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 Volume 9:
SAR to TEN
 GALE
ENCYCLOPEDIA
OF AMERICAN
LAW
3RD EDITION
 GALE
ENCYCLOPEDIA
OF AMERICAN
LAW
3RD EDITION

V OLUME 9

S AR TO T EN
Gale Encyclopedia of American Law, 3rd Edition © 2010 Gale, Cengage Learning

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1 2 3 4 5 6 7 14 13 12 11 10
 DEDICATION

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k
 Contents

VOLUME 1 VOLUME 5
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv Contributors . . . . . . . . . . . . . . . . . . . . xv
A–Ba. . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fri–I . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539 Abbreviations . . . . . . . . . . . . . . . . . . 531

VOLUME 2
VOLUME 6
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii
How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
Be–Col . . . . . . . . . . . . . . . . . . . . . . . . 1
J–Ma . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539
Abbreviations . . . . . . . . . . . . . . . . . . 507
VOLUME 3
VOLUME 7
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii
How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
Com–Dor . . . . . . . . . . . . . . . . . . . . . . 1
Mc–Pl . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539
Abbreviations . . . . . . . . . . . . . . . . . . 521

VOLUME 4 VOLUME 8
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv Contributors . . . . . . . . . . . . . . . . . . . . xv
DOT–Fre. . . . . . . . . . . . . . . . . . . . . . . 1 Po–San . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 555 Abbreviations . . . . . . . . . . . . . . . . . . 495

vii
viii CONTENTS

VOLUME 9 VOLUME 12
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix Milestones in the Law
How to Use this Book . . . . . . . . . . . . . xiii Lawrence v. Texas . . . . . . . . . . . . . . . . . 1
Contributors . . . . . . . . . . . . . . . . . . . . xv Mapp v. Ohio . . . . . . . . . . . . . . . . . . . 95
Sar–Ten . . . . . . . . . . . . . . . . . . . . . . . 1 Marbury v. Madison . . . . . . . . . . . . . 139
Abbreviations . . . . . . . . . . . . . . . . . . 511 Miranda v. Arizona . . . . . . . . . . . . . . 161
New York Times v. Sullivan . . . . . . . . 261
VOLUME 10
Roe v. Wade . . . . . . . . . . . . . . . . . . . 407
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii VOLUME 13
Contributors . . . . . . . . . . . . . . . . . . . . xv Primary Documents
Ter–Z . . . . . . . . . . . . . . . . . . . . . . . . . 1 Foundations of U.S. Law . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 499 Civil Rights . . . . . . . . . . . . . . . . . . . 139
Reflections on Law and
VOLUME 11 Society . . . . . . . . . . . . . . . . . . . . . 501
Milestones in the Law Legal Miscellany . . . . . . . . . . . . . . . . 597
Brown v. Board of Education of
Topeka, Kansas . . . . . . . . . . . . . . . . . 1
VOLUME 14
District of Columbia v. Heller . . . . . . . 167
Dictionary of Legal Terms . . . . . . . . . . 1
Gideon v. Wainwright . . . . . . . . . . . . 305
Kelo v. City of New London . . . . . . . . 353

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
 Preface

T he U.S. legal system is admired around the

world for the freedoms it allows the
individual and the fairness with which it attempts
the entry and is italicized. The Dictionary of
Legal Terms volume is a glossary containing all
the definitions from GEAL.
to treat all persons. On the surface, it may seem
Further Readings
simple, yet those who have delved into it know that
this system of federal and state constitutions, To facilitate further research, a list of Further
statutes, regulations, and common-law decisions Readings is included at the end of a majority of
is elaborate and complex. It derives from the the main entries.
English common law, but includes principles Cross-References
older than England, along with some principles GEAL provides two types of cross-references,
from other lands. The U.S. legal system, like many within and following entries. Within the entries,
others, has a language all its own, but too often it is terms are set in small capital letters—for
an unfamiliar language: many concepts are still example, LIEN—to indicate that they have their
phrased in Latin. The third edition of Gale own entry in the Encyclopedia. At the end of the
Encyclopedia of American Law (GEAL), formerly entries, related entries the reader may wish to
West’s Encyclopedia of American Law, explains explore are listed alphabetically by title.
legal terms and concepts in everyday language. It
covers a wide variety of persons, entities, and Blind cross-reference entries are also in-
events that have shaped the U.S. legal system and cluded to direct the user to other entries
influenced public perceptions of it. throughout the set.
In Focus Essays
MAIN FEATURES OF THIS SET In Focus essays accompany related entries and
Entries provide additional facts, details, and arguments
This Encyclopedia contains nearly 5,000 entries on particularly interesting, important, or con-
devoted to terms, concepts, events, movements, troversial issues raised by those entries. The
cases, and persons significant to U.S. law. Entries subjects covered include hotly contested issues,
on legal terms contain a definition of the such as abortion, capital punishment, and gay
term, followed by explanatory text if necessary. rights; detailed processes, such as the Food and
Entries are arranged alphabetically in standard Drug Administration’s approval process for new
encyclopedia format for ease of use. A wide drugs; and important historical or social issues,
variety of additional features provide interesting such as debates over the formation of the U.S.
background and supplemental information. Constitution.

Definitions Sidebars
Every entry on a legal term is followed by a Sidebars provide brief highlights of some
definition, which appears at the beginning of interesting facet of accompanying entries. They

IX
X P RE F AC E

complement regular entries and In Focus essays documents, laws, manuscripts, and forms
by adding informative details. Sidebar topics fundamental to and characteristic of U.S. law.
include trying juveniles as adults, the Tea Party
Milestone Cases in the Law
Movement, and the branches of the U.S. armed
Special Appendix volumes entitled Milestones
services. Sidebars appear at the top of a text
in the Law, allows readers to take a close look at
page and are set in a box.
landmark cases in U.S. law. Readers can explore
the reasoning of the judges and the arguments
Biographies of the attorneys that produced major decisions
GEAL profiles a wide variety of interesting and on important legal and social issues. Included in
influential people—including lawyers, judges, each Milestone are the opinions of the lower
government and civic leaders, and historical and courts; the briefs presented by the parties to the
modern figures—who have played a part in U.S. Supreme Court; and the decision of the
creating or shaping U.S. law. Each biography Supreme Court, including the majority opinion
includes a timeline, which shows important and all concurring and dissenting opinions for
moments in the subject’s life as well as each case.
important historical events of the period.
Biographies appear alphabetically by the sub- Primary Documents
ject’s last name. There is also an Appendix volume containing
more than 60 primary documents, such as the
English Bill of Rights, Martin Luther King Jr.’s
ADDITIONAL FEATURES OF THIS SET Letter from Birmingham Jail, and several
presidential speeches.
Enhancements Throughout GEAL, readers will
find a broad array of photographs, charts, Citations
graphs, manuscripts, legal forms, and other Wherever possible, GEAL entries include cita-
visual aids enhancing the ideas presented in tions for cases and statutes mentioned in the
the text. text. These allow readers wishing to do
additional research to find the opinions and
Appendixes statutes cited. Two sample citations, with
Four appendix volumes are included with explanations of common citation terms, can
GEAL, containing hundreds of pages of be seen below and opposite.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed 2d 694 (1966)

1 2 3 4 5 6 7

1. Case title. The title of the case is set in italics 4. Reporter page. The number following the
and indicates the names of the parties. The reporter name indicates the reporter page
suit in this sample citation was between on which the case begins.
Ernesto A. Miranda and the state of Arizona. 5. Additional reporter page. Many cases may
2. Reporter volume number. The number pre- be found in more than one reporter. The
ceding the reporter name indicates the suit in the sample citation also appears in
reporter volume containing the case. (The volume 86 of the Supreme Court Reporter,
volume number appears on the spine of the
beginning on page 1602.
reporter, along with the reporter name).
6. Additional reporter citation. The suit in the
3. Reporter name. The reporter name is abbre-
sample citation is also reported in volume
viated. The suit in the sample citation is
16 of the Lawyer’s Edition, second series,
from the reporter, or series of books, called
U.S. Reports, which contains cases from the beginning on page 694.
U.S. Supreme Court. (Numerous reporters 7. Year of decision. The year the court issued
publish cases from the federal and state its decision in the case appears in parenthe-
courts.) ses at the end of the citation.

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
 PR EF AC E XI

Brady Handgun Violence Prevention Act, Pub. L. No. 103–159, 107 Stat. 1536 (18 U.S.C.A. 921–925A)

1 2 3 4 5 6 7 8

1. Statute title. 6. Title number. Federal laws are divided into

2. Public law number. In the sample citation, major sections with specific titles. The num-
the number 103 indicates this law was ber preceding a reference to the U.S. Code
passed by the 103d Congress, and the num- stands for the section called Crimes and
ber 159 indicates it was the 159th law passed Criminal Procedure.
by that Congress. 7. Additional reporter. The statute in the sam-
3. Reporter volume number. The number pre- ple citation may also be found in the U.S.
ceding the reporter abbreviation indicates Code Annotated.
the reporter volume containing the statute.
8. Section numbers. The section numbers fol-
4. Reporter name. The reporter name is abbre- lowing a reference to the U.S. Code Anno-
viated. The statute in the sample citation is
tated indicate where the statute appears in
from Statutes at Large.
that reporter.
5. Reporter page. The number following the
reporter abbreviation indicates the reporter
page on which the statute begins.

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
 1
k
3
How to Use This
Book

3 2

10
4

11

12

13

XIII
XIV H O W T O U S E T H I S BO O K

12

13
10

11

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
 Contributors

Editorial Reviewers Sharon Fischlowitz Sandra M. Olson

Patricia B. Brecht Jonathan Flanders Anne Larsen Olstad
Matthew C. Cordon Lisa Florey William Ostrem
Frederick K. Grittner Robert A. Frame Lauren Pacelli
Halle Butler Hara John E. Gisselquist Randolph C. Park
Scott D. Slick Russell L. Gray III Gary Peter
Frederick K. Grittner Michele A. Potts
Contributing Authors Victoria L. Handler Reinhard Priester
Richard Abowitz Halle Butler Hara Christy Rain
Paul Bard Lauri R. Harding Brian Roberts
Joanne Bergum Heidi L. Headlee Debra J. Rosenthal
Michael Bernard James Heidberg Mary Lahr Schier
Gregory A. Borchard Clifford P. Hooker Mary Scarbrough
Susan Buie Marianne Ashley Jerpbak Stephanie Schmitt
James Cahoy David R. Johnstone Theresa L. Schulz
Terry Carter Andrew Kass John Scobey
Stacey Chamberlin Margaret Anderson Kelliher Kelle Sisung
Sally Chatelaine Christopher J. Kennedy James Slavicek
Joanne Smestad Claussen Anne E. Kevlin Scott D. Slick
Matthew C. Cordon John K. Krol David Strom
Richard J. Cretan Lauren Kushkin Linda Tashbook
Lynne Crist Ann T. Laughlin Wendy Tien
Paul D. Daggett Laura Ledsworth-Wang M. Uri Toch
Susan L. Dalhed Linda Lincoln Douglas Tueting
Lisa M. DelFiacco Theresa J. Lippert Richard F. Tyson
Suzanne Paul Dell’Oro Gregory Luce Christine Ver Ploeg
Heidi Denler David Luiken George E. Warner
Dan DeVoe Frances T. Lynch Anne Welsbacher
Joanne Engelking Jennifer Marsh Eric P. Wind
Mark D. Engsberg George A. Milite Lindy T. Yokanovich
Karl Finley Melodie Monahan

XV
 S (cont.)

SARBANES-OXLEY ACT OF 2002 directed by management to tout the value of

Congress enacted the Sarbanes-Oxley Act of questionable stocks.
2002 (Public Company Accounting Reform and Some corporate managers, who skirted or
Investor Protection Act, Pub. L. No. 107-204, broke laws that mandated honest financial
116 Stat. 745) in the wake of corporate and reporting, transformed the drive for profitability
accounting scandals that led to bankruptcies, into a lust for personal fortune. The bubble
severe stock losses, and a loss of confidence burst when the Enron Corporation filed for
in the STOCK MARKET. The act imposes new BANKRUPTCY in December 2001, and the ac-
responsibilities on corporate management and counting firm of Arthur Andersen was con-
criminal sanctions on those managers who flout victed of OBSTRUCTION OF JUSTICE for its actions in
the law. It makes SECURITIES fraud a serious shredding Enron-related documents. As the
federal crime and also increases the penalties for stock market plummeted and investor confi-
WHITE-COLLAR CRIMES. In addition, it created an dence waned, Congress responded. Senator
oversight board for the accounting profession. Paul S. Sarbanes (D-Md.) and Representative
During the 1990s the STOCK MARKET rose Michael Oxley (R-Ohio) worked to enact a set
dramatically in value, fueled by the promise of of provisions that would prevent future debacles
the INTERNET revolution as well as large corpo- such as those that ruined Enron and Arthur
rate MERGERS AND ACQUISITIONS. Several of that Andersen. President GEORGE W. BUSH, after
decade’s changes produced severe consequences initially downplaying the need for reform,
during the first years of the new century. The signed the bill into law on July 30, 2002.
five major U.S. accounting firms developed Under the act, the SECURITIES AND EXCHANGE
consulting divisions that advised corporations COMMISSION (SEC) has the authority to prohibit,
on ways to maximize their profits. Their advice conditionally or unconditionally, temporarily or
often clashed with the traditional auditing permanently, any person who has violated laws
functions and standards of these accounting governing the issuing of stock from acting as an
firms. At worst, the accounting firms forfeited officer or director of a corporation if the SEC has
their traditional oversight function and allowed found that such person’s conduct “demonstrates
or encouraged financial reporting practices that unfitness” to serve as an officer or a director. The
misled investors. On the corporate side, man- act also imposes new disclosure requirements
agers were expected to produce short-term when companies file financial reports. Under
gains on a quarterly basis to satisfy investment Section 302 of the act, the SEC is required to
analysts who worked for stock brokerages. issue a rule that mandates that the principal
These analysts were sometimes encouraged or executive officer and the principal financial

1
2 S A R B A N E S- O X L EY A C T O F 2 0 0 2

officer certify in each annual or quarterly report secretary of the Treasury. No member may,
the accuracy of certain information. The signing concurrent with service on the Board, “share in
officer must disclose to the auditors and audit any of the profits of, or receive payments from, a
committee any significant deficiencies in the public accounting firm,” other than “fixed
design or operation of the internal controls, any continuing payments,” such as retirement pay-
FRAUD (whether it involves management or other ments. The Commission may remove members
employees who have a significant role in the “for good cause.”
issuer’s internal controls), and any significant
The PCAOB will register accounting firms,
changes in the internal controls.
develop auditing standards and rules of ethics for
Section 906 requires that the chief executive the profession, and investigate accounting firms.
officer and chief financial officer provide written The board may discipline and sanction account-
statements to be filed with each periodic report ing firms that violate rules. It is required to
filed under the Securities Exchange Act of 1934, “cooperate on an on-going basis” with desig-
certifying that the periodic report containing the nated professional groups of accountants and
financial statements fully complies with the any advisory groups convened in connection
requirements of Sections 13(a) or 15(d) of the with standard-setting, and although the board
Securities Exchange Act of 1934 and that the may, “to the extent that it determines appropri-
information contained in the periodic report ate,“ adopt standards proposed by those groups,
fairly presents, in all material respects, the it will have authority to amend, modify, repeal,
financial condition and results of operations of and reject any standards suggested by the groups.
the issuer. A knowing violation of Section 906 is The board must report to the SEC on its
punishable by up to ten years in prison and a $1 standard-setting activity on an annual basis.
million fine. A willful violation is punishable by
Some commentators have provided evi-
up to 20 years in prison and a $5 million fine.
dence that Sarbanes Oxley has resulted in more
Section 303 prohibits any officer, director, or companies making initial public offerings in
person acting at their direction “to fraudulently London rather than New York. Among those
influence, coerce, manipulate, or mislead” an who have asserted this were New York mayor
accountant who is conducting an audit. Under Michael Bloomberg and U.S. Senator Charles
Section 304, if an issuer is required to restate its Schumer (D-N.Y.), who in 2006 advocated for
financial statements as a result of misconduct, a reform of Sarbanes-Oxley based on the
the chief executive officer and chief financial assertion that London’s requirements were
officer must reimburse the issuer for any bonus more relaxed.
or other incentive-based compensation paid
Sarbanes-Oxley has been challenged, but as of
during the 12-month period following the
2009, courts have upheld its constitutionality. In
improper reporting. Those officers also must
Free Enterprise Fund v. Public Accounting Oversight
pay to the company any profits realized from the
Board, 537 F.3d 667 (D.C. Cir. 2008), the U.S.
sale of its securities during that 12-month period.
Court of Appeals for the District of Columbia
The Sarbanes-Oxley Act also authorizes the rejected arguments that the PCAOB was uncon-
establishment of a Public Company Accounting stitutional either based on how its members are
Oversight Board (PCAOB), which will oversee selected or based on SEPARATION OF POWERS
the accounting profession. Under Section 1 of principles. The U.S. SUPREME COURT in May 2009
the act, the board will have five financially granted CERTIORARI to review the decision.
experienced members who are appointed to five-
year terms. Two of the members must be or have FURTHER READINGS
been certified public accountants (CPAs), and Garner, Don E., David L. McKee, and Yosra AbuAmara
the remaining three must not be, and must never McKee. 2008. Accounting and the Global Economy after
have been, CPAs. The chair may be held by one Sarbanes-Oxley. Armonk, NY: M. E. Sharpe.
Thibodeau, Jay C., and Deborah Freier. 2009. Auditing after
of the CPA members, provided that he or she has Sarbanes-Oxley: Illustrative Cases. Boston: McGraw-Hill
not been engaged as a practicing CPA for five Irwin.
years. The board’s members will serve on a full-
time basis. Members of the board are appointed CROSS REFERENCES
by the SEC “after consultation with” the Corporate Fraud “Enron: An Investigation into Corporate
chairman of the FEDERAL RESERVE BOARD and the Fraud” (In Focus).; Fraud.

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
 SARGENT, JOHN GARIBALDI 3

v SARGENT, JOHN GARIBALDI John Sargent.

John Garibaldi Sargent served as attorney THE LIBRARY OF
general of the United States under President CONGRESS

CALVIN COOLIDGE. He was born October 13, 1860,

in Ludlow, Vermont, to John Henmon and Ann
Eliza Hanley Sargent. He was schooled locally
and then entered Tufts College in Boston,
receiving a bachelor’s degree in 1887. Early in
his college years, Sargent became active in the
Zeta Psi Kappa Society; through the fraternity’s
activities he was introduced to many of Boston’s
oldest and most influential political families,
including the Coolidges.
After college Sargent returned to Ludlow,
where he married Mary Lorraine Gordon in
1887. Sargent studied law with attorney, and
future Vermont governor, William Wallace
Stickney. Following Sargent’s admission to the
Vermont bar in 1890, he joined Stickney in the
practice of law.
Sargent’s first political appointment came in
1898 when he was named state’s attorney for
Windsor County, Vermont. He served until 1900
when he was appointed secretary of civil and violated the Vermont Constitution by commin-
military affairs for the state of Vermont by his law gling legislative, executive, and judicial func-
partner, who was then serving his first term as tions. Sargent, arguing for Sabre and the state,
governor. After completing the two-year assign- disagreed. His position was that the SEPARATION
ment, Sargent returned to the firm and resumed OF POWERS was only violated when one branch
the practice of law. From 1902 to 1908, he argued exercised all of the powers of another branch.
the majority of his cases in federal court, and he The court agreed with Sargent and recognized
established a national reputation as a trial lawyer. the QUASI-JUDICIAL powers of executive-branch
In 1908 Sargent was named attorney general state agencies. The decision led the way for
of Vermont. While in office, he was involved in commissions and boards across the country to
one of the leading cases in the history of wield court-like powers.
Vermont’s highest court. In Sabre v. Rutland While serving as Vermont’s attorney gen-
Railroad Co., 86 Vt. 347, 85 Aik. 693 (1912), eral, Sargent also returned to school, receiving a
attorneys for the railroad argued that the master’s degree from Tufts College in 1912.
powers enjoyed by Vermont’s Public Service When Sargent returned to his law firm in 1913,
Commission (which regulated railroads) he turned his attention to partisan politics. He

John Garibaldi Sargent 1860–1939 1935 Served as director of the

1927 Sought commutation Vermont Valley, Boston and Main
of Marcus Garvey's mail Railroad; also director of the
fraud sentence Central Vermont Railroad
1908–12
1898 Named state's attorney for Windsor County, Vermont 1900–02 Served Served 1925 Appointed U.S. attorney 1929
as secretary for as attorney general by President Calvin Left
1860 Born, 1887 Graduated 1890 Admitted Civil and Military general of Coolidge; remained in office public 1939 Died,
Ludlow, Vt. from Tufts College to Vermont bar Affairs of Vermont Vermont under President Herbert Hoover office Ludlow, Vt.
❖ ◆ ◆ ◆ ◆◆ ◆ ◆ ❖
▼

1860 1885 1910 1935

1861–65 1914–18
U.S. Civil War World War I

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4 SATISFACTION

supported REPUBLICAN PARTY candidates in Ver- Youseff, Sitamon M. 1998. Marcus Garvey: The FBI
mont and throughout the Northeast and Investigation Files. Lawrenceville, NJ: Africa World
Press.
campaigned vigorously for WARREN G. HARDING
in 1920 and Calvin Coolidge in 1924. CROSS REFERENCES
Sargent was named attorney general of the Coolidge, Calvin; Hoover, John Edgar.
United States on March 17, 1925, but only after the
president’s first choice, financier Charles B.
Warren, withdrew after the Senate questioned his SATISFACTION
willingness to enforce ANTITRUST LAWS. Sargent The discharge of an obligation by paying a party
proved to be a safe and noncontroversial alterna- what is due—as on a mortgage, lien, or contract
tive. He was confirmed in just one day, and he —or by paying what is awarded to a person by the
served from March 18, 1925, until March 4, 1929. judgment of a court or otherwise. An entry made
on the record, by which a party in whose favor a
Sargent was not known as a leader in the judgment was rendered declares that she has been
fight for racial equality, but he did ask the satisfied and paid.
president to commute the sentence of MARCUS
GARVEY in 1927. Garvey was a political activist
The fulfillment of a gift by will, whereby the
testator—one who dies leaving a will—makes an
from Jamaica who had been convicted of MAIL
inter vivos gift, one which is made while the
FRAUD for his efforts to recruit black Americans
testator is alive to take effect while the testator is
for his Universal Negro Improvement League
living, to the beneficiary with the intent that it be
and African Communities Association Garvey v.
in lieu of the gift by will. In EQUITY, something
United States, 267 U.S. 604, 45 S. Ct. 464 (1925).
given either in whole or in part as a substitute or
The tainted proceeding against Garvey was
equivalent for something else.
orchestrated by an overzealous young JUSTICE
DEPARTMENT attorney named J. EDGAR HOOVER.

Sargent was outspoken in his disapproval of SAVE

Hoover’s tactics in the Garvey case, and he was To except, reserve, or exempt; as where a statute
among the first attorneys general to condemn saves vested—fixed—rights. To toll, or suspend
the gathering of evidence through WIRETAPPING, a the running or operation of; as, to save the
STATUTE OF LIMITATIONS.
tactic approved by Hoover when he was director
of the FEDERAL BUREAU OF INVESTIGATION. Testify-
ing before a congressional committee, Sargent SAVING CLAUSE
said, “Wire tapping, ENTRAPMENT, or use of any In a statute, an exception of a special item out
illegal or unethical tactics in procuring infor- of the general things mentioned in the statute.
mation will not be tolerated . . . .” A restriction in a repealing act, which is intended
In 1930 Sargent returned to Vermont and to save rights, while proceedings are pending,
again took an active role in his law firm. In his from the obliteration that would result from an
later years, Sargent devoted his time and energy unrestricted repeal. The provision in a statute,
to local businesses and community organiza- sometimes referred to as the severability clause,
tions. When years of political infighting finally that rescues the balance of the statute from a
forced the reorganization of Vermont’s rail- declaration of unconstitutionality if one or more
roads in the early 1930s, Sargent was appointed parts are invalidated.
to oversee the process. Sargent died at his home With respect to existing rights, a saving
in Ludlow, Vermont, on March 5, 1939. clause enables the repealed law to continue in
force.
FURTHER READINGS
Justice Department. 1991. 200th Anniversary of the Office of
the Attorney General, 1789–1989. Washington, D.C.: SAVINGS AND LOAN ASSOCIATION
Department of Justice, Office of Attorney General and A savings and loan association is a financial
Justice Management Division. institution owned by and operated for the benefit
“Mr. Sargent.” Time (March 30, 1925). Available on-
of those using its services. The primary purpose of
line at http://www.time.com/time/magazine/article/
0,9171,720053,00. html?iid=digg_share; website home the savings and loan association is making loans
page: http://www.time.com (accessed September 7, to its members, usually for the purchase of real
2009). estate or homes.

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 S A V I N G S A N D L O A N AS S O C I A T I O N 5

The savings and loan industry was first An example of a

established in the 1830s as a BUILDING AND LOAN Saving Clause saving clause.
ASSOCIATION. The first savings and loan association ILLUSTRATION BY GGS
CREATIVE RESOURCES.
was the Oxford Provident Building Society in All acts of limitations, whether applicable to civil causes and
REPRODUCED BY
proceedings, or to the prosecution of offenses, or for the
Frankfort, Pennsylvania. As a building and loan recovery of penalties or forfeitures, embraced in the Revised PERMISSION OF GALE, A
association, Oxford Provident received regular Statutes and covered by the repeal contained therein, shall not PART OF CENGAGE

weekly payments from each member and then be affected thereby; but suits, proceedings, or prosecutions, LEARNING.
whether civil or criminal, for causes arising, or acts done or
lent the money to individuals until each member committed prior to said repeal, may be commenced and
could build or purchase his own home. Building prosecuted within the same time as if said repeal had not been
made. July 30, 1947, c. 388, §1, 61 Stat. 633.
and loan associations were financial intermediar-
ies, which acted as a conduit for the flow of
investment funds between savers and borrowers.
Savings and loan associations may be state regulations, and even for losses that result from
or federally chartered. When formed under state a violation of the corporation’s bylaws.
law, savings and loan associations are generally The responsibilities of the officers and
incorporated and must follow the state’s directors of a savings and loan association are
requirements for incorporation, such as provid- generally the same as the responsibilities of
ing ARTICLES OF INCORPORATION and BYLAWS. officers and directors of other corporations. They
Although it depends on the applicable state’s must select competent individuals to administer
law, the articles of incorporation usually must the institution’s affairs, establish operating poli-
set forth the organizational structure of the cies and internal controls, monitor the institu-
association and define the rights of its members tion’s operations, and review examination and
and the relationship between the association and audit reports. Furthermore, they have the power
its stockholders. A savings and loan association to assess losses incurred and to decide how the
may not convert from a state corporation to a institution will recover those losses.
federal corporation without the consent of the Prior to the 1930s, savings and loan associa-
state and compliance with state laws. A savings tions flourished. However, during the Great
and loan association may also be federally Depression the savings and loan industry suf-
chartered. Federal savings and loan associations fered. More than 1,700 institutions failed, and
are regulated by the OFFICE OF THRIFT SUPERVISION. because depositor’s insurance did not exist,
Members of a savings and loan association customers lost all of the money they had
are stockholders of the corporation. The deposited into the failed institutions. Congress
members must have the capacity to enter into responded to this crisis by passing several banking
a valid contract, and as stockholders they are acts. The Federal Home Loan Bank Act of 1932,
entitled to participate in management and share 12 U.S.C.A. §§ 1421 et seq., authorized the
government to regulate and control the financial
in the profits. Members have the same liability
services industry. The legislation created the
as stockholders of other corporations, which
Federal Home Loan Bank Board (FHLBB) to
means that they are liable only for the amount
oversee the operations of savings and loan
of their stock interest and are not personally
institutions. The Banking Act of 1933, 48 Stat.
liable for the association’s NEGLIGENCE or debts.
162, created the FEDERAL DEPOSIT INSURANCE
Officers and directors control the operation CORPORATION (FDIC) to promote stability and
of the savings and loan association. The officers restore and maintain confidence in the nation’s
and directors have the duty to organize and banking system. In 1934, Congress passed the
operate the institution in accordance with state National Housing Act, 12 U.S.C.A. §§ 1701 et seq.,
and federal laws and regulations and with the which created the National Housing Administra-
same degree of diligence, care, and skill that an tion (NHA) and the Federal Savings and Loan
ordinary prudent person would exercise under Insurance Corporation (FSLIC). The NHA was
similar circumstances. The officers and direc- created to protect mortgage lenders by insuring
tors are under the common-law duty to exercise full repayment, and the FSLIC was created to
due care as well as the duty of loyalty. Officers insure each depositor’s account up to $5,000.
and directors may be held liable for breaches of The banking reform in the 1930s restored
these common-law duties, for losses that result depositors’ faith in the savings and loan industry,
from violations of state and federal laws and and it was once again stable and prosperous.

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6 S A V I NG S A N D L O A N AS S O C I A T I O N

However, in the 1970s the industry began to feel funds from Lincoln Savings and Loan in Arizona
the impact of competition and increased interest to invest in risky ventures. Keating’s actions
rates; investors were choosing to invest in money eventually left more than 20,000 people without
markets rather than in savings and loan associa- savings, and Keating went to prison. The senators
tions. To boost the savings and loan industry, involved became known as the Keating Five:
Congress began deregulating it. Three types of JOHN MCCAIN (R-Ariz.), Alan Cranston (D-Calif.),
deregulation took place during this time. John Glenn (D-Ohio.), Don Riegle (D-Mich.),
The first major form of deregulation was the and Dennis DeConcini (D-Ariz.).
enactment of the Depository Institutions In an effort to restore confidence in the thrift
Deregulation and Monetary Control Act of industry, Congress enacted the Financial Insti-
1980 (94 Stat. 132). The purpose of this tutions Reform, Recovery, and Enforcement Act
legislation was to allow investors higher rates of 1989 (FIRREA) (103 Stat. 183). The purpose
of return, thus making the savings and loan of FIRREA, as set forth in Section 101 of the bill,
associations more competitive with the money was to promote a safe and stable system of
markets. The industry was also allowed to offer affordable housing finance; improve supervi-
money-market options and provide a broader sion; establish a general oversight by the
range of services to its customers. TREASURY DEPARTMENT over the director of the

The second major form of deregulation was Office of Thrift Supervision; establish an inde-
the enactment of the Garn–St. Germain Depos- pendent insurance agency to provide deposit
itory Institutions Act of 1982 (96 Stat. 1469). insurance for savers; place the Federal Deposit
This act allowed savings and loan associations to Insurance System on sound financial footing;
diversify and invest in other types of loans create the Resolution Trust Corporation; pro-
besides home construction and purchase loans, vide the necessary private and public financing
including commercial loans, state and munici- to resolve failed institutions in an expeditious
pal SECURITIES, and unsecured REAL ESTATE loans. manner; and improve supervision, enhance
enforcement powers, and increase criminal and
The third form of deregulation decreased
the amount of regulatory supervision. This civil penalties for crimes of FRAUD against
deregulation was not actually an “official” financial institutions and their depositors.
deregulation; instead it was the effect of a FIRREA increased the enforcement powers of
change in required accounting procedures. The the federal banking regulators and conferred a
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES were wide array of administrative sanctions. FIRREA
changed to Regulatory Accounting Procedures, also granted federal bank regulators the power to
which allowed savings and loan associations to hold liable “institution-affiliated parties” who
include speculative forms of capital and exclude engage in unsound practices that harm the
certain liabilities, thus making the thrifts appear insured depository institution. The institution-
to be in solid financial positions. This action affiliated parties include directors, officers, em-
resulted in more deregulation. ployees, agents, and any other persons, including
In the 1980s the savings and loan industry attorneys, appraisers, and accountants, partici-
collapsed. By the late 1980s at least one-third of the pating in the institution’s affairs. FIRREA also
savings and loan associations were on the brink of allows federal regulators to seize the institution
insolvency. Eight factors were primarily responsi- early, before it is “hopelessly insolvent” and too
ble for the collapse: a rigid institutional design, expensive for federal insurance funds to cover.
high and volatile interest rates, deterioration of Criminal penalties were also increased in
asset quality, federal and state deregulation, 1990 by the CRIME CONTROL ACT, 104 Stat. 4789,
fraudulent practices, increased competition in which included the Comprehensive Thrift and
the financial services industry, and tax law changes. Bank Fraud Prosecution and Taxpayer Recovery
The savings and loan collapse was also due Act of 1990 (104 Stat. 4859). This act increased
in part to improper political influence. One the criminal penalties “attaching” to crimes
prominent member of the savings and loan related to financial institutions.
industry, Charles Keating, was influential with FIRREA created the Office of Thrift Supervi-
members of Congress. He convinced several sion (OTS) and the Resolution Trust Corporation
U.S. senators to argue against tougher regula- (RTC). FIRREA eliminated the FHLBB and
tions. At the same time, Keating used depositors’ created the OTS to take its place. The RTC was

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 SAXBE, WILLIAM BART 7

created solely to manage and dispose of the assets William B. Saxbe.

of thrifts that failed between 1989 and August COURTESY OF CHESTER
1992. In addition, the FSLIC was eliminated, and WILLCOX & SAXBE LLP

the FDIC, which oversaw the banking industry,

began dealing with the troubled thrifts.
The RTC was in existence for six years, closing
its doors on December 31, 1996. During its
existence, it merged or closed 747 thrifts and sold
$465 billion in assets, including 120,000 pieces of
property. The direct cost of resolving the failed
thrifts amounted to $90 billion; however, analysts
claim that it will take approximately 30 years to
fully bail out the savings and loan associations at a
cost of approximately $480.9 billion.

FURTHER READINGS
American Bar Association. 1995. “How a Good Idea Went
Wrong: Deregulation and the Savings and Loan Crisis.”
Administrative Law Review 47.
American Bar Association. The Committee of Savings and
Loan Associations Section of Corporation, Banking,
and Business. 1973. Handbook of Savings and Loan Law.
Chicago: American Bar Association.
Calavita, Kitty, Henry N. Pontell, and Robert H. Tillman.
1999. Big Money Crime: Fraud and Politics in the Savings
and Loan Crisis. Berkeley: Univ. of California Press.
Gorman, Christopher Tyson. 1994–95. “Liability of Direc- Saxbe was born on June 24, 1916, in the
tors and Officers under FIRREA: The Uncertain farming community of Mechanicsburg, Ohio,
Standard of §1821(K) and the Need for Congressional to Bart Rockwell Saxbe, a religious and plain-
Reform.” Kentucky Law Journal 83.
spoken community leader who made his living
Turck, Karsten F. 1998. The Crisis of American Savings &
Loan Associations: A Comprehensive Analysis. New York: as a cattle buyer, and Faye Henry Carey Saxbe, a
P. Lang. political free-spirit who counted PATRICK HENRY
U.S. House. 1989. 101st Cong., 1st sess. H.R. 54 (I). United among her ancestors. Saxbe’s education seemed
States Code Congressional and Administrative News. to be influenced by his parents’ example; when
CROSS REFERENCE he entered Ohio State University in 1936, he
chose political science as his major field of
Banks and Banking.
study. He received a Bachelor of Arts degree in
1940. In the fall of that year, he married Ardath
v SAXBE, WILLIAM BART
Louise (“Dolly”) Kleinhans. They eventually
William Bart Saxbe, a quotable lawyer, politi-
had three children: William Bart Jr., Juliet
cian, and U.S. senator from Ohio, served as U.S.
Louise, and Charles Rockwell.
attorney general under President RICHARD M.
NIXON. He also served as ambassador to India While attending college, Saxbe was a
under President GERALD R. FORD. member of the Ohio NATIONAL GUARD. After

William Bart Saxbe 1916– 1994 Joined his son’s law practice at Chester, Hoffman, Wilcox & Saxbe
1999 Participated
1974 Served as U.S. attorney general under Nixon and Ford 1982 Hired as in historic forum
1975–77 independent of former U.S.
1947–54 1969–74 Served as special counsel Attorneys General
1916 Born, 1940–45 Served in Ohio 1957–67 Served in U.S. for the Central at American Bar
Mechanicsburg, Served in House of Served as Ohio U.S. ambassador States Teamsters Association
Ohio Army Air Force Representatives attorney general Senate to India Pension Fund convention

❖ ◆ ◆ ◆ ◆
▼

1925 1950 1975 2000

◆
1914–18 1939–45 1950–53 1961–73 2000 I’ve Seen the
World War I World War II Korean War Vietnam War Elephant published

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8 S A XB E , WI L L I A M BA RT

college, he enlisted in the Army Air Corps, alienated most of Washington when he said, “The
serving from 1940 to 1945. Saxbe was called to first six months I kept wondering how I got
serve again during the Korean conflict in the [here]. After that, I started wondering how all of
1950s; he was discharged from the reserve with them did.”
the rank of colonel in 1963. In addition to his disdain for the insulated
Immediately after WORLD WAR II, Saxbe lives of Washington politicians, Saxbe was
returned to Ohio with the intention of furthering frustrated with the pace of legislation on Capitol
his education. He gave serious thought to Hill. To address the problem, he joined forces
pursuing a career in the ministry of the Episcopal with Senator Alan M. Cranston to develop a
Church, but his long-standing interest in political two-track system of moving legislation through
and COMMUNITY SERVICE prevailed. Saxbe entered the Senate. The system allowed less controver-
law school at Ohio State University in 1945 and, sial bills to pass through the legislative process
simultaneously, launched a campaign to serve in quickly, while more volatile measures were held
the Ohio House of Representatives. He was for debate and discussion. When other efforts to
elected and served four terms from 1947 to 1954. improve the process stalled, Saxbe removed
Saxbe completed his law degree at the end of his himself from the Senate entirely, by taking part
second term. He served as House majority leader in travel junkets. Saxbe’s pleas for aid to East
in 1951 and 1952, and as speaker of the House in Bengal and for discontinuation of aid to
1953 and 1954. Pakistan were direct results of his findings while
on a trip; he considered these actions to be
Saxbe left the Ohio Legislature at the among his greatest achievements in the Senate.
conclusion of his fourth term. He returned to
I FEEL VERY Saxbe’s frustration with Washington was
Mechanicsburg, where he raised cattle on the
STRONGLY THAT THE not limited to the Senate. For example, Saxbe
family farm. He also partnered with two
had defied protocol by challenging Nixon’s
JUSTICE DEPARTMENT longtime friends to establish the Columbus,
Vietnam policy during a social gathering at the
IS THE VERY HEART Ohio, law firm of Saxbe, Boyd, and Prine. He
White House for freshman senators. In re-
AND SOUL OF OUR
practiced law for two years before re-entering
sponse, the president’s staff kept Saxbe out of
the political arena in 1956. In 1957 he ran as
COUNTRY, BECAUSE the Oval Office and away from Nixon for
the Republican candidate for state attorney
GOVERNMENT almost two years after that disastrous first
general. Over the next decade, he served four
WITHOUT LAW IS
meeting with the chief executive.
terms in that state office. As attorney general,
TYRANNY. Saxbe proved to be a tough and capable crime Saxbe’s growing contempt for the White
—WILLIAM B. SAXBE fighter. He believed that CAPITAL PUNISHMENT was House staff reached a new height in 1971, when
a strong deterrent and that stiff prison sentences he referred to Nixon aides H. R. Haldeman and
should be imposed for gun-related crimes. John D. Ehrlichman as “a couple of Nazis” and
again in 1972 when he commented on Nixon’s
Although conservative in his views on crime professed innocence in the WATERGATE scandals,
and money, Saxbe described himself as “liberal on saying that the chief executive sounded “like the
the rights of people.” In 1968 Saxbe took his fellow who played the piano in a brothel for twenty
unique mix of fiscal conservatism and social years, and insisted that he didn’t know what was
responsibility to the electorate. He ran as the going on upstairs.” (The Watergate scandals began
Republican candidate for a U.S. Senate seat, and he with a break-in at the Democratic National
won a close election over liberal Democrat John J. Committee headquarters—located in the Water-
Gilligan. His stand against the Pentagon’s deploy- gate Office Towers—and eventually toppled the
ment of antiballistic missiles during the VIETNAM Nixon administration.)
WAR surprised many of those who thought his
campaign promises were mere rhetoric. Gilligan In September 1973 Saxbe announced that
was quoted as saying, “If I had known he was going he would not seek reelection to the Senate. Just a
month later, Nixon asked him to accept an
to be like this, I would have voted for him myself.”
appointment as attorney general of the United
Saxbe’s voting record on most major issues
States to replace ELLIOT RICHARDSON. Richardson,
showed that he moved gradually to the right
Nixon’s third attorney general, had resigned rather
during his four years in the U.S. Senate.
than obey an EXECUTIVE ORDER to fire Watergate
Saxbe was quickly disenchanted with life as a PROSECUTOR ARCHIBALD COX. Saxbe was reluctant
senator. He felt that many of his senate colleagues to accept the nomination, but he knew that
were sadly out of touch with the electorate. He the administration wanted to avoid a long

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 S C A L I A , AN T O N I N 9

confirmation battle and that his past criticism of 2002 the auditorium of Ohio State University’s
the president would make him a credible candi- Moritz College of Law was named the William
date with both Nixon supporters and detractors. B. Saxbe Law Auditorium in recognition of his
After a two-hour discussion with Nixon, in history of public service and his generous
which the president denied any knowledge or donations to the school.
involvement in the Watergate scandals, Saxbe
FURTHER READINGS
accepted the nomination. He took office in
Barrett, John Q. 1998. “All or Nothing, or Maybe
January 1974. His goal was to restore the
Cooperation: Attorney General Power, Conduct, and
Department of Justice’s credibility with the Judgment in Relation to the Work of an Independent
U.S. public and to keep the public informed of Counsel.” Mercer Law Review 49 (winter).
the department’s activities. Powell, H. Jefferson. 1999. The Constitution and the
Attorneys General. Durham, N.C: Carolina Academy
Saxbe initiated weekly news conferences at
Press.
the beginning of his term but curtailed them Saxbe, William B., with Peter D. Franklin. 2000. I’ve Seen the
quickly when he found that his offhand Elephant. Kent, Ohio: Kent State Univ. Press.
comments generated more interest than did
his substantive efforts. Among Saxbe’s more SCAB
printable gaffes were his reference to PATTY
A pejorative term used colloquially in reference to
HEARST as a common criminal and his observa-
a nonunion worker who takes the place of a union
tion that Jewish intellectuals of the 1950s were employee on strike or who works for wages and
enamored with the Communist party. other conditions that are inferior to those
As attorney general, Saxbe supported legis- guaranteed to a union member by virtue of the
lation limiting access to criminal records of union contract; also known as a strikebreaker.
arrested and convicted persons, and he contin-
ued to favor capital punishment and tough CROSS REFERENCE
sentences for gun-related crimes. He conducted Labor Union.
an investigation into the FBI’s counterintelli-
gence program—Cointelpro—and condemned v SCALIA, ANTONIN
the program for its harassment of left-wing In 1986 Antonin Scalia was appointed to the
groups, black leaders, and campus radicals. U.S. Supreme Court by President RONALD
REAGAN, becoming the first American of Italian
He also worked on two of the biggest antitrust
cases in history, against IBM and AT&T. descent to serve as an associate justice. Known
for his conservative judicial philosophy and
After Nixon’s resignation, Saxbe continued to narrow reading of the Constitution, Scalia has
serve as attorney general in the Ford administra- repeatedly urged his colleagues on the Court to
tion. He resigned in December 1974 to accept an overturn ROE V. WADE, 410 U.S. 113, 93 S. Ct.
appointment as U.S. ambassador to India. 705, 35 L. Ed. 2d 147 (1973), the decision
For the next 20 years Saxbe practiced law in recognizing a woman’s right to terminate her
Florida, Ohio, and Washington, D.C., and he pregnancy under certain circumstances.
remained active in REPUBLICAN PARTY politics. In Scalia was born March 11, 1936, in Trenton,
March 1994 he announced that he would join the New Jersey. Before he began grade school, Scalia
Columbus, Ohio, law firm of Chester, Hoffman, and his family moved to Elmhurst, New York,
Willcox, and Saxbe, where his son was a partner. where he spent much of his boyhood. Scalia is
Saxbe is often called upon to speak about the the only child of Eugene Scalia, an Italian
turmoil of the Watergate years and his experi- immigrant who taught romance languages at
ence in the final days of the Nixon administra- Brooklyn College for 30 years, and Catherine
tion. On the eve of Nixon’s funeral in April 1994, Scalia, a first-generation Italian-American who
Saxbe acknowledged that he had never made an taught elementary school.
attempt to see Nixon again after his resignation In 1953 Antonin Scalia graduated first in
because the former president had lied to him his class at St. Francis Xavier High School, a
about his involvement in the Watergate scandals. Jesuit military academy in Manhattan. Four
Saxbe published an autobiography in 2000 years later Scalia was valedictorian at George-
while continuing to practice law at Chester, town University, receiving a bachelor’s degree in
Willcox & Saxbe, where he specialized in history. In the spring of 1960 Scalia graduated
general business law and strategic counsel. In magna cum laude from Harvard Law School

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10 S C A L I A , AN T O N I N

Antonin Scalia. Telecommunications Policy. Under President

MOLLIE ISAACS, GERALD R. FORD Scalia served as assistant attorney
COLLECTION OF THE general for the JUSTICE DEPARTMENT, where he
SUPREME COURT OF THE
drafted a key presidential order establishing new
UNITED STATES
restrictions on the information-gathering activ-
ities of the CENTRAL INTELLIGENCE AGENCY and
FEDERAL BUREAU OF INVESTIGATION.

In 1977 Scalia left public office to become

a visiting scholar at the American Enterprise
Institute, a conservative think tank in Washing-
ton, D.C. During this same year, Scalia also
returned to academia, accepting a position as
law professor at the University of Chicago,
where he developed a reputation as an expert in
ADMINISTRATIVE LAW. In 1982 President Reagan
appointed Scalia to the U.S. Court of Appeals
for the District of Columbia, which many
lawyers consider to be the second most power-
ful court in the country.
When Chief Justice WARREN BURGER retired in
1986, President Reagan elevated sitting justice
where he served as an editor for the Harvard WILLIAM REHNQUIST to the chair of chief justice
Law Review. Known to his friends as Nino, and nominated Scalia to fill the vacancy of
Scalia was known to many of his classmates as associate justice. Confirmed by a vote of 98–0 in
an eager and able debater. the Senate, Scalia became the first Roman
Catholic to be appointed to the U.S. Supreme
Upon graduation from law school, Scalia
Court since WILLIAM J. BRENNAN JR. in 1957.
accepted a position as an associate attorney with
a large law firm in Cleveland, Ohio, where he Scalia’s tenure on the high court has been
practiced law until 1967. He resigned to teach at marked by a JURISPRUDENCE of ORIGINAL INTENT.
the University of Virginia School of Law. In Proponents of original intent, also called origin-
1971 Scalia joined the Nixon Administration to alists, believe that the Constitution must be
serve as general counsel for the Office of interpreted in light of the way it was understood

Antonin Scalia 1936– 2003 Received Citadel of Free Speech Award from City Club; declared in
speech that government has power to curtail rights during wartime
2002 Delivered widely debated speech on the death penalty and religious authority for democracy at the University of Chicago
1996 Dissented in U.S. v. Virginia
1994 Distinguished Jurist in Residence, Touro Law Center
1974 Appointed assistant U.S. attorney general 1997
1986 Appointed associate
Wrote
justice of the U.S.
1972 Became chair of the Administrative majority
Supreme Court 1988 Wrote
Conference of the United States opinion 2004 The
majority opinion
1982 in Coy v. Iowa in Printz Opinions of
1971–72 Served as general counsel for the v. U.S. Justice Antonin
Appointed
Office of Telecommunications Policy Scalia published
1977 to the 1992
Joined the U.S. Court Dissented 2000
1960 Served as editor of law review,
1967–71 University of Appeals in part in Voted with 2008 Wrote
graduated from Harvard Law School
Taught law of Chicago for the Planned majority majority opinion
1936 Born, 1957 Graduated from at UVA law Law School District of Parenthood in Bush in District of
Trenton, N.J. Georgetown Univ. school faculty Columbia v. Casey v. Gore Columbia v. Heller

❖ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆◆ ◆ ◆◆◆ ◆
▼

1930 1950 1975 2000

◆
1939–45 1950–53 1961–73 2000 Presidential election result uncertain due
World War II Korean War Vietnam War to disputed Fla. vote count; recount halted by
U.S. Supreme Court with 5–4 vote in Bush v. Gore

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 S C A L I A , AN T O N I N 11

at the time it was framed and ratified. According presently support or oppose capital punishment
to Scalia, originalism has two virtues: preserving plays only a negligible role in Scalia’s analysis.
the SEPARATION OF POWERS in a democratic society, Scalia’s interpretation of the DUE PROCESS
and curbing judicial discretion. CLAUSE of the Fifth and Fourteenth Amendments
The Constitution delegates specific enumer- provides another example of his judicial philos-
ated powers to the three branches of the federal ophy. According to Scalia, the Due Process
government. The Legislative Branch is given Clause was originally understood to offer only
the power to make law under Article I; the procedural protection, such as the right to a FAIR
EXECUTIVE BRANCH is given the power to enforce HEARING before an impartial judge and an
the law under Article II; and the Judicial Branch unbiased jury. Nowhere in the text of the
is given the power to interpret and apply the law Constitution, Scalia notes, is there any hint that
under Article III. Originalists believe that the Due Process Clause offers substantive
democracy is enhanced when the lawmaking protection. It is not surprising then that Scalia
power is exercised by the federal legislature has dissented from U.S. Supreme Court deci-
because, unlike federal judges who are sions that have relied on the Due Process Clause
appointed by the president and given life tenure in protecting the substantive right of women to
on the bench, members of Congress are held terminate their pregnancies under certain
accountable to the electorate at the ballot box. circumstances (Planned Parenthood v. Casey,
JUDGES IN A REAL
This separation of powers is blurred, Scalia 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed.
SENSE ‘MAKE’
argues, when unelected federal judges decide 2d 674 [1992]). Likewise, Scalia disagreed with
cases in accordance with their own personal the Court’s decision that a state law grant- LAW. . . . [T]HEY

preferences, which may be contrary to those ing VISITATION RIGHTS to grandparents was uncon- MAKE IT AS JUDGES
expressed by the framers and ratifiers. In such stitutional because it infringed upon the funda- MAKE IT, WHICH IS TO
instances, Scalia asserts, federal judges usurp the mental rights of parents to raise their children
SAY AS THOUGH THEY
legislative function by making new law that (Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054,
WERE ‘FINDING’ IT—
effectively replaces the popular understanding 147 L. Ed. 2d 49 (2000)). No such right, Scalia
has commented, can be found in the express DISCERNING WHAT
of the Constitution at its time of adoption. The
only way to curb this type of judicial discretion language of any constitutional provision. THE LAW IS, RATHER

and to preserve the separation of powers, Scalia Scalia has surprised some observers by his THAN DECREEING
concludes, is by requiring federal judges to literal reading of the SIXTH AMENDMENT, which WHAT IT IS TODAY
interpret and apply the Constitution in light of guarantees the right of criminal defendants to CHANGED TO, OR
its original meaning. This meaning can be be “confronted with witnesses against them.” In
WHAT IT WILL
illuminated, Scalia says, by paying careful atten- Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101
TOMORROW BE.
tion to the express language of the Constitution L. Ed. 2d 857 (1988), Scalia wrote that the Sixth
and the debates surrounding the framing and Amendment requires a face-to-face confronta- —ANTONIN SCALIA
RATIFICATION of particular provisions. tion and that such an opportunity had been
Scalia’s interpretation and application of the denied when a large screen had been placed
EIGHTH AMENDMENT best exemplifies his judicial between a DEFENDANT charged with CHILD
MOLESTATION and the child who was accusing
philosophy. The Eighth Amendment prohibits
CRUEL AND UNUSUAL PUNISHMENT. Courts that
him. The Sixth Amendment, Scalia concluded,
evaluate a claim under the Cruel and Unusual intended for courts to preserve the adversarial
Punishments Clause, Scalia argues, must deter- nature of the criminal justice system by
mine whether a particular punishment was protecting the rights guaranteed by the Con-
allowed in 1791 when the Eighth Amendment frontation Clause over governmental objections
was framed and ratified. Moreover, he argues that face-to-face CROSS-EXAMINATION may be
that courts must not take into account notions emotionally traumatic for some victims.
of the evolving standards of human decency. Scalia drew the ire of advocates for GAY AND
For example, Scalia contends that CAPITAL LESBIAN RIGHTSwith his DISSENT in ROMER V. EVANS,
PUNISHMENT was clearly contemplated by the 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855
framers and ratifiers of the federal Constitution. (1996). The Court invalidated a CONSTITUTIONAL
The FIFTH AMENDMENT explicitly references capi- AMENDMENT by the state of Colorado that
tal crimes, Scalia observes, and capital punish- prohibited anti-discrimination laws intended
ment was prevalent in the United States when to protect gays, lesbians, and bisexuals. Accord-
the Constitution was adopted. Whether states ing to the majority in the decision, the state

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12 SCHECHTER POULTRY CORP. V. UNITED STATES

constitutional amendment violated the FOUR- Interpretation: Federal Courts and the Law
TEENTH AMENDMENT of the U.S. Constitution. (1997). In 2008, Scalia’s book, Making Your
Scalia disagreed, writing a scathing dissent. Case: The Art of Persuading Judges (with
According to Scalia, the majority opinion Bryan A. Garner, editor in chief of Black’s
“places the prestige of this institution behind Law Dictionary) was published.
the proposition that opposition to homosexual-
ity is as reprehensible as racial or religious bias.” FURTHER READINGS
Frantz, Douglas. 1986. “Scalia Embodies President’s Hope
Whether Scalia is writing about the Sixth
for Court’s Future.” Chicago Tribune (August 3).
Amendment, the Eighth Amendment, or any Hasson, Judy. 1986. “Scalia Got Early Chance to Show His
other Constitutional provision, some regard his Legal Talents.” Seattle Times (August 5).
judicial opinions as among the most well written Scalia, Antonin, and Paul I. Weizer. 2004. The Opinions of
in the history of the U.S. Supreme Court. The Justice Antonin Scalia: The Caustic Conservative. New
clarity, precision, and incisiveness with which he York: P. Lang.
Scalia, Antonin. 1997. A Matter of Interpretation: Federal
writes is frequently praised. However, some of
Courts and the Law. Princeton, N.J.: Princeton Univ.
Scalia’s opinions take on an acerbic quality. Press.
Often relegated to the role of dissenting justice, ———. 1989. “Originalism: The Lesser Evil.” University of
Scalia is not above hurling invectives at his Cincinnati Law Review 57.
colleagues on the Court, sometimes criticizing
their opinions as silly and preposterous.
SCHECHTER POULTRY CORP. V.
In 2004 Scalia would not RECUSE himself from UNITED STATES
a case involving former Vice President Richard A.L.A. Schechter Poultry Corp. v. United States,
Cheney, with whom he has dined and hunted. 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935),
Cheney was contesting a federal court mandate is one of the most famous cases from the Great
to release internal files of an energy task force he Depression era. The case tested the legality of
had overseen for the Bush administration. Also certain methods used by Congress and President
that year, tapes of Scalia’s speech at a Mississippi FRANKLIN D. ROOSEVELT to combat the devastating
high school, which two journalists recorded, economic effects of the Depression. After the U.S.
were erased at the insistence of a U.S. deputy Supreme Court declared the methods unconsti-
marshal; journalism groups were outraged. tutional, Roosevelt publicly scolded the Court
Controversy also surrounded Scalia two years and later used the decision as one justification for
later, when the Boston Herald reported that he a controversial plan to stock the Court with
made an obscene hand gesture at the Cathedral justices more receptive of Roosevelt’s programs.
of the Holy Cross in that city. Scalia said the
newspaper misinterpreted the gesture. At the heart of the Schechter case was
legislation passed by Congress in 1933. The NA-
Scalia has continued to speak stridently TIONAL INDUSTRIAL RECOVERY ACT (NIRA) (48 Stat.
about the judiciary. He said in 2004 that the top 195) was passed in response to the unemploy-
court spends too much time on morally tinged ment and poverty that swept the nation in the
cases that elected legislatures should decide. early 1930s and provided for the establishment
And late in 2006, he urged higher pay for federal of local codes for fair competition in industry.
judges. “If you become a federal judge in the The codes were written by private trade and
Southern District of New York [Manhattan], industrial groups. If the president approved the
you can’t raise a family on what the salary is,” codes, they became law. Businesses were
Scalia said while addressing the Northern required to display a Blue Eagle insignia from
Virginia Technology Council. the NATIONAL RECOVERY ADMINISTRATION to signify
In June 2008 Scalia, writing the majority their compliance with the codes. Typical local
opinion in a 5-4 Supreme Court ruling that codes set minimum wages and maximum hours
struck down a Washington, D.C. gun ban, said, for workers and gave workers the right to
“It is not the role of this court to pronounce the organize into unions and engage in COLLECTIVE
SECOND AMENDMENT extinct.” BARGAINING with management. Codes also pre-

Scalia married the former Maureen scribed fair trade practices, and many codes set
McCarthy in 1960. They have nine children. minimum prices for the sale of goods.
Scalia has written numerous articles on a variety The Schechter Poultry Corporation, owned
of issues and is the author of A Matter of and operated by Joseph, Martin, Alex, and Aaron

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 SCHECHTER POULTRY CORP. V. UNITED STATES 13

Schechter, was in the business of selling chickens at clause, Congress had the power to regulate
wholesale. The corporation purchased some of the commerce between the states, not intrastate
poultry from outside the state of New York. It commerce. The power to enact legislation on
bought the poultry at markets and railroad intrastate commerce was reserved to the states
terminals in New York City and sold the poultry under the TENTH AMENDMENT to the Constitution.
to retailers in the city and surrounding environs. In According to the Court, the business conducted by
April 1934 President Roosevelt approved the code the Schechters was decidedly intrastate. Their
of fair competition for the live poultry industry of business was licensed in New York, they bought
the New York City metropolitan area (Live Poultry their poultry in New York, and they sold it to
Code). In July 1934 the Schechters were retailers in New York. Because it was intended to
arrested and indicted on 60 counts of violating reach intrastate businesses such as Schechter
the Live Poultry Code. The INDICTMENT included Poultry, the Live Poultry Code regulated intrastate
charges that Schechter Poultry had failed to commerce, and it was, therefore, an unconstitu-
observe the MINIMUM WAGE and maximum hour tional exercise of congressional power. The Court
provisions applicable to workers and that it had reversed the Schechters’ convictions and declared
violated a provision of the Live Poultry Code the Live Poultry Code unconstitutional.
prohibiting the sale of unfit chickens. The case The Schechter decision was decided around
became popularly known as the Sick Chicken case. the same time as other, similar Supreme Court
The Schechters pleaded not guilty to the decisions striking down federal attempts to
charges. At trial, the Schechters were convicted address the economic crises of the Depression.
on 18 counts of violating the Live Poultry Code However, the Schechter decision was a particu-
and two counts of conspiring to violate the Live larly troublesome setback for the Roosevelt
Poultry Code. An appeals court affirmed their administration. The NIRA was the centerpiece
convictions, but the U.S. Supreme Court agreed of Roosevelt’s plan to stabilize the national
to hear their appeal. economy (the NEW DEAL), and the government’s
loss in the Sick Chicken case marked the end of
The Schechters presented several arguments the NIRA and its fair trade codes. Less than one
challenging the Live Poultry Code. According week after the Schechter decision was an-
to the Schechters, the code system of the nounced, Roosevelt publicly condemned the
NIRA was an unconstitutional ABDICATION of Court. Roosevelt declared that the Court’s
the legislative power vested in Congress by “horse-and-buggy definition of interstate com-
Article I, Section 1, of the U.S. Constitution. merce” was an obstacle to national health.
The Schechters argued further that their intra-
Roosevelt’s remarks were controversial be-
state wholesale business was not subject to
cause they appeared to cross the line that separated
congressional authority under the COMMERCE
the powers of the EXECUTIVE BRANCH from those of
CLAUSE of Article I, Section 8, Clause 3, of the
the judicial branch. They sparked a national debate
Constitution and that the procedures for
on the definition of interstate commerce, the role
enforcing the NIRA codes violated the DUE
of the U.S. Supreme Court, and the limits of
PROCESS CLAUSE of the FIFTH AMENDMENT.
federal power. Several citizens and federal legisla-
In support of the Live Poultry Code, the tors began to propose laws and constitutional
federal government argued that the code was amendments in an effort to change the makeup of
necessary for the good of the nation. According to the Supreme Court. At first, Roosevelt refused to
the government, the Live Poultry Code ensured back any of the plans, preferring instead to wait
the free flow of chickens in interstate commerce. and see if the Court would reconsider its stand and
This arrangement kept chicken prices low and reverse the Schechter holding. After the Supreme
helped ease, however slightly, the financial Court delivered another series of opinions in 1936
burden on the general public. The government that nullified New Deal legislation, Roosevelt
also argued that it was within the power of began to push for legislation that would modify
Congress to enact the NIRA regulatory scheme the makeup of the Court.
that gave rise to the Live Poultry Code because
In 1937, the Supreme Court began to issue
codes such as the Live Poultry Code applied only
decisions upholding New Deal legislation. In
to businesses engaged in interstate commerce.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,
The Court unanimously disagreed with 57 S. Ct. 615, 81 L. Ed. 893 (1937), the Court
the federal government. Under the commerce held that the National Labor Relations Act did

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14 SCHENCK V. UNITED STATES

not violate the commerce clause, finding that armed forces of the United States. Schenck, who
Congress has the power to regulate intrastate was the general secretary of the Socialist party in
activities that “have such a close and substantial the United States, had been indicted for mailing
relation to interstate commerce that their control antidraft leaflets to more than fifteen thousand
is essential or appropriate to protect that men in Philadelphia. The leaflets equated the draft
commerce from burdens and obstructions.” with SLAVERY, characterized conscripts as criminals,
and urged opposition to American involvement in
After Jones & Laughlin Steel Corp., the Court
WORLD WAR I.
seldom visited the FEDERALISM issues raised in
Schechter. However, the Court reviewed Schech- Schenck appealed his conviction to the
ter in United States v. Gomez, 514 U.S. 549, Supreme Court, which agreed to hear the case.
115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), Attorneys for Schenck challenged the constitu-
concluding that Congress could not enact a law tionality of the Espionage Act on First Amend-
prohibiting guns in school zones because ment grounds. FREEDOM OF SPEECH, Schenck’s
Congress had failed to make a connection attorneys argued, guarantees the liberty of all
between interstate commerce and the concerns Americans to voice their opinions about even
the most sensitive political issues, as long as
regarding guns near schools.
their speech does not incite immediate illegal
FURTHER READINGS action. Attorneys for the federal government
argued that freedom of speech does not include
Burns, James M. 1990. Crosswinds of Freedom: American
Experience. New York: Knopf.
the freedom to undermine the SELECTIVE SERVICE
Cohen, William, and Jonathan D. Varat. 2001. Constitu- SYSTEM by casting aspersions upon the draft.
tional Law: Cases and Materials. 8th ed. New York: In a 9–0 decision, the Supreme Court
Foundation Press. affirmed Schenck’s conviction. Justice OLIVER
Louchheim, Katie, ed. 1983. The Making of the New Deal: WENDELL HOLMES JR. delivered the opinion.
The Insiders Speak. Cambridge, MA: Harvard Univ.
Press.
Holmes observed that the constitutionality of
Pearse, Steven. 2010. “Accounting for the Lack of Account- all speech depends on the circumstances in
ability: The Great Depression Meets the Great Reces- which it is spoken. No reasonable interpretation
sion.” Hastings Constitutional Law Quarterly. Winter. of the First Amendment, Holmes said, protects
Schlesinger, Arthur M., Jr. 2003. The Age of Roosevelt: The utterances that have the effect of force. For
Coming of the New Deal. Boston: Houghton Mifflin.
example, Holmes opined that the Freedom of
Speech Clause would not protect a man who
CROSS REFERENCES
falsely shouts fire in a crowded theater.
Commerce Clause; Federalism.
“The question in every case,” Holmes wrote,
“is whether the words are used in such
SCHENCK V. UNITED STATES circumstances and are of such a nature as to
Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, create a clear and present danger that they will
63 L. Ed. 470 (1919), is a seminal case in bring about the substantive evils that Congress
CONSTITUTIONAL LAW, representing the first time has a right to prevent.” Holmes conceded that
that the U.S. Supreme Court heard a FIRST during peacetime Schenck’s vituperative leaflets
AMENDMENT challenge to a federal law on free might have received constitutional protection.
speech grounds. In upholding the constitutional- However, Holmes said, during times of war no
ity of the ESPIONAGE ACT OF 1917 (40 Stat. 217), the American has the right to speak or publish with
Supreme Court articulated the CLEAR AND PRESENT the intent of obstructing the CONSCRIPTION
DANGER doctrine, a test that still influences the process when such speech has a tendency to
manner in which state and federal courts decide incite others to this unlawful purpose.
free speech issues. This doctrine pioneered new The Supreme Court’s decision in Schenck
territory by drawing a line that separates protected established two fundamental principles of
speech, such as the public criticism of government constitutional law. First, Schenck established
and its policies, from unprotected speech, such as that the First Amendment is not absolute.
the advocacy of illegal action. Under certain circumstances, the rights pro-
On December 20, 1917, Charles Schenck was tected by the Freedom of Speech Clause must
convicted in federal district court for violating the give way to important countervailing interests.
Espionage Act, which prohibited individuals from Preserving the integrity of the military draft
obstructing military recruiting, hindering enlist- during wartime and protecting theater patrons
ment, or promoting insubordination among the from the perils of pandemonium are two

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 S C H L A F L Y, P H Y L L I S S T E W A R T 15

examples of countervailing interests that will

override First Amendment rights.
Second, Schenck established the standard by
which subversive and seditious political speech
would be measured under the First Amendment
for the next fifty years. Before the government may
punish someone who has published scurrilous
political material, the Court in Schenck said, it
must demonstrate that the material was published
with the intent or tendency to precipitate illegal
activity and that it created a clear and present
danger that such activity would result.
Schenck did not settle every aspect of free
speech JURISPRUDENCE. It left unresolved a
number of crucial questions and created
ambiguities that could only be clarified through
the judicial decision-making process. It was
unclear after Schenck, for example, how imme-
Rabban, David. 1983. “The Emergence of Modern First The 1919 Schenck
diate or probable a particular danger must be case marked the first
Amendment Doctrine.” University of Chicago Law
before it becomes clear and present. If Schenck Review 50 (fall). time the Court heard
permitted the government to regulate speech Russo, Charles J. 2007. “Supreme Court Update: The Free a First Amendment
that has an unlawful tendency, some observers Speech Rights of Students in the United States Post challenge to a federal
Morse v. Frederick.” Education and the Law 19 law on free speech
feared, Congress could ban speech that carried grounds. The Court
(September).
with it any harmful tendency without regard to was comprised of the
the intent of the speaker or the likely effect of following justices:
CROSS REFERENCES (standing, l-r)
the speech on the audience.
Communism; Dennis v. United States; Smith Act. Brandeis, Pitney,
In 1969 the Supreme Court articulated the McReynolds, Clarke,
modern clear-and-present-danger doctrine in (seated, l-r) Day,
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. v SCHLAFLY, PHYLLIS STEWART McKenna, White,
Holmes Van
1827, 23 L. Ed. 2d 430, stating that the The demise of the EQUAL RIGHTS AMENDMENT Devanter.
government may not forbid or punish subver- (ERA) on June 30, 1982, can be attributed in COLLECTION OF THE
sive speech except where it advocates or directs large part to Phyllis Stewart Schlafly. During the SUPREME COURT OF THE
imminent lawless action and is likely to incite or 1970s Schlafly was the United States’ most UNITED STATES.
produce such action. visible opponent of the ERA, a proposed
Under Brandenburg, courts must consider CONSTITUTIONAL AMENDMENT that she predicted
the intention of the speaker or writer, as well as would undermine the traditional family and
her ability to persuade and arouse others when actually diminish the rights of U.S. women.
evaluating the danger presented by particular The ERA stated, “Equality of rights under the
speech. Courts must also consider the suscep- law shall not be denied or abridged by the United
tibility of an audience to a particular form of States or by any State on account of sex.” After
expression, including the likelihood that cer- passing Congress, the amendment was sent to
tain members of the audience will be aroused the 50 states on March 22, 1972, for RATIFICATION.
to illegal action. Despite the reformulation of To become law, the amendment needed to be
the clear-and-present-danger test, Schenck passed by 38 states within seven years. By 1973,
retains constitutional vitality in cases concern- 30 states had already ratified the ERA. However,
ing the Freedom of Speech Clause, having as momentum for Schlafly’s anti-ERA campaign
been cited in more than 100 state and federal grew, the ratification process slowed. Only four
judicial opinions since the 1980s. states approved the ERA in 1974 and 1975, and it
became unlikely that pro-ERA forces could
FURTHER READINGS
persuade four more states to ratify it. In 1977
Alonso, Karen. 1999. Schenck v. United States: Restrictions on Indiana became the last state to ratify the
Free Speech. Springfield, N.J.: Enslow Publishers.
Dow, David R., and R. Scott Shieldes. 1998. “Rethinking the amendment. Despite a congressional reprieve in
Clear and Present Danger Test.” Indiana Law Journal 73 July 1978 that extended the ratification deadline
(fall). to June 30, 1982, the ERA failed.

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
16 SCHLAFLY, PHYLLIS STEWART

Phyllis Schlafly. In 1949 she married Fred Schlafly, also a

AP IMAGES lawyer. After moving to Alton, Illinois, Schlafly
and her husband became involved in anti-
Communist activities. Schlafly was a researcher
for Senator JOSEPH R. MCCARTHY during the
1950s and helped to found the Cardinal
Mindszenty Foundation, an organization op-
posed to COMMUNISM.
Schlafly supported Republican BARRY M.
GOLDWATER’s presidential campaign in 1964.
Her first book, A Choice Not an Echo, was
written in 1964 specifically for the Goldwater
campaign. Also in 1964 Schlafly published The
Gravediggers, a book accusing key figures in the
administration of President LYNDON B. JOHNSON
of deliberately undermining U.S. military
strength and leaving the country vulnerable to
Schlafly was born August 15, 1924, in St. Louis,
Communist aggression. Schlafly is the author of
to Odile Dodge Stewart and John Bruce Stewart.
several other books on political topics.
She excelled academically at her parochial school,
Academy of the Sacred Heart. After graduating as While raising six children, Schlafly kept her
VIRTUOUS WOMEN
class valedictorian in 1941, she enrolled at hand in community activities and Republican
ARE SELDOM
Maryville College of the Sacred Heart. As a junior, politics. Her interest in PUBLIC POLICY and
ACCOSTED BY government affairs prompted her to run for
she transferred to Washington University, in St.
UNWELCOME SEXUAL Louis, where she graduated Phi Beta Kappa in Congress three times: once in 1952 as the GOP
PROPOSITIONS . . . 1944. After receiving a scholarship, Schlafly earned candidate from the 24th District of Illinois; once
OBSCENE TALK OR a master’s degree in political science from Radcliffe in 1960 as a write-in candidate; and once in
College in 1945. In 1978, she returned to 1970 as the endorsed candidate of Chicago
PROFANE LANGUAGE.
Washington University and earned a law degree. insurance mogul W. Clement Stone. All three
—PHYLLIS SCHLAFLY
For about a year after receiving her master’s campaigns were unsuccessful.
degree, Schlafly worked in Washington, D.C., as Schlafly had more luck in her successful
a researcher for several members of Congress. 1964 bid to be elected the first vice president of
Returning to St. Louis in 1946, she became an the National FEDERATION of Republican Women.
aide and campaign worker for a Republican Her victory came at a time when Goldwater
representative, and then worked as a librarian Republicans dominated the party. Usually,
and researcher for a bank. the first vice president of the federation

Phyllis Stewart Schlafly 1924–

2004 The Supremacists published
1967 Formed The Eagles are Flying; began
publishing The Phyllis Schlafly Report 1972 Equal Rights Amendment passed by 2003 Feminist
Congress, sent to states; wrote first article Fantasies published
1964 A Choice Not an Echo and The Gravediggers in the Report criticizing the ERA
published; elected first vice president of the 2002 Campaigned
National Federation of Republican Women 1978 against U.S. adoption
Earned of the U.N.’s Convention on
1958 Helped found J.D. from the Elimination of All
1924 Born, 1945 Earned M.A. the Cardinal Washington Forms of Discrimination
St. Louis, Mo. from Radcliffe College Mindszenty Foundation University against Women

❖ ◆ ◆ ◆ ◆ ◆ ◆ ◆◆◆
▼

1925 1950 1975 2000

◆
1939–45 1950–53 1953–54 Senator 1961–73 1982 ERA defeated after
World War II Korean War McCarthy’s anti- Vietnam War failure to win ratification
Communist rhetoric by required 38 states
and investigations
reached their peak

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
 S C H L E S I N G ER , R U D O L F BE R T HO L D 17

automatically advanced to president, but in 1967 true conservative, and she continues to express
Schlafly was opposed by a more moderate her disdain for the UNITED NATIONS. When the
candidate who ultimately defeated her. In the U.N. celebrated its 50th anniversary in 1995,
wake of her loss, Schlafly formed a separatist Schlafly referred to the event as “a cause for
group called The Eagles Are Flying. Bolstered by mourning, not celebration. It is a monument to
a core of conservative supporters, she began foolish hopes, embarrassing compromises,
publishing The Phyllis Schlafly Report, a monthly betrayal of our servicemen, and a steady stream
newsletter assessing current political issues and of insults to our nation. It is a Trojan Horse that
candidates, which was still in operation as of carries the enemy into our midst and lures
September 2009. In a 1972 issue of the Report, Americans to ride under alien insignia to fight
Schlafly wrote the first of many articles criticizing and die in faraway lands.”
the ERA. As her personal opposition to the
Journalist and noted feminist GLORIA STEINEM,
amendment grew, Schlafly formed Stop ERA and
among others, have noted the irony in Schlafly’s
the Eagle Forum, organizations supported by
role as an advocate for the full-time mother and
conservative U.S. citizens, fundamentalist reli-
wife, while being herself a lawyer, editor of a
gious groups, and factions of the John Birch
monthly newsletter, regular speaker at anti-
Society.
liberal rallies, and political activist. Schlafly
Schlafly argued that ratification of the ERA continues to fight any possible version of an
would lead to compulsory military service for all Equal Rights Amendment.
mothers, unisex toilets in public places, auto-
matic 50 percent financial responsibility for all FURTHER READINGS
wives, and homosexual marriages. In 1992 Caroll, Peter N. 1985. Famous in America: The Passion to
Schlafly’s oldest son John Schlafly disclosed his Succeed: Jane Fonda, George Wallace, Phyllis Schlafly,
homosexuality in an interview with the San John Glenn. New York: Dutton.
Eagle Forum Website. Available online at http://www.
Francisco Examiner. He stated that he supported
eagleforum.org (accessed September 16, 2009).
his mother’s conservative political views, but Felsenthal, Carol. 1981. Sweetheart of the Silent Majority.
also that gays and lesbians have family values. New York: Doubleday.
Schlafly, Phyllis. 2003. Feminist Fantasies. Dallas: Spence.
Schlafly’s passion for politics has always been Schlafly, Phyllis. 2004. The Supremacists: The Tyranny of
strong. Active in every Republican National Judges and How to Stop It. Dallas: Spence.
Convention since 1952, Schlafly served as an
elected delegate to eight conventions—1956, CROSS REFERENCES
1964, 1968, 1984, 1988, 1992, 1996, and 2004— Republican Party; Women’s Rights.
and as an elected alternate delegate to four others,
in 1960, 1980, 2000, and 2008.
v SCHLESINGER, RUDOLF BERTHOLD
Since the defeat of the ERA, Schlafly has Legal scholar, author, and professor, Rudolf B.
remained active in the Eagle Forum and with Schlesinger achieved fame for his ground-
other conservative causes, including the anti- breaking work in the study of international
abortion movement. She has made more than legal systems. Schlesinger was known as the
50 appearances before congressional and state dean of comparative law, a discipline that
legislative committees, where she has testified examines the differences and similarities among
on such issues as national defense, foreign the legal systems of nations. His arrival in the
policy, and family concerns. Her three-minute field during the early 1950s helped to give
radio commentaries, which she began in 1983, it both greater legitimacy and popularity in
are played five days per week on 500 stations, legal academia. Comparative Law: Cases-Texts-
and her radio talk show “Eagle Forum Live,” Materials (1950), written while Schlesinger
providing discussion on education since 1989, is taught at Cornell University, became a staple of
played every Saturday on 75 stations, as well as law school curricula and entered its fifth edition
on the Eagle Forum’s website. Schlafly also in the late 1990s. He also wrote important
continues her work as an author, public studies of CIVIL PROCEDURE and international
speaker, and commentator. business transactions and directed a ten-year
When Schlafly is critical of a person or international research project on contracts.
policy, she is quick to make it public. She did Born in Munich, Germany, in 1909, Rudolf
not consider President GEORGE W. BUSH to be a Berthold Schlesinger fled nazism before WORLD

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
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