmental action. And while disclosure requirements serve the
many salutary purposes discussed elsewhere in the opinion, Congress was
surely entitled to conclude that disclosure was only a partial measure, and
that contribution ceilings were a necessary legislative concomitant to deal
with the reality or appearance of corruption inherent in a system permitting
unlimited financial contributions, even when the identities of the contribu-
tors and the amounts of their contributions are fully disclosed. . ..
We find that, under the rigorous standard of review established by our
prior decisions, the weighty interests served by restricting the size of finan-
cial contributions to political candidates are sufficient to justify the limited
effect upon First Amendment freedoms caused by the $1,000 contribution
ceiling. 2.
Apart from these First Amendment concerns, appellants argue that the
contribution limitations work such an invidious discrimination between in-
cumbents and challengers that the statutory provisions must be declared un-
constitutional on their face... .
[But t]here is no... evidence to support the claim that the contribution
limitations in themselves discriminate against major-party challengers to
incumbents. Challengers can and often do defeat incumbents in federal
elections. Major-party challengers in federal elections are usually men and
women who are well known and influential in their community or State.
Often such challengers are themselves incumbents in important local, state,
or federal offices. Statistics in the record indicate that major-party challengers
as well as incumbents are capable of raising large sums for campaigning. In-
deed, a small but nonetheless significant number of challengers have in re-
cent elections outspent their incumbent rivals. And, to the extent that
 C | Campaigns and Elections | 931
ee
incumbents generally are more likely than challengers to attract very large
contributions, the Act’s $1,000 ceiling has the practical effect of benefiting
challengers as a class. Contrary to the broad generalization drawn by the ap-
pellants, the practical impact of the contribution ceilings in any given elec-
tion will clearly depend upon the amounts in excess of the ceilings that, for
various reasons, the candidates in that election would otherwise have re-
ceived and the utility of these additional amounts to the candidates... .
In view of these considerations, we conclude that the impact of the
Act’s $1,000 contribution limitation on major-party challengers and on
minor-party candidates does not render the provision unconstitutional on its
FaGeS {ff
Section 608(b)(2) of Title 18 permits certain committees, designated as
“political committees,” to contribute up to $5,000 to any candidate with re-
spect to any election for federal office. In order to qualify for the higher con-
tribution ceiling, a group must have been registered with the Commission as
a political committee under 2 U.S.C. Sec. 433 for not less than 6 months,
have received contributions from more than 50 persons and, except for state
political party organizations, have contributed to five or more candidates for
federal office. Appellants argue that these qualifications unconstitutionally
discriminate against ad hoc organizations in favor of established interest
groups and impermissibly burden free association. The argument is without
merit. Rather than undermining freedom of association, the basic provision
enhances the opportunity of bona fide groups to participate in the election
process, and the registration, contribution, and candidate conditions serve the
permissible purpose of preventing individuals from evading the applicable
contribution limitations by labeling themselves committees. . ..
C. Expenditure Limitations The Act’s expenditure ceilings impose direct and
substantial restraints on the quantity of political speech. The most drastic of the
limitations restricts individuals and groups, including political parties that fail to
place a candidate on the ballot, to an expenditure of $1,000 “relative to a
clearly identified candidate during a calendar year.’ Sec. 608(e)(1). Other ex-
penditure ceilings limit spending by candidates, Sec. 608(a), their campaigns,
Sec. 608(c), and political parties in connection with election campaigns,
Sec. 608(f). It is clear that a primary effect of these expenditure limitations is
to restrict the quantity of campaign speech by individuals, groups, and candi-
dates. The restrictions, while neutral as to the ideas expressed, limit political ex-
pression “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 Sec. 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 “rela-
tive to a clearly identified candidate” through means that entail aggregate ex-
penditures of more than $1,000 during a calendar year. The provision, for
932 | REPRESENTATIVE GOVERNMENT

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 identi-
fied candidate” in a major metropolitan newspaper. .. .
We turn then to the basic First Amendment question—whether
Sec. 608(c)(1), even as thus narrowly and explicitly construed, impermissibly
burdens the constitutional right of free expression. . . .
The discussion, supra, explains why the Act’s expenditure limitations im-
pose far greater restraints on the freedom of speech and association than do
its contribution limitations. . . .
We find that the governmental interest in preventing corruption and the
appearance of corruption is inadequate to justify Sec. 608(e)(1)’s ceiling on
independent expenditures. First . . . Sec. 608(e)(1) prevents only some large
expenditures. So long as persons and groups eschew expenditures that in ex-
press terms advocate the election or defeat of a clearly identified candidates
they are free to spend as much as they want to promote the candidate and
their views. The exacting interpretation of the statutory language necessary to
avoid unconstitutional vagueness thus undermines the limitation’s effective-
ness as a loophole-closing provision by facilitating circumvention by those
seeking to exert improper influence upon a candidate or office-holder. ...
Second ... parties defending Sec. 608(e)(1) contend that it is necessary
to prevent would-be contributors from avoiding the contribution limitations
by the simple expedient of paying directly for media advertisements or for
other portions of the candidate’s campaign activities. They argue that expen-
ditures controlled by or coordinated with the candidate and his campaign
might well have virtually the same value to the candidate as a contribution
and would pose similar dangers of abuse. Yet such controlled or coordinated
expenditures are treated as contributions rather than expenditures under
the Act. Section 608(b)’s contribution ceilings rather than Sec. 608(e)(1)’s in-
dependent expenditure limitation prevent attempts to circumvent the Act
through prearranged or coordinated expenditures amounting to disguised
contributions. By contrast Sec. 608(e)(1) limits expenditures for express ad-
vocacy of candidates made totally independently of the candidate and his
campaign. Unlike contributions, such independent expenditures may well
provide little assistance to the candidate’s campaign and indeed may prove
counter-productive. The absence of prearrangement and coordination of an
expenditure with the candidate or his agent not only undermines the value
of the expenditure to the candidate, but also alleviates the danger that ex-
penditures will be given as a quid pro quo for improper commitments from
the candidate. Rather than preventing circumvention of the contribution
limitations, Sec. 608(e)(1) severely restricts all independent advocacy despite
its substantially diminished potential for abuse. .. .
It is argued, however, that the ancillary governmental interest in equaliz-
ing the relative ability of individuals and groups to influence the outcome of
elections serves to justify the limitation on express advocacy of the election
or defeat of candidates imposed by Sec. 608(e)(1)’s expenditure ceiling. But
the concept that government may restrict the speech of some elements of
our society in order to enhance the relative voice of others is wholly foreign
to the First Amendment, which was designed “to secure ‘the widest possible
dissemination of information from diverse and antagonistic sources? ” and
“ “to assure unfettered interchange of ideas for the bringing about of politi-
 C | Campaigns and Elections | 933

cal and social changes desired by the people” ” New York Times Co. v. Sullivan
[376 U.S. 254 (1964)]. The First Amendment's protection against govern-
mental abridgement of free expression cannot properly be made to depend
on a person’s financial ability to engage in public discussion. . . .
For the reasons stated, we conclude that Sec. 608(e)(1)’s independent ex-
penditure limitation is unconstitutional under the First Amendment.

2. Limitation on Expenditures by Candidates from Personal or Family Re-

sources
The Act also sets limits on expenditures by a candidate “from his per-
sonal funds, or the personal funds of his immediate family, in connection
with his campaigns during any calendar year.” .. .
The ceiling on personal expenditures by candidates on their own behalf,
like the limitations on independent expenditures contained in Sec. 608(e)(1),
imposes a substantial restraint on the ability of persons to engage in pro-
tected First Amendment expressiori. The candidate, no less than any other
person, has a First Amendment right to engage in the discussion of public is-
sues and vigorously and tirelessly to advocate his own election and the elec-
tion of other candidates. .. . Section 608(a)’s ceiling on personal expenditures
by a candidate in furtherance of his own candidacy thus clearly and directly
interferes with constitutionally protected freedoms. .. .

3. Limitations on Campaign Expenditures

Section 608(c) of the Act places limitations on overall campaign expen-
ditures by candidates seeking nomination for election and election to federal
office. Presidential candidates may spend $10,000,000 in seeking nomination
for office and an additional $20,000,000 in the general election campaign.
Sec. 608(c)(1)(A), (B). The ceiling on Senate campaigns is pegged to the size
of the voting age population of the State with minimum dollar amounts ap-
plicable to campaigns in States with small populations. .. .
No governmental interest that has been suggested is sufficient to jus-
tify the restriction on the quantity of political expression imposed by
Sec. 608(c)’s campaign expenditure limitations. The major evil associated with
rapidly increasing campaign expenditures is the danger of candidate depend-
ence on large contributions. The interest in alleviating the corrupting influ-
ence of large contributions is served by the Act’s contribution limitations and
disclosure provisions rather than by Sec. 608(c)’s campaign expenditure ceil-
ings. The Court of Appeals’s assertion that the expenditure restrictions are
necessary to reduce the incentive to circumvent direct contribution limits is
not persuasive. There is no indication that the substantial criminal penalties for
violating the contribution ceilings combined with the political repercussion
of such violations will be insufficient to police the contribution provisions.
Extensive reporting, auditing, and disclosure requirements applicable to both
contributions and expenditures by political campaigns are designed to facili-
tate the detection of illegal contributions. .. .
The interest in equalizing the financial resources of candidates compet-
ing for federal office is no more convincing a justification for restricting the
scope of federal election campaigns. Given the limitation on the size of out-
side contributions, the financial resources available to a candidate’s campaign,
like the number of volunteers recruited, will normally vary with the size and
intensity of the candidate’s support... .
934 | REPRESENTATIVE GOVERNMENT

In any event, the mere growth in the cost of federal election campaigns
in and itself provides no basis for government restrictions on the quantity of
campaign spending and the resulting limitation on the scope of federal cam-
paigns. The First Amendment denies government the power to determine
that spending to promote one’s political views is wasteful, excessive, or un-
wise. In the free society ordained by our Constitution it is not to govern-
ment, but the people—individually as citizens and candidates and collectively
as associations and political committees—who must retain control over the
quantity and range of debate on public issues in a political campaign.
For these reasons we hold that Sec. 608(c) is constitutionally invalid.
In sum, the provisions of the Act that impose a $1,000 limitation on
contributions to a single candidate, Sec. 608(b)(2), a $5,000 limitation on
contributions by political committee to a single candidate, Sec. 608(b)(2),
anda $25,000 limitation of total, contributions by an individual during
any calendar year, Sec. 608(b)(3), are constitutionally valid. These limitations
along with the disclosure provisions, constitute the Act’s primary weapons
against the reality or appearance of improper influence stemming from the
dependence of candidates on large campaign contributions. The contribu-
tion ceilings thus serve the basic governmental interest in safeguarding the
integrity of the electoral process without directly impinging upon the rights
of individual citizens and candidates to engage in political debate and discus-
sion. By contrast, the First Amendment requires the invalidation of the Act’s
independent expenditure ceiling, Sec. 608(e)(1), its limitation on a candi-
date’s expenditures from his own personal funds, Sec. 608(a), and ceilings on
overall campaign expenditures, Sec. 608(c). These provisions place substantial
and direct restrictions on the ability of candidates, citizens, and associations
to engage in protected political expression, restrictions that the First Amend-
ment cannot tolerate... .

CONCLUSION

In summary, we sustain the individual contribution limits, the disclosure and

reporting provisions, and the public financing scheme. We conclude, how-
ever, that the limitations on campaign expenditures, on independent expen-
ditures by individuals and groups, and on expenditures by a candidate from
his personal funds are constitutionally infirm.

(1 Chief Justice BURGER, concurring in part and dissenting in part.

I dissent from those parts of the Court’s holding sustaining the Act’s
provisions (a) for disclosure of small contributions, (b) for limitations on
contributions, and (c) for public financing of Presidential campaigns. In my
view, the Act’s disclosure scheme is impermissibly broad and violative of the
First Amendment as it relates to reporting $10 and $100 contributions. ...
For me contributions and expenditures are two sides of the same First
Amendment coin... .
The Court’s attempt to distinguish the communication inherent in po-
litical contributions from the speech aspects of political expenditures simply will
not wash. We do little but engage in word games unless we recognize that
people—candidates and contributors—spend money on political activity
because they wish to communicate ideas, and their constitutional inter-
 C | Campaigns and Elections | 935

est in doing so is precisely the same whether they or someone else utter the
words. ...

(| Justice WHITE, concurring in part and dissenting in part.

I dissent . . . from the Court’s view that the expenditure limitations of
18 US.C. Sec. 608(c) and (e) violate the First Amendment... .
The congressional judgment, which I would also accept, was that...
steps must be taken to counter the corrosive effects of money in federal elec-
tion campaigns. One of these steps is Sec. 608(e), which, aside from those
funds that are given to the candidate or spent at his request or with his ap-
proval or cooperation limits what a contributor may independently spend in
support or denigration of one running for federal office. Congress was
plainly of the view that these expenditures also have corruptive potential;
but the Court strikes down the provision, strangely enough claiming more
insight as to what may improperlyinfluence candidates than is possessed by
the majority of Congress that passed this Bill and the President who signed
loth
I would take the word of those who know—that limiting independent
expenditures is essential to prevent transparent and widespread evasion of the
contribution limits... .
[T]he argument that money is speech and that limiting the flow of
money to the speaker violates the First Amendment proves entirely too
much. Compulsory bargaining and the right to strike, both provided for or
protected by federal law, inevitably have increased the labor costs of those
who publish newspapers, which are in turn an important factor in the recent
disappearance of many daily papers... . But it has not been suggested, nor
could it be successfully, that these laws, and many others, are invalid because
they siphon off or prevent the accumulation of large sums that would other-
wise be available for communicative activities. . ..

“| Justice BLACKMUN, concurring in part and dissenting in part.

J am not persuaded that the Court makes, or indeed is able to make, a
principled constitutional distinction between the contribution limitations,
on the one hand, and the expenditure limitations on the other, that are in-
volved here. I therefore do not join [all] of the Court’s opinion ... . [and] dis-
sent [in part].
936 | REPRESENTATIVE GOVERNMENT

Federal Election Commission v. National

Conservative Political Action Committee (NCPAC)
and
Democratic Party of the United States v. National
Conservative Political Action Committee (NCPAC)
470 U.S. 480, 105 S.CT. 1459 (1985)

The Court’s ruling in Buckley v. Valeo did not put an end to the contro-
versies surrounding the Federal Election Campaign Act. Under the act,
if a presidential candidate accepts public financing for his or her elec-
tion campaign, independent political action committees (PACs) may
not spend more than $1,000 to support the election of their presi-
dential candidate. In 1975, the National Conservative Political Action
Committee (NCPAC) was formed to help promote the election of po-
litical conservatives. When the Federal Election Commission, which
monitors campaign contributions for federal elections, and the Demo-
cratic Party of the United States charged that NCPAC was violating
the provisions of the Federal Election Campaign Act, NCPAC coun-
tered that the law violated its First Amendment rights of freedom of
speech and association. A federal district court agreed that the restric-
tions on PACs’ campaign contributions ran afoul of the First Amend-
ment. The Federal Election Commission and the Democratic Party of
the United States appealed that decision to the Supreme Court. Justice
William H. Rehnquist further discusses the pertinent facts in his opin-
ion announcing the decision of the Court.
The Court’s decision was five to four; the majority’s opinion was
announced by Justice Rehnquist. A separate opinion, in part concur-
ring and dissenting, was delivered by Justice Stevens. Dissents were by
Justices White and Marshall, joined by Justice Brennan.

4) Justice REHNQUIST delivers the opinion of the Court.

The Presidential Election Campaign Fund Act (Fund Act), 26 U.S.C.
Sec. 9001 et seq., offers the Presidential candidates of major political parties
the option of receiving public financing for their general election cam-
paigns. If a Presidential candidate elects public financing, Sec. 9012(f) makes
it a criminal offense for independent “political committees,’ such as ap-
pellees National Conservative Political Action Committee (NCPAC) and
Fund For A Conservative Majority (FCM), to expend more than $1,000 to
further that candidate’s election. A three-judge District Court for the East-
eeC | Campaigns and Elections aE
| 937

ern District of Pennsylvania, in companion lawsuits brought respectively by

the Federal Election Commission (FEC) and by the Democratic Party of
the United States and the Democratic National Committee (DNC), held
Sec. 9012(f) unconstitutional on its face because it violated the First
Amendment to the United States Constitution. . .. [We now affirm the
lower court’s ruling.|
NCPAC is a nonprofit, nonmembership corporation formed under the
District of Columbia Nonprofit Corporation Act in August 1975 and regis-
tered with the FEC as a political committee. Its primary purpose is to at-
tempt to influence directly or indirectly the election or defeat of candidates
for federal, state, and local offices by making contributions and by making its
own expenditures. It is governed by a three-member board of directors
which is elected annually by the existing board. The board’s chairman and
the other two members make all decisions concerning which candidates to
support or oppose, the strategy and methods to employ, and the amounts of
money to spend. Its contributors have no role in these decisions. It raises
money by general and specific direct mail solicitations. It does not maintain
separate accounts for the receipts from its general and specific solicitations,
nor is it required by law to do so....
Both NCPAC and FCM are self-described ideological organizations
with a conservative political philosophy. They solicited funds in support of
President Reagan’s 1980 campaign, and they spent money on such means as
radio and television advertisements to encourage voters to elect him Presi-
dent. On the record before us, these expenditures were “independent” in that
they were not made at the request of or in coordination with the official
Reagan election campaign committee or any of its agents. ...
In this case we consider provisions of the Fund Act that make it a crim-
inal offense for political committees such as NCPAC and FCM to make in-
dependent expenditures in support of a candidate who has elected to accept
public financing. ...
There is no question that NCPAC and FCM are political committees
and that President Reagan was a qualified candidate, and it seems plain
enough that the PACs’ expenditures fall within the term “qualified campaign
expense.’ The PACs have argued in this Court, though apparently not below,
that Sec. 9012(f) was not intended to cover truly independent expenditures
such as theirs, but only coordinated expenditures. But “expenditures in co-
operation, consultation, or concert, with, or at the request or suggestion of, a
candidate, his authorized political committees, or their agents,” are consid-
ered “contributions” under the FECA and as such are already subject to
FECA’s $1,000 and $5,000 limitations in Secs. 441a(a)(1), (2). Also, as noted
above, one of the requirements for public funding is the candidate’s agree-
ment not to accept such contributions. Under the PAC’s construction,
Sec. 9012(f) would be wholly superfluous, and we find no support for that
con struction in the legislative history. We conclude that the PACs’ inde-
pendent expenditures at issue in this case are squarely prohibited by
Sec. 9012(f), and we proceed to consider whether that prohibition violates
the First Amendment.
There can be no doubt that the expenditures at issue in this case pro-
duce speecn at the core of the First Amendment... .
938 | REPRESENTATIVE GOVERNMENT

The PACs in this case, of course, are not lone pamphleteers or street
corner orators in the Tom Paine mold; they spend substantial amounts of
money in order to communicate their political ideas through sophisticated
media advertisements. .. . But for purposes of presenting political views in
connection with a nationwide Presidential election, allowing the presenta-
tion of views while forbidding the expenditure of more than $1,000 to pre-
sent them is much like allowing a speaker in a public hall to express his views
while denying him the use of an amplifying system. .. .
We also reject the notion that the PACs’ form of organization or
method of solicitation diminishes their entitlement to First Amendment
protection. The First Amendment freedom of association is squarely impli-
cated in this case. NCPAC and FCM are mechanisms by which large num-
bers of individuals of modest means can join together in organizations
which serve to “amplif[y] the voice, of their adherents.” Buckley v. Valeo. . . .
Having concluded that the PAC expenditures are entitled to full First
Amendment protection, we now look to see if there is a sufficiently strong
governmental interest served by Sec. 9012(f)’s restriction on them and whether
the section is narrowly tailored to the evil that may legitimately be regulated. .. .
Corruption is a subversion of the political process. Elected officials are
influenced to act contrary to their obligations of office by the prospect of fi-
nancial gain to themselves or infusions of money into their campaigns. The
hallmark of corruption is the financial quid pro quo: dollars for political fa-
vors. But here the conduct proscribed is not contributions to the candidate,
but independent expenditures in support of the candidate. The amounts
given to the PACs are overwhelmingly small contributions, well under the
$1,000 limit on contributions upheld in Buckley; and the contributions are
by definition not coordinated with the campaign of the candidate. The
Court concluded in Buckley that there was a fundamental constitutional dif-
ference between money spent to advertise one’s views independently of the
candidate’s campaign and money contributed to the candidate to be spent on
his campaign... .
We think the same conclusion must follow here. It is contended that,
because the PACs may by the breadth of their organizations spend larger
amounts than the individuals in Buckley, the potential for corruption is
greater. But precisely what the “corruption” may consist of we are never told
with assurance. The fact that candidates and elected officials may alter or
reaffirm their own positions on issues in response to political messages paid
for by the PACs can hardly be called corruption, for one of the essential fea-.
tures of democracy is the presentation to the electorate of varying points of
view.

(1 Justice STEVENS concurred in part and dissented in part on a question

of standing to sue.

“| Justice WHITE, with whom Justice BRENNAN and Justice

MARSHALL join, dissenting.
Section 9012(f) of the Internal Revenue Code limits to $1000 the an-
nual independent expenditures a PAC can make to further the election of a
 C | Campaigns and Elections | 939

candidate receiving public funds. Because these expenditures “produce

speech at the core of the First Amendment,” the majority concludes that
they can only be regulated in order to avoid real or apparent corruption. Per-
ceiving no such danger, since the money does not go directly to political
candidates or their committees, it strikes down Sec. 9012(f).
My disagreements with this analysis, which continues this Court’s dis-
memberment of congressional efforts to regulate campaign financing, are
many. First, I continue to believe that Buckley v. Valeo (1976), was wrongly de-
cided. Congressional regulation of the amassing and spending of money in
political campaigns without doubt involves First Amendment concerns, but
restrictions such as the one at issue here are supported by governmental in-
terests—including, but not limited to, the need to avoid real or apparent cor-
ruption—sufficiently compelling to withstand scrutiny. Second, even were
Buckley correct, I consider, today’s holding a mistaken application of that
precedent. The provision challenged here more closely resembles the contri-
bution limitations that were upheld in Buckley, and later cases, than the limi-
tations on uncoordinated individual expenditures that were struck down.
Finally, even if Buckley requires that in general PACs be allowed to make in-
dependent expenditures, I do not think that that proposition applies to
Sec. 9012(f). As part of an integrated and complex system of public funding
for presidential campaigns, Sec. 9012(f) is supported by governmental inter-
ests that were absent in Buckley, which was premised on a system of private
campaign financing... .
In short, as I said in Buckley, I cannot accept the cynic’s “money talks” as
a proposition of constitutional law. Today’s holding also rests on a second as-
pect of the Buckley holding with which I disagree, viz., its distinction be-
tween “independent” and “coordinated” expenditures. The Court was willing
to accept that expenditures undertaken in consultation with a candidate or
his committee should be viewed as contributions. But it rejected Congress’
judgment that independent expenditures were matters of equal concern,
concluding that they did not pose the danger of real or apparent corruption
that supported limits on contributions. ...The distinction is not tenable. “In-
dependent” PAC expenditures function as contributions. Indeed, a significant
portion of them no doubt would be direct contributions to campaigns had
the FECA not limited such contributions to $5,000. ...

1) Justice MARSHALL, dissenting.

Although I joined the portion of the Buckley per curiam that
distinguished contributions from independent expenditures for First Amend-
ment purposes, I now believe that the distinction has no constitutional
significance... .
I disagree that the limitations on contributions and expenditures have
significantly different impacts on First Amendment freedoms. First, the
underlying rights at issue—freedom of speech and freedom of association—
are both core First Amendment rights. Second, in both cases the regulation is
of the same form: It concerns the amount of money that can be spent for
political activity. Thus, I do not see how one interest can be deemed more
compelling than the other. ...
940 | REPRESENTATIVE GOVERNMENT

McConnell v. Federal Election Commission

540 U.S. 93, 124 S.CT. 619 (2003)

In 2002, Congress enacted and President George W. Bush signed into

law the Bipartisan Campaign Reform Act (BCRA), popularly known
“the McCain-Feingold law” after its sponsors, Arizona Republican sen-
ator John McCain and Wisconsin Democratic senator Russ Feingold.
The most comprehensive reform of campaign finance in over a quarter
of a century, it addressed developments since Buckley v. Valeo, 424 U.S. 1
(1976) (excerpted above), particularly the increased use of “soft
money”—unregulated money under the Federal Election Campaign
Act (FECA) of 1971—and the proliferation of “issue ads” or “attack
ads.” Proponents of the law contended that soft money had a corrupt-
ing influence on the political process. In the 2000 election, nearly half
of the money spent—$498 million or 42 percent—by political parties
was soft money—money spent in unlimited amounts for get-out-the-
vote drives and attack ads. Moreover, 60 percent of that money came
from only 800 individuals and organizations. Opponents countered that
the restrictions violated the First Amendment guarantees for free
speech and association.
Title I of the BCRA restricts the spending of soft money by polit-
ical parties, officeholders, and candidates; and Title II prohibits corpora-
tions and unions from using their general funds for “issue ads” and
other “electioneering communications” aimed at influencing the out-
come of federal elections. Titles HII, IV, andV contain additional restric-
tions requiring broadcasters to sell time to qualified candidates
forty-five days prior to a primary and sixty days before the general
election; and so-called millionaire provisions that specify staggered con-
tribution limits if an opponent spends a triggering amount of personal
funds. Title IV forbade individuals “17 years old or younger” from mak-
ing campaign contributions, and Title V imposed a requirement on
broadcasters to keep publicly available records of politically related
broadcast requests.
The constitutionality of the BCRA was immediately challenged
by Kentucky Republican senator Mitch McConnell and a wide range
of interest groups, including the AFL-CIO, the American Civil Liber-
ties Union, the National Rifle Association, and the National Right to
Life Committee. A three-judge panel heard the challenges to the law
and issued a 1,698-page decision upholding most of the BCRA but
striking down restrictions on soft money. Subsequently, twelve appeals
by different individuals and groups were made to the Supreme Court
 C | Campaigns and Elections | 94x

and consolidated.The Court granted the case on an expedited basis and

heard four hours of oral arguments in September 2003.
In December 2003, the Supreme Court handed down almost 300
pages of opinions, affirming and reversing in part the lower court. The
justices divided five to four, eight to one, and voted unanimously on
part of one opinion. For the first time in history four justices issued
three opinions for the Court. Justices Stevens and O’Connor issued the
opinion for the Court upholding the BCRA’s restrictions on soft
money and issue ads. Chief Justice Rehnquist issued an opinion for the
Court denying the petitioners standing to challenge the “millionaire
provisions” and striking down the ban on campaign contributions by
individuals younger than eighteen. Justice Breyer issued an opinion for
the Court upholding the requirements for broadcasters to maintain
publicly available records on politically related broadcast requests. Jus-
tice Stevens filed a dissent from Chief Justice Rehnquist’s opinion
holding that the challenge to the “millionaire provisions” was nonjusti-
ciable. Chief Justice Rehnquist also filed a dissenting opinion. Justices
Kennedy, Scalia, and Thomas each filed opinions in part dissenting and
concurring. The lineup of the justices is shown on page 910.

Justice STEVENS and Justice O’ CONNOR delivered the opinion of the

Court with respect to BCRA Titles I and I, [which Justices SOUTER,
GINSBURG, and BREYER joined].
In this opinion we discuss Titles I and II of BCRA.The opinion of the
Court delivered by THE CHIEF JUSTICE discusses Titles III and IV, and
the opinion of the Court delivered by Justice BREYER discusses Title V. . . .
BCRA is the most recent federal enactment designed “to purge national
politics of what was conceived to be the pernicious influence of ‘big money’
campaign contributions.” [The] 1907 [Tillman Act] completely banned cor-
porate contributions of “money ...in connection with” any federal election.
In 1925 Congress extended the prohibition of “contributions” “to include
‘anything of value, and made acceptance of a corporate contribution as well
as the giving of such a contribution a crime.” Federal Election Comm’n v. Na-
tional Right to Work Comm., 459 U.S. 197 (1982)... . During and shortly after
World War II, Congress reacted to the “enormous financial outlays” made by
some unions in connection with national elections. Congress first restricted
union contributions in the Hatch Act, and it later prohibited “union contri-
butions in connection with federal elections ... altogether.” ...
In early 1972 Congress continued its steady improvement of the national
election laws by enacting FECA... .As the 1972 presidential elections made
clear, however, FECA’s passage did not deter unseemly fundraising and cam-
paign practices. Evidence of those practices persuaded Congress to enact the
Federal Election Campaign Act Amendments of 1974.The 1974 amendments
closed the loophole that had allowed candidates to use an unlimited number
of political committees for fundraising purposes and thereby to circumvent
the limits on individual committees’ receipts and disbursements. They also
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limited individual political contributions to any single candidate to $1,000 per

election, with an overall annual limitation of $25,000 by any contributor; im-
posed ceilings on spending by candidates and political parties for national
conventions; required reporting and public disclosure of contributions and
expenditures exceeding certain limits; and established the Federal Election
Commission (FEC) to administer and enforce the legislation. .. .
This Court . . . concluded that each set of limitations raised serious—
though different—concerns under the First Amendment. Buckley v. Valeo
(1976). We treated the limitations on candidate and individual expenditures
as direct restraints on speech, but we observed that the contribution limita-
tions, in contrast, imposed only “a marginal restriction upon the contri-
butor’s ability to engage in free communication.” “[W]e determined that
limiting contributions served an interest in protecting “the integrity of our
system of representative democracy.” In the end, the Act’s primary purpose—
“to limit the actuality and appearance of corruption resulting from large in-
dividual financial contributions”—provided “a constitutionally sufficient
justification for the $1,000 contribution limitation.”
We prefaced our analysis of the $1,000 limitation on expenditures by
observing that it broadly encompassed every expenditure “ ‘relative to a
clearly identified candidate’ ” ...We concluded . . . that as so narrowed, the
provision would not provide effective protection against the dangers of quid
pro quo arrangements, because persons and groups could eschew expenditures
that expressly advocated the election or defeat of a clearly identified candi-
date while remaining “free to spend as much as they want to promote the
candidate and his views.” .. .We therefore held that Congress’ interest in pre-
venting real or apparent corruption was inadequate to justify the heavy bur-
dens on the freedoms of expression and association that the expenditure
limits imposed. .. .
As a preface to our discussion of the specific provisions of BCRA, we
comment briefly on the increased importance of “soft money” [and] the
proliferation of “issue ads.” ...

1) Soft Money
Under FECA, “contributions” must be made with funds that are subject
to the Act’s disclosure requirements and source and amount limitations. Such
funds are known as “‘federal” or “hard” money. FECA defines the term “con-
tribution,’ however, to include only the gift or advance of anything of value
“made by any person for the purpose of influencing any election for Federal
office.’ Donations made solely for the purpose of influencing state or local
elections are therefore unaffected by FECA’s requirements and prohibitions.
As a result, prior to the enactment of BCRA, federal law permitted cor-
porations and unions, as well as individuals who had already made the
maximum permissible contributions to federal candidates, to contribute “non-
federal money”—also known as “soft money”—to political parties for activ-
ities intended to influence state or local elections.
Shortly after Buckley was decided, questions arose concerning the treat-
ment of contributions intended to influence both federal and state elections.
Although aliteral reading of FECA’s definition of “contribution” would
have required such activities to be funded with hard money, the FEC ruled
944 | REPRESENTATIVE GOVERNMENT

that political parties could fund mixed-purpose activities—including get-

out-the-vote drives and generic party advertising—in part with soft money.
In 1995 the FEC concluded that the parties could also use soft money to de-
fray the costs of “legislative advocacy media advertisements,’ even if the ads
mentioned the name of a federal candidate, so long as they did not expressly
advocate the candidate’s election or defeat.
As the permissible uses of soft money expanded, the amount of soft
money raised and spent by the national political parties increased exponen-
tially. Of the two major parties’ total spending, soft money accounted for 5%
($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in
1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000....

CI Issue Advertising
In Buckley we construed FECA’s disclosure and reporting requirements,
as well as its expenditure limitations, “to reach only funds used for commu-
nications that expressly advocate the election or defeat of a clearly identifi-
able candidate.” As a result of that strict reading of the statute, the use or
omission of “magic words” such as “Elect John Smith” or “Vote Against Jane
Doe” marked a bright statutory line separating “express advocacy” from “is-
sue advocacy.” Express advocacy was subject to FECA’s limitations and could
be financed only using hard money. The political parties, in other words,
could not use soft money to sponsor ads that used any magic words, and cor-
porations and unions could not fund such ads out of their general treasuries.
So-called issue ads, on the other hand, not only could be financed with soft
money, but could be aired without disclosing the identity of, or any other in-
formation about, their sponsors.
While the distinction between “issue” and express advocacy seemed neat
in theory, the two categories of advertisements proved functionally identical
in important respects. Both were used to advocate the election or defeat of
clearly identified federal candidates, even though the so-called issue ads es-
chewed the use of magic words. Little difference existed, for example, be-
tween an ad that urged viewers to “vote against Jane Doe” and one that
condemned Jane Doe’s record on a particular issue before exhorting viewers
to “call Jane Doe and tell her what you think.” ...
BCRA’s central provisions are designed to address Congress’ concerns
about the increasing use of soft money and issue advertising to influence
federal elections. . . . Title I is Congress’ effort to plug the soft-money loop-
hole. The cornerstone of Title I is new FECA Sec. 323(a), which prohibits
national party committees and their agents from soliciting, receiving, direct-
ing, or spending any soft money. In short, Sec. 323(a) takes national parties
out of the soft-money business.
The remaining provisions of new FECA Sec. 323 largely reinforce the
restrictions in Sec. 323(a). New FECA Sec. 323(b) [for example] prevents the
wholesale shift of soft-money influence from national to state party commit-
tees by prohibiting state and local party committees from using such funds
for activities that affect federal elections. These “Federal election activit[ies],”
defined in new FECA Sec. 301 (20)(A), are almost identical to the mixed-
purpose activities that have long been regulated under the FEC’s ee
allocation regime..
 C | Campaigns and Elections | 945

In Buckley and subsequent cases, we have subjected restrictions on cam-

paign expenditures to closer scrutiny than limits on campaign contributions.
See, e.g., Federal Election Comm’n v. Beaumont, [539 U.S. 146] (2003); see also
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). In these cases
we have recognized that contribution limits, unlike limits on expenditures,
“entai[l] only a marginal restriction upon the contributor’s ability to engage
in free communication.’ .. .
Because the electoral process is the very “means through which a free
society democratically translates political speech into concrete governmental
action,” Shrink Missouri, contribution limits, like other measures aimed at
protecting the integrity of the process, tangibly benefit public participation
in political debate. For that reason, [the] less rigorous standard of review we
have applied to contribution limits (Buckley’s “closely drawn” scrutiny)
shows proper deference to Congress’ ability to weigh competing constitu-
tional interests in an area in which it enjoys particular expertise. .. .
Like the contribution limits we upheld in Buckley, Sec. 323’s restrictions
have only a marginal impact on the ability of contributors, candidates, office-
holders, and parties to engage in effective political speech. Complex as its
provisions may be, Sec. 323, in the main, does little more than regulate the
ability of wealthy individuals, corporations, and unions to contribute large
sums of money to influence federal elections, federal candidates, and federal
officeholders. . . .

(1 New FECA Sec. 323(a)’s Restrictions on National Party Committees

The core of Title I is new FECA Sec. 323(a), which provides that “na-
tional committee[s] of a political party ... may not solicit, receive, or direct
to another person a contribution, donation, or transfer of funds or any other
thing of value, or spend any funds, that are not subject to the limitations,
prohibitions, and reporting requirements of this Act.”
The main goal of Sec. 323(a) is modest. In large part, it simply effects a
return to the scheme that was approved in Buckley and that was subverted by
the creation of the FEC’s allocation regime, which permitted the political
parties to fund federal electioneering efforts with a combination of hard and
soft money. Under that allocation regime, national parties were able to use
vast amounts of soft money in their efforts to elect federal candidates. Con-
sequently, as long as they directed the money to the political parties, donors
could contribute large amounts of soft money for use in activities designed
to influence federal elections. New Sec. 323(a) is designed to put a stop to
that practice.

1 1. Governmental Interests Underlying New FECA Sec. 323(a)

The Government defends Sec. 323(a)’s ban on national parties’ involve-
ment with soft money as necessary to prevent the actual and apparent cor-
‘ruption of federal candidates and officeholders. Our cases have made clear
that the prevention of corruption or its appearance constitutes a sufficiently
important interest to justify political contribution limits. We have not limited
that interest to the elimination of cash-for-votes exchanges. .. .
The question for present purposes is whether large soft-money contri-
butions to national party committees have a corrupting influence or give rise
946 | REPRESENTATIVE GOVERNMENT

to the appearance of corruption. Both common sense and the ample record
in these cases confirm Congress’ belief that they do....
The evidence in the record shows that candidates and donors alike have
in fact exploited the soft-money loophole, the former to increase their
prospects of election and the latter to create debt on the part of office-
holders, with the national parties serving as willing intermediaries. Thus, de-
spite FECA’s hard-money limits on direct contributions to candidates,
federal officeholders have commonly asked donors to make soft-money
donations to national and state committees “solely in order to assist federal
campaigns,’ including the officeholder’s own... .
Despite this evidence and the close ties that candidates and officeholders
have with their parties, Justice KENNEDY would limit Congress’ regulatory
interest only to the prevention of the actual or apparent quid pro quo corrup-
tion “inherent in” contributions made directly to, contributions made at the
express behest of, and expenditures made in coordination with, a federal
officeholder or candidate. .. . This crabbed view of corruption, and particularly
of the appearance of corruption, ignores precedent, common sense, and the
realities of political fundraising exposed by the record in this litigation. .. .

| 2. New FECA Sec. 323(a)’s Restriction on Spending and Receiving Soft

Money
Plaintiffs and THE CHIEF JUSTICE contend that Sec. 323(a) is im-
permissibly overbroad because it subjects all funds raised and spent by na-
tional parties to FECA’s hard-money source and amount limits, including,
for example, funds spent on purely state and local elections in which no fed-
eral office is at stake. Such activities, THE CHIEF JUSTICE asserts, pose “lit-
tle or no potential to corrupt .. . federal candidates or officeholders.” This
observation is beside the point. ...
Access to federal officeholders is the most valuable favor the national
party committees are able to give in exchange for large donations. The fact
that officeholders comply by donating their valuable time indicates either
that officeholders place substantial value on the soft-money contribution
themselves, without regard to their end use, or that national committees are
able to exert considerable control over federal officeholders

(1 3. New FECA Sec. 323(a)’s Restriction on Soliciting or Directing Soft

Money

Plaintiffs also contend that Sec. 323(a)’s prohibition on national parties’

soliciting or directing soft-money contributions is substantially overbroad.
The reach of the solicitation prohibition, however, is limited. It bars only so-
licitations of soft money by national party committees and by party officers
in their official capacities.The committees remain free to solicit hard money
on their own behalf, as well as to solicit hard money on behalf of state com-
mittees and state and local candidates. They also can contribute hard money
to state committees and to candidates. In accordance with FEC regulations,
furthermore, officers of national parties are free to solicit soft money in their
individual capacities, or, if they are also officials of state parties, in that ca-
pacity....
 C | Campaigns and Elections | 947

| 4. New FECA Sec. 323(a)’s Application to Minor Parties

The McConnell and political party plaintiffs contend that Sec. 323(a) is
substantially overbroad and must be stricken on its face because it impermis-
sibly infringes the speech and associational rights of minor parties such as the
Libertarian National Committee, which, owing to their slim prospects for
electoral success and the fact that they receive few large soft-money contri-
butions from corporate sources, pose no threat of corruption comparable to
that posed by the RNC and DNC. In Buckley, we rejected a similar argu-
ment concerning limits on contributions to minor-party candidates, noting
that “any attempt to exclude minor parties and independents en masse from
the Act’s contribution limitations overlooks the fact that minor-party candi-
dates may win elective office or have a substantial impact on the outcome of
an election.” We have thus recognized that the relevance of the interest in
avoiding actual or apparent corruption is not a function of the number of
legislators a given party manages to elect. It applies as much to a minor party
that manages to elect only one of its members to federal office as it does to
a major party whose members make up a majority of Congress. It is there-
fore reasonable to require that all parties and all candidates follow the same
set of rules designed to protect the integrity of the electoral process. ...

5. New FECA Sec. 323(a)’s Associational Burdens

Finally, plaintiffs assert that Sec. 323(a) is unconstitutional because it im-
permissibly interferes with the ability of national committees to associate
with state and local committees. By way of example, plaintiffs point to the
Republican Victory Plans, whereby the RNC acts in concert with the state
and local committees of a given State to plan and implement joint, full-
ticket fundraising and electioneering programs. The political parties assert
that Sec. 323(a) outlaws any participation in Victory Plans by RNC officers,
including merely sitting down at a table and engaging in collective decision-
making about how soft money will be solicited, received, and spent.
We are not persuaded by this argument because it hinges on an unnatu-
rally broad reading of the terms “spend,” “receive,” “direct,” and “solicit.”
Nothing on the face of Sec. 323(a) prohibits national party officers, whether
acting in their official or individual capacities, from sitting down with state
and local party committees or candidates to plan and advise how to raise and
spend soft money. As long as the national party officer does not personally
spend, receive, direct, or solicit soft money, Sec. 323(a) permits a wide range
of joint planning and electioneering activity.

~) New FECA Sec. 323(b)’s Restrictions on State and Local Party Commit-
tees

Section 323(b) is designed to foreclose wholesale evasion of Sec. 323(a)’s

" anticorruption measures by sharply curbing state committees’ ability to use
large soft-money contributions to influence federal elections. The core of
Sec. 323(b) is a straightforward contribution regulation: It prevents donors
from contributing nonfederal funds to state and local party committees to
help finance “Federal election activity.’ The term “Federal election activity”
encompasses four distinct categories of electioneering: (1) voter registration
948 | REPRESENTATIVE GOVERNMENT

activity during the 120 days preceding a regularly scheduled federal election;
(2) voter identification, get-out-the-vote (GOTV), and generic campaign ac-
tivity that is “conducted in connection with an election in which a candidate
for Federal office appears on the ballot”; (3) any “public communication”
that “refers to a clearly identified candidate for Federal. office” and “pro-
motes,” “supports,” “attacks,” or “opposes” a candidate for that office; and
(4) the services provided by a state committee employee who dedicates more
than 25% of his or her time to “activities in connection with a Federal elec-
tion.” The Act explicitly excludes several categories of activity from this def-
inition: public communications that refer solely to nonfederal candidates;
contributions to nonfederal candidates; state and local political conventions;
and the cost of grassroots campaign materials like bumper stickers that refer
only to state candidates. All activities that fall within the statutory definition
must be funded with hard money. ,
Section 323(b) (2), the so-called Levin Amendment, carves out an excep-
tion to this general rule. A refinement on the pre-BCRA regime that
permitted parties to pay for certain activities with a mix of federal and non-
federal funds, the Levin Amendment allows state and local party committees
to pay for certain types of federal election activity with an allocated ratio of
hard money and “Levin funds”—that is, funds raised within an annual limit
of $10,000 per person. Except for the $10,000 cap and certain related re-
strictions to prevent circumvention of that limit, Sec. 323(b)(2) leaves regu-
lation of such contributions to the States.
We begin by noting that, in addressing the problem of soft-money con-
tributions to state committees, Congress both drew a conclusion and made a
prediction. Its conclusion, based on the evidence before it, was that the cor-
rupting influence of soft money does not insinuate itself into the political
process solely through national party committees. Rather, state committees
function as an alternate avenue for precisely the same corrupting forces. . . .
Section 323(b) thus promotes an important governmental interest by con-
fronting the corrupting influence that soft-money donations to political par-
ties already have.
Congress also made a prediction. Having been taught the hard lesson of
circumvention by the entire history of campaign finance regulation, Con-
gress knew that soft-money donors would react to Sec. 323(a) by scrambling
to find another way to purchase influence. It was “neither novel nor im-
plausible” for Congress to conclude that political parties would react to Sec.
323(a) by directing soft-money contributors to the state committees, and
that federal candidates would be just as indebted to these contributors as
they had been to those who had formerly contributed to the national par-
tiesnter
We accordingly conclude that Sec. 323(b), on its face, is closely drawn to
match the important governmental interests of preventing corruption and
the appearance of corruption.

“| New FECA Sec. 323(d)’s Restrictions on Parties’ Solicitations

for, and Do-
nations to, lax-Exempt Organizations
Section 323(d) prohibits national, state, and local party committees, and
their agents or subsidiaries, from “solicit[ing] any funds for, or mak[ing]-or
direct[ing] any donations” to, any organization established under Sec. 501 (c)
 C | Campaigns and Elections | 949

of the Internal Revenue Code that makes expenditures in connection with

an election for federal office, and any political organizations established un-
der Sec. 527 “other than a political committee, a State, district, or local com-
mittee of a political party, or the authorized campaign committee of a
candidate for State or local office.’ The District Court struck down the pro-
vision on its face. We reverse and uphold Sec. 323(d), narrowly construing
the section’s ban on donations to apply only to the donation of funds not
raised in compliance with FECA....
Title IT of BCRA, entitled “Noncandidate Campaign Expenditures,” is
divided into two subtitles: “Electioneering Communications” and “Indepen-
dent and Coordinated Expenditures.”

(1 BCRA Sec. 201° Definition of “Electioneering Communication”

The first section of Title II, Sec. 201, comprehensively amends FECA
Sec. 304, which requires political Committees to file detailed periodic finan-
cial reports with the FEC. The amendment coins a new term, “electioneering
communication,” to replace the narrowing construction of FECA’s disclosure
provisions adopted by this Court in Buckley. As discussed further below, that
construction limited the coverage of FECA’s disclosure requirement to com-
munications expressly advocating the election or defeat of particular candi-
dates. By contrast, the term “electioneering communication” is not so limited,
but is defined to encompass any “broadcast, cable, or satellite communication”
that “‘(I) refers to a clearly identified candidate for Federal office; (II) is made
within (aa) 60 days before a general, special, or run-off election for the office
sought by the candidate; or (bb) 30 days before a primary or preference elec-
tion, or a convention or caucus of a political party that has authority to nom-
inate a candidate, for the office sought by the candidate; and (III) in the case
of a communication which refers to a candidate other than President or Vice
President, is targeted to the relevant electorate.” .. .
In addition to setting forth this definition, BCRA’s amendments to
FECA Sec. 304 specify significant disclosure requirements for persons who
fund electioneering communications. BCRA’s use of this new term is not,
however, limited to the disclosure context:A later section of the Act (BCRA
Sec. 203) restricts corporations’ and labor unions’ funding of electioneering
communications. Plaintiffs challenge the constitutionality of the new term as
it applies in both the disclosure and the expenditure contexts.
The major premise of plaintiffs’ challenge to BCRA’s use of the term
“electioneering communication” is that Buckley drew a constitutionally man-
dated line between express advocacy and so-called issue advocacy, and that
speakers possess an inviolable First Amendment right to engage in the latter
category of speech. ...
That position misapprehends our prior decisions, for the express advo-
cacy restriction was an endpoint of statutory interpretation, not afirst prin-
"ciple of constitutional law. . . . [A] plain reading of Buckley makes clear that
the express advocacy limitation, in both the expenditure and the disclosure
contexts, was the product of statutory interpretation rather than a constitu-
tional command. In narrowly reading the FECA provisions in Buckley to
avoid problems of vagueness and overbreadth, we nowhere suggested that a
statute that was neither vague nor overbroad would be required to toe the
same express advocacy line.
950 | REPRESENTATIVE GOVERNMENT

In short, the concept of express advocacy and the concomitant class of

magic words were born of an effort to avoid constitutional infirmities. . . .
Nor are we persuaded, independent of our precedents, that the First Amend-
ment erects a rigid barrier between express advocacy and so-called issue ad-
vocacy. That notion cannot be squared with our longstanding recognition
that the presence or absence of magic words cannot meaningfully distinguish
electioneering speech from a true issue ad. Indeed, the unmistakable lesson
from the record in this litigation is that Buckley’s magic-words requirement is
functionally meaningless. Not only can advertisers easily evade the line by
eschewing the use of magic words, but they would seldom choose to use
such words even if permitted. And although the resulting advertisements do
not urge the viewer to vote for or against a candidate in so many words, they
are no less clearly intended to influence the election. Buckley’s express advo-
cacy line, in short, has not aided the legislative effort to combat real or ap-
parent corruption, and Congress enacted BCRA to correct the flaws it
found in the existing system... .

“| BCRA Sec. 203’ Prohibition of Corporate and Labor Disbursements

for
Electioneering Communications
Since our decision in Buckley, Congress’ power to prohibit corporations
and unions from using funds in their treasuries to finance advertisements ex-
pressly advocating the election or defeat of candidates in federal elections has
been firmly embedded in our law. The ability to form and administer sepa-
rate segregated funds authorized by FECA Sec. 316 has provided corpora-
tions and unions with a constitutionally sufficient opportunity to engage in
express advocacy. That has been this Court’s unanimous view, and it is not
challenged in this litigation.
‘Section 203 of BCRA amends FECA Sec. 316(b)(2) to extend this rule,
which previously applied only to express advocacy, to all “electioneering
communications” covered by the definition of that term in amended FECA
Sec. 304(f)(3). Thus, under BCRA, corporations and unions may not use
their general treasury funds to finance electioneering communications, but
they remain free to organize and administer segregated funds, or PACs, for
that purpose. Because corporations can still fund electioneering communica-
tions with PAC money, it is “simply wrong” to view the provision as a “com-
plete ban” on expression rather than a regulation... .
We are under no illusion that BCRA will be the last congressional
statement on the matter. Money, like water, will always find an outlet. What
problems will arise, and how Congress will respond, are concerns for another
day. In the main we uphold BCRA’s two principal, complementary features:
the control of soft money and the regulation of electioneering communica-
tions. Accordingly, we affirm in part and reverse in part the District Court’s
judgment with respect to Titles I and II.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court

with respect to BCRA Titles III and IV
This opinion addresses issues involving miscellaneous Title II] and IV
provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA). For
 C | Campaigns and Elections | 951

the reasons discussed below, we affirm the judgment of the District Court
with respect to these provisions.
BCRA Sec. 305 amends the federal Communications Act of 1934,
which requires that, 45 days before a primary or 60 days before a general
election, broadcast stations must sell a qualified candidate the “lowest unit
charge of the station for the same class and amount of time for the same pe-
HOGS MR
The McConnell plaintiffs challenge Sec. 305. They argue that Senator
McConnell’ testimony that he plans to run advertisements critical of his op-
ponents in the future and that he had run them in the past is sufficient to es-
tablish standing. We think not.
Article III of the Constitution limits the “judicial power” to the resolu-
tion of “cases” and “controversies.” One element of the “bedrock” case-or-
controversy requirement is that plaintiffs must establish that they have
standing to sue. On many occasions, we have reiterated the three re-
quirements that constitute the “ ‘irreducible constitutional minimum’ ” of
standing. First, a plaintiff must demonstrate an “injury in fact,’ which is
“concrete,” “distinct and palpable,’ and “actual or imminent.” Second, a
plaintiff must establish “‘a causal connection between the injury and the con-
duct complained of—the injury has to be ‘fairly trace[able] to the challenged
action of the defendant, and not ... th[e] result [of] some third party not be-
fore the court. ” Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Third, a
plaintiff must show the “ ‘substantial likelihood’ that the requested relief will
remedy the alleged injury in fact.”
Because Senator McConnell’s current term does not expire until 2009,
the earliest day he could be affected by Sec. 305 is 45 days before the Re-
publican primary election in 2008. This alleged injury in fact is too remote
temporally to satisfy Article III standing. [CHIEF JUSTICE REHNQUIST
proceeds to deny standing to other plaintiffs’ challenges to contribution limits
and to the “millionaire provisions,” before addressing the challenge to restric-
tions on campaign contributions by individuals under the age of 18.] ...
BCRA Sec. 318 prohibits individuals “17 years old or younger” from
making contributions to candidates and contributions or donations to polit-
ical parties. The McConnell and Echols plaintiffs . . . argue that Sec. 318 vio-
lates the First Amendment rights of minors. We agree.
Minors enjoy the protection of the First Amendment. See, e.g., Tinker v,
Des Moines Independent Community School Dist., 393 U.S. 503 (1969). Limita-
tions on the amount that an individual may contribute to a candidate or po-
litical committee impinge on the protected freedoms of expression and
association. When the Government burdens the right to contribute, we apply
heightened scrutiny. We ask whether the statute is “closely drawn” to avoid
unnecessary abridgment of First Amendment freedoms. The Government as-
serts that the provision protects against corruption by conduit; that is, dona-
tions by parents through their minor children to circumvent contribution
‘limits applicable to the parents. But the Government offers scant evidence of
this form of evasion....
For the foregoing reasons, we affirm the District Court’s judgment find-
ing the plaintiffs’ challenges to BCRA Secs. 305, 307, and the millionaire
provisions nonjusticiable, striking down as unconstitutional BCRA Sec. 318,
and upholding BCRA Sec. 311.
952 | REPRESENTATIVE GOVERNMENT

| [Justice BREYER delivered the opinion of the Court with respect to BCRA
Title V and upheld the constitutionality of Sec. 504, amending the Communica-
tions Act of 1934, and requiring broadcasters to keep publicly available records of
politically related broadcasting requests. He found no evidence that the require- -
ments impose onerous administrative burdens, lack any offsetting justification, and
consequently violate the First Amendment. In addition, he noted that the Court
should defer the FEC’s interpretation of the requirements. ]

1 Justice STEVENS, dissenting with respect to Sec. 305 [and which Justices
GINSBURG and BREYER join].
THE CHIEF JUSTICE, writing for the Court, concludes that the Mc-
Connell plaintiffs lack standing to‘ challenge Sec. 305 of BCRA because
Senator McConnell cannot be affected by the provision until “45 days before
the Republican primary election in 2008.” I am not persuaded that Arti-
cle III’s case-or-controversy requirement imposes suchastrict temporal limit
on our jurisdiction. By asserting that he has run attack ads in the past, that he
plans to run such ads in his next campaign, and that Sec. 305 will adversely
affect his campaign strategy, McConnell has identified a “concrete,” “ “dis-
tinct, ” and “ ‘actual’ ” injury. That the injury is distant in time does not
make it illusory. ...
Like BCRA’s other disclosure requirements, Sec. 305 evenhandedly reg-
ulates speech based on its electioneering content. In sum, I would uphold
Sec, 30).

CHIEF JUSTICE REHNQUIST, dissenting with respect to BCRA

. Titles I and V [and which Justices SCALIA and KENNEDY join].
The Court fails to recognize that the national political parties are exem-
plars of political speech at all levels of government, in addition to effective
fundraisers for federal candidates and officeholders. . . . Indeed, some national
political parties exist primarily for the purpose of expressing ideas and gen-
erating debate.
When political parties engage in pure political speech that has little
or no potential to corrupt their federal candidates and officeholders, the
government cannot constitutionally burden their speech any more than it
could burden the speech of individuals engaging in these same activities. . . .

Justice THOMAS, concurring with respect to BCRA Titles III and IV, ex-
cept for BCRA Secs. 311 and 318, concurring in the result with respect to
BCRA Sec. 318, concurring in the judgment in part and dissenting in part
with respect to BCRA Title II, and dissenting with respect to BCRA Titles I,
Vand Sec. 311 (and which Justice SCALIA joins in part].
With breathtaking scope, the Bipartisan Campaign Reform Act of 2002
(BCRA), directly targets and constricts core political speech, the “primary
object of First Amendment protection.” Nixon v. Shrink Missouri Government
PAC, 528 U.S. 377 (2000) (THOMAS, J., dissenting). . . .
 C | Campaigns and Elections | 953

The very “purpose of the First Amendment [is] to preserve an uninhib-

ited marketplace of ideas in which truth will ultimately prevail.” Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969). Yet today the fundamental prin-
ciple that “the best test of truth is the power of the thought to get itself ac-
cepted in the competition of the market,” Abrams v. United States, 250 U.S.
616 (1919) (HOLMES, J., dissenting), is cast aside in the purported service of
preventing “corruption,” or the mere “appearance of corruption.” Buckley v.
Valeo. ...

Justice KENNEDY, concurring in the judgment in part and dissenting in

part with respect to BCRA Titles Land II, [which CHIEF JUSTICE
REHNQUIST joined and Justices SCALIA and THOMAS joined in
part].
Until today’s consolidated cases, the Court has accepted but two princi-
ples to use in determining the validity of campaign finance restrictions. First
is the anticorruption rationale. The principal concern, of course, is the agree-
ment for a quid pro quo between officeholders (or candidates) and those who
would seek to influence them. The Court has said the interest in preventing
corruption allows limitations on receipt of the quid by a candidate or office-
holder, regardless of who gives it or of the intent of the donor or office-
holder. Second, the Court has analyzed laws that classify on the basis of the
speaker’s corporate or union identity under the corporate speech rationale.
The Court has said that the willing adoption of the entity form by corpora-
tions and unions justifies regulating them differently: Their ability to give
candidates quids may be subject not only to limits but also to outright bans;
their electoral speech may likewise be curtailed. ...
Buckley made clear, by its express language and its context, that the cor-
ruption interest only justifies regulating candidates’ and officeholders’ receipt
of what we can call the “quids” in the quid pro quo formulation. The Court
rested its decision on the principle that campaign finance regulation that re-
stricts speech without requiring proof of particular corrupt action with-
stands constitutional challenge only if it regulates conduct posing a
demonstrable quid pro quo danger... .
The Court ... in effect interprets the anticorruption rationale to allow
regulation not just of “actual or apparent quid pro quo arrangements,” but of
any conduct that wins goodwill from or influences a Member of Congress.
...The very aim of Buckley’ standard, however, was to define undue influ-
ence by reference to the presence of quid pro quo involving the officeholder.
The Court, in contrast, concludes that access, without more, proves influence
is undue. Access, in the Court’s view, has the same legal ramifications as ac-
tual or apparent corruption of officeholders. This new definition of corrup-
tion sweeps away all protections for speech that lie in its path... .
Today’s decision breaks faith with our tradition of robust and unfettered
debates,

Justice SCALIA, concurring with respect to BCRA Titles III and IV, dis-
senting with respect to BCRA Titles I and V, and concurring in the judgment
in part and dissenting in part with respect to BCRA Title IL.
954 | REPRESENTATIVE GOVERNMENT

This is a sad day for the freedom of speech. Who could have imagined
that the same Court which, within the past four years, has sternly disapproved
of restrictions upon such inconsequential forms of expression as virtual child
pornography, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), tobacco ad-
vertising, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), dissemination of il-
legally intercepted communications, Bartnicki v. Vopper, 532 U.S. 514 (2001),
and sexually explicit cable programming, United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803 (2000), would smile with favor upon a law that cuts
to the heart of what the First Amendment is meant to protect: the right to
criticize the government. For that is what the most offensive provisions of this
legislation are all about. We are governed by Congress, and this legislation
prohibits the criticism of Members of Congress by those entities most capa-
ble of giving such criticism loud voice: national political parties and cor-
porations, both of the commercial and the not-for-profit sort. It forbids
pre-election criticism of incumbents by corporations, even not-for-profit
corporations, by use of their general funds; and forbids national-party use of
“soft” money to fund “issue ads” that incumbents find so offensive. .. .
Beyond that, however, the present legislation targets for prohibition cer-
tain categories of campaign speech that are particularly harmful to in-
cumbents. Is it accidental, do you think, that incumbents raise about three
times as much “hard money”—the sort of funding generally not restricted
by this legislation—as do their challengers? . . .
I wish to address three fallacious propositions that might be thought to
justify some or all of the provisions of this legislation—only the last of
which is explicitly embraced by the principal opinion for the Court, but all
of which underlie, I think, its approach to these cases.

“1 Money Is Not Speech

"It was said by congressional proponents of this legislation that since this
legislation regulates nothing but the expenditure of money for speech, as op-
posed to speech itself, the burden it imposes is not subject to full First
Amendment scrutiny; the government may regulate the raising and spending
of campaign funds just as it regulates other forms of conduct, such as burn-
ing draft cards, see United States v. O’Brien, 391 U.S. 367 (1968), or camping
out on the National Mall, see Clark v. Community for Creative Non- Violence,
468 USS. 288 (1984).
Our traditional view was correct, and today’s cavalier attitude toward
regulating the financing of speech (the “exacting scrutiny” test of Buckley is
not uttered in any majority opinion, and is not observed in the ones from
which I dissent) frustrates the fundamental purpose of the First Amendment.
In any economy operated on even the most rudimentary principles of
division of labor, effective public communication requires the speaker to
make use of the services of others. An author may write a novel, but he will
seldom publish and distribute it himself. . . . Division of labor requires a
means of mediating exchange, and in a commercial society, that means is
supplied by money. The publisher pays the author for the right to sell his
book; it pays its staff who print and assemble the book; it demands payments
from booksellers who bring the book to market... . The right to speak
would be largely ineffective if it did not include the right to engage in fi-
nancial transactions that are the incidents of its exercise.
 C | Campaigns and Elections | 955

[W]here the government singles out money used to fund speech as its
legislative object, it is acting against speech as such, no less than if it had tar-
geted the paper on which a book was printed or the trucks that deliver it to
the bookstore. . ..
We have kept faith with the Founders’ tradition by prohibiting the
selective taxation of the press. Minneapolis Star & Tribune Co. v. Minnesota
Comm’r of Revenue, 460 U.S. 575 (1983) (ink and paper tax). And we have
done so whether the tax was the product of illicit motive or not. These
press-taxation cases belie the claim that regulation of money used to fund
speech is not regulation of speech itself. . . .
It should be obvious, then, that a law limiting the amount a person can
spend to broadcast his political views is a direct restriction on speech. ...

“| Pooling Money Is Not Speech

Another proposition which ceuld explain at least some of the results of
today’s opinion is that the First Amendment right to spend money for speech
does not include the right.to combine with others in spending money for
speech. .. . The freedom to associate with others for the dissemination of
ideas—not just by singing or speaking in unison, but by pooling financial re-
sources for expressive purposes—is part of the freedom of speech... .
If it were otherwise, Congress would be empowered to enact legislation
requiring newspapers to be sole proprietorships, banning their use of
partnership or corporate form. That sort of restriction would be an obvious
violation of the First Amendment, and it is incomprehensible why the con-
clusion should change when what is at issue is the pooling of funds for the
most important (and most perennially threatened) category of speech: elec-
toral speech. ...

(1 Speech by Corporations Can Be Abridged

The last proposition that might explain at least some of today’s casual
abridgment of free-speech rights is this: that the particular form of asso-
ciation known as a corporation does not enjoy full First Amendment pro-
tection. Of course the text of the First Amendment does not limit its
application in this fashion. .. . In First Nat. Bank of Boston v. Bellotti, 435 U.S.
765 (1978), we held unconstitutional a state prohibition of corporate speech
designed to influence the vote on referendum proposals.
The Court changed course in Austin v. Michigan Chamber of Commerce,
494 USS. 652 (1990), upholding a state prohibition of an independent cor-
porate expenditure in support of a candidate for state office. I dissented in
that case, and remain of the view that it was error. In the modern world, giv-
ing the government power to exclude corporations from the political debate
enables it effectively to muffle the voices that best represent the most signif-
icant segments of the economy and the most passionately held social and
political views. People who associate—who pool their financial resources—
for purposes of economic enterprise overwhelmingly do so in the corporate
form; and with increasing frequency, incorporation is chosen by those who
associatesto defend and promote particular ideas—such as the American
Civil Liberties Union and the National Rifle Association, parties to these
CASES, «wu
956 | REPRESENTATIVE GOVERNMENT

Federal Election Commission v. Wisconsin

Right to Life, Inc.
127 S.CT. 2652 (2007)

Following the fragmented ruling upholding major provisions of the Bi-

partisan Campaign Reform Act (BCRA) in McConnell v, Federal Elec-
tion Commission, 540 U.S. 93 (2003) (excerpted above), the Wisconsin
Right to Life, Inc. ran television ads (which would have been permissi-
ble in newspapers and on the Internet) that allegedly ran afoul of
Section 203 of the BCRA, which forbids “electioneering communica-
tions” or “issue ads” that name candidates within thirty days of federal
primary elections and sixty days prior to a general election. A three-
judge district court held that the provisions of Section 203 were un-
constitutional “as applied” to the ads, as further discussed by Chief
Justice Roberts in his opinion for the Court. The lower court held that
the ads were genuine issue ads, not express advocacy or its “functional
equivalent” under McConnell.
The lower court’s decision was affirmed by a five-to-four vote.
Chief Justice Roberts delivered the opinion for the Court but declined
to overrule the bare majority’s upholding of Section 203 in McConnell.
By contrast, concurring Justices Scalia, Kennedy, and Thomas would
have overruled McConnell and BCRA’s limitation on union and corpo-
rate electioneering ads. Justice Souter filed a dissenting opinion, joined
by Justices Stevens, Breyer, and Ginsburg.

(1 Chief Justice ROBERTS announced the judgment of the Court and deliv-
ered the opinion of the Court with respect to Parts I and II, and an opinion
with respect to Parts II and IV,in which Justice ALITO joins.
Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)
makes it a federal crime for any corporation to broadcast, shortly before an
election, any communication that names a federal candidate for elected of-
fice and is targeted to the electorate. In McConnell v. Federal Election Comm’n,
540 U.S. 93 (2003), this Court considered whether Sec. 203 was facially
overbroad under the First Amendment because it captured within its reach
not only campaign speech, or “express advocacy,” but also speech about pub-
lic issues more generally, or “issue advocacy,’ that mentions a candidate for
federal office. The Court concluded that there was no overbreadth concern
to the extent the speech in question was the “functional equivalent” of ex-
press campaign speech. On the other hand, the Court “assume[d]” that the
interests it had found to “justify the regulation of campaign speech might
not apply to the regulation of genuine issue ads.’ The Court nonetheless de-
 C | Campaigns and Elections | 957

termined that Sec. 203 was not facially overbroad. Even assuming Sec. 203
“inhibit[ed] some constitutionally protected corporate and union speech,”
the Court concluded that those challenging the law on its face had failed to
carry their “heavy burden” of establishing that all enforcement of the law
should therefore be prohibited.
Last Term, we reversed a lower court ruling, arising in the same litiga-
tion before us now, that our decision in McConnell left “no room” for as-
applied challenges to Sec. 203. We held on the contrary that “[i]Jn upholding
Sec. 203 against a facial challenge, we did not purport to resolve future as-
applied challenges.” Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546
US. 410 (2006).
We now confront such an as-applied challenge. Resolving it requires us
first to determine whether the speech at issue is the “functional equivalent” of
speech expressly advocating the election or defeat of a candidate for federal
office, or instead a “genuine issue a[d].” We have long recognized that the dis-
tinction between campaign advocacy and issue advocacy “may often dissolve
in practical application. Candidates, especially incumbents, are intimately tied
to public issues involving ‘legislative proposals and governmental actions.”
Buckley v. Valeo, 424 U.S. 1 (1976). Our development of the law in this area
requires us, however, to draw such aline, because we have recognized that the
interests held to justify the regulation of campaign speech and its “functional
equivalent” “might not apply” to the regulation of issue advocacy.
In drawing that line, the First Amendment requires us to err on the side
of protecting political speech rather than suppressing it. We conclude that the
speech at issue in this as-applied challenge is not the “functional equivalent”
of express campaign speech. We further conclude that the interests held to
justify restricting corporate campaign speech or its functional equivalent do
not justify restricting issue advocacy, and accordingly we hold that BCRA
Sec. 203 is unconstitutional as applied to the advertisements at issue in these
cases.

a |

BCRA significantly cut back on corporations’ ability to engage in political

speech. BCRA Sec. 203, at issue in these cases, makes it a crime for any labor
union or incorporated entity—whether the United Steelworkers, the Amer-
ican Civil Liberties Union, or General Motors—to use its general treasury
funds to pay for any “electioneering communication.” BCRA’s definition of
“electioneering communication” is clear and expansive. It encompasses any
broadcast, cable, or satellite communication that refers to a candidate for fed-
eral office and that is aired within 30 days of a federal primary election or
60 days of a federal general election in the jurisdiction in which that candi-
date is running for office.
Appellee Wisconsin Right to Life, Inc. (WRTL), is a nonprofit, non-
~ stock, ideological advocacy corporation recognized by the Internal Revenue
Service as tax exempt under Sec 501(c)(4) of the Internal Revenue Code.
On July 26, 2004, as part of what it calls a “grassroots lobbying campaign,”
WRTL began broadcasting a radio advertisement entitled “Wedding.” The
transcript of “Wedding” reads as follows:
958 | REPRESENTATIVE GOVERNMENT

“ “PASTOR: And who gives this woman to be married to this

man?
“*BRIDE’S FATHER: Well, as father of the bride, I certainly
could. But instead, I’d like to share a few tips on how to properly
install drywall. Now you put the drywall up ...
‘““VOICE-OVER: Sometimes it’s just not fair to delay an impor-
tant decision.
‘“ “But in Washington it’s happening. A group of Senators is using
the filibuster delay tactic to block federal judicial nominees from a
simple “yes” or “no” vote. So qualified candidates don’t get a chance
to serve.
“It’s politics at work, causing gridlock and backing up some of
our courts to a state of emergency.
“ “Contact Senators Feingold and Kohl and tell them to oppose the
filibuster.
“ “Visit: BeFair.org
“ “Paid for by Wisconsin Right to Life (befair.org), which is respon-
sible for the content of this advertising and not authorized by any
candidate or candidate’s committee, ”

On the same day, WRTL aired a similar radio ad entitled “Loan.” It had also
invested treasury funds in producing atelevision ad entitled “Waiting,” which
is similar in substance and format to “Wedding” and “Loan.”
WRITL planned on running “Wedding,” “Waiting,” and “Loan”
throughout August 2004 and financing the ads with funds from its general
treasury. It recognized, however, that as of August 15, 30 days prior to the
Wisconsin primary, the ads would be illegal “electioneering communica-
tion[s]” under BCRA Sec. 203.
Believing that it nonetheless possessed a First Amendment right to
broadcast these ads, WRTL filed suit against the Federal Election Commis-
sion (FEC) on July 28, 2004, seeking declaratory and injunctive relief before
a three-judge District Court. WRTL alleged that BCRA’s prohibition on the
use of corporate treasury funds for “electioneering communication[s]” as de-
fined in the Act is unconstitutional as applied to “Wedding,” “Loan,” and
“Waiting,” as well as any materially similar ads it might seek to run in the fu-
ture.
Just before the BCRA blackout period was to begin, the District Court
denied a preliminary injunction, concluding that “the reasoning of the Mc-
Connell Court leaves no room for the kind of ‘as applied’ challenge WRTL
propounds before us.” In response to this ruling, WRTL did not run its ads
during the blackout period. The District Court subsequently dismissed
WRTLs complaint. On appeal, we vacated the District Court’s judgment,
holding that McConnell “did not purport to resolve future as-applied chal-
lenges” to BCRA Sec. 203, and remanded “for the District Court to con-
sider the merits of WRTL’ as-applied challenge in the first instance.”
On remand, after allowing four Members of Congress to intervene
as defendants, the three-judge District Court granted summary judgment
for WRTL, holding BCRA Sec. 203 unconstitutional as applied to the
three advertisements WRTL planned to run during the 2004 blackout
period...5.
 C | Campaigns and Elections | 959

B Ill
WRITE rightly concedes that its ads are prohibited by BCRA Sec. 203. Each
ad clearly identifies Senator Feingold, who was running (unopposed) in the
‘Wisconsin Democratic primary on September 14, 2004, and each ad would
have been “targeted to the relevant electorate,’ during the BCRA blackout
period. WRTL further concedes that its ads do not fit under any of BCRA’s
exceptions to the term “electioneering communication.” The only question,
then, is whether it is consistent with the First Amendment for BCRA
Sec. 203 to prohibit WRTL from running these three ads. . . .
When the McConnell Court considered the possible facial overbreadth of
Sec. 203, it looked to the studies in the record analyzing ads broadcast during
the blackout periods, and those studies had classified the ads in terms of in-
tent and effect. The Court’s assessment was accordingly phrased in the same
terms, which the Court regarded as sufficient to conclude, on the record be-
fore it, that the plaintiffs had not “carried their heavy burden of proving”
that Sec. 203 was facially overbroad and could not be enforced in any cir-
cumstances. The Court did not explain that it was adopting a particular test
for determining what constituted the “functional equivalent” of express ad-
VOCACY 2...
More importantly, this Court in Buckley had already rejected an intent-
and-effect test for distinguishing between discussions of issues and candi-
dates. After noting the difficulty of distinguishing between discussion of
issues on the one hand and advocacy of election or defeat of candidates on
the other, the Buckley Court explained that analyzing the question in terms
“of intent and of effect’ ” would afford “ ‘no security for free discussion’ ”
It therefore rejected such an approach, and McConnell did not purport to
overrule Buckley on this point—or even address what Buckley had to say on
the subject.
For the reasons regarded as sufficient in Buckley, we decline to adopt a
test for as-applied challenges turning on the speaker’s intent to affect an elec-
tion. The test to distinguish constitutionally protected political speech from
speech that BCRA may proscribe should provide a safe harbor for those
who wish to exercise First Amendment rights. The test should also “reflec[t]
our ‘profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, ” Buckley (quoting New
York Times Co. v. Sullivan, 376 U.S. 254 (1964)). A test turning on the intent
of the speaker does not remotely fit the bill.
Far from serving the values the First Amendment is meant to protect, an
intent-based test would chill core political speech by opening the door to a
trial on every ad within the terms of Sec. 203, on the theory that the speaker
actually intended to affect an election, no matter how compelling the indica-
tions that the ad concerned a pending legislative or policy issue. .. .
Buckley also explains the flaws of a test based on the actual effect speech
will have on an election or on a particular segment of the target audience.
Such a test “ ‘puts the speaker .. . wholly at the mercy of the varied under-
standing of his hearers.” It would also typically lead to a burdensome,
expert-driven inquiry, with an indeterminate result. Litigation on such a
standard may or may not accurately predict electoral effects, but it will un-
questionably chill a substantial amount of political speech... .
In light of these considerations, a court should find that an ad is the
960 | REPRESENTATIVE GOVERNMENT

functional equivalent of express advocacy only if the ad is susceptible of no

reasonable interpretation other than as an appeal to vote for or against a spe-
cific candidate. Under this test, WRTL’s three ads are plainly not the func-
tional equivalent of express advocacy. First, their content is consistent with
that of a genuine issue ad:The ads focus on alegislative issue, take a position
on the issue, exhort the public to adopt that position, and urge the public to
contact public officials with respect to the matter. Second, their content lacks
indicia of express advocacy: The ads do not mention an election, candidacy,
political party, or challenger; and they do not take a position on a candidate’s
character, qualifications, or fitness for office. . . .

a IV

BCRA Sec. 203 can be constitutionally applied to WRTL’ ads only if it is

narrowly tailored to further a compelling interest. This Court has never rec-
ognized a compelling interest in regulating ads, like WRTL, that are neither
express advocacy nor its functional equivalent. The District Court below
considered interests that might justify regulating WRTL’ ads here, and found
none sufficiently compelling. We reach the same conclusion. .. .
McConnell held that express advocacy of a candidate or his opponent by
a corporation shortly before an election may be prohibited, along with the
functional equivalent of such express advocacy. We have no occasion to re-
visit that determination today. But when it comes to defining what speech
qualifies as the functional equivalent of express advocacy subject to such a
ban—the issue we do have to decide—we give the benefit of the doubt to
speech, not censorship. The First Amendment’s command that “Congress
shall make no law .. . abridging the freedom of speech” demands at least
that.

C) Justice SCALIA, with whom Justice KENNEDY and Justice THOMAS

join, concurring in part and concurring in the judgment.
A Moroccan cartoonist once defended his criticism of the Moroccan
monarch (lese majesté being a serious crime in Morocco) as follows: “ ‘I’m
not a revolutionary, I’m just defending freedom of speech. ...I never said we
had to change the king—no, no, no, no! But I said that some things the king
is doing, I do not like. Is that a crime?’ ” Well, in the United States (making
due allowance for the fact that we have elected representatives instead of a
king) it is a crime, at least if the speaker is a union or a corporation (includ-
ing not-for-profit public-interest corporations) and if the representative is
identified by name within a certain period before a primary or congressional
election in which he is running. That is the import of Sec. 203 of the Bi-
partisan Campaign Reform Act of 2002 (BCRA), the constitutionality of
which we upheld three Terms ago in McConnell v. Federal Election Comm’n
(2003). As an element essential to that determination of constitutionality, our
opinion left open the possibility that a corporation or union could establish
that, in the particular circumstances of its case, the ban was unconstitutional
because it was (to pursue the analogy) only the king’s policies and not his
tenure in office that was criticized. Today’s cases present the question of what
sort of showing is necessary for that purpose. For the reasons I set forth be-
low, it is my view that no test for such a showing can both (1) comport with
 C | Campaigns and Elections | 961

the requirement of clarity that unchilled freedom of political speech de-

mands, and (2) be compatible with the facial validity of Sec. 203 (as
pronounced in McConnell)... .
There is wondrous irony to be found in both the genesis and the conse-
quences of BCRA. In the fact that the institutions it was designed to muz-
zle—unions and nearly all manner of corporations—for all the “corrosive
and distorting effects” of their “immense aggregations of wealth,” were ut-
terly impotent to prevent the passage of this legislation that forbids them to
criticize candidates (including incumbents). In the fact that the effect of
BCRA has been to concentrate more political power in the hands of the
country’s wealthiest individuals and their so-called 527 organizations, unreg-
ulated by Sec. 203. (In the 2004 election cycle, a mere 24 individuals con-
tributed an astounding total of $142 million to 527s). And in the fact that
while these wealthy individuals dominate political discourse, it is this small,
grass-roots organization of Wisconsin Right to Life that is muzzled.
I would overrule that part of the Court’s decision in McConnell uphold-
ing Sec. 203(a) of BCRA. Accordingly, I join Parts I and II of today’s princi-
pal opinion and otherwise concur only in the judgment.

(| Justice ALITO, concurring.

I join the principal opinion because I conclude (a) that Sec. 203 of the
Bipartisan Campaign Reform Act of 2002, as applied, cannot constitution-
ally ban any advertisement that may reasonably be interpreted as anything
other than an appeal to vote for or against a candidate, (b) that the ads at is-
sue here may reasonably be interpreted as something other than such an
appeal, and (c) that because Sec. 203 is unconstitutional as applied to the ad-
vertisements before us, it is unnecessary to go further and decide whether
Sec. 203 is unconstitutional on its face. If it turns out that the implementa-
tion of the as-applied standard set out in the principal opinion impermissi-
bly chills political speech, we will presumably be asked in a future case to
reconsider the holding that Sec. 203 is facially constitutional.

() Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG,

and Justice BREYER join, dissenting.
The significance and effect of today’s judgment, from which I respect-
fully dissent, turn on three things: the demand for campaign money in huge
amounts from large contributors, whose power has produced a cynical elec-
torate; the congressional recognition of the ensuing threat to democratic
integrity as reflected in a century of legislation restricting the electoral lever-
age of concentrations of money in corporate and union treasuries; and Mc-
Connell v. Federal Election Comm’n (2003), declaring the facial validity of the
most recent Act of Congress in that tradition, a decision that is effectively,
and unjustifiably, overruled today.
The indispensable ingredient of a political candidacy is money for ad-
vertising. In the 2004 campaign, more than half of the combined expendi-
tures by the two principal presidential candidates (excluding fundraising)
went for media time and space. And in the 2005-2006 election cycle, the ex-
penditure of more than $2 billion on television shattered the previous
record, even without a presidential contest. The portent is for still greater
962 | REPRESENTATIVE GOVERNMENT

spending. By the end of March 2007, almost a year before the first primary
and more than 18 months before the general election, presidential candidates
had already raised over $150 million.
The indispensability of these huge sums has two significant conse-
quences for American Government that are particularly on point here. The
enormous demands, first, assign power to deep pockets. Candidates occasion-
ally boast about the number of contributors they have, but the headlines
speaking in dollars reflect political reality. . ..
Devoting concentrations of money in self-interested hands to the sup-
port of political campaigning therefore threatens the capacity of this democ-
racy to represent its constituents and the confidence of its citizens in their
capacity to govern themselves. These are the elements summed up in the no-
tion of political integrity, giving it a value second to none in a free society.
If the threat to this value lowing from concentrations of money in pol-
itics has reached an unprecedented enormity, it has been gathering force for
generations. Before the turn of the last century, as now, it was obvious that
the purchase of influence and the cynicism of voters threaten the integrity
and stability of democratic government, each derived from the responsive-
ness of its law to the interests of citizens and their confidence in that focus.
The danger has traditionally seemed at its apex when no reasonable limits
constrain the campaign activities of organizations whose “unique legal and
economic characteristics” are tailored to “facilitat{e] the amassing of large
treasuries,” Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).
Corporations were the earliest subjects of concern; the same characteristics
that have made them engines of the Nation’s extraordinary prosperity have
given them the financial muscle to gain “advantage in the political market-
place” when they turn from core corporate activity to electioneering, Fed-
eral Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986),
and in “Congress’ judgment” the same concern extends to labor unions as
to corporations, Federal Election Comm’n v. National Right to Work Comm.,
ASO RIS MOT AIS2 ee
In McConnell ... [w]e understood that Congress had a compelling inter-
est in limiting this sort of electioneering by corporations and unions, for Sec.
203 exemplified a tradition of “repeatedly sustained legislation aimed at ‘the
corrosive and distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have little or no
correlation to the public’s support for the corporation’s political ideas. ” Nor
did we see any plausible claim of substantial overbreadth from incidentally
prohibiting ads genuinely focused on issues rather than elections, given the
limitation of “electioneering communication” by time, geographical cover-
age, and clear reference to candidate. “Far from establishing that BCRA’s ap-
plication to pure issue ads is substantial, either in an absolute sense or relative
to its application to election-related advertising, the record strongly supports
the contrary conclusion.” Finally, we underscored the reasonableness of the
Sec. 203 line by emphasizing that it defined a category of limited, but not
prohibited, corporate and union speech: “Because corporations can still fund
electioneering communications with PAC money, it is ‘simply wrong’ to
view [Sec. 203] as a “complete ban’ on expression rather than a regulation.”
Thus “corporations and unions may finance genuine issue ads [in the runup
period] by simply avoiding any specific reference to federal candidates, or in
doubtful cases by paying for the ad from a segregated [PAC] fund.”...
 C | Campaigns and Elections | 963

WRITS planned airing of the ads had no apparent relation to any Sen-
ate filibuster vote but was keyed to the timing of the senatorial election.
WRIL began broadcasting the ads on July 26, 2004, four days after the Sen-
ate recessed for the summer, and although the filibuster controversy raged on
through 2005, WRTL did not resume running the ads after the election.
During the campaign period that the ads did cover, Senator Feingold’s sup-
port of the filibusters was a prominent issue. His position was well known,
and his Republican opponents, who vocally opposed the filibusters, made
the issue a major talking point in their campaigns against him.
In sum, any Wisconsin voter who paid attention would have known that
Democratic Senator Feingold supported filibusters against Republican presi-
dential judicial nominees, that the propriety of the filibusters was a major is-
sue in the senatorial campaign, and that WRTL along with the Senator’s
Republican challengers opposed his reelection because of his position on fil-
ibusters. Any alert voters who heard or saw WRTL’ ads would have under-
stood that WRTL was telling them that the Senator’s position on the
filibusters should be grounds to vote against him.
Given these facts, it is beyond all reasonable debate that the ads are con-
stitutionally subject to regulation under McConnell. There, we noted that
BCRA was meant to remedy the problem of “[s]o-called issue ads” being
used “to advocate the election or defeat of clearly identified federal candi-
dates.” We then gave a paradigmatic example of these electioneering ads sub-
ject to regulation, saying that “l]ittle difference existed .. . between an ad
that urged viewers to ‘vote against Jane Doe’ and one that condemned Jane
Doe’s record on a particular issue before exhorting viewers to ‘call Jane Doe
and tell her what you think’ ”...
McConnell’s holding that Sec. 203 is facially constitutional is overruled.
By what steps does the principal opinion reach this unacknowledged result
less than four years after McConnell was decided?
First, it lays down a new test to identify a severely limited class of ads
that may constitutionally be regulated as electioneering communications, a
test that is flatly contrary to McConnell. An ad is the equivalent of express ad-
vocacy and subject to regulation, the opinion says, only if it is “susceptible of
no reasonable interpretation other than as an appeal to vote for or against a
specific candidate.” Since the Feingold ads could, in isolation, be read as at
least including calls to communicate views on filibusters to the two Senators,
those ads cannot be treated as the functional equivalent of express advocacy
to elect or defeat anyone, and therefore may not constitutionally be regulated
atrall. on
The principal opinion, in other words, simply inverts what we said in
McConnell. While we left open the possibility of a “genuine” or “pure” issue
ad that might not be open to regulation under Sec. 203, we meant that an is-
sue ad without campaign advocacy could escape the restriction. ...
Second, the principal opinion seems to defend this inversion of Mc-
Connell as a necessary alternative to an unadministrable subjective test for the
equivalence of express (and regulable) electioneering advocacy. The principal
opinion acknowledges, of course, that in McConnell we said that “[t]he justi-
fications for the regulation of express advocacy apply equally to ads aired
during [the period shortly before an election] if the ads are intended to in-
fluence the voters’ decisions and have that effect.” But THE CHIEF JUS-
TICE says that statement in McConnell cannot be accepted at face value
964 | REPRESENTATIVE GOVERNMENT

because we could not, consistent with precedent, have focused our First
Amendment enquiry on whether “the speaker actually intended to affect an
election.” THE CHIEF JUSTICE suggests it is more likely that the Mc-
Connell opinion inadvertently borrowed the language of “intended .. . ef-
fect|s]” from academic studies in the record of viewers’ perceptions of the
ads’ purposes.
If THE CHIEF JUSTICE were correct that McConnell made the consti-
tutional application of Sec. 203 contingent on whether a corporation’s “mo-
tives were pure,” or its issue advocacy “subjective[ly] sincer[e],” then I, too,
might be inclined to reconsider McConnell’s language. But McConnell did not
do that. It did not purport to draw constitutional lines based on the subjec-
tive motivations of corporations (or their principals) sponsoring political ads,
but merely described our test for equivalence to express advocacy as resting
on the ads’ “electioneering purpose,’ which will be objectively apparent
from those ads’ content and context (as these cases and the examples cited
in McConnell readily show). We therefore held that Sec. 203 was not sub-
stantially overbroad because “the vast majority of ads clearly had such a
purpose,” and consequently could be regulated consistent with the First
Amendment. ...
Third, it may be that the principal opinion rejects McConnell on the er-
roneous assumption that Sec. 203 flatly bans independent electioneering
communications by a corporation. THE CHIEF JUSTICE argues that cor-
porations must receive “the benefit of any doubt,” whenever we undertake
the task of “separating ... political speech protected under the First Amend-
ment from that which may be banned.” But this is a fundamental miscon-
ception of the task at hand: we have already held that it is “ ‘simply wrong’
to view [Sec. 203] as a ‘complete ban’ on expression,” because PAC financing
provides corporations “with a constitutionally sufficient opportunity to en-
gage in express advocacy.” McConnell. Thus, a successful as-applied challenger
to Sec. 203 should necessarily show, at the least, that it could not constitu-
tionally be subjected to the administrative rules that govern a PAC’s forma-
tion and operation. ...
Finally, the suggestion that Sec. 203 is a ban on political speech is belied
by MCEL’s safe harbor for nonprofit advocacy corporations: under that rule,
WRITL would have been free to attack Senator Feingold by name at any
time with ads funded from its corporate treasury, if it had not also chosen to
serve as a funnel for hundreds of thousands of dollars from other corpora-
tions. Thus, what is called a “ban” on speech is a limit on the financing of
electioneering broadcasts by entities that refuse to take advantage of the PAC
structure but insist on acting as conduits from the campaign war chests of
business corporations.
In sum, McConnell does not graft a subjective standard onto campaign
regulation, the context of campaign advertising cannot sensibly be ignored,
and Sec. 203 is not a ban on speech. What cannot be gainsaid, in any event,
is that in treating these subjects as it does, the operative opinion produces the
result of overruling McConnell’s holding on Sec. 203... .
The price of McConnell’s demise as authority on Sec. 203 seems to me
to be a high one. The Court (and, I think, the country) loses when important
precedent is overruled without good reason, and there is no justification for
departing from our usual rule of stare decisis here. The same combination of
 C | Campaigns and Elections | 965

alternatives that was available to corporations affected by McConnell in 2003

is available today: WRTL could have run a newspaper ad, could have paid for
the broadcast ads through its PAC, could have established itself as an MCFL
organization free of corporate money, and could have said “call your Sena-
tors” instead of naming Senator Feingold in its ads broadcasted just before
the election. Nothing in the related law surrounding Sec. 203 has changed in
any way, let alone in any way that undermines McConnell’s rationale. . . .
I cannot tell what the future will force upon us, but I respectfully dissent
from this judgment today.

= THE DEVELOPMENT OF LAW

Other Rulings on Campaign Finance

CASE VOTE RULING

Citizens Against Rent Control/ 8:1 Declared unconstitutional a

Coalition for Fair Housing v. California ordinance imposing a
Berkeley, California, 454 U.S. $250 ceiling on each contributor
290 (1981) to organizations supporting or
opposing issues placed on refer-
endumas, as an infringement of the First Amendment right of association.

Brown v. Hartlage, 456 U.S. 9:0 Overturned as an infringement

45 (1982) of the First Amendment the ap-
plication of Kentucky’s Corrupt
Practices Act as applied to a candidate for the office of county commissioner
who pledged to lower commissioners’ salaries if elected.

Federal Election Commission v. 5:4 Held a section of the Federal

Massachusetts Citizens for Life, Election Campaign Act, banning
Inc., 479 U.S. 238 (1986) corporate expenditures for en-
dorsing particular candidates for
public office, to violate the First Amendment freedom of expression.

Meyer v. Grant, 486 U.S. 414 9:0 Held unconstitutional a ban on

(1988) paying circulators of petitions
for signatures of registered voters
supporting the placement of a referendum on the ballot.

Austin v. Michigan Chamber of 6:3 Held that States may ban corpo-
Commerce, 494 U.S. 652 (1990) rations, even nonprofit corpora-
: tions, from making independent
financial expenditures in support or opposition of political candidates.
a
966 | REPRESENTATIVE GOVERNMENT

a a a EN

CASE VOTE RULING

Colorado Republican Federal IZ Held that the party expenditure

Campaign Committee v. Federal provision of Federal Election
Election Commission, 518 U.S. Campaign Act of 1976 did
694 (1996) not preclude the Republican
party from making independent
campaign expenditures and that applying the provisions to political parties
would violate the First Amendment. Writing for the Court, Justice Breyer
concluded that there was no evidence that “‘a limitation on political parties’
independent expenditures [was] necessary to combat a substantial danger of
corruption of the electoral system.” Justices Stevens and Ginsburg dissented.

Nixon v. Shrink Missouri 6:3 Reaffirming the basic holding

Government PAC, 528 U.S. in Buckley v. Valeo, 424 US. 1
377 (2000) (1976), which sustained a $1,000
cap on donations to federal can-
didates over First Amendment objections, the Court upheld Missouri’s
$1,075 limit on campaign contributions to candidates for state office. Writ-
ing for the Court, Justice Souter ruled that the prevention of corruption and
the appearance of corruption was a constitutionally sufficient justification
for such campaign contribution limits. Justices Kennedy, Scalia, and Thomas
dissented, contending that the majority had abandoned “the rigors of our
traditional First Amendment structure.”

Federal Election Commission v. 5:4 Writing for the Court, Justice

Colorado Republican Campaign Souter upheld the Federal Elec-
Committee, 533 U.S. 431 (2001) tion Campaign Act’s Limitations
on political parties’ campaign ex-
penditures made in conjunction with a candidate’s campaign committee. Jus-
tice Thomas dissented and was joined by Chief Justice Rehnquist and
Justices Scalia and Kennedy.

Federal Election Commission v. 7:2 Upheld a 1907 restriction on

Beaumont, 539 U.S. 146 corporations, including non-
(2003) profit advocacy corporations,
from directly contributing to or
making expenditures for candidates for federal office. Justices Scalia and
Thomas dissented.
 C | Campaigns and Elections | 967

Republican Party of Minnesota v. White

536 U.S. 765, 122 S. Cr. 2528 (2002)

The Minnesota Supreme Court adopted a canon of judicial conduct

prohibiting candidates for judicial office from announcing their views
on disputed legal and political issues. While running for the position of
associate justice on that court, Gregory Wersal filed a lawsuit seeking a
declaration that this “announce clause” violates the First Amendment.A
federal district court disagreed and the Court of the Appeals for the
Eighth Circuit affirmed, whereupon the Republican Party appealed.
The appellate court’s decision was reversed bya five-to-four vote
and an opinion for the Court was delivered by Justice Scalia. Justices
Stevens and Ginsburg filed dissenting opinions, which Justices Souter
and Breyer joined.

Justice SCALIA delivered the opinion of the Court.

The question presented in this case is whether the First Amendment
permits the Minnesota Supreme Court to prohibit candidates for judicial
election in that State from announcing their views on disputed legal and po-
litical issues... .
Before considering the constitutionality of the announce clause, we
must be clear about its meaning. Its text says that a candidate for judicial of-
fice shall not “announce his or her views on disputed legal or political is-
sues.”
We know that “announc[ing] .. . views” on an issue covers much more
than promising to decide an issue a particular way. The prohibition extends
to the candidate’s mere statement of his current position, even if he does not
bind himself to maintain that position after election. All the parties agree this
is the case, because the Minnesota Code contains a so-called pledges or
promises clause, which separately prohibits judicial candidates from making
“pledges or promises of conduct in office other than the faithful and impar-
tial performance of the duties of the office’”—a prohibition that is not chal-
lenged here and on which we express no view.
There are, however, some limitations that the Minnesota Supreme
Court has placed upon the scope of the announce clause that are not (to put
it politely) immediately apparent from its text. ...The Judicial Board issued
an opinion stating that judicial candidates may criticize past decisions. . . .
The Eighth Circuit relied on the Judicial Board’s opinion in upholding the
announce clause, and the Minnesota Supreme Court recently embraced the
Eighth Circuit’s interpretation.
There are yet further limitations upon the apparent plain meaning of
the announce clause: In light of the constitutional concerns, the District
Court construed the clause to reach only disputed issues that are likely to
come before the candidate if he is elected judge. ...
It seems to us, however, that—like the text of the announce clause it-
968 | REPRESENTATIVE GOVERNMENT
ee ee

self—these limitations upon the text of the announce clause are not all that
they appear to be. First, respondents acknowledged at oral argument that
statements critical of past judicial decisions are not permissible if the candi-
date also states that he is against stare decisis. Thus, candidates must choose be-
tween stating their views critical of past decisions and stating their views in
opposition to stare decisis... .
[I]t is clear that the announce clause prohibits a judicial candidate from
stating his views on any specific nonfanciful legal question within the
province of the court for which he is running, except in the context of dis-
cussing past decisions—and in the latter context as well, if he expresses the
view that he is not bound by stare decisis.
Respondents contend that this still leaves plenty of topics for discussion
on the campaign trail. These include a candidate’s “character,” “education,”
“work habits,” and “how [he] would handle administrative duties it-elected/
Indeed, the Judicial Board has printed a list of preapproved questions which
judicial candidates are allowed to answer. These include how the candidate
feels about cameras in the courtroom, how he would go about reducing the
caseload, how the costs of judicial administration can be reduced, and how
he proposes to ensure that minorities and women are treated more fairly by
the court system. Whether this list of preapproved subjects, and other topics
not prohibited by the announce clause, adequately fulfill the First Amend-
ment’s guarantee of freedom of speech is the question to which we now
qurns 2:
We think it plain that the announce clause is not narrowly tailored to
serve impartiality (or the appearance of impartiality)... . Indeed, the clause is
barely tailored to serve that interest at all, inasmuch as it does not restrict
speech for or against particular parties, but rather speech for or against par-
ticular issues. .. .
-It is perhaps possible to use the term “impartiality” in the judicial
context (though this is certainly not a common usage) to mean lack of pre-
conception in favor of or against a particular legal view. This sort of impar-
tiality would be concerned, not with guaranteeing litigants equal application
of the law, but rather with guaranteeing them an equal chance to persuade
the court on the legal points in their case. Impartiality in this sense may well
be an interest served by the announce clause, but it is not a compelling state
interest, as strict scrutiny requires. A judge’s lack of predisposition regarding
the relevant legal issues in a case has never been thought a necessary compo-
nent of equal justice, and with good reason. For one thing, it is virtually im-
possible to find a judge who does not have preconceptions about the law. .. .
A third possible meaning of “impartiality” (again not a common one)
might be described as openmindedness. This quality in a judge demands, not
that he have no preconceptions on legal issues, but that he be willing to con-
sider views that oppose his preconceptions, and remain open to persuasion,
when the issues arise in a pending case. This sort of impartiality seeks to
guarantee each litigant, not an equal chance to win the legal points in the
case, but at least some chance of doing so....
Respondents argue that the announce clause serves the interest in open-
mindedness, or at least in the appearance of openmindedness, because it re-
lieves a judge from pressure to rule a certain way in order to miaintain
consistency with statements the judge has previously made. The problem is,
ee a C | Campaigns and Elections | 969

however, that statements in election campaigns are such an infinitesimal por-

tion of the public commitments to legal positions that judges (or judges-to-
be) undertake, that this object of the prohibition is implausible. Before they
arrive on the bench (whether by election or otherwise) judges have often
committed themselves on legal issues that they must later rule upon... .
The short of the matter is this: In Minnesota, a candidate for judicial of-
fice may not say “I think it is constitutional for the legislature to prohibit
same-sex marriages.” He may say the very same thing, however, up until the
very day before he declares himself a candidate, and may say it repeatedly
(until litigation is pending) after he is elected. As a means of pursuing the
objective of open-mindedness that respondents now articulate, the announce
clause is so woefully underinclusive’as to render belief in that purpose a
challenge to the credulous. ...
There is an obvious tension between the article of Minnesota’s popu-
larly approved Constitution which provides that judges shall be elected, and
the Minnesota Supreme Court’s announce clause which places most subjects
of interest to the voters off limits. The disparity is perhaps unsurprising, since
the ABA, which originated the announce clause, has long been an opponent
of judicial elections. That opposition may be well taken (it certainly had the
support of the Founders of the Federal Government), but the First Amend-
ment does not permit it to achieve its goal by leaving the principle of elec-
tions in place while preventing candidates from discussing what the elections
are about.
The Minnesota Supreme Court’s canon of judicial conduct prohibiting
candidates for judicial election from announcing their views on disputed le-
gal and political issues violates the First Amendment. Accordingly, we reverse
the grant of summary judgment to respondents and remand the case for pro-
ceedings consistent with this opinion. It is so ordered.

Justice GINSBURG, with whom Justice STEVENS, Justice SOUTER,

and Justice BREYER join, dissenting.
Whether state or federal, elected or appointed, judges perform a func-
tion fundamentally different from that of the people’s elected representatives.
Legislative and executive officials act on behalf of the voters who placed
them inoffice; “judge[s] represen[t] the Law.’ Chisom v. Roemer, 501 U.S. 380
(1991) (SCALIA, J., dissenting). Unlike their counterparts in the political
branches, judges are expected to refrain from catering to particular con-
stituencies or committing themselves on controversial issues in advance of
adversarial presentation. Their mission is to decide “individual cases and con-
troversies” on individual records, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211
(1995) (STEVENS, J., dissenting), neutrally applying legal principles, and,
when necessary, “stand[ing] up to what is generally supreme in a democracy:
the popular will?’ SCALIA, The Rule of Law as a Law of Rules, 56 U. Chi.
L. Rev. 1175 (1989). ...
The speech restriction must fail, in the Court’s view, because an elec-
toral process is at stake; if Minnesota opts to elect its judges, the Court as-
serts, the State may not rein in what candidates may say.
I do not agree with this unilocular, “an election is an election,’ ap-
proach. Instead, I would differentiate elections for political offices, in which
970 | REPRESENTATIVE GOVERNMENT

the First Amendment holds full sway, from elections designed to select those
whose office it is to administer justice without respect to persons. Min-
nesota’s choice to elect its judges, I am persuaded, does not preclude the
State from installing an election process geared to the judicial office.
Legislative and executive officials serve in representative capacities. .. .
Judges, however, are not political actors. They do not sit as representatives of
particular persons, communities, or parties; they serve no faction or con-
stituency.“‘[I]t is the business of judges to be indifferent to popularity.” Chi-
som. They must strive.to do what is legally right, all the more so when the
result is not the one “the home crowd” wants. Even when they develop
common law or give concrete meaning to constitutional text, judges act only
in the context of individual cases, the outcome of which cannot depend on
the will of the public.
Thus, the rationale underlying unconstrained speech in elections for po-
litical office—that representative government depends on the public’s ability
to choose agents who will act at its behest—does not carry over to cam-
paigns for the bench....
In view of the magisterial role judges must fill in a system of justice, a
role that removes them from the partisan fray, States may limit judicial cam-
paign speech by measures impermissible in elections for political office. . . .
Accordingly, I would affirm the judgment of the Court of Appeals for
the Eighth Circuit.

Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG,

and Justice BREYER join, dissenting.
I add these comments to emphasize the force of her arguments and to
explain why I find the Court’s reasoning even more troubling than its hold-
ing, ... By obscuring the fundamental distinction between campaigns for the
judiciary and the political branches, and by failing to recognize the difference
between statements made in articles or opinions and those made on the
campaign trail, the Court defies any sensible notion of the judicial office and
the importance of impartiality in that context.
The Court’s disposition rests on two seriously flawed premises—an in-
accurate appraisal of the importance of judicial independence and impartial-
ity, and an assumption that judicial candidates should have the same freedom
“ “to express themselves on matters of current public importance’ ” as do all
other elected officials. Elected judges, no less than appointed judges, occupy
an office of trust that is fundamentally different from that occupied by
policymaking officials. Although the fact that they must stand for election
makes their job more difficult than that of the tenured judge, that fact does
not lessen their duty to respect essential attributes of the judicial office that
have been embedded in Anglo-American law for centuries. . . .
The disposition of this case on the flawed premise that the criteria for
the election to judicial office should mirror the rules applicable to political
elections is profoundly misguided. I therefore respectfully dissent.
 C | Campaigns and Elections | 971

Rutan v. Republican Party of Illinois

497 USS. 62, 110 S.CT. 2729 (1990)

In 1980, Ilinois’s Republican Governor James Thompson issued an ex-

ecutive order freezing all hiring of state employees and placing virtually
all of the state’s 62,000 civil service positions under the jurisdiction of
his personnel office. Cynthia Rutan and several other public employees
who had never supported the Republican party were subsequently de-
nied promotions. Rutan contended that her promotion was denied
simply for partisan reasons and that that violated her First Amendment
rights to freedom of speech and association. In his opinion announcing
the decision of the Court, Justice Brennan further discusses the facts in
this case.
The Court’s decision was five to four; and the majority’ opinion
was announced by Justice Brennan. Justice Stevens delivered a con-
curring opinion. Justice Scalia, joined by Chief Justice Rehnquist and
Justices Kennedy and O’Connor, dissented.

1 Justice BRENNAN delivers the opinion of the Court.

To the victor belong only those spoils that may be constitutionally ob-
tained. Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507
(1980), decided that the First Amendment forbids government officials to
discharge or threaten to discharge public employees solely for not being sup-
porters of the political party in power, unless party affiliation is an appropri-
ate 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....
In Elrod, we decided that a newly elected Democratic sheriff could not
constitutionally engage in the patronage practice of replacing certain office
staff with members of his own party “when the existing employees lack or
fail to obtain requisite support from, or fail to affiliate with, that party.” ...
Four years later, in Branti, we decided that the First Amendment prohib-
ited a newly appointed public defender, who was a Democrat, from dis-
charging assistant public defenders because they did not have the support of
the Democratic Party. ...
Respondents urge us to view Elrod and Branti as inapplicable because
the patronage dismissals at issue in those cases are different in kind from fail-
ure to promote, failure to transfer, and failure to recall after layoff. Respon-
dents initially contend that the employee petitioners’ First Amendment rights
. have not been-infringed because they have no entitlement to promotion,
transfer, or rehire. We rejected just such an argument in Elrod... .
Respondents next argue that the employment decisions at issue here do
972 | REPRESENTATIVE GOVERNMENT

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 em-
ployees. 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 supe-
riors, and to refrain from acting on the political views they actually hold, in
order to progress up the career ladder. Employees denied transfers to work-
places reasonably close to their homes until they join and work for the Re-
publican 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 posi-
tions corresponding to their skill and experience.
The same First Amendment concerns that underlay our decisions in El-
rod, and Branti, are implicated here. Employees who do not compromise their
beliefs stand to lose the considerable increases in pay and job satisfaction at-
tendant to promotions, the hours and maintenance expenses that are con-
sumed by long daily commutes, and even their jobs if they are not rehired
after a “temporary” layoff. These are significant penalties and are imposed for
the exercise of rights guaranteed by the First Amendment. Unless these pa-
tronage practices are narrowly tailored to further vital government interests,
we must conclude that they impermissibly encroach on First Amendment
freedoms. . =:
We hold that the rule of Elrod and Branti extends to promotion, transfer,
recall, and hiring decisions based on party affiliation and support and that all
of the petitioners and cross-respondents have stated claims upon which relief
may be granted. We affirm the Seventh Circuit insofar as it remanded Ru-
tan’s, Taylor’s, Standefer’s, and O’Brien’s claims. However, we reverse the Cir-
cuit 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 SCALIA, with whom the CHIEF JUSTICE and Justice

KENNEDY join, and with whom Justice O’ CONNOR joins as to Parts I
and III, 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 per-
formance party affiliation is not an appropriate requirement, it is the job of
being a judge, where partisanship is not only unneeded but positively un-
desirable. It is, however, rare that a federal administration of one party will
appoint a judge from another party. And it has always been rare. See Marbury
v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court to-
day 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
 C | Campaigns and Elections | 973

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 practi-
tioner of the patronage system, George Washington Plunkitt of Tammany
Hall:

“T 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 govern-
ment they built up must go to pieces, too; fourth, then there’ll be
hell to pay.’ W. Riordon, Plunkitt of Tammany Hall 13 (1963).

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 Ma-
chines, the Byrd Machines and the Daley Machines have faded into history;
we find that political leaders at all levels increasingly complain of the help-
lessness 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 patron-
age 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 v.
Burns (1976), the Court did that. Elrod was limited however, as was the later
decision of Branti v. Finkel (1980), 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 regard-
ing government employment. Because the First Amendment has never been
thought to require this disposition, which may well have disastrous conse-
quences for our political system, I dissent.

a!

The restrictions that the Constitution places upon the government in its ca-
pacity as lawmaker, i.e., as the regulator of private conduct, are not the same
as the restrictions that it places upon the government in its capacity as em-
ployer. We have recognized this in many contexts, with respect to many dif-
ferent constitutional guarantees. Private citizens perhaps cannot be prevented
from wearing long hair, but policemen can. Kelley v. Johnson, 425 U.S. 238
(1976). Private citizens cannot have their property searched without probable
cause, but in many circumstances government employees can. O’Connor v.
Ortega, 480 U.S. 709 (1987). Private citizens cannot be punished for refusing
to provide the government information that may incriminate them, but
government employees can be dismissed when the incriminating informa-
tion that they refuse to provide relates to the performance of their job. Gard-
ner v. Broderick, 392 U.S. 273 (1968). With regard to freedom of speech in
974 | REPRESENTATIVE GOVERNMENT

particular: Private citizens cannot be punished for speech of merely private

concern, but government employees can be fired for that reason. Connick v,
Myers, 461 U.S. 138, (1983). Private citizens cannot be punished for partisan
political activity, but federal and state employees can be dismissed and other-
wise punished for that reason. Public Workers v. Mitchell, 330 U.S. 75 (1947);
CSC v. Letter Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S.
601 (1973).
Once it is acknowledged that the Constitution’s prohibition against laws
“abridging the freedom of speech” does not apply to laws enacted in the
government’s capacity as employer the same way it does to laws enacted in
the government’s capacity as regulator of private conduct, it may sometimes
be difficult to assess what employment practices are permissible and what are
not. That seems to me not a difficult question, however, in the present con-
text. The provisions of the Bill of Rights were designed to restrain transient
majorities from impairing long-recognized personal liberties. They did not
create by implication novel individual rights overturning accepted political
norms. Thus, when a practice not expressly prohibited by the text of the Bill
of Rights bears the endorsement of a long tradition of open, widespread,
and unchallenged use that dates back to the beginning of the Republic, we
have no proper basis for striking it down. Such a venerable and accepted
tradition is not to be laid on the examining table and scrutinized for
its conformity to some abstract principle of First-Amendment adjudication
devised by this Court.To the contrary, such traditions are themselves the stuff
out of which the Court’s principles are to be formed. They are, in these
uncertain areas, the very points of reference by which the legitimacy or
iulegitimacy of other practices are to be figured out. When it appears that
the latest “rule,” or “three-part test,” or “balancing test” devised by the Court
has placed us on a collision course with such a landmark practice, it is the
former that must be recalculated by us, and not the latter that must be aban-
doned by our citizens. | know of no other way to formulate a constitutional
jurisprudence that reflects, as it should, the principles adhered to, over time,
by the American people, rather than those favored by the personal (and nec-
essarily shifting) philosophical dispositions of a majority of this Court... .

a II
Even accepting the Court’s own mode of analysis, however, and engaging in
“balancing,” a tradition that ought to be part of the scales, Elrod, Branti, and
today’s extension of them seem to me wrong.
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 opera-
tio[ns]. . . 2” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961).
 C | Campaigns and Elections | 975

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, Kelley v_Johnson. .. .
Because the restriction on speech is more attenuated when the govern-
ment conditions employment than when it imposes criminal penalties, and
because “government offices could not function if every employment deci-
sion became a constitutional matter,’ Connick v. Myers, we have held that
government employment decisions taken on the basis of an employee’s
speech do not “abridg[e] the freedom of speech,’ merely because they fail
the narrow-tailoring and compelling-interest tests applicable to direct regu-
lation of speech. We have not subjected such decisions to strict scrutiny, but
have accorded “‘a wide degree of deference to the employer’s judgment” that
an employee’s speech will interfere with close working relationships.
When the government takes adverse action against an employee on the
basis of his political affiliation (an interest whose constitutional protection is
derived from the interest in speech), the same analysis applies... .
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 legisla-
ture could reasonably determine that its benefits outweigh its “coercive”’ ef-
fects, | must describe those benefits as the proponents of patronage see them:
As Justice POWELL discussed at length in his Elrod dissent, patronage stabi-
lizes political parties and 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 peri-
ods between elections,” to perform such tasks as organizing precincts, regis-
tering 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 suffi-
cient numbers to keep the party going through the off-years. .. .
The Court simply refuses to acknowledge the link between patronage
and party discipline, and between that and party success ...
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 sur-
vived the substantial decline in patronage employment practices in this cen-
tury.” 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) par-
tially 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 state-
ment 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?
976 REPRESENTATIVE GOVERNMENT

The patronage system does not, of course, merely foster political parties
in general; it fosters the two-party system inparticular. When getting a job, as
opposed to effectuating a particular substantive policy, is an available incen-
tive for party-workers, those attracted by that incentive are likely to work for
the party that has the best chance of displacing the “ins,” rather than for
some splinter group that has a more attractive political philosophy but little
hope of success. Not only is a two-party system more likely to emerge, but
the differences between those parties are more likely to be moderated, as
each has a relatively greater interest in appealing to a majority of the elec-
torate and a relatively lesser interest in furthering philosophies or programs
that are far from the mainstream. The stabilizing effects of such a system are
obvious. ...
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. There is little doubt that our decisions in Elrod and
Branti, by contributing to the decline of party strength, have also contributed
to the growth of interest-group politics in the last decade. Our decision to-
day will greatly accelerate the trend. It is not only campaigns that are af-
fected, of course, but the subsequent behavior of politicians once they are in
power. The replacement of a system firmly based in party discipline with one
in which each office-holder comes to his own accommodation with com-
peting interest groups produces “a dispersion of political influence that may
inhibit a political party from enacting its programs into law.’
Patronage, moreover, has been a powerful means of achieving the social
and political integration of excluded groups. By supporting and ultimately
dominating a particular party “machine,” racial and ethnic minorities have—
on the basis of their politics rather than their race or ethnicity—acquired the
patronage awards the machine had power to confer. No one disputes the his-
torical accuracy of this observation, and there is no reason to think that
patronage can no longer serve that function. The abolition of patron-
age, however, prevents groups that have only recently obtained political
power, especially blacks, from following this path to economic and social
advancement. ...
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 ap-
plies some greater or lesser inducement for individuals to join and work for
the party in power....
Even were I not convinced that Elrod and Branti were wrongly decided,
I would hold that they should not be extended beyond their facts, viz., actual
discharge of employees for their political affiliation. Those cases invalidated
patronage firing in order to prevent the “restraint it places on freedoms of
belief and association.”The loss of one’s current livelihood is an appreciably
greater constraint than such other disappointments as the failure to obtain a
promotion or selection for an uncongenial transfer. Even if the “coercive” ef-
fect of the former has been always to outweigh the benefits of party-based
 C | Campaigns and Elections | 977

employment decisions, the “coercive” effect of the latter should not be. We
have drawn a line between firing and other employment decisions in other
contexts, see Wygant v. Jackson Bd. of Education, 476 U.S. 267 (1986) and
should do so here as well... . If Elrod and Branti are not to be reconsidered
in light of their demonstrably unsatisfactory consequences, I would go no
further than to allow a cause of action when the employee has lost his posi-
tion, that is, his formal title and salary. That narrow ground alone is enough
to resolve the constitutional claims in the present case. . . .
The Court’s opinion, of course, not only declines to confine Elrod and
Branti to dismissals in the narrow sense I have proposed, but, unlike the Sev-
enth Circuit, even extends those opinions beyond “constructive” dismissals—
indeed, even beyond adverse treatment of current employees—to all hiring
decisions. In the long run there may be cause to rejoice in that extension.
When the courts are flooded with litigation under that most unmanageable
of standards (Branti) brought by that most persistent and tenacious of suitors
(the disappointed office-seeker) we may be moved to reconsider our intru-
sion into this entire field.
In the meantime, I dissent.

McIntyre v. Ohio Elections Organization

$14 USS. 334, 115 S.CT. 1511 (1995)

In 1988, Mrs. Margaret McIntyre distributed leaflets outside of a public

meeting at a middle school in Westerville, Ohio. At the meeting the
school superintendent discussed an upcoming referendum on a pro-
posed school tax levy, which Mrs. McIntyre’s leaflets opposed. Some of
the leaflets identified her as the author, but others purported to express
the views of “Concerned Parents and Tax Payers.” The levy was subse-
quently defeated in two elections but finally passed in a third. Five
months after that election, a school official filed a complaint with the
Ohio Elections Organization, charging Mrs. McIntyre with violating
Section 3599.09(A) of the Ohio state code proscribing the distribution
of anonymous campaign literature. Mrs. McIntyre was fined $100 and
appealed to a court of common pleas, which found the restriction un-
constitutional. However, a state appellate court reversed and the Ohio
Supreme Court agreed, upholding the state’s law. In the process of the
litigation, Mrs. McIntyre died but her husband, as executor of her es-
tate, appealed to the U.S. Supreme Court which granted review.
The Court’s decision was seven to two and announced by Justice
Stevens. Justices Ginsburg and Thomas filed separate concurrences .
Jus-
tice Scalia filed a dissenting opinion, which was joined by Chief Justice
Rehnquist.
978 | REPRESENTATIVE GOVERNMENT

1) Justice STEVENS delivered the opinion of the Court.

“Anonymous pamphlets, leaflets, brochures and even books have played
an important role in the progress of mankind.” Talley v. California, 362 U.S.
60 (1960). Great works of literature have frequently been produced by au-
thors writing under assumed names. Despite readers’ curiosity and the pub-
lic’s interest in identifying the creator of a work of art, an author generally is
free to decide whether or not to disclose her true identity. The decision in
favor of anonymity may be motivated by fear of economic or official retali-
ation, by concern about social ostracism, or merely by a desire to preserve as
much of one’s privacy as possible. Whatever the motivation may be, at least
in the field of literary endeavor, the interest in having anonymous works en-
ter the marketplace of ideas unquestionably outweighs any public interest in
requiring disclosure as a condition of entry. Accordingly, an author’s decision
to remain anonymous, like other decisions concerning omissions or addi-
tions to the content of a publication, is an aspect of the freedom of speech
protected by the First Amendment.
The freedom to publish anonymously extends beyond the literary
realm. In Talley, the Court held that the First Amendment protects the dis-
tribution of unsigned handbills urging readers to boycott certain Los An-
geles merchants who were allegedly engaging in discriminatory employment
practices. Writing for the Court, Justice BLACK noted that “persecuted
groups and sects from time to time throughout history have been able to
criticize oppressive practices and laws either anonymously or not at all.”
Justice BLACK recalled England’s abusive press licensing laws and sedi-
tious libel prosecutions, and he reminded us that even the arguments favor-
ing the ratification of the Constitution advanced in the Federalist Papers
were published under fictitious names. On occasion, quite apart from any
threat of persecution, an advocate may believe her ideas will be more per-
suasive if her readers are unaware of her identity. Anonymity thereby pro-
vides a way for a writer who may be personally unpopular to ensure that
readers will not prejudge her message simply because they do not like its
proponent. ...
[A]s we have explained on many prior occasions, the category of speech
regulated by the Ohio statute occupies the core of the protection afforded
by the First Amendment: “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. The First Amendment affords
the broadest protection to such political expression in order ‘to assure [the]
unfettered interchange of ideas for the bringing about of political and
social changes desired by the people’ ” Roth v. United States, 354 U.S. 476
(1957)... ;
Nevertheless, the State argues that even under the strictest standard of
review, the disclosure requirement in Section 3599.09(A) is justified by two
important and legitimate state interests. Ohio judges its interest in preventing
fraudulent and libelous statements and its interest in providing the electorate
with relevant information to be sufficiently compelling to justify the anony-
mous speech ban. These two interests necessarily overlap to some extent, but
it is useful to discuss them separately.
Insofar as the interest in informing the electorate means nothing more
than the provision of additional information that may either buttress or
 C | Campaigns and Elections | 979

undermine the argument in a document, we think the identity of the

speaker is no different from other components of the document’s content that
the author is free to include or exclude. We have already held that the State
may not compel a newspaper that prints editorials critical of a particular can-
didate to provide space for a reply by the candidate. Miami Herald Publishing
Co. v. Tornillo, 418 U.S. 241 (1974). The simple interest in providing voters
with additional relevant information does not justify a state requirement that
a writer make statements or disclosures she would otherwise omit... .
The state interest in preventing fraud and libel stands on a different
footing. We agree with Ohio’s submission that this interest carries special
weight during election campaigns when false statements, if credited, may
have serious adverse consequences for the public at large. Ohio does not,
however, rely solely on Section 3599.09(A) to protect that interest. Its Elec-
tion Code includes detailed and specific prohibitions against making or dis-
seminating false statements during political campaigns. These regulations
apply both to candidate elections and to issue-driven ballot measures. Thus,
Ohio’s prohibition of anonymous leaflets plainly is not its principal weapon
against fraud. Rather, it serves as an aid to enforcement of the specific prohi-
bitions and as a deterrent to the making of false statements by unscrupulous
prevaricators. Although these ancillary benefits are assuredly legitimate, we
are not persuaded that they justify Section 3599.09(A)’s extremely broad
prohibition. ...
Under our Constitution, anonymous pamphleteering is not a perni-
cious, fraudulent practice, but an honorable tradition of advocacy and of dis-
sent. Anonymity is a shield from the tyranny of the majority. See generally
J. S. Mill, On Liberty. It thus exemplifies the purpose behind the Bill of
Rights, and of the First Amendment in particular: to protect unpopular indi-
viduals from retaliation—and their ideas from suppression—at the hand of
an intolerant society. The right to remain anonymous may be abused when it
shields fraudulent conduct. But political speech by its nature will sometimes
have unpalatable consequences, and, in general, our society accords greater
weight to the value of free speech than to the dangers of its misuse. Ohio
has not shown that its interest in preventing the misuse of anonymous
election-related speech justifies a prohibition of all uses of that speech. The
State may, and does, punish fraud directly. But it cannot seek to punish fraud
indirectly by indiscriminately outlawing a category of speech, based on its
content, with no necessary relationship to the danger sought to be pre-
vented. One would be hard pressed to think of a better example of the pit-
falls of Ohio’s blunderbuss approach than the facts of the case before us.
The judgment of the Ohio Supreme Court is reversed.

Justice THOMAS, concurring in the judgment.

I agree with the majority’s conclusion that Ohio’s election law is in-
consistent with the First Amendment. I would apply, however, a different
methodology to this case. Instead of asking whether “an honorable tradition”
of anonymous speech has existed throughout American history, or what the
“value” of anonymous speech might be, we should determine whether the
phrase “freedom of speech, or of the press,” as originally understood, pro-
tected anonymous political leafletting. I believe that it did. ... [A lengthy re-
980 | REPRESENTATIVE GOVERNMENT

view of the use anonymous publications, like The Federalist Papers, during the
period of the Constitution’s ratification follows and is omitted here.]
The ratification of the Constitution was not the only issue discussed via
anonymous writings in the press. James Madison and Alexander Hamilton,
for example, resorted to pseudonyms in the famous “Helvidius” and “Pacifi-
cus” debates over President Washington’s declaration of neutrality in the war
between the British and French. Anonymous writings continued in such
Republican papers as the Aurora and Federalists organs such as the Gazette of
the United States at least until the election of Thomas Jefferson.
This evidence leads me to agree with the majority’s result, but not its
reasoning. The majority fails to seek the original understanding of the First
Amendment, and instead attempts to answer the question in this case by re-
sorting to three approaches. First, the majority recalls the historical practice
of anonymous writing from Shakespeare’s works to The Federalist Papers to
Mark Twain. Second, it finds that anonymous speech has an expressive value
both to the speaker and to society that outweighs public interest in dis-
closure. Third, it finds that Section 3599.09(A) cannot survive strict scrutiny
because it is a “content-based” restriction on speech.
I cannot join the majority’s analysis because it deviates from our set-
tled approach to interpreting the Constitution and because it superimposes
its modern theories concerning expression upon the constitutional text.
Whether “great works ofliterature” —by Voltaire or George Eliot have been
published anonymously should be irrelevant to our analysis, because it sheds
no light on what the phrases “free speech” or “free press” meant to the peo-
ple who drafted and ratified the First Amendment. .. .

“| Justice SCALIA, with whom the CHIEF JUSTICE joins, dissenting.

The question posed by the present case is not the easiest sort to answer
for those who adhere to the Court’s (and the society’s) traditional view that
the Constitution bears its original meaning and is unchanging. That tech-
nique is simple of application when government conduct that is claimed to
violate the Bill of Rights or the Fourteenth Amendment is shown, upon in-
vestigation, to have been engaged in without objection at the very time the
Bill of Rights or the Fourteenth Amendment was adopted. There is no
doubt, for example, that laws against libel and obscenity do not violate “the
freedom of speech” to which the First Amendment refers; they existed and
were universally approved in 1791. Application of the principle of an un-
changing Constitution is also simple enough at the other extreme, where
the government conduct at issue was not engaged in at the time of adop-
tion, and there is ample evidence that the reason it was not engaged in
is that it was thought to violate the right embodied in the constitutional
guarantee,.ah
The present case lies between those two extremes. Anonymous election-
eering was not prohibited by law in 1791 or in 1868. In fact, it was widely
practiced at the earlier date, an understandable legacy of the revolutionary
era in which political dissent could produce governmental reprisal. I need
not dwell upon the evidence of that, since it is described at length in today’s
concurrence.
But to prove that anonymous electioneering was used frequently is not
 C | Campaigns and Elections | 981

to establish that it is a constitutional right. Quite obviously, not every restric-

tion upon expression that did not exist in 1791 or in 1868 is ipso facto un-
constitutional, or else modern election laws such as those involved in Burson
v. Freeman, 504 U.S. 191 (1992), and Buckley v. Valeo, 424 U.S. 1 (1976), would
be prohibited, as would (to mention only a few other categories) modern
antinoise regulation of the sort involved in Kovacs v. Cooper, 336 U.S. 77
(1949), and Ward v. Rock Against Racism, 491 U.S. 781 (1989), and modern
parade-permitting regulation of the sort involved in Cox v. New Hampshire,
BUT SI569 (1941):
Evidence that anonymous electioneering was regarded as a constitu-
tional right is sparse, and as far as I am aware evidence that it was generally
regarded as such is nonexistent. The concurrence points to “freedom of the
press” objections that were made against the refusal of some Federalist news-
papers to publish unsigned essays opposing the proposed constitution (on
the ground that they might be the work of foreign agents). But of course
if every partisan cry of “freedom of the press” were accepted as valid, our
Constitution would be unrecognizable; and if one were to generalize from
these particular cries, the First Amendment would be not only a protection
for newspapers but a restriction upon them... .
The concurrence recounts other pre- and post-Revolution examples of
defense of anonymity in the name of “freedom of the press,’ but not a sin-
gle one involves the context of restrictions imposed in connection with a
free, democratic election, which is all that is at issue here... .
Thus, the sum total of the historical evidence marshalled by the concur-
rence for the principle of constitutional entitlement to anonymous election-
eering is partisan claims in the debate on ratification (which was almost like
an election) that a viewpoint-based restriction on anonymity by newspaper
editors violates freedom of speech. This absence of historical testimony con-
cerning the point before us is hardly remarkable. The issue of a governmen-
tal prohibition upon anonymous electioneering in particular (as opposed to
a government prohibition upon anonymous publication in general) simply
never arose. Indeed, there probably never arose even the abstract question of
whether electoral openness and regularity was worth such a governmental
restriction upon the normal right to anonymous speech. The idea of close
government regulation of the electoral process is a more modern phenome-
non, arriving in this country in the late 1800's.
What we have, then, is the most difficult case for determining the mean-
ing of the Constitution. No accepted existence of governmental restrictions
of the sort at issue here demonstrates their constitutionality, but neither can
their nonexistence clearly be attributed to-constitutional objections. In such
a case, constitutional adjudication necessarily involves not just history but
judgment: judgment as to whether the government action under challenge 1s
consonant with the concept of the protected freedom (in this case, the free-
_ dom of speech and of the press) that existed when the constitutional protec-
tion was accorded. In the present case, absent other indication, | would be
inclined to agree with the concurrence that a society which used anony-
mous political debate so regularly would not regard as constitutional even
moderate restrictions made to improve the election process.
But there is other indication, of the most weighty sort: the widespread
and longstanding traditions of our people. Principles of liberty fundamental
982 | REPRESENTATIVE GOVERNMENT

enough to have been embodied within constitutional guarantees are not read-
ily erased from the Nation’s consciousness. A governmental practice that has
become general throughout the United States, and particularly one that has
the validation of long, accepted usage, bears a strong presumption of consti-
tutionality. And that is what we have before us here. Section 3599.09(A) was
enacted by the General Assembly of the State of Ohio almost 80 years ago.
Even at the time of its adoption, there was nothing unique or extraordinary
about it. The earliest statute of this sort was adopted by Massachusetts in
1890, little more than 20 years after the Fourteenth Amendment was ratified.
No less than 24 States had similar laws by the end of World War I, and today
every State of the Union except California has one, as does the District of
Columbia, and as does the Federal Government where advertising relating to
candidates for federal office is concerned. Such a universal and long estab-
lished American legislative practice must be given precedence, I think, over
historical and academic speculation regarding arestriction that assuredly does
not go to the heart of free speech....
It can be said that we ignored a tradition as old, and almost as wide-
spread, in Texas v.Johnson, 491 U.S. 397 (1989), where we held unconstitu-
tional a state law prohibiting descreation of the United States flag. But those
cases merely stand for the proposition that post-adoption cannot alter the
core meaning of a constitutional guarantee. As we said in Johnson, “if there is
a bedrock principle underlying the First Amendment, it is that the govern-
ment may not prohibit the expression of an idea simply because society finds
the idea itself offensive or disagreeable.” .. .
The foregoing analysis suffices to decide this case for me. Where the
meaning of a constitutional text (such as “the freedom of speech”) is un-
clear, the widespread and long-accepted practices of the American people
are the best indication of what fundamental beliefs it was intended to en-
shrine. Even if I were to close my eyes to practice, however, and were to be
guided exclusively by deductive analysis from our case law, I would reach the
same result. ...I respectfully dissent.

# THE DEVELOPMENT OF LAW

Other Rulings on Campaigns and Elections

CASE VOTE RULING

Williams v. Rhodes, 393 U.S. 8:1 Struck down an Ohio law pre-
23 (1968) cluding the Socialist Labor party
from being placed on the ballot.
Gordon v. Lance, 403 U.S. 1 9:0 Upheld West Virginia law al-
(1971) lowing 60 percent of voters in a
referendum to approve tax in-
creases.
a
 C | Campaigns and Elections | 983

CASE VOTE RULING

Jenneas v. Fortson, 403 U.S. 9:0 Upheld Georgia’s requirement

431 (1971) that any political organization
other than those receiving 20
percent or more in the last gubernatorial election must file a nominating pe-
tition with not less than 15 percent of eligible voters signing it within 180
days of filing deadline for candidates in primaries.

Roudebush v. Hartke, 405 U.S. ey Constitutional provision that

1 (A972) ; each house will judge elections
does not prohibit Indiana from
conducting a recount of 1970 election ballots.

Rosario v. Rockefeller, 5:4 State does not violate First

410 U.S. 752 (1973) Amendment right of freedom
of association by requiring that
voters in primary elections enroll in the party at least thirty days before the
last general election.

Kusper v. Pontikes, 414 U.S. 72 States impermissibly abridge

51 (1973) First Amendment by forbid-
ding citizens to vote in the
primary of one party if they have voted in that of another party in the pre-
ceding twenty-three months.
Storer v. Brown and Frommhagen 6:3 States may require that inde-
v. Brown, 415 U.S. 724 (1974) pendent candidates disassociate
themselves from an established
party at least one year before the primary election of the year in which they
plan to run for office.

American Party of Texas v. 8:1 A state’s compelling interest in

White, U.S. 767 (1974) protecting the integrity of the
nominating process may re-
quire new and minority parties to secure a certain number of voter signa-
tures on petitions, excluding those who voted in a party primary in the same
year, to place candidate’s name on the ballot.

Anderson v. United States, Tee State and local officials may be

417 U.S. 211 (1974) prosecuted under federal law
for tampering with ballots in
-local election because voters have an unimpeded right to vote in congres-
sional and senatorial primaries held at the same time.

Hill v. Stone, 421 U.S. 709 5:3 Struck down section of Texas
(1974) election code limiting to prop-
erty owners the right to vote in
ree
Le
984 | REPRESENTATIVE GOVERNMENT

CASE VOTE RULING

city bond issues; held that only age, residence, and citizenship distinctions
may be made.
Richardson v. Ramirez, 418 U.S. 6:3 Held that state may disenfran-
24 (1974) chise convicted felons who have
completed their prison sentences.

Town of Lockport v. Citizens for 9:0 Upheld a New York law re-
Community Action, 430 U.S. quiring that new county char-
259 (1977) ters go into effect only if
approved by concurrent ma-
jorities of voters living within cities in the county and voters living outside
of the cities.

Hunter v. Underwood, 471 U.S. 9:0 Held that Alabama _ consti-

222 (1985) tution disenfranchising people
convicted of crimes of moral
turpitude violated the Fourteenth Amendment’s equal protection clause.

Tashjian v. Republican Party of — 5:4 Connecticut’s primary statute,

Connecticut, 479 U.S. 208 barring unaffiliated voters to
(1986) participate in elections, violated
political party’s First Amend-
ment right of association.
Euv. San Francisco County 8:0 Struck down an ordinance for-
Democratic Central Committee, bidding primary endorsement
489 U.S. 214 (1989) of political parties and restric-
tions on the organization and
composition of official governing bodies of state political parties.

Renne v. Greary, 501 U.S. 312 6:3 The Court held that a chal-
(1991) lenge to a state law banning
political parties from endorsing
candidates in nonpartisan elections for judgeships and local government po-
sitions was nonjusticiable. Justices Blackmun, Marshall, and White dissented.

Burson v. Freeman, 504 U.S. 4:3 With Justice Thomas not par-
191 (1992) - ticipating, the Court upheld a
Tennessee law forbidding the
display and distribution of campaign materials, along with the solicitation of
votes, near polling places on election day, while permitting other forms of
speech there. Justices O’Connor, Souter, and Stevens dissented.
Norman v. Reed, 502 U.S.279 8:1 Struck down an ordinance re-
(1992) quiring new political parties
to gather 50,000 signatures on
SS SS
 C | Campaigns and Elections | 985

CASE VOTE RULING

nominating petitions to place their candidates on ballots for local offices,

whereas for other statewide offices only 25,000 signatures were required.
With only Justice Scalia dissenting, the Court reaffirmed citizens’ First and
Fourteenth Amendments right to form political parties and deemed the or-
dinance to lack a “compelling state interest.”

Burdick v. Takuski, 505 U.S. O23 Upheld Hawaii’s law prohibit-

1202 (1992) ing write-in votes in state
: elections as imposing reasonable
burdens on citizen’s First and Fourteenth Amendment rights. Justices Black-
mun, Kennedy, and Stevens: dissented.

McIntyre v. Ohio Elections ee Writing for the majority,

Commission, 514 U.S. 334 Justice Stevens struck down
(1995) Ohio’s law against the distribu-
tion of anonymous campaign
literature, and by implication similar laws in forty-eight other states, as a violation
of the First Amendment. Justice Scalia and Chief Justice Rehnquist dissented.

Timmons v. Twin Cities Area 6:3 Rejected a First Amendment

New Party, 520 U.S. 351 challenge to Minnesota’s law
(1997) barring the listing on ballots of
candidates supported by one of
the major parties, Republican or Democrat, as well as a third party. The New Party
argued that the ban on such a“fusion” in listing candidates relegated thirty parties
to the margins and violated their First Amendment rights of freedom of speech
and association. But only dissenting Justices Stevens, Souter, and O’Connor agreed.

Foster v. Love, 522 U.S. 67 9:0 Struck down Louisiana’s 1975

(1997) “open primary” law, under which
elections are held in October and
if a candidate for a congressional seat receives a majority vote, the candidate “1s
elected” and not subject to run on the federal election day of the Tuesday after the
first Monday in November, which was established in 1872. Writing for the Court,
Justice Souter held that the law infringed on Congress’ “power to override state
regulations” by establishing uniform rules for federal elections.

Arkansas Educational Television 6:3 Writing for the Court, Justice

Commission v. Forbes, 523 U.S. Kennedy held that a public
666 (1998) television station may exclude
“marginal” candidates from its
televised debates of major candidates for political office. In refusing to ex-
tend the concept of a “public forum” to such debates, he held that the deci-
sion to @xclude Steve Forbes, an independent candidate, was under the
circumstances a reasonable, viewpoint-neutral exercise of journalistic dis-
aaaeneeeee rere
986 | REPRESENTATIVE GOVERNMENT

CASE VOTE RULING

cretion consistent with the First Amendment. Dissenting Justice Stevens, joined
by Justices Ginsburg and Souter, countered that the majority failed to hold
public television stations to a higher standard, requiring them to have “‘pre-
established, objective criteria” for determining access to televised debates.

Buckley v. American Constitu- 6:3 Writing for the majority,

tional Law Foundation, 525 U.S. Justice Ginsburg invalidated
182 (1999) Colorado’s restrictions on its
initiative-petition process that
had required petition proponents and circulators to (1) be registered voters,
(2) wear identification badges when.gathering signatures, and (3) disclose the
names of all paid circulators, for infringing on the First Amendment’s guar-
antee for freedom of speech. Chief Justice Rehnquist and Justices O’Connor
and Breyer dissented.

California Democratic Party v. 72 Writing for the Court, Justice

Jones, 530 U. S 567 (2000) Scalia struck down California’s
“blanket primary,’ under which
all persons eligible (even those not affiliated with a party) may vote for any
candidate, regardless of the candidate’s political affiliation, and voters may
pick and choose among different parties’ candidates for various offices. Wash-
ington and Alaska had similar primaries, whereas twenty other states have
“open primaries,’ allowing voters to decide on election day which party pri-
mary they want to participate in. Here, the “blanket primary” was held to
violate political parties’ First Amendment freedom of association. Justices
Stevens and Ginsburg dissented.

Rice v. Cayetanno, 528 U.S. Fez The Court held that the denial
495 (2000) of a citizen’s right to vote for
trustees of the Office of Ha-
wailan Affairs (OHA) violates the Fifteenth Amendment. The OHA ad-
ministers programs for two subclasses of Hawaiians: “Hawaiians” and “native
Hawaiians,’ both of which trace their ancestry back to 1778. Rice, a Hawai-
ian citizen who lacked ancestry to be designated a “Hawaiian,” applied to
vote in OHA trustee elections but was denied. Writing for the Court, Justice
Kennedy ruled that the ancestry requirements were a proxy for race and as
such forbidden by the Fifteenth Amendment. Justices Stevens and Ginsburg
dissented.
Cook v. Gralike, 531 U.S.510 9:0 In response to the ruling in
(2001) U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) (excerpted
in Vol. 1, Ch. 5), Missouri amended its state constitution to require placing of
the words “Disregarded Voters’ Instruction on Term Limits” on the. ballot
next to the name of an incumbent who failed to support term limits and
SS a
 C | Campaigns and Elections | 987

Sa
a a a

CASE VOTE RULING

who runs for reelection. For candidates who are not incumbents and refuse
to vow to support term limits, the law required placing the label “Declined
to Pledge to Support Term Limits” next to their names. Writing for the
Court, Justice Stevens struck down Missouri’s law for running afoul of Elec-
tions Clause of Article 1, Section 4, by impermissibly attempting to add to
the qualifications for holding congressional office beyond those specified for
members’ age, citizenship, and residency.

Clingman v. Beaver, 6:3 Justice Thomas upheld Okla-

544 U.S. 581 (2005) homa’s semiclosed primary
law, under which political
parties may permit only their tegistered voters and independents to
vote in a primary. The Libertarian Party had wanted to open its pri-
mary to voters of other parties and challenged the law for infringing
on the freedom of association. Justice Thomas, though, ruled that the
restriction imposed only minor burdens and advanced the state’s inter-
est in preserving parties as viable interest groups.

Randall v. Sorrell, 6:3 In a plurality opinion Justice

126 S.Ct. 2479 (2006) Breyer, joined by Chief Jus-
tice Roberts and Justice Al-
ito, struck down Vermont's 1997 law imposing restrictions on campaign
spending and contributions, which ranged from $200 per election cycle
for state house candidates to $400 for statewide candidates. Justice
Breyer held that the $200 limitation was “way, way, way lower” than the
$1,000 federal campaign contribution limit upheld in Buckley v. Valeo,
424 US. 1 (1976), but the restriction was disproportionate to the state’s
interest in preventing the appearance of corruption in elections. In sep-
arate concurring opinions, Justices Alito, Thomas (joined by Justice
Scalia), and Kennedy took the position that all contribution restrictions
violate the First Amendment. Justices Souter and Stevens, joined by Jus-
tice Ginsburg, dissented.
ee
ECONOMIC RIGHTS AND
AMERICAN CAPITALISM

rivate property 1s not mentioned in the Constitution even though

Pi protection was one of the central purposes of the Constitution.
Sections 8 and 10 of Article I and Section 1 of Article IV govern vari-
ous matters related to private property—taxes, duties, imposts, excises,
commerce, bankruptcies, bills of credit, debts, the impairment of con-
tracts, and the rights of authors and inventors. Yet private property did
not receive specific protection until the ratification in 1791 of the Fifth
Amendment. The due process and takings clauses of that amendment
provide that “No person shall ... be deprived of life, liberty, or property
without due process of law; nor shall private property be taken for
public use without just compensation.”
Liberty and property were, nevertheless, closely tied together in the
minds of the Framers of the Constitution. Property conditioned suf-
frage and was closely linked with representation (see Vol. 1, Chs. 5 and
8). When defending the Constitution in The Federalist, Alexander
Hamilton sought to show that it would provide security “to liberty and
to property.’ Noah Webster, a prominent New York publisher, even
more bluntly claimed “that property is the basis of power” when differen-
tiating America from England and Europe, where property was con-
centrated in the hands of a few:

[IJn America, and here alone, we have gone at once to the founda-
tion of liberty, and raised the people to their true dignity. Let the
lands be possessed by the people in fee-simple, let the fountain be
kept pure, and the streams will be pure of course. Our jealousy of
trial by jury, the liberty of the press, &c., is totally groundless. Such
rights are inseparably connected with the power and dignity of the

988
 Economic Rights and American Capitalism | 989

people, which rest on their property. They cannot be abridged. All

other [free] nations have wrested property andfreedom from barons and
tyrants; we begin our empire with full possession of property and all
its attending rights.

The Framers took to heart the teaching of the English philosopher

John Locke, in his Second Tieatise of Government, that property is a natu-
ral right—a right preceding the establishment of government—and its
preservation one of the chief ends of government. On Locke’s labor
theory of value, property was but an extension of liberty. “The labour
that was mine, removing [objects] out of that common state [of nature]
they were in, hath fixed my Property in them,’ argued Locke. “Thus the
Grass my Horse has bit; the Turfs my Servant has cut; and the Ore I
have digg’d in any place where I have a right to them in common with
others, become my Property.’ No less influential than Locke on the
Framers was Sir William Blackstone, who also maintained in his Com-
mentaries on the Laws of England that property was an “absolute right, in-
herent in every Englishman.”
Given this background and understanding of the fundamental na-
ture of property, it is perhaps not surprising that the Supreme Court
emerged within a generation of the ratification of the Constitution as
a defender of property rights and economic liberty. Through an expan-
sive interpretation of the contract clause in the early nineteenth cen-
tury, and the creation of a “liberty of contract” in the latter part of that
century, the Court laid the basis in constitutional law for the growth of
American capitalism.

NOorES

1. Noah Webster, “An Examination into the Leading Principles of the Federal Con-
stitution” (Oct. 10, 1787), in The Founders’ Constitution,
Vol. 1, ed. Philip Kurland and
Ralph Lerner (Chicago: University of Chicago Press, 1987), 596-597.
2. John Locke, “Second Treatise of Government” (1689), in Tivo Treatises of Govern-
ment, ed. Peter Laslett (New York: Mentor Books, 1960), 330.
3. Sir William Blackstone, Commentaries on the Laws of England (1765-1769) (Chi-
cago: University of Chicago Press, 1979).

SELECTED BIBLIOGRAPHY
Barber, Sotirios. Welfare and the Constitution. Princeton, NJ: Princeton University
Press, 2004.
Ely, James W. The Guardian of Every Other Right:A Constitutional History of Property
Rights. New York: Oxford University Press, 1992.
990 | Economic RIGHTS AND AMERICAN CAPITALISM

Goldwin, Robert A., and Schambra, William A., eds. How Capitalistic Is the Constitu-
tion? Washington, DC: American Enterprise Institute, 1982.
Levy, Leonard. “Property as a Human Right.” 5 Constitutional Commentary 169 (1988).
Paul, Ellen E, and Dickman, Howard. Liberty, Property, and the Future of Constitutional
Development. Albany: State University of New York Press, 1990.
Pennock, J. Roland, and Chapman, John, eds. Property. New York: New York Univer-
sity Press, 1980.

A_ | The Contract Clause and Vested

Interests in Property

Article I, Section 10, forbids the states from “impairing the Obligation
of Contracts.’ That provision was ostensibly aimed at preventing the
states from reneging on private contracts (such as loans made by banks)
and passing laws favoring debtors, as was done in the 1780s in the
aftermath of the Revolutionary War. As such, the guarantee presum-
ably covered only private contracts. But in a series of rulings, the Mar-
shall Court (1801-1836) broadly interpreted the contract clause to
apply to public contracts (that is, contracts between a governmental
agency and private individuals) and to safeguard vested interests in pri-
vate property.
The famous “Yazoo case,” Fletcher v. Peck (1810) (excerpted below),
was the first important ruling of the Marshall Court in which the con-
tract clause was turned into a guarantee for public contracts, in addition
to a limitation on states’ powers over private contracts. Notice that be-
sides broadly construing the contract clause, Chief Justice Marshall
notes that Georgia’s law revoking its earlier land grants contravened
“general principles, which are common to our free institutions, or by
the particular provisions of the constitution of the United States.”
Chief Justice Marshall pushed his theory further two years later in New
Jersey v. Wilson, 7 Cr. 164 (11 U.S.) (1812). New Jersey had made Indian
lands tax-exempt, but when the land was sold to a non-Indian the state
sought to tax the new owner. However, the Marshall Court ruled that
the original contract with the Indians was still valid and the state could
not tax the land. In one of the few cases involving private contracts,
Sturges v. Crowninshield, 4 Wheat. (17 U.S.) 122 (1819), Chief Justice
Marshall struck down a New York bankruptcy law as applied to a con-
tract made before the law was passed. However, he found himself in the
minority in Ogden v. Sanders, 12 Wheat. (25 U.S.) 213 (1827), when the
Court upheld another bankruptcy law that had been enacted before a
contested contract was made.
 A | The Contract Clause and Vested Interests in Property | 991

= CONSTITUTIONAL HISTORY

John Locke on the Ends of Political

Society and Government

123. If Man in the State of Nature be so free, as has been said; If he be ab-
solute Lord of his own Person and Possessions, equal to the greatest, and
subject to no Body, why will he part with his Freedom? Why will he give up
this Empire, and subject himself to the Dominion and Controul of any
other Power? To which ‘tis obvious to Answer, that though in the state of
Nature he hath such a right, yet the Enjoyment of it is very uncertain, and
constantly exposed to the Invasionof others. For all being Kings as much as
he, every Man his Equal, and the greater part no strict Observers of Equity
and Justice, the enjoyment of the property he has in this state is very unsafe,
very unsecure. This makes him willing to quit a Condition, which however
free, is full of fears and continual dangers: And ’tis not without reason, that he
seeks out, and is willing to joyn in Society with others who are already
united, or have a mind to unite for the mutual Preservation of their Lives, Lib-
erties and Estates, which I call by the general Name, Property.

124. The great and chief end, therefore, of Mens uniting into Common-
wealths, and putting themselves under Government, is the Preservation of their
Property. To which in the state of Nature there are many things wanting.

First, There wants an establish’d, settled, known Law, received and allowed by
common consent to be the Standard of Right and Wrong, and the common
measure to decide all Controversies between them. For though the Law of
Nature be plain and intelligible to all rational Creatures; yet Men being
biassed by their Interest, as well as ignorant for want of study of it, are not
apt to allow of it as a Law binding to them in the application of it to their
particular Cases.

125. Secondly, In the State of Nature there wants a known and indifferent Judge,
with Authority to determine all differences according to the established Law.
For every one in that state being both Judge and Executioner of the Law of
Nature, Men being partial to themselves, Passion and Revenge is very apt
to carry them too far, and with too much heat, in their own Cases; as well
as negligence, and unconcernedness, to make them too remiss, in other
- Mens.

126. Thirdly, In the state of Nature there often wants Power to back and sup-
port the Sentence when right, and to give it due Execution. They who by any
Injustice offended, will seldom fail, where they are able, by force to make
a See
992 | Economic RicHTs AND AMERICAN CAPITALISM

a a aa SE

good their Injustice: such resistance many times makes the punishment dan-
gerous, and frequently destructive, to those who attempt it.

Source: John Locke, “Second Treatise of Government,” in Tivo Tieatises of Government,

ed. Peter Laslett (New York: Mentor Books, 1960), ch. 5.

’Next to Fletcher v. Peck, the second-most important Marshall

Court ruling on the contract clause is Trustees of Dartmouth College v.
Woodward (1819) (see excerpt below). Again, the clause was expansively
read to protect the vested interests in a corporate charter granted by the
En-glish Crown in 1769, prior to the Revolutionary War.
The Marshall Court’s interpretation of the contract clause was
controversial and was viewed as a severe limitation on states’ regulatory
powers. Yet it remained the dominant feature in the early development
of constitutional law and the vehicle by which the power of judicial re-
view was asserted and established. Indeed, political scientist Benjamin
Wright found that the contract clause was used in almost 40 percent of
the cases challenging state legislation before 1889 and that the Court and
lower federal courts used it to strike down some seventy-five state laws.'
The Court under Chief Justice Roger Taney (1836-1864) main-
tained respect for proprietary interests but was more deferential to the
powers of states. In its leading ruling on the contract clause, Charles
River Bridge Co. v. Warren Bridge Co. (1837) (see excerpt below), notice
that Chief Justice Taney emphasizes that “[w]hile the rights of private
property are sacredly guarded, we must not forget that the community
also have rights, and that the happiness and well-being of every citizen
depends on their faithful preservation.” Taney thus established the prin-
ciple that public contracts were to be strictly construed on the recogni-
tion that states have an important role in promoting the general welfare
and technological advances in the public interest.
Despite the expansive interpretation given the contract clause in
the early and mid-nineteenth century, its protection for proprietary in-
terests did not override state police powers or the power of eminent
domain (the government’s taking of private property for public use
without just compensation) (see section C, in this chapter). Nor did it
foreclose the possibility of state regulations aimed at promoting public
morals, health, safety, and welfare. In Stone v. Mississippi, 101 U.S. 814
(1880), for instance, the Court unanimously upheld state police power
over John Stone’s claim of vested property rights. Stone had been
granted by the Mississippi legislature a twenty-five-year franchise to sell
lottery tickets, but two years later the state adopted a new constitution
 A | The Contract Clause and Vested Interests in Property | 993

prohibiting the sale of lottery tickets. When Stone sought to evade

prosecution for selling lottery tickets, the Court rejected his invocation
of the contract clause, just as it did when state prohibition laws were at-
tacked for infringing on contracts for the sale of beer,? and when em-
ployment contracts were superseded by workmen’s compensation laws.’
As Justice Mahlon Pitney, in Atlantic Coastline Railroad Co. v. City of
Goldsboro, 232 U.S. 548 (1914), explained for a unanimous Court, when
affirming that states may delegate to cities the power to regulate health,
safety, and welfare:

[I]t is settled that neither the “contract” clause nor the “due pro-
cess” clause has the effect of overriding the power of the state to
establish all regulations that are reasonably necessary to secure the
health, safety, good order, comfort, or general welfare of the com-
munity; that this power can neither be abdicated nor bargained
away, and is inalienable even by express grant; and that all contract
and property rights are held subject to its fair exercise.

Justice Pitney expressed the modern view of the contract clause. Home
Building & Loan Association v. Blaisdell (1934) (see excerpt below) illus-
trates how far the Court in the twentieth century has moved away from
its earlier application of the contract clause. There a bare majority of
the Hughes Court upheld Minnesota’s law, passed during the Great
Depression, preventing the repossession of mortgaged property. The
principle of judicial deference to legislative regulation of private con-
tracts asserted in Blaisdell was reaffirmed in City of El Paso v. Simmons
(1965) (see excerpt below). However, United States Trust Co. of New York
v. State of New Jersey (1977) (see excerpt below) indicates that the Court
gives heightened scrutiny and greater weight to claims under the con-
tract clause in controversies involving a state’s impairment of its own
contracts.
Why did the Court’s reliance on and enforcement of the contract
clause decline in the late nineteenth and twentieth centuries? There are
a number of reasons. For one thing, the Industrial Revolution brought
a growth in the number of corporations and economic problems that
could not be accommodated even with a broad reading of the contract
clause. Second, the Court developed its contract clause jurisprudence in
the absence of congressional legislation. But in the late nineteenth cen-
tury Congress responded to the social and economic pressures that
accompanied industrialization and urbanization. Finally, as discussed be-
low, the Court invented and enforced a “liberty of contract” under the
Fourteench Amendment’s due process clause in defense of vested prop-
erty rights against progressive economic legislation.
094 | Economic RiGHTs AND AMERICAN CAPITALISM

NOTES

1. Benjamin Wright, The Contract Clause of the Constitution (Cambridge, MA: Har-
vard University Press, 1938), 95.
2. See Boston Beer Co. v. Massachusetts, 97 U.S. 25 (1878).
3. New York Central R. Co. v. White, 243 U.S. 188 (1917).

SELECTED BIBLIOGRAPHY

Ackerman, Bruce. Private Property and the Constitution. New Haven, CT: Yale Univer-
sity Press, 1977.
Kutler, Stanley I. Privilege and Creative Destruction:
The Charles River Bridge Case. 2d ed.
Baltimore, MD: Johns Hopkins University Press, 1990.
Magrath, C. Peter. Yazoo: The Case of Fletcher v. Peck, New York: W. W. Norton, 1967.
Stites, Francis. Private Interest and Public Gain: The Dartmouth College Case. Amherst:
University of Massachusetts, 1972.
Wright, Benjamin. The Contract Clause of the Constitution. Cambridge, MA: Harvard
University Press, 1938.

Fletcher v. Peck
6 Cr. (10 U.S.) 87 (1810)

Robert Fletcher sued John Peck for the breach of a covenant on land
that Peck had sold him. The land was part of a larger land grant in 1795
of the Georgia legislature to four land-holding companies, which had
bribed several members of the legislature to win passage of the land
grant. The next year, however, the state enacted legislation declaring the
1795 law and all rights and claims to it null and void. Peck had acquired
the land in 1800 and sold it three years later to Fletcher, at which time
he claimed that all past sales of the land had been lawful. Fletcher,
though, contended that because the original sale of the land had been
declared invalid by the Georgia legislature, Peck could not legally sell the
land and was guilty of breach of contract. A federal circuit court found
in favor of Peck, and Fletcher appealed directly to the Supreme Court.
The Court’s decision was six to one, and the opinion was an-
nounced by Chief Justice Marshall.A separate opinion was delivered by
Justice Johnson.

“1 Chief Justice MARSHALL delivers the opinion of the Court.

The suit was instituted on several covenants contained in a deed made
by John Peck, the defendant in error, conveying to Robert Fletcher, the
 A | The Contract Clause and Vested Interests in Property | 995

plaintiff in error, certain lands which were part of a large purchase made by
James Gunn and others, in the year 1795, from the state of Georgia, the con-
tract for which was made in the form of a bill passed by the legislature of
that state:....
Titles which, according to every legal test, are perfect, are acquired with
that confidence which is inspired by the opinion that the purchaser is safe. If
there be any concealed defect, arising from the conduct of those who had
held the property long before he acquired it, of which he had no notice, that
concealed defect cannot be set up against him. He has paid his money for a
title good at law, he is innocent, whatever may be the guilt of others, and eq-
uity will not subject him to the penalties attached to that guilt. All titles
would be insecure, and the intercourse between man and man would be very
seriously obstructed, if this principle be overturned. . ..
If the legislature felt itself absolved from those rules of property which
are common to all the citizens of the United States, and from those princi-
ples of equity which are acknowledged in all our courts, its act is to be sup-
ported by its power alone, and the same power may devest any other
individual of his lands, if it shall be the will of the legislature so to exert it.
It is not intended to speak with disrespect of the legislature of Georgia,
or of its acts. Far from it. The question is a general question and is treated as
one. For although such powerful objections to a legislative grant, as are al-
leged against this, may not again exist, yet the principle, on which alone this
rescinding act is to be supported, may be applied to every case to which it
shall be the will of any legislature to apply it.The principle is this: that a leg-
islature may, by its own act, devest the vested estate of any man whatever, for
reasons which shall, by itself, be deemed sufficient. .. .
Is the power of the legislature competent to the annihilation of such ti-
tle, and to a resumption of the property thus held?
The principle asserted is, that one legislature is competent to repeal any
act which a former legislature was competent to pass; and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness of this principle, so far as respects general legislation,
can never be controverted. But, if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most absolute
power. Conveyances have been made; those conveyances have vested legal es-
tates, and, if those estates may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease to beafact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract; a repeal of the law cannot devest those rights; and
the act of annulling them, if legitimate, is rendered so by a power applicable
to the case of every individual in the community. .. .
It is the peculiar province of the legislature to prescribe general rules for
the government of society; the application of those rules to individuals in
society would seem to be the duty of other departments. How far the power
of giving the law may involve every other power, in cases where the consti-
tution is silent, never has been, and perhaps never can be, definitely stated.
The validity of this rescinding act, then, might well be doubted, were
Georgia a single sovereign power. But Georgia cannot be viewed asa single,
unconnected, sovereign power, on whose legislature no other restrictions are
imposed than may be found in its own constitution. She is a part of a large
996 | Economic RIGHTS AND AMERICAN CAPITALISM

empire; she is a member of the American Union; and that Union has a con-
stitution the supremacy of which all acknowledge, and which imposes limits
to the legislatures of the several states, which none claim a right to pass. The
constitution of the United States declares that no state shall pass any bill of
attainder, ex post facto law or law impairing the obligation of contracts.
Does the case now under consideration come within this prohibitory
section of the constitution?
In considering this very interesting question, we immediately ask our-
selves what is a contract? Is a grant a contract?
A contract is a compact between two or more parties, and is either ex-
ecutory or executed. An executory contract is one in which a party binds
himself to do, or not to do, a particular thing; such was the law under which
the conveyance was made by the governor. A contract executed is one in
which the object of contract is performed; and this, says Blackstone, differs in
nothing from a grant. The contract between Georgia and the purchasers was
executed by the grant. A contract executed, as well as one which is execu-
tory, contains obligations binding on the parties. A grant, in its own nature,
amounts to an extinguishment of the right of the grantor, and implies a
contract not to re-assert that right. A party is, therefore, always estopped by
his own grant.
Since, then, in fact, a grant is a contract executed, the obligation of
which still continues, and since the constitution uses the general term con-
tract, without distinguishing between those which are executory and those
which are executed, it must be construed to comprehend the latter as well as
the former. A law annulling conveyances between individuals, and declaring
that the grantors should stand seized of their former estates, notwithstanding
those grants, would be as repugnant to the constitution as a law discharging
the vendors of property from the obligation of executing their contracts by
conveyances. It would be strange if a contract to convey was secured by the
constitution, while an absolute conveyance remained unprotected.
If, under a fair construction of the constitution, grants are compre-
hended under the term contracts, is a grant from the state excluded from the
operation of the provision? Is the clause to be considered as inhibiting the
state from impairing the obligation of contracts between two individuals, but
as excluding from that inhibition contracts made with itself?
The words themselves contain no such distinction. They are general, and
are applicable to contracts of every description. .. .
It is, then, the unanimous opinion of the court, that, in this case, the es-
tate having passed into the hands of a purchaser for a valuable consideration,
without notice, the state of Georgia was restrained, either by general princi-
ples, which are common to our free institutions, or by the particular provi-
sions of the constitution of the United States, from passing a law whereby
the estate of the plaintiff in the premises so purchased could be constitu-
tionally and legally impaired and rendered null and void... .

“1 Justice JOHNSON delivering a separate opinion.

In this case I entertain ...an opinion different from that which has been
delivered by the court. ... ;
[My] opinion . .. is not founded on the provision in the constitution of
 A | The Contract Clause and Vested Interests in Property | 997

the United States, relative to laws impairing the obligation of contracts. It is

much to be regretted that words of less equivocal signification had not been
adopted in that article of the constitution. There is reason to believe, from
the letters of Publius, which are well known to be entitled to the highest re-
spect, that the object of the convention was to afford a general protection to
individual rights against the acts of the state legislatures. Whether the words,
“acts impairing the obligation of contracts,’ can be construed to have the
same force as must have been given to the words “obligation and effect of
contracts,’ is the difficulty in my mind.
There can be no solid objection to adopting the technical definition of
the word “contract,” given by Blackstone. The etymology, the classical signi-
fication, and the civil law idea of the word, will all support it. But the diffi-
culty arises on the word “obligation,” which certainly imports an existing
moral or physical necessity. Now, a grant or conveyance by no means neces-
sarily implies the continuance of an obligation beyond the moment of exe-
Cie Its.
I enter with great hesitation upon this question, because it involves a
subject of the greatest delicacy and much difficulty. The states and the
United States are continually legislating on the subject of contracts, prescrib-
ing the mode of authentication, the time within which suits shall be prose-
cuted for them, in many cases affecting existing contracts by the laws which
they pass, and declaring them to cease or lose their effect for want of com-
pliance, in the parties, with such statutory provisions. All these acts appear to
be within the most correct limits of legislative powers, and most beneficially
exercised, and certainly could not have been intended to be affected by this
constitutional provision; yet where to draw the line, or how to define or
limit the words, “obligation of contracts,” will be found a subject of extreme
difficulty.
To give it the general effect of a restriction of the state powers in favor
of private rights, is certainly going very far beyond the obvious and neces-
sary import of the words, and would operate to restrict the states in the ex-
ercise of that right which every community must exercise, of possessing
itself of the property of the individual, when necessary for public uses; a
right which a magnanimous and just government will never exercise with-
out amply indemnifying the individual, and which perhaps amounts to noth-
ing more than a power to oblige him to sell and convey, when the public
necessities require it.

Tiustees of Dartmouth College v. Woodward

4 Wueat. (17 U.S.) 518 (1819)

Dartmouth College was incorporated in 1769 under a charter granted

by the English Crown, which authorized a twelve-member board of
The New
trustees tc. govern the college and to appoint their successors.
Hampshire legislature, however, amended the charter in 1816 with
998 | Economic RIGHTS AND AMERICAN CAPITALISM

legislation increasing the size of the board of trustees to twenty-

one, establishing a board of overseers, and authorizing the governor
to appoint new trustees and members of the board of overseers.
The incumbent trustees refused to recognize the legislation as binding
and sued William Woodward, the college’s treasurer, to recover corporate
property that was temporarily entrusted to him under the legislation.A
trial court failed to resolve the question of the constitutionality of the
legislation, but it was upheld by a state superior court. The trustees of
Dartmouth College then appealed to the Supreme Court. As was the
practice through most of the nineteenth century, they hired a member
of the Supreme Court’s bar, Daniel Webster, to argue their case. As was
also the practice, attorneys for both sides were given unlimited time to
present their arguments. Webster was one of the greatest orators and
rather dramatically concluded his argument before the bench, observing,

Sir, you may destroy this little institution. It is weak. It is in your

hands! I know it is one of the lesser lights in the literary horizon of
the country. You may put it out. But if you do so, you must carry
through your work. You must extinguish, one after another, all those
great lights of science which, for more than a century, have thrown
their radiance over our land.
It is, Sir, as I have said, a small college and yet, there are those who
lovelitas.-

Sir, I care not how others may feel, but, for myself, when I see my
Alma Mater surrounded, like Caesar in the senate-house, by those
who are reiterating stab on stab, I would not, for this right hand,
have her turn to me, and say et tu quoque, mi fili!

The Court’s decision was six to one; the opinion was announced
by Chief Justice Marshall. Justices Washington and Story concurred,
and Justice Duvall dissented.

(1 Chief Justice MARSHALL delivers the opinion of the Court.

It can require no argument to prove that the circumstances of this case
constitute a contract. An application is made to the crown for a charter to in-
corporate a religious and literary institution. In the application, it is stated
that large contributions have been made for the object, which will be con-
ferred on the corporation as soon as it shall be created. The charter is
granted, and on its faith the property is conveyed. Surely in this transaction
every ingredient of a complete and legitimate contract is to be found.
The points for consideration are:
1. Is this contract protected by the constitution of the United States?
2. Is it impaired by the acts under which the defendant holds?
1. On the first point it ... becomes, then, the duty of the court most se-
riously to examine this charter, and to ascertain its true character... .
From [a] review of the charter, it appears that Dartmouth College is an
 A | The Contract Clause and Vested Interests in Property | 999
ee ,
eleemosynary institution, incorporated for the purpose of perpetuating the
application of the bounty of the donors, to the specified objects of that
bounty; that its trustees or governors were originally named by the founder,
and invested with the power of perpetuating themselves; that they are not
public officers, nor is it a civil institution, participating in the administration
of government; but a charity school, or a seminary of education, incorpo-
rated for the preservation of its property, and the perpetual application of
that property to the objects of its creation.
Yet a question remains to be considered, of more real difficulty, on
which more doubt has been entertained than on all that have been discussed.
The founders of the college, at least those whose contributions were in
money, have parted with the property bestowed upon it, and their represen-
tatives have no interest in that property. The donors of land are equally with-
out interest, so long as the corporation shall exist. Could they be found, they
are unaffected by any alteration in its constitution, and probably regardless of
its form, or even of its existence. The students are fluctuating, and no indi-
vidual among our youth has a vested interest in the institution, which can be
asserted in a court of justice. Neither the founders of the college nor the
youth for whose benefit it was founded, complain of the alteration made in
its charter, or think themselves injured by it. The trustees alone complain,
and the trustees have no beneficial interest to be protected. Can this be such
a contract as the constitution intended to withdraw from the power of state
legislation? Contracts, the parties to which have a vested beneficial interest,
and those only, it has been said, are the objects about which the constitution
is solicitous, and to which its protection is extended.
The court has bestowed on this argument the most deliberate consider-
ation, and the result will be stated. Dr. Wheelock, acting for himself, and for
those who, at his solicitation, had made contributions to his school, applied
for this charter, as the instrument which should enable him, and them, to
perpetuate their beneficent intention. It was granted. An artificial, immortal
being, was created by the crown, capable of receiving and distributing for-
ever, according to the will of the donors, the donations which should be
made to it. On this being, the contributions which had been collected were
immediately bestowed. These gifts were made, not, indeed, to make a profit
for the donors, or their posterity, but for something in their opinion of in-
estimable value; for something which they deemed a full equivalent for the
money with which it was purchased. The consideration for which they stip-
ulated, is the perpetual application of the fund to its object, in the mode pre-
scribed by themselves. Their descendants may take no interest in the
preservation of this consideration. But in this respect their descendants are
not their representatives. They are represented by the corporation. The cor-
poration is the assignee of their rights, stands in their place, and distributes
their bounty, as they would themselves have distributed it, had they been im-
mortal. So with respect to the students who are to derive learning from this
source. The corporation is a trustee for them also. Their potential rights,
which, taken distributively, are imperceptible, amount collectively to a most
important interest. These are, in the aggregate, to be exercised, asserted and
protected,by the corporation. They were as completely out of the donors, at
the instant of their being vested in the corporation, and as incapable of be-
ing asserted by the students, as at present... .
This is plainly a contract to which the donors, the trustees, and the
tooo | Economic RIGHTS AND AMERICAN CAPITALISM

crown (to whose rights and obligations New Hampshire succeeds), were the
original parties. It is a contract made on a valuable consideration. It is a con-
tract for the security and disposition of property. It is a contract, on the faith
of which real and personal estate has been conveyed to the corporation. It is
then a contract within the letter of the constitution, and within its spirit also,
unless the fact that the property is invested by the donors in trustees for the
promotion of religion and education, for the benefit of persons who are
perpetually changing, though the objects remain the same, shall create a par-
ticular exception, taking this case out of the prohibition contained in the
constitution.
It is more than possible that the preservation of rights of this descrip-
tion was not particularly in the view of the framers of the constitution when
the clause under consideration was introduced into that instrument. It is
probable that interferences of more frequent recurrence, to which the temp-
tation was stronger, and of which the mischief was more extensive, consti-
tuted the great motive for imposing this restriction on the state legislatures.
But although a particular and a rare case may not, in itself, be of sufficient
magnitude to induce a rule, yet it must be governed by the rule, when estab-
lished unless some plain and strong reason for excluding it can be given. It is
not enough to say that this particular case was not in the mind of the con-
vention when the article was framed, nor of the American people when it
was adopted. It is necessary to go farther, and to say that, had this particular
case been suggested, the language would have been so varied, as to exclude
it, or it would have been made aspecial exception. The case being within the
words of the rule, must be within its operation likewise, unless there be
something in the literal construction so obviously absurd, or mischievous, or
repugnant to the general spirit of the instrument, as to justify those who ex-
pound the constitution in making it an exception.
- On what safe and intelligible ground can this exception stand? There is
no exception in the constitution, no sentiment delivered by its contempora-
neous expounders, which would justify us in making it. In the absence of all
authority of this kind, is there, in the nature and reason of the case itself, that
which would sustain a construction of the constitution, not warranted by its
words? Are contracts of this description of a character to excite so little in-
terest that we must exclude them from the provisions of the constitution, as
being unworthy of the attention of those who framed the instrument? Or
does public policy so imperiously demand their remaining exposed to leg-
islative alteration, as to compel us, or rather permit us to say that these words,
which were introduced to give stability to contracts, and which in their plain
import comprehend this contract, must yet be so construed as to exclude it?
Almost all eleemosynary corporations, those which are created for the
promotion of religion, of charity, or of education, are of the same character.
The law of this case is the law of all. ...
The opinion of the court, after mature deliberation, is, that this is a con-
tract, the obligation of which cannot be impaired without violating the
constitution of the United States. This opinion appears to us to be equally
supported by reason, and by the former decisions of this court.
2. We next proceed to the inquiry whether its obligation has been im-
paired by those acts of the legislature of New Hampshire to which the spe-
cial verdict refers.
 A | The Contract Clause and Vested Interests in Property | 100%

From the review of this charter, which has been taken, it appears that
the whole power of governing the college, of appointing and removing tu-
tors, of fixing their salaries, of directing the course of study to be pursued by
the students, and of filling up vacancies created in their own body, was vested
in the trustees. On the part of the crown it was expressly stipulated that this
corporation, thus constituted, should continue forever; and that the number
of trustees should forever consist of twelve, and no more. By this contract
the crown was bound, and could have made no violent alteration in its es-
sential terms, without impairing its obligation... .
It has been already stated that the act “to amend the charter, and enlarge
and improve the corporation of Dartmouth College,” increases the number
of trustees to twenty-one, gives the appointment of the additional members
to the executive of the state, and creates a board of overseers, to consist of
twenty-five persons, of whom twenty-one are also appointed by the execu-
tive of New Hampshire, who have power to inspect and control the most
important acts of the trustees.... ~
The whole power of governing the college is transferred from trustees
appointed according to the will of the founder, expressed in the charter, to
the executive of New Hampshire. The management and application of the
funds of this eleemosynary institution, which are placed by the donors in the
hands of trustees named in the charter, and empowered to perpetuate them-
selves, are placed by this act under the control of the government of the
state. The will of the state is substituted for the will of the donors in every
essential operation of the college. This is not an immaterial change. The
founders of the college contracted, not merely for the perpetual application
of the funds which they gave, to the objects for which those funds were
given; they contracted also to secure that application by the constitution of
the corporation. They contracted for a system which should, as far as human
foresight can provide, retain forever the government of the literary institu-
tion they had formed, in the hands of persons approved by themselves. This
system is totally changed. The charter of 1769 exists no longer. It is reorgan-
ized; and reorganized in such a manner as to convert a literary institution,
moulded according to the will of its founders, and placed under the control
of private literary men, into a machine entirely subservient to the will of
government. This may be for the advantage of this college in particular, and
may be for the advantage of literature in general, but it 1s not according to
the will of the donors, and is subversive of that contract, on the faith of
which their property was given... .
It results from this opinion, that the acts of the legislature of New
Hampshire, which are stated in the special verdict found in this cause, are re-
pugnant to the constitution of the United States; and that the judgment on
this special verdict ought to have been for the plaintiffs.
The judgment of the
State Court must therefore be reversed.
1002 | Economic RiGHTsS AND AMERICAN CAPITALISM

Charles River Bridge Co. v. Warren Bridge Co.

11 Per. (36 U.S.) 420 (1837)

In 1785, the Massachusetts legislature incorporated the Charles River

Bridge Company and authorized it to build a toll bridge over the
Charles River. The company was obligated to pay Harvard College
£200 annually as compensation in lieu of its right to operate a ferry
that had been granted the college in 1650. In 1792, the charter was ex-
tended for another seventy years. But in 1832 the legislature incorpo-
rated the Warren Bridge Company and authorized it to build a bridge
for free public use just 275 yards away from the Charles River Bridge.
That prompted the owners of the Charles River Bridge Company
to seek an injunction against the construction of the Warren Bridge.
The Massachusetts Supreme Judicial Court dismissed the complaint
and Charles River Bridge Company appealed to the Supreme Court.
The Court’s decision was five to two, and the majority’s opinion
was announced by Chief Justice Taney. Justice McLean concurred. Dis-
sent was by Justice Story, who was joined by Justice Thompson.

“1 Chief Justice TANEY delivers the opinion of the Court.

[On] what ground can the plaintiffs in error contend that the ferry
rights of the college have been transferred to the proprietors of the bridge?
If they have been thus transferred, it must be by some mode of transfer
known to the law, and the evidence relied on to prove it can be pointed out
in the record. How was it transferred? It is not suggested that there ever was
in point of fact,a deed of conveyance executed by the college to the bridge
company. Is there any evidence in the record from which such a conveyance
may, upon legal principle, be presumed? The testimony before the court, so
far from laying the foundation for such a presumption, repels it in the most
positive terms. The petition to the Legislature in 1785, on which the charter
was granted, does not suggest an assignment, nor any agreement or consent
on the part of the college; and the petitioners do not appear to have re-
garded the wishes of that institution, as by any means necessary to insure
their success. They place their application entirely on considerations of
public interest and public convenience, and the superior advantages of a
communication across Charles River by a bridge instead of a ferry. The Leg-
islature, in granting the charter, show, by the language of the law, that they
acted on the principles assumed by the petitioners. The preamble recites that
the bridge “will be of great public utility;” and that is the only reason they
assign for passing the law which incorporates this company. The validity of
the charter is not made to depend on the consent of the college, nor of any
assignment or surrender on their part; and the Legislature deal with the sub-
ject, as if it were one exclusively within their own power, and as if the ferry
right were not to be transferred to the bridge company, but to be ex-
 A | The Contract Clause and Vested Interests in Property | 1003

tinguished; and they appear to have acted on the principle that the State, by
virtue of its sovereign powers and eminent domain, had a right to take away
the franchise of the ferry; because in their judgment, the public interest and
convenience would be better promoted by a bridge in the same place; and
upon that principle they proceed to make a pecuniary compensation to the
college for the franchise thus taken away. . ..
It does not, by any means, follow that because the legislative power in
Massachusetts, in 1650, may have granted to a justly favored seminary of
learning, the exclusive right of ferry between Boston and Charlestown, they
would, in 1785, give the same extensive privilege to another corporation,
who were about to erect a bridge in the same place. The fact that such a
right was granted to the college cannot, by any sound rule of construction,
be used to extend the privileges of the bridge company beyond what the
words of the charter naturally and legally import. Increased population
longer experienced in legislation, the different character of the corporations
which owned the ferry from that which owned the bridge, might well have
induced a change in the policy of the State in this respect; and as the fran-
chise of the ferry and that of the bridge are different in their nature... .
[T]here is no rule of legal interpretation which would authorize the
court to associate these grants together, and to infer that any privilege was
intended to be given to the bridge company, merely because it had been
conferred on the ferry. The charter to the bridge is a written instrument
which must speak for itself, and be interpreted by its own terms.
This brings us to the Act of the Legislature of Massachusetts of 1785,
by which the plaintiffs were incorporated by the name of “The Proprietors
of the Charles River Bridge;” and it is here, and in the law of 1792, pro-
longing their charter, that we must look for the extent and nature of the
franchise conferred upon the plaintiffs. . . .
“This, like many other cases, is a bargain between a company of adven-
turers and the public, the terms of which are expressed in the statute; and the
rule of construction in all such cases, is now fully established to be this—that
any ambiguity in the terms of the contract, must operate against the adven-
turers, and in favor of the public, and the plaintiffs can claim nothing that is
not clearly given them by theact.” And the doctrine thus laid down is abun-
dantly sustained by the authorities referred to, in this decision... .
[T]he object and end of all government is to promote the happiness
and prosperity of the community by which it is established, and it can never
be assumed that the government intended to diminish its power of accom-
plishing the end for which it was created. And in a country like ours, free,
active and enterprising, continually advancing in numbers and wealth; new
channels of communication are daily found necessary, both for travel and
trade, and are essential to the comfort, convenience, and prosperity of the
people. A State ought never to be presumed to surrender this power, be-
cause, like the taxing power, the whole community have an interest in pre-
serving it undiminished. And when a corporation alleges that a State has
surrendered for seventy years its power of improvement and public accom-
modation, in a great and important line of travel, along which a vast num-
ber of its.citizens must daily pass; the community have a right to insist, in
the language of this court above quoted, “that its abandonment ought not
to be presumed, in a case in which the deliberate purpose of the State to
1004 | Economic RIGHTS AND AMERICAN CAPITALISM

abandon it does not appear.” The continued existence of a government

would be of no great value, if by implications and presumptions, it was dis-
armed of the powers necessary to accomplish the ends of its creation, and
the functions it was designed to perform, transferred to the hands of privi-
leged corporations. The rule of construction announced by the court was
not confined to the taxing power, nor is it so limited in the opinion deliv-
ered. On the contrary, it was distinctly placed on the ground that the inter-
ests of the community were concerned in preserving, undiminished, the
power then in question; and whenever any power of the State is said to be
surrendered or diminished, whether it be the taxing power or any other af-
fecting the public interest, the same principle applies, and the rule of con-
struction must be the same. No one will question that the interests of the
great body of the people of the State, would, in this instance, be affected by
the surrender of this great line of travel to a single corporation, with the
right to exact toll, and exclude competition for seventy years. While the
rights of private property are sacredly guarded, we must not forget that
the community also have rights, and that the happiness and well being of
every citizen depends on their faithful preservation.
Adopting the rule of construction above stated as the settled one, we
proceed to apply it to the charter of 1785, to the proprietors of the Charles
River Bridge. This act of incorporation is in the usual form, and the privi-
leges such as are commonly given to corporations of that kind. It confers on
them the ordinary faculties of a corporation, for the purpose of building the
bridge; and establishes certain rates of toll, which the company are author-
ized to take. This is the whole grant. There is no exclusive privilege given
to them over the waters of Charles River, above or below their bridge.
No right to erect another bridge themselves, nor to prevent other persons
from erecting one. No engagement from the State that another shall not be
erected, and no undertaking not to sanction competition, nor to make im-
provements that may diminish the amount of its income. Upon all these sub-
jects the charter is silent, and nothing is said in it about a line of travel, so
much insisted on in the argument, in which they are to have exclusive priv-
ileges. No words are used from which an intention to grant any of these
rights can be inferred. If the plaintiff is entitled to them, it must be implied
sumply from the nature of the grant, and cannot be inferred from the words
by which the grant is made.
The relative position of the Warren Bridge has already been described.
It does not interrupt the passage over the Charles River Bridge, nor make
the way to it or from it less convenient. None of the faculties or franchises
granted to that corporation have been revoked by the Legislature; and its
right to take the tolls granted by the charter remains unaltered. In short, all
the franchises and rights of property enumerated in the charter, and there
mentioned to have been granted to it, remain unimpaired. But its income is
destroyed by the Warren Bridge; which, being free, draws off the passengers
and property which would have gone over it, and renders their franchise of
no value. This is the gist of the complaint. For it is not pretended that the
erection of the Warren Bridge would have done them any injury, or in any
degree affected their right of property, if it had not diminished the amount
of their tolls. In order, then, to entitle themselves to relief, it is necessary to
show that the Legislature contracted not to do the act of which they com-
 A | The Contract Clause and Vested Interests in Property | 1005

plain; and that they impaired, or in other words violated, that contract, by the
erection of the Warren Bridge.
The inquiry then is, does the charter contain such a contract on the part
of the State? Is there any such stipulation to be found in that instrument? It
must be admitted on all hands, that there is none—no words that even relate
to another bridge, or to the diminution of their tolls, or to the line of travel.
If a contract on that subject can be gathered from the charter, it must be by
implication, and cannot be found in the words used. Can such an agreement
be implied? The rule of construction before stated is an answer to the ques-
tion. In charters of this description, no rights are taken from the public or
given to the corporation, beyond those which the words of the charter, by
their natural and proper construction, purport to convey. There are no words
which import such a contract as the plaintiffs in error contend for, and none
can be implied.... em
Indeed, the practice and usage of almost every State in the Union, old
enough to have commenced the work of internal improvement, is opposed
to the doctrine contended for on the part of the plaintiffs in error. Turnpike
roads have been made in succession, on the same line of travel; the latter
ones interfering materially with the profits of the first. These corporations
have, in some instances, been utterly ruined by the introduction of newer
and better modes of transportation and traveling. In some cases railroads
have rendered the turnpike roads on the same line of travel so entirely use-
less, that the franchise of the turnpike corporation is not worth preserving.
Yet in none of these cases have the corporations supposed that their privi-
leges were invaded, or any contract violated on the part of the State... .
If this court should establish the principles now contended for, what is to
become of the numerous railroads established on the same line of travel with
turnpike companies; and which have rendered the franchises of the turnpike
corporations of no value? Let it once be understood that such charters carry
with them these implied contracts, and give this unknown and undefined
property ina line of traveling, and you will soon find the old turnpike cor-
porations awakening from their sleep, and calling upon this court to put down
the improvements which have taken their place. The millions of property
which have been invested in railroads and canals, upon lines of travel which
had been before occupied by turnpike corporations, will be put in jeopardy.
We shall be thrown back to the improvements of the last century, and obliged
to stand still until the claims of the old turnpike corporations shall be satis-
fied, and they shall consent to permit these States to avail themselves of the
lights of modern science, and to partake of the benefit of those improve-
ments which are now adding to the wealth and prosperity, and the conve-
nience and comfort, of every other part of the civilized world... .
The judgment of the Supreme Judicial Court of the Commonwealth of
Massachusetts, dismissing the plaintiffs’ bill, must, therefore, be affirmed with
costs.

Ci Justice McLEAN concurred in a separate opinion, expressing his view that

the case should be dismissed for lack of jurisdiction.

“| Justice STORY, dissenting.

1006 | Economic RiGHTs AND AMERICAN CAPITALISM

I admit that where the terms of a grant are to impose burdens upon the
public, or to create a restraint injurious to the public interest, there is sound
reason for interpreting the terms, if ambiguous, in favor of the public. But at
the same time, I insist that there is not the slightest reason for saying, even in
such a case, that the grant is not to be construed favorably to the grantee, so
as to secure him in the enjoyment of what is actually granted... .
This charter is not . .. any restriction upon the legislative power,
unless it be true that because the Legislature cannot grant again what it has
already granted, the legislative power is restricted. If so, then every grant of
the public land is a restriction upon that power; a doctrine that has never yet
been established, nor (as far as I know) ever contended for. Every grant of a
franchise is, so far as that grant extends, necessarily exclusive; and cannot be
resumed, or interfered with. All the learned judges in the State court admit-
ted that the franchise of Charles Ryver Bridge, whatever it be, could not be
resumed or interfered with. The Legislature could not recall its grant or de-
stroy it. It is a contract, whose obligation cannot be constitutionally im-
paired. In this respect, it does not differ from a grant of lands. In each case,
the particular land, or the particular franchise, is withdrawn from the legisla-
tive operation. ...
Then, again, how is it established that this is a grant in derogation of the
rights and interests of the people? No individual citizen has any right to build
a bridge over navigable waters; and consequently he is deprived of no right,
when a grant is made to any other persons for that purpose. Whether it pro-
motes or injures the particular interest of an individual citizen, constitutes no
ground for judicial or legislative interference, beyond what his own rights jus-
tify. When, then, it is said that such a grant is in derogation of the rights and
interests of the people, we must understand that reference is had to the rights
and interests common to the whole people, as such (such as the right of nav-
igation), or belonging to them as a political body; or, in other words, the
rights and interests of the State. Now, I cannot understand how any grant of
a franchise is a derogation from the rights of the people of the State, any
more than a grant of public land. The right, in each case, is gone to the extent
of the thing granted, and so far may be said to derogate from, that is to say, to
lessen the rights of the people, or of the State. But that is not the sense in
which the argument is pressed; for, by derogation, is here meant an injurious
or mischievous detraction from the sovereign rights of the State. On the
other hand, there can be no derogation from the rights of the people, as such,
except it applies to rights common there before; which the building of a
bridge over navigable waters certainly is not. If it had been said that the grant
of this bridge was in derogation of the common right of navigating the
Charles River, by reason of its obstructing, pro tanto, a free and open passage,
the ground would have been intelligible. So, if it had been an exclusive grant
of the navigation of that stream. But, if at the same time, equivalent public
rights of a different nature, but of greater public accommodation and use, had
been obtained; it could hardly have been said, in a correct sense, that there was
any derogation from the rights of the people, or the rights of the State. It
would be a mere exchange of one public right for another. ...
No sound lawyer will, I presume, assert that the grant of a right to erect
a bridge over a navigable stream, is a grant of a common right. Before such
 A | The Contract Clause and Vested Interests in Property | 1007

grant, had all the citizens of the State a right to erect bridges over navigable
streams? Certainly they had not; and, therefore, the grant was no restriction
of any common right. It was neither a monopoly, nor, in a legal sense, had it
any tendency to a monopoly. It took from no citizen what he possessed be-
fore, and had no tendency to take it from him. It took, indeed, from the Leg-
islature the power of granting the same identical privilege or franchise to any
other persons. But this made it no more a monopoly than the grant of the
public stock or funds of a State for a valuable consideration. Even in cases of
monopolies, strictly so called, if the nature of the grant be such that it is for
the public good, as in cases of patents for inventions, the rule has always been
to give them a favorable construction in support of the patent... .
I have thus endeavored to answer, and I think I have successfully an-
swered all the arguments (which indeed run into each other) adduced to jus-
tify a strict construction of the present charter. I go farther, and maintain not
only that it is not a case for strict construction, but that the charter upon its
very face, by its terms, and for its professed objects, demands from the court,
upon undeniable principles of law, a favorable construction for the grantees.
In the first place, the Legislature has declared that the erecting of the bridge
will be of great public utility; and this exposition of its own motives for the
grant requires the court to give a liberal interpretation, in order to promote,
and not to destroy an enterprise of great public utility. In the next place, the
grant is a contract for a valuable consideration, and a full and adequate con-
sideration. The proprietors are to lay out a large sum of money (and in those
times it was a very large outlay of capital) in erecting a bridge; they are to
keep it in repair during the whole period of forty years; they are to surren-
der it in good repair at the end of that period to the State, as its own prop-
erty; they are to pay, during the whole period, an annuity of two hundred
pounds to Harvard College; and they are to incur other heavy expenses and
burdens, for the public accommodation. In return for all these charges, they
are entitled to no more than the receipt of the tolls during the forty years,
for their reimbursement of capital, interest and expenses. With all this they
are to take upon themselves the chances of success; and if the enterprise
fails, the loss is exclusively their own. Nor let any man imagine that there
was not, at the time when this charter was granted, much solid ground for
doubting success. In order to entertain a just view of this subject, we must
go back to that period of general bankruptcy, and distress and difficulty. The
Constitution of the United States was not only not then in existence, but it
was not then even dreamed of. The union of the States was crumbling into
ruins, under the old confederation. Agriculture, manufactures and commerce
were at their lowest ebb. There was infinite danger to all the States from lo-
cal interests and jealousies, and from the apparent impossibility of a much
longer adherence to that shadow of a government the Continental Con-
gress. And even four years afterwards, when every evil had been greatly ag-
gravated, and civil war was added to other calamities, the Constitution of the
United States was all but shipwrecked in passing through the State conven-
tions. It was adopted by very slender majorities. These are historical facts
which required no coloring to give them effect, and admitted of no con-
cealment-to seduce men into schemes of future aggrandizement. I would
even now put it to the common sense of every man, whether, if the Consti-
1008 | Economic RIGHTS AND AMERICAN CAPITALISM

tution of the United States had not been adopted, the charter would have
been worth a forty years’ purchase of the tolls... .
Now,I put it to the common sense of every man, whether if at the mo-
ment of granting the charter the Legislature had said to the proprietors—
you shall build the bridge; you shall bear the burdens; you shall be bound by
the charges; and your sole re-imbursement shall be from the tolls of forty
years: and yet we will not even guaranty you any certainty of receiving any
tolls. On the contrary, we reserve to ourselves the full power and authority to
erect other bridges, toll or free bridges, according to our own free will and
pleasure, contiguous to yours, and having the same termini with yours; and if
you are successful we may thus supplant you, divide, destroy your profits, and
annihilate your tolls, without annihilating your burdens: if, I say, such had
been the language of the Legislature, is there a man living of ordinary dis-
cretion or prudence, who would have accepted such a charter upon such
terms? I fearlessly answer no... .
Yet, this is the very form and pressure of the present case. It is not an
imaginary and extravagant case. Warren Bridge has been erected, under such
a supposed reserved authority, in the immediate neighborhood of Charles
River Bridge; and with the same termini, to accommodate the same line of
travel. For a half dozen years it was to be a toll bridge for the benefit of the
proprietors, to re-imburse them for their expenditures. At the end of that
period, the bridge is to become the property of the State, and free of toll,
unless the Legislature should hereafter impose one. In point of fact, it has
since become, and now is, under the sanction of the act of incorporation,
and other subsequent acts, a free bridge without the payment of any tolls for
all persons. So that, in truth, here now is a free bridge, owned by and erected
under the authority of the Commonwealth, which necessarily takes away all
the tolls from Charles River Bridge, while its prolonged charter has twenty
years to run. And yet the act of the Legislature establishing Warren Bridge
is said to be no violation of the franchise granted to the Charles River
Diidgess™
To sum up, then, the whole argument on this head, I maintain that,
upon the principles of common reason and legal interpretation, the present
grant carries with it a necessary implication that the Legislature shall do no
act to destroy or essentially to impair the franchise: that (as one of the
learned judges of the State court expressed it) there is an implied agreement
that the State will not grant another bridge between Boston and Charles-
town, so near as to draw away the custom from the old one: and (as another
learned judge expressed it) that there is an implied agreement of the State to
grant the undisturbed use of the bridge and its tolls, so far as respects any acts
of its own, or of any persons acting under its authority. In other words, the
State, impliedly, contracts not to resume its grant, or to do any act to the
prejudice or destruction of its grant.
 A | The Contract Clause and Vested Interests in Property | 1009

Home Building & Loan Association v. Blaisdell

2900) WiS.308, $40:CT. 237 (1934)

In response to the social pressures arising from the economic depression

in the early 1930s, Minnesota’s legislature passed the Minnesota Morato-
rium Act of 1934.The law authorized state courts to postpone the pay-
ments of homeowners and farmers on mortgages to prevent their
foreclosures. Under the act, John Blaisdell sought an extension of time
on the payment of his mortgage to Home Building & Loan Association.
But a trial court granted a motion to dismiss Blaisdell’s petition. The
Minnesota Supreme Court reversed and the trial court subsequently
granted Blaisdell an extension of time on his mortgage payments. Home
Building & Loan Association appealed, contending that Minnesota’s
moratorium law violated state and federal protections for private con-
tracts and the taking of property without the due process of law.
The Court’s decision was five to four; the majority’s opinion was
announced by Chief Justice Hughes. Justice Sutherland dissented and
was joined by Justices Van Devanter, McReynolds, and Butler.

(1 Chief JusticeHUGHES delivers the opinion of the Court.

In determining whether the provision for this temporary and condi-
tional relief exceeds the power of the state by reason of the clause in the
Federal Constitution prohibiting impairment of the obligations of contracts,
we must consider the relation of emergency to constitutional power, the his-
torical setting of the contract clause, the development of the jurisprudence
of this Court in the construction of that clause, and the principles of con-
struction which we may consider to be established.
Emergency does not create power. Emergency does not increase granted
power or remove or diminish the restrictions imposed upon power granted
or reserved. The Constitution was adopted in a period of grave emergency.
Its grants of power to the federal government and its limitations of the
power of the States were determined in the light of emergency, and they are
not altered by emergency. What power was thus granted and what limitations
were thus imposed are questions which have always been, and always will be,
the subject of close examination under our constitutional system.
While emergency does not create power, emergency may furnish the
occasion for the exercise of power... .The constitutional question presented
_in the light of an emergency is whether the power possessed embraces the
particular exercise of it in response to particular conditions. . . .
In the construction of the contract clause, the debates in the Constitu-
tional Convention are of little aid. But the reasons which led to the adoption
of that clause, and of the other prohibitions of section 10 of article) 1) are
not left in doubt, and have frequently been described with eloquent empha-
sis. The widespread distress following the revolutionary period and the plight
1010 | Economic RIGHTS AND AMERICAN CaPITALISM

A “Hooverville,” named after President Herbert Hoover, in New York City during
the Great Depression. Hoover was president from 1929 to 1933, when he lost the
presidential election to Democrat Franklin D. Roosevelt. The economic collapse that
began in Hoover’ first year as president led to the Great Depression. (Corbis/Bettmann)

of debtors had called forth in the States an ignoble array of legislative

schemes for the defeat of creditors and the invasion of contractual obliga-
tions. Legislative interferences had been so numerous and extreme that the
confidence essential to prosperous trade had been undermined and the utter
destruction of credit was threatened. “The sober people of America” were
convinced that some “thorough reform” was needed which would “inspire a
general prudence and industry, and give a regular course to the business of
society.” The Federalist, No. 44. It was necessary to interpose the restraining
power of a central authority in order to secure the foundations even of “pri-
vate faith.” The occasion and general purpose of the contract clause are
summed up in the terse statement of Chief Justice MARSHALL in Ogden v,
Saunders, 12 Wheat. 213 [(1827)].““The power of changing the relative situa-
tion of debtor and creditor, of interfering with contracts, a power which
comes home to every man, touches the interest of all, and controls the con-
duct of every individual in those things which he supposes to be proper for
his own exclusive management, had been used to such an excess by the state
legislatures, as to break in upon the ordinary intercourse of society, and de-
stroy all confidence between man and man. This mischief had become so
great, so alarming, as not only to impair commercial intercourse, and
 A | The Contract Clause and Vested Interests in Property | 1or1

threaten the existence of credit, but to sap the morals of the people, and de-
stroy the sanctity of private faith. To guard against the continuance of the
evil, was an object of deep interest with all the truly wise, as well as the vir-
tuous, of this great community, and was one of the important benefits ex-
pected from a reform of the government.” .. .
The obligation of a contract is the law which binds the parties to per-
form their agreement. This Court has said that “the laws which subsist at the
time and place of the making of a contract, and where it is to be performed,
enter into and form a part of it, as if they were expressly referred to or in-
corporated in its terms.” This principle embraces alike those which affect its
validity, construction, discharge, and enforcement. ...
Not only is the constitutional provision qualified by the measure of
control which the state retains over remedial processes, but the state also
continues to possess authority to safeguard the vital interests of its people. It
does not matter that legislation appropriate to that end “has the result of
modifying or abrogating contracts already in effect.’ Not only are existing
laws read into contracts in order to fix obligations as between the parties, but
the reservation of essential attributes of sovereign power is also read into
contracts as a postulate of the legal order. The policy of protecting contracts
against impairment presupposes the maintenance of a government by virtue
of which contractual relations are worth while,—a government which re-
tains adequate authority to secure the peace and good order of society. This
principle of harmonizing the constitutional prohibition with the necessary
residuum of state power has had progressive recognition in the decisions of
this Court....
The question is not whether the legislative action affects contracts inci-
dentally, or directly or indirectly, but whether the legislation is addressed to a
legitimate end and the measures taken are reasonable and appropriate to that
endin:..
Undoubtedly, whatever is reserved of state power must be consistent
with the fair intent of the constitutional limitation of that power. The re-
served power cannot be construed so as to destroy the limitation, nor is the
limitation to be construed to destroy the reserved power in its essential as-
pects. They must be construed in harmony with each other. This principle
precludes a construction which would permit the state to adopt as its policy
the repudiation of debts or the destruction of contracts or the denial of
means to enforce them. But it does not follow that conditions may not arise
in which a temporary restraint of enforcement may be consistent with the
spirit and purpose of the constitutional provision and thus be found to be
within the range of the reserved power of the state to protect the vital in-
terests of the community. It cannot be maintained that the constitutional
prohibition should be so construed as to prevent limited and temporary
interpositions with respect to the enforcement of contracts if made neces-
sary bya great public calamity such as fire, flood, or earthquake. .. .
Where, in earlier days, it was thought that only the concerns of individ-
uals or of classes were involved, and that those of the state itself were touched
only remotely, it has later been found that the fundamental interests of the
state aresdirectly affected; and that the question is no longer merely that of
one party to a contract as against another, but of the use of reasonable means
to safeguard the economic structure upon which the good of all depends.
1012 | Economic RIGHTS AND AMERICAN CAPITALISM

It is no answer to say that this public need was not apprehended a cen-
tury ago, or to insist that what the provision of the Constitution meant to
the vision of that day it must mean to the vision of our time. If by the
statement that what the Constitution meant at the time of its adoption -it
means to-day, it is intended to say that the great clauses of the Constitution
must be confined to the interpretation which the framers, with the condi-
tions and outlook of their time, would have placed upon them, the statement
carries its own refutation. It was to guard against such a narrow conception
that Chief Justice MARSHALL uttered the memorable warning: “We must
never forget, that it is a constitution we are expounding” (McCulloch v, Mary-
land, 4 Wheat. 316 [(1819)] “a constitution intended to endure for ages to
come, and, consequently, to be adapted to the various crises of human affairs.”
...When we are dealing with the words of the Constitution, said this Court
in Missouri v. Holland, 252 U.S. 416 [(1920)], “we must realize that they have
called into life a being the development of which could not have been fore-
seen completely by the most gifted of its begetters....The case before us
must be considered in the light of our whole experience and not merely in
that of what was said a hundred years ago.”
Nor is it helpful to attempt to draw a fine distinction between the in-
tended meaning of the words of the Constitution and their intended applica-
tion. When we consider the contract clause and the decisions which have
expounded it in harmony with the essential reserved power of the states to
protect the security of their peoples, we find no warrant for the conclusion
that the clause has been warped by these decisions from its proper significance
or that the founders of our government would have interpreted the clause dif-
ferently had they had occasion to assume that responsibility in the conditions
of the later day. The vast body of law which has been developed was unknown
to the fathers, but it is believed to have preserved the essential content and the
spirit of the Constitution. With a growing recognition of public needs and the
relation of individual right to public security, the court has sought to prevent
the perversion of the clause through its use as an instrument to throttle the ca-
pacity of the states to protect their fundamental interests. This development is
a growth from the seeds which the fathers planted. It is a development forecast
by the prophetic words of Justice JOHNSON in Ogden v. Saunders, already
quoted. And the germs of the later decisions are found in the early cases of the
Charles River Bridge [11 Pet. 420 (1837)] and the West River Bridge [Co. v. Dix, 6
How. (47 U.S.) 506 (1848)], which upheld the public right against strong insis-
tence upon the contract clause. The principle of this development is, as we
have seen, that the reservation of the reasonable exercise of the protective
power of the state is read into all contracts, and there is no greater reason for
refusing to apply this principle to Minnesota mortgages. . . .
Applying the criteria established by our decisions, we conclude:
1. An emergency existed in Minnesota which furnished a proper occa-
sion for the exercise of the reserved power of the state to protect the vital
interests of the community. The declarations of the existence of this emer-
gency by the Legislature and by the Supreme Court of Minnesota cannot be
regarded as a subterfuge or as lacking in adequate basis. . ..
2. The legislation was addressed to a legitimate end; that is, the legisla-
tion was not for the mere advantage of particular individuals but for the pro-
tection of a basic interest of society.
 A | The Contract Clause and Vested Interests in Property | 1013

3.In view of the nature of the contracts in question—mortgages of un-

questionable validity—the relief afforded and justified by the emergency, in
order not to contravene the constitutional provision, could only be of a
character appropriate to that emergency, and could be granted only upon
reasonable conditions.
4.The conditions upon which the period of redemption is extended do
not appear to be unreasonable. .. .
5. The legislation is temporary in operation. It is limited to the exigency
which called it forth. While the postponement of the period of redemption
from the foreclosure sale is to May 1, 1935, that period may be reduced by
the order of the court under the statute, in case of a change in circum-
stances, and the operation of the statute itself could not validly outlast the
emergency or be so extended as virtually to destroy the contracts.
We are of the opinion that the Minnesota statute as here applied does
not violate the contract clause of the Federal Constitution. Whether the leg-
islation is wise or unwise as a matter of policy is a question with which we
are not concerned.

“Justice SUTHERLAND dissenting, joined by Justices VAN

DEVANTER, McREYNOLDS, and BUTLER.
Few questions of greater moment than that just decided have been sub-
mitted for judicial inquiry during this generation. He simply closes his eyes
to the necessary implications of the decision who fails to see in it the poten-
tiality of future gradual but ever-advancing encroachments upon the sanctity
of private and public contracts. ...
A provision of the Constitution, it is hardly necessary to say, does not
admit of two distinctly opposite interpretations. It does not mean one thing
at one time and an entirely different thing at another time. If the contract
impairment clause, when framed and adopted, meant that the terms of a
contract for the payment of money could not be altered in invitum by a
state statute enacted for the relief of hardly pressed debtors to the end and
with the effect of postponing payment or enforcement during and because
of an economic or financial emergency, it is but to state the obvious to say
that it means the same now... .
[W]e are here dealing, not with a power granted by the Federal Consti-
tution, but with the state police power, which exists in its own right. Hence
the question is, not whether an emergency furnishes the occasion for the ex-
ercise of that state power, but whether an emergency furnishes an occasion
for the relaxation of the restrictions upon the power imposed by the con-
tract impairment clause; and the difficulty is that the contract impairment
clause forbids state action under any circumstances, if it have the effect of
impairing the obligation of contracts. That clause restricts every state power
_in the particular specified, no matter what may be the occasion. It does not
contemplate that an emergency shall furnish an occasion for softening the
restriction or making it any the less a restriction upon state action in that
contingency than it is under strictly normal conditions.
The Minnesota statute either impairs the obligation of contracts or it
does not. If it does not, the occasion to which it relates becomes immaterial,
since then the passage of the statute is the exercise of a normal, unrestricted,
1014 | Economic RIGHTS AND AMERICAN CAPITALISM

state power and requires no special occasion to render it effective. If it does,

the emergency no more furnishes a proper occasion for its exercise than if
the emergency were nonexistent. And so, while, in form, the suggested dis-
tinction seems to put us forward in astraight line, in reality it simply carries
us back in a circle, like bewildered travelers lost in a wood, to the point
where we parted company with the view of the state court.
If what has now been said is sound, as I think it is, we come to what re-
ally is the vital question in the case: Does the Minnesota statute constitute an
impairment of the obligation of the contract now under review? ...
It is quite true ... that “the reservation of essential attributes of sover-
eign power is also read into contracts”; and that the Legislature cannot “bar-
gain away the public health or the public morals.” General statutes to put an
end to lotteries, the sale or manufacture of intoxicating liquors, the mainte-
nance of nuisances, to protect the public safety, etc., although they have the
indirect effect of absolutely destroying private contracts previously made in
contemplation of a continuance of the state of affairs then in existence but
subsequently prohibited, have been uniformly upheld as not violating the
contract impairment clause. The distinction between legislation of that char-
acter and the Minnesota statute, however, is readily observable. . . .
[T]he statute denies appellant for a period of two years the ownership
and possession of the property—an asset which, in any event, is of substan-
tial character, and which possibly may turn out to be of great value. The
statute, therefore, is not merely a modification of the remedy; it effects a ma-
terial and injurious change in the obligation.

City of El Paso v. Simmons

379 USS. 497, 85 S.CT. 577 (1965)

Since 1876, Texas had offered land for sale to raise funds for public
schools and to settle the state. Under its law, land could be bought with
a down payment of one-fortieth of the purchase price and the annual
payment of 3 percent interest. If a purchaser missed an interest pay-
ment, the land was forfeited to the state unless the purchaser paid the
interest before a third party obtained title to the land. Under this pro-
gram, Greenberry Simmons bought some forfeited land which he in
turn forfeited to the state in 1947. Two days and five years later, how-
ever, Simmons offered to pay the interest and applied to have his land
reinstated. The state denied his request, citing a 1941 amendment to its
law barring the reinstatement of forfeited land after five years from the
date of forfeiture. Texas then sold the land to the City of El Paso in
1955. And Simmons sued in federal district court for the return of the
land title, claiming that Texas’s 1941 amendment to its law violated the
contract clause of the Constitution. A district court judge decided for
 A | The Contract Clause and Vested Interests in Property | 1015

the city but a federal appellate court reversed. The City of El Paso then
appealed to the Supreme Court.
The Court’s decision was eight to one, with the majority’s opinion
announced by Justice White. Justice Black dissented.

(| Justice WHITE delivers the opinion of the Court.

The City seeks to bring this case within the long line of cases recogniz-
ing a distinction between contract obligation and remedy and permitting a
modification of the remedy as long as there is no substantial impairment of
the value of the obligation.
We do not pause to consider further whether the Court of Appeals cor-
rectly ascertained the Texas law at the time these contracts were made, or to
chart again the dividing line under federal law between “remedy” and “obli-
gation,’ or to determine the extent to which this line is controlled by state
court decisions, decisions often rendered in contexts not involving Contract
Clause considerations. For it is not every modification of a contractual
promise that impairs the obligation of contract under federal law, any more
than it is every alteration of existing remedies that violates the Contract
Clause: a5:
The decisions “put it beyond question that the prohibition is not an ab-
solute one and is not to be read with literal exactness like a mathematical
formula,’ as Chief Justice HUGHES said in Home Building & Loan Assn. v,
Blaisdell, 290 U.S. 398 [(1934)], The Blaisdell opinion, which amounted to a
comprehensive restatement of the principles underlying the application of
the Contract Clause, makes it quite clear that “[n]ot only is the constitutional
provision qualified by the measure of control which the state retains over re-
medial processes, but the state also continues to possess authority to safeguard
the vital interests of its people. It does not matter that legislation appropriate
to that end ‘has the result of modifying or abrogating contracts already in
eset OU Me
Of course, the power of a State to modify or affect the obligation of
contract is not without limit... . But we think the objects of the Texas
statute make abundantly clear that it impairs no protected right under the
Contract Clause. . ..
The circumstances behind the 1941 amendment are well described in
the Reports of the Commissioner of the General Land Office. The general
purpose of the legislation enacted in 1941 was to restore confidence in the
stability and integrity of land titles and to enable the State to protect and ad-
minister its property in a businesslike manner. .. .
The State’s policy of quick resale of forfeited lands did not prove en-
tirely successful; forfeiting purchasers who repurchased the lands again
defaulted and other purchasers bought without any intention of comply-
_ing with their contracts unless mineral wealth was discovered. The mar-
ket for land contracted during the depression. These developments hardly
to be expected or foreseen, operated to confer considerable advantages on
the purchaser and his successors and a costly and difficult burden on the
Stater 8 ;
Laws which restrict a party to those gains reasonably to be expected
from the contract are not subject to attack under the Contract Clause,
1016 | Economic RIGHTS AND AMERICAN CAPITALISM

notwithstanding that they technically alter an obligation of a contract. The

five-year limitation allows defaulting purchasers with a bona fide interest in
their lands a reasonable time to reinstate. It does not and need not allow de-
faulting purchasers with a speculative interest in the discovery of minerals to
remain in endless default while retaining a cloud on title. ...
The measure taken to induce defaulting purchasers to comply with their
contracts, requiring payment of interest in arrears within five years, was a
mild one indeed, hardly burdensome to the purchaser who wanted to adhere
to his contract of purchase, but nonetheless an important one to the State’s
interest. The Contract Clause does not forbid such a measure.
The judgment is reversed.

(1 Justice BLACK, dissenting.

I have previously had a number of occasions to dissent from judgments
of this Court balancing away the First Amendment’s unequivocally guaran-
teed rights of free speech, press, assembly and petition. In this case I am
compelled to dissent from the Court’s balancing away the plain guarantee of
Art. 1. Sec. 10, that

“No State shall ... pass any . -. Law impairing the Obligation of
bP}
Contracts ...,

a balancing which results in the State of Texas’ taking a man’s private prop-
erty for public use without compensation in violation of the equally plain
guarantee of the Fifth Amendment, made applicable to the States by the
Fourteenth, that

“... private property [shall not] be taken for public use, with-
out just compensation.”

The respondent, Simmons, is the loser and the treasury of the State of Texas
the ultimate beneficiary of the Court’s action... .

United States Trust Co. of New York v.

State of New Jersey
431 U.S..1,07 S.CT. 1505'(1997)

In 1962, New York and New Jersey made an interstate compact limit-
ing the Port Authority’s ability to subsidize mass transit through bonds.
But during the 1974 energy crisis, the New York and New Jersey legis-
latures repealed the covenant. The United States Trust Company of
New York, a trustee and bondholder of the Port Authority, contended
that repealing the covenant violated the contract clause and filed a law-
suit which a state court dismissed. The New Jersey Supreme Court af-
 A | The Contract Clause and Vested Interests in Property | 1017

firmed and United States Trust Company of New York appealed to the
Supreme Court.
The Court's decision was four to three, with Justices Powell and
Stewart not participating and with the majority’s opinion announced
by Justice Blackmun. Chief Justice Burger concurred. Justice Brennan,
joined by Justices White and Marshall, dissented.

(| Justice BLACKMUN delivers the opinion of the Court.

This case presents a challenge to a New Jersey statute as violative of the
Contract Clause of the United States Constitution. That statute, together
with a concurrent, and parallel New York statute repealed a statutory
covenant made by the two: States in 1962 that had limited the ability of The
Port Authority of New York and New Jersey to subsidize rail passenger
transportation from revenues and reserves... .
The trial court concluded that repeal of the 1962 covenant was a valid
exercise of New Jersey’s police power because repeal served important pub-
lic interests in mass transportation, energy conservation, and environmental
protection. Yet the Contract Clause limits otherwise legitimate exercises of
state legislative authority, and the existence of an important public interest is
not always sufficient to overcome that limitation... .
Of course, to say that the financial restrictions of the 1962 covenant
were valid when adopted does not finally resolve this case. The Contract
Clause is not an absolute bar to subsequent modification of a State’s own fi-
nancial obligations. As with laws impairing the obligations of private con-
tracts, an impairment may be constitutional if it is reasonable and necessary
to serve an important public purpose. In applying this standard, however,
complete deference to a legislative assessment of reasonableness and necessity
is not appropriate because the State’s self-interest is at stake.A governmental
entity can always find a use for extra money, especially when taxes do not
have to be raised. If a State could reduce its financial obligations whenever it
wanted to spend the money for what it regarded as an important public pur-
pose, the Contract Clause would provide no protection at all....
Mass transportation, energy conservation, and environmental protection
are goals that are important and of legitimate public concern. Appellees con-
tend that these goals are so important that any harm to bondholders from re-
peal of the 1962 covenant is greatly outweighed by the public benefit. We do
not accept this invitation to engage in a utilitarian comparison of public
benefit and private loss. Contrary to Justice BLACK’s fear expressed in sole
dissent in El Paso v. Simmons [379 U.S. 497 (1965)], the Court has not “bal-
anced away” the limitation on state action imposed by the Contract Clause.
Thus a State cannot refuse to meet its legitimate financial obligations simply
. because it would prefer to spend the money to promote the public good
rather than the private welfare of its creditors. We can only sustain the repeal
of the 1962 covenant if that impairment was both reasonable and necessary
to serve the admittedly important purposes claimed by the State.
The” more specific justification offered for the repeal of the 1962
covenant was the States’ plan for encouraging users of private automobiles
to shift to public transportation. The States intended to discourage private
1018 | Economic RiGHTs AND AMERICAN CAPITALISM

automobile use by raising bridge and tunnel tolls and to use the extra rev-
enue from those tolls to subsidize improved commuter railroad service. Ap-
pellees contend that repeal of the 1962 covenant was necessary to
implement this plan because the new mass transit facilities could not possi-
bly be self-supporting and the covenant’s “permitted deficits” level had al-
ready been exceeded. We reject this justification because the repeal was
neither necessary to achievement of the plan nor reasonable in light of the
circumstances.
The determination of necessity can be considered on two levels. First, it
cannot be said that total repeal of the covenant was essential; a less drastic mod-
ification would have permitted the contemplated plan without entirely re-
moving the covenant’s limitations on the use of Port Authority revenues and
reserves to subsidize commuter railroads. Second, without modifying the
covenant at all, the States could have adopted alternative means of achieving
their twin goals of discouraging automobile use and improving mass transit. . . .
We also cannot conclude that repeal of the covenant was reasonable in
light of the surrounding circumstances. In this regard a comparison with El
Paso v. Simmons, supra, again is instructive. There a 19th century statute had
effects that were unforeseen and unintended by the legislature when origi-
nally adopted. As a result speculators were placed in a position to obtain
windfall benefits. The Court held that adoption of a statute of limitation was
a reasonable means to “restrict a party to those gains reasonably to be ex-
pected from the contract” when it was adopted... .
By contrast, in the instant case the need for mass transportation in the
New York metropolitan area was not a new development, and the likelihood
that publicly owned commuter railroads would produce substantial deficits
was well known. As early as 1922, over a half century ago, there were pres-
sures to involve the Port Authority in mass transit. It was with full knowledge
of these concerns that the 1962 covenant was adopted. .. .
During the 12-year period between adoption of the covenant and its
repeal, public perception of the importance of mass transit undoubtedly
grew because of increased general concern with environmental protection
and energy conservation. But these concerns were not unknown in 1962,
and the subsequent changes were of degree and not of kind. We cannot say
that these changes caused the covenant to have a substantially different im-
pact in 1974 than when it was adopted in 1962. And we cannot conclude
that the repeal was reasonable in the light of changed circumstances.
We therefore hold that the Contract Clause of the United States Con-
stitution prohibits the retroactive repeal of the 1962 covenant.The judgment
of the Supreme Court of New Jersey is reversed.
It is so ordered.

“1 Justice BRENNAN, with whom Justice WHITE and Justice MAR-

SHALL join, dissenting.
Decisions of this Court for at least a century have construed the Con-
tract Clause largely to be powerless in binding a State to contracts limiting
the authority of successor legislatures to enact laws in furtherance of the
health, safety, and similar collective interests of the polity. In short, those de-
cisions established the principle that lawful exercises of a State’s police pow-
 A | The Contract Clause and Vested Interests in Property | 1019

ers stand paramount to private rights held under contract. Today’s decision, in
invalidating the New Jersey Legislature’s 1974 repeal of its predecessor’s
1962 covenant, rejects this previous understanding and remolds the Contract
Clause into a potent instrument for overseeing important policy determina-
tions of the state legislature. At the same time, by creating a constitutional
safe haven for property rights embodied in a contract, the decision substan-
tially distorts modern constitutional jurisprudence governing regulation of
private economic interests... .
One of the fundamental premises of our popular democracy is that
each generation of representatives can and will remain responsive to the
needs and desires of those whom they represent. Crucial to this end is the
assurance that new legislators will not automatically be bound by the policies
and undertakings of earlier days. In accordance with this philosophy, the
Framers of our Constitution conceived of the Contract Clause primarily as
protection for economic transactigns entered into by purely private parties,
rather than obligations involving the State itself. The Framers fully recog-
nized that nothing would so jeopardize the legitimacy of a system of govern-
ment that relies upon the ebbs and flows of politics to “clean out the rascals”
than the possibility that those same rascals might perpetuate their policies
simply by locking them into binding contracts.
Following an early opinion of the Court, however, that took the first
step of applying the Contract Clause to public undertakings, Fletcher v. Peck,
6 Cranch 87 (1810), later decisions attempted to define the reach of the
Clause consistently with the demands of our governing processes. The cen-
tral principle developed by these decisions, beginning at least a century ago,
has been that Contract Clause challenges such as that raised by appellant are
to be resolved by according unusual deference to the lawmaking authority of
state and local governments. .. .
This theme of judicial self-restraint and its underlying premise that a
State always retains the sovereign authority to legislate in behalf of its peo-
ple was commonly expressed by the doctrine that the Contract Clause will
not even recognize efforts of a State to enter into contracts limiting the au-
thority of succeeding legislators to enact laws in behalf of the health, safety,
and similar collective interests of the polity—in short, that that State’s police
power is inalienable by contract. ...
I would not want to be read as suggesting that the States should blithely
proceed down the path of repudiating their obligations, financial or other-
wise. Their credibility in the credit market obviously is highly dependent on
exercising their vast lawmaking powers with self-restraint and discipline, and
I, for one, have little doubt that few, if any, jurisdictions would choose to use
their authority “so foolish[ly] as to kill a goose that lays golden eggs for
them,” Erie R. Co. v. Public Util. Comm’rs., [254 U.S. 394 (1921)]. But in the
final analysis, there is no reason to doubt that appellant’s financial welfare is
. being adequately policed by the political processes and the bond marketplace
itself. The role to be played by the Constitution is at most a limited one.
For this Court should have learned long ago that the Constitution—be it
through the Contract or Due Process Clause—can actively intrude into such
economi¢ and policy matters only if my Brethren are prepared to bear enor-
mous institutional and social costs. Because I consider the potential dangers
of such judicial interference to be intolerable, I dissent.
1020 | Economic RIGHTS AND AMERICAN CAPITALISM

B The Development and Demise Of a

“Liberty of Contract”

Ratification of the Fourteenth Amendment in 1868 provided the

Supreme Court with a new basis for protecting economic rights. The
amendment overturned the Taney Court’s ruling in Dred Scott v. Sand-
ford, 60 U.S. 393 (1857) (see Vol. 2, Chapter 12), that blacks were not
citizens of the United States. Section 1 of the amendment aimed at en-
suring that states would not deny blacks their citizenship by providing
that “[n]o State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” The drafters of the amendment in the Thirty-
ninth Congress thought that the privileges or immunities clause was
the most important guarantee, because it expressly prohibited states
from denying the privileges and immunities of being a citizen of the
United States. Its importance is underscored by its almost literal repeti-
tion of the privileges and immunities clause of Article IV, Section 2,
which provides that “[t]he Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.”
- What counted among the privileges and immunities, however, was
far from certain. In Dred Scott, Chief Justice Taney construed Article IV
to protect only the privileges and immunities of citizens of states who
were also citizens of the United States and who were temporarily in a
state other than their own. The Fourteenth Amendment overturned
this interpretation by extending citizenship to blacks, but offered no
further clarification.
An obvious, although narrow, view is that the privileges or immu-
nities clause simply forbids states from discriminating against citizens of
other states.' Yet during the House and Senate debates on the amend-
ment’s adoption a frequently cited opinion was that of Justice Bushrod
Washington. While sitting on a circuit court, he had interpreted the
privileges or immunities clause in Corfield v. Coryell, 6 Fed. Cases 3230
(1825), upholding a New Jersey statute prohibiting nonresidents from
gathering oysters in the state. Gathering oysters was not among the
privileges and immunities of citizenship, but Washington added
that citizens were guaranteed those rights “which are, in their nature,
fundamental; which belong of right, to the citizens of all free govern-
ments.” He listed (notably without mentioning the Bill of Rights)
 B | The Development and Demise of a “Liberty of Contract” | 1021

a rather wide-ranging set of fundamental rights; among others, he

included the right to possess property, to travel from one state to an-
other, to be protected by the government, to be exempt from higher
taxes than paid by other citizens, and the right to bring suits in courts
of law.
Whatever potential the Fourteenth Amendment’ privileges or im-
munities clause had was soon dashed in Butchers’ Benevolent Association v.
Cresent City Livestock Landing & Slaughterhouse Co. (1873) (see excerpt
below). When upholding a Louisiana law that created a monopoly on
the operation of slaughterhouses, Justice Samuel Miller construed
citizenship in the states and the United States to be distinct and sepa-
rate and the Fourteenth Amendment to apply only to national citizen-
ship. The independent butchers who opposed the legislative creation of
a monopoly thus could not claim protection under the Fourteenth
Amendment.
Four dissenters in The Slaughterhouse Cases disagreed. Justice Ste-
phen Field rejected the majority’s notion of dual citizenship, while Jus-
tice Joseph Bradley contended that the butchers had a right to practice
their profession under the due process clauses of the Fifth and Four-
teenth Amendments. Bradley was the only one to accept the interpre-
tation of the amendment advanced by the butchers’ attorney, John
Campbell, a former member of the Court who resigned when his state
seceded from the Union.
Campbell had argued that the Fourteenth Amendment had a
grander purpose than just guaranteeing the rights of former slaves. Its
due process clause guaranteed individual freedom, free enterprise, and
laissez-faire individualism. His argument was an invitation for the
Court to interpret the due process clause as something more than a
mere procedural guarantee. Although Campbell failed to carry the day,
his argument proved prophetic of what would come.
Due process was generally understood to mean “the law of the
land,’ but the law of the land and due process were on the brink of
transformation. The due process clauses of the Fifth and Fourteenth
Amendments were rooted in the English common law, running back to
the Magna Carta of 1215.The Magna Carta granted that “[n]o freeman
shall be arrested, or imprisoned, or disseized, or outlawed, or exiled, or
in any way molested; nor will [the Crown] proceed against him, unless
- by lawful judgment of his peers or by the law of the land.” That guar-
antee was reaffirmed and reformed in the Petition of Right in 1628,
which specified that freemen could “be imprisoned or detained only by
the law of the land, or by due process of law, and not by the King’s spe-
cial command without any charge.” Later, colonial charters and state
constitutions incorporated this provision as well.
1022 | Economic RIGHTs AND AMERICAN CAPITALISM

The Court’s first opportunity to interpret the Fifth Amendment’s

due process clause had come in 1856. Murray’s Lessee v. Hoboken Land &
Improvement Company, 18 How. (59 U.S.) 272 (1856), upheld a congres-
sional statute authorizing the Treasury Department to issue administra-
tive warrants (without prior judicial approval) for the property of
revenue collectors found to be indebted to the United States. The
Taney Court rejected the claim that this amounted to the taking of
property without due process because it found no conflict between this
procedure and any guarantee of the Bill of Rights or settled common-
law practices.
The following year in Dred Scott, Chief Justice Taney relied in part
on the Fifth Amendment’s due process clause when upholding slave-
owners’ proprietary interests in slaves. Taney thereby suggested that the
due process of law included substantive rights as well as procedural
guarantees. Moreover, state courts were beginning to acknowledge pro-
tection for property rights and economic liberties as a matter of due
process of law. In Wynehamer v. New York, 13 N.Y. 378 (1856), New
York’s highest court struck down a law prohibiting the possession of
liquor as a denial of due process of law.’
Campbell’s due process argument and Justice Bradley’s dissent in
The Slaughterhouse Cases were thus early manifestations of the legal
movement toward extending greater protection to economic liberties
under constitutional guarantees other than that of the contract clause.
In 1870, the Legal Tender Act of 1862 was invalidated, partially on the
grounds that it deprived creditors of property without the due process
of law, in Hepburn v. Griswold, 8 Wall. 608 (1870). Five years later, in
Loan Association v. Topeka, 20 Wall. (87 U.S.) 655 (1875), a Kansas tax de-
signed to help local industries was overturned, in Justice Miller’s words,
as an “unauthorized invasion of [the] private right [of property which
grows] ... out of the essential nature of free government.”
By 1877, the Court under Chief Justice Morrison Waite
(1874-1888) was prepared to acknowledge the due process clause’s sub-
stantive protection for economic liberty. Although upholding Illinois’s
law regulating grain elevators as “clothed with the public interest” in
Munn v. Illinois (1877) (see excerpt below), Waite conceded that eco-
nomic legislation might constitute the taking of property without due
process of law. And while he cautioned that “[f]or protection against
abuses by legislatures, the people must resort to the polls, not to the
courts,” Munn signaled that the Court might be persuaded to supervise
legislation regulating economic activities. In any event, the Court faced
a growing stream of litigation attacking legislation on due process
grounds. In Davidson v. New Orleans, 96 U.S. 97 (1878), Justice Miller
was thus moved to complain that
 B | The Development and Demise of a “Liberty of Contract” | 1023

the docket of this court is crowded with cases in which we are

asked to hold that State courts and State legislatures have deprived
their own citizens of life, liberty, or property without due process of
law. There is here abundant evidence that there exists some strange
misconception of the scope of this provision as found in the Four-
teenth Amendment. In fact, it would seem, from the character of
many of the cases before us, and the arguments made in them, that
the clause under consideration is looked upon as means of bringing
to the test of the decision of this court the abstract opinions of
every unsuccessful litigant in a State court of justice of the decision
against him, and of the merits of the legislation on which such a
decision may be founded.

“The great tides and currents which engulf the rest of men,”
as Justice Benjamin Cardozo observed, “do not turn aside in their
course, and pass the judges by.’ The country’s economic expansion
in the late nineteenth century was reinforced by the intellectual
currents of Conservative Social Darwinism—the philosophy of the
survival of the fittest as applied to social and economic relations
and perpetuating the myth of rugged individualism and laissez-faire
capitalism.
The Court was gradually infused with this philosophy of laissez-
faire capitalism, as its composition changed between 1877 and 1890
with the elevation of corporate lawyers to the ranks of justices.* And its
assumption of the guardianship of economic liberty manifested itself
in various ways. Notably, in an otherwise uninteresting tax case, Santa
Clara County v. Southern Pacific Railroad Company, 118 U.S. 398 (1886),
corporations were proclaimed to be “legal persons” entitled to full pro-
tection of the Fourteenth Amendment. Chief Justice Waite evidently
thought this was so self-evident that he did not bother to emphasize it
in his opinion, and the reporter of the Court’s decisions decided on his
own initiative that it merited special note in the headnotes accompany-
ing the Court’s opinion. The significance of that ruling, of course, was
not lost on lawyers for railroads, corporations, and other businesses at-
tacking government regulations.
Ten years after Santa Clara County, the Court explicitly held that
the Fourteenth Amendment’ due process clause protects a substantive,
but unenumerated, “liberty of contract.” Allgeyer v. Louisiana, 165 U.S.
578 (1897), invalidated a Louisiana law restricting the issuance of insur-
-ance policies and imposing a $1,000 fine on anyone having an illegal
policy. Allgeyer & Company had a maritime insurance policy with a
New York insurance firm in violation of Louisiana’s law and appealed a
ruling of that state’s supreme court upholding the law and a fine on
Allgeyer. When striking down the law, Justice Rufus Peckham boldly
announced the doctrine of a liberty of contract:
1024 | Economic RicHTs AND AMERICAN CAPITALISM

Cartoon depicting the Supreme Court’s backlog of cases in 1883 due to the growing
amount of litigation challenging government regulations. (Puck Magazine/Library of
Congress)

The “liberty” mentioned in [the Fourteenth] Amendment means

not only the right of the citizen to be free from the mere physical
restraint of his person, as by incarceration, but the term is deemed
‘to embrace the right of the citizen to be free in the enjoyment of
all his faculties; to be free to use them in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful calling; to
pursue any livelihood or avocation, and for that purpose to enter
into all contracts which may be proper, necessary and essential to
his carrying out to a successful conclusion the purposes above men-
tioned.

Allgeyer ushered in what became known as the Lochner era of substan-

tive due process economic protectionism, after one of the most notori-
ous rulings on the liberty of contract, Lochner v. New York (1905) (see
excerpt below). There, speaking for a bare majority, Justice Peckham
struck down New York’s labor law limiting the number of hours bak-
ers could work as an interference with their liberty of contract. And in
one of his most famous dissenting opinions, Justice Oliver Wendell
Holmes sharply criticized his brethren for reading their own conserva-
tive economic philosophy into the Constitution. Under the guise of a
liberty of contract and its substantive due process analysis, Holmes
charged, the Court had become a superlegislature in overseeing eco-
nomic regulations.
 B | The Development and Demise of a “Liberty of Contract” | 1025

Justice Holmes’s dissent brought the insights of “American legal re-

alism” to bear on the majority’s ruling in Lochner and embodies the
principal liberal and progressive criticism of the Lochner era: the major-
ity in Lochner was making rather than interpreting the law, and through
its creation and enforcement of an unenumerated “liberty of contract”
imposed its own conservative economic philosophy on the country.
But, note that the other dissenting opinion filed in Lochner by Justice
Harlan, and joined by Justices White and Day, represents a rival inter-
pretation of the ruling in and the era associated with Lochner. Justice
Harlan considered the liberty of contract a vital constitutional guaran-
tee, rooted in the Reconstruction Amendments and the antislavery
movement’s emphasis on self-ownership. That liberty, though, as Harlan
reminded his colleagues, remained subject to legislation aimed at pro-
moting public health, safety, and general welfare. The majority in
Lochner, on Harlan’s view, mistakenly construed New York’s law as a
protectionist measure for bakery workers, rather than as a legitimate
piece of health and safety legislation promoting the general welfare.
That is why Justice Harlan marshalled empirical studies showing that
working long hours in bakeries may indeed be injurious to workers’
health. In other words, the majority in Lochner failed to see how New
York’s law promoted the general welfare and got carried away with its
stand against protectionist legislation favoring one occupation or group
over another.’
Lochner and the era that it represents, in sum, invites two rival in-
terpretations. On the Holmesian view, Lochner represents the Court’s
purblind imposition of a laissez-faire economic philosophy against the
growing forces of economic progressives. Alternatively, the Lochner era
was a time of great class conflict and political struggles during which
the Court-tried to draw (not always successfully) a principled distinc-
tion between, on the one hand, legitimate economic legislation pro-
moting health, safety, and the general welfare; and, on the other hand,
economic legislation that was invalid because it was deemed to advance
the special interests of particular groups or classes.
For four decades (from 1897 to 1937) the philosophy of laissez-
faire capitalism and defensive stand against special interests’ protective
economic legislation held sway with a majority of the Court under
Chief Justices Waite, Melville Fuller (1888-1910), Edward White
(1910-1921), William Howard Taft (1921-1930), and Charles Evans
Hughes (1930-1941). Never before or since were economic regulations
more severely scrutinized. Close to 200 state and federal laws were
overturned during the Lochner era.
The Court did not strike down all legislation, however, as Justice
Harlan’s dissent in Lochner emphasized. Where legislation sought to en-
1026 | Economic RIGHTS AND AMERICAN CAPITALISM

force health, safety, or moral standards with little or no impact on eco-

nomic liberty, the Court deferred to the states and Congress. In Mugler
v. Kansas, 123 U.S. 623 (1887), for instance, when sustaining a state Bro3
hibition law, Justice John Harlan explained that

[t]here is no justification for holding that the State, under the guise
merely of police regulation, is here aiming to deprive the citizen of
his constitutional rights; for we cannot shut out of view the fact,
within the knowledge of all, that the public health, the public
morals, and the public safety, may be endangered by the general use
of intoxicating drinks; nor the fact, established by statistics accessi-
ble to everyone, that the idleness, disorder, pauperism, and crime
existing in the country are, in some degree at least, traceable to this
evil.

But Harlan also cautioned that not every law enacted for the promo-
tion of public welfare would survive or

be accepted as a legitimate exertion of the police powers of the

State. There are, of necessity, limits beyond which legislation cannot
rightfully go. ...The courts are not bound by mere forms, nor are

are under a solemn duty—to look at the substance of things, when-

ever they enter upon the inquiry whether the legislature has tran-
scended the limits of its authority. If, therefore, a statute purporting
to have been enacted to protect the public health, the public
-morals, or the public safety, has no real or substantial relation to
those objects, or is a palpable invasion of rights secured by the fun-
damental law, it is the duty of the courts to so adjudge, and thereby
give affect to the Constitution.

On this reasoning, the Court also upheld federal laws prohibiting the
sale of liquor® and state laws banning sales and advertisements for ciga-
rettes,’ as well as zoning and land-use laws.‘
The extent to which the Court was predisposed to defer to states
when regulations had no direct economic impact is underscored in two
further rulings during the Lochner era. In Jacobson v. Massachusetts, 197
US. 11 (1905), the Court refused to question the basis for a state law
requiring smallpox vaccinations. In Justice Harlan’s words:

We must assume that when the statute in question was passed, the
legislature of Massachusetts was not unaware of .. . opposing theo-
ries [of the effectiveness of vaccinations], and was compelled, of
necessity, to choose between them. It was not compelled to commit
a matter involving the public health and safety to the final decision
of a court or jury. It is no part of the function of a court or a jury
to determine which one of two modes was likely to be the most
 B | The Development and Demise of a “Liberty of Contract” | 1027

effective for the protection of the public against disease. That was
for the legislative department to determine in the light of all the
information it had or could obtain.

Nor was the Court inclined to scrutinize the basis for Virginia’s law,
passed in response to the eugenics movement, requiring the steriliza-
tion of those who were mentally defective or afflicted with epilepsy. It
affirmed the compulsory sterilization of Carrie Buck, a seventeen-
year-old, “feebleminded” female in a state mental institution, whose
mother had also been an inmate and who had already given birth to a
mentally defective child. Justice Holmes’s opinion for the Court re-
vealed not only his deference to legislatures but his acceptance of the
tooth and claw of Social Darwinism. In Buck v. Bell, 274 U.S. 200
(1927) (excerpted in Vol. 2, Ch. 11), he observed that

[w]e have seen more than once that the public welfare may call
upon the best citizens for their lives. It would be strange if it could
not call upon those who already sap the strength of the State for
these lesser sacrifices, often not felt to be such by those concerned,
in order to prevent our being swamped with incompetence. It is
better for all the world, if instead of waiting to execute degenerate
offspring for crime, or to let them starve for the imbecility, society
can prevent those who are manifestly unfit from continuing their
kind. The principle that sustains compulsory vaccination is broad
enough to cover cutting the Fallopian tubes. ...Three generations
of imbeciles are enough.

When legislation aimed at promoting health, safety, or welfare and di-

rectly affected economic activities, the Court did not automatically
strike it down. But the Court had to be convinced of the reasonable-
ness of the regulations. In Holden v. Hardy, 169 U.S. 366 (1898), with
only Justices Peckham and David Brewer dissenting, the Court upheld
Utah’s law limiting the number of hours in a day miners could work in
mines and smelters to eight.
In Muller v. Oregon, (1908) (excerpted below), the Court unani-
mously approved a state law limiting the workday for women in indus-
tries to ten hours per day. There the Court was persuaded by what
became known as “the Brandeis brief?’ When defending Oregon’s law,
the progressive and highly regarded labor lawyer, Louis Brandeis, filed
an extraordinary brief, containing only two pages of legal argument
and more than a hundred pages of statistics and social science studies
showing how long hours of labor endangered the health of women
and thus the reasonableness of the state’s law.’ (Notably, after Brandeis
was named to the Court in 1916, he never cited social science materi-
als when writing an opinion for the Court upholding state legislation.
1028 | Economic RiGHTS AND AMERICAN CAPITALISM

Instead, he only cited these materials when writing dissenting opinions,

criticizing the majority for overturning state laws and showing the rea-
sonableness of the legislation.)
Although upholding state regulations in cases like Muller and
Bunting v. Oregon, 243 U.S. 426 (1917), sustaining a labor law limiting
workdays to ten hours a day for men and women, the Court’s prevail-
ing practice was nevertheless to strike down economic regulations. The
problem for the Court and the country was that while the develop-
ment of the doctrine of a liberty of contract may have been in re-
sponse, in Holmes’s classic phrase, “to the felt necessities of the time,” it
ran against the political currents of the early twentieth century. Reform
Social Darwinism had replaced, Conservative Social Darwinism in
teaching that humans not only adapt to the environment but may
change it as well.’ 10 Under pressure from reformers, labor unions, and
the progressive movement, legislatures were passing new laws in re-
sponse to the plight of workers in sweatshops, child labor, and generally
dismal working conditions as depicted in novels by Upton Sinclair. The
justices were no longer in tune with the times. The Court and the
country were on a collision course in constitutional politics.
In Adair v. United States, 208 U.S. 161 (1908), for example, the
Court, with only Justices Holmes and Joseph McKenna dissenting,
struck down a section of a congressional labor-relations law banning
yellow-dog contracts—contracts signed by workers promising they
would not join labor unions—and forbidding the firing of employees
who belonged to unions. When approving of Adair’s firing of O. B.
Coppage from the Louisville & Nashville Railroad Company because
he was a union member, Justice Harlan disabused any thought of aban-
doning the liberty of contract:

While ... the right of liberty and property guaranteed by the Con-
stitution against deprivation without due process of law is subject
to such reasonable restraints as the common good or the general
welfare may require, it is not within the functions of government—
at least, in the absence of contract between the parties—to compel
any person, in the course of his business and against his will, to ac-
cept or retain the personal services of another, or to compel any
person, against his will, to perform personal services for another.
The right of a person to sell his labor upon such terms as he deems
proper is, in its essence, the same as the right of the purchaser of la-
bor to prescribe the conditions upon which he will accept such la-
bor from the person offering to sell it. So the right of the employee
to quit the service of the employer, for whatever reason, is the same
as the right of the employer, for whatever reason, to dispense with
the services of such employee. It was the legal right of the defen-
dant Adair,—however unwise such a course might have been,—to
 B | The Development and Demise of a “Liberty of Contract” | 1029

discharge Coppage because of his being a member ofa labor or-

ganization, as it was the legal right of Coppage, if he saw fit to do
so,—however unwise such a course on his part might have been,—
to quit the service in which he was engaged, because the defendant
employed some persons who were not members of a labor organi-
zation. In all such particulars the employer and the employee have
equality of right, and any legislation that disturbs that equality is an
arbitrary interference with the liberty of contract which no govern-
ment can legally justify in a free land.

In Coppage v. Kansas, 236 U.S. 1 (1915), with Justices Holmes, Ru-

fus Day, and Charles Evans Hughes dissenting, the Court struck down a
state law outlawing yellow-dog contracts. The Kansas state supreme
court had upheld the law and the conviction of T. B. Coppage for fir-
ing a switchman for the St. Louis & San Francisco Railway Company
because the employee refused to give up his union membership. In an-
other vintage expression of the doctrine of a liberty of contract, Justice
Mahlon Pitney explained that

it is said by the Kansas supreme court to be a matter of common

knowledge that “employees, as a rule, are not financially able to be
as independent in making contracts for the sale of their labor as are
employers in making a contract of purchase thereof’? No doubt;
wherever the right of private property exists, there must and will be
inequalities of fortune; and thus it naturally happens that parties ne-
gotiating about a contract are not equally unhampered by circum-
stances. This applies to all contracts, and not merely to that between
employer and employee. Indeed, a little reflection will show that
wherever the right of private property and the right of a free con-
tract coexist, each party when contracting is inevitably more or less
influenced by the question whether he has much property, or little,
or none; for the contract is made to the very end that each may
gain something that he needs or desires more urgently than that
which he proposes to give in exchange. And, since it is self-evident
that, unless all things are held in common, some persons must have
more property than others, it is from the nature of things impossi-
ble to uphold freedom of contract and the right of private property
without at the same time recognizing as legitimate those inequali-
ties of fortune that are the necessary result of the exercise of those
rights. But the 14th Amendment, in declaring that a state shall not
“deprive any person of life, liberty, or property without due process
of law,” gives to each of these an equal sanction; it recognizes “lib-
erty” and “property” as coexistent human rights, and debars the
states from any unwarranted interference with either.
And since a state may not strike them down directly, it is clear that
it may not do so indirectly, as by declaring in effect that the public
good requires the removal of those inequalities that are but the
normal and inevitable result of their exercise... .The police power
 1030 | Economic RIGHTS AND AMERICAN CAPITALISM

is broad, and not easily defined, but it cannot be given the wide
scope that is here asserted for it, without in effect nullifying the
constitutional guaranty.

In the 1920s the Court’s defense of the liberty of contract reached

the high-water mark and the controversy was exacerbated by the Great
Depression. In Adkins v. Children’s Hospital, 261 U.S. 525 (1923), a bare
majority struck down the District of Columbia’s minimum wage law
for women and again made clear that Lochner was still alive. The mini-
mum wage law, according to Justice Arthur Sutherland, was “simply and
exclusively a price-fixing law.’ “Women,” he added, “are legally as capa-
ble of contracting for themselves as men.” In dissent, Chief Justice Taft
maintained that Muller, not Lochner, should control the decision and
questioned whether Lochner had not been “overruled sub silentio,’ that
is, overruled without expressly saying so. But Wolf Packing Co. v. Court of
Industrial Relations, 262 U.S. 522 (1923), with none other than Taft de-
livering the Court’s opinion, underscored that economic liberty was a
“preferred freedom,’ when striking down Kansas’s law creating an
industrial-relations court to handle labor-management disputes. And
there remained a die-hard majority on the Court into the 1930s for de-
fending the vestiges of laissez-faire capitalism. In Morehead v. Tipaldo,
298 U.S. 587 (1936), the four remaining justices from Adkins’s ma-
jority—Sutherland, Pierce Butler, Willis Van Devanter, and James
McReynolds—were thus joined by Owen Roberts in overturning
New York’s minimum wage law.
The controversy over the Court finally erupted into the most seri-
ous crisis in constitutional politics since Dred Scott. During President
Franklin D. Roosevelt’s first term, the Court invalidated most of his
early New Deal programs thereby thwarting his plans for the country’s
recovery from the Great Depression. After FDR’s landslide reelection in
1936, he boldly proposed judicial reforms that would allow him to ex-
pand the size of the Court to fifteen by appointing a new member for
every justice over seventy years of age. Then in the spring of 1937
when the Senate Judiciary Committee was debating his Court-packing
plan, the Court abruptly upheld major pieces of the New Deal legisla-
tion. The Court had become badly split five to four in striking down
progressive New Deal legislation. Sutherland, McReynolds, Butler, and
Van Devanter—the “Four Horsemen”—voted as a bloc against eco-
nomic legislation for violating economic liberty, while Stone and Car-
dozo followed Brandeis in supporting progressive legislation. Hughes
and Roberts were the swing votes, although the latter, more conserva-
tive justice, had cast the crucial fifth vote to strike down FDR’: pro-
grams. Roberts, however, was persuaded by Hughes to change his
B | The Development and Demise of a “Liberty of Contract” | 1031
I i iNai A la a al
mind. In March he abandoned the Four Horsemen in West Coast Hotel
Co. » Parrish (1937) (see excerpt below) to uphold Washington State’s
munimum wage law. Two weeks later, in National Labor Relations Board v.
Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937) (see Ch. 6),
Roberts again switched sides to affirm a major piece of New Deal leg-
islation, the National Labor Relations Act.
The Court's “switch in time that saved nine” was widely speculated
to have been due to FDR’s Court-packing plan. But even though the
rulings did not come down until the spring, Roberts had switched his
vote at conference in December 1936, two months before FDR an-
nounced his plan. The reversal of the Court’s position nonetheless con-
tributed to the Senate Judiciary Committee’s rejection of FDR’s
proposal in May. Then Van Devanter—one of the president’s staunchest
opponents—told the president that he would resign at the end of the
next term. FDR had the first of eight appointments in the next six
years to infuse his own political philosophy into the Court.
The Court’s about-face in 1937 ended a constitutional crisis and an
era. With the Court’s abandonment of the liberty of contract and turn-
ing its back on substantive due process came avirtual abdication of ju-
dicial supervision of economic regulations. Lincoln Federal Labor Union
v. Northwestern Iron & Metal Co. (1949) (see excerpt below), which ex-
pressly repudiated Adair and Coppage, is illustrative. As FDR’s first ap-
pointee to the Court, Justice Hugo Black, in Ferguson v. Skrupa, 372
US. 726 (1963), exclaimed, “[I]t is up to legislatures, not courts, to de-
cide on the wisdom and utility of legislation.’ The Burger Court,
when upholding a state law requiring employees to be compensated
when on jury duty by their employers, in Dean v. Gadsden Times Pub-
lishing Corporation, 412 U.S. 543 (1973), underscored that “[i]f our re-
cent cases mean anything, they leave debatable issues as respects
business, economic, and social affairs to legislative decision. We could
strike down this law only if we returned to the philosophy of Lochner,
Coppage, and Adkins cases.”
Since the 1937 revolution in constitutional politics, the Court has
evolved a proverbial double standard: it gives economic regulation
only minimal scrutiny, requiring only that it have some rational basis,
while giving that affecting civil liberties heightened scrutiny, often up-
holding legislation only if the government’s interest in regulation is
compelling. And since 1937 the Court has assumed a special role in
‘overseeing voting rights and access to the political process (see Ch. 8);
the freedom of speech, press, and association (see Vol. 2, Ch. 15); and in-
vidious forms of racial and nonracial discrimination (see Vol. 2, Ch. 12).
It apjears highly unlikely that the Court will once again heighten
its scrutiny of economic legislation under the due process clause, let
1032 | Economic RIGHTS AND AMERICAN CAPITALISM

alone return to the days of the liberty of contract. Justice William

Rehnquist, for example, in United States Railroad Retirement Board v.
Fritz, 449 U.S. 166 (1980), rebuffed a due process attack on legislation
eliminating railroad retirees’ social security and retirement benefits with
the observation that “[t]he plain language [of the statute] marks the be-
ginning and end of our inquiry.”
Finally, it bears noting that although the Court turned its back
on the doctrine of a liberty of contract in 1937, it did not abandon reading
substantive guarantees into the due process clause of the Fourteenth
Amendment, as further discussed in Volume 2, Chapters 4 and 10.

NOTES

1. For further discussion, see Charles Fairman, “Does the Fourteenth Amendment
Incorporate the Bill of Rights?” 2 Stanford Law Review 5 (1949); and William
Crosskey, “Charles Fairman, ‘Legislative History; and the Constitutional Limitations
on State Authority,’ 22 University of Chicago Law Review 1 (1954).
2. See Edward Corwin, Liberty against Government: The Rise, Flowering and Decline of a
Famous Judicial Concept (Baton Rouge: Louisiana State University Press, 1948).
3. Benjamin Cardozo, The Nature of the Judicial Process (New Haven, CT: Yale Uni-
versity Press, 1921), 168.
4. For further discussion, see Benjamin Twiss, Lawyers and the Constitution: How Lais-
sez Faire Came to the Supreme Court (Princeton, NJ: Princeton University Press, 1942);
Robert McCloskey, American Conservatism in the Age of Enterprise (Cambridge, MA:
Harvard University Press, 1951); and James Willard Hurst, Law and the Conditions of
Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin
Press, 1956).
5. For further discussion, see Howard Gillman, The Constitution Besieged: The Rise and
Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press,
1993).
6. Hamilton v. Kentucky Distilleries and Warehouse Co., 251 U.S. 146 (1919).
7. See Austin v. Tennessee, 179 U.S. 343 (1900); and Packer Corporation v. Utah, 285 U.S.
105 (1932).
8. A leading case is Euclid v.Ambler Realty Co., 272 U.S. 365 (1926). See also Welch v,
Swasey, 214 U.S. 91 (1909); Cusack v. Chicago, 242 U.S. 526 (1917); and Berman v.
Parker, 348 U.S. 26 (1954).
9. Other rulings upholding labor laws for women include Cotting v. Godard, 183 U.S.
79 (1901); German Alliance Insurance Co. v. Lewis, 233 U.S. 389 (1914); and Townsend v.
Yeomans, 301 U.S. 441 (1937).
10. For further discussion, see Morton White, Social Thought in America: The Revolt
against Formalism (New York: Viking Press, 1949).
11. See also Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955); Olsen v. Ne-
braska, 313 U.S. 236 (1952); and Richard Funston, “The Double Standard of Consti-
tutional Protection in the Era of the Welfare State,’ 90 Political Science Quarterly 261
(1975).
 B | The Development and Demise of a “Liberty of Contract” | 1033
ee ee
SELECTED BIBLIOGRAPHY

Brigham, John. Property and the Politics of Entitlement. Philadelphia: Temple University
Press, 1990.
Freyer, Tony. Producers versus Capitalists: Constitutional Conflict in Antebellum America.
Charlottesville: University Press of Virginia, 1994.
Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police
Powers Jurisprudence. Durham, NC: Duke University Press, 1993.
Kens, Paul. Judicial Power and Reform Politics: The Anatomy of Lochner v. New York.
Lawrence: University Press of Kansas, 1990.
Labbé, Ronald, and Lurie, Jonathan. The Slaughterhouse Cases. Lawrence: University
Press of Kansas, 2003.
Leuchtenburg, William E. The. Supreme Court Reborn: The Constitutional Revolution in
the Age of Roosevelt. New York: Oxford University Press, 1995.
Miller, Arthur S. The Supreme Court and American Capitalism. New York: Free Press,
1968.
Paul, Arnold. Conservative Crisis and the Rule of Law: Attitudes of Bench and Bar,
1887-1895. Ithaca, NY: Cornell University Press, 1960.
Seigan, Bernard. Economic Liberties and the Constitution. Chicago: University of
Chicago Press, 1980.
Twiss, Benjamin. Lawyers and the Constitution: How Laissez Faire Came to the Supreme
Court. Princeton, NJ: Princeton University Press, 1942.

Butchers’ Benevolent Association v. Crescent City

Livestock Landing & Slaughterhouse Co.
(The Slaughterhouse Cases)
16 WALL. (83 U.S.) 36 (1873)

In 1869 due to the pollution and the spread of cholera, the Louisiana
legislature passed a law aimed at cleaning up the Mississippi River by
prohibiting all slaughtering of livestock in the City of New Orleans
and surrounding parishes except at one slaughterhouse, which was
given an exclusive franchise for twenty-five years. The Butchers’
Benevolent Association, a group of independent slaughterers, chal-
lenged the constitutionality of the legislation on the grounds that it vi-
olated the Thirteenth and Fourteenth Amendments by depriving them
of their livelihood. A state court and the Louisiana State Supreme
Court upheld the law, and the Butchers’ Benevolent Association ap-
pealed to vhe Supreme Court.
Court’s decision was five to four, with the majority’s opinion an-
1034 | Economic RIGHTS AND AMERICAN CAPITALISM

nounced by Justice Miller. Justices Field, Bradley, and Swayne dissented,

joined by Chief Justice Chase.

Justice MILLER delivers the opinion of the Court.

The plaintiffs . . . allege that the statute is a violation of the Constitution
of the United States in these several particulars:
That it creates an involuntary servitude forbidden by the 13th article of
amendment;
That it abridges the privileges and immunities of citizens of the United
States;
That it denies to the plaintiffs the equal protection of the laws; and,
That it deprives them of their property without due process of
law; contrary to the provisions of the 1st section of the 14th article
of amendment.
This court is thus called upon for the first time to give construction to
these articles. ...
The most cursory glance at these articles discloses a unity of purpose,
when taken in connection with the history of the times, which cannot fail
to have an important bearing on any question of doubt concerning their
true meaning....
[N]o one can fail to be impressed with the one pervading purpose
found in [the 13th, 14th and 15th Amendments], lying at the foundation of
each, and without which none of them would have been even suggested; we
mean the freedom of the slave race, the security and firm establishment of
that freedom, and the protection of the newly made freemen and citizens
from the oppressions of those who had formerly exercised unlimited domin-
ion over him. It is true that only the 15th Amendment, in terms, mentions
the negro by speaking of his color and his slavery. But it is just as true that
each of the other articles was addressed to the grievances of that race, and
designed to remedy them as the fifteenth.
We do not say that no one else but the negro can share in this protec-
tion. Both the language and spirit of these articles are to have their fair and
just weight in any question of construction. Undoubtedly, while negro slav-
ery alone was in the mind of the Congress which proposed the 13th article,
it forbids any other kind of slavery, now or hereafter. . ..
The next observation is more important in view of the arguments of
counsel in the present case. It is that the distinction between citizenship of
the United States and citizenship of a state is clearly recognized and estab-
lished. Not only may a man be a citizen of the United States without being
a citizen of a state, but an important element is necessary to convert the for-
mer into the latter. He must reside within the state to make himacitizen of
it, but it is only necessary that he should be born or naturalized in the
United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States and
a citizenship of a state, which are distinct from each other and which depend
upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this Amendment
of great weight in this argument, because the next paragraph of this same
section, which is the one mainly relied on by the plaintiffs in error, speaks
 B | The Development and Demise of a “Liberty of Contract” | 1035

only of privileges and immunities of citizens of the United States, and does
not speak of those of citizens of the several states. The argument, however,
in favor of the plaintiffs, rests wholly on the assumption that the citizenship
is the same and the privileges and immunities guaranteed by the clause are
the same.
The language is: “No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States.” It is a
little remarkable, if this clause was intended as a protection to the citizen of
a state against the legislative power of his own state, that the words “citizen
of the state” should be left out when it is so carefully used, and used in
contradistinction to “citizens of the United States” in the very sentence
which precedes it. It is too clear for argument that the change in phraseology
was adopted understandingly and with a purpose.
Of the privileges and immunities of the citizens of the United States,
and of the privileges and immunities of the citizen of the state, and what
they respectively are, we will presently consider; but we wish to state here
that it is only the former which are placed by this clause under the protec-
tion of the Federal Constitution, and that the latter, whatever they may be,
are not intended to have any additional protection by this paragraph of the
Amendment.
If, then, there is a difference between the privileges and immunities be-
longing to a citizen of the United States as such, and those belonging to the
citizen of the state as such, the latter must rest for their security and protec-
tion where they have heretofore rested; for they are not embraced by this
paragraph of the Amendment. ...
In the Constitution of the United States, which superseded the Articles
of Confederation, the corresponding provision is found in section two
of the 4th article, in the following words: The citizens of each state shall
be entitled to all the privileges and immunities of citizens of the several
states.
There can be but little question that the purpose of both these provi-
sions is the same, and that the privileges and immunities intended are the
same in each. In the Article of the Confederation we have some of these
specifically mentioned, and enough perhaps to give some general idea of the
class of civil rights meant by the phrase... .
The constitutional provision there alluded to did not create those rights,
which it called privileges and immunities of citizens of the states. It threw
around them in that clause no security for the citizen of the state in which
they were claimed or exercised. Nor did it profess to control the power of
the state governments over the rights of its own citizens.
Its sole purpose was to declare to the several states, that whatever those
rights, as you grant or establish them to your own citizens, or as you limit or
qualify, or impose restrictions on their exercise, the same, neither more nor
less, shall be the measure of the rights of citizens of other states within your
jurisdiction. ...
The argument has not been much pressed in these cases that the defen-
dant’s charter deprives the plaintiffs of their property without due process of
law, or that it denies to them the equal protection of the law. The first of
these paragraphs has been in the Constitution since the adoption of the 5th
Amendment, as a restraint upon the Federal power. It is also to be found in
1036 | Economic RIGHTS AND AMERICAN CAPITALISM

some form of expression in the constitutions of nearly all the states, as a re-
straint upon the power of the states. This law, then, has practically been the
same as it now is during the existence of the government, except so far as
the present Amendment may place the restraining power over the states in
this matter in the hands of the Federal government.
We are not without judicial interpretation, therefore, both state and na-
tional, of the meaning of this clause. And it is sufficient to say that under no
construction of that provision that we have ever seen, or any that we deem
admissible, can the restraint imposed by the state of Louisiana upon the ex-
ercise of their trade by the butchers of New Orleans be held to be a depri-
vation of property within the meaning of that provision.
‘Nor shall any state deny to any person within its jurisdiction the equal
protection of the laws.”
In the light of the history of these amendments, and the pervading pur-
pose of them, which we have already discussed, it is not difficult to give a
meaning to this clause. The existence of laws in the states where the newly
emancipated negroes resided, which discriminated with gross injustice and
hardship against them as a class, was the evil to be remedied by this clause,
and by it such laws are forbidden.

1 Justice FIELD, dissenting.

The question presented is .. . nothing less than the question whether the
recent Amendments to the Federal Constitution protect the citizens of the
United States against the deprivation of their common rights by state legis-
lation. In my judgment the 14th Amendment does afford such protection,
and was so intended by the Congress which framed and the states which
adopted it.
The counsel for the plaintiffs in error have contended, with great force,
that the act in question is also inhibited by the 13th Amendment.
That Amendment prohibits slavery and involuntary servitude, except as
a punishment for crime, but I have not supposed it was susceptible of a con-
struction which would cover the enactment in question. I have been so ac-
customed to regard it as intended to meet that form of slavery which had
previously prevailed in this country, and to which the recent Civil War owed
its existence, that I was not prepared, nor am I yet, to give to it the extent
and force ascribed by counsel. Still it is evident that the language of the
Amendment is not used in a restrictive sense. It is not confined to African
slavery alone. It is general and universal in its application. Slavery of white
men as well as of black men is prohibited, and not merely slavery in the strict
sense of the term, but involuntary servitude in every form....
The first clause of the fourteenth amendment .. . recognizes in express
terms, if it does not create, citizens of the United States, and it makes the
citizenship dependent upon the place of the birth, or the fact of their adop-
tion, and not upon the Constitution or laws of any state or the condition of
their ancestry.A citizen of a state is now onlyacitizen of the United States
residing in that state. The fundamental rights, privileges, and immunities
which belong to him as a free man and afree citizen, now belong to him as
a citizen of the United States, and are not dependent upon his citizenship of
any state....
 B | The Development and Demise of a “Liberty of Contract” | 1037

The Amendment does not attempt to confer any new privileges or im-
munities upon citizens or to enumerate or define those already existing. It
assumes that there are such privileges and immunities which belong of right
to citizens as such, and ordains that they shall not be abridged by state legis-
lation. If this inhibition has no reference to privileges and immunities of this
character, but only refers, as held by the majority of the court in their opin-
ion, to such privileges and immunities as were before its adoption specially
designated in the Constitution or necessarily implied as belonging to citizens
of the United States, it was a vain and idle enactment, which accomplished
nothing, and most unnecessarily excited Congress and the people on its pas-
sage. With privileges and immunities thus designated no state could ever have
interfered by its laws, and no new constitutional provision was required to
inhibit such interference. The supremacy of the Constitution and the laws of
the United States always controlled any state legislation of that character. But
if the Amendment refers to the natural and inalienable rights which belong
to all citizens, the inhibition has a profound significance and consequence.
What, then, are the privileges and immunities which are secured against
abridgement by state legislation? . . .
The privileges and immunities designated are those which of right be-
long to the citizens of all free governments. Clearly among these must be
_ placed the right to pursue a lawful employment in a lawful manner, without
other restraint than such as equally affects all persons... .
This equality of right, with exemption from all disparaging and partial
enactments, in the lawful pursuits of life, throughout the whole country, is
the distinguishing privilege of citizens of the United States. To them, every-
where, all pursuits, all professions, all avocations are open without other re-
strictions than such as are imposed equally upon all others of the same age,
sex and condition. The state may prescribe such regulations for every pursuit
and calling of life as will promote the public health, secure the good order
and advance the general prosperity of society, but when once prescribed, the
pursuit or calling must be free to be followed by every citizen who is within
the conditions designated, and will conform to the regulations. This is the
fundamental idea upon which our institutions rest, and unless adhered to in
the legislation of the country our government will be a Republic only in
name. The 14th Amendment, in my judgment, makes it essential to the va-
lidity of the legislation of every state that this equality of right should be re-
spected....
I am authorized by Chief Justice CHASE, Justice SWAYNE and Justice
BRADLEY, to state that they concur with me in this dissenting opinion.

() Justice BRADLEY, dissenting.

In my view, a law which prohibits a large class of citizens from adopting
a lawful employment, or from following a lawful employment previously
‘adopted, does deprive them of liberty as well as property, without due
process of law. Their right of choice is a portion of their liberty; their occu-
pation is their property. Such a law also deprives those citizens of the equal
protection of the laws, contrary to the last clause of the section... .
It is iutile to argue that none but persons of the African race are in-
1038 | Economic RIGHTS AND AMERICAN CAPITALISM

tended to be benefited by this Amendment. That may have been the primary
cause of the Amendment, but its language is general, embracing all citizens,
and | think it was purposely so expressed.

Munn v. Illinois
4,OTTO (0400) S,) 133.24. L.BD.77( 5577)

In 1871 in response to the Granger movement—a movement to pro-

mote the interests of independent farmers in midwest states—and pres-
sures to stop the exploitation of farmers by grain-elevator operators,
Illinois’s legislature enacted a law requiring operating licenses and set-
ting the maximum rates that grain warehouses and elevators could
charge for the storage of grain. Ira Munn was found in violation of the
law and attacked its constitutionality as a violation of the commerce
clause and the due process clause of the Fourteenth Amendment. The
Illinois State Supreme Court, however, upheld Munn’s conviction and
Munn appealed to the Supreme Court.
The Court’s decision was seven to two, with the majority’s opinion
announced by Chief Justice Waite. Justices Field and Strong dissented.

(1 Chief Justice WAITE delivers the opinion of the Court.

‘Every statute is presumed to be constitutional. The courts ought not to
declare one to be unconstitutional, unless it is clearly so. If there is doubt, the
expressed will of the Legislature should be sustained.
The Constitution contains no definition of the word “deprive,” as used
in the 14th Amendment. To determine its signification, therefore, it is neces-
sary to ascertain the effect which usage has given it, when employed in the
same or a like connection.
While this provision of the Amendment is new in the Constitution of
the United States as a limitation upon the powers of the States, it is old as a
principle of civilized government. It is found in Magna Charta, and, in sub-
stance if not in form, in nearly or quite all the constitutions that have been
from time to time adopted by the several States of the Union. By the 5th
Amendment, it was introduced into the Constitution of the United States as
a limitation upon the powers of the National Government, and by the 14th,
as a guaranty against any encroachment upon an acknowledged right of
citizenship by the Legislatures of the States... .
This Act was passed at a time when Magna Charta had been recognized
as the fundamental law of England for hundreds of years.
This great charter embodied the principle that no person shall be de-
prived of life, liberty or property, but by the judgment of his peers or the law
of the land, which is an equivalent for the modern phrase, “due process of
law.”
 B | The Development and Demise of a “Liberty of Contract” | 1039

[I]t is apparent that, down to the time of the adoption of the 14th
Amendment, it was not supposed that statutes regulating the use, or even the
price of the use, of private property necessarily deprived an owner of his
property without due process of law. Under some circumstances ,they may,
but not under all. The Amendment does not change the law in this particu-
lar; it sumply prevents the States from doing that which will operate as such a
deprivation.
This brings us to inquire as to the principles upon which this power of
regulation rests, in order that we may determine what is within and what
without its operative effect. Looking, then, to the common law, from whence
came the right which the Constitution protects, we find that when private
property is “affected with a public interest, it ceases to be juris privati only.”
This was said by Lord Chief Justice Hale more than two hundred years ago,
in his treatise De Portibus Maris, and has been accepted without objection as
an essential element in the law of property ever since. Property does become
clothed with a public interest when used in a manner to make it of public
consequence, and affect the community at large. When, therefore, one de-
votes his property to a use in which the public has an interest, he, in effect,
grants to the public an interest in that use, and must submit to be controlled
by the public for the common good, to the extent of the interest he has thus
created. He may withdraw his grant by discontinuing the use; but, so long as
he maintains the use, he must submit to the control. ...
It remains only to ascertain whether the warehouses of these plaintiffs in
error, and the business which is carried on there, come within the operation
of this principle. ...
[I]t is difficult to see why, if the common carrier, or the miller, or the
ferryman, or the innkeeper, or the wharfinger, or the baker, or the cartman,
or the hackney-coachman, pursues a public employment and exercises “a
sort of public office,” these plaintiffs in error do not. They stand, to use again
the language of their counsel, in the very “gateway of commerce,” and take
toll from all who pass. Their business most certainly “tends to a common
charge, and is become a thing of public interest and use.” Every bushel of
grain for its passage “pays a toll, which is a common charge,” and, therefore,
according to Lord Hale, every such warehouseman “ought to be under pub-
lic regulation, viz.: that he . . . take but reasonable toll.” Certainly, if any busi-
ness can be clothed “with a public interest, and cease to be juris privati only,”
this has been. It may not be made so by the operation of the Constitution of
Illinois or this statute, but it is by the facts... .
We know that this is a power which may be abused; but that is no argu-
ment against its existence. For protection against abuses by Legislatures the
people must resort to the polls; not to the courts. ...
We come now to consider the effect upon this statute of the power of
Congress to regulate commerce. .. .The warehouses of these plaintiffs in er-
_ror are situated and their business carried on exclusively within the limits of
the State of Illinois. They are used as instruments by those engaged in State
as well as those engaged in interstate commerce, but they are no more nec-
essarily a part of commerce itself than the dray or the cart by which, but for
them, grain would be transferred from one railroad station to another. Inci-
dentally they may become connected with interstate commerce, but not
necessarily so. Their regulation is a thing of domestic concern and, certainly,
1040 | Economic RIGHTs AND AMERICAN CAPITALISM

until Congress acts in reference to their interstate relations, the State may ex-
ercise all the powers of government over them, even though in so doing it
may indirectly operate upon commerce outside its immediate jurisdiction.
We do not say that a case may not arise in which it will be found that-a
State, under the form of regulating its own affairs, has encroached upon the
exclusive domain of Congress in respect to interstate commerce, but we do
say that, upon the facts as they are represented to us in this record, that has
not been done....
The judgment is affirmed.

(1 Justice FIELD, dissenting.

I am compelled to dissent from the decision of the court in this case,
and from the reasons upon which that decision is founded. The principle
upon which the opinion of the majority proceeds is, in my judgment, sub-
versive of the rights of private property, heretofore believed to be protected
by constitutional guaranties against legislative interference, and is in conflict
with the authorities cited in its support... ..
There is nothing in the character of the business of the defendants as
warehousemen which called for the interference complained of in this case.
Their buildings are not nuisances; their occupation of receiving and storing
grain infringes upon no rights of others, disturbs no neighborhood, infects
not the air, and in no respect prevents others from using and enjoying their
property as to them may seem best. The legislation in question is nothing less
than a bold assertion of absolute power by the State to control, at its dis-
cretion, the property and business of the citizen, and fix the compensation
he shall receive. . .
The business of a warehouseman was, at common law, a private busi-
ness, and is so in its nature. It has no special privileges connected with it, nor
did the law ever extend to it any greater protection than it extended to all
other private business. No reason can be assigned to justify legislation inter-
fering with the legitimate profits of that business, that would not equally jus-
tify an intermeddling with the business of every man in the community, so
soon, at least, as his business became generally useful.
I am of opinion that the judgment of the Supreme Court of Illinois
should be reversed.

Lochner v. New York

108 W854 5.12 565:C7T 2539, (1005)

Joseph Lochner was found guilty and fined $50 for violating an 1897
New York law prohibiting employers from having their employees
work more than sixty hours a week in a bakery. Lochner’s conviction
was affirmed by two state courts and he applied for a writ of error
from the Supreme Court.
 B | The Development and Demise of a “Liberty of Contract” | 1041

The Court’s decision was five to four; the majority’s opinion was
announced by Justice Peckham. Dissents were by Justices Holmes and
Harlan, who was joined by Justices White and Day.

(| Justice PECKHAM delivers the opinion of the Court.

The mandate of the statute, that “no employee shall be required or per-
mitted to work,” is the substantial equivalent of an enactment that “no em-
ployee shall contract or agree to work,” more than ten hours per day; and, as
there is no provision for special emergencies, the statute is mandatory in all
cases. It is not an act merely fixing the number of hours which shall consti-
tute a legal day’s work, but an absolute prohibition upon the employer per-
mitting, under any circumstances, more than ten hours’ work to be done in
his establishment. The employee may desire to earn the extra money which
would arise from his working more than the prescribed time, but this statute
forbids the employer from permitting the employee to earn it.
The statute necessarily interferes with the right of contract between the
employer and employees, concerning the number of hours in which the lat-
ter may labor in the bakery of the employer. The general right to make a
contract in relation to his business is part of the liberty of the individual
protected by the 14th Amendment of the Federal Constitution. Allgeyer v.
Louisiana, 165 U.S. 578 [(1897)]. Under that provision no state can deprive
any person of life, liberty, or property without due process of law. The right
to purchase or to sell labor is part of the liberty protected by this amend-
ment, unless there are circumstances which exclude the right. There are,
however, certain powers, existing in the sovereignty of each state in the
Union, somewhat vaguely termed police powers, the exact description and
limitation of which have not been attempted by the courts. Those powers,
broadly stated, and without, at present, any attempt at a more specific limita-
tion, relate to the safety, health, morals, and general welfare of the public.
Both property and liberty are held on such reasonable conditions as may be
imposed by the governing power of the state in the exercise of those pow-
ers, and with such conditions the 14th Amendment was not designed to in-
terferes 5.
The state, therefore, has power to prevent the individual from making
certain kinds of contracts, and in regard to them the Federal Constitution
offers no protection. If the contract be one which the state, in the legitimate
exercise of its police power, has the right to prohibit, it is not prevented from
prohibiting it by the 14th Amendment. Contracts in violation of a statute,
either of the Federal or state government, or a contract to let one’s property
for immoral purposes, or to do any other unlawful act, could obtain no pro-
tection from the Federal Constitution, as coming under the liberty of person
or of free contract. Therefore, when the state, by its legislature, in the as-
sumed exercise of its police powers, has passed an act which seriously limits
the right to labor or the right of contract in regard to their means of liveli-
hood between persons who are sui juris (both employer and employee), it be-
comes of great importance to determine which shall prevail,—the right of
the individual to labor for such time as he may choose, or the right of the
state to prevent the individual from laboring, or from entering into any con-
tract to labor, beyond acertain time prescribed by the state.
1042 | Economic RIGHTS AND AMERICAN CAPITALISM

This court has recognized the existence and upheld the exercise of the
police powers of the states in many cases which might fairly be considered as
border ones, and it has, in the course of its determination of questions re-
garding the asserted invalidity of such statutes, on the ground of their viola-
tion of the rights secured by the Federal Constitution, been guided by rules
of a very liberal nature, the application of which has resulted, in numerous
instances, in upholding the validity of state statutes thus assailed... .
It must, of course, be conceded that there is a limit to the valid exercise
of the police power by the state. .. . Otherwise the 14th Amendment would
have no efficacy and the legislatures of the states would have unbounded
power, and it would be enough to say that any piece of legislation was en-
acted to conserve the morals, the health, or the safety of the people; such
legislation would be valid, no matter how absolutely without foundation the
claim might be. The claim of the police power would be a mere pretext,—
become another and delusive name for the supreme sovereignty of the state
to be exercised free from constitutional restraint. ... In every case that comes
before this court, therefore, where legislation of this character is concerned,
and where the protection of the Federal Constitution is sought, the question
necessarily arises: Is this a fair, reasonable, and appropriate exercise of the po-
lice power of the state, or is it an unreasonable, unnecessary, and arbitrary in-
terference with the right of the individual to his personal liberty, or to enter
into those contracts in relation to labor which may seem to him appropriate
or necessary for the support of himself and his family? Of course the liberty
of contract relating to labor includes both parties to it. The one has as much
right to purchase as the other to sell labor.
This is not a question of substituting the judgment of the court for that
of the legislature. If the act be within the power of the state it is valid, al-
though the judgment of the court might be totally opposed to the enact-
ment of such a law....
The question whether this act is valid as a labor law, pure and simple,
may be dismissed in a few words. There is no reasonable ground for interfer-
ing with the liberty of person or the right of free contract, by determining
the hours of labor, in the occupation of a baker. There is no contention that
bakers as a class are not equal in intelligence and capacity to men in other
trades or manual occupations, or that they are not able to assert their rights
and care for themselves without the protecting arm of the state, interfering
with their independence of judgment and of action. They are in no sense
wards of the state. Viewed in the light of a purely labor law, with no refer-
ence whatever to the question of health, we think that a law like the one be-
fore us involves neither the safety, the morals, nor the welfare, of the public,
and that the interest of the public is not in the slightest degree affected by
such an act. The law must be upheld, if at all, as a law pertaining to the
health of the individual engaged in the occupation of a baker. It does not af-
fect any other portion of the public than those who are engaged in that oc-
cupation. Clean and wholesome bread does not depend upon whether the
baker works but ten hours per day or only sixty hours a week. The limitation
of the hours of labor does not come within the police power on that
ground.
It is a question of which of two powers or rights shall prevail,—the
power of the state to legislate or the right of the individual to liberty of per-
 B | The Development and Demise of a “Liberty of Contract” | 1043

son and freedom of contract. The mere assertion that the subject relates,
though but in a remote degree, to the public health, does not necessarily ren-
der the enactment valid. The act must have a more direct relation, as a means
to an end, and the end itself must be appropriate and legitimate, before an
act can be held to be valid which interferes with the general right of an in-
dividual to be free in his person and in his power to contract in relation to
his own labor... .
We think that there can be no fair doubt that the trade of a baker, in
and of itself, is not an unhealthy one to that degree which would authorize
the legislature to interfere with the right to labor, and with the right of free
contract on the part of the individual, either as employer or employee. In
looking through statistics regarding all trades and occupations, it may be true
that the trade of a baker does not appear to be as healthy as some other
trades, and is also vastly more healthy than still others. To the common
understanding the trade of a baker has never been regarded as an unhealthy
ONE..zi
It seems to us that the real object and purpose were simply to regulate
the hours of labor between the master and his employees (all being men, sui
juris), in a private business, not dangerous in any degree to morals, or in any
real and substantial degree to the health of the employees. Under such cir-
cumstances the freedom of master and employee to contract with each other
in relation to their employment, and in defining the same, cannot be prohib-
ited or interfered with, without violating the Federal Constitution.

Justice HOLMES, dissenting.

This case is decided upon an economic theory which a large part of the
country does not entertain. If it were a question whether I agreed with that
theory, I should desire to study it further and long before making up my
mind. But I do not conceive that to be my duty, because I strongly believe
that my agreement or disagreement has nothing to do with the right of a
majority to embody their opinions in law. It is settled by various decisions of
this court that state constitutions and state laws may regulate life in many
ways which we as legislators might think as injudicious, or if you like as
tyrannical, as this, and which equally with this, interfere with the liberty to
contract. Sunday laws and usury laws are ancient examples. A more modern
one is the prohibition of lotteries. The liberty of the citizen to do as he likes
so long as he does not interfere with the liberty of others to do the same,
which has been a shibboleth for some well-known writers, is interfered with
by school laws, by the Postoffice, by every state or municipal institution
which takes his money for purposes thought desirable, whether he likes it or
not. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Stat-
ics. The other day we sustained the Massachusetts vaccination law. Jacobson v.
Massachusetts, 197 U.S. 11 [(1905)]. United States and state statutes and deci-
_ sions cutting down the liberty to contract by way of combination are famil-
iar to this court. Northern Securities Co. v. United States, 193 U.S. 197 [(1904)].
Two years ago we upheld the prohibition of sales of stock on margins, or for
future delivery, in the Constitution of California. Otis v. Parker, 187 U.S. 606
[(1903)]*The ‘decision sustaining an eight-hour law for miners is still recent.
Holden v, Hardy [169 U.S. 366 (1898)]. Some of these laws embody convic-
tions or prejudices which judges are likely to share. Some may not. But a
1044 | Economic RIGHTS AND AMERICAN CAPITALISM

Constitution is not intended to embody a particular economic theory,

whether of paternalism and the organic relation of the citizen to the state or
of laissez faire. It is made for people of fundamentally differing views, and
the accident of our finding certain opinions natural and familiar, or novel,
and even shocking, ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the
United States.
General propositions do not decide concrete cases. The decision will de-
pend on a judgment or intuition more subtle than any articulate major
premise. But I think that the proposition just stated, if it is accepted, will
carry us far toward the end. Every opinion tends to become a law. I think
that the word “liberty,” in the 14th Amendment, is perverted when it is held
to prevent the natural outcome of a dominant opinion, unless it can be said
that a rational and fair man necessarily would admit that the statute proposed
would infringe fundamental principles as they have been understood by the
traditions of our people and our law. It does not need research to show that
no such sweeping condemnation can be passed upon the statute before us.A
reasonable man might think it a proper measure on the score of health. Men
whom I certainly could not pronounce unreasonable would uphold it as a
first installment of a general regulation of the hours of work. Whether in the
latter aspect it would be open to the charge of inequality I think it unneces-
sary to discuss.

(1 Justice HARLAN, with whom Justices WHITE and DAY join, dissenting.
[Granting] that there is a liberty of contract which cannot be violated
even under the sanction of direct legislative enactment, but assuming, as ac-
cording to settled law we may assume, that such liberty of contract is subject
to such regulations as the State may reasonably prescribe for the common
good and the well-being of society, what are the conditions under which the
judiciary may declare such regulations to be in excess of legislative authority
and void? Upon this point there is no room for dispute; for, the rule is uni-
versal that a legislative enactment, Federal or state, is never to be disregarded
or held invalid unless it be, beyond question, plainly and palpably in excess of
legislative power. ...
Let these principles be applied to the present case. By the statute in
question it is provided that, “No employee shall be required or permitted to
work in a biscuit, bread or cake bakery or confectionery establishment more
than sixty hours in any one week, or more than ten hours in any one day,
unless for the purpose of making a shorter work day on the last day of the
week; nor more hours in any one week than will make an average of ten
hours per day for the number of days during such week in which such em-
ployee shall work.”
It is plain that this statute was enacted in order to protect the physical
well-being of those who work in bakery and confectionery establishments.
It may be that the statute had its origin, in part, in the belief that employers
and employees in such establishments were not upon an equal footing, and
that the necessities of the latter often compelled them to submit to such ex-
actions as unduly taxed their strength. Be this as it may, the statute must be
taken as expressing the belief of the people of New York that, as a general
rule, and in the case of the average man, labor in excess of sixty hours dur-
 B | The Development and Demise of a “Liberty of Contract” | 1045

ing a week in such establishments may endanger the health of those who
thus labor. Whether or not this be wise legislation it is not the province of
the court to inquire. Under our systems of government the courts are not
concerned with the wisdom or policy of legislation. So that in determining
the question of power to interfere with liberty of contract, the court may
inquire whether the means devised by the State are germane to an end
which may be lawfully accomplished and have a real or substantial relation to
the protection of health, as involved in the daily work of the persons, male
and female, engaged in bakery and confectionery establishments. But when
this inquiry is entered upon I find it impossible, in view of common experi-
ence, to say that there is here no real or substantial relation between the
means employed by the State and the end sought to be accomplished by its
legislation. Nor can I say that the statute has no appropriate or direct con-
nection with that protection to health which each State owes to her citizens,
or that it is not promotive of the health of the employees in question, or that
the regulation prescribed by the State is utterly unreasonable and extravagant
or wholly arbitrary. Still less can I say that the statute is, beyond question, a
plain, palpable invasion of rights secured by the fundamental law. Therefore I
submit that this court will transcend its functions if it assumes to annul the
statute of New York. It must be remembered that this statute does not apply
to all kinds of business. It applies only to work in bakery and confectionery
establishments, in which, as all know, the air constantly breathed by workmen
is not as pure and healthful as that to be found in some other establishments
or out of doors.
Professor Hirt in his treatise on the Diseases of the Workers has said: “The
labor of the bakers is among the hardest and most laborious imaginable, be-
cause it has to be performed under conditions injurious to the health of
those engaged in it... .” Another writer says: “The constant inhaling of flour
dust causes inflammation of the lungs and of the bronchial tubes. The eyes
also suffer through this dust, which is responsible for the many cases of run-
ning eyes among the bakers. The long hours of toil to which all bakers are
subjected produce rheumatism, cramps and swollen legs. The intense heat in
the workshops induces the workers to resort to cooling drinks, which to-
gether with their habit of exposing the greater part of their bodies to the
change in the atmosphere, is another source of a number of diseases of var-
ious organs. Nearly all bakers are pale-faced and of more delicate health
than the workers of other crafts, which is chiefly due to their hard work and
their irregular and unnatural mode of living whereby the power of re-
sistance against disease is greatly diminished. The average age of a baker is
below that of other workmen; they seldom live over their fiftieth year,
most of them dying between the ages of forty and fifty. During periods
of epidemic diseases the bakers are generally the first to succumb to the dis-
ease, and the number swept away during such periods far exceeds the num-
_ ber of other crafts in comparison to the men employed in the respective
industries. ...”
We judicially know that the question of the number of hours during
which a workman should continuously labor has been, for a long period, and
is yet, a’ subject of serious consideration among civilized peoples, and by
those having special knowledge of the laws of health. Suppose the statute
prohibited labor in bakery and confectionery establishments in excess of
1046 | Economic RIGHTS AND AMERICAN CaPITALISM

eighteen hours each day. No one, I take it, could dispute the power of the
State to enact such a statute. But the statute before us does not embrace ex-
treme or exceptional cases. It may be said to occupy a middle ground in re-
spect of the hours of labor. What is the true ground for the State to take
between legitimate protection, by legislation, of the public health and liberty
of contract is not a question easily solved, nor one in respect of which there
is or can be absolute certainty. There are very few, if any, questions in politi-
cal economy about which entire certainty may be predicated... .
We also judicially know that the number of hours that should constitute
a day’s labor in particular occupations involving the physical strength and
safety of workmen has been the subject of enactments by Congress and by
nearly all of the States. Many, if not most, of those enactments fix eight
hours as the proper basis of a day’s labor... .
If such reasons exist that ought ‘to be the end of this case, for the State
is not amenable to the judiciary, in respect of its legislative enactments, un-
less such enactments are plainly, palpably, beyond all question, inconsistent
with the Constitution of the United States. We are not to presume that the
State of New York has acted in bad faith. Nor can we assume that its legisla-
ture acted without due deliberation, or that it did not determine this ques-
tion upon the fullest attainable information, and for the common good. We
cannot say that the State has acted without reason nor ought we to proceed
upon the theory that its action is a mere sham. Our duty, I submit, is to sus-
tain the statute as not being in conflict with the Federal Constitution, for the
reason—and such is an all-sufficient reason—it is not shown to be plainly
and palpably inconsistent with that instrument. .. .
The judgment in my opinion should be affirmed.

Muller v. Oregon
208°U.S. 412, 28S: Cr. 324 (1908)

At the dawn of the twentieth century, the Progressive Movement, led

by organizations such as the National Consumers’ League (NCL),
promoted legislation setting maximum working hours and minimum
wages. After Lochner v. New York (1905), however, many such state laws
appeared in jeopardy. When the owner of a laundry, Curt Muller, chal-
lenged the constitutionality of his conviction for violating Oregon’s
law limiting the number of hours women could work to ten hours per
day, the NCL decided to make a “test case” out of the suit and re-
cruited the well-known Progressive reformer and advocate Louis D.
Brandeis to argue the case on appeal. In light of Lochner, his strategy
was try to persuade the Court of the reasonableness of and factual ba-
sis for Oregon’s law. Accordingly, he had the NCL gather extensive so-
cial, economic, and public health information on the effect of women’s
 B | The Development and Demise of a “Liberty of Contract” | 1047

working long hours. Nearly thirty reports from other countries and
states were compiled and quoted in the 113-page brief submitted to
the Court. It later became known as the “Brandeis brief” because it
contained only two pages of legal arguments, with the rest being data
and expert opinion supporting the position that “long hours of labor
are dangerous for women primarily because of their special physical
organization.”
The Court’s decision was unanimous in affirming the state su-
preme court’s ruling upholding Oregon’s law. Justice Brewer delivered
the opinion of the Court. .

Justice BREWER delivered the opinion of the court.

It is the law of Oregon that Women, whether married or single, have
equal contractual and personal rights with men. [P]utting to one side the
elective franchise, in the matter of personal and contractual rights they stand
on the same plane as the other sex. Their rights in these respects can no more
be infringed than the equal rights of their brothers. We held in Lochner v.
New York, 198 U.S. 45 [(1905)], that a law providing that no laborer shall be
required or permitted to work in a bakery more than sixty hours in a week
or ten hours in a day was not as to men alegitimate exercise of the police
power of the State, but an unreasonable, unnecessary and arbitrary interfer-
ence with the right and liberty of the individual to contract in relation to his
labor, and as such was in conflict with, and void under, the Federal Constitu-
tion. That decision is invoked by plaintiff in error as decisive of the question
before us. But this assumes that the difference between the sexes does not
justify a different rule respecting a restriction of the hours of labor.
It may not be amiss, in the present case, before examining the constitu-
tional question, to notice the course of legislation as well as expressions of
opinion from other than judicial sources. In the brief filed by Mr. Louis D.
Brandeis, for the defendant in error, is a very copious collection of all these
matters, an epitome of which is found in the margin.
In foreign legislation Mr. Brandeis calls attention to these statutes: Great
Britain: Factories Act of 1844; Factory and Workshop Act of 1901. France,
1848: Act Nov. 2, 1892, and March 30, 1900. Switzerland, Canton of Glarus,
1848; Federal Law 1877. Austria, 1855; Acts 1897. Holland, 1889; art. 5,
Sec. 1. Italy, June 19, 1902, art. 7. Germany, Laws 1891.
Then follow extracts from over ninety reports of committees, bureaus of
statistics, commissioners of hygiene, inspectors of factories, both in this
country and in Europe, to the effect that long hours of labor are dangerous
for women, primarily because of their special physical organization. The
matter is discussed in these reports in different aspects, but all agree as to the
_danger. It would of course take too much space to give these reports in de-
tail. Following them are extracts from similar reports discussing the general
benefits of short hours from an economic aspect of the question. In many of
these reports individual instances are given tending to support the general
conclusion. Perhaps the general scope and character of all these reports may
be summed up in what an inspector for Hanover says: “The reasons for the
reduction of the working day to ten hours—(a) the physical organization of
1048 | Economic RIGHTs AND AMERICAN CAPITALISM

women, (b) her maternal functions, (c) the rearing and education of the chil-
dren, (d) the maintenance of the home—are all so important and so far
reaching that the need for such reduction need hardly be discussed.” . . .
The legislation and opinions referred to in the margin may not be, tech-
nically speaking, authorities, and in them is little or no discussion of the con-
stitutional question presented to us for determination, yet they are significant
of a widespread belief that woman’s physical structure, and the functions she
performs in consequence thereof, justify special legislation restricting or
qualifying the conditions under which she should be permitted to toil. Con-
stitutional questions, it is true, are not settled by even a consensus of present
public opinion, for it is the peculiar value of a written constitution that it
places in unchanging form limitations upon legislative action, and thus gives
a permanence and stability to popular government which otherwise would
be lacking. At the same time, when ‘a question of fact is debated and debat-
able, and the extent to which a special constitutional limitation goes is af-
fected by the truth in respect to that fact, a widespread and long continued
belief concerning it is worthy of consideration. We take judicial cognizance
of all matters of general knowledge.
It is undoubtedly true, as more than once declared by this court, that the
general right to contract in relation to one’s business is part of the liberty of
the individual, protected by the Fourteenth Amendment to the Federal Con-
stitution; yet it is equally well settled that this liberty is not absolute and ex-
tending to all contracts, and that a State may, without conflicting with the
provisions of the Fourteenth Amendment, restrict in many respects the indi-
vidual’s power of contract. Without stopping to discuss at length the extent
to which a State may act in this respect, we refer to the following cases in
which the question has been considered: Allgeyer v. Louisiana, 165 U.S. 578
[(1897)]; Lochner v. New York.
That woman’s physical structure and the performance of maternal func-
tions place her at a disadvantage in the struggle for subsistence is obvious.
This is especially true when the burdens of motherhood are upon her. Even
when they are not, by abundant testimony of the medical fraternity contin-
uance for a long time on her feet at work, repeating this from day to day,
tends to injurious effects upon the body, and as healthy mothers are essential
to vigorous offspring, the physical well-being of woman becomes an object
of public interest and care in order to preserve the strength and vigor of the
race:
Still again, history discloses the fact that woman has always been de-
pendent upon man... .As minors, though not to the same extent, she has
been looked upon in the courts as needing especial care that her rights may
be preserved. Education was long denied her, and while now the doors of
the school room are opened and her opportunities for acquiring knowledge
are great, yet even with that and the consequent increase of capacity for
business affairs it is still true that in the struggle for subsistence she is not an
equal competitor with her brother. Though limitations upon personal and
contractual rights may be removed by legislation, there is that in her disposi-
tion and habits of life which will operate against a full assertion of those
rights. She will still be where some legislation to protect her seems necessary
to secure a real equality of right. Doubtless there are individual exceptions,
and there are many respects in which she has an advantage over him; but
 B | The Development and Demise of a “Liberty of Contract” | 1049

looking at it from the viewpoint of the effort to maintain an independent

position in life, she is not upon an equality. Differentiated by these matters
from the other sex, she is properly placed in a class by herself, and legislation
designed for her protection may be sustained, even when like legislation is
not necessary for men and could not be sustained. It is impossible to close
one’s eyes to the fact that she still looks to her brother and depends upon
him. ... Many words cannot make this plainer. The two sexes differ in struc-
ture of body, in the functions to be performed by each, in the amount of
physical strength, in the capacity for long-continued labor, particularly when
done standing, the influence of vigorous health upon the future well-being
of the race, the self-reliance which enables one to assert full rights, and in
the capacity to maintain the struggle for subsistence. This difference justifies
a difference in legislation and upholds that which is designed to compensate
for some of the burdens which rest upon her... .
For these reasons, and without questioning in any respect the decision in
Lochner v. New York, we are of the opinion that it cannot be adjudged that the
act in question is in conflict with the Federal Constitution, so far as it re-
spects the work of a female in a laundry, and the judgment of the Supreme
Court of Oregon is
Affirmed.

West Coast Hotel Co. v. Parrish

300 USS. 379, $7 S.CT. 578 (1937)

An employee of the West Coast Hotel Company, Elsie Parrish, sued to

recover the difference between her wage and the minimum wage of
$14.50 per forty-eight-hour week as set by the Industrial Welfare
Committee of Washington State. In 1913, Washington’s legislature
passed legislation to protect the health and welfare of women and mi-
nors by setting a minimum wage. But the trial court denied Parrish’s
claim. When the Washington Supreme Court reversed, attorneys for
West Coast Hotel Company appealed to the Supreme Court, arguing
that the law ran afoul of the Fourteenth Amendment’s due process
clause.
The Court’s decision was five to four, with the majority’s opinion
announced by Chief Justice Hughes. Justice Sutherland dissented and
was joined by Justices Van Devanter, McReynolds, and Butler.

(1 Chief Justice HUGHES delivers the opinion of the Court.

This case presents the question of the constitutional validity of the min-
imum wage law of the state of Washington. .. .
The appellant conducts a hotel. The appellee Elsie Parrish was employed
as a chambermaid and (with her husband) brought this suit to recover the
1050 | Economic RIGHTS AND AMERICAN CAPITALISM

difference between the wages paid her and the minimum wage fixed pur-
suant to the state law. The minimum wage was $14.50 per week of 48 hours.
The appellant challenged the act as repugnant to the due process clause of
the Fourteenth Amendment of the Constitution of the United States. The
Supreme Court of the state, reversing the trial court, sustained the statute
and directed judgment for the plaintiffs. Parrish v. West Coast Hotel Co., 185
Wash. 581, 55 P.(2d) 1083 [(1936)]. The case is here on appeal.
The appellant relies upon the decision of this Court in Adkins v. Chil-
dren’s Hospital, 261 U.S. 525 [(1923)], which held invalid the District of Co-
lumbia Minimum Wage Act (40 Stat. 960) which was attacked under the due
process clause of the Fifth Amendment... .
The recent case of Morehead v. New York ex rel. Tipaldo, 298 U.S. 587
[(1936)], came here on certiorari to the New York court which had held the
New York minimum wage act for women to be invalid. A minority of this
Court thought that the New York statute was distinguishable in a material
feature from that involved in the Adkins Case and that for that and other rea-
sons the New York statute should be sustained. But the Court of Appeals of
New York had said that it found no material difference between the two
statutes and this Court held that the “meaning of the statute” as fixed by the
decision of the state court “must be accepted here as if the meaning had
been specifically expressed in the enactment.” That view led to the affir-
mance by this Court of the judgment in the Morehead Case, as the Court
considered that the only question before it was whether the Adkins Case was
distinguishable and that reconsideration of that decision had not been
sought. ...
We think that the question which was not deemed to be open in the
Morehead Case is open and is necessarily presented here. .. .
The principle which must control our decision is not in doubt. The
constitutional provision invoked is the due process clause of the Fourteenth
Amendment governing the states, as the due process clause invoked in the
Adkins Case governed Congress. In each case the violation alleged by those
attacking minimum wage regulation for women is deprivation of freedom of
contract. What is this freedom? The Constitution does not speak of freedom
of contract. It speaks of liberty and prohibits the deprivation of liberty
without due process of law. In prohibiting that deprivation, the Constitution
does not recognize an absolute and uncontrollable liberty. Liberty in each of
its phases has its history and connotation. But the liberty safe-guarded is lib-
erty in a social organization which requires the protection of law against the
evils which menace the health, safety, morals, and welfare of the people. Lib-
erty under the Constitution is thus necessarily subject to the restraints of due
process, and regulation which is reasonable in relation to its subject and is
adopted in the interests of the community is due process.
This essential limitation of liberty in general governs freedom of con-
tract in particular. More than twenty-five years ago we set forth the applica-
ble principle in these words, after referring to the cases where the liberty
guaranteed by the Fourteenth Amendment had been broadly described. ...
This power under the Constitution to restrict freedom of contract has
had many illustrations. That it may be exercised in the public interest with
respect to contracts between employer and employee is undeniable. Thus
statutes have been sustained limiting employment in underground mines and
 B | The Development and Demise of a “Liberty of Contract” | 1051

smelters to eight hours a day; in requiring redemption in cash of store orders

or other evidences of indebtedness issued in the payment of wages; in for-
bidding the payment of seamen’s wages in advance; in making it unlawful to
contract to pay miners employed at quantity rates upon the basis of screened
coal instead of the weight of the coal as originally produced in the mine; in
prohibiting contracts limiting liability for injuries to employees; in limit-
ing hours of work of employees in manufacturing establishments; and in
maintaining workmen’s compensation laws. In dealing with the relation of
employer and employed, the Legislature has necessarily a wide field of
discretion in order that there may be suitable protection of health and
safety, and that peace and good order may be promoted through regulations
designed to insure wholesome conditions of work and freedom from
oppression. ...
This array of precedents and the principles they applied were thought
by the dissenting Justices in the Adkins Case to demand that the minimum
wage statute be sustained. The validity of the distinction made by the Court
between a minimum wage and a maximum of hours in limiting liberty of
contract was especially challenged. That challenge persists and is without any
satisfactory answer. ...
We think that the views thus expressed are sound and that the decision
in the Adkins Case was a departure from the true application of the princi-
ples governing the regulation by the state of the relation of employer and
employed. ...
There is an additional and compelling consideration which recent eco-
nomic experience has brought into a strong light. The exploitation of a class of
workers who are in an unequal position with respect to bargaining power and
are thus relatively defenseless against the denial of a living wage is not only
detrimental to their health and well being, but casts a direct burden for their
support upon the community. What these workers lose in wages the taxpayers
are called upon to pay. The bare cost of living must be met. We may take judi-
cial notice of the unparalleled demands for relief which arose during the re-
cent period of depression and still continue to an alarming extent despite the
degree of economic recovery which has been achieved. It is unnecessary to
cite official statistics to establish what is of common knowledge through the
length and breadth of the land. While in the instant case no factual brief has
been presented, there is no reason to doubt that the state of Washington has
encountered the same social problem that is present elsewhere. The commu-
nity is not bound to provide what is in effect a subsidy for unconscionable em-
ployers. The community may direct its law-making power to correct the abuse
which springs from their selfish disregard of the public interest. .. .
Our conclusion is that the case of Adkins v. Children’s Hospital, supra,
should be, and it is, overruled. The judgment of the Supreme Court of the
state of Washington is affirmed.
Affirmed.

O Justice SUTHERLAND

Justice VAN DEVANTER, Justice MCREYNOLDS, Justice BUTLER,

and I think the judgment of the court below should be reversed.
It is urged that the question involved should now receive fresh consider-
ation, among other reasons, because of “the economic conditions which
1052 | Economic RiGHTs AND AMERICAN CAPITALISM

have supervened”; but the meaning of the Constitution does not change
with the ebb and flow of economic events. We frequently are told in more
general words that the Constitution must be construed in the light of the
present. If by that it is meant that the Constitution is made up of living
words that apply to every new condition which they include, the statement
is quite true. But to say, if that be intended, that the words of the Constitu-
tion mean today what they did not mean when written—that is, that they do
not apply to a situation now to which they would have applied then—is to
rob that instrument of the essential element which continues it in force as
the people have made it until they, and not their official agents, have made it
otherwise. ...
The judicial function is that of interpretation; it does not include the
power of amendment under the guise of interpretation. To miss the point of
difference between the two is to miss all that the phrase “supreme law of the
land” stands for and to convert what was intended as inescapable and endur-
ing mandates into mere moral reflections.
If the Constitution, intelligently and reasonably construed in the light of
these principles, stands in the way of desirable legislation, the blame must
rest upon that instrument, and not upon the court for enforcing it according
to its terms. The remedy in that situation—and the only true remedy—is to
amend the Constitution. . . .
In the Adkins Case we ... said that while there was no such thing as ab-
solute freedom of contract, but that it was subject to a great variety of re-
straints, nevertheless, freedom of contract was the general rule and restraint
the exception; and that the power to abridge that freedom could only be jus-
tified by the existence of exceptional circumstances. This statement of the
rule has been many times affirmed; and we do not understand that it is ques-
tioned by the present decision.

Lincoln Federal Labor Union v. Northwestern

Iron & Metal Co.
335, US5525, 60°S:CT) 251; (19490)

In 1946, Nebraska’s constitution was amended to provide that

[n]o person shall be denied employment because of membership in

or affiliation with, or resignation or expulsion from a labor organi-
zation or because of refusal to join or affiliate with a labor organi-
zation; nor shall any individual or corporation or association of any
kind enter into any contract, written or oral, to exclude persons
from employment because of membership in or nonmembership in
a labor organization.

Several labor unions challenged the constitutionality of this and other

state right-to-work laws, claiming that they infringed on the First
 B | The Development and Demise of a “Liberty of Contract” | 1053

Amendment freedoms of speech and assembly and the Fourteenth

Amendment’s due process clause. The Nebraska State Supreme Court
rejected their claims and the Lincoln Federal Labor Union appealed to
the Supreme Court of the United States.
The Court’s decision was unanimous, and the opinion was an-
nounced by Justice Black. Justices Frankfurter and Rutledge concurred.

| Justice BLACK delivers the opinion of the Court.

Many cases are cited by appellants in which this Court has said that in
some instances the due process clause protects the liberty of persons to make
contracts. But none of these cases, even those according the broadest consti-
tutional protection to the making of contracts, ever went so far as to indicate
that the due process clause bars a state from prohibiting contracts to engage
in conduct banned bya valid staté law. So here, if the provisions in the state
laws against employer discrimination are valid, it follows that the contract
prohibition also is valid. We therefore turn to the decisive question under the
due process contention, which is: Does the due process clause forbid a state
to pass laws clearly designed to safeguard the opportunity of non-union
members to get and hold jobs, free from discrimination against them because
they are non-union workers?
There was a period in which labor union members who wanted to get
and hold jobs were the victims of widespread employer discrimination prac-
tices. Contracts between employers and their employees were used by em-
ployers to accomplish this anti-union employment discrimination. Before
hiring workers, employers required them to sign agreements stating that the
workers were not and would not become labor union members. Such anti-
union practices were so obnoxious to workers that they gave these required
agreements the name of “yellow dog contracts.” This hostility of workers
also prompted passage of state and federal laws to ban employer discrimina-
tion against union members and to outlaw yellow dog contracts. . . .
The Allgeyer-Lochner-Adair-Coppage constitutional doctrine was for some
years followed by this Court. It was used to strike down laws fixing mini-
mum wages and maximum hours in employment, laws fixing prices, and
laws regulating business activities. . ..
This Court beginning at least as early as 1934, when the Nebbia [v. New
York, 291 U.S. 902 (1931)] case was decided, has steadily rejected the due
process philosophy enunciated in the Adair-Coppage line of cases. In doing so
it has consciously returned closer and closer to the earlier constitutional
principle that states have power to legislate against what are found to be in-
jurious practices in their internal commercial and business affairs, so long as
their laws do not run afoul of some specific federal constitutional prohibi-
tion, or of some valid federal law. Under this constitutional doctrine the due
- process clause is no longer to be so broadly construed that the Congress and
state legislatures are put in a strait jacket when they attempt to suppress busi-
ness and industrial conditions which they regard as offensive to the public
welfare.
Appellants now ask us to return, at least in part, to the due process phi-
losophy that has been deliberately discarded. Claiming that the Federal Con-
stitution itself affords protection for union members against discrimination,
1054 | Economic RIGHTs AND AMERICAN CAPITALISM

they nevertheless assert that the same Constitution forbids a state from pro-
viding the same protection for non-union members. Just as we have held
that the due process clause erects no obstacle to block legislative protection
of union members, we now hold that legislative protection can be afforded
non-union workers.
Affirmed.

C The “Takings Clause” and

Just Compensation

A final source for the Court’s protection of proprietary interests is

the Fifth Amendment’s provision that “private property [shall not]
be taken for public use, without just compensation.” It is also one area
of constitutional law in which the Rehnquist Court moved toward
giving somewhat greater protection for property rights: Nollan v,
California Coastal Commission, 483 U.S. 825 (1987) and THE DEVEL-
OPMENT OF LAW box in this section are illustrative. Also relevant is
Dames & Moore v. Regan, 453 U.S. 654 (1981) (see Vol. 1, Ch. 3).
The takings clause broadly guarantees government the power of
eminent domain—the power to take private property for public pur-
poses—subject to the just compensation of the owners. But what is a
“public purpose”? What constitutes the “taking” of property? And
what amounts to “just” compensation?
The requirement that government put private property to public
use has been rather loosely interpreted. The only limitations appear to
be that government may not take property for the sole purpose of
making money for itself or for a private enterprise. However, govern-
ment may take property and then resell it to private companies for such
purposes as urban renewal, the development of industrial parks, or
shopping centers, and for use by (even privately owned) public utilities.
In Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (excerpted
below), for example, the Burger Court approved a state land reform act.
As a vestige of Hawaiian feudalism, 96 percent of the state was owned
by seventy-two landowners or state and federal governments. In 1967,
Hawaii's legislature authorized the use of the power of eminent do-
main to condemn residential lots and to sell and transfer ownership to
existing tenants on the land. The Court unanimously rejected the con-
tention that this program constituted a taking of private property for
private, not public, purposes.
General benefit to the public, not public ownership, is what mat-
 C | The “Takings Clause” and Just Compensation | 1055

ters, and the Court tends to be highly deferential to legislatures as to

what benefits the public. “Subject to specific constitutional limitations,”
as the Court observed in Berman v. Parker, 348 U.S. 26 (1954), “when
the legislature has spoken, the public interest has been declared in terms
wellnigh conclusive.”
Private property does not have to be physically taken by the
government for an individual to win compensation. However, Loretto v,
Teleprompter Manhattan CATV, 458 U.S. 419 (1982), held that perma-
nent physical occupation of property by the government is per se tak-
ing and First English Evangelical Lutheran Church v. County of Los Angeles,
482 US. 304 (1987), ruled that temporary land-use laws may constitute
a taking of private property.
In the classic case of United States v. Causby, 328 U.S. 258 (1946),
the Court upheld a demand for compensation by a farmer whose land
was adjacent to a military airport. The noise of airplane flights over the
farm rendered it virtually worthless and the Court upheld the farmer’s
claim that the government was using his farmland as an extension of its
runway and had to pay for it.
Not everyone next to an airport or highway, however, may demand
compensation because of the accompanying noise or, for that matter,
inconvenience of government regulations. Instead, for property to be
“taken” in a constitutional sense, an owner must show a nearly total loss
of the use of the property. In Pennsylvania Coal Co. v. Mahon, 260 USS.
393 (1922), Justice Holmes formulated a practical rule, when holding
that “property may be regulated to a certain extent, [but] if regulation
goes too far it will be recognized as a taking.” There is no “brightline
rule,’ but rather, the burden is placed on the property owner of show-
ing a virtually complete loss of the use of his or her property to win
compensation.
In another important ruling in Penn Central Transportation Co. v.
New York, 438 U.S. 104 (1978), the Burger Court affirmed a historic
preservation law prohibiting the owners of Grand Central Terminal
in New York City from building a high-rise office tower above.
Finally, the Court largely avoided controversies over whether a
property owner has received just compensation. In general, just com-
pensation means what, in the absence of the government’s acquisition
of the property, a willing buyer would pay, or the fair market value.
_As the Court observed in Backus v. Fort Street Union Depot Co., 169
U.S. 557 (1898): “All that is essential is that in some appropriate way,
before some properly constituted tribunal, inquiry shall be made as
to the amount of compensation, and when this has been provided there
is that due process of law which is required by the Federal Constitu-
tion.”
 1056 | Economic RIGHTS AND AMERICAN CAPITALISM

The Rehnquist Court signaled renewed interest in, and invited liti-
gation over, takings-clause jurisprudence in its 1987 rulings in Nollan v.
California Coastal Commission, 483 U.S. 825 (1987), and First English
Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987),
as well as revisited challenges to land-use regulations in several other
cases.' In Nollan, Justice Scalia commanded a bare majority for holding
that the just compensation clause was violated by California’s regulations
requiring homeowners of beachfront property to agree to a public ease-
ment across their property as a condition of receiving a building permut.
However, a majority of the Court was unwilling to further extend Nol-
lan’s analysis. In a leading “takings clause” case after Nollan, Lucas v. South
Carolina Coastal Council (1992) (excerpted below), the owner of beach-
front property appealed a decision of the South Carolina Supreme
Court that upheld a regulation barring the rebuilding of houses on the
shoreline. Writing for the majority in Lucas, Justice Scalia held, on the
one hand, that property owners who suffer total economic loss of
the value of their land may have a takings-clause claim. Historically,
the Court recognized takings claims only when the government ac-
tually took physical possession of a property, as in an eminent domain
proceeding. But, in Nollan and Lucas, the Court recognized regulatory
takings requiring the government to pay compensation when its regula-
tions diminish the value of private property. In Lucas, Scalia held that it
is not enough for the government to defend its environmental, land-use,
and zoning regulations as in the “public interest.’ Governments must
also defend their regulations as necessary to avoid a public harm or the
“harmful or noxious use” of private property; thus a property owner
might be denied a permit to run a landfill operation because it would
result in flooding of nearby land. Because the state courts failed to iden-
tify the public nuisances that would justify the building restrictions in
this case, the court remanded Lucas for further consideration.
Justice Scalia’s opinion, on the other hand, limited its takings-clause
analysis to apply only when property owners are totally deprived of the
economic value of their land. As he put it, “When the owner of real
property has been called upon to sacrifice all economically beneficial
uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.” That, however, significantly
limited the Court’s holding because, as dissenting Justice Stevens ob-
served, “A land-owner whose property is diminished in value 95 per-
cent recovers nothing, while an owner whose property is diminished
100 percent recovers the land’s full value.’ Since most environmental
and land-use regulations do not deprive property owners of all eco-
nomic use or value of their property, Justice Scalia’s analysis in Lucas is
severely limited.
 C | The “Takings Clause” and Just Compensation | 1057

Finally, in a major ruling with wide-ranging ramifications for urban

planners and homeowners, bya five-to-four vote the Court upheld the
use of the government’s power of eminent domain to condemn and
take, with just compensation, private property for the purpose of ad-
vancing the economic development of the community. Writing for the
Court in Kelo v. City of New London (excerpted below), Justice Stevens
held that “public use” was not limited to the use of public domain to
build a road or a bridge; or to redistribute land ownership, as in Hawaii
Housing Authority v. Midkiff, but includes “promoting economic devel-
opment,” even if the property was taken and sold for development
by private developers. Justice Stevens emphasized that courts should
be deferential to the decisions of state and local authorities. Justice
Kennedy cast the pivotal fifth vote and filed a concurring opinion, un-
derscoring that courts should still exercise review in such cases in order
to ensure that governments do not use their power of eminent domain
to simply reward or advance the interests of businesses and powerful
private interests. Justice O’Connor filed a dissenting opinion which was
joined by Chief Justice Rehnquist, and Justices Scalia and Thomas
dissented. For further discussion see the INSIDE THE COURT and
THE DEVELOPMENT OF LAW boxes in this section. See also the
Court’s rulings on substantive due process and punitive damages awards
in Vol. 2, Ch. 4 and BMW of North America v. Gore (excerpted there).

NOTE

1. See also Yee v. The City of Escondido, California, 503 U.S. 519 (1992), holding that a
rent-control ordinance did not amount to a takings per se. Writing for the Court,
Justice O’Connor distinguished two kinds of takings-clause cases: (1) those in which
the government has actually physically taken private property for public use and
(2) those challenging regulations of the use of private property. The former generally
requires compensation of the owners and “courts to apply a clear rule,’ whereas the
latter requires courts to assess the purposes and economic effects of the regulations.
And O’Connor reaffirmed that “‘[s]tates have broad power to regulate housing condi-
tions in general and the landlord-tenant relationship in particular.” The Court also
rejected a takings-clause challenge in General Motors v. Romein, 503 U.S. 181 (1992).

SELECTED BIBLIOGRAPHY

Ackerman, Bruce. Private Property and the Constitution. New Haven, CT: Yale Univer-
sity Press, 1977.
Ely, James W. The Guardian of Every Other Right:A Constitutional History of Property
Rights. New York: Oxford University Press, 1992.
Epstein, Richard. Takings: Private Property and the Power of Eminent Domain. Chicago:
University of Chicago Press, 1985.
 1058 | Economic RIGHTS AND AMERICAN CAPITALISM

Fischel, William. Regulatory Takings: Law, Economics, and Politics. Cambridge, MA: Har-
vard University Press, 1995.
Levy, Leonard. A License to Steal: Forfeiture of Property. Chapel Hill: University of
North Carolina Press, 1996. :
Siegan, Bernard. Property and Freedom: The Constitution, The Courts, and Land-Use Reg-
ulation. New Brunswick, NJ: Transaction Books, 1998.

= INSIDE THE COURT

Hawaii Housing Authority v. Midkiff (1984) and

Kelo v. City of New London, Connecticut (2005)

A major controversy erupted over the Court’s ruling in Kelo v, City of

New London, Connecticut (2005) (excerpted in this chapter), holding that pri-
vate property may be taken by the government, with just compensation, in
order to promote economic development, even if the property is then
turned over for development by private businesses. Some states and local
governments responded with constitutional amendments and ordinances
prohibiting such takings whereas other cities moved to condemn property in
order to promote economic revitalization. Yet, Hawaii Housing Authority v.
Midkiff (1984) (excerpted in this chapter) upheld a state land reform that
transferred ownership of law from feudal owners to tenants. While Kelo was
widely criticized, Midkiff was praised for promoting equality and the redistri-
bution of the wealth, even though both upheld the government’s taking of
private property for “public use” and selling it to private developers and
owners.
Ironically, Justice O’Connor delivered the opinion for the Court in Mid-
kiff, but issued a stinging dissent in Kelo. Moreover, Justice O’Connor circu-
lated a draft opinion in Midkiff that swept very broadly in justifying the
government’s taking of property for public use for virtually any social pur-
pose. In response, Justice Lewis F Powell suggested some modifying language
to narrow the opinion. On May 18, 1984, Justice Powell sent the following
memo to Justice O’Connor:*
Dear Sandra:
This refers to our brief conversation yesterday. I should have
been in touch with you sooner. My suggested changes, set forth be-
low, do not affect your basic analysis. I have been concerned by the
sweep of language that can be read as saying that any “social” pur-
pose may justify the taking of private property. The language to this
effect is primarily on page 14.
CE
 C | The “Takings Clause” and Just Compensation | 1059
a

I suggest the following as a substitute for the next to the last

sentence in the paragraph on p. 14 that carries over from p. 13:
“As the unique way titles were held in Hawaii skewed the
land market, exercise of the power of eminent domain
was justified. The Act advances its purposes without the
state taking actual possession of the land. In such cases,”
The paragraph that begins on p. 14 also can be read broadly to
the effect that “social problems” may be addressed by taking private
property pursuant to “social legislation”. I suggest revisions of some
of the language of this paragraph, beginning with the second sen-
tence, along the following lines:
“Judicial deference is required here because, in our system
of government, legislatures are better able to assess what
public purposes should be advanced by an exercise of the
taking power. State legislatures are as capable as Congress
of making such determinations within their respective
spheres of authority. See Berman v. Parker, 348 U.S. [26
(1954)], at 32. Thus, if there are substantial reasons for an
exercise of the taking power, courts must . . .”
The first full sentence on page 13 states that “redistribution of-
fered simply to reduce the economic and social evils . . . is a rational
exercise of the power of eminent domain.” Again, I am troubled by
the emphasis without limits on “economic and social evils”. In this
case we are concerned only with a very specific and unique evil. I
would suggest omission of the phrase “reduce the economic evils”,
replacing it with “correct deficiencies in the market”.
This is a unique case, and I think we may regret language that
could encourage Congress and state legislatures to justify taking
private property for any perceived social evil.
I am not sending this letter to the Conference, in the hope that
changes along these lines will be acceptable to you. If not, I proba-
bly will write briefly.
I do appreciate your willingness to consider these.
Sincerely,
[LFP]
Justice Powell’s suggested changes were incorporated by Justice O’Con-
nor, though her opinion still swept broadly on the government’s power of
eminent domain. See and compare her opinion (for a unanimous Court,
with Justice Marshall not participating) in Midkiff, along with her dissenting
opinion (joined by Chief Justice Rehnquist and Justices Scalia and Thomas)
in Kelo, and consider how to define “public use,’ for what purposes, and
whether courts or state and local governments should determine the justifi-
cation for the government’s taking of private property.
*Source: Justice’ Lewis F Powell, Jr., Papers, Washington & Lee University School of
Law, Lexington, Virginia.
1060 | Economic RIGHTS AND AMERICAN CAPITALISM

Hawaii Housing Authority v. Midkiff

467 U.S. 229, 104 S.CT. 2321 (1984)

The Hawaiian islands were originally settled by Polynesian immigrants

from the western Pacific. These settlers developed an economy around
a feudal land-tenure system in which one island high chief controlled
the land and assigned it for development to subchiefs. Beginning in
the early 1800s, Hawaiian leaders and American settlers attempted to
divide the lands of the kingdom among the crown, the chiefs, and the
common people. These efforts proved largely unsuccessful, however.
Finally, in the mid-1960s the Hawaii legislature held hearings and dis-
covered that while the state and federal governments owned almost 49
percent of the state’s land, another 47 percent was owned by 72 land-
holders. The legislature concluded that such concentrated land owner-
ship was responsible for skewing the state’s land prices and injuring the
public tranquillity and welfare. Accordingly, the legislature enacted
legislation to compel the large landowners to break up their estates.
The Land Reform Act of 1967 created a mechanism for condemning
residential tracts and for transferring ownership of condemned land
to lessees. Under the act’s condemnation scheme, tenants living on
single-family lots within development tracts at least five acres in size
were entitled to ask the Hawaii Housing Authority (HHA) to con-
demn the property on which they lived. When 25 eligible tenants, or
tenants on half of the lots in the tract, whichever was less, filed appro-
priate applications, the act authorized the HHA to hold a public hear-
ing to determine whether the acquisition of the land would
“effectuate the public purposes” of the law. If the HHA found that
these purposes would be served, it was authorized to acquire the land,
at prices set either by a condemnation trial or by negotiations with the
landowners.
After HHA held a public hearing on the proposed acquisition of
appellees’ lands and found that such acquisition would effectuate the
act’s public purposes, it directed appellees to negotiate with certain
lessees concerning the sale of the designated properties. When these
negotiations failed, HHA ordered appellees to submit to compulsory
arbitration as provided by the act. Rather than comply with this order,
appellees filed suit in federal district court, asking that the act be de-
clared unconstitutional. That court held the act to be constitutional un-
der the Public Use Clause of the Fifth Amendment. But the Court of
Appeals for the Ninth Circuit reversed, holding that the law violated
the Fifth Amendment. The Hawaiian Housing Authority appealed and
the Supreme Court granted review and reversed the appellate court.
 C | The “Takings Clause” and Just Compensation | 1061

The Court’s decision, with Justice Marshall not participating, was

unanimous and delivered by Justice O’Connor.

Ll Justice O'CONNOR delivered the opinion of the Court.

The Fifth Amendment of the United States Constitution provides, in
pertinent part, that “private property [shall not] be taken for public use,
without just compensation.” These cases present the question whether the
Public Use Clause of that Amendment, made applicable to the States
through the Fourteenth Amendment, prohibits the State of Hawaii from tak-
ing, with just compensation, title in real property from lessors and trans-
ferring it to lessees in order to reduce the concentration of ownership of
fees simple in the State. We conclude that it does not... .
The starting point for our analysis of the Act’s constitutionality is the
Court’s decision in Berman v. Parker, 348 U.S. 26 (1954). In Berman, the Court
held constitutional the District of Columbia Redevelopment Act of 1945.
That Act provided both for the comprehensive use of the eminent domain
power to redevelop slum areas and for the possible sale or lease of the con-
demned lands to private interests. In discussing whether the takings author-
ized by that Act were for a “public use,” the Court stated:

“We deal, in other words, with what traditionally has been known as
the police power. An attempt to define its reach or trace its outer lim-
its is fruitless, for each case must turn on its own facts. The definition
is essentially the product of legislative determinations addressed to
the purposes of government, purposes neither abstractly nor histori-
cally capable of complete definition. Subject to specific constitutional
limitations, when the legislature has spoken, the public interest has
been declared in terms well-nigh conclusive. In such cases the legisla-
ture, not the judiciary, is the main guardian of the public needs to be
served by social legislation, whether it be Congress legislating con-
cerning the District of Columbia . . . or the States legislating con-
cerning local affairs... .This principle admits of no exception merely
because the power of eminent domain is involved. . ..”

The Court explicitly recognized the breadth of the principle it was an-
nouncing, noting:

“Once the object is within the authority of Congress, the right to re-
alize it through the exercise of eminent domain is clear. For the power
of eminent domain is merely the means to the end... . Once the ob-
ject is within the authority of Congress, the means by which it will be
attained is also for Congress to determine. Here one of the means
chosen is the use of private enterprise for redevelopment of the area.
Appellants argue that this makes the project a taking from one
businessman for the benefit of another businessman. But the means of
executing the project are for Congress and Congress alone to deter-
mineyonce the public purpose has been established.”

The “public use” requirement is thus coterminous with the scope of a

sovereign’s police powers. There is, of course, a role for courts to play in re-
1062 | Economic RicHTs AND AMERICAN CAPITALISM

viewing a legislature’s judgment of what constitutes a public use, even when

the eminent domain power is equated with the police power. But the Court
in Berman made clear that it is “an extremely narrow” one. The Court in
Berman cited with approval the Court’s decision in Old Dominion Co. v,
United States, 269 U.S. 55 (1925), which held that deference to the legisla-
ture’s “public use” determination is required “until it is shown to involve an
impossibility.’ . . .To be sure, the Court’s cases have repeatedly stated that
“one person’s property may not be taken for the benefit of another private
person without a justifying public purpose, even though compensation be
paid.” Thompson v. Consolidated Gas Corp., 300 U.S. 55 (1937). Thus, in Mis-
souri Pacific R. Co. v. Nebraska, 164 U.S. 403 (1896), where the “order in ques-
tion was not, and was not claimed to be, ...a taking of private property for
a public use under the right of eminent domain,” the Court invalidated a
compensated taking of property for lack of a justifying public purpose. But
where the exercise of the eminent’domain power is rationally related to a
conceivable public purpose, the Court has never held a compensated taking
to be proscribed by the Public Use Clause. On this basis, we have no trouble
concluding that the Hawaii Act is constitutional. The people of Hawaii have
attempted, much as the settlers of the original 13 Colonies did, to reduce the
perceived social and economic evils of a land oligopoly traceable to their
monarchs. The land oligopoly has, according to the Hawaii Legislature, cre-
ated artificial deterrents to the normal functioning of the State’s residential
land market and forced thousands of individual homeowners to lease, rather
than buy, the land underneath their homes. Regulating oligopoly and the
evils associated with it is a classic exercise of a State’s police powers.
We can-
not disapprove of Hawaii’s exercise of this power... .
The State of Hawaii has never denied that the Constitution forbids even
a compensated taking of property when executed for no reason other than to
confer a private benefit on a particular private party. A purely private taking
could not withstand the scrutiny of the public use requirement; it would
serve no legitimate purpose of government and would thus be void. But no
purely private taking is involved in these cases. The Hawaii Legislature en-
acted its Land Reform Act not to benefit a particular class of identifiable in-
dividuals but to attack certain perceived evils of concentrated property
ownership in Hawaii—a legitimate public purpose. Use of the condemnation
power to achieve this purpose is not irrational. Since we assume for purposes
of these appeals that the weighty demand of just compensation has been met,
the requirements of the Fifth and Fourteenth Amendments have been satis-
fied. Accordingly, we reverse the judgment of the Court of Appeals, and re-
mand these cases for further proceedings in conformity with this opinion.

Lucas v. South Carolina Coastal Council

505 U.S. 1003, 112 S. CT. 2886 (1992)

In 1986, petitioner David H. Lucas paid $975,000 for two residential

lots on the Isle of Palms in Charleston County, South Carolina, on
 C | The “Takings Clause” and Just Compensation | 1063
e
ee e ee e
which he intended to build single-family homes. In 1988, however, the
South Carolina Legislature enacted the Beachfront Management Act,
which had the effect of barring Lucas from building on the land. A
state trial court found that this prohibition rendered Lucas’s par-
cels “valueless,” for which he was entitled to just compensation. On ap-
peal, the state supreme court reversed and Lucas appealed to the U.S.
Supreme Court.
The state supreme court’s decision was reversed by a vote of six
to three. Justice Scalia delivered the opinion for the Court. Justice Ken-
nedy filed a concurring opinion. Justices Blackmun and Stevens filed
separate dissenting opinions, and Justice Souter filed a statement indicat-
ing that the case should have been dismissed as improvidently granted.

1 Justice SCALIA delivered the opinion of the Court.

Prior to Justice HOLMES’s exposition in Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393 (1922), it was generally thought that the Takings Clause
reached only a “direct appropriation” of property, Legal Tender Cases, 79 U.S.
(12 Wall.) 457 (1871), or the functional equivalent of a “practical ouster of
[the owner’s] possession,” Transportation Co. v. Chicago, 99 U.S. 635 (1879).
Justice HOLMES recognized in Mahon, however, that if the protection
against physical appropriations of private property was to be meaningfully
enforced, the government’s power to redefine the range of interests included
in the ownership of property was necessarily constrained by constitutional
limits. If, instead, the uses of private property were subject to unbridled, un-
compensated qualification under the police power, “the natural tendency of
human nature [would be] to extend the qualification more and more until at
last private property disappeared.” These considerations gave birth in that
case to the oft-cited maxim that, “while property may be regulated to a cer-
tain extent, if regulation goes too far it will be recognized as a.taking.”
Nevertheless, our decision in Mahon offered little insight into when, and
under what circumstances, a given regulation would be seen as going “too
far” for purposes of the Fifth Amendment. In 70-odd years of succeeding
“regulatory takings” jurisprudence, we have generally eschewed any “ ‘set
formula’ ” for determining how far is too far, preferring to “engage in .. . es-
sentially ad hoc, factual inquiries.” Penn Central Transportation Co. v. New York
City, 438 U.S. 104 (1978). We have, however, described at least two discrete
categories of regulatory action as compensable without case-specific inquiry
into the public interest advanced in support of the restraint. The first en-
compasses regulations that compel the property owner to suffer a physical
“invasion” of his property. In general (at least with regard to permanent in-
vasions), no matter how minute the intrusion, and no matter how weighty
the public purpose behind it, we have required compensation. For example,
in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), we de-
termined that New York’s law requiring landlords to allow television cable
companies to emplace cable facilities in their apartment buildings constituted
a taking, even though the facilities occupied at most only 1% cubic feet of
the landlord’s property.
1064 | Economic RiGHTS AND AMERICAN CAPITALISM

The second situation in which we have found categorical treatment

appropriate is where regulation denies all economically beneficial or pro-
ductive use of land. As we have said on numerous occasions, the Fifth
Amendment is violated when land-use regulation “does not substantially ad-
vance legitimate state interests or denies an owner economically viable use of
his land.”
We have never set forth the justification for this rule. Perhaps it is sim-
ply, as Justice BRENNAN suggested, that total deprivation of beneficial use
is, from the landowner’s point of view, the equivalent of a physical appropri-
ation. See San Diego Gas & Electric Co. v, San Diego, 450 U.S. [627] (1981).
..We think ... that there are good reasons for our frequently expressed be-
lief that when the owner of real property has been called upon to sacrifice
all economically beneficial uses in the name of the common good, that is, to
leave his property economically idle, he has suffered a taking.
The trial court found Lucas’s two beachfront lots to have been rendered
valueless by respondent’s enforcement of the coastal-zone construction ban.
Under Lucas’s theory of the case, which rested upon our “no economically
viable use” statements, that finding entitled him to compensation. . . . The
South Carolina Supreme Court, however, thought otherwise. In its view, the
Beachfront Management Act was no ordinary enactment, but involved an
exercise of South Carolina’s “police powers” to mitigate the harm to the
public interest that petitioner’s use of his land might occasion. . . . In the
court’s view, these concessions brought petitioner’s challenge within a long
line of this Court’s cases sustaining against Due Process and Takings Clause
challenges the State’s use of its “police powers” to enjoin a property owner
from activities akin to public nuisances. See Mugler v. Kansas, 123 U.S. 623
(1887) (law prohibiting manufacture of alcoholic beverages).
For a number of reasons, however, we think the South Carolina
Supreme Court was too quick to conclude that that principle decides the
present case. The “harmful or noxious uses” principle was the Court’s early
attempt to describe in theoretical terms why government may, consistent
with the Takings Clause, affect property values by regulation without in-
curring an obligation to compensate—a reality we nowadays acknowledge
explicitly with respect to the full scope of the State’s police power... .
“Harmful or noxious use” analysis was, in other words, simply the progenitor
of our more contemporary statements that “land-use regulation does not ef-
fect a taking if it ‘substantially advances legitimate state interests’... .”
The transition from our early focus on control of “noxious” uses to our
contemporary understanding of the broad realm within which government
may regulate without compensation was an easy one, since the distinction
between “harm-preventing” and “benefit-conferring” regulation is often in
the eye of the beholder. It is quite possible, for example, to describe in either
fashion the ecological, economic, and esthetic concerns that inspired the
South Carolina Legislature in the present case. One could say that imposing
a servitude on Lucas’s land is necessary in order to prevent his use of it from
“harming” South Carolina’s ecological resources; or, instead, in order to
achieve the “benefits” of an ecological preserve. Whether one or the other of
the competing characterizations will come to one’s lips in a particular case
depends primarily upon one’s evaluation of the worth of competing uses of
real estate. A given restraint will be seen as mitigating “harm” to the adja-
 C | The “Takings Clause” and Just Compensation | 1065

cent parcels or securing a “benefit” for them, depending upon the observer’s
evaluation of the relative importance of the use that the restraint favors.
Whether Lucas’s construction of single-family residences on his parcels
should be described as bringing “harm” to South Carolina’s adjacent ecolog-
ical resources thus depends principally upon whether the describer believes
that the State’s use interest in nurturing those resources is so important that
any competing adjacent use must yield.
When it is understood that “prevention of harmful use” was merely
our early formulation of the police power justification necessary to sus-
tain (without compensation) any regulatory diminution in value; and that
the distinction between regulation that “prevents harmful use” and that
which “confers benefits” is difficult, if not impossible, to discern on an
objective, value-free basis; it becomes self-evident that noxious-use logic
cannot serve as a touchstone to distinguish regulatory “takings’—which
require compensation—from regulatory deprivations that do not require
compensation. ... f
Where the State seeks to sustain regulation that deprives land of all eco-
nomically beneficial use, we think it may resist compensation only if the log-
ically antecedent inquiry into the nature of the owner’s estate shows that the
proscribed use interests were not part of his title to begin with. This accords,
we think, with our “takings” jurisprudence, which has traditionally been
guided by the understandings of our citizens regarding the content of, and
the State’s power over, the “bundle of rights” that they acquire when they
obtain title to property. It seems to us that the property owner necessarily
expects the uses of his property to be restricted, from time to time, by vari-
ous measures newly enacted by the State in legitimate exercise of its police
powers; “as long recognized, some values are enjoyed under an implied limi-
tation and must yield to the police power.” Pennsylvania Coal Co. v. Mahon.
And in the case of personal property, by reason of the State’s traditionally
high degree of control over commercial dealings, he ought to be aware of
the possibility that new regulation might even render his property economi-
cally worthless (at least if the property’s only economically productive use is
sale or manufacture for sale). In the case of land, however, we think the no-
tion pressed by the Council that title is somehow held subject to the “im-
plied limitation” that the State may subsequently eliminate all economically
valuable use is inconsistent with the historical compact recorded in the Tak-
ings Clause that has become part of our constitutional culture.
Where “permanent physical occupation” of land is concerned, we have
refused to allow the government to decree it anew (without compensation),
no matter how weighty the asserted “public interests” involved, Loretto v.
Teleprompter Manhattan CATV Corp—though we assuredly would permit the
government to assert a permanent easement that was a pre-existing lim-
itation upon the landowner’s title. We believe similar treatment must be
accorded confiscatory regulations, i.e., regulations that prohibit all econom-
‘ically beneficial use of land: Any limitation so severe cannot be newly legis-
lated or decreed (without compensation), but must inhere in the title itself,
in the restrictions that background principles of the State’s law of property
and nuisance already place upon land ownership. A law or decree with such
an effect must, in other words, do no more than duplicate the result that
could have been achieved in the courts—by adjacent landowners (or other
 1066 | Economic RicHTs AND AMERICAN CAPITALISM

uniquely affected persons) under the State’s law of private nuisance, or by

the State under its complementary power to abate nuisances that affect the
public generally, or otherwise.
On this analysis, the owner of a lakebed, for example, would not be en-
titled to compensation when he is denied the requisite permit to engage in a
landfilling operation that would have the effect of flooding others’ land... .
Such regulatory action may well have the effect of eliminating the land’s
only economically productive use, but it does not proscribe a productive use
that was previously permissible under relevant property and nuisance princi-
ples. The use of these properties for what are now expressly prohibited pur-
poses was always unlawful, and (subject to other constitutional limitations) it
was open to the State at any point to make the implication of those back-
ground principles of nuisance and property law explicit. In light of our
traditional resort to “existing rules or,understandings that stem from an inde-
pendent source such as state law” to define the range of interests that qualify
for protection as “property” under the Fifth and Fourteenth Amendments,
this recognition that the Takings Clause does not require compensation
when an owner is barred from putting land to a use that is proscribed by
those “existing rules or understandings” is surely unexceptional. When, how-
ever, a regulation that declares “off-limits” all economically productive or
beneficial uses of land goes beyond what the relevant background principles
would dictate, compensation must be paid to sustain it.
The “total taking” inquiry we require today will ordinarily entail (as the
application of state nuisance law ordinarily entails) analysis of, among other
things, the degree of harm to public lands and resources, or adjacent private
property, posed by the claimant’s proposed activities, the social value of the
claimant’s activities and their suitability to the locality in question, and the rel-
ative ease with which the alleged harm can be avoided through measures
taken by the claimant and the government (or adjacent private landowners)
alike. The fact that a particular use has long been engaged in by similarly situ-
ated owners ordinarily imports a lack of any common-law prohibition
(though changed circumstances or new knowledge may make what was pre-
viously permissible no longer so). So also does the fact that other landowners,
similarly situated, are permitted to continue the use denied to the claimant.
It seems unlikely that common-law principles would have prevented the
erection of any habitable or productive improvements on petitioner’s land;
they rarely support prohibition of the “essential use” of land. The question,
however, is one of state law to be dealt with on remand. We emphasize that
to win its case South Carolina must do more than proffer the legislature’s
declaration that the uses Lucas desires are inconsistent with the public inter-
est, or the conclusory assertion that they violate a common-law maxim. . .
As we have said, a “State, by ipse dixit, may not transform private property
into public property without compensation. .. 2’ Webb’s Fabulous Pharmacies,
Inc. v. Beckwith, 449 U.S. 155 (1980). Instead, as it would be required to do if
it sought to restrain Lucas in a common-law action for public nuisance,
South Carolina must identify background principles of nuisance and prop-
erty law that prohibit the uses he now intends in the circumstances in which
the property is presently found. Only on this showing can the State fairly
claim that, in proscribing all such beneficial uses, the Beachfront Manage-
ment Actiis taking nothing.
 C | The “Takings Clause” and Just Compensation | 1067

The judgment is reversed, and the case is remanded for proceedings not
inconsistent with this opinion.

Justice BLACKMUN, dissenting.

Today the Court launches a missile to kill a mouse.
The State of South Carolina prohibited petitioner Lucas from building
a permanent structure on his property from 1988 to 1990. Relying on an
unreviewed (and implausible) state trial court finding that this restriction left
Lucas’ property valueless, this Court granted review to determine whether
compensation must be paid in cases where the State prohibits all economic
use of real estate. According to the Court, such an occasion never has arisen
in any of our prior cases, and the Court imagines that it will arise “relatively
rarely” or only in “extraordinary circumstances.” Almost certainly it did not
happen in this case. ;
Nonetheless, the Court presses on to decide the issue, and as it does, it
ignores its jurisdictional limits, remakes its traditional rules of review, and
creates simultaneously a new categorical rule and an exception (neither of
which is rooted in our prior case law, common law, or common sense). I
protest not only the Court’s decision, but each step taken to reach it. More
fundamentally, I question the Court’s wisdom in issuing sweeping new rules
to decide such a narrow case. [T]he Court could have reached the result it
wanted without inflicting this damage upon our Takings Clause juris-
prudence...

Justice STEVENS, dissenting.

In addition to lacking support in past decisions, the Court’s new rule is
wholly arbitrary.A landowner whose property is diminished in value 95% re-
covers nothing, while an owner whose property is diminished 100% recovers
the land’s full value. The case at hand illustrates this arbitrariness well. The
Beachfront Management Act not only prohibited the building of new
dwellings in certain areas, it also prohibited the rebuilding of houses that
were “destroyed beyond repair by natural causes or by fire.’ Thus, if the
homes adjacent to Lucas’ lot were destroyed by a hurricane one day after the
Act took effect, the owners would not be able to rebuild, nor would they be
assured recovery. Under the Court’s categorical approach, Lucas (who has
lost the opportunity to build) recovers, while his neighbors (who have lost
both the opportunity to build and their homes) do not recover. The arbi-
trariness of such arule is palpable.
Moreover, because of the elastic nature of property rights, the Court’s
new rule will also prove unsound in practice. In response to the rule, courts
may define “property” broadly and only rarely find regulations to effect total
takings. This is the approach the Court itself adopts in its revisionist reading
‘of venerable precedents. We are told that—notwithstanding the Court’s find-
ings to the contrary in each case—the brewery in Mugler—could be put to
“other uses” and that, therefore, those cases did not involve total regulatory
takings. . ».
Finally, the Court’s justification for its new categorical rule is remarkably
thin. The Court mentions in passing three arguments in support of its rule;
1068 | Economic RicHTs AND AMERICAN CAPITALISM

none is convincing. First, the Court suggests that “total deprivation of feasible
use is, from the landowner’s point of view, the equivalent of a physical appro-
priation.” This argument proves too much. From the “landowner’s point of
view,’ a regulation that diminishes a lot’s value by 50% is as well “the equiva-
lent” of the condemnation of half of thelot. Yet, it is well established that a
50% diminution in value does not by itself constitute a taking. Thus, the
landowner’s perception of the regulation cannot justify the Court’s new rule.
Second, the Court emphasizes that because total takings are “relatively
rare” its new rule will not adversely affect the government’s ability to “go
on.’ This argument proves too little. Certainly it is true that defining a small
class of regulations that are per se takings will not greatly hinder important
governmental functions—but this is true of any small class of regulations.
The Court’s suggestion only begs the question of why regulations of this
particular class should always be found to effect takings... .
In short, the Court’s new rule is unsupported by prior decisions, arbi-
trary and unsound in practice, and theoretically unjustified. In my opinion, a
categorical rule as important as the one established by the Court today
should be supported by more history or more reason than has yet been pro-
vided. ...

Kelo v. City of New London, Connecticut

545 U.S. 469, 125 S.CT. 2655 (2005)

The city of New London is at the junction of the Thames River and
the Long Island Sound in southeastern Connecticut. Decades of eco-
nomic decline led the state in 1990 to designate the city a “distressed
municipality.” In 1996, the federal government closed the Naval Un-
dersea Warfare Center, which had been located in the Fort Trumbull
area of the city and had employed over 1,500 people. In 1998, the city’s
unemployment rate was nearly double that of the state, and its popula-
tion of just under 24,000 residents was at its lowest since 1920. These
conditions prompted state and local officials to target New London,
and particularly its Fort Trumbull area, for economic revitalization.
The
New London Development Corporation (NLDC), a private nonprofit
entity, was authorized to assist the city in planning economic develop-
ment. In January 1998, Connecticut approved a $5.35 million bond is-
sue to support the NLDC’s planning activities and a $10 million bond
issue for the creation of a Fort Trumbull State Park. In February, the
pharmaceutical company Pfizer announced that it would build a $300
million research facility in the Fort Trumbull area, and the NLDC
hoped that that would draw new business to the area. The Fort Trum-
bull area is on a peninsula that juts into the Thames River and includes
approximately 115 privately owned properties, as well as the thirty-two
 C | The “Takings Clause” and Just Compensation | 1069

acres of land formerly occupied by the naval facility. The NLDC’s de-
velopment plan called for the creation of a waterfront conference hotel
at the center of a “small urban village,” including restaurants and stores,
as well as a pedestrian “riverwalk” that would continue down the coast,
along with a new U.S. Coast Guard Museum, a renovated marina, and
research and development office space. The NLDC’s development plan
aimed to capitalize on the arrival of the Pfizer facility and the new
commerce it would attract. In addition to creating jobs and generating
tax revenue, the plan sought to create recreational opportunities on the
waterfront and in the park. The city council approved the plan in Janu-
ary 2000 and designated the NLDC its development agent. The city
council also authorized the NLDC to purchase property or to acquire
property by exercising eminent domain in the city’s name. The NLDC
successfully negotiated the purchase of most of the real estate in the
ninety-acre area, but its negotiations with some homeowners failed and
the NLDC initiated the condemnation proceedings against them.
Susette Kelo lived in the Fort Trumbull area and had made exten-
sive improvements to her well-maintained house, which overlooks the
Thames River. In December 2000, Kelo and a few other homeowners
of condemned property sued New London, claiming that the taking of
their properties, even with just compensation, violated the “public use”
restriction in the Fifth Amendment, because their properties would not
be used for a public purpose, like building a road, but instead sold to
private parties for development—development that the city claimed
would economically benefit the community.A trial court granted a re-
straining order prohibiting New London’s taking of some of the prop-
erties, but on appeal the state supreme court ruled that the city could
take all of the properties. Kelo appealed that decision and the Supreme
Court granted review.
The state supreme court’s decision was affirmed by a five-to-four
vote. Justice Stevens delivered the opinion of the Court. Justice
Kennedy filed a concurring opinion. Justice O’Connor, joined by
Chief Justice Rehnquist and Justices Scalia and Thomas, dissented. Jus-
tice Thomas also filed a dissenting opinion.

“1 Justice STEVENS delivered the opinion of the Court.

We granted certiorari to determine whether a city’s decision to take
property for the purpose of economic development satisfies the “public use”
requirement of the Fifth Amendment. Two polar propositions are perfectly
clear. On the one hand, it has long been accepted that the sovereign may not
take the property of A for the sole purpose of transferring it to another pri-
vate party B, even though A is paid just compensation. On the other hand, it
is equally clear that a State may transfer property from one private party to
1070 | Economic RiGHTS AND AMERICAN CAPITALISM

another if future “use by the public” is the purpose of the taking; the con-
demnation of land for a railroad with common-carrier duties is a familiar
example. Neither of these propositions, however, determines the disposition
of this case.
As for the first proposition, the City would no doubt be forbidden from
taking petitioners’ land for the purpose of conferring a private benefit on a
particular private party. See [Hawaii Housing Authority v.| Midkiff, 467 U.S.
[229 (1984)] (“A purely private taking could not withstand the scrutiny of
the public use requirement; it would serve no legitimate purpose of govern-
ment and would thus be void”). Nor would the City be allowed to take
property under the mere pretext of a public purpose, when its actual pur-
pose was to bestow a private benefit. The takings before us, however, would
be executed pursuant to a “carefully considered” development plan. The trial
judge and all the members of the Supreme Court of Connecticut agreed
that there was no evidence of an illegitimate purpose in this case. Therefore,
as was true of the statute challenged in Midkiff, the City’s development plan
was not adopted “to benefit a particular class of identifiable individuals.”
On the other hand, this is not a case in which the City is planning to
open the condemned land—at least not in its entirety—to use by the general
public. Nor will the private lessees of the land in any sense be required to
operate like common carriers, making their services available to all comers.
But although such a projected use would be sufficient to satisfy the public
use requirement, this “Court long ago rejected any literal requirement that
condemned property be put into use for the general public.” Indeed, while
many state courts in the mid-19th century endorsed “use by the public” as
the proper definition of public use, that narrow view steadily eroded over
time. Not only was the “use by the public” test difficult to administer (e.g.,
what proportion of the public need have access to the property? at what
price?), but it proved to be impractical given the diverse and always evolving
needs of society. Accordingly, when this Court began applying the Fifth
Amendment to the States at the close of the 19th century, it embraced the
broader and more natural interpretation of public use as “public purpose.”
Thus, in a case upholding a mining company’s use of an aerial bucket line to
transport ore Over property it did not own, Justice Holmes’ opinion for the
Court stressed “the inadequacy of use by the general public as a universal
test.” Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527 (1906). We have
repeatedly and consistently rejected that narrow test ever since.
The disposition of this case therefore turns on the question whether the
City’s development plan serves a “public purpose.” Without exception, our
cases have defined that concept broadly, reflecting our longstanding policy of
deference to legislative judgments in this field.
In Berman v. Parker, 348 U.S. 26 (1954), this Court upheld a redevelop-
ment plan targeting a blighted area of Washington, D.C., in which most of
the housing for the area’s 5,000 inhabitants was beyond repair. Under the
plan, the area would be condemned and part of it utilized for the construc-
tion of streets, schools, and other public facilities. The remainder of the land
would be leased or sold to private parties for the purpose of redevelopment,
including the construction of low-cost housing.
The owner of a department store located in the area challenged the
condemmnation, pointing out that his store was not itself blighted and arguing
 C | The “Takings Clause” and Just Compensation | 1071

that the creation of a “better balanced, more attractive community” was not
a valid public use. Writing for a unanimous Court, Justice DOUGLAS re-
fused to evaluate this claim in isolation, deferring instead to the legislative
and agency judgment that the area “must be planned as a whole” for the plan
to be successful. The Court explained that “community redevelopment pro-
grams need not, by force of the Constitution, be on a piecemeal basis—lot
by lot, building by building.’ The public use underlying the taking was un-
equivocally affirmed: ‘*We do not sit to determine whether a particular hous-
ing project is or is not desirable. The concept of the public welfare is broad
and inclusive. ...The values it represents are spiritual as well as. physical, aes-
thetic as well as monetary. It is within the power of the legislature to deter-
mine that the community should be beautiful as well as healthy, spacious as
well as clean, well-balanced as well as carefully patrolled. In the present case,
the Congress and its authorized agencies have made determinations that take
into account a wide variety of values. It is not for us to reappraise them. If
those who govern the District of Columbia decide that the Nation’s Capital
should be beautiful as well as sanitary, there is nothing in the Fifth Amend-
ment that stands in the way.”
In Hawaii Housing Authority v. Midkiff, the Court considered a Hawaii
statute whereby fee title was taken from lessors and transferred to lessees (for
just compensation) in order to reduce the concentration of land ownership.
We unanimously upheld the statute and rejected the Ninth Circuit’s view
that it was “a naked attempt on the part of the state of Hawaii to take the
property of A and transfer it to B solely for B’s private use and benefit.”
Reaffirming Berman’s deferential approach to legislative judgments in this
field, we concluded that the State’s purpose of eliminating the “social and
economic evils of a land oligopoly” qualified as a valid public use. Our opin-
ion also rejected the contention that the mere fact that the State immediately
transferred the properties to private individuals upon condemnation some-
how diminished the public character of the taking. ...
Those who govern the City were not confronted with the need to re-
move blight in the Fort Trumbull area, but their determination that the area
was sufficiently distressed to justify a program of economic rejuvenation is
éntitled to our deference. The City has carefully formulated an economic de-
velopment plan that it believes will provide appreciable benefits to the com-
munity, including—but by no means limited to—new jobs and increased tax
revenue. As with other exercises in urban planning and development, the
City is endeavoring to coordinate a variety of commercial, residential, and
recreational uses of land, with the hope that they will form a whole greater
than the sum of its parts. To effectuate this-plan, the City has invoked astate
statute that specifically authorizes the use of eminent domain to promote
economic development. ... Because that plan unquestionably serves a public
purpose, the takings challenged here satisfy the public use requirement of
_ the Fifth Amendment.
To avoid this result, petitioners urge us to adopt a new bright-line rule
that economic development does not qualify as a public use. Putting aside
the unpersuasive suggestion that the City’s plan will provide only purely eco-
nomic benefits, neither precedent nor logic supports petitioners’ proposal.
Promoting economic development is a traditional and long accepted func-
tion of government. There is, moreover, no principled way of distinguishing
1072 | Economic RIGHTS AND AMERICAN CAPITALISM

economic development from the other public purposes that we have recog-
mized
Petitioners contend that using eminent domain for economic develop-
ment impermissibly blurs the boundary between public and private takings.
Again, our cases foreclose this objection. Quite simply, the government’s pur-
suit of a public purpose will often benefit individual private parties. For ex-
ample, in Midkiff, the forced transfer of property conferred a direct and
significant benefit on those lessees who were previously unable to purchase
their homes. ...
It is further argued that without a bright-line rule nothing would stop a
city from transferring citizen A’s property to citizen B for the sole reason that
citizen B will put the property to a more productive use and thus pay more
taxes. Such a one-to-one transfer of property, executed outside the confines
of an integrated development plan, js not presented in this case. While such
an unusual exercise of government power would certainly raise a suspicion
that a private purpose was afoot, the hypothetical cases posited by petitioners
can be confronted if and when they arise. They do not warrant the crafting
of an artificial restriction on the concept of public use.
Alternatively, petitioners maintain that for takings of this kind we
should require a “reasonable certainty” that the expected public benefits will
actually accrue. Such a rule, however, would represent an even greater depar-
ture from our precedent. ““When the legislature’s purpose is legitimate and its
means are not irrational, our cases make clear that empirical debates over the
wisdom of takings—no less than debates over the wisdom of other kinds of
socioeconomic legislation—are not to be carried out in the federal courts.”
Midkiff...
Just as we decline to second-guess the City’s considered judgments
about the efficacy of its development plan, we also decline to second-guess
the City’s determinations as to what lands it needs to acquire in order to ef-
fectuate the project. “It is not for the courts to oversee the choice of the
boundary line nor to sit in review on the size of a particular project area.
Once the question of the public purpose has been decided, the amount and
character of land to be taken for the project and the need for a particular
tract to complete the integrated plan rests in the discretion of the legislative
branch.”
In affirming the City’s authority to take petitioners’ properties, we do
not minimize the hardship that condemnations may entail, notwithstanding
the payment of just compensation. We emphasize that nothing in our opin-
ion precludes any State from placing further restrictions on its exercise of the
takings power. Indeed, many States already impose “public use” requirements
that are stricter than the federal baseline. Some of these requirements have
been established as a matter of state constitutional law, while others are ex-
pressed in state eminent domain statutes that carefully limit the grounds
upon which takings may be exercised... .
The judgment of the Supreme Court of Connecticut is affirmed.

Li Justice KENNEDY, concurring.

I join the opinion for the Court and add these further observations. This
Court has declared that a taking should be upheld as consistent with the
Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to
 C | The “Takings Clause” and Just Compensation | 1073

a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, see also

Berman v. Parker, 348 U.S. 26 (1954). This deferential standard of review
echoes the rational-basis test used to review economic regulation under the
Due Process and Equal Protection Clauses. The determination that a ra-
tional-basis standard of review is appropriate does not, however, alter the fact
that transfers intended to confer benefits on particular, favored private enti-
ties, and with only incidental or pretextual public benefits, are forbidden by
the Public Use Clause.
A court applying rational-basis review under the Public Use Clause
should strike down a taking that, by a clear showing, is intended to favor a
particular private party, with only incidental or pretextual public benefits,
Just as a court applying rational-basis review under the Equal Protection
Clause must strike down a government classification that is clearly intended
to injure a particular class of private parties, with only incidental or pretex-
tual public justifications. See Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432 (1985). As the trial court in this case was correct to observe, “Where the
purpose [of a taking] is economic development and that development is to
be carried out by private parties or private parties will be benefited, the
court must decide if the stated public purpose—economic advantage to a
city sorely in need of it—is only incidental to the benefits that will be con-
fined on private parties of a development plan.’ ...

C1 Justice O.;CONNOR, with whom THE CHIEF JUSTICE, Justice

SCALIA, and Justice THOMAS join, dissenting.
Over two centuries ago, just after the Bill of Rights was ratified, Justice
CHASE wrote: “An act of the Legislature (for I cannot call it a law) contrary
to the great first principles of the social compact, cannot be considered a
rightful exercise of legislative authority. ... A few instances will suffice to
explain what I mean... . [A] law that takes property from A. and gives it to
B: It is against all reason and justice, for a people to entrust a Legislature with
such powers; and, therefore, it cannot be presumed that they have done it.”
Calder v. Bull, 3 Dall. 386 (1798). Today the Court abandons this long-held,
basic limitation on government power. Under the banner of economic de-
velopment, all private property is now vulnerable to being taken and trans-
ferred to another private owner, so long as it might be upgraded—+.e., given
to an owner who will use it in a way that the legislature deems more bene-
To reason, as the Court does, that the in-
ficial to the public—in the process.
cidental public benefits resulting from the subsequent ordinary use of private
property render economic development takings “for public use” is to wash
out any distinction between private and public use of property—and thereby
effectively to delete the words “for public use” from the Takings Clause of
the Fifth Amendment. Accordingly I respectfully dissent. . ..
[W]e have read the Fifth Amendment’s language to impose two distinct
conditions on the exercise of eminent domain: “the taking must be for a
‘public use’ and ‘just compensation’ must be paid to the owner.” Brown v, Le-
gal Foundation of Wash., 538 U.S. 216 (2003). These two limitations serve to
protect “the security of Property,’ which Alexander Hamilton described to
the Philadelphia Convention as one of the “great obj[ects] of Govjern-
ment].” Together they ensure stable property ownership by providing safe-
1074 | Economic RIGHTS AND AMERICAN CaPITALISM

guards against excessive, unpredictable, or unfair use of the government’s

eminent domain power—particularly against those owners who, for what-
ever reasons, may be unable to protect themselves in the political process
against the majority’s will.
While the Takings Clause presupposes that government can take private
property without the owner’s consent, the just compensation requirement
spreads the cost of condemnations and thus “prevents the public from load-
ing upon one individual more than his just share of the burdens of govern-
ment.” Monongahela Nav. Co. v. United States, 148 U.S. 312 (1893). The public
use requirement, in turn, imposes a more basic limitation, circumscribing the
very scope of the eminent domain power: Government may compel an in-
dividual to forfeit her property for the public’s use, but not for the benefit of
another private person. This requirement promotes fairness as well as secu-
rity. ;
Where is the line between “public” and “private” property use? We give
considerable deference to legislatures’ determinations about what govern-
mental activities will advantage the public. But were the political branches
the sole arbiters of the public-private distinction, the Public Use Clause
would amount to little more than hortatory fluff. An external, judicial check
on how the public use requirement is interpreted, however limited, is neces-
sary if this constraint on government power is to retain any meaning.
Our cases have generally identified three categories of takings that com-
ply with the public use requirement, though it is in the nature of things that
the boundaries between these categories are not always firm. Two are rela-
tively straightforward and uncontroversial. First, the sovereign may transfer
private property to public ownership—such as for a road, a hospital, or a mil-
itary base. Second, the sovereign may transfer private property to private par-
ties, often common carriers, who make the property available for the public’s
use—such as with a railroad, a public utility, or a stadium. But “public own-
ership” and “use-by-the-public” are sometimes too constricting and imprac-
tical ways to define the scope of the Public Use Clause. Thus we have
allowed that, in certain circumstances and to meet certain exigencies, takings
that serve a public purpose also satisfy the Constitution even if the property
is destined for subsequent private use.
This case returns us for the first time in over 20 years to the hard ques-
tion of when a purportedly “public purpose” taking meets the public use re-
quirement. It presents an issue of first impression: Are economic
development takings constitutional? I would hold that they are not. We are
guided by two precedents about the taking of real property by eminent do-
main. In Berman, we upheld takings within a blighted neighborhood of
Washington, D.C. The neighborhood had so deteriorated that, for example,
64.3% of its dwellings were beyond repair. .. .
In Midkiff, we upheld a land condemnation scheme in Hawaii whereby
title in real property was taken from lessors and transferred to lessees. At that
time, the State and Federal Governments owned nearly 49% of the State’s
land, and another 47% was in the hands of only 72 private landowners. Con-
centration of land ownership was so dramatic that on the State’s most ur-
banized island, Oahu, 22 landowners owned 72.5% of the fee simple titles.
The Hawaii Legislature had concluded that the oligopoly in land ownership
was “skewing the State’s residential fee simple market, inflating land pricés,
 C | The “Takings Clause” and Just Compensation | 1075

and injuring the public tranquility and welfare,” and therefore enacted a con-
demnation scheme for redistributing title.
In those decisions, we emphasized the importance of deferring to leg-
islative judgments about public purpose. Because courts are ill-equipped to
evaluate the efficacy of proposed legislative initiatives, we rejected as un-
workable the idea of courts’ “ ‘deciding on what is and is not a governmen-
tal function and.. . invalidating legislation on the basis of their view on that
question at the moment of decision, a practice which has proved impractica-
ble in other fields’ ” Likewise, we recognized our inability to evaluate
whether, in a given case, eminent domain is a necessary means by which to
pursue the legislature’s ends.
Yet for all the emphasis on deference, Berman and Midkiff hewed to a
bedrock principle without which our public use jurisprudence would col-
lapse: “A purely private taking could not withstand the scrutiny of the pub-
lic use requirement; it would serve no legitimate purpose of government and
would thus be void.’ Midkiff: To protect that principle, those decisions re-
served “a role for courts to play in reviewing a legislature’s judgment of what
constitutes a public use ... [though] the Court in Berman made clear that it
is ‘an extremely narrow’ one.”
The Court’s holdings in Berman and Midkiff were true to the principle
underlying the Public Use Clause. In both those cases, the extraordinary, pre-
condemnation use of the targeted property inflicted affirmative harm on so-
ciety—in Berman through blight resulting from extreme poverty and in
Midkiff through oligopoly resulting from extreme wealth. And in both cases,
the relevant legislative body had found that eliminating the existing property
use was necessary to remedy the harm. Thus a public purpose was realized
when the harmful use was eliminated. Because each taking directly achieved a
public benefit, it did not matter that the property was turned over to private
use. Here, in contrast, New London does not claim that Susette Kelo’s ...
well-maintained [home is] the source of any social harm. Indeed, it could not
so claim without adopting the absurd argument that any single-family home
that might be razed to make way for an apartment building,-or any church
that might be replaced with a retail store, or any small business that might be
more lucrative if it were instead part of a national franchise, is inherently
harmful to society and thus within the government’s power to condemn.
In moving away from our decisions sanctioning the condemnation of
harmful property use, the Court today significantly expands the meaning of
public use. It holds that the sovereign may take private property currently
put to ordinary private use, and give it over for new, ordinary private use, so
long as the new use is predicted to generate some secondary benefit for the
public—such as increased tax revenue, more jobs, maybe even aesthetic
pleasure. But nearly any lawful use of real private property can be said to
generate some incidental benefit to the public. Thus, if predicted (or even
_ guaranteed) positive side-effects are enough to render transfer from one pri-
vate party to another constitutional, then the words “for public use” do not
realistically exclude any takings, and thus do not exert any constraint on the
eminent domain power... .
It was possible after Berman and Midkiff to imagine unconstitutional
transfers from A to B. Those decisions endorsed government intervention
when private property use had veered to such an extreme that the public was
1076 | Economic RiGHTs AND AMERICAN CAPITALISM

suffering as a consequence. Today nearly all real property is susceptible to con-

demnation on the Court’s theory. Any property may now be taken for the
benefit of another private party, but the fallout from this decision will not be
random. The beneficiaries are likely to be those citizens with disproportionate
influence and power in the political process, including large corporations and
development firms. As for the victims, the government now has license to
transfer property from those with fewer resources to those with more... .

| Justice THOMAS, dissenting.

Long ago, William Blackstone wrote that “the law of the land . . . post-
pone[s] even public necessity to the sacred and inviolable rights of private
property.’ Commentaries on the Laws of England (1765). The Framers embod-
ied that principle in the Constitution, allowing the government to take
property not for “public necessity,” but instead for “public use.” Amdt. 5. De-
fying this understanding, the Court replaces the Public Use Clause with a
““{PJublic [P]urpose’ ” Clause, a restriction that is satisfied, the Court in-
structs, so long as the purpose is “legitimate” and the means “not irrational.”
This deferential shift in phraseology enables the Court to hold, against all
common sense, that a costly urban-renewal project whose stated purpose is a
vague promise of new jobs and increased tax revenue, but which is also sus-
piciously agreeable to the Pfizer Corporation, is for a “public use.”
I cannot agree. If such “economic development” takings are for a “pub-
lic use,” any taking is, and the Court has erased the Public Use Clause from
our Constitution, as Justice O°’CONNOR powerfully argues in dissent. I do
not believe that this Court can eliminate liberties expressly enumerated in
the Constitution and therefore join her dissenting opinion. Regrettably,
however, the Court’s error runs deeper than this. Today’s decision is simply
the latest in a string of our cases construing the Public Use Clause to be a
virtual nullity, without the slightest nod to its original meaning. In my view,
the Public Use Clause, originally understood, is a meaningful limit on the
government’s eminent domain power. Our cases have strayed from the
Clause’s original meaning, and I would reconsider them. .. .
The consequences of today’s decision are not difficult to predict, and
promise to be harmful. So-called “urban renewal” programs provide some
compensation for the properties they take, but no compensation is possible
for the subjective value of these lands to the individuals displaced and the in-
dignity inflicted by uprooting them from their homes. Allowing the govern-
ment to take property solely for public purposes is bad enough, but
extending the concept of public purpose to encompass any economically
beneficial goal guarantees that these losses will fall disproportionately on
poor communities. Those communities are not only systematically less likely
to put their lands to the highest and best social use, but are also the least po-
litically powerful. If ever there were justification for intrusive judicial review
of constitutional provisions that protect “discrete and insular minorities,”
United States v. Carolene Products Co., 304 U.S. 144 (1938), surely that princi-
ple would apply with great force to the powerless groups and individuals the
Public Use Clause protects. The deferential standard this Court has adopted
for the Public Use Clause is therefore deeply perverse. It encourages “those
citizens with disproportionate influence and power in the political process,
including large corporations and development firms” to victimize the weak.
 C | The “Takings Clause” and Just Compensation | 1077

Those incentives have made the legacy of this Court’s “public purpose”
test an unhappy one. In the 1950's, no doubt emboldened in part by the ex-
pansive understanding of “public use” this Court adopted in Berman, cities
“rushed to draw plans” for downtown development. “Of all the families dis-
placed by urban renewal from 1949 through 1963, 63 percent of those
whose race was known were nonwhite, and of these families, 56 percent of
nonwhites and 38 percent of whites had incomes low enough to qualify for
public housing, which, however, was seldom available to them.” Public works
projects in the 1950’s and 1960's destroyed predominantly minority commu-
nities in St. Paul, Minnesota, and Baltimore, Maryland. In 1981, urban plan-
ners in Detroit, Michigan, uprooted the largely “lower-income and elderly”
Poletown neighborhood for the benefit of the General Motors Corporation.
Urban renewal projects have long been associated with the displacement of
blacks; “[i]n cities across the country, urban renewal came to be known as
‘Negro removal. ” Over 97 percent of the individuals forcibly removed from
their homes by the “slum-clearance” project upheld by this Court in Berman
were black. Regrettably, the predictable consequence of the Court’s decision
will be to exacerbate these effects... .

= THE DEVELOPMENT OF LAw

Other Important Rulings on the Takings Clause

CASE VOTE RULING

Agins v. City of Tiburon, 9:0 Relying on Village of Euclid v.

447 U.S. 255 (1980) Ambler Realty Co., 272 U.S. 365
(1926), the Court approved a
San Francisco zoning ordinance requiring the construction of single-family
homes on a minimum of one-acre lots, over the objections of owners of five
acres of undeveloped land of great value because of its view of San Fran-
cisco Bay. The owners had contended the zoning restriction amounted to a
taking of their property.
Loretto v. Teleprompter Man- 6:3 Affirmed a takings-clause chal-
hattan CATV Corporation, lenge of a New York law
458 U.S. 419 (1982) prohibiting landlords from in-
terfering with cable companies’
installation of cables and boxes in their buildings and specifying that property
_ owners may not demand compensation in excess of a limit set by a state
commission. When so holding, the Court observed that “Teleprompter’s cable
installation on appellant’s building constitutes a taking under the traditional
test. The installation involved a direct physical attachment of plates, boxes,
wires, bot:s, and screws to the building, completely occupying space immedi-
ately above and upon the roof and along the building’s exterior wall.”
a
OC...
1078 | Economic RIGHTS AND AMERICAN CAPITALISM

CASE VOTE RULING

Nollan v. California Coastal 5:4 Writing for a bare majority,

Commission, 483 Justice Scalia held that the just
U.S.,825, (1987) compensation clause was vio-
lated by California’s regulations
requiring beachfront property owners to agree to a public easement across
their property as a condition of receiving a building permit.

Keystone Bituminous Coal 5:4 Rejected the claims of a coal

Association v. DeBene- company attacking the constitu-
dictis, 480 U.S. 470 (1987) tionality of a Pennsylvania law lim-
iting the mining of more than
50 percent of the coal beneath government and commercial buildings, pri-
vate residences, and cemeteries to ensure surface support.

First English Evangelical 6:3 Held that the just compensation

Lutheran Church v. County of clause was violated by an ordi-
Los Angeles, 482 nance, passed after a major flood,
US. 304 (1987) that prohibited the construction
and reconstruction of buildings
on certain land affected by the flood. Writing for the majority, Chief Justice
Rehnquist held that the ordinance constituted a taking of property, for
which the city owed the owner just compensation. Justices Stevens, O’Con-
nor, and Blackmun dissented.

Pennell v. City of San Jose, 6:2 Rejected an attack by landlords

485 U.S. 1 (1988) on a city rent control ordinance
limiting rent increases to 18 per-
cent and allowing tenants to demand a hearing as to whether a rent increase
was “reasonable under the circumstances”—circumstances that included the
tenant’s hardship.

Dolan v. City of Tigard, 5:4 Writing for a bare majority,

512 U.S. 374 (1994) Chief Justice Rehnquist held
that when government sets down
land-use restrictions affecting private property it must show a “rough pro-
portionality” between the restrictions and the harm to be prevented. No-
tably, the chief justice reaffirmed that the government may simply ban all
development in flood plains, for instance, and that “no precise mathematical
calculation” was required to justify land-use restrictions.
As a result of Dolan,
state and local governments must satisfy a two-pronged test: first, they must
show that their restrictions serve a “legitimate public purpose” and, second,
when imposing their restrictions they must undertake “some sort of individ-
ualized determination” establishing a “rough proportionality” between the
restrictions and the harms to be averted.
SS
 C | The “Takings Clause” and Just Compensation | 1079

CASE VOTE RULING

Bennis v. Michigan, 5:4 Writing for the majority, Chief

516 U.S. 442 (1996) Justice Rehnquist rejected the
claim that the government vio-
lates due process and the Fifth Amendment’s takings clause when it under-
takes the forfeiture of an innocent person’s property, which was used in an
illegal activity. Justices Breyer, Kennedy, Souter, and Stevens dissented.
Phillips v. Washington Legal 5:4 In the 1980s, Texas and 48 other
Foundation, 524 U.S. 156 < states established Interest on Law-
(1998) yers Trust Account (IOLTA) pro-
grams. Under them, certain funds
from clients received by attorneys are held in federally authorized “Ne-
gotiable Order of Withdrawal” accounts. The interest income of these
accounts is paid to the state and used to finance legal services for low-
income people. In a narrow ruling for a bare majority, Chief Justice Rehn-
quist held that the interest income does constitute “property” under the Fifth
Amendment, but declined to rule on whether IOLTA programs constitute a
“takings” and whether “just compensation” is required, because those issues
had not been addressed by the lower courts.
Tahoe-Sierra Preservation 6:3 Upheld a three-year building
Council, Inc. v. Tahoe moratorium on construction sur-
Regional Planning Agency, rounding Lake Tahoe, in order
535 U.S. 302 (2002) for regional governments to de-
velop natural resources preserva-
tion and development plans, over the claim that the temporary moratorium
constituted a “categorical” takings under the Fifth Amendment and deprived
developers of the economically viable use of their land. Chief Justice Rehn-
quist and Justices Scalia and Thomas dissented.
Lingle v. Chevron, 544 9:0 Writing for a unanimous Court,
U.S. 528 (2005) Justice O’Connor upheld Ha-
waii’s law capping the rent paid
by gasoline dealers and ruled that it was not an unconstitutional takings. The
appellate court had applied a test, suggested in Agins v. City of Tiburon, 447
USS. 255 (1980), that “[t]he application of a general zoning law to particular
property effects a takings if the ordinance does not substantially advance
state interests.” But Justice O’Connor ruled that the “substantially advance
state interests” test was dictum and inappropriate for determining when a tak-
_ings of private property occurs. Instead, as other precedents established, in
particular Penn Central Transportation Co. v. New York, 438 U.S. 104 (1973), a
multi-factored and more deferential test should apply because taxes and fees,
like that at issue here, are not per se takings.

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RESEARCHING LEGAL MATERIALS

The Internet offers numerous resources for legal research. Conducting legal
research on the Internet is similar to researching printed legal documents in
libraries. Indeed, most of those legal documents, such as court decisions, may
be found on the Internet. Conducting legal research on the Internet, thus,
may be more efficient and convenient for those with access to it. But, how-
ever legal research is conducted, the researcher must have an understanding
of legal sources as well as a research strategy.

I. Conducting Legal Research:

A. LEGAL SOURCES:
Generally, legal research aims to discover primary and secondary legal au-
thorities to support a legal argument or position (i.e., thesis statement).

1. PRIMARY AUTHORITIES:
Primary authorities are the most persuasive sources because they repre-
sent most accurately what the law “is.” Examples of primary authorities in-
clude federal and state constitutions, statutes, case opinions (written by judges
deciding specific cases or controversies), and administrative regulations.
The decisions of the Supreme Court are officially published in the
United States Reports. In addition, two companies print editions of the
Court’s decisions. There is the Lawyers’ Edition, published by the Lawyers’
Cooperative, and The Supreme Court Reporter, published by West Publishing
Company. The decisions of federal courts of appeals are usually found in
West’s Federal Reporter (or Federal Reporter, 2d, 3d, or Ath series, respectively).
Federal district court decisions may be found in West’s Federal Supplement se-
ries. Most states publish some of the rulings of their courts and West pub-
‘lishes a series of regional reporters that reprint the decisions and opinions of
the highest courts in the states. These sources may be found on the Internet
(as discussed below) through university and law school Internet servers, or
through eommiercial servers such as Lexis-Nexis and Westlaw,
Note that primary legal authorities differ in their weight or authorita-
tiveness. The decisions and opinions of the Supreme Court, for instance, are

1081
1082 | RESEARCHING LEGAL MATERIALS

more authoritative than those of lower federal courts. Likewise, the Court’s
decision usually carries more weight than a concurring or dissenting opinion.

2. SECONDARY AUTHORITIES:

Secondary authorities provide “secondary” perspectives on the law or,

more precisely, on how the law may or should be interpreted. Examples of
secondary authorities include law review articles (written by law students or
scholars), legal treatises and annotations, legal encyclopedias, books, and aca-
demic journals (in law, legal history, jurisprudence, and social sciences, like
Judicature and The Journal of Supreme Court History), as well as legal news-
papers (such as Legal Times and The National Law Journal).

B. DEVELOPING A RESEARCH STRATEGY:

While it is impossible to outline a research strategy that would work
best for everyone, there are some general considerations in developing one.
First, legal research usually involves gaining a broad understanding of the
context of a case or controversy, and then moving to the narrower, specific
issues presented, as well as to the competing arguments and justifications for
resolving those issues one way or the other. In other words, initially consider
the historical, philosophical, and political bases for, as well as the subsequent
development of, a legal doctrine, such as federalism or free speech, before
turning to the specific case or controversy to be addressed. If you know very
little about the subject, it is wise to consult secondary authorities first about
what the law is and how and why it has developed. Second, once you have
an understanding of the general legal issues and law involved, then examine
the most relevant primary authorities, described above. The most critical step in
conducting legal research is to read (or re-read) the pertinent provision(s) of
the Constitution, statute, or administrative regulation, and then consider what
the Supreme Court has said about those provisions and the issue presented,
carefully analyzing the relevant or governing judicial opinions. Remember
that the aim of legal research is to advance a position, a thesis, by persuasively
Justifying it with an analysis of and arguments drawn from the primary and
secondary authorities discussed above.

I, Legal Materials and Law-Related Sources on the Web:

Legal materials, documents, judicial opinions, and other law-related sources
on the Web are available through a number of legal search engines. One of
the most useful is Findlaw at www.findlaw.com. Another useful site to
government links is Firstgov’s at www.firstgov.org. The Supreme Court of
the United States maintains a site at www.supremecourtus.gov, contain-
ing transcripts of oral arguments and opinions in recent cases.
These and other law-related resources are linked and available at the
web site that W. W. Norton maintains for the casebook and the annual
Supreme Court Watch at www.wwnorton.com/scww/.
THE How, Wuy, AND WHAT
TO BRIEFING AND CITING
COURT CASES

A. HOW TO BRIEF A CASE:

There is no one “best way’’*to read and analyze cases. However, an
understanding of the decision and opinions may best be acquired by follow-
ing a prescribed pattern or outline that points up the essential issues of each
case. It is suggested that students read the case in its entirety at least once be-
fore “briefing” the case along the lines suggested below.
1. TITLE AND CitaTION: (Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803).)

2. FACTS OF THE CASE: A brief statement of the circumstances that

brought about this case or controversy, identifying the parties and the hold-
ing of lower courts.
(Outgoing President Adams commissioned Marbury to serve as a district
judge, but the commission went undelivered by his secretary of state, John
Marshall. When President Jefferson came into office, he directed his secretary
of state, James Madison, not to deliver Marbury’s commission. Marbury filed
an affidavit requiring Madison to show cause why a writ of mandamus
should not be issued directing him to deliver the commission. Section 13 of
the Judiciary Act of 1789, Marbury argued, empowered the Court to issue
writs of mandamus.)
3. LEGAL QUESTION(S) PRESENTED: The question presented is revealed
by the statement of facts, which should indicate the nature of the conflict of
interests the Court must resolve. The legal question presented is often con-
cisely stated by the Court at the outset of an opinion or the sections in an
opinion dealing with specific questions presented. You should answer each
question presented “yes” or “no.”
(1. Has Marbury a right to his commission? Yes.
2. If a right has been violated do the laws afford a remedy? Yes.
3. Is the Court the legal body to afford such a remedy? No.
4. Does the Court have the power to declare a law unconstitutional?
Yes.)

4. Hotpina: A statement of the Court’s ruling and whether it affirmed

or reversed the lower court’s decision.
(Section 13 of the Judiciary Act of 1789 is unconstitutional.)

1083
1084 | BrieFING AND CitiNG Court Cases

5. OPINION FOR THE Court: The opinion refers to the legal reasoning
which the Court offers as a justification for its holding. The Court’s reason-
ing should be outlined point by point.
(1-A. Completion of the appointment establishes that Marbury has a le-
gal right to his commission. 2-A. Authorities (Blackstone) show that where
there is a legal right there exists a legal remedy. 2-B. Madison violated Mar-
bury’s right, and thus a remedy is due Marbury. 3-A. The Court cannot pro-
vide the remedy requested, however, since that would require an exercise of
its original jurisdiction in violation of Article III of the Constitution. 3-B.
Congress cannot alter the Court’s original jurisdiction or expand its powers
specified there. Section 13 appears to have enlarged the Court’s power by
giving it the power to issue writs of mandamus in original and appellate
cases. 4-A. The Court has the power to declare a law unconstitutional be-
cause (1) of the Supremacy Clause of Article VI and (2) Congress may not
enlarge the Court’s original jurisdiction under Article III. 4-B. It is the duty
of the Court “to say what the law is” because (1) judges take an oath to up-
hold the Constitution and (2) “the Constitution specifies that a law repug-
nant to the Constitution is void, and courts as well as other departments are
bound by it.” (3) Since the Court’s power extends to all cases and contro-
versies under the Constitution, the Court must declare Section 13 unconsti-
tutional.)

6. SEPARATE OPINIONS: Both concurring opinions (opinions that agree

with the Court’s holding but disagree with some or all of its reasoning) and
dissenting opinions (opinions that disagree with the Court’s result and rea-
soning) should be noted and their major points emphasized.
(There were no separate opinions filed in this case.)
7. COMMENTS AND EVALUATION: A statement of the case’s legal, history,
and political importance, as well as criticisms of the justices’ opinions and
reasoning.
(1. Chief Justice Marshall should have disqualified himself from partici-
pating in the case. 2. The case did not need to be decided; it could have been
remanded to a district court, since the Court had no jurisdiction. 3. Mar-
shall’s reading of Section 13 is open to criticism. 4. The case is the watershed
ruling in which the Court asserted and rationalized the power of judicial re-
view. 5. However, the Court’s reasoning is not unassailable—Article III does
not expressly provide for judicial review and other officials take an oath to
uphold the Constitution as well; Eakin v. Raub on triparite or “departmental
theory” of constitutional interpretation. 6. Marbury v. Madison, however, does
not assert “judicial supremacy” as some Court-watchers and justices sub-
sequently claimed.)

B. WHY BRIEF CASES?

Briefing cases has immediate and long-term benefits: the student will
have read the case thoroughly and carefully and will have a permanent con-
 BRIEFING AND CitinG Courr Cases | 1085

densed record of the case. The exercise itself forces the student to come to
terms with his or her understanding of the case, prepares the student for lec-
tures and discussion, and will prove an invaluable aid in studying for the
midterm and final examination.

C. CASE CITATION: Why, What, Where, and How

1. WHy FOLLow LEGAL CITATION FORM?

a. Legal writing requires frequent citation of authority and evaluation

of that authority depends on proper citation form.
b. In this context, citations in the text greatly aid the reader, eliminating
the necessity of moving back and forth between text and footnotes.
i) . WHAT TO CITE (in order of their decreasing legal weight):
Opinions (majority) for the Supreme Court.
. Supreme Court plurality, concurring or dissenting opinions.
Circuit Court opinions.
& . District Court opinions.
OPS.
Gy
oO . Other sources: (1) state court opinions if the issue is one of state law;

(2) law review articles only if there is no Supreme Court opinion or if the is-
sue involves, for example, economic analysis.
f. Do not cite a lower court opinion or a non-majority opinion as
binding precedent; they are persuasive authority only.
3. WHERE DOES THE CITATION APPEAR?

a. As appositives: In Brown v. Board of Education, 347 U.S. 483 (1954), the

Court struck down racial segregation of public schools.
b. In citation sentences: Racial segregation of public schools violates
the equal protection clause. Brown v. Board of Education, 347 U.S. 483 (1954).

4, HOW TO CITE CASES PROPERLY:

a. An opinion for the Supreme Court: Katzenback v. Morgan, 384 U.S.

641 (1966), or Katzenbach v. Morgan, 384 U.S. 641 (1966) (Brennan, J.).
b. A specific page in the Court’s opinion: Katzenbach v. Morgan, 384 U.S.
641, 644 (1966).
c. Concurring and dissenting opinions:
Sherbert v. Verner, 374 U.S. 398, 477 (1963) (Stewart,
J., con. op.).
Sherbert v. Verner, 374 U.S. 398, 495 (1963) (Harlan and White, J.J., dis. op.).
d. Circuit Court cases: Yeager v. Estelle, 489 E2d 276 (5th Cir., 1973).
e. District Court cases: Dodd v. Smith, 389 FE Supp. 154 (D. Mass., 1975).
f. Explanatory phrases and case history: Jackson v. Metropolitan Edison
’ Co., 348 FE Supp. 954 (M.D., Pa., 1972), aff'd., 483 F 2d 754 (3d Cir, 1974),
rev'd., 419 US. 345 (1974).
g. Later references to a case previously cited in full:
(1) Use Hd. (legal version of Ibid.) when the later citation immediately
follows the full citation: Id., at 427.
1086 | BrieFING AND CITING Court Cases

(2) Use abbreviated case names, if desired, where other case citations
intervene: Jackson, at 420 (specific page), or Jackson, supra. (full opinion).
5. ADDITIONAL REFERENCES:

See Albert Melone, Researching Constitutional Law (New York: Scott,

Foresman/Little, Brown, 1990), or the “Blue Book,” A Uniform System of Ci-
tation (Cambridge, MA: Harvard Law Review Association, 1999).
MEMBERS OF THE
SUPREME COURT
OF THE UNITED STATES

CHIEF JUSTICES

~~ APPOINTING DATES OF
PRESIDENT SERVICE

Jay, John Washington 1789-1795

Rutledge, John Washington 1795-1795
Ellsworth, Oliver Washington 1796-1800
Marshall, John Adams, J. 1801-1835
Taney, Roger Brooke Jackson 1836-1864
Chase, Salmon Portland Lincoln 1864-1873
Waite, Morrison Remick Grant 1874-1888
Fuller, Melville Weston Cleveland 1888-1910
White, Edward Douglass Taft 1910-1921
Taft, William Howard Harding 1921-1930
Hughes, Charles Evans Hoover 1930-1941
Stone, Harlan Fiske Roosevelt, E 1941-1946
Vinson, Frederick Moore Truman 1946-1953
Warren, Earl Eisenhower 1953-1969
Burger, Warren Earl Nixon 1969-1986
Rehnquist, William Hubbs Reagan 1986-2005
Roberts, Jr., John G. Bush, G. W. 2005—
ASSOCIATE JUSTICES
APPOINTING DATES OF
PRESIDENT SERVICE

Rutledge, John Washington 1790-1791

Cushing, William Washington 1790-1810
~ Wilson, James Washington 1789-1798
Blair, John Washington 1790-1796
Iredell, James Washington 1790-1799
JohnsonyThomas Washington 1792-1793
Paterson, William Washington 1793-1806
Chase, Samuel Washington 1796-1811

1087
1088 | MEMBERS OF THE SUPREME COURT OF THE UNITED STATES

APPOINTING DATES OF
PRESIDENT SERVICE

Washington, Bushrod Adams, J. 1799-1829

Moore, Alfred Adams, J. 1800-1804
Johnson, William Jefferson 1804-1834
Livingston, Henry Brockholst Jefferson 1807-1823
‘Todd, Thomas Jefferson 1807-1826
Duvall, Gabriel Madison 1811-1835
Story, Joseph Madison 1812-1845
Thompson, Smith Monroe 1823-1843
Trimble, Robert Adams, J. Q. 1826-1828
McLean, John Jackson 1830-1861
Baldwin, Henry Jackson 1830-1844
Wayne, James Moore Jackson 1835-1867
Barbour, Philip Pendleton Jackson 1836-1841
Catron, John Van Buren 1837-1865
McKinley, John Van Buren 1838-1852
Daniel, Peter Vivian Van Buren 1842-1860
Nelson, Samuel Tyler 1845-1872
Woodbury Levi Polk 1845-1851
Grier, Robert Cooper Polk 1846-1870
Curtis, Benjamin Robbins Fillmore 1851-1857
Campbell, John Archibald Pierce 1853-1861
Clifford, Nathan Buchanan 1858-1881
Swayne, Noah Haynes Lincoln 1862-1881
Miller, Samuel Freeman Lincoln 1862-1890
Davis, David Lincoln 1862-1877
Field, Stephen Johnson Lincoln 1863-1897
Strong, William Grant 1870-1880
Bradley, Joseph P. Grant 1870-1892
Hunt, Ward Grant 1873-1882
Harlan, John Marshall Hayes 1877-1911
Woods, William Burnham Hayes 1881-1887
Matthews, Stanley Garfield 1881-1889
Gray, Horace Arthur 1882-1902
Blatchford, Samuel Arthur 1882-1893
Lamar, Lucius Quintus C. Cleveland 1888-1893
Brewer, David Josiah Harrison 1890-1910
Brown, Henry Billings Harrison 1891-1906
Shiras, George, Jr. Harrison 1892-1903
Jackson, Howell Edmunds Harrison 1893-1895
White, Edward Douglass Cleveland 1894-1910
Peckham Rufus Wheeler Cleveland 1896-1909
McKenna, Joseph McKinley 1898-1925
Holmes, Oliver Wendell Roosevelt, T. 1902-1932
 MEMBERS OF THE SUPREME CouRT OF THE UNITED STATES | 1089

ASSOCIATE JUSTICES (continued)

APPOINTING DATES OF
PRESIDENT SERVICE

Day, William Rufus Roosevelt, T. 1903-1922

Moody, William Henry Roosevelt, T. 1906-1910
Lurton, Horace Harmon Taft 1910-1914
Hughes, Charles Evans Taft 1910-1916
Van Devanter, Willis Taft 1911-1937
Lamar, Joseph Rucker Taft 1911-1916
Pitney, Mahlon Taft 1912-1922
McReynolds, James Clark Wilson 1914-1941
Brandeis, Louis Dembitz Wilson 1916-1939
Clarke, John Hessin ~ Wilson 1916-1922
Sutherland, George Harding 1921-1938
Butler, Pierce Harding 1923-1939
Sanford, Edward Terry Harding 1923-1930
Stone, Harlan Fiske Coolidge 1925-1941
Roberts, Owen Josephus Hoover 1930-1945
Cardozo, Benjamin Nathan Hoover 1932-1938
Black, Hugo Lafayette Roosevelt, F 1937-1971
Reed, Stanley Forman Roosevelt, FE 1938-1957
Frankfurter, Felix Roosevelt, E 1939-1962
Douglas, William Orville Roosevelt, E 1939-1975
Murphy, Frank Roosevelt, F 1940-1949
Byrnes, James Francis Roosevelt, E 1941-1942
Jackson, Robert Houghwout Roosevelt, F 1941-1954
Rutledge, Wiley Blount Roosevelt, F 1943-1949
Burton, Harold Hitz Truman 1945-1958
Clark, Thomas Campbell Truman 1949-1967
Minton, Sherman Truman 1949-1956
Harlan, John Marshall Eisenhower 1955-1971
Brennan, William Joseph, Jr. Eisenhower 1956-1990
Whittaker, Charles Evans Eisenhower 1957-1962
Stewart, Potter Eisenhower 1958-1981
White, Byron Raymond Kennedy 1962-1993
Goldberg, Arthur Joseph Kennedy 1962-1965
Fortas, Abe Johnson, L. 1965-1969
Marshall, Thurgood Johnson, L. 1967-1991
Blackmun, Harry A. Nixon 1970-1994
* Powell, Lewis Franklin, Jr. Nixon 1972-1987
Rehnquist, William Hubbs Nixon 1972-1986
Stevens, John Paul Ford 1975-
O’Connor, Sandra Day Reagan 1981-2006
Scalia, Antonin Reagan 1986-
1090 | MEMBERS OF THE SUPREME CourT OF THE UNITED STATES

APPOINTING DATES OF
PRESIDENT SERVICE

Kennedy, Anthony Reagan 1988—

Souter, David Hackett Bush 1990-
Thomas, Clarence Bush 1991-
Ginsburg, Ruth Bader Clinton 1993-
Breyer, Stephen G. Clinton 1994—
Alito, Jr., Samuel A. Bush, G. W. 2006-—
 BIOGRAPHIES OF
CURRENT JUSTICES

Chief Justice John G. Roberts, Jr., was born in Buffalo, New York, on Jan-
uary 27, 1955. After attending a Catholic boarding school in Indiana, he
earned his B.A. from Harvard University and his J.D. from Harvard Law
School, where he served as managing editor of the Harvard Law Review.
Upon graduating he served as a law clerk for U.S. Court of Appeals for the
Second Circuit Judge Henry Friendly and, subsequently, for then Associate
Justice William H. Rehnquist. From 1981 to 1982 he worked in the admin-
istration of President Ronald Reagan as a special assistant to the attorney
general and as an associate counsel to the White House Council from 1982
to 1986. Roberts then went into private legal practice in Washington, DC,
but left to serve as deputy solicitor general in the administration of President
George H. W. Bush from 1989 to 1993. In 1992 President Bush nominated
him to serve on the U.S. Court of Appeals for the District of Columbia Cir-
cuit, but no Senate vote on his confirmation was taken and he returned to
private legal practice. During his time in government and private practice
Roberts argued thirty-nine cases, and won twenty-five, before the Supreme
Court. In 2001, President George W. Bush renominated him to the Court of
Appeals for the District of Columbia Circuit, but his nomination failed to
make it out of the Democratic-controlled Senate Judiciary Committee. He
was, again, renominated in 2003 and confirmed for a seat on the appellate
bench. In 2005, following the announced retirement of Justice Sandra Day
O’Connor, President Bush nominated him to fill her seat on the Supreme
Court, but following the death of Chief Justice Wiliam H. Rehnquist, Jus-
tice Roberts was nominated for the chief justiceship. He received the Sen-
ate’s confirmation as the seventeenth chief justice and 109th justice by a vote
of 78 to 22. Among his extrajudicial writings is “Oral Advocacy and the Re-
emergence of a Supreme Court Bar,’ 30 Journal of Supreme Court History 68
(2005). Since becoming chief justice, Roberts has appeared on ABC’s Night-
line and has given a number of interviews; see, e.g., Jeffrey Rosen, “Roberts’
Rules,” The Atlantic Monthly (Jan./Feb., 2007).

- Justice Samuel Anthony Alito, Jr., was born in Trenton, New Jersey, on
April 1, 1950. After graduating with an A.B. from Princeton University in
1972, he earned his J.D. from Yale Law School in 1975. He subsequently

1091
1092 | BloGRAPHIES OF CURRENT JUSTICES

clerked for U.S. Court of Appeals for the Third Circuit Judge Leonard
Garth, and then worked as an assistant U.S. attorney and during the adminis-
tration of President Ronald Reagan as an assistant to the solicitor general
(from 1981 to 1985) and as a deputy assistant attorney general (from 1985 to
1987). During the administration of President George H. W. Bush, he served
as a U.S. attorney, before President Bush nominated him to and he was con-
firmed for a seat on the U.S. Court of Appeals for the Third Circuit in 1990.
In 2005 he was nominated by President George W. Bush to fill the seat of re-
tiring Justice Sandra Day O’Connor. He was confirmed by the Senate as the
110th justice in January 2006 by a vote of 58 to 42.

Justice Stephen G. Breyer was born in San Francisco, California, on Au-

gust 15, 1938. After graduating from, Stanford University, he earned a second
B.A. as a Marshall Scholar at Oxford University and then received his law de-
gree from Harvard Law School. After clerking for a year with liberal Justice
Arthur J. Goldberg, Breyer went into private practice for a few years. In 1970,
he went back to Harvard Law School, where he taught administrative law and
regulation. During the Watergate investigation of the Nixon administration’s
illegal activities, he served as an assistant special prosecutor before returning to
teaching at Harvard until 1979, when he became chief counsel for the Senate
Judiciary Committee. In 1980, Democratic president Jimmy Carter appointed
him to the Court of Appeals for the First Circuit, where he served until Pres-
ident Clinton appointed him to the Supreme Court in 1994. See U.S. Con-
gress, Senate, Committee on the Judiciary, Hearings before the Committee on the
Judiciary, U.S. Senate, One Hundred Third Congress, 2nd Session, on the Nomination
ofJudge Stephen G. Breyer to the Supreme Court of the United States, July 12, 13,
14, and 15, 1994 (Washington, DC: Government Printing Office, 1995).
Among Justice Breyer’s many publications are “Our Democratic Constitu-
tion,” 77 New York University Law Review 245 (2002); “Judicial Review,’ 78
Texas Law Review 761 (2000); and Active Liberty: Interpreting Our Democratic
Constitution (New York: Knopf, 2005). For a discussion of Justice Breyer’s ju-
dicial philosophy, see and compare Paul Gewirtz, “The Pragmatic Passion of
Stephen Breyer,” 115 Yale Law Journal 1675 (2006); Cass Sunstein, “Justice
Breyer’s Democratic Pragmatism,” 115 Yale Law Journal 1719 (2006); Robert
Bork, “Enforcing a*‘Mood, ” New Criterion 63 (Feb., 2006); and Richard Pos-
ner, “Justice Breyer Throws Down the Gauntlet,” 115 Yale Law Journal 1699
(2006).

Justice Ruth Bader Ginsburg was born on March 15, 1933, in Brooklyn, New
York. After graduating from Cornell University, she attended Harvard Law
School but transferred and graduated from Columbia University School of
Law. Unable to find a law firm in New York that would hire a female attorney,
Ginsburg served for several years as a research associate at Columbia Law
School and then joined Rutgers University School of Law, where she rose to
the rank of full professor before becoming the first female professor at Colum-
bia Law School. Besides teaching, Ginsburg served as the director of the Amer-
 BIOGRAPHIES OF CURRENT JUSTICES | 1093

ican Civil Liberties Union’s Women’s Rights Project and argued six (won five)
important gender-based discrimination cases before the Supreme Court. In
1980 she was appointed to the Court of Appeals for the District of Columbia
Circuit, and in 1993 she was appointed to the Supreme Court by President Bill
Clinton. Justice Ginsburg is the second woman to sit on the high court and the
first Jewish justice to sit there since the retirement of Justice Arthur J. Goldberg
in 1965. See U.S. Congress, Senate, Committee on the Judiciary, Hearings before
the Committee on the Judiciary, U.S. Senate, One Hundred Third Congress, 1st Session,
on the Nomination of Judge Ruth Bader Ginsburg, to Be Associate Justice of the
Supreme Court, July 20, 21, 22, and 23, 1993 (Washington, DC: Government
Printing Office, 1994), and Amy Leigh Campbell, “Raising the Bar: Ruth Bader
Ginsburg and the ACLU Women’s Rights Project,’ 11 Téxas Journal of Women
and the Law 157 (2002). Among Justice Ginsburg’s extrajudicial publications are
“Speaking in a Judicial Voice” 67 New York University Law Review 1185 (1992);
“The Progression of Women in the Law,’ 28 Valparaiso University Law Review
1161 (1994);“Some Thoughts on Autonomy and Equality in Relation to Roe v.
Wade,’ 63 North Carolina Law Review 375 (1985); “Remarks on Writing Sepa-
rately,” 65 Washington Law Review 133 (1990); and “Constitutional Adjudication
in the United States as a Means of Advancing the Equal Stature of Men and
Women under the Law,” 83 Georgetown Law Review 263 (1997).

Justice Anthony M. Kennedy was born on July 23, 1936, in Sacramento,

California, where he grew up in a Roman Catholic family and lived most of
his life, prior to his appointment to the Supreme Court by President Ronald
Reagan in 1988. After studying at the London School of Economics and
Stanford University, where he received his B.A., Kennedy attended Harvard
Law School and then went into private practice in Sacramento. In 1965, he
began a part-time career teaching constitutional law at the McGeorge
School of Law of the University of the Pacific. Based on his activities in the
Republican Party in California, then Governor Reagan recommended
Kennedy for an opening on the Court of Appeals for the Ninth Circuit, to
which he was appointed by President Gerald R. Ford in 1974. Following the
defeat of President Reagan’s nomination in 1987 of Judge Robert H. Bork
to fill the seat of Justice Lewis F Powell, Jr., and the withdrawal of Judge
Douglas H. Ginsburg from nomination for that seat, Kennedy, a more mod-
erate conservative than either Judge Bork or Judge Ginsburg, was nominated
and confirmed as an associate justice. See U.S. Congress, Senate, Committee
on the Judiciary, Hearings before the Committee on the Judiciary, U.S. Senate, One
Hundredth Congress, 1st Session, on the Nomination of Anthony M. Kennedy to Be
Associate Justice of the Supreme Court of the United States, December 14, 15, and
16, 1987 (Washington, DC: Government Printing Office, 1989). See also
Justice Kennedy, “The Voice of Thurgood Marshall,” 44 Stanford Law Review
1221 (1992). For discussions of Justice Kennedy’s judicial philosophy, see
Lawrence Friedman, “The Limitations of Labeling: Justice Kennedy and the
First Améndment,” 20 Ohio Northern University Law Review 225 (1993);
Christopher E. Smith, “Supreme Court Surprise: Justice Anthony Kennedy's
 1094 | BioGRAPHIES OF CURRENT JUSTICES

Move toward Moderation,” 45 Oklahoma Law Review 459 (1992); and Jeftrey
Toobin, “How Anthony Kennedy’s Passion for Foreign Law Could Change
the Supreme Court,” The New Yorker (Sept. 5, 2005).

Justice Antonin Scalia was born in Trenton, New Jersey, on March 11,
1936. The son of an Italian immigrant professor, he became the first Roman
Catholic to sit on the Court since the appointment of liberal Justice William
J. Brennan, Jr., in 1956. After graduating from Georgetown University, he
spent a year studying in Switzerland and then pursued his law degree at Har-
vard Law School. After working for several years in a leading Cleveland law
firm, in 1967 he began teaching at the University of Virginia School of Law.
From 1971 to 1977 he served in the administrations of Richard M. Nixon
and Gerald R. Ford, after which he spent a year at the American Enterprise
Institute, where he wrote articles attacking affirmative action and advocating
deregulation. He then moved to the University of Chicago School of Law,
where he helped found the Federalist Society, a conservative association of
law students, lawyers, and judges. In 1982, President Ronald Reagan ap-
pointed him to the Court of Appeals for the District of Columbia Circuit,
where he served until his nomination to fill the seat of Associate Justice
William H. Rehnquist in 1986. See U.S. Congress, Senate, Committee on
the Judiciary, Hearings before the Committee on the Judiciary, U.S. Senate, Ninety-
ninth Congress, 2d Session, on the Nomination of Judge Antonin Scalia, to Be
Associate Justice of the Supreme Court of the United States, August 5 and 6, 1986
(Washington, DC: Government Printing Office, 1987). Among Justice
Scalia’s many off-the-bench publications are “The Dissenting Opinion,’
1994 Journal of Supreme Court History 33 (1994); “Originalism: The Lesser
Evil?’ 57 University of Cincinnati Law Review 849 (1989); “The Rule of Law
as a Law of Rules,’ 56 University of Chicago Law Review 1175 (1989); “As-
sorted Canards of Contemporary Legal Analysis,’ 40 Case Western Reserve
Law Review 581 (1990); A Matter of Interpretation (Princeton, NJ: Princeton
University Press, 1997). For discussions of his judicial philosophy, see
Richard Brisbin, Jr., Justice Antonin Scalia and the Conservative Revival (Balti-
more, MD: Johns Hopkins University Press, 1997); Christopher E. Smith, Jus-
tice Antonin Scalia and the Supreme Court’s Conservative Moment (Westport, CT:
Praeger, 1993); Kevin Ring, Scalia Dissents: Writings of the Supreme Court’s
Wittiest, Most Outspoken Justice (Washington, DC: Regnery, 2004); Ralph
Rossum, Antonin Scalia’s Jurisprudence: Text and Tiadition (Lawrence: University
Press of Kansas, 2005); and James Staab, The Political Thought ofJustice Antonin
Scalia (Lanham: Rowman & Littlefield, 2006).

Justice David H. Souter was born in Melrose, Massachusetts, on Septem-

ber 17, 1939. After graduating from Harvard College, he was a Rhodes Scholar
for two years at Oxford University and then returned to Harvard for his law
degree. He started out in private practice in New Hampshire, but soon there-
after began a career in public service, first, as a state assistant attorney general.
In 1971, he became deputy attorney general and in 1976 New Hampshire’s
 BIOGRAPHIES OF CURRENT JUSTICES | 1095

state attorney general. Although a Republican, he was never active in party

politics and instead pursued interests in mountain climbing, classical music,
and history. In 1978, he was named an associate justice of New Hampshire’s
superior court, the state’s trial court of general jurisdiction, and in 1983 he
was elevated to the state supreme court. In April 1990, President George
H.W. Bush, on the advice of his chief of staff and the former governor of
New Hampshire, John Sununu, as well as New Hampshire’s Republican sen-
ator Warren B. Rudman, named Souter to the Court of Appeals for the First
Circuit. Three months later, on July 23, 1990, Bush nominated him to fill the
seat of retiring Justice WilliamJ. Brennan,
Jr.See U.S. Congress, Senate, Com-
mittee on the Judiciary, Hearings on the Nomination of David H. Souter to Be an
Associate Justice of the Supreme Court of the United States before the Committee on
the Judiciary, U.S. Senate, One Hundred First Congress, 2d Session, September 14,
DC:
17, 18, and 19, 1990 (Washington , Government Printing Office, 1991).
For discussions of Justice Souter’s judicial philosophy, see David J. Garrow,
“Justice Souter Emerges,” New York Times Magazine 36 (September 25, 1994);
and Tinsley E. Yarbrough, David Hackett Souter: Traditional Republican on the
Rehnquist Court (New York: Oxford University Press, 2005).

Justice John Paul Stevens was born in Chicago, Illinois, on April 20, 1920.
He graduated from the University of Chicago and then served in the mili-
tary during World War II, after which he attended the Northwestern Univer-
sity School of Law. Following a clerkship for Justice Wiley Rutledge, he
pursued a career in private legal practice, while also teaching part time at
both Northwestern and the University of Chicago law schools. In 1970, Re-
publican President Richard M. Nixon appointed him to the Court of Ap-
peals for the Seventh Circuit, and in 1975 he was appointed to the Supreme
Court by President Gerald R. Ford. See U.S. Congress, Senate, Committee
on the Judiciary, Hearings on the Nomination ofJohn Paul Stevens to Be an Asso-
ciate Justice of the Supreme Court of the United States, Ninety-fourth Congress, 1st
Session, December 8, 9, and 10, 1975 (Washington, DC: Government Printing
Office, 1975). Among Justice Stevens’s off-the-bench publications are “The
Bill of Rights: A Century of Progress,’ 59 University of Chicago Law Review
13 (1992); “Judicial Restraint,’ 22 San Diego Law Review 437 (1985); “The
Life Span of a Judge-Made Rule,’ 58 New York University Law Review 1
(1983); and “Some Thoughts about a General Rule,” 21 Arizona Law Review
599 (1979); “Freedom of Speech,’ 102 Yale Law Journal 1293 (1997). For dis-
cussions of Justice Stevens’s judicial philosophy, see Robert Judd Sickels, John
Paul Stevens and the Constitution: The Search for Balance (University Park: Penn-
sylvania State University Press, 1988); David M. O’Brien, “The Politics of
Professionalism: President Gerald Ford’s Appointment of John Paul Stevens,”
21 Presidential Studies Quarterly 103 (1991); and Note, “Justice Stevens’ Equal
Protection Jurisprudence,” 100 Harvard Law Review 1146 (1987).

Justice Clarence Thomas was born in Pin Point, Georgia, on June 23, 1948.
Raised as a Catholic, Thomas completed his undergraduate degree at Holy
1096 | BioGRAPHIES OF CURRENT JUSTICES

Cross College and then attended Yale Law School. After graduating in 1974,
Thomas joined the staff of the attorney general of Missouri, John Danforth,
a young Republican who became his political mentor. When Danforth was
elected to the Senate, Thomas went into private practice for two years but
subsequently rejoined Senator Danforth’s staff as a legislative assistant and
became active in the movement of conservative blacks opposed to welfare,
busing, and affirmative action. Thomas’s involvement in the conservative
movement within the Republican Party brought him to the attention of the
administration of President Ronald Reagan. In 1981, he was appointed assis-
tant secretary for civil rights in the Department of Education. Within a year,
Reagan promoted him to the position of director of the Equal Employment
Opportunity Commission (EEOC). In 1990, he was named to the Court of
Appeals for the District of Columbia Circuit, and the following year Presi-
dent George Bush named him to replace retiring Justice Thurgood Marshall.
See U.S. Congress, Senate, Committee on the Judiciary, Hearings before the
Committee on the Judiciary, U.S. Senate, 1st Session, on the Nomination of Judge
Clarence Thomas to Be Associate Justice of the Supreme Court of the United States
(Washington, DC: Government Printing Office, 1993). See also Justice
Thomas’ article, “Freedom: A Responsibility, Not a Right,” 21 Ohio Northern
University Law Review 5 (1994); and his publications prior to his appointment
to the Supreme Court, such as “Toward a ‘Plain Reading’ of the Constitu-
tion—The Declaration of Independence in Constitutional Interpretation,”
30 Howard Law Journal 983 (1987); and “The Higher Law Background of the
Privileges or Immunities Clause of the Fourteenth Amendment,” 12 Harvard
Journal of Law & Public Policy 63 (1989); “Judging,” 45 Kansas Law Review 1
(1996). For a discussion of Justice Thomas’s judicial philosophy, see Scott D.
Gerber, First Principles: The Jurisprudence of Clarence Thomas (New York: New
York University Press, 1999); Christopher E. Smith and Joyce Baugh, The
Real Clarence Thomas: Confirmation Veracity Meets Performance (New York: Peter
Lang, 2000); Ken Foskett, Judging Thomas: The Life and Times of Clarence
Thomas (New York: William Morrow, 2004); Andrew P. Thomas, Clarence
Thomas: A Biography (San Francisco: Encounter Books, 2001); and Kevin
Merida and Michael Fletcher, Supreme Discomfort: The Divided Soul of Clarence
Thomas (New York: Doubleday, 2007). See, generally, Clarence Thomas, My
Grandfather’s Son:A Memoir (New York: Harper, 2007).
GLOSSARY

Abatement. A reduction or the suspension, in whole or part, of a continu-

ing charge or activity.
Actual malice. See malice.
Advisory opinion. An opinion or interpretation of law that does not have
binding effect. The Court does not give advisory opinions, for example, on
hypothetical disputes; it decides only actual cases or controversies.
Affirm. In an appellate court, to reach a decision that agrees with the result
reached in a case by the lower court.
Affirmative action programs. Programs required by federal or state laws
designed to remedy discriminatory practices by hiring minority-group per-
sons and/or women.
A fortiori. With stronger reason; a term denoting that because a fact ex-
ists, therefore another, included in it though less probable or unusual,
must also exist.
Ambulatory retroactivity. The changeable or alterable retroapplication of a
constitutional decision, so that the decision applies only to prospective or
pending cases.
Amicus curiae. A friend of the court, a person not a party to litigation, who
volunteers or is invited by the court to give his views on a case.
Appeal. To take a case to a higher court for review. Generally, a party losing
in a trial court may appeal once to an appellate court as a matter of right. If
the party loses in the appellate court, appeal to a higher court is within the
discretion of the higher court. Most appeals to the Supreme Court are
within its discretion to deny or grant a hearing.
Appellant. The party that appeals a lower-court decision to a higher court.
Appellee. One who has an interest in upholding the decision of a lower
court and is compelled to respond when the case is appealed to a higher
court by the appellant.
Bill of Attainder. A legislative act that inflicts punishment on a named indi-
vidual or members of a group without a judicial trial.
Brief. A document prepared by counsel to serve as the basis for an argu-
‘ment in court, setting out the facts and legal arguments in support of his
case.
Case. A general term for an action, cause, suit, or controversy, at law or eq-
uity; a question contested before a court.
Case law. The law as defined by previously decided cases, distinct from
statutes and other sources of law.

1097
1098 | GLossaRy

Certification, writ of. A method of taking a case from appellate court to

the Supreme Court in which the lower court asks that some question or in-
terpretation of law be certified, clarified, and made more certain.
Certiorari, writ of. A writ issued from the Supreme Court, at its discretion
and at the request of a petitioner, to order a lower court to send the record
of a case to the Court for its review.
Civil law. The body of law dealing with the private rights of individuals, as
distinguished from criminal law.
Class action. A lawsuit brought by one person or group on behalf of all
persons similarly situated.
Comity. Courtesy, respect; referring to the deference federal courts pay to
state court decisions that are based on state law.
Common law. The collection of principles and rules, particularly from un-
written English law, that derive their authority from long-standing usage and
custom or from courts recognizing and enforcing those customs.
Compelling state interest. A test used to uphold state action against First
Amendment and equal protection challenges because of the serious need for
government action.
Concurring opinion. An opinion by a justice that agrees with the result
reached by the Court in a case but disagrees with the Court’s rationale or
reasoning for its decision.
Contempt (civil and criminal). Civil contempt is the failure to do some-
thing for the benefit of another party after being ordered to do so by a
court. Criminal contempt occurs when a person exhibits disrespect for a
court or obstructs the administration of justice.
Contract. An agreement between two or more persons that creates an obli-
gation to do or not do a particular thing.
Controversies. See Justiciable controversy.
Criminal law. The body of law that deals with the enforcement of laws
and the punishment of persons who, by breaking laws, commit crimes
against the state.
Declaratory judgment. A court pronouncement declaring a legal right or
interpretation but not ordering a special action.
De facto. In fact, in reality.
Defendant. In a civil action, the party denying or defending itself against
charges brought by a plaintiff. In a criminal action, the person indicted for
the commission of an offense. i
De jure. As a result of law, as a result of official action.
Delegation of powers. The transfer of authority by one branch of govern-
ment to another branch or administrative agency.
Dicta. See Obiter dictim.
Discretionary jurisdiction. Jurisdiction that a court may accept or reject in
particular cases. The Supreme Court has discretionary jurisdiction in over
90 percent of the cases that come to it.
 Gtossary | 1099

Dismissal. An order disposing of a case without a hearing or trial.

Dissenting opinion. An opinion byajustice that disagrees with the result

reached by the Court in acase.
Docket. All cases filed in a court.

Due process. Fair and regular procedure.

The Fifth and Fourteenth Amend-
ments guarantee persons that they will not be deprived of life, liberty, or
property by the government until fair and usual procedures have been fol-
lowed. (see also “substantive due process”)

Enfranchisement. The act of making free (as from slavery); giving a fran-
chise or freedom; conferring the privilege of voting on a class of people.
Enemy belligerent/combatant. Citizens who associate with an enemy
government or organization in order to perform hostile acts.

Equal protection of the law. The guarantee that no person or class of per-
sons shall be denied the same protection of the law in their lives, liberty, and
property.
Error, writ of. A writ issued from an appeals court to a lower court requir-
ing that it send the record of a case so that it may review it for error.
Exclusionary rule. This rule commands that evidence obtained in violation
of the rights guaranteed by the Fourth and Fifth Amendments must be ex-
cluded at trial.
Executive agreement. A treaty-like agreement with another country made
by the president.
Executive privilege. Exemption from the disclosure requirements for ordi-
nary citizens because of the executive’s need for confidentiality in discharg-
ing highly important governmental functions.
Ex parte. From, or on, only one side. Application to a court for some ruling
or action on behalf of only one party.

Ex post facto. After the fact; by an act or fact occurring after some previous
act or fact.
Federalism. The interrelationships among the states and the relationship
between the states and the national government.

Federal preemption. The federal government’s exclusive power over cer-

tain matters such as interstate commerce and sedition to the exclusion of
state jurisdiction and law.

_ Full faith and credit clause. Article IV, Section I, of the Constitution pro-
vides that states must recognize the judicial decisions and laws of other
states.

Gerrymander. The process of dividing a state or other division into legal di-
visions in order to accomplish an ulterior purpose, such as reelecting an in-
cumbent.
1100 | GLOSSARY

Grand jury. A jury of twelve to twenty-three persons that hears in private

evidence for serving an indictment.
Habeas corpus. Literally, “you have the body”; a writ issued to inquire
whether a person is lawfully imprisoned or detained. The writ demands that
the persons holding the prisoner justify his detention or release him.
Immunity. A grant of exemption from prosecution in return for evidence
by testimony.
In camera. “In chambers,” referring to court hearings in private without
spectators.
Indictment. A formal charge of offenses based on evidence presented by a
prosecutor from a grand jury.
In forma pauperis. In the manner of a pauper, without liability for the
costs of filing cases before a court.
Information. A written set of charges, similar to an indictment, filed by a
prosecutor but without a grand jury’s consideration of evidence.
Inherent powers. Powers originating from the structure of government or
sovereignty that go beyond those expressly granted or which could be con-
strued to have been implied from those expressly granted.
Injunction. A court order prohibiting a person from performing a particu-
lar act.
In re. In the affair of, concerning; often used in judicial proceedings where
there is no adversary but where the matter (such as a bankrupt’s estate) re-
quires judicial action.
Intestate. Without making a will.
Judgment. The official decision of a court.
Judicial review. The power to review and strike down any legislation or
other government action that is inconsistent with federal or state constitu-
tions. The Supreme Court reviews government action only under the Con-
stitution of the United States and federal laws.
Jurisdiction. The power of a court to hear a case or controversy, which ex-
ists when the proper parties are present and when the point to be decided is
among the issues authorized to be handled by a particular court.
Justiciable controversy. A controversy in which a claim of right is asserted
against another who has an interest in contesting it. Courts will consider
only justiciable controversies, as distinguished from hypothetical disputes.
Malice. The intentional doing of a wrongful act. In libel, “actual malice” is
the knowing or reckless disregard of the falsity of a statement.
Majority opinion. An opinion in acase that is subscribed to by a majority
of the justices who participated in the decision.
Mandamus, writ of, “We command”; an order issued from a superior court di-
recting a lower court or other government authority to perform aparticular act.
Mandatory jurisdiction. Jurisdiction that a court must accept. The Su-
preme Court must decide cases coming under its appellate jurisdiction,
though it may avoid giving them plenary consideration.
 Grossary | ILO

Moot. Unsettled, undecided. A moot question is also one that is no longer

material, or that has already been resolved, and has become hypothetical.
Motion. A written or oral application to a court or judge to obtain a rule
or order.
Natural rights. Rights based on the nature of man and independent of
those rights secured by positive laws.
Negligence. The failure to do something that a reasonable person would do.
Obiter dictum. A statement by a judge or justices expressing an opinion and
included with, but not essential to, an opinion resolving a case before the
court. Dicta are not necessarily binding in later cases.
Opinion for the court. The opinion announcing the decision of a court.
Original jurisdiction. The jurisdiction of a court of first instance, or trial
court. The Supreme Court has original jurisdiction under Article III of the
Constitution.
Per curiam. “By the court”; an unsigned opinion of the court.
Petitioner. One who files a petition with a court seeking action or relief,
including the plaintiff or appellant. When a writ of certiorari is granted by
the Supreme Court, the party seeking review is called the petitioner, and the
party responding is called the respondent.
Petit jury. A trial jury, traditionally a common law jury of twelve persons,
but since 1970 the Supreme Court has permitted states to use juries com-
posed of less than twelve persons.
Plea bargaining. The process in which the accused and the prosecutor in a
criminal case agree to a mutually acceptable disposition of a case without a
trial.
Plenary consideration. Full consideration. When the Supreme Court grants
a case review, it may give it full consideration, permitting the parties to sub-
mit briefs on the merits of the case and to present oral arguments, before the
Court reaches its decision.
Plurality opinion. An opinion announcing the decision of the Court, but
which has the support of less than a majority of the Court.
Political question. Questions that courts refuse to decide because they are
deemed to be essentially political in nature, or because their determination
would involve an intrusion on the powers of the executive or legislature, or
because courts could not provide a judicial remedy.
Probable cause. Reasonable cause, having more evidence for, rather than
against, when establishing the basis for obtaining a search warrant, for example.
Procedural due process. The safeguards to a person’s liberty and property,
. such as a right to counsel and the right to confrontation.
Rational basis test. A test used by appellate courts to uphold legislation if
there is evidence of a rational basis for the law’s enactment.
Reasonable and probable cause. The grounds for suspecting a person of a
crime and placing him in custody, and which would persuade a reasonable
person that they are true.
1102 | GLossaRY

Reapportionment. A realignment or change in electoral districts due to

changes in population.
Remand. To send back. After a decision in a case, the case is often sent back
by a higher court to the court from which it came for further action in light
of its decision.
Republic. A commonwealth; a form of government open to all.
Respondent. The party that is compelled to answer the claims or questions
posed in a court by a petitioner.
Reverse. In an appellate court, to reach a decision that disagrees with the
result reached in a case by a lower court.
Ripeness. When a case is ready for adjudication and decision; the issues
presented must not be hypothetical, and the parties must have exhausted
other avenues of appeal.
Search warrant. An order issued by a judge or magistrate directing a law en-
forcement official to search and seize evidence of the commission of a crime,
contraband, the fruits of crime, or things otherwise unlawfully possessed.
Separation of powers. The division of the powers of the national govern-
ment according to the three branches of government: the legislative, which is
empowered to make laws; the executive, which is required to carry out the
laws; and the judicial, which has the power to interpret and adjudicate dis-
putes under the law.
Seriatim. Separately, individually, one by one. The Court’s practice was once
to have each justice give his opinion on a case separately.
Sovereign immunity. The doctrine that precludes a litigant from suing a
sovereign without its consent to the suit.
Sovereignty. Supreme political authority; the absolute and uncontrollable
power by which an independent nation-state is governed.
Standing. Having the appropriate characteristics to bring or participate in a
case; in particular, having a personal interest and stake in the outcome.
Stare decisis. “Let the decision stand.” The principle of adherence to settled
cases, the doctrine that principles of law established in earlier cases should be
accepted as authoritative in similar subsequent cases.
State action. Actions undertaken by a state government and those done
“under the color of state law”; that is, those actions required or sanctioned
by a state.
Statute. A written law enacted by a legislature.
Stream of commerce. Refers to local goods that for a brief period of time
are 1n interstate commerce.
Subpoena. An order to present oneself before a grand jury, court, or legisla-
tive hearing.
Subpoena duces tecum. An order to produce specified documents or papers.
Substantive due process. The interpretation of the Fourteenth Amend-
ment due process clause to extend protection to substantive rights and liber-
ties, and not simply to guarantee procedural safeguards. The process of
 Giossary | IL03

selectively incorporating guarantees of the Bill of Rights into the Four-

teenth Amendment and applying them to the states involved substantive due
process analysis, as did the Court’s creation and enforcement of the “liberty
of contract” and the “right of privacy.”
Summary decision. A decision in a case that does not give it full consider-
ation; when the Court decides a case without having the parties submit
briefs on the merits of the case or present oral arguments before the Court.
Tort. An injury or wrong to the person or property of another.
Transactional immunity. Immunity granted a person in exchange for evi-
dence or testimony, which protects that person from prosecution, regardless
of independent evidence against him; see Use immunity.
Treaties. A compact made between two or more independent nations;
treaties are made in the United States by the president with the advice and
consent of the Senate.
Use immunity. Immunity granted a person in exchange for evidence or
testimony but that only protects that person from prosecution based on the
use of his own testimony.
Vacate. To make void, annul, or rescind the decision of a lower court.
War power. The power of the national government to wage war; Congress
has the power to declare war, while the president, as commander in chief, has
authority over the conduct of war.
Writ. An order commanding someone to perform or not perform acts
specified in the order.
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 GENERAL INDEX

Page numbers with an n refer to notes.

abortion Anti-Federalists
amendment banning, 546 Federalists and, 682—84, 836
mootness and, 118 governmental power and, 46
public attention and, 191 on judiciary powers, 24—25, 27
Reagan on, 203 ratifying Constitution and, 545
stare decisis, 126 Anti-Head Tax Act, 726
access, right of, 185, 273 Anti-Terrorism, Crime, and Security
Act of Settlement, 68 Act (2001), 275
Act to Improve the Administration of antiballistic missile (ABM) treaties,
Justice (1988), 181 258-59
Adams, John, 46, 199 anticipatory compliance, 198
Administrative Procedure Act (1946), Appellate Docket, 175
418 appellate jurisdiction, 103, 105, 200
administrative state, 585-667 appointments and removals, presidential
admiralty cases, 37 powers, 370—415
Adoption Assistance and Child Welfare appointments clause, 373—74
Act (1980), 799 apportionment, 482—84, 855—906
advisory opinions, 104—6, 178, 192 Article I, U.S. Constitution
affirmative action, 110—14, 118 on census, 482
African-Americans, see blacks on commerce, 691
age discrimination, 735 commerce clause, 77, 542—43
Age Discrimination in Employment on congressional powers, 232, 481,
Act (1967), 731, 787, 792 542, 667
Agency for International Development contract clause, 990
(AID), 142 on criminal indictment, 455
agenda setting, 175—80 declaring war, 264
aggregation principle, 619-20 on elections, 486
Agricultural Adjustment Act (1938), on membership in Congress, 485
585, 602 on presidential powers, 416
al Qaeda, 269, 272, 295, 300, 314-15 private property, 988
Alien and Sedition Acts (1798), 30, 43, on representation, 484, 687
265, 269, 685 on states’ powers, 671
ambulatory-retroactive doctrine, 193 text of, 1-6
_.Amendments to Constitution, 544—45 on voting rights, 838
American Civil Liberties Union Article II, U.S. Constitution
(ACLU), 194, 940 appointments clause, 373—74
Americans with Disabilities Act (1990), on pardons, 457
7359792, 794—95 on presidential power, 232—33, 370
announce clause, 967 text of, 7-9
Anthony, Susan B., 839 on treaties, 259—60

1105
 1106 | GENERAL INDEX

Article III, U.S. Constitution ratifying, 546

judiciary powers, 23—24, 26, 31, 796 suspending, 271
jurisdiction, 103 Uniform Code of Military Justice
justice salaries, 200 and, 251
original jurisdiction, 115 Bipartisan Campaign Reform Act
standing to sue, 122 (2002), 909-10, 940, 956
on states’ powers, 687 birds, migratory, 250
text of, 9-10 birth control cases, standing to sue,
Article IV, U.S. Constitution 120-22
liberty of contract and, 1020 Bituminous Coal Conservation Act,
private property, 988 574
republican government, 119 blacks; see also civil rights; racial dis-
states’ rights, 687 crimination; school desegregation;
Supremacy Clause, 31 slavery
text of, 10-11 citizenship and, 33, 75, 201
ArticleV, U.S. Constitution equal protection clause, 82
amendments and, 91 Jaybird Party and, 908
on congressional powers, 481 voting rights, 838—43, 907
on ratification time limit, 546 Blackstone, William, 67—70, 989
on representation, 687 Blackstonian theory of law, 67—70, 206
text of, 11 Boulder Canyon Project Act (1928),
Article VI, U.S. Constitution, 11, 31, 590n
687, 693, 796-97 Brady Handgun Violence Prevention
Article VI, U.S. Constitution, 12, 683 Act (1993), 734, 758
Articles of Confederation, 233, 682— Brandeis brief, 71, 96
83, 691, 837 British constitution, 40, 68—70
Ashcroft Directive, 663 bubble policy, 420
association, right to, 271, 531, 909, 936, Budget and Accounting Act (1921),
940 385, 395, 416
Atomic Energy Act (1946), 342, 723 Bush, George H. W,, 251, 267
attorney general, 192 Bush, George W., 117, 200, 267, 269,
Austria, 96, 178, 628 300, 368-69
Authorization for the Use of Military
Force Joint Resolution (2001), campaigns and elections, 482, 486,
295, 300, 303—4, 308, 314, 333, 906-87
369 Canada, 95, 250, 690
capital punishment, 81
Bail Reform Act, 313 capitalism
balanced budget amendment, 546 contract clause, 990-1019
Balanced Budget and Emergency defending, 38
Deficit Control Act, 372, 389—90, economic rights and, 988—90
394, 442, 444, 451 liberty of contract, 1020-54
Bank of the United States, 550, 553 takings clause, 1054—79
bankruptcy cases, 990 capitalism, laissez-faire, 199, 571, 669,
Basic Law on Freedom of Occupation, 1025
69 Carter, Jimmy, 240, 243—44, 419-20
Basic Law on Human Dignity and Lib- cases/caseload
erty, 69 briefing, 1083-85
Belgium, 178, 628 changes in, 102
bicameral legislature, 482, 690 citations, 1085—86
Bill of Rights rule of four and, 177
adopting, 728 summarily decided, 181
application to states, 76, 798, 817, switching votes on, 185
822 census taking, 482—83, 857-58
 GENERAL INDEX | 1107

Central Intelligence Agency (CIA), jurisdiction and, 115

031,342,369 states’ powers and, 693, 729, 732
certification, writ of, 103 commercial speech doctrine, 910
certiorari petitions Common Cause, 194
class action suits, 117 common law, 37
denial of, 177, 181 Communist Control Act (1954), 270
jurisdiction and, 103—4 Communist Party, 513,711
mandatory appeals and, 175 comparative constitutional interpreta-
screening, 126 tion, 95-97
Chase, Samuel, 198, 539 compliance, with decisions, 191—231
checks and balances, 32, 196, 239 concrete constitutional review, 178
chief executive, see presidents concurrent power theory, 693
chief justices, 187, 1087 concurring opinions, 190
child labor, 546, 572, 581, 669 confederations, 689-91
child support laws, 109 conference deliberations, 183—87, 193
China, 240 Conference of State Chief Justices,
circuit court of appeals, 105, 126-27 817
circuit riding, 28—29 Congress
citizen suits, 109-10 acts held unconstitutional, 36
citizens/ citizenship appellate jurisdiction and, 103, 200
blacks and, 33, 75, 201 discretionary jurisdiction, 103, 175
privileges or immunities clause, 1020 on federal court powers, 801n
property rights and, 1021 foreign affairs and, 235
wartime and, 269-75 joint resolution for removals, 393
civil rights legislation and, 201—2
avenues of appeal and, 105 on presidential power, 239—40
congressional powers and, 587 pressures by, 199
Court and, 38, 198 on republican government question,
Kennedy and, 203 119
voting rights and, 840 on standing to sue, 109
in wartime, 269-75 on voting rights, 840
Civil Rights Act (1957), 607, 846 Congressional Budget Office (CBO),
Civil Rights Act (1960), 846 389-90
Civil Rights Act (1964), 191, 587, congressional legislation, 37, 103,
605—6, 612, 730, 846 2002
Civil Service Act (1883), 371 congressional powers
Civil War, 264 delegation of, 416
Class action Fairness Act (2005), 117 expansion of, 731
class action suits, 117 investigatory powers, 511—41
Clean Air Act, 420 legal formalism through New Deal,
Clean Water Act, 113 569-85
clear and present danger test, 76, 270 legislative powers, 548—69
Clinton, Bill membership and immunities, 481—
ethics investigations and, 399 511
immunity and, 457 New Deal through administrative
impeachment and, 456, 477—80 state, 585-667
picture of, 474 overview, 232, 264, 542—47
_ presidential power and, 267 as plenary, 692
commander in chief, 232, 238—49, regulatory powers, 416—22
264 states’ powers and, 732
commerce clause taxing and spending powers, 667—80
congressional powers and, 543, 587— conscience test, 88
88 consensus, 186
constitutional interpretation and, 77 consequentialism, 94
1108 | GENERAL INDEX

Constitution impact of, 191-231

amendments, 12—21, 544—45 locating, 28
articles, 1-12 opinions and, 187—90
as living document, 86 overruled, 36
oath to support, 31 power of process, 102
private property, 988 strict procedures and, 418
ratifying, 545, 683 Declaration of Independence, 683, 834
structural analysis of, 94 Declaratory Judgment Act, 106
text and historical context, 75—85 declaratory theory of law, 67, 70
on voting rights, 838 Democratic Party, 46, 936
constitutional amendments, 12—21, Denmark, 628
89-92, 544—45 departmental theory of constitutional
Constitutional Convention of 1787 interpretation, 31
on congressional powers, 543 Detainee Treatment Act (2005), 200,
on federalism, 681-91 315-16
Framers’ intent and, 79 detention of terrorists, 275—76
on power of judiciary, 24 direct injury test, 107, 115
on presidential power, 233, 264, 416 discretionary jurisdiction, 103, 126, 175
on voting rights, 836—37 discriminatory intent test, 841
constitutional courts, European model, Discuss List, 186
178-80 dissenting opinions, 188—90
constitutional interpretation, 31, 66— district courts, 105, 108
101, 103 District of Columbia, 544, 546
Consumer Credit Protection Act docket of Supreme Court, 102, 175,
(1968), 587 ig)
consumer groups, 194 doctrine of federal preemption, 695
Consumer Product Safety Commis- doctrine of judicial deference, 421
sion, 413, 418 doctrine of strict necessity, 125
contempt of Congress, 511—41 domestic affairs, 235, 338-70
Continental Congress, 834 dormant power theory, 693
contraceptives, 120—22 Douglas, Stephen, 33
contract clause, 990-1019 Douglas, William O., 456
“Contract with America,’ 485 Drivers’ Privacy Protection Act (1994),
Controlled Substances Act (CSA), 589, 588, 626
654, 663 Drug Enforcement Administration
cooperative federalism, 690 (DEA), 260-61, 654
corporations, 910, 1023 dual federalism doctrine, 670, 686
corpus delicti, 122 due process clause
Court of Claims, 388 citizenship and, 1021
Court of Military Appeals, 105 congressional powers and, 668
Courts of Appeal, 108 constitutional interpretation, 77, 88
criminal cases, 817 emergency powers and, 272
criminal law/procedures, 587 liberty of contract and, 1023
Critical Legal Studies movement, 73 presidential powers and, 373, 417
Critical Race Theory, 73 private property, 988
cruel and unusual punishment, 81 slaves and, 1022
Cuba, 240
Currency Act (1863), 384 economic rights
Czech Republic, 178 contract clause, 990-1019
liberty of contract, 1020—54
Dead List, 186 overview, 988—90
death penalty, 81 takings clause, 1054-79
decisions education, 107, 115-16, 166
communicating, 190 Eighteenth Amendment, 17, 90,671 .
 GENERAL INDEX | I109

Eighth Amendment, 13, 81, 96 executive privilege

Eisenhower, Dwight D., 191 constitutional interpretation and,
elections, 482, 486, 906-87 76
electoral college, 233, 915 national security and, 453
Electoral Count Act (1887), 916 Nixon and, 454, 457
electronic surveillance, 368—70 withholding documents and, 512,
Elementary and Secondary Education 514
Act (1965), 140, 148 extradition treaties, 251, 261
Eleventh Amendment
congressional power and, 588 Fair Labor Standards Act (1938), 586,
FMLA and, 786 598, 612, 728, 734, 736, 739, 7
right to privacy and, 626 79
sovereign immunity and, 29, 103, fair probability, 828—29
201 Family and Medical Leave Act (1993),
states and, 687, 728—95 735, 786, 794
text of, 14 Farm Mortgage Act, 589n
emergency powers, presidential, 264—~ Federal Advisory Committee Act, 458
370 Federal Agriculture and Reform Act
Employee Retirement Income Security (1996), 727
Act (ERISA), 696, 724—27 Federal Arbitration Act, 726
Endangered Species Act (1973), 110, Federal Aviation Act, 725
141-42 Federal Child Labor Act (1916), 572,
Enemy Alien Act (1798), 270 581, 669
enemy combatants, 200, 251, 269-75, Federal Child Labor Tax Act (1919),
300 669
enumerated powers, 542—43 Federal Cigarette Labeling and Adver-
Environmental Defense Fund, 194—95 tising Act (1965), 725-26
environmental issues, 109-10, 194 Federal Communications Commission
Environmental Protection Agency, 399, (FE @)H4175 9110
418, 725 federal courts, 37, 105—6, 798
equal protection clause, see Fourteenth Federal Election Campaign Act
Amendment (FECA), 909, 925, 936, 940, 965—
Equal Rights Amendment, 544, 546 66
equity issues, 37, 40 Federal Election Commission, 936
Espionage Act (1917), 270 Federal Flag Protection Act (1989), 90
establishment clause, 75, 94 federal government, representation and,
Ethics in Government Act (1978), 300, 833=55
372, 398, 414 federal income tax, 201, 668, 731
European Coal and Steel Community Federal Insecticide, Fungicide and Ro-
(ECSC), 628 denticide Act, 727
European Convention on Human Federal Kidnapping Act, 590n
Rights, 68, 275 Federal Maritime Commission (FMC),
European Court of Justice (ECJ), 95, 793
628-30 federal preemption, doctrine of, 696
European Court of Justice on Human Federal Property and Administrative
Rights, 68 Services Act (1949), 139, 141
European Economic Community Federal Railroad Safety Act (1970), 725
(EEC), 628 Federal Rules of Civil Procedure, 117
European Union, 68, 628-30 Federal Trade Commission (FTC), 372,
exclusionary rule, 193, 205, 813 386, 388
executive agreements, 250—52 Federal Travel Act (1970), 587
executive independence, 249-64 Federal Water Pollution Control Act,
executive powers, see presidential 421
powers Federal Water Power Act (1920), 590n
1110 | GENERAL INDEX

federalism states and, 675, 822—23

judicial power and, 796—820 text of, 13
state courts and, 796—832 filings, 104, 177, 190, 820
states and, 681—91 final judgment, 117
states’ power, 691—727 Finland, 628
Tenth/Eleventh Amendments, 728— First Amendment
95 Alien and Sedition Acts and, 685
Federalist Papers announce clause and, 967
citations and, 79 commercial speech doctrine, 910
No. 10, 836 congressional inquiries and, 513-14
No. 15, 498, 762, 766 constitutional interpretation, 76
No. 22, 436 (dis)establishment clause, 94
No. 23, 234, 239 fair probability and, 829
No. 27, 761, 766, 768 flag burning and, 90
No. 36, 618, 761, 768 freedom of association, 531, 907,
No. 39, 682, 745, 762—63 936, 940
No. 41, 234 freedom of speech, 271, 908, 912,
No. 42, 542, 691 936, 940
No. 44, 761, 768, 1010 interference with, 507
No. 45, 312, 614, 751, 761, 767—68 judicial review and, 30
No. 46, 652 national security and, 76
No. 47, 391, 446 Pledge of Allegiance and, 115-16
No. 51, 232, 309, 406-7, 413 presidential powers and, 341
No. 57, 870 religious freedom, 213—14
No. 63, 836 right of access, 185, 273
No. 65, 538 right of association, 909
No. 70, 233, 237-38, 310 separation of church and state, 75
No. 73, 406, 436 states and, 822
No. 78, 30, 67, 748 text of, 12
No. 84, 312 527 groups, 910
Federalists flag, American, 36, 90-91
Anti-Federalists and, 682—84, 836 Food and Drug Administration (FDA),
on constitutional interpretation, 66— 417
67 Ford, Gerald, 455-57
Jeffersonian-Republicans and, 269— foreign affairs, presidential power and,
70 235, 238-49
Judiciary Act of 1801 and, 199 Foreign Intelligence Surveillance Act
on judiciary powers, 26—27, 30 (1978), 330-34, 341, 368-70
packing the courts, 46 Four Horsemen, 586, 670, 1030-31
federations, 689-91 Fourteenth Amendment
FIFRA, 727 on apportionment, 483
Fifteenth Amendment Bill of Rights and, 76
on congressional powers, 543 citizens and, 201
dissenting opinions and, 189 on congressional powers, 543, 731—
Jaybird Party and, 908 eASZ
text of, 16 constitutional interpretation, 77
on voting rights, 838—40, 865 corporations and, 1023
Fifth Amendment desegregation and, 35
due process and, 272, 373, 1021— dissenting opinions and, 189
22 due process clause, 88, 1021
private property, 988 equal protection clause, 82, 150, 272,
reputation and, 110 605-6, 873, 907
rights of suspects, 193 on gerrymandering, 863
self-incrimination and, 513, 516 liberty of contract and, 1020, 1023.
 GENERAL INDEX | IIII

privileges or immunities clause, 1021 Gramm-Rudman-Hollings Act, 389—

reputation and, 110 90, 394-95
states and, 822 grandfather clauses, 913n
on voting rights, 838—40 Grant, Ulysses, 200, 839
Fourth Amendment Great Britain, 96, 628
constitutional interpretation and, 82 Great Depression, 1010, 1030
exclusionary rule, 193, 205, 813 Greece, 628
gender discrimination, 735 Guttey Coal Act, 417
judicial power and, 35 Gulf of Tonkin Resolution, 266—67
on powers, 730 Gun Control Act (1968), 758
reasonableness clause, 77 Gun-Free School Zones Act (1990),
states and, 823 217-18, 588, 614, 643-44, 734
text of, 12-13, 15-16
unreasonable searches and seizures, habeas corpus, writ of
76, 82, 272, 824 enemy combatants’ rights, 200
violence against women and, 588 impact of decisions and, 199, 202
Framers’ intent a jurisdiction and, 104
on congressional powers, 542 presidential power and, 234, 266,
constitutional interpretation and, 279-80
78-83 reviewing, 798—800, 813, 817-18
judicial review, 24 Hamilton, Alexander, 237—38, 548, 988
on representation, 482, 484 hard look approach, 418-19
representative government, 836 Harding, Warren, 512
France, 96, 178—79, 628 Hawaii, land-tenure system, 1060
Franklin, Benjamin, 837 headnotes, 190
free exercise clause, 75 Health Management Organizations
friendly suits, 104—6 (HMOs), 726-27
Fugitive Slave Act (1850), 797 Holland, see Netherlands
full hearing, 177, 181-83 homosexual rights, 82, 832
fundamental fairness standard, 88 Hoover, Herbert, 386, 1010
funding, 799 hot-deck imputation, 483
Fungicide and Rodenticide Act (1972), House of Representatives; see also
724 Congress
campaign expenditure limits, 909
Gamblers’ Occupational Tax Act representation in, 482, 484, 855
(1951), 675 House Un-American Activities Com-
gender discrimination, 735, 794 mittee (HUAC), 270, 513, 516,
General Services Administration, 457 524
Geneva Convention III (1949), 269, human dignity, 89, 93
304, 334 human rights
Germany comparative law and, 96
Basic Laws, 690 Europe and, 68
comparative constitutional interpre- Israel and, 69
tation and, 95 Human Rights Act (1998), 68
constitutional courts, 178-79 Hungary, 178
EC] and, 628
federalism and, 690 Immigration and Naturalization Act,
human dignity and, 89 36, 433, 439
working hours for women, 96 Immigration and Naturalization Ser-
gerrymandering, 124, 860, 862-63, vice (INS), 273, 433
879, 903-6 immunities
glossary, 1097-1103 congressional, 481—511
Golden Fleece Awards, 483 presidential, 453-80
Gorbachev, Mikhail, 258 Immunity Act (1954), 515n
1112 | GENERAL INDEX

impeachment Japanese Americans, internment of,

challenge to, 514 235, 265—66, 270, 286-87
of Chase, 198 Jay Treaty, 239, 796
Clinton and, 457, 477-80 Jaybird Party, 908
Congress and, 199, 511—41 Jefferson, Thomas
Constitution on, 371 executive power and, 234, 265
constitutional history, 539-41 on impeachment, 539
judges and, 537 on judicial review, 30
Nixon and, 124, 455-56, 469-72 on national banks, 549—50
presidents and, 453 on voting rights, 838
implied powers, 543 Jeffersonian-Republicans
in forma pauperis, 104 Alien and Sedition Acts, 43, 269, 685
India, 89 on constitutional interpretation, 66—
Indian Gaming Regulatory Act (1988), 67, 94
734, 769 governmental power and, 46
indigents, 104, 692 impeachment and, 198
Industrial Revolution, 37—38, 571, Judiciary Act of 1801 and, 199
855, 993 on national banks, 550
INF treaty, 258—60 Jehovah’s Witnesses, 194
injury tests, for standing to sue, 106-16 Johnson, Andrew, 200, 456, 458
institutional opinions, 188 Johnson, Lyndon B., 191, 266
institutionalization of Court, 180 Join-3 vote, 177
interest groups, 109, 194—95 judges
Interest on Lawyers Trust Account impeachment and, 537
(LOLTA) programs, 1079 racial discrimination and, 842
Interior, Department of, 141—42 supporting Constitution, 31
Internal Security Act (1950), 270, 508, theory of legal positivism, 67
713 judicial federalism, 796—820
International Emergency Economic Judicial Improvements and Access to
Powers Act (IEEPA), 243, 245, Justice Act (1988), 177
248—49 judicial notice, 85—87
interpretivism, 73, 76—77, 82, 92 judicial power, federalism and, 796—
interstate commerce, 77, 115, 569—73, 820
696, 707 judicial restraint, 125, 174
Interstate Commerce Act (1887), 428, judicial review
bos 0 707603" 615 Article III and, 23—24
Interstate Commerce Commission difficulty of, 92
(ICC), 417, 573 equal protection clause and, 82
intrastate commerce, 570, 573-74 establishment of, 27—67
investigatory powers, congressional, European model of, 178-80
511-41 first exercise of, 29
Iran hostage crisis, 240, 243—44 hard look approach, 418-19
Ireland, 628 jurisdiction and, 103
Israel, 68—70, 334-37 philosophies and, 81—82
issue ads, 909-10, 944—45, 956 process-oriented theory of, 94
Italy, 96, 178-79, 628 of regulatory action, 109
testing power of, 46
Jackson, Andrew judicial supremacy, 33
confrontation with Court, 202 Judicial Watch, 458
Court size and, 199 Judiciary Act (1789), 23, 29, 32, 46,
on national banks, 32,58, 551 50n, 796, 801
spoils system, 375 Judiciary Act (1801), 198-99
Veto Message, 32—33, 58—60 Judiciary Act (1925), 103, 126, 175
Japan, 95 jurisdiction
 GENERAL INDEX | I113

adverseness and advisory opinions, overturning, 72

104—6 standing to sue and, 109
defined, 103 state, 29-30, 36, 55
European courts and, 179 legislative business, 486
formal rules and practices, 126—27 legislative mandates, 417
over foreign nationals, 272-73 legislative powers
over states’ rights, 198 congressional, 548—69
over subversive activities cases, 524 presidential, 338, 416—53
political question doctrine, 119-24 Legislative Reorganization Act, 517
questions of, 37 legislative vetoes, 36, 422, 433
ripeness and mootness, 116-18 liberal jurisprudence, 75
standing to sue, 106-16 liberal legalism, 73
stare decisis, 125-26 liberty of contract, 73, 76, 669, 993,
state courts, 797—98 1020—54
jurisprudence of original intention, Lincoln, Abraham, 33-34, 199, 234,
TI=719 264, 369
jury, right to, 85 Lindh, John Walker, 271
just compensation, 1054—79 Line Item Veto Act (1996), 113, 422,
Justice, Department of, 126, 191-92, 442—44, 450-51
203, 359, 663, 842 liquor, 90, 571—72, 1022
justices literacy tests, 839—40, 850, 907, 913n
biographies, 1091—96 Litvinov Assignment, 256
constituents of, 192 Locke; John} 233=35432,1833, 989;
influence in opinions and, 187 99192,
listed, 1087-90 Louisiana Territory, 234
oral argument and, 181—83 Low-Level Radioactive Waste Policy
picture of Burger Court, 184 Acts, 752-53, 763
private conference room, 193 loyalty oaths, 908
salaries of, 201 Luxembourg, 628
justiciable controversies, 103-74
Madison, James
Kennedy, John F, 203 on Court size, 199
Kent, James, 40—42 on judicial review, 30-31
Kentucky Resolutions (1798), 30, 44— Madisonian system, 72
45, 265, 685 on national banks, 549
King, Martin Luther, Jr., 840 presidential power and, 234, 371
Knesset, 68—69 publication of notes, 79
Korean War, 344 Magna Carta, 68, 1021
majority vote, 177, 188
Labor Management Relations Act mandamus, writs of, 46—55, 104
(1947), 356 Marshall, John, 34, 239, 552
Lacey Act, 709 Mass Transportation Act (1964), 723
laissez-faire capitalism, 199, 571, 669, Maternity Act (1921), 131, 135
1025 McCain-Feingold law, 910, 940
Lawyers’ Edition, 28 McCarthy, Joseph R., 270, 513
League of Women Voters, 495 Meese, Edwin, III, 78
legal formalism, 569-85 Mexico, 250-51, 260—61
_legal positivism, theory of, 67 Migratory Bird Treaty Act (1918),
legal pragmatism, 73 250
legal research, 1081—82 Military Commissions Act (2006), 200,
Legal Tender Act (1862), 1022 251, 267
legislation military tribunals, 373
congressional, 37, 103, 201-2 millionaire provisions, 941
European courts and, 178 minimum-wage laws, 585, 739
1114 | GENERAL INDEX

Minnesota Moratorium Act (1934), Nineteenth Amendment, 18, 90-91,

590n 838-39
Miscellaneous Docket, 175 Ninth Amendment, 14
Mobbs Declaration, 301—2 Nixon, Richard
monopolies, business, 1021 enacting regulations, 418, 421
Monroe, James, 199 ethics investigations and, 399
mootness, jurisdiction and, 116-18 executive power and, 234, 341
Motor Voter law, 853 executive privilege and, 454, 457
Mountain States Legal Foundation, 195 Gulf of Tonkin Resolution, 266
Municipal Bankruptcy Act, 589n impeachment and, 124, 455—56,
mutual exclusiveness theory, 693 469-72, 539
Myrdal, Gunnar, 87 implementing rulings, 202—3
picture of, 454
“Nader’s Raiders,” 194 on voting age, 201
National Association for the Advance- noncitizens, wartime and, 269-75
ment of Colored People nondelegation doctrine, 373, 417,
(NAACP), 194, 531 419
National Association for Women, 194 Nondetention Act (1971), 308
National Bank Act, 727 noninterpretivism, 73, 82, 85
national banks, 32, 58, 94,548—51 nonoriginalism, 80
National Conservative Political Action North American Free Trade Agreement
Committee (NCPAC), 936 (NAFTA), 250
national defense, see national security
National Energy Policy Development Occupational Safety and Health Act
Group (NEPDG), 458-59 (1970), 430-31, 724
National Guard, 805 Occupational Safety and Health Ad-
National Industrial Recovery Act ministration (OSHA), 418—20,
(1933), 417, 424—29, 585, 591-92 430
National Labor Relations Act (1937), Office of Management and Budget
586, 591, 726 (OMB), 389-90, 416
National Labor Relations Board Oil Pollution Act (1990), 726
(NLRB), 586, 591 Omnibus Crime Control and Safe
National Recovery Act, 574 Streets Act (1968), 201, 587, 590n
National Recovery Administration, 424 one person, one vote principle, 484,
national security 857, 859
executive privilege and, 453 opinion days, 190
First Amendment and, 76 opinions, 116, 185, 187—90
president and, 338—70 oral argument, 177, 181—83
presidential power and, 235 original intention, see Framers’ intent
subverting liberties for, 265 original jurisdiction, 103, 105, 115
National Security Agency, 332, 368-70 originalism, 79-80
natural justice, 29
natural law, 85, 88 Pacific Legal Foundation, 195
Natural Resources Defense Council, packing the Court
15) Federalists, 46
Netherlands, 96, 628 Roosevelt and, 61, 65, 128, 199,575,
New Deal legislation 592, 1030
congressional powers and, 569—667 Paine, Thomas, 835
invalidation of, 34, 61, 199, 1030 pardon, presidential, 232
National Industrial Recovery Act, Parliament Acts, 68
424 Patent and Plant Variety Protection
nondelegation doctrine and, 417 Remedy Clarification Act, 792
reversals of, 128 Pentagon Papers, 203, 234, 341, 487,
New York Times, 359 502
 GENERAL INDEX | III5

per curiam opinions, 181 impeachment of, 453

personal injuries, 109 implementing rulings, 202—3
personal reputation, injury to, 110 press, 185, 190, 271
Petition of Right, 1021 primary elections, 907—8
petitions for certiorari, see certiorari peti- prisoners, 104, 185, 199
tions privacy, right of, 73, 195, 219, 457, 626
plaintiffs, 109 private cause of action, 109
Planned Parenthood League of Con- privileges or immunities clause, 1020—
necticut, 122 21
Pledge of Allegiance, 115-16, 166 probate issues, 37
plenary powers, 687, 692 production/distribution rule, 571
pocket veto, 416 Progressives, 199
pocketbook injury, 106 property
Poland, 178 citizenship and, 1021
police practices, 193 congressional powers and, 668
political action committees (PACs), slaves as, 87-88
910, 936 takings clause and, 1054
political issues, 117—18 vested interests in, 990-1019
political jurisprudence, 73 prudential standing, 115—16
political parties, 838 Public Accommodations Act, 605
political question doctrine, 119-24, Public Health Cigarette Smoking Act
150, 483 (1969), 725
politics, reversal of precedent and, public information office, 190
128-30 public opinion, power of, 191
poll taxes, 839—40, 907 public policy issues, 194—95, 202—4
Portugal, 178, 628 public schools, 107, 115—16, 166
pragmatism, 94 Public Utility Holding Company Act,
prayer in schools, see school prayer 585
precedent, reversal of, 128—30 Pure Food and Drugs Act, 601
Presidential Election Campaign Fund
Act, 936 racial discrimination, 94, 587, 605, 840,
presidential powers 842, 866
appointment and removal powers, Railway Labor Act, 736—37
370-415 Reagan, Ronald
as commander in chief, 238—49 on abortion, 203
executive powers, 32, 416, 423-24 assassination attempt, 758
‘Johnson on, 458 enacting regulations, 420
legislative powers, 416—53 presidential powers and, 240, 251,
misusing, 456 361
office and, 232—38 reparation to Japanese Americans,
treaty-making and, 249-64 266
war-making and emergency powers, SDI and, 259
264-337 voting rights and, 841
Presidential Recordings and Materials reapportionment, see apportionment
Preservation Act (1974), 457 reasonableness clause, 77
presidential signing statements, 416, Reconstruction, 38, 543, 839
423-24 “Red Scare,’ 270
presidential vetoes, 232, 416, 452-53 Rehnquist, William, 729
presidents religion, 587
accountability and immunities, 453— Religious Freedom Restoration Act
80 (RFRA) (1993), 588, 630-31, 637
advisory opinions and, 106 relitigation policies, 126
confronition with Court, 34 removal powers, presidential, 370—415
Court appointments and, 128-29 Reorganization Acts (1945/1949), 393
1116 | GENERAL INDEX

reporter of decisions, 190 separate but equal doctrine, 191, 686

representation separation of church and state, 75—76,
Article I on, 484, 687 115-16, 166, 192
Framers’ intent, 482 separation of powers, 32, 119, 338,
overview, 833-55 373, 457
property and, 988 Seventeenth Amendment, 17, 482, 731,
Republican Party, 485, 839 838
residency requirements of voters, 907 Seventh Amendment, 13
results test, 841 Sherman Antitrust Act (1890), 570—71,
reversals of precedent, 128-30 574, 576, 590n, 603
reverse clause, 590n shocks the conscience test, 88
revisionist historians, 87 Shreveport doctrine, 573
right to jury, 85 Sierra Club, 109, 194, 458
ripeness, jurisdiction and, 116-18 Single State Registration System, 727
Romania, 178 Sixteenth Amendment, 17, 201, 669,
Roosevelt, Franklin D. vei
executive power and, 234, 241, 386 Sixth Amendment, 13, 85, 193, 823
Litvinov Assignment, 256 slavery, 87-88, 201, 483, 546, 838,
New Deal and, 34, 199, 1030 1022
packing the Court, 61, 65, 128, 199, Slovakia, 178
575, 592, 1030 Smith Act (1940), 270, 529
radio broadcast, 61—66 Social Darwinism, 1023, 1028
warrantless surveillance, 369 Social Security Act (1935), 585, 670—
women’s suffrage and, 839 71
Rule 23, 117 sociological jurisprudence, 70
rule of four, 175-80 Soldiers’ and Sailors’ Civil Relief Act
Russia, 178 (1940), 473
sole organ theory, 239
Safety Appliance Act, 573 solicitor general, 192
salaries of justices, 200 South African Constitution, 96
Saturday Night Massacre, 462 Southern Manifesto, 196—97
school desegregation sovereignty, 682—89, 728
implementing, 191 Soviet Union, 95, 256
jurisdiction and, 797 Spain, 178-79, 628
landmark case, 129 special interest groups, 109, 194—95
opposing, 805 Special List I, 186
public attention and, 192 Special List I, 186
social science citations, 86—87 speech, freedom of, 271, 908, 912, 936,
Warren Court and, 860 940
school prayer speech or debate clause, 483, 487-88,
implementation of decisions, 213— 502-7, 510-11
14 spending powers, congressional, 667—
public attention and, 192 80
regional differences on, 192 spoils system, 375
schools, public, 107, 115-16, 166 standing to sue, 106-16, 120—22
screening cases, 175 Stanton, Elizabeth, 838
Second Amendment, 12 stare decisis, 125-26
Sedition Act (1798), 32 “state action” doctrine, 605
selective exclusiveness theory, 693 state courts
Senate, 482 avenues of appeal, 105
Senate Permanent Investigations Sub- jurisdiction, 797—98
committee, 270 state constitutional law and, 820—32
senatorial courtesy, 371 state government, 105, 192,482 ~
Sentencing Reform Act (1984), 372 state legislation, 29—30, 36, 55
 GENERAL INDEX | ILI7

State of the Union address, 416 Tenth Amendment

states congressional power and, 588
Bill of Rights and, 76, 798, 817, 822 on powers, 253, 545, 670, 675, 677
Congress on powers of, 8011 right to privacy and, 626
constitutional law and, 820—32 standing to sue and, 107
federalism and, 681—91 states and, 687-88, 728—95, 844
representation of, 482 text of, 14
sovereignty of, 76, 682—88 Tenure of Office Act (1867), 375, 380,
Tenth and Eleventh amendments 384-85
and, 728—95 term limits, 485-86
states’ powers, 253, 543-45, 671, 675, terrorism, war on, 267, 269, 272, 300,
687, 691-727 330-34
Strategic Arms Limitation Treaty ~ Terrorism Act (2000), 275
(SALT) II, 250, 258 Test Oath Act (1862), 485
strategic defense initiative (SDI), 259 Third Amendment, 12
stream of commerce test, 573 Thirteenth Amendment
strict constructionists, 75, 77, 265 on congressional powers, 543
strict necessity, doctrine of, 125 dissenting opinions and, 189
strict procedures ensure correct results, slavery and, 201, 483
418 text of, 15
strict scrutiny test, 863 Tillman Act (1907), 941
suffrage, see voting rights Title VI (Civil Rights Act), 113-14,
summarily decided cases, 181 587
Supreme Court Tocqueville, Alexis de, 119
early sessions, 27—29, 37 torture, use of, 334—37
foreign affairs and, 235 Trading with the Enemy Act (1702),
formal rules and practices, 126—27 247
institutionalization of, 180 Train Limit Law (1912), 703
picture of, 84 Treasury, Department of, 369
power and, 195 treaties, presidential power and, 249-64
presidential influence, 202—3 Truman, Harry, 234, 340, 344
pressures from Congress, 199 Twelfth Amendment, 14—15, 481
public policy issues, 202—4 Twentieth Amendment, 18-19
web site, 183 Twenty-fifth Amendment, 20-21
The Supreme Court Reports, 28 Twenty-first Amendment, 19, 90, 671,
Surface Transportation Assistance Act 677-78
(1984), 677 Twenty-fourth Amendment, 20, 838,
Sweden, 628 840
Switzerland, 96, 690 Twenty-second Amendment, 19
symbolic speech, 77 Twenty-seventh Amendment, 21, 546—
47
Taft, William Howard, 236 Twenty-sixth Amendment, 21, 201,
Taft-Hartley Act (1947), 344, 347 838, 841
“take care” clause, 421 Twenty-third Amendment, 20
takings clause, Fifth Amendment,
1054-79 unanimity, opinion writing and, 187
Taliban, 295, 301, 314 unemployment compensation, 589—
.Taney, Roger, 694 90n
Tariff Act (1890), 444 Uniform Code of Military Justice
taxation, 37, 201, 667—80; see also fed- (UCMI)R251),313—14,.373
eral income tax United States Reports, 28
Taxpayer Relief Act (1997), 443-44 Universal Military Training and Service
taxpayer suits, standing to sue, 107—9 Act, 358
Teapot Dome scandal, 512 unpublished opinions, 116
1118 | GENERAL INDEX

unreasonable searches and seizures, 76, Voting Rights Acts

82, 272, 824 congressional power and, 543, 587
USS. Civil Service Commission, 840 federalism and, 730
US. Sentencing Commission, 372— impact of decisions on, 201
73 renewal of, 843
USA PATRIOT Act (2001), 269, 330— representative government, 840—43,
34, 341, 369 846, 850-55, 858
residency requirements and, 907
vacating judgments, 123
Veto Message (1832), 32—33, 58-60, Walter L. Nixon, 514
551 War Crimes Commission, 393
vetoes war-making powers, 264—337
legislative, 36, 422, 433 War of 1812, 264, 270
pocket, 416 War Powers Resolution (1973), 267,
presidential, 232, 416, 452-53 325-30
victim impact statements, 126 warrantless surveillance, 368—70
Vietnam War warrants and probable cause clauses, 76
defending, 266—67 wartime, civil rights in, 269—75
Pentagon Papers, 203, 234, 341, 487, Washington Legal Foundation, 195
502 Washington Post, 359
War Powers Resolution, 325-30 Watergate scandal, 203, 399, 454, 461—
Violence Against Women Act (1994), 64
198, 216, 588, 642 Webster, Daniel, 33
Virginia Resolutions (1798), 30, 43— White Slave Traffic Act, 582
44,685 Wilson, Woodrow, 369, 375, 839
Volstead Act, 712 wiretapping, 82, 330—34, 341, 369
voting age, 201 women
voting rights equal protection clause and, 82
British model of, 837 minimum wage for, 585
history of, 835 rights of, 194
racial discrimination and, 865, voting rights, 90, 838
907 working hours for, 71, 96, 1027—28
reapportionment and, 855—906 World War I, 264, 270
women and, 90 World War II, 264, 270
INDEX OF CASES

Cases and page numbers in boldface refer to case excerpts. Page numbers with
an n refer to notes.

A. L.A. Schechter Poultry Corp. v. United American Insurance Association v. Gara-

States, 621, 650 mendi, 721
Abington School District v. Schempp, 192, American Insurance Co. v. Canter, 547n
214 American Party of Texas v.White, 983
Ableman v. Booth, 797 American Textile Manufacturers Institute,
Abrams v. Johnson, 854 Inc. v. Donovan, 419
Abrams v. United States, 270, 953 American Trucking Associations, Inc. v.
Adair v. United States, 621, 1028, 1031, Michigan Public Service Commission,
1053 oN
Adamson v. California, 88 Ameron, Inc. v. United States Army Corps
Adams v. Maryland, 553n of Engineers, 396, 397, 398
Adderley v. Florida, 928 Anchorage Police Department Employees
Addington v, Texas, 305 Association v. Municipality of An-
Adkins v. Children’s Hospital of D. C., chorage, 224
FRIREA0305103.1105050'05 1; Anderson v. Celebrezze, 913n
1052 Anderson v. Dunn, 512, 743
Aetna Life Insurance Co. v. Davila, 727 Anderson v. Liberty Lobby, Inc., 145
Aetna Life Insurance Co. v. Haworth, Anderson v. United States, 983
127n Andrews v.Andrews, 255
A(FC) and others (FC) v. Secretary of Ankenbrandt v. Richards, 168—69
State for the Home Department, Antelope Case, The, 87
275 Arizona v. California, 590n
Agins v. City of Tiburon, 1077, 1079 Arizona v. Evans, 224, 226
Aguilar v. Texas, 829 Arizona v. Fulminante, 818
Alabama v. United States, 846 Arkansas Educational Television Commis-
Alden v. Maine, 734, 779-86 sion v. Forbes, 985—86
Alexander v. Sandoval, 113-14 Arkansas v. Oklahoma, 725
Allenberg Cotton Company, Inc. v. Arlington Heights v. Metropolitan Housing
Pittman, 576n Development Corp., 892
Allen-Bradley Local v. Wisconsin Employ- Article 117 Case, 92n
ment Relations Board, 722 ASARCO Inc. v. Kadish, 143
Allen v. State Board of Elections, 844n Ashcroft v. Free Speech Coalition, 954
Allen v. Wright, 112, 167 Ashton v. Cameron County District, 589n
- Allgeyer v. Louisiana, 1023, 1024, 1041, Ashwander v. Tennessee Valley Authority,
1048, 1053 167, 174
Ambach v. Norwick, 272 Associated Industries of Missouri v.
American Academy of Pediatrics v. Lohman, 719
Lungren, 225 Associated Industries v. Department of
American Civil Liberties Union v. National Labor, 590n
Security Agency, 370 Associated Press v. NLRB, 590n

1119
 1120 | INDEX OF Cases

Atkins v. Virginia, 96 Bowers v. Hardwick, 185, 198, 219, 220,

Atlantic Coastline Railroad Co, v. City of 22222 a2 256852
Goldsboro, 993 Bowsher v. Synar, 123, 372, 389-98,
Auer v. Robbins, 664, 665 403, 405, 414, 451
Austin v. Michigan Chamber of Commerce, Boyd v. United States, 830
95559625965 Boynton v. Com. of Virginia, 610
Austin v. Tennessee, 1032n Braden v. 30th Judicial Court of Ky., 297
Avery v. Midland County, Texas, 859 Braden v. United States, 515n, 533, 534
Bradwell v, State, 788
Backus v. Fort Street Union Depot Co., Bram v. United States, 818, 819
1055 Branti v, Finkel, 911, 912, 971, 972, 973,
Bailey v. Drexel Furniture Co., 669 Dien 97Ti
Baker v. Carr, 35, 133, 134, 150-62, Braxton County Court v. West Virginia,
163, 165, 464, 483, 485, 538, 856, 127n
866, 875, 885 Brecht v, Abrahamson, 800
Baldwin v. G.A.F Seelig, Inc, 711 Breedlove v. Suttles, 839
Ball v.James, 864n Broadrick v. Oklahoma, 974
Bantam Books, Inc. v. Sullivan, 360 Brooks v, United States, 590n, 609
Barclays Bank PLC v, Franchise Tax Brown-Forman Distillers Corp v. New York
Board of California, 719-20 Liquor Authority, 716
Barenblatt v. United States, 271, 460n, Brown v. Allen, 180n
514, 524-31, 533, 534, 535 Brown v. Board of Education of Topeka,
Barlow v, Collins, 141 Kansas, 34, 35, 87, 129, 189, 191,
Bartnicki v. Vopper, 954 196, 531, 686, 805, 806, 807, 808
Bates v, Dow Agrosciences, 727 Brown v. Hartlage, 965
Bates v. Little Rock, 532, 534, 536 Brown v. Legal Foundation of Washington,
Beer v. United States, 851 1073
Bellotti v. Baird, 127n Brown v. Maryland, 575n, 695, 697n
Beneficial National Bank v. Anderson, 727 Brown v. Public Agencies Opposed to Social
Bennett v. Spear, 113 Security Entrapment, 670
Bennis v. Michigan, 1079 Brown v. Socialist Workers 74 Campaign
Berger v. United States, 466 Committee, 909
Berman v. Parker, 1032n, 1055, 1059, Brown v. State, 224
1061, 1062, 1070, 1074, 1075, Brushaber v. Union Pacific Rail Road,
1077 671n
Bibb v. Navajo Freight Lines, Inc., Brzonkala v. Virginia Polytechnic
695, 707-9 Institute and State University,
Blatchford v. Native Village of Noatak, 198, 216-19
770 Buckley v.American Constitutional Law
BMW of North America v. Gore, 1056, Foundation, 986
1057 Buckley v. Valeo, 393, 396, 400, 402,
Board of County Commissioners, Wabaun- 435, 448, 670, 909, 925-35, 936,
see County, Kansas v. Umbehr, 911, 938, 939, 940, 943, 945, 947, 949,
912 950, 953, 954, 957, 959, 966, 981,
Board of Estimate of City of New York v. eo ot
United States, 859 Buck v. Bell, 1027
Board of Tiustees of the University of Al- Bullock v. Carter, 914n
abama v. Garrett, 735, 787, 789, Bunting v. Oregon, 1028
790, 792-93, 795 Burdick v. Takuski, 985
Bob-Lo Excursion Co. v. Michigan, 694 Burnet v. Coronado Oil & Gas Co.,
Bolling v. Sharpe, 808 127n, 215
Bond v, Floyd, 489 Burns v. Fortson, 913n
Boston Beer Co. v. Massachusetts, 994n Burns v. Richardson, 864n
Boumediene v, Bush, 274-75 Burson v. Freeman, 981, 984
 INDEX OF Cases | 1121

Bush v. Gore, 907, 915-25 Chisom v. Roemer, 842, 843, 851, 969
Bush v. Holmes, 224 Church of Lukumi Babalu Aye, Inc. v,
Bush v. Orleans School Board, 686 Hialeah, 631, 640
Bush v. Palm Beach County Canvassing Cipollone v. Liggett Group, Inc., 725
Board (Bush I), 915, 918, 921 Citizens Against Rent Control/Coalition
Bush v, Vera, 899, 904—5 for Fair Housing v. Berkeley, Califor-
Butchers’ Benevolent Association v. nia, 965
Crescent City Livestock Landing City of Boerne v. Flores, 35, 201, 216,
& Slaughterhouse Co., 1021, 217, 588-89, 630-41, 642, 645,
1033-38 646, 784, 787, 788, 790, 792
City of Burbank v. Lockheed Air Terminal,
Cabell v. Chavez-Salido, 272 W22,
C&A Carbone, Inc. v. Town of Clark- City of Cleburne, Texas v. Cleburne Living
stown, New York, 719 Center, 792
Cafeteria & Restaurant Workers.v. McEl- City of El Paso v. Simmons, 993,
roy, 974 1014-16
Calder v. Bull, 29, 87, 88, 121, 1073 City of Lockhart v. United States, 844n,
California Democratic Party v. Jones, 986 851
California v. Federal Energy Regulatory City of Los Angeles v. Lyons, 111
Commission, 723 City of Mobile, Alabama v. Bolden, 841,
California v. Greenwood, 228 851, 886
California v. Hodari D., 226 City of Mobile v. Bolden, 858
Caminetti v. United States, 553n City of Philadelphia v. New Jersey, 711,
Campbell v. Clinton, 268n TAS aa
Camps Newfound/Owatonna, Inc. v. Town City of Richmond, Virginia v. United
of Harrison, 720 States, 850
Carrington v. Rash, 913n City of Rome v. United States, 844n, 851
Carter v. Carter Coal Company, 417, 574, City of Seattle v. Mesiani, 227
575) 5853596) 59751605) 621,650, Civil Rights Cases, The, 217, 605, 607,
652 608-9, 635, 636, 642, 645, 646,
CBS, Inc. v. Federal Communications 686
Commission, 910 Clairborne v. United States, 118
CBS v. Democratic National Committee, Clark v. Community for Creative Non-
914n Violence, 954
Central Virginia Community College v. Cleburne v. Cleburne Living Center, Inc.,
P Kaiz72> 1073
Chae Chan Ping v. United States, 272 Clingman v. Beaver, 987
Champion v. Ames, 553n, 581, 584 Clinton v. City of New York, 124, 422,
Champlin Refining Company v. Corpora- 442-52
tion Commission, 576n Clinton v. Jones, 457, 459, 472-76
Chapman v. Meier, 864n Cohens v. Virginia, 774, 800n
Charles River Bridge Co. v. Warren Colegrove v. Green, 119, 151, 152, 153,
Bridge Co., 992, 1002-8, 1012 483, 856
Chemical Waste Management v. Hunt, Coleman v, Alabama, 215
717 Coleman v. Miller, 127n, 153, 154, 164,
Cheney v. U.S. District Court for the Dis- 165, 547
trict of Columbia, 458 Coleman v. Thompson, 733, 798
- Cherokee Nation v. Georgia, 154 Collector v. Day, 742
Chevron v. Natural Resources Defense Colorado Anti-Discrimination Commission
Council, 420, 421, 664, 665, 666 v. Continental Airlines, 715
Chicago Board of Trade v. Olsen, 576n Colorado Republican Federal Campaign
Chisholm’v. Georgia, 28, 29, 189, 201, Committee v. Federal Election Com-
684; 772, 773, 779, 780, 781, 782, mission (Colorado I), 966
785 Commercial Trust Co. v. Miller, 154
1122 | INDEX oF CASES

Committee for Public Education & Reli- Dames & Moore v. Regan, 240, 243—
gious Liberty v. Nyquist, 214 49, 311, 1054
Committee to Defend Reproductive Rights Daniel v, Paul, 590n, 624, 625
v, Meyers, 229 Darnel’s Case, 312
Commonwealth of Kentucky v. Wasson, Data Processing Service v. Camp, 1271
198, 219-23, 225, 823, 832 Davidson v. New Orleans, 1022
Commonwealth of Pennsylvania v. Matos, Davis v, Bandemer, 124, 862, 879, 880,
226 881, 885, 886
Commonwealth v. Bonadio, 225 Davis v. Davis, 229
Commonwealth v. Campbell, 221 Davis v. Michigan Department of Treasury,
Commonwealth v. Edmunds, 228 671
Commonwealth v. Gonsalves, 225 Davis v. State of Texas, 228
Commonwealth v. Labron, 225 Dean Milk Company v. City of Madison,
Commonwealth v. Upton, 228 714
Communist Party of Indiana v.Whitcomb, . Dean v. Commonwealth, Ky., 222
908 Dean v. Gadsden Times Publishing Corpo-
Community Communications Co. v. City ration, 1031
of Boulder, 749 DeFunis v. Odegaard, 116, 268n
Complete Auto Transit, Inc. v. Brady, 717 DeGregory v.Attorney General of New
Connick v. Myers, 911, 974, 975 Hampshire, 515n
Connor v.Johnson, 864n Dellmuth v. Muth, 787
Consolidated Edison Co. v. NLRB, 590n Dellums v, Bush, 268n
Consolidated Edison Company of New Democratic Party of the United States
York v. Public Service Commission of v. National Conservative Political
the State of New York, 910 Action Committee (NCPAC),
Cook v, Gralike, 986-87 936-39
Cook v. United States, 263 Democratic Party v. LaFollette, 908
Cooley v. The Board of Wardens of the Demore v. Kim, 273
Port of Philadelphia, 692—93, Dennis v. Higgins, 724
694, 695, 698-703 Dennis v. United States, 76, 270
Cooper v. Aaron, 35, 797, 805-9 Department of Commerce v. U.S. House of
Coppage v. Kansas, 1029, 1031, 1053 Representatives, 482
Corfield v. Coryell, 121, 1020 Derricott v. Maryland, 227-28
Cotting v. Godard, 1032n Desist v. United States, 209
Cotton Petroleum v. New Mexico, 716 Deutch v. United States, 515n
County of Allegheny v. American Civil Dickerson v. United States, 202
Liberties Union, Greater Pittsburgh Dillion v. Gloss, 546
Chapter, 170 District of Columbia, The v. The Greater
County of Riverside v. McLaughlin, 313 Washington Board of Trade, 725
County of Yakima v. Confederated Tribes Doe v. Director of Michigan Department of
and Bands of the Yakima Indian Na- Social Services, 229
tion, 724 Doe v. Maher, 229
Cousins v, Wigoda, 908 Doe v. McMillan, 488, 507
Cox v. Louisiana, 928 Dolan v. City of Tigard, 1078
Cox v. New Hampshire, 981 Dombrowski v. Eastland, 488, 491, 507,
Craig v. Boren, 788 508
Crawford v. Washington, 193, 194, 211, Dombrowski v, Pfister, 798, 811, 812
22213, Don’t Waste Washington Legal Defense
Crosby v. National Foreign Trade Council, Foundation v. Washington, 716
726 Doremus v. Board of Education, 141
Crowell v. Benson, 174 Douglas v. City of Jeannette, 811
CSC », Letter Carriers, 974 Dred Scott v. Sandford, 33, 37,75, 189,
CSX Transportation v. Easterbrook, 725 201, 685, 1020, 1022, 1030
Cusack v. Chicago, 1032n Duddleston v, Grills, 861
 INDEX OF Cases | 1123

Duke Power Co. v. Carolina Environmen- Ex parte Virginia, 633, 807

tal Study Group, 127n Ex parte Yarbrough, 843n, 870
Dunn v. Blumstein, 907 Ex parte Young, 770, 773, 777, 778, 784,
797, 800, 810
Eakin v. Raub, 31,55—-58 Exxon Corporation v. Governor of Mary-
East Carrol Parish School Board v. Mar- land, 715
shall, 864n
Eastland v. United States Servicemen’s Fairfax’s Devisee v. Hunter’s Lessee, 796,
Fund, 487, 506-8, 515n 801
Edelman v. Jordan, 784 Fare v. Michael C., 230
Edgewood Independent School District v. Farmers Educational & Cooperative Union
Kirby, 229 v. WDAY, 722
Edwards v. People of State of California, Fay v. Noia, 798
613, 692 Federal Election Commission v. Beaumont,
EEOC v. Wyoming, 735n, 744, 745, 757 909, 945, 966
Egelhoff v. Egelhoff, 726 Federal Election Commission v. Colorado
Eisenstadt v. Baird, 122 Republican Federal Campaign Com-
Eisen v. Carlisle & Jacquelin, 117 mittee (Colorado II), 909, 966
Elk Grove Unified School District v. Federal Election Commission v. Massachu-
Newdow, 115, 166-73 setts Citizens for Life, Inc., 962, 965
El Paso v. Simmons, 1017, 1018 Federal Election Commission v. Na-
Elrod 1 Burns, 911,9125974,.972, 973; tional Conservative Political Ac-
O75 0 16no7 tion Committee (NCPAC), 909,
Employees of Dept. of Public Health and 936-39
Welfare of Mo. v. Department of Federal Election Commission v. National
Public Health and Welfare of Mo., Right to Work Comm., 941, 962
782 Federal Election Commission v. Wis-
Employment Division, Department of Hu- consin Right to Life, Inc., 910,
man Resources of Oregon v. Smith, 956-65
226, 588, 630, 631, 632, 637, 638, Federal Maritime Commission v. South
639, 640, 641 Carolina State Parts Authority, 793—
Emspak v. United States, 515n 94
Engel v. Vitale, 171, 192, 214 Federal Radio Commission v. Nelson
Environmental Protection Agency v. Okla- Brothers, 553n
homa, 725 Federal Trade Comm. v. Mandel Bros., Inc.,
Erie R. Co. v. Public Util. Comm’rs., 609
1019 Felder v. Casey, 723
Estelle v. Williams, 801n FERC v,. Mississippi, 755
Euclid v.Ambler Realty Co., 1032n Ferguson v. Skrupa, 1031
Eu v. San Francisco County Democratic Ferri v. Ackerman, 474
Central Committee, 984 Field v. Clark, 154, 432, 444, 445, 451
Evans v. Cornman, 913n Firma Foto-Frost v. Hauptzollamt Lubeck-
Everson v. Board of Education, 139, 214 Ost, 629
Ex parte Baez, 127n First English Evangelical Lutheran Church
Ex parte Endo, 266, 271, 309 v. County of Los Angeles, 1055,
Ex parte Garland, 457 1056, 1078
Ex parte McCardle, 199, 200 First National Bank of Boston v. Bellotti,
Ex parte Merryman, 265 ONlON955
Ex parte Milligan, 38n, 234, 271, Fitzpatrick v. Bitzer, 633, 735n, 770,
279-85, 296, 304, 316 787, 788, 789
Ex parte Mwenya, 298 Flast v. Cohen, 107, 110, 130-37, 138,
Ex parte*Quirin, 268n, D7 ANeTAR2 96: 139, 140, 141, 146, 147, 149
303, 316-17, 318, 321, 324 Fletcher v. Peck, 990, 992, 994—97,
Ex parte Siebold, 401 1019
1124 | INDEX oF CasEs

Flood v. Kuhn, 590n 612, 614, 620, 622, 649, 691, 692,
Florida Prepaid Postsecondary Education 693, 701, 703, 848
Expense Board v. College Savings Gibson v. Florida Legislative Investiga-
Bank, 646, 787, 792 tion Committee, 514, 531-36
Florida v. White, 226 Gideon v. Wainwright, 193, 201, 212-13
Foley v. Connelie, 272 Gitlow v. People of the State of New York,
For Gratiol Sanitary Landfill v. Michigan 270
Department of Natural Resources, Goesaert v. Cleary, 788
718 Gojack v. United States, 515n
Fortson v. Dorsey, 864n Goldberg v. Sweet, 716
Foster v. Love, 985 Gold Clause Cases, The, 590n
FPC v. New England Power Co., 419 Goldfarb v. Virginia State Bar, 590n
Francis v. Henderson, 801n Goldwater v. Carter, 123, 162-66,
Frew v. Hawkins, 794 239—40, 250, 259, 260
Freytag v C.ILR., 423 Gomillion v, Lightfoot, 157, 846, 856,
Friends of the Earth, Inc. v. Laidlaw Envi- 862, 865-66, 886, 892, 893, 895
ronmental Services, 113 Gonzales v. O Centro Espirita Beneficente
Frommhagen v. Brown, 983 Uniao do Vegetal, 589
Frontiero v. Richardson, 788 Gonzales v. Oregon, 589, 663-67
Frothingham v. Mellon, 107, 131-32, Gonzales v. Raich, 589, 654-63, 664,
135, 136, 139, 147, 149 666, 667
Fry v. United States, 735n, 742 Gooch v. United States, 590n
Fullilove v. Klutznick, 636, 678, 680 Gordon v, Lance, 864n, 982
Fulton Corporation v. Faulkner, 720 Graham v. Richardson, 272
Granholm v. Heald, 721 :
Gabrielle Defenne v. Societe Anonyme Gravel v. United States, 410, 486, 488,
Belge Navigation Aérienne Sabena, 502-6, 508, 510
629 Graves v. O’ Keefe, 215
Gade v. National Solid Wastes Manage- Gray v. Sanders, 857, 867, 870
ment Association, 724 Great Atlantic & Pacific Tea Co. v. Cottrell,
Gaffney v..Cummings, 859, 861 als
Garcetti v. Ceballos, 912 Great Northern Life Ins. Co. v. Read, 784
Garcia v. San Antonio Metropolitan Gregory v. Ashcroft, 724, 733, 757, 762,
Transit Authority, 185, 652, 731, 778, 783
733, 734, 739-52, 754, 755, 757, Griffith v. Kentucky, 193, 209-10, 212
758, 767, 769, 778 Griswold v. Connecticut, 88, 122, 195
Gardner v. Broderick, 973 Groppi v. Leslie, 515n
Garner v. Teamster Union, 722 Grovey v. Townsend, 907, 908
Gary v. Georgia, 228 Growe, Secretary of State of Minnesota v.
Gaston County v. United States, 850 Emison, 852
Geer v. Connecticut, 255 Gryczan v. Montana, 225
General Motors Corporation v. Tracy, Tax Guinn v. United States, 843n, 846, 913n
Commissioner of Ohio, 720 Guss v. Utah Labor Board, 590n
General Motors v. Romein, 1057n Gwaltney of Smithfield, Ltd. v. Chesa-
Geofroy v. Riggs, 251 ' peake Bay Foundation, 142
Georgia State Board of Elections v. Brooks,
842 Hadley v. Junior College District of Metro-
Georgia v. Ashcroft, 855, 863, 906 politan Kansas City, Missouri, 857,
Georgia v. United States, 844n 859
German Alliance Insurance Co. v. Lewis, Haig v, Agee, 240, 248
1032n Hale v. United States, 553n
Gherebi v. Bush, 273 Halperin v. Kissinger, 455
Gibbons v. Ogden, 551, 552, 564-69, Hamdan v. Rumsfeld, 200, 267, 313-
570, 581, 586, 598, 599, 603, 608, 25
 INDEX OF Cases | 1125

Hamdi v. Rumsfeld, 200, 267, 274, Houston, E. & WT. R. Co. v. United
300-313, 317, 320 States (Shreveport Case), 573, 595,
Hamilton v. Kentucky Distilleries and 643, 660
Warehouse Co., 289, 1032n Houston Lawyers’ Association v. Texas At-
Hammer v. Dagenhart, 572, 581-85, torney General, 852
586, 598, 600, 621, 650, 669 Hoyt v. Florida, 788
Hans v. Louisiana, 770, 772, 774, 775, Hudson Distributors, Inc. v. Eli Lilly &
776, 778, 787, 793 Co., 610
Harlow v. Fitzgerald, 455 Huffman v. Purse, Ltd., 801n
Harman v. Forssenius, 840 Hughes v. Oklahoma, 710,715
Harper v. Virginia State Board of Elections, Humphrey’s Executor v. United States,
840 372, 386-89, 391, 392, 393, 396,
Harris v. McRae, 227, 231 397, 403, 404, 408, 413, 414, 465
Harris v. Reed, 799 Hunter v. Underwood, 984
Hartigan v. General Electric Company, 716 Hunt v. Cromartie (Hunt I), 863, 897—
Havenstein v. Lynham, 697n 903
Hawaii Housing Authority v. Midkiff, Hunt v. Washington State Apple Advertis-
1054, 1057, 1058-59, 1060-62, ing Commission, 715
1070-75 Huron Portland Cement Co. v. Detroit,
Haynes v. Washington, 818 22
Head Money Cases, The, 671n Hurtado v. People of State of California,
Head v. New Mexico Board of Examiners, 88, 354
715 Hutchinson v. Proxmire, 487, 509-11
Healy v. Beer Institute, Inc., 716 Hylton v. United States, 29, 668
Heart of Atlanta Motel, Inc. v. United
States, 587, 605-14, 620, 622, Idaho v. Coeur d’Alene Tribe, 800
624, 635, 643, 648, 649, 653, 740 Illinois State Board of Elections v. Socialist
Hein v. Freedom from Religion Foun- Workers Party, 914n
dation, Inc., 110, 130, 145-50 Illinois v. Gates, 229, 829
Helvering v. Davis, 679 Illinois v. Krull, 224
Helvering v. Gerhardt, 762 Immigration and Naturalization Service
Hepburn v. Griswold, 1022 v. Chadha, 36, 391, 394, 395, 397,
Hicks v.Arizona, 181 421, 433-42, 444, 446, 767
Hillsborough County v.Automated Medical Indiana v, Gerschoffer, 224
Laboratories, Inc., 733 Industrial Union Department, AFL-
Hillside Dairy, Inc. v. Lyons, 727 CIO v. American Petroleum Insti-
Hill v. Florida, 722 tute, 419, 430-32
Hill v. Stone, 983-84 Ingersoll-Rand v. McClendon, 724
Hines v. Davidowitz, 257, 712 Ingram v. Commonwealth, Ky., 222
Hipolite Egg Co. v. United States, 582 In re: All Matters Submitted to the Foreign
Hirabayashi v. United States, 266, 286, Intelligence Surveillance Court, 332
287, 289, 290, 294, 892 In re Ayers, 783, 784
Hodel v. Virginia Surface Mining & Recla- In re Burrus, 167
mation Assn., Inc., 620, 735n, 740, In re Chapman, 515n
741, 744, 755, 756 In re Debs, 340, 364
Hoke v. United States, 582 In re Neagle, 340
Holden v. Hardy, 1027, 1043 In re T. W,, 228-29
- Holder v. Hall, 903—4 In re Yamashita, 268n, 271, 296
Holmberg v. Parratt, 8011 International Harvester Co. v. Ruckelshaus,
Holt Civic Club v. City of Tuscaloosa, 422n
864n International Union v, O’Brien, 722
Home Building & Loan Association v. Interstate Commerce Commission v. Brim-
Blaisdell, 339, 590n, 993, 1009- son, 553n
14, 1015 Towa v, Gillespie, 224
 1126 | INDEX OF CASES

Ireland v. United Kingdom, 336 Kinsella v. United States ex rel. Singleton,

Irvine v. California, 121 268n
Itel Containers International Corporation v. Kirkpatrick v. Priesler, 861
Huddleston, 718 Kissinger v. Halperin, 455
Kiyoshi Hirabayashi v. United States, see
J. Nold, Kohlen-und Baustoffengrosshand- Hirabayashi v. United States
lung v. Commission on the European Kohl v. United States, 354
Communities, 629 Korematsu v. United States, 235, 266,
J. W. Hampton, Jr. & Co. v United States, 271, 285-95, 309
422n, 449, 669 Kovacs v. Cooper, 928, 981
Jackman v. Rosenbaum Co., 162 Kraft General Foods v. Iowa Dept. of Rev-
Jackson Transit Authority v. Amalgamated enue, 718
Transit Union, 723 Kramer v. Union Free School District,
Jacobson v, Massachusetts, 1026, 1043 859
Jaffree v. Board of School Commissioners, Kugler v, Helfant, 801n
195 Kusper v. Pontikes, 983
Jaffree v. Board of School Commission- Kwong Hai Chew v. Colding, 272
ers of Mobile County, 213-15
Jenneas v. Fortson, 983 Laird v. Tatum, 109
Johnson v. California, 116 Lane County v. Oregon, 732, 744, 749
Johnson v. De Grandy, 903 Lane v. Wilson, 846, 913n
Johnson v. Eisentrager, 271, 273, 296, Lapides v. Board of Regents of the The
297, 298) 29993185322 University System of Georgia, 793
Jones v. United States, 306 Larsen v. Valente, 171
Justice v. Vail, 801n Lassiter v. Northampton County Board of
Elections, 633, 843n
Kansas v. Colorado, 793 Lawrence v. Texas, 96
Karcher v. Daggett, 859, 860, 861, 895 Lawyer v. Department ofJustice, 905—6
Kassell v. Consolidated Freightways League of United Latin American Citizens
Corporation, 715 v. Perry, 863
Kastigar v. United States, 515n Lee v. Weisman, 169, 172, 173, 185
Katzenbach v. McClung, 587, 605-14, Legal Tender Cases, 551, 1063
622, 624, 625, 648, 649, 653 Leisy v. Hardin, 697n ©
Katzenbach v. Morgan, 551, 633, 645, Leser v, Garnett, 90
646, 787 License Cases, The, 570, 676, 697n
Katz v. United States, 82 License Tax Cases, The, 671n
Kelley v. Johnson, 973, 975 Lichter v. United States, 553n
Kelo v. City of New London, Lincoln Federal Labor Union v. North-
Connecticut, 1057, 1058-59, western Iron & Metal Co., 1031,
1068-77 1052-54
Kentucky Association of Health Plans, Inc. Linda R. S. v. Richard D., 109
v. Miller, 726-27 Lingle v. Chevron, 1079
Kentucky Whip and Collar Co. v. Illinois Linkletter v. Walker, 193, 205-8, 209,
Central Railroad Co., 590n, 599 818
Ker v, Illinois, 262, 263 Little v. Barreme, 353
Keystone Bituminous Coal Association v. Livades v. Bradshaw, 726
DeBenedictis, 1078 Liverpool, N.Y. & PS.S. Co. v. Emigration
Kidd v, Pearson, 571 Commissioners, 174
Kilbourn v. Thompson, 465, 486, 490, Loan Association v. Topeka, 1022
491,510, 512, 518 Lochner v. New York, 621, 622,777,
Kilgarlin v. Hill, 861 1024, 1025, 1030, 1031, 1040-46 3
Kimel v, Florida Board of Regents, 787, 1047, 1048, 1053
788, 789, 790, 792 Logan v. Zimmerman Brush Co., 922
King v Cowle, 298 Lopez v. Monterey County, 854
 INDEX OF Cases | 1127

Loretto v. Teleprompter Manhattan CATV, McCreary v. American Civil Liberties

1055, 1063, 1065, 1077 Union, 94
Lorillard Tobacco v. Reilly, 726, 954 McCulloch v. Maryland, 28, 32, 94,
Lottery Case, The (Champion v. Ames), 354, 441, 497, 550, 551, 552, 553-
609 63, 632, 667, 695, 848, 1012
Louisiana v. United States, 846 McCulloch v. Sociedad Nacional de
Louisville Joint Stock Land Bank v. Rad- Marineros de Honduras, 590n
ford, 589n McDonnell Douglas Corp. v. Green, 887
Loving v. United States, 97n McElroy v. United States ex rel.
Loving v. Virginia, 222 Guagliardo, 268n
Lowry v. Reagan, 268n McGowan v. State of Maryland, 97n
Lubin v. Parish, 914n McGrain v. Daugherty, 512, 515n, 518
Lucas v. South Carolina Coastal Coun- McIntyre v. Ohio Elections Commis-
cil, 1056, 1062-68 sion, 82, 97n, 977-82, 985
Lujan v. Defenders of Wildlife, 110, McKim v. Voorhies, 801n
112, 141-45, 881, 951 McPherson v, Blacker, 920
Luther v. Borden, 119, 155, 156, 161 Meadows v. Moon, 906
Medtronic, Inc. v. Lohr, 666
MacDougall v. Green, 913n Metropolitan Life Insurance Co. v. Ward,
Mackey v. United States, 209 723
Mack v. United States, 734, 758-69 Meyer v. Grant, 965
Mahan v. Howell, 861 Miami Herald Publishing Co. v. Tornillo,
Maine v. Taylor, 115, 695, 709-11 HS
Malloy v. Hogan, 818 Michigan Department of State Police v.
Mapp v. Ohio, 193, 205, 206, 207, 208, Sitz,, 227
209, 815, 816, 818, 819 Michigan Organization for Human Rights
Marbury v. Madison, 31, 32, 35, 37, v. Kelley, 225
45-55, 119, 145, 370, 379, 464, Michigan Tire Co. v. Wages, 697n
465, 490, 632, 635, 748, 807, 812, Michigan v. Long, 198, 230, 799, 823,
880, 972 824-28
Marchetti v. United States, 670 Mid-Con Freight Systems, Inc. v. Michigan
Marchioro v. Chaney, 908 Public Service Commission, 727
Marston v. Lewis, 913n Middlesex County Ethics Committee v.
Martin v. Hunter’s Lessee, 745, 796, Garden State Bar Association, 801n
801-5 Miller v. California, 652 —
Martin v, Mott, 154 Miller v.Johnson, 854, 898, 901, 904,
Maryland v. Wilson, 225 905
Maryland v. Wirtz, 616, 650, 728, 744, Minneapolis Star & Tribune Co. v. Min-
755 nesota Comm’r of Revenue, 955
Massachusetts v. Environmental Protection Minnesota v. Clover Leaf Creamery Co.,
Agency, 114 715
Massachusetts v. Laid, 268n Minor v. Happersett, 839
Massachusetts v. Mellon, 160 Miranda v. Arizona, 193, 201, 202, 230,
Massachusetts v. Sheppard, 228 800, 817, 818, 819, 820
Mathews v. Diaz, 272 Mississippi Power & Light Co. v. Missis-
Mathews v. Eldridge, 305, 306, 307, sippt ex rel. Moore, 723
310 Mississippi v. Johnson, 455
- Maurer v. Hamilton, 708 Missouri Pacific R. Co. v. Nebraska,
Mayor of City of New York v. Miln, 692 1062
McConnell v. Federal Election Com- Missouri v. Holland, 86, 250, 251,
mission, 909, 910, 940-55, 956— 253-56, 696, 1012
65 ; Mistretta v. United States, 372, 373
McCormick v. United States, 912 Moe v. Secretary of Administration, 229
McCray v. United States, 529, 669, 676 Monaco v. Mississippi, 689n, 744, 762
1128 | INDEX OF CasEs

Monongahela Nav. Co. v. United States, National League of Cities v. Usery, 652,
1074 1285 129130013 VASOm1 Ova OS.
Montana v, Bullock and Peterson, 227 739, 740, 741, 743, 744, 745, 747,
Montana v. Johnson, 230 748, 749, 750, 752, 755, 757, 758 .
Montana v, Solis, 230 National Prohibition Cases, State of Rhode
Moore v. Mead’s Fine Bread Co., 609 Island v. Palmer, 90
Moore v. Ogilvie, 913n Near v. Minnesota ex rel. Olson, 360, 362
Morales v. Trans World Airlines, 725 Nebbia v. New York, 590n, 1053
Mora v. McNammara, 268n Nevada Department of Human Re-
Morehead v. New York ex rel. Tipaldo, sources v. Hibbs, 734, 786-91,
585, 1030, 1050 794
Morrison v. Olson, 82, 372, 398-415 Nevada v. Stacher, 828
Morse v. Republican Party of Virginia, 853 Newberry v. United States, 907, 908
Mugler v. Kansas, 1026, 1064, 1067 New England Power Co. v. New Hamp-
Muller v. Oregon, 71, 96, 788, 1027, shire, 715
1028, 1030, 1046-49 New Jersey v. Hemple and Hemple, 228
Munn v. Illinois, 1022, 1038-40 New Jersey v. Wilson, 990
Murdock v. Memphis, 498 New State Ice Co. v. Liebmann, 687, 743
Murphy v. Ford, 457 New York Central R. Co. v. White, 994n
Murphy v. Waterfront Comm’n of New New York Times Co. v. Sullivan, 43, 270,
York Harbor, 819 933/959
Murray’s Lessee v. Hoboken Land & Im- New York Times Co. v. United States,
provement Company, 1022 202-3, 341, 342, 359-68, 502
Murray v, Curlett, 214 New York v. PJ. Video, Inc., see HS V.
Muskrat v. United States, 127n P. J.Video, Inc.
Myers v.Anderson, 846 New York v. United States, 217, 626,
Myers v. United States, 372, 375-86, 627, 734, 742, 752-58, 762, 763,
386-89, 391, 392, 396, 403, 404, 764, 769
413 Nixon v.Administrator of General Services,
406, 457
Nader v. Bork, 399 Nixon v. Condon, 907
Nantahala Power & Light Co. v. Thorn- Nixon v. Fitzgerald, 455, 459, 473, 475
burg, 723 Nixon v. Herndon, 907
National Association for the Advancement Nixon v. Shrink Missouri Government
of Colored People v.Alabama, 531, PAC, 945, 952, 966
532, 534, 536, 929 Nixon v. Sirica, 466
National Bellas Hess v. Department of Nixon v. United States, 124, 882
Revenue of Illinois, 718 NLRB, see National Labor Relations
National Labor Relations Board v. Catholic Board
Bishop of Chicago, 590n Nollan v. California Coastal Commission,
National Labor Relations Board v. 1054, 1056, 1078
Fainblatt, 590n Norman v. Reed, 984—85
National Labor Relations Board v. Norris v. Clymer, 55
Freuhauf Trailer Co., 590n Northeastern Florida Chapter of the Asso-
National Labor Relations Board v. ’ ciated General Contractors of America
Friedman-Harry Marks Clothing v. City of Jacksonville, 110, 112
Company, 590n Northern Insurance Co. v. Chatham
National Labor Relations Board v. County, Georgia, 795
Jones & Laughlin Steel Corpora- Northern Pipe Line Construction Co. v,
tion, 586, 591-97, 609, 615, Marathon Pipe Line Co., 38n
616, 621, 643, 650, 656, 660, 670, Northern Securities Co. v. United States,
1031 1043
National Labor Relations Board v, Reliance Northwest Airlines, Inc. v. County of Kent,
Fuel Oil Corporation, 590n Michigan, 718, 725-26
 INDEX OF Cases | 1129

O’Brien v. Kinner, 907 People v. P.J. Video, Inc., 229, 823,

Octjen v. Central Leather Co., 257 828-32
O’Donoghue v. United States, 38n People v. Rodriguez, 224
Ogden v. Saunders, 990, 1012 People v. Sundling, 228
O’Hare Tiuck Service, Inc. v. City of Perez v. United States, 587, 643, 653,
Northlake, 911,912 656, 659
Ohio v. Roberts, 194, 211, 212, 213 Perkins v. Matthews, 844n, 850
Oklahoma Tax Commission v. Jefferson Perpich v. Department of Defense, 723
Lines, Inc., 720 Peterson v. Greenville, 605
Old Dominion Co. v. United States, 1062 Pharmaceutical Research and Manufacturers
Olmstead v. United States, 82 of America v. Walsh, 720
Olsen v. Nebraska, 1032n Philadelphia v. New Jersey, see City of
Oregon v. Mitchell, 201, 633, 645, 841 Philadelphia v. New Jersey
Oregon Waste Systems, Inc. v. Department Phiilips v. Washington Legal Foundation,
of Environmental Quality of the 1079
State of Oregon, 719 Pickering v. Board of Ed. of Township
Organizationfor a Better Austin v. Keefe, High School Dist., 911
360 Pierce v. Society of Sisters, 107
Orono, The, 450 Pipe Line Cases, The, 553n
Osborn v. Bank of the United States, 797 Pitchess v. Davis, 801n
Otis v. Parker, 1043 Planned Parenthood of Southeastern Penn-
sylvania v. Casey, 126, 130, 191,
Pacific Gas & Electric Co. v. State Energy 228
Commission, 723 Plaut v. Spendthrift Farm, Inc., 969
Pacific Gas & Electric v. Public Utilities Plessy v. Ferguson, 189, 686, 892
Commission of California, 911 Plyer v. Doe, 272
Packer Corporation v. Utah, 1032n Poe v. Ullman, 120—22, 132
Palazzolo v. Rhode Island, 114 Polish Alliance v. Labor Board, 590n
Panama Refining Company v. Ryan, 417, Pollock v. Farmers’ Loan and Trust Com-
425, 428, 429, 442, 585 pany, 201, 668
Parrish v. West Coast Hotel Co., 1050 Powell v. McCormack, 35, 464, 485,
Parsons v. United States, 372, 381 489-94, 495, 496, 498, 538, 539
Passenger Cases, The, 575n, 693 Powell v. State of Georgia, 225
Pauley v. Kelly, 229 Presley v. Etowah County Commission,
Paul v, Davis, 110 852 .
Paul v. Virginia, 570 Prigg v. Pennsylvania, 800n
Payne v. Tennessee, 125-26, 129 Principality of Monaco v. Mississippi, see
Pell v. Procunier, 185 Monaco v. Mississippi
Penn Central Transportation Co. v. New Printz v. United States, 96, 217, 626,
York, 1055, 1063, 1079 734, 758-69, 780
Pennell v. City of San Jose, 1078 Privacy in Communications (Klass) Case,
Pennsylvania Coal Co. v. Mahon, 1055, 92n
1063, 1065 Prize Cases, The, 265, 276-79
Pennsylvania v. Labron, 225 Public Workers v. Mitchell, 974
Pennsylvania v. Mimms, 225
Pennsylvania v. Nelson, 696, 711-14 Quill Corporation v. North Dakota, 718
Pennsylvania v. Union Gas Co., 770, Quinn v. United States, 515n
TIA, TPYTT8
Pensacola Telegraph Co. v. Western Union R. v, Secretary of State for Transport, ex
Telegraph, 86 parte Factortame, A.C., 629
People of California v. Krivda, 228 Radovich v. National Football League, 610
People v. Bigelow, 228 Railroad Retirement Board v. Alton R.R.
People v. Long, 230 Co., 585
People v. Onofre, 225 Raines v. Byrd, 113, 124, 443
1130 | INDEX OF CASES

Rakas v. Illinois, 227 San Diego Gas & Electric Co. v. San
Randall v. Sorrell, 987 Diego, 1064
Rasul v. Bush, 200, 267, 273, 295-99, Santa Clara County v. Southern Pacific
313 Railroad Company, 1023
Raymond Motor Transportation v. Rice, Santa Cruz Fruit Packing Co. v. NLRB,
TA 590n
Red Lion Broadcasting Co. v. FCC, 953 Sarnoff v. Schultz, 268n
Redrup v. New York, 652 Saxbe v. Washington Post, 185
Reed v. Reed, 788 Scarbough v. United States, 590n
Regan v. Wald, 240 Schechter Poultry Corporation v.
Regents of the University of California v, United States, 417, 424-30, 442,
Bakke, 118 574,575, 585559155925595, 1596,
Reid v. Covert, 251, 268n, 271, 317 597, 615, 652
Renne v. Geary, 112, 984 Schenck v. United States, 270
Reno v. Bossier Parish School Board Schlesinger v. Reservists Committee to Stop
(1997), 853-54 the War, 111, 138, 141, 488n
Reno v, Bossier Parish School Board Schneiderman v. United States, 92n
(2000), 854—55 Schnell v. Davis, 846
Reno v. Condon, 588, 626-27 Schriro v. Summerlin, 212
Republican Party of Minnesota v. Schwegmann Bros. v. Calvert Distillers
White, 911, 967-70 Corp., 610
Reynolds v. Sims, 857, 873-79, 882, Seattle School Dist. No. 1 v. State, 229
884, 917, 921 Securities & Exchange Comm. v. Ralston
Rice v. Cayetanno, 986 Purina Co., 609
Rice v, Santa Fe Elevator Corp., 712, Seminole Tribe of Florida v. Florida,
TASS 217, 734, 735, 769-78, 779, 781,
Richardson v, Ramirez, 984 784, 785, 787, 792
Richmond v. J.A. Croson Co., 896 Serrano v. Priest, 229
Rick Sitz v. Michigan Department of State Shadler v. Florida, 224
Police, 227 Shapiro v. Thompson, 692
Right to Choose v. Byrne, 229, 231 Shaughnesy v. United States ex rel Mezei,
Riverside v. McLaughlin, 227 273
Rizzo v. Goode, 801n Shaw v. Delta Air Lines, 696
Robinson v. Cahill, 229 Shaw v. Hunt (Shaw ID), 897, 901, 902,
Rochin v. California, 88 905
Roe v. Wade, 35, 118, 126, 228 Shaw v. Reno (Shaw I), 863, 886, 891-
Rogers v. Herman Lodge, 844n, 851, 858 96, 897, 905
Rogers v. Richmond, 97n Sheff v. O'Neill, 226
Romer v. Evans, 885 Sherbert v. Verner, 631, 632
Rosario v. Rockefeller, 983 Shreveport Rate Case, The, 573, 595,
Rose v. Council for Better Educ., Inc., 222 643, 660
Rose v. Lundy, 801n Shurtleffv. United States, 372, 381, 383
Roth v. United States, 978 Sierra Club v. Morton, 109, 143
Roudebush v. Hartke, 485, 983 Silkwood v. Kerr-McGee Corporation, 723
Rudolph v, Alabama, 97 Simon v, Eastern Kentucky Welfare Rights
Rust v. Sullivan, 251, 421 Organization, 111, 143
Rutan v. Republican Party of Illinois, Sinclair v. United States, 515n, 518
911, 912, 971-77 Skidmore v. Swift & Co., 664
Skinner v. Oklahoma, 874
Saenz v. Roe, 783 Slaughterhouse Cases, The, 686, 1021,
Salyer Land Company v. Tulare Water 1022
Storage, 864n Smith v. Allwright, 846, 908
San Antonio Independent School District v. Smith v. Fair Employment and Housing
Rodriguez, 222, 229 Commission, 226
 INDEX OF Cases | 1131

Smith v. Maryland, 333, 369 Stuart v. Laird, 198

Smith v. Texas, 807 Sturges v. Crowninshield, 67, 990
Snepp v. United States, 341 Sue Suter v. Artist M., 799
Sonzinsky v. United States, 674, 676, Sunshine Anthracite Coal Co. v, Adkins,
677 671n
South Carolina Highway Department v. Swann v. Adams, 861
Barnwell Brothers, 695,705, 708 Swift & Company v. United States,
South Carolina v. Baker, 627, 733, 757 573
South Carolina v. Katzenbach, 543, Synar v. United States, 391
587, 633, 636, 646, 730, 790, 840,
844-50 Tahoe-Sierra Preservation Council, Inc. v.
South Carolina v, United States, 742 Tahoe Regional Planning Agency,
South-Central Timber Development, Inc. v. 1079
Wunnicke, 716 Taliey v. California, 978
South Dakota v. Dole, 670, 677—80, Tashjian v. Republican Party of Connecti-
696, 730, 755, 778, 784 cut, 984
South Dakota v. Neville, 230 Teague v. Lane, 193, 211, 213
Southern Pacific Co. v. Arizona, 695, Teamsters Union v. Oliver, 722
703-6, 707, 708 Tennessee Electric Power Company v.
Southern Pacific Co. v. Jensen, 74n TENA, SN10K0
Southern Railway Co. v. United States, Tennessee v. Lane, 735, 794—95
573, 643 Tennessee v. Sundquist, 225
Southwest Case, 89, 92n Tennessee Valley Authority v. Hill, 434
Spinelli v. United States, 829 Tenney v. Brandhove, 488n, 490, 523
Sporhase v. Nebraska, 716 Terry v.Adams, 846, 908
Springer v. United States, 668 Terry v. Ohio, 825, 827
Sproles v. Binford, 708, 709 Texas v.Johnson, 36, 982
Stafford v. Wallace, 576n Texas v. White, 686, 732
State of Rhode Island v. Palmer, 90 Thompson v. Consolidated Gas Corp.,
State Tax Commission of Utah v. Aldrich, 1062
97n Thompson v. Oklahoma, 97n
State v,Alosa, 227 Thompson v. Utah, 85
State v. Alston, 227 Thornburg v. Gingles, 844n, 851, 864n,
State v. Carter, 228 896
State v. Cline, 224 Thurlow v. Massachusetts (License Case),
State v. Cogshell, 225 676
State v. Marsala, 228 Tileston v. Ullman, 120, 122
State v. Novembrino, 228 Tilton v. Richardson, 141
State v. Oakes, 228 Timmons v, Tivin Cities Area New Party,
State v. Tanaka, 228 985
State v. Van Hyem, 230 Tinker v. Des Moines Independent Com-
State v. White, 227 munity School Dist., 951
Steel Seizure Case, 343, 441; see also Torcaso v, Watkins, 173
Youngstown Sheet & Tube Co. v. Torre Jenkins v. Chief Justice of the District
Sawyer Court Department, 227
Steffel v. Thompson, 801n Town of Lockport v. Citizens for Commu-
Sterling v. Constantin, 290 nity Action, 984
- Steward Machine Co. v. Davis, 670, Townsend v. Yeomans, 1032n
671-75, 679, 696 Tiain v. City of New York, 421, 451
Stone v. Mississippi, 992 Transportation Co. v. Chicago, 1063
Stone v. Powell, 798, 800, 813-16, 818 Tiinova Corporation v. Michigan Depart-
Storer v. Brown, 983 ment ofTreasury, 717
Strickley v Highland Boy Gold Mining Trustees of Dartmouth College v.
Coy 070 Woodward, 992, 997-1001
1132 | INDEX oF CasEs

Ullmann v. United States, 515n United States v. E. C. Knight Com-

United Haulers Association v. Onedia- pany, 572,574, 576-81, 604, 615,
Herkimer Solid Waste Management 650
Authority, 721-22 United States v. Eichman, 90
United Jewish Organizations of Williams- United States v. Georgia, 795
burgh, Inc. v. Carey, 851, 862, 892, United States v. Germaine, 400, 401, 412
894, 896 United States v. Gillock, 488n
United Mine Workers v. Coronado Coal United States v. Harris, 217, 642, 645
Company, 576n United States v, Hartwell, 412
United Mizrachi Bank plc v. Migdal Co- United States v. Hays, 887
operative Village, 69, 70n United States v, Helstoski, 487
United Public Workers of America v. United States v.Johnson, 209, 210, 487,
Mitchell, 134 490
United States ex rel. Riggs v. Johnson United States v. Kagama, 543
County, 801n United States v. Kahriger, 670, 675-77
United States Railroad Retirement Board United States v. Klein, 204n
v. Fritz, 1032 United States v. Lee, 236n
United States Trust Co. of New York v. United States v. Leon, 224
State of New Jersey, 993, 1016- United States v. Locke, 726
19 United States v. Lopez, 216, 217, 218,
United States v. Alvarez-Machain, 251, 219, 588, 614-26, 627, 642, 643,
260-64 644, 646, 647, 649, 650, 653, 654,
United States v. Appalachian Electric Power 656, 658, 660, 661, 662, 734, 763,
Co., 590n 765
United States v. Baltimore & Ohio R. Co., United States v. McCullagh, 255
609 United States v. Mead Corp., 664
United States v. Bass, 590n United States v. Morrison, 198, 216,
United States v. Bathgate, 874 588, 642-54, 658, 660, 661, 662
United States v. Belmont, 250, 256, United States v. Mosley, 870
257 United States v. Nixon, 203, 454, 455,
United States v. Board of Commissioners of 458, 459, 461-69
Sheffield, Alabama, 851 United States v. O’Brien, 927, 928, 954
United States v, Booker, 118 United States v. Oregon, 553n
United States v. Brewster, 487 United States v, Peters, 796, 808
United States v. Burr, 466, 468 United States v. Pink, 250, 256-58
United States v. Butler, 34,585, 678, 679, United States v. Playboy Entertainment
680 Group, Inc., 954
United States v. California, 397 United States v. Rauscher, 261, 262, 263
United States v. Carolene Products Co., United States v. Reading Co., 866
94, 1076 United States v. Reese, 843n
United States v. Causby, 1055 United States v. Richardson, 111, 141
United States v. Chicago, M., St. P & PR. United States v. Robel, 268n, 271
Co., 449 United States v. Roemer, 842
United States v. Classic, 870 United States v. Rumely, 515n, 519, 520
United States v. Constantine, 671n United States v. Salerno, 273, 313
United States v. Cruikshank, 843n United States v. Sanchez, 676
United States v. Curtiss-Wright Cor- United States v. Saylor, 870
poration, 164, 165, 239, 241-43, United States v. Shauver, 255
256 United States v. Sokolow, 227-28
United States v. Darby Lumber Com- United States v. South-Eastern Underwrit-
pany, 572, 586, 598-601, 602, ers Association, 590n
609, 612, 616, 622, 643, 728, 740, United States v. Students Challenging Reg-
754 ulatory Agency Procedure (SCRAP),
United States v. Doremus, 671n, 676 109
 INDEX OF Cases | 1133

United States v. Sullivan, 677 Washington v, Davis, 886, 888

United States v. The Progressive, Inc., 342 Washington v. Glucksberg, 96, 664
United States v. Thomas, 846 Watkins v. United States, 271, 513,
United States v. United States District 516-24, 526, 527, 528, 529
Court, 333, 341, 369 Wayman v. Southard, 417
United States v. Verdugo-Urquidez, 261, Webb’s Fabulous Pharmacies, Inc. v. Beck-
262 with, 1066
United States v. Virginia, 645, 788, 789, Weber v. Anheuser-Busch, 722
790 Weeks v. United States, 207, 609
United States v. White, 230 Weiner v. United States, 393
United States v. Women’s Sportswear Mfg. Weiss v. United States, 373
Ass’n, 610 Welch v. Swasey, 1032n
United Transportation Union v. Long Is- Wells v, Edwards, 843
land Railroad Company, 735n, 736, Wells v. Rockefeller, 861
741, 749 Wesberry v. Sanders, 483, 497, 857,
Uphaus v. Wyman, 524, 536 867-73, 876, 882
U.S. Department of Commerce v. Mon-~ West Coast Hotel v. Parrish, 586, 621,
tana, 484—85, 857 670, 777, 1031, 1049-52
U.S. Term Limits, Inc. v. Thornton, Western Union Telegraph Co. v. Foster, 866
445, 486, 494-501, 763, 986 West Lynn Creamery, Inc. v. Healy, 719
Utah Power and Light v. Pfost, 575n West River Bridge Co. v. Dix, 1012
Utah v. Evans, 483 West Virginia State Board of Education v.
Barnette, 94, 172, 173
Valley Forge Christian College v. Whitcomb v. Chavis, 858
Americans United for Separation White v. Massachusetts Council, 716
of Church and State, Inc., 110, White v. Regester, 861
137-41, 147, 149 White v. Weiser, 861
Van Orden v. Perry, 94 Whitfield v. Ohio, 590n
Veazie Bank v. Fenno, 584, 676 Whorton v. Bockting, 193, 194, 211-
Verizon Maryland v. Public Service Com- 13
mission of Maryland, 793 Wickard v. Filburn, 586, 602—5, 609,
Vermont Yankee Nuclear Power Corpora- 615, 616, 621, 622, 625, 646, 648,
tion v. Natural Resources Defense 649, 650, 651, 652, 655, 656, 657,
Council, Inc., 418 658, 659, 740
Vernonia School District No. 47 v.Acton, Wiener v. United States, 396, 403, 404
224 Wilkinson v. United States, 515n, 533,
Vieth v. Jubelirer, 124, 862, 879-91 534
Village of Euclid v.Ambler Realty Co., Williamson v. Lee Optical of Oklahoma,
1077 1032n
Voinovich v. Quilter, 852—53 Williams v. Florida, 224
Williams v. Mississippi, 844n
Wallace v.Jaffree, 197, 214, 637 Williams v. Rhodes, 908, 982
Wallace v. United States, 372, 381 Williams v. United States, 204n
Walter L. Nixon v. United States, 514, Wilson v. Black Bird Creek Marsh Co.,
537-39 695
Wardair Canada, Inc. v. Florida Depart- Wilson v. New, 572
ment of Revenue, 671 Wilson v. United States, 818
- Ward v. Rock Against Racism, 981 Wisconsin Public Intervenor v. Mortier, 724
Ware v. Hylton, 29 Wisconsin Right to Life, Inc. v. Federal
Warth v. Seldin, 111, 143 Election Commission, 957
Washakie County School Dist. No. 1 v. Wisconsin v. City of New York, 858
Herschler, 229 Withrow v. Williams, 800, 817-20
Washington Post case, 360 Witters v. State of Washington Commission
Washington v. Chrisman, 230 for the Blind, 229
1134 | INDEX OF CasEs

Wolf Packing Co. v. Court of Industrial Yee v. The City of Escondido, California,
Relations, 1030 1057n
Wolf v. People of State of Colorado, 206, Yick Wo v. Hopkins, 272
207 Younger v. Harris, 751,798, 801n,
Women of Minnesota v. Gomez, 227 809-13
Wood v. Broom, 483 Youngstown Sheet & Tube Co. v.
Worcester v. Georgia, 32, 202 Sawyer, 165, 245, 246, 247, 248,
Wright v. Rockefeller, 893 340, 344-59, 391, 439, 441,
Wygant v. Jackson Bd. of Education, 892, 447
896, 977 Young v. Fordice, 853
Wynehamer v. New York, 1022 Yvonne van Duyn v. Home Office, 629
Wyoming v. Oklahoma, 112, 114, 695,
WH Zacchini v. Scripps-Howard Broadcasting
Co., 828
Yamataya v. Fisher, 272—73 Zadvydas v. Davis, 272, 273, 305
Yazoo case, 990; see also Fletcher v. Peck Zelman v. Simmons-Harris, 224
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 MEMBERS OF THE SUPREME COURT OF THE UNITED
STATES AND THEIR DATES OF SERVICE (through November 2007)

John Jay: 1789-1795* 57. Oliver Wendell Holmes, Jr.: 1902-1932

James Wilson: 1789-1798 58. William R. Day: 1903-1922
John Blair, Jr.: 1790-1796 59. William H. Moody: 1906-1910
James Iredell: 1790-1799 60. Horace H. Lurton: 1910-1914 ~
William Cushing: 1790-1810 61. Edward Douglass White: 1910-1921*
Thomas Johnson: 1792-1793 62. Joseph Rucker Lamar: 1911-1916
William Paterson: 1793-1806 63. Willis Van Devanter: 1911-1937
SP John Rutledge: 1795*
Ol
hag
ONE
COT 64. Mahlon Pitney: 1912-1922
Oliver Ellsworth: 1796-1800* 65. James Clark McReynolds: 1914-1941
Samuel Chase: 1796-1811 66. John H. Clarke: 1916-1922
Bushrod Washington: 1799-1829 67. Louis D. Brandeis: 1916-1939
Alfred Moore: 1800-1804 68. William Howard Taft: 1921-1930*
John Marshall: 1801—1835* 69. George Sutherland: 1922-1938
William Johnson: 1804-1834 70. Edward T. Sanford: 1923-1930
H. Brockholst Livingston: 1807-1823 ot Pierce Butler: 1923-1939
Thomas Todd: 1807-1826 We. Charles Evans Hughes: 1930-1941*
Gabriel Duvall: 1811-1835 va. Owen J. Roberts: 1930-1945
Joseph Story: 1812-1845 74. Benjamin Nathan Cardozo: 1932-1938
Smith Thompson: 1823-1843 75 Hugo Black: 1937-1971
Robert Trimble: 1826-1828 76. Stanley F. Reed: 1938-1957
Henry Baldwin: 1830-1844 77. Felix Frankfurter: 1939-1962
. John McLean: 1830-1861 78. William O. Douglas: 1939-1975
. James M. Wayne: 1835—1867 79. Frank W. Murphy: 1940-1949
Philip P. Barbour: 1836-1841 80. James F. Byrnes: 1941-1942
Roger Brooke Taney: 1836—1864* Si. Harlan Fiske Stone: 1941-1946*
. John Catron: 1837-1865 82. Robert H. Jackson: 1941-1954
John McKinley: 1838-1852 83. Wiley B. Rutledge: 1943-1949
Peter V. Daniel: 1842-1860 , 84. Harold H. Burton: 1945-1958
Levi Woodbury: 1845-1851 85. Fred M. Vinson: 1946-1953*
Samuel Nelson: 1845-1872 86. Sherman Minton: 1949-1956
Robert C. Grier: 1846-1870 87. Tom C. Clark: 1949-1967
Benjamin R. Curtis: 1851—1857 88. Earl Warren: 1953-1969*
. John A. Campbell: 1853-1861 89. John Marshall Harlan II: 1955-1971
Nathan Clifford: 1858-1881 90. William J. Brennan, Jr.: 1956-1990
David Davis: 1862-1877 91, Charles E. Whittaker: 1957-1962
Noah H. Swayne: 1862-1881 92. Potter Stewart: 1958-1981
Samuel F. Miller: 1862-1890 93, Arthur J. Goldberg: 1962-1965
Stephen J. Field: 1863-1897 94. Byron R. White: 1962-1993
Salmon Portland Chase: 1864—1873* 95, Abe Fortas: 1965-1969
. William Strong: 1870-1880 96. Thurgood Marshall: 1967-1991
. Joseph P. Bradley: 1870-1892 97, Warren E. Burger: 1969-1986*
Ward Hunt: 1873-1882 98. Harry A. Blackmun: 1970-1994
Morrison R. Waite: 1874—1888* 99. Lewis F. Powell, Jr.: 1972-1987
John Marshall Harlan: 1877-1911 100. William H. Rehnquist: 1972—2005*
. William B. Woods: 1881-1887 101. John Paul Stevens: 1975—
Stanley Matthews: 1881-1889 102. Sandra Day O’Connor: 1981-2006
Samuel Blatchford: 1882-1893 103. Antonin Scalia: 1986—
Horace Gray: 1882-1902 104. Anthony M. Kennedy: 1988—
Lucius Q. C. Lamar: 1888-1893 105. David H. Souter: 1990—
Melville Weston Fuller: 1888—1910* 106. Clarence Thomas: 1991—
David J. Brewer: 1890-1910 107. Ruth Bader Ginsburg: 1993—
Henry B. Brown: 1891-1906 108. Stephen G. Breyer: 1994—
George Shiras, Jr.: 1892-1903 109. John G. Roberts, Jr.: 2005—*
Howell E. Jackson: 1893-1895 110. Samuel A. Alito, Jr.: 2006—
Rufus W. Peckham: 1896-1909
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A NOTE ON THE COVER

The Seventh Edition of Constitutional Law and Politics has a unique cover with por-
traits of all of those who have thus far sat on the high bench. This portrait gallery seems
fitting, for, as Chief Justice Charles Evans Hughes observed, “We are under a Constitu-
tion, but the Constitution is what the judges say it is. . . .” Students will find the cover a
useful reference when reading justices’ opinions that have left an indelible imprint on
constitutional law, and others that have been discredited and abandoned. They will also
note that only two women and two African Americans have sat on the bench. That will
undoubtedly change with future appointments, which will likely include Hispanics,
Asian Americans, and others who have historically been underrepresented in the judici-
ary. Nonetheless, these are the individuals who have struggled to enforce governmental
accountability, to preserve individual liberty, and to ensure the equal protection of the
law, in accordance with our nation’s defining document.
—David M. O’Brien
 lhe Seventh Edition of David O'Brien's

og
highly successful casebook continues to
bring innovation in content and flexibility in for-

2
mat to the teaching of constitutional law. Build-
ing on the idea that Supreme Court decisions
are not made in a vacuum, Professor O’Brien

“yy
presents students with the historical and politi-
cal background behind both landmark cases and
more recent court decisions. This text offers the
widest available anthology of Court rulings,
including many concurring and dissenting opin-
ions. Each volume includes special features
“The Development of Law,” “Constitutional
History,” “Inside the Court,” and “In Compara-
tive Perspective” Oem Tanner Caceres
cal aids and take students behind the scenes.

er
The Seventh Edition offers 10 new boxes, as well
as thoroughly updated cases and introductions. ®

Supreme Court Watch and

Supreme Court Web Watch
Professor O'Brien will continue to update Cozs¢i-
tutional Law and Politics annually with Supreme
Court Watch. Based on the organization of the
casebook set, the Watch includes the most recent
Court rulings, as well as the author's contextual
introductions. Supreme Court Web Watch, at
wwnorton.com/scww/ offers students and faculty
easy access-to pertinent information regarding the
Supreme Court.
y
i
‘O Briairs heo-volume set continues, withoid a
doubt, tobe the pacesetier for undergraduate
political science students studying the formation
Gee
Gy TerTare)EQUAL
~-Professor Jack Rruchiman, Towson University

THE AUTHOR David M. OBrien is the

Leone Reaves and George W. Spicer Professor of
Government and Foreign Affairs at the University
of Virginia. He is the author of several books,
including Storm Center: The Supreme Court in
American Politics, winner of the American Bar
Association's Silver Gavel Award and now in its
eighth edition. ISBN 13: 974-0-393-93038-2

|
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Collection of the Supreme Court of the United States z
Cover design by Joan Greenfield

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W. W. NORTON NEW york« LONDON