Beruflich Dokumente
Kultur Dokumente
! SENATE "
2nd Session No. 112–9
THE CONSTITUTION
of the
Centennial Edition
INTERIM EDITION: ANALYSIS OF CASES DECIDED
BY THE SUPREME COURT OF THE UNITED STATES
TO AUGUST 26, 2017
PREPARED BY THE
MICHAEL J. GARCIA
CAITLAIN DEVEREAUX LEWIS
ANDREW NOLAN
ATTORNEY EDITORS
MEGHAN TOTTEN
ASHLEY TYSON
LEGAL EDITORS
(1938–2008)
(1936–2016)
Special thanks to
Shirley Loo
Sam Bosch
III
AUTHORIZATION
PUBLIC LAW 91–589, 84 STAT. 1585, 2 U.S.C. § 168
JOINT RESOLUTION Authorizing the preparation and printing of a revised
edition of the Constitution of the United States of America—Analysis and
Interpretation, of decennial revised editions thereof, and of biennial cu-
mulative supplements to such revised editions.
Whereas the Constitution of the United States of America—
Analysis and Interpretation, published in 1964 as Senate Docu-
ment Numbered 39, Eighty-eighth Congress, serves a very
useful purpose by supplying essential information, not only
to the Members of Congress but also to the public at large;
Whereas such document contains annotations of cases decided
by the Supreme Court of the United States to June 22, 1964;
Whereas many cases bearing significantly upon the analysis and
interpretation of the Constitution have been decided by the
Supreme Court since June 22, 1964;
Whereas the Congress, in recognition of the usefulness of this
type of document, has in the last half century since 1913,
ordered the preparation and printing of revised editions of
such a document on six occasions at intervals of from ten
to fourteen years; and
Whereas the continuing usefulness and importance of such a docu-
ment will be greatly enhanced by revision at shorter inter-
vals on a regular schedule and thus made more readily avail-
able to Members and Committees by means of pocket-part
supplements: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That the Librar-
ian of Congress shall have prepared—
(1) a hardbound revised edition of the Constitution of the United
States of America—Analysis and Interpretation, published
as Senate Document Numbered 39, Eighty-eighth Congress
(referred to hereinafter as the “Constitution Annotated”), which
shall contain annotations of decisions of the Supreme Court
of the United States through the end of the October 1971
term of the Supreme Court, construing provisions of the Con-
stitution;
(2) upon the completion of each of the October 1973, October
1975, October 1977, and October 1979 terms of the Su-
V
VI AUTHORIZATION
SECTION I
Issues relating to national federalism as a doctrine have proved to be far more pervasive
and encompassing than it was possible to anticipate in 1952. In some respects, of course, later
cases only confirmed those decisions already on the books. The foremost example of this confir-
mation has been the enlargement of congressional power under the commerce clause. The expan-
sive reading of that clause’s authorization to Congress to reach many local incidents of business
and production was already apparent by 1952. Despite the abundance of new legislation under
this power during the 1960s to 1980s, the doctrine itself was scarcely enlarged beyond the lim-
its of that earlier period. Under the commerce clause, Congress can assert legislative jurisdic-
tion on the basis of movement over a state boundary, whether antecedent or subsequent to the
point of regulation; can regulate other elements touching upon those transactions, such as in-
IX
X INTRODUCTION
struments of transportation; or can legislate solely upon the premise that certain transactions
by their nature alone or as part of a class sufficiently affect interstate commerce as to warrant
national regulation. Civil rights laws touching public accommodations and housing, environmen-
tal laws affecting land use regulation, criminal laws, and employment regulations touching health
and safety are only the leading examples of enhanced federal activity under this authority.
Over the last two decades, however, the Court has established limits on the seemingly irre-
vocable expansion of the commerce power. While the Court has declined to overrule even its
most expansive rulings regarding “affects” on commerce, it has limited the exercise of this au-
thority to the regulation of activities which were both economic in nature and which had a non-
trivial or “substantial” affect on commerce (although regulation of non-economic activity would
still be allowed if they were an essential part of a larger economic regulatory scheme). The
Court also seems far less likely to defer to Congressional findings of the existence of an eco-
nomic effect. The relevant cases arose in an area of traditional state concern—the regulation of
criminal activity—and the new doctrine resulted in the invalidation of recently-passed federal
laws, including a ban on gun possession in schools and the provision of civil remedies to com-
pensate gender-motivated violence. The Court has most recently found chronological limits to
commercial regulation, holding that the prospect of a future activity—seeking health care—
could not justify requiring the present purchase of health insurance by individuals.
The exercise of authority over commerce by the states, on the other hand, has over the last
sixty years been greatly restricted by federal statutes and a broad doctrine of federal preemp-
tion, increasingly resulting in the setting of national standards. Only under Chief Justice Burger
and Chief Justice Rehnquist was the Court not so readily prepared to favor preemption, espe-
cially in the area of labor-management relations. The Court did briefly inhibit federal regula-
tion with respect to the States’ own employees under the Tenth Amendment, but this decision
failed to secure a stable place in the doctrine of federalism, being overruled in less than a de-
cade. Also noteworthy has been a rather strict application of the negative aspect of the com-
merce clause to restrain state actions that either discriminate against or overly inhibit inter-
state commerce.
Much of the same trend towards national standards has resulted from application of the
Bill of Rights to the States through the due process clause of the Fourteenth Amendment, a
matter dealt with in greater detail below. The Court has again and again held that when a
provision of the Bill of Rights is applied, it means the same whether a State or the Federal
Government is the challenged party (although a small but consistent minority has argued oth-
erwise). Some flexibility, however, has been afforded the States by the judicial loosening of the
standards of some of these provisions, as in the characteristics of the jury trial requirement.
Adoption of the exclusionary rule in Fourth Amendment and other cases also looked to a na-
tional standard, but the more recent disparagement of the rule by majorities of the Court has
relaxed its application to both States and Nation.
While the Tenth Amendment would appear to represent one of the most clear statements of
a federalist principle in the Constitution, it has historically had a relatively insignificant inde-
pendent role in limiting federal powers. Although the Court briefly interpreted the Tenth Amend-
ment in the 1970s substantively to protect certain “core” state functions from generally appli-
cable laws, this distinction soon proved unworkable, and was overruled a decade late. More recently,
the Court reserved the question as to whether a law regulating only state activities would be
constitutionally suspect, although a workable test for this distinction has not yet been articu-
lated. However, limits on the process by which the Federal Government regulates the states,
developed over the most recent decade, have proved more resilient. This becomes important when
the Congress is unsatisfied with the most common methods of influencing state regulations—
grant conditions or conditional imposition of federal regulations (states being given the opportu-
nity to avoid such regulation by effectuating their own regulatory schemes). Only in those cases
where the Congress attempts to directly “commandeer” state legislatures or executive branch
officials, i.e. ordering states to legislate or execute federal laws, has the Tenth Amendment served
as an effective bar.
INTRODUCTION XI
The concept of state sovereign immunity from citizen suits has also been infused with new
potency over the last decade, while exposing deep theoretical differences among the Justices. To
a minority of the Justices, state sovereign immunity is limited to the textual restriction articu-
lated in the Eleventh Amendment, which prevents citizens of one state from bringing a federal
suit against another state. To a majority of the Justices, however, the Eleventh Amendment
was merely a technical correction made by Congress after an erroneous approval by the Court
of a citizen-state diversity suit in Chisholm v. Georgia. These justices prefer the reasoning of
the post-Eleventh Amendment case of Hans v. Louisiana, which, using non-textual precepts of
federalism, dismissed a constitutionally based suit against a state by its own citizens. The true
significance of this latter case was not realized until 1992 in Seminole Tribe of Florida v. Florida,
where the Court made clear that suits by citizens against states brought under federal statutes
also could not stand, at least if the statutes were based on Congress’s Article I powers. The
“fundamental postulate” of deference to the “dignity” of state sovereignty was also the basis for
the Court’s recent decisions to prohibit federal claims by citizens against states in either a state’s
own courts or federal agencies.
The Court has ruled, however, that Congress can abrogate state sovereign immunity under
the Bankruptcy Clause and section 5 of the Fourteenth Amendment. Nevertheless, the Court
has also shown a significant lack of deference to Congress regarding its Civil War era power,
requiring a showing of “congruence and proportionality” between the alleged harm to constitu-
tional rights and the legislative remedy. Thus, states have been found to remain immune from
federal damage suits for such issues as disability discrimination or patent infringement, while
the Congress has been found to be without any power to protect religious institutions from the
application of generally applicable state laws. Further, where Congress attempted to create a
federal private right of action for victims of gender-related violence, alleging discriminatory treat-
ment of these cases by the state, the Court also found that Congress exceeded its mandate, as
the enforcement power of the 14th Amendment can only be applied against state discrimina-
tion. In all these case, the Court found that Congress had not sufficiently identified patterns of
unconstitutional conduct by the States.
The Spending Clause, long seen as one of the last bedrocks of congressional authority, has
also come under the Court’s increasing scrutiny. While the Court had opined on the limits of
the authority of Congress to impose “voluntary” grant conditions on states, it was not until Con-
gress required states to adopt a broad expansion of Medicaid or leave that program that the
Court found such legislation to be overly “coercive.” The impact of the decision, however, was
diminished not only by the Court severing only the enforcement mechanism (making the states’
decision to participate voluntary), but by indications (both in reasoning and dicta) that the stan-
dard set by the splintered Court would be easily met by most Spending Clause regulation.
The overriding view of the present Court is that where it has discretion, even absent consti-
tutional mandate, it will apply federalism concerns to limit federal powers. For instance, the
equity powers of the federal courts to interfere in ongoing state court proceedings and to review
state court criminal convictions under habeas corpus have been curtailed, invoking a doctrine of
comity and prudential restraint. But the critical fact, the scope of congressional power to regu-
late private activity, remains: the limits on congressional power under the commerce clause and
other Article I powers, as well as under the power to enforce the Reconstruction Amendments,
remain principally those of congressional self-restraint.
SECTION II
For much of the latter half of the 20th century, aggregation of national power in the presi-
dency continued unabated. The trend was not much resisted by congressional majorities, which,
indeed, continued to delegate power to the Executive Branch and to the independent agencies
at least to the same degree or greater than before. The President himself assumed the exis-
tence of a substantial reservoir of inherent power to effectuate his policies, most notably in the
field of foreign affairs and national defense. Only in the wake of the Watergate affair did Con-
gress move to assert itself and attempt to claim some form of partnership with the President.
This is most notable with respect to war powers and the declaration of national emergencies,
XII INTRODUCTION
but is also true for domestic presidential concerns, as in the controversy over the power of the
President to impound appropriated funds.
Perhaps coincidentally, the Supreme Court during the same period effected a strong judi-
cial interest in the adjudication of separation-of-powers controversies. Previously, despite its use
of separation-of-power language, the Court did little to involve itself in actual controversies,
save perhaps the Myers and Humphrey litigations over the President’s power to remove execu-
tive branch officials. But that restraint evaporated in 1976. Since then there have been several
Court decisions in this area, although in Buckley v. Valeo and subsequent cases the Court ap-
peared to cast the judicial perspective favorably upon presidential prerogative. In other cases
statutory construction was utilized to preserve the President’s discretion. Only very recently
has the Court evolved an arguably consistent standard in this area, a two-pronged standard of
aggrandizement and impairment, but the results still are cast in terms of executive preemi-
nence.
The larger conflict has been political, and the Court resisted many efforts to involve it in
litigation over the use of troops in Vietnam. In the context of treaty termination, the Court
came close to declaring the resurgence of the political question doctrine to all such executive-
congressional disputes. While a significant congressional interest in achieving a new and differ-
ent balance between the political branches appeared to have survived cessation of the Vietnam
conflict, such efforts largely diminished after the terrorist attacks of September 11, 2001. While
Congressional assertion of such interest may well involve the judiciary to a greater extent in
the future, the congressional branch is not without effective weapons of its own in this regard.
SECTION III
The Court’s practice of overturning economic legislation under principles of substantive due
process in order to protect “property” was already in sharp decline when Professor Corwin wrote
his introduction in the 1950s. In a few isolated cases, however, especially regarding the obliga-
tion of contracts clause and perhaps the expansion of the regulatory takings doctrine, the Court
demonstrated that some life is left in the old doctrines. On the other hand, the word “liberty” in
the due process clauses of the Fifth and Fourteenth Amendment has been seized upon by the
Court to harness substantive due process to the protection of certain personal and familial pri-
vacy rights, most controversially in the abortion cases.
Although the decision in Roe v. Wade seemed to foreshadow broad constitutional protec-
tions for personal activities, this did not occur immediately, as much due to conceptual difficul-
ties as to ideological resistance. Early iterations of a right to “privacy” or “to be let alone” seemed
to involve both the notion that certain information should be “private” and the idea that certain
personal “activities” should only be lightly regulated. Then, for a time, the privacy cases ap-
peared to be limited to certain areas of personal concern: marriage, procreation, contraception,
family relationships, medical decision making and child rearing. Most recently, however, the
Court has brought the outer limits of the doctrine into question again by overturning a sodomy
law directed at homosexuals without attempting to show that such behavior was in fact histori-
cally condoned. This raises the question as to what limiting principles remain available in evalu-
ating future arguments based on personal autonomy.
Whereas much of the Bill of Rights is directed toward prescribing the process of how gov-
ernments may permissibly deprive one of life, liberty, or property—for example by judgment of
a jury of one’s peers or with evidence seized through reasonable searches—the First Amend-
ment is by its terms both substantive and absolute. While the application of the First Amend-
ment has never been presumed to be so absolute, the effect has often been indistinguishable.
Thus, the trend over the years has been to withdraw more and more speech and “speech-plus”
from the regulatory and prohibitive hand of government and to free not only speech directed to
political ends but speech that is totally unrelated to any political purpose.
The constitutionalization of the law of defamation, narrowing the possibility of recovery for
damage caused by libelous and slanderous criticism of public officials, political candidates, and
public figures, epitomizes this trend. In addition, the government’s right to proscribe the advo-
cacy of violence or unlawful activity has become more restricted. Obscenity abstractly remains
INTRODUCTION XIII
outside the protective confines of the First Amendment, but the Court’s changing definitional
approach to what may be constitutionally denominated obscenity has closely confined most gov-
ernmental action taken against the verbal and pictorial representation of matters dealing with
sex. Commercial speech, long the outcast of the First Amendment, now enjoys a protected if
subordinate place in free speech jurisprudence. Freedom to picket, to broadcast leaflets, and to
engage in physical activity representative of one’s political, social, economic, or other views, en-
joys wide though not unlimited protection. False statements, long derided as being of little First
Amendment value, were brought within the ambit of free speech, although the standard of pro-
tection afforded to such a law—here, lying about one’s military record—remains unsettled.
While First Amendment doctrine remains sensitive to the make-up of the Court, the trend
for many years has been a substantial though uneven expansion. In particular, the association
of the right to spend for political purposes with the right to associate together for political activ-
ity has meant that much governmental regulation of campaign finance and of limitations upon
the political activities of citizens and public employees had become suspect if not impermissible.
For example, during the last decade, confronted with renewed attempts by Congress to level
the playing field between differing voices with disparate economic resources, the Court first ac-
cepted, and then rejected these new regulations. In the process, corporations, long barred from
direct political advocacy, were given even greater access to the political arena.
SECTION IV
Unremarked by scholars of some sixty years ago was the place of the equal protection clause
in constitutional jurisprudence—simply because at that time Holmes’ pithy characterization of
it as a “last resort” argument was generally true. Subsequently, however, especially during the
Warren era, equal protection litigation occupied a position of almost predominant character in
each Term’s output. The rational basis standard of review of different treatments of individuals,
businesses, or subjects remained of little concern to the Justices. Rather, the clause blossomed
after Brown v. Board of Education, as the Court confronted state and local laws and ordinances
drawn on the basis of race. This aspect of the doctrinal use of the clause is still very evident on
the Court’s docket, though in ever new and interesting forms.
Of worthy attention has been the application of equal protection, now in a three-tier or
multi-tier set of standards of review, to legislation and other governmental action classifying on
the basis of sex, illegitimacy, and alienage. Of equal importance was the elaboration of the con-
cept of “fundamental” rights, so that when the government restricts one of these rights, it must
show not merely a reasonable basis for its actions but a justification based upon compelling
necessity. Wealth distinctions in the criminal process, for instance, were viewed with hostility
and generally invalidated. The right to vote, nowhere expressly guaranteed in the Constitution
(but protected against abridgment on certain grounds in the Fifteenth, Nineteenth, and Twenty-
sixth Amendments) nonetheless was found to require the invalidation of all but the most simple
voter qualifications; most barriers to ballot access by individuals and parties; and the practice
of apportionment of state legislatures on any basis other than population. In the controversial
decision of Bush v. Gore, the Court relied on the right to vote in effectively ending the disputed
2000 presidential election, noting that the Florida Supreme Court had allowed the use of non-
unified standards to evaluate challenged ballots. Although the Court’s decision was of real politi-
cal import, it was so limited by its own terms that it carries no doctrinal significance.
In other respects, the reconstituted Court has made some tentative rearrangements of equal
protection doctrinal developments. The suspicion-of-wealth classification was largely though not
entirely limited to the criminal process. Governmental discretion in the political process was
enlarged a small degree. But the record generally is one of consolidation and maintenance of
the doctrines, a refusal to go forward much but also a disinclination to retreat much. Only re-
cently has the Court, in decisional law largely cast in remedial terms, begun to dismantle some
of the structure of equal protection constraints on institutions, such as schools, prisons, state
hospitals, and the like. Now, we see the beginnings of a sea change in the Court’s perspective
on legislative and executive remedial action, affecting affirmative action and race conscious steps
in the electoral process, with the equal protection clause being used to cabin political discretion.
XIV INTRODUCTION
SECTION V
Criminal law and criminal procedure during the 1960s and 1970s has been doctrinally un-
stable. The story of the 1960s was largely one of the imposition of constitutional constraint upon
federal and state criminal justice systems. Application of the Bill of Rights to the States was
but one aspect of this story, as the Court also constructed new teeth for these guarantees. For
example, the privilege against self-incrimination was given new and effective meaning by requir-
ing that it be observed at the police interrogation stage and furthermore that criminal suspects
be informed of their rights under it. The right was also expanded, as was the Sixth Amendment
guarantee of counsel, by requiring the furnishing of counsel or at least the opportunity to con-
sult counsel at “critical” stages of the criminal process—interrogation, preliminary hearing, and
the like—rather than only at and proximate to trial. An expanded exclusionary rule was ap-
plied to keep material obtained in violation of the suspect’s search and seizure, self-
incrimination, and other rights out of evidence.
In sentencing, substantive as well as procedural guarantees have come in and out of favor.
The law of capital punishment, for instance, has followed a course of meandering development,
with the Court almost doing away with it and then approving its revival by the States. More
recently, awakened legislative interest in the sentencing process, such as providing enhanced
sentences for “hate crimes,” has faltered on holdings that increasing the maximum sentence for
a crime can only be based on facts submitted to a jury, not a judge, and that such facts must be
proved beyond a reasonable doubt.
During the last two decades, however, the Court has also redrawn some of these lines. The
self-incrimination and right-to-counsel doctrines have been eroded in part (although in no re-
spect has the Court returned to the constitutional jurisprudence prevailing before the 1960s).
The exclusionary rule has been cabined and redefined in several limiting ways. Search and sei-
zure doctrine has been revised to enlarge police powers, and the exception for “special needs”
has allowed such practices as suspicionless, random drug-testing in the workplace and at schools.
But, a reformation of the requirements for confronting witnesses at trial has, in some cases,
increased the complexity and effectiveness of prosecutions. Further, a realist view of modern
criminal process led to a willingness to consider the adequacy of defense counsel beyond repre-
sentation at trial.
An expansion of the use of habeas corpus powers of the federal courts undergirded the 1960s
procedural and substantive development, thus sweeping away many jurisdictional restrictions
previously imposed upon the exercise of review of state criminal convictions. Concomitantly with
the narrowing of the precedents of the 1950s and 1960s Court, however, came a retraction of
federal habeas powers, both by the Court and through federal legislation.
SECTION VI
The past decade saw the Court’s most extensive examination of gun rights under the Sec-
ond Amendment, with five Justices holding that, at a minimum, the amendment constitution-
ally enshrines an individual’s right to possess an operational handgun in one’s home for self
protection. This finding mostly was regarded as unremarkable: it largely comported with the
expectations and realities of gun ownership in the U.S. and was not expected to lead to whole-
sale loosening of government regulation, or even to weigh heavily in political debate. Most ini-
tial scholarly interest focused more on the Court’s interpretational methodology.
“Originalism”—the notion that the meaning of constitutional text is fixed at the time it is
proposed and ratified—found favor as an interpretational method in the nineteenth century, fell
out of favor beginning in the Progressive era, but regained some currency in the 1980s. The
paucity of judicial precedent on constitutionally protected gun rights made “originalism” appear
a particularly apt approach as the Court considered the Second Amendment during its 2007–
2008 term. The result was a thorough airing of the merits and variations in originalist analy-
sis. Is the “plain meaning” of the words of the original text as it would have been understood at
the time it was drafted paramount, or should the intent and expectations of the drafters pre-
vail? This distinction can lead to different opinions on whether the Second Amendment protects
individual or collective rights. Is “originalism” more “objective” and “faithful” than “living Con-
INTRODUCTION XV
stitution” analysis? Some commentators asserted that “originalism” is both unduly rigid in lim-
iting analysis to contemporaneous sources and malleable in presenting the interpreter with a
range of often contradictory historical materials. In any event, a constitutional case in the twenty-
first century without a line of probative judicial precedent to guide decision-making is rare, and
contemporary constitutional analysis is more typically informed by a combination of earlier Court
decisions, traditional practices, a desire to sustain foundational principles in an evolving soci-
ety, and pragmatic considerations.
SECTION VII
The last six decades were among the most significant in the Court’s history. They saw some
of the most sustained efforts to change the Court or its decisions or both with respect to a sub-
stantial number of issues. On only a few past occasions was the Court so centrally a subject of
political debate and controversy in national life or an object of contention in presidential elec-
tions. One can doubt that the public any longer perceives the Court as an institution above
political dispute, any longer believes that the answers to difficult issues in litigation before the
Justices may be found solely in the text of the document entrusted to their keeping. While the
Court has historically enjoyed the respect of the bar and the public, a sense has arisen that the
institution is not immune from the partisan politics affecting other branches. Its decisions, how-
ever, are generally accorded uncoerced acquiescence, and its pronouncements are accepted as
authoritative, binding constructions of the constitutional instrument.
Indeed, it can be argued that the disappearance of the myth of the absence of judicial choice
strengthens the Court as an institution to the degree that it explains and justifies the exercise
of discretion in those areas of controversy in which the Constitution does not speak clearly or
in which different sections lead to different answers. The public attitude thus established is
then better enabled to understand division within the Court and within the legal profession
generally, and all sides are therefore seen to be entitled to the respect accorded the search for
answers. Although the Court’s workload has declined of late, a significant proportion of its cases
are still “hard” cases; while hard cases need not make bad law they do in fact lead to division
among the Justices and public controversy. Increased sophistication, then, about the Court’s role
and its methods can only redound to its benefit.
HISTORICAL NOTE ON FORMATION OF THE
CONSTITUTION
In June 1774, the Virginia and Massachusetts assemblies independently
proposed an intercolonial meeting of delegates from the several colonies to
restore union and harmony between Great Britain and her American Colo-
nies. Pursuant to these calls there met in Philadelphia in September of that
year the first Continental Congress, composed of delegates from 12 colonies.
On October 14, 1774, the assembly adopted what has become to be known
as the Declaration and Resolves of the First Continental Congress. In that
instrument, addressed to his Majesty and to the people of Great Britain, there
was embodied a statement of rights and principles, many of which were later
to be incorporated in the Declaration of Independence and the Federal Con-
stitution.1
This Congress adjourned in October with a recommendation that an-
other Congress be held in Philadelphia the following May. Before its succes-
sor met, the battle of Lexington had been fought. In Massachusetts the colo-
nists had organized their own government in defiance of the royal governor
and the Crown. Hence, by general necessity and by common consent, the sec-
ond Continental Congress assumed control of the “Twelve United Colonies”,
soon to become the “Thirteen United Colonies” by the cooperation of Geor-
gia. It became a de facto government; it called upon the other colonies to
assist in the defense of Massachusetts; it issued bills of credit; it took steps
to organize a military force, and appointed George Washington commander
in chief of the Army.
While the declaration of the causes and necessities of taking up arms of
July 6, 1775,2 expressed a “wish” to see the union between Great Britain
and the colonies “restored”, sentiment for independence was growing. Fi-
nally, on May 15, 1776, Virginia instructed her delegates to the Continental
Congress to have that body “declare the united colonies free and indepen-
1 The colonists, for example, claimed the right “to life, liberty, and property”, “the rights,
liberties, and immunities of free and natural-born subjects within the realm of England”; the
right to participate in legislative councils; “the great and inestimable privilege of being tried by
their peers of the vicinage, according to the course of [the common law of England]”; “the immu-
nities and privileges granted and confirmed to them by royal charters, or secured by their sev-
eral codes of provincial laws”; “a right peaceably to assemble, consider of their grievances, and
petition the king.” They further declared that the keeping of a standing army in the colonies in
time of peace without the consent of the colony in which the army was kept was “against law”;
that it was “indispensably necessary to good government, and rendered essential by the Eng-
lish constitution, that the constituent branches of the legislature be independent of each other”;
that certain acts of Parliament in contravention of the foregoing principles were “infringement
and violations of the rights of the colonists.” Text in C. Tansill (ed.), Documents Illustrative of
the Formation of the Union of the American States, H. Doc. No. 358, 69th Congress, 1st sess.
(1927), 1. See also H. Commager (ed.), Documents of American History (New York; 8th ed. 1964),
82.
2 Text in Tansill, op. cit., 10.
XVII
XVIII HISTORICAL NOTE
concerning the said river as may be mutually advantageous to the two States.”
Maryland in January 1785 responded to the Virginia resolution by appoint-
ing a like number of commissioners 5 “for the purpose of settling the naviga-
tion and jurisdiction over that part of the bay of Chesapeake which lies within
the limits of Virginia, and over the rivers Potomac and Pocomoke” with full
power on behalf of Maryland “to adjudge and settle the jurisdiction to be
exercised by the said State, respectively, over the waters and navigations of
the same.”
At the invitation of Washington the commissioners met at Mount Ver-
non, in March 1785, and drafted a compact which, in many of its details
relative to the navigation and jurisdiction of the Potomac, is still in force.6
What is more important, the commissioners submitted to their respective States
a report in favor of a convention of all the States “to take into consideration
the trade and commerce” of the Confederation. Virginia, in January 1786,
advocated such a convention, authorizing its commissioners to meet with those
of other States, at a time and place to be agreed on, “to take into consider-
ation the trade of the United States; to examine the relative situations and
trade of the said State; to consider how far a uniform system in their com-
mercial regulations may be necessary to their common interest and their per-
manent harmony; and to report to the several State, such an act relative to
this great object, as when unanimously ratified by them, will enable the United
States in Congress, effectually to provide for the same.” 7
This proposal for a general trade convention seemingly met with gen-
eral approval; nine States appointed commissioners. Under the leadership of
the Virginia delegation, which included Randolph and Madison, Annapolis
was accepted as the place and the first Monday in September 1786 as the
time for the convention. The attendance at Annapolis proved disappointing.
Only five States—Virginia, Pennsylvania, Delaware, New Jersey, and New
York—were represented; delegates from Massachusetts, New Hampshire, North
Carolina, and Rhode Island failed to attend. Because of the small represen-
tation, the Annapolis convention did not deem “it advisable to proceed on
the business of their mission.” After an exchange of views, the Annapolis del-
egates unanimously submitted to their respective States a report in which
they suggested that a convention of representatives from all the States meet
at Philadelphia on the second Monday in May 1787 to examine the defects
in the existing system of government and formulate “a plan for supplying
such defects as may be discovered.” 8
5 George Mason, Edmund Randolph, James Madison, and Alexander Henderson were ap-
pointed commissioners for Virginia; Thomas Johnson, Thomas Stone, Samuel Chase, and Dan-
iel of St. Thomas Jenifer for Maryland.
6 Text of the resolution and details of the compact may be found in Wheaton v. Wise, 153
the Convention was deadlocked over giving each State an equal vote in the
upper house—five States in the affirmative, five in the negative, one di-
vided.9
The problem was referred to a committee of 11, there being 1 delegate
from each State, to effect a compromise. On July 5 the committee submitted
its report, which became the basis for the “great compromise” of the Conven-
tion. It was recommended that in the upper house each State should have
an equal vote, that in the lower branch each State should have one represen-
tative for every 40,000 inhabitants, counting three-fifths of the slaves, that
money bills should originate in the lower house (not subject to amendment
by the upper chamber). When on July 12 the motion of Gouverneur Morris
of Pennsylvania that direct taxation should also be in proportion to represen-
tation was adopted, a crisis had been successfully surmounted. A compro-
mise spirit began to prevail. The small States were not willing to support a
strong national government.
Debates on the Virginia resolutions continued. The 15 original resolu-
tions had been expanded into 23. Since these resolutions were largely decla-
rations of principles, on July 24 a committee of five 10 was elected to draft a
detailed constitution embodying the fundamental principles which had thus
far been approved. The Convention adjourned from July 26 to August 6 to
await the report of its committee of detail. This committee, in preparing its
draft of a Constitution, turned for assistance to the State constitutions, to
the Articles of Confederation, to the various plans which had been submit-
ted to the Convention and other available material. On the whole the report
of the committee conformed to the resolutions adopted by the Convention,
though on many clauses the members of the committee left the imprint of
their individual and collective judgments. In a few instances the committee
avowedly exercised considerable discretion.
From August 6 to September 10 the report of the committee of detail
was discussed, section by section, clause by clause. Details were attended to,
further compromises were effected. Toward the close of these discussions, on
September 8, another committee of five 11 was appointed “to revise the style
of and arrange the articles which had been agreed to by the house.”
On Wednesday, September 12, the report of the committee of style was
ordered printed for the convenience of the delegates. The Convention for 3
days compared this report with the proceedings of the Convention. The Con-
stitution was ordered engrossed on Saturday, September 15.
The Convention met on Monday, September 17, for its final session. Sev-
eral of the delegates were disappointed in the result. A few deemed the new
9 The New Hampshire delegation did not arrive until July 23, 1787.
10 Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth
of Connecticut, and Wilson of Pennsylvania.
11 William Samuel Johnson of Connecticut, Alexander Hamilton of New York, Gouverneur
ally attended at different times during the course of the proceedings; 39 signed the document.
It has been estimated that generally fewer than 30 delegates attended the daily sessions.
13 These commentaries on the Constitution, written during the struggle for ratification, have
14 North Carolina added her ratification on November 21, 1789; yeas 184, nays 77. Rhode
Island did not ratify until May 29, 1790; yeas 34, nays 32.
CONTENTS
(For contents in detail, see separate table of contents at beginning of each Article and
Amendment)
Page
Public Law 91–589 .................................................................................................................... v
Introduction to the 2012 Centennial Edition .......................................................................... ix
Historical note on formation of the Constitution .................................................................... xvii
Text of the Constitution (literal print) ..................................................................................... 1
Text of the amendments (literal print) .................................................................................... 23
Proposed amendments not ratified by the States ................................................................... 47
The Constitution with Analysis ................................................................................................ 53
Preamble ..................................................................................................................................... 55
Article I—Legislative Department ........................................................................................... 57
Article II—Executive Department ............................................................................................ 453
Article III—Judicial Department ............................................................................................. 659
Article IV—States’ Relations .................................................................................................... 927
Article V—Mode of Amendment ............................................................................................... 995
Article VI—Prior Debts, National Supremacy, and Oaths of Office ...................................... 1015
Article VII—Ratification ........................................................................................................... 1051
Amendments to the Constitution ............................................................................................. 1053
First Amendment—Religion and Free Expression ................................................................. 1067
Second Amendment—Bearing Arms ........................................................................................ 1371
Third Amendment—Quartering Soldiers ................................................................................. 1377
Fourth Amendment—Search and Seizure ............................................................................... 1379
Fifth Amendment—Rights of Persons ..................................................................................... 1477
Sixth Amendment—Rights of Accused in Criminal Prosecutions ......................................... 1619
Seventh Amendment—Civil Trials ........................................................................................... 1697
Eighth Amendment—Further Guarantees in Criminal Cases .............................................. 1715
Ninth Amendment—Unenumerated Rights ............................................................................ 1771
Tenth Amendment—Reserved Powers ..................................................................................... 1775
Eleventh Amendment—Suits Against States .......................................................................... 1789
Twelfth Amendment—Election of President ........................................................................... 1821
Thirteenth Amendment—Slavery and Involuntary Servitude ............................................... 1823
Fourteenth Amendment—Rights Guaranteed ......................................................................... 1833
Fifteenth Amendment—Right of Citizens to Vote .................................................................. 2257
Sixteenth Amendment—Income Tax ........................................................................................ 2273
Seventeenth Amendment—Popular Election of Senators ...................................................... 2287
Eighteenth Amendment—Prohibition of Intoxicating Liquors .............................................. 2289
Nineteenth Amendment—Women’s Suffrage Rights .............................................................. 2293
Twentieth Amendment—Commencement of the Terms of Office .......................................... 2295
Twenty-First Amendment—Repeal of the Eighteenth Amendment ...................................... 2299
Twenty-Second Amendment—Presidential Tenure ................................................................. 2311
Twenty-Third Amendment—Presidential Electors for D. C. .................................................. 2313
Twenty-Fourth Amendment—Abolition of the Poll Tax ......................................................... 2315
Twenty-Fifth Amendment—Presidential Vacancy and Disability ......................................... 2317
Twenty-Sixth Amendment—Reduction of Voting Age ............................................................. 2321
Twenty-Seventh Amendment—Congressional Pay Limitation .............................................. 2323
Acts of Congress held unconstitutional in whole or in part by the Supreme Court of the
United States .......................................................................................................................... 2325
XXV
XXVI CONTENTS
State constitutional and statutory provisions and municipal ordinances held unconstitu-
tional or held to be preempted by federal law .................................................................... 2377
Supreme Court decisions overruled by subsequent decision ................................................. 2621
Table of cases ............................................................................................................................. 2637
Index ........................................................................................................................................... 2809
THE
CONSTITUTION OF THE UNITED STATES
OF AMERICA
LITERAL PRINT
1
CONSTITUTION OF THE UNITED STATES
Duties of the said Office, the Same shall devolve on the Vice
President, and the Congress may by Law provide for the Case
of Removal, Death, Resignation or Inability, both of the Presi-
dent and Vice President, declaring what Officer shall then act
as President, and such Officer shall act accordingly, until the
Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Ser-
vices, a Compensation, which shall neither be encreased nor di-
minished during the Period for which he shall have been elected,
and he shall not receive within that Period any other Emolu-
ment 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 af-
firm) that I will faithfully execute the Office of President of the
United States, and will to the best of my Ability, preserve, pro-
tect and defend the Constitution of the United States.”
preme 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 Com-
missions which shall expire at the End of their next Session.
Pennsylvania B FRANKLIN
THOMAS MIFFLIN
ROBt MORRIS
GEO. CLYMER
THOs FITZSIMONS
JARED INGERSOL
JAMES WILSON
GOUV MORRIS
The States of
New Hampshire, Massachusetts, Connecticut, Mr Hamilton from
New York, New Jersey, Pennsylvania, Delaware, Maryland, Vir-
ginia, North Carolina, South Carolina and Georgia.
Resolved,
That the preceeding Constitution be laid before the United
States in Congress assembled, and that it is the Opinion of this
Convention, that it should afterwards be submitted to a Conven-
tion of Delegates, chosen in each State by the People thereof,
under the Recommendation of its Legislature, for their Assent
and Ratification; and that each Convention assenting to, and rati-
fying the Same, should give Notice thereof to the United States
in Congress assembled. Resolved, That it is the Opinion of this
Convention, that as soon as the Conventions of nine States shall
have ratified this Constitution, the United States in Congress
assembled should fix a Day on which Electors should be ap-
pointed by the States which shall have ratified the same, and a
Day on which the Electors should assemble to vote for the Presi-
dent, and the Time and Place for commencing Proceedings un-
der this Constitution. That after such Publication the Electors
should be appointed, and the Senators and Representatives elected:
That the Electors should meet on the Day fixed for the Election
of the President, and should transmit their Votes certified, signed,
sealed and directed, as the Constitution requires, to the Secre-
tary of the United States in Congress assembled, that the Sena-
tors and Representatives should convene at the Time and Place
CONSTITUTION OF THE UNITED STATES 21
23
ARTICLES IN ADDITION TO, AND AMENDMENT OF,
THE CONSTITUTION OF THE UNITED STATES OF
AMERICA, PROPOSED BY CONGRESS, AND RATI-
FIED BY THE SEVERAL STATES, PURSUANT TO THE
FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION 1
AMENDMENT [I.] 2
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 peace-
1 In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court stated that it would take judi-
cial notice of the date on which a State ratified a proposed constitutional amendment. Accord-
ingly the Court consulted the State journals to determine the dates on which each house of the
legislature of certain States ratified the Eighteenth Amendment. It, therefore, follows that the
date on which the governor approved the ratification, or the date on which the secretary of
state of a given State certified the ratification, or the date on which the Secretary of State of
the United States received a copy of said certificate, or the date on which he proclaimed that
the amendment had been ratified are not controlling. Hence, the ratification date given in the
following notes is the date on which the legislature of a given State approved the particular
amendment (signature by the speaker or presiding officers of both houses being considered a
part of the ratification of the “legislature”). When that date is not available, the date given is
that on which it was approved by the governor or certified by the secretary of state of the par-
ticular State. In each case such fact has been noted. Except as otherwise indicated information
as to ratification is based on data supplied by the Department of State.
2 Brackets enclosing an amendment number indicate that the number was not specifically
assigned in the resolution proposing the amendment. It will be seen, accordingly, that only the
Thirteenth, Fourteenth, Fifteenth, and Sixteenth Amendments were thus technically ratified by
number. The first ten amendments along with two others that were not ratified were proposed
by Congress on September 25, 1789, when they passed the Senate, having previously passed
the House on September 24 (1 ANNALS OF CONGRESS 88, 913). They appear officially in 1 Stat. 97.
Ratification was completed on December 15, 1791, when the eleventh State (Virginia) approved
these amendments, there being then 14 States in the Union.
The several state legislatures ratified the first ten amendments to the Constitution on the
following dates: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Caro-
lina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790;
Delaware, January 28, 1790; New York, February 27, 1790; Pennsylvania, March 10, 1790; Rhode
Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791. The two amend-
ments that then failed of ratification prescribed the ratio of representation to population in the
House, and specified that no law varying the compensation of members of Congress should be
effective until after an intervening election of Representatives. The first was ratified by ten States
(one short of the requisite number) and the second, by six States; subsequently, this second
proposal was taken up by the States in the period 1980–1992 and was proclaimed as ratified as
of May 7, 1992. Connecticut, Georgia, and Massachusetts ratified the first ten amendments in
1939.
25
26 CONSTITUTION OF THE UNITED STATES
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 con-
fronted with the witnesses against him; to have compulsory pro-
cess for obtaining witnesses in his favor, and to have the Assis-
tance of Counsel for his defense.
AMENDMENT [VII.]
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be pre-
served, 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 [VIII.]
Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted.
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 Con-
stitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.
28 CONSTITUTION OF THE UNITED STATES
AMENDMENT [XI.] 3
The Judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced or pros-
ecuted against one on the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.
AMENDMENT [XII.] 4
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 Presi-
3 The Eleventh Amendment was proposed by Congress on March 4, 1794, when it passed
the House, 4 ANNALS OF CONGRESS 477, 478, having previously passed the Senate on January 14,
Id., 30, 31. It appears officially in 1 Stat. 402. Ratification was completed on February 7, 1795,
when the twelfth State (North Carolina) approved the amendment, there being then 15 States
in the Union. Official announcement of ratification was not made until January 8, 1798, when
President John Adams in a message to Congress stated that the Eleventh Amendment had been
adopted by three-fourths of the States and that it “may now be deemed to be a part of the
Constitution.” In the interim South Carolina had ratified, and Tennessee had been admitted
into the Union as the sixteenth State.
The several state legislatures ratified the Eleventh Amendment on the following dates: New
York, March 27, 1794; Rhode Island, March 31, 1794; Connecticut, May 8, 1794; New Hamp-
shire, June 16, 1794; Massachusetts, June 26, 1794; Vermont, between October 9 and Novem-
ber 9, 1794; Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7,
1794; Maryland, December 26, 1794; Delaware, January 23, 1795; North Carolina, February 7,
1795; South Carolina, December 4, 1797.
4 The Twelfth Amendment was proposed by Congress on December 9, 1803, when it passed
the House, 13 ANNALS OF CONGRESS 775, 776, having previously passed the Senate on December
2. Id., 209. It was not signed by the presiding officers of the House and Senate until December
12. It appears officially in 2 Stat. 306. Ratification was probably completed on June 15, 1804,
when the legislature of the thirteenth State (New Hampshire) approved the amendment, there
being then 17 States in the Union. The Governor of New Hampshire, however, vetoed this act
of the legislature on June 20, and the act failed to pass again by two-thirds vote then required
by the state constitution. Inasmuch as Article V of the Federal Constitution specifies that amend-
ments shall become effective “when ratified by legislatures of three-fourths of the several States
or by conventions in three-fourths thereof,” it has been generally believed that an approval or
veto by a governor is without significance. If the ratification by New Hampshire be deemed
ineffective, then the amendment became operative by Tennessee’s ratification on July 27, 1804.
On September 25, 1804, in a circular letter to the Governors of the several States, Secretary of
State Madison declared the amendment ratified by three-fourths of the States.
The several state legislatures ratified the Twelfth Amendment on the following dates: North
Carolina, December 22, 1803; Maryland, December 24, 1803; Kentucky, December 27, 1803; Ohio,
between December 5 and December 30, 1803; Virginia, between December 20, 1803 and Febru-
ary 3, 1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York, February
10, 1804; New Jersey, February 22, 1804; Rhode Island, between February 27 and March 12,
1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New Hampshire, June 15, 1804;
and Tennessee, July 27, 1804. The amendment was rejected by Delaware on January 18, 1804,
and by Connecticut at its session begun May 10, 1804. Massachusetts ratified this amendment
in 1961.
CONSTITUTION OF THE UNITED STATES 29
5 The Thirteenth Amendment was proposed by Congress on January 31, 1865, when it passed
the House, CONG. GLOBE (38th Cong., 2d Sess.) 531, having previously passed the Senate on April
8, 1864. Id., (38th cong., 1st Sess.), 1940. It appears officially in 13 Stat. 567 under the date of
February 1, 1865. Ratification was completed on December 6, 1865, when the legislature of the
twenty-seventh State (Georgia) approved the amendment, there being then 36 States in the Union.
On December 18, 1865, Secretary of State Seward certified that the Thirteenth Amendment had
become a part of the Constitution, 13 Stat. 774.
The several state legislatures ratified the Thirteenth Amendment on the following dates:
Illinois, February 1, 1865; Rhode Island, February 2, 1865; Michigan, February 2, 1865; Mary-
land, February 3, 1865; New York, February 3, 1865; West Virginia, February 3, 1865; Mis-
souri, February 6, 1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts,
February 7, 1865; Pennsylvania, February 8, 1865; Virginia, February 9, 1865; Ohio, February
10, 1865; Louisiana, February 15 or 16, 1865; Indiana, February 16, 1865; Nevada, February
16, 1865; Minnesota, February 23, 1865; Wisconsin, February 24, 1865; Vermont, March 9, 1865
(date on which it was “approved” by Governor); Tennessee, April 7, 1865; Arkansas, April 14,
1865; Connecticut, May 4, 1865; New Hampshire, June 30, 1865; South Carolina, November 13,
1865; Alabama, December 2, 1865 (date on which it was “approved” by Provisional Governor);
North Carolina, December 4, 1865; Georgia, December 6, 1865; Oregon, December 11, 1865; Cali-
fornia, December 15, 1865; Florida, December 28, 1865 (Florida again ratified this amendment
on June 9, 1868, upon its adoption of a new constitution); Iowa, January 17, 1866; New Jersey,
January 23, 1866 (after having rejected the amendment on March 16, 1865); Texas, February
17, 1870; Delaware, February 12, 1901 (after having rejected the amendment of February 8,
1865). The amendment was rejected by Kentucky on February 24, 1865, and by Mississippi on
December 2, 1865.
6 The Fourteenth Amendment was proposed by Congress on June 13, 1866, when it passed
the House, CONG. GLOBE (39th Cong., 1st Sess.) 3148, 3149, having previously passed the Senate
on June 8. Id., 3042. It appears officially in 14 Stat. 358 under date of June 16, 1866. Ratifica-
tion was probably completed on July 9, 1868, when the legislature of the twenty-eighth State
CONSTITUTION OF THE UNITED STATES 31
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immu-
nities of citizens of the United States; nor shall any State de-
prive any person of life, liberty, or property, without due pro-
cess of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
SECTION 2. Representatives shall be apportioned among the
several States according to their respective numbers, counting
the whole number of persons in each State, excluding Indians
not taxed. But when the right to vote at any election for the
choice of electors for President and Vice President of the United
States, Representatives in Congress, the Executive and Judicial
(South Carolina or Louisiana) approved the amendment, there being then 37 States in the Union.
However, Ohio and New Jersey had prior to that date “withdrawn” their earlier assent to this
amendment. Accordingly, Secretary of State Seward on July 20, 1868, certified that the amend-
ment had become a part of the Constitution if the said withdrawals were ineffective. 15 Stat.
706–707. Congress on July 21, 1868, passed a joint resolution declaring the amendment a part
of the Constitution and directing the Secretary to promulgate it as such. On July 28, 1868,
Secretary Seward certified without reservation that the amendment was a part of the Constitu-
tion. In the interim, two other States, Alabama on July 13 and Georgia on July 21, 1868, had
added their ratifications.
The several state legislatures ratified the Fourteenth Amendment on the following dates:
Connecticut, June 30, 1866; New Hampshire, July 7, 1866; Tennessee, July 9, 1866; New Jer-
sey, September 11, 1866 (the New Jersey Legislature on February 20, 1868 “withdrew” its con-
sent to the ratification; the Governor vetoed that bill on March 5, 1868; and it was repassed
over his veto on March 24, 1868); Oregon, September 19, 1866 (Oregon “withdrew” its consent
on October 15, 1868); Vermont, October 30, 1866; New York, January 10, 1867; Ohio, January
11, 1867 (Ohio “withdrew” its consent on January 15, 1868); Illinois, January 15, 1867; West
Virginia, January 16, 1867; Michigan, January 16, 1867; Kansas, January 17, 1867; Minnesota,
January 17, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23,
1867; Missouri, January 26, 1867 (date on which it was certified by the Missouri secretary of
state); Rhode Island, February 7, 1867; Pennsylvania, February 12, 1867; Wisconsin, February
13, 1867 (actually passed February 7, but was not signed by legislative officers until February
13); Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 9, 1868; Arkansas,
April 6, 1868; Florida, June 9, 1868; North Carolina, July 2, 1868 (after having rejected the
amendment on December 13, 1866); Louisiana, July 9, 1868 (after having rejected the amend-
ment on February 6, 1867); South Carolina, July 8, 1868 (after having rejected the amendment
on December 20, 1866); Alabama, July 13, 1868 (date on which it was “approved” by the Gover-
nor); Georgia, July 21, 1868 (after having rejected the amendment on November 9, 1866—
Georgia ratified again on February 2, 1870); Virginia, October 8, 1869 (after having rejected the
amendment on January 9, 1867); Mississippi, January 17, 1870; Texas, February 18, 1870 (af-
ter having rejected the amendment on October 27, 1866); Delaware, February 12, 1901 (after
having rejected the amendment February 7, 1867). The amendment was rejected (and not sub-
sequently ratified) by Kentucky on January 8, 1867. Maryland and California ratified this amend-
ment in 1959.
32 CONSTITUTION OF THE UNITED STATES
7 The Fifteenth Amendment was proposed by Congress on February 26, 1869, when it passed
the Senate, CONG. GLOBE (40th Cong., 3rd Sess.) 1641, having previously passed the House on
February 25. Id., 1563, 1564. It appears officially in 15 Stat. 346 under the date of February 27,
1869. Ratification was probably completed on February 3, 1870, when the legislature of the twenty-
eighth State (Iowa) approved the amendment, there being then 37 States in the Union. How-
ever, New York had prior to that date “withdrawn” its earlier assent to this amendment. Even
if this withdrawal were effective, Nebraska’s ratification on February 17, 1870, authorized Sec-
retary of State Fish’s certification of March 30, 1870, that the Fifteenth Amendment had be-
come a part of the Constitution. 16 Stat. 1131.
The several state legislatures ratified the Fifteenth Amendment on the following dates: Ne-
vada, March 1, 1869; West Virginia, March 3, 1869; North Carolina, March 5, 1869; Louisiana,
March 5, 1869 (date on which it was “approved” by the Governor); Illinois, March 5, 1869; Michi-
gan, March 5, 1869; Wisconsin, March 5, 1869; Maine, March 11, 1869; Massachusetts, March
12, 1869; South Carolina, March 15, 1869; Arkansas, March 15, 1869; Pennsylvania, March 25,
1869; New York, April 14, 1869 (New York “withdrew” its consent to the ratification on January
5, 1870); Indiana, March 14, 1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New
Hampshire, July 1, 1869; Virginia, October 8, 1869; Vermont, October 20, 1869; Alabama, No-
vember 16, 1869; Missouri, January 7, 1870 (Missouri had ratified the first section of the 15th
Amendment on March 1, 1869; it failed to include in its ratification the second section of the
amendment); Minnesota, January 13, 1870; Mississippi, January 17, 1870; Rhode Island, Janu-
ary 18, 1870; Kansas, January 19, 1870 (Kansas had by a defectively worded resolution previ-
ously ratified this amendment on February 27, 1869); Ohio, January 27, 1870 (after having re-
jected the amendment on May 4, 1869); Georgia, February 2, 1870; Iowa, February 3, 1870;
Nebraska, February 17, 1870; Texas, February 18, 1870; New Jersey, February 15, 1871 (after
having rejected the amendment on February 7, 1870); Delaware, February 12, 1901 (date on
which approved by Governor; Delaware had previously rejected the amendment on March 18,
1869). The amendment was rejected (and was not subsequently ratified) by Kentucky, Mary-
land, and Tennessee. California ratified this amendment in 1962 and Oregon in 1959.
8 The Sixteenth Amendment was proposed by Congress on July 12, 1909, when it passed
the House, 44 CONG. REC. (61st Cong., 1st Sess.) 4390, 4440, 4441, having previously passed the
Senate on July 5. Id., 4121. It appears officially in 36 Stat. 184. Ratification was completed on
February 3, 1913, when the legislature of the thirty-sixth State (Delaware, Wyoming, or New
34 CONSTITUTION OF THE UNITED STATES
the House, 48 CONG. REC. (62d Cong., 2d Sess.) 6367, having previously passed the Senate on
June 12, 1911. 47 CONG. REC. (62d Cong., 1st Sess.) 1925. It appears officially in 37 Stat. 646.
Ratification was completed on April 8, 1913, when the thirty-sixth State (Connecticut) approved
the amendment, there being then 48 States in the Union. On May 31, 1913, Secretary of State
Bryan certified that it had become a part of the Constitution. 38 Stat. 2049.
The several state legislatures ratified the Seventeenth Amendment on the following dates:
Massachusetts, May 22, 1912; Arizona, June 3, 1912; Minnesota, June 10, 1912; New York, Janu-
ary 15, 1913; Kansas, January 17, 1913; Oregon, January 23, 1913; North Carolina, January
25, 1913; California, January 28, 1913; Michigan, January 28, 1913; Iowa, January 30, 1913;
Montana, January 30, 1913; Idaho, January 31, 1913; West Virginia, February 4, 1913; Colo-
rado, February 5, 1913; Nevada, February 6, 1913; Texas, February 7, 1913; Washington, Feb-
ruary 7, 1913; Wyoming, February 8, 1913; Arkansas, February 11, 1913; Illinois, February 13,
1913; North Dakota, February 14, 1913; Wisconsin, February 18, 1913; Indiana, February 19,
1913; New Hampshire, February 19, 1913; Vermont, February 19, 1913; South Dakota, Febru-
ary 19, 1913; Maine, February 20, 1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913;
Missouri, March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 193; New Jersey,
March 17, 1913; Tennessee, April 1, 193; Pennsylvania, April 2, 1913; Connecticut, April 8, 1913;
Louisiana, June 5, 1914. The amendment was rejected by Utah on February 26, 1913.
CONSTITUTION OF THE UNITED STATES 35
10 The Eighteenth Amendment was proposed by Congress on December 18, 1917, when it
passed the Senate, CONG. REC. (65th Cong. 2d Sess.) 478, having previously passed the House
on December 17. Id., 470. It appears officially in 40 Stat. 1059. Ratification was completed on
January 16, 1919, when the thirty-sixth State approved the amendment, there being then 48
States in the Union. On January 29, 1919, Acting Secretary of State Polk certified that this
amendment had been adopted by the requisite number of States. 40 Stat. 1941. By its terms
this amendment did not become effective until 1 year after ratification.
The several state legislatures ratified the Eighteenth Amendment on the following dates:
Mississippi, January 8, 1918; Virginia, January 11, 1918; Kentucky, January 14, 1918; North
Dakota, January 28, 1918 (date on which approved by Governor); South Carolina, January 29,
1918; Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4, 1918; Dela-
ware, March 18, 1918; South Dakota, March 20, 1918; Massachusetts, April 2, 1918; Arizona,
May 24, 1918; Georgia, June 26, 1918; Louisiana, August 9, 1918 (date on which approved by
Governor); Florida, November 27, 1918; Michigan, January 2, 1919; Ohio, January 7, 1919; Okla-
homa, January 7, 1919; Idaho, January 8, 1919; Maine, January 8, 1919; West Virginia, Janu-
ary 9, 1919; California, January 13, 1919; Tennessee, January 13, 1919; Washington, January
13, 1919; Arkansas, January 14, 1919; Kansas, January 14, 1919; Illinois, January 14, 1919;
Indiana, January 14, 1919; Alabama, January 15, 1919; Colorado, January 15, 1919; Iowa, Janu-
ary 15, 1919; New Hampshire, January 15, 1919; Oregon, January 15, 1919; Nebraska, Janu-
ary 16, 1919; North Carolina, January 16, 1919; Utah, January 16, 1919; Missouri, January 16,
1919; Wyoming, January 16, 1919; Minnesota, January 17, 1919; Wisconsin, January 17, 1919;
New Mexico, January 20, 1919; Nevada, January 21, 1919; Pennsylvania, February 25, 1919;
New Jersey, March 9, 1922; New York, January 29, 1919; Vermont, January 29, 1919.
36 CONSTITUTION OF THE UNITED STATES
the Senate, CONG. REC. (66th Cong., 1st Sess.) 635, having previously passed the house on May
21. Id., 94. It appears officially in 41 Stat. 362. Ratification was completed on August 18, 1920,
when the thirty-sixth State (Tennessee) approved the amendment, there being then 48 States
in the Union. On August 26, 1920, Secretary of Colby certified that it had become a part of the
Constitution. 41 Stat. 1823.
The several state legislatures ratified the Nineteenth Amendment on the following dates:
Illinois, June 10, 1919 (readopted June 17, 1919); Michigan, June 10, 1919; Wisconsin, June 10,
1919; Kansas, June 16, 1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania,
June 24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July 2, 1919 (date on
which approved by Governor); Missouri, July 3, 1919; Arkansas, July 28, 1919; Montana, Au-
gust 2, 1919 (date on which approved by governor); Nebraska, August 2. 1919; Minnesota, Sep-
tember 8, 1919; New Hampshire, September 10, 1919 (date on which approved by Governor);
Utah, October 2, 1919; California, November 1, 1919; Maine, November 5, 1919; North Dakota,
December 1, 1919; South Dakota, December 4, 1919 (date on which certified); Colorado, Decem-
ber 15, 1919 (date on which approved by Governor); Kentucky, January 6, 1920; Rhode Island,
January 6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January 27,
1920; Nevada, February 7, 1920; New Jersey, February 9, 1920; Idaho, February 11, 1920; Ari-
zona, February 12, 1920; New Mexico, February 21, 1920 (date on which approved by govrnor);
Oklahoma, February 28, 1920; West Virginia, March 10, 1920 (confirmed September 21, 1920);
Washington, March 22, 1920; Tennessee, August 18, 1920; Vermont, February 8, 1921. The amend-
ment was rejected by Georgia on July 24, 1919; by Alabama, on September 22, 1919; by South
Carolina on January 29, 1920; by Virginia on February 12, 1920; by Maryland on February 24,
1920; by Mississippi on March 29, 1920; by Louisiana on July 1, 1920. This amendment was
subsequently ratified by Virginia in 1952, Alabama in 1953, Florida in 1969, and Georgia and
Louisiana in 1970.
12 The Twentieth Amendment was proposed by Congress on March 2, 1932, when it passed
the Senate, CONG. REC. (72d Cong., 1st Sess.) 5086, having previously passed the House on March
1. Id., 5027. It appears officially in 47 Stat. 745. Ratification was completed on January 23,
CONSTITUTION OF THE UNITED STATES 37
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 Presi-
dent, or the manner in which one who is to act shall be se-
lected, and such person shall act accordingly until a President
or Vice President shall have qualified.
1933, when the thirty-sixth State approved the amendment, there being then 48 States in the
Union. On February 6, 1933, Secretary of State Stimson certified that it had become a part of
the Constitution. 47 Stat. 2569.
The several state legislatures ratified the Twentieth Amendment on the following dates:
Virginia, March 4, 1932; New York, March 11, 1932; Mississippi, March 16, 1932; Arkansas March
17, 1932; Kentucky, March 17, 1932; New Jersey, March 21, 1932; South Carolina, March 25,
1932; Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14, 1932; Illinois,
April 21, 1932; Louisiana, June 22, 1932; West Virginia, July 30, 1932; Pennsylvania, August
11, 1932; Indiana, August 15, 1932; Texas, September 7, 1932; Alabama, September 13, 1932;
California, January 3, 1933; North Carolina, January 5, 1933; North Dakota, January 9, 1933;
Minnesota, January 12, 1933; Arizona, January 13, 1933; Montana, January 13, 1933; Ne-
braska, January 13, 1933; Oklahoma, January 13, 1933; Kansas, January 16, 1933; Oregon,
January 16, 1933; Delaware, January 19, 1933; Washington, January 19, 1933; Wyoming, Janu-
ary 19, 1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee, January 20,
1933; Idaho, January 21, 1933; New Mexico, January 21, 1933; Georgia, January 23, 1933; Mis-
souri, January 23, 1933; Ohio, January 23, 1933; Utah, January 23, 1933; Colorado, January
24, 1933; Massachusetts, January 24, 1933; Wisconsin, January 24, 1933; Nevada, January 26,
1933; Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont, February 2,
1933; Maryland, March 24, 1933; Florida, April 26, 1933.
38 CONSTITUTION OF THE UNITED STATES
13 The Twenty-first Amendment was proposed by Congress on February 20, 1933, when it
passed the House, CONG. REC. (72d Cong., 2d Sess.) 4516, having previously passed the Senate
on February 16. Id., 4231. It appears officially in 47 Stat. 1625. Ratification was completed on
December 5, 1933, when the thirty-sixth State (Utah) approved the amendment, there being
then 48 States in the Union. On December 5, 1933, Acting Secretary of State Phillips certified
that it had been adopted by the requisite number of States. 48 Stat. 1749.
The several state conventions ratified the Twenty-first Amendment on the following dates:
Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode Island, May 8, 1933; Wyoming, May
25, 1933; New Jersey, June 1, 1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massa-
chusetts, June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa, July 10, 1933;
Connecticut, July 11, 1933; New Hampshire, July 11, 1933; California, July 24, 1933; West Vir-
ginia, July 25, 1933; Arkansas, August 1, 1933; Oregon, August 7, 1933; Alabama, August 8,
1933; Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Ne-
vada, September 5, 1933; Vermont, September 23, 1933; Colorado, September 26, 1933; Wash-
ington, October 3, 1933; Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, Octo-
ber 18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933; Florida, November
14, 1933; Texas, November 24, 1933; Kentucky, November 27, 1933; Ohio, December 5, 1933;
Pennsylvania, December 5, 1933; Utah, December 5, 1933; Maine, December 6, 1933; Montana,
August 6, 1934. The amendment was rejected by a convention in the State of South Carolina,
on December 4, 1933. The electorate of the State of North Carolina voted against holding a
convention at a general election held on November 7, 1933.
CONSTITUTION OF THE UNITED STATES 39
14 The Twenty-second Amendment was proposed by Congress on March 24, 1947, having
passed the House on March 21, 1947, CONG. REC. (80th Cong., 1st Sess.) 2392, and having previ-
ously passed the Senate on March 12, 1947. Id., 1978. It appears officially in 61 Stat. 959. Rati-
fication was completed on February 27, 1951, when the thirty-sixth State (Minnesota) approved
the amendment, there being then 48 States in the Union. On March 1, 1951, Jess Larson, Ad-
ministrator of General Services, certified that it had been adopted by the requisite number of
States. 16 FED. REG. 2019.
A total of 41 state legislatures ratified the Twenty-second Amendment on the following dates:
Maine, March 31, 1947; Michigan, March 31, 1947; Iowa, April 1, 1947; Kansas, April 1, 1947;
New Hampshire, April 1, 1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3,
1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey, April 15, 1947; Vermont,
April 15, 1947; Ohio, April 16, 1947; Wisconsin, April 16, 1947; Pennsylvania, April 29, 1947;
Connecticut, May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia, January
28, 1948; Mississippi, February 12, 1948; New York, March 9, 1948; South Dakota, January 21,
1949; North Dakota, February 25, 1949; Louisiana, May 17, 1950; Montana, January 25, 1951;
Indiana, January 29, 1951; Idaho, January 30, 1951; New Mexico, February 12, 1951; Wyo-
ming, February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17, 1915; Tennessee,
February 20, 1951; Texas, February 22, 1951; Utah, February 26, 1951; Nevada, February 26,
1951; Minnesota, February 27, 1951; North Carolina, February 28, 1951; South Carolina, March
13, 1951; Maryland, March 14, 1951; Florida, April 16, 1951; and Alabama, May 4, 1951.
40 CONSTITUTION OF THE UNITED STATES
the Senate, CONG. REC. (86th Cong., 2d Sess.) 12858, having previously passed the House on
June 14. Id., 12571. It appears officially in 74 Stat. 1057. Ratification was completed on March
29, 1961, when the thirty-eighth State (Ohio) approved the amendment, there being then 50
States in the Union. On April 3, 1961, John L. Moore, Administrator of General Services, certi-
fied that it had been adopted by the requisite number of States. 26 FED. REG. 2808.
The several state legislatures ratified the Twenty-third Amendment on the following dates:
Hawaii, June 23, 1960; Massachusetts, August 22, 1960; New Jersey, December 19, 1960; New
York, January 17, 1961; California, January 19, 1961; Oregon, January 27, 1961; Maryland,
January 30, 1961; Idaho, January 31, 1961; Maine, January 31, 1961; Minnesota, January 31,
1961; New Mexico, February 1, 1961; Nevada, February 2, 1961; Montana, February 6, 1961;
Colorado, February 8, 1961; Washington, February 9, 1961; West Virginia, February 1961; Alaska,
February 10, 1961; Wyoming, February 13, 1961; South Dakota, February 14, 1961; Delaware,
February 20, 1961; Utah, February 21, 1961; Wisconsin, February 21, 1961; Pennsylvania, Feb-
ruary 28, 1961; Indiana, March 3, 1961; North Dakota, March 3, 1961; Tennessee, March 6,
1961; Michigan, March 8, 1961; Connecticut, March 9, 1961; Arizona, March 10, 1961; Illinois,
March 14, 1961; Nebraska, March 15, 1961; Vermont, March 15, 1961; Iowa, March 16, 1961;
Missouri, March 20, 1961; Oklahoma, March 21, 1961; Rhode Island, March 22, 1961; Kansas,
March 29, 1961; Ohio, March 29, 1961; and New Hampshire, March 30, 1961.
CONSTITUTION OF THE UNITED STATES 41
16 The Twenty-fourth Amendment was proposed by Congress on September 14, 1962, hav-
ing passed the House on August 27, 1962. CONG. REC. (87th Cong., 2d Sess.) 17670 and having
previously passed the Senate on March 27, 1962. Id., 5105. It appears officially in 76 Stat. 1259.
Ratification was completed on January 23, 1964, when the thirty-eighth State (South Dakota)
approved the Amendment, there being then 50 States in the Union. On February 4, 1964, Ber-
nard L. Boutin, Administrator of General Services, certified that it had been adopted by the
requisite number of States. 25 FED. REG. 1717. President Lyndon B. Johnson signed this certifi-
cate.
Thirty-eight state legislatures ratified the Twenty-fourth Amendment on the following dates:
Illinois, November 14, 1962; New Jersey, December 3, 1962; Oregon, January 25, 1963; Mon-
tana, January 28, 1963; West Virginia, February 1, 1963; New York, February 4, 1963; Mary-
land, February 6, 1963; California, February 7, 1963; Alaska, February 11, 1963; Rhode Island,
February 14, 1963; Indiana, February 19, 1963; Michigan, February 20, 1963; Utah, February
20, 1963; Colorado, February 21, 1963; Minnesota, February 27, 1963; Ohio, February 27, 1963;
New Mexico, March 5, 1963; Hawaii, March 6, 1963; North Dakota, March 7, 1963; Idaho, March
8, 1963; Washington, March 14, 1963; Vermont, March 15, 1963; Nevada, March 19, 1963; Con-
necticut, March 20, 1963; Tennessee, March 21, 1963; Pennsylvania, March 25, 1963; Wiscon-
sin, March 26, 1963; Kansas, March 28, 1963; Massachusetts, March 28, 1963; Nebraska, April
4, 1963; Florida, April 18, 1963; Iowa, April 24, 1963; Delaware, May 1, 1963; Missouri, May
13, 1963; New Hampshire, June 16, 1963; Kentucky, June 27, 1963; Maine, January 16, 1964;
South Dakota, January 23, 1964.
42 CONSTITUTION OF THE UNITED STATES
AMENDMENT [XXV.] 17
SECTION 1. In case of the removal of the President from of-
fice or of his death or resignation, the Vice President shall be-
come President.
17 This Amendment was proposed by the Eighty-ninth Congress by Senate Joint Resolution
No. 1, which was approved by the Senate on February 19, 1965, and by the House of Represen-
tatives, in amended form, on April 13, 1965. The House of Representatives agreed to a Confer-
ence Report on June 30, 1965, and the Senate agreed to the Conference Report on July 6, 1965.
It was declared by the Administrator of General Services, on February 23, 1967, to have been
ratified.
This Amendment was ratified by the following States:
Nebraska, July 12, 1965; Wisconsin, July 13, 1965; Oklahoma, July 16, 1965; Massachu-
setts, August 9, 1965; Pennsylvania, August 18, 1965; Kentucky, September 15, 1965; Arizona,
September 22, 1965; Michigan, October 5, 1965; Indiana, October 20, 1965; California, October
21, 1965; Arkansas, November 4, 1965; New Jersey, November 29, 1965; Delaware, December 7,
1965; Utah, January 17, 1966; West Virginia, January 20, 1966; Maine, January 24, 1966; Rhode
Island, January 28, 1966; Colorado, February 3, 1966; New Mexico, February 3, 1966; Kansas,
February 8, 1966; Vermont, February 10, 1966; Alaska, February 18, 1966; Idaho, March 2, 1966;
Hawaii, March 3, 1966; Virginia, March 8, 1966; Mississippi, March 10, 1966; New York, March
14, 1966; Maryland, March 23, 1966; Missouri, March 30, 1966; New Hampshire, June 13, 1966;
Louisiana, July 5, 1966; Tennessee, January 12, 1967, Wyoming, January 25, 1967; Washing-
ton, January 26, 1967; Iowa, January 26, 1967; Oregon, February 2, 1967; Minnesota, February
10, 1967; Nevada, February 10, 1967; Connecticut, February 14, 1967; Montana, February 15,
1967; South Dakota, March 6, 1967; Ohio, March 7, 1967; Alabama, March 14, 1967; North
Carolina, March 22, 1967 Illinois, March 22, 1967; Texas, April 25, 1967; Florida, May 25, 1967.
Publication of the certifying statement of the Administrator of General Services that the
Amendment had become valid was made on February 25, 1967, F.R. Doc 67–2208, 32 FED. REG.
3287.
CONSTITUTION OF THE UNITED STATES 43
AMENDMENT [XXVI.] 18
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 any State on account of age.
18 The Twenty-sixth Amendment was proposed by Congress on March 23, 1971, upon pas-
sage by the House of Representatives, the Senate having previously passed an identical resolu-
tion on March 10, 1971. It appears officially in 85 Stat. 825. Ratification was completed on July
1, 1971, when action by the legislature of the 38th State, North Carolina, was concluded, and
the Administrator of the General Services Administration officially certified it to have been duly
ratified on July 5, 1971. 36 FED. REG. 12725.
As of the publication of this volume, 42 States had ratified this Amendment:
Connecticut, March 23, 1971; Delaware, March 23, 1971; Minnesota, March 23, 1971; Ten-
nessee, March 23, 1971; Washington, March 23, 1971; Hawaii, March 24, 1971; Massachusetts,
March 24, 1971; Montana, March 29, 1971; Arkansas, March 30, 1971; Idaho, March 30, 1971;
Iowa, March 30, 1971; Nebraska, April 2, 1971; New Jersey, April 3, 1971; Kansas, April 7,
1971; Michigan, April 7, 1971; Alaska, April 8, 1971; Maryland, April 8, 1971; Indiana, April 8,
1971; Maine, April 9, 1971; Vermont, April 16, 1971; Louisiana, April 17, 1971; California, April
19, 1971; Colorado, April 27, 1971; Pennsylvania, April 27, 1971; Texas, April 27, 1971; South
Carolina, April 28, 1971; West Virginia, April 28, 1971; New Hampshire, May 13, 1971; Ari-
zona, May 14, 1971; Rhode Island, May 27, 1971; New York, June 2, 1971; Oregon, June 4,
1971; Missouri, June 14, 1971; Wisconsin, June 22, 1971; Illinois, June 29, 1971; Alabama, June
30, 1971; Ohio, June 30, 1971; North Carolina, July 1, 1971; Oklahoma, July 1, 1971; Virginia,
July 8, 1971; Wyoming, July 8, 1971; Georgia, October 4, 1971.
19 This purported amendment was proposed by Congress on September 25, 1789, when it
passed the Senate, having previously passed the House on September 24. (1 ANNALS OF CONGRESS
88, 913). It appears officially in 1 Stat. 97. Having received in 1789–1791 only six state ratifica-
tions, the proposal then failed of ratification while ten of the 12 sent to the States by Congress
were ratified and proclaimed and became the Bill of Rights. The provision was proclaimed as
having been ratified and having become the 27th Amendment, when Michigan ratified on May
7, 1992, there being 50 States in the Union. Proclamation was by the Archivist of the United
States, pursuant to 1 U.S.C. § 106b, on May 19, 1992. F.R.Doc. 92–11951, 57 FED. REG. 21187. It
was also proclaimed by votes of the Senate and House of Representatives. 138 CONG. REC. (DAILY
ED) S 6948–49, H 3505–06.
The several state legislatures ratified the proposal on the following dates: Maryland, Decem-
ber 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; Delaware,
January 28, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791; Ohio, May 6, 1873;
Wyoming, March 6, 1978; Maine, April 27, 1983; Colorado, April 22, 1984; South Dakota, Febru-
ary 1985; New Hampshire, March 7, 1985; Arizona, April 3, 1985; Tennessee, May 28, 1985;
Oklahoma, July 10, 1985; New Mexico, February 14, 1986; Indiana, February 24, 1986; Utah,
February 25, 1986; Arkansas, March 13, 1987; Montana, March 17, 1987; Connecticut, May 13,
CONSTITUTION OF THE UNITED STATES 45
1987; Wisconsin, July 15, 1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Loui-
siana, July 7, 1988; Iowa, February 9, 1989; Idaho, March 23, 1989; Nevada, May 25, 1989;
Kansas, April 5, 1990; Florida, May 31, 1990; North Dakota, Mary 25, 1991; Alabama, May 5,
1992; Missouri, May 5, 1992; Michigan, May 7, 1992. New Jersey subsequently ratified on May
7, 1992.
PROPOSED AMENDMENTS NOT RATIFIED
BY THE STATES
47
PROPOSED AMENDMENTS NOT RATIFIED BY THE
STATES
During the course of our history, in addition to the 27 amendments which
have been ratified by the required three-fourths of the States, six other amend-
ments have been submitted to the States but have not been ratified by them.
Beginning with the proposed Eighteenth Amendment, Congress has cus-
tomarily included a provision requiring ratification within seven years from
the time of the submission to the States. The Supreme Court in Coleman v.
Miller, 307 U.S. 433 (1939), declared that the question of the reasonableness
of the time within which a sufficient number of States must act is a political
question to be determined by the Congress.
In 1789, at the time of the submission of the Bill of Rights, twelve pro-
posed amendments were submitted to the States. Of these, Articles III–XII
were ratified and became the first ten amendments to the Constitution. Pro-
posed Articles I and II were not ratified with these ten, but, in 1992, Article
II was proclaimed as ratified, 203 years later. The following is the text of
proposed Article I:
ARTICLE I. After the first enumeration required by the first article of the Constitu-
tion, there shall be one Representative for every thirty thousand, until the number shall
amount to one hundred, after which the proportion shall be so regulated by Congress,
that there shall be not less than one hundred Representatives, nor less than one Rep-
resentative for every forty thousand persons, until the number of Representatives shall
amount to two hundred; after which the proportion shall be so regulated by Congress,
that there shall not be less than two hundred Representatives, nor more than one Rep-
resentative for every fifty thousand persons.
“ARTICLE THIRTEEN
“No amendment shall be made to the Constitution which will authorize or give to
Congress the power to abolish or interfere, within any State, with the domestic institu-
tions thereof, including that of persons held to labor or service by the laws of said State.’’
In more recent times, only three proposed amendments have not been
ratified by three-fourths of the States. The first is the proposed child-labor
amendment, which was submitted to the States during the 1st session of the
68th Congress in June 1924, as follows:
JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
Resolved by the Senate and House of Representatives of the United States of America
in Congress assembled (two-thirds of each House concurring therein), That the follow-
ing article is proposed as an amendment to the Constitution of the United States, which
when ratified by the legislatures of three-fourths of the several States, shall be valid to
all intents and purposes as a part of the Constitution:
ARTICLE———
SECTION 1. The Congress shall have power to limit, regulate, and prohibit the labor
of persons under 18 years of age.
SECTION 2. The power of the several States is unimpaired by this article except that
the operation of State laws shall be suspended to the extent necessary to give effect to
legislation enacted by the Congress.
ratified by the legislatures of three-fourths of the several States within seven years
from the date of its submission by the Congress:
“SECTION 1. Equality of rights under the law shall not be denied or abridged by the
United States or by any State on account of sex.
“SECTION 2. The Congress shall have the power to enforce, by appropriate legisla-
tion, the provisions of this article.
“SECTION 3. This amendment shall take effect two years after the date of ratifica-
tion.’’
“ARTICLE
“SECTION 1. For purposes of representation in the Congress, election of the Presi-
dent and Vice President, and article V of this Constitution, the District constituting
the seat of government of the United States shall be treated as though it were a State.
“SEC. 2. The exercise of the rights and powers conferred under this article shall be
by the people of the District constituting the seat of government, and as shall be pro-
vided by the Congress.
“SEC. 3. The twenty-third article of amendment to the Constitution of the United
States is hereby repealed.
“SEC. 4. 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.’’
THE
CONSTITUTION OF THE UNITED STATES
OF AMERICA
WITH ANALYSIS
53
THE PREAMBLE
We the People of the United States, in Order to form a more
perfect 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.
PURPOSE AND EFFECT OF THE PREAMBLE
Although the preamble is not a source of power for any depart-
ment of the Federal Government,1 the Supreme Court has often re-
ferred to it as evidence of the origin, scope, and purpose of the Con-
stitution.2 “Its true office,” wrote Joseph Story in his Commentaries,
“is to expound the nature and extent and application of the powers
actually conferred by the Constitution, and not substantively to cre-
ate them. For example, the preamble declares one object to be, ‘pro-
vide for the common defense.’ No one can doubt that this does not
enlarge the powers of Congress to pass any measures which they
deem useful for the common defence. But suppose the terms of a
given power admit of two constructions, the one more restrictive,
the other more liberal, and each of them is consistent with the words,
but is, and ought to be, governed by the intent of the power; if one
could promote and the other defeat the common defence, ought not
the former, upon the soundest principles of interpretation, to be ad-
opted?” 3
462. For a lengthy exegesis of the preamble phrase by phrase, see M. ADLER & W.
GORMAN, THE AMERICAN TESTAMENT (New York: 1975), 63–118.
55
ARTICLE I
LEGISLATIVE DEPARTMENT
CONTENTS
Page
Section 1. Legislative Powers ................................................................................................... 65
Separation of Powers and Checks and Balances ............................................................. 65
The Theory Elaborated and Implemented ................................................................ 65
Judicial Enforcement .................................................................................................. 67
Bicameralism ...................................................................................................................... 72
Enumerated, Implied, Resulting, and Inherent Powers ................................................. 73
Delegation of Legislative Power ........................................................................................ 75
The History of the Doctrine of Nondelegability ....................................................... 75
The Nature and Scope of Permissible Delegations .................................................. 79
Filling Up the Details .......................................................................................... 81
Contingent Legislation ........................................................................................ 82
Standards .............................................................................................................. 83
Preemptive Reach of Delegated Authority ......................................................... 87
Delegations to the President in Areas of Shared Authority .................................... 88
Foreign Affairs ...................................................................................................... 88
Military ................................................................................................................. 89
Delegations to States and to Private Entities .......................................................... 90
Delegations to the States .................................................................................... 90
Delegations to Private Entities ........................................................................... 90
Particular Subjects or Concerns—Closer Scrutiny or Uniform Standard? ............ 92
Crime and Punishment ....................................................................................... 93
Delegation and Individual Liberties ................................................................... 95
Congressional Investigations ............................................................................................. 96
Source of the Power to Investigate ............................................................................ 96
Investigations of Conduct of Executive Department ................................................ 98
Investigations of Members of Congress ..................................................................... 99
Investigations in Aid of Legislation ........................................................................... 99
Purpose ................................................................................................................. 99
Protection of Witnesses; Pertinency and Related Matters ............................... 102
Protection of Witnesses; Constitutional Guarantees ......................................... 106
Sanctions of the Investigatory Power: Contempt ..................................................... 109
Section 2. The House of Representatives ................................................................................ 111
Clause 1. Congressional Districting .................................................................................. 111
Elector Qualifications .................................................................................................. 115
Clause 2. Qualifications of Members of Congress ........................................................... 116
When the Qualifications Must Be Possessed ............................................................ 116
Exclusivity of Constitutional Qualifications ............................................................. 116
Congressional Additions ...................................................................................... 116
State Additions ..................................................................................................... 119
Clause 3. Apportionment of Seats In the House ............................................................. 121
The Census Requirement ........................................................................................... 122
Clause 4. Vacancies ............................................................................................................ 124
In General .................................................................................................................... 124
57
58 ART. I—LEGISLATIVE DEPARTMENT
ARTICLE I
Separation of Powers (1967), and W. Gwyn, The Meaning of the Separation of Pow-
ers (1965).
2 Thus the Constitution of Virginia of 1776 provided: “The legislative, executive,
and judiciary department shall be separate and distinct, so that neither exercise
the powers properly belonging to the other; nor shall any person exercise the pow-
ers of more than one of them, at the same time[.]” Reprinted in 10 SOURCES AND DOCU-
MENTS OF UNITED STATES CONSTITUTIONS 52 (W. S. Windler ed., 1979). See also 5 id. at
96, Art. XXX of Part First, Massachusetts Constitution of 1780: “In the government
of this commonwealth, the legislative department shall never exercise the executive
and judicial powers, or either of them; the executive shall never exercise the legisla-
tive and judicial powers, or either of them; the judicial shall never exercise the leg-
islative and executive powers, or either of them; to the end it may be a government
of laws, and not of men.”
65
66 ART. I—LEGISLATIVE DEPARTMENT
nates.” THE FEDERALIST, No. 51 (J. Cooke ed. 1961), 350 (Madison). See also id. at No.
48, 332–334. This theme continues today to influence the Court’s evaluation of con-
gressional initiatives. E.g., Metropolitan Washington Airports Auth. v. Citizens for
the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991). But compare id.
at 286 n.3 (Justice White dissenting).
4 The intellectual history through the state period and the Convention proceed-
ings is detailed in G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776–1787 (1969)
(see index entries under “separation of powers”).
5 THE FEDERALIST Nos. 47–51 (J. Cooke ed. 1961), 323–353 (Madison).
6 Id. at No. 47, 325–326 (emphasis in original).
7 Id. at Nos. 47–49, 325–343.
ART. I—LEGISLATIVE DEPARTMENT 67
tion. The interest of the man must be connected with the constitu-
tional rights of the place.” 8
Institutional devices to achieve these principles pervade the Con-
stitution. Bicameralism reduces legislative predominance, while the
presidential veto gives to the President a means of defending his
priorities and preventing congressional overreaching. The Senate’s
role in appointments and treaties checks the President. The courts
are assured independence through good-behavior tenure and secu-
rity of compensation, and the judges through judicial review will
check the other two branches. The impeachment power gives to Con-
gress the authority to root out corruption and abuse of power in
the other two branches. And so on.
Judicial Enforcement
Throughout much of our history, the “political branches” have
contended between themselves in application of the separation-of-
powers doctrine. Many notable political disputes turned on ques-
tions involving the doctrine. Because the doctrines of separation of
powers and of checks and balances require both separation and in-
termixture,9 the role of the Supreme Court in policing the mainte-
nance of the two doctrines is problematic at best. Indeed, it is only
in recent decades that cases involving the doctrines have regularly
been decided by the Court. Previously, informed understandings of
the principles have underlain judicial construction of particular clauses
or guided formulation of constitutional common law. That is, the
nondelegation doctrine was from the beginning suffused with a
separation-of-powers premise,10 and the effective demise of the doc-
trine as a judicially enforceable construct reflects the Court’s inabil-
ity to give any meaningful content to it.11 On the other hand, peri-
odically, the Court has taken a strong separation position on behalf
of the President, sometimes unsuccessfully 12 and sometimes suc-
cessfully.
8 Id. at No. 51, 349.
9 “While the Constitution diffuses power the better to secure liberty, it also con-
templates that practice will integrate the dispersed powers into a workable govern-
ment. It enjoins upon its branches separateness but interdependence, autonomy but
reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jus-
tice Jackson concurring).
10 E.g., Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S.
dissenting).
12 The principal example is Myers v. United States, 272 U.S. 52 (1926), written
by Chief Justice Taft, himself a former President. The breadth of the holding was
modified in considerable degree in Humphrey’s Executor v. United States, 295 U.S.
602 (1935), and the premise of the decision itself was recast and largely softened in
Morrison v. Olson, 487 U.S. 654 (1988).
68 ART. I—LEGISLATIVE DEPARTMENT
13 Beginning with Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), a relatively easy
case, in which Congress had attempted to reserve to itself the power to appoint cer-
tain officers charged with enforcement of a law.
14 Bowsher v. Synar, 478 U.S. 714 (1986).
15 INS v. Chadha, 462 U.S. 919 (1983).
16 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
17 Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States,
for the Abatement of Airport Noise, 501 U.S. 252 (1991), was decidedly formalistic,
but it involved a factual situation and a doctrinal predicate easily rationalized by
the principles of Morrison and Mistretta, aggrandizement of its powers by Congress.
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), reasserted the fundamental
status of Marathon, again in a bankruptcy courts context, although the issue was
ART. I—LEGISLATIVE DEPARTMENT 69
ceed the outer limits of its power . . . must be resisted. Although not ‘hermetically’
sealed from one another, the powers delegated to the three Branches are function-
ally identifiable.” INS v. Chadha, 462 U.S. 919, 951 (1983). See id. at 944–51; North-
ern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64–66 (1982)
(plurality opinion); Bowsher v. Synar, 478 U.S. 714, 721–727 (1986).
20 CFTC v. Schor, 478 U.S. 833 (1986); Thomas v. Union Carbide Agric. Prod-
ucts Co., 473 U.S. 568, 587, 589–93 (1985). The Court had first formulated this analy-
sis in cases challenging alleged infringements on presidential powers, United States
v. Nixon, 418 U.S. 683, 713 (1974); Nixon v. Administrator of General Services, 433
U.S. 425, 442–43 (1977), but it had subsequently turned to the more strict test. Schor
and Thomas both involved provisions challenged as infringing judicial powers.
70 ART. I—LEGISLATIVE DEPARTMENT
the bankruptcy court in Northern Pipeline was either an Article I court or an ad-
junct to an Article III court, the characterization of the entity is irrelevant and, in
fact, the Court made nothing of the difference. The issue in each case was whether
the judicial power of the United States could be conferred on an entity that was not
an Article III court.
25 CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide
Congress may vest in the courts the power to appoint inferior officers, Morrison v.
Olson, 487 U.S. 654, 670–677 (1988), making possible the contention that, unlike
Chadha and Bowsher, Morrison is a textual commitment case. But the Court’s sepa-
rate evaluation of the separation of powers issue does not appear to turn on that
distinction. Id. at 685–96. Nevertheless, the existence of this possible distinction should
make one wary about lightly reading Morrison as a rejection of formalism when ex-
ecutive powers are litigated.
29 487 U.S. at 695 (quoting, respectively, Schor, 478 U.S. at 856, and Nixon v.
BICAMERALISM
By providing for a national legislature of two Houses, the Fram-
ers, deliberately or adventitiously, served several functions. Ex-
amples of both unicameralism and bicameralism abounded. Some
of the ancient republics, to which the Framers often repaired for
the learning of experience, had two-house legislatures, and the Par-
liament of Great Britain was based in two social orders, the heredi-
tary aristocracy represented in the House of Lords and the freehold-
ers of the land represented in the House of Commons. A number of
state legislatures, following the Revolution, were created unicam-
30 Mistretta v. United States, 488 U.S. 361 (1989). Significantly, the Court ac-
35 See discussion under Article II, § 1, cl. 1, Executive Power: Theory of the Presi-
45 Juilliard v. Greenman, 110 U.S. 421, 449–450 (1884). See also Justice Brad-
ley’s concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871).
46 United States v. Jones, 109 U.S. 513 (1883).
47 United States v. Kagama, 118 U.S. 375 (1886).
48 Fong Yue Ting v. United States, 149 U.S. 698 (1893).
49 Hines v. Davidowitz, 312 U.S. 52 (1941).
50 299 U.S. 304 (1936).
51 United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932).
to the FDA to allow reasonable variations, tolerances, and exemptions from misbrand-
ing prohibitions that were backed by criminal penalties. It was “not open to reason-
able dispute” that such a delegation was permissible to fill in details “impracticable
for Congress to prescribe.”
54 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928) (“In de-
termining what [Congress] may do in seeking assistance from another branch, the
extent and character of that assistance must be fixed according to common sense
and the inherent necessities of the government co-ordination”).
55 Mistretta v. United States, 488 U.S. 361, 372 (1989). See also Sunshine An-
thracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) (“Delegation by Congress has
long been recognized as necessary in order that the exertion of legislative power
does not become a futility”).
56 Wayman v. Southard, 23 U.S. (10 Wheat.) at 42. For particularly useful dis-
cussions of delegations, see 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE Ch. 3 (2d ed., 1978);
L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION ch. 2 (1965).
57 276 U.S. 394 (1928).
58 276 U.S. at 406.
ART. I—LEGISLATIVE DEPARTMENT 77
59 276 U.S. at 409. The “intelligible principle” test of Hampton is the same as
the authority contained no finding or other explanation by which the legality of the
action could be tested. Id. at 431–33.
63 295 U.S. at 542.
64 295 U.S. at 541. Other concerns were that the industrial codes were backed
by criminal sanction, and that regulatory power was delegated to private individu-
als. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989).
78 ART. I—LEGISLATIVE DEPARTMENT
65 A year later, the Court invalidated the Bituminous Coal Conservation Act on
delegation grounds, but that delegation was to private entities. Carter v. Carter Coal
Co., 298 U.S. 238 (1936).
66 Mistretta v. United States, 488 U.S. 361, 373 (1989).
67 Lichter v. United States, 334 U.S. 742 (1948).
68 American Power & Light Co. v. SEC, 329 U.S. 90 (1946).
69 Yakus v. United States, 321 U.S. 414 (1944).
70 FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944).
71 National Broadcasting Co. v. United States, 319 U.S. 190 (1943).
72 Hampton v. Mow Sun Wong, 426 U.S. 88, 122 (1976) (Justice Rehnquist, dis-
senting).
73 Mistretta v. United States, 488 U.S. 361, 373–79 (1989).
74 See, e.g., Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (contrasting the delega-
tion to deal with “unprecedented economic problems of varied industries” with the
delegation of authority to deal with problems of the banking industry, where there
was “accumulated experience” derived from long regulation and close supervision);
Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001) (the NIRA “con-
ferred authority to regulate the entire economy on the basis of no more precise a
standard than stimulating the economy by assuring ‘fair competition’ ”).
75 See, e.g., Yakus v. United States, 321 U.S. 414, 424–25 (1944) (Schechter in-
645–46 (1980) (plurality opinion) (invalidating an occupational safety and health regu-
lation, and observing that the statute should not be interpreted to authorize enforce-
ment of a standard that is not based on an “understandable” quantification of risk);
National Cable Television Ass’n v. United States, 415 U.S. 336, 342 (1974) (“hurdles
revealed in [Schechter and J. W. Hampton, Jr. & Co. v. United States] lead us to
read the Act narrowly to avoid constitutional problems”).
ART. I—LEGISLATIVE DEPARTMENT 79
tice Burger dissenting); Industrial Union Dep’t v. American Petroleum Inst., 448 U.S.
607, 671 (1980) (then-Justice Rehnquist concurring). See also United States v. Mid-
west Video Corp., 406 U.S. 649, 675, 677 (1972) (Chief Justice Burger concurring,
Justice Douglas dissenting); Arizona v. California, 373 U.S. 546, 625–26 (1963) (Jus-
tice Harlan dissenting in part). Occasionally, statutes are narrowly construed, pur-
portedly to avoid constitutional problems with delegations. E.g., Industrial Union
Dep’t , 448 U.S. at 645–46 (plurality opinion); National Cable Television Ass’n v. United
States, 415 U.S. 336, 342 (1974).
79 E.g., Mistretta v. United States, 488 U.S. 361, 371–79 (1989). See also Skin-
ner v. Mid-America Pipeline Co., 490 U.S. 212, 220–24 (1989); Touby v. United States,
500 U.S. 160, 164–68 (1991); Whitman v. American Trucking Ass’ns, 531 U.S. 547
(2001). While expressing considerable reservations about the scope of delegations,
Justice Scalia, in Mistretta, 488 U.S. at 415–16, conceded both the inevitability of
delegations and the inability of the courts to police them.
Notice Clinton v. City of New York, 524 U.S. 417 (1998), in which the Court
struck down the Line Item Veto Act, intended by Congress to be a delegation to the
President, finding that the authority conferred on the President was legislative power,
not executive power, which failed because the presentment clause had not and could
not have been complied with. The dissenting Justices argued that the law was prop-
erly treated as a delegation and was clearly constitutional. Id. at 453 (Justice Scalia
concurring in part and dissenting in part), 469 (Justice Breyer dissenting).
80 Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10
Wheat.) 1, 42 (1825).
81 276 U.S. 394 (1928).
80 ART. I—LEGISLATIVE DEPARTMENT
82 276 U.S. at 406. Chief Justice Taft traced the separation of powers doctrine
to the maxim, Delegata potestas non potest delegari (a delegated power may not be
delegated), 276 U.S. at 405, but the maxim does not help differentiate between per-
missible and impermissible delegations, and Court has not repeated this reference
in later delegation cases.
83 517 U.S. 748 (1996).
84 517 U.S. at 758–59.
85 Carter v. Carter Coal Co., 298 U.S. 238, 310–12 (1936); Yakus v. United States,
321 U.S. 414, 424–25 (1944). Because the separation-of-powers doctrine is inappli-
cable to the states as a requirement of federal constitutional law, Dreyer v. Illinois,
187 U.S. 71, 83–84 (1902), it is the Due Process Clause to which federal courts must
look for authority to review delegations by state legislatures. See, e.g., Eubank v.
City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road Dist., 240 U.S.
242 (1916).
ART. I—LEGISLATIVE DEPARTMENT 81
June 19, 1934, 48 Stat. 1064; the power to promulgate rules of criminal procedure
was conferred by the Act of June 29, 1940, 54 Stat. 688. These authorities are now
subsumed under 28 U.S.C. § 2072. In both instances Congress provided for submis-
sion of the rules to it, presumably reserving the power to change or to veto the rules.
Additionally, Congress has occasionally legislated rules itself. See, e.g., 82 Stat. 197
(1968), 18 U.S.C. §§ 3501–02 (admissibility of confessions in federal courts).
91 In re Kollock, 165 U.S. 526 (1897).
92 165 U.S. at 533.
93 United States v. Bailey, 34 U.S. (9 Pet.) 238 (1835); Caha v. United States,
220 U.S. 506 (1911) (upholding act authorizing executive officials to make rules gov-
erning use of forest reservations); ICC v. Goodrich Transit Co., 224 U.S. 194 (1912)
(upholding delegation to prescribe methods of accounting for carriers in interstate
commerce).
95 11 U.S. (7 Cr.) 382 (1813).
96 11 U.S. (7 Cr.) at 388.
97 143 U.S. 649 (1892).
98 143 U.S. at 691.
ART. I—LEGISLATIVE DEPARTMENT 83
that the President’s orders were nowhere published and notice of regulations bear-
ing criminal penalties for their violations was spotty at best. Cf. E. CORWIN, THE PRESI-
DENT: OFFICE AND POWERS 1787–1957 394–95 (4th ed. 1958). The result of the Govern-
ment’s discomfiture in Court was enactment of the Federal Register Act, 49 Stat.
500 (1935), 44 U.S.C. § 301, providing for publication of Executive Orders and agency
regulations in the daily Federal Register.
104 295 U.S. 495 (1935).
84 ART. I—LEGISLATIVE DEPARTMENT
control wartime inflation, and the administrator was directed to give “due consider-
ation” to a specified pre-war base period).
110 Tagg Bros. & Moorhead v. United States, 280 U.S. 420 (1930).
ART. I—LEGISLATIVE DEPARTMENT 85
trine” and a “right to reply” rule has been sustained, Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367 (1969), as well as a rule requiring the carrying of anti-smoking
commercials. Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied sub nom.
Tobacco Institute v. FCC, 396 U.S. 842 (1969).
118 Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp.
the problems of the banking industry and the authorized remedies were well known).
120 334 U.S. 742 (1948).
121 In upholding the delegation as applied to the pre-incorporation administra-
tive definition, the Court explained that “[t]he statutory term ‘excessive profits,’ in
its context, was a sufficient expression of legislative policy and standards to render
86 ART. I—LEGISLATIVE DEPARTMENT
ing Ass’ns v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967).
ART. I—LEGISLATIVE DEPARTMENT 87
130 Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842–45, 865–66 (1984) (“[A]n agency
to which Congress has delegated policymaking responsibilities may, within the lim-
its of that delegation, properly rely upon the incumbent administration’s views of
wise policy to inform its judgments.” Id. at 865). See also Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Ins. Co., 463 U.S. 29, 42–44, 46–48, 51–57 (1983) (recognizing
agency could have reversed its policy but finding reasons not supported on record).
131 Yakus v. United States, 321 U.S. 414, 425 (1944).
132 Yakus v. United States, 321 U.S. 414, 426; Skinner v. Mid-America Pipeline
Co., 490 U.S. 212, 218 (1989); American Light & Power Co. v. SEC, 329 U.S. 90,
107, 108 (1946); Opp Cotton Mills v. Administrator, 312 U.S. 126, 144 (1941). It should
be remembered that the Court has renounced strict review of economic regulation
wholly through legislative enactment, forsaking substantive due process, so that re-
view of the exercise of delegated power by the same relaxed standard forwards a
consistent policy. E.g., Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee
Optical Co., 348 U.S. 483 (1955).
133 Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. §§ 551–559. In NLRB v. Wyman-
Gordon Co., 394 U.S. 759 (1969), six Justices agreed that a Board proceeding had
been in fact rule-making and not adjudication and that the APA should have been
complied with. The Board won the particular case, however, because of a coales-
cence of divergent views of the Justices, but the Board has since reversed a policy
of not resorting to formal rule-making.
134 E.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Wisconsin v. Constantineau, 400
135 City of New York v. FCC, 486 U.S. 57, 63–64 (1988); Louisiana PSC v. FCC,
476 U.S. 355, 368–69 (1986); Fidelity Fed. Savings & Loan Ass’n v. de la Cuesta,
458 U.S. 141, 153–54 (1982).
136 E.g., The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).
137 E.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v.
the Court referred in passing to the supersession of statutes without evincing any
doubts about the validity of the results. When Congress amended the Rules En-
abling Acts in the 100th Congress, Pub. L. 100–702, 102 Stat. 4642, 4648, amend-
ing 28 U.S.C. § 2072, the House would have altered supersession, but the Senate
disagreed, the House acquiesced, and the old provision remained. See H.R. 4807, H.
REP. NO. 100–889, 100th Cong., 2d sess. (1988), 27–29; 134 CONG REC. 23573–84 (1988),
id. at 31051–52 (Sen. Heflin); id. at 31872 (Rep. Kastenmeier).
140 299 U.S. 304, 319–29 (1936).
141 299 U.S. at 319–22. For a particularly strong, recent assertion of the point,
see Haig v. Agee, 453 U.S. 280, 291–92 (1981). This view also informs the Court’s
analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States v.
Chemical Foundation, 272 U.S. 1 (1926) (Trading With Enemy Act delegation to dis-
pose of seized enemy property).
ART. I—LEGISLATIVE DEPARTMENT 89
and its progeny, to the military, 517 U.S. at 755–56, a point on which Justice Thomas
disagreed, id. at 777.
147 Rule for Courts-Martial; see 517 U.S. at 754.
148 10 U.S.C. §§ 818, 836(a), 856.
90 ART. I—LEGISLATIVE DEPARTMENT
(1974) (limits on delegation are “less stringent” when delegation is made to an In-
dian tribe that can exercise independent sovereign authority over the subject mat-
ter).
150 See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REV.
545 (1925); Holcomb, The States as Agents of the Nation, 3 SELECTED ESSAYS ON CON-
STITUTIONAL LAW 1187 (1938).
151 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (duty to deliver fugitive
slave); Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) (holding that Congress
could not compel a governor to extradite a fugitive). Doubts over Congress’s power
to compel extradition were not definitively removed until Puerto Rico v. Branstad,
483 U.S. 219 (1987), in which the Court overruled Dennison.
152 245 U.S. 366, 389 (1918).
153 E.g., Pub. L. 94–435, title III, 90 Stat. 1394, 15 U.S.C. § 15c (state attorneys
general may bring antitrust parens patriae actions); Medical Waste Tracking Act,
Pub. L. 100–582, 102 Stat. 2955, 42 U.S.C. § 6992f (states may impose civil and
possibly criminal penalties against violators of the law).
154 See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President Reagan). The only
operative, Inc., 307 U.S. 533, 577 (1939); Wickard v. Filburn, 317 U.S. 111, 115–116
(1942); United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. denied, 493 U.S.
1094 (1990).
ART. I—LEGISLATIVE DEPARTMENT 91
In two subsequent cases, the Court referred to Schechter as having struck down a
delegation for its lack of standards. Mistretta v. United States, 488 U.S. 361, 373
n.7 (1989); Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001).
162 298 U.S. 238 (1936). But compare Sunshine Anthracite Coal Co. v. Adkins,
310 U.S. 381 (1940) (upholding a delegation in the Bituminous Coal Act of 1937).
92 ART. I—LEGISLATIVE DEPARTMENT
ter due process.163 And several later cases have upheld delegations
to private entities.164
Even though the Court has upheld some delegations to private
entities by reference to cases involving delegations to public agen-
cies, some uncertainty remains as to whether identical standards
apply in the two situations. Schechter contrasted the National In-
dustrial Recovery Act’s broad and virtually standardless delegation
to the President, assisted by private trade groups,165 with other broad
delegations of authority to administrative agencies, characterized
by the Court as bodies of experts “required to act upon notice and
hearing,” and further limited by the requirement that binding or-
ders must be “supported by findings of fact which in turn are sus-
tained by evidence.” 166 The absence of these procedural protec-
tions, designed to ensure fairness—as well as the possible absence
of impartiality identified in Carter Coal—could be cited to support
closer scrutiny of private delegations. Although the Court has em-
phasized the importance of administrative procedures in upholding
broad delegations to administrative agencies,167 it has not, since
Schechter and Carter Coal, relied on the distinction to strike down
a private delegation.
care claims, without right of appeal, by hearing officer appointed by private insur-
ance carrier upheld under due process challenge); Association of Amer. Physicians
& Surgeons v. Weinberger, 395 F. Supp. 125 (N.D. Ill.) (three-judge court) (delega-
tion to Professional Standards Review Organization), aff’d per curiam, 423 U.S. 975
(1975); Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980) (Sec-
retary authorized to adopt interim OSHA standards produced by private organiza-
tion). Executive Branch objections to these kinds of delegations have involved ap-
pointments clause arguments rather than delegation issues per se.
165 The Act conferred authority on the President to approve the codes of compe-
tition, either as proposed by the appropriate trade group, or with conditions that he
added. Thus the principal delegation was to the President, with the private trade
groups being delegated only recommendatory authority. 295 U.S. at 538–39.
166 295 U.S. at 539.
167 See, e.g., Yakus v. United States, 321 U.S. 414, 424–25 (1944).
168 Lichter v. United States, 334 U.S. 742, 778–79 (1948).
ART. I—LEGISLATIVE DEPARTMENT 93
169 490 U.S. 212, 223 (1989). In National Cable Television Ass’n v. United States,
415 U.S. 336, 342 (1974), and FPC v. New England Power Co., 415 U.S. 345 (1974),
the Court had appeared to suggest that delegation of the taxing power would be
fraught with constitutional difficulties. It is difficult to discern how this view could
have been held after the many cases sustaining delegations to fix tariff rates, which
are in fact and in law taxes. J. W. Hampton, Jr. & Co. v. United States, 276 U.S.
394 (1928); Field v. Clark, 143 U.S. 649 (1892); see also FEA v. Algonquin SNG, Inc.,
426 U.S. 548 (1976) (delegation to President to raise license “fees” on imports when
necessary to protect national security). Nor should doubt exist respecting the appro-
priations power. See Synar v. United States, 626 F. Supp. 1374, 1385–86 (D.D.C.)
(three-judge court), aff’d on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714
(1986).
170 490 U.S. at 221. Nor is there basis for distinguishing the other powers enu-
merated in § 8. See, e.g., Loving v. United States, 517 U.S. 748 (1996). But see Touby
v. United States, 500 U.S. 160, 166 (1991) (it is “unclear” whether a higher stan-
dard applies to delegations of authority to issue regulations that contemplate crimi-
nal sanctions), discussed in the next section.
171 Touby v. United States, 500 U.S. 160, 166 (1991).
94 ART. I—LEGISLATIVE DEPARTMENT
less the words of the statute plainly impose it.” 172 Both Schechter 173
and Panama Refining 174—the only two cases in which the Court
has invalidated delegations—involved broad delegations of power to
“make federal crimes of acts that never had been such before.” 175
Thus, Congress must provide by statute that violation of the stat-
ute’s terms—or of valid regulations issued pursuant thereto—shall
constitute a crime, and the statute must also specify a permissible
range of penalties. Punishment in addition to that authorized in
the statute may not be imposed by administrative action.176
However, once Congress has exercised its power to declare cer-
tain acts criminal, and has set a range of punishment for viola-
tions, authority to flesh out the details may be delegated. Congress
may provide that violation of valid administrative regulations shall
be punished as a crime.177 For example, the Court has upheld a
delegation of authority to classify drugs as “controlled substances,”
and thereby to trigger imposition of criminal penalties, set by stat-
ute, that vary according to the level of a drug’s classification by the
Attorney General.178
Congress may also confer on administrators authority to pre-
scribe criteria for ascertaining an appropriate sentence within the
range between the maximum and minimum penalties that are set
by statute. The Court upheld Congress’s conferral of “significant dis-
cretion” on the Sentencing Commission to set binding sentencing
guidelines establishing a range of determinate sentences for all cat-
egories of federal offenses and defendants.179 Although the Commis-
sion was given significant discretionary authority “to determine the
relative severity of federal crimes, . . . assess the relative weight of
172 Tiffany v. National Bank of Missouri, 85 U.S. (18 Wall.) 409, 410 (1873).
173 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
174 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
175 Fahey v. Mallonee, 332 U.S. 245, 249 (1947).
176 L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) (“[I]t is for Congress
to prescribe the penalties for the laws which it writes. It would transcend both the
judicial and the administrative function to make additions to those which Congress
has placed behind a statute”).
177 United States v. Grimaud, 220 U.S. 506 (1911). The Forest Reserve Act at
issue in Grimaud clearly provided for punishment for violation of “rules and regula-
tions of the Secretary.” The Court in Grimaud distinguished United States v. Eaton,
144 U.S. 677 (1892), which had held that authority to punish for violation of a regu-
lation was lacking in more general language authorizing punishment for failure to
do what was “required by law.” 220 U.S. at 519. Extension of the principle that pe-
nal statutes should be strictly construed requires that the prohibited acts be clearly
identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 614, 621
(1946). The Court summarized these cases in Loving v. United States, 517 U.S. 748
(1996), drawing the conclusion that “there is no absolute rule . . . against Con-
gress’s delegation of authority to define criminal punishments.”
178 Touby v. United States, 500 U.S. 160 (1991).
179 Mistretta v. United States, 488 U.S. 361 (1989).
ART. I—LEGISLATIVE DEPARTMENT 95
180 488 U.S. at 377–78. “As for every other offense within the Commission’s ju-
risdiction, the Commission could include the death penalty within the guidelines only
if that punishment was authorized in the first instance by Congress and only if such
inclusion comported with the substantial guidance Congress gave the Commission
in fulfilling its assignments.” Id. at 378 n.11.
181 United States v. Robel, 389 U.S. 258, 269 (1967) (Justice Brennan concur-
ring). The view was specifically rejected by Justices White and Harlan in dissent,
id. at 288–89, and ignored by the majority.
182 Kent v. Dulles, 357 U.S. 116, 129 (1958).
183 Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968);
Greene v. McElroy, 360 U.S. 474, 506–08 (1959) (Court will not follow traditional
principles of congressional acquiescence in administrative interpretation to infer a
delegation of authority to impose an industrial security clearance program that lacks
the safeguards of due process). More recently, the Court has eschewed even this lim-
ited mode of construction. Haig v. Agee, 453 U.S. 280 (1981).
184 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5-to-4 decision). The regula-
tion was reissued by the President, E. O. 11935, 3 C.F.R. 146 (1976), reprinted in 5
U.S.C. § 3301 (app.), and sustained in Vergara v. Hampton, 581 F.2d 1281 (7th Cir.
1978).
96 ART. I—LEGISLATIVE DEPARTMENT
CONGRESSIONAL INVESTIGATIONS
Source of the Power to Investigate
No provision of the Constitution expressly authorizes either house
of Congress to make investigations and exact testimony to the end
that it may exercise its legislative functions effectively and advis-
edly. But such a power had been frequently exercised by the Brit-
ish Parliament and by the Assemblies of the American Colonies prior
to the adoption of the Constitution.185 It was asserted by the House
of Representatives as early as 1792 when it appointed a committee
to investigate the defeat of General St. Clair and his army by the
Indians in the Northwest and empowered it to “call for such per-
sons, papers, and records, as may be necessary to assist their inqui-
ries.” 186
The Court has long since accorded its agreement with Con-
gress that the investigatory power is so essential to the legislative
function as to be implied from the general vesting of legislative power
in Congress. “We are of the opinion,” wrote Justice Van Devanter
for a unanimous Court, “that the power of inquiry—with process to
enforce it—is an essential and appropriate auxiliary to the legisla-
tive function. . . . A legislative body cannot legislate wisely or effec-
tively in the absence of information respecting the conditions which
the legislation is intended to affect or change; and where the legis-
lative body does not itself possess the requisite information—which
not infrequently is true—recourse must be had to others who pos-
sess it. Experience has taught that mere requests for such informa-
tion often are unavailing, and also that information which is volun-
teered is not always accurate or complete; so some means of compulsion
are essential to obtain what is needed. All this was true before and
when the Constitution was framed and adopted. In that period the
power of inquiry—with enforcing process—was regarded and em-
ployed as a necessary and appropriate attribute of the power to leg-
islate—indeed, was treated as inhering in it. Thus there is ample
warrant for thinking, as we do, that the constitutional provisions
which commit the legislative function to the two houses are in-
tended to include this attribute to the end that the function may
be effectively exercised.” 187
And, in a 1957 opinion generally hostile to the exercise of the
investigatory power in the post-War years, Chief Justice Warren did
185 Landis, Constitutional Limitations on the Congressional Power of Investiga-
tion, 40 HARV. L. REV. 153, 159–166 (1926); M. DIMOCK, CONGRESSIONAL INVESTIGATING COM-
MITTEES ch. 2 (1929).
186 3 ANNALS OF CONGRESS 490–494 (1792); 3 A. HINDS’ PRECEDENTS OF THE HOUSE OF
not question the basic power. “The power of the Congress to con-
duct 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 in-
cludes surveys of defects in our social, economic or political system
for the purpose of enabling the Congress to remedy them. It com-
prehends probes into departments of the Federal Government to ex-
pose corruption, inefficiency or waste.” 188 Justice Harlan summa-
rized the matter in 1959. “The power of inquiry has been employed
by Congress throughout our history, over the whole range of the
national interests concerning which Congress might legislate or de-
cide upon due investigation not to legislate; it has similarly been
utilized in determining what to appropriate from the national purse,
or whether to appropriate. The scope of the power of inquiry, in short,
is as penetrating and far-reaching as the potential power to enact
and appropriate under the Constitution.” 189
Broad as the power of inquiry is, it is not unlimited. The power
of investigation may properly be employed only “in aid of the legis-
lative function.” 190 Its outermost boundaries are marked, then, by
the outermost boundaries of the power to legislate. In principle, the
Court is clear on the limitations, clear “that neither house of Con-
gress possesses a ‘general power of making inquiry into the private
affairs of the citizen’; that the power actually possessed is limited
to inquiries relating to matters of which the particular house ‘has
jurisdiction’ and in respect of which it rightfully may take other ac-
tion; that if the inquiry relates to ‘a matter wherein relief or re-
dress could be had only by a judicial proceeding’ it is not within
the range of this power, but must be left to the courts, conformably
to the constitutional separation of governmental powers; and that
for the purpose of determining the essential character of the in-
quiry recourse must be had to the resolution or order under which
it is made.” 191
In practice, much of the litigated dispute has been about the
reach of the power to inquire into the activities of private citizens;
inquiry into the administration of laws and departmental corrup-
tion, while of substantial political consequence, has given rise to
fewer judicial precedents.
192 In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed a letter to
the House of Representatives advising them of his resignation from office and invit-
ing an investigation of his office. Such an inquiry was made. 10 ANNALS OF CONGRESS
786–788 (1800).
193 8 CONG. DEB. 2160 (1832).
194 13 CONG. DEB. 1057–1067 (1836).
195 H. R. REP. NO. 194, 24th Congress, 2d sess., 1, 12, 31 (1837).
196 CONG. GLOBE, 36th Congress, 1st sess., 1100–1109 (1860).
197 103 U.S. 168 (1881).
198 The Court held that inasmuch as the entire proceedings arising out of the
cial relief in the bankruptcy proceeding, the House had exceeded its powers in au-
thorizing the inquiry. But see Hutcheson v. United States, 369 U.S. 599 (1962).
199 273 U.S. 135, 177, 178 (1927).
200 The topic of executive privilege, the claimed right of the President and at
least some of his executive branch officers to withhold from Congress information
desired by it or by one of its committees, is addressed in Article II, The Presidential
Aegis: Demands for Papers. Although the issue has been one of contention between
the two branches of Government since Washington’s refusal in 1796 to submit cer-
tain correspondence to the House of Representatives relating to treaty negotiations,
it has only relatively recently become a judicial issue.
201 In re Chapman, 166 U.S. 661 (1897).
202 279 U.S. 597 (1929).
203 4 CONG. DEB. 862, 868, 888, 889 (1827).
204 Kilbourn v. Thompson, 103 U.S. 168 (1881).
100 ART. I—LEGISLATIVE DEPARTMENT
serts that, because Congress could itself have made the inquiry to appraise its regu-
latory activities, it could delegate the power of inquiry to the agency to which it had
delegated the regulatory function.
ART. I—LEGISLATIVE DEPARTMENT 101
States, 367 U.S. 456 (1961); cf. Sweezy v. New Hampshire, 354 U.S. 234 (1957) (state
inquiry).
214 Watkins v. United States, 354 U.S. 178 (1957); Flaxer v. United States, 358
U.S. 147 (1958); Wilkinson v. United States, 365 U.S. 399 (1961).
215 McPhaul v. United States, 364 U.S. 372 (1960).
216 Hutcheson v. United States, 369 U.S. 599 (1962).
217 Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393
ever, noted: “We are not concerned with the power of the Congress to inquire into
and publicize corruption, maladministration or inefficiency in agencies of the Govern-
ment. That was the only kind of activity described by Woodrow Wilson in Congres-
sional Government when he wrote: ‘The informing function of Congress should be
preferred even to its legislative function.’ Id. at 303. From the earliest times in its
history, the Congress has assiduously performed an ‘informing function’ of this na-
ture.” Id. at 200 n.33.
In his book, Wilson continued, following the sentence quoted by the Chief Jus-
tice: “The argument is not only that discussed and interrogated administration is
the only pure and efficient administration, but, more than that, that the only really
self-governing people is that people which discusses and interrogates its administra-
tion. . . . It would be hard to conceive of there being too much talk about the prac-
tical concerns . . . of government.” CONGRESSIONAL GOVERNMENT (1885), 303–304. For
contrasting views of the reach of this statement, compare United States v. Rumely,
102 ART. I—LEGISLATIVE DEPARTMENT
United States, 365 U.S. 399, 415, 423 (1961); Braden v. United States, 365 U.S. 431,
446 (1961); but see DeGregory v. Attorney General of New Hampshire, 383 U.S. 825
(1966) (a state investigative case).
220 “Legislative committees have been charged with losing sight of their duty of
upon the committee, the validity of the resolution would be subject to doubt on First
Amendment principles. Justices Black and Douglas would have construed the reso-
lution as granting the authority and would have voided it under the First Amend-
ment. 345 U.S. at 48 (concurring opinion).
232 384 U.S. 702 (1966).
233 354 U.S. 178 (1957).
104 ART. I—LEGISLATIVE DEPARTMENT
sal of a contempt conviction on the ground that the questions did not relate to a
subject “within the subcommittee’s scope of inquiry,” arising out of a hearing pertain-
ing to a recantation of testimony by a witness in which the inquiry drifted into a
discussion of legislation barring Communists from practice at the federal bar, the
unanswered questions being asked then; and Flaxer v. United States, 358 U.S. 147
(1958), a reversal for refusal to produce membership lists because of an ambiguity
in the committee’s ruling on the time of performance; and Scull v. Virginia ex rel.
Committee, 359 U.S. 344 (1959), a reversal on a contempt citation before a state
legislative investigating committee on pertinency grounds.
ART. I—LEGISLATIVE DEPARTMENT 105
237 Notice should be taken, however, of two cases that, though decided four and
five years after Watkins, involved persons who were witnesses before the Un-
American Activities Committee either shortly prior to or shortly following Watkins’
appearance and who were cited for contempt before the Supreme Court decided Watkins.
In Deutch v. United States, 367 U.S. 456 (1961), involving an otherwise coopera-
tive witness who had refused to identify certain persons with whom he had been
associated at Cornell in Communist Party activities, the Court agreed that Deutch
had refused on grounds of moral scruples to answer the questions and had not chal-
lenged them as not pertinent to the inquiry, but the majority ruled that the govern-
ment had failed to establish at trial the pertinency of the questions, thus vitiating
the conviction. Justices Frankfurter, Clark, Harlan, and Whittaker dissented, argu-
ing that any argument on pertinency had been waived but in any event thinking it
had been established. Id. at 472, 475.
In Russell v. United States, 369 U.S. 749 (1962), the Court struck down con-
tempt convictions for insufficiency of the indictments. Indictments, which merely set
forth the offense in the words of the contempt statute, the Court asserted, in alleg-
ing that the unanswered questions were pertinent to the subject under inquiry but
not identifying the subject in detail, are defective because they do not inform defen-
dants what they must be prepared to meet and do not enable courts to decide whether
the facts alleged are sufficient to support convictions. Justice Stewart for the Court
noted that the indicia of subject matter under inquiry were varied and contradic-
tory, thus necessitating a precise governmental statement of particulars. Justices
Harlan and Clark in dissent contended that it was sufficient for the government to
establish pertinency at trial and noted that no objections relating to pertinency had
been made at the hearings. Id. at 781, 789–793. Russell was cited in the per curiam
reversals in Grumman v. United States, 370 U.S. 288 (1962), and Silber v. United
States, 370 U.S. 717 (1962).
238 360 U.S. 109 (1959).
239 365 U.S. 399 (1961).
106 ART. I—LEGISLATIVE DEPARTMENT
384 U.S. 702 (1966), in which the Court noted that, although a committee rule re-
quired the approval of a majority of the Committee before a “major” investigation
was initiated, such approval had not been sought before a Subcommittee proceeded.
244 In Christoffel v. United States, 338 U.S. 84 (1949), the Court held that a
witness can be found guilty of perjury only where a quorum of the committee is
present at the time the perjury is committed; it is not enough to prove that a quo-
rum was present when the hearing began. But, in United States v. Bryan, 339 U.S.
323 (1950), the Court ruled that a quorum was not required under the statute pun-
ishing refusal to honor a valid subpoena issued by an authorized committee.
ART. I—LEGISLATIVE DEPARTMENT 107
252 Justice Harlan wrote the opinion of the Court which Justices Clark and Stew-
art joined. Justice Brennan concurred solely because the witness had not claimed
the privilege against self-incrimination but he would have voted to reverse the con-
viction had there been a claim. Chief Justice Warren and Justice Douglas dissented
on due process grounds. Justices Black, Frankfurter, and White did not participate.
At the time of the decision, the Self-incrimination Clause did not restrain the states
through the Fourteenth Amendment, so that it was no violation of the clause for
either the Federal Government or the states to compel testimony which would in-
criminate the witness in the other jurisdiction. Cf. United States v. Murdock, 284
U.S. 141 (1931); Knapp v. Schweitzer, 357 U.S. 371 (1958). The Court has since re-
versed itself, Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Comm’n,
378 U.S. 52 (1964), thus leaving the vitality of Hutcheson doubtful.
253 The matter is discussed fully in the section on the First Amendment but a
good statement of the balancing rule may be found in Younger v. Harris, 401 U.S.
37, 51 (1971), by Justice Black, supposedly an absolutist on the subject: “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 Amend-
ment rights, it is well settled that the statute can be upheld if the effect on speech
is minor in relation to the need for control of the conduct and the lack of alternative
means for doing so.”
254 Barenblatt v. United States, 360 U.S. 109, 126 (1959).
255 Barenblatt v. United States, 360 U.S. 109 (1959).
ART. I—LEGISLATIVE DEPARTMENT 109
cited.
261 Cf. McPhaul v. United States, 364 U.S. 372 (1960).
262 273 U.S. 135 (1927).
263 19 U.S. (6 Wheat.) 204 (1821).
264 The contempt consisted of an alleged attempt to bribe a Member of the House
for his assistance in passing a claims bill. The case was a civil suit brought by An-
derson against the Sergeant at Arms of the House for assault and battery and false
imprisonment. Cf. Kilbourn v. Thompson, 103 U.S. 168 (1881). The power of a legis-
lative body to punish for contempt one who disrupts legislative business was reaf-
firmed in Groppi v. Leslie, 404 U.S. 496 (1972), but a unanimous Court there held
that due process required a legislative body to give a contemnor notice and an op-
110 ART. I—LEGISLATIVE DEPARTMENT
portunity to be heard prior to conviction and sentencing. Although this case dealt
with a state legislature, there is no question it would apply to Congress as well.
265 243 U.S. 521 (1917).
266 243 U.S. at 542.
267 294 U.S. 125 (1935).
268 294 U.S. at 150.
269 19 U.S. (6 Wheat.) 204 (1821).
270 Act of January 24, 1857, 11 Stat. 155. With minor modification, this statute
Because Congress has invoked the aid of the federal judicial sys-
tem in protecting itself against contumacious conduct, the conse-
quence, the Court has asserted numerous times, is that the duty
has been conferred upon the federal courts to accord a person pros-
ecuted for his statutory offense every safeguard that the law ac-
cords in all other federal criminal cases,272 and the discussion in
previous sections of many reversals of contempt convictions bears
witness to the assertion in practice. What constitutional protec-
tions ordinarily necessitated by due process requirements, such as
notice, right to counsel, confrontation, and the like, prevail in a con-
tempt trial before the bar of one House or the other is an open ques-
tion.273
It has long been settled that the courts may not intervene di-
rectly to restrain the carrying out of an investigation or the man-
ner of an investigation, and that a witness who believes the in-
quiry to be illegal or otherwise invalid in order to raise the issue
must place himself in contempt and raise his beliefs as affirmative
defenses on his criminal prosecution. This understanding was sharply
reinforced when the Court held that the speech-or-debate clause ut-
terly foreclosed judicial interference with the conduct of a congres-
sional investigation, through review of the propriety of subpoenas
or otherwise.274 It is only with regard to the trial of contempts that
the courts may review the carrying out of congressional investiga-
tions and may impose constitutional and other constraints.
272 Sinclair v. United States, 279 U.S. 263, 296–297 (1929); Watkins v. United
States, 354 U.S. 178, 207 (1957); Sacher v. United States, 356 U.S. 576, 577 (1958);
Flaxer v. United States, 358 U.S. 147, 151 (1958); Deutch v. United States, 367 U.S.
456, 471 (1961); 858 v. United States, 369 U.S. 749, 755 (1962). Protesting the Court’s
reversal of several contempt convictions over a period of years, Justice Clark was
moved to suggest that “[t]his continued frustration of the Congress in the use of the
judicial process to punish those who are contemptuous of its committees indicates
to me that the time may have come for Congress to revert to ‘its original practice of
utilizing the coercive sanction of contempt proceedings at the bar of the House [af-
fected].’ ” Id. at 781; Watkins, 354 U.S. at 225.
273 Cf. Groppi v. Leslie, 404 U.S. 496 (1972).
274 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975).
112 ART. I—LEGISLATIVE DEPARTMENT
CONGRESSIONAL DISTRICTING
A major innovation in constitutional law in recent years has been
the development of a requirement that election districts in each state
be structured so that each elected representative represents sub-
stantially equal populations. Although this requirement has gener-
ally been gleaned from the Equal Protection Clause of the Four-
teenth Amendment,275 in Wesberry v. Sanders,276 the Court held that
“construed in its historical context, the command of Art. I, § 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
election is to be worth as much as another’s.” 277
Court involvement in this issue developed slowly. In our early
history, state congressional delegations were generally elected at-
large instead of by districts, and even when Congress required single-
member districting 278 and later added a provision for equally popu-
lated districts 279 the relief sought by voters was action by the House
refusing to seat Members-elect selected under systems not in com-
pliance with the federal laws.280 The first series of cases did not
reach the Supreme Court, in fact, until the states began redistrict-
ing through the 1930 Census, and these were resolved without reach-
ing constitutional issues and indeed without resolving the issue
whether such voter complaints were justiciable at all.281 In the late
1940s and the early 1950s, the Court used the “political question”
doctrine to decline to adjudicate districting and apportionment suits,
a position changed in Baker v. Carr.282
For the Court in Wesberry,283 Justice Black argued that a read-
ing of the debates of the Constitutional Convention conclusively dem-
onstrated that the Framers had meant, in using the phrase “by the
People,” to guarantee equality of representation in the election of
Members of the House of Representatives.284 Justice Harlan in dis-
sent argued that the statements on which the majority relied had
275 Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and district-
ing); Hadley v. Junior College Dist., 397 U.S. 50 (1970) (local governmental units).
276 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964).
277 376 U.S. at 7–8.
278 Act of June 25, 1842, 5 Stat. 491.
279 Act of February 2, 1872, 17 Stat. 28.
280 The House uniformly refused to grant any such relief. 1 A. HINDS’ PRECEDENTS
Carroll v. Becker, 285 U.S. 380 (1932); Wood v. Broom, 287 U.S. 1 (1932); Mahan v.
Hume, 287 U.S. 575 (1932).
282 369 U.S. 186 (1962).
283 Wesberry v. Sanders, 376 U.S. 1 (1964).
284 376 U.S. at 7–18.
ART. I—LEGISLATIVE DEPARTMENT 113
ity.
292 394 U.S. at 533–34. The argument is not “legally acceptable.”
293 394 U.S. at 534–35. Justice Brennan questioned whether anything less than
a total population basis was permissible but noted that the legislature in any event
had made no consistent application of the rationale.
114 ART. I—LEGISLATIVE DEPARTMENT
294 394 U.S. at 535. This justification would be acceptable if an attempt to estab-
court’s own plan for districting, instructing that court to adhere more closely to the
legislature’s own plan insofar as it reflected permissible goals of the legislators, re-
flecting an ongoing deference to legislatures in this area to the extent possible.
297 Karcher v. Daggett, 462 U.S. 725, 733 (1983). Illustrating the point about
apportionment case, but congressional districting is also covered. See Badham v. Eu,
694 F. Supp. 664 (N.D. Cal. 1988) (three-judge court) (adjudicating partisan gerry-
mandering claim as to congressional districts but deciding against plaintiffs on mer-
its), aff’d, 488 U.S. 1024 (1988); Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992)
(three-judge court) (same), aff’d, 506 U.S. 801 (1992); Vieth v. Jubelirer, 541 U.S.
267 (2004) (same); League of United Latin American Citizens v. Perry, 548 U.S. 399
(2006) (same). Additional discussion of this issue appears under Amendment 14, The
New Equal Protection, Apportionment and Districting.
ART. I—LEGISLATIVE DEPARTMENT 115
ELECTOR QUALIFICATIONS
It was the original constitutional scheme to vest the determina-
tion of qualifications for electors in congressional elections 299 solely
in the discretion of the states, save only for the express require-
ment that the states could prescribe no qualifications other than
those provided for voters for the more numerous branch of the leg-
islature.300 This language has never been expressly changed, but
the discretion of the states—and not only with regard to the quali-
fications of congressional electors—has long been circumscribed by
express constitutional limitations 301 and by judicial decisions.302 Fur-
ther, beyond the limitation of discretion on the part of the states,
Congress has assumed the power, with judicial acquiescence, to leg-
islate to provide qualifications at least with regard to some elec-
tions.303 Thus, in the Voting Rights Act of 1965 304 Congress legis-
lated changes of a limited nature in the literacy laws of some of
the States,305 and in the Voting Rights Act Amendments of 1970 306
Congress successfully lowered the minimum voting age in federal
elections 307 and prescribed residency qualifications for presidential
elections,308 the Court striking down an attempt to lower the mini-
mum voting age for all elections.309 These developments greatly lim-
ited the discretion granted in Article I, § 2, cl. 1, and are more fully
dealt with in the treatment of § 5 of the Fourteenth Amendment.
Notwithstanding the vesting of discretion to prescribe voting quali-
fications in the states, conceptually the right to vote for United States
299 The clause refers only to elections to the House of Representatives, of course,
and, inasmuch as Senators were originally chosen by state legislatures and presiden-
tial electors as the States would provide, it was only with the qualifications for these
voters with which the Constitution was originally concerned.
300 Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1875); Breedlove v. Suttles,
302 U.S. 277, 283 (1937). See 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES 576–585 (1833).
301 The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments lim-
ited the States in the setting of qualifications in terms of race, sex, payment of poll
taxes, and age.
302 The Supreme Court’s interpretation of the equal protection clause has ex-
cluded certain qualifications. E.g., Carrington v. Rash, 380 U.S. 89 (1965); Kramer
v. Union Free School Dist., 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399
U.S. 204 (1970). The excluded qualifications were in regard to all elections.
303 The power has been held to exist under § 5 of the Fourteenth Amendment.
Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970);
City of Rome v. United States, 446 U.S. 156 (1980).
304 § 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended.
305 Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).
306 Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb.
307 Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970).
308 Oregon v. Mitchell, 400 U.S. 112, 134, 147–150, 236–239, 285–292 (1970).
309 Oregon v. Mitchell, 400 U.S. 112, 119–131, 152–213, 293–296 (1970).
116 ART. I—LEGISLATIVE DEPARTMENT
310 “The right to vote for members of the Congress of the United States is not
derived merely from the constitution and laws of the state in which they are cho-
sen, but has its foundation in the Constitution of the United States.” Ex parte Yarbrough,
110 U.S. 651, 663 (1884). See also Wiley v. Sinkler, 179 U.S. 58, 62 (1900); Swafford
v. Templeton, 185 U.S. 487, 492 (1902); United States v. Classic, 313 U.S. 299, 315,
321 (1941).
311 United States v. Mosley, 238 U.S. 383 (1915).
312 United States v. Classic, 313 U.S. 299, 315 (1941).
313 See S. REP. NO. 904, 74th Congress, 1st sess. (1935), reprinted in 79 CONG.
the legislature.” 315 Until the Civil War, the issue was not raised,
the only actions taken by either House conforming to the idea that
the qualifications for membership could not be enlarged by statute
or practice.316 But in the passions aroused by the fratricidal con-
flict, Congress enacted a law requiring its members to take an oath
that they had never been disloyal to the National Government.317
Several persons were refused seats by both Houses because of charges
of disloyalty,318 and thereafter House practice, and Senate practice
as well, was erratic.319 But in Powell v. McCormack,320 it was con-
clusively established that the qualifications listed in clause 2 are
exclusive 321 and that Congress could not add to them by excluding
Members-elect not meeting the additional qualifications.322
Powell was excluded from the 90th Congress on grounds that
he had asserted an unwarranted privilege and immunity from the
process of a state court, that he had wrongfully diverted House funds
for his own uses, and that he had made false reports on the expen-
ditures of foreign currency.323 The Court determination that he had
been wrongfully excluded proceeded in the main from the Court’s
315 No. 60 (J. Cooke ed. 1961), 409. See also 2 J. STORY, COMMENTARIES ON THE CON-
STITUTION OF THE UNITED STATES §§ 623–627 (1833) (relating to the power of the States
to add qualifications).
316 All the instances appear to be, however, cases in which the contest arose out
resigning earlier in the same Congress when expulsion proceedings were instituted
against him for selling appointments to the Military Academy. Id. at § 464. A Member-
elect was excluded in 1899 because of his practice of polygamy, id. at 474–80, but
the Senate refused, after adopting a rule requiring a two-thirds vote, to exclude a
Member-elect on those grounds. Id. at §§ 481–483. The House twice excluded a so-
cialist Member-elect in the wake of World War I on allegations of disloyalty. 6 CAN-
NON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 56–58 (1935). See also S. REP. NO.
1010, 77th Congress, 2d sess. (1942), and R. Hupman, Senate Election, Expulsion
and Censure Cases From 1789 to 1960, S. DOC. NO. 71, 87th Congress, 2d sess. (1962),
140 (dealing with the effort to exclude Senator Langer of North Dakota).
320 395 U.S. 486 (1969). The Court divided eight to one, Justice Stewart dissent-
ing on the ground that the case was moot. Powell’s continuing validity was affirmed
in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the Court in its
holding that the qualifications set out in the Constitution are exclusive and may not
be added to by either Congress or the states, id. at 787–98, and by the dissenters,
who would hold that Congress, for different reasons could not add to qualifications,
although the states could. Id. at 875–76.
321 The Court declined to reach the question whether the Constitution in fact
does impose other qualifications. 395 U.S. at 520 n.41 (possibly Article I, § 3, cl. 7,
disqualifying persons impeached, Article I, § 6, cl. 2, incompatible offices, and § 3 of
the Fourteenth Amendment). It is also possible that the oath provision of Article VI,
cl. 3, could be considered a qualification. See Bond v. Floyd, 385 U.S. 116, 129–131
(1966).
322 395 U.S. at 550.
323 H. REP. NO. 27, 90th Congress, 1st sess. (1967); 395 U.S. at 489–493.
118 ART. I—LEGISLATIVE DEPARTMENT
330 The protection of the voters’ interest in being represented by the person of
their choice is thus analogized to their constitutionally secured right to cast a ballot
and have it counted in general elections, Ex parte Yarbrough, 110 U.S. 651 (1884),
and in primary elections, United States v. Classic, 313 U.S. 299 (1941), to cast a
ballot undiluted in strength because of unequally populated districts, Wesberry v.
Sanders, 376 U.S. 1 (1964), and to cast a vote for candidates of their choice unfet-
tered by onerous restrictions on candidate qualification for the ballot. Williams v.
Rhodes, 393 U.S. 23 (1968).
331 Bond v. Floyd, 385 U.S. 116 (1966).
332 385 U.S. at 129–31, 132, 135.
333 385 U.S. at 135 n.13.
334 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 414 (1907).
120 ART. I—LEGISLATIVE DEPARTMENT
the opinion of the Court) and Justices Kennedy, Souter, Ginsburg, and Breyer. Dis-
senting were Justice Thomas (writing the opinion) and Chief Justice Rehnquist and
Justices O’Connor and Scalia. Id. at 845.
336 Article I, § 2, cl. 2, provides that a person may qualify as a Representative if
she is at least 25 years old, has been a United States citizen for at least 7 years,
and is an inhabitant, at the time of the election, of the state in which she is chosen.
The qualifications established for Senators, Article I, § 3, cl. 3, are an age of 30 years,
nine years’ citizenship, and being an inhabitant of the state at the time of election.
337 The four-Justice dissent argued that while Congress has no power to in-
tives among the several States was changed by the Fourteenth Amendment, § 2 and
as to taxes on incomes without apportionment, by the Sixteenth Amendment.
122 ART. I—LEGISLATIVE DEPARTMENT
held that the decision of the Secretary of Commerce not to conduct a post-
enumeration survey and statistical adjustment for an undercount in the 1990 Cen-
sus was reasonable and within the bounds of discretion conferred by the Constitu-
tion and statute; and Franklin v. Massachusetts, 505 U.S. 788 (1992), upholding the
practice of the Secretary of Commerce in allocating overseas federal employees and
military personnel to the states of last residence. The mandate of an enumeration
of “their respective numbers” was complied with, it having been the practice since
the first enumeration to allocate persons to the place of their “usual residence,” and
to construe both this term and the word “inhabitant” broadly to include people tem-
porarily absent.
348 Knox v. Lee (Legal Tender Cases), 79 U.S. (12 Wall.) 457, 536 (1971) (“Who
PORTIONMENT (1941).
350 46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. § 2a.
124 ART. I—LEGISLATIVE DEPARTMENT
islature thereof, for six Years; and each Senator shall have one
vote].355
Clause 2. Immediately after they shall be assembled in Con-
sequence 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,356 [and if Vacancies hap-
pen by Resignation or otherwise, during the Recess of the Leg-
islature of any State, the Executive thereof may make tempo-
rary Appointments until the next Meeting of the Legislature, which
shall then fill such Vacancies].357
IN GENERAL
Clause 1 has been completely superseded by the Seventeenth
Amendment, and Clause 2 has been partially superseded.
IN GENERAL
The Supreme Court has not interpreted these clauses.
Clause 6. The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation. When the President of the United States
is tried, the Chief Justice shall preside: And no Person shall be
convicted without the Concurrence of two thirds of the Mem-
bers present.
Clause 7. Judgment in Cases of Impeachment shall not ex-
tend further than to removal from Office, and disqualification
to hold and enjoy any Office of honor, Trust or Profit under the
United States; but the Party convicted shall nevertheless be li-
able and subject to Indictment, Trial, Judgment and Punish-
ment, according to Law.
IN GENERAL
See analysis of impeachment under Article II, sec. 4.
REGULATION BY CONGRESS
By its terms, Art. I, § 4, cl. 1 empowers both Congress and state
legislatures to regulate the “times, places and manner of holding
elections for Senators and Representatives.” Not until 1842, when
it passed a law requiring the election of Representatives by dis-
tricts,358 did Congress undertake to exercise this power. In subse-
quent years, Congress expanded on the requirements, successively
adding contiguity, compactness, and substantial equality of popula-
358 5 Stat. 491 (1842). The requirement was omitted in 1850, 9 Stat. 428, but
into the matter divided, the majority resolving that Congress had no power to bind
the States in regard to their manner of districting, the minority contending to the
contrary. H. REP. NO. 60, 28th Congress, 1st sess. (1843). The basis of the majority
view was that while Article I, § 4 might give Congress the power to create the dis-
tricts itself, the clause did not authorize Congress to tell the state legislatures how
to do it if the legislatures were left the task of drawing the lines. L. SCHMECKEBIER,
CONGRESSIONAL APPORTIONMENT 135–138 (1941). This argument would not appear to be
maintainable in light of the language in Ex parte Siebold, 100 U.S. 371, 383–86 (1880).
361 46 Stat. 13 (1929). In 1967, Congress restored the single-member district re-
fication of a common day for the election of Representatives in all the states. 17
Stat. 28 (1872), 2 U.S.C. § 7.
363 Article I, § 4, and the Fifteenth Amendment have had quite different appli-
cations. The Court insisted that under the latter, while Congress could legislate to
protect the suffrage in all elections, it could do so only against state interference
based on race, color, or previous condition of servitude, James v. Bowman, 190 U.S.
127 (1903); United States v. Reese, 92 U.S. 214 (1876), whereas under the former it
could also legislate against private interference for whatever motive, but only in fed-
eral elections. Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Yarbrough, 110 U.S.
651 (1884).
364 The Enforcement Act of May 31, 1870, 16 Stat. 140; The Force Act of Febru-
ary 28, 1871, 16 Stat. 433; The Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The
text of these and other laws and the history of the enactments and subsequent de-
velopments are set out in R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A
SWORD (1947).
128 ART. I—LEGISLATIVE DEPARTMENT
tained in Ex parte Siebold, 100 U.S. 371 (1880), and Ex parte Yarbrough, 110 U.S.
651 (1884). The legislation pertaining to all elections was struck down as going be-
yond Congress’s power to enforce the Fifteenth Amendment. United States v. Reese,
92 U.S. 214 (1876).
366 28 Stat. 144 (1894).
367 Pub. L. 85–315, Part IV, § 131, 71 Stat. 634, 637 (1957); Pub. L. 86–449,
Title III, § 301, Title VI, 601, 74 Stat. 86, 88, 90 (1960); Pub. L. 88–352, Title I,
§ 101, 78 Stat. 241 (1964); Pub. L. 89–110, 79 Stat. 437 (1965); Pub. L. 90–284, Title
I, § 101, 82 Stat. 73 (1968); Pub. L. 91–285, 84 Stat. 314 (1970); Pub. L. 94–73, 89
Stat. 400 (1975); Pub. L. 97–205, 96 Stat. 131 (1982). Most of these statutes are
codified in 42 U.S.C. §§ 1971 et seq. The penal statutes are in 18 U.S.C. §§ 241–245.
368 Act of January 26, 1907, 34 Stat. 864, repealed by Pub. L. 94–283, Title II,
§ 201(a), 90 Stat. 496 (1976). Current law on the subject is codified at 2 U.S.C. § 441b.
369 Act of February 28, 1925, 43 Stat. 1070, 2 U.S.C. §§ 241–256. Comprehen-
sive regulation is now provided by the Federal Election Campaign Act of 1971, 86
Stat. 3, and the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263,
as amended, 90 Stat. 475, found in titles 2, 5, 18, and 26 of the U.S. Code. See
Buckley v. Valeo, 424 U.S. 1 (1976).
370 E.g., the Hatch Act, relating principally to federal employees and state and
v. United States, 256 U.S. 232 (1921), to the contrary has been vitiated. Cf. United
States v. Wurzbach, 280 U.S. 396 (1930).
374 United States v. Mosley, 238 U.S. 383 (1915); United States v. Saylor, 322
United States v. Gale, 109 U.S. 65 (1883); In re Coy, 127 U.S. 731 (1888).
380 Ex parte Siebold, 100 U.S. 371 (1880).
381 In Oregon v. Mitchell, 400 U.S. 112 (1970), however, Justice Black grounded
his vote to uphold the age reduction in federal elections and the presidential voting
residency provision sections of the Voting Rights Act Amendments of 1970 on this
clause. Id. at 119–35. Four Justices specifically rejected this construction, id. at 209–
12, 288–92, and the other four implicitly rejected it by relying on totally different
sections of the Constitution in coming to the same conclusions as did Justice Black.
130 ART. I—LEGISLATIVE DEPARTMENT
sible under 2 U.S.C. § 2a(c), a statutory provision that the Court construed as safe-
guarding to “each state full authority to employ in the creation of congressional dis-
tricts its own laws and regulations.” Id. at 19.
387 Id. at 18.
388 Id.
389 Id. at 24 (noting that “dictionaries, even those in circulation during the found-
ing era, capaciously define the word ‘legislature’ ” to include as “[t]he power that
makes laws” and “the Authority of making laws”).
390 Id. at 25 (“The dominant purpose of the Elections Clause . . . was to em-
power Congress to override state election rules, not to restrict the way States enact
legislation. . . . [T]he Clause ‘was the Framers’ insurance against the possibility that
ART. I—LEGISLATIVE DEPARTMENT 131
a State would refuse to provide for the election of representatives to the Federal
Congress.’ ”).
391 Id. at 30 (“The Framers may not have imagined the modern initiative pro-
cess in which the people of a State exercise legislative power coextensive with the
authority of an institutional legislature. But the invention of the initiative was in
full harmony with the Constitution’s conception of the people as the font of govern-
mental power.”).
392 Id. at 31, 33 (noting that it would be “perverse” to interpret the term “Legis-
lature” to exclude the initiative, because the initiative is intended to check legisla-
tors’ ability to determine the boundaries of the districts in which they run, and that
a contrary ruling would invalidate a number of other state provisions regarding ini-
tiatives and referendums).
393 Smiley v. Holm, 285 U.S. 355, 366 (1932).
394 See, e.g., Storer v. Brown, 415 U.S. 724 (1974) (restrictions on independent
“A Quorum To Do Business”
For many years the view prevailed in the House of Representa-
tives that it was necessary for a majority of the members to vote
on any proposition submitted to the House in order to satisfy the
constitutional requirement for a quorum. It was a common practice
for the opposition to break a quorum by refusing to vote. This was
changed in 1890, by a ruling made by Speaker Reed and later em-
bodied in Rule XV of the House, that members present in the cham-
ber but not voting would be counted in determining the presence of
a quorum.405 The Supreme Court upheld this rule in United States
v. Ballin,406 saying that the capacity of the House to transact busi-
ness is “created by the mere presence of a majority,” and that since
the Constitution does not prescribe any method for determining the
presence of such majority “it is therefore within the competency of
the House to prescribe any method which shall be reasonably cer-
tain to ascertain the fact.” 407 The rules of the Senate provide for
the ascertainment of a quorum only by a roll call,408 but in a few
cases it has held that if a quorum is present, a proposition can be
determined by the vote of a lesser number of members.409
400 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929).
401 In re Loney, 134 U.S. 372 (1890).
402 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 72–74, 180 (1936).
not prevent a state from conducting a recount of ballots cast in such an election any
more than it prevents the initial counting by a state. Roudebush v. Hartke, 405 U.S.
15 (1972).
405 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2895–2905 (1907).
406 144 U.S. 1 (1892).
407 144 U.S. at 5–6.
408 Rule V.
409 4 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2910–2915 (1907); 6
Rules of Proceedings
In the exercise of their constitutional power to determine their
rules of proceedings, the Houses of Congress may not “ignore con-
stitutional restraints or violate fundamental rights, and there should
be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be at-
tained. But within these limitations all matters of method are open
to the determination of the house. . . . The power to make rules is
not one which once exercised is exhausted. It is a continuous power,
always subject to be exercised by the house, and within the limita-
tions suggested, absolute and beyond the challenge of any other body
or tribunal.” 410 If a rule affects private rights, its construction be-
comes a judicial question. In United States v. Smith,411 the Court
held that the Senate’s reconsideration of a presidential nominee for
chairman of the Federal Power Commission, after it had confirmed
him and he had taken the oath of office, was not warranted by its
rules and did not deprive the appointee of his title to the office. In
Christoffel v. United States,412 a sharply divided Court upset a con-
viction for perjury in a federal district court of a witness who had
denied under oath before a House committee any affiliation with
Communist programs. The reversal was on the ground that, be-
cause a quorum of the committee, although present at the outset,
was not present at the time of the alleged perjury, testimony before
it was not before a “competent tribunal” within the sense of the
District of Columbia Code.413 Four Justices, in an opinion by Jus-
tice Jackson, dissented, arguing that, under the rules and practices
of the House, “a quorum once established is presumed to continue
unless and until a point of no quorum is raised” and that the Court
was, in effect, invalidating this rule, thereby invalidating at the same
time the rule of self-limitation observed by courts “where such an
issue is tendered.” 414
The Appointments Clause provides that the President “shall nomi-
nate, and by and with the Advice and Consent of the Senate, shall
appoint . . . 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. . . .” 415 The
410 United States v. Ballin, 144 U.S. 1, 5 (1892). The Senate is “a continuing
body.” McGrain v. Daugherty, 273 U.S. 135, 181–82 (1927). Hence its rules remain
in force from Congress to Congress except as they are changed from time to time,
whereas those of the House are readopted at the outset of each new Congress.
411 286 U.S. 6 (1932).
412 338 U.S. 84 (1949).
413 338 U.S. at 87–90.
414 338 U.S. at 92–95.
415 Art. II, § 2, cl. 2.
ART. I—LEGISLATIVE DEPARTMENT 135
(Madison, responding to objections that the Constitution should have required “more
than a majority . . . for a quorum, and in particular cases, if not in all, more than a
majority of a quorum for a decision,” asserted that such requirements would be in-
consistent with majority rule, which is “the fundamental principle of free govern-
ment”); id., No. 22, p. 138–39 (Hamilton observed that “equal suffrage among the
States under the Articles of Confederation contradicts that fundamental maxim of
republican government which requires that the sense of the majority should pre-
vail”).
419 See, e.g., Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014); Judicial
Watch, Inc. v. United States Senate, 432 F.3d 359 (D.C. Cir. 2005); Page v. Shelby,
995 F. Supp. 23 (D.D.C. 1998). The constitutionality of the filibuster has been a sub-
ject of debate for legal scholars. See, e.g., Josh Chafetz & Michael J. Gerhardt, De-
bate, Is the Filibuster Constitutional?, 158 U. PA L. REV. PENNUMBRA 245 (2010).
420 159 CONG. REC. S8416–S8418 (daily ed. Nov. 21, 2013).
421 Burton v. United States, 202 U.S. 344 (1906).
136 ART. I—LEGISLATIVE DEPARTMENT
sistent with the trust and duty of a Member.” 422 It cited with ap-
parent approval the action of the Senate in expelling William Blount
in 1797 for attempting to seduce from his duty an American agent
among the Indians and for negotiating for services in behalf of the
British Government among the Indians—conduct which was not a
“statutable offense” and which was not committed in his official char-
acter, nor during the session of Congress nor at the seat of govern-
ment.423
In Powell v. McCormack,424 a suit challenging the exclusion of
a Member-elect from the House of Representatives, it was argued
that, because the vote to exclude was actually in excess of two-
thirds of the Members, it should be treated simply as an expulsion.
The Court rejected the argument, noting that House precedents were
to the effect that the House had no power to expel for misconduct
occurring prior to the Congress in which the expulsion is proposed,
as was the case of Mr. Powell’s alleged misconduct. The Court based
its rejection on its inability to conclude that, if the Members of the
House had been voting to expel, they would still have cast an affir-
mative vote in excess of two-thirds.425
quoted with approval in Field v. Clark, 143 U.S. 649, 670 (1892).
427 United States v. Ballin, 144 U.S. 1, 4 (1892).
ART. I—LEGISLATIVE DEPARTMENT 137
Congressional Pay
With the surprise ratification of the Twenty-Seventh Amend-
ment,429 it is now the rule that congressional legislation “varying”—
decreasing or increasing—the level of legislators’ pay may not take
effect until an intervening election has occurred. The only real con-
troversy likely to arise in the interpretation of the new rule is whether
pay increases that result from automatic alterations in pay are sub-
ject to the same requirement or whether it is only the initial enact-
ment of the automatic device that is covered. That is, from the found-
ing to 1967, congressional pay was determined directly by Congress
in specific legislation setting specific rates of pay. In 1967, a law
was passed that created a quadrennial commission with the respon-
sibility to propose to the President salary levels for top officials of
the Government, including Members of Congress.430 In 1975, Con-
gress legislated to bring Members of Congress within a separate
commission system authorizing the President to recommend an-
nual increases for civil servants to maintain pay comparability with
private-sector employees.431 These devices were attacked by dissent-
428 Field v. Clark, 143 U.S. 649 (1892); Flint v. Stone Tracy Co., 220 U.S. 107,
143 (1911). See the dispute in the Court with regard to the application of Field in
an origination clause dispute. United States v. Munoz-Flores, 495 U.S. 385, 391 n.4
(1990), and id. at 408 (Justice Scalia concurring in the judgment). A parallel rule
holds in the case of a duly authenticated official notice to the Secretary of State
that a state legislature has ratified a proposed amendment to the Constitution. Leser
v. Garnett, 258 U.S. 130, 137 (1922); see also Coleman v. Miller, 307 U.S. 433 (1939).
429 See discussion under Twenty-Seventh Amendment, infra.
430 Pub. L. 90–206, § 225, 81 Stat. 642 (1967), as amended, Pub. L. 95–19, § 401,
summarily, 434 U.S. 1028 (1978); Humphrey v. Baker, 848 F.2d 211 (D.C. Cir.), cert.
denied, 488 U.S. 966 (1988).
433 Pub. L. 101–194, 103 Stat. 1716, 2 U.S.C. § 31(2), 5 U.S.C. § 5318 note, and
2 U.S.C. §§ 351–363.
434 Boehner v. Anderson, 30 F.3d 156, 163 (D.C. Cir. 1994).
435 Long v. Ansell, 293 U.S. 76 (1934).
436 293 U.S. at 83.
437 United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800).
438 Williamson v. United States, 207 U.S. 425, 446 (1908).
439 United States v. Johnson, 383 U.S. 169, 178 (1966).
440 “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought
441 United States v. Johnson, 383 U.S. 169, 177–79, 180–83 (1966); Powell v. Mc-
387 U.S. 82, 85 (1967); Powell v. McCormack, 395 U.S. 486, 505 (1969); Eastland v.
United States Servicemen’s Fund, 421 U.S. 491, 503 (1975).
446 Gravel v. United States, 408 U.S. 606, 625 (1972). The critical nature of the
clause is shown by the holding in Davis v. Passman, 442 U.S. 228, 235 n.11 (1979),
that when a Member is sued under the Fifth Amendment for employment discrimi-
nation on the basis of gender, only the clause could shield such an employment de-
cision, and not the separation of powers doctrine or emanations from it. Whether
the clause would be a shield the Court had no occasion to decide and the case was
settled on remand without a decision being reached.
140 ART. I—LEGISLATIVE DEPARTMENT
dants to enable it to review Powell’s exclusion but reserved the question whether in
the absence of someone the clause would still preclude suit. Id. at 506 n.26. See also
Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).
449 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975).
450 387 U.S. 82 (1967). But see the reinterpretation of this case in Gravel v. United
States, 408 U.S. 606, 619–20 (1972). See also McSurely v. McClellan, 553 F.2d 1277
(D.C. Cir. 1976) (en banc), cert. dismissed as improvidently granted, sub nom. McAdams
v. McSurely, 438 U.S. 189 (1978).
451 Doe v. McMillan, 412 U.S. 306 (1973).
ART. I—LEGISLATIVE DEPARTMENT 141
leted and also seeking damages. The Court held that the Members
of Congress and the staff employees had been properly dismissed
from the suit, inasmuch as their actions—conducting the hearings,
preparing the report, and authorizing its publication—were pro-
tected by the clause. The Superintendent of Documents and the Pub-
lic Printer were held, however, to have been properly named, be-
cause, as congressional employees, they had no broader immunity
than Members of Congress would have. At this point, the Court dis-
tinguished between those legislative acts, such as voting, speaking
on the floor or in committee, issuing reports, which are within the
protection of the clause, and those acts which enjoy no such protec-
tion. Public dissemination of materials outside the halls of Con-
gress is not protected, the Court held, because it is unnecessary to
the performance of official legislative actions. Dissemination of the
report within the body was protected, whereas dissemination in nor-
mal channels outside it was not.452
Bifurcation of the legislative process in this way resulted in hold-
ing unprotected the republication by a Member of allegedly defama-
tory remarks outside the legislative body, here through newsletters
and press releases.453 The clause protects more than speech or de-
bate in either House, the Court affirmed, but in order for the other
matters to be covered “they must be an integral part of the delib-
erative and communicative processes by which Members partici-
pate in committee and House proceedings with respect to the con-
sideration and passage or rejection of proposed legislation or with
respect to other matters which the Constitution places within the
jurisdiction of either House.” 454 Press releases and newsletters are
“[v]aluable and desirable” in “inform[ing] the public and other Mem-
bers,” but neither are essential to the deliberations of the legisla-
tive body nor part of the deliberative process.455
452 It is difficult to assess the effect of the decision because the Justices in the
majority adopted mutually inconsistent stands, 412 U.S. at 325 (concurring opin-
ion), and four Justices dissented. Id. at 331, 332, 338. The case also leaves unre-
solved the propriety of injunctive relief. Compare id. at 330 (Justice Douglas concur-
ring), with id. at 343–45 (three dissenters arguing that separation of powers doctrine
forbade injunctive relief). And compare Davis v. Passman, 442 U.S. 228, 245, 246
n.24 (1979), with id. at 250–51 (Chief Justice Burger dissenting).
453 Hutchinson v. Proxmire, 443 U.S. 111 (1979).
454 443 U.S. at 126, quoting Gravel v. United States, 408 U.S. 606, 625 (1972).
455 Hutchinson v. Proxmire, 443 U.S. 111, 130, 132–33 (1979). The Court distin-
guished between the more important “informing” function of Congress, i.e., its ef-
forts to inform itself in order to exercise its legislative powers, and the less impor-
tant “informing” function of acquainting the public about its activities. The latter
function the Court did not find an integral part of the legislative process. See also
Doe v. McMillan, 412 U.S. 306, 314–17 (1973). But compare id. at 325 (concurring).
For consideration of the “informing” function in its different guises in the context of
legislative investigations, see Watkins v. United States, 354 U.S. 178, 200 (1957);
142 ART. I—LEGISLATIVE DEPARTMENT
United States v. Rumely, 345 U.S. 41, 43 (1953); Russell v. United States, 369 U.S.
749, 777–78 (1962) (Justice Douglas dissenting).
456 383 U.S. 169 (1966).
457 Reserved was the question whether a prosecution that entailed inquiry into
legislative acts or motivation could be founded upon “a narrowly drawn statute passed
by Congress in the exercise of its legislative power to regulate the conduct of its
members.” 383 U.S. at 185. The question was similarly reserved in United States v.
Brewster, 408 U.S. 501, 529 n.18 (1972), although Justices Brennan and Douglas
would have answered in the negative. Id. at 529, 540.
458 408 U.S. 501 (1972).
459 408 U.S. at 516.
460 408 U.S. at 526.
ART. I—LEGISLATIVE DEPARTMENT 143
461 The holding was reaffirmed in United States v. Helstoski, 442 U.S. 477 (1979).
On the other hand, the Court did hold that the protection of the clause is so funda-
mental that, assuming a Member may waive it, a waiver could be found only after
explicit and unequivocal renunciation, rather than by failure to assert it at any par-
ticular point. Similarly, Helstoski v. Meanor, 442 U.S. 500 (1979), held that since
the clause properly applied is intended to protect a Member from even having to
defend himself, he may appeal immediately from a judicial ruling of nonapplicabil-
ity rather than wait to appeal after conviction.
462 408 U.S. 606 (1972).
463 408 U.S. at 626.
464 Language in some of the Court’s earlier opinions had indicated that the privi-
lege “is less absolute, although applicable,” when a legislative aide is sued, without
elaboration of what was meant. Dombrowski v. Eastland, 387 U.S. 82, 85 (1967);
Tenney v. Brandhove, 341 U.S. 367, 378 (1951). In Wheeldin v. Wheeler, 373 U.S.
647 (1963), the Court had imposed substantial obstacles to the possibility of recov-
ery in appropriate situations by holding that a federal cause of action was lacking
and remitting litigants to state courts and state law grounds. The case is probably
no longer viable, however, after Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971).
465 103 U.S. 168 (1881).
466 387 U.S. 82 (1967).
467 395 U.S. 486 (1969).
144 ART. I—LEGISLATIVE DEPARTMENT
wished to appoint a Senator as Attorney General and the salary had been increased
pursuant to a process under which Congress did not need to vote to approve but
could vote to disapprove. The salary was temporarily reduced to its previous level.
87 Stat. 697 (1973). See also 89 Stat. 1108 (1975) (reducing the salary of a member
of the Federal Maritime Commission in order to qualify a Representative).
146 ART. I—LEGISLATIVE DEPARTMENT
tices retiring at seventy and Black’s Senate term had still some time
to run. The appointment was defended, however, with the argu-
ment that, because Black was only fifty-one at the time, he would
be ineligible for the “increased emolument” for nineteen years and
it was not as to him an increased emolument.477 In 1969, it was
briefly questioned whether a Member of the House of Representa-
tives could be appointed Secretary of Defense because, under a sal-
ary bill enacted in the previous Congress, the President would pro-
pose a salary increase, including that of cabinet officers, early in
the new Congress, which would take effect if Congress did not dis-
approve it. The Attorney General ruled that, as the clause would
not apply if the increase were proposed and approved subsequent
to the appointment, it similarly would not apply in a situation in
which it was uncertain whether the increase would be approved.478
Incompatible Offices
This second part of the second clause elicited little discussion
at the Convention and was universally understood to be a safe-
guard against executive influence on Members of Congress and the
prevention of the corruption of the separation of powers.479 Con-
gress has at various times confronted the issue in regard to seat-
ing or expelling persons who have or obtain office in another branch.
Thus, it has determined that visitors to academies, regents, direc-
tors, and trustees of public institutions, and members of temporary
commissions who receive no compensation as members are not offi-
cers within the constitutional inhibition.480 Government contrac-
tors and federal officers who resign before presenting their creden-
tials may be seated as Members of Congress.481
One of the more recurrent problems which Congress has had
with this clause is the compatibility of congressional office with ser-
vice as an officer of some military organization—militia, reserves,
and the like.482 Members have been unseated for accepting appoint-
477 The matter gave rise to a case, Ex parte Albert Levitt, 302 U.S. 633 (1937),
in which the Court declined to pass upon the validity of Justice Black’s appoint-
ment. The Court denied the complainant standing, but strangely it did not advert
to the fact that it was being asked to assume original jurisdiction contrary to Marbury
v. Madison, 5 U.S. (1 Cr.) 137 (1803).
478 42 Op. Atty. Gen. 381 (Jan. 3, 1969).
479 THE FEDERALIST, No. 76 (Hamilton) (J. Cooke ed. 1961), 514; 2 J. STORY, COM-
Revenue Bills
Insertion of this clause was another of the devices sanctioned
by the Framers to preserve and enforce the separation of pow-
ers.485 It applies, in the context of the permissibility of Senate amend-
ments to a House-passed bill, to all bills for collecting revenue—
revenue decreasing as well as revenue increasing—rather than simply
to just those bills that increase revenue.486
Only bills to levy taxes in the strict sense of the word are com-
prehended by the phrase “all bills for raising revenue”; bills for other
purposes, which incidentally create revenue, are not included.487 Thus,
a Senate-initiated bill that provided for a monetary “special assess-
ment” to pay into a crime victims fund did not violate the clause,
because it was a statute that created and raised revenue to sup-
port a particular governmental program and was not a law raising
revenue to support Government generally.488 An act providing a na-
tional currency secured by a pledge of bonds of the United States,
which, “in the furtherance of that object, and also to meet the ex-
penses attending the execution of the act,” imposed a tax on the
circulating notes of national banks was held not to be a revenue
measure which must originate in the House of Representatives.489
Neither was a bill that provided that the District of Columbia should
raise by taxation and pay to designated railroad companies a speci-
485 THE FEDERALIST, No. 58 (J. Cooke ed. 1961), 392–395 (Madison). See United
uity and Fiscal Responsibility Act of 1982, 96 Stat. 324, in which the House passed
a bill that provided for a net loss in revenue and the Senate amended the bill to
provide a revenue increase of more than $98 billion over three years. Attacks on the
law as a violation of the origination clause failed before assertions of political ques-
tion, standing, and other doctrines. E.g., Texas Ass’n of Concerned Taxpayers v. United
States, 772 F.2d 163 (5th Cir. 1985); Moore v. U.S. House of Representatives, 733
F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985).
487 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 880 (1833).
488 United States v. Munoz-Flores, 495 U.S. 385 (1990).
489 Twin City Bank v. Nebeker, 167 U.S. 196 (1897).
ART. I—LEGISLATIVE DEPARTMENT 149
fied sum for the elimination of grade crossings and the construc-
tion of a railway station.490 The substitution of a corporation tax
for an inheritance tax,491 and the addition of a section imposing an
excise tax upon the use of foreign-built pleasure yachts,492 have been
held to be within the Senate’s constitutional power to propose amend-
ments.
lay in presentation of a bill enabled the President to sign it 23 days after the ad-
journment of Congress. Schmeckebier, Approval of Bills After Adjournment of Con-
gress, 33 AM. POL. SCI. REV. 52–53 (1939).
495 Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868).
496 73 U.S. at 504. See also Burgess v. Salmon, 97 U.S. 381, 383 (1878).
497 Matthews v. Zane, 20 U.S. (7 Wheat.) 164, 211 (1822).
498 Lapeyre v. United States, 84 U.S. (17 Wall.) 191, 198 (1873).
499 Wright v. United States, 302 U.S. 583 (1938).
500 302 U.S. at 596.
150 ART. I—LEGISLATIVE DEPARTMENT
to the Supreme Court. The adjournment here was for five days. Subsequently, the
President attempted to pocket veto two other bills, one during a 32-day recess and
one during the period in which Congress had adjourned sine die from the first to
the second session of the 93d Congress. After renewed litigation, the Administration
entered its consent to a judgment that both bills had become law, Kennedy v. Jones,
412 F. Supp. 353 (D.D.C., decree entered April 13, 1976), and it was announced that
President Ford “will use the return veto rather than the pocket veto during intra-
session and intersession recesses and adjournments of the Congress”, provided that
the House to which the bill must be returned has authorized an officer to receive
vetoes during the period it is not in session. President Reagan repudiated this agree-
ment and vetoed a bill during an intersession adjournment. Although the lower court
152 ART. I—LEGISLATIVE DEPARTMENT
Presentation of Resolutions
The purpose of clause 3, the Orders, Resolutions, and Votes Clause
(ORV Clause), is not readily apparent. For years it was assumed
that the Framers inserted the clause to prevent Congress from evad-
ing the veto clause by designating as something other than a bill
measures intended to take effect as laws.514 Why a separate clause
was needed for this purpose has not been explained. Recent schol-
arship presents a different possible explanation for the ORV Clause—
that it was designed to authorize delegation of lawmaking power to
a single House, subject to presentment, veto, and possible two-
House veto override.515 If construed literally, the clause could have
bogged down the intermediate stages of the legislative process, and
Congress made practical adjustments. At the request of the Sen-
ate, the Judiciary Committee in 1897 published a comprehensive
report detailing how the clause had been interpreted over the years.
Briefly, it was shown that the word “necessary” in the clause had
come to refer to the necessity for law-making; that is, any “order,
resolution, or vote” must be submitted if it is to have the force of
law. But “votes” taken in either House preliminary to the final pas-
applied Kennedy v. Sampson to strike down the exercise of the power, but the case
was mooted prior to Supreme Court review. Barnes v. Kline, 759 F.2d 21 (D.C. Cir.
1985), vacated and remanded to dismiss sub nom. Burke v. Barnes, 479 U.S. 361
(1987).
511 Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919).
512 87 U.S. (20 Wall.) 92 (1874).
513 12 Stat. 589 (1862).
514 See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. ed.
1937), 301–302, 304–305; 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES § 889, at 335 (1833).
515 Seth Barrett Tillman, A Textualist Defense of Art. I, Section 7, Clause 3: Why
Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly
Reasoned, 83 TEX. L. REV. 1265 (2005).
ART. I—LEGISLATIVE DEPARTMENT 153
Court has reaffirmed this interpretation. See Hawke v. Smith, 253 U.S. 221, 229
(1920) (in Hollingsworth “this court settled that the submission of a constitutional
amendment did not require the action of the President”); INS v. Chadha, 462 U.S.
919, 955 n.21 (1983) (in Hollingsworth the Court “held Presidential approval was
unnecessary for a proposed constitutional amendment”).
519 Act of June 30, 1932, § 407, 47 Stat. 414.
520 See, e.g., Lend Lease Act of March 11, 1941, 55 Stat. 31; First War Powers
Act of December 18, 1941, 55 Stat. 838; Emergency Price Control Act of January 30,
1942, 56 Stat. 23; Stabilization Act of October 2, 1942, 56 Stat. 765; War Labor Dis-
putes Act of June 25, 1943, 57 Stat. 163, all providing that the powers granted to
the President should come to an end upon adoption of concurrent resolutions to that
effect.
521 From 1932 to 1983, by one count, nearly 300 separate provisions giving Con-
gress power to halt or overturn executive action had been passed in nearly 200 acts;
substantially more than half of these had been enacted since 1970. A partial listing
was included in The Constitution, Jefferson’s Manual and Rules of the House of Rep-
resentatives, H. Doc. No. 96–398, 96th Congress, 2d Sess. (1981), 731–922. A more
up-to-date listing, in light of the Supreme Court’s ruling, is contained in H. Doc.
No. 101–256, 101st Cong., 2d sess. (1991), 907–1054. Justice White’s dissent in INS
v. Chadha, 462 U.S. 919, 968–974, 1003–1013 (1983), describes and lists many kinds
of such vetoes. The types of provisions varied widely. Many required congressional
154 ART. I—LEGISLATIVE DEPARTMENT
gress until relatively recently had applied the veto provisions to some
action taken by the President or another executive officer—such as
a reorganization of an agency, the lowering or raising of tariff rates,
the disposal of federal property—then began expanding the device
to give itself a negative over regulations issued by executive branch
agencies, and proposals were made to give Congress a negative over
all regulations issued by executive branch independent agencies.522
In INS v. Chadha,523 the Court held a one-House congressional
veto to be unconstitutional as violating both the bicameralism prin-
ciples reflected in Art. I, §§ 1 and 7, and the presentment provi-
sions of § 7, cl. 2 and 3. The provision in question was § 244(c)(2) of
the Immigration and Nationality Act, which authorized either house
of Congress by resolution to veto the decision of the Attorney Gen-
eral to allow a particular deportable alien to remain in the country.
The Court’s analysis of the presentment issue made clear, however,
that two-House veto provisions, despite their compliance with bi-
cameralism, and committee veto provisions suffer the same consti-
tutional infirmity.524 In the words of dissenting Justice White, the
Court in Chadha “sound[ed] the death knell for nearly 200 other
statutory provisions in which Congress has reserved a ‘legislative
veto.’ ” 525
In determining that veto of the Attorney General’s decision on
suspension of deportation was a legislative action requiring present-
ment to the President for approval or veto, the Court set forth the
approval before an executive action took effect, but more commonly they provided
for a negative upon executive action, by concurrent resolution of both Houses, by
resolution of only one House, or even by a committee of one House.
522 A bill providing for this failed to receive the two-thirds vote required to pass
under suspension of the rules by only three votes in the 94th Congress. H.R. 12048,
94th Congress, 2d sess. See H. REP. NO. 94–1014, 94th Congress, 2d sess. (1976),
and 122 CONG. REC. 31615–641, 31668. Considered extensively in the 95th and 96th
Congresses, similar bills were not adopted. See Regulatory Reform and Congressio-
nal Review of Agency Rules: Hearings Before the Subcommittee on Rules of the House
of the House Rules Committee, 96th Congress, 1st sess. (1979); Regulatory Reform
Legislation: Hearings Before the Senate Committee on Governmental Affairs, 96th
Congress, 1st sess. (1979).
523 462 U.S. 919 (1983).
524 Shortly after deciding Chadha, the Court removed any doubts on this score
zens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
529 Bowsher v. Synar, 478 U.S. 714, 733 (1986). This position was developed at
was decided in 1871 while the country was still in the throes of Reconstruction. As
noted by Chief Justice Stone in a footnote to his opinion in Helvering v. Gerhardt,
304 U.S. 405, 414 n.4 (1938), the Court had not determined how far the Civil War
Amendments had broadened the federal power at the expense of the states, but the
158 ART. I—LEGISLATIVE DEPARTMENT
lying that decision—that Congress may not lay a tax that would
impair the sovereignty of the states—is still recognized as retain-
ing some vitality.545
Federal Taxation of State Interests.—In 1903 a succession
tax upon a bequest to a municipality for public purposes was up-
held on the ground that the tax was payable out of the estate be-
fore distribution to the legatee. Looking to form and not to sub-
stance, in disregard of the mandate of Brown v. Maryland,546 a closely
divided Court declined to “regard it as a tax upon the municipality,
though it might operate incidentally to reduce the bequest by the
amount of the tax.” 547 When South Carolina embarked upon the
business of dispensing alcoholic beverages, its agents were held to
be subject to the national internal revenue tax, the ground of the
holding being that in 1787 such a business was not regarded as
one of the ordinary functions of government.548
Another decision marking a clear departure from the logic of
Collector v. Day was Flint v. Stone Tracy Co.,549 in which the Court
sustained an act of Congress taxing the privilege of doing business
as a corporation, the tax being measured by the income. The argu-
ment that the tax imposed an unconstitutional burden on the exer-
cise by a state of its reserved power to create corporate franchises
fact that the taxing power had recently been used with destructive effect upon notes
issued by the state banks, Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869), sug-
gested the possibility of similar attacks upon the existence of the states themselves.
Two years later, the Court took the logical step of holding that the federal income
tax could not be imposed on income received by a municipal corporation from its
investments. United States v. Railroad Co., 84 U.S. (17 Wall.) 322 (1873). A far-
reaching extension of private immunity was granted in Pollock v. Farmers’ Loan &
Trust Co., 157 U.S. 429 (1895), where interest received by a private investor on state
or municipal bonds was held to be exempt from federal taxation. (Though relegated
to virtual desuetude, Pollock was not expressly overruled until South Carolina v.
Baker, 485 U.S. 505 (1988)). As the apprehension of this era subsided, the doctrine
of these cases was pushed into the background. It never received the same wide
application as did McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), in curbing
the power of the states to tax operations or instrumentalities of the Federal Govern-
ment. Only once since the turn of the century has the national taxing power been
further narrowed in the name of dual federalism. In 1931 the Court held that a
federal excise tax was inapplicable to the manufacture and sale to a municipal cor-
poration of equipment for its police force. Indian Motorcycle v. United States, 283
U.S. 570 (1931). Justices Stone and Brandeis dissented from this decision, and it is
doubtful whether it would be followed today. Cf. Massachusetts v. United States,
435 U.S. 444 (1978).
545 At least, if the various opinions in New York v. United States, 326 U.S. 572
(1946), retain force, and they may in view of (a later) New York v. United States,
505 U.S. 144 (1992), a Commerce Clause case rather than a tax case.
546 25 U.S. (12 Wheat.) 419, 444 (1827).
547 Snyder v. Bettman, 190 U.S. 249, 254 (1903).
548 South Carolina v. United States, 199 U.S. 437 (1905). See also Ohio v. Helver-
bers of the Supreme Court in cases dealing with the tax immunity
of state functions and instrumentalities, the Court has stated that
“all agree that not all of the former immunity is gone.” 561 Twice,
the Court has made an effort to express its new point of view in a
statement of general principles by which the right to such immu-
nity shall be determined. However, the failure to muster a majority
to concur with any single opinion in the latter case leaves the ques-
tion very much in doubt. In Helvering v. Gerhardt,562 where, with-
out overruling Collector v. Day, it narrowed the immunity of sala-
ries of state officers from federal income taxation, the Court announced
“two guiding principles of limitation for holding the tax immunity
of state instrumentalities to its proper function. The one, depen-
dent upon the nature of the function being performed by the state
or in its behalf, excludes from the immunity activities thought not
to be essential to the preservation of state governments even though
the tax be collected from the state treasury. . . . The other prin-
ciple, exemplified by those cases where the tax laid upon individu-
als affects the state only as the burden is passed on to it by the
taxpayer, forbids recognition of the immunity when the burden on
the state is so speculative and uncertain that if allowed it would
restrict the federal taxing power without affording any correspond-
ing tangible protection to the state government; even though the
function be thought important enough to demand immunity from a
tax upon the state itself, it is not necessarily protected from a tax
which well may be substantially or entirely absorbed by private per-
sons.” 563
The second attempt to formulate a general doctrine was made
in New York v. United States,564 where, on review of a judgment
affirming the right of the United States to tax the sale of mineral
waters taken from property owned and operated by the State of New
York, the Court reconsidered the right of Congress to tax business
enterprises carried on by the states. Justice Frankfurter, speaking
for himself and Justice Rutledge, made the question of discrimina-
tion vel non against state activities the test of the validity of such
a tax. They found “no restriction upon Congress to include the States
in levying a tax exacted equally from private persons upon the same
subject matter.” 565 In a concurring opinion in which Justices Reed,
Murphy, and Burton joined, Chief Justice Stone rejected the crite-
rion of discrimination. He repeated what he had said in an earlier
561 New York v. United States, 326 U.S. 572, 584 (1946) (concurring opinion of
Justice Rutledge).
562 304 U.S. 405 (1938).
563 304 U.S. at 419–20.
564 326 U.S. 572 (1946).
565 326 U.S. at 584.
ART. I—LEGISLATIVE DEPARTMENT 161
case to the effect that “the limitation upon the taxing power of each,
so far as it affects the other, must receive a practical construction
which permits both to function with the minimum of interference
each with the other; and that limitation cannot be so varied or ex-
tended as seriously to impair either the taxing power of the govern-
ment imposing the tax . . . or the appropriate exercise of the func-
tions of the government affected by it.” 566 Justices Douglas and Black
dissented in an opinion written by the former on the ground that
the decision disregarded the Tenth Amendment, placed “the sover-
eign States on the same plane as private citizens,” and made them
“pay the Federal Government for the privilege of exercising powers
of sovereignty guaranteed them by the Constitution.” 567 In a later
case dealing with state immunity the Court sustained the tax on
the second ground mentioned in Helvering v. Gerhardt—that the
burden of the tax was borne by private persons—and did not con-
sider whether the function was one which the Federal Government
might have taxed if the municipality had borne the burden of the
exaction.568
Articulation of the current approach may be found in South Caro-
lina v. Baker.569 The rules are “essentially the same” for federal im-
munity from state taxation and for state immunity from federal taxa-
tion, except that some state activities may be subject to direct federal
taxation, while states may “never” tax the United States directly.
Either government may tax private parties doing business with the
other government, “even though the financial burden falls on the
[other government], as long as the tax does not discriminate against
the [other government] or those with which it deals.” 570 Thus, “the
issue whether a nondiscriminatory federal tax might nonetheless
violate state tax immunity does not even arise unless the Federal
Government seeks to collect the tax directly from a State.” 571
Uniformity Requirement.—Whether a tax is to be appor-
tioned among the states according to the census taken pursuant to
Article I, § 2, or imposed uniformly throughout the United States
depends upon its classification as direct or indirect.572 The rule of
uniformity for indirect taxes is easy to obey. It requires only that
the subject matter of a levy be taxed at the same rate wherever
found in the United States; or, as it is sometimes phrased, the uni-
566 326 U.S. at 589–90.
567 326 U.S. at 596.
568 Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949). Cf. Massachusetts v.
PURPOSES OF TAXATION
Regulation by Taxation
Congress has broad discretion in methods of taxation, and may,
under the Necessary and Proper Clause, regulate business within
573 LaBelle Iron Works v. United States, 256 U.S. 377 (1921); Brushaber v. Union
Pac. R.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112 U.S. 580 (1884).
574 462 U.S. 74 (1983).
575 462 U.S. at 85.
576 Knowlton v. Moore, 178 U.S. 41 (1900).
577 Fernandez v. Wiener, 326 U.S. 340 (1945); Riggs v. Del Drago, 317 U.S. 95
(1942); Phillips v. Commissioner, 283 U.S. 589 (1931); Poe v. Seaborn, 282 U.S. 101,
117 (1930).
578 Florida v. Mellon, 273 U.S. 12 (1927).
579 Downes v. Bidwell, 182 U.S. 244 (1901).
580 194 U.S. 486 (1904). The Court recognized that Alaska was an incorporated
territory but took the position that the situation in substance was the same as if
the taxes had been directly imposed by a territorial legislature for the support of
the local government.
ART. I—LEGISLATIVE DEPARTMENT 163
its taxing power, the Court has overruled Kahriger, Lewis, Doremus, Sonzinsky, and
similar cases on the ground that the statutory scheme compelled self-incrimination
through registration. Marchetti v. United States, 390 U.S. 39 (1968); Grosso v. United
States, 390 U.S. 62 (1968); Haynes v. United States, 390 U.S. 85 (1968); Leary v.
United States, 395 U.S. 6 (1969).
586 McCray v. United States, 195 U.S. 27 (1904).
587 United States v. Sanchez, 340 U.S. 42, 45 (1950). See also Sonzinsky v. United
alty for such regulation is valid.588 On the other hand, where Con-
gress had levied a heavy tax upon liquor dealers who operated in
violation of state law, the Court held that this tax was unenforce-
able after the repeal of the Eighteenth Amendment, because the Na-
tional Government had no power to impose an additional penalty
for infractions of state law.589
Discerning whether Congress, in passing a regulation that pur-
ports to be under the taxing authority, intends to exercise a sepa-
rate constitutional authority, requires evaluation of a number of fac-
tors.590 Under the Child Labor Tax Case,591 decided in 1922, the
Court, which had previously rejected a federal prohibition of child
labor laws as being outside of the Commerce Clause,592 also re-
jected a tax on companies using such labor. First, the Court noted
that the law in question set forth a specific and detailed regulatory
scheme—including the ages, industry, and number of hours allowed—
establishing when employment of underage youth would incur taxa-
tion. Second, the taxation in question functioned as a penalty, in
that it was set at one-tenth of net income per year, regardless of
the nature or degree of the infraction. Third, the tax had a scienter
requirement, so that the employer had to know that the child was
below a specified age in order to incur taxation. Fourth, the statute
made the businesses subject to inspection by officers of the Secre-
tary of Labor, positions not traditionally charged with the enforce-
ment and collection of taxes.
More recently, in National Federation of Independent Business
(NFIB) v. Sebelius,593 the Court upheld as an exercise of the taxing
authority a requirement under the Patient Protection and Afford-
able Care Act (ACA) 594 that mandates certain individuals to main-
tain a minimum level of health insurance. Failure to purchase health
insurance may subject a person to a monetary penalty, adminis-
tered through the tax code. Chief Justice Roberts, in a majority hold-
ing,595 used a functional approach in evaluating the authority for
the requirement, so that the use of the term “penalty” in the ACA 596
to describe the enforcement mechanism for the individual mandate
588 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 393 (1940). See also
(1903).
591 Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922).
592 Hammer v. Dagenhart, 247 U.S. 251 (1918).
593 567 U.S. ___, No. 11–393, slip op. (2012).
594 Pub. L. 111–148, as amended.
595 For this portion of the opinion, Justice Roberts was joined by Justices Ginsburg,
was found not to be determinative. The Court also found that the
latter three factors identified in the Child Labor Tax Case (penal
intent, scienter, enforcement by regulatory agency) were not pres-
ent with respect to the individual mandate. Unlike the child labor
taxation scheme, the tax level under the ACA is established based
on traditional tax variables such as taxable income, number of de-
pendents and joint filing status; there is no requirement of a know-
ing violation; and the tax is collected by the Internal Revenue Ser-
vice.
The majority, however, did not appear to have addressed the
first Child Labor Case factor: whether the ACA set forth a specific
and detailed course of conduct and imposed an exaction on those
who transgress its standard. The Court did note that the law did
not bear characteristics of a regulatory penalty, as the cost of the
tax was far outweighed by the cost of obtaining health insurance,
making the payment of the tax a reasonable financial decision.597
Still, the majority’s discussion suggests that, for constitutional pur-
poses, the prominence of regulatory motivations for tax provisions
may become less important than the nature of the exactions im-
posed and the manner in which they are administered.
In those areas where activities are subject to both taxation and
regulation, the taxing authority is not limited from reaching activi-
ties otherwise prohibited. For instance, Congress may tax an activ-
ity, such as the business of accepting wagers,598 regardless of whether
it is permitted or prohibited by the laws of the United States 599 or
by those of a state.600 However, Congress’s authority to regulate us-
ing the taxing power “reaches only existing subjects.” 601 Thus, so-
called federal “licenses,” so far as they relate to topics outside Con-
gress’s constitutional authority, merely express, “the purpose of the
government not to interfere . . . with the trade nominally licensed,
if the required taxes are paid.” In those instance, whether the “li-
censed” trade shall be permitted at all is a question that remains a
decision by the state.602
597 567 U.S. ___, No. 11–393, slip op. at 35–36 (2012).
598 United States v. Kahriger, 345 U.S. 22 (1953). Dissenting, Justice Frank-
furter maintained that this was not a bona fide tax, but was essentially an effort to
check, if not stamp out, professional gambling, an activity left to the responsibility
of the States. Justices Jackson and Douglas noted partial agreement with this con-
clusion. See also Lewis v. United States, 348 U.S. 419 (1955).
599 United States v. Yuginovich, 256 U.S. 450 (1921).
600 United States v. Constantine, 296 U.S. 287, 293 (1935).
601 License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867).
602 License Tax Cases, 72 U.S. at 471 (1867).
166 ART. I—LEGISLATIVE DEPARTMENT
quest on the power of Congress to appropriate funds for public improvements, the
Court answered that such appropriations might be properly made under the war
and postal powers. See Albertsworth, Advisory Functions in the Supreme Court, 23
GEO. L. J. 643, 644–647 (1935). Monroe himself ultimately adopted the broadest view
of the spending power, from which, however, he carefully excluded any element of
regulatory or police power. See his Views of the President of the United States on the
Subject of Internal Improvements, of May 4, 1822, 2 MESSAGES AND PAPERS OF THE PRESI-
DENTS 713–752 (Richardson ed., 1906).
613 California v. Pacific R.R., 127 U.S. 1 (188).
168 ART. I—LEGISLATIVE DEPARTMENT
clause which confers it, and not in those of § 8 which bestow and
define the legislative powers of the Congress. It results 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 Constitution.” 619
By and large, it is for Congress to determine what constitutes
the “general welfare.” The Court accords great deference to Con-
gress’s decision that a spending program advances the general wel-
fare,620 and has even questioned whether the restriction is judi-
cially enforceable.621 Dispute, such as it is, turns on the conditioning
of funds.
As with its other powers, Congress may enact legislation “nec-
essary and proper” to effectuate its purposes in taxing and spend-
ing. In upholding a law making it a crime to bribe state and local
officials who administer programs that receive federal funds, the Court
declared that Congress has authority “to see to it that taxpayer dol-
lars . . . are in fact spent for the general welfare, and not frittered
away in graft or on projects undermined when funds are siphoned
off or corrupt public officers are derelict about demanding value for
dollars.” 622 Congress’s failure to require proof of a direct connec-
tion between the bribery and the federal funds was permissible, the
Court concluded, because “corruption does not have to be that lim-
ited to affect the federal interest. Money is fungible, bribed officials
are untrustworthy stewards of federal funds, and corrupt contrac-
tors do not deliver dollar-for-dollar value.” 623
Social Security Act Cases.—Although the Court in Butler held
that the spending power is not limited by the specific grants of power
contained in Article I, § 8, the Court found, nevertheless, that the
spending power was qualified by the Tenth Amendment, and on this
ground ruled that Congress could not use moneys raised by taxa-
tion to “purchase compliance” with regulations “of matters of state
concern with respect to which Congress has no authority to inter-
fere.” 624 Within little more than a year this decision was narrowed
619 United States v. Butler, 297 U.S. 1, 65–66 (1936). So settled had the issue
become that 1970s attacks on federal grants-in-aid omitted any challenge on the
broad level and relied on specific prohibitions, i.e., the religion clauses of the First
Amendment. Flast v. Cohen, 392 U.S. 83 (1968); Tilton v. Richardson, 403 U.S. 672
(1971).
620 Id. at 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 (1937)).
621 Buckley v. Valeo, 424 U.S. 1, 90–91 (1976); South Dakota v. Dole, 483 U.S.
himself and two other Justices, dissented on the ground that Congress was entitled
when spending the national revenues for the general welfare to see to it that the
170 ART. I—LEGISLATIVE DEPARTMENT
country got its money’s worth, and that the challenged provisions served that end.
United States v. Butler, 297 U.S. 1, 84–86 (1936).
625 301 U.S. 548 (1937).
626 301 U.S. at 586, 591.
627 301 U.S. at 590. See also Buckley v. Valeo, 424 U.S. 1, 90–92 (1976); Fullilove
v. Klutznick, 448 U.S. 448, 473–475 (1980); Pennhurst State School & Hosp. v. Halder-
man, 451 U.S. 1 (1981).
628 In Steward Machine Company v. Davis, it was a taxpayer who complained
of the invasion of state sovereignty, and the Court put great emphasis on the fact
that the state was a willing partner in the plan of cooperation embodied in the So-
cial Security Act. 301 U.S. 548, 589, 590 (1937).
629 330 U.S. 127 (1947).
ART. I—LEGISLATIVE DEPARTMENT 171
effect upon certain activities within the state, it has never been thought
that such effect made the federal act invalid.” 630
The general principle is firmly established. “Congress has fre-
quently employed the Spending Power to further broad policy objec-
tives by conditioning receipt of federal moneys upon compliance by
the recipient with federal statutory and administrative directives.
This Court has repeatedly upheld against constitutional challenge
the use of this technique to induce governments and private par-
ties to cooperate voluntarily with federal policy.” 631
The Court has set forth several standards purporting to chan-
nel Congress’s discretion in attaching grant conditions.632 To date
only one statute, discussed below, has been struck down as violat-
ing these standards, although several statutes have been inter-
preted so as to conform to the guiding principles. First, the condi-
tions, like the spending itself, must advance the general welfare,
but the determination of what constitutes the general welfare rests
largely if not wholly with Congress.633 Second, because a grant is
“much in the nature of a contract” offer that the states may accept
or reject,634 Congress must set out the conditions unambiguously,
so that the states may make an informed decision.635 Third, the Court
continues to state that the conditions must be related to the fed-
eral interest for which the funds are expended,636 but it has never
630 330 U.S. 127, 143 (1947). This is not to say that Congress may police the
ion for the Court cited five cases to document the assertion: California Bankers Ass’n
v. Shultz, 416 U.S. 21 (1974); Lau v. Nichols, 414 U.S. 563 (1974); Oklahoma v. Civil
Service Comm’n, 330 U.S. 127 (1947); Helvering v. Davis, 301 U.S. 619 (1937); and
Steward Machine Co. v. Davis, 301 U.S. 548 (1937).
632 See South Dakota v. Dole, 483 U.S. 203, 207–12 (1987).
633 483 U.S. at 207 (1987). See discussion under Scope of the Power, supra.
634 Barnes v. Gorman, 536 U.S. 181, 186 (2002) (holding that neither the Ameri-
cans With Disabilities Act of 1990 nor section 504 of the Rehabilitation Act of 1973
subjected states to punitive damages in private actions).
635 South Dakota v. Dole, 483 U.S. at 207. The requirement appeared in Pen-
nhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). See also Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985) (Rehabilitation Act does not clearly
signal states that participation in programs funded by Act constitutes waiver of im-
munity from suit in federal court); Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (no
private right of action was created by the Family Educational Rights and Privacy
Act); Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)
(because Individuals with Disabilities Education Act, which was enacted pursuant
to the Spending Clause, does not furnish clear notice to states that prevailing par-
ents may recover fees for services rendered by experts in IDEA actions, it does not
authorize recovery of such fees).
636 South Dakota v. Dole, 483 U.S. at 207–08. See Steward Machine Co. v. Da-
vis, 301 U.S. 548, 590 (1937); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275,
295 (1958).
172 ART. I—LEGISLATIVE DEPARTMENT
637 The relationship in South Dakota v. Dole, 483 U.S. at 208–09, in which Con-
Dole, 483 U.S. 203, 211–12. See North Carolina ex rel. Morrow v. Califano, 445 F.
Supp. 532 (E.D.N.C. 1977) (three-judge court), aff’d 435 U.S. 962 (1978).
640 South Dakota v. Dole, 483 U.S. at 210 (referring to the Tenth Amendment:
this point, while Justices Scalia, Kennedy, Thomas and Alito made a similar point
in a joint dissenting opinion. The authoring Justices of the two opinions, however,
did not join in either the reasoning or judgment of the other opinion.
644 “When a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, the holding of the Court may be viewed
ART. I—LEGISLATIVE DEPARTMENT 173
as that position taken by those Members who concurred in the judgments on the
narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omit-
ted). Justice Roberts opinion is arguably narrower than the dissent, because, as dis-
cussed below, his opinion found a constitutional violation based on the presence of
both a “new” “independent” program and a coercive loss of funds, while the dissent-
ing opinion would have found the coercive loss of funds sufficient. NFIB, 567 U.S.
___, slip op. at 38–42 (Justices Scalia, Kennedy, Thomas and Alito dissenting).
645 567 U.S. ___, slip op. at 50, 53–54. It might be argued that the Roberts’ opin-
ion, with its emphasis on “new” and “independent” programs, is implicitly address-
ing the “relatedness” inquiry of South Dakota v. Dole. Justice Roberts’ opinion, how-
ever, does not explicitly discuss the issue, and an argument can be made that there
is a significant difference between the two inquiries. As noted, the “relatedness in-
quiry” in Dole was identified as a limitation on the Spending Clause, while the NFIB
discussion of “new” and “independent programs” emphasized the concerns of the Tenth
Amendment. Second, under Dole, the “relatedness” and “coercion” inquiries appear
to be disjunctive, in that failure to comply with either of these factors would mean
that the statute was unconstitutional. Under NFIB, however, the “new” and “inde-
pendent” program inquiry and the “coercion” inquiry appear to be conjunctive, so
that a grant condition must apparently fail both tests to be found unconstitutional.
646 Justice Roberts also noted that Congress created a separate funding provi-
sion to cover the costs of providing services to any person made newly eligible by
the expansion, and mandated that newly eligible persons would receive a level of
coverage that is less comprehensive than the traditional Medicaid benefit package.
647 567 U.S. ___, slip op. at 53.
648 567 U.S. ___, slip op. at 10, 51–52.
174 ART. I—LEGISLATIVE DEPARTMENT
632 (1985); Bennett v. Kentucky Dep’t of Education, 470 U.S. 656 (1985).
650 E.g., King v. Smith, 392 U.S. 309 (1968); Rosado v. Wyman, 397 U.S. 397
(1970); Lau v. Nichols, 414 U.S. 563 (1974); Miller v. Youakim, 440 U.S. 125 (1979).
Suits may be brought under 42 U.S.C. § 1983, see Maine v. Thiboutot, 448 U.S. 1
(1980), although in some instances the statutory conferral of rights may be too im-
precise or vague for judicial enforcement. Compare Suter v. Artist M., 503 U.S. 347
(1992), with Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418 (1987).
651 E.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title IX of
Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (Americans with Disabili-
ties Act of 1990 exceeds congressional power to enforce the Fourteenth Amendment,
and violates the Eleventh Amendment, by subjecting states to suits brought by state
employees in federal courts to collect money damages).
653 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937).
654 301 U.S. 619 (1937).
655 United States v. Realty Co., 163 U.S. 427 (1896); Pope v. United States, 323
U.S. 1, 9 (1944).
ART. I—LEGISLATIVE DEPARTMENT 175
Definition of Terms
Commerce.—The etymology of the word “commerce” 664 carries
the primary meaning of traffic, of transporting goods across state
lines for sale. This possibly narrow constitutional conception was
rejected by Chief Justice Marshall in Gibbons v. Ogden,665 which
remains one of the seminal cases dealing with the Constitution. The
case arose because of a monopoly granted by the New York legisla-
ture on the operation of steam-propelled vessels on its waters, a
monopoly challenged by Gibbons, who transported passengers from
New Jersey to New York pursuant to privileges granted by an act
662 Perry v. United States, 294 U.S. 330, 351 (1935). See also Lynch v. United
(1898).
664 OED: “com– together, with, + merx, merci- merchandise, ware.”
665 22 U.S. (9 Wheat.) 1 (1824).
ART. I—LEGISLATIVE DEPARTMENT 177
of Congress.666 The New York monopoly was not in conflict with the
congressional regulation of commerce, argued the monopolists, be-
cause the vessels carried only passengers between the two states
and were thus not engaged in traffic, in “commerce” in the constitu-
tional sense.
“The subject to be regulated is commerce,” the Chief Justice wrote.
“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
comprehends navigation. This would restrict a general term, appli-
cable to many objects, to one of its significations. Commerce, un-
doubtedly, is traffic, but it is something more—it is intercourse.” 667
The term, therefore, included navigation, a conclusion that Mar-
shall also supported by appeal to general understanding, to the pro-
hibition in Article I, § 9, against any preference being given “by any
regulation of commerce or revenue, to the ports of one State over
those of another,” and to the admitted and demonstrated power of
Congress to impose embargoes.668
Marshall qualified the word “intercourse” with the word “com-
mercial,” thus retaining the element of monetary transactions.669
But, today, “commerce” in the constitutional sense, and hence “in-
terstate commerce,” covers every species of movement of persons and
things, whether for profit or not, across state lines,670 every species
of communication, every species of transmission of intelligence, whether
for commercial purposes or otherwise,671 every species of commer-
cial negotiation that will involve sooner or later an act of transpor-
tation of persons or things, or the flow of services or power, across
state lines.672
There was a long period in the Court’s history when a majority
of the Justices, seeking to curb the regulatory powers of the Fed-
eral Government by various means, held that certain things were
not encompassed by the Commerce Clause because they were nei-
666 Act of February 18, 1793, 1 Stat. 305, entitled “An Act for enrolling and li-
censing ships or vessels to be employed in the coasting trade and fisheries, and for
regulating the same.”
667 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824).
668 22 U.S. at 190–94.
669 22 U.S. at 193.
670 As we will see, however, in many later formulations the crossing of state
lines is no longer the sine qua non; wholly intrastate transactions with substantial
effects on interstate commerce may suffice.
671 E.g., United States v. Simpson, 252 U.S. 465 (1920); Caminetti v. United States,
may be commerce though illegal and sporadic, and though they do not utilize com-
mon carriers or concern the flow of anything more tangible than electrons and infor-
mation.” United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 549–50
(1944).
178 ART. I—LEGISLATIVE DEPARTMENT
673 Kidd v. Pearson, 128 U.S. 1 (1888); Oliver Iron Co. v. Lord, 262 U.S. 172
(1923); United States v. E. C. Knight Co., 156 U.S. 1 (1895); see also Carter v. Carter
Coal Co., 298 U.S. 238 (1936).
674 Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869); see also the cases to this effect
cited in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 543–545,
567–568, 578 (1944).
675 Federal Baseball League v. National League of Professional Baseball Clubs,
259 U.S. 200 (1922). When called on to reconsider its decision, the Court declined,
noting that Congress had not seen fit to bring the business under the antitrust laws
by legislation having prospective effect and that the business had developed under
the understanding that it was not subject to these laws, a reversal of which would
have retroactive effect. Toolson v. New York Yankees, 346 U.S. 356 (1953). In Flood
v. Kuhn, 407 U.S. 258 (1972), the Court recognized these decisions as aberrations,
but it thought the doctrine entitled to the benefits of stare decisis, as Congress was
free to change it at any time. The same considerations not being present, the Court
has held that businesses conducted on a multistate basis, but built around local ex-
hibitions, are in commerce and subject to, inter alia, the antitrust laws, in the in-
stance of professional football, Radovich v. National Football League, 352 U.S. 445
(1957), professional boxing, United States v. International Boxing Club, 348 U.S. 236
(1955), and legitimate theatrical productions. United States v. Shubert, 348 U.S. 222
(1955).
676 Blumenstock Bros. v. Curtis Pub. Co., 252 U.S. 436 (1920).
677 Williams v. Fears, 179 U.S. 270 (1900). See also Diamond Glue Co. v. United
States Glue Co., 187 U.S. 611 (1903); Browning v. City of Waycross, 233 U.S. 16
(1914); General Railway Signal Co. v. Virginia, 246 U.S. 500 (1918). But see York
Manufacturing Co. v. Colley, 247 U.S. 21 (1918).
678 Associated Press v. United States, 326 U.S. 1 (1945).
679 American Medical Ass’n v. United States, 317 U.S. 519 (1943). Cf. United
tion, is a unit, every part of which is indicated by the term.” Gibbons v. Ogden, 22
U.S. (9 Wheat.) 1, 194 (1824). See also id. at 195–196.
682 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
683 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). See also Hodel
v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 275–283 (1981); Mulford v.
Smith, 307 U.S. 38 (1939) (agricultural production).
684 Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford v. Wallace, 258
U.S. 495 (1922); Chicago Board of Trade v. Olsen, 262 U.S. 1 (1923).
685 22 U.S. (9 Wheat.) 1, 194, 195 (1824).
686 New York v. Miln, 36 U.S. (11 Pet.) 102 (1837); License Cases, 46 U.S. (5
How.) 504 (1847); Passenger Cases, 48 U.S. (7 How.) 283 (1849); Patterson v. Ken-
tucky, 97 U.S. 501 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd v. Pearson,
128 U.S. 1 (1888); Illinois Central R.R. v. McKendree, 203 U.S. 514 (1906); Keller v.
United States, 213 U.S. 138 (1909); Hammer v. Dagenhart, 247 U.S. 251 (1918); Oli-
ver Iron Co. v. Lord, 262 U.S. 172 (1923).
180 ART. I—LEGISLATIVE DEPARTMENT
are purely interstate. This equation came back into its own, both
with the Court’s stress on the “current of commerce” bringing each
element in the current within Congress’s regulatory power,687 with
the emphasis on the interrelationships of industrial production to
interstate commerce 688 but especially with the emphasis that even
minor transactions have an effect on interstate commerce 689 and
that the cumulative effect of many minor transactions with no sepa-
rate effect on interstate commerce, when they are viewed as a class,
may be sufficient to merit congressional regulation.690 “Commerce
among the states must, of necessity, be commerce with[in] the
states. . . . The power of congress, then, whatever it may be, must
be exercised within the territorial jurisdiction of the several states.” 691
Regulate.— “We are now arrived at the inquiry—what is this
power?” continued the Chief Justice. “It is the power to regulate;
that is, to prescribe the rule by which 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 limita-
tions, other than are prescribed in the constitution . . . If, as has
always been understood, the sovereignty of congress, though lim-
ited 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 in a single gov-
ernment, having in its constitution the same restrictions on the ex-
687 Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford v. Wallace, 258
U.S. 495 (1922); Chicago Board of Trade v. Olsen, 262 U.S. 1 (1923).
688 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
689 NLRB v. Fainblatt, 306 U.S. 601 (1939); Kirschbaum v. Walling, 316 U.S.
517 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); Wickard v.
Filburn, 317 U.S. 111 (1942); NLRB v. Reliance Fuel Oil Co., 371 U.S. 224 (1963);
Katzenbach v. McClung, 379 U.S. 294 (1964); Maryland v. Wirtz, 392 U.S. 183 (1968);
McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 241–243 (1980); Hodel v.
Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981).
690 United States v. Darby, 312 U.S. 100 (1941); Heart of Atlanta Motel v. United
States, 379 U.S. 241 (1964); Maryland v. Wirtz, 392 U.S. 183 (1968); Perez v. United
States, 402 U.S. 146 (1971); Russell v. United States, 471 U.S. 858 (1985); Summit
Health, Ltd. v. Pinhas, 500 U.S. 322 (1991).
691 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). Commerce “among the
several States” does not comprise commerce of the District of Columbia nor of the
territories of the United States. Congress’s power over their commerce is an inci-
dent of its general power over them. Stoutenburgh v. Hennick, 129 U.S. 141 (1889);
Atlantic Cleaners & Dyers v. United States, 286 U.S. 427 (1932); In re Bryant, 4
Fed. Cas. 514 (No. 2067) (D. Oreg. 1865). Transportation between two points in the
same state, when a part of the route is a loop outside the state, is interstate com-
merce. Hanley v. Kansas City Southern Ry. Co., 187 U.S. 617 (1903); Western Union
Tel. Co. v. Speight, 254 U.S. 17 (1920). But such a deviation cannot be solely for the
purpose of evading a tax or regulation in order to be exempt from the state’s reach.
Greyhound Lines v. Mealey, 334 U.S. 653, 660 (1948); Eichholz v. Public Service Comm’n,
306 U.S. 268, 274 (1939). Red cap services performed at a transfer point within the
state of departure but in conjunction with an interstate trip are reachable. New York,
N.H. & H. R.R. v. Nothnagle, 346 U.S. 128 (1953).
ART. I—LEGISLATIVE DEPARTMENT 181
male across state line for noncommercial sexual purposes); Cleveland v. United States,
329 U.S. 14 (1946) (transportation of plural wives across state lines by Mormons);
United States v. Simpson, 252 U.S. 465 (1920) (transportation of five quarts of whis-
key across state line for personal consumption).
696 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v.
McClung, 379 U.S. 294 (1964); Daniel v. Paul, 395 U.S. 298 (1969).
697 E.g., Reid v. Colorado, 187 U.S. 137 (1902) (transportation of diseased live-
stock across state line); Perez v. United States, 402 U.S. 146 (1971) (prohibition of
all loansharking).
182 ART. I—LEGISLATIVE DEPARTMENT
247 U.S. 251 (1918). Of course, there existed much of this time a parallel doctrine
under which federal power was not so limited. E.g., Houston & Texas Ry. v. United
States (The Shreveport Rate Case), 234 U.S. 342 (1914).
702 E.g., California v. United States, 320 U.S. 577 (1944); California v. Taylor,
local governmental employees has alternatively been upheld and invalidated. See
Maryland v. Wirtz, 392 U.S. 183 (1968), overruled in National League of Cities v.
Usery, 426 U.S. 833 (1976), overruled in Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528 (1985).
ART. I—LEGISLATIVE DEPARTMENT 183
Illegal Commerce
That Congress’s protective power over interstate commerce reaches
all kinds of obstructions and impediments was made clear in United
States v. Ferger.705 The defendants had been indicted for issuing a
false bill of lading to cover a fictitious shipment in interstate com-
merce. Before the Court they argued that, because there could be
no commerce in a fraudulent bill of lading, Congress had no power
to exercise criminal jurisdiction over them. Chief Justice White wrote:
“But this mistakenly assumes that the power of Congress is to be
necessarily tested by the intrinsic existence of commerce in the par-
ticular subject dealt with, instead of by the relation of that subject
to commerce and its effect upon it. We say mistakenly assumes, be-
cause we think it clear that if the proposition were sustained it would
destroy the power of Congress to regulate, as obviously that power,
if it is to exist, must include the authority to deal with obstruc-
tions to interstate commerce . . . and with a host of other acts which,
because of their relation to and influence upon interstate com-
merce, come within the power of Congress to regulate, although they
are not interstate commerce in and of themselves.” 706 Much of Con-
gress’s criminal legislation is based simply on the crossing of a state
line as creating federal jurisdiction.707
U.S. 898 (1997). For elaboration, see the discussions under the Supremacy Clause
and under the Tenth Amendment.
705 250 U.S. 199 (1919).
706 250 U.S. at 203.
707 E.g., Hoke v. United States, 227 U.S. 308 (1913) (transportation of women
for purposes of prostitution); Gooch v. United States, 297 U.S. 124 (1936) (kidnap-
ing); Brooks v. United States, 267 U.S. 432 (1925) (stolen autos). For example, in
Scarborough v. United States, 431 U.S. 563 (1977), the Court upheld a conviction
for possession of a firearm by a felon upon a mere showing that the gun had some-
time previously traveled in interstate commerce, and Barrett v. United States, 423
U.S. 212 (1976), upheld a conviction for receipt of a firearm on the same showing.
The Court does require Congress in these cases to speak plainly in order to reach
such activity, inasmuch as historic state police powers are involved. United States v.
Bass, 404 U.S. 336 (1971).
184 ART. I—LEGISLATIVE DEPARTMENT
708 Lottery Case (Champion v. Ames), 188 U.S. 321, 373 (1903).
709 Brolan v. United States, 236 U.S. 216, 222 (1915). The most recent dicta to
this effect appears in Japan Line v. County of Los Angeles, 441 U.S. 434, 448–51
(1979), a “dormant” commerce clause case involving state taxation with an impact
on foreign commerce. In context, the distinction seems unexceptionable, but the lan-
guage extends beyond context.
710 License Cases, 46 U.S. (5 How.) 504, 578 (1847).
711 Pittsburg & Southern Coal Co. v. Bates, 156 U.S. 577, 587 (1895).
ART. I—LEGISLATIVE DEPARTMENT 185
ers, as by the Due Process Clause of the Fifth Amendment, are not
transgressed.712
Instruments of Commerce
The applicability of Congress’s power to the agents and instru-
ments of commerce is implied in Marshall’s opinion in Gibbons v.
Ogden,713 where the waters of the State of New York in their qual-
ity as highways of interstate and foreign transportation were held
to be governed by the overriding power of Congress. Likewise, the
same opinion recognizes that in “the progress of things,” new and
other instruments of commerce will make their appearance. When
the Licensing Act of 1793 was passed, the only craft to which it
could apply were sailing vessels, but it and the power by which it
was enacted were, Marshall asserted, indifferent to the “principle”
by which vessels were moved. Its provisions therefore reached steam
vessels as well. A little over half a century later the principle em-
bodied in this holding was given its classic expression in the opin-
ion of Chief Justice Waite in the case of the Pensacola Telegraph
Co. v. Western Union Telegraph Co.,714 a case closely paralleling Gib-
bons v. Ogden in other respects also. “The powers thus granted are
not confined to the instrumentalities of commerce, or the postal ser-
vice 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 times and circumstances. They extend
from the horse with its rider to the stage-coach, from the sailing-
vessel to the steamboat, from the coach and the steamboat to the
railroad, and from the railroad to the telegraph, as these new agen-
cies are successively brought into use to meet the demands of in-
creasing population and wealth. They were intended for the govern-
ment of the business to which they relate, at all times and under
all circumstances. As they were intrusted to the general govern-
ment for the good of 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
encumbered by State legislation.” 715
The Radio Act of 1927 716 whereby “all forms of interstate and
foreign radio transmissions within the United States, its Territo-
712 United States v. Carolene Products Co., 304 U.S. 144, 147–148 (1938).
713 22 U.S. (9 Wheat.) 1, 217, 221 (1824).
714 96 U.S. 1 (1878). See also Western Union Telegraph Co. v. Texas, 105 U.S.
460 (1882).
715 96 U.S. at 9. “Commerce embraces appliances necessarily employed in carry-
ing on transportation by land and water.” Railroad Co. v. Fuller, 84 U.S. (17 Wall.)
560, 568 (1873).
716 Act of March 28, 1927, 45 Stat. 373, superseded by the Communications Act
717 “No question is presented as to the power of the Congress, in its regulation
(1856). “It is Congress, and not the Judicial Department, to which the Constitution
has given the power to regulate commerce with foreign nations and among the sev-
eral States. The courts can never take the initiative on this subject.” Transportation
Co. v. Parkersburg, 107 U.S. 691, 701 (1883). See also Prudential Ins. Co. v. Benja-
min, 328 U.S. 408 (1946); Robertson v. California, 328 U.S. 440 (1946).
721 But see In re Debs, 158 U.S. 564 (1895), in which the Court held that in the
absence of legislative authorization the Executive had power to seek and federal courts
to grant injunctive relief to remove obstructions to interstate commerce and the free
flow of the mail.
ART. I—LEGISLATIVE DEPARTMENT 187
The law and doctrine of the earlier cases with respect to the
fostering and protection of navigation are well summed up in a fre-
quently cited passage from the Court’s opinion in Gilman v. Phila-
delphia.722 “Commerce includes navigation. The power to regulate
commerce comprehends the control for that purpose, and to the ex-
tent necessary, of all the navigable waters of the United States which
are accessible from a State other than those in which they lie. For
this purpose they are the public property of the nation, and subject
to all requisite legislation by Congress. This necessarily includes
the power to keep them open and free from any obstruction to their
navigation, interposed by the States or otherwise; to remove such
obstructions when they exist; and to provide, by such sanctions as
they may deem proper, against the occurrence of the evil and for
the punishment of offenders. For these purposes, Congress pos-
sesses all the powers which existed in the States before the adop-
tion of the national Constitution, and which have always existed in
the Parliament in England.” 723
Thus, Congress was within its powers in vesting the Secretary
of War with power to determine whether a structure of any nature
in or over a navigable stream is an obstruction to navigation and
to order its abatement if he so finds.724 Nor is the United States
required to compensate the owners of such structures for their loss,
since they were always subject to the servitude represented by Con-
gress’s powers over commerce, and the same is true of the property
of riparian owners that is damaged.725 And while it was formerly
held that lands adjoining nonnavigable streams were not subject to
Bridge Co. v. United States, 216 U.S. 177 (1910); Wisconsin v. Illinois, 278 U.S. 367
(1929). The United States may seek injunctive or declaratory relief requiring the
removal of obstructions to commerce by those negligently responsible for them or it
may itself remove the obstructions and proceed against the responsible party for
costs. United States v. Republic Steel Corp., 362 U.S. 482 (1960); Wyandotte Trans-
portation Co. v. United States, 389 U.S. 191 (1967). Congress’s power in this area is
newly demonstrated by legislation aimed at pollution and environmental degrada-
tion. In confirming the title of the states to certain waters under the Submerged
Lands Act, 67 Stat. 29 (1953), 43 U.S.C. §§ 1301 et seq., Congress was careful to
retain authority over the waters for purposes of commerce, navigation, and the like.
United States v. Rands, 389 U.S. 121, 127 (1967).
725 Gibson v. United States, 166 U.S. 269 (1897). See also Bridge Co. v. United
States, 105 U.S. 470 (1882); United States v. Rio Grande Irrigation Co., 174 U.S.
690 (1899); United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); Seattle v.
Oregon & W.R.R., 255 U.S. 56, 63 (1921); Economy Light Co. v. United States, 256
U.S. 113 (1921); United States v. River Rouge Co., 269 U.S. 411, 419 (1926); Ford &
Son v. Little Falls Co., 280 U.S. 369 (1930); United States v. Commodore Park, Inc.,
324 U.S. 386 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956);
United States v. Rands, 389 U.S. 121 (1967).
188 ART. I—LEGISLATIVE DEPARTMENT
commerce between the States, when the agency extends through two
or more States, and when it is confined in its action entirely within
the limits of a single State. If its authority does not extend to an
agency in such commerce, when that agency is confined within the
limits of a State, its entire authority over interstate commerce may
be defeated. Several agencies combining, each taking up the com-
modity transported at the boundary line at one end of a State, and
leaving it at the boundary line at the other end, the Federal juris-
diction would be entirely ousted, and the constitutional provision
would become a dead letter.” 731 In short, it was admitted, inferen-
tially, that the principle of the decision would apply to land trans-
portation, but the actual demonstration of the fact still awaited some
years.732
Hydroelectric Power; Flood Control.—As a consequence, in
part, of its power to forbid or remove obstructions to navigation in
the navigable waters of the United States, Congress has acquired
the right to develop hydroelectric power and the ancillary right to
sell it to all takers. By a long-standing doctrine of constitutional
law, the states possess dominion over the beds of all navigable streams
within their borders,733 but because of the servitude that Con-
gress’s power to regulate commerce imposes upon such streams, the
states, without the assent of Congress, practically are unable to use
their prerogative for power-development purposes. Sensing no doubt
that controlling power to this end must be attributed to some gov-
ernment in the United States and that “in such matters there can
731 77 U.S. at 566. “The regulation of commerce implies as much control, as far-
reaching power, over an artificial as over a natural highway.” Justice Brewer for the
Court in Monongahela Navigation Co. v. United States, 148 U.S. 312, 342 (1893).
732 Congress had the right to confer upon the Interstate Commerce Commission
the power to regulate interstate ferry rates, N.Y. Central R.R. v. Hudson County,
227 U.S. 248 (1913), and to authorize the Commission to govern the towing of ves-
sels between points in the same state but partly through waters of an adjoining
state. Cornell Steamboat Co. v. United States, 321 U.S. 634 (1944). Congress’s power
over navigation extends to persons furnishing wharfage, dock, warehouse, and other
terminal facilities to a common carrier by water. Hence an order of the United States
Maritime Commission banning certain allegedly “unreasonable practices” by termi-
nals in the Port of San Francisco, and prescribing schedules of maximum free time
periods and of minimum charges was constitutional. California v. United States, 320
U.S. 577 (1944). The same power also comprises regulation of the registry enroll-
ment, license, and nationality of ships and vessels, the method of recording bills of
sale and mortgages thereon, the rights and duties of seamen, the limitations of the
responsibility of shipowners for the negligence and misconduct of their captains and
crews, and many other things of a character truly maritime. See The Lottawanna,
88 U.S. (21 Wall.) 558, 577 (1875); Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109
U.S. 578, 589 (1883); The Hamilton, 207 U.S. 398 (1907); O’Donnell v. Great Lakes
Dredge & Dock Co., 318 U.S. 36 (1943).
733 Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); Shively v. Bowlby, 152 U.S. 1
(1894).
190 ART. I—LEGISLATIVE DEPARTMENT
of spending, independently of the Commerce Clause, as well as from its war and
postal powers, which were also invoked by the Court in this connection.
192 ART. I—LEGISLATIVE DEPARTMENT
tions with the power of eminent domain in the states; and fourth,
it may exempt their franchises from state taxation.747
Federal Regulation of Land Transportation.—Congressio-
nal regulation of railroads may be said to have begun in 1866. By
the Garfield Act, Congress authorized all railroad companies oper-
ating by steam to interconnect with each other “so as to form con-
tinuous lines for the transportation of passengers, freight, troops,
governmental supplies, and mails, to their destination.” 748 An act
of the same year provided federal chartering and protection from
conflicting state regulations to companies formed to construct and
operate telegraph lines.749 Another act regulated the transporta-
tion by railroad of livestock so as to preserve the health and safety
of the animals.750
Congress’s entry into the rate regulation field was preceded by
state attempts to curb the abuses of the rail lines in the Middle
West, which culminated in the “Granger Movement.” Because the
businesses were locally owned, the Court at first upheld state laws
as not constituting a burden on interstate commerce; 751 but after
the various business panics of the 1870s and 1880s drove numer-
ous small companies into bankruptcy and led to consolidation, there
emerged great interstate systems. Thus in 1886, the Court held that
a state may not set charges for carriage even within its own bound-
aries of goods brought from without the state or destined to points
outside it; that power was exclusively with Congress.752 In the fol-
lowing year, Congress passed the original Interstate Commerce Act.753
A Commission was authorized to pass upon the “reasonableness” of
all rates by railroads for the transportation of goods or persons in
interstate commerce and to order the discontinuance of all charges
found to be “unreasonable.” In ICC v. Brimson,754 the Court upheld
747 Thomson v. Pacific R.R., 76 U.S. (9 Wall.) 579 (1870); California v. Pacific
R.R. Co. (Pacific Ry. Cases), 127 U.S. 1 (1888); Cherokee Nation v. Southern Kansas
Ry., 135 U.S. 641 (1890); Luxton v. North River Bridge Co., 153 U.S. 525 (1894).
748 14 Stat. 66 (1866).
749 14 Stat. 221 (1866).
750 17 Stat. 353 (1873).
751 Munn v. Illinois, 94 U.S. 113 (1877); Chicago B. & Q. R. Co. v. Iowa, 94 U.S.
155 (1877); Peik v. Chicago & N.W. Ry., 94 U.S. 164 (1877); Pickard v. Pullman South-
ern Car Co., 117 U.S. 34 (1886).
752 Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886). A variety of state
the Act as “necessary and proper” for the enforcement of the Com-
merce Clause and also sustained the Commission’s power to go to
court to secure compliance with its orders. Later decisions circum-
scribed somewhat the ICC’s power.755
Expansion of the Commission’s authority came in the Hepburn
Act of 1906 756 and the Mann-Elkins Act of 1910.757 By the former,
the Commission was explicitly empowered, after a full hearing on
a complaint, “to determine and prescribe just and reasonable” maxi-
mum rates; by the latter, it was authorized to set rates on its own
initiative and empowered to suspend any increase in rates by a car-
rier until it reviewed the change. At the same time, the Commis-
sion’s jurisdiction was extended to telegraphs, telephones, and cables.758
By the Motor Carrier Act of 1935,759 the ICC was authorized to regu-
late the transportation of persons and property by motor vehicle
common carriers.
The modern powers of the Commission were largely defined by
the Transportation Acts of 1920 760 and 1940.761 The jurisdiction of
the Commission covers not only the characteristics of the rail, mo-
tor, and water carriers in commerce among the states but also the
issuance of securities by them and all consolidations of existing com-
panies or lines.762 Further, the Commission was charged with regu-
lating so as to foster and promote the meeting of the transporta-
tion needs of the country. Thus, from a regulatory exercise originally
begun as a method of restraint there has emerged a policy of en-
couraging a consistent national transportation policy.763
755 ICC v. Alabama Midland Ry., 168 U.S. 144 (1897); Cincinnati, N.O. & Texas
cations Commission.
759 49 Stat. 543 (1935).
760 41 Stat. 474.
761 54 Stat. 898, U.S.C. §§ 1 et seq. The two acts were “intended . . . to provide
a completely integrated interstate regulatory system over motor, railroad, and wa-
ter carriers.” United States v. Pennsylvania R.R., 323 U.S. 612, 618–19 (1945). The
ICC’s powers include authority to determine the reasonableness of a joint through
international rate covering transportation in the United States and abroad and to
order the domestic carriers to pay reparations in the amount by which the rate is
unreasonable. Canada Packers v. Atchison, T. & S. F. Ry., 385 U.S. 182 (1966), and
cases cited.
762 Disputes between the ICC and other government agencies over mergers have
occupied a good deal of the Court’s time. Cf. United States v. ICC, 396 U.S. 491
(1970). See also County of Marin v. United States, 356 U.S. 412 (1958); McLean Truck-
ing Co. v. United States, 321 U.S. 67 (1944); Penn-Central Merger & N & W Inclu-
sion Cases, 389 U.S. 486 (1968).
763 Among the various provisions of the Interstate Commerce Act which have
been upheld are: a section penalizing shippers for obtaining transportation at less
than published rates, Armour Packing Co. v. United States, 209 U.S. 56 (1908); a
194 ART. I—LEGISLATIVE DEPARTMENT
also, American Express Co. v. Caldwell, 244 U.S. 617 (1917); Pacific Tel. & Tel. Co.
v. Tax Comm’n, 297 U.S. 403 (1936); Weiss v. United States, 308 U.S. 321 (1939);
Bethlehem Steel Co. v. State Board, 330 U.S. 767 (1947); United States v. Walsh,
331 U.S. 432 (1947).
765 Wisconsin R.R. Comm’n v. Chicago, B. & Q. R. Co., 257 U.S. 563 (1922). Cf.
Colorado v. United States, 271 U.S. 153 (1926), upholding an ICC order directing
abandonment of an intrastate branch of an interstate railroad. But see North Caro-
lina v. United States, 325 U.S. 507 (1945), setting aside an ICC disallowance of in-
trastate rates set by a state commission as unsupported by the evidence and find-
ings.
766 27 Stat. 531, 45 U.S.C. §§ 1–7.
ART. I—LEGISLATIVE DEPARTMENT 195
riod, a Court majority reviewed a surprising large number of FELA cases, almost
uniformly expanding the scope of recovery under the statute. Cf. Rogers v. Missouri
Pacific R.R., 352 U.S. 500 (1957). This practice was criticized both within and with-
out the Court, cf. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957)
(Justice Frankfurter dissenting); Hart, Foreword: The Time Chart of the Justices, 73
HARV. L. REV. 84, 96–98 (1959), and has been discontinued.
774 See discussion under Railroad Retirement Act and National Labor Relations
Act, infra.
196 ART. I—LEGISLATIVE DEPARTMENT
another and held that this power applied to the transportation even
though the oil or gas was the property of the lines.775 Subse-
quently, the Court struck down state regulation of rates of electric
current generated within that state and sold to a distributor in an-
other State as a burden on interstate commerce.776 Proceeding on
the assumption that the ruling meant the Federal Government had
the power, Congress in the Federal Power Act of 1935 conferred on
the Federal Power Commission authority to regulate the wholesale
distribution of electricity in interstate commerce 777 and three years
later vested the FPC with like authority over natural gas moving
in interstate commerce.778 Thereafter, the Court sustained the power
of the Commission to set the prices at which gas originating in one
state and transported into another should be sold to distributors
wholesale in the latter state.779 “The sale of natural gas originat-
ing in the State and its transportation and delivery to distributors
in any other State constitutes interstate commerce, which is sub-
ject to regulation by Congress . . . . The authority of Congress to
regulate the prices of commodities in interstate commerce is at least
as great under the Fifth Amendment as is that of the States under
the Fourteenth to regulate the prices of commodities in intrastate
commerce.” 780
Other acts regulating commerce and communication originat-
ing in this period have evoked no basic constitutional challenge. These
include the Federal Communications Act of 1934, providing for the
regulation of interstate and foreign communication by wire and ra-
775 The Pipe Line Cases, 234 U.S. 548 (1914). See also State Comm’n v. Wichita
Gas Co., 290 U.S. 561 (1934); Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265 (1921);
United Fuel Gas Co. v. Hallanan, 257 U.S. 277 (1921); Pennsylvania v. West Vir-
ginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett v. Kansas Gas Co., 265 U.S. 298
(1924).
776 Public Utilities Comm’n v. Attleboro Co., 273 U.S. 83 (1927). See also Utah
Power & Light Co. v. Pfost, 286 U.S. 165 (1932); Pennsylvania Power Co. v. FPC,
343 U.S. 414 (1952).
777 49 Stat. 863, 16 U.S.C. §§ 791a–825u.
778 52 Stat. 821, 15 U.S.C. §§ 717–717w.
779 FPC v. Natural Gas Pipeline Co., 315 U.S. 575 (1942).
780 315 U.S. at 582. Sales to distributors by a wholesaler of natural gas deliv-
dio,781 and the Civil Aeronautics Act of 1938, providing for the regu-
lation of all phases of airborne commerce, foreign and interstate.782
781 48 Stat. 1064, 47 U.S.C. §§ 151 et seq. Cf. United States v. Southwestern
Cable Co., 392 U.S. 157 (1968), on the regulation of community antenna television
systems (CATV).
782 52 Stat. 973, as amended. The CAB has now been abolished and its func-
tions are exercised by the Federal Aviation Administration, 49 U.S.C. § 106, as part
of the Department of Transportation.
783 26 Stat. 209 (1890); 15 U.S.C. §§ 1–7.
784 156 U.S. 1 (1895).
198 ART. I—LEGISLATIVE DEPARTMENT
tions of interstate carriers in United States v. Trans-Missouri Freight Ass’n, 166 U.S.
290 (1897); United States v. Joint-Traffic Ass’n, 171 U.S. 505 (1898); and Northern
Securities Co. v. United States, 193 U.S. 197 (1904).
In Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 229–39
(1948), Justice Rutledge, for the Court, critically reviewed the jurisprudence of the
limitations on the Act and the deconstruction of the judicial constraints. In recent
years, the Court’s decisions have permitted the reach of the Sherman Act to expand
along with the expanding notions of congressional power. Gulf Oil Corp. v. Copp Pav-
ing Co., 419 U.S. 186 (1974); Hospital Building Co. v. Rex Hospital Trustees, 425
U.S. 738 (1976); McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232 (1980);
Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). The Court, however, does in-
sist that plaintiffs alleging that an intrastate activity violates the Act prove the re-
lationship to interstate commerce set forth in the Act. Gulf Oil Corp, 419 U.S. at
194–99.
790 Swift & Co. v. United States, 196 U.S. 375, 396 (1905).
200 ART. I—LEGISLATIVE DEPARTMENT
794 Loewe v. Lawlor (The Danbury Hatters Case), 208 U.S. 274 (1908); Duplex
Printing Press Co. v. Deering, 254 U.S. 443 (1921); Coronado Co. v. United Mine
Workers, 268 U.S. 295 (1925); United States v. Bruins, 272 U.S. 549 (1926); Bedford
Co. v. Stone Cutters Ass’n, 274 U.S. 37 (1927); Local 167 v. United States, 291 U.S.
293 (1934); Allen Bradley Co. v. Union, 325 U.S. 797 (1945); United States v. Em-
ploying Plasterers Ass’n, 347 U.S. 186 (1954); United States v. Green, 350 U.S. 415
(1956); Callanan v. United States, 364 U.S. 587 (1961).
795 42 Stat. 159, 7 U.S.C. §§ 171–183, 191–195, 201–203.
796 42 Stat. 998 (1922), 7 U.S.C. §§ 1–9, 10a–17.
797 258 U.S. 495 (1922).
798 258 U.S. at 514.
799 258 U.S. at 515–16. See also Lemke v. Farmers Grain Co., 258 U.S. 50 (1922);
327 U.S. 686 (1946); American Power & Light Co. v. SEC, 329 U.S. 90 (1946).
807 Appalachian Coals, Inc. v. United States, 288 U.S. 344, 372 (1933).
808 48 Stat. 195.
809 295 U.S. 495 (1935).
204 ART. I—LEGISLATIVE DEPARTMENT
ing with these two different matters were declared by the act itself
to be separable so that the invalidity of the one set would not af-
fect the validity of the other, but this strategy was ineffectual. A
majority of the Court, speaking by Justice Sutherland, held that
the act constituted one connected scheme of regulation, which, be-
cause it invaded the reserved powers of the states over conditions
of employment in productive industry, violated the Constitution.815
Justice Sutherland’s opinion set out from Chief Justice Hughes’ as-
sertion in the Schechter case of the “fundamental” character of the
distinction between “direct” and “indirect” effects, that is to say, from
the doctrine of the Sugar Trust case. It then proceeded: “Much stress
is put upon the evils which come from the struggle between employ-
ers and employees over the matter of wages, working conditions,
the right of collective bargaining, etc., and the resulting strikes, cur-
tailment 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 rela-
tion of employer and employee is a local relation. At common law,
it is one of the domestic relations. The wages are paid for the do-
ing of local work. Working conditions are obviously local condi-
tions. The employees are not engaged in or about commerce, but
exclusively in producing a commodity. And the controversies and evils,
which it is the object of the act to regulate and minimize, are local
controversies and evils affecting local work undertaken to accom-
plish that local result. Such effect as they may have upon com-
merce, however extensive it may be, is secondary and indirect. An
increase in the greatness of the effect adds to its importance. It does
not alter its character.” 816
Railroad Retirement Act.—Still pursuing the idea of protect-
ing commerce and the labor engaged in it concurrently, Congress,
by the Railroad Retirement Act of June 27, 1934,817 ordered the com-
pulsory retirement of superannuated employees of interstate carri-
ers, and provided that they be paid pensions out of a fund compris-
ing compulsory contributions from the carriers and their present
and future employees. In Railroad Retirement Bd. v. Alton R.R.,818
however, a closely divided Court held this legislation to be in ex-
cess of Congress’s power to regulate commerce and contrary to the
Due Process Clause of the Fifth Amendment. Justice Roberts wrote
for the majority: “We feel bound to hold that a pension plan thus
speaking for a majority of the Court, listed the Alton case as one “foredoomed to
reversal,” though the formal reversal has never taken place. See Mandeville Island
Farms v. American Crystal Sugar Co., 334 U.S. 219, 230 (1948). Cf. Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 19 (1976).
822 301 U.S. 1 (1937). A major political event had intervened between this deci-
sion and those described in the preceding pages. President Roosevelt, angered at
the Court’s invalidation of much of his depression program, proposed a “reorganiza-
tion” of the Court by which he would have been enabled to name one new Justice
for each Justice on the Court who was more than 70 years old, in the name of “judi-
cial efficiency.” The plan was defeated in the Senate, in part, perhaps, because in
such cases as Jones & Laughlin a Court majority began to demonstrate sufficient
ART. I—LEGISLATIVE DEPARTMENT 207
involved was the National Labor Relations Act of 1935,823 which de-
clared the right of workers to organize, forbade unlawful employer
interference with this right, established procedures by which work-
ers could choose exclusive bargaining representatives with which
employers were required to bargain, and created a board to over-
see all these processes.824
The Court, speaking through Chief Justice Hughes, upheld the
Act and found the corporation to be subject to the Act. “The close
and intimate effect,” he said, “which brings the subject within the
reach of federal power may be due to activities in relation to pro-
ductive industry although the industry when separately viewed is
local.” Nor will it do to say that such effect is “indirect.” Consider-
ing defendant’s “far-flung activities,” the effect of strife between it
and its employees “would be immediate and [it] might be cata-
strophic. 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
effects in an intellectual vacuum. . . . When industries organize them-
selves on a national scale, making their relation to interstate com-
merce the dominant factor in their activities, how can it be main-
“judicial efficiency.” See Leuchtenberg, The Origins of Franklin D. Roosevelt’s ‘Court-
Packing’ Plan, 1966 SUP. CT. REV. 347 (P. Kurland ed.); Mason, Harlan Fiske Stone
and FDR’s Court Plan, 61 YALE L. J. 791 (1952); 2 M. PUSEY, CHARLES EVANS HUGHES
759–765 (1951).
823 49 Stat. 449, as amended, 29 U.S.C. §§ 151 et seq.
824 The NLRA was enacted against the backdrop of depression, although obvi-
ously it went far beyond being a mere antidepression measure, and Congress could
find precedent in railway labor legislation. In 1898, Congress passed the Erdman
Act, 30 Stat. 424, which attempted to influence the unionization of railroad workers
and facilitate negotiations with employers through mediation. The statute fell largely
into disuse because the railroads refused to mediate. Additionally, in Adair v. United
States, 208 U.S. 161 (1908), the Court struck down a section of the law outlawing
“yellow-dog contracts,” by which employers exacted promises of workers to quit or
not to join unions as a condition of employment. The Court held the section not to
be a regulation of commerce, there being no connection between an employee’s mem-
bership in a union and the carrying on of interstate commerce. Cf. Coppage v. Kan-
sas, 236 U.S. 1 (1915).
In Wilson v. New, 243 U.S. 332 (1917), the Court did uphold a congressional
settlement of a threatened rail strike through the enactment of an eight-hour day
and a time-and-a-half for overtime for all interstate railway employees. The na-
tional emergency confronting the Nation was cited by the Court, but with the impli-
cation that the power existed in more normal times, suggesting that Congress’s pow-
ers were not as limited as some judicial decisions had indicated.
Congress’s enactment of the Railway Labor Act in 1926, 44 Stat. 577, as amended,
45 U.S.C. §§ 151 et seq., was sustained by a Court decision admitting the connection
between interstate commerce and union membership as a substantial one. Texas &
N.L.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 (1930). A subsequent de-
cision sustained the application of the Act to “back shop” employees of an interstate
carrier who engaged in making heavy repairs on locomotives and cars withdrawn
from service for long periods, the Court finding that the activities of these employ-
ees were related to interstate commerce. Virginian Ry. v. System Federation No. 40,
300 U.S. 515 (1937).
208 ART. I—LEGISLATIVE DEPARTMENT
merce at other than the prescribed wages and hours. Interstate com-
merce was defined by the act to mean “trade, commerce, transpor-
tation, transmission, or communication among the several States
or from any State to any place outside thereof.”
It was further provided that “for the purposes of this act an
employee shall be deemed to have been engaged in the production
of goods [that is, for interstate commerce] if such employee was em-
ployed . . . in any process or occupation directly essential to the
production thereof in any State.” 833 Sustaining an indictment un-
der the act, a unanimous Court, speaking through Chief Justice Stone,
said: “The motive and purpose of the present regulation are plainly
to make effective the congressional conception of public policy that
interstate commerce should not be made the instrument of compe-
tition in the distribution of goods produced under substandard la-
bor conditions, which competition is injurious to the commerce and
to the States from and to which the commerce flows.” 834 In support
of the decision, the Court invoked Chief Justice Marshall’s reading
of the Necessary and Proper Clause in McCulloch v. Maryland and
his reading of the Commerce Clause in Gibbons v. Ogden.835 Objec-
tions purporting to be based on the Tenth Amendment were met
from the same point of view: “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 amend-
ment states but a truism that all is retained which has not been
surrendered. There is nothing in the history of its adoption to sug-
gest that it was more than declaratory of the relationship between
the national and State governments as it had been established by
the Constitution 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.” 836
833 52 Stat. 1060, as amended, 63 Stat. 910 (1949). The 1949 amendment substi-
tuted the phrase “in any process or occupation directly essential to the production
thereof in any State” for the original phrase “in any process or occupation necessary
to the production thereof in any State.” In Mitchell v. H.B. Zachry Co., 362 U.S.
310, 317 (1960), the Court noted that the change “manifests the view of Congress
that on occasion courts . . . had found activities to be covered, which . . . [Congress
now] deemed too remote from commerce or too incidental to it.” The 1961 amend-
ments to the Act, 75 Stat. 65, departed from previous practices of extending cover-
age to employees individually connected to interstate commerce to cover all employ-
ees of any “enterprise” engaged in commerce or production of commerce; thus, there
was an expansion of employees covered but not, of course, of employers, 29 U.S.C.
§§ 201 et seq. See 29 U.S.C. §§ 203(r), 203(s), 206(a), 207(a).
834 United States v. Darby, 312 U.S. 100, 115 (1941).
835 312 U.S. at 113, 114, 118.
836 312 U.S. at 123–24.
210 ART. I—LEGISLATIVE DEPARTMENT
nance employees of building, part of which was rented to business producing goods
for interstate commerce); Walton v. Southern Package Corp., 320 U.S. 540 (1944)
(night watchman in a plant the substantial portion of the production of which was
shipped in interstate commerce); Armour & Co. v. Wantock, 323 U.S. 126 (1944) (em-
ployees on stand-by auxiliary fire-fighting service of an employer engaged in inter-
state commerce); Borden Co. v. Borella, 325 U.S. 679 (1945) (maintenance employ-
ees in building housing company’s central offices where management was located
though the production of interstate commerce was elsewhere); Martino v. Michigan
Window Cleaning Co., 327 U.S. 173 (1946) (employees of a window-cleaning com-
pany the principal business of which was performed on windows of industrial plants
producing goods for interstate commerce); Mitchell v. Lublin, McGaughy & Associ-
ates, 358 U.S. 207 (1959) (nonprofessional employees of architectural firm working
on plans for construction of air bases, bus terminals, and radio facilities).
838 Cf. Mitchell v. H.B. Zachry Co., 362 U.S. 310, 316–318 (1960).
839 75 Stat. 65.
840 80 Stat. 830.
841 29 U.S.C. §§ 203(r), 203(s).
842 392 U.S. 183 (1968).
843 Another aspect of this case was overruled in National League of Cities v.
Usery, 426 U.S. 833 (1976), which itself was overruled in Garcia v. San Antonio Met-
ropolitan Transit Auth., 469 U.S. 528 (1985).
844 50 Stat. 246, 7 U.S.C. §§ 601 et seq.
ART. I—LEGISLATIVE DEPARTMENT 211
851 United States v. The William, 28 Fed. Cas. 614, 620–623 (No. 16,700) (D.
Mass. 1808). See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 191 (1824); United
States v. Marigold, 50 U.S. (9 How.) 560 (1850).
214 ART. I—LEGISLATIVE DEPARTMENT
860 223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947).
861 239 U.S. 325 (1915).
862 239 U.S. at 329.
863 236 U.S. 216 (1915).
864 Groves v. Slaughter, 40 U.S. (15 Pet.) 449, 488–89 (1841).
865 312 U.S. 100 (1941).
866 The judicial history of the argument may be examined in the majority and
dissenting opinions in Hammer v. Dagenhart, 247 U.S. 251 (1918), a five-to-four de-
cision, in which the majority held Congress not to be empowered to ban from the
channels of interstate commerce goods made with child labor, since Congress’s power
was to prescribe the rule by which commerce was to be carried on and not to pro-
hibit it, except with regard to those things the character of which—diseased cattle,
lottery tickets—was inherently evil. With the majority opinion, compare Justice Stone’s
unanimous opinion in United States v. Darby, 312 U.S. 100, 112–24 (1941), overrul-
ing Hammer v. Dagenhart. See also Corwin, The Power of Congress to Prohibit Com-
merce, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 103 (1938).
216 ART. I—LEGISLATIVE DEPARTMENT
the Court and the fact that the Court’s decision finally sustaining
the act was a five-to-four decision. The opinion of the Court, on the
other hand, prepared by Justice Harlan, marked an almost unquali-
fied triumph at the time for the view that Congress’s power to regu-
late commerce among the States included the power to prohibit it,
especially to supplement and support state legislation enacted un-
der the police power. Early in the opinion, extensive quotation is
made from Chief Justice Marshall’s opinion in Gibbons v. Ogden,877
with special stress upon the definition there given of the phrase “to
regulate.” Justice Johnson’s assertion on the same occasion is also
given: “The power of a sovereign State over commerce, . . . amounts
to nothing more than a power to limit and restrain it at pleasure.”
Further along is quoted with evident approval Justice Bradley’s state-
ment in Brown v. Houston,878 that “[t]he power to regulate com-
merce among the several States is granted to Congress in terms as
absolute as is the power to regulate commerce with foreign na-
tions.”
Following the wake of the Lottery Case, Congress repeatedly
brought its prohibitory powers over interstate commerce and com-
munications to the support of certain local policies of the states in
the exercise of their reserved powers, thereby aiding them in the
repression of a variety of acts and deeds objectionable to public mo-
rality. The conception of the Federal System on which the Court
based its validation of this legislation was stated by it in 1913 in
sustaining the Mann “White Slave” Act in the following words: “Our
dual form of government has its perplexities, State and Nation hav-
ing different spheres of jurisdiction . . . but it must be kept in mind
that we are one people; and the powers reserved to the States and
those conferred on the Nation are adapted to be exercised, whether
independently or concurrently, to promote the general welfare, ma-
terial, and moral.” 879 At the same time, the Court made it plain
that in prohibiting commerce among the states, Congress was equally
free to support state legislative policy or to devise a policy of its
own. “Congress,” it said, “may exercise this authority in aid of the
policy of the State, if it sees fit to do so. It is equally clear that the
policy of Congress acting independently of the States may induce
legislation without reference to the particular policy or law of any
given State. Acting within the authority conferred by the Constitu-
tion it is for Congress to determine what legislation will attain its
McClung, 379 U.S. 294 (1964); Daniel v. Paul, 395 U.S. 298 (1969).
894 Katzenbach v. McClung, 379 U.S. 294, 298, 300–02 (1964); Daniel v. Paul,
423 U.S. 212 (1976). However, because such laws reach far into the traditional po-
lice powers of the states, the Court insists Congress clearly speak to its intent to
cover such local activities. United States v. Bass, 404 U.S. 336 (1971). See also Rewis
v. United States, 401 U.S. 808 (1971); United States v. Enmons, 410 U.S. 396 (1973).
A similar tenet of construction has appeared in the Court’s recent treatment of fed-
ART. I—LEGISLATIVE DEPARTMENT 221
United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)).
904 452 U.S. at 276, 277. The scope of review is restated in Preseault v. ICC,
494 U.S. 1, 17 (1990). Then-Justice Rehnquist, concurring in the two Hodel cases,
objected that the Court was making it appear that no constitutional limits existed
under the Commerce Clause, whereas in fact it was necessary that a regulated ac-
tivity must have a substantial effect on interstate commerce, not just some effect.
He thought it a close case that the statutory provisions here met those tests. 452
U.S. at 307–13.
905 402 U.S. 146 (1971).
ART. I—LEGISLATIVE DEPARTMENT 223
906 Russell v. United States, 471 U.S. 858, 862 (1985). In a later case the Court
avoided the constitutional issue by holding the statute inapplicable to the arson of
an owner-occupied private residence.
907 Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). See also Jones v. United
States, 529 U.S. 848 (2000) (an owner-occupied building is not “used” in interstate
commerce within the meaning of the federal arson statute).
908 500 U.S. at 330–32. The decision was 5-to-4, with the dissenters of the view
that, although Congress could reach the activity, it had not done so.
909 514 U.S. 549 (1995). The Court was divided 5-to-4, with Chief Justice Rehnquist
writing the opinion of the Court, joined by Justices O’Connor, Scalia, Kennedy, and
Thomas, with dissents by Justices Stevens, Souter, Breyer, and Ginsburg.
910 Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down regulation of
tice Souter dissenting) (wondering whether the case is only a misapplication of es-
tablished standards or is a veering in a new direction).
920 529 U.S. 598 (2000). Once again, the Justices were split 5–4, with Chief Jus-
tice Rehnquist’s opinion of the Court being joined by Justices O’Connor, Scalia, Ken-
nedy, and Thomas, and with Justices Souter, Stevens, Ginsburg, and Breyer dissent-
ing.
921 For an expansive interpretation in the area of economic regulation, decided
during the same Term as Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.
265 (1995). Lopez did not “purport to announce a new rule governing Congress’s Com-
merce Clause power over concededly economic activity.” Citizens Bank v. Alafabco,
Inc., 539 U.S. 52, 58 (2003).
922 529 U.S. at 613.
923 Dissenting Justice Souter pointed to a “mountain of data” assembled by Con-
gress to show the effects of domestic violence on interstate commerce. 529 U.S. at
628–30. The Court has evidenced a similar willingness to look behind congressional
findings purporting to justify exercise of enforcement power under section 5 of the
Fourteenth Amendment. See discussion under “enforcement,” infra. In Morrison it-
self, the Court determined that congressional findings were insufficient to justify the
VAWA as an exercise of Fourteenth Amendment power. 529 U.S. at 619–20.
226 ART. I—LEGISLATIVE DEPARTMENT
(2016) (rejecting the argument that the government, in prosecuting a defendant un-
der the Hobbs Act for robbing drug dealers, must prove the interstate nature of the
drug activity). The Taylor Court viewed this result as following necessarily from the
Court’s earlier decision in Raich, because the Hobbs Act imposes criminal penalties
on robberies that affect “all . . . commerce over which the United States has juris-
diction,” 18 U.S.C. § 1951(b)(3) (2012), and Raich established the precedent that the
market for marijuana, “including its intrastate aspects,” is “commerce over which
the United States has jurisdiction.” Taylor, slip op. at 6–7. Taylor was, however, ex-
pressly “limited to cases in which a defendant targets drug dealers for the purpose
of stealing drugs or drug proceeds.” Id. at 9. The Court did not purport to resolve
what federal prosecutors must prove in Hobbs Act robbery cases “where some other
type of business or victim is targeted.” Id.
932 545 U.S. at 18, 22.
933 545 U.S. at 23–25.
934 545 U.S. at 34–35 (Scalia, J., concurring).
935 567 U.S. ___, No. 11–393, slip op. (2012).
228 ART. I—LEGISLATIVE DEPARTMENT
ously, the Court found such power to exist under the taxing power).
Under this “individual mandate,” failure to purchase health insur-
ance may subject a person to a monetary penalty, administered through
the tax code.936 By requiring that individuals purchase health in-
surance, the mandate prevents cost-shifting by those who would oth-
erwise go without it. In addition, the mandate forces healthy indi-
viduals into the insurance risk pool, thus allowing insurers to subsidize
the costs of covering the unhealthy individuals they are now re-
quired to accept.
Chief Justice Roberts, in a controlling opinion,937 suggested that
Congress’s authority to regulate interstate commerce presupposes
the existence of a commercial activity to regulate. Further, his opin-
ion noted that the commerce power had been uniformly described
in previous cases as involving the regulation of an “activity.” 938 The
individual mandate, on the other hand, compels an individual to
become active in commerce on the theory that the individual’s inac-
tivity affects interstate commerce. Justice Roberts suggested that
regulation of individuals because they are doing nothing would re-
sult in an unprecedented expansion of congressional authority with
few discernable limitations. While recognizing that most people are
likely to seek health care at some point in their lives, Justice Rob-
erts noted that there was no precedent for the argument that indi-
viduals who might engage in a commercial activity in the future
could, on that basis, be regulated today.939 The Chief Justice simi-
larly rejected the argument that the Necessary and Proper Clause
could provide this additional authority. Rather than serving as a
“incidental” adjunct to the Commerce Clause, reliance on the Nec-
essary and Proper Clause in this instance would, according to the
Chief Justice, create a substantial expansion of federal authority to
regulate persons not otherwise subject to such regulation.940
936 Patient Protection and Affordable Care Act (ACA), Pub. L. 111–148, as amended.
ing Justices reached similar conclusions regarding the Commerce Clause and the
Necessary and Proper Clause. NFIB, No. 11–393, slip op. at 4–16 (joint opinion of
Scalia, Kennedy, Thomas and Alito, dissenting).
938 See, e.g., Lopez, 514 U.S. at 573 (“Where economic activity substantially af-
U.S. 816 (1950); Mitchell v. United States, 313 U.S. 80 (1941); Morgan v. Virginia,
328 U.S. 373 (1946).
942 Civil Rights Act of 1964, Title II, 78 Stat. 241, 243, 42 U.S.C. §§ 2000a et
seq.
943 42 U.S.C. § 2000a(b).
944 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
945 Katzenbach v. McClung, 379 U.S. 294 (1964).
946 Daniel v. Paul, 395 U.S. 298 (1969).
947 Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach
73, 81, 42 U.S.C. §§ 3601 et seq., was based on the Commerce Clause, but, in Jones
v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court held that legislation that
prohibited discrimination in housing could be based on the Thirteenth Amendment
and made operative against private parties. Similarly, the Court has concluded that,
although § 1 of the Fourteenth Amendment is judicially enforceable only against “state
action,” Congress is not so limited under its enforcement authorization of § 5. United
States v. Guest, 383 U.S. 745, 761, 774 (1966) (concurring opinions); Griffin v.
Breckenridge, 403 U.S. 88 (1971).
952 E.g., Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United
States, 431 U.S. 563 (1977); Lewis v. United States, 445 U.S. 55 (1980); McElroy v.
United States, 455 U.S. 642 (1982).
953 18 U.S.C. § 2421.
954 18 U.S.C. § 2312.
955 18 U.S.C. § 1201.
ART. I—LEGISLATIVE DEPARTMENT 231
Doctrinal Background
The grant of power to Congress over commerce, unlike that of
power to levy customs duties, the power to raise armies, and some
others, is unaccompanied by correlative restrictions on state power.961
This circumstance does not, however, of itself signify that the states
were expected to participate in the power thus granted Congress,
subject only to the operation of the Supremacy Clause. As Hamil-
ton pointed out in The Federalist,962 while some of the powers that
956 18 U.S.C. § 1951. See also 18 U.S.C. § 1952.
957 See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821).
958 See Luna Torres v. Lynch, 578 U.S. ___, No. 14–1096, slip op. at 4.
959 Title II, 82 Stat. 159 (1968), 18 U.S.C. §§ 891 et seq.
960 Perez v. United States, 402 U.S. 146 (1971). Taylor v. United States, 579 U.S.
___, No. 14–6166, slip op. at 3 (2016); Russell v. United States, 471 U.S. 858, 862
(1985).
961 Thus, by Article I, § 10, cl. 2, States are denied the power to “lay any Im-
posts or Duties on Imports or Exports” except by the consent of Congress. The clause
applies only to goods imported from or exported to another country, not from or to
another State, Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869), which prevents its
application to interstate commerce, although Chief Justice Marshall thought to the
contrary, Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 449 (1827), and the contrary
has been strongly argued. W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF
THE UNITED STATES 295–323 (1953).
962 THE FEDERALIST No. 32 (J. Cooke ed. 1961), 199–203. Note that in connection
with the discussion that follows, Hamilton avowed that the taxing power of the States,
232 ART. I—LEGISLATIVE DEPARTMENT
to the same effect. Id. at 226. Late in life, James Madison stated that the power
had been granted Congress mainly as “a negative and preventive provision against
injustice among the States.” 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 14–15
(1865).
964 It was evident from THE FEDERALIST that the principal aim of the Commerce
Clause was the protection of the national market from the oppressive power of indi-
vidual States acting to stifle or curb commerce. Id. at No. 7, 39–41 (Hamilton); No.
11, 65–73 (Hamilton); No. 22, 135–137 (Hamilton); No. 42, 283–284 (Madison); No.
53, 362–364 (Madison). See H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 533 (1949).
For a comprehensive history of the adoption of the Commerce Clause, which does
not indicate a definitive answer to the question posed, see Abel, The Commerce Clause
in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV.
432 (1941). Professor Abel discovered only nine references in the Convention re-
cords to the Commerce Clause, all directed to the dangers of interstate rivalry and
retaliation. Id. at 470–71 & nn. 169–75.
965 The strongest suggestion of exclusivity found in the Convention debates is a
remark by Madison. “Whether the States are now restrained from laying tonnage
duties depends on the extent of the power ‘to regulate commerce.’ These terms are
vague but seem to exclude this power of the States.” 2 M. FARRAND, THE RECORDS OF
THE FEDERAL CONVENTION OF 1787 625 (rev. ed. 1937). However, the statement is re-
corded during debate on the clause, Art. I, § 10, cl. 3, prohibiting states from laying
tonnage duties. That the Convention adopted this clause, when tonnage duties would
ART. I—LEGISLATIVE DEPARTMENT 233
question whether the states were entitled to fill the remaining gaps,
if not by virtue of a “concurrent” power over interstate and foreign
commerce, then by virtue of “that immense mass of legislation” as
Marshall termed it, “which embraces everything within the terri-
tory of a State, not surrendered to the general government” 966—in
a word, the “police power.”
The text and drafting record of the Commerce Clause fails, there-
fore to settle the question of what power is left to the states to adopt
legislation regulating foreign or interstate commerce in greater or
lesser measure. To be sure, in cases of flat conflict between an act
or acts of Congress that regulate such commerce and a state legis-
lative act or acts, from whatever state power ensuing, the act of
Congress is today recognized, and was recognized by Marshall, as
enjoying an unquestionable supremacy.967 But suppose, first, that
Congress has passed no act, or second, that its legislation does not
clearly cover the ground traversed by previously enacted state leg-
islation. What rules then apply? Since Gibbons v. Ogden, both of
these situations have confronted the Court, especially as regards
interstate commerce, hundreds of times, and in meeting them the
Court has, first, determined that it has power to decide when state
power is validly exercised, and, second, it has coined or given cur-
rency to numerous formulas, some of which still guide, even when
they do not govern, its judgment.968
Thus, it has been judicially established that the Commerce Clause
is not only a “positive” grant of power to Congress, but is also a
“negative” constraint upon the states. This aspect of the Commerce
Clause, sometimes called the “dormant” commerce clause, means that
the courts may measure state legislation against Commerce Clause
values even in the absence of congressional regulation, i.e., when
Congress’s exercise of its power is dormant.
Webster, in Gibbons, argued that a state grant of a monopoly
to operate steamships between New York and New Jersey not only
certainly be one facet of regulating interstate and foreign commerce, casts doubt on
the assumption that the commerce power itself was intended to be exclusive.
966 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).
967 22 U.S. at 210–11.
968 The writings detailing the history are voluminous. See, e.g., F. FRANKFURTER,
THE COMMERCE CLAUSE UNDER MARSHALL, TANEY, AND WHITE (1937); B. GAVIT, THE COM-
MERCE CLAUSE OF THE UNITED STATES CONSTITUTION (1932) (usefully containing appendi-
ces cataloguing every Commerce Clause decision of the Supreme Court to that time);
Sholleys, The Negative Implications of the Commerce Clause, 3 U. CHI. L. REV. 556
(1936). Among the recent writings, see Sedler, The Negative Commerce Clause as a
Restriction on State Regulation and Taxation: An Analysis in Terms of Constitu-
tional Structure, 31 WAYNE L. REV. 885 (1985) (a disputed conceptualization arguing
the Court followed a consistent line over the years), and articles cited, id. at 887
n.4.
234 ART. I—LEGISLATIVE DEPARTMENT
separate issue of the dormant commerce clause was present in the License Cases,
46 U.S. (5 How.) 504 (1847), and the Passenger Cases, 48 U.S. (7 How.) 283 (1849),
but, despite the fact that much ink was shed in multiple opinions discussing the
questions, nothing definitive emerged. Chief Justice Taney, in contrast to Marshall,
viewed the clause only as a grant of power to Congress, containing no constraint
upon the states, and the Court’s role was to void state laws in contravention of fed-
eral legislation. 46 U.S. (5 How.) at 573; 48 U.S. (7 How.) at 464.
ART. I—LEGISLATIVE DEPARTMENT 235
973 48 U.S. at 317–20. Although Chief Justice Taney had formerly taken the strong
position that Congress’s power over commerce was not exclusive, he acquiesced si-
lently in the Cooley opinion. For a modern discussion of Cooley, see Goldstein v. Cali-
fornia, 412 U.S. 546, 552–60 (1973), in which, in the context of the Copyright Clause,
the Court, approving Cooley for Commerce Clause purposes, refused to find the Copy-
right Clause either fully or partially exclusive.
974 Just a few years earlier, the Court, in an opinion that merged Commerce
Clause and Import-Export Clause analyses, had seemed to suggest that it was a
discriminatory tax or law that violates the Commerce Clause and not simply a tax
on interstate commerce. Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869).
975 Reading R.R. v. Pennsylvania, 82 U.S. (15 Wall.) 232 (1873). For cases in
which the Commerce Clause basis was intermixed with other express or implied pow-
ers, see Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Steamship Co. v. Portwardens,
73 U.S. (6 Wall.) 31 (1867); Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1868). Chief
Justice Marshall, in Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 488–89 (1827),
indicated, in dicta, that a state tax might violate the Commerce Clause.
976 “Where the subject matter requires a uniform system as between the States,
ing it has given these great silences of the Constitution.” H. P. Hood & Sons, Inc. v.
Du Mond, 336 U.S. 525, 534–35 (1949). Subsequently, the Court stated that the Com-
merce Clause “has long been recognized as a self-executing limitation on the power
of the States to enact laws imposing substantial burdens on such commerce.’ ” Den-
nis v. Higgins, 498 U.S. 439, 447 (1991) (quoting South-Central Timber Dev., Inc. v.
Wunnicke, 467 U.S. 82, 87 (1984) (emphasis added)).
977 91 U.S. 275 (1876).
978 91 U.S. at 282. In Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31, 33
(1867), the Court suggested that congressional silence with regard to matters of “lo-
cal” concern may in some circumstances signify a willingness that the states regu-
late. These principles were further explained by Chief Justice Stone, writing for the
Court in Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 479 n.1 (1939). “The
failure of Congress to regulate interstate commerce has generally been taken to sig-
nify a Congressional purpose to leave undisturbed the authority of the states to make
regulations affecting the commerce in matters of peculiarly local concern, but to with-
hold from them authority to make regulations affecting those phases of it which,
because of the need of a national uniformity, demand that their regulation, if any,
be prescribed by a single authority.” The fullest development of the “silence” ratio-
nale was not by the Court but by a renowned academic, Professor Dowling. Inter-
state Commerce and State Power, 29 VA. L. REV. 1 (1940); Interstate Commerce and
State Power: Revisited Version, 47 COLUM. L. REV. 546 (1947).
979 Southern Pacific Co. v. Arizona, 325 U.S. 761, 768 (1945).
980 325 U.S. at 769. See also California v. Zook, 336 U.S. 725, 728 (1949).
ART. I—LEGISLATIVE DEPARTMENT 237
981 91 U.S. 275, 277, 278, 279, 280, 281, 282 (1876).
982 91 U.S. at 280–81; Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 446 (1827)
(Chief Justice Marshall); Guy v. City of Baltimore, 100 U.S. 434, 440 (1879); Baldwin
v. G.A.F. Seelig, Inc., 294 U.S. 550, 552 (1935); Maryland v. Louisiana, 451 U.S. 725,
754 (1981).
983 E.g., Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 440 (1939); McLeod
v. J. E. Dilworth Co., 322 U.S. 327, 330–31 (1944); Freeman v. Hewit, 329 U.S. 249,
252, 256 (1946); H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 538, 539 (1949);
Dennis v. Higgins, 498 U.S. 439, 447–50 (1991). “[W]e have steadfastly adhered to
the central tenet that the Commerce Clause ‘by its own force created an area of
trade free from interference by the States.’ ” American Trucking Ass’ns v. Scheiner,
483 U.S. 266, 280 (1987) (quoting Boston Stock Exchange v. State Tax Comm’n, 429
U.S. 318, 328 (1977)).
984 E.g., Fort Gratiot Sanitary Landfill, Inc. v. Michigan Natural Resources Dep’t,
504 U.S. 353, 359 (1992); Quill Corp. v. North Dakota, 504 U.S. 298 (1992); Wyo-
ming v. Oklahoma, 502 U.S. 437, 455 (1992). Indeed, the Court, in Dennis v. Hig-
gins, 498 U.S. 439, 447–50 (1991), broadened its construction of the clause, holding
that it confers a “right” upon individuals and companies to engage in interstate trade.
With respect to the exercise of the power, the Court has recognized Congress’s greater
expertise to act and noted its hesitancy to impose uniformity on state taxation. Moor-
man Mfg. Co. v. Bair, 437 U.S. 267, 280 (1978). Cf. Quill Corp., 504 U.S. at 318.
985 In McCarroll v. Dixie Lines, 309 U.S. 176, 183 (1940), Justice Black, for him-
self and Justices Frankfurter and Douglas, dissented, taking precisely this view. See
also Adams Mfg. Co. v. Storen, 304 U.S. 307, 316 (1938) (Justice Black dissenting in
part); Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 442 (1939) (Justice
Black dissenting); Southern Pacific Co. v. Arizona, 325 U.S. 761, 784 (1945) (Justice
Black dissenting); id. at 795 (Justice Douglas dissenting). Justices Douglas and Frank-
furter subsequently wrote and joined opinions applying the dormant commerce clause.
In Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 166 (1954), the Court
rejected the urging that it uphold all not-patently discriminatory taxes and let Con-
gress deal with conflicts. More recently, Justice Scalia has taken the view that, as a
matter of original intent, a “dormant” or “negative” commerce power cannot be jus-
tified in either taxation or regulation cases, but, yielding to the force of precedent,
he will vote to strike down state actions that discriminate against interstate com-
merce or that are governed by the Court’s precedents, without extending any of those
precedents. CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 94 (1987) (concur-
ring); Tyler Pipe Indus. v. Washington State Dep’t of Revenue, 483 U.S. 232, 259
(1987) (concurring in part and dissenting in part); Bendix Autolite Corp. v. Midwesco
238 ART. I—LEGISLATIVE DEPARTMENT
slip op. at 14 (2013) (to the extent that the Virginia Freedom of Information Act
created a market for public documents in Virginia, the Commonwealth was the sole
manufacturer of the product, and therefore did not offend the Commerce Clause when
it limited access to those documents under the Act to citizens of the Common-
wealth).
990 See also White v. Massachusetts Council of Construction Employers, 460 U.S.
204 (1983) (city may favor its own residents in construction projects paid for with
city funds); South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984) (illus-
trating the deep divisions in the Court respecting the scope of the exception).
991 Ch. 111, 10 Stat. 112, § 6.
ART. I—LEGISLATIVE DEPARTMENT 239
statute sustained in Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18
How.) 421 (1856). The latter decision seemed facially contrary to a dictum of Justice
Curtis in Cooley v. Board of Wardens of Port of Philadelphia, 53 U.S. (12 How.) 299,
318 (1851), and cf. Tyler Pipe Indus., Inc. v. Washington State Dept. of Revenue,
483 U.S. 232, 263 n.4 (1987) (Justice Scalia concurring in part and dissenting in
part), but if indeed the Court is interpreting the silence of Congress as a bar to
action under the dormant commerce clause, then when Congress speaks it is enact-
ing a regulatory authorization for the states to act.
993 Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883).
994 The Court had developed the “original package” doctrine to restrict applica-
tion of a state tax on imports from a foreign country in Brown v. Maryland, 25 U.S.
(12 Wheat.) 419, 449 (1827). Although Chief Justice Marshall had indicated in dic-
tum in Brown that the same rule would apply to imports from sister states, the
Court had refused to follow that dictum in Woodruff v. Parham, 75 U.S. (8 Wall.)
123 (1869).
995 Mugler v. Kansas, 123 U.S. 623 (1887). Relying on the distinction between
manufacture and commerce, the Court soon applied this ruling to authorize states
to prohibit manufacture of liquor for an out-of-state market. Kidd v. Pearson, 128
U.S. 1 (1888).
996 125 U.S. 465 (1888).
997 Leisy v. Hardin, 135 U.S. 100 (1890).
998 Ch. 728, 26 Stat. 313 (1890), upheld in In re Rahrer, 140 U.S. 545 (1891).
999 Rhodes v. Iowa, 170 U.S. 412 (1898).
240 ART. I—LEGISLATIVE DEPARTMENT
not fully nullify the Bowman case until 1913, when enactment of
the Webb-Kenyon Act 1000 clearly authorized states to regulate di-
rect shipments for personal use.
National Prohibition, imposed by the Eighteenth Amendment,
temporarily mooted these conflicts, but they reemerged with repeal
of Prohibition by the Twenty-first Amendment. Section 2 of the Twenty-
first Amendment prohibits “the importation into any State . . . for
delivery or use therein of intoxicating liquors, in violation of the
laws thereof.” Initially the Court interpreted this language to au-
thorize states to discriminate against imported liquor in favor of
that produced in-state, but the modern Court has rejected this in-
terpretation, holding instead that “state regulation of alcohol is lim-
ited by the nondiscrimination principle of the Commerce Clause.” 1001
Less than a year after the ruling in United States v. South-
Eastern Underwriters Ass’n 1002 that insurance transactions across
state lines constituted interstate commerce, thereby establishing their
immunity from discriminatory state taxation, Congress passed the
McCarran-Ferguson Act,1003 authorizing state regulation and taxa-
tion of the insurance business. In Prudential Ins. Co. v. Benja-
min,1004 the Court sustained a South Carolina statute that im-
posed on foreign insurance companies, as a condition of their doing
business in the state, an annual tax of three percent of premiums
from business done in South Carolina, while imposing no similar
tax on local corporations. “Obviously,” said Justice Rutledge for the
Court, “Congress’s purpose was broadly to give support to the exist-
ing and future state systems for regulating and taxing the busi-
ness of insurance. This was done in two ways. One was by remov-
ing obstructions which might be thought to flow from its own power,
whether dormant or exercised, except as otherwise expressly pro-
vided in the Act itself or in future legislation. The other was by
declaring expressly and affirmatively that continued state regula-
tion and taxation of this business is in the public interest and that
the business and all who engage in it ‘shall be subject to’ the laws
of the several states in these respects.” 1005
1000 Ch. 90, 37 Stat. 699 (1913), sustained in Clark-Distilling Co. v. Western Md.
Ry., 242 U.S. 311 (1917). See also Department of Revenue v. Beam Distillers, 377
U.S. 341 (1964).
1001 Granholm v. Heald, 544 U.S. 460, 487 (2005). See also Bacchus Imports Ltd.
v. Dias, 468 U.S. 263 (1984); Brown-Forman Distillers Corp. v. New York State Li-
quor Auth., 476 U.S. 573 (1986); Healy v. The Beer Institute, 491 U.S. 324 (1989),
and the analysis of section 2 under Discrimination Between Domestic and Imported
Products.
1002 322 U.S. 533 (1944).
1003 59 Stat. 33, 15 U.S.C. §§ 1011–15.
1004 328 U.S. 408 (1946).
1005 328 U.S. at 429–30.
ART. I—LEGISLATIVE DEPARTMENT 241
over the insurance business to their scope prior to South-Eastern Underwriters. Dis-
criminatory state taxation otherwise cognizable under the Commerce Clause must,
therefore, be challenged under other provisions of the Constitution. See Western &
Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648 (1981). An equal
protection challenge was successful in Metropolitan Life Ins. Co. v. Ward, 470 U.S.
869 (1985), invalidating a discriminatory tax and stating that a favoring of local
industries “constitutes the very sort of parochial discrimination that the Equal Pro-
tection Clause was intended to prevent.” Id. at 878. In Northeast Bancorp, Inc. v.
Board of Governors of the Federal Reserve System, 472 U.S. 159, 176–78 (1985),
the Court declined to follow Ward where state statutes did not, as in Ward, favor
local corporations at the expense of out-of-state corporations, but instead “favor[ed]
out-of-state corporations domiciled within the New England region over out-of-state
corporations from other parts of the country.” The Court noted that the statutes in
Northeast Bancorp were concerned with “preserv[ing] a close relationship between
those in the community who need credit and those who provide credit,” and with
protecting “the independence of local banking institutions”; they did not, like the
statutes in Ward, discriminate against “nonresident corporations solely because they
were nonresidents.”
1007 Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve Sys-
tem, 472 U.S. 159, 174 (1985) (interpreting a provision of the Bank Holding Com-
pany Act, 12 U.S.C. § 1842(d), permitting regional interstate bank acquisitions ex-
pressly approved by the state in which the acquired bank is located, as authorizing
state laws that allow only banks within the particular region to acquire an in-state
bank, on a reciprocal basis, since what the states could do entirely they can do in
part).
1008 South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 90 (1984).
242 ART. I—LEGISLATIVE DEPARTMENT
1009 467 U.S. at 92. See also Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003)
(authorization of state laws regulating milk solids does not authorize milk pricing
and pooling laws). Earlier cases had required express statutory sanction of state bur-
dens on commerce but under circumstances arguably less suggestive of congressio-
nal approval. E.g., Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 958–60 (1982)
(congressional deference to state water law in 37 statutes and numerous interstate
compacts did not indicate congressional sanction for invalid state laws imposing a
burden on commerce); New England Power Co. v. New Hampshire, 455 U.S. 331,
341 (1982) (disclaimer in Federal Power Act of intent to deprive a State of “lawful
authority” over interstate transmissions held not to evince a congressional intent
“to alter the limits of state power otherwise imposed by the Commerce Clause”).
But see White v. Massachusetts Council of Construction Employers, 460 U.S. 204
(1983) (Congress held to have sanctioned municipality’s favoritism of city residents
through funding statute under which construction funds were received).
1010 Maine v. Taylor, 477 U.S. 131 (1986) (holding that Lacey Act’s reinforce-
ment of state bans on importation of fish and wildlife neither authorizes state law
otherwise invalid under the Clause nor shifts analysis from the presumption of in-
validity for discriminatory laws to the balancing test for state laws that burden com-
merce only incidentally).
1011 Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457–58
(1959) (quoting Miller Bros. Co. v. Maryland, 347 U.S. 340, 344 (1954)). Justice Frank-
furter was similarly skeptical of definitive statements. “To attempt to harmonize all
that has been said in the past would neither clarify what has gone before nor guide
the future. Suffice it to say that especially in this field opinions must be read in the
setting of the particular cases and as the product of preoccupation with their spe-
cial facts.” Freeman v. Hewit, 329 U.S. 249, 251–52 (1946). The comments in all
three cases dealt with taxation, but they could just as well have included regula-
tion.
ART. I—LEGISLATIVE DEPARTMENT 243
1012 See J. HELLERSTEIN & W. HELLERSTEIN, STATE AND LOCAL TAXATION: CASES AND MA-
TERIALS (8th ed. 2005), ch. 5.
1013 In addition to the sources previously cited, see J. HELLERSTEIN & W. HEL-
LERSTEIN (8th ed.), ch. 5, supra. For a succinct description of the history, see Hel-
lerstein, State Taxation of Interstate Business: Perspectives on Two Centuries of Con-
stitutional Adjudication, 41 TAX LAW. 37 (1987).
1014 Reading R.R. v. Pennsylvania, 82 U.S. (15 Wall.) 232 (1873).
1015 82 U.S. at 275.
1016 82 U.S. at 275–76, 279.
1017 82 U.S. at 279–80.
1018 82 U.S. at 280.
1019 82 U.S. at 281–82.
244 ART. I—LEGISLATIVE DEPARTMENT
The principle thus asserted, that a state may not tax interstate
commerce, confronted the principle that a state may tax all purely
domestic business within its borders and all property “within its
jurisdiction.” Inasmuch as most large concerns prosecute both an
interstate and a domestic business, while the instrumentalities of
interstate commerce and the pecuniary returns from such com-
merce are ordinarily property within the jurisdiction of some state
or other, the task before the Court was to determine where to draw
the line between the immunity claimed by interstate business, on
the one hand, and the prerogatives claimed by local power on the
other. In the State Tax on Railway Gross Receipts Case,1020 decided
the same day as the State Freight Tax Case, the issue was a tax
upon gross receipts of all railroads chartered by the state, part of
the receipts having been derived from interstate transportation of
the same freight that had been held immune from tax in the first
case. If the latter tax were regarded as a tax on interstate com-
merce, it too would fall. But to the Court, the tax on gross receipts
of an interstate transportation company was not a tax on com-
merce. “[I]t is not everything that affects commerce that amounts
to a regulation of it, within the meaning of the Constitution.” 1021 A
gross receipts tax upon a railroad company, which concededly af-
fected commerce, was not a regulation “directly. Very manifestly it
is a tax upon the railroad company. . . . That its ultimate effect may
be to increase the cost of transportation must be admitted. . . . Still
it is not a tax upon transportation, or upon commerce. . . .” 1022
Insofar as it drew a distinction between these two cases, the
Court did so in part on the basis of Cooley, that some subjects em-
braced within the meaning of commerce demand uniform, national
regulation, whereas other similar subjects permit of diversity of treat-
ment, until Congress acts; and in part on the basis of a concept of
a “direct” tax on interstate commerce, which was impermissible, and
an “indirect” tax, which was permissible until Congress acted.1023
Confusingly, the two concepts were sometimes conflated and some-
times treated separately. In any event, the Court itself was clear
that interstate commerce could not be taxed at all, even if the tax
substantially the same tax in Philadelphia Steamship Co. v. Pennsylvania, 122 U.S.
326 (1887).
1023 See The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 398–
412 (1913) (reviewing and summarizing at length both taxation and regulation cases).
See also Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298, 307 (1924).
ART. I—LEGISLATIVE DEPARTMENT 245
Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U.S. 439 (1894); Postal Tele-
graph Cable Co. v. Adams, 155 U.S. 688 (1895). See cases cited in J. HELLERSTEIN &
W. HELLERSTEIN (8th ed.), supra, at 195 et seq.
1027 E.g., Welton v. Missouri, 91 U.S. 275 (1875); Robbins v. Shelby County Tax-
ing District, 120 U.S. 489 (1887); Darnell & Son Co. v. City of Memphis, 208 U.S.
113 (1908); Bethlehem Motors Co. v. Flynt, 256 U.S. 421 (1921).
1028 Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938); McGoldrick
v. Berwind-White Coal Mining Co., 309 U.S. 33 (1940); International Harvester Co.
v. Department of Treasury, 322 U.S. 340 (1944); International Harvester Co. v. Evatt,
329 U.S. 416 (1947).
1029 E.g., Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434 (1939); Joseph
v. Carter & Weekes Stevedoring Co., 330 U.S. 422 (1947); Central Greyhound Lines
246 ART. I—LEGISLATIVE DEPARTMENT
companies not a license tax for doing business in the state, which was not permit-
ted, Railway Express Agency v. Virginia, 347 U.S. 359 (1954), but as a franchise tax
on intangible property or the privilege of doing business in a corporate form, which
was permissible. Railway Express Agency v. Virginia, 358 U.S. 434 (1959); Colonial
Pipeline Co. v. Traigle, 421 U.S. 100 (1975). Also, the Court increasingly found the
tax to be imposed on a local activity in instances it would previously have seen to
be an interstate activity. E.g., Memphis Natural Gas Co. v. Stone, 335 U.S. 80 (1948);
General Motors Corp. v. Washington, 377 U.S. 436 (1964); Standard Pressed Steel
Co. v. Department of Revenue, 419 U.S. 560 (1975).
1032 Sedler, The Negative Commerce Clause as a Restriction on State Regulation
The dissent was the precursor to Chief Justice Stone’s reformulation of the stan-
dard in 1945. DiSanto was overruled in California v. Thompson, 313 U.S. 109 (1941).
1034 Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839); Hanover Fire Ins.
Co. v. Harding, 272 U.S. 494 (1926); Union Brokerage Co. v. Jensen, 322 U.S. 202
(1944).
ART. I—LEGISLATIVE DEPARTMENT 247
v. Pittman, 419 U.S. 20 (1974). But see Eli Lilly & Co. v. Sav-on Drugs, 366 U.S.
276 (1961).
1037 Wabash, S. L. & P. Ry. v. Illinois, 118 U.S. 557 (1886). The power of the
states generally to set rates had been approved in Chicago, B. & Q. R.R. v. Iowa, 94
U.S. 155 (1877), and Peik v. Chicago & N.W. Ry., 94 U.S. 164 (1877). After the Wabash
decision, states retained power to set rates for passengers and freight taken up and
put down within their borders. Wisconsin R.R. Comm’n v. Chicago, B. & Q. R.R.,
257 U.S. 563 (1922).
1038 Generally, the Court drew the line at regulations that provided for ad-
equate service, not any and all service. Thus, one class of cases dealt with require-
ments that trains stop at designated cities and towns. The regulations were upheld
in such cases as Gladson v. Minnesota, 166 U.S. 427 (1897), and Lake Shore & Mich.
South. Ry. v. Ohio, 173 U.S. 285 (1899), and invalidated in Illinois Cent. R.R. v. Illi-
nois, 163 U.S. 142 (1896). See Chicago, B. & Q. R.R. v. Wisconsin R.R. Comm’n, 237
U.S. 220, 226 (1915); St. Louis & S. F. Ry. v. Public Service Comm’n, 254 U.S. 535,
536–537 (1921). The cases were extremely fact-specific.
1039 E.g., Smith v. Alabama, 124 U.S. 465 (1888) (required locomotive engineers
to be examined and licensed by the state, until Congress should deem otherwise);
New York, N.H. & H. R.R. v. New York, 165 U.S. 628 (1897) (forbidding heating of
passenger cars by stoves); Chicago, R.I. & P. Ry. v. Arkansas, 219 U.S. 453 (1911)
(requiring three brakemen on freight trains of more than 25 cars).
1040 E.g., Terminal Ass’n v. Trainmen, 318 U.S. 1 (1943) (requiring railroad to
provide caboose cars for its employees); Hennington v. Georgia, 163 U.S. 299 (1896)
(forbidding freight trains to run on Sundays). But see Seaboard Air Line Ry. v. Blackwell,
244 U.S. 310 (1917) (voiding as too onerous on interstate transportation a law requir-
ing trains to come to almost a complete stop at all grade crossings, when there were
124 highway crossings at grade in 123 miles, doubling the running time).
1041 Four cases over a lengthy period sustained the laws. Chicago, R.I. & Pac.
Ry. Co. v. Arkansas, 219 U.S. 453 (1911); St. Louis, I. Mt. & So. Ry. v. Arkansas, 240
248 ART. I—LEGISLATIVE DEPARTMENT
160 (1916).
1043 E.g., Bradley v. Public Utility Comm’n, 289 U.S. 92 (1933) (state could deny
tor vehicle carrying any other vehicle above the head of the operator). By far, the
example of the greatest deference is South Carolina Highway. Dep’t v. Barnwell Bros.,
303 U.S. 177 (1938), in which the Court upheld, in a surprising Stone opinion, truck
weight and width restrictions prescribed by practically no other state (in terms of
the width, no other).
1045 E.g., Transportation Co. v. City of Chicago, 99 U.S. 635 (1879); Willamette
Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888). See Kelly v. Washington, 302 U.S. 1
(1937) (upholding state inspection and regulation of tugs operating in navigable wa-
ters, in absence of federal law).
1046 E.g., Western Union Tel Co. v. Foster, 247 U.S. 105 (1918); Lemke v. Farm-
ers Grain Co., 258 U.S. 50 (1922); State Comm’n v. Wichita Gas Co., 290 U.S. 561
(1934).
1047 Milk Control Board v. Eisenberg Co., 306 U.S. 346 (1939) (milk); Parker v.
inspection in each county of meat transported over 100 miles from the place of slaugh-
ter); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) (city ordinance prevent-
ing selling of milk as pasteurized unless it had been processed and bottled at an
approved plant within a radius of five miles from the central square of Madison). As
the latter case demonstrates, it is constitutionally irrelevant that other Wisconsin
producers were also disadvantaged by the law. For a modern application of the prin-
ciple of these cases, see Fort Gratiot Sanitary Landfill v. Michigan Nat. Res. Dep’t,
504 U.S. 353 (1992) (forbidding landfills from accepting out-of-county wastes). See
also C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 391 (1994) (discrimi-
nation against interstate commerce not preserved because local businesses also suf-
fer).
1051 294 U.S. 511 (1935). See also Polar Ice Cream & Creamery Co. v. Andrews,
375 U.S. 361 (1964). With regard to products originating within the state, the Court
had no difficulty with price fixing. Nebbia v. New York, 291 U.S. 502 (1934).
1052 336 U.S. 525 (1949). For the most recent case in this saga, see West Lynn
own products by admitting only products (here, again, milk) from states that have
reciprocity agreements with it to protect its own dealers. Great Atlantic & Pacific
Tea Co. v. Cottrell, 424 U.S. 366 (1976).
250 ART. I—LEGISLATIVE DEPARTMENT
1054 Formulation of a balancing test was achieved in Southern Pacific Co. v. Ari-
zona, 325 U.S. 761 (1945), and was thereafter maintained more or less consistently.
The Court’s current phrasing of the test was in Pike v. Bruce Church, Inc., 397 U.S.
137 (1970).
1055 Indeed, scholars dispute just when the modern standard was firmly ad-
opted. The conventional view is that it was articulated in Complete Auto Transit,
Inc. v. Brady, 430 U.S. 274 (1977), but there also seems little doubt that the founda-
tion of the present law was laid in Northwestern States Portland Cement Co. v. Min-
nesota, 358 U.S. 450 (1959).
1056 Compare Freeman v. Hewit, 329 U.S. 249, 252–256 (1946), with Western
Live Stock v. Bureau of Revenue, 303 U.S. 250, 258, 260 (1938).
1057 358 U.S. 450 (1959).
1058 358 U.S. at 461–62. See Western Live Stock v. Bureau of Revenue, 303 U.S.
250, 254 (1938). For recent reiterations of the principle, see Quill Corp. v. North
Dakota ex rel. Heitkamp, 504 U.S. 298, 310 n.5 (1992) (citing cases).
1059 Hellerstein, State Taxation of Interstate Business: Perspectives on Two Cen-
ated nature of the purported distinction was evidenced in Colonial Pipeline Co. v.
Traigle, 421 U.S. 100 (1975), in which the Court sustained a nondiscriminatory, fairly
apportioned franchise tax that was measured by the taxpayer’s capital stock, im-
posed on a pipeline company doing an exclusively interstate business in the taxing
state, on the basis that it was a tax imposed on the privilege of conducting business
in the corporate form.
1061 430 U.S. 274 (1977).
1062 430 U.S. at 279, 288. “In reviewing Commerce Clause challenges to state
taxes, our goal has instead been to ‘establish a consistent and rational method of
inquiry’ focusing on ‘the practical effect of a challenged tax.’ ” Commonwealth Edison
Co. v. Montana, 453 U.S. 609, 615 (1981) (quoting Mobil Oil Corp. v. Commissioner
of Taxes, 445 U.S. 425, 443 (1980)).
1063 430 U.S. at 279. The rationale of these four parts of the test is set out in
Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298, 312–13 (1992). A recent
application of the four-part Complete Auto Transit test is Oklahoma Tax Comm’n v.
Jefferson Lines, Inc., 514 U.S. 175 (1995).
252 ART. I—LEGISLATIVE DEPARTMENT
the taxing State. The Commerce Clause forbids the States to levy
taxes that discriminate against interstate commerce or that bur-
den it by subjecting activities to multiple or unfairly apportioned
taxation.” 1064 “The broad inquiry subsumed in both constitutional
requirements is whether the taxing power exerted by the state bears
fiscal relation to protection, opportunities and benefits given by the
state—that is, whether the state has given anything for which it
can ask return.” 1065
The question of the presence of a substantial nexus often arises
when a state imposes on out-of-state vendors an obligation to col-
lect use taxes on goods sold in the taxing state, and a determina-
tive factor is whether the vendor is physically present in the state.
The Court has sustained such an imposition on mail order sellers
with retail outlets, solicitors, or property within the taxing state,1066
but it has denied the power to a state to tax a seller whose “only
connection with customers in the State is by common carrier or the
United States mail.” 1067 The validity of general business taxes on
interstate enterprises may also be determined by the nexus stan-
1064 Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1505 (2008)
(citations and internal quotation marks omitted). “[T]he due process nexus analysis
requires that we ask whether an individual’s connections with a State are substan-
tial enough to legitimate the State’s exercise of power over him. . . . In contrast,
the Commerce Clause and its nexus requirement are informed not so much by con-
cerns about fairness for the individual defendant as by structural concerns about
the effects of state regulation on the national economy.” Quill Corp. v. North Dakota
ex rel. Heitkamp, 504 U.S. 298, 312 (1992).
1065 128 S. Ct. at 1505 (internal quotation marks omitted). It had been thought,
prior to the decision in Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298,
305 (1992), that the tests for nexus under the Commerce Clause and the Due Pro-
cess Clause were identical, but the Court in that case, although stating that the
two tests “are closely related” (citing National Bellas Hess, Inc. v. Dept. of Revenue
of Illinois, 386 U.S. 753, 756 (1967)), held that they “differ fundamentally” and found
a state tax to satisfy the Due Process Clause but to violate the Commerce Clause.
Compare Quill at 325–28 (Justice White concurring in part and dissenting in part).
However, the requirement for “some definite link, some minimum connection, be-
tween a state and the person, property or transaction it seeks to tax” probably sur-
vives the bifurcation of the tests in Quill. National Bellas Hess, Inc. v. Dept. of Rev-
enue of Illinois, 386 U.S. 753, 756 (1967) (Commerce Clause), quoting Miller Bros.
Co. v. Maryland, 347 U.S. 340, 344–45 (1954) (Due Process Clause).
1066 Scripto v. Carson, 362 U.S. 207 (1960); National Geographic Soc’y v. Califor-
nia Bd. of Equalization, 430 U.S. 551 (1977). In Scripto, the vendor’s agents that
were in the state imposing the tax were independent contractors, rather than em-
ployees, but this distinction was irrelevant. See also Tyler Pipe Indus. v. Washing-
ton State Dept. of Revenue, 483 U.S. 232, 249–50 (1987) (reaffirming Scripto on this
point). See also D. H. Holmes Co. v. McNamara, 486 U.S. 24 (1988) (upholding im-
position of use tax on catalogs, printed outside state at direction of an in-state cor-
poration and shipped to prospective customers within the state).
1067 National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 386 U.S. 753, 758
(1967), reaffirmed with respect to the Commerce Clause in Quill Corp. v. North Da-
kota ex rel. Heitkamp, 504 U.S. 298 (1992).
ART. I—LEGISLATIVE DEPARTMENT 253
§ 381, providing that mere solicitation by a company acting outside the state did
not support imposition of a state income tax on a company’s proceeds. See Heublein,
Inc. v. South Carolina Tax Comm’n, 409 U.S. 275 (1972).
1069 Standard Pressed Steel Co. v. Department of Revenue, 419 U.S. 560 (1975).
See also General Motors Corp. v. Washington, 377 U.S. 436 (1964).
1070 Tyler Pipe Indus. v. Dept. of Revenue, 483 U.S. 232, 249–51 (1987). The
Court agreed with the state court’s holding that “the crucial factor governing nexus
is whether the activities performed in this state on behalf of the taxpayer are signifi-
cantly associated with the taxpayer’s ability to establish and maintain a market in
this state for the sales.” Id. at 250.
1071 United Air Lines v. Mahin, 410 U.S. 623 (1973).
1072 Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1505–06
(2008) (citations and internal quotation marks omitted). The holding of this case
was that the concept of “operational function,” which the Court had introduced in
prior cases, was “not intended to modify the unitary business principle by adding a
254 ART. I—LEGISLATIVE DEPARTMENT
(internal quotation marks omitted). See also ASARCO Inc. v. Id. State Tax Comm’n,
458 U.S. 307, 316–17 (1982); Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 528
U.S. 58 (2000) (interest deduction not properly apportioned between unitary and non-
unitary business).
1074 E.g., Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18, 26 (1891); Maine
Pipe Indus. v. Dep’t of Revenue, 483 U.S. 232, 251 (1987); Container Corp. of Amer.
v. Franchise Tax Bd., 463 U.S. 159 (1983); F. W. Woolworth Co. v. N.M. Tax. & Rev-
enue Dep’t, 458 U.S. 354 (1982); ASARCO Inc. v. Id. State Tax Comm’n, 458 U.S.
307 (1982); Exxon Corp. v. Wis. Dep’t of Revenue, 447 U.S. 207 (1980); Mobil Oil
Corp. v. Comm’r of Taxes, 445 U.S. 425 (1980); Moorman Mfg. Co. v. Bair, 437 U.S.
267 (1978). Cf. Am. Trucking Ass’ns Inc. v. Scheiner, 483 U.S. 266 (1987).
1076 Comptroller of the Treasury of Md. v. Wynne, 575 U.S. ___, No. 13–485, slip
op. at 13 (2015) (“The Due Process Clause allows a State to tax ‘all the income of its
residents, even income earned outside the taxing jurisdiction.’ But ‘while a State
may, consistent with the Due Process Clause, have the authority to tax a particular
taxpayer, imposition of the tax may nonetheless violate the Commerce Clause.”) (in-
ternal citations omitted). The challenge in Wynne was brought by Maryland resi-
dents, whose worldwide income three dissenting Justices would have seen as sub-
ject to Maryland taxation based on their domicile in the state, even though it resulted
in the double taxation of income earned in other states. Id. at 2 (Ginsburg, J., dis-
senting) (“For at least a century, ‘domicile’ has been recognized as a secure ground
for taxation of residents’ worldwide income.”). However, the majority took a differ-
ent view, holding that Maryland’s taxing scheme was unconstitutional under the dor-
mant Commerce Clause because it did not provide a full credit for taxes paid to
other states on income earned from interstate activities. Id. at 21–25 (majority opin-
ion).
ART. I—LEGISLATIVE DEPARTMENT 255
was taxed by another state on the same call. Actual multiple taxation could thus be
avoided, the risks of other multiple taxation was small, and it was impracticable to
keep track of the taxable transactions.
1080 American Trucking Ass’ns v. Scheiner, 483 U.S. 266 (1987).
1081 Comptroller of the Treasury of Md. v. Wynne, 575 U.S. ___, No. 13–485, slip
op. at 22 (2015). The Court in Wynne expressly declined to distinguish between taxes
on gross receipts and taxes on net income or between taxes on individuals and taxes
256 ART. I—LEGISLATIVE DEPARTMENT
hound Lines v. Mealey, 334 U.S. 653 (1948). The Court in that case struck down a
state statute that failed to apportion its taxation of interstate bus ticket sales to
reflect the distance traveled within the state.
1084 Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995). In-
deed, the Court analogized the tax to that in Goldberg v. Sweet, 488 U.S. 252 (1989),
a tax on interstate telephone services that originated in or terminated in the state
and that were billed to an in-state address.
1085 Fulton Corp. v. Faulkner, 516 U.S. 325 (1996). The state had defended on
the basis that the tax was a “compensatory” one designed to make interstate com-
merce bear a burden already borne by intrastate commerce. The Court recognized
the legitimacy of the defense, but it found the tax to meet none of the three criteria
for classification as a valid compensatory tax. Id. at 333–44. See also South Central
Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999) (tax not justified as compensatory).
1086 Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 329 (1977) (quot-
ing Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457 (1959)).
The principle, as we have observed above, is a long-standing one under the Com-
merce Clause. E.g., Welton v. Missouri, 91 U.S. 275 (1876).
ART. I—LEGISLATIVE DEPARTMENT 257
1087 Maryland v. Louisiana, 451 U.S. 725, 753–760 (1981). But see Common-
wealth Edison Co. v. Montana, 453 U.S. 609, 617–619 (1981). See also Oregon Waste
Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 (1994) (sur-
charge on in-state disposal of solid wastes that discriminates against companies dis-
posing of waste generated in other states invalid).
1088 467 U.S. 638 (1984).
1089 The Court applied the “internal consistency” test here too, in order to deter-
mine the existence of discrimination. 467 U.S. at 644–45. Thus, the wholesaler did
not have to demonstrate it had paid a like tax to another state, only that if other
states imposed like taxes it would be subject to discriminatory taxation. See also
Tyler Pipe Industries v. Dept. of Revenue, 483 U.S. 232 (1987); American Trucking
Ass’ns, Inc. v. Scheiner, 483 U.S. 266 (1987); Amerada Hess Corp. v. Director, New
Jersey Taxation Div., 490 U.S. 66 (1989); Kraft Gen. Foods v. Iowa Dep’t of Rev-
enue, 505 U.S. 71 (1992).
1090 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984).
1091 New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988). Compare Fulton
Corp. v. Faulkner, 516 U.S. 325 (1996) (state intangibles tax on a fraction of the
value of corporate stock owned by in-state residents inversely proportional to the
corporation’s exposure to the state income tax violated dormant commerce clause),
with General Motors Corp. v. Tracy, 519 U.S. 278 (1997) (state imposition of sales
and use tax on all sales of natural gas except sales by regulated public utilities, all
of which were in-state companies, but covering all other sellers that were out-of-
state companies did not violate dormant commerce clause because regulated and un-
regulated companies were not similarly situated).
1092 Comptroller of the Treasury of Md. v. Wynne, 575 U.S. ___, No. 13–485, slip
op. at 23 (2015) (“[T]he internal consistency test reveals what the undisputed eco-
nomic analysis shows: Maryland’s tax scheme is inherently discriminatory and oper-
ates as a tariff.”). In so doing, the Court noted that Maryland could “cure the prob-
lem with its current system” by granting a full credit for taxes paid to other states,
but it did “not foreclose the possibility” that Maryland could comply with the Com-
merce Clause in some other way. Id. at 25.
258 ART. I—LEGISLATIVE DEPARTMENT
1093 520 U.S. 564 (1997). The decision was 5-to-4 with a strong dissent by Jus-
tice Scalia, id. at 595, and a philosophical departure by Justice Thomas. Id. at 609.
1094 520 U.S. at 586.
1095 Commonwealth Edison Co. v. Montana, 453 U.S. 609, 620–29 (1981). Two
state taxes imposing flat rates on truckers, because they did not vary directly with
miles traveled or with some other proxy for value obtained from the state, were found
to violate this standard in American Trucking Ass’ns, Inc. v. Scheiner, 483 U.S. 266,
291 (1987). But see American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 545
U.S. 429 (2005), upholding imposition of a flat annual fee on all trucks engaged in
intrastate hauling (including trucks engaged in interstate hauling that “top off ” loads
with intrastate pickups and deliveries) and concluding that levying the fee on a per-
truck rather than per-mile basis was permissible in view of the objectives of defray-
ing costs of administering various size, weight, safety, and insurance requirements.
ART. I—LEGISLATIVE DEPARTMENT 259
1102 Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992) (quoting City of Philadel-
phia v. New Jersey, 437 U.S. 617, 624 (1978)). See also Brown-Forman Distillers
Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986). In Maine v. Taylor,
477 U.S. 131 (1986), the Court upheld a protectionist law, finding a valid justifica-
tion aside from economic protectionism. The state barred the importation of out-of-
state baitfish, and the Court credited lower-court findings that legitimate ecological
concerns existed about the possible presence of parasites and nonnative species in
baitfish shipments.
1103 Wyoming v. Oklahoma, 502 U.S. 437 (1992). See also Maryland v. Louisi-
ana, 451 U.S. 725 (1981) (a tax case, invalidating a state first-use tax, which, be-
cause of exceptions and credits, imposed a tax only on natural gas moving out-of-
state, because of impermissible discrimination).
1104 New England Power Co. v. New Hampshire, 455 U.S. 331 (1982). See also
Hughes v. Oklahoma, 441 U.S. 322 (1979) (voiding a ban on transporting minnows
caught in the state for sale outside the state); Sporhase v. Nebraska, 458 U.S. 941
(1982) (invalidating a ban on the withdrawal of ground water from any well in the
state intended for use in another state). These cases largely eviscerated a line of
older cases recognizing a strong state interest in protection of animals and re-
sources. See Geer v. Connecticut, 161 U.S. 519 (1896). New England Power had rather
old antecedents. E.g., West v. Kansas Gas Co., 221 U.S. 229 (1911); Pennsylvania v.
West Virginia, 262 U.S. 553 (1923).
1105 432 U.S. 333 (1977). Other cases in which a state was attempting to pro-
mote and enhance local products and businesses include Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970) (state required producer of high-quality cantaloupes to pack them
in the state, rather than in an adjacent state at considerably less expense, in order
that the produce be identified with the producing state); Foster-Fountain Packing
Co. v. Haydel, 278 U.S. 1 (1928) (state banned export of shrimp from state until
hulls and heads were removed and processed, in order to favor canning and manu-
facture within the state).
ART. I—LEGISLATIVE DEPARTMENT 261
discrimination, is also drawn from Dean Milk Co. v. City of Madison, 340 U.S. 349
(1951).
1107 E.g., H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949). See also
Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366 (1976) (state effort to com-
bat discrimination by other states against its milk through reciprocity provisions).
In West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994), the Court held invalidly
discriminatory against interstate commerce a state milk pricing order, which im-
posed an assessment on all milk sold by dealers to in-state retailers, the entire as-
sessment being distributed to in-state dairy farmers despite the fact that about two-
thirds of the assessed milk was produced out of state. The avowed purpose and
undisputed effect of the provision was to enable higher-cost in-state dairy farmers
to compete with lower-cost dairy farmers in other states.
1108 Healy v. Beer Institute, Inc., 491 U.S. 324 (1989); Brown-Forman Distillers
Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986). See also Bacchus Im-
ports, Ltd. v. Dias, 468 U.S. 263 (1984) (a tax case). But cf. Pharmaceutical Re-
search and Mfrs. of America v. Walsh, 538 U.S. 644 (2003) (state prescription drug
program providing rebates to participating companies does not regulate prices of out-
of-state transactions and does not favor in-state over out-of-state companies).
1109 City of Philadelphia v. New Jersey, 437 U.S. 617, 629 (1978), reaffirmed and
applied in Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334 (1992), and Fort
Gratiot Sanitary Landfill v. Michigan Natural Resources Dept., 504 U.S. 353 (1992).
1110 See also Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511
149–59 (1994). Weight was given to this consideration by Justice O’Connor, 511 U.S.
at 401 (concurring) (local law an excessive burden on interstate commerce), and by
Justice Souter, id. at 410 (dissenting).
1117 550 U.S. 330 (2007).
ART. I—LEGISLATIVE DEPARTMENT 263
1118 550 U.S. at 334. The Commerce Clause test referred to is the test set forth
in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). “Under the Pike test, we will
uphold a nondiscriminatory statute . . . ‘unless the burden imposed on [interstate]
commerce is clearly excessive in relation to the putative local benefits.’ ” Id. at 1797
(quoting Pike, 397 U.S. at 142). The fact that a state is seeking to protect itself
from economic or other difficulties, is not, by itself, sufficient to justify barriers to
interstate commerce. Edwards v. California, 314 U.S. 160 (1941) (striking down Cali-
fornia effort to bar “Okies”—persons fleeing the Great Plains dust bowl during the
Depression). Cf. Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867) (without tying it to
any particular provision of Constitution, Court finds a protected right of interstate
movement). The right of travel is now an aspect of equal protection jurisprudence.
1119 128 S. Ct. 1801 (2008).
1120 This exemption from state taxes is also generally made available to bonds
nation because Kentucky, as a public entity, does not have to treat itself as being
‘substantially similar’ to the other bond issuers in the market.” Id. at 1811. Three
members of the Court would have also found this taxation scheme constitutional
under the “market participant” doctrine, despite the argument that the state, in this
instance, was acting as a market regulator, not as a market participant. Id. at 1812–14
(Justice Souter, joined by Justices Stevens and Breyer).
264 ART. I—LEGISLATIVE DEPARTMENT
ing that, at least in this instance, the “Judicial Branch is not insti-
tutionally suited to draw reliable conclusions.” 1122
Drawing the line between regulations that are facially discrimi-
natory and regulations that necessitate balancing is not an easy task.
Not every claim of unconstitutional protectionism has been sus-
tained. Thus, in Minnesota v. Clover Leaf Creamery Co.,1123 the Court
upheld a state law banning the retail sale of milk products in plas-
tic, nonreturnable containers but permitting sales in other nonre-
turnable, nonrefillable containers, such as paperboard cartons. The
Court found no discrimination against interstate commerce, be-
cause both in-state and out-of-state interests could not use plastic
containers, and it refused to credit a lower, state-court finding that
the measure was intended to benefit the local pulpwood industry.
In Exxon Corp. v. Governor of Maryland,1124 the Court upheld a stat-
ute that prohibited producers or refiners of petroleum products from
operating retail service stations in Maryland. The statute did not
on its face discriminate against out-of-state companies, but, as there
were no producers or refiners in Maryland, “the burden of the dives-
titure requirements” fell solely on such companies.1125 The Court
found, however, that “this fact does not lead, either logically or as
a practical matter, to a conclusion that the State is discriminating
against interstate commerce at the retail level,” 1126 as the statute
does not “distinguish between in-state and out-of-state companies
in the retail market.” 1127
Still a model example of balancing is Chief Justice Stone’s opin-
ion in Southern Pacific Co. v. Arizona.1128 At issue was the validity
of Arizona’s law barring the operation within the state of trains of
more than 14 passenger cars (no other state had a figure this low)
or 70 freight cars (only one other state had a cap this low). First,
the Court observed that the law substantially burdened interstate
commerce. Enforcement of the law in Arizona, while train lengths
1122 128 S. Ct. at 1817.
1123 449 U.S. 456, 470–74 (1981).
1124 437 U.S. 117 (1978).
1125 437 U.S. at 125.
1126 437 U.S. at 125.
1127 437 U.S. at 126.
1128 325 U.S. 761 (1945). Interestingly, Justice Stone had written the opinion
for the Court in South Carolina State Highway Dep’t v. Barnwell Bros., 303 U.S.
177 (1938), in which, in a similar case involving regulation of interstate transporta-
tion and proffered safety reasons, he had eschewed balancing and deferred overwhelm-
ingly to the state legislature. Barnwell Bros. involved a state law that prohibited
use on state highways of trucks that were over 90 inches wide or that had a gross
weight over 20,000 pounds, with from 85% to 90% of the Nation’s trucks exceeding
these limits. This deference and refusal to evaluate evidence resurfaced in a case
involving an attack on railroad “full-crew” laws. Brotherhood of Locomotive Fire-
men & Enginemen v. Chicago, R.I. & P. Railroad Co., 393 U.S. 129 (1968).
ART. I—LEGISLATIVE DEPARTMENT 265
states is in part a reflection of the Cooley national uniformity interest and partly a
hesitation about the autonomy of other states. E.g., CTS Corp. v. Dynamics Corp. of
America, 481 U.S. 69, 88–89 (1987); Brown-Forman Distillers Corp. v. New York State
Liquor Auth., 476 U.S. 573, 583–84 (1986).
1130 Southern Pacific Co. v. Arizona, 325 U.S. 761, 771–75 (1945).
1131 325 U.S. at 775–79, 781–84.
1132 359 U.S. 520 (1959).
266 ART. I—LEGISLATIVE DEPARTMENT
1133 Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429 (1978); Kassel v. Consoli-
ing Raymond Motor Transp. v. Rice, 434 U.S. 429, 441, 443 (1978)). Both cases in-
validated state prohibitions of the use of 65-foot single-trailer trucks on state high-
ways.
1135 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).
1136 Lewis v. BT Investment Managers, Inc., 447 U.S. 27 (1980).
1137 457 U.S. 624 (1982) (plurality opinion).
ART. I—LEGISLATIVE DEPARTMENT 267
expanded in Low v. Austin, 80 U.S. (13 Wall.) 29 (1872), and subsequent cases, to
bar states from levying nondiscriminatory, ad valorem property taxes upon goods
that are no longer in import transit. This line of cases was overruled in Michelin
Tire Corp. v. Wages, 423 U.S. 276 (1976).
268 ART. I—LEGISLATIVE DEPARTMENT
eral property by breaking up the packages, may the state treat them
as taxable property.
Obviously, to the extent that the Import-Export Clause was con-
strued to impose a complete ban on taxation of imports so long as
they were in their original packages, there was little occasion to
develop a Commerce Clause analysis that would have reached only
discriminatory taxes or taxes upon goods in transit.1142 In other re-
spects, however, the Court has applied the foreign commerce as-
pect of the clause more stringently against state taxation.
Thus, in Japan Line, Ltd. v. County of Los Angeles,1143 the Court
held that, in addition to satisfying the four requirements that gov-
ern the permissibility of state taxation of interstate commerce,1144
“When a State seeks to tax the instrumentalities of foreign com-
merce, two additional considerations . . . come into play. The first
is the enhanced risk of multiple taxation. . . . Second, a state tax
on the instrumentalities of foreign commerce may impair federal
uniformity in an area where federal uniformity is essential.” 1145 Mul-
tiple taxation is to be avoided with respect to interstate commerce
by apportionment so that no jurisdiction may tax all the property
of a multistate business, and the rule of apportionment is enforced
by the Supreme Court with jurisdiction over all the states. How-
ever, the Court is unable to enforce such a rule against another coun-
try, and the country of the domicile of the business may impose a
tax on full value. Uniformity could be frustrated by disputes over
multiple taxation, and trade disputes could result.
Applying both these concerns, the Court invalidated a state tax,
a nondiscriminatory, ad valorem property tax, on foreign-owned in-
strumentalities, i.e., cargo containers, of international commerce. The
containers were used exclusively in international commerce and were
based in Japan, which did in fact tax them on full value. Thus, there
was the actuality, not only the risk, of multiple taxation. National
1142 See, e.g., Halliburton Oil Well Co. v. Reily, 373 U.S. 64 (1963); Minnesota v.
Blasius, 290 U.S. 1 (1933). After the holding in Michelin Tire, the two clauses are
now congruent. The Court has observed that the two clauses are animated by the
same policies. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 449–50 n.14
(1979).
1143 441 U.S. 434 (1979).
1144 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977). A state tax
failed to pass the nondiscrimination standard in Kraft General Foods, Inc. v. Iowa
Dept. of Revenue and Finance, 505 U.S. 71 (1992). Iowa imposed an income tax on
a unitary business operating throughout the United States and in several foreign
countries. It taxed the dividends that a corporation received from its foreign subsid-
iaries, but not the dividends it received from its domestic subsidiaries. Therefore,
there was a facial distinction between foreign and domestic commerce.
1145 441 U.S. at 446, 448. See also Itel Containers Int’l Corp. v. Huddleston, 507
U.S. 60 (1993) (sustaining state sales tax as applied to lease of containers delivered
within the state and used in foreign commerce).
ART. I—LEGISLATIVE DEPARTMENT 269
not only the risk but the actuality of some double taxation as something simply in-
herent in accounting devices. Container Corp. of America v. Franchise Tax Board,
463 U.S. 159, 187–192 (1983).
1147 Wardair Canada v. Florida Dep’t of Revenue, 477 U.S. 1, 10 (1986).
1148 Container Corp. of America v. Franchise Tax Board, 463 U.S. 159 (1983).
The validity of the formula as applied to domestic corporations with foreign parents
or to foreign corporations with foreign parents or foreign subsidiaries, so that some
of the income earned abroad would be taxed within the taxing state, is a question of
some considerable dispute.
1149 512 U.S. 298 (1994).
270 ART. I—LEGISLATIVE DEPARTMENT
1150 Reliance could not be placed on Executive statements, the Court explained,
because “the Constitution expressly grants Congress, not the President, the power
to ‘regulate Commerce with foreign Nations.’ ” 512 U.S. at 329. “Executive Branch
communications that express federal policy but lack the force of law cannot render
unconstitutional California’s otherwise valid, congressionally condoned, use of world-
wide combined reporting.” Id. at 330. Dissenting Justice Scalia noted that, although
the Court’s ruling correctly restored preemptive power to Congress, “it permits the
authority to be exercised by silence. Id. at 332.”
1151 The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139–49
(1993).
1152 25 U.S. (12 Wheat.) 419, 443–44 (1827).
1153 New York City v. Miln, 36 U.S. (11 Pet.) 102 (1837) (upholding reporting
186 U.S. 380 (1902); Louisiana v. Texas, 176 U.S. 1 (1900); Morgan v. Louisiana,
118 U.S. 455 (1886).
1155 New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908).
1156 Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 456 n.20 (1979)
Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819). Although preemption is basically con-
stitutional in nature, deriving its forcefulness from the Supremacy Clause, it is much
more like statutory decisionmaking, in that it depends upon an interpretation of an
act of Congress in determining whether a state law is ousted. E.g., Douglas v. Sea-
coast Products, Inc., 431 U.S. 265, 271–72 (1977). See also Swift & Co. v. Wickham,
382 U.S. 111 (1965). “Any such pre-emption or conflict claim is of course grounded
in the Supremacy Clause of the Constitution: if a state measure conflicts with a
federal requirement, the state provision must give way. The basic question involved
in these cases, however, is never one of interpretation of the Federal Constitution
but inevitably one of comparing two statutes.” Id. at 120.
1160 Cases considered under this heading are overwhelmingly about federal leg-
islation based on the Commerce Clause, but the principles enunciated are identical
whatever source of power Congress uses. Therefore, cases arising under legislation
based on other powers are cited and treated interchangeably.
272 ART. I—LEGISLATIVE DEPARTMENT
U. CHI. L. REV. 85, 87–88 (1956). “The [Court] appears to use essentially the same
reasoning process in a case nominally hinging on preemption as it has in past cases
in which the question was whether the state law regulated or burdened interstate
commerce. [The] Court has adopted the same weighing of interests approach in pre-
emption cases that it uses to determine whether a state law unjustifiably burdens
interstate commerce. In a number of situations the Court has invalidated statutes
on the preemption ground when it appeared that the state laws sought to favor lo-
cal economic interests at the expense of the interstate market. On the other hand,
when the Court has been satisfied that valid local interests, such as those in safety
or in the reputable operation of local business, outweigh the restrictive effect on in-
terstate commerce, the Court has rejected the preemption argument and allowed
ART. I—LEGISLATIVE DEPARTMENT 273
But see Corn Products Refining Co. v. Eddy, 249 U.S. 427, 438 (1919).
1165 E.g., Hines v. Davidowitz, 312 U.S. 52 (1941); Cloverleaf Butter v. Patter-
son, 315 U.S. 148 (1942); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); Cali-
fornia v. Zook, 336 U.S. 725 (1949).
1166 Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 96 (1992) (inter-
nal quotation marks and case citations omitted). Conversely, a state’s intentions with
regard to its own law “is relevant only as it may relate to ‘the scope of the state law
that Congress understood would survive”’ the preemptive effect of federal law or “the
nature of the effect of state law on” on the subject matter Congress is regulating.
Gobeille v. Liberty Mut. Ins. Co., 577 U.S. ___, No. 14–181, slip op. at 11 (2016)
(internal quotations omitted).
1167 Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); FMC Corp. v. Hol-
liday, 498 U.S. 52 (1990); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 604–
605 (1991).
274 ART. I—LEGISLATIVE DEPARTMENT
1168 Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (inter-
nal quotation marks and case citations omitted). The same or similar language is
used throughout the preemption cases. E.g., Cipollone v. Liggett Group, Inc., 505
U.S. 504 (1992); id. at 532–33 (Justice Blackmun concurring and dissenting); id. at
545 (Justice Scalia concurring and dissenting); Wisconsin Public Intervenor v. Mortier,
501 U.S. 597, 604–05 (1991); English v. General Electric Co., 496 U.S. 72, 78–80
(1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Pacific Gas & Elec.
Co. v. State Energy Resources Comm’n, 461 U.S. 190, 203–04 (1983); Fidelity Fed.
Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982); Florida Lime &
Avocado Growers v. Paul, 373 U.S. 132, 142 (1963); Hines v. Davidowitz, 312 U.S.
52, 67 (1941).
1169 Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963); Chicago
& Northwestern Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981). Where
Congress legislates in a field traditionally occupied by the States, courts should “start
with the assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest purpose of
Congress.” Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev.
Comm., 461 U.S. 190, 206 (1983) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)). Nonetheless, this assumption may go only so far. See, e.g., Pliva,
Inc. v. Mensing, 564 U.S. ___, No. 09–993, slip op. at 15 (2011) (Thomas, J., plural-
ity opinion) (“[T]he text of the Clause—that federal law shall be supreme, ‘any Thing
in the Constitution or Laws of any State to the Contrary notwithstanding’—plainly
contemplates conflict pre-emption by describing federal law as effectively repealing
contrary state law.”).
1170 Free v. Bland, 369 U.S. 663 (1962).
1171 Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 (1944) (per Justice Frank-
furter).
ART. I—LEGISLATIVE DEPARTMENT 275
gress has expressly or implied empowered these bodies to preempt, are “the su-
preme law of the land” and can displace state law. E.g., Smiley v. Citibank, 517
U.S. 735 (1996); City of New York v. FCC, 486 U.S. 57, 63–64 (1988); Louisiana Pub-
lic Service Comm’n v. FCC, 476 U.S. 355 (1986); Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691 (1984); Fidelity Fed. Savings & Loan Ass’n v. de la Cuesta, 458 U.S.
141 (1982). Federal common law, i.e., law applied by the courts in the absence of
explicit statutory directive, and respecting uniquely federal interests, can also dis-
place state law. See Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (Su-
preme Court promulgated common-law rule creating government-contractor defense
in tort liability suits, despite Congress’s having considered and failed to enact bills
doing precisely this); Westfall v. Erwin, 484 U.S. 292 (1988) (civil liability of federal
officials for actions taken in the course of their duty). Finally, ordinances of local
governments are subject to preemption under the same standards as state law.
Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707 (1985).
1173 Thus, § 408 of the Federal Meat Inspection Act, as amended by the Whole-
some Meat Act, 21 U.S.C. § 678, provides that “[m]arking, labeling, packaging, or
ingredient requirements in addition to, or different than, those made under this chap-
ter may not be imposed by any state . . . .” See Jones v. Rath Packing Co., 430 U.S.
519, 528–32 (1977). See also National Meat Ass’n v. Harris, 565 U.S. ___, No. 10–
224, slip op. (2012) (broad preemption of all state laws on slaughterhouse activities
regardless of conflict with federal law). Similarly, much state action is saved by the
Securities Exchange Act of 1934, 15 U.S.C. § 78bb(a), which states that “[n]othing
in this chapter shall affect the jurisdiction of the securities commissioner (or any
agency or officer performing like functions) of any State over any security or any
person insofar as it does not conflict with the provisions of this chapter or the rules
and regulations thereunder.” For examples of other express preemptive provisions,
see Norfolk & Western Ry. v. American Train Dispatchers’ Ass’n, 499 U.S. 117 (1991);
Exxon Corp. v. Hunt, 475 U.S. 355 (1986). See also Department of Treasury v. Fabe,
508 U.S. 491 (1993).
1174 For example, in Coventry Health Care of Missouri, Inc. v. Nevils, the Court
noted that it has “ ‘repeatedly recognized’ that the phrase ‘relate to’ in a preemption
clause ‘express[es] a broad pre-emptive purpose.’ Congress characteristically em-
ploys the phrase to reach any subject that has ‘a connection with, or reference to,’
the topics the statute enumerates.” 581 U.S. ___, No. 16–149, slip op. at 7 (2017)
(quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383–84 (1992)) (inter-
nal citation omitted). Coventry Health Care involved an express preemption provi-
sion of the Federal Employees Health Benefits Act of 1959 (FEHBA) under which
any terms of contracts with private carriers for federal employees’ health insurance
that “relate to the nature, provision, or extent of coverage of benefits (including pay-
ments with respect to benefits) . . . supersede and preempt any State or local law
. . . which relates to health insurance or plans.” Id. at 1 (quoting 5 U.S.C. § 8902(m)(1))
(internal quotation marks omitted; emphasis added). A federal employee brought an
action alleging violations of a Missouri consumer protection law against a private
276 ART. I—LEGISLATIVE DEPARTMENT
was held to preempt state rules on advertising. See also American Airlines, Inc. v.
Wolens, 513 U.S. 219 (1995); Nw, Inc. v. Ginsberg, 572 U.S. ___, No. 12–462, slip op.
(2014) (holding that the Airline Deregulation Act’s preemption provision applied to
state common law claims, including an airline customer’s claim for breach of the
implied covenant of good faith and fair dealing). But see Dan’s City Used Cars, Inc.
v. Pelkey, 569 U.S. ___, No. 12–52, slip op. (2013) (provision of Federal Aviation Ad-
ministration Authorization Act of 1994 preempting state law “related to a price, route,
or service of any motor carrier . . . with respect to the transportation of property”
held not to preempt state laws on the disposal of towed vehicles by towing compa-
nies).
ART. I—LEGISLATIVE DEPARTMENT 277
dissenting).
1180 563 U.S. ___, No. 09–893, slip op. (2011).
1181 9 U.S.C. § 2.
1182 Writing for the Court, Justice Scalia held, inter alia, that the saving clause
was not intended to open arbitration provisions themselves to possible scrutiny. 563
U.S. ___, No. 09–893, slip op. (2011). The four dissenting Justices interpreted the
saving clause as allowing use of the California law to attack the anti-class arbitra-
tion contract provision. Id. (Breyer, J. dissenting).
278 ART. I—LEGISLATIVE DEPARTMENT
this section as a “virtually unique pre-emption provision.” Franchise Tax Bd. v. Con-
struction Laborers Vacation Trust, 463 U.S. 1, 24 n.26 (1983). See Ingersoll-Rand
Co. v. McClendon, 498 U.S. 133, 138–139 (1990); see also id. at 142–45 (describing
and applying another preemption provision of ERISA).
1186 Gobeille v. Liberty Mut. Ins. Co., 577 U.S. ___, No. 14–181, slip op. at 9
(2016) (holding that ERISA—with its extensive reporting, disclosure, and recordkeep-
ing requirements that are “central to, and an essential part of,” its uniform plan
administration system—preempted a Vermont law requiring certain entities, includ-
ing health insurers, to report health care related information to a state agency); Aetna
Health, Inc. v. Davila, 542 U.S. 200 (2004) (suit brought against HMO under state
health care liability act for failure to exercise ordinary care when denying benefits
is preempted); Boggs v. Boggs, 520 U.S. 833 (1997) (decided not on the basis of the
express preemption language but instead by implied preemption analysis); De Buono
v. NYSA–ILA Med. & Clinical Servs. Fund, 520 U.S. 806 (1997); Cal. Div. of Labor
Standards Enf ’t v. Dillingham Constr., Inc., 519 U.S. 316 (1997); N.Y. State Conf. of
Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995) (no pre-
emption of statute that required hospitals to collect surcharges from patients cov-
ered by a commercial insurer but not from patients covered by Blue Cross/Blue Shield
plan); John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86
(1993) (ERISA’s fiduciary standards, not conflicting state insurance laws, apply to
insurance company’s handling of general account assets derived from participating
group annuity contract); District of Columbia v. Greater Washington Bd. of Trade,
506 U.S. 125 (1992) (law requiring employers to provide health insurance coverage,
equivalent to existing coverage, for workers receiving workers’ compensation ben-
efits); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) (ERISA preempts state
common-law claim of wrongful discharge to prevent employee attaining benefits un-
der plan covered by ERISA); FMC Corp. v. Holliday, 498 U.S. 52 (1990) (provision of
ART. I—LEGISLATIVE DEPARTMENT 279
controversial rules of construction. First, the courts should interpret narrowly provi-
sions that purport to preempt state police-power regulations, and, second, that when
a law has express preemption language courts should look only to that language
and presume that when the preemptive reach of a law is defined Congress did not
intend to go beyond that reach, so that field and conflict preemption will not be found.
Id. at 517; and id. at 532–33 (Justice Blackmun concurring and dissenting). Both
parts of this canon are departures from established law. Narrow construction when
state police powers are involved has hitherto related to implied preemption, not ex-
press preemption, and courts generally have applied ordinary-meaning construction
to such statutory language; further, courts have not precluded the finding of conflict
preemption, though perhaps field preemption, because of the existence of some ex-
press preemptive language. See id. at 546–48 (Justice Scalia concurring and dissent-
ing).
1188 505 U.S. at 518–19 (opinion of the court), 533–34 (Justice Blackmun concur-
ring).
280 ART. I—LEGISLATIVE DEPARTMENT
U.S. 658 (1993) (under Federal Railroad Safety Act, a state common-law claim alleg-
ing negligence for operating a train at excessive speed is preempted, but a second
claim alleging negligence for failure to maintain adequate warning devices at a grade
crossing is not preempted); Norfolk So. Ry. v. Shanklin, 529 U.S. 344 (2000) (apply-
ing Easterwood).
1191 21 U.S.C. § 350k(a).
1192 The dissent, by Justice O’Connor and three others, would have held pre-
empted the latter claims, 518 U.S. at 509, whereas Justice Breyer thought that common-
law claims would sometimes be preempted, but not here. Id. at 503 (concurring).
ART. I—LEGISLATIVE DEPARTMENT 281
1193 518 U.S. at 484–85. See also id. at 508 (Justice Breyer concurring); Freightliner
Corp. v. Myrick, 514 U.S. 280, 288–89 (1995); Barnett Bank v. Nelson, 517 U.S. 25,
31 (1996); California Div. of Labor Standards Enforcement v. Dillingham Construc-
tion, Inc., 519 U.S. 316, 334 (1997) (Justice Scalia concurring); Boggs v. Boggs, 520
U.S. 833 (1997) (using “stands as an obstacle” preemption analysis in an ERISA
case, having express preemptive language, but declining to decide when implied pre-
emption may be used despite express language), and id. at 854 (Justice Breyer dis-
senting) (analyzing the preemption issue under both express and implied stan-
dards).
1194 529 U.S. 861 (2000).
1195 The Court focused on the word “exempt” to give the saving clause a narrow
1314, slip op. (2011) (applying same statute as Geir, and later version of same regu-
lation, no conflict preemption found of common law suit based on rear seat belt type,
because giving manufacturers a choice on the type of rear seat belt to install was
282 ART. I—LEGISLATIVE DEPARTMENT
the source of the oft-quoted maxim that when Congress legislates in a field tradition-
ally occupied by the states, courts should “start with the assumption that the his-
toric police powers of the States were not to be superseded by the Federal Act un-
less that was the clear and manifest purpose of Congress.” Id.
1198 312 U.S. 52 (1941).
1199 In Arizona v. United States, the Court struck down state penalties for vio-
stances of a particular case, the state law “stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of Congress.” 312 U.S. at 67.
That standard is obviously drawn from conflict preemption, for the two standards
are frequently intermixed. See AT&T Mobility, LLC v. Concepcion, 563 U.S. ___, No.
09–893, slip op. at 9–18 (2011) (Scalia, J.). Nonetheless, not all state regulation is
precluded. De Canas v. Bica, 424 U.S. 351 (1976) (upholding a state law penalizing
the employment of an illegal alien, the case arising before enactment of the federal
law doing the same thing).
1201 350 U.S. 497 (1956).
1202 350 U.S. at 502–05. Obviously, there is a noticeable blending into conflict
preemption.
ART. I—LEGISLATIVE DEPARTMENT 283
Neither does the same reservation of exclusive authority to regulate nuclear safety
preempt imposition of punitive damages under state tort law, even if based upon
the jury’s conclusion that a nuclear licensee failed to follow adequate safety precau-
tions. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). See also English v. Gen-
eral Electric Co., 496 U.S. 72 (1990) (employee’s state-law claim for intentional in-
fliction of emotional distress for her nuclear-plant employer’s actions retaliating for
her whistleblowing is not preempted as relating to nuclear safety).
1206 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).
284 ART. I—LEGISLATIVE DEPARTMENT
at 12–13 (2016) (holding that while “States . . . may regulate within the domain
Congress assigned to them even when their laws incidentally affect areas” within
the federal regulatory field, “States may not seek to achieve ends, however legiti-
mate, through regulatory means that intrude on” the federal government’s author-
ity over the field in question) (citing to Oneok, Inc., slip op. at 11).
1212 See Oneok, Inc., slip op. at 3, 10.
1213 Id. at 3.
ART. I—LEGISLATIVE DEPARTMENT 285
the view that,1214 “where (as here) a state law can be applied” both
to sales regulated by the federal government and to other sales, “we
must proceed cautiously, finding pre-emption only where detailed
examination convinces us that a matter falls within the pre-
empted field as defined by our precedents.” 1215 The Court found no
such preemption here, in part because the “target at which the state
law aims” was practices affecting retail prices, something which the
Court viewed as “firmly on the States’ side of th[e] dividing line.” 1216
The Court also noted that the “broad applicability” of state anti-
trust laws supported a finding of no preemption here,1217 as does
the states’ historic role in providing common law and statutory rem-
edies against monopolies and unfair business practices.1218 How-
ever, while declining to find field preemption, the Court left open
the possibility of conflict preemption, which had not been raised by
the parties.1219
Congress may preempt state regulation without itself prescrib-
ing a federal standard; it may deregulate a field and thus occupy it
by opting for market regulation and precluding state or local regu-
lation.1220
Conflict Preemption. Several possible situations will lead to a
holding that a state law is preempted as in conflict with federal
law. First, it may be that the two laws, federal and state, will actu-
ally conflict. Thus, in Rose v. Arkansas State Police,1221 federal law
provided for death benefits for state law enforcement officers “in ad-
dition to” any other compensation, while the state law required a
reduction in state benefits by the amount received from other sources.
The Court, in a brief, per curiam opinion, had no difficulty finding
the state provision preempted.1222
U.S. 409 (1986); Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485
U.S. 495 (1988).
1221 479 U.S. 1 (1986).
1222 For similar examples of conflict preemption, see Wos v. E.M.A., 568 U.S. ___,
No. 12–98, slip op. (2013) (holding that a North Carolina statute allowing the state
to collect up to one-third of the amount of a tort settlement as reimbursement for
state-paid medical expenses under Medicaid conflicted with anti-lien provisions of
the federal Medicaid statute where the settlement designated an amount less than
one-third as the medical expenses award). See also Doctor’s Assoc.’s, Inc. v. Casarotto,
517 U.S. 681 (1996) (federal arbitration law preempts state statute that conditioned
enforceability of arbitration clause on compliance with special notice requirement);
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) (federal arbitration law
286 ART. I—LEGISLATIVE DEPARTMENT
premacy Clause phrase “any [state law] to the Contrary notwithstanding” as a non
obtstante provision that “suggests that federal law should be understood to impliedly
repeal conflicting state law” and indicates limits on the extent to which courts should
seek to reconcile federal and state law in preemption cases. 564 U.S. ___, No. 09–
993, slip op. at 15–17 (2011) (Thomas, J.).
1227 564 U.S. ___, No. 09–993, slip op. (2011) (Sotomayor, J., dissenting).
1228 570 U.S. ___, No. 12–142, slip op. (2013).
ART. I—LEGISLATIVE DEPARTMENT 287
both the FDA’s labeling requirements and state law that required
stronger warnings regarding the drug’s safety because the manufac-
turer could simply stop selling the drug. The Supreme Court re-
jected the “stop-selling rationale” because it “would render impossi-
bility pre-emption a dead letter and work a revolution in . . . pre-
emption case law.” 1229
In contrast to Pliva, Inc. v. Mensing and Mutual Pharmaceuti-
cal Co. v. Bartlett, the Court found no preemption in Wyeth v.
Levine,1230 a state tort action against a brand-name drug manufac-
turer based on inadequate labeling. A brand-name drug manufac-
turer, unlike makers of generic drugs, could unilaterally strengthen
labeling under federal regulations, subject to subsequent FDA over-
ride, and thereby independently meet state tort law requirements.
In another case of alleged impossibility, it was held possible for an
employer to comply both with a state law mandating leave and re-
instatement to pregnant employees and with a federal law prohib-
iting employment discrimination on the basis of pregnancy.1231 Simi-
larly, when faced with both federal and state standards on the ripeness
of avocados, the Court discerned that the federal standard was a
“minimum” one rather than a “uniform” one and decided that grow-
ers could comply with both.1232
Third, a fruitful source of preemption is found when it is deter-
mined that the state law stands as an obstacle to the accomplish-
ment of the full purposes and objectives of Congress.1233 Thus, de-
1229 Id. at 1–2.
1230 555 U.S. ___, No. 06–1249, slip op. (2009).
1231 California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272 (1987).
Compare Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1942) (federal law pre-
empts more exacting state standards, even though both could be complied with and
state standards were harmonious with purposes of federal law).
1232 Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963).
1233 The standard is drawn from Hines v. Davidowitz, 312 U.S. 52, 67 (1941),
which often is held out as a leading example of field preemption analysis. When
“frustration of purpose” predominates in an opinion, it may be fairer to characterize
the issue as one of conflict preemption, rather than field preemption, for the possi-
bility of a limited state role would appear to be implicitly recognized. Arizona v. United
States, in which the Court found three of the four Arizona immigration provisions it
examined to be preempted, illustrates the continuum from field to conflict analysis.
In overturning state penalties for violations of federal alien registration require-
ments, the Court found the sweep and detail of the federal law to leave no room
whatsoever for state regulation. In overturning state sanctions against unauthor-
ized aliens seeking employment or working, the Court emphasized that the compre-
hensive system of federal employer sanctions eschewed employee sanctions, and al-
lowing states to impose them would upset the careful policy balance struck by Congress.
In overturning state authority to arrest individuals believed to be deportable on crimi-
nal grounds, the Court did not examine whether state officers have any inherent
arrest authority in deportation cases, but rather found that allowing states to en-
gage in such arrests as a general matter creates an obstacle to congressional objec-
tives. And finally, the Court declined to overturn on its face a state policy of check-
288 ART. I—LEGISLATIVE DEPARTMENT
ing the immigration status of individuals stopped by the police for general law
enforcement purposes, finding that federal law facilitated status checks and only imple-
mentation of the status check policy would disclose whether federal enforcement policy
ultimately would be frustrated. 567 U.S. ___, No. 11–182, slip op. (2012).
See also Barnett Bank of Marion County v. Nelson, 517 U.S. 25 (1996) (federal
law empowering national banks in small towns to sell insurance preempts state law
prohibiting banks from dealing in insurance; despite explicit preemption provision,
state law stands as an obstacle to accomplishment of federal purpose); Hillman v.
Maretta, 569 U.S. ___, No. 11–1221, slip op. (2013) (state law cause of action against
ex-spouse for life insurance proceeds paid under a designation of beneficiary in a
federal employee policy held to be preempted by a federal employee insurance stat-
ute giving employees the right to designate a beneficiary; beyond administrative con-
venience, Congress intended that the proceeds actually belong to the named benefi-
ciary). Unsurprisingly, the Justices at times disagree on what Congress’s primary
objectives and purposes were in passing particular legislation, and such a disagree-
ment can end with different conclusions about whether state law has been pre-
empted. See AT&T Mobility, LLC v. Concepcion, 563 U.S. ___, No. 09–893, slip op.
(2011).
1234 Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
1235 Jones v. Rath Packing Co., 430 U.S. 519, 532–543 (1977).
1236 487 U.S. 131 (1988).
ART. I—LEGISLATIVE DEPARTMENT 289
flict analysis was appropriate, but he did not find that the state law achieved any
result that ERISA required.
1240 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).
1241 530 U.S. at 374 n.8.
290 ART. I—LEGISLATIVE DEPARTMENT
ing Bd., 467 U.S. 461 (1984). See also Nantahala Power & Light Co. v. Thornburg,
476 U.S. 953 (1986) (state allocation of costs for purposes of setting retail electricity
rates, by disallowing costs permitted by FERC in setting wholesale rates, frustrated
federal regulation by possibly preventing the utility from recovering in its sales the
costs of paying the FERC-approved wholesale rate); Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691 (1984) (state ban on cable TV advertising frustrates federal policy in
the copyright law by which cable operators pay a royalty fee for the right to retrans-
mit distant broadcast signals upon agreement not to delete commercials); Interna-
tional Paper Co. v. Ouellette, 479 U.S. 481 (1987) (damage action based on common
law of downstream state frustrates Clean Water Act’s policies favoring permitting
state in interstate disputes and favoring predictability in permit process).
1243 California v. FERC, 495 U.S. 490 (1990). The savings clause was found in-
See also CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987) (federal law’s
broad purpose of protecting shareholders as a group is furthered by state anti-
takeover law); Rose v. Rose, 481 U.S. 619 (1987) (provision governing veterans’ dis-
ability benefits protects veterans’ families as well as veterans, hence state child-
support order resulting in payment out of benefits is not preempted).
ART. I—LEGISLATIVE DEPARTMENT 291
the rule that the Board remains preeminent and almost exclusive. See, e.g., Wiscon-
sin Dep’t of Industry v. Gould, Inc., 475 U.S. 282 (1986) (states may not supplement
Board enforcement by debarring from state contracts persons or firms that have vio-
lated the NLRA); Golden Gate Transit Corp. v. City of Los Angeles, 475 U.S. 608
(1986) (city may not condition taxicab franchise on settlement of strike by set date,
because this intrudes into collective-bargaining process protected by NLRA). On the
other hand, the NLRA’s protection of associational rights is not so strong as to out-
weigh the Social Security Act’s policy permitting states to determine whether to award
unemployment benefits to persons voluntarily unemployed as the result of a labor
dispute. New York Tel. Co. v. New York Labor Dep’t, 440 U.S. 519 (1979); Ohio Bu-
reau of Employment Services v. Hodory, 431 U.S. 471 (1977); Baker v. General Mo-
tors Corp., 478 U.S. 621 (1986).
1248 Allen-Bradley Local No. 1111 v. WERB, 315 U.S. 740 (1942).
1249 United Automobile Workers v. WERB, 336 U.S. 245 (1949), overruled by Ma-
has held that Hill’s premise that the NLRA grants an unqualified right to select
union officials has been removed by amendments prohibiting some convicted crimi-
nals from holding union office. Partly because the federal disqualification standard
was itself dependent upon application of state law, the Court ruled that more strin-
gent state disqualification provisions, also aimed at individuals who had been in-
292 ART. I—LEGISLATIVE DEPARTMENT
volved in racketeering and other criminal conduct, were not inconsistent with fed-
eral law. Brown v. Hotel Employees, 468 U.S. 491 (1984).
1252 United Automobile Workers v. O’Brien, 339 U.S. 454 (1950); Bus Employees
v. WERB, 340 U.S. 383 (1951). See also Bus Employees v. Missouri, 374 U.S. 74
(1963).
1253 Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955); Garner v. Teamsters
Local 776, 346 U.S. 485 (1953);Bethlehem Steel Co. v. New York Employment Rela-
tions Bd., 330 U.S. 767 (1947). See also Livadas v. Bradshaw, 512 U.S. 107 (1994)
(finding a practice of a state labor commissioner preempted because it stood as an
obstacle to the achievement of the purposes of NLRA). Of course, where Congress
clearly specifies, the Court has had no difficulty. Thus, in the NLRA, Congress pro-
vided, 29 U.S.C. § 164(b), that state laws on the subject could override the federal
law on union security arrangements and the Court sustained those laws. Lincoln
Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL v.
American Sash & Door Co., 335 U.S. 538 (1949). When Congress in the Railway
Labor Act, 45 U.S.C. § 152, Eleventh, provided that the federal law on union secu-
rity was to override contrary state laws, the Court sustained that determination.
Railway Employes’ Dep’t v. Hanson, 351 U.S. 225 (1956). The Court has held that
state courts may adjudicate questions relating to the permissibility of particular types
of union security arrangements under state law even though the issue involves as
well an interpretation of federal law. Retail Clerks Int’l Ass’n v. Schermerhorn, 375
U.S. 96 (1963).
1254 Garner v. Teamsters Local 776, 346 U.S. 485 (1953); United Mine Workers
v. Arkansas Flooring Co., 351 U.S. 62 (1956); Meat Cutters v. Fairlawn Meats, 353
U.S. 20 (1957); Construction Laborers v. Curry, 371 U.S. 542 (1963).
1255 San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957).
1256 Guss v. Utah Labor Board, 353 U.S. 1 (1957).
1257 Teamsters Union v. Oliver, 358 U.S. 283 (1959).
1258 Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955).
1259 359 U.S. 236 (1959).
1260 359 U.S. at 245. The rule is followed in, e.g., Radio & Television Techni-
cians v. Broadcast Service of Mobile, 380 U.S. 255 (1965); Hattiesburg Building &
ART. I—LEGISLATIVE DEPARTMENT 293
For much of the period since Garmon, the dispute in the Court
concerned the scope of the few exceptions permitted in the Garmon
principle. First, when picketing is not wholly peaceful but is at-
tended by intimidation, violence, and obstruction of the roads afford-
ing access to the struck establishment, state police powers have been
held not disabled to deal with the conduct and narrowly drawn in-
junctions directed against violence and mass picketing have been
permitted 1261 as well as damages to compensate for harm growing
out of such activities.1262
A 1958 case permitted a successful state court suit for reinstate-
ment and damages for lost pay because of a wrongful expulsion,
leading to discharge from employment, based on a theory that the
union constitution and by-laws constitute a contract between the
union and the members the terms of which can be enforced by state
courts without the danger of a conflict between state and federal
law.1263 The Court subsequently narrowed the interpretation of this
ruling by holding in two cases that members who alleged union in-
terference with their existing or prospective employment relations
could not sue for damages but must file unfair labor practice charges
with the NLRB.1264 Gonzales was said to be limited to “purely inter-
nal union matters.” 1265 Finally, Gonzales, was abandoned in a five-
to-four decision in which the Court held that a person who alleged
that his union had misinterpreted its constitution and its collective
bargaining agreement with the individual’s employer in expelling
him from the union and causing him to be discharged from his em-
ployment because he was late paying his dues had to pursue his
federal remedies.1266 Justice Harlan wrote for the Court that, al-
though it was not likely that, in Gonzales, a state court resolution
of the scope of duty owed the member by the union would impli-
cate principles of federal law, state court resolution in this case in-
Trades Council v. Broome, 377 U.S. 126 (1964); Longshoremen’s Local 1416 v. Ariane
Shipping Co., 397 U.S. 195 (1970); Amalgamated Ass’n of Street Employees v. Lockridge,
403 U.S. 274 (1971). Cf. Nash v. Florida Industrial Comm., 389 U.S. 235 (1967).
1261 United Automobile Workers v. WERB, 351 U.S. 266 (1956); Youngdahl v.
Workers Local 207 v. Perko, 373 U.S. 701 (1963). Applying Perko, the Court held
that a state court action by a supervisor alleging union interference with his contrac-
tual relationship with his employer is preempted by the NLRA. Local 926, Int’l Union
of Operating Engineers v. Jones, 460 U.S. 669 (1983).
1265 373 U.S. at 697 (Borden), and 705 (Perko).
1266 Amalgamated Ass’n of Street Employees v. Lockridge, 403 U.S. 274 (1971).
294 ART. I—LEGISLATIVE DEPARTMENT
held that a state court action for misrepresentation and breach of contract, brought
by replacement workers promised permanent employment when hired during a strike,
was not preempted. The action for breach of contract by replacement workers hav-
ing no remedies under the NLRA was found to be deeply rooted in local law and of
only peripheral concern under the Act. Belknap, Inc. v. Hale, 463 U.S. 491 (1983).
See also Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380 (1986).
1271 436 U.S. 180 (1978).
ART. I—LEGISLATIVE DEPARTMENT 295
must, however, apply federal law. Local 174, Teamsters Union v. Lucas Flour Co.,
369 U.S. 95 (1962).
1277 Smith v. Evening News Ass’n, 371 U.S. 195 (1962); Humphrey v. Moore, 375
(1988) (state tort action for retaliatory discharge for exercising rights under a state
workers’ compensation law is not preempted by § 301, there being no required inter-
pretation of a collective-bargaining agreement).
1279 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). See also Int’l Brother-
hood of Electric Workers v. Hechler, 481 U.S. 851 (1987) (state-law claim that union
breached duty to furnish employee a reasonably safe workplace preempted); United
Steelworkers of America v. Rawson, 495 U.S. 362 (1990) (state-law claim that union
was negligent in inspecting a mine, the duty to inspect being created by the collective-
bargaining agreement preempted).
ART. I—LEGISLATIVE DEPARTMENT 297
1280 Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369
(1969); Machinists & Aerospace Workers v. WERC, 427 U.S. 132 (1976); Golden Gate
Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986). Cf. New York Telephone
Co. v. New York Labor Dept., 440 U.S. 519 (1979).
1281 Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (upholding
a state requirement that health-care plans, including those resulting from collective
bargaining, provide minimum benefits for mental-health care).
1282 United States v. Kagama, 118 U.S. 375 (1886). Rejecting the Commerce Clause
as a basis for congressional enactment of a system of criminal laws for Indians liv-
ing on reservations, the Court nevertheless sustained the act on the ground that
the Federal Government had the obligation and thus the power to protect a weak
and dependent people. Cf. United States v. Holiday, 70 U.S. (3 Wall.) 407 (1866);
United States v. Sandoval, 231 U.S. 28 (1913). This special fiduciary responsibility
can also be created by statute. E.g., United States v. Mitchell, 463 U.S. 206 (1983).
1283 16 Stat. 544, 566, 25 U.S.C. § 71.
1284 E.g., Puyallup Tribe v. Washington Game Dep’t, 433 U.S. 165 (1977); Wash-
ington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S.
658 (1979); Montana v. United States, 450 U.S. 544 (1981).
1285 McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 172 n.7 (1973). See also
Morton v. Mancari, 417 U.S. 535, 551–553 (1974); United States v. Mazurie, 419
U.S. 544, 553–56 (1974); Bryan v. Itasca County, 426 U.S. 373, 376 n.2 (1976); White
Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980); Ramah Navajo School
Bd. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982); United States v.
Lara, 541 U.S. 193, 200 (2004).
298 ART. I—LEGISLATIVE DEPARTMENT
1286 White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142–143 (1980); Ramah
Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837–838
(1982). “The two barriers are independent because either, standing alone, can be a
sufficient basis for holding state law inapplicable to activity undertaken on the res-
ervation or by tribal members.” Id. at 837 (quoting White Mountain, 448 U.S. at
143).
1287 Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S.
832, 838 (1982). See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).
1288 Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) (upholding
Arizona Tax Comm’n, 411 U.S. 164 (1973); Moe v. Confederated Salish & Kootenai
Tribes, 425 U.S. 463 (1976); Bryan v. Itasca County, 426 U.S. 373 (1976); Washing-
ton v. Confederated Colville Tribes, 447 U.S. 134 (1980); Montana v. Blackfeet Tribe,
471 U.S. 759 (1985). See also Oklahoma Tax Comm’n v. Citizen Band Potawatomi
Indian Tribe, 498 U.S. 505 (1991). A discernable easing of the reluctance to find con-
ART. I—LEGISLATIVE DEPARTMENT 299
chinery Co. v. Arizona State Tax Comm’n, 448 U.S. 160 (1980); Ramah Navajo School
Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982).
1294 490 U.S. 163 (1989).
1295 Held permissible in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).
1296 490 U.S. at 185 (distinguishing Bracker and Ramah Navaho School Bd).
1297 County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Na-
tion, 502 U.S. 251, 265 (1992). To be sure, this response was in the context of the
reading of statutory texts and giving effect to them, but the unqualified designation
is suggestive. For recent tax controversies, see Oklahoma Tax Comm’n v. Sac & Fox
Nation, 508 U.S. 114 (1993); Department of Taxation & Finance v. Milhelm Attea &
Bros., 512 U.S. 61 (1994); Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S.
450 (1995).
1298 E.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).
1299 31 U.S. (6 Pet.) 515 (1832). See also Cherokee Nation v. Georgia, 30 U.S. (5
Pet.) 1 (1831). Under this doctrine, tribes possess sovereign immunity from suit in
the same way that the United States and the states do. Santa Clara Pueblo v. Mar-
300 ART. I—LEGISLATIVE DEPARTMENT
eignty over both their members and their territory.1300 They are, of
course, no longer possessed of the full attributes of sovereignty,1301
having relinquished some part of it by their incorporation within
the territory of the United States and their acceptance of its protec-
tion. By specific treaty provision, they yielded up other sovereign
powers, and Congress has removed still others. “The sovereignty that
the Indian tribes retain is of a unique and limited character. It ex-
ists only at the sufferance of Congress and is subject to complete
defeasance.” 1302
In a case of major import for the settlement of Indian land claims,
the Court ruled in County of Oneida v. Oneida Indian Nation,1303
that an Indian tribe may obtain damages for wrongful possession
of land conveyed in 1795 without the federal approval required by
the Nonintercourse Act.1304 The Act reflected the accepted principle
that extinguishment of the title to land by Native Americans re-
quired the consent of the United States and left intact a tribe’s
common-law remedies to protect possessory rights. The Court reit-
erated the accepted rule that enactments are construed liberally in
favor of Native Americans and that Congress may abrogate Indian
treaty rights or extinguish aboriginal land title only if it does so
tinez, 436 U.S. 49, 58 (1978); United States v. United States Fidelity & Guaranty
Co., 309 U.S. 506, 512–13 (1940). The Court has repeatedly rejected arguments to
abolish tribal sovereign immunity or at least to curtail it. Oklahoma Tax Comm’n v.
Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 510 (1991).
1300 United States v. Wheeler, 435 U.S. 313 (1978) (inherent sovereign power to
Bourland, 508 U.S. 679 (1993) (abrogation of Indian treaty rights and reduction of
sovereignty). Congress may also remove restrictions on tribal sovereignty. The Court
has held that, absent authority from federal statute or treaty, tribes possess no crimi-
nal authority over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
(1978). The Court also held, in Duro v. Reina, 495 U.S. 676 (1990), that a tribe has
no criminal jurisdiction over non-tribal Indians who commit crimes on the reserva-
tion; jurisdiction over members rests on consent of the self-governed, and absence of
consent defeats jurisdiction. Congress, however, quickly enacted a statute recogniz-
ing inherent authority of tribal governments to exercise criminal jurisdiction over
non-member Indians, and the Court upheld congressional authority to do so in United
States v. Lara, 541 U.S. 193 (2004).
1303 470 U.S. 226 (1985).
1304 1 Stat. 379 (1793).
ART. I—LEGISLATIVE DEPARTMENT 301
it is not absolute.” United States v. Alcea Bank of Tillamooks, 329 U.S. 40, 54 (1946)
(plurality opinion) (quoted with approval in Delaware Tribal Business Comm. v. Weeks,
430 U.S. 73, 84 (1977)).
1308 Morton v. Mancari, 417 U.S. 535, 555 (1974). The Court applied the stan-
dard to uphold a statutory classification that favored Indians over non-Indians. But
in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73 (1977), the same stan-
dard was used to sustain a classification that disfavored, although inadvertently, one
group of Indians as against other groups. While Indian tribes are unconstrained by
federal or state constitutional provisions, Congress has legislated a “bill of rights”
statute covering them. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
1309 United States v. Sioux Nation, 448 U.S. 371 (1980). See also Solem v. Bartlett,
465 U.S. 463, 472 (1984) (there must be “substantial and compelling evidence of con-
gressional intention to diminish Indian lands” before the Court will hold that a stat-
ute removed land from a reservation); Nebraska v. Parker, 577 U.S. ___, No. 14–
1406, slip op. at 5–6 (2016) (noting that “only Congress can divest a reservation of
its land and diminish its boundaries,” but finding that the statute in question did
not clearly indicate Congress’s intent to effect such a diminishment of the Omaha
reservation).
302 ART. I—LEGISLATIVE DEPARTMENT
§ 1421. In Holmgren v. United States, 217 U.S. 509 (1910), the Court held that Con-
gress may provide for the punishment of false swearing in the proceedings in state
courts.
1316 Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 MICH.
L. REV. 1092 (1977). See Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. Foster, 2
Binn. (Pa.) 110 (1809). See also K. PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES
ch. 5 (1918).
ART. I—LEGISLATIVE DEPARTMENT 303
1317 United States v. Macintosh, 283 U.S. 605 (1931). See also Fong Yue Ting v.
United States, 149 U.S. 698, 707–08 (1893). Though Congress broadly controls the
path to naturalization in the United States, it is restricted in conditioning the reten-
tion of citizenship so conferred. The Fourteenth Amendment declares persons born
or naturalized in the United States to be citizens, and Congress may not distin-
guish among classes of “Fourteenth Amendment” citizens in setting rules for expa-
triation (assuming the absence of fraud in obtaining naturalization). Schneider v.
Rusk, 377 U.S. 163 (1964). By contrast, Congress controls by statute who born abroad
becomes a U.S. citizen at birth (based generally on the citizenship status of the par-
ents), at times has conditioned this “statutory” citizenship on subsequent periodic
residence in the United States, and has had relinquishment of citizenship for fail-
ure to meet this condition subsequent upheld by the Court. Rogers v. Bellei, 401
U.S. 815 (1971).
1318 1 Stat. 103 (1790).
1319 Act of July 14, 1870, § 7, 16 Stat. 254, 256.
1320 Act of May 6, 1882, § 1, 22 Stat. 58. The statute defined “Chinese laborers”
to mean “both skilled and unskilled laborers and Chinese employed in mining.” 22
Stat. 61.
1321 Cf. Ozawa v. United States, 260 U.S. 178 (1922); United States v. Bhagat
Singh Thind, 261 U.S. 204 (1923); Toyota v. United States, 268 U.S. 402 (1925); Mor-
rison v. California, 291 U.S. 82 (1934). The Court refused to review the only case in
which the constitutional issue was raised and rejected. Kharaiti Ram Samras v. United
States, 125 F.2d 879 (9th Cir. 1942), cert. denied, 317 U.S. 634 (1942).
1322 The Alien and Sedition Act of 1798, 1 Stat. 570, empowered the President
to deport any alien he found dangerous to the peace and safety of the Nation. In
1903, Congress provided for denial of naturalization and for deportation for mere
belief in certain doctrines, i.e., anarchy. Act of March 3, 1903, 32 Stat. 1214. See
United States ex rel. Turner v. Williams, 194 U.S. 279 (1904). The range of forbid-
den views was broadened in 1918 (Act of October 15, 1918, § 1, 40 Stat. 1012) and
periodically thereafter. The present law is discussed in The Naturalization of Aliens,
infra.
1323 E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen
ence between persons born or naturalized in, that is, within, the
United States and persons born outside the confines of the United
States who are statutorily made citizens.1330 The principal differ-
ence is that the former persons may not be involuntarily expatri-
ated whereas the latter may be, subject only to due process protec-
tions.1331
1330 Compare Schneider v. Rusk, 377 U.S. 163 (1964); Afroyim v. Rusk, 387 U.S.
253 (1967). It will be noted that in practically all cases persons statutorily made
citizens at birth will be dual nationals, having the citizenship of the country where
they were born. Congress has never required a citizen having dual nationality to
elect at some point one and forsake the other but it has enacted several restrictive
statutes limiting the actions of dual nationals which have occasioned much litiga-
tion. E.g., Savorgnan v. United States, 338 U.S. 491 (1950); Kawakita v. United States,
343 U.S. 717 (1952); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Schneider
v. Rusk, 377 U.S. 163 (1964); Rogers v. Bellei, 401 U.S. 815 (1971).
1331 Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. Mendoza-
Martinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 58–62 (1958).
1332 § 311, 66 Stat. 239 (1952), 8 U.S.C. § 1422.
1333 § 313(a), 66 Stat. 240 (1952), 8 U.S.C. § 1424(a). Whether “mere” member-
mer, 279 U.S. 644 (1929), and United States v. MacIntosh, 283 U.S. 605 (1931), a
divided Court held that clauses (3) and (4) of the oath, as then prescribed, required
the candidate for naturalization to be willing to bear arms for the United States,
thus disqualifying conscientious objectors. These cases were overturned, purely as a
matter of statutory interpretation by Girouard v. United States, 328 U.S. 61 (1946),
and Congress codified the result, 64 Stat. 1017 (1950), as it now appears in the cited
statute.
1343 § 340(a), 66 Stat. 260 (1952), 8 U.S.C. § 1451(a). See Kungys v. United States,
485 U.S. 759 (1988) (badly fractured Court opinion dealing with the statutory re-
ART. I—LEGISLATIVE DEPARTMENT 307
One must be aware, however, that this language does not appear in any case hav-
ing to do with citizenship or naturalization or the rights of naturalized citizens and
its force may be therefore questioned. Compare Afroyim v. Rusk, 387 U.S. 253, 261
(1967) (Justice Black for the Court: “a mature and well-considered dictum . . . ”),
with id. at 275–76 (Justice Harlan dissenting: the dictum, “cannot have been in-
tended to reach the question of citizenship”). The issue in Osborn was the right of
the Bank to sue in federal court. Osborn had argued that the fact that the bank
was chartered under the laws of the United States did not make any legal issue
involving the bank one arising under the laws of the United States for jurisdictional
purposes; to argue the contrary, Osborn contended, was like suggesting that the fact
that persons were naturalized under the laws of Congress meant such persons had
an automatic right to sue in federal courts, unlike natural-born citizens. The quoted
language of Marshall’s rejects this attempted analogy.
1346 328 U.S. 654, 658 (1946).
308 ART. I—LEGISLATIVE DEPARTMENT
1347 Johannessen v. United States, 225 U.S. 227 (1912); Knauer v. United States,
328 U.S. 654 (1946); Costello v. United States, 365 U.S. 265 (1961).
1348 See 8 U.S.C. § 1451(c).
1349 231 U.S. 9 (1913). The provision has been modified to reduce the period to
Federal Government, it is established that the Due Process Clause of the Fifth Amend-
ment forbids discrimination in much the same manner as the Equal Protection Clause
of the Fourteenth Amendment. In fact, “[e]qual protection analysis in the Fifth Amend-
ment area is the same as that under the Fourteenth Amendment.” Buckley v. Valeo,
424 U.S. 1, 93 (1976).
1353 Schneider v. Rusk, 377 U.S. 163, 168–69 (1964).
ART. I—LEGISLATIVE DEPARTMENT 309
making expatriation the consequence of certain acts when done by natural born citi-
zens as well.
1358 Perkins v. Elg, 307 U.S. 325 (1939). The qualifying phrase “absent a treaty
or statute . . . ” is error now, so long as Afroyim remains in effect. But note Rogers
v. Bellei, 401 U.S. 815, 832–833 (1971).
1359 Governeur v. Robertson, 24 U.S. (11 Wheat.) 332 (1826); Osterman v. Baldwin,
73 U.S. (6 Wall.) 116 (1867); Manuel v. Wulff, 152 U.S. 505 (1894).
310 ART. I—LEGISLATIVE DEPARTMENT
see generally J. ROCHE, THE EARLY DEVELOPMENT OF UNITED STATES CITIZENSHIP (1949).
1363 Act of July 27, 1868, 15 Stat. 223. While the Act’s preamble rhetorically
proclaims the “natural and inherent right of all people” to expatriate themselves, its
title is “An Act concerning the Rights of American Citizens in foreign States” and
its operative parts are concerned with that subject. It has long been taken, however,
as a general proclamation of United States recognition of the right of United States
citizens to expatriate themselves. Mackenzie v. Hare, 239 U.S. 299, 309 (1915); Mandoli
v. Acheson, 344 U.S. 133, 135–36 (1952). Cf. Savorgnan v. United States, 338 U.S.
491, 498 n.11 (1950).
1364 The Enrollment Act of March 3, 1865, § 21, 13 Stat. 487, 490. The language
of the section appears more consistent with a deprivation of civil rights than of citi-
zenship. Note also that § 14 of the Wade-Davis Bill, pocket-vetoed by President Lin-
coln, specifically provided that any person holding office in the Confederate Govern-
ment “is hereby declared not to be a citizen of the United States.” 6 J. RICHARDSON,
MESSAGES AND PAPERS OF THE PRESIDENTS 223 (1899).
1365 Nationality Act of 1940, 54 Stat. 1169.
1366 Id.
1367 58 Stat. 746 (1944).
1368 68 Stat. 1146 (1954).
ART. I—LEGISLATIVE DEPARTMENT 311
zenship is prescribed are (1) obtaining naturalization in a foreign state, (2) taking
an oath of allegiance to a foreign state, (3) serving in the armed forces of a foreign
state without authorization and with consequent acquisition of foreign nationality,
(4) assuming public office under the government of a foreign state for which only
nationals of that state are eligible, (5) voting in an election in a foreign state, (6)
formally renouncing citizenship before a United States foreign service officer abroad,
(7) formally renewing citizenship within the United States in time of war, subject to
approval of the Attorney General, (8) being convicted and discharged from the armed
services for desertion in wartime, (9) being convicted of treason or of an attempt to
overthrow forcibly the Government of the United States, (10) fleeing or remaining
outside the United States in wartime or a proclaimed emergency in order to evade
military service, and (11) residing abroad if a naturalized citizen, subject to certain
exceptions, for three years in the country of his birth or in which he was formerly a
national or for five years in any other foreign state. Several of these sections have
been declared unconstitutional, as explained in the text.
312 ART. I—LEGISLATIVE DEPARTMENT
1375 Perez v. Brownell, 356 U.S. 44 (1958). For the Court, Justice Frankfurter
three Justices held that expatriation for desertion was a cruel and unusual punish-
ment proscribed by the Eighth Amendment. Justice Brennan concurred on the ground
of a lack of the requisite relationship between the statute and Congress’s war pow-
ers. For the four dissenters, Justice Frankfurter argued that Congress had power to
impose loss of citizenship for certain activity and that there was a rational nexus
between refusal to perform a duty of citizenship and deprivation of citizenship. Jus-
tice Frankfurter denied that the penalty was cruel and unusual punishment and
denied that it was punishment at all “in any valid constitutional sense.” Id. at 124.
1377 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). For the Court Justice
ALIENS
The power of Congress “to exclude aliens from the United States
and to prescribe the terms and conditions on which they come in”
is absolute, being an attribute of the United States as a sovereign
nation. “That the government of the United States, through the ac-
tion of the legislative department, can exclude aliens from its terri-
tory is a proposition which we do not think open to controversy.
Jurisdiction over its own territory to that extent is an incident of
every independent nation. It is a part of its independence. If it could
not exclude aliens, it would be to that extent subject to the control
of another power. . . . The United States, in their relation to for-
eign countries and their subjects or citizens, are one nation, in-
vested with powers which belong to independent nations, the exer-
cise of which can be invoked for the maintenance of its absolute
independence and security throughout its entire territory.” 1382
1380 Justice Harlan, for himself and Justices Clark, Stewart, and White, argued
in dissent that there was no evidence that the drafters of the Fourteenth Amend-
ment had at all the intention ascribed to them by the majority. He would have found
in Afroyim’s voluntary act of voting in a foreign election a voluntary renunciation of
United States citizenship. 387 U.S. at 268.
1381 Rogers v. Bellei, 401 U.S. 815 (1971). The three remaining Afroyim dissent-
ers plus Chief Justice Burger and Justice Blackmun made up the majority, the three
remaining Justices of the Afroyim majority plus Justice Marshall made up the dis-
senters. The continuing vitality of Afroyim was assumed in Vance v. Terrazas, 444
U.S. 252 (1980), in which a divided Court upheld a congressionally imposed stan-
dard of proof, preponderance of evidence, by which to determine whether one had
by his actions renounced his citizenship.
1382 Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581,
603, 604 (1889); see also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893);
The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903); United States
ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585
(1913); Hines v. Davidowitz, 312 U.S. 52 (1941); Kleindienst v. Mandel, 408 U.S.
753 (1972). In Galvan v. Press, 347 U.S. 522, 530–531 (1954), Justice Frankfurter
for the Court wrote: “[M]uch could be said for the view, were we writing on a clean
slate, that the Due Process Clause qualifies the scope of political discretion hereto-
fore recognized as belonging to Congress in regulating the entry and deportation of
314 ART. I—LEGISLATIVE DEPARTMENT
aliens. . . . But the slate is not clean. As to the extent of the power of Congress
under review, there is not merely ‘a page of history,’ . . . but a whole volume. . . .
[T]hat the formulation of these policies is entrusted exclusively to Congress has be-
come about as firmly imbedded in the legislative and judicial tissues of our body
politic as any aspect of our government.” Although the issue of racial discrimination
was before the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context of parole
for undocumented aliens, the Court avoided it, holding that statutes and regula-
tions precluded INS considerations of race or national origin. Justices Marshall and
Brennan, in dissent, argued for reconsideration of the long line of precedents and
for constitutional restrictions on the government. Id. at 858. That there exists some
limitation upon exclusion of aliens is one permissible interpretation of Reagan v.
Abourezk, 484 U.S. 1 (1987), aff’g by an equally divided Court, 785 F.2d 1043 (D.C.
Cir. 1986), holding that mere membership in the Communist Party could not be used
to exclude an alien on the ground that his activities might be prejudicial to the in-
terests of the United States.
The power of Congress to prescribe the rules for exclusion or expulsion of aliens
is a “fundamental sovereign attribute” which is “of a political character and there-
fore subject only to narrow judicial review.” Hampton v. Mow Sun Wong, 426 U.S.
88, 101 n.21 (1976); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976); Fiallo v. Bell, 430
U.S. 787, 792 (1977). Although aliens are “an identifiable class of persons,” who aside
from the classification at issue “are already subject to disadvantages not shared by
the remainder of the community,” Hampton v. Mow Sun Wong, 426 U.S. at 102, Con-
gress may treat them in ways that would violate the Equal Protection Clause if a
state should do it. Diaz (residency requirement for welfare benefits); Fiallo (sex and
illegitimacy classifications). Nonetheless in Mow Sun Wong, 426 U.S. at 103, the Court
observed that when the Federal Government asserts an overriding national interest
as justification for a discriminatory rule that would violate the Equal Protection Clause
if adopted by a state, due process requires that it be shown that the rule was actu-
ally intended to serve that interest. The case struck down a classification that the
Court thought justified by the interest asserted but that had not been imposed by a
body charged with effectuating that interest. See Vergara v. Hampton, 581 F.2d 1281
(7th Cir. 1978). See Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (construing
statutes and treaty provisions restrictively to affirm presidential power to interdict
and seize fleeing aliens on high seas to prevent them from entering U.S. waters).
1383 Act of June 25, 1798, 1 Stat. 570. The Act was part of the Alien and Sedi-
tion Laws and authorized the expulsion of any alien the President deemed danger-
ous.
1384 Act of March 3, 1875, 18 Stat. 477.
1385 22 Stat. 214 (1882) (excluding idiots, lunatics, convicts, and persons likely
to become public charges); 23 Stat. 332 (1885), and 24 Stat. 414 (1887) (regulating
importing cheap foreign labor); 26 Stat. 1084 (1891) (persons suffering from certain
diseases, those convicted of crimes involving moral turpitude, paupers, and polyga-
mists); 32 Stat. 1213 (1903) (epileptics, insane persons, professional beggars, and
anarchists); 34 Stat. 898 (1907) (feeble-minded, children unaccompanied by parents,
persons suffering with tuberculosis, and women coming to the United States for pros-
titution or other immoral purposes).
1386 Act of May 6, 1882, 22 Stat. 58.
1387 Act of December 17, 1943, 57 Stat. 600.
ART. I—LEGISLATIVE DEPARTMENT 315
as amended.
1391 338 U.S. 537 (1950). See also Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953), in which the Court majority upheld the Government’s power to
exclude on the basis of information it would not disclose a permanent resident who
had gone abroad for about nineteen months and was seeking to return on a new
visa. But the Court will frequently read the applicable statutes and regulations strictly
against the government for the benefit of persons sought to be excluded. Cf. Delgadillo
v. Carmichael, 332 U.S. 388 (1947); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953);
Rosenburg v. Fleuti, 374 U.S. 449 (1963).
1392 Under the War Brides Act of 1945, 59 Stat. 659.
1393 338 U.S. at 543.
316 ART. I—LEGISLATIVE DEPARTMENT
274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 634, 646–49 (1973); De Canas
v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). See also
Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No. 09–115,
slip op. (2011).
1397 Purporting to enforce this distinction, the Court voided a statute, which, in
prohibiting the importation of “any alien woman or girl for the purpose of prostitu-
tion,” provided that whoever should keep for the purpose of prostitution “any alien
woman or girl within three years after she shall have entered the United States”
should be deemed guilty of a felony. Keller v. United States, 213 U.S. 138 (1909).
1398 54 Stat. 670, 8 U.S.C. §§ 1301–1306.
1399 See Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941).
ART. I—LEGISLATIVE DEPARTMENT 317
lation that may well be more severe and burdensome.1400 For ex-
ample, in Hines v. Davidowitz,1401 the Court voided a Pennsylvania
law requiring the annual registration and fingerprinting of aliens
but going beyond the subsequently enacted federal law to require
acquisition of an alien identification card that had to be carried at
all times and to be exhibited to any police officer upon demand and
to other licensing officers upon applications for such things as driv-
ers’ licenses.1402
Another decision voided a Pennsylvania law limiting those eli-
gible to welfare assistance to citizens and an Arizona law prescrib-
ing a fifteen-year durational residency period before an alien could
be eligible for welfare assistance.1403 Congress had provided, Jus-
tice Blackmun wrote for a unanimous Court, that persons who were
likely to become public charges could not be admitted to the United
States and that any alien who became a public charge within five
years of his admission was to be deported unless he could show that
1400 In the 1990s, Congress began giving the states a larger role in the enforce-
ment of federal immigration law. During this period, Congress also broadened the
states’ authority to deny aliens state benefits. Still, in the 2000s, states increasingly
asserted greater independent authority to deter the presence of illegal aliens within
their borders, both through curtailing benefits and assuming a more active role in
direct immigration enforcement. Most of these efforts foundered under court chal-
lenge, but some did not, resulting, in at least one instance, in the imposition of more
severe consequences under state law than under federal law for similar immigra-
tion violations. See Chamber of Commerce of the United States v. Whiting, 563 U.S.
___, No. 09–115, slip op. (2011). Nevertheless, the Whiting Court found a textual
basis in federal statute for the state sanctions imposed there. Absent text-based au-
thority for separate state penalties for federal immigration violations, those state
penalties likely will fail on preemption grounds. Arizona v. United States, 567 U.S.
___, No. 11–182, slip op. (2012) (invalidating state sanctions on unauthorized aliens
seeking work in violation of federal law and striking state penalties for violations of
federal alien registration requirements). It would further appear that states must
ground their efforts to detect, arrest, and remove unauthorized aliens in authority
delegated by Congress. Id.
1401 312 U.S. 52 (1941).
1402 312 U.S. at 68. The Court did not squarely hold the state incapable of hav-
ing such a law in the absence of federal law but appeared to lean in that direction.
State sanctions for violating federal alien registration laws were overturned in Ari-
zona v. United States, at least in part because the state penalties were greater than
those under federal law for the same violation. But see De Canas v. Bica, 424 U.S.
351 (1976), in which the Court, ten years prior to enactment of federal employer
sanctions, upheld a state law prohibiting an employer from hiring aliens not en-
titled to lawful residence in the United States. The Court wrote that states may
enact legislation touching upon aliens coexistent with federal laws, under regular
preemption standards, unless the nature of the regulated subject matter precludes
the conclusion or unless Congress has unmistakably ordained the impermissibility
of state law. For examples of state sanctions against unauthorized aliens that have
been struck on preemption grounds, see Arizona v. United States, 567 U.S. ___, No.
11–182, slip op. (2012).
1403 Graham v. Richardson, 403 U.S. 365 (1971). See also Sugarman v. Dougall,
413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 (1973); Cabell v. Chavez-Salido,
454 U.S. 432 (1982).
318 ART. I—LEGISLATIVE DEPARTMENT
the causes of his economic situation arose after his entry.1404 Thus,
in effect Congress had declared that lawfully admitted resident aliens
who became public charges for causes arising after their entry were
entitled to the full and equal benefit of all laws for the security of
persons and property and the states were disabled from denying
aliens these benefits.1405
Deportation
Unlike the exclusion proceedings,1406 deportation proceedings af-
ford the alien a number of constitutional rights: a right against self-
incrimination,1407 protection against unreasonable searches and sei-
zures,1408 guarantees against ex post facto laws, bills of attainder,
and cruel and unusual punishment,1409 a right to bail,1410 a right
to procedural due process,1411 a right to counsel,1412 a right to no-
tice of charges and hearing,1413 and a right to cross-examine.1414
Notwithstanding these guarantees, the Supreme Court has up-
held a number of statutory deportation measures as not unconstitu-
tional. The Internal Security Act of 1950, in authorizing the Attor-
ney General to hold in custody, without bail, aliens who are members
of the Communist Party of the United States, pending determina-
tion as to their deportability, is not unconstitutional.1415 Nor was it
unconstitutional to deport under the Alien Registration Act of 1940 1416
a legally resident alien because of membership in the Communist
Party, although such membership ended before the enactment of the
Act. Such application of the Act did not make it ex post facto, being
but an exercise of the power of the United States to terminate its
1404 8 U.S.C. §§ 1182(a)(8), 1182(a)(15), 1251(a)(8).
1405 See 42 U.S.C. § 1981, applied in Takahashi v. Fish & Game Comm’n, 334
U.S. 410, 419 n.7 (1948).
1406 See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950),
where the Court noted that “[w]hatever the procedure authorized by Congress is, it
is due process as far as an alien denied entry is concerned.”
1407 Kimm v. Rosenberg, 363 U.S. 405 (1960).
1408 Abel v. United States, 362 U.S. 217, 229 (1960).
1409 Marcello v. Bonds, 349 U.S. 302 (1955).
1410 Carlson v. Landon, 342 U.S. 524, 540 (1952).
1411 Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). See discussion of aliens’
due process rights under the Fifth Amendment, Aliens: Entry and Deportation.
1412 8 U.S.C. § 1252(b)(2).
1413 8 U.S.C. § 1252(b)(1).
1414 8 U.S.C. § 1252(b)(3).
1415 Carlson v. Landon, 342 U.S. 524 (1952). In Reno v. Flores, 507 U.S. 292
(1993), the Court upheld an INS regulation providing for the ongoing detention of
juveniles apprehended on suspicion of being deportable, unless parents, close rela-
tives, or legal guardians were available to accept release, as against a substantive
due process attack.
1416 54 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C.
§§ 1251 et seq.
ART. I—LEGISLATIVE DEPARTMENT 319
BANKRUPTCY
1445 Chicago Title and Trust Co. v. Wilcox Bldg. Corp., 302 U.S. 120 (1937).
1446 In re Klein, 42 U.S. (1 How.) 277 (1843); Hanover National Bank v. Moyses,
186 U.S. 181 (1902).
1447 Ashton v. Cameron County Dist., 298 U.S. 513 (1936). See also United States
See also Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) (Seventh Amendment
right to jury trial in bankruptcy cases).
1451 Hanover National Bank v. Moyses, 186 U.S. 181, 184 (1902).
ART. I—LEGISLATIVE DEPARTMENT 323
(1892).
1454 Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819).
1455 Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 368 (1827); Denny v. Bennett,
128 U.S. 489, 498 (1888); Brown v. Smart, 145 U.S. 454 (1892).
1456 In re Watts and Sachs, 190 U.S. 1, 27 (1903); International Shoe Co. v. Pinkus,
369 U.S. 153 (1962); Perez v. Campbell, 402 U.S. 637 (1971).
1462 Reitz v. Mealey, 314 U.S. 33, 37 (1941); Kesler v. Department of Public Safety,
tice Blackmun for himself and Chief Justice Burger and Justices Harlan and Stew-
art, argued, in line with the Reitz and Kesler majorities, that the provision at issue
was merely an attempt to assure driving competence and care on the part of its
citizens and had only tangential effect upon bankruptcy.
1464 New York v. Irving Trust Co., 288 U.S. 329 (1933).
1465 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
ART. I—LEGISLATIVE DEPARTMENT 325
of the United States, 22 U.S. (9 Wheat.) 737, 861 (1824); Farmers’ & Mechanics’
Nat. Bank v. Dearing, 91 U.S. 29, 33 (1875); Smith v. Kansas City Title Co., 255
U.S. 180, 208 (1921).
1481 Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 540–47 (1871).
1482 Perry v. United States, 294 U.S. 330, 353 (1935).
1483 294 U.S. at 361.
ART. I—LEGISLATIVE DEPARTMENT 327
“Establish”
The great question raised in the early days with reference to
the postal clause concerned the meaning to be given to the word
“establish”—did it confer upon Congress the power to construct post
offices and post roads, or only the power to designate from existing
places and routes those that should serve as post offices and post
roads? As late as 1855, Justice McLean stated that this power “has
generally been considered as exhausted in the designation of roads
on which the mails are to be transported,” and concluded that nei-
ther under the commerce power nor the power to establish post roads
could Congress construct a bridge over a navigable water.1485 A de-
cade earlier, however, the Court, without passing upon the validity
of the original construction of the Cumberland Road, held that be-
ing “charged . . . with the transportation of the mails,” Congress
could enter a valid compact with the State of Pennsylvania regard-
ing the use and upkeep of the portion of the road lying in the state.1486
The debate on the question was terminated in 1876 by the decision
in Kohl v. United States,1487 sustaining a proceeding by the United
States to appropriate a parcel of land in Cincinnati as a site for a
post office and courthouse.
Council of Greenburgh Civic Assn’s, 453 U.S. 114 (1981), in which the Court sus-
tained the constitutionality of a law making it unlawful for persons to use, without
payment of a fee (postage), a letterbox which has been designated an “authorized
depository” of the mail by the Postal Service.
328 ART. I—LEGISLATIVE DEPARTMENT
ject to a state toll tax imposed for use of the Cumberland Road pur-
suant to a compact with the United States.1489 Half a century later
it was availed of as one of the grounds on which the national execu-
tive was conceded the right to enter the national courts and de-
mand an injunction against the authors of any widespread disor-
der interfering with interstate commerce and the transmission of
the mails.1490
Prompted by the efforts of Northern anti-slavery elements to dis-
seminate their propaganda in the Southern states through the mails,
President Jackson, in his annual message to Congress in 1835, sug-
gested “the propriety of passing such a law as will prohibit, under
severe penalties, the circulation in the Southern States, through the
mail, of incendiary publications intended to instigate the slaves to
insurrection.” In the Senate, John C. Calhoun resisted this recom-
mendation, taking the position that it belonged to the States and
not to Congress to determine what is and what is not calculated to
disturb their security. He expressed the fear that if Congress might
determine what papers were incendiary, and as such prohibit their
circulation through the mail, it might also determine what were not
incendiary and enforce their circulation.1491 On this point his rea-
soning would appear to be vindicated by such decisions as those
denying the right of the states to prevent the importation of alco-
holic beverages from other states.1492
255 U.S. 407 (1921). See also Hannegan v. Esquire, 327 U.S. 146 (1946), denying
the Post Office the right to exclude Esquire Magazine from the mails on grounds of
the poor taste and vulgarity of its contents.
1500 381 U.S. 301 (1965).
1501 381 U.S. at 305, quoting Justice Holmes in United States ex rel. Milwau-
kee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (dissenting
opinion): “The United States may give up the Post Office when it sees fit, but while
it carries it on the use of the mails is almost as much a part of free speech as the
right to use our tongues. . . .” See also Blount v. Rizzi, 400 U.S. 410, 416 (1971)
(quoting same language). But for a different perspective on the meaning and appli-
cation of Holmes’ language, see United States Postal Service v. Council of Greenburgh
Civic Assn’s, 453 U.S. 114, 127 n.5 (1981), although there too the Court observed
that the postal power may not be used in a manner that abridges freedom of speech
or press. Id. at 126. Notice, too, that first-class mail is protected against opening
and inspection, except in accordance with the Fourth Amendment. Ex parte Jack-
son, 96 U.S. 727, 733 (1878); United States v. van Leeuwen, 397 U.S. 249 (1970).
But see United States v. Ramsey, 431 U.S. 606 (1977) (border search).
330 ART. I—LEGISLATIVE DEPARTMENT
308 (concurring opinion). This was the first federal statute ever voided for being in
conflict with the First Amendment.
1503 Rowan v. Post Office Dep’t, 397 U.S. 728 (1970).
1504 Blount v. Rizzi, 400 U.S. 410 (1971).
1505 49 Stat. 803, 812, 813, 15 U.S.C. §§ 79d, 79e.
1506 Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938).
1507 303 U.S. at 442.
ART. I—LEGISLATIVE DEPARTMENT 331
lisher of telephone directory, consisting of white pages and yellow pages, not en-
titled to copyright in white pages, which are only compilations). “To qualify for copy-
right protection, a work must be original to the author. . . . Originality, as the term
is used in copyright, means only that the work was independently created by the
author (as opposed to copied from other works), and that it possesses some minimal
degree of creativity. . . . To be sure, the requisite level of creativity is extremely low;
even a slight amount will suffice.” Id. at 345. First clearly articulated in The Trade-
Mark Cases, 100 U.S. 82 (1879), and Burrow-Giles Lithographic Co. v. Sarony, 111
U.S. 53, 58–60 (1884), the requirement is expressed in nearly every copyright opin-
ion, but its forceful iteration in Feist was noteworthy, because originality is a statu-
tory requirement as well, 17 U.S.C. § 102(a), and it was unnecessary to discuss the
concept in constitutional terms.
1519 A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950). In a
concurring opinion, Justice Douglas wrote, for himself and Justice Black: “Every pat-
ent is the grant of a privilege of exacting tolls from the public. The Framers plainly
did not want those monopolies freely granted. . . . It is not enough that an article
is new and useful. The Constitution never sanctioned the patenting of gadgets. Pat-
ents serve a higher end—the advancement of science. An invention need not be as
startling as an atomic bomb to be patentable. But it has to be of such quality and
distinction that masters of the scientific field in which it falls will recognize it as an
advance.” 340 U.S. at 154–55 (Justice Douglas concurring).
1520 Kendall v. Winsor, 62 U.S. (21 How.) 322, 328 (1859) (“[T]he inventor who
designedly, and with the view of applying it indefinitely and exclusively for his own
profit, withholds his invention from the public, comes not within the policy or ob-
jects of the Constitution or acts of Congress.”).
In Golan v. Holder, publishers and musicians challenged a law that allowed for
copyright protection of certain foreign works theretofore in the public domain, in
conformance with international practice. Plaintiffs alleged the provision was invalid
because, inter alia, it failed to give incentives for creating new works. Though this
ART. I—LEGISLATIVE DEPARTMENT 333
view found support in Justice Breyer’s dissent, the majority held the Copyright Clause
does not require that every provision of copyright law be designed to encourage new
works. Rather, Congress has broad discretion to determine the intellectual property
regime that, in its judgment, best serves the overall purposes of the Clause, includ-
ing broader dissemination of existing and future American works. 565 U.S. ___, No.
10–545, slip op. at 21 (2012).
1521 Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) (quoting Sony Corp. of America
life of the author plus 50 years to life of the author plus 70 years. Although the
more general issue was not raised, the Court opined that this length of time, extend-
able by Congress, was “clearly” not a regime of “perpetual” copyrights. The only two
dissenting Justices, Stevens and Breyer, challenged this assertion.
1525 Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815); Bloomer v. McQuewan, 55 U.S.
(14 How.) 539, 548 (1852); Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864);
Eunson v. Dodge, 85 U.S. (18 Wall.) 414, 416 (1873).
1526 Brown v. Duchesne, 60 U.S. (19 How.) 183, 195 (1857); see also Deepsouth
Packing Co. v. Laitram Corp., 406 U.S. 518, 531 (1972) (“Our patent system makes
no claim to extraterritorial effect . . . .”); Quality King Distrib., Inc. v. L’Anza Re-
search Int’l, Inc., 523 U.S. 135, 154 (1998) (Justice Ginsburg concurring) (“Copy-
right protection is territorial”); Microsoft Corp. v. AT&T, 550 U.S. 437, 454–55 (2007)
(“The presumption that United States law governs domestically but does not rule
the world applies with particualr force in patent law”.). It is, however, the ultimate
objective of many nations, including the United States, to develop a system of pat-
ent issuance and enforcement which transcends national boundaries; it has been rec-
ommended, therefore, that United States policy should be to harmonize its patent
system with that of foreign countries so long as such measures do not diminish the
quality of the United States patent standards. President’s Commission on the Pat-
ent System, To Promote the Progress of Useful Arts, Report to the Senate Judiciary
Committee, S. Doc. No. 5, 90th Cong., 1st sess. (1967), recommendation XXXV. Ef-
334 ART. I—LEGISLATIVE DEPARTMENT
Patentable Discoveries
The protection traditionally afforded by acts of Congress under
this clause has been limited to new and useful inventions,1527 and,
although a patentable invention is a mental achievement,1528 for an
idea to be patentable it must have first taken physical form.1529 De-
spite the fact that the Constitution uses the term “discovery” rather
than “invention,” a patent may not be issued for the discovery of a
previously unknown phenomenon of nature. “If there is to be inven-
tion from such a discovery, it must come from the application of
the law of nature to a new and useful end.” 1530 In addition to refus-
ing to allow patents for natural phenomena and laws of nature, the
Court has held that abstract ideas and mathematical formulas may
not be patented,1531 for these are the “basic tools of scientific and
technological work” 1532 that should be “free to all men and re-
served to none.” 1533
As for the mental processes that traditionally must be evi-
denced, the Court has held that an invention must display “more
ingenuity . . . than the work of a mechanic skilled in the art;” 1534
and, though combination patents have been at times sustained,1535
the accumulation of old devices is patentable “only when the whole
in some way exceeds the sum of its parts.” 1536 Though “inventive
fectuation of this goal of transnational protection of intellectual property was begun
with the United States agreement to the Berne Convention (the Convention for the
Protection of Literary and Artistic Works, Sept. 9, 1886), and Congress’s conditional
implementation of the Convention through legislation. The Berne Convention Imple-
mentation Act of 1988, Pub. L. 100–568, 102 Stat. 2853, 17 U.S.C. §§ 101 and notes.
1527 Seymour v. Osborne, 78 U.S. (11 Wall.) 516, 549 (1871). Cf. Collar Company
v. Van Dusen, 90 U.S. (23 Wall.) 530, 563 (1875); Reckendorfer v. Faber, 92 U.S.
347, 356 (1876).
1528 Smith v. Nichols, 89 U.S. (21 Wall.) 112, 118 (1875).
1529 Rubber-Tip Pencil Co. v. Howard, 87 U.S. (20 Wall.) 498, 507 (1874); Clark
Thread Co. v. Willimantic Linen Co., 140 U.S. 481, 489 (1891).
1530 Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948); Diamond v. Diehr,
450 U.S. 175, 187 (1981) (“[A]n application of a law of nature or mathematical for-
mula to a known structure or process may well be deserving of patent protection”.)
(emphasis in original). Cf. Dow Co. v. Halliburton Co., 324 U.S. 320 (1945); Cuno
Corp. v. Automatic Devices Corp., 314 U.S. 84, 89 (1941).
1531 Gottschalk v. Benson, 409 U.S. 63 (1972); Bilski v. Kappos, 561 U.S. ___,
No. 08–964, slip op. (2010); Mayo Collaborative Servs. v. Prometheus Laboratories,
Inc., 566 U.S. ___, No. 10–1150, slip op. (2012).
1532 Gottschalk v. Benson, 409 U.S. 63, 67 (1972).
1533 Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948).
1534 Sinclair Co. v. Interchemical Corp., 325 U.S. 327, 330 (1945); Marconi Wire-
interesting concurring opinion was filed by Justice Douglas for himself and Justice
Black: “It is not enough,” says Justice Douglas, “that an article is new and useful.
The Constitution never sanctioned the patenting of gadgets. Patents serve a higher
ART. I—LEGISLATIVE DEPARTMENT 335
Jungerson v. Ostby & Barton Co., 335 U.S. 560 (1949); and Cuno Corp. v. Automatic
Devices Corp., 314 U.S. 84 (1941).
1541 383 U.S. 1 (1966).
1542 52 U.S. (11 How.) 248 (1850).
336 ART. I—LEGISLATIVE DEPARTMENT
ment, and things which add to the sum of useful knowledge are
inherent requisites in a patent system which by constitutional com-
mand must ‘promote the Progress of . . . useful Arts.’ This is the
standard expressed in the Constitution and it may not be ig-
nored.” 1543 Congressional requirements on patentability, then, are
conditions and tests that must fall within the constitutional stan-
dard. Underlying the constitutional tests and congressional condi-
tions for patentability is the balancing of two interests—the inter-
est of the public in being protected against monopolies and in having
ready access to and use of new items versus the interest of the coun-
try, as a whole, in encouraging invention by rewarding creative per-
sons for their innovations. By declaring a constitutional standard
of patentability, however, the Court, rather than Congress, will be
doing the ultimate weighing. As for the clarity of the patentability
standard, the three-fold test of utility, novelty and advancement seems
to have been made less clear by the Supreme Court’s rejuvenation
of “invention” as a standard of patentability.1544
1543 383 U.S. at 6 (first emphasis added, second emphasis by Court). For a thor-
ough discussion, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141,
146–52 (1989).
1544 Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969).
“The question of invention must turn on whether the combination supplied the key
requirement.” Id. at 60. But the Court also appeared to apply the test of nonobvious-
ness in the same decision: “We conclude that the combination was reasonably obvi-
ous to one with ordinary skill in the art.” Id. See also McClain v. Ortmayer, 141
U.S. 419, 427 (1891), where, speaking of the use of “invention” as a standard of pat-
entability the Court said: “The truth is the word cannot be defined in such manner
as to afford any substantial aid in determining whether a particular device involves
an exercise of the inventive faculty or not.”
1545 A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950); Mahn
v. Harwood, 112 U.S. 354, 358 (1884). In Markman v. Westview Instruments, Inc.,
517 U.S. 348 (1996), the Court held that the interpretation of terms in a patent
claim is a matter of law reserved entirely for the courts. The Seventh Amendment
does not require that such issues be tried to a jury.
1546 Evans v. Eaton, 16 U.S. (3 Wheat.) 454, 512 (1818).
ART. I—LEGISLATIVE DEPARTMENT 337
to “an individual who has invented a most useful and valuable machine. . . . [I]t
has never been pretended that the latter could hold, by the common law, any prop-
erty in his invention, after he shall have sold it publicly.” Id.
1553 33 U.S. (8 Pet.) at 667.
1554 33 U.S. (8 Pet.) at 661; Holmes v. Hurst, 174 U.S. 82 (1899). The doctrine
of common-law copyright was long statutorily preserved for unpublished works, but
the 1976 revision of the federal copyright law abrogated the distinction between pub-
lished and unpublished works, substituting a single federal system for that existing
since the first copyright law in 1790. 17 U.S.C. § 301.
1555 33 U.S. (8 Pet.) at 661.
338 ART. I—LEGISLATIVE DEPARTMENT
to acts of Congress that secure it, from which it follows that the
rights granted by a patent or copyright are subject to such qualifi-
cations and limitations as Congress sees fit to impose. The Court’s
“reluctance to expand [copyright] protection without explicit legisla-
tive guidance” controlled its decision in Sony Corp. v. Universal City
Studios,1556 which held that the manufacture and sale of video tape
(or cassette) recorders for home use do not constitute “contribu-
tory” infringement of the copyright in television programs. Copy-
right protection, the Court reiterated, is “wholly statutory,” and courts
should be “circumspect” in extending protections to new technology.
The Court refused to hold that contributory infringement could oc-
cur simply through the supplying of the devices with which some-
one else could infringe, especially in view of the fact that VCRs are
capable of substantial noninfringing “fair use,” e.g., time-shifting of
television viewing.
Congress was within its powers in giving to authors the exclu-
sive right to dramatize any of their works. Even as applied to pan-
tomime dramatization by means of silent motion pictures, the act
was sustained against the objection that it extended the copyright
to ideas rather than to the words in which they were clothed.1557
But the copyright of the description of an art in a book was held
not to lay a foundation for an exclusive claim to the art itself. The
latter can be protected, if at all, only by letters patent.1558 Because
copyright is a species of property distinct from the ownership of the
equipment used in making copies of the matter copyrighted, the sale
of a copperplate under execution did not pass any right to print
and publish the map which the copperplate was designed to pro-
duce.1559 A patent right may, however, be subjected, by bill in eq-
uity, to payment of a judgment debt of the patentee.1560
1556 464 U.S. 417, 431 (1984). Cf. Metro-Goldwin-Mayer Studios Inc. v. Grokster,
1561 James v. Campbell, 104 U.S. 356, 358 (1882). See also United States v. Burns,
79 U.S. (12 Wall.) 246, 252 (1871); Cammeyer v. Newton, 94 U.S. 225, 234 (1877);
Hollister v. Benedict Mfg. Co., 113 U.S. 59, 67 (1885); United States v. Palmer, 128
U.S. 262, 271 (1888); Belknap v. Schild, 161 U.S. 10, 16 (1896).
1562 McClurg v. Kingsland, 42 U.S. (1 How.) 202, 206 (1843).
1563 Bloomer v. McQuewan, 55 U.S. (14 How.) 539, 553 (1852).
1564 See Motion Picture Co. v. Universal Film Co., 243 U.S. 502 (1917); Morton
Salt Co. v. Suppiger Co., 314 U.S. 488 (1942); United States v. Masonite Corp., 316
U.S. 265 (1942); United States v. New Wrinkle, Inc., 342 U.S. 371 (1952), where the
Justices divided 6 to 3 as to the significance for the case of certain leading prec-
edents; and Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172
(1965).
1565 Golan v. Holder, 565 U.S. ___, No. 10–545, slip op. (2012).
1566 Eldred v. Ashcroft, 537 U.S. 186 (2003).
1567 Golan v. Holder, 565 U.S. ___, No. 10–545, slip op. (2012).
1568 Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
340 ART. I—LEGISLATIVE DEPARTMENT
358 (1906); Ozan Lumber Co. v. Union County Bank, 207 U.S. 251 (1907).
1573 Fox Film Corp. v. Doyal, 286 U.S. 123 (1932), overruling Long v. Rockwood,
was to promote free access when the materials were thus in the
public domain.1574 But, in Goldstein v. California,1575 the Court dis-
tinguished the two prior cases and held that the determination whether
a state “tape piracy” statute conflicted with the federal copyright
statute depended upon the existence of a specific congressional in-
tent to forbid state protection of the “writing” there involved. Its
consideration of the statute and of its legislative history convinced
the Court that Congress in protecting certain “writings” and in not
protecting others bespoke no intention that federally unprotected
materials should enjoy no state protection, only that Congress “has
left the area unattended.” 1576 Similar analysis was used to sustain
the application of a state trade secret law to protect a chemical pro-
cess, that was patentable but not patented, from use by a commer-
cial rival, which had obtained the process from former employees
of the company, all of whom had signed agreements not to reveal
the process. The Court determined that protection of the process
by state law was not incompatible with the federal patent policy of
encouraging invention and public use of patented inventions, inas-
much as the trade secret law serves other interests not similarly
served by the patent law and where it protects matter clearly pat-
entable it is not likely to deter applications for patents.1577
Returning to the Sears and Compco emphasis, the Court unani-
mously, in Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,1578 reas-
serted that “efficient operation of the federal patent system de-
pends upon substantially free trade in publicly known, unpatented
design and utilitarian conceptions.” 1579 At the same time, however,
the Court attempted to harmonize Goldstein, Kewanee, and other
1574 Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964); Compco Corp. v.
tudes with respect to the preclusion of the states from acting in fields covered by
the Copyright Clause, whether Congress had or had not acted. The latter case rec-
ognized permissible state interests, id. at 552–560, whereas the former intimated
that congressional power was exclusive. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S.
225, 228–31 (1964).
1576 In the 1976 revision of the copyright law, Congress broadly preempted, with
narrow exceptions, all state laws bearing on material subject to copyright. 17 U.S.C.
§ 301. The legislative history makes clear Congress’s intention to overturn Goldstein
and “to preempt and abolish any rights under the common law or statutes of a state
that are equivalent to copyright and that extend to works coming within the scope
of the federal copyright law.” H. REP. NO. 94–1476, 94th Congress, 2d Sess. (1976),
130. The statute preserves state tape piracy and similar laws as to sound record-
ings fixed before February 15, 1972, until February 15, 2067. (Pub. L. 105–298 (1998),
§ 102, extended this date from February 15, 2047.)
1577 Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). See also Aronson v.
the Court referred to unfair competition, trademark, trade dress, and trade secrets
laws. Perhaps by way of distinguishing Sears and Compco, both of which invali-
dated use of unfair competition laws, the Court suggested that prevention of “con-
sumer confusion” is a permissible state goal that can be served in some instances
by application of such laws. Id. at 154.
1581 489 U.S. at 156 (emphasis added).
1582 489 U.S. at 158.
1583 100 U.S. 82 (1879).
1584 100 U.S. at 94.
1585 Burrow-Giles Lithographic Co. v. Saroney, 111 U.S. 53 (1884).
1586 Bleisten v. Donaldson Lithographing Co., 188 U.S. 239, 252 (1903).
ART. I—LEGISLATIVE DEPARTMENT 343
Definition of Offenses
The fact that the Constitutional Convention considered it nec-
essary to give Congress authority to define offenses against the law
of nations does not mean that in every case Congress must under-
1587 1 J. KENT, COMMENTARIES ON AMERICAN LAW 1 (1826).
1588 19 JOURNALS OF THE CONTINENTAL CONGRESS 315, 361 (1912); 20 id. at 762; 21
id. at 1136–37, 1158.
1589 Article IX.
1590 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 168, 182 (Rev.
ed. 1937).
1591 Id. at 316.
344 ART. I—LEGISLATIVE DEPARTMENT
take to codify that law or mark its precise boundaries before pre-
scribing punishments for infractions thereof. An act punishing “the
crime of piracy, as defined by the law of nations punishing the” was
held to be an appropriate exercise of the constitutional authority to
“define and punish” the offense, since it adopted by reference the
sufficiently precise definition of International Law.1592 Similarly, in
Ex parte Quirin,1593 the Court found that by the reference in the
Fifteenth Article of War to “offenders or offenses that . . . by the
law of war may be triable by such military commissions . . . ,” Con-
gress had “exercised its authority to define and punish offenses against
the law of nations by sanctioning, within constitutional limitations,
the jurisdiction of military commissions to try persons for offenses
which, according to the rules and precepts of the law of nations,
and more particularly the law of war, are cognizable by such tribu-
nals.” 1594 Where, conversely, Congress defines with particularity a
crime which is “an offense against the law of nations,” the law is
valid, even if it contains no recital disclosing that it was enacted
pursuant to this clause. Thus, the duty which the law of nations
casts upon every government to prevent a wrong being done within
its own dominion to another nation with which it is at peace, or to
the people thereof, was found to furnish a sufficient justification for
the punishment of the counterfeiting within the United States, of
notes, bonds, and other securities of foreign governments.1595
The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40–41 (1826); United States v. Brig Malek
Abhel, 43 U.S. (2 How.) 210, 232 (1844).
1593 317 U.S. 1 (1942).
1594 317 U.S. at 28.
1595 United States v. Arjona, 120 U.S. 479, 487, 488 (1887).
1596 United States v. Flores, 3 F. Supp. 134 (E.D. Pa. 1932).
ART. I—LEGISLATIVE DEPARTMENT 345
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
Clauses 11, 12, 13, and 14. The Congress shall have power
* * *;
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.
THE WAR POWER
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
also Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871); and United States v.
MacIntosh, 283 U.S. 605, 622 (1931).
1604 CONG. GLOBE, 37th Congress, 1st Sess., App. 1 (1861).
1605 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86 (1875).
1606 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).
1607 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934).
1608 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).
1609 299 U.S. 304 (1936).
ART. I—LEGISLATIVE DEPARTMENT 347
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
ers of external sovereignty did not depend upon the affirmative grants
of the Constitution. The powers to declare and wage war, to con-
clude peace, to make treaties, to maintain diplomatic relations with
other sovereignties, if they had never been mentioned in the Con-
stitution, would have vested in the Federal Government as neces-
sary concomitants of nationality.” 1610
A Complexus of Granted Powers.—In Lichter v. United
States,1611 on the other hand, the Court speaks of the “war powers”
of Congress. Upholding the Renegotiation Act, it declared that: “In
view of this power ‘To raise and support Armies, . . . and the power
granted in the same Article of the Constitution ‘to make all Laws
which shall be necessary and proper for carrying into Execution the
foregoing Powers’, . . . the only question remaining is whether the
Renegotiation Act was a law ‘necessary and proper for carrying into
Execution’ the war powers of Congress and especially its power to
support armies.” 1612 In a footnote, it listed the Preamble, the Nec-
essary and Proper Clause, the provisions authorizing Congress to
lay taxes and provide for the common defense, to declare war, and
to provide and maintain a navy, together with the clause designat-
ing the President as Commander-in-Chief of the Army and Navy,
as being “among the many other provisions implementing the Con-
gress and the President with powers to meet the varied demands
of war. . . .” 1613
Declaration of War
In the early draft of the Constitution presented to the Conven-
tion by its Committee of Detail, Congress was empowered “to make
war.” 1614 Although there were solitary suggestions that the power
should better be vested in the President alone,1615 in the Senate
alone,1616 or in the President and the Senate,1617 the sentiment of
the Convention, as best we can determine from the limited notes of
1610 299 U.S. at 316, 318. On the controversy respecting Curtiss-Wright, see The
1937).
1615 Mr. Butler favored “vesting the power in the President, who will have all
the requisite qualities, and will not make war but when the Nation will support it.”
Id. at 318.
1616 Mr. Pinkney thought the House was too numerous for such deliberations
but that the Senate would be more capable of a proper resolution and more ac-
quainted with foreign affairs. Additionally, with the states equally represented in
the Senate, the interests of all would be safeguarded. Id.
1617 Hamilton’s plan provided that the President was “to make war or peace,
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
1618 2 id., 318–319. In THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465, Hamilton
notes: “[T]he President is to be commander-in-chief of the army and navy of the United
States. In this respect his authority would be nominally the same with that of the
king of Great Britain, but in substance much inferior to it. It would amount to noth-
ing more than the supreme command and direction of the military and naval forces,
as first General and admiral of the confederacy; while that of the British king ex-
tends to the declaring of war and to the raising and regulating of fleets and armies,—
all which, by the Constitution under consideration, would appertain to the legisla-
ture.” (Emphasis in original). See also id. at No. 26, 164–171. Cf. C. BERDAHL, WAR
POWERS OF THE EXECUTIVE IN THE UNITED STATES ch. V (1921).
1619 THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 464–465, 470. During the Con-
ed. 1937).
1622 Jointly introducing the amendment to substitute “declare” for “make,” Madi-
son and Gerry noted the change would “leav[e] to the Executive the power to repel
sudden attacks.” Id. at 318.
1623 Connecticut originally voted against the amendment to substitute “declare”
for “make” but “on the remark by Mr. King that ‘make’ war might be understood to
‘conduct’ it which was an Executive function, Mr. Ellsworth gave up his opposition,
and the vote of Connecticut was changed. . . .” Id. at 319. The contemporary and
subsequent judicial interpretation was to the understanding set out in the text. Cf.
Talbot v. Seeman, 5 U.S. ()1 Cr., 1, 28 (1801) (Chief Justice Marshall: “The whole
powers of war being, by the Constitution of the United States, vested in congress,
the acts of that body alone can be resorted to as our guides in this inquiry.”); Ex
parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866).
ART. I—LEGISLATIVE DEPARTMENT 349
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
1624 MESSAGES AND PAPERS OF THE PRESIDENTS 326, 327 (J. Richardson ed., 1896).
1625 7 WORKS OF ALEXANDER HAMILTON 746–747 (J. Hamilton ed., 1851).
1626 2 Stat. 129, 130 (1802) (emphasis supplied).
1627 Of course, Congress need not declare war in the all-out sense; it may pro-
vide for a limited war which, it may be, the 1802 statute recognized. Cf. Bas v. Tingy,
4 U.S. (4 Dall.) 37 (1800).
1628 Prize Cases, 67 U.S. (2 Bl.) 635 (1863).
1629 12 Stat. 326 (1861).
1630 Prize Cases, 67 U.S. (2 Bl.) 635, 669 (1863).
350 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
stilled for the moment, when in 1973 Congress set a cut-off date for United States
military activities in Indochina, Pub. L. 93–52, 108, 87 Stat. 134, and subsequently,
over the President’s veto, Congress enacted the War Powers Resolution, providing a
framework for the assertion of congressional and presidential powers in the use of
military force. Pub. L. 93–148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541–1548.
1634 In Atlee v. Richardson, 411 U.S. 911 (1973), aff ’g 347 F. Supp. 689 (E.D.
Pa., 1982), the Court summarily affirmed a three-judge court’s dismissal of a suit
challenging the constitutionality of United States activities in Vietnam on political
question grounds. The action constituted approval on the merits of the dismissal,
but it did not necessarily approve the lower court’s grounds. See also Massachusetts
v. Laird, 400 U.S. 886 (1970); Holtzman v. Schlesinger, 414 U.S. 1304, 1316, 1321
(1973) (actions of individual justices on motions for stays). The Court simply denied
certiorari in all cases on its discretionary docket.
1635 E.g., Velvel v. Johnson, 287 F. Supp. 846 (D. Kan. 1968), aff’d sub nom. Velvel
v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970); Luftig v.
McNamara, 252 F. Supp. 819 (D.D.C. 1966), aff’d 373 F.2d 664 (D.C. Cir. 1967), cert.
denied, 389 U.S. 945 (1968); Mora v. McNamara, 387 F.2d 862 (D.C., 1967), cert.
denied, 389 U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970),
and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and aff’d, 443
ART. I—LEGISLATIVE DEPARTMENT 351
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
ers.
1637 W. BLACKSTONE, COMMENTARIES 263 (St. G. Tucker ed., 1803).
1638 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1187 (1833).
352 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
ited by the Constitution “are those only which are to raise and sup-
port armies in the strict sense of the word ‘support,’ and that the
inhibition of that clause does not extend to appropriations for the
various means which an army may use in military operations, or
which are deemed necessary for the common defense. . . .” 1639 Re-
lying on this earlier opinion, Attorney General Clark ruled in 1948
that there was “no legal objection to a request to the Congress to
appropriate funds to the Air Force for the procurement of aircraft
and aeronautical equipment to remain available until ex-
pended.” 1640
Conscription
The constitutions adopted during the Revolutionary War by at
least nine of the States sanctioned compulsory military service.1641
Towards the end of the War of 1812, conscription of men for the
army was proposed by James Monroe, then Secretary of War, but
opposition developed and peace came before the bill could be en-
acted.1642 In 1863, a compulsory draft law was adopted and put into
operation without being challenged in the federal courts.1643 Not so
the Selective Service Act of 1917.1644 This measure was attacked
on the grounds that it tended to deprive the States of the right to
“a well-regulated militia,” that the only power of Congress to exact
compulsory service was the power to provide for calling forth the
militia for the three purposes specified in the Constitution, which
did not comprehend service abroad, and finally that the compul-
sory draft imposed involuntary servitude in violation of the Thir-
teenth Amendment. The Supreme Court rejected all of these conten-
tions. It held that the powers of the States with respect to the militia
were exercised in subordination to the paramount power of the Na-
tional Government to raise and support armies, and that the power
of Congress to mobilize an army was distinct from its authority to
provide for calling the militia and was not qualified or in any wise
limited thereby.1645
Before the United States entered the first World War, the Court
had anticipated the objection that compulsory military service would
violate the Thirteenth Amendment and had answered it in the fol-
1639 25 Ops. Atty. Gen. 105, 108 (1904).
1640 40 Ops. Atty. Gen. 555 (1948).
1641 Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S.
3 (1918).
1642 245 U.S. at 385.
1643 245 U.S. at 386–88. The measure was upheld by a state court. Kneedler v.
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
tive Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984)
(upholding denial of federal financial assistance under Title IV of the Higher Educa-
tion Act to young men who fail to register for the draft).
354 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
345 U.S. 83, 93–94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746–48 (1975);
Greer v. Spock, 424 U.S. 828, 837–38 (1976); Middendorf v. Henry, 425 U.S. 25, 45–46
(1976); Brown v. Glines, 444 U.S. 348, 353–58 (1980); Rostker v. Goldberg, 453 U.S.
57, 64–68 (1981).
1655 Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
1656 453 U.S. at 66. “[P]erhaps in no other area has the Court accorded Con-
gress greater deference.” Id. at 64–65. See also Gilligan v. Morgan, 413 U.S. 1, 10
(1973).
1657 Parker v. Levy, 417 U.S. 733, 758 (1974). “[T]he tests and limitations [of
the Constitution] to be applied may differ because of the military context.” Rostker
v. Goldberg, 453 U.S. 57, 67 (1981).
1658 Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero v. Richardson,
411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 U.S. 498 (1975).
1659 Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407
U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. § 1034, which pro-
tects the right of members of the armed forces to communicate with a Member of
Congress, but which the Court interpreted narrowly.
ART. I—LEGISLATIVE DEPARTMENT 355
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
(1981). In the absence of express congressional language, like that found in Wissner,
the Court nonetheless held that a state court division under its community property
system of an officer’s military retirement benefits conflicted with the federal pro-
gram and could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See also Por-
ter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from creditors’ claims of
disability benefits deposited by a veteran’s guardian in a savings and loan associa-
tion).
1665 Dameron v. Brodhead, 345 U.S. 322 (1953). See also California v. Buzard,
382 U.S. 386 (1966); Sullivan v. United States, 395 U.S. 169 (1969).
1666 McKinley v. United States, 249 U.S. 397 (1919).
356 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
1667 The Uniform Code of Military Justice of 1950, 64 Stat. 107, as amended by
the Military Justice Act of 1968, 82 Stat. 1335, 10 U.S.C. §§ 801 et seq. For prior
acts, see 12 Stat. 736 (1863); 39 Stat. 650 (1916). See Loving v. United States, 517
U.S. 748 (1996) (in context of the death penalty under the UCMJ).
1668 Compare Solorio v. United States, 483 U.S. 435, 441–47 (1987) (majority opin-
ion), with id. at 456–61 (dissenting opinion), and O’Callahan v. Parker, 395 U.S. 258,
268–72 (1969) (majority opinion), with id. at 276–80 (Justice Harlan dissenting). See
Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-
Martial Jurisdiction, 13 VAND. L. REV. 435 (1960).
1669 395 U.S. 258 (1969).
1670 395 U.S. at 273–74. See also Relford v. Commandant, 401 U.S. 355 (1971);
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
military-court conviction on the basis that the service-connection test had been met,
the Court elected to reconsider and overrule O’Callahan altogether.
1674 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 138–39 (1866); Ex parte Quirin,
317 U.S. 1, 40 (1942). The matter was raised but left unresolved in Middendorf v.
Henry, 425 U.S. 25 (1976).
1675 See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206
States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). This conclusion by the
Court of Military Appeals is at least questioned and perhaps disapproved in Mid-
dendorf v. Henry, 425 U.S. 25, 43–48 (1976), in the course of overturning a CMA
rule that counsel was required in summary court-martial. For the CMA’s response
to the holding, see United States v. Booker, 5 M. J. 238 (C.M.A. 1977), rev’d in part
on reh., 5 M. J. 246 (C.M.A. 1978).
1677 The UCMJ guarantees counsel, protection from self-incrimination and double
officer for “conduct unbecoming an officer and gentleman,” and Article 134 punishes
any person subject to the Code for “all disorders and neglects to the prejudice of
good order and discipline in the armed forces.”
358 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
(1858). Judges of Article I courts do not have the independence conferred by secu-
rity of tenure and of compensation.
1684 Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857).
1685 Military Justice Act of 1983, Pub. L. 98–209, 97 Stat. 1393, 28 U.S.C. § 1259.
1686 Cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ex parte Yerger, 75 U.S. (8
Wall.) 85 (1869); Ex parte Reed, 100 U.S. 13 (1879). While federal courts have juris-
diction to intervene in military court proceedings prior to judgment, as a matter of
equity, following the standards applicable to federal court intervention in state crimi-
nal proceedings, they should act when the petitioner has not exhausted his military
remedies only in extraordinary circumstances. Schlesinger v. Councilman, 420 U.S.
738 (1975).
1687 Ex parte Reed, 100 U.S. 13 (1879); Swaim v. United States, 165 U.S. 553
(1897); Carter v. Roberts, 177 U.S. 496 (1900); Hiatt v. Brown, 339 U.S. 103 (1950).
1688 346 U.S. 137 (1953).
ART. I—LEGISLATIVE DEPARTMENT 359
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
eral court in such litigation 1689 and the lower federal courts have
divided several possible ways.1690
Civilians and Dependents.—In recent years, the Court re-
jected the view of the drafters of the Code of Military Justice with
regard to the persons Congress may constitutionally reach under
its clause 14 powers. Thus, it held that an honorably discharged
former soldier, charged with having committed murder during mili-
tary service in Korea, could not be tried by court-martial but must
be charged in federal court, if at all.1691 After first leaning the other
way,1692 the Court on rehearing found court-martial jurisdiction lack-
ing, at least in peacetime, to try civilian dependents of service per-
sonnel for capital crimes committed outside the United States.1693
Subsequently, the Court extended its ruling to civilian dependents
overseas charged with noncapital crimes 1694 and to civilian employ-
ees of the military charged with either capital or noncapital crimes.1695
WAR LEGISLATION
1689 Cf. Fowler v. Wilkinson, 353 U.S. 583 (1957); United States v. Augenblick,
393 U.S. 348, 350 n.3, 351 (1969); Parker v. Levy, 417 U.S. 733 (1974); Secretary of
the Navy v. Avrech, 418 U.S. 676 (1974).
1690 E.g., Calley v. Callaway, 519 F.2d 184 (5th Cir., 1975) (en banc), cert. de-
women for murdering their soldier husbands stationed in Japan). Chief Justice War-
ren and Justices Black, Douglas, and Brennan were of the opinion Congress’s power
under clause 14 could not reach civilians. Justices Frankfurter and Harlan con-
curred, limited to capital cases. Justices Clark and Burton dissented.
1694 Kinsella v. United States, 361 U.S. 234 (1960) (voiding court-martial convic-
tion for noncapital crime committed overseas by civilian wife of soldier). The major-
ity could see no reason for distinguishing between capital and noncapital crimes.
Justices Harlan and Frankfurter dissented on the ground that in capital cases greater
constitutional protection, available in civil courts, was required.
1695 Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel.
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
1696 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1180 (1833).
1697 297 U.S. 288 (1936).
1698 39 Stat. 166 (1916).
1699 297 U.S. at 327–28.
1700 60 Stat. 755 (1946), 42 U.S.C. §§ 1801 et seq.
1701 108(a), 70 Stat. 374, 378 (1956), 23 U.S.C. § 101(b), naming the Interstate
and 42.
1703 Article I, § 8, cl.1.
1704 Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended,
50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of July 1, 1973,
Pub. L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), although registration for pos-
sible conscription is in effect. Pub. L. 96–282, 94 Stat. 552 (1980).
1705 National Aeronautics and Space Act of 1958, 72 Stat. 426, as amended, codi-
as amended, provided temporary authority for wage and price controls, a power which
the President subsequently exercised. E.O. 11615, 36 Fed Reg. 15727 (August 16,
1971). Subsequent legislation expanded the President’s authority. 85 Stat. 743, 12
U.S.C. § 1904 note.
ART. I—LEGISLATIVE DEPARTMENT 361
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
statute that tolled the limitations period for state causes of action for the period
during which the Civil War prevented the bringing of an action). See also Mayfield
v. Richards, 115 U.S. 137 (1885).
1712 251 U.S. 146 (1919). See also Ruppert v. Caffey, 251 U.S. 264 (1920).
1713 Act of November 21, 1918, 40 Stat. 1046.
1714 251 U.S. at 163.
1715 Block v. Hirsh, 256 U.S. 135 (1921).
1716 Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924).
1717 Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See also Fleming v. Mo-
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
that an act [was] void as a delegation of federal power to state officials” was dis-
missed as “too wanting in merit to require further notice.” Likewise, “the contention
that . . . vesting administrative officers with legislative discretion [is unconstitu-
tional] has been so completely adversely settled as to require reference only to some
of the decided cases.” Id. (citing three cases). A wartime delegation was upheld by
reference to peacetime precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).
ART. I—LEGISLATIVE DEPARTMENT 363
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 343 U.S. 341 (1952).
1738 100 U.S. 158, 170 (1880).
ART. I—LEGISLATIVE DEPARTMENT 365
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
1739 De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S.
222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S.
138 (1904).
1740 354 U.S. 1 (1957).
1741 354 U.S. at 6, 7.
1742 For a comprehensive treatment, preceding Reid v. Covert, of the matter in
the context of the post-War war crimes trials, see Fairman, Some New Problems of
the Constitution Following the Flag, 1 STAN. L. REV. 587 (1949).
1743 12 U.S. (8 Cr.) 110 (1814). See also Conrad v. Waples, 96 U.S. 279 (1878).
366 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
255 U.S. 239 (1921); Central Union Trust Co. v. Garvan, 254 U.S. 554 (1921); United
States v. Chemical Foundation, 272 U.S. 1 (1926); Silesian-American Corp. v. Clark,
332 U.S. 469 (1947); Cities Service Co. v. McGrath, 342 U.S. 330 (1952); Handelsbureau
La Mola v. Kennedy, 370 U.S. 940 (1962); cf. Honda v. Clark, 386 U.S. 484 (1967).
1745 The Siren, 80 U.S. (13 Wall.) 389 (1871).
1746 The Hampton, 72 U.S. (5 Wall.) 372, 376 (1867).
1747 The Paquete Habana, 175 U.S. 677, 700, 711 (1900).
1748 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120–21 (1866).
ART. I—LEGISLATIVE DEPARTMENT 367
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
U.S. 211 (1919); Sugarman v. United States, 249 U.S. 182 (1919) ; Frohwerk v. United
States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919).
1751 40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918).
1752 Gilbert v. Minnesota, 254 U.S. 325 (1920).
1753 Schenck v. United States, 249 U.S. 47, 52 (1919).
1754 Hirabayashi v. United States, 320 U.S. 81 (1943).
1755 Korematsu v. United States, 323 U.S. 214 (1944). The five-Justice majority
opinion in Korematsuwas careful to state that it was ruling on exclusion only, and
368 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
direct constitutional ruling, holding instead that continued detention could not be
supported by the statute and executive orders that underlay the detention program.
323 U.S. at 297–300.
1757 E.g., Dennis v. United States, 341 U.S. 494 (1951); Communist Party v. Sub-
versive Activities Control Board, 367 U.S. 1 (1961); American Communications Asso-
ciation v. Douds, 339 U.S. 382 (1950).
1758 E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive
Activities Control Bd., 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437
(1965).
1759 United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of State,
378 U.S. 500 (1964). See also Schneider v. Smith, 390 U.S. 17 (1968).
1760 Section 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50
U.S.C. § 784(a)(1)(D).
1761 389 U.S. at 264–66. Justices Harlan and White dissented, contending that
the right of association should have been balanced against the public interest and
finding the weight of the latter the greater. Id. at 282.
1762 403 U.S. 713 (1971).
1763 The result in the case was reached by a six-to-three majority. The three
dissenters, Chief Justice Burger, 403 U.S. at 748, Justice Harlan, id. at 752, and
Justice Blackmun, id. at 759, would have granted an injunction in the case; Jus-
tices Stewart and White, id. at 727, 730, would not in that case but could conceive
of cases in which they would.
ART. I—LEGISLATIVE DEPARTMENT 369
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
gency alone, of course, will not justify the establishment and use of penal tribunals
not contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless
some other part of that document authorizes a response to the felt need.”).
1770 Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134 (1852).
1771 120 U.S. 227 (1887).
370 ART. I—LEGISLATIVE DEPARTMENT
Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment
States v. Toronto Navigation Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United
States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States
v. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372
(1946); United States v. General Motors Corp., 323 U.S. 373 (1945).
1775 United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas
Nebraska ex rel. Western Reference and Bond Ass’n, 313 U.S. 236 (1941), and their
progeny.
1778 Block v. Hirsh, 256 U.S. 135, 156 (1921).
1779 Yakus v. United States, 321 U.S. 414 (1944); Bowles v. Willingham, 321 U.S.
503 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); Fleming v. Mohawk Wrecking
& Lumber Co., 331 U.S. 111 (1947); Lichter v. United States, 334 U.S. 742 (1948).
ART. I—LEGISLATIVE DEPARTMENT 371
that he was not allowed a “fair return” on the property was dis-
missed with the observation that “a nation which can demand the
lives of its men and women in the waging of . . . war is under no
constitutional necessity of providing a system of price control . . .
which will assure each landlord a ‘fair return’ on his property.” 1780
The Court also held that rental ceilings could be established with-
out a prior hearing when the exigencies of national security pre-
cluded the delay which would ensue.1781
But, in another World War I case, the Court struck down a stat-
ute that penalized the making of “any unjust or unreasonable rate
or charge in handling . . . any necessaries” 1782 as repugnant to the
Fifth and Sixth Amendments in that it was so vague and indefinite
that it denied due process and failed to give adequate notice of what
acts would violate it.1783
1785 Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Tyler v. Defrees, 78 U.S. (11
Wheat.) 19 (1827).
1789 Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16 (1820). Organizing and provid-
ing for the militia being constitutionally committed to Congress and statutorily shared
with the Executive, the judiciary is precluded from exercising oversight over the pro-
cess, Gilligan v. Morgan, 413 U.S. 1 (1973), although wrongs committed by troops
are subject to judicial relief in damages. Scheuer v. Rhodes, 416 U.S. 233 (1974).
1790 39 Stat. 166, 197, 198, 200, 202, 211 (1916), codified in sections of Titles 10
& 32. See Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181 (1940).
ART. I—LEGISLATIVE DEPARTMENT 373
federal, employees and the Federal Government is thus not liable under the Fed-
eral Tort Claims Act for their negligence. Maryland v. United States, 381 U.S. 41
(1965).
1792 Perpich v. Department of Defense, 496 U.S. 434 (1990).
1793 J. FISKE, THE CRITICAL PERIOD OF AMERICAN HISTORY, 1783–1789 112–113 (1888);
W. TINDALL, THE ORIGIN AND GOVERNMENT OF THE DISTRICT OF COLUMBIA 31–36 (1903).
374 ART. I—LEGISLATIVE DEPARTMENT
effect of state law meant that law in the District was frozen as of the date of ces-
sion, unless Congress should change it, which it seldom did. For some of the prob-
lems, see Tayloe v. Thompson, 30 U.S. (5 Pet.) 358 (1831); Ex parte Watkins, 32 U.S.
(7 Pet.) 568 (1833); Stelle v. Carroll, 37 U.S. (12 Pet.) 201 (1838); Van Ness v. United
States Bank, 38 U.S. (13 Pet.) 17 (1839); United States v. Eliason, 41 U.S. (16 Pet.)
291 (1842).
1799 Act of March 3, 1801, 2 Stat. 115.
1800 The objections raised in the ratifying conventions and elsewhere seemed to
have consisted of prediction of the perils to the Nation of setting up the National
Government in such a place. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES 1215, 1216 (1833).
1801 THE FEDERALIST, No. 43 (J. Cooke ed. 1961), 289.
ART. I—LEGISLATIVE DEPARTMENT 375
1802 Such a contention was cited and rebutted in 3 J. STORY, COMMENTARIES ON THE
February 21, 1871, 16 Stat. 419; Act of June 20, 1874, 18 Stat. 116. The engrossing
story of the postwar changes in the government is related in W. WHYTE, THE UNCIVIL
WAR: WASHINGTON DURING THE RECONSTRUCTION (1958).
1804 Act of June 11, 1878, 20 Stat. 103.
1805 Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, reprinted as appen-
Senate on August 22, 1978, but only 16 states had ratified before the expiration of
the proposal after seven years.
1810 Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Heald v. District of
case upheld the validity of ordinances enacted by the District governing bodies in
1872 and 1873 prohibiting racial discrimination in places of public accommodations.
1812 346 U.S. at 109–10. See also Thompson v. Lessee of Carroll, 63 U.S. (22
Chief Justice Marshall for the Court held in Hepburn v. Ellzey 1813
that the District of Columbia was not a state within the meaning
of the diversity jurisdiction clause of Article III. This view, adhered
to for nearly a century and a half,1814 was overturned in 1949, the
Court upholding the constitutionality of a 1940 statute authorizing
federal courts to take jurisdiction of nonfederal controversies be-
tween residents of the District of Columbia and the citizens of a
state.1815 The decision was by a five to four division, but the five in
the majority disagreed among themselves on the reasons. Three
thought the statute to be an appropriate exercise of the power of
Congress to legislate for the District of Columbia pursuant to this
clause without regard to Article III.1816 Two others thought that
Hepburn v. Ellzey had been erroneously decided and would have
overruled it.1817 But six Justices rejected the former rationale and
seven Justices rejected the latter one; since five Justices agreed, how-
ever, that the statute was constitutional, it was sustained.
It is not disputed that the District is a part of the United States
and that its residents are entitled to all the guarantees of the United
States Constitution including the privilege of trial by jury 1818 and
of presentment by a grand jury.1819 Legislation restrictive of liberty
and property in the District must find justification in facts ad-
equate to support like legislation by a state in the exercise of its
police power.1820
Congress possesses over the District of Columbia the blended
powers of a local and national legislature.1821 This fact means that
in some respects ordinary constitutional restrictions do not oper-
ate; thus, for example, in creating local courts of local jurisdiction
in the District, Congress acts pursuant to its legislative powers un-
1813 6 U.S. (2 Cr.) 445 (1805); see also Sere v. Pitot, 10 U.S. (6 Cr.) 332 (1810);
New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816). The District was held to be a
state within the terms of a treaty. Geofroy v. Riggs, 133 U.S. 258 (1890).
1814 Barney v. City of Baltimore, 73 U.S. (6 Wall.) 280 (1868); Hooe v. Jamieson,
166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 (1897).
1815 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).
1816 337 U.S. at 588–600 (Justices Jackson, Black and Burton).
1817 337 U.S. at 604 (Justices Rutledge and Murphy). The dissents were by Chief
Justice Vinson, id. at 626, joined by Justice Douglas, and by Justice Frankfurter, id.
at 646, joined by Justice Reed.
1818 Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S.
1 (1899).
1819 United States v. Moreland, 258 U.S. 433 (1922).
1820 Wright v. Davidson, 181 U.S. 371, 384 (1901); cf. Adkins v. Children’s Hos-
pital, 261 U.S. 525 (1923), overruled in West Coast Hotel Co. v. Parrish, 300 U.S.
379 (1937).
1821 Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619 (1838);
Shoemaker v. United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers v.
United States, 286 U.S. 427, 435 (1932); O’Donoghue v. United States, 289 U.S. 516,
518 (1933).
ART. I—LEGISLATIVE DEPARTMENT 377
der clause 17 and need not create courts that comply with Article
III court requirements.1822 And when legislating for the District Con-
gress remains the legislature of the Union, so that it may give its
enactments nationwide operation to the extent necessary to make
them locally effective.1823
“Places”
This clause has been broadly construed to cover all structures
necessary for carrying on the business of the National Govern-
ment.1824 It includes post offices,1825 a hospital and a hotel located
in a national park,1826 and locks and dams for the improvement of
navigation.1827 But it does not cover lands acquired for forests, parks,
ranges, wild life sanctuaries or flood control.1828 Nevertheless, the
Supreme Court has held that a state may convey, and the Con-
gress may accept, either exclusive or qualified jurisdiction over prop-
erty acquired within the geographical limits of a state, for pur-
poses other than those enumerated in clause 17.1829
After exclusive jurisdiction over lands within a state has been
ceded to the United States, Congress alone has the power to pun-
ish crimes committed within the ceded territory.1830 Private prop-
erty located thereon is not subject to taxation by the state,1831 nor
can state statutes enacted subsequent to the transfer have any op-
1822 In the District of Columbia Court Reform and Criminal Procedure Act of
1970, Pub. L. 91–358, 111, 84 Stat. 475, D.C. Code, § 11–101, Congress specifically
declared it was acting pursuant to Article I in creating the Superior Court and the
District of Columbia Court of Appeals and pursuant to Article III in continuing the
United States District Court and the United States Court of Appeals for the District
of Columbia. The Article I courts were sustained in Palmore v. United States, 411
U.S. 389 (1973). See also Swain v. Pressley, 430 U.S. 372 (1977). The latter, federal
courts, while Article III courts, traditionally have had some non-Article III func-
tions imposed on them, under the “hybrid” theory announced in O’Donoghue v. United
States, 289 U.S. 516 (1933). E.g., Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967),
appeal dismissed, 393 U.S. 801 (1968) (power then vested in District Court to ap-
point school board members). See also Keller v. Potomac Elec. Co., 261 U.S. 428 (1923);
Embry v. Palmer, 107 U.S. 3 (1883).
1823 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821).
1824 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).
1825 Battle v. United States, 209 U.S. 36 (1908).
1826 Arlington Hotel v. Fant, 278 U.S. 439 (1929).
1827 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).
1828 Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938).
1829 304 U.S. at 528.
1830 Battle v. United States, 209 U.S. 36 (1908); Johnson v. Yellow Cab Co., 321
eration therein.1832 But the local laws in force at the date of ces-
sion that are protective of private rights continue in force until ab-
rogated by Congress.1833 Moreover, as long as there is no interference
with the exclusive jurisdiction of the United States, an area sub-
ject to such jurisdiction may be annexed by a municipality.1834
Fant, 278 U.S. 439 (1929); Pacific Coast Dairy v. Department of Agriculture, 318
U.S. 285 (1943). The Assimilative Crimes Act of 1948, 18 U.S.C. § 13, making appli-
cable to a federal enclave a subsequently enacted criminal law of the state in which
the enclave is situated entails no invalid delegation of legislative power to the state.
United States v. Sharpnack, 355 U.S. 286, 294, 296–97 (1958).
1833 Chicago, R.I. & P. Ry. v. McGlinn, 114 U.S. 542, 545 (1885); Stewart & Co.
areas of federal property do not cease to be part of the state in which they are lo-
cated and the residents of the areas are for most purposes residents of the state.
Thus, a state may not constitutionally exclude such residents from the privileges of
suffrage if they are otherwise qualified. Evans v. Cornman, 398 U.S. 419 (1970).
1835 Palmer v. Barrett, 162 U.S. 399 (1896).
1836 United States v. Unzeuta, 281 U.S. 138 (1930).
1837 Benson v. United States, 146 U.S. 325, 331 (1892).
1838 Palmer v. Barrett, 162 U.S. 399 (1896).
ART. I—LEGISLATIVE DEPARTMENT 379
such land, and the Supreme Court upheld its right to do so. The
majority assumed that “the Government’s unrestricted transfer of
property to nonfederal hands is a relinquishment of the exclusive
legislative power.” 1839 In separate concurring opinions, Chief Jus-
tice Stone and Justice Frankfurter reserved judgment on the ques-
tion of territorial jurisdiction.1840
Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading Co. v. Cook, 281 U.S. 647, 652
(1930).
1842 United States v. Cornell, 25 Fed. Cas. 646, 649 (No. 14,867) (C.C.D.R.I. 1819).
1843 James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937).
1844 Mason Co. v. Tax Comm’n, 302 U.S. 186 (1937). See also Atkinson v. Tax
supra.
1850 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.)
272, 281 (1856). Congress may also legislate to protect its spending power. Sabri v.
United States, 541 U.S. 600 (2004) (upholding imposition of criminal penalties for
bribery of state and local officials administering programs receiving federal funds).
ART. I—LEGISLATIVE DEPARTMENT 381
lic use,1851 have greatly extended the range of national power. But
the widest application of the Necessary and Proper Clause has oc-
curred in the field of monetary and fiscal controls. Because the vari-
ous specific powers granted by Article I, § 8, do not add up to a
general legislative power over such matters, the Court has relied
heavily upon this clause to sustain the comprehensive control that
Congress has asserted over this subject.1852
343, 357 (1879); United States v. Worrall, 2 U.S. (2 Dall.) 384, 394 (1798); Mc-
Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). That this power has been freely
exercised is attested by the pages of the United States Code devoted to Title 18,
entitled “Criminal Code and Criminal Procedure.” In addition, numerous regulatory
measures in other titles prescribe criminal penalties.
1854 Ex parte Carll, 106 U.S. 521 (1883).
1855 United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).
1856 Logan v. United States, 144 U.S. 263 (1892).
1857 United States v. Barnow, 239 U.S. 74 (1915).
1858 Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 U.S.
76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 (1895); Motes v. United States,
178 U.S. 458 (1900); United States v. Mosley, 238 U.S. 383 (1915). See also Rakes v.
United States, 212 U.S. 55 (1909).
1859 Ex parte Curtis, 106 U.S. 371 (1882).
1860 18 U.S.C. § 2385.
1861 See National Commission on Reform of Federal Criminal Laws, Final Re-
ion of the Court, joined by Justices Roberts, Stevens, Ginsburg and Sotomayor. Jus-
tices Kennedy and Alito concurred in the judgement, while Justices Thomas and Scalia
dissented.
1863 In United States v. Kebodeaux, 570 U.S. ___, No. 12–418, slip op. (2013),
the Court concluded that a sex offender, convicted by the Air Force in a special court-
martial, had, upon his release, been subject to state sex offender registration laws,
violation of which was prohibited under the Jacob Wetterling Crimes Against Chil-
dren and Sexually Violent Offender Registration Act, Pub. L. No. 103–322, 108 Stat.
2038–2042 (1994). Kebodeaux was later convicted of failing to register under the
“very similar” provisions of the Sex Offender Registration and Notification Act (SORNA),
Pub. L. No. 109–248, Title I, 120 Stat. 587, 590, (2006) (codified at 42 U.S.C. §§ 16901
et seq.), which had superseded the Jacob Wetterling Act. The Court held Congress
was well within its authority under the Necessary and Proper Clause to have modi-
fied the Jacob Wetterling Act’s registration requirements, and Kebodeaux was prop-
erly subject to SORNA requirements, even if they were enacted after his release.
1864 560 U.S. ___, No. 08–1224, slip op. at 22.
1865 Justice Kennedy, in concurrence, expressed concern that whether a statute
Finally, the Court found that the statute was not too attenuated
from the Article I powers underlying the criminal laws which had
been the basis for incarceration, as it related to the responsible ad-
ministration of the United States prison system.
Chartering of Banks
As an appropriate means for executing “the great powers, to lay
and collect taxes; to borrow money; to regulate commerce; to de-
clare and conduct a war; and to raise and support armies . . . ,”
Congress may incorporate banks and kindred institutions.1866 More-
over, it may confer upon them private powers, which, standing alone,
have no relation to the functions of the Federal Government, if those
privileges are essential to the effective operation of such corpora-
tions.1867 Where necessary to meet the competition of state banks,
Congress may authorize national banks to perform fiduciary func-
tions, even though, apart from the competitive situation, federal in-
strumentalities might not be permitted to engage in such busi-
ness.1868 The Court will not undertake to assess the relative importance
of the public and private functions of a financial institution Con-
gress has seen fit to create. It sustained the act setting up the Fed-
eral Farm Loan Banks to provide funds for mortgage loans on agri-
cultural land against the contention that the right of the Secretary
of the Treasury, which he had not exercised, to use these banks as
depositories of public funds, was merely a pretext for chartering those
banks for private purposes.1869
Currency Regulations
Reinforced by the necessary and proper clause, the powers “ ‘to
lay and collect taxes, to pay the debts and provide for the common
defence and general welfare of the United States,’ and ‘to borrow
money on the credit of the United States and to coin money and
regulate the value thereon . . . ,’ ” 1870 have been held to give Con-
gress virtually complete control over money and currency. A prohibi-
tive tax on the notes of state banks,1871 the issuance of treasury
notes impressed with the quality of legal tender in payment of pri-
there must be shown a “demonstrated link in fact, based on empirical demonstra-
tion.” See Comstock, 560 U.S. ___, No. 08–1224, slip op. at 3 (Kennedy, J., concur-
ring).
1866 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
1867 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 862 (1824).
U.S. 1, 39 (1888).
1875 Luxton v. North River Bridge Co., 153 U.S. 525 (1894).
1876 Clallam County v. United States, 263 U.S. 341 (1923).
1877 Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922).
1878 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838).
1879 Tennessee v. Davis, 100 U.S. 257, 263 (1880).
1880 Jinks v. Richland County, 538 U.S. 456 (2003).
1881 Railway Company v. Whitton, 80 U.S. (13 Wall.) 270, 287 (1872).
1882 Embry v. Palmer, 107 U.S. 3 (1883).
1883 Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53 (1825).
1884 Express Co. v. Kountze Bros., 75 U.S. (8 Wall.) 342, 350 (1869).
ART. I—LEGISLATIVE DEPARTMENT 385
Maritime Law
Congress may implement the admiralty and maritime jurisdic-
tion conferred upon the federal courts by revising and amending
the maritime law that existed at the time the Constitution was ad-
opted, but in so doing, it cannot go beyond the reach of that juris-
diction.1889 This power cannot be delegated to the states; hence, acts
of Congress that purported to make state workers’ compensation laws
applicable to maritime cases were held unconstitutional.1890
line Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67–69 (1982).
1886 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).
1887 Paramino Co. v. Marshall, 309 U.S. 370 (1940).
1888 Pope v. United States, 323 U.S. 1 (1944).
1889 Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934).
1890 Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson
1937).
1898 Id. at 438.
1899 Id.
1900 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1336 (1833).
1901 Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807).
1902 Cf. J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 118–139 (rev. ed. 1951).
1903 Including a finding by Chief Justice Taney on circuit that the President’s
action was invalid. Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md.
1861).
1904 Act of March 3, 1863, 1, 12 Stat. 755. See Sellery, Lincoln’s Suspension of
in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat.
14. It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902,
5, 32 Stat. 692. Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended
in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act,
67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946). For the
problem of de facto suspension through manipulation of the jurisdiction of the fed-
eral courts, see infra discussion under Article III, The Theory of Plenary Congressio-
nal Control.
1906 71 U.S. (4 Wall.) 2, 130–131 (1866).
388 ART. I—LEGISLATIVE DEPARTMENT
1912 United States v. Brown, 381 U.S. 437, 442–46 (1965). Four dissenting Jus-
tices, however, denied that any separation of powers concept underlay the clause.
Id. at 472–73.
1913 United States v. Lovett, 328 U.S. 303, 315 (1946).
1914 For a rejection of the Court’s approach and a plea to adhere to the tradi-
Amendment expression and association rights, but the Court majority did not rely
upon this ground. 334 F.2d 488 (9th Cir. 1964). However, in United States v. Robel,
389 U.S. 258 (1967), a very similar statute making it unlawful for any member of a
“Communist-action organization” to be employed in a defense facility was struck down
on First Amendment grounds and the bill of attainder argument was ignored.
1920 United States v. Brown, 381 U.S. 437, 462 (1965) (Justices White, Clark,
457–458 (1965).
1923 Brown, 381 U.S. at 458–61.
1924 329 U.S. 441 (1947).
1925 12 U.S.C. § 78.
ART. I—LEGISLATIVE DEPARTMENT 391
526, 88 Stat. 1695 (1974), note following 44 U.S.C. § 2107. For an application of this
statute, see Nixon v. Warner Communications, 435 U.S. 589 (1978).
1927 Nixon v. Administrator of General Services, 433 U.S. 425, 468–84 (1977).
Justice Stevens’ concurrence is more specifically directed to the facts behind the stat-
ute than is the opinion of the Court, id. at 484, and Justice White, author of the
dissent in Brown, merely noted he found the act nonpunitive. Id. at 487. Chief Jus-
tice Burger and Justice Rehnquist dissented. Id. at 504, 536–45. Adding to the im-
pression of a departure from Brown is the quotation in the opinion of the Court at
several points of the Brown dissent, id. at 470 n.31, 471 n.34, while the dissent quoted
and relied on the opinion of the Court in Brown. Id. at 538, 542.
1928 433 U.S. at 472. Justice Stevens carried the thought further, although in
the process he severely limited the precedential value of the decision. Id. at 484.
1929 433 U.S. at 473–84.
392 ART. I—LEGISLATIVE DEPARTMENT
The clause protects individual persons and groups who are vul-
nerable to nonjudicial determinations of guilt and does not apply
to a state; nor does a state have standing to invoke the clause for
its citizens against the Federal Government.1930
Definition
Both federal and state governments are prohibited from enact-
ing ex post facto laws,1931 and the Court applies the same analysis
whether the law in question is a federal or a state enactment. When
these prohibitions were adopted as part of the original Constitu-
tion, many persons understood the term ex post facto laws to “em-
brace all retrospective laws, or laws governing or controlling past
transactions, whether . . . of a civil or a criminal nature.” 1932 But
in the early case of Calder v. Bull,1933 the Supreme Court decided
that the phrase, as used in the Constitution, was a term of art that
applied only to penal and criminal statutes. But, although it is in-
applicable to retroactive legislation of any other kind,1934 the consti-
tutional prohibition may not be evaded by giving a civil form to a
measure that is essentially criminal.1935 Every law that makes crimi-
nal an act that was innocent when done, or that inflicts a greater
punishment than the law annexed to the crime when committed, is
an ex post facto law within the prohibition of the Constitution.1936
A prosecution under a temporary statute that was extended before
the date originally set for its expiration does not offend this provi-
sion even though it is instituted subsequent to the extension of the
statute’s duration for a violation committed prior thereto.1937 Be-
cause this provision does not apply to crimes committed outside the
jurisdiction of the United States against the laws of a foreign coun-
try, it is immaterial in extradition proceedings whether the foreign
law is ex post facto or not.1938
(4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878).
1937 United States v. Powers, 307 U.S. 214 (1939).
1938 Neely v. Henkel, 180 U.S. 109, 123 (1901). Cf. In re Yamashita, 327 U.S. 1,
26 (1946) (dissenting opinion of Justice Murphy); Hirota v. MacArthur, 338 U.S. 197,
199 (1948) (concurring opinion of Justice Douglas).
ART. I—LEGISLATIVE DEPARTMENT 393
Marcello v. Bonds, 349 U.S. 302 (1955). Justices Black and Douglas, reiterating in
Lehman v. United States ex rel. Carson, 353 U.S. 685, 690–91 (1957), their dissent
from the premise that the ex post facto clause is directed solely to penal legislation,
disapproved a holding that an immigration law, enacted in 1952, 8 U.S.C. § 1251,
which authorized deportation of an alien who, in 1945, had acquired a status of
nondeportability under pre-existing law is valid. In their opinion, to banish, in 1957,
an alien who had lived in the United States for almost 40 years, for an offense com-
mitted in 1936, and for which he already had served a term in prison, was to retro-
spectively subject him to a new punishment.
1945 Flemming v. Nestor, 363 U.S. 603 (1960).
394 ART. I—LEGISLATIVE DEPARTMENT
sonal use of the owner and not for hire. The principal argument for
the constitutionality of the measure was made by Hamilton, who
treated it as an “excise tax,” 1953 whereas Madison, both on the floor
of Congress and in correspondence, attacked it as “direct” and there-
fore void, because it was levied without apportionment.1954 The Court,
taking the position that the direct tax clause constituted in practi-
cal operation an exception to the general taxing powers of Con-
gress, held that no tax ought to be classified as “direct” that could
not be conveniently apportioned, and on this basis sustained the
tax on carriages as one on their “use” and therefore an “excise.”
Moreover, each of the judges advanced the opinion that the direct
tax clause should be restricted to capitation taxes and taxes on land,
or that, at most, it might cover a general tax on the aggregate or
mass of things that generally pervade all the states, especially if
an assessment should intervene, while Justice Paterson, who had
been a member of the Federal Convention, testified to his recollec-
tion that the principal purpose of the provision had been to allay
the fear of the Southern states that their Negroes and land should
be subjected to a specific tax.1955
1953 THE WORKS OF ALEXANDER HAMILTON 845 (J. Hamilton ed., 1851). “If the mean-
ing of the word excise is to be sought in the British statutes, it will be found to
include the duty on carriages, which is there considered as an excise, and then must
necessarily be uniform and liable to apportionment; consequently, not a direct tax.”
1954 4 ANNALS OF CONGRESS 730 (1794); 2 LETTERS AND OTHER WRITINGS OF JAMES MADI-
SON 14 (1865).
1955 3 U.S. (3 Dall.) 171, 177 (1796).
1956 Pacific Ins. Co. v. Soule, 74 U.S. (7 Wall.) 433 (1869).
1957 Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).
1958 Scholey v. Rew, 90 U.S. (23 Wall.) 331 (1875).
1959 Springer v. United States, 102 U.S. 586 (1881).
1960 102 U.S. at 602.
1961 157 U.S. 429 (1895); 158 U.S. 601 (1895).
396 ART. I—LEGISLATIVE DEPARTMENT
Miscellaneous
The power of Congress to levy direct taxes is not confined to
the states represented in that body. Such a tax may be levied in
1972 240 U.S. at 114.
1973 232 U.S. 261 (1914).
1974 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
1975 Phillips v. Dime Trust & S.D. Co., 284 U.S. 160 (1931).
1976 Tyler v. United States, 281 U.S. 497 (1930).
1977 Fernandez v. Wiener, 326 U.S. 340 (1945).
1978 Chase Nat’l Bank v. United States, 278 U.S. 327 (1929); United States v.
507 (1886).
1986 See United States v. IBM, 517 U.S. 843, 850–61 (1996).
1987 United States v. United States Shoe Corp., 523 U.S. 360, 363 (1998).
ART. I—LEGISLATIVE DEPARTMENT 399
port cargo did not correspond reliably with the federal harbor ser-
vices used or usable by the exporter. Instead, the extent and man-
ner of port use depended on such factors as size and tonnage of a
vessel and the length of time it spent in port.1988 The HMT was
thus a tax, and therefore invalid.
Where the sale to a commission merchant for a foreign con-
signee was consummated by delivery of the goods to an exporting
carrier, the sale was held to be a step in the exportation and hence
exempt from a general tax on sales of such commodity.1989 The giv-
ing of a bond for exportation of distilled liquor was not the com-
mencement of exportation so as to exempt from an excise tax spir-
its that were not exported pursuant to such bond.1990 A tax on the
income of a corporation derived from its export trade was not a tax
on “articles exported” within the meaning of the Constitution.1991
In United States v. IBM Corp.,1992 the Court rejected the gov-
ernment’s argument that it should refine its export-tax-clause juris-
prudence. Rather than read the clause as a bar on any tax that
applies to a good in the export stream, the government contended
that the Court should bring this clause in line with the Import-
Export Clause 1993 and with dormant-commerce-clause doctrine. In
that view, the Court should distinguish between discriminatory and
nondiscriminatory taxes on exports. But the Court held that suffi-
cient differences existed between the export clause and the other
two clauses, so that its bar should continue to apply to any and all
taxes on goods in the course of exportation.
Stamp Taxes
A stamp tax imposed on foreign bills of lading,1994 charter par-
ties,1995 or marine insurance policies,1996 was in effect a tax or duty
upon exports, and so void; but an act requiring the stamping of all
1988 523 U.S. at 367–69.
1989 Spalding & Bros. v. Edwards, 262 U.S. 66 (1923).
1990 Thompson v. United States, 142 U.S. 471 (1892).
1991 Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper Co. v. Bowers, 266
v. IBM Corp., 517 U.S. 843 (1996), the Court adhered to Thames & Mersey, and
held unconstitutional a federal excise tax upon insurance policies issued by foreign
countries as applied to coverage for exported products. The Court admitted that one
could question the earlier case’s equating of a tax on the insurance of exported goods
with a tax on the goods themselves, but it observed that the government had cho-
sen not to present that argument. Principles of stare decisis thus cautioned obser-
vance of the earlier case. Id. at 854–55. The dissenters argued that the issue had
400 ART. I—LEGISLATIVE DEPARTMENT
(1886).
1998 Louisiana PSC v. Texas & N.O. R.R., 284 U.S. 125, 131 (1931); Pennsylva-
nia v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 433 (1856); South
Carolina v. Georgia, 93 U.S. 4 (1876). In Williams v. United States, 255 U.S. 336
(1921), the argument that an act of Congress which prohibited interstate transpor-
tation of liquor into states whose laws prohibited manufacture or sale of liquor for
beverage purposes was repugnant to this clause was rejected.
1999 Louisiana PSC v. Texas & N.O. R.R., 284 U.S. 125, 132 (1931).
2000 Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 282, 414 (1849) (opin-
ion of Justice Wayne); cf. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 314
(1851).
2001 Morgan v. Louisiana, 118 U.S. 455, 467 (1886). See also Munn v. Illinois, 94
U.S. 113, 135 (1877); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 400
(1886).
2002 1 Stat. 53, 54, § 4 (1789).
2003 Thompson v. Darden, 198 U.S. 310 (1905).
ART. I—LEGISLATIVE DEPARTMENT 401
APPROPRIATIONS
The restriction on drawing money from the Treasury “was in-
tended as a restriction upon the disbursing authority of the Execu-
tive department,” and “means simply that no money can be paid
out of the Treasury unless it has been appropriated by an act of
Congress.” 2004 Congress may recognize and pay a claim of an equi-
table, moral, or honorary nature. When it directs a specific sum to
be paid to a certain person, neither the Secretary of the Treasury
nor any court has discretion to determine whether the person is
entitled to receive it.2005 In making appropriations to pay claims
arising out of the Civil War, Congress could, the Court held, pro-
vide that certain persons, i.e., those who had participated in the
rebellion, should not be paid out of the funds made available by
the general appropriation, but that such persons should seek relief
from Congress.2006
The Court has also recognized that Congress has wide discre-
tion with regard to the extent to which it may prescribe details of
expenditures for which it appropriates funds, and has approved the
frequent practice of making “lump sum” appropriations, i.e., gen-
eral appropriations of large amounts to be allotted and expended
as directed by designated government agencies. As an example, the
Court cited the act of June 17, 1902,2007 “where all moneys re-
ceived from the sale and disposal of public lands in a large number
of states and territories [were] set aside as a special fund to be ex-
pended for the reclamation of arid and semi-arid lands within those
states and territories,” and “[t]he expenditures [were] to be made
under the direction of the Secretary of the Interior upon such proj-
ects as he determined to be practicable and advisable.” The Court
declared: “The constitutionality of this delegation of authority has
never been seriously questioned.” 2008
2004 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v.
U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 389, 393 (1899).
2006 Hart v. United States, 118 U.S. 62, 67 (1886).
2007 32 Stat. 388 (1902).
2008 Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937).
402 ART. I—LEGISLATIVE DEPARTMENT
PAYMENT OF CLAIMS
No officer of the Federal Government is authorized to pay a debt
due from the United States, whether reduced to judgment or not,
without an appropriation for that purpose.2009 Nor may a govern-
ment employee, by erroneous advice to a claimant, bind the United
States through equitable estoppel principles to pay a claim for which
an appropriation has not been made.2010
After the Civil War, a number of controversies arose out of at-
tempts by Congress to restrict the payment of the claims of per-
sons who had aided the Rebellion but had thereafter received a par-
don from the President. The Supreme Court held that Congress could
not prescribe the evidentiary effect of a pardon in a proceeding in
the Court of Claims for property confiscated during the Civil War,2011
but that where the confiscated property had been sold and the pro-
ceeds paid into the Treasury, a pardon did not of its own force au-
thorize the restoration of such proceeds.2012 It was within the com-
petence of Congress to declare that the amount due to persons thus
pardoned should not be paid out of the Treasury and that no gen-
eral appropriation should extend to their claims.2013
IN GENERAL
In 1871 the Attorney General of the United States ruled that:
“A minister of the United States abroad is not prohibited by the
Constitution from rendering a friendly service to a foreign power,
even that of negotiating a treaty for it, provided he does not be-
come an officer of that power . . . but the acceptance of a formal
commission, as minister plenipotentiary, creates an official relation
between the individual thus commissioned and the government which
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Bills of Credit
Within the sense of the Constitution, bills of credit signify a pa-
per medium of exchange, intended to circulate between individu-
als, and between the government and individuals, for the ordinary
purposes of society. It is immaterial whether the quality of legal
tender is imparted to such paper. Interest-bearing certificates, in
denominations not exceeding ten dollars, that were issued by loan
offices established by the state of Missouri and made receivable in
payment of taxes or other moneys due to the state, and in payment
of the fees and salaries of state officers, were held to be bills of credit
whose issuance was banned by this section.2020 The states are not
forbidden, however, to issue coupons receivable for taxes,2021 nor to
execute instruments binding themselves to pay money at a future
day for services rendered or money borrowed.2022 Bills issued by state
banks are not bills of credit; 2023 it is immaterial that the state is
the sole stockholder of the bank,2024 that the officers of the bank
were elected by the state legislature,2025 or that the capital of the
bank was raised by the sale of state bonds.2026
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Bills of Attainder
Statutes passed after the Civil War with the intent and result
of excluding persons who had aided the Confederacy from following
certain callings, by the device of requiring them to take an oath
that they had never given such aid, were held invalid as being bills
of attainder, as well as ex post facto laws.2030
Other attempts to raise bill-of-attainder claims have been un-
successful. A Court majority denied that a municipal ordinance that
required all employees to execute oaths that they had never been
affiliated with Communist or similar organizations, violated the clause,
on the grounds that the ordinance merely provided standards of quali-
fications and eligibility for employment.2031 A law that prohibited
any person convicted of a felony and not subsequently pardoned from
holding office in a waterfront union was not a bill of attainder be-
cause the “distinguishing feature of a bill of attainder is the substi-
tution of a legislative for a judicial determination of guilt” and the
prohibition “embodies no further implications of appellant’s guilt than
are contained in his 1920 judicial conviction.” 2032
souri, 80 U.S. (13 Wall.) 257 (1872); Pierce v. Carskadon, 83 U.S. (16 Wall.) 234, 239
(1873).
2031 Garner v. Board of Pub. Works, 341 U.S. 716, 722–723 (1951). Cf. Konigsberg
Brown, 381 U.S. 437 (1965), does not qualify this decision.
2033 Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Watson v. Mercer, 33 U.S. (8
Pet.) 88, 110 (1834); Baltimore and Susquehanna R.R. v. Nesbit, 51 U.S. (10 How.)
395, 401 (1850); Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 463 (1855); Loche
v. New Orleans, 71 U.S. (4 Wall.) 172 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902);
Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911). In Eastern Enterprises v.
Apfel, 524 U.S. 498, 538 (1998) (concurring), Justice Thomas indicated a willingness
to reconsider Calder to determine whether the clause should apply to civil legisla-
tion.
2034 538 U.S. 84 (2003).
406 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
tude of restraint [makes] individual assessment appropriate,” the state may make
“reasonable categorical judgments,” and need not provide individualized determina-
tions of dangerousness. Id. at 103.
2040 Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269
U.S. 167, 169–70 (1925)). Alternatively, the Court described the reach of the clause
as extending to laws that “alter the definition of crimes or increase the punishment
ART. I—LEGISLATIVE DEPARTMENT 407
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
for criminal acts.” Id. at 43. Justice Chase’s oft-cited formulation has a fourth cat-
egory: “every law that aggravates a crime, or makes it greater than it was, when
committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), cited in, e.g., Carmell v.
Texas, 529 U.S. 513, 522 (2000).
2041 Frank v. Mangum, 237 U.S. 309, 344 (1915); Ross v. Oregon, 227 U.S. 150,
188 U.S. 505, 509 (1903); Lehmann v. State Board of Public Accountancy, 263 U.S.
394 (1923).
2047 DeVeau v. Braisted, 363 U.S. 144, 160 (1960).
408 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
revive child abuse charges 22 years after the limitations period had run for the al-
leged crimes).
2052 Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of Lind-
tions v. Morales, 514 U.S. 499 (1995) (a law amending parole procedures to decrease
frequency of parole-suitability hearings is not ex post facto as applied to prisoners
who committed offenses before enactment). The opinion modifies previous opinions
that had held some laws impermissible because they operated to the disadvantage
ART. I—LEGISLATIVE DEPARTMENT 409
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
cribed to the act of murder.” 2062 Whether the “fair warning” stan-
dard is to have any prominent place in ex post facto jurisprudence
may be an interesting question, but it is problematical whether the
fact situation will occur often enough to make the principle appli-
cable in many cases.
Changes in Procedure.—An accused person does not have a
right to be tried in all respects in accordance with the law in force
when the crime charged was committed.2063 Laws shifting the place
of trial from one county to another,2064 increasing the number of
appellate judges and dividing the appellate court into divisions,2065
granting a right of appeal to the state,2066 changing the method of
selecting and summoning jurors,2067 making separate trials for per-
sons jointly indicted a matter of discretion for the trial court rather
than a matter of right,2068 and allowing a comparison of handwrit-
ing experts,2069 have been sustained over the objection that they
were ex post facto. It was suggested in a number of these cases,
and two decisions were rendered precisely on the basis, that the
mode of procedure might be changed only so long as the “substan-
tial” rights of the accused were not curtailed.2070 The Court has now
disavowed this position.2071 All that the language of most of these
cases meant was that a legislature might not evade the ex post facto
clause by labeling changes as alteration of “procedure.” If a change
labeled “procedural” effects a substantive change in the definition
of a crime or increases punishment or denies a defense, the clause
is invoked; however, if a law changes the procedures by which a
criminal case is adjudicated, the clause is not implicated, regard-
less of the increase in the burden on a defendant.2072
lina, 237 U.S. 180, 183 (1915); Beazell v. Ohio, 269 U.S. 167, 171 (1925). The two
cases decided on the basis of the distinction were Thompson v. Utah, 170 U.S. 343
(1898) (application to felony trial for offense committed before enactment of change
from twelve-person jury to an eight-person jury void under clause), and Kring v. Mis-
souri, 107 U.S. 221 (1883) (as applied to a case arising before change, a law abolish-
ing a rule under which a guilty plea functioned as a acquittal of a more serious
offense, so that defendant could be tried on the more serious charge, a violation of
the clause).
2071 Collins v. Youngblood, 497 U.S. 37, 44–52 (1990). In so doing, the Court over-
son committing an offense and tried before passage of the law, that authorized crimi-
ART. I—LEGISLATIVE DEPARTMENT 411
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Obligation of Contracts
“Law” Defined.—The Contract Clause provides that no state
may pass a “Law impairing the Obligation of Contracts,” and a “law”
in this context may be a statute, constitutional provision,2074 mu-
nicipal ordinance,2075 or administrative regulation having the force
and operation of a statute.2076 But are judicial decisions within the
clause? The abstract principle of the separation of powers, at least
until recently, forbade the idea that the courts “make” law and the
word “pass” in the above clause seemed to confine it to the formal
and acknowledged methods of exercise of the law-making function.
Accordingly, the Court has frequently said that the clause does not
cover judicial decisions, however erroneous, or whatever their ef-
fect on existing contract rights.2077 Nevertheless, there are impor-
tant exceptions to this rule that are set forth below.
Status of Judicial Decisions.—Although the highest state court
usually has final authority in determining the construction as well
as the validity of contracts entered into under the laws of the state,
and federal courts will be bound by decisions of the highest state
court on such matters, this rule does not hold when the contract is
77 U.S. (10 Wall.) 511 (1871); New Orleans Gas Co. v. Louisiana Light Co., 115 U.S.
650 (1885); Bier v. McGehee, 148 U.S. 137, 140 (1893).
2075 New Orleans Water-Works Co. v. Rivers, 115 U.S. 674 (1885); City of Walla
Walla v. Walla Walla Water Co., 172 U.S. 1 (1898); City of Vicksburg v. Waterworks
Co., 202 U.S. 453 (1906); Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548 (1914);
Cuyahoga Power Co. v. City of Akron, 240 U.S. 462 (1916).
2076 Id. See also Grand Trunk Ry. v. Indiana R.R. Comm’n, 221 U.S. 400 (1911);
Works Co. v. Louisiana Sugar Co., 125 U.S. 18 (1888); Hanford v. Davies, 163 U.S.
273 (1896); Ross v. Oregon, 227 U.S. 150 (1913); Detroit United Ry. v. Michigan, 242
U.S. 238 (1916); Long Sault Development Co. v. Call, 242 U.S. 272 (1916); McCoy v.
Union Elevated R. Co., 247 U.S. 354 (1918); Columbia Ry., Gas & Electric Co. v.
South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. v. Flannagan, 263 U.S. 444 (1924).
412 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
prietors v. Hoboken Co., 68 U.S. (1 Wall.) 116, 145 (1863); Wright v. Nagle, 101 U.S.
791, 793 (1880); McGahey v. Virginia, 135 U.S. 662, 667 (1890); Scott v. McNeal,
154 U.S. 34, 35 (1894); Stearns v. Minnesota, 179 U.S. 223, 232–33 (1900); Coombes
v. Getz, 285 U.S. 434, 441 (1932); Atlantic Coast Line R.R. v. Phillips, 332 U.S. 168,
170 (1947).
2079 McCullough v. Virginia, 172 U.S. 102 (1898); Houston & Texas Central Rd.
Co. v. Texas, 177 U.S. 66, 76, 77 (1900); Hubert v. New Orleans, 215 U.S. 170, 175
(1909); Carondelet Canal Co. v. Louisiana, 233 U.S. 362, 376 (1914); Louisiana Ry.
& Nav. Co. v. New Orleans, 235 U.S. 164, 171 (1914).
2080 State Bank of Ohio v. Knoop, 57 U.S. (16 How.) 369 (1854) (discussed be-
low), and Ohio Life Ins. and Trust Co. v. Debolt, 57 U.S. (16 How.) 416 (1854), are
the leading cases. See also Jefferson Branch Bank v. Skelly, 66 U.S. (1 Bl.) 436 (1862);
Louisiana v. Pilsbury, 105 U.S. 278 (1882); McGahey v. Virginia, 135 U.S. 662 (1890);
Mobile & Ohio R.R. v. Tennessee, 153 U.S. 486 (1894); Bacon v. Texas, 163 U.S. 207
(1896); McCullough v. Virginia, 172 U.S. 102 (1898).
2081 Gelpcke v. City of Debuque, 68 U.S. (1 Wall.) 175, 206 (1865); Havemayer v.
Iowa County, 70 U.S. (3 Wall.) 294 (1866); Thomson v. Lee County, 70 U.S. (3 Wall.)
327 (1866); The City v. Lamson, 76 U.S. (9 Wall.) 477 (1870); Olcott v. The Supervi-
sors, 83 U.S. (16 Wall.) 678 (1873); Taylor v. Ypsilanti, 105 U.S. 60 (1882); Anderson
v. Santa Anna, 116 U.S. 356 (1886); Wilkes County v. Coler, 180 U.S. 506 (1901).
ART. I—LEGISLATIVE DEPARTMENT 413
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
past has apparently regarded itself as free to pass upon the consti-
tutionality of the state law authorizing the bonds even though there
had been no prior decision by the highest state court sustaining them,
the idea being that contracts entered into simply on the faith of
the presumed constitutionality of a state statute are entitled to this
protection.2082
In other words, in cases in which it has jurisdiction because of
diversity of citizenship, the Court has held that the obligation of
contracts is capable of impairment by subsequent judicial decisions
no less than by subsequent statutes, and that it is able to prevent
such impairment. In cases, on the other hand, of which it obtains
jurisdiction only on the constitutional ground and by appeal from a
state court, it has always adhered in terms to the doctrine that the
word “laws” as used in Article I, § 10, does not include judicial de-
cisions. Yet, even in these cases, it will intervene to protect con-
tracts entered into on the faith of existing decisions from an impair-
ment that is the direct result of a reversal of such decisions, but
there must be in the offing, as it were, a statute of some kind—one
possibly many years older than the contract rights involved—on which
to pin its decision.2083
In 1922, Congress, through an amendment to the Judicial Code,
endeavored to extend the reviewing power of the Supreme Court to
“any suit involving the validity of a contract wherein it is claimed
that a change in the rule of law or construction of statutes by the
highest court of a State applicable to such contract would be repug-
nant to the Constitution of the United States . . . .” 2084 This ap-
peared to be an invitation to the Court to say frankly that the obli-
gation of a contract can be impaired by a subsequent court decision.
The Court, however, declined the invitation in an opinion by Chief
Justice Taft that reviewed many of the cases covered in the preced-
ing paragraphs.
Dealing with Gelpcke and subsequent decisions, Chief Justice
Taft said: “These cases were not writs of error to the Supreme Court
of a State. They were appeals or writs of error to federal courts
where recovery was sought upon municipal or county bonds or some
other form of contracts, the validity of which had been sustained
by decisions of the Supreme Court of a State prior to their execu-
tion, and had been denied by the same court after their issue or
making. In such cases the federal courts exercising jurisdiction be-
tween citizens of different States held themselves free to decide what
2082 Great Southern Hotel Co. v. Jones, 193 U.S. 532, 548 (1904).
2083 Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New York & Harlem
R.R., 197 U.S. 544, 570 (1905).
2084 42 Stat. 366.
414 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
the state law was, and to enforce it as laid down by the State Su-
preme Court before the contracts were made rather than in later
decisions. They did not base this conclusion on Article I, § 10, of
the Federal Constitution, but on the state law as they determined
it, which, in diverse citizenship cases, under the third Article of the
Federal Constitution they were empowered to do. Burgess v. Selig-
man, 107 U.S. 20 [1883].” 2085 Although doubtless this was an avail-
able explanation in 1924, the decision in 1938, in Erie Railroad Co.
v. Tompkins,2086 so cut down the power of the federal courts to de-
cide diversity of citizenship cases according to their own notions of
“general principles of common law” as to raise the question whether
the Court will not be required eventually to put Gelpcke and its
companions and descendants squarely on the Contract Clause or
else abandon them.
“Obligation” Defined.—A contract is analyzable into two ele-
ments: the agreement, which comes from the parties, and the obli-
gation, which comes from the law and makes the agreement bind-
ing on the parties. The concept of obligation is an importation from
the civil law and its appearance in the Contract Clause is sup-
posed to have been due to James Wilson, a graduate of Scottish
universities and a civilian. Actually, the term as used in the Con-
tract Clause has been rendered more or less superfluous by the doc-
trine that “[t]he laws which exist at the time and place of the mak-
ing of a contract, and where it is to be performed, enter into and
form a part of it.” 2087 Hence, the Court sometimes recognizes the
term in its decisions applying the clause, and sometimes ignores it.
In Sturges v. Crowninshield,2088 Chief Justice Marshall defined “ob-
ligation of contract” as the law that binds a party “to perform his
undertaking,” but a little later the same year, in Dartmouth Col-
lege v. Woodward, he set forth the points presented for consider-
ation to be: “1. Is this contract protected by the constitution of the
United States? 2. Is it impaired by the acts under which the defen-
dant holds?” 2089 The word “obligation” undoubtedly implies that the
Constitution was intended to protect only executory contracts—i.e.,
contracts still awaiting performance—but this implication was re-
jected early on for a certain class of contracts, with immensely im-
portant result for the clause.
2085 Tidal Oil Co. v. Flannagan, 263 U.S. 444, 452 (1924).
2086 304 U.S. 64 (1938).
2087 Walker v. Whitehead, 83 U.S. (16 Wall.) 314, 317 (1873); Wood v. Lovett,
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
ours is an evolving society and that the general words of the contract clause were
not intended to reduce the legislative branch of government to helpless impotency.”
Justice Black, in Wood v. Lovett, 313 U.S. 362, 383 (1941).
2094 Crane v. Hahlo, 258 U.S. 142, 145–46 (1922); Louisiana ex rel. Folsom v.
Mayor of New Orleans, 109 U.S. 285, 288 (1883); Morley v. Lake Shore Ry., 146
U.S. 162, 169 (1892). That the Contract Clause did not protect vested rights merely
as such was stated by the Court as early as Satterlee v. Matthewson, 27 U.S. (2
Pet.) 380, 413 (1829); and again in Charles River Bridge v. Warren Bridge, 36 U.S.
(11 Pet.) 420, 539–40 (1837).
416 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
lice Jury, 116 U.S. 131 (1885); Dodge v. Board of Education, 302 U.S. 74 (1937);
Mississippi ex rel. Robertson v. Miller, 276 U.S. 174 (1928).
2104 Butler v. Pennsylvania, 51 U.S. (10 How.) 420 (1850). Cf. Marbury v. Madi-
son, 5 U.S. (1 Cr.) 137 (1803) Hoke v. Henderson, 154 N.C. (4 Dev.) 1 (1833). See
also United States v. Fisher, 109 U.S. 143 (1883); United States v. Mitchell, 109
U.S. 146 (1883); Crenshaw v. United States, 134 U.S. 99 (1890).
2105 Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Mississippi ex rel. Robert-
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
lier, this has not always been easy to do. In pursuance of the prec-
edent set in New Jersey v. Wilson,2110 the legislature of a state “may
exempt particular parcels of property or the property of particular
persons or corporations from taxation, either for a specified period
or perpetually, or may limit the amount or rate of taxation, to which
such property shall be subjected,” and such an exemption is fre-
quently a contract within the sense of the Constitution. Indeed this
is always so when the immunity is conferred upon a corporation by
the clear terms of its charter.2111 When, on the other hand, an im-
munity of this sort springs from general law, its precise nature is
more open to doubt, as a comparison of decisions will serve to illus-
trate.
In State Bank of Ohio v. Knoop,2112 a closely divided Court held
that a general banking law of Ohio, which provided that compa-
nies complying therewith and their stockholders should be exempt
from all but certain taxes, was, as to a bank organized under it
and its stockholders, a contract within the meaning of Article I, § 10.
The provision was not, the Court said, “a legislative command nor
a rule of taxation until changed, but a contract stipulating against
any change, from the nature of the language used and the circum-
stances under which it was adopted.” 2113 When, however, the State
of Michigan pledged itself, by a general legislative act, not to tax
any corporation, company, or individual undertaking to manufac-
ture salt in the state from water there obtained by boring on prop-
erty used for this purpose and, furthermore, to pay a bounty on
the salt so manufactured, it was held not to have engaged itself
within the constitutional sense. “General encouragements,” the Court
wrote, “held out to all persons indiscriminately, to engage in a par-
ticular trade or manufacture, whether such encouragement be in
the shape of bounties or drawbacks, or other advantage, are al-
ways under the legislative control, and may be discontinued at any
time.” 2114 So far as exemption from taxation is concerned the differ-
ence between these two cases is obviously slight, but the later one
Welch v. Cook, 97 U.S. 541 (1879); Grand Lodge v. New Orleans, 166 U.S. 143 (1897);
Wisconsin & Michigan Ry. v. Powers, 191 U.S. 379 (1903). Cf. Ettor v. Tacoma, 228
U.S. 148 (1913), in which it was held that the repeal of a statute providing for con-
sequential damages caused by changes of grades of streets could not constitution-
ally affect an already accrued right to compensation.
ART. I—LEGISLATIVE DEPARTMENT 419
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
300, 302 (1861); Seton Hall College v. South Orange, 242 U.S. 100 (1916).
2116 Compare the above cases with Home of the Friendless v. Rouse, 75 U.S. (8
Wall.) 430, 437 (1869); Illinois Cent, R.R. v. Decatur, 147 U.S. 190 (1893), with Wis-
consin & Michigan Ry. Co. v. Powers, 191 U.S. 379 (1903).
2117 According to Benjamin F. Wright, throughout the first century of govern-
ment under the Constitution “the contract clause had been considered in almost forty
per cent of all cases involving the validity of State legislation,” and of these the vast
proportion involved legislative grants of one type or other, the most important cat-
egory being charters of incorporation. However, the numerical prominence of such
grants in the cases does not overrate their relative importance from the point of
view of public interest. B. WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION 95 (1938).
Madison explained the clause by allusion to what had occurred “in the internal
administration of the States” in the years preceding the Constitutional Convention,
in regard to private debts. Violations of contracts had become familiar in the form
of depreciated paper made legal tender, of property substituted for money, of install-
ment laws, and of the occlusions of the courts of justice. 3 M. FARRAND, THE RECORDS
OF THE FEDERAL CONVENTION OF 1787 548 (rev. ed. 1937); THE FEDERALIST, No. 44 (J. Cooke
ed. 1961), 301–302.
420 ART. I—LEGISLATIVE DEPARTMENT
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Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2123 B. WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION 22 (1938). Professor Wright
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
The protection thus thrown about land grants was presently ex-
tended, in the case of New Jersey v. Wilson,2125 to a grant of immu-
nity from taxation that the State of New Jersey had accorded cer-
tain Indian lands, and several years after that, in Dartmouth
College,2126 to the charter privileges of an eleemosynary corpora-
tion.
In City of El Paso v. Simmons,2127 the Court held, over a vigor-
ous dissent by Justice Black, that Texas had not violated this clause
when it amended its laws governing the sale of public lands so as
to restrict the previously unlimited right of a delinquent to rein-
state himself upon forfeited land by a single payment of all past
interest due.
Corporate Charters: Different Ways of Regarding.—There
are three ways in which the charter of a corporation may be re-
garded. In the first place, it may be thought of simply as a license
terminable at will by the state, like a liquor-seller’s license or an
auctioneer’s license, but affording the incorporators, so long as it
remains in force, the privileges and advantages of doing business
in the form of a corporation. Nowadays, indeed, when corporate char-
ters are usually issued to all legally qualified applicants by an ad-
ministrative officer who acts under a general statute, this would
probably seem to be the natural way of regarding them were it not
for the Dartmouth College decision. But, in 1819 charters were granted
directly by the state legislatures in the form of special acts and there
were very few profit-taking corporations in the country. The later
extension of the benefits of the Dartmouth College decision to corpo-
rations organized under general law took place without discussion.
Secondly, a corporate charter may be regarded as a franchise
constituting a vested or property interest in the hands of the hold-
ers, and therefore as forfeitable only for abuse or in accordance with
its own terms. This is the way in which some of the early state
courts did regard them at the outset.2128 It is also the way in which
principle, on the reason and nature of things; a principle which will impose laws
even on the Deity.” Id. at 143.
2125 11 U.S. (7 Cr.) 164 (1812). The exemption from taxation which was involved
in this case was held in 1886 to have lapsed through the acquiescence for sixty years
by the owners of the lands in the imposition of taxes upon these. Given v. Wright,
117 U.S. 648 (1886).
2126 Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819).
2127 379 U.S. 497 (1965). See also Thorpe v. Housing Authority, 393 U.S. 268,
278–79 (1969).
2128 In 1806, Chief Justice Parsons of the Supreme Judicial Court of Massachu-
setts, without mentioning the Contract Clause, declared that rights legally vested
in a corporation cannot be “controlled of destroyed by a subsequent statute, unless
a power [for that purpose] be reserved to the legislature in the act of incorporation,”
Wales v. Stetson, 2 Mass. 142 (1806). See also Stoughton v. Baker, 4 Mass. 521 (1808)
ART. I—LEGISLATIVE DEPARTMENT 423
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
to like effect; cf. Locke v. Dane, 9 Mass. 360 (1812), in which it is said that the
purpose of the Contract Clause was to provide against paper money and insolvent
laws. Together these holdings add up to the conclusion that the reliance of the Mas-
sachusetts court was on “fundamental principles,” rather than the Contract Clause.
2129 17 U.S. (4 Wheat.) at 577–95 (Webster’s argument); id. at 666 (Story’s opin-
ion). See also Story’s opinion for the Court in Terrett v. Taylor, 13 U.S. (9 Cr.) 43
(1815).
2130 17 U.S. (4 Wheat.) 518 (1819).
2131 17 U.S. at 627.
2132 17 U.S. at 637; see also Home of the Friendless v. Rouse, 75 U.S. (8 Wall.)
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
tice Story).
2136 Home of the Friendless v. Rouse, 75 U.S. (8 Wall.) 430, 438 (1869); Pennsyl-
vania College Cases, 80 U.S. (13 Wall.) 190, 213 (1872); Miller v. New York, 82 U.S.
(15 Wall.) 478 (1873); Murray v. Charleston, 96 U.S. 432 (1878); Greenwood v. Freight
Co., 105 U.S. 13 (1882); Chesapeake & Ohio Ry. v. Miller, 114 U.S. 176 (1885); Lou-
isville Water Company v. Clark, 143 U.S. 1 (1892).
2137 New Jersey v. Yard, 95 U.S. 104, 111 (1877).
2138 See Holyoke Company v. Lyman, 82 U.S. (15 Wall.) 500, 520 (1873), See also
Shields v. Ohio, 95 U.S. 319 (1877); Fair Haven R.R. v. New Haven, 203 U.S. 379
(1906); Berea College v. Kentucky, 211 U.S. 45 (1908). Also Lothrop v. Stedman, 15
Fed. Cas. 922 (No. 8519) (C.C.D. Conn. 1875), where the principles of natural jus-
tice are thought to set a limit to the power.
2139 See in this connection the cases cited by Justice Sutherland in his opinion
for the Court in Phillips Petroleum Co. v. Jenkins, 297 U.S. 629 (1936).
ART. I—LEGISLATIVE DEPARTMENT 425
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
leges that a corporation derives from its charter, and, on the other
hand, the rights of property and contract that accrue to it in the
course of its existence. Even the outright repeal of the former does
not wipe out the latter or cause them to escheat to the state. The
primary heirs of the defunct organization are its creditors, but what-
ever of value remains after their valid claims are met goes to the
former shareholders.2140 By the earlier weight of authority, how-
ever, persons who contract with companies whose charters are sub-
ject to legislative amendment or repeal do so at their own risk; any
“such contracts made between individuals and the corporation do
not vary or in any manner change or modify the relation between
the State and the corporation in respect to the right of the State to
alter, modify, or amend such a charter . . . .” 2141 But later holdings
becloud this rule.2142
Corporation Subject to the Law and Police Power.—But sup-
pose that the state neglects to reserve the right to amend, alter, or
repeal. Is it, then, without power to control its corporate creatures?
By no means. Private corporations, like other private persons, are
always presumed to be subject to the legislative power of the state,
from which it follows that immunities conferred by charter are to
be treated as exceptions to an otherwise controlling rule. This prin-
ciple was recognized by Chief Justice Marshall in Providence Bank
v. Billings,2143 which held that, in the absence of express stipula-
tion or reasonable implication to the contrary in its charter, the bank
was subject to the state’s taxing power, notwithstanding that the
power to tax is the power to destroy.
And of course the same principle is equally applicable to the
exercise by the state of its police powers. Thus, in what was per-
haps the leading case before the Civil War, the Supreme Court of
Vermont held that the legislature of that state had the right, in
furtherance of the public safety, to require chartered companies op-
erating railways to fence in their tracks and provide cattle guards.
In a matter of this nature, said the court, corporations are on a
level with individuals engaged in the same business, unless, from
2140 Curran v. Arkansas, 56 U.S. (15 How.) 304 (1853); Shields v. Ohio, 95 U.S.
319 (1877); Greenwood v. Freight Co., 105 U.S. 13 (1882); Adirondack Ry. v. New
York, 176 U.S. 335 (1900); Stearns v. Minnesota, 179 U.S. 223 (1900); Chicago, M.
& St. P. R.R. v. Wisconsin, 238 U.S. 491 (1915); Coombes v. Getz, 285 U.S. 434 (1932).
2141 Pennsylvania College Cases, 80 U.S. (13 Wall.) 190, 218 (1872). See also Calder
Getz, 285 U.S. 434 (1932). Both these decisions cite Greenwood v. Freight Co., 105
U.S. 13, 17 (1882), but without apparent justification.
2143 29 U.S. (4 Pet.) 514 (1830).
426 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
their charter, they can prove the contrary.2144 Since then the rule
has been applied many times in justification of state regulation of
railroads,2145 and even of the application of a state prohibition law
to a company that had been chartered expressly to manufacture
beer.2146
Strict Construction of Charters, Tax Exemptions.—Long be-
fore the cases last cited were decided, the principle that they illus-
trate had come to be powerfully reinforced by two others, the first
of which is that all charter privileges and immunities are to be strictly
construed as against the claims of the state, or as it is otherwise
often phrased, “nothing passes by implication in a public grant.”
The leading case was Charles River Bridge v. Warren Bridge,2147
which was decided by a substantially new Court shortly after Chief
Justice Marshall’s death. The question at issue was whether the
charter of the complaining company, which authorized it to operate
a toll bridge, stood in the way of the state’s permitting another com-
pany of later date to operate a free bridge in the immediate vicin-
ity. Because the first company could point to no clause in its char-
ter specifically vesting it with an exclusive right, the Court held
the charter of the second company to be valid on the principle just
stated. Justice Story presented a vigorous dissent in which he ar-
gued cogently, but unavailingly, that the monopoly claimed by the
Charles River Bridge Company was fully as reasonable an implica-
tion from the terms of its charter and the circumstances surround-
2144 Thorpe v. Rutland & Burlington R.R., 27 Vt. 140 (1854).
2145 Thus a railroad may be required, at its own expense and irrespective of ben-
efits to itself, to eliminate grade crossings in the interest of the public safety, New
York & N.E. R.R. v. Bristol, 151 U.S. 556 (1894), to make highway crossings reason-
ably safe and convenient for public use, Great Northern Ry. v. Minnesota ex rel.
Clara City, 246 U.S. 434 (1918), to repair viaducts, Northern Pacific Railway v. Duluth,
208 U.S. 583 (1908), and to fence its right of way, Minneapolis & St. Louis Ry. v.
Emmons, 149 U.S. 364 (1893). Though a railroad company owns the right of way
along a street, the city may require it to lay tracks to conform to the established
grade; to fill in tracks at street intersections; and to remove tracks from a busy street
intersection, when the attendant disadvantage and expense are small and the safety
of the public appreciably enhanced Denver & R.G. R.R. v. Denver, 250 U.S. 241 (1919).
Likewise the state, in the public interest, may require a railroad to reestablish
an abandoned station, even though the railroad commission had previously autho-
rized its abandonment on condition that another station be established elsewhere, a
condition which had been complied with. Railroad Co. v. Hamersley, 104 U.S. 1 (1881).
It may impose upon a railroad liability for fire communicated by its locomotives,
even though the state had previously authorized the company to use said type of
locomotive power, St. Louis & S.F. Ry. v. Mathews, 165 U.S. 1, 5 (1897), and it may
penalize the failure to cut drains through embankments so as to prevent flooding of
adjacent lands. Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915).
2146 Beer Co. v. Massachusetts, 97 U.S. 25 (1878). See also Fertilizing Co. v. Hyde
Park, 97 U.S. 659 (1878); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 345
(1909).
2147 36 U.S. (11 Pet.) 420 (1837).
ART. I—LEGISLATIVE DEPARTMENT 427
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
ing its concession as perpetuity had been from the terms of the
Dartmouth College charter and the ensuing transaction.
The Court was in fact making new law, because it was looking
at things from a new point of view. This was the period when judi-
cial recognition of the police power began to take on a doctrinal char-
acter. It was also the period when the railroad business was just
beginning. Chief Justice Taney’s opinion evinces the influence of both
these developments. The power of the state to provide for its own
internal happiness and prosperity was not, he asserted, to be pared
away by mere legal intendments, nor was its ability to avail itself
of the lights of modern science to be frustrated by obsolete inter-
ests such as those of the old turnpike companies, the charter privi-
leges of which, he apprehended, might easily become a bar to the
development of transportation along new lines.2148
The Court has reiterated the rule of strict construction many
times. In Blair v. City of Chicago,2149 decided nearly seventy years
after Charles River Bridge, the Court said: “Legislative grants of
this character should be in such unequivocal form of expression that
the legislative mind may be distinctly impressed with their charac-
ter and import, in order that the privileges may be intelligently granted
or purposely withheld. It is a matter of common knowledge that
grants of this character are usually prepared by those interested in
them, and submitted to the legislature with a view to obtain from
such bodies the most liberal grant of privileges which they are will-
ing to give. This is one among many reasons why they are to be
strictly construed. . . . The principle is this, that all rights which
are asserted against the State must be clearly defined, and not raised
by inference or presumption; and if the charter is silent about a
power, it does not exist. If, on a fair reading of the instrument, rea-
sonable doubts arise as to the proper interpretation to be given to
it, those doubts are to be solved in favor of the State; and where it
is susceptible of two meanings, the one restricting and the other
extending the powers of the corporation, that construction is to be
adopted which works the least harm to the State.” 2150
An excellent illustration of the operation of the rule in relation
to tax exemptions was furnished by the derivative doctrine that an
immunity of this character must be deemed as intended solely for
the benefit of the corporation receiving it and hence, in the absence
of express permission by the state, may not be passed on to a suc-
75 (1866).
428 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2151 Memphis & L.R. R.R. v. Comm’rs, 112 U.S. 609, 617 (1884). See also Mor-
gan v. Louisiana, 93 U.S. 217 (1876); Wilson v. Gaines, 103 U.S. 417 (1881); Louis-
ville & Nashville R.R. v. Palmes, 109 U.S. 244, 251 (1883); Norfolk & Western R.R.
v. Pendleton, 156 U.S. 667, 673 (1895); Picard v. East Tennessee, V. & G. R.R., 130
U.S. 637, 641 (1889).
2152 Atlantic & Gulf R.R. v. Georgia, 98 U.S. 359, 365 (1879).
2153 Phoenix F. & M. Ins. Co. v. Tennessee, 161 U.S. 174 (1896).
2154 Rochester Ry. v. Rochester, 205 U.S. 236 (1907); followed in Wright v. Geor-
gia R.R. & Banking Co., 216 U.S. 420 (1910); Rapid Transit Corp. v. New York, 303
U.S. 573 (1938). Cf. Tennessee v. Whitworth, 117 U.S. 139 (1886), the authority of
which is respected in the preceding case.
2155 Chicago, B. & K.C. R.R. v. Guffey, 120 U.S. 569 (1887).
2156 Ford v. Delta and Pine Land Company, 164 U.S. 662 (1897).
2157 Vicksburg, S. & P. R.R. v. Dennis, 116 U.S. 665 (1886).
2158 Millsaps College v. City of Jackson, 275 U.S. 129 (1927).
2159 Hale v. State Board, 302 U.S. 95 (1937).
ART. I—LEGISLATIVE DEPARTMENT 429
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2160 Railroad Comm’n Cases (Stone v. Farmers’ Loan & Trust Co.), 116 U.S. 307,
330 (1886), extended in Southern Pacific Co. v. Campbell, 230 U.S. 537 (1913) to
cases in which the word “reasonable” does not appear to qualify the company’s right
to prescribe tolls. See also American Bridge Co. v. Railroad Comm’n, 307 U.S. 486
(1939).
2161 Georgia Ry. v. Town of Decatur, 262 U.S. 432 (1923). See also Southern Iowa
of Knoxville, 200 U.S. 22 (1906); Madera Water Works v. City of Madera, 228 U.S.
454 (1913).
2164 Rogers Park Water Co. v. Fergus, 180 U.S. 624 (1901).
2165 Home Tel. & Tel. Co. v. City of Los Angeles, 211 U.S. 265 (1908); Wyandotte
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Court distinguished In re Ayers, 123 U.S. 443 (1887) on the ground that the action
there was barred “as one in substance directed at the State merely to obtain specific
performance of a contract with the State.” 342 U.S. at 305.
2173 101 U.S. 814 (1880).
2174 101 U.S. at 820–21.
432 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
company for the lost monopoly, its action was sustained on the ground
that it had been taken in the interest of the public health.2175 When,
however, the City of New Orleans, in reliance on this precedent,
sought to repeal an exclusive franchise which it had granted a com-
pany for fifty years to supply gas to its inhabitants, the Court inter-
posed its veto, explaining that in this instance neither the public
health, the public morals, nor the public safety was involved.2176
Later decisions, nonetheless, apply the principle of inalienabil-
ity broadly. To quote from one: “It is settled that neither the ‘con-
tract’ clause nor the ‘due process’ clause has the effect of overriding
the power to the State to establish all regulations that are reason-
ably necessary to secure the health, safety, good order, comfort, or
general welfare of the community; that this power can neither be
abdicated nor bargained away, and is inalienable even by express
grant; and all contract and property rights are held subject to its
fair exercise.” 2177
It would scarcely suffice today for a company to rely upon its
charter privileges or upon special concessions from a state in resist-
ing the application to it of measures alleged to have been enacted
under the police power thereof; if this claim is sustained, the obli-
gation of the contract clause will not avail, and if it is not, the due
process of law clause of the Fourteenth Amendment will furnish a
sufficient reliance. That is to say, the discrepancy that once existed
between the Court’s theory of an overriding police power in these
two adjoining fields of constitutional law is today apparently at an
end. Indeed, there is usually no sound reason why rights based on
public grant should be regarded as more sacrosanct than rights that
involve the same subject matter but are of different provenance.
Private Contracts.—The term “private contract” is, naturally,
not all-inclusive. A judgment, though granted in favor of a creditor,
is not a contract in the sense of the Constitution,2178 nor is mar-
City Live-Stock Landing and Slaughter-House Co., 111 U.S. 746 (1884).
2176 New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885).
2177 Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 548, 558 (1914). See
also Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915); Pennsylvania Hospital
v. Philadelphia, 245 U.S. 20 (1917); where the police power and eminent domain are
treated on the same basis in respect of inalienability; Wabash R.R. v. Defiance, 167
U.S. 88, 97 (1897); Home Tel. & Tel. Co. v. City of Los Angeles, 211 U.S. 265 (1908).
2178 Morley v. Lake Shore Ry., 146 U.S. 162 (1892); New Orleans v. New Or-
leans Water-Works Co., 142 U.S. 79 (1891); Missouri & Ark. L. & M. Co. v. Sebastian
County, 249 U.S. 170 (1919). But cf. Livingston’s Lessee v. Moore, 32 U.S. (7 Pet.)
469, 549 (1833); and Garrison v. New York, 88 U.S. (21 Wall.) 196, 203 (1875), sug-
gesting that a different view was earlier entertained in the case of judgments in
actions of debt.
ART. I—LEGISLATIVE DEPARTMENT 433
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2179 Maynard v. Hill, 125 U.S. 190 (1888); Dartmouth College v. Woodward, 17
U.S. (4 Wheat.) 518, 629 (1819). Cf. Andrews v. Andrews, 188 U.S. 14 (1903). The
question whether a wife’s rights in the community property under the laws of Cali-
fornia were of a contractual nature was raised but not determined in Moffit v. Kelly,
218 U.S. 400 (1910).
2180 New Orleans v. New Orleans Water-Works Co., 142 U.S. 79 (1891); Zane v.
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
For the first and only time, a majority of the Court abandoned
the Chief Justice’s leadership. Speaking by Justice Washington, it
held that the obligation of private contracts is derived from the mu-
nicipal law—state statutes and judicial decisions—and that the in-
hibition of Article I, § 10, is confined to legislative acts made after
the contracts affected by them, subject to the following exception.
By a curiously complicated line of reasoning, the Court also held in
the same case that, when the creditor is a nonresident, then a state
by an insolvency law may not alter the former’s rights under a con-
tract, albeit one of later date.
With the proposition established that the obligation of a pri-
vate contract comes from the municipal law in existence when the
contract is made, a further question presents itself, namely, what
part of the municipal law is referred to? No doubt, the law which
determines the validity of the contract itself is a part of such law.
Also part of such law is the law which interprets the terms used in
the contract, or which supplies certain terms when others are used,
as for instance, constitutional provisions or statutes which deter-
mine what is “legal tender” for the payment of debts, or judicial
decisions which construe the term “for value received” as used in a
promissory note, and so on. In short, any law which at the time of
the making of a contract goes to measure the rights and duties of
the parties to it in relation to each other enters into its obligation.
Remedy a Part of the Private Obligation.—Suppose, how-
ever, that one of the parties to a contract fails to live up to his ob-
ligation as thus determined. The contract itself may now be re-
garded as at an end, but the injured party, nevertheless, has a new
set of rights in its stead, those which are furnished him by the re-
medial law, including the law of procedure. In the case of a mort-
gage, he may foreclose; in the case of a promissory note, he may
sue; and in certain cases, he may demand specific performance. Hence
the further question arises, whether this remedial law is to be con-
sidered a part of the law supplying the obligation of contracts. Origi-
nally, the predominating opinion was negative, since as we have just
seen, this law does not really come into operation until the con-
tract has been broken. Yet it is obvious that the sanction which this
law lends to contracts is extremely important—indeed, indispens-
able. In due course it became the accepted doctrine that part of the
law which supplies one party to a contract with a remedy if the
other party does not live up to his agreement, as authoritatively
interpreted, entered into the “obligation of contracts” in the consti-
tutional sense of this term, and so might not be altered to the ma-
terial weakening of existing contracts. In the Court’s own words:
“Nothing can be more material to the obligation than the means of
ART. I—LEGISLATIVE DEPARTMENT 435
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2185 United States ex rel. Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 552 (1867).
2186 42 U.S. (1 How.) 311 (1843).
2187 43 U.S. (2 How.) 608 (1844).
2188 Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439 (1903); City & Lake
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2194 Antoni v. Greenhow, 107 U.S. 769, 775 (1883). Illustrations of changes in
remedies, which have been sustained, may be seen in the following cases: Jackson
v. Lamphire, 28 U.S. (3 Pet.) 280 (1830); Hawkins v. Barney’s Lessee, 30 U.S. (5
Pet.) 457 (1831); Crawford v. Branch Bank of Mobile, 48 U.S. (7 How.) 279 (1849);
Curtis v. Whitney, 80 U.S. (13 Wall.) 68 (1872); Railroad Co. v. Hecht, 95 U.S. 168
(1877); Terry v. Anderson, 95 U.S. 628 (1877); Tennessee v. Sneed, 96 U.S. 69 (1877);
South Carolina v. Gaillard, 101 U.S. 433 (1880); Louisiana v. New Orleans, 102 U.S.
203 (1880); Connecticut Mut. Life Ins. Co. v. Cushman, 108 U.S. 51 (1883); Vance v.
Vance, 108 U.S. 514 (1883); Gilfillan v. Union Canal Co., 109 U.S. 401 (1883); Hill v.
Merchant’s Ins. Co., 134 U.S. 515 (1890); City & Lake R.R. v. New Orleans, 157
U.S. 219 (1895); Red River Valley Bank v. Craig, 181 U.S. 548 (1901); Wilson v. Standefer,
184 U.S. 399 (1902); Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437 (1903); Wag-
goner v. Flack, 188 U.S. 595 (1903); Bernheimer v. Converse, 206 U.S. 516 (1907);
Henley v. Myers, 215 U.S. 373 (1910); Selig v. Hamilton, 234 U.S. 652 (1914); Secu-
rity Bank v. California, 263 U.S. 282 (1923); United States Mortgage Co. v. Mat-
thews, 293 U.S. 232 (1934); McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
Compare the following cases, where changes in remedies were deemed to be of
such character as to interfere with substantial rights: Wilmington & Weldon R.R. v.
King, 91 U.S. 3 (1875); Memphis v. United States, 97 U.S. 293 (1878); Virginia Cou-
pon Cases (Poindexter v. Greenhow), 114 U.S. 270, 298, 299 (1885); Effinger v. Ken-
ney, 115 U.S. 566 (1885); Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Bradley
v. Lightcap, 195 U.S. 1 (1904); Bank of Minden v. Clement, 256 U.S. 126 (1921).
2195 71 U.S. (4 Wall.) 535, 554–55 (1867).
2196 See also Nelson v. St. Martin’s Parish, 111 U.S. 716 (1884).
2197 Mobile v. Watson, 116 U.S. 289 (1886); Graham v. Folsom, 200 U.S. 248 (1906).
ART. I—LEGISLATIVE DEPARTMENT 437
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2198 Heine v. Levee Commissioners, 86 U.S. (19 Wall.) 655 (1874). Cf. Virginia v.
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
Lindenmuller v. The People, 33 Barb. (N.Y.) 548 (1861); Brown v. Penobscot Bank, 8
Mass. 445 (1812).
2201 Manigault v. Springs, 199 U.S. 473, 480 (1905).
2202 Jackson v. Lamphire, 28 U.S. (3 Pet.) 280 (1830). See also Phalen v. Vir-
ing two cases the legislative act involved did not except from its operation existing
contracts.
2206 Manigault v. Springs, 199 U.S. 473 (1905).
2207 Portland Ry. v. Oregon R.R. Comm’n, 229 U.S. 397 (1913).
2208 Midland Co. v. Kansas City Power Co., 300 U.S. 109 (1937).
2209 Hudson Water Co. v. McCarter, 209 U.S. 349 (1908).
ART. I—LEGISLATIVE DEPARTMENT 439
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
2210 Marcus Brown Co. v. Feldman, 256 U.S. 170, 198 (1921), followed in Levy
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
in which was sustained a New Jersey statute amending in view of the Depression
the law governing building and loan associations. The authority of the state to safe-
guard the vital interests of the people, said Justice Reed, “extends to economic needs
as well.” Id. at 39. In Lincoln Federal Labor Union v. Northwestern Iron & Metal
Co., 335 U.S. 525, 531–32 (1949), the Court dismissed out-of-hand a suggestion that
a state law outlawing union security agreements was an invalid impairment of ex-
isting contracts, citing Blaisdell and Veix.
2214 See Edwards v. Kearzey, 96 U.S. 595 (1878); Barnitz v. Beverly, 163 U.S.
118 (1896).
2215 290 U.S. 398 (1934).
2216 W. B. Worthen Co. v. Thomas, 292 U.S. 426 (1934); W. B. Worthen Co. v.
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
ready made,” said Justice Cardozo for the Court, “and moderate ex-
tensions of the time for pleading or for trial will ordinarily fall within
the power so reserved. A different situation is presented when ex-
tensions are so piled up as to make the remedy a shadow. . . . What
controls our judgment at such times is the underlying reality rather
than the form or label. The changes of remedy now challenged as
invalid are to be viewed in combination, with the cumulative signifi-
cance that each imparts to all. So viewed they are seen to be an
oppressive and unnecessary destruction of nearly all the incidents
that give attractiveness and value to collateral security.” 2217 On the
other hand, in the most recent of this category of cases, the Court
gave its approval to an extension by the State of New York of its
moratorium legislation. While recognizing that business conditions
had improved, the Court found reason to believe that “the sudden
termination of the legislation which has dammed up normal liqui-
dation of these mortgages for more than eight years might well re-
sult in an emergency more acute than that which the original leg-
islation was intended to alleviate.” 2218
In the meantime, the Court had sustained New York State leg-
islation under which a mortgagee of real property was denied a de-
ficiency judgment in a foreclosure suit where the state court found
that the value of the property purchased by the mortgagee at the
foreclosure sale was equal to the debt secured by the mortgage.2219
“Mortgagees,” the Court said, “are constitutionally entitled to no more
than payment in full. . . . To hold that mortgagees are entitled un-
der the contract clause to retain the advantages of a forced sale
would be to dignify into a constitutionally protected property right
their chance to get more than the amount of their contracts. . . .
The contract clause does not protect such a strategical, procedural
advantage.” 2220
More important, the Court has been at pains most recently to
reassert the vitality of the clause, although one may wonder whether
application of the clause will be more than episodic.
“[T]he Contract Clause remains a part of our written Constitu-
tion.” 2221 So saying, the Court struck down state legislation in two
2217 295 U.S. at 62.
2218 East New York Bank v. Hahn, 326 U.S. 230, 235 (1945), quoting New York
Legislative Document (1942), No. 45, p. 25.
2219 Honeyman v. Jacobs, 306 U.S. 539 (1939). See also Gelfert v. National City
dead letter.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 (1978). A
majority of the Court seems fully committed to using the clause. Only Justices Bren-
nan, White, and Marshall dissented in both cases. Chief Justice Burger and Jus-
442 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.
tices Rehnquist and Stevens joined both opinions of the Court. Of the three remain-
ing Justices, who did not participate in one or the other case, Justice Blackmun
wrote the opinion in United States Trust while Justice Stewart wrote the opinion in
Spannaus and Justice Powell joined it.
2222 United States Trust involved a repeal of a covenant statutorily enacted to
encourage persons to purchase New York-New Jersey Port Authority bonds by limit-
ing the Authority’s ability to subsidize rail passenger transportation. Spannaus in-
volved a statute requiring prescribed employers who had a qualified pension plan to
provide funds sufficient to cover full pensions for all employees who had worked at
least 10 years if the employer either terminated the plan or closed his offices in the
state, a law that greatly altered the company’s liabilities under its contractual pen-
sion plan.
2223 431 U.S. at 21; 438 U.S. at 244.
2224 431 U.S. at 22–26; 438 U.S. at 248.
2225 438 U.S. at 245.
2226 431 U.S. at 17–21 (the Court was unsure of the value of the interest im-
paired but deemed it “an important security provision”); 438 U.S. 244–47 (statute
mandated company to recalculate, and in one lump sum, contributions previously
adequate).
2227 431 U.S. at 25–32 (state could have modified the impairment to achieve its
purposes without totally abandoning the covenant, though the Court reserved judg-
ment whether lesser impairments would have been constitutional, id. at 30 n.28,
ART. I—LEGISLATIVE DEPARTMENT 443
Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports
In Spannaus, the Court drew from its prior cases four stan-
dards: did the law deal with a broad generalized economic or social
problem, did it operate in an area already subject to state regula-
tion at the time the contractual obligations were entered into, did
it effect simply a temporary alteration of the contractual relation-
ship, and did the law operate upon a broad class of affected indi-
viduals or concerns. The Court found that the challenged law did
not possess any of these attributes and thus struck it down.2228
Whether these two cases portend an active judicial review of
economic regulatory activities, in contrast to the extreme deference
shown such legislation under the due process and equal protection
clauses, is problematical. Both cases contain language emphasizing
the breadth of the police powers of government that may be used
to further the public interest and admitting limited judicial scru-
tiny. Nevertheless, “[i]f the Contract Clause is to retain any mean-
ing at all . . . it must be understood to impose some limits upon
the power of a State to abridge existing contractual relationships,
even in the exercise of its otherwise legitimate police power.” 2229
Scope
Only articles imported from or exported to a foreign country, or
“a place over which the Constitution has not extended its com-
mands with respect to imports and their taxation,” are compre-
hended by the terms “imports” and “exports.” 2230 With respect to
and it had alternate means to achieve its purposes; the need for mass transporta-
tion was obvious when covenant was enacted and state could not claim that unfore-
seen circumstances had arisen.)
2228 438 U.S. at 244–51. See also Exxon Corp. v. Eagerton, 462 U.S. 176 (1983)
(emphasizing the first but relying on all but the third of these tests in upholding a
prohibition on pass-through of an oil and gas severance tax).
2229 438 U.S. at 242 (emphasis by Court).
2230 Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673 (1945). Goods brought from
another State are not within the clause. Woodruff v. Parham, 75 U.S. (8 Wall.) 123
444 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports
press Siderurgica v. County of Merced, 337 U.S. 154 (1947); Kosydar v. National Cash
Register Co., 417 U.S. 62 (1974).
2233 25 U.S. (12 Wheat.) 419, 441–42 (1827).
2234 May v. New Orleans, 178 U.S. 496, 502 (1900).
2235 178 U.S. at 501; Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928);
496 (1900).
2237 Hooven & Allison Co. v. Evatt, 324 U.S. 652, 667 (1945). But see Limbach v.
Hooven & Allison Co., 466 U.S. 353 (1984) (overruling the earlier decision).
2238 324 U.S. at 664.
ART. I—LEGISLATIVE DEPARTMENT 445
Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports
Privilege Taxes
A state law requiring importers to take out a license to sell im-
ported goods amounts to an indirect tax on imports and hence is
unconstitutional.2240 Likewise, a franchise tax upon foreign corpora-
tions engaged in importing nitrate and selling it in the original pack-
ages,2241 a tax on sales by brokers 2242 and auctioneers 2243 of im-
ported merchandise in original packages, and a tax on the sale of
goods in foreign commerce consisting of an annual license fee plus
a percentage of gross sales,2244 have been held invalid. On the other
hand, pilotage fees,2245 a tax upon the gross sales of a purchaser
from the importer,2246 a license tax upon dealing in fish which, through
processing, handling, and sale, have lost their distinctive character
as imports,2247 an annual license fee imposed on persons engaged
in buying and selling foreign bills of exchange,2248 and a tax upon
the right of an alien to receive property as heir, legatee, or donee
of a deceased person 2249 have been held not to be duties on im-
ports or exports.
Property Taxes
Overruling a line of prior decisions that it thought misinter-
preted the language of Brown v. Maryland, the Court now holds
that the clause does not prevent a state from levying a nondiscrimi-
natory, ad valorem property tax upon goods that are no longer in
import transit.2250 Thus, a company’s inventory of imported tires main-
2239 Canton R.R. v. Regan, 340 U.S. 511 (1951).
2240 Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 447 (1827).
2241 Anglo-Chilean Corp. v. Alabama, 288 U.S. 218 (1933).
2242 Low v. Austin, 80 U.S. (13 Wall.) 29, 33 (1872).
2243 Cook v. Pennsylvania, 97 U.S. 566, 573 (1878).
2244 Crew Levick Co. v. Pennsylvania, 245 U.S. 292 (1917).
2245 Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 313 (1851).
2246 Waring v. The Mayor, 75 U.S. (8 Wall.) 110, 122 (1869). See also Pervear v.
tin, 80 U.S. (13 Wall.) 29 (1872), expressly, and, necessarily, Hooven & Allison Co. v.
Evatt, 324 U.S. 652 (1945), among others. The latter case was expressly overruled
in Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984), involving the same tax
and the same parties. In Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534
(1959), property taxes were sustained on the basis that the materials taxed had lost
their character as imports. On exports, see Selliger v. Kentucky, 213 U.S. 200 (1909)
446 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports
Inspection Laws
Inspection laws “are confined to such particulars as, in the esti-
mation of the legislature and according to the customs of trade, are
deemed necessary to fit the inspected article for the market, by giv-
ing the purchaser public assurance that the article is in that condi-
tion, and of that quality, which makes it merchantable and fit for
use or consumption.” 2252 In Turner v. Maryland,2253 the Court listed
as recognized elements of inspection laws, the “quality of the ar-
ticle, form, capacity, dimensions, and weight of package, mode of
putting up, and marking and branding of various kinds . . . ” 2254
It sustained as an inspection law a charge for storage and inspec-
tion imposed upon every hogshead of tobacco grown in the state and
intended for export, which the law required to be brought to a state
warehouse to be inspected and branded. The Court has cited this
section as a recognition of a general right of the states to pass in-
spection laws, and to bring within their reach articles of interstate,
as well as of foreign, commerce.2255 But on the ground that, “it has
never been regarded as within the legitimate scope of inspection
laws to forbid trade in respect to any known article of commerce,
irrespective of its condition and quality, merely on account of its
intrinsic nature and the injurious consequence of its use or abuse,”
it held that a state law forbidding the importation of intoxicating
liquors into the state could not be sustained as an inspection law.2256
(property tax levied on warehouse receipts for whiskey exported to Germany in-
valid). See also Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 76–78 (1993),
and see id. at 81–82 (Justice Scalia concurring).
2251 Michelin Tire Corp. v. Wages, 423 U.S. 276, 290–94 (1976). Accord, R. J.
Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (1986) (tax on imported to-
bacco stored for aging in customs-bonded warehouse and destined for domestic manu-
facture and sale); but cf. Xerox Corp. v. County of Harris, 459 U.S. 145, 154 (1982)
(similar tax on goods stored in customs-bonded warehouse is preempted “by Con-
gress’s comprehensive regulation of customs duties;” case, however, dealt with goods
stored for export).
2252 Bowman v. Chicago & Nw. Ry., 125 U.S. 465, 488 (1888).
2253 107 U.S. 38 (1883).
2254 107 U.S. at 55.
2255 Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 361 (1898).
2256 Bowman v. Chicago & Nw. Ry., 125 U.S. 465 (1888). The Twenty-first Amend-
ment has had no effect on this principle. Department of Revenue v. Beam Distillers,
377 U.S. 341 (1964).
ART. I—LEGISLATIVE DEPARTMENT 447
Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts
TONNAGE DUTIES
The purpose of the Tonnage Clause is “to ‘restrai[n] the states
themselves from the exercise’ of the taxing power ‘injuriously to the
interests of each other.’ . . . In writing the Tonnage Clause, the Fram-
ers recognized that, if ‘the states had been left free to tax the privi-
lege of access by vessels to their harbors the prohibition [in Article
I, § 10, clause 2] against duties on imports and exports could have
been nullified by taxing the vessels transporting the merchan-
dise.’ ” 2257 The prohibition against tonnage duties embraces all taxes
and duties, regardless of their name or form, whether measured by
the tonnage of the vessel or not, that, in effect, are charges for the
privilege of entering, trading in, or lying in a port.2258 The Tonnage
Clause, however, does not ban all “taxes which fall on vessels that
use a State’s port, harbor, or other waterways. Such a radical propo-
sition would transform the Tonnage Clause from one that protects
vessels, and their owners, from discrimination by seaboard States,
to one that gives vessels preferential treatment vis-à-vis all other
property, and its owners, in a seaboard State.” 2259 But it does not
extend to charges made by state authority, even if graduated accord-
ing to tonnage,2260 for services rendered to the vessel, such as pilot-
age, towage, charges for loading and unloading cargoes, wharfage,
or storage.2261
For the purpose of determining wharfage charges, it is immate-
rial whether the wharf was built by the state, a municipal corpora-
2257 Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___, No. 08–310, slip
op. at 3, 4 (2009).
2258 Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265 (1935); Cannon v. City
of New Orleans, 87 U.S. (20 Wall.) 577, 581 (1874); Transportation Co. v. Wheeling,
99 U.S. 273, 283 (1879); Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___,
No. 08–310 (2009).
2259 Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___, No. 08–310, slip
107 U.S. 691 (1883); Ouachita Packet Co. v. Aiken, 121 U.S. 444 (1887).
2261 Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 314 (1851); Ex parte
McNiel, 80 U.S. (13 Wall.) 236 (1872); Inman Steamship Co. v. Tinker, 94 U.S. 238,
243 (1877); Packet Co. v. St. Louis, 100 U.S. 423 (1880); City of Vicksburg v. Tobin,
100 U.S. 430 (1880); Packet Co. v. Catlettsburg, 105 U.S. 559 (1882).
448 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts
KEEPING TROOPS
This provision contemplates the use of the state’s military power
to put down an armed insurrection too strong to be controlled by
civil authority,2268 and the organization and maintenance of an ac-
tive state militia is not a keeping of troops in time of peace within
the prohibition of this clause.2269
INTERSTATE COMPACTS
Background of Clause
Except for the single limitation that the consent of Congress must
be obtained, the original inherent sovereign rights of the states to
make compacts with each other was not surrendered under the Con-
stitution.2270 “The Compact,” as the Supreme Court has put it, “adapts
to our Union of sovereign States the age-old treaty-making power
of independent sovereign nations.” 2271 In American history, the com-
pact technique can be traced back to the numerous controversies
that arose over the ill-defined boundaries of the original colonies.
2262 Huse v. Glover, 119 U.S. 543, 549 (1886).
2263 Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31 (1867).
2264 Peete v. Morgan, 86 U.S. (19 Wall.) 581 (1874).
2265 Morgan v. Louisiana, 118 U.S. 455, 462 (1886).
2266 Wiggins Ferry Co. v. City of East St. Louis, 107 U.S. 365 (1883). See also
Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 212 (1885); Philadelphia Steam-
ship Co. v. Pennsylvania, 122 U.S. 326, 338 (1887); Osborne v. City of Mobile, 83
U.S. (16 Wall.) 479, 481 (1873).
2267 79 U.S. (12 Wall.) 204, 217 (1871).
2268 Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849).
2269 Presser v. Illinois, 116 U.S. 252 (1886).
2270 Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837).
2271 Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104
(1938).
ART. I—LEGISLATIVE DEPARTMENT 449
Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts
(1900).
450 ART. I—LEGISLATIVE DEPARTMENT
Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts
Consent of Congress
The Constitution makes no provision with regard to the time
when the consent of Congress shall be given or the mode or form
2278 United States Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978).
in Interstate Adjustments, 34 YALE L.J. 685 (1925); F. ZIMMERMAN AND M. WENDELL, IN-
TERSTATE COMPACTS SINCE 1925 (1951); F. ZIMMERMAN AND M. WENDELL, THE LAW AND USE
OF INTERSTATE COMPACTS (1961).
2280 48 Stat. 909 (1934).
2281 F. ZIMMERMAN AND M. WENDELL, INTERSTATE COMPACTS SINCE 1925 91 (1951).
2282 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. § 552; 33 U.S.C. §§ 11, 567–
567b.
ART. I—LEGISLATIVE DEPARTMENT 451
Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts
California, 292 U.S. 341, 345 (1934). When it approved the New York-New Jersey
Waterfront Compact, 67 Stat. 541, Congress, for the first time, expressly gave its
consent to the subsequent adoption of implementing legislation by the participating
states. DeVeau v. Braisted, 363 U.S. 144, 145 (1960).
2288 Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421,
433 (1856).
2289 St. Louis & S.F. Ry. v. James, 161 U.S. 545, 562 (1896).
2290 Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837); Rhode Island v. Massa-
Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts
2291 Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104,
106 (1938).
2292 Green v. Biddle, 21 U.S. (8 Wheat.) 1, 13 (1823); Virginia v. West Virginia,
246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 54
U.S. (13 How.) 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922).
2293 Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959).
2294 Texas v. New Mexico, 482 U.S. 124 (1987). If the compact makes no provi-
sion for resolving impasse, then the Court may exercise its jurisdiction to apportion
waters of interstate streams. In doing so, however, the Court will not rewrite the
compact by ordering appointment of a third voting commissioner to serve as a tie-
breaker; rather, the Court will attempt to apply the compact to the extent that its
provisions govern the controversy. Texas v. New Mexico, 462 U.S. 554 (1983).
2295 Virginia v. West Virginia, 246 U.S. 565, 601 (1918).
2296 Dyer v. Sims, 341 U.S. 22 (1951).
ARTICLE II
EXECUTIVE DEPARTMENT
CONTENTS
Page
Section 1. The President ........................................................................................................... 457
Clause 1. Powers and Term of the President ................................................................... 457
Nature and Scope of Presidential Power .................................................................. 457
Creation of the Presidency .................................................................................. 457
Executive Power: Theory of the Presidential Office .......................................... 459
Hamilton and Madison ................................................................................. 459
The Myers Case ............................................................................................ 462
The Curtiss-Wright Case .............................................................................. 462
The Youngstown Case ................................................................................... 464
The Zivotofsky Case ...................................................................................... 465
The Practice in the Presidential Office ....................................................... 469
Executive Power: Separation-of-Powers Judicial Protection ............................ 470
Tenure ........................................................................................................................... 474
Clauses 2–4. Election ......................................................................................................... 475
Electoral College .......................................................................................................... 476
“Appoint” ............................................................................................................... 477
State Discretion in Choosing Electors ................................................................ 477
Constitutional Status of Electors ........................................................................ 479
Electors as Free Agents ....................................................................................... 480
Clause 5. Qualifications ..................................................................................................... 482
Clause 6. Presidential Succession ..................................................................................... 484
Clause 7. Compensation and Emoluments ....................................................................... 484
Clause 8. Oath of Office ..................................................................................................... 485
Section 2. Powers and Duties of the President ....................................................................... 486
Clause 1. Commander-In-Chiefship; Presidential Advisers; Pardons ............................ 486
Commander-In-Chief ................................................................................................... 486
Development of the Concept ............................................................................... 486
The Limited View .......................................................................................... 486
The Prize Cases ............................................................................................ 487
Impact of the Prize Cases on World Wars I and II ................................... 489
Presidential Theory of the Commander-in-Chiefship in World War II—And
Beyond ............................................................................................................... 489
Presidential War Agencies ............................................................................ 490
Constitutional Status of Presidential Agencies .......................................... 491
Evacuation of the West Coast Japanese ..................................................... 491
Presidential Government of Labor Regulations ......................................... 492
Sanctions Implementing Presidential Directives ....................................... 493
The Postwar Period ...................................................................................... 494
The Cold War and After: Presidential Power To Use Troops Overseas With-
out Congressional Authorization ..................................................................... 496
The Historic Use of Force Abroad ............................................................... 497
The Theory of Presidential Power ............................................................... 499
The Power of Congress to Control the President’s Discretion .................. 500
453
454 ART. II—EXECUTIVE DEPARTMENT
ARTICLE II
ined in C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 (1923). A review of the
Constitution’s provisions being put into operation is J. HART, THE AMERICAN PRESI-
DENCY IN ACTION 1789 (1948).
2 Hamilton observed the similarities and differences between the President and
the New York Governor in THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 462–470. On
the text, see New York Constitution of 1777, Articles XVII–XIX, in 5 F. Thorpe, The
Federal and State Constitutions, H. DOC. NO. 357, 59th Congress, 2d sess. (1909),
2632–2633.
457
458 ART. II—EXECUTIVE DEPARTMENT
the Senate the power to “advise and consent” with regard to these
matters.8
Finally, the designation of the executive as the “President of the
United States” was made in a tentative draft reported by the Com-
mittee on Detail 9 and accepted by the Convention without discus-
sion.10 The same clause had provided that the President’s title was
to be “His Excellency,” 11 and, while this language was also ac-
cepted without discussion,12 it was subsequently omitted by the Com-
mittee on Style and Arrangement 13 with no statement of the rea-
son and no comment in the Convention.
curring opinion).
15 A. UPSHUR, A BRIEF ENQUIRY INTO THE TRUE NATURE AND CHARACTER OF OUR FEDERAL
war between France and Great Britain contains not only the lines
but most of the content of the argument that Article II vests signifi-
cant powers in the President as possessor of executive powers not
enumerated in subsequent sections of Article II.17 Hamilton wrote:
“The second article of the Constitution of the United States, sec-
tion first, establishes this general proposition, that ‘the Executive
Power shall be vested in a President of the United States of America.’
The same article, in a succeeding section, proceeds to delineate par-
ticular cases of executive power. It declares, among other things,
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; that he
shall have power, by and with the advice and consent of the sen-
ate, to make treaties; that it shall be his duty to receive ambassa-
dors and other public ministers, and to take care that the laws be
faithfully executed. It would not consist with the rules of sound con-
struction, to consider this enumeration of particular authorities as
derogating from the more comprehensive grant in the general clause,
further than as it may be coupled with express restrictions or limi-
tations; as in regard to the co-operation of the senate in the appoint-
ment of officers, and the making of treaties; which are plainly quali-
fications of the general executive powers of appointing officers and
making treaties.”
“The difficulty of a complete enumeration of all the cases of ex-
ecutive authority, would naturally dictate the use of general terms,
and would render it improbable that a specification of certain par-
ticulars was designed as a substitute for those terms, when ante-
cedently used. The different mode of expression employed in the con-
stitution, in regard to the two powers, the legislative and the executive,
serves to confirm this inference. In the article which gives the leg-
islative powers of the government, the expressions are, ‘All legisla-
tive powers herein granted shall be vested in a Congress of the United
States.’ In that which grants the executive power, the expressions
are, ‘The executive power shall be vested in a President of the United
States.’ The enumeration ought therefore to be considered, as in-
tended merely to specify the principal articles implied in the defini-
tion of executive power; leaving the rest to flow from the general
grant of that power, interpreted in conformity with other parts of
the Constitution, and with the principles of free government. The
general doctrine of our Constitution then is, that the executive power
17 32 WRITINGS OF GEORGE WASHINGTON 430 (J. Fitzpatrick ed., 1939). See C. THOMAS,
sis in original).
19 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON 611–654 (1865).
20 Id. at 621. In the congressional debates on the President’s power to remove
executive officeholders, cf. C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 ch. 6
(1923), Madison had urged contentions quite similar to Hamilton’s, finding in the
first section of Article II and in the obligation to execute the laws a vesting of execu-
tive powers sufficient to contain the power solely on his behalf to remove subordi-
nates. 1 ANNALS OF CONGRESS 496–497. Madison’s language here was to be heavily
relied on by Chief Justice Taft on this point in Myers v. United States, 272 U.S. 52,
115–126 (1926), but compare, Corwin, The President’s Removal Power Under the Con-
stitution, in 4 SELECTED ESSAYS ON CONSTITUTIONAL LAW 1467, 1474–1483, 1485–1486 (1938).
21 Compare Calabresi & Rhodes, The Structural Constitution: Unitary Execu-
tive, Plural Judiciary, 105 HARV. L. REV. 1155 (1992), with Froomkin, The Imperial
Presidency’s New Vestments, 88 NW. U. L. REV. 1346 (1994), and responses by Calabresi,
Rhodes and Froomkin, id. at 1377, 1406, 1420.
462 ART. II—EXECUTIVE DEPARTMENT
22 272 U.S. 52 (1926). See Corwin, The President’s Removal Power Under the
different views. “The true view of the executive functions is, as I conceive it, that
the president can exercise no power which cannot be fairly and reasonably traced to
some specific grant of power or justly implied and included within such express grant
as proper and necessary in its exercise. Such specific grant must be either in the
federal constitution 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. . . .” W. TAFT, OUR CHIEF MAGISTRATE AND HIS POWERS 139–
140 (1916).
25 295 U.S. 602 (1935).
26 487 U.S. 654, 685–93 (1988).
27 343 U.S. 579 (1952).
28 299 U.S. 304 (1936).
ART. II—EXECUTIVE DEPARTMENT 463
vert, 354 U.S. 1, 5–6 (1957) (plurality opinion, per Justice Black).
32 357 U.S. 116, 129 (1958).
33 Haig v. Agee, 453 U.S. 280 (1981). For the reliance on Curtiss-Wright, see id.
at 291, 293–94 & n.24, 307–08. But see Dames & Moore v. Regan, 453 U.S. 654,
659–62 (1981), qualified by id. at 678. Compare Webster v. Doe, 486 U.S. 592 (1988)
(construing National Security Act as not precluding judicial review of constitutional
challenges to CIA Director’s dismissal of employee, over dissent relying in part on
Curtiss-Wright as interpretive force counseling denial of judicial review), with De-
partment of the Navy v. Egan, 484 U.S. 518 (1988) (denying Merit Systems Protec-
tion Board authority to review the substance of an underlying security-clearance de-
termination in reviewing an adverse action and noticing favorably President’s inherent
power to protect information without any explicit legislative grant). In Loving v. United
States, 517 U.S. 748 (1996), the Court recurred to the original setting of Curtiss-
Wright, a delegation to the President without standards. Congress, the Court found,
had delegated to the President authority to structure the death penalty provisions
of military law so as to bring the procedures, relating to aggravating and mitigating
factors, into line with constitutional requirements, but Congress had provided no
standards to guide the presidential exercise of the authority. Standards were not
required, held the Court, because his role as Commander-in-Chief gave him respon-
sibility to superintend the military establishment and Congress and the President
had interlinked authorities with respect to the military. Where the entity exercising
the delegated authority itself possesses independent authority over the subject mat-
ter, the familiar limitations on delegation do not apply. Id. at 771–74.
34 That the opinion “remains authoritative doctrine” is stated in L. HENKIN, FOR-
EIGN AFFAIRS AND THE CONSTITUTION 25–26 (1972). It is used as an interpretive prec-
edent in AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE LAW, THE FOREIGN RELA-
TIONS LAW OF THE UNITED STATES see, e.g., §§ 1, 204, 339 (1987). The Restatement is
circumspect, however, about the reach of the opinion in controversies between presi-
dential and congressional powers.
35 343 U.S. 579 (1952).
ART. II—EXECUTIVE DEPARTMENT 465
36 343 U.S. 593, 597–602 (Justice Frankfurter concurring, though he also noted
he expressly joined Justice Black’s opinion as well), 634, 635–40 (Justice Jackson
concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring).
37 343 U.S. at 582 (Justice Black delivering the opinion of the Court), 629 (Jus-
tice Douglas concurring, but note his use of the Fifth Amendment just compensa-
tion argument), 634 (Justice Jackson concurring), 655 (Justice Burton concurring).
38 343 U.S. at 667 (Chief Justice Vinson and Justices Reed and Minton dissent-
ing).
39 Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright
Corp., 299 U.S. 304 (1936). In Dames & Moore v. Regan, 453 U.S. 654, 659–62, 668–69
(1981), the Court turned to Youngstown as embodying “much relevant analysis” on
an issue of presidential power. And, in Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23
(2006), the Court cited Youngstown with approval, as did Justice Kennedy, in a con-
curring opinion joined by three other Justices, id. at 638.
40 Zivotofsky v. Kerry, 576 U.S. ___, No. 13–628, slip op. at 2 (2015). It appears
that in every prior instance where the Supreme Court considered executive action
in the field of foreign affairs that conflicted with the requirements of a federal stat-
ute, the Court had ruled the executive action invalid. See id. at 2 (Roberts, C.J.,
dissenting) (“For our first 225 years, no President prevailed when contradicting a
statute in the field of foreign affairs.”); Medellin v. Texas, 552 U.S. 491 (2008) (Presi-
dent could not direct state courts to reconsider cases barred from further review by
state and federal procedural rules in order to implement requirements flowing from
a ratified U.S. treaty that was not self-executing, as legislative authorization from
Congress was required); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military tribu-
nals convened by presidential order did not comply with the Uniform Code of Mili-
tary Justice); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Little v.
Barreme, 6 U.S. (2 Cr.) 170 (1804) (upholding damage award to owners of U.S. mer-
chant ship seized during quasi-war with France, when Congress had not authorized
such seizures).
466 ART. II—EXECUTIVE DEPARTMENT
erally provides that in issuing passports to U.S. citizens born abroad, the passport
shall identify the country presently exercising sovereignty over the citizen’s birth
location. 7 Foreign Affairs Manual § 1330 Appendix D (2008). The Manual provides
that employees should “write JERUSALEM as the place of birth in the passport. Do
not write Israel, Jordan or West Bank for a person born within the current munici-
pal borders of Jerusalem.” Id. at § 1360 Appendix D.
43 Zivotofsky, slip op. at 7 (quoting Brief from Respondent at 48).
44 Id. (quoting Youngstown Sheet & Tube Co., 343 U.S. at 637–38 (1952) (Jack-
tional Convention were largely silent on the recognition power, but that contempo-
rary writings by prominent international legal scholars identified the act of receiv-
ing ambassadors as the virtual equivalent of recognizing the sovereignty of the sending
state. Id. at 9.
48 Justice Thomas, writing separately and concurring in part with the majori-
ty’s judgment, would have located the primary source of the President’s recognition
power as the Vesting Clause. Zivotofsky, slip op. at 1 (Thomas, J., concurring and
dissenting in part with the Court’s judgment). The controlling five-Justice opinion
declined to reach the issue of whether the Vesting Clause provided such support.
Zivotofsky, slip op. at 10 (majority opinion).
49 U.S. CONST., art. II, § 2, cl. 2.
50 Id.
51 Zivotofsky, slip op. at 11.
52 Id. (quoting Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003), and Crosby
and deferential to, the President’s recognition policy, and the Court
characterized prior congressional involvement as indicating “no more
than that some Presidents have chosen to cooperate with Con-
gress, not that Congress itself has exercised the recognition power.” 55
The Court also stated that a “fair reading” of its prior jurispru-
dence demonstrated a longstanding understanding of the recogni-
tion power as an executive function, notwithstanding “some iso-
lated statements” in those cases that might have suggested a
congressional role.56
Having determined that the Constitution assigns the President
with exclusive authority over recognition of foreign sovereigns, the
Zivotofsky Court ruled that the statutory directive that the State
Department honor passport requests of Jerusalem-born U.S. citi-
zens to have their birthplace identified as “Israel” was an impermis-
sible intrusion on the President’s recognition authority. According
to the Court, Congress’s authority to regulate the issuance of pass-
ports, though wide in scope, may not be exercised in a manner in-
tended to compel the Executive “to contradict an earlier recogni-
tion determination in an official document of the Executive Branch”
that is addressed to foreign powers.57
While the Zivotofsky decision establishes that the recognition
power belongs exclusively to the President, its relevance to other
foreign affairs issues remains unclear. The opinion applied a func-
tionalist approach in assessing the exclusivity of executive power
on the issue of recognition, but did not opine on whether this ap-
proach was appropriate for resolving other inter-branch disputes con-
cerning the allocation of constitutional authority in the field of for-
eign affairs. The Zivotofsky Court also declined to endorse the
Executive’s broader claim of exclusive or preeminent presidential
55 Id. The Court observed that in no prior instance had Congress enacted a stat-
ute “contrary to the President’s formal and considered statement concerning recog-
nition.” Id. at 21 (citing Zivotofsky v. Secretary of State, 725 F.3d 197, 203, 221 (D.C.
Cir. 2013) (Tatel, J., concurring)).
56 See id. at 14. The Court observed that earlier rulings touching on the recog-
nition power had dealt with the division of power between the judicial and political
branches of the federal government, or between the federal government and the states.
Id. at 14–16 (citing Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398, 410 (1963)
(involving the application of the act of state doctrine to the government of Cuba and
stating that “[p]olitical recognition is exclusively a function of the Executive”); United
States v. Pink, 315 U.S. 203 (1942) (concerning effect of executive agreement involv-
ing the recognition of the Soviet Union and settlement of claims disputes upon state
law); United States v. Belmont, 301 U.S. 324 (1937) (similar to Pink); Williams v.
Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839) (ruling that an executive determina-
tion concerning foreign sovereign claims to the Falkland Islands was conclusive upon
the judiciary)).
57 See id. at 29. The Court approvingly cited its description in Urtetiqui v. D’Arcy,
34 U.S. (9 Pet.) 692 (1835), of a passport as being, “from its nature and object . . .
addressed to foreign powers.” See Zivotofsky, slip op. at 27.
ART. II—EXECUTIVE DEPARTMENT 469
ther discussion of this case, see supra Section 1. The President: Clause 1. Powers
and Term of the President: Executive Power: Theory of the Presidential Office: The
Curtiss-Wright Case.
59 The majority opinion observed that Curtiss-Wright had considered the consti-
tutionality of a congressional delegation of power to the President, and that its de-
scription of the Executive as the sole organ of foreign affairs was not essential to its
holding in the case. Zivotofsky, slip op. at 18.
60 Id. at 13.
61 Id. at 13, 27.
62 For the debates on the constitutionality of the Purchase, see E. BROWN, THE
ever, although Justices Kennedy and Souter joined this part of the opinion, id. at
579 (concurring in part and concurring in the judgment), they do not fully subscribe
to the apparent full reach of Justice Scalia’s doctrinal position, leaving the position,
if that be true, supported in full only by a plurality.
72 Morrison v. Olson, 487 U.S. 654 (1988). The opinion by Chief Justice Rehnquist
was joined by seven of the eight participating Justices. Only Justice Scalia dis-
sented. In Mistretta v. United States, 488 U.S. 361, 390–91 (1989), the Court, ap-
proving the placement of the Sentencing Commission in the judicial branch, denied
that executive powers were diminished because of the historic judicial responsibility
to determine what sentence to impose on a convicted offender. Earlier, in Young v.
United States ex rel. Vuitton, 481 U.S. 787 (1987), the Court, in upholding the power
of federal judges to appoint private counsel to prosecute contempt of court actions,
rejected the assertion that the judiciary usurped executive power in appointing such
counsel.
73 The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99–
which set maximum deficit amounts for federal spending for fiscal
years 1986 through 1991, and which directed across-the-board cuts
in spending when projected deficits would exceed the target defi-
cits. The Comptroller was to prepare a report for each fiscal year
containing detailed estimates of projected federal revenues and ex-
penditures, and specifying the reductions, if any, necessary to meet
the statutory target. The President was required to implement the
reductions specified in the Comptroller’s report. The Court viewed
these functions of the Comptroller “as plainly entailing execution
of the law in constitutional terms. Interpreting a law . . . to imple-
ment the legislative mandate is the very essence of ‘execution’ of
the law,” especially where “exercise [of] judgment” is called for, and
where the President is required to implement the interpretation.74
Because Congress by earlier enactment had retained authority to
remove the Comptroller General from office, the Court held, execu-
tive powers may not be delegated to him. “By placing the responsi-
bility for execution of the [Act] in the hands of an officer who is
subject to removal only by itself, Congress in effect has retained
control over the execution of the Act and has intruded into the ex-
ecutive function.” 75
The Court in Chadha and Synar ignored or rejected assertions
that its formalistic approach to separation of powers may bring into
question the validity of delegations of legislative authority to the
modern administrative state, sometimes called the “fourth branch.”
As Justice White asserted in dissent in Chadha, “by virtue of con-
gressional delegation, legislative power can be exercised by indepen-
dent agencies and Executive departments . . . . There is no ques-
tion but that agency rulemaking is lawmaking in any functional or
realistic sense of the term.” 76 Moreover, Justice White noted, “rules
and adjudications by the agencies meet the Court’s own definition
of legislative action . . . .” 77 Justice Stevens, concurring in Synar,
sounded the same chord in suggesting that the Court’s holding should
not depend on classification of “chameleon-like” powers as execu-
tive, legislative, or judicial.78 The Court answered these assertions
on two levels: that the bicameral protection “is not necessary” when
legislative power has been delegated to another branch confined to
implementing statutory standards set by Congress, and that “the
Constitution does not so require.” 79 In the same context, the Court
acknowledged without disapproval that it had described some agency
74 478 U.S. at 732–33.
75 478 U.S. at 734.
76 462 U.S. at 985–86.
77 462 U.S. at 989.
78 478 U.S. at 736, 750.
79 462 U.S. at 953 n.16.
ART. II—EXECUTIVE DEPARTMENT 473
cases do not support the proposition that every action by the Presi-
dent, or by another executive official, in excess of his statutory au-
thority is ipso facto in violation of the Constitution. On the con-
trary, we have often distinguished between claims of constitutional
violations and claims that an official has acted in excess of his statu-
tory authority.” 84 Thus, the Court distinguished between executive
action undertaken without even the purported warrant of statutory
authorization and executive action in excess of statutory authority.
The former may violate separation of powers, but the latter will
not.85
Doctrinally, the distinction is important and subject to unfortu-
nate application.86 Whether the brief, unilluminating discussion in
Dalton will bear fruit in constitutional jurisprudence, however, is
problematic.
TENURE
Formerly, the term of four years during which the President “shall
hold office” was reckoned from March 4 of the alternate odd years
beginning with 1789. This came about from the circumstance that
under the act of September 13, 1788, of “the Old Congress,” the
first Wednesday in March, which was March 4, 1789, was fixed as
the time for commencing proceedings under the Constitution. Al-
though as a matter of fact Washington was not inaugurated until
April 30 of that year, by an act approved March 1, 1792, it was
provided that the presidential term should be reckoned from the
fourth day of March next succeeding the date of election. And so
things stood until the adoption of the Twentieth Amendment, by
which the terms of President and Vice-President end at noon on
the 20th of January.87
The prevailing sentiment of the Philadelphia Convention fa-
vored the indefinite eligibility of the President. It was Jefferson who
raised the objection that indefinite eligibility would in fact be for
84 511 U.S. at 472.
85 See The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139,
300–10 (1994).
86 “As a matter of constitutional logic, the executive branch must have some war-
rant, either statutory or constitutional, for its actions. The source of all Federal Gov-
ernmental authority is the Constitution and, because the Constitution contemplates
that Congress may delegate a measure of its power to officials in the executive branch,
statutes. The principle of separation of powers is a direct consequence of this scheme.
Absent statutory authorization, it is unlawful for the President to exercise the pow-
ers of the other branches because the Constitution does not vest those powers in
the President. The absence of statutory authorization is not merely a statutory de-
fect; it is a constitutional defect as well.” 108 HARV. L. REV. at 305–06 (footnote cita-
tions omitted).
87 As to the meaning of “the fourth day of March,” see Warren, Political Practice
life and degenerate into an inheritance. Prior to 1940, the idea that
no President should hold office for more than two terms was gener-
ally thought to be a fixed tradition, although some quibbles had been
raised as to the meaning of the word “term.” The voters’ departure
from the tradition in electing President Franklin D. Roosevelt to
third and fourth terms led to the proposal by Congress on March
24, 1947, of an amendment to the Constitution to embody the tra-
dition in the Constitutional Document. The proposal became a part
of the Constitution on February 27, 1951, in consequence of its adop-
tion by the necessary thirty-sixth state, which was Minnesota.88
ity, then from the five highest on the List the said House shall
in like manner chuse the President. But in chusing the Presi-
dent, the Votes shall be taken by States, the Representation from
each State having one Vote; A quorum for this purpose shall con-
sist 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 hav-
ing 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.
Clause 4. The Congress may determine the Time of chusing
the Electors, and the Day on which they shall give their Votes;
which Day shall be the same throughout the United States.
ELECTORAL COLLEGE
The electoral college was one of the compromises by which the
delegates were able to agree on the document finally produced. “This
subject,” said James Wilson, referring to the issue of the manner
in which the President was to be selected, “has greatly divided the
House, and will also divide people out of doors. It is in truth the
most difficult of all on which we have had to decide.” 89 Adoption of
the electoral college plan came late in the Convention, which had
previously adopted on four occasions provisions for election of the
executive by the Congress and had twice defeated proposals for elec-
tion by the people directly.90 Itself the product of compromise, the
electoral college probably did not work as any member of the Con-
vention could have foreseen, because the development of political
parties and nomination of presidential candidates through them and
designation of electors by the parties soon reduced the concept of
the elector as an independent force to the vanishing point in prac-
tice if not in theory.91 But the college remains despite numerous
89 2 M. Farrand, supra, p. 501.
90 1 id. at 21, 68–69, 80–81, 175–76, 230, 244; 2 id. at 29–32, 57–59, 63–64, 95,
99–106, 108–15, 118–21, 196–97, 401–04, 497, 499–502, 511–15, 522–29.
91 See J. CEASER, PRESIDENTIAL SELECTION: THEORY AND DEVELOPMENT (1979); N. PIERCE,
THE PEOPLES PRESIDENT: THE ELECTORAL COLLEGE IN AMERICAN HISTORY AND THE DIRECT-VOTE
ALTERNATIVE (1968). The second presidential election, in 1792, saw the first party in-
ART. II—EXECUTIVE DEPARTMENT 477
“Appoint”
The word “appoint” as used in Clause 2 confers on state legisla-
tures “the broadest power of determination.” 92 Upholding a state
law providing for selection of electors by popular vote from dis-
tricts rather than statewide, the Court described the variety of per-
missible methods. “Therefore, on reference to contemporaneous and
subsequent action under the clause, we should expect to find, as
we do, that various modes of choosing the electors were pursued,
as, by the legislature itself on joint ballot; by the legislature through
a concurrent vote of the two houses; by vote of the people for a gen-
eral ticket; by vote of the people in districts; by choice partly by
the people voting in districts and partly by the legislature; by choice
by the legislature from candidates voted for by the people in dis-
tricts; and in other ways, as, notably, by North Carolina in 1792,
and Tennessee in 1796 and 1800. No question was raised as to the
power of the State to appoint, in any mode its legislature saw fit to
adopt, and none that a single method, applicable without excep-
tion, must be pursued in the absence of an amendment to the Con-
stitution. The district system was largely considered the most equi-
table, and Madison wrote that it was that system which was
contemplated by the framers of the Constitution, although it was
soon seen that its adoption by some States might place them at a
disadvantage by a division of their strength, and that a uniform
rule was preferable.” 93
sive power to the States to pass laws regulating the selection of electors. But the
Constitution is filled with provisions that grant Congress or the States specific power
to legislate in certain areas; these granted powers are always subject to the limita-
tion that they may not be exercised in a way that violates other specific provisions
of the Constitution . . . . [It cannot be] thought that the power to select electors
could be exercised in such a way as to violate express constitutional commands that
specifically bar States from passing certain kinds of laws. [citing the Fifteenth, Nine-
teenth, and Twenty-fourth Amendments]. . . . Obviously we must reject the notion
that Art. II, § 1, gives the States power to impose burdens on the right to vote, where
such burdens are expressly prohibited in other constitutional provisions.” 393 U.S.
at 29.
99 400 U.S. 112 (1970).
100 The Court divided five-to-four on this issue. Of the majority, four relied on
Congress’s power under the Fourteenth Amendment, and Justice Black relied on im-
plied and inherent congressional powers to create and maintain a national govern-
ment. 400 U.S. at 119–24 (Justice Black announcing opinion of the Court).
101 The Court divided eight-to-one on this issue. Of the majority, seven relied on
Congress’s power to enforce the Fourteenth Amendment, and Justice Black on im-
plied and inherent powers.
102 393 U.S. 23 (1968).
ART. II—EXECUTIVE DEPARTMENT 479
Cooke ed. 1961), 458 (Hamilton); 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES 1457 (1833).
113 S. REP. NO. 22, 19th Cong., 1st Sess. 4 (1826).
114 All but the most recent instances are summarized in N. Pierce, supra, 122–
124.
ART. II—EXECUTIVE DEPARTMENT 481
tained to the Age of thirty five Years, and been Fourteen Years
a Resident within the United States.
QUALIFICATIONS
All Presidents from Martin Van Buren on were born in the United
States subsequent to the Declaration of Independence. The princi-
pal issue with regard to the qualifications set out in this clause is
whether a child born abroad of American parents is “a natural born
citizen” in the sense of the clause. Such a child is a citizen as a
consequence of statute.121 Whatever the term “natural born” means,
it no doubt does not include a person who is “naturalized.” Thus,
the answer to the question might be seen to turn on the interpreta-
tion of the first sentence of the first section of the Fourteenth Amend-
ment, providing that “[a]ll persons born or naturalized in the United
States” are citizens.122 Significantly, however, Congress, in which a
number of Framers sat, provided in the Naturalization act of 1790
that “the children of citizens of the United States, that may be born
beyond the sea, . . . shall be considered as natural born citizens
. . . .” 123 This phrasing followed the literal terms of British stat-
utes, beginning in 1350, under which persons born abroad, whose
parents were both British subjects, would enjoy the same rights of
inheritance as those born in England; beginning with laws in 1709
and 1731, these statutes expressly provided that such persons were
natural-born subjects of the crown.124 There is reason to believe,
therefore, that the phrase includes persons who become citizens at
birth by statute because of their status in being born abroad of Ameri-
121 8 U.S.C. § 1401.
122 Reliance on the provision of an Amendment adopted subsequent to the con-
stitutional provision being interpreted is not precluded by but is strongly militated
against by the language in Freytag v. Commissioner, 501 U.S. 868, 886–87 (1991),
in which the Court declined to be bound by the language of the 25th Amendment in
determining the meaning of “Heads of Departments” in the Appointments Clause.
See also id. at 917 (Justice Scalia concurring). If the Fourteenth Amendment is rel-
evant and the language is exclusive, that is, if it describes the only means by which
persons can become citizens, then, anyone born outside the United States would have
to be considered naturalized in order to be a citizen, and a child born abroad of
American parents is to be considered “naturalized” by being statutorily made a citi-
zen at birth. Although dictum in certain cases supports this exclusive interpretation
of the Fourteenth Amendment, United States v. Wong Kim Ark, 169 U.S. 649, 702–03
(1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most recent case in
its holding and language rejects it. Rogers v. Bellei, 401 U.S. 815 (1971).
123 Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). See Weedin v.
Chin Bow, 274 U.S. 657, 661–666 (1927); United States v. Wong Kim Ark, 169 U.S.
649, 672–675 (1898). With minor variations, this language remained law in subse-
quent reenactments until an 1802 Act, which omitted the italicized words for rea-
sons not discernable. See Act of Feb. 10, 1855, 10 Stat. 604 (enacting same provi-
sion, for offspring of American-citizen fathers, but omitting the italicized phrase).
124 25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, § 3 (1709); 4 Geo. 2, ch. 21 (1731).
484 ART. II—EXECUTIVE DEPARTMENT
can citizens.125 Whether the Supreme Court would decide the issue
should it ever arise in a “case or controversy”—as well as how it
might decide it—can only be speculated about.
PRESIDENTIAL SUCCESSION
When the President is disabled or is removed or has died, to
what does the Vice President succeed: to the “powers and duties of
the said office,” or to the office itself? There is a reasonable amount
of evidence from the proceedings of the convention from which to
conclude that the Framers intended the Vice President to remain
Vice President and to exercise the powers of the President until, in
the words of the final clause, “a President shall be elected.” None-
theless, when President Harrison died in 1841, Vice President Ty-
ler, after initial hesitation, took the position that he was automati-
cally President,126 a precedent which has been followed subsequently
and which is now permanently settled by section 1 of the Twenty-
fifth Amendment. That Amendment also settles a number of other
pressing questions with regard to presidential inability and succes-
sion.
125 See, e.g., Gordon, Who Can Be President of the United States: The Unre-
OATH OF OFFICE
What is the time relationship between a President’s assump-
tion of office and his taking the oath? Apparently, the former comes
first, this answer appearing to be the assumption of the language
of the clause. The Second Congress assumed that President Wash-
ington took office on March 4, 1789,128 although he did not take
the oath until the following April 30.
That the oath the President is required to take might be consid-
ered to add anything to the powers of the President, because of his
obligation to “preserve, protect and defend the Constitution,” might
appear to be rather a fanciful idea. But in President Jackson’s mes-
sage announcing his veto of the act renewing the Bank of the United
States there is language which suggests that the President has the
right to refuse to enforce both statutes and judicial decisions based
on his own independent decision that they were unwarranted by
the Constitution.129 The idea next turned up in a message by Presi-
dent Lincoln justifying his suspension of the writ of habeas corpus
without obtaining congressional authorization.130 And counsel to Presi-
dent Johnson during his impeachment trial adverted to the theory,
but only in passing.131 Beyond these isolated instances, it does not
127 Cf. 13 Ops. Atty. Gen. 161 (1869), holding that a specific tax by the United
States upon the salary of an officer, to be deducted from the amount which other-
wise would by law be payable as such salary, is a diminution of the compensation to
be paid to him which, in the case of the President, would be unconstitutional if the
act of Congress levying the tax was passed during his official term.
128 Act of March 1, 1792, 1 Stat. 239, § 12.
129 2 J. Richardson, supra, at 576. Chief Justice Taney, who as a member of
Jackson’s Cabinet had drafted the message, later repudiated this possible reading
of the message. 2 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 223–224
(1926).
130 6 J. Richardson, supra, at 25.
131 2 TRIAL OF ANDREW JOHNSON 200, 293, 296 (1868).
486 ART. II—EXECUTIVE DEPARTMENT
COMMANDER-IN-CHIEF
THE PRESIDENT AS COMMANDER IN CHIEF (E. May ed., 1960), 1. In the Virginia ratifying
convention, Madison, replying to Patrick Henry’s objection that danger lurked in giv-
ing the President control of the military, said: “Would the honorable member say
that the sword ought to be put in the hands of the representatives of the people, or
in other hands independent of the government altogether?” 3 J. ELLIOT, THE DEBATES
IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 393 (1836).
In the North Carolina convention, Iredell said: “From the nature of the thing, the
command of armies ought to be delegated to one person only. The secrecy, dispatch,
and decision, which are necessary in military operations can only be expected from
one person.” 4 id. at 107.
133 THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465.
ART. II—EXECUTIVE DEPARTMENT 487
134 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1486 (1833).
135 Fleming v. Page, 50 U.S. (9 How.) 603, 615, 618 (1850).
136 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866).
137 1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.C. §§ 331–334. See also
Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827), asserting the finality of the
President’s judgment of the existence of a state of facts requiring his exercise of the
powers conferred by the act of 1795.
138 7 J. Richardson, supra, at 3221, 3232.
488 ART. II—EXECUTIVE DEPARTMENT
lion, and in the Prize Cases 139 of 1863 a divided Court sustained
this theory. The immediate issue was the validity of the blockade
that the President, following the attack on Fort Sumter, had pro-
claimed of the Southern ports.140 The argument was advanced that
a blockade to be valid must be an incident of a “public war” validly
declared, and that only Congress could, by virtue of its power “to
declare war,” constitutionally impart to a military situation this char-
acter and scope. Speaking for the majority of the Court, Justice Grier
answered: “If a war be made by invasion of a foreign nation, the
President is not only authorized but bound to resist force by force.
He does not initiate the war, but is bound to accept the challenge
without waiting for any special legislative authority. And whether
the hostile party be a foreign invader, or States organized in rebel-
lion, it is none the less a war, although the declaration of it be ‘uni-
lateral.’ Lord Stowell (1 Dodson, 247) observes, ‘It is not the less a
war on that account, for war may exist without a declaration on
either side. It is so laid down by the best writers of the law of na-
tions. A declaration of war by one country only, is not a mere chal-
lenge to be accepted or refused at pleasure by the other.’ ”
“The battles of Palo Alto and Resaca de la Palma had been fought
before the passage of the act of Congress of May 13, 1846, which
recognized ‘a state of war as existing by the act of the Republic of
Mexico.’ This act not only provided for the future prosecution of the
war, but was itself a vindication and ratification of the Act of the
President in accepting the challenge without a previous formal dec-
laration of war by Congress.”
“This greatest of civil wars was not gradually developed by popu-
lar commotion, tumultuous assemblies, or local unorganized insur-
rections. However long may have been its previous conception, it
nevertheless sprung forth suddenly from the parent brain, a Minerva
in the full panoply of war. The President was bound to meet it in
the shape it presented itself, without waiting for Congress to bap-
tize it with a name; and no name given to it by him or them could
change the fact. . . .”
“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 belligerents, is
a question to be decided by him, and this Court must be governed
by the decisions and acts of the political department of the govern-
ment to which this power was entrusted. ‘He must determine what
139 67 U.S. (2 Bl.) 635 (1863).
140 7 J. Richardson, supra, at 3215, 3216, 3481.
ART. II—EXECUTIVE DEPARTMENT 489
War II: “As Chief Executive and as Commander-in-Chief of the Army and Navy, the
President possesses an aggregate of powers that are derived from the Constitution
and from various statutes enacted by the Congress for the purpose of carrying on
the war. . . . In time of war when the existence of the nation is at stake, this aggre-
gate of powers includes authority to take reasonable steps to prevent nation-wide
labor disturbances that threaten to interfere seriously with the conduct of the war.
The fact that the initial impact of these disturbances is on the production or distri-
bution of essential civilian goods is not a reason for denying the Chief Executive
and the Commander-in-Chief of the Army and Navy the power to take steps to pro-
tect the nation’s war effort.” 40 Ops. Atty. Gen. 312, 319–320 (1944). Prior to the
actual beginning of hostilities, Attorney General Jackson asserted the same justifi-
cation upon seizure of an aviation plant. E. CORWIN, TOTAL WAR AND THE CONSTITUTION
47–48 (1946).
490 ART. II—EXECUTIVE DEPARTMENT
148 For a listing of the agencies and an account of their creation to the close of
1942, see Vanderbilt, War Powers and Their Administration, in 1942 ANNUAL SURVEY
OF AMERICAN LAW 106 (New York Univ.).
149 143 F.2d 145 (D.C. Cir. 1944).
150 143 F.2d at 149.
151 E. Corwin, supra at 244, 245, 459.
152 E.O. 9066, 7 FED. REG. 1407 (1942).
492 ART. II—EXECUTIVE DEPARTMENT
and herded into temporary camps and later into “relocation cen-
ters” in several states.
It was apparently the original intention of the Administration
to rely on the general principle of military necessity and the power
of the Commander-in-Chief in wartime as authority for the reloca-
tions. But before any action of importance was taken under the or-
der, Congress ratified and adopted it by the Act of March 21, 1942,153
by which it was made a misdemeanor to knowingly enter, remain
in, or leave prescribed military areas contrary to the orders of the
Secretary of War or of the commanding officer of the area. The cases
which subsequently arose in consequence of the order were decided
under the order plus the Act. The question at issue, said Chief Jus-
tice Stone for the Court, “is not one of Congressional power to del-
egate to the President the promulgation of the Executive Order, but
whether, acting in cooperation, Congress and the Executive have
constitutional . . . [power] to impose the curfew restriction here com-
plained of.” 154 This question was answered in the affirmative, as
was the similar question later raised by an exclusion order.155
Presidential Government of Labor Regulations.—The most
important segment of the home front regulated by what were in
effect presidential edicts was the field of labor relations. Exactly six
months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing
his proclamation thirteen days earlier of an unlimited national emer-
gency, issued an Executive Order seizing the North American Avia-
tion Plant at Inglewood, California, where, on account of a strike,
production was at a standstill.156 Attorney General Jackson justi-
fied the seizure as growing out of the “duty constitutionally and in-
herently rested upon the President to exert his civil and military
as well as his moral authority to keep the defense efforts of the
United States a going concern,” as well as “to obtain supplies for
which Congress has appropriated the money, and which it has di-
federal court granted a writ of coram nobis and overturned Korematsu’s conviction,
Korematsu v. United States, 584 F. Supp. 1406 (N.D.Cal. 1984), and in 1986, a fed-
eral court vacated Hirabayashi’s conviction for failing to register for evacuation but
let stand the conviction for curfew violations. Hirabayashi v. United States, 627 F.
Supp. 1445 (W.D.Wash. 1986). Other cases were pending, but Congress then imple-
mented the recommendations of the Commission on Wartime Relocation and Intern-
ment of Civilians by acknowledging “the fundamental injustice of the evacuation,
relocation and internment,” and apologizing on behalf of the people of the United
States. Pub. L. 100–383, 102 Stat. 903 (1988), 50 U.S.C. App. §§ 1989 et seq. Repa-
rations were approved, and each living survivor of the internment was to be compen-
sated in an amount roughly approximating $20,000.
156 E.O. 8773, 6 Fed. Reg. 2777 (1941).
ART. II—EXECUTIVE DEPARTMENT 493
“any unusual and extraordinary threat, which has its source in whole or substantial
part outside the United States, to the national security, foreign policy, or the economy
of the United States . . . .” 50 U.S.C. § 1701.
182 Pub. L. 94–412, 90 Stat. 1255 (1976).
ART. II—EXECUTIVE DEPARTMENT 497
183 See the discussion in NATIONAL COMMITMENTS RESOLUTION, REPORT OF THE SENATE
COMMITTEE ON FOREIGN RELATIONS, S. REP. NO. 91–129, 91st Congress, 1st sess. (1969);
U.S. Commitments to Foreign Powers: Hearings Before the Senate Committee on For-
eign Relations, 90th Congress, 1st sess. (1967) at 16–19 (Professor Bartlett).
184 See discussion under Article I, § 8, cls. 11–14.
185 J. Clark, Memorandum by the Solicitor for the Department of State, in RIGHT
THE ARMED FORCES OF THE UNITED STATES (1928); J. ROGERS, WORLD POLICING AND THE CON-
STITUTION (1945). The burden of the last cited volume was to establish that the Presi-
dent was empowered to participate in United Nations peacekeeping actions without
having to seek congressional authorization on each occasion; it may be said to be
one of the earliest, if not the earliest, propoundings of the doctrine of inherent presi-
dential powers to use troops abroad outside the narrow compass traditionally ac-
corded those powers.
498 ART. II—EXECUTIVE DEPARTMENT
then to Indochina generally, 187 and new lists have been pro-
pounded.188 The great majority of the instances cited involved fights
with pirates, landings of small naval contingents on barbarous or
semibarbarous coasts to protect commerce, the dispatch of small bod-
ies of troops to chase bandits across the Mexican border, and the
like, and some incidents supposedly without authorization from Con-
gress did in fact have underlying statutory or other legislative au-
thorization. Some instances, e.g., President Polk’s use of troops to
precipitate war with Mexico in 1846, President Grant’s attempt to
annex the Dominican Republic, President McKinley’s dispatch of troops
into China during the Boxer Rebellion, involved considerable exer-
cises of presidential power, but in general purposes were limited
and congressional authority was sought for the use of troops against
a sovereign state or in such a way as to constitute war. The early
years of this century saw the expansion in the Caribbean and Latin
America both of the use of troops for the furthering of what was
perceived to be our national interests and of the power of the Presi-
187 E.g., H. REP. NO. 127, 82d Congress, 1st Sess. (1951), 55–62; Corwin, Who
Has the Power to Make War? NEW YORK TIMES MAGAZINE (July 31, 1949), 11; Authority
of the President to Repel the Attack in Korea, 23 DEPT. STATE BULL. 173 (1950); Depart-
ment of State, Historical Studies Division, Armed Actions Taken by the United States
Without a Declaration of War, 1789–1967 (Res. Proj. No. 806A (Washington: 1967)).
That the compilation of such lists was more than a defense against public criticism
can be gleaned from a revealing discussion in Secretary of State Acheson’s memoirs
detailing why the President did not seek congressional sanction for sending troops
to Korea. “There has never, I believe, been any serious doubt—in the sense of non-
politically inspired doubt—of the President’s constitutional authority to do what he
did. The basis for this conclusion in legal theory and historical precedent was fully
set out in the State Department’s memorandum of July 3, 1950, extensively pub-
lished. But the wisdom of the decision not to ask for congressional approval has
been doubted. . . .”
After discussing several reasons establishing the wisdom of the decision, the Sec-
retary continued: “The President agreed, moved also, I think, by another passion-
ately held conviction. His great office was to him a sacred and temporary trust, which
he was determined to pass on unimpaired by the slightest loss of power or prestige.
This attitude would incline him strongly against any attempt to divert criticism from
himself by action that might establish a precedent in derogation of presidential power
to send our forces into battle. The memorandum that we prepared listed eighty-
seven instances in the past century in which his predecessors had done this. And
thus yet another decision was made.” D. ACHESON, PRESENT AT THE CREATION 414, 415
(1969).
188 War Powers Legislation: Hearings Before the Senate Foreign Relations Com-
mittee, 92d Congress, 1st Sess. (1971), 347, 354–355, 359–379 (Senator Goldwater);
Emerson, War Powers Legislation, 74 W. VA. L. REV. 53 (1972). The most complete
list as of the time prepared is Collier, Instances of Use of United States Armed Forces
Abroad, 1798–1989, CONG. RES. SERV. (1989), which was cited for its numerical total
in United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). For an effort to
reconstruct the development and continuation of the listings, see F. WORMUTH & E.
FIRMAGE, TO CHAIN THE DOG OF WAR 142–145 (2d ed. 1989).
ART. II—EXECUTIVE DEPARTMENT 499
dent to deploy the military force of the United States without con-
gressional authorization.189
The pre-war actions of Presidents Wilson and Franklin Roosevelt
advanced in substantial degrees the fact of presidential initiative,
although the theory did not begin to catch up with the fact until
the “Great Debate” over the commitment of troops by the United
States to Europe under the Atlantic Pact. While congressional au-
thorization was obtained, that debate, the debate over the United
Nations charter, and the debate over Article 5 of the North Atlantic
Treaty of 1949, declaring that “armed attack” against one signa-
tory was to be considered as “an attack” against all signatories, pro-
vided the occasion for the formulation of a theory of independent
presidential power to use the armed forces in the national interest
at his discretion.190 Thus, Secretary of State Acheson told Con-
gress: “Not only has the President the authority to use the armed
forces in carrying out the broad foreign policy of the United States
implementing treaties, but it is equally clear that this authority may
not be interfered with by the Congress in the exercise of powers
which it has under the Constitution.” 191
The Theory of Presidential Power.—The fullest expression
of the presidential power proponents has been in defense of the course
followed in Indochina. Thus, the Legal Adviser of the State Depart-
ment, in a widely circulated document, contended: “Under the Con-
stitution, the President, in addition to being Chief Executive, is Com-
mander in Chief of the Army and Navy. He holds the prime
responsibility for the conduct of United States foreign relations. These
duties carry very broad powers, including the power to deploy Ameri-
can forces abroad and commit them to military operations when the
189 Of course, considerable debate continues with respect to the meaning of the
historical record. For reflections of the narrow reading, see NATIONAL COMMITMENTS RESO-
LUTION, Report of the Senate Committee on Foreign Relations, S. REP. NO. 91–129,
1st Sess. (1969); J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND
ITS AFTERMATH (1993). On the broader reading and finding great presidential power,
see A. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (1976); Em-
erson, Making War Without a Declaration, 17 J. LEGIS. 23 (1990).
190 For some popular defenses of presidential power during the “Great Debate,”
see Corwin, Who Has the Power to Make War? NEW YORK TIMES MAGAZINE (July 31,
1949), 11; Commager, Presidential Power: The Issue Analyzed, NEW YORK TIMES MAGA-
ZINE (January 14, 1951), 11. Cf. Douglas, The Constitutional and Legal Basis for the
President’s Action in Using Armed Forces to Repel the Invasion of South Korea, 96
CONG. REC. 9647 (1950). President Truman and Secretary Acheson utilized the argu-
ment from the U.N. Charter in defending the United States actions in Korea, and
the Charter defense has been made much of since. See, e.g., Stromseth, Rethinking
War Powers: Congress, the President, and the United Nations, 81 GEO. L. J. 597 (1993).
191 Assignment of Ground Forces of the United States to Duty in the European
Area: Hearings Before the Senate Foreign Relations and Armed Services Commit-
tees, 82d Congress, 1st Sess. (1951), 92.
500 ART. II—EXECUTIVE DEPARTMENT
Nam, 54 DEPT. STATE BULL. 474, 484–485 (1966). See also Moore, The National Execu-
tive and the Use of the Armed Forces Abroad, 21 NAVAL WAR COLLEGE REV. 28 (1969);
Wright, The Power of the Executive to Use Military Forces Abroad, 10 VA. J. INT. L.
43 (1969); Documents Relating to the War Powers of Congress, The President’s Au-
thority as Commander-in-Chief and the War in Indochina, Senate Committee on For-
eign Relations, 91st Congress, 2d sess. (Comm. Print) (1970), 1 (Under Secretary of
State Katzenbach), 90 (J. Stevenson, Legal Adviser, Department of State), 120 (Pro-
fessor Moore), 175 (Assistant Attorney General Rehnquist).
193 E.g., F. WORMUTH & E. FIRMAGE, TO CHAIN THE DOG OF WAR (2d ed. 1989), F.; J.
ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993);
U.S. Commitments to Foreign Powers: Hearings Before the Senate Committee on For-
eign Relations, 90th Congress, 1st sess. (1967), 9 (Professor Bartlett); War Powers
Legislation: Hearings Before the Senate Committee on Foreign Relations, 92d Cong.,
1st sess. (1971), 7 (Professor Commager), 75 (Professor Morris), 251 (Professor Ma-
son).
194 Pub. L. 93–148, 87 Stat. 555, 50 U.S.C. §§ 1541–1548. For the congressional
intent and explanation, see H. REP. NO. 93–287, S. REP. NO. 93–220, and H. REP. NO.
ART. II—EXECUTIVE DEPARTMENT 501
93–547 (Conference Report), all 93d Congress, 1st sess. (1973). The President’s veto
message is H. Doc. No. 93–171, 93d Congress. 1st Sess. (1973). All this material is
collected in The War Powers Resolution: Relevant Documents, Reports, Correspon-
dence, House Committee on Foreign Affairs, 103d Cong., 2d Sess. (Comm. Print) (GPO:
1994), 1–46. For a narrative account of passage and an assessment of the disputed
compliance to date, from the congressional point of view, see The War Powers Reso-
lution, A Special Study of the House Committee on Foreign Affairs, 102d Cong., 2d
Sess. (Comm. Print) (GPO: 1982).
195 87 Stat. 554, 2(c), 50 U.S.C. § 1541(c).
196 50 U.S.C. § 1543(a).
197 50 U.S.C. § 1544(b).
198 Id. at § 1544(c). It is the general consensus that, following INS v. Chadha,
Hearings Before the Senate Committee on Armed Services, 101st Cong., 2d Sess. (1990),
701 (Secretary Cheney) (President did not require “any additional authorization from
the Congress” before attacking Iraq). On the day following his request for support-
ing legislation from Congress, President Bush, in answer to a question about the
requested action, stated: “I don’t think I need it. . . . I feel that I have the author-
ity to fully implement the United Nations resolutions.” 27 WEEKLY COMP. PRES. DOC.
25 (Jan. 8, 1991).
202 Pub. L. 102–1, 105 Stat. 3 (1991).
203 Pub. L. 107–243; 116 Stat. 1498 (2002). The House approved the resolution
by a vote of 296–133. The Senate passed the House version of H.J. Res. 114 by a
vote of 77–23.
ART. II—EXECUTIVE DEPARTMENT 503
ing the measure, the President noted that he had sought “an addi-
tional resolution of support” from Congress, and expressed appre-
ciation for receiving that support, but stated, “my request for it did
not, and my signing this resolution does not, constitute any change
in the long-standing positions of the executive branch on either the
President’s constitutional authority to use force to deter, prevent,
or respond to aggression or other threats to U.S. interests or on
the constitutionality of the War Powers Resolution.” 204 In the Bush
administration’s view, the primary benefit of receiving authoriza-
tion from Congress seems to have been the message of political unity
it conveyed to the rest of the world rather than the fulfillment of
any constitutional requirements.
Although there is recurrent talk within Congress and without
as to amending the War Powers Resolution to strengthen it, no con-
sensus has emerged, and there is little evidence that there exists
within Congress the resolve to exercise the responsibility concomi-
tant with strengthening it.205
at [http://usinfo.state.gov/dhr/Archive/2003/Oct/09–906028.html].
205 See, on proposals to amend and on congressional responsibility, J. ELY, WAR
see THE ULTIMATE DECISION: THE PRESIDENT AS COMMANDER IN CHIEF (E. May ed., 1960).
207 Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).
208 Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager,
80 U.S. (13 Wall.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Ops.
Atty. Gen. 250, 253 (1942).
212 Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of
Paris, 30 Stat. 1742 and President Wilson’s Fourteen Points, which were incorpo-
rated in the Armistice of November 11, 1918.
213 Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).
214 Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied terri-
tory, see Dooley v. United States, 182 U.S. 222, 230–31 (1901).
215 Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See
219 See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States
who is the regularly constituted organ of the President for the ad-
ministration of the military establishment of the Nation, has been
held by the Supreme Court of the United States to be merely a ci-
vilian officer, not in military service. (United States v. Burns, 79 U.S.
(12 Wall.) 246 (1871)). On the general principle of civilian su-
premacy over the military, by virtue of the Constitution, it has re-
cently been said: ‘The supremacy of the civil over the military is
one of our great heritages.’ Duncan v. Kahanamoku, 327 U.S. 304,
325 (1945).” 222
estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421
and 939 of the Internal Revenue Code, which extends certain tax benefits to per-
sons dying in the military services of the United States. New York Times, July 26,
1950, p. 27, col. 1.
223 C. FAIRMAN, THE LAW OF MARTIAL RULE 20–22 (1930); A. DICEY, INTRODUCTION TO
THE STUDY OF THE LAW OF THE CONSTITUTION 283, 290 (5th ed. 1923).
224 Id. at 539–44.
225 48 U.S. (7 How.) 1 (1849). See also Martin v. Mott, 25 U.S. (12 Wheat.) 19,
32–33 (1827).
226 48 U.S. (7 How.) at 45.
227 67 U.S. (2 Bl.) 635 (1863).
228 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
ART. II—EXECUTIVE DEPARTMENT 507
“spies” and “abettors of the enemy.” The salient passage of the Court’s
opinion bearing on this point is the following: “If, in foreign inva-
sion or civil war, the courts are actually closed, and it is impossible
to administer criminal justice according to law, then, on the the-
ater of active military operations, 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 contin-
ued after the courts are reinstated, it is a gross usurpation of power.
Martial rule can never exist where the courts are open, and in proper
and unobstructed exercise of their jurisdiction. It is also confined
to the locality of actual war.” 229 Four Justices, speaking by Chief
Justice Chase, while holding Milligan’s trial to have been void be-
cause it violated the Act of March 3, 1863, governing the custody
and trial of persons who had been deprived of the habeas corpus
privilege, declared their belief that Congress could have authorized
Milligan’s trial. The Chief Justice wrote: “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 pros-
ecution of war with vigor and success, except such as interferes with
the command of the forces and the conduct of campaigns. That power
and duty belong to the President as commander-in-chief. Both these
powers are derived from the Constitution, but neither is defined by
that instrument. Their extent must be determined by their nature,
and by the principles of our institutions. . . .”
“We by no means assert that Congress can establish and apply
the laws of war where no war has been declared or exists.”
“Where peace exists the laws of peace must prevail. What we
do maintain is, that when the nation is involved in war, and some
portions of the country are invaded, and all are exposed to inva-
sion, it is within the power of Congress to determine in what states
or districts such great and imminent public danger exists as justi-
fies the authorization of military tribunals for the trial of crimes
and offences against the discipline or security of the army or against
the public safety.” 230 In short, only Congress can authorize the sub-
stitution of military tribunals for civil tribunals for the trial of of-
fenses; and Congress can do so only in wartime.
Early in the 20th century, however, the Court appeared to re-
treat from its stand in Milligan insofar as it held in Moyer v.
Peabody 231 that “the Governor’s declaration that a state of insurrec-
tion existed is conclusive of that fact. . . . [T]he plaintiff ’s position
is that he has been deprived of his liberty without due process of
law. But it is familiar that what is due process of law depends on
circumstances. . . . So long as such arrests are made in good faith
and in honest belief that they are needed in order to head the in-
surrection off, the Governor is the final judge and cannot be sub-
jected to an action after he is out of office on the ground that he
had not reasonable ground for his belief.” 232 The “good faith” test
of Moyer, however, was superseded by the “direct relation” test of
Sterling v. Constantin,233 where the Court made it very clear that
“[i]t does not follow . . . that every sort of action the Governor may
take, no matter how justified by the exigency or subversive of pri-
vate right and the jurisdiction of the courts, otherwise available, is
conclusively supported by mere executive fiat. . . . What are the al-
lowable limits of military discretion, and whether or not they have
been overstepped in a particular case, are judicial questions.” 234
Martial Law in Hawaii.—The question of the constitutional
status of martial law was raised again in World War II by the proc-
lamation of Governor Poindexter of Hawaii, on December 7, 1941,
suspending the writ of habeas corpus and conferring on the local
commanding General of the Army all his own powers as governor
and also “all of the powers normally exercised by the judicial offi-
cers . . . of this territory . . . during the present emergency and
until the danger of invasion is removed.” Two days later the Gover-
nor’s action was approved by President Roosevelt. The regime which
the proclamation set up continued with certain abatements until
October 24, 1944.
occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (1935); Hearon
v. Calus, 178 S.C. 381, 183 S.E. 13 (1935); and Joyner v. Browning, 30 F. Supp. 512
(W.D. Tenn. 1939).
ART. II—EXECUTIVE DEPARTMENT 509
selves 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 Hague Convention and the law of war.”). See also Colepaugh v.
Looney, 235 F.2d 429, 432 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) (“[T]he
petitioner’s citizenship in the United States does not . . . confer upon him any con-
stitutional rights not accorded any other belligerent under the laws of war.”).
244 In re Yamashita, 327 U.S. 1 (1946).
245 327 U.S. at 81.
246 See Gross, The Criminality of Aggressive War, 41 AM. POL. SCI. REV. 205 (1947).
247 Pub. L. 107–40, 115 Stat. 224 (2001).
512 ART. II—EXECUTIVE DEPARTMENT
248 542 U.S. 507 (2004). There was no opinion of the Court. Justice O’Connor,
joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, avoided rul-
ing on the Executive Branch argument that such detentions could be authorized by
its Article II powers alone, and relied instead on the “Authorization for Use of Mili-
tary Force” passed by Congress. Justice Thomas also found that the Executive Branch
had the power to detain the petitioner, although his dissenting opinion found that
such detentions were authorized by Article II. Justice Souter, joined by Justice Ginsberg,
rejected the argument that the Congress had authorized such detentions, while Jus-
tice Scalia, joined with Justice Stevens, denied that such congressional authoriza-
tion was possible without a suspension of the writ of habeas corpus.
249 At a minimum, the petitioner must be given notice of the asserted factual
basis for holding him, must be given a fair chance to rebut that evidence before a
neutral decisionmaker, and must be allowed to consult an attorney. 542 U.S. at 533,
539.
250 542 U.S. 466 (2004).
251 Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).
252 The petitioners were Australians and Kuwaitis.
253 Rasul v. Bush, 542 U.S. at 467.
254 The Court found that 28 U.S.C. § 2241, which had previously been con-
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.” In Boumediene, the government argued only that the
Suspension Clause did not apply to the detainees; it did not argue that Congress
had acted to suspend habeas.
258 “[G]iven the unique status of Guantanamo Bay and the particular dangers
of terrorism in the modern age, the common-law courts simply may not have con-
fronted cases with close parallels to this one. We decline, therefore, to infer too much,
one way or the other, from the lack of historical evidence on this point.” 553 U.S. at
752.
259 553 U.S. at 764. “[Q]uestions of extraterritoriality turn on objective factors
PRESIDENTIAL ADVISERS
The Cabinet
The authority in Article II, § 2, cl. 1 to require the written opin-
ion of the heads of executive departments is the meager residue
from a persistent effort in the Federal Convention to impose a coun-
1903, S. Doc. No. 209, 57th Congress, 2d sess. (1903); Pollitt, Presidential Use of
Troops to Enforce Federal Laws: A Brief History, 36 N.C. L. REV. 117 (1958). United
States Marshals were also used on approximately 30 occasions. United States Com-
mission on Civil Rights, Law Enforcement: A Report on Equal Protection in the South
(Washington: 1965), 155–159.
261 10 U.S.C. §§ 331–334, 3500, 8500, deriving from laws of 1795, 1 Stat. 424;
governors.
263 Proc. No. 3204, 22 Fed. Reg. 7628 (1957); E.O. 10730, 22 Fed. Reg. 7628.
See 41 Ops. Atty. Gen. 313 (1957); see also, Cooper v. Aaron, 358 U.S. 1 (1958); Aaron
v. McKinley, 173 F. Supp. 944 (E.D. Ark. 1959), aff’d sub nom Faubus v. Aaron, 361
U.S. 197 (1959); Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), cert. denied,
358 U.S. 829 (1958).
264 Proc. No. 3497, 27 Fed. Reg. 9681 (1962); E.O. 11053, 27 Fed. Reg. 9693 (1962).
Proc. No. 3554, 28 Fed. Reg. 9861; E.O. 11118, 28 Fed. Reg. 9863 (1963). See Ala-
bama v. United States, 373 U.S. 545 (1963).
266 Proc. No. 3645, 30 Fed. Reg. 3739 (1965); E.O. 11207, 30 Fed. Reg. 2743 (1965).
ed. 1937); 2 id. at 285, 328, 335–37, 367, 537–42. Debate on the issue in the Conven-
tion is reviewed in C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 82, 83, 84,
85, 109, 126 (1923).
268 E. Corwin, supra at 82.
269 L. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY ch. 4 (1948).
270 E. Corwin, supra at 19, 61, 79–85, 211, 295–99, 312, 320–23, 490–93.
516 ART. II—EXECUTIVE DEPARTMENT
Walker, 161 U.S. 591 (1896), the Court had said: “It is almost a necessary corollary
of the above propositions that, if the witness has already received a pardon, he can-
not longer set up his privilege, since he stands with respect to such offence as if it
had never been committed.” Id. at 599, citing British cases.
275 Biddle v. Perovich, 274 U.S. 480, 486 (1927).
276 Cf. W. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 73 (1941).
ART. II—EXECUTIVE DEPARTMENT 517
(1976), the Court upheld the presidential commutation of a death sentence to impris-
onment for life with no possibility of parole, the foreclosure of parole being contrary
to the scheme of the Code of Military Justice. “The conclusion is inescapable that
the pardoning power was intended to include the power to commute sentences on
conditions which do not in themselves offend the Constitution, but which are not
specifically provided for by statute.” Id. at 264.
278 23 Ops. Atty. Gen. 360, 363 (1901); Illinois Cent. R.R. v. Bosworth, 133 U.S.
92 (1890).
279 Ex parte William Wells , 59 U.S. (18 How.) 307 (1856). For the contrary view,
see some early opinions of the Attorney General, 1 Ops. Atty. Gen. 341 (1820); 2
Ops. Atty. Gen. 275 (1829); 5 Ops. Atty. Gen. 687 (1795); cf. 4 Ops. Atty. Gen. 458
(1845); United States v. Wilson, 32 U.S. (7 Pet.) 150, 161 (1833).
280 Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, how-
ever, within the same term of court, by shortening the term of imprisonment, al-
though defendant had already been committed, is a judicial act and no infringement
of the pardoning power. United States v. Benz, 282 U.S. 304 (1931).
281 See 1 J. Richardson, supra, at 173, 293; 2 id. at 543; 7 id. at 3414, 3508; 8
1 Ops. Atty. Gen. 342 (1820). That is, the pardon may not be in anticipation of the
commission of the offense. “A pardon may be exercised at any time after its commis-
518 ART. II—EXECUTIVE DEPARTMENT
sion, either before legal proceedings are taken, or during their pendency, or after
conviction and judgment.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867), as
indeed President Ford’s pardon of former President Nixon preceded institution of
any action. On the Nixon pardon controversy, see Pardon of Richard M. Nixon and
Related Matters: Hearings Before the House Judiciary Subcommittee on Criminal Jus-
tice, 93d Congress, 2d Sess. (1974).
284 Ex parte Grossman, 267 U.S. 87, 113 (1925).
285 267 U.S. at 110–11.
ART. II—EXECUTIVE DEPARTMENT 519
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
a sale of the offender’s property has been had, the purchaser will
hold the property notwithstanding the subsequent pardon. And if
the proceeds of the sale have been paid to a party to whom the law
has assigned them, they cannot be subsequently reached and recov-
ered by the offender. The rights of the parties have become vested,
and are as complete as if they were acquired in any other legal way.
So, also, if the proceeds have been paid into the treasury, the right
to them has so far become vested in the United States that they
can only be secured to the former owner of the property through
an act of Congress. Moneys once in the treasury can only be with-
drawn by an appropriation by law.” 295
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
298 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 183 (rev. ed.
1937).
299 Id. at 538–39.
300 No. 64 (J. Cooke ed., 1961), 435–436.
301 31 ANNALS OF CONGRESS 106 (1818).
302 Washington sought to use the Senate as a council, but the effort proved fu-
tile, principally because the Senate balked. For the details see E. Corwin, supra, at
207–217.
303 United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936).
ART. II—EXECUTIVE DEPARTMENT 523
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
283–84 (1919).
307 For instance, see S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 53 (2d
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
308 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 313–14 (1829). See THE FEDERALIST No.
Ct. 1346, 1357, 1358–59 (2008)). For treaty provisions operative as “law of the land”
(self-executing), see S. Crandall, supra, at 36–42, 49–62, 151, 153–163, 179, 238–
239, 286, 321, 338, 345–346. For treaty provisions of an “executory” character, see
id. at 162–63, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, supra, at
41–68; Restatement, Foreign Relations, supra, §§ 111–115.
310 Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006), quoting Marbury v.
Madison, 5 U.S. (1 Cr.) 137, 177 (1803). In Sanchez-Llamas, two foreign nationals
were arrested in the United States, and, in violation of Article 36 of the Vienna
Convention on Consular Relations, their nations’ consuls were not notified that they
had been detained by authorities in a foreign country (the U.S.). The foreign nation-
als were convicted in Oregon and Virginia state courts, respectively, and cited the
violations of Article 36 in challenging their convictions. The Court did not decide
whether Article 36 grants rights that may be invoked by individuals in a judicial
proceeding (four justices would have held that it did grant such rights). The reason
that the Court did not decide whether Article 36 grants rights to defendants was
that it held, by a 6-to-3 vote, that, even if Article 36 does grant rights, the defen-
dants in the two cases before it were not entitled to relief on their claims. It found,
specifically, that “suppression of evidence is [not] a proper remedy for a violation of
Article 36,” and that “an Article 36 claim may be deemed forfeited under state pro-
cedural rules because a defendant failed to raise the claim at trial.” Id. at 342.
311 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Kolovrat v. Oregon, 366
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
the parties and in respect of that particular case.” 312 ICJ decisions
“are therefore entitled only to the ‘respectful consideration’ due an
interpretation of an international agreement by an international
court.” 313
Even when an ICJ decision has binding force as between the
governments of two nations, it is not necessarily enforceable by the
individuals affected. If, for example, the ICJ finds that the United
States violated a particular defendant’s rights under international
law, and such a decision “constitutes an international law obliga-
tion on the part of the United States,” it does not necessarily “con-
stitute binding federal law enforceable in United States courts. . . .
[W]hile treaties may comprise international commitments . . . they
are not domestic law unless Congress has either enacted implement-
ing statutes or the treaty itself conveys an intention that it be self-
executing and is ratified on these terms.” 314 A memorandum from
the President of the United States directing that the United States
would “discharge its international obligations” under an ICJ deci-
sion interpreting a non-self-executing treaty, “by having State courts
give effect to the decision,” is not sufficient to make the decision
binding on state courts, unless the President’s action is authorized
by Congress.315
312 Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the Interna-
tional Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added
by the Court).
313 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523
internal quotation marks omitted). As in the case of the foreign nationals in Sanchez-
Llamas, Medellin’s nation’s consul had not been notified that he had been detained
in the United States. Unlike the foreign nationals in Sanchez-Llamas, however, Medel-
lin was named in an ICJ decision that found a violation of Article 36 of the Vienna
Convention.
315 Medellin v. Texas, 128 S. Ct. 1346, 1353 (2008). “[T]he non-self-executing char-
acter of a treaty constrains the President’s ability to comply with treaty commit-
ments by unilaterally making the treaty binding on domestic courts.” Id. at 1371.
The majority opinion in Medellin was written by Chief Justice Roberts. Justice Ste-
vens, concurring, noted that, even though the ICJ decision “is not ‘the supreme Law
of the Land,’ U.S. Const., Art VI, cl. 2,” it constitutes an international law obliga-
tion not only on the part of the United States, but on the part of the State of Texas.
Id. at 1374. This, of course, does not make it enforceable against Texas, but Justice
Stevens found that “[t]he cost to Texas of complying with [the ICJ decision] would
be minimal.” Id. at 1375. Justice Breyer, joined by Justices Souter and Ginsburg,
dissented, writing that “the consent of the United States to the ICJ’s jurisdiction[ ]
bind[s] the courts no less than would ‘an act of the [federal] legislature.’ ” Id. at 1376.
The dissent believed that, to find treaties non-self-executing “can threaten the appli-
cation of provisions in many existing commercial and other treaties and make it
more difficult to negotiate new ones.” Id. at 1381–82. Moreover, Justice Breyer wrote,
the Court’s decision “place[s] the fate of an international promise made by the United
States in the hands of a single State. . . . And that is precisely the situation that
the Framers sought to prevent by enacting the Supremacy Clause.” Id. at 1384. On
526 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
tional Acts, Protocols and Agreements Between the United States of America and Other
Powers (1776–1909), 586 S. DOC. NO. 357, 61st Congress, 2d Sess. (W. Malloy ed.,
1910).
318 Id. at 588.
319 R. MORRIS, JOHN JAY, THE NATION, AND THE COURT 73–84 (1967).
320 S. Crandall, supra, at 36–40.
321 The Convention at first leaned toward giving Congress a negative over state
laws which were contrary to federal statutes or treaties, 1 M. Farrand, supra, at 47,
54, and then adopted the Paterson Plan which made treaties the supreme law of
the land, binding on state judges, and authorized the Executive to use force to com-
pel observance when such treaties were resisted. Id. at 245, 316, 2 id. at 27–29. In
the draft reported by the Committee on Detail, the language thus adopted was close
to the present Supremacy Clause; the draft omitted the authorization of force from
the clause, id. at 183, but in another clause the legislative branch was authorized to
call out the militia to, inter alia, “enforce treaties”. Id. at 182. The two words were
struck subsequently “as being superfluous” in view of the Supremacy Clause. Id. at
389–90.
ART. II—EXECUTIVE DEPARTMENT 527
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
489–90 (1880).
327 100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197–98 (1961), the
International Monetary Fund (Bretton Woods) Agreement of 1945, to which the United
States and Yugoslavia were parties, and an Agreement of 1948 between these two
nations, coupled with continued American observance of an 1881 treaty granting re-
ciprocal rights of inheritance to Yugoslavian and American nations, were held to pre-
clude Oregon from denying Yugoslavian aliens their treaty rights because of a fear
that Yugoslavian currency laws implementing such Agreements prevented American
nationals from withdrawing the proceeds from the sale of property inherited in the
latter country.
328 See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S.
433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S. 187
528 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
410 (1948), in which a California statute prohibiting the issuance of fishing licenses
to persons ineligible to citizenship was disallowed, both on the basis of the Four-
teenth Amendment and on the ground that the statute invaded a field of power re-
served to the National Government, namely, the determination of the conditions on
which aliens may be admitted, naturalized, and permitted to reside in the United
States. For the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was
relied upon.
331 This occurred in the much advertised case of Sei Fujii v. State, 38 Cal.2d
718, 242 P.2d 617 (1952). A lower California court had held that the legislation in-
volved was void under the United Nations Charter, but the California Supreme Court
was unanimous in rejecting this view. The Charter provisions invoked in this connec-
tion [Arts. 1, 55 and 56], said Chief Justice Gibson, “[w]e are satisfied . . . were not
intended to supersede domestic legislation.” That is, the Charter provisions were
not self-executing. RESTATEMENT, FOREIGN RELATIONS, supra, § 701, Reporters’ Note 5,
pp. 155–56.
332 Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S.
187 (1961).
333 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 392–394 (rev.
ed. 1937).
ART. II—EXECUTIVE DEPARTMENT 529
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
are not self-executing they can only be enforced pursuant to legislation to carry them
into effect . . . . If the treaty contains stipulations which are self-executing that is,
require no legislation to make them operative, to that extent they have the force
and effect of a legislative enactment.” See S. Crandall, supra, chs. 11–15.
337 See infra, “When Is a Treaty Self-Executing.”
338 8 Stat. 116 (1794).
339 The story is told in numerous sources, including S. Crandall, supra, at 165–
171. For Washington’s message refusing to submit papers relating to the treaty to
the House, see J. Richardson, supra, at 123.
340 Debate in the House ran for more than a month. It was excerpted from the
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
offered by Madison stating that it did not claim any agency in the
treaty-making process, “but that when a treaty stipulates regula-
tions on any of the subjects submitted by the Constitution to the
power of Congress, it must depend for its execution as to such stipu-
lations on a law or laws to be passed by Congress, and it is the
constitutional right and duty of the House of Representatives in all
such cases to deliberate on the expediency or inexpediency of carry-
ing such treaty into effect, and to determine and act thereon as in
their judgment may be most conducive to the public good.” 341 This
early precedent with regard to appropriations has apparently been
uniformly adhered to.342
Similarly, with regard to treaties that modify commercial tariff
arrangements, the practice has been that the House always in-
sisted on and the Senate acquiesced in legislation to carry into ef-
fect the provisions of such treaties.343 The earliest congressional dis-
pute came over an 1815 Convention with Great Britain,344 which
provided for reciprocal reduction of duties. President Madison there-
upon recommended to Congress such legislation as the convention
might require for effectuation. The Senate and some members of
the House believed that no implementing legislation was necessary
because of a statute that already permitted the President to reduce
duties on goods of nations that did not discriminate against United
States goods; the House majority felt otherwise and compromise leg-
islation was finally enacted acceptable to both points of view.345 But
subsequent cases have seen legislation enacted; 346 the Senate once
refused to ratify a treaty that purported to reduce statutorily deter-
mined duties,347 and congressional enactment of authority for the
President to negotiate reciprocal trade agreements all seem to point
to the necessity of some form of congressional implementation.
What other treaty provisions need congressional implementa-
tion is debatable. A 1907 memorandum approved by the Secretary
of State stated that the limitations on the treaty power that neces-
sitate legislative implementation may “be found in the provisions
months in 1793–1794, the House of Representatives from 1795–1801, and as Secre-
tary of the Treasury from 1801–1814.
341 5 ANNALS OF CONGRESS 771, 782 (1796). The House adopted a similar resolu-
tion in 1871. CONG. GLOBE, 42d Congress, 1st sess. (1871), 835.
342 S. Crandall, supra, at 171–182; 1 W. WILLOUGHBY, THE CONSTITUTIONAL LAW OF
THE UNITED STATES 549–552 (2d ed. 1929); but see RESTATEMENT, FOREIGN RELATIONS, su-
pra, § 111, Reporters’ Note 7, p. 57. See also H. REP. 4177, 49th Congress, 2d Sess.
(1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).
343 S. Crandall, supra, at 183–199.
344 8 Stat. 228.
345 3 Stat. 255 (1816). See S. Crandall, supra, at 184–188.
346 S. Crandall, supra, at 188–195; 1 W. Willoughby, supra, at 555–560.
347 S. Crandall, supra, at 189–190.
ART. II—EXECUTIVE DEPARTMENT 531
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
348 Anderson, The Extent and Limitations of the Treaty-Making Power, 1 AM. J.
report that some treaties might need legislative implementation, which Congress was
bound to provide, but did not indicate what in their opinion made some treaties
self-executing and others not. 29 ANNALS OF CONGRESS 160 (1816). The House confer-
ees observed that they thought, and that in their opinion the Senate conferees agreed,
that legislative implementation was necessary to carry into effect all treaties which
contained “stipulations requiring appropriations, or which might bind the nation to
lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or
to cede territory. . . .” Id. at 1019. Much the same language was included in a later
report, H. REP. NO. 37, 40th Congress, 2d Sess. (1868). Controversy with respect to
the sufficiency of Senate ratification of the Panama Canal treaties to dispose of United
States property therein to Panama was extensive. A divided Court of Appeals for
the District of Columbia reached the question and held that Senate approval of the
treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 (D.C. Cir.), cert. de-
nied, 436 U.S. 907 (1978).
350 T. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 175 (3d ed. 1898); Q. WRIGHT,
act of Congress was first asserted in an opinion of the Attorney General in 1854. 6
Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially in a lengthy
and cogently argued opinion of Justice Curtis, speaking for a United States circuit
court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 1855). See
also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871); United States v. Forty-
Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez, 130 U.S.
238 (1889); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Rob-
532 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
ertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721
(1893). “Congress by legislation, and so far as the people and authorities of the United
States are concerned, could abrogate a treaty made between this country and an-
other country which had been negotiated by the President and approved by the Sen-
ate.” La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart
v. Felps, 73 U.S. (6 Wall.) 160, 165–66 (1868), which states in dictum that “Con-
gress is bound to regard the public treaties, and it had no power . . . to nullify [In-
dian] titles confirmed many years before by the authorized agents of the govern-
ment.”
353 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314–15 (1829). In a later case, it was
determined in a different situation that by its terms the treaty in issue, which had
been assumed to be executory in the earlier case, was self-executing. United States
v. Percheman, 32 U.S. (7 Pet.) 51 (1833).
354 E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220–21 (1902); The Chero-
kee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309,
320–21 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888).
355 1 W. Willoughby, supra, at 555.
356 Other cases, which are cited in some sources, appear distinguishable. United
States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801), applied a treaty entered into
subsequent to enactment of a statute abrogating all treaties then in effect between
the United States and France, so that it is inaccurate to refer to the treaty as super-
seding a prior statute. In United States v. Forty-Three Gallons of Whiskey, 93 U.S.
188 (1876), the treaty with an Indian tribe in which the tribe ceded certain terri-
tory, later included in a state, provided that a federal law restricting the sale of
liquor on the reservation would continue in effect in the territory ceded; the Court
found the stipulation an appropriate subject for settlement by treaty and the provi-
sion binding. See also Charlton v. Kelly, 229 U.S. 447 (1913).
357 288 U.S. 102 (1933).
ART. II—EXECUTIVE DEPARTMENT 533
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc).
534 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
given. The supplementary legislation, later reenacted at Rev. Stat. 4083–4091, was
ART. II—EXECUTIVE DEPARTMENT 535
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Justice Story in his opinion for the court in Prigg v. Pennsylvania, 41 U.S. (16 Pet.)
539 (1842): “Treaties made between the United States and foreign powers, often con-
tain special provisions, which do not execute themselves, but require the interposi-
tion of Congress to carry them into effect, and Congress has constantly, in such cases,
legislated on the subject; yet, although the power is given to the executive, with the
consent of the senate, to make treaties, the power is nowhere in positive terms con-
ferred upon Congress to make laws to carry the stipulations of treaties into effect.
It has been supposed to result from the duty of the national government to fulfill all
the obligations of treaties.” Id. at 619. Story was here in quest of arguments to prove
that Congress had power to enact a fugitive slave law, which he based on its power
“to carry into effect rights expressly given and duties expressly enjoined” by the Con-
stitution. Id. at 618–19. However, the treaty-making power is neither a right nor a
duty, but one of the powers “vested by this Constitution in the Government of the
United States.” Art. I, § 8, cl. 18.
372 252 U.S. 416 (1920).
373 39 Stat. 1702 (1916).
374 40 Stat. 755 (1918).
536 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
by the Tenth Amendment and that the statute infringed on this res-
ervation, pointing to lower court decisions voiding an earlier act not
based on a treaty.375 Noting that treaties “are declared the su-
preme law of the land,” Justice Holmes for the Court said: “If the
treaty is valid there can be no dispute about the validity of the stat-
ute under Article I, § 8, as a necessary and proper means to ex-
ecute the powers of the Government.” 376 “It is obvious,” he contin-
ued, “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 govern-
ment’ is not to be found.” 377 Because the treaty and thus the stat-
ute dealt with a matter of national and international concern, the
treaty was proper and the statute was “necessary and proper” to
effectuate the treaty.
Constitutional Limitations on the Treaty Power
A question growing out of the discussion above is whether the
treaty power is bounded by constitutional limitations. By the Su-
premacy Clause, both statutes and treaties “are declared . . . to be
the supreme law of the land, and no superior efficacy is given to
either over the other.” 378 As statutes may be held void because they
contravene the Constitution, it should follow that treaties may be
held void, the Constitution being superior to both. And indeed the
Court has numerous times so stated.379 It does not appear that the
Court has ever held a treaty unconstitutional,380 although there are
cases in which the decision seemed to be compelled by constitu-
375 United States v. Shauver, 214 F. 154 (E.D. Ark. 1914); United States v. Mc-
Cullagh, 221 F. 288 (D. Kan. 1915). The Court did not purport to decide whether
those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920).
Today, there seems no doubt that Congress’s power under the commerce clause would
be deemed more than adequate, but at that time a majority of the Court had a very
restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251
(1918).
376 Missouri v. Holland, 252 U.S. 416, 432 (1920).
377 252 U.S. at 433. The internal quotation is from Andrews v. Andrews, 188
justice have no right to annul or disregard any of its provisions, unless they violate
the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656
(1853). “It need hardly be said that a treaty cannot change the Constitution or be
held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S.
(11 Wall.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United
States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265
U.S. 332, 341 (1924).
380 1 W. Willoughby, supra, at 561; L. Henkin, supra, at 137. In Power Author-
ity of New York v. FPC, 247 F.2d 538 (2d Cir. 1957), a reservation attached by the
ART. II—EXECUTIVE DEPARTMENT 537
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
sion into reserved state powers through treaties as well as executive agreements.
The key provision read: “A treaty shall become effective as internal law in the United
States only through legislation which would be valid in the absence of treaty.” S.J.
Res. 43, 82d Congress, 1st Sess. (1953), § 2. See also S.J. Res. 1, 84th Congress, 1st
Sess. (1955), § 2. Extensive hearings developed the issues thoroughly but not al-
ways clearly. Hearings on S.J. Res. 130: Before a Subcommittee of the Senate Judi-
ciary Committee, 82d Congress, 2d Sess. (1952). Hearings on S.J. Res. 1 & 43: Be-
fore a Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st Sess. (1953).
385 354 U.S. 1 (1957) (plurality opinion).
538 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
386 354 U.S. at 16–17. For discussions of the issue, see Restatement, Foreign
Relations, § 302; Nowak & Rotunda, A Comment on the Creation and Resolution of
a “Non-Problem”: Dames & Moore v. Regan, the Foreign Affairs Power, and the Role
of the Courts, 29 UCLA L. REV. 1129 (1982); L. Henkin, supra, at 137–156.
387 Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Fairfax’s Devisee v. Hunter’s Les-
see, 11 U.S. (7 Cr.) 603 (1813); Chirac v. Chirac, 15 U.S. (2 Wheat.) 259 (1817);
Hauenstein v. Lynham, 100 U.S. 483 (1880). Jefferson, in his list of exceptions to
the treaty power, thought the Constitution “must have meant to except out of these
the rights reserved to the States, for surely the President and Senate cannot do by
treaty what the whole Government is interdicted from doing in any way.” Jeffer-
son’s Manual of Parliamentary Practice, § 594, reprinted in THE RULES AND MANUAL OF
THE HOUSE OF REPRESENTATIVES, H. Doc. 102–405, 102d Congress, 2d Sess. (1993), 298–
299. But this view has always been the minority one. Q. Wright, supra, at 92 n.97.
The nearest the Court ever came to supporting this argument appears to be Frederickson
v. Louisiana, 64 U.S. (23 How.) 445, 448 (1860).
388 Missouri v. Holland, 252 U.S. 416 (1920).
389 252 U.S. at 433–34.
ART. II—EXECUTIVE DEPARTMENT 539
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
(17 Wall.) 211, 243 (1872). Jefferson listed as an exception from the treaty power
“those subjects of legislation in which [the Constitution] gave a participation to the
House of Representatives,” although he admitted “that it would leave very little mat-
ter for the treaty power to work on.” Jefferson’s Manual, supra, at 299.
393 Q. Wright, supra, at 101–103. See also, L. Henkin, supra, at 148–151.
394 Cf. Reid v. Covert, 354 U.S. 1 (1957). See also Geofroy v. Riggs, 133 U.S.
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
[the treaty power] should extend to all those objects which in the intercourse of na-
tions had usually been regarded as the proper subjects of negotiation and treaty. . . .”
Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872). With the exceptions noted, “it is
not perceived that there is any limit to the questions which can be adjusted touch-
ing any matter which is properly the subject of negotiation with a foreign country.”
Geofroy v. Riggs, 133 U.S. 258, 267 (1890). “The treatymaking power of the United
States . . . does extend to all proper subjects of negotiation between our govern-
ment and other nations.” Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).
396 Cf. L. Henkin, supra, at 151–56.
397 Other reservations have been expressed. One contention has been that the
territory of a state may not be ceded without such state’s consent. Geofroy v. Riggs,
133 U.S. 258, 267 (1890), citing Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 541
(1885). Cf. the Webster-Ashburton Treaty, Article V, 8 Stat. 572, 575. But see S. Crandall,
supra, at 220–229; 1 W. Willoughby, supra, at 572–576.
A further contention is that, although foreign territory may be annexed to the
United States by the treaty power, it may not be incorporated with the United States
except with the consent of Congress. Downes v. Bidwell, 182 U.S. 244, 310–344 (1901)
(four Justices dissenting). This argument appears to be a variation of the one in
regard to the correct procedure to give domestic effect to treaties.
Another argument grew out the XII Hague Convention of 1907, proposing an
International Prize Court with appellate jurisdiction from national courts in prize
cases. President Taft objected that no treaty could transfer to a tribunal not known
to the Constitution any part of the judicial power of the United States, and a com-
promise was arranged. Q. Wright, supra, at 117–118; H. REP. NO. 1569, 68th Con-
gress, 2d Sess. (1925).
398 Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936);
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
President Carter’s termination of the Mutual Defense Treaty of 1954 with the Re-
public of China (Taiwan). See, e.g., the various views argued in Treaty Termination:
Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess.
(1979). On the issue generally, see Restatement, Foreign Relations, § 339; CRS Study,
supra, 158–167; L. Henkin, supra, at 167–171; Bestor, Respective Roles of Senate
and President in the Making and Abrogation of Treaties: The Original Intent of the
Framers of the Constitution Historically Examined, 55 WASH. L. REV. 1 (1979); Berger,
The President’s Unilateral Termination of the Taiwan Treaty, 75 NW. U. L. REV. 577
(1980).
542 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
ings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979),
160–162 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State),
and in Taiwan: Hearings Before the Senate Committee on Foreign Relations, 96th
Congress, 1st Sess. (1979), 300 (memorandum of Senator Goldwater).
403 S. Crandall, supra, at 458–459.
404 Id. at 459–62; Q. Wright, supra, at 258.
405 38 Stat. 1164 (1915).
406 S. Crandall, supra, at 460. See Van der Weyde v. Ocean Transp. Co., 297
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
or directed termination by notice, but they have resulted in compliance. E.g., 65 Stat.
72 (1951) (directing termination of most-favored-nation provisions with certain Com-
munist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renuncia-
tion of treaty rights of extraterritoriality in Morroco). The most recent example ap-
pears to be § 313 of the Anti-Apartheid Act of 1986, which required the Secretary of
State to terminate immediately, in accordance with its terms, the tax treaty and
protocol with South Africa that had been concluded on December 13, 1946. Pub. L.
99–440, 100 Stat. 3515 (1986), 22 U.S.C. § 5063.
409 5 J. Richardson, supra, at 279, 334.
410 S. REP. NO. 97, 34th Congress, 1st Sess. (1856), 6–7. The other instance was
President Wilson’s request, which the Senate endorsed, for termination of the Inter-
national Sanitary Convention of 1903. See 61 CONG. REC. 1793–1794 (1921). See CRS
Study, supra at 161–62.
411 Compare, e.g., Treaty Termination: Hearings Before the Senate Committee on
Foreign Relations, 96th Congress, 1st Sess. (1979), 156–191 (memorandum of Hon.
Herbert Hansell, Legal Advisor, Department of State), with Taiwan: Hearings Be-
fore the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 300–
307 (memorandum of Senator Goldwater). See CRS Study, supra at 164–66.
412 13 Stat. 568 (1865).
413 The treaty, see 11 C. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF
THE UNITED STATES OF AMERICA 894 (1970), was probably at odds with the Tariff Act of
1897. 30 Stat. 151.
544 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
414 Compare the views expressed in the Hansell and Goldwater memoranda, su-
pra. For expressions of views preceding the immediate controversy, see, e.g., Riesenfeld,
The Power of Congress and the President in International Relations, 25 CALIF. L. REV.
643, 658–665 (1937); Nelson, The Termination of Treaties and Executive Agreements
by the United States, 42 MINN. L. REV. 879 (1958).
415 Note that the President terminated the treaty in the face of an expression of
the sense of Congress that prior consultation between President and Congress should
occur. 92 Stat. 730, 746 (1978).
416 Originally, S. Res. 15 had disapproved presidential action alone, but it was
remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because
of the political question doctrine, id. at 1002, but one other Justice in the majority
and one in dissent rejected this analysis. Id. at 998 (Justice Powell), 1006 (Justice
Brennan). The remaining three Justices were silent on the doctrine.
418 Cf. Baker v. Carr, 369 U.S. 186, 211–13, 217 (1962).
ART. II—EXECUTIVE DEPARTMENT 545
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
ion in Charlton v. Kelly 419 is pertinent: “If the attitude of Italy was,
as contended, a violation of the obligation of the treaty, which, in
international law, would have justified the United States in denounc-
ing the treaty as no longer obligatory, it did not automatically have
that effect. If the United States elected not to declare its abroga-
tion, or come to a rupture, the treaty would remain in force. It was
only voidable, not void; and if the United States should prefer, it
might waive any breach which in its judgment had occurred and
conform to its own obligation as if there had been no such breach. . . .
That the political branch of the government recognizes the treaty
obligation as still existing is evidenced by its action in this case. . . .
The executive department having thus elected to waive any right
to free itself from the obligation to deliver up its own citizens, it is
the plain duty of this court to recognize the obligation to surrender
the appellant as one imposed by the treaty as the supreme law of
the land as affording authority for the warrant of extradition.” 420
So also it is primarily for the political departments to determine
whether certain provisions of a treaty have survived a war in which
the other contracting state ceased to exist as a member of the inter-
national community.421
Status of a Treaty a Political Question.—It is clear that many
questions which arise concerning a treaty are of a political nature
and will not be decided by the courts. In the words of Justice Cur-
tis in Taylor v. Morton: 422 It is not “a judicial question, whether a
treaty with a foreign sovereign has been violated by him; whether
the consideration of a particular stipulation in a treaty, has been
voluntarily withdrawn by one party, so that it is no longer obliga-
tory on the other; whether the views and acts of a foreign sover-
eign, manifested through his representative have given just occa-
sion to the political departments of our government to withhold the
execution of a promise contained in a treaty, or to act in direct con-
travention of such promise. . . . These powers have not been con-
fided by the people to the judiciary, which has no suitable means to
exercise them; but to the executive and the legislative departments
of our government. They belong to diplomacy and legislation, and
not to the administration of existing laws and it necessarily follows
that if they are denied to Congress and the Executive, in the exer-
cise of their legislative power, they can be found nowhere, in our
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Indian Treaties
In the early cases of Cherokee Nation v. Georgia,424 and Worces-
ter v. Georgia,425 the Court, speaking by Chief Justice Marshall, held,
first, that the Cherokee Nation was not a sovereign state within
the meaning of that clause of the Constitution that extends the ju-
dicial power of the United States to controversies “between a State
or the citizens thereof and foreign states, citizens or subjects.” Sec-
ond, it held: “The Constitution, by declaring treaties already made,
as well as those to be made, to be the supreme law of the land,
had adopted and sanctioned the previous treaties with the Indian
nations, and consequently admits their rank among those powers
who are capable of making treaties. The words ‘treaty’ and ‘nation’
are words of our own language, selected in our diplomatic and leg-
islative proceedings, by ourselves, having each a definite and well
understood meaning. We have applied them to Indians, as we have
applied them to the other nations of the earth. They are applied to
all in the same sense.” 426
Later cases established that the power to make treaties with
the Indian tribes was coextensive with the power to make treaties
with foreign nations,427 that the states were incompetent to inter-
fere with rights created by such treaties,428 that as long as the United
States recognized the national character of a tribe, its members were
under the protection of treaties and of the laws of Congress and
their property immune from taxation by a state,429 that a stipula-
tion in an Indian treaty that laws forbidding the introduction, of
liquors into Indian territory was operative without legislation, and
binding on the courts although the territory was within an orga-
nized county of a state,430 and that an act of Congress contrary to
a prior Indian treaty repealed it.431
423 27 U.S. (2 Pet.) 253, 309 (1829). Baker v. Carr, 369 U.S. 186 (1962), quali-
fies this certainty considerably, and Goldwater v. Carter, 444 U.S. 996 (1979), pro-
longs the uncertainty. See L. Henkin, supra at 208–16; Restatement, Foreign Rela-
tions, § 326.
424 30 U.S. (5 Pet.) 1 (1831).
425 31 U.S. (6 Pet.) 515 (1832).
426 31 U.S. at 558.
427 Holden v. Joy, 84 U.S. (17 Wall.) 211, 242 (1872); United States v. Forty-
Three Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick v. United States, 208 U.S.
340, 355–56 (1908).
428 The New York Indians, 72 U.S. (5 Wall.) 761 (1867).
429 The Kansas Indians, 72 U.S. (5 Wall.) 737, 757 (1867).
430 United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876).
431 The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871). See also Ward v. Race
Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 U.S. 264, 270 (1898).
ART. II—EXECUTIVE DEPARTMENT 547
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
432 16 Stat. 566; Rev. Stat. § 2079, now contained in 25 U.S.C. § 71.
433 Ward v. Race Horse, 163 U.S. 504 (1896).
434 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
435 Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641 (1890).
436 The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871).
437 Choate v. Trapp, 224 U.S. 665, 677–78 (1912); Jones v. Meehan, 175 U.S. 1
(1899). See also Hodel v. Irving, 481 U.S. 704 (1987) (section of law providing for
escheat to tribe of fractionated interests in land representing less than 2% of a tract’s
total acreage violates Fifth Amendment’s taking clause by completely abrogating rights
of intestacy and devise).
548 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
and 3. Cf. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–72 (1840). And note the
discussion in Weinberger v. Rossi, 456 U.S. 25, 28–32 (1982).
439 CRS Study, xxxiv-xxxv, supra, 13–16. Not all such agreements, of course, are
tween 1938 and 1957, only 5.9 percent were based exclusively on the President’s
ART. II—EXECUTIVE DEPARTMENT 549
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
among the kinds of agreements which are classed under this single
heading.441
constitutional authority. McLaughlin, The Scope of the Treaty Power in the United
States—II, 43 MINN. L. REV. 651, 721 (1959). Another, somewhat overlapping study
found that in the period 1946–1972, 88.3% of executive agreements were based at
least in part on statutory authority; 6.2% were based on treaties, and 5.5% were
based solely on executive authority. International Agreements: An Analysis of Execu-
tive Regulations and Practices, Senate Committee on Foreign Relations, 95th Cong.,
1st Sess. (Comm. Print) (1977), 22 (prepared by CRS).
441 “[T]he distinction between so-called ‘executive agreements’ and ‘treaties’ is
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
76 Stat. 872, § 201, 19 U.S.C. § 1821; Trade Act of 1974, 88 Stat. 1982, as amended,
19 U.S.C. §§ 2111, 2115, 2131(b), 2435. Congress has, with respect to the authoriza-
tion to the President to negotiate multilateral trade agreements under the auspices
of GATT, constrained itself in considering implementing legislation, creating a “fast-
track” procedure under which legislation is brought up under a tight timetable and
without the possibility of amendment. 19 U.S.C. §§ 2191–2194.
453 143 U.S. 649 (1892).
454 143 U.S. at 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in
which the Court sustained a series of implementing actions by the President pursu-
ant to executive agreements with Iran in order to settle the hostage crisis. The Court
found that Congress had delegated to the President certain economic powers under-
lying the agreements and that his suspension of claims powers had been implicitly
ratified over time by Congress’s failure to set aside the asserted power. Also see
Weinberger v. Rossi, 456 U.S. 25, 29–30 n.6 (1982).
455 224 U.S. 583 (1912).
ART. II—EXECUTIVE DEPARTMENT 551
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
126 (1950).
ART. II—EXECUTIVE DEPARTMENT 553
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
priate Act or joint resolution, providing for the numbers and types
of armed forces, their degree of readiness and general location, and
the nature of facilities and assistance, including rights of passage,
to be made available to the Security Council on its call for the pur-
pose of maintaining international peace and security in accordance
with article 43 of said Charter. The President shall not be deemed
to require the authorization of the Congress to make available to
the Security Council on its call in order to take action under ar-
ticle 42 of said Charter and pursuant to such special agreement or
agreements the armed forces, facilities, or assistance provided for
therein: Provided, That nothing herein contained shall be con-
strued as an authorization to the President by the Congress to make
available to the Security Council for such purpose armed forces, fa-
cilities, or assistance in addition to the forces, facilities, and assis-
tance provided for in such special agreement or agreements.” 464
Status of Forces Agreements.—Status of Forces Agreements,
negotiated pursuant to authorizations contained in treaties be-
tween the United States and foreign nations in the territory of which
American troops and their dependents are stationed, afford the United
States a qualified privilege, which may be waived, of trying by court
martial soldiers and their dependents charged with commission of
offenses normally within the exclusive criminal jurisdiction of the
foreign signatory power. When the United States, in conformity with
the waiver clause in such an Agreement, consented to the trial in a
Japanese court of a soldier charged with causing the death of a Japa-
nese woman on a firing range in that country, the Court could “find
no constitutional barrier” to such action.465 However, at least five
of the Supreme Court Justices were persuaded to reject at length
the contention that such Agreements could sustain, as necessary and
proper for their effectuation, implementing legislation subse-
quently found by the Court to contravene constitutional guaranties
set forth in the Bill of Rights.466
Harlan concurring).
554 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
467 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1397 (1833).
468 S. Crandall, supra, ch. 8; see also W. McClure, supra, chs. 1, 2.
469 Id. at 49–50.
470 Id. at 81–82.
471 Tucker v. Alexandroff, 183 U.S. 424, 435 (1902).
ART. II—EXECUTIVE DEPARTMENT 555
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
tice Gray and three other Justices believed that such action by the
President must rest upon express treaty or statute.472
Notable expansion of presidential power in this field first be-
came manifest in the administration of President McKinley. At the
outset of war with Spain, the President proclaimed that the United
States would consider itself bound for the duration by the last three
principles of the Declaration of Paris, a course which, as Professor
Wright observes, “would doubtless go far toward establishing these
three principles as international law obligatory upon the United States
in future wars.” 473 Hostilities with Spain were brought to an end
in August, 1898, by an armistice the conditions of which largely de-
termined the succeeding treaty of peace,474 just as did the Armi-
stice of November 11, 1918, determine in great measure the condi-
tions of the final peace with Germany in 1918. It was also President
McKinley who in 1900, relying on his own sole authority as Com-
mander in Chief, contributed a land force of 5,000 men and a na-
val force to cooperate with similar contingents from other Powers
to rescue the legations in Peking from the Boxers; a year later, again
without consulting either Congress or the Senate, he accepted for
the United States the Boxer Indemnity Protocol between China and
the intervening Powers.475 Commenting on the Peking protocol, Wil-
loughby quotes with approval the following remark: “This case is
interesting, because it shows how the force of circumstances com-
pelled us to adopt the European practice with reference to an inter-
national agreement, which, aside from the indemnity question, was
almost entirely political in character . . . purely political treaties
are, under constitutional practice in Europe, usually made by the
executive alone. The situation in China, however, abundantly justi-
fied President McKinley in not submitting the protocol to the Sen-
ate. The remoteness of Peking, the jealousies between the allies,
and the shifting evasive tactics of the Chinese Government, would
have made impossible anything but an agreement on the spot.” 476
It was also during this period that John Hay, as McKinley’s Sec-
retary of State, initiated his “Open Door” policy, by notes to Great
Britain, Germany, and Russia, which were soon followed by similar
notes to France, Italy and Japan. These in substance asked the re-
cipients to declare formally that they would not seek to enlarge their
respective interests in China at the expense of any of the others;
472 Id. at 467. The first of these conventions, signed July 29, 1882, had asserted
its constitutionality in very positive terms. Q. Wright, supra at 239 (quoting Watts
v. United States, 1 Wash. Terr. 288, 294 (1870)).
473 Id. at 245.
474 S. Crandall, supra at 103–04.
475 Id. at 104.
476 1 W. Willoughby, supra at 539.
556 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Western Hemisphere.” 482 Second, and more important than the first,
was the Hull-Lothian Agreement of September 2, 1940, under which,
in return for the lease for ninety-nine years of certain sites for na-
val bases in the British West Atlantic, the United States handed
over to the British Government fifty over-age destroyers which had
been reconditioned and recommissioned.483 And on April 9, 1941,
the State Department, in consideration of the just-completed Ger-
man occupation of Denmark, entered into an executive agreement
with the Danish minister in Washington, whereby the United States
acquired the right to occupy Greenland for purposes of defense.484
The Post-War Years.—Post-war diplomacy of the United States
was greatly influenced by the executive agreements entered into at
Cairo, Teheran, Yalta, and Potsdam.485 For a period, the formal
treaty—the signing of the United Nations Charter and the entry
into the multinational defense pacts, like NATO, SEATO, CENTRO,
and the like—re-established itself, but soon the executive agree-
ment, as an adjunct of treaty arrangement or solely through presi-
dential initiative, again became the principal instrument of United
States foreign policy, so that it became apparent in the 1960s that
the Nation was committed in one way or another to assisting over
half the countries of the world protect themselves.486 Congressional
disquietude did not result in anything more substantial than pas-
sage of a “sense of the Senate” resolution expressing a desire that
“national commitments” be made more solemnly in the future than
in the past.487
United States Security Agreements and Commitments Abroad: Hearings Before a Sub-
committee of the Senate Foreign Relations Committee, 91st Congress, 1st Sess. (1969),
10 pts.; see also U.S. Commitments to Foreign Powers: Hearings on S. Res. 151 Be-
fore the Senate Foreign Relations Committee, 90th Congress, 1st Sess. (1967).
487 The “National Commitments Resolution,” S. Res. 85, 91st Congress, 1st Sess.,
passed by the Senate June 25, 1969. See also S. REP. NO. 797, 90th Congress, 1st
sess. (1967). See the discussion of these years in CRS study, supra at 169–202.
558 ART. II—EXECUTIVE DEPARTMENT
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quences is obvious and that such obligations may linger for long
periods of time is equally obvious.488 Not so obvious is the nature
of the domestic obligations imposed by executive agreements. Do
treaties and executive agreements have the same domestic ef-
fect? 489 Treaties preempt state law through operation of the Su-
premacy Clause. Although it may be that executive agreements en-
tered into pursuant to congressional authorization or treaty obligation
also derive preemptive force from the Supremacy Clause, that tex-
tual basis for preemption is arguably lacking for executive agree-
ments resting solely on the President’s constitutional powers.
Initially, it was the view of most judges and scholars that execu-
tive agreements based solely on presidential power did not become
the “law of the land” pursuant to the Supremacy Clause because
such agreements are not “treaties” ratified by the Senate.490 The
Supreme Court, however, found another basis for holding state laws
to be preempted by executive agreements, ultimately relying on the
Constitution’s vesting of foreign relations power in the national gov-
ernment.
A different view seemed to underlie the Supreme Court deci-
sion in United States v. Belmont,491 giving domestic effect to the
Litvinov Assignment. The Court’s opinion by Justice Sutherland built
on his Curtiss-Wright 492 opinion. A lower court had erred, the Court
ruled, in dismissing an action by the United States, as assignee of
the Soviet Union, for certain moneys which had once been the prop-
erty of a Russian metal corporation the assets of which had been
appropriated by the Soviet government. The President’s act in rec-
ognizing the Soviet government, and the accompanying agree-
ments, constituted, said the Justice, an international compact which
the President, “as the sole organ” of international relations for the
United States, was authorized to enter upon without consulting the
Senate. Nor did state laws and policies make any difference in such
a situation; while the supremacy of treaties is established by the
488 In 1918, Secretary of State Lansing assured the Senate Foreign Relations
Committee that the Lansing-Ishii Agreement had no binding force on the United
States, that it was simply a declaration of American policy so long as the President
and State Department might choose to continue it. 1 W. Willoughby, supra at 547.
In fact, it took the Washington Conference of 1921, two formal treaties, and an ex-
change of notes to eradicate it, while the “Gentlemen’s Agreement” was finally ended
after 17 years only by an act of Congress. W. McClure, supra at 97, 100.
489 See E. Byrd, supra at 151–57.
490 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir.
1919); 1 W. Willoughby, supra at 589. The State Department held the same view. G.
HACKWORTH, 5 DIGEST OF INTERNATIONAL LAW 426 (1944).
491 301 U.S. 324 (1937). In B. Altman & Co. v. United States, 224 U.S. 583 (1912),
the Court had recognized that a jurisdictional statute’s reference to a “treaty” encom-
passed an executive agreement.
492 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
ART. II—EXECUTIVE DEPARTMENT 559
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Constitution in express terms, the same rule holds “in the case of
all international compacts and agreements from the very fact that
complete power over international affairs is in the National Govern-
ment and is not and cannot be subject to any curtailment or inter-
ference on the part of the several States.” 493
The Court elaborated on these principles five years later in United
States v. Pink,494 another case involving the Litvinov Assignment
and recognition of the Soviet Government. The question presented
was whether the United States was entitled to recover the assets
of the New York branch of a Russian insurance company. The com-
pany argued that the Soviet Government’s decrees of confiscation
did not apply to its property in New York and could not apply con-
sistently with the Constitution of the United States and that of New
York. The Court, speaking by Justice Douglas, brushed these argu-
ments aside. An official declaration of the Russian government it-
self settled the question of the extraterritorial operation of the Rus-
sian decree of nationalization and was binding on American courts.
The power to remove such obstacles to full recognition as settle-
ment of claims of our nationals was “a modest implied power of the
President who is the ‘sole organ of the Federal Government in the
field of international relations’. . . . It was the judgment of the po-
litical department that full recognition of the Soviet Government
required the settlement of outstanding problems including the claims
of our nationals. . . . We would usurp the executive function if we
held that the decision was not final and conclusive on the courts. . . .”
“It is, of course, true that even treaties with foreign nations will
be carefully construed so as not to derogate from the authority and
jurisdiction of the States of this nation unless clearly necessary to
effectuate the national policy. . . . But state law must yield when
it is inconsistent with, or impairs the policy or provisions of, a treaty
or of an international compact or agreement. . . . Then, the power
of a State to refuse enforcement of rights based on foreign law which
runs counter to the public policy of the forum . . . must give way
before the superior Federal policy evidenced by a treaty or interna-
tional compact or agreement. . . .”
“The action of New York in this case amounts in substance to a
rejection of a part of the policy underlying recognition by this na-
tion of Soviet Russia. Such power is not accorded a State in our
constitutional system. To permit it would be to sanction a danger-
ous invasion of Federal authority. For it would ‘imperil the ami-
cable relations between governments and vex the peace of nations.’
493 301 U.S. at 330–31.
494 315 U.S. 203 (1942).
560 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
U.S. 654 (1981), was rich in learning on many topics involving executive agree-
ments, but the preemptive force of agreements resting solely on presidential power
was not at issue, the Court concluding that Congress had either authorized various
presidential actions or had long acquiesced in others.
498 539 U.S. at 416.
499 539 U.S. at 413.
500 539 U.S. at 420.
ART. II—EXECUTIVE DEPARTMENT 561
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
501 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–76 (1840). See also United
States v. Belmont, 301 U.S. 324, 331 (1937) (“The external powers of the United
States are to be exercised without regard to state laws or policies. . . . [I]n respect
of our foreign relations generally, state lines disappear”); The Chinese Exclusion Case,
130 U.S. 581, 606 (1889) (“For local interests the several States of the Union exist;
but for national purposes, embracing our relations with foreign nations, we are but
one people, one nation, one power”); Hines v. Davidowitz, 312 U.S. 52, 63 (1941)
(“Our system of government . . . requires that federal power in the field affecting
foreign relations be left entirely free from local interference”).
502 United States v. Pink, 315 U.S. 203, 233–34 (1942). Chief Justice Stone and
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
procity requirement that did not have the additional requirement relating to confis-
cation.
505 389 U.S. at 440.
506 389 U.S. at 440, 441.
507 See, e.g., Michael D. Ramsey, The Power of the States in Foreign Affairs: The
the appeals court’s application of Zschernig, see National Foreign Trade Council v.
Natsios, 181 F.3d 38, 49–61 (1st Cir. 1999).
509 American Ins. Ass’n v. Garamendi, 539 U.S. at 419 & n.11 (2003).
ART. II—EXECUTIVE DEPARTMENT 563
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
tion not tied to the Supremacy Clause, and broader than and inde-
pendent of the Constitution’s specific prohibitions 510 and grants of
power.511 The Garamendi Court raised “a fair question whether re-
spect for the executive foreign relations power requires a categori-
cal choice between the contrasting theories of field and conflict pre-
emption evident in the Zschernig opinions.” Instead, Justice Souter
suggested for the Court, field preemption may be appropriate if a
state legislates “simply to take a position on a matter of foreign
policy with no serious claim to be addressing a traditional state re-
sponsibility,” and conflict preemption may be appropriate if a state
legislates within an area of traditional responsibility, “but in a way
that affects foreign relations.” 512 We must await further litigation
to see whether the Court employs this distinction.513
Office
“An office is a public station, or employment, conferred by the
appointment of government. The term embraces the ideas of ten-
ure, duration, emolument, and duties.” 514
Ambassadors and Other Public Ministers.—The term “am-
bassadors and other public ministers,” comprehends “all officers hav-
ing diplomatic functions, whatever their title or designation.” 515 It
was originally assumed that such offices were established by the
Constitution itself, by reference to the Law of Nations, with the con-
sequence that appointments might be made to them whenever the
appointing authority—the President and Senate—deemed desir-
510 It is contended, for example, that Article I, § 10‘s specific prohibitions against
states engaging in war, making treaties, keeping troops in peacetime, and issuing
letters of marque and reprisal would have been unnecessary if a more general, dor-
mant foreign relations power had been intended. Similarly, there would have been
no need to declare treaties to be the supreme law of the land if a more generalized
foreign affairs preemptive power existed outside of the Supremacy Clause. See Ramsey,
supra.
511 Arguably, part of the “executive power” vested in the President by Art. II,
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
guage of Article II, cl. 2, and unless the method it provides comports with the latter,
the holders of those offices will not be ‘Officers of the United States.’ ” Buckley v.
Valeo, 424 U.S. 1, 138–39 (1976) (quoted in Freytag v. Commissioner, 501 U.S. 868,
883 (1991)). The designation or appointment of military judges, who are “officers of
568 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
the United States,” does not violate the Appointments Clause. The judges are se-
lected by the Judge Advocate General of their respective branch of the Armed Forces.
These military judges, however, were already commissioned officers who had been
appointed by the President with the advice and consent of the Senate, so that their
designation simply and permissibly was an assignment to them of additional duties
that did not need a second formal appointment. Weiss v. United States, 510 U.S.
163 (1994). However, the appointment of civilian judges to the Coast Guard Court
of Military Review was impermissible and their actions were not salvageable under
the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995).
526 See Myers v. United States, 272 U.S. 52, 264–74 (1926) (Justice Brandeis
dissenting). Chief Justice Taft in the opinion of the Court in Myers readily recog-
nized the legislative power of Congress to establish offices, determine their func-
tions and jurisdiction, fix the terms of office, and prescribe reasonable and relevant
qualifications and rules of eligibility of appointees, always provided “that the quali-
fications do not so limit selection and so trench upon executive choice as to be in
effect legislative designation.” Id. at 128–29. For reiteration of Congress’s general
powers, see Buckley v. Valeo, 424 U.S. 1, 134–35 (1976); Morrison v. Olson, 487 U.S.
654, 673–77 (1988). See also United States v. Ferreira, 54 U.S. (13 How.) 40, 51 (1851).
527 See data in E. Corwin, supra at 363–65. Congress has repeatedly designated
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
528 The Sentencing Commission, upheld in Mistretta v. United States, 488 U.S.
361 (1989), numbered among its members three federal judges; the President was
to select them “after considering a list of six judges recommended to the President
by the Judicial Conference of the United States.” Id. at 397 (quoting 28 U.S.C. § 991(a)).
The Comptroller General is nominated by the President from a list of three individu-
als recommended by the Speaker of the House of Representatives and the President
pro tempore of the Senate. Bowsher v. Synar, 478 U.S. 714, 727 (1986) (citing 31
U.S.C. § 703(a)(2)). In Metropolitan Washington Airports Auth. v. Citizens for the
Abatement of Airport Noise, 501 U.S. 252, 268–69 (1991), the Court carefully distin-
guished these examples from the particular situation before it that it condemned,
but see id. at 288 (Justice White dissenting), and in any event it never actually passed
on the list devices in Mistretta and Synar. The fault in Airports Authority was not
the validity of lists generally, the Court condemning the device there as giving Con-
gress control of the process, in violation of Buckley v. Valeo.
529 Buckley v. Valeo, 424 U.S. 1, 109–143 (1976). The Court took pains to ob-
serve that the clause was violated not only by the appointing process but by the
confirming process, inclusion of the House of Representatives, as well. Id. at 137.
See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of
Aircraft Noise, 501 U.S. 252 (1991).
530 Concurrently, of course, although it may seem odd, the question of what is a
“Court[] of Law” for purposes of the Appointments Clause is unsettled. See Freytag
v. Commissioner, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court
is a court of law under the clause).
570 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
531 Freytag v. Commissioner, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo,
v. Valeo, 424 U.S. 1, 125 (1976)). The constitutional definition of an “inferior” officer
is wondrously imprecise. See Freytag v. Commissioner, 501 U.S. 868, 880–882 (1991);
Morrison v. Olson, 487 U.S. 654, 670–73 (1988). See also United States v. Eaton,
169 U.S. 331 (1898). There is another category, of course, employees, but these are
lesser functionaries subordinate to officers of the United States. Ordinarily, the term
“employee” denotes one who stands in a contractual relationship to her employer,
but here it signifies all subordinate officials of the Federal Government receiving
their appointments at the hands of officials who are not specifically recognized by
the Constitution as capable of being vested by Congress with the appointing power.
Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). See Go-Bart Importing Co. v. United
States, 282 U.S. 344, 352–53 (1931); Burnap v. United States, 252 U.S. 512, 516–17
(1920); Germaine, 99 U.S. at 511–12.
533 520 U.S. 651 (1997).
534 520 U.S. at 661–62.
ART. II—EXECUTIVE DEPARTMENT 571
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
tation, a presidential appointee with the advice and consent of the Senate, could
appoint judges of the Coast Guard Court of Military Appeals; necessarily, the judges
had to be “inferior” officers. In related cases, the Court held that designation or ap-
pointment of military judges, who are “officers of the United States,” does not vio-
late the Appointments Clause. The judges are selected by the Judge Advocate Gen-
eral of their respective branch of the Armed Forces. These military judges, however,
were already commissioned officers who had been appointed by the President with
the advice and consent of the Senate, so that their designation simply and permissi-
bly was an assignment to them of additional duties that did not need a second for-
mal appointment. Weiss v. United States, 510 U.S. 163 (1994). However, the appoint-
ment of civilian judges to the Coast Guard Court of Military Review by the same
method was impermissible; they had either to be appointed by an officer who could
exercise appointment-clause authority or by the President, and their actions were
not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S.
177 (1995).
536 Freytag v. Commissioner, 501 U.S. 868, 919 (1991) (Justice Scalia concur-
ring).
537 Freytag v. Commissioner, 501 U.S. 868, 884–85 (1991).
572 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
538 501 U.S. at 886 (citing Germaine and Burnap, the Opinion Clause (Article
II, § 2), and the 25th Amendment, which, in its § 4, referred to “executive depart-
ments” in a manner that reached only cabinet-level entities). But compare id. at 915–22
(Justice Scalia concurring).
539 501 U.S. at 886 (emphasis added).
540 501 U.S. at 886–88. Compare id. at 915–19 (Justice Scalia concurring).
541 501 U.S. at 888–92. This holding was vigorously controverted by the other
v. United States, 520 U.S. 651 (1997), a unanimous decision written by Justice Scalia,
whose concurring opinion in Freytag challenged the Court’s analysis, may easily be
read as retreating considerably from it.
ART. II—EXECUTIVE DEPARTMENT 573
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
branch, as the Court first suggested? 544 No, the Court said subse-
quently. In Ex parte Siebold,545 the Court sustained Congress’s de-
cision to vest in courts the appointment of federal election supervi-
sors, charged with preventing fraud and rights violations in
congressional elections in the South, and disavowed any thought
that interbranch appointments could not be authorized under the
clause. A special judicial division was authorized to appoint indepen-
dent counsels to investigate and, if necessary, prosecute charges of
corruption in the executive, and the Court, in near unanimity, sus-
tained the law, denying that interbranch appointments, in and of
themselves, and leaving aside more precise separation-of-powers claims,
were improper under the clause.546
Congressional Regulation of Conduct in Office.—Congress
has very broad powers in regulating the conduct in office of officers
and employees of the United States, and this authority extends to
regulation of political activities. By an act passed in 1876, it prohib-
ited “all executive officers or employees of the United States not ap-
pointed by the President, with the advice and consent of the Sen-
ate, . . . from requesting, giving to, or receiving from, any other officer
or employee of the Government, any money or property or other
thing of value for political purposes.” 547 The validity of this mea-
sure having been sustained,548 the substance of it, with some elabo-
rations, was incorporated in the Civil Service Act of 1883.549 The
Lloyd-La Follette Act in 1912 began the process of protecting civil
servants from unwarranted or abusive removal by codifying “just
cause” standards previously embodied in presidential orders, defin-
ing “just causes” as those that would promote the “efficiency of the
service.” 550 Substantial changes in the civil service system were in-
544 In re Hennen, 38 U.S. (13 Pet.) 230 (1839). The suggestion was that inferior
States ex rel. Vuitton, 481 U.S. 787 (1987) (appointment of private attorneys to act
as prosecutors for judicial contempt judgments); Freytag v. Commissioner, 501 U.S.
868, 888–92 (1991) (appointment of special judges by Chief Judge of Tax Court).
547 19 Stat. 143, 169 (1876).
548 Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite’s opinion exten-
that created the civil service as a professional cadre of bureaucrats insulated from
politics, see Developments in the Law: Public Employment, 97 HARV. L. REV. 1611,
1619–1676 (1984).
550 Act of Aug. 24, 1912, § 6, 37 Stat. 539, 555, codified as amended at 5 U.S.C.
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
and 42 U.S.C.). For the long development, see, Developments, supra, 97 HARV. L. REV.
at 1632–1650.
552 53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 54
Stat. 767–768, applied the same broad ban to employees of federally funded state
and local agencies, but this provision was amended in 1974 to restrict state and
local government employees in only one respect: running for public office in partisan
elections. Act of Oct. 15, 1974, Pub. L. 93–443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502.
553 330 U.S. 75 (1947). See also Civil Serv. Comm’n v. National Ass’n of Letter
Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in
large part based on the Court’s expanding free speech jurisprudence, but the act
was again sustained. A “little Hatch Act” of a state, applying to its employees, was
sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973).
554 Pub. L. 103–94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 7321–7326. Execu-
tive branch employees (except those appointed by the President, by and with the
advice and consent of the Senate) who are listed in § 7323(b)(2), which generally
include those employed by agencies involved in law enforcement or national secu-
rity, remain under restrictions similar to the those in the old Hatch Act on taking
an active part in political management or political campaigns.
555 53 Stat. 1147, 5 U.S.C. § 7311.
ART. II—EXECUTIVE DEPARTMENT 575
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
556 See Report of the Special Committee on The Federal Loyalty-Security Pro-
gram, The Association of the Bar of the City of New York (New York: 1956), 60.
557 5 U.S.C. § 3333. The loyalty disclaimer oath was declared unconstitutional
in Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969), and the did not appeal.
The strike disclaimer oath was voided in National Ass’n of Letter Carriers v. Blount,
305 F. Supp. 546 (D.D.C. 1969); after noting probable jurisdiction, 397 U.S. 1062
(1970), the Court dismissed the appeal on the government’s motion. 400 U.S. 801
(1970). The actual prohibition on strikes, however, has been sustained. United Fed’n
of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C. 1971), aff ’d per curiam, 404
U.S. 802 (1971).
558 E.O. 9835, 12 Fed. Reg. 1935 (1947).
559 E.O. 10450, 18 Fed. Reg. 2489 (1953).
560 See generally, Report of the Special Committee on The Federal Loyalty-
Security Program, The Association of the Bar of the City of New York (New York:
1956).
561 Pub. L. 95–521, tits. I–III, 92 Stat. 1824–1861. The Act was originally codi-
fied in three different titles, 2, 5, and 28, corresponding to legislative, executive, and
judicial branch personnel, but by Pub. L. 101–194, title II, 103 Stat. 1725 (1989),
one comprehensive title, as amended, applying to all covered federal personnel was
enacted. 5 U.S.C. App. §§ 101–111.
562 See Developments, supra, 97 HARV. L. REV. at 1660–1669.
563 97 Harv. L. Rev. at 1661 (citing S. REP. 170, 95th Cong., 2d sess. (1978), 21–
22).
564 97 Harv. L. Rev. at 1664–69. The Ethics in Government Act also expanded
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
App. § 501(b).
566 5 U.S.C. App. § 505(3).
567 United States v. NTEU, 513 U.S. 454, 477 (1995).
568 Shoemaker v. United States, 147 U.S. 282, 301 (1893). The Court noted that
shall). Marshall’s statement that the appointment “is the act of the President,” con-
flicts with the more generally held and sensible view that when an appointment is
made with its consent, the Senate shares the appointing power. 3 J. STORY, COMMEN-
TARIES ON THE CONSTITUTION OF THE UNITED STATES 1525 (1833); In re Hennen, 38 U.S.
(13 Pet.) 230, 259 (1839).
ART. II—EXECUTIVE DEPARTMENT 577
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
powers and the President’s ability to enforce the laws in the decision rendered on
Congress’s effort to obtain a role in the actual appointment of executive officers in
Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), and in many of the subsequent separation-
of-powers decisions.
580 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
the subject of negotiation between the Administration and the Senate Judiciary Com-
mittee. Nomination of Elliot L. Richardson to be Attorney General: Hearings Before
the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973), 143 passim.
586 The formal documents effectuating the result are set out in 9 Weekly Comp.
cial Prosecutor appointed. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805.
See Nomination of William B. Saxbe to be Attorney General: Hearings Before the Sen-
ate Judiciary Committee, 93d Congress, 1st Sess. (1973).
588 Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973).
589 418 U.S. 683, 692–97 (1974).
ART. II—EXECUTIVE DEPARTMENT 583
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
590 The first question remained unstated, but the second issue was extensively
debated in Special Prosecutor: Hearings Before the Senate Judiciary Committee, 93d
Congress, 1st Sess. (1973); Special Prosecutor and Watergate Grand Jury Legisla-
tion: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d
Congress, 1st Sess. (1973).
591 Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654 (1988).
This is not to say that the language and analytical approach of Synar are not in
conflict with that of Morrison; it is to say that the results are consistent and the
analytical basis of the latter case does resolve the ambiguity present in some of the
reservations in Synar.
592 478 U.S. 714 (1986).
584 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Act in the hands of an officer who is subject to removal only by itself, Congress in
effect has retained control over the execution of the Act and has intruded into the
executive function.” Id. at 734. Because the Act contained contingency procedures
for implementing the budget reductions in the event that the primary mechanism
was invalidated, the Court rejected the suggestion that it should invalidate the 1921
removal provision rather than the Deficit Act’s conferral of executive power in the
Comptroller General. To do so would frustrate congressional intention and signifi-
cantly alter the Comptroller General’s office. Id. at 734–36.
595 478 U.S. at 726.
596 478 U.S. at 725 n.4.
597 487 U.S. 654 (1988).
598 Pub. L. 95–521, title VI, 92 Stat. 1867, as amended by Pub. L. 97–409, 96
Stat. 2039, and Pub. L. 100–191, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.
ART. II—EXECUTIVE DEPARTMENT 585
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
term was used in Myers, it was urged that Myers governed and re-
quired the invalidation of the statute. The Court, however, said that
Myers stood only for the proposition that Congress could not in-
volve itself in the removal of executive officers. Its broad dicta that
the President must be able to remove at will officers performing
“purely” executive functions had not survived Humphrey’s Execu-
tor.
It was true, the Court admitted, that, in the latter case, it had
distinguished between “purely” executive officers and officers who
exercise “quasi-legislative” and “quasi-judicial” powers in marking
the line between officials who may be presidentially removed at will
and officials who can be protected through some form of good cause
removal limits. “[B]ut our present considered view is that the deter-
mination 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.’ The analysis contained in our re-
moval cases is designed not to define rigid categories of those offi-
cials who may or may not be removed at will by the President, but
to ensure that Congress does not interfere with the President’s ex-
ercise of the ‘executive power’ and his constitutionally appointed duty
to ‘take care that the laws be faithfully executed’ under Article II.
Myers 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 accom-
plish his constitutional role. . . . At the other end of the spectrum
from Myers, the characterization of the agencies in Humphrey’s Ex-
ecutor 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 irrelevant. But the real question is whether the removal
restrictions are of such a nature that they impede the President’s
ability to perform his constitutional duty, and the functions of the
officials in question must be analyzed in that light.” 599
The Court discerned no compelling reason to find the good cause
limit to interfere with the President’s performance of his duties. The
independent counsel did exercise executive, law-enforcement func-
tions, but the jurisdiction and tenure of each counsel were limited
in scope and policymaking, or significant administrative authority
was lacking. On the other hand, the removal authority did afford
599 487 U.S. at 689–91.
586 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
ment of Justice, 491 U.S. 440, 467, 482–89 (1989) (concurring), and consider the
possible meaning of the recurrence to formalist reasoning in Granfinanciera, S.A. v.
Nordberg, 492 U.S. 33, (1989). See also Justice Scalia’s use of the Take Care Clause
in pronouncing limits on Congress’s constitutional power to confer citizen standing
in Lujan v. Defenders of Wildlife, 505 U.S. 555, 576–78 (1992), although it is not
clear that he had a majority of the Court with him.
601 Indeed, the Court explicitly analogized the civil enforcement powers of the
v. United States, 272 U.S. 52, 161–163, 164 (1926), and Morrison v. Olson, 487 U.S.
654, 689 n.27 (1988).
603 561 U.S. ___, No. 08–861, slip op. (2010).
604 The case involved the Public Company Accounting Oversight Board, a pri-
vate non-profit entity with a five-member board, that has significant authority over
accounting firms that participate in auditing public companies. The board members
ART. II—EXECUTIVE DEPARTMENT 587
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
are appointed to staggered 5-year terms by the Securities and Exchange Commis-
sion, and can only be removed for “good cause shown,” which requires a finding of
either a violation of securities laws or board rules, willful abuse of power, or failure
to enforce compliance with the rules governing registered public accounting firms.
15 U.S.C. § 7217(d)(3). The members of the Commission, in turn, can only be re-
moved by the President for inefficiency, neglect of duty, or malfeasance in office.
605 561 U.S. ___, No. 08–861, slip op. at 14–15 (2010).
606 Parsons v. United States, 167 U.S. 324 (1897).
607 Shurtleff v. United States, 189 U.S. 311 (1903).
608 Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. United States,
177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 541 (1922).
609 Morgan v. TVA, 28 F. Supp. 732 (E.D. Tenn. 1939), aff’d, 115 F.2d 990 (6th
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
614 For a good statement of the basis of the doctrine, the areas in which it is
asserted, and historical examples, see Executive Privilege: The Withholding of Infor-
mation by the Executive: Hearings Before the Senate Judiciary Subcommittee on Sepa-
ration of Powers, 92d Congress, 1st Sess. (1971), 420–43, (then-Assistant Attorney
General Rehnquist). Former Attorney General Rogers, in stating the position of the
Eisenhower Administration, identified five categories of executive privilege: (1) mili-
tary and diplomatic secrets and foreign affairs, (2) information made confidential by
statute, (3) information relating to pending litigation, and investigative files and re-
ports, (4) information relating to internal government affairs privileged from disclo-
sure in the public interest, and (5) records incidental to the making of policy, includ-
ing interdepartmental memoranda, advisory opinions, recommendations of subordinates,
and informal working papers. The Power of the President To Withhold Information
from the Congress, Memorandum of the Attorney General, Senate Judiciary Subcom-
mittee on Constitutional Rights, 85th Congress, 2d Sess. (Comm. Print) (1958), re-
printed as Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J.
941 (1958). In the most expansive version of the doctrine, Attorney General Kleindienst
argued that the President could assert the privilege as to any employee of the Fed-
eral Government to keep secret any information at all. Executive Privilege, Secrecy
in Government, Freedom of Information: Hearings Before the Senate Government Op-
erations Subcommittee on Intergovernmental Relations, 93d Congress, 1st Sess. (1973),
I:18 passim. For a strong argument that the doctrine lacks any constitutional or
other legal basis, see R. BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH (1974).
The book, however, precedes the Court decision in Nixon.
615 There are also, of course, instances of claimed access for other purposes, for
which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. § 552, provides
generally for public access to governmental documents. In 522(b), however, nine types
of information are exempted from coverage, several of which relate to the types as
to which executive privilege has been asserted, such as matter classified pursuant
to executive order, interagency or intra-agency memoranda or letters, and law en-
forcement investigatory files. See, e.g., EPA v. Mink, 410 U.S. 73 (1973); FTC v. Grolier,
Inc., 462 U.S. 19 (1983); CIA v. Sims, 471 U.S. 159 (1985); John Doe Agency v. John
Doe Corp., 493 U.S. 146 (1989); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974).
616 See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of
Criminal Procedure. The earliest judicial dispute involving what later became known
as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D.
590 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Va. 1807), in which defendant sought certain exculpatory material from President
Jefferson. Dispute continues with regard to the extent of presidential compliance,
but it appears that the President was in substantial compliance with outstanding
orders if not in full compliance.
617 E.g., Alderman v. United States, 394 U.S. 165 (1968).
618 Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.D.C.
1974), was held entitled to access to material in the custody of the President wherein
the President’s decision to dismiss the prosecution would probably have been unavail-
ing.
619 345 U.S. 1 (1953).
620 345 U.S. at 7–8, 9–10, 11. Withholding of information relating to governmen-
tal employees’ clearances, disciplines, or discharges often raises claims of such privi-
lege. E.g., Webster v. Doe, 486 U.S. 592 (1988); Department of the Navy v. Egan,
484 U.S. 518 (1988). After the Court approved a governmental secrecy agreement
imposed on CIA employees, Snepp v. United States, 444 U.S. 507 (1980), the govern-
ment expanded its secrecy program with respect to classified and “classifiable” infor-
mation. When Congress sought to curb this policy, the Reagan Administration con-
vinced a federal district judge to declare the restrictions void as invasive of the
President’s constitutional power to manage the executive. National Fed’n of Fed. Em-
ployees v. United States, 688 F. Supp. 671 (D.D.C. 1988), vacated and remanded sub
nom. American Foreign Service Ass’n v. Garfinkel, 490 U.S. 153 (1989). For similar
assertions in the context of plaintiffs suing the government for interference with their
civil and political rights during the protests against the Vietnam War, in which the
plaintiffs were generally denied the information in the possession of the govern-
ART. II—EXECUTIVE DEPARTMENT 591
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
ment under the state-secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C. Cir.
1978); Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983). For review and analysis,
see Quint, The Separation of Powers Under Carter, 62 TEX. L. REV. 785, 875–80 (1984).
621 Reynolds, 345 U.S. at 11, n.26.
622 92 U.S. 105, 107 (1875). See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterat-
ing and applying Totten’s “broader holding that lawsuits premised on alleged espio-
nage agreements are altogether forbidden”). The Court in Tenet distinguished Webster
v. Doe on the basis of “an obvious difference . . . between a suit brought by an ac-
knowledged (though covert) employee of the CIA and one filed by an alleged former
spy.” Id. at 10.
623 United States v. Nixon, 418 U.S. 683, 692–97 (1974).
592 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
the federal courts to preserve the confidentiality of judicial deliberations, cf. New
York Times Co. v. United States, 403 U.S. 713, 752 n.3 (1971) (Chief Justice Burger
dissenting), and in each house of Congress to treat many of its papers and docu-
ments as privileged. Cf. Soucie v. David, 448 F.2d 1067, 1080, 1081–1982 (C.A.D.C.
1971) (Judge Wilkey concurring); Military Cold War Escalation and Speech Review
Policies: Hearings Before the Senate Committee on Armed Services, 87th Congress,
2d Sess. (1962), 512 (Senator Stennis). See Calley v. Callaway, 519 F.2d 184 (5th
Cir. 1975) (en banc), cert. denied, 425 U.S. 911 (1976); United States v. Ehrlichman,
389 F. Supp. 95 (D.D.C. 1974).
ART. II—EXECUTIVE DEPARTMENT 593
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
the context of subpoenas of tapes and documentary evidence for use before a grand
jury in Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973).
626 433 U.S. 425, 446–55 (1977). See id. at 504, 545 (Chief Justice Burger and
Justice Rehnquist dissenting). The decision does resolve one outstanding question:
assertion of the privilege is not limited to incumbent Presidents. Id. at 447–49. Sub-
sequently, a court held that former-President Nixon had had such a property expec-
tancy in his papers that he was entitled to compensation for their seizure under the
Act. Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992).
627 433 U.S. at 452.
594 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers
Branch from vexatious litigation that might distract it from the energetic perfor-
mance of its constitutional duties.” 542 U.S. at 382. But cf. Clinton v. Jones, 520
U.S. 681, 702 (1997).
631 See the extensive discussion in Shane, Legal Disagreement and Negotiation
Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate
RECESS APPOINTMENTS
The Recess Appointments Clause was adopted by the Constitu-
tional Convention without dissent and without debate regarding the
intent and scope of its terms. In Federalist No. 67, Alexander Ham-
ilton refers to the recess appointment power as “nothing more than
632 Senate Select Committee on Presidential Campaign Activities v. Nixon, 370
F. Supp. 521 (D.D.C.), aff’d, 498 F.2d 725 (D.C. Cir. 1974).
633 President Nixon’s position was set out in a June 9, 1974, letter to the Chair-
man of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The
impeachment article and supporting material are set out in H. REP. NO. 93–1305,
93d Cong., 2d Sess. (1974).
634 For consideration of various proposals by which Congress might proceed, see
Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege Dis-
putes Precipitated by Congressional Subpoenas, 21 HARV. J. LEGIS. 145 (1984); Brand
& Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means
by Which Congress May Enforce Investigative Demands Against Executive Branch
Officials, 36 CATH. U. L. REV. 71 (1986); Note, The Conflict Between Executive Privi-
lege and Congressional Oversight: The Gorsuch Controversy, 1983 DUKE L. J. 1333.
596 ART. II—EXECUTIVE DEPARTMENT
Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate
Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate
tions or common usage contemporaneous to the Constitution that would suggest that
an intra-session recess was not a recess. The Court noted that, while the phrase
“the Recess” might suggest limiting recess appointments to the single break be-
tween sessions of Congress, the word “the” can also be used “generically or univer-
sally,” see, e.g., U.S. CONST. art. I, sec. 3, cl. 5 (directing the Senate to choose a Presi-
dent pro tempore “in the Absence of the Vice-President”), and that there were examples
of “the Recess” being used in the broader manner at the time of the founding. Noel
Canning, slip op. at 9–11.
639 Noel Canning, slip op. at 11. (“The Senate is equally away during both an
inter-session and an intra-session recess, and its capacity to participate in the ap-
pointments process has nothing to do with the words it uses to signal its depar-
ture.”).
640 The Court noted that Presidents have made “thousands” of intra-session re-
cess appointments and that presidential legal advisors had been nearly unanimous
in determining that the clause allowed these appointments. Id. at 12.
641 Id. at 21. The Court left open the possibility that some very unusual circum-
stance, such as a national catastrophe that renders the Senate unavailable, could
require the exercise of the recess appointment power during a shorter break. Id.
642 The Court noted, for instance, that Thomas Jefferson thought the phrase in
question could point to both vacancies that “may happen to be” during a recess as
well as those that “may happen to fall” during a recess. Id. at 22 (emphasis added).
643 Id. at 1–2.
644 Id. at 26 (“[W]e believe the narrower interpretation risks undermining con-
stitutionally conferred powers [in that] . . . [i]t would prevent the President from
making any recess appointment that arose before a recess, no matter who the offi-
cial, no matter how dire the need, no matter how uncontroversial the appointment,
and no matter how late in the session the office fell vacant.”).
645 Id. at 34 (“Historical practice over the past 200 years strongly favors the
Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate
Judicial Appointments
Federal judges clearly fall within the terms of the Recess Ap-
pointments Clause. But, unlike with other offices, a problem exists.
Article III judges are appointed “during good behavior,” subject only
to removal through impeachment. A judge, however, who is given a
recess appointment may be “removed” by the Senate’s failure to ad-
vise and consent to his appointment; moreover, on the bench, prior
to Senate confirmation, he or she may be subject to influence not
felt by other judges. Nonetheless, a constitutional attack upon the
status of a federal district judge, given a recess appointment and
then withdrawn as a nominee, was rejected by a federal court.649
646 Id. In the context of Noel Canning, the Court held that the Senate was in
session even during a pro forma session, a brief meeting of the Senate, often lasting
minutes, in which no legislative business is conducted. Id. at 38–39. Because the
Journal of the Senate (and the Congressional Record) declared the Senate in ses-
sion during those periods, and because the Senate could, under its rules, have con-
ducted business under unanimous consent (a quorum being presumed), the Court
concluded that the Senate was indeed in session. In so holding, the Court deferred
to the authority of Congress to “determine the Rules of its Proceedings,” see U.S.
CONST. art. I, sec. 5, cl. 2, relying on previous case law in which the Court refused to
question the validity of a congressional record. Noel Canning, slip op. at 39 (citing
United States v. Ballin, 144 U.S. 1, 5 (1892)).
647 Noel Canning, slip op. at 40.
648 It should be noted that, by an act of Congress, if a vacancy existed when the
Senate was in session, the ad interim appointee, subject to certain exceptions, may
receive no salary until he has been confirmed by the Senate. 5 U.S.C. § 5503 (2012).
By targeting the compensation of appointees, as opposed to the President’s recess
appointment power itself, this limitation acts as an indirect control on recess appoint-
ments, but its constitutionality has not been adjudicated. A federal district court noted
that “if any and all restrictions on the President’s recess appointment power, how-
ever limited, are prohibited by the Constitution,” restricting payment to recess ap-
pointees might be invalid. Staebler v. Carter, 464 F. Supp. 585, 596 n.24 (D.D.C.
1979).
649 United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert.
denied, 475 U.S. 1048 (1986). The opinions in the court of appeals provide a wealth
of data on the historical practice of giving recess appointments to judges, including
the developments in the Eisenhower Administration, when three Justices, Warren,
Brennan, and Stewart, were so appointed and later confirmed after participation on
the Court. The Senate in 1960 adopted a “sense of the Senate” resolution suggest-
ing that the practice was not a good idea. 106 CONG. REC. 18130–18145 (1960). Other
cases holding that the President’s power under the Recess Appointments Clause ex-
ART. II—EXECUTIVE DEPARTMENT 599
Ad Interim Designations
To be distinguished from the power to make recess appoint-
ments is the power of the President to make temporary or ad in-
terim designations of officials to perform the duties of other absent
officials. Usually such a situation is provided for in advance by a
statute that designates the inferior officer who is to act in place of
his immediate superior. But, in the absence of such a provision, both
theory and practice concede the President the power to make the
designation.650
THE PRESIDENT AND CONGRESS (2d ed. 1962); E. Corwin, supra, chs. 1, 7.
652 The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this
general effect. See 4 J. Richardson, supra at 1860, 1864; 6 id. at 2513–19, 2561–62,
2608, 2615.
653 See sources cited supra.
654 Warren, Presidential Declarations of Independence, 10 B.U.L. REV. 1 (1930);
658 Opinion on the Question Whether the Senate Has the Right to Negative the
Grade of Persons Appointed by the Executive to Fill Foreign Missions, April 24, 1790,
5 WRITINGS OF THOMAS JEFFERSON 161, 162 (P. Ford ed., 1895).
659 4 J. Moore, supra at 680–81.
660 This measure is now contained in 18 U.S.C. § 953.
661 See Memorandum on the History and Scope of the Law Prohibiting Correspon-
dence with a Foreign Government, S. Doc. No. 696, 64th Congress, 2d Sess. (1917).
The author was Mr. Charles Warren, then Assistant Attorney General. Further de-
tails concerning the observance of the “Logan Act” are given in E. Corwin, supra at
183–84, 430–31.
602 ART. II—EXECUTIVE DEPARTMENT
e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 319 (1936), as
if he were claiming sole or inherent executive power in foreign relations, but Mar-
shall carefully propounded the view that Congress could provide the rules underly-
ing the President’s duty to extradite. When, in 1848, Congress did enact such a stat-
ute, the Court sustained it. Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).
663 S. Doc. No. 56, 54th Congress, 2d Sess. (1897).
664 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON 611 (1865).
665 No. 69 (J. Cooke ed. 1961), 468.
ART. II—EXECUTIVE DEPARTMENT 603
666 Letter of Pacificus, No. 1, 7 WORKS OF ALEXANDER HAMILTON 76, 82–83 (J. Ham-
ilton ed., 1851).
667 4 J. Moore, supra at 680–81.
604 ART. II—EXECUTIVE DEPARTMENT
cases, the recognition was given by the Executive solely on his own
responsibility.” 669
An examination of this historical practice, along with other func-
tional considerations, led the Supreme Court to hold in Zivotofsky
v. Kerry that the Executive retains exclusive authority over the rec-
ognition of foreign sovereigns and their territorial bounds.670 Al-
though Congress, pursuant to its enumerated powers in the field of
foreign affairs, may properly legislate on matters which precede and
follow a presidential act of recognition, including in ways which may
undercut the policies that inform the President’s recognition deci-
sion, it may not alter the President’s recognition decision.671
The Case of Cuba.—The question of Congress’s right also to
recognize new states was prominently raised in connection with Cu-
ba’s successful struggle for independence. Beset by numerous legis-
lative proposals of a more or less mandatory character, urging rec-
ognition upon the President, the Senate Foreign Relations Committee,
in 1897, made an elaborate investigation of the whole subject and
came to the following conclusions as to this power: “The ‘recogni-
tion’ of independence or belligerency of a foreign power, technically
speaking, is distinctly a diplomatic matter. It is properly evidenced
either by sending a public minister to the government thus recog-
nized, or by receiving a public minister therefrom. The latter is the
usual and proper course. Diplomatic relations with a new power are
properly, and customarily inaugurated at the request of that power,
expressed through an envoy sent for the purpose. The reception of
this envoy, as pointed out, is the act of the President alone. The
next step, that of sending a public minister to the nation thus rec-
ognized, is primarily the act of the President. The Senate can take
no part in it at all, until the President has sent in a nomination.
Then it acts in its executive capacity, and, customarily, in ‘execu-
tive session.’ The legislative branch of the government can exercise
no influence over this step except, very indirectly, by withholding
appropriations. . . . Nor can the legislative branch of the govern-
ment hold any communications with foreign nations. The executive
669 1 J. Moore, supra, 243–44. See Restatement, Foreign Relations §§ 204, 205.
670 Zivotofsky v. Kerry, 576 U.S. ___, No. 13–628, slip op. (2015). The Court iden-
tified the Reception Clause, along with additional provisions in Article II, as provid-
ing the basis for the Executive’s power over recognition. Id. at 9–10. See supra Clause
1. Powers and Term of the President: Nature and Scope of Presidential Power: Ex-
ecutive Power: Theory of the Presidential Office: The Zivotofsky Case.
671 See Zivotofsky, slip op. at 27. While observing that Congress may not enact
a law that “directly contradicts” a presidential recognition decision, the Court stated
that Congress could still express its disagreement in multiple ways: “For example,
it may enact an embargo, decline to confirm an ambassador, or even declare war.
But none of these acts would alter the President’s recognition decision.” Id.
606 ART. II—EXECUTIVE DEPARTMENT
Congress, but only Congress itself can prevent power from slipping through its fin-
gers.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Justice
Jackson concurring). For an account of how the President usually prevails, see H.
KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIRS
(1990).
680 27 U.S. (2 Pet.) 253 (1829).
ART. II—EXECUTIVE DEPARTMENT 609
mine whether the other party has duly ratified a treaty,687 to deter-
mine who is the de jure or de facto ruler of a country,688 to deter-
mine whether a particular person is a duly accredited diplomatic
agent to the United States,689 to determine how long a military oc-
cupation shall continue in fulfillment of the terms of a treaty,690 to
determine whether a treaty is in effect or not, although doubtless
an extinguished treaty could be constitutionally renewed by tacit
consent.691
Recent Statements of the Doctrine.—The assumption under-
lying the refusal of courts to intervene in cases involving conduct
of foreign relations is well stated in Chicago & S. Air Lines v. Wa-
terman S.S. Corp.692 Here, the Court refused to review orders of
the Civil Aeronautics Board granting or denying applications by citi-
zen carriers to engage in overseas and foreign air transportation,
which by the terms of the Civil Aeronautics Act were subject to ap-
proval by the President and therefore impliedly beyond those provi-
sions of the act authorizing judicial review of board orders. Elabo-
rating on the necessity of judicial abstinence in the conduct of foreign
relations, Justice Jackson declared for the Court: “The President,
both as Commander in Chief and as the Nation’s organ for foreign
affairs, has available intelligence services whose reports are not and
ought not be published to the world. It would be intolerable that
courts, without the relevant information, should review and per-
haps nullify actions of the Executive taken on information properly
held secret. Nor can courts sit in camera in order to be taken into
executive confidences. But even if courts could require full disclo-
sure, the very nature of executive decisions as to foreign policy is
political, not judicial. Such decisions are wholly confided by our Con-
stitution on the political departments of the government, Executive
and Legislative. They are delicate, complex, and involve large ele-
ments of prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they advance or
imperil. They are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility and which has long been
held to belong in the domain of political power not subject to judi-
cial intrusion or inquiry.” 693
Ricaud v. American Metal Co., 246 U.S. 304 (1918). Analogous to and arising out of
ART. II—EXECUTIVE DEPARTMENT 611
To the same effect are the Court’s holding and opinion in Ludecke
v. Watkins,694 where the question at issue was the power of the Presi-
dent to order the deportation under the Alien Enemy Act of 1798 of
a German alien enemy after the cessation of hostilities with Ger-
many. Said Justice Frankfurter for the Court: “War does not cease
with a cease-fire order, and power to be exercised by the President
such as that conferred by the Act of 1798 is a process which begins
when war is declared but is not exhausted when the shooting
stops. . . . The Court would be assuming the functions of the politi-
cal agencies of the government to yield to the suggestion that the
unconditional surrender of Germany and the disintegration of the
Nazi Reich have left Germany without a government capable of ne-
gotiating a treaty of peace. It is not for us to question a belief by
the President that enemy aliens who were justifiably deemed fit sub-
ject for internment during active hostilities do not lose their po-
tency for mischief during the period of confusion and conflict which
is characteristic of a state of war even when the guns are silent
but the peace of Peace has not come. These are matters of political
judgment for which judges have neither technical competence nor
official responsibility.” 695
the same considerations as the political question doctrine is the “act of state” doc-
trine under which United States courts will not examine the validity of the public
acts of foreign governments done within their own territory, typically, but not al-
ways, in disputes arising out of nationalizations. E.g., Underhill v. Hernandez, 168
U.S. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); First
National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972); Alfred Dunhill
of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976). For succinct analysis of
this amorphous doctrine, see Restatement, Foreign Relations, §§ 443–44. Congress
has limited the reach of the doctrine in foreign expropriation cases by the Hickenlooper
Amendments. 22 U.S.C. § 2370(e)(2). Consider, also, Dames & Moore v. Regan, 453
U.S. 654 (1981). Similar, also, is the doctrine of sovereign immunity of foreign states
in United States courts, under which jurisdiction over the foreign state, at least af-
ter 1952, turned upon the suggestion of the Department of State as to the applica-
bility of the doctrine. See Alfred Dunhill of London v. Republic of Cuba, 425 U.S. at
698–706 (plurality opinion), but see id. at 725–28 (Justice Marshall dissenting). For
the period prior to 1952, see Z. & F. Assets Corp. v. Hull, 311 U.S. 470, 487 (1941).
Congress in the Foreign Sovereign Immunities Act of 1976, Pub. L. 94–583, 90 Stat.
2891, 28 U.S.C. §§ 1330, 1332(a)(2)(3)(4), 1391(f), 1441(d), 1602–1611, provided for
judicial determination of applicability of the doctrine but did adopt the executive
position with respect to no applicability for commercial actions of a foreign state.
E.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983); Argentine Re-
public v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). See Restatement, For-
eign Relations, §§ 451–63 (including Introductory Note, pp. 390–396).
694 335 U.S. 160 (1948).
695 335 U.S. at 167, 170. Four Justices dissented, by Justice Black, who said:
“The Court . . . holds, as I understand its opinion, that the Attorney General can
deport him whether he is dangerous or not. The effect of this holding is that any
unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citi-
zen of Germany before coming here, can be summarily seized, interned and de-
ported from the United States by the Attorney General, and that no court of the
United States has any power whatever to review, modify, vacate, reverse, or in any
612 ART. II—EXECUTIVE DEPARTMENT
manner affect the Attorney General’s deportation order. . . . I think the idea that
we are still at war with Germany in the sense contemplated by the statute control-
ling here is a pure fiction. Furthermore, I think there is no act of Congress which
lends the slightest basis to the claim that after hostilities with a foreign country
have ended the President or the Attorney General, one or both, can deport aliens
without a fair hearing reviewable in the courts. On the contrary, when this very
question came before Congress after World War I in the interval between the Armi-
stice and the conclusion of formal peace with Germany, Congress unequivocally re-
quired that enemy aliens be given a fair hearing before they could be deported.” Id.
at 174–75. See also Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948), where the
continuation of rent control under the Housing and Rent Act of 1947, enacted after
the termination of hostilities, was unanimously held to be a valid exercise of the
war power, but the constitutional question raised was asserted to be a proper one
for the Court. Said Justice Jackson, in a concurring opinion: “Particularly when the
war power is invoked to do things to the liberties of people, or to their property or
economy that only indirectly affect conduct of the war and do not relate to the man-
agement of the war itself, the constitutional basis should be scrutinized with care.”
Id. at 146–47.
696 369 U.S. 186 (1962).
697 369 U.S. at 217.
698 369 U.S. at 211–12. A case involving “a purely legal question of statutory
interpretation” is not a political question simply because the issues have significant
political and foreign relations overtones. Japan Whaling Ass’n v. American Cetacean
Society, 478 U.S. 221, 229–30 (1986) (Fisherman’s Protective Act does not com-
pletely remove Secretary of Commerce’s discretion in certifying that foreign nation-
als are “diminishing the effectiveness of ” an international agreement by taking whales
in violation of quotas set pursuant to the agreement).
699 Goldwater v. Carter, 444 U.S. 996, 1002–06 (Justices Rehnquist, Stewart, and
Stevens and Chief Justice Burger). The doctrine was applied in just such a dispute
in Dole v. Carter, 569 F.2d 1109 (10th Cir. 1977).
ART. II—EXECUTIVE DEPARTMENT 613
proper subjects for judicial intervention.” Haig v. Agee, 453 U.S. 280, 292 (1981).
See also Dames & Moore v. Regan, 453 U.S. 654, 688 (1981); Rostker v. Goldberg,
453 U.S. 57, 64–68 (1981); Greer v. Spock, 424 U.S. 828, 837–838 (1976); Parker v.
Levy, 417 U.S. 733, 756, 758 (1974); Harisiades v. Shaughnessy, 342 U.S. 580, 589
(1952). Neither may private claimants seek judicial review of executive actions de-
nying constitutional rights “in such sensitive areas as national security and foreign
policy” in suits for damages against offending officials, inasmuch as the President is
absolutely immune, Nixon v. Fitzgerald, 457 U.S. 731 (1982), and the Court has strongly
hinted that in these areas the immunity of presidential aides and other executive
officials “entrusted with discretionary authority” will be held to be absolute rather
than qualified. Harlow v. Fitzgerald, 457 U.S. 800, 812–13 (1982).
701 In Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–78 (1992), the Court
purported to draw from the Take Care Clause the principle that Congress could not
authorize citizens with only generalized grievances to sue to compel governmental
614 ART. II—EXECUTIVE DEPARTMENT
compliance with the law, inasmuch as permitting that would be “to permit Congress
to transfer from the President to the courts the Chief Executive’s most important
constitutional duty, to ‘take Care that the Laws be faithfully executed.’ ” Id. at 577.
702 7 Ops. Atty. Gen. 453, 464–65 (1855).
703 Cf. 2 Stat. 78. The provision has long since dropped out of the statute book.
704 Runkle v. United States, 122 U.S. 543 (1887).
705 Cf. In re Chapman, 166 U.S. 661, 670–671 (1897), where it was held that
tion, “speaks and acts through the heads of the several departments in relation to
subjects which appertain to their respective duties.” The heads of the departments
are his authorized assistants in the performance of his executive duties, and their
official acts, promulgated in the regular course of business, are presumptively his
acts. Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 513 (1839). See also United States
ART. II—EXECUTIVE DEPARTMENT 615
his duty through subordinates, he must appoint them or appoint the officers who
appoint them, Buckley v. Valeo, 424 U.S. 1, 109–143 (1976), and he must have the
power to discharge those officers in the Executive Branch, Myers v. United States,
272 U.S. 52 (1926), although the Court has now greatly qualified Myers to permit
congressional limits on the removal of some officers. Morrison v. Olson, 487 U.S.
654 (1988).
711 1 J. Richardson, supra at 348, 360.
616 ART. II—EXECUTIVE DEPARTMENT
Congress uses the phrase “deferral of budget authority” which is defined to include:
“(A) withholding or delaying the obligation or expenditure of budget authority (whether
by establishing reserves or otherwise) provided for projects or activities; or (B) any
other type of Executive action or inaction which effectively precludes the obligation
or expenditure of budget authority, including authority to obligate by contract in
advance of appropriations as specifically authorized by law.” 2 U.S.C. § 682(1).
714 Impoundment of Appropriated Funds by the President: Hearings Before the
gress could direct the expenditure of at least some moneys from the Treasury, even
over the opposition of the President. Kendall v. United States ex rel. Stokes, 37 U.S.
(12 Pet.) 524 (1838).
716 Train v. City of New York, 420 U.S. 35 (1975); Train v. Campaign Clean Wa-
ter, 420 U.S. 136 (1975). See also State Highway Comm’n of Missouri v. Volpe, 479
F.2d 1099 (8th Cir. 1973); Pennsylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974) (the
latter case finding statutory discretion not to spend).
717 Congressional Budget and Impoundment Control Act, Pub. L. 93–344, title
The provisions as described in the text were added in the General Appropriations
Act of 1951, ch. 896, § 1211(c)(2), 64 Stat. 595, 765. The amendments made by the
Impoundment Control Act, were § 1002, 88 Stat. 332, 31 U.S.C. §§ 1341, 1512. On
the Anti-Deficiency Act generally, see Stith, Congress’s Power of the Purse, 97 YALE
L. J. 1343, 1370–1377 (1988).
618 ART. II—EXECUTIVE DEPARTMENT
of Representatives and the Senate, numerous questions were left unresolved; one
important one was whether the President could use the deferral avenue as a means
of effectuating policy impoundments or whether rescission proposals were the sole
means. The subsequent events described in the text mooted that argument.
724 462 U.S. 919 (1983).
725 City of New Haven v. United States, 809 F.2d 900 (D.C. Cir. 1987).
726 Pub. L. 100–119, title II, § 206(a), 101 Stat. 785, 2 U.S.C. § 684.
ART. II—EXECUTIVE DEPARTMENT 619
U.S.C., with the relevant portions to this discussion at 2 U.S.C. §§ 901 et seq.
728 See Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-
were, he pointed out, entirely in the “political field,” and hence for
their discharge the Secretary was left responsible absolutely to the
President. The latter, on the other hand, were exclusively of statu-
tory origin and sprang from the powers of Congress. For these, there-
fore, the Secretary was “an officer of the law” and “amenable to the
law for his conduct.” 732
Administrative Decentralization Versus Jacksonian Cen-
tralism.—An opinion rendered by Attorney General Wirt in 1823
asserted the proposition that the President’s duty under the Take
Care Clause required of him scarcely more than that he should bring
a criminally negligent official to book for his derelictions, either by
removing him or by setting in motion against him the processes of
impeachment or of criminal prosecutions.733 The opinion entirely over-
looked the important question of the location of the power to inter-
pret the law, which is inevitably involved in any effort to enforce it.
The diametrically opposed theory that Congress is unable to vest
any head of an executive department, even within the field of Con-
gress’s specifically delegated powers, with any legal discretion which
the President is not entitled to control was first asserted in unam-
biguous terms in President Jackson’s Protest Message of April 15,
1834,734 defending his removal of Duane as Secretary of the Trea-
sury, because of the latter’s refusal to remove the deposits from the
Bank of the United States. Here it is asserted “that the entire ex-
ecutive power is vested in the President;” that the power to remove
those officers who are to aid him in the execution of the laws is an
incident of that power; that the Secretary of the Treasury was such
an officer; that the custody of the public property and money was
an executive function exercised through the Secretary of the Trea-
sury and his subordinates; that in the performance of these duties
the Secretary was subject to the supervision and control of the Presi-
dent; and finally that the act establishing the Bank of the United
States “did not, as it could not change the relation between the Presi-
dent and Secretary—did not release the former from his obligation
to see the law faithfully executed nor the latter from the Presi-
dent’s supervision and control.” 735 In short, the President’s re-
moval power, in this case unqualified, was the sanction provided
by the Constitution for his power and duty to control his “subordi-
nates” in all their official actions of public consequence.
744 United States v. Eliason, 41 U.S. (16 Pet.) 291, 301–02 (1842); Kurtz v. Mof-
fitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180–81 (1886). For
an analysis of the approach to determining the validity of presidential, or other ex-
ecutive, regulations and orders under purported congressional delegations or im-
plied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301–16 (1979).
745 In re Neagle, 135 U.S. 1 (1890).
746 135 U.S. at 64. The phrase, “a law of the United States,” came from the Act
of March 2, 1833 (4 Stat. 632). However, in the Act of June 25, 1948, 62 Stat. 965,
28 U.S.C. § 2241(c)(2), the phrase is replaced by the term, “an act of Congress,” thereby
eliminating the basis of the holding in Neagle.
747 236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).
ART. II—EXECUTIVE DEPARTMENT 625
152, 18 U.S.C. § 1385, it was provided that “it shall not be lawful to employ any
part of the Army of the United States, as a posse comitatus, or otherwise, for the
626 ART. II—EXECUTIVE DEPARTMENT
two years later by asserting, with reference to the civil war then
raging in Kansas, that it lay within his obligation to take care that
the laws be faithfully executed to place the forces of the United States
in Kansas at the disposal of the marshal there, to be used as a por-
tion of the posse comitatus. Lincoln’s call of April 15, 1861, for 75,000
volunteers was, on the other hand, a fresh invocation, though of
course on a vastly magnified scale, of Jefferson’s conception of a posse
comitatus subject to presidential call.754 The provisions above ex-
tracted from the United States Code ratified this conception with
regard to the state militias and the national forces.
757 212 U.S. at 84–85. See also Sterling v. Constantin, 287 U.S. 378 (1932), which
endorses Moyer v. Peabody, while emphasizing the fact that it applies only to a con-
dition of disorder.
628 ART. II—EXECUTIVE DEPARTMENT
Co., 125 U.S. 273, 279 (1888), the Court sustained the right of the Attorney General
and his assistants to institute suits simply by virtue of their general official powers.
“If,” the Court said, “the United States in any particular case has a just cause for
calling upon the judiciary of the country, in any of its courts, for relief . . . the ques-
tion of appealing to them must primarily be decided by the Attorney General . . .
and if restrictions are to be placed upon the exercise of this authority it is for Con-
gress to enact them.” Cf. Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), in which the
Court rejected Attorney General Randolph’s contention that he had the right ex offi-
cio to move for a writ of mandamus ordering the United States circuit court for Penn-
sylvania to put the Invalid Pension Act into effect.
759 47 Stat. 170 (1932), 29 U.S.C. §§ 101–115.
760 330 U.S. 258 (1947). In reaching the result, Chief Justice Vinson invoked
the “rule that statutes which in general terms divest preexisting rights or privileges
will not be applied to the sovereign without express words to that effect.” Id. at 272.
761 Thus, the Chief Justice noted that “we agree” that the debates on Norris-
LaGuardia “indicate that Congress, in passing the Act, did not intend to permit the
United States to continue to intervene by injunction in purely private labor dis-
putes.” Of course, he continued, “whether Congress so intended or not is a question
different from the one before us now.” 330 U.S. at 278.
762 61 Stat. 136, 155 (1947), 29 U.S.C. §§ 176–180. Cf. Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579 (1952), with regard to the exclusivity of proceeding.
763 403 U.S. 713 (1971).
ART. II—EXECUTIVE DEPARTMENT 629
(concurring opinion); for the dissenters on this issue, see id. at 752, 755–59 (Justice
Harlan, with whom Chief Justice Burger and Justice Blackmun joined); see also id.
at 727, 729–30 (Justice Stewart, joined by Justice White, concurring).
765 30 Ops. Atty. Gen. 291 (1914).
766 7 J. MOORE, DIGEST OF INTERNATIONAL LAW 346–54 (1906).
630 ART. II—EXECUTIVE DEPARTMENT
ZENS IN FOREIGN COUNTRIES BY LANDING FORCES (3d rev. ed. 1934); M. OFFUTT, THE PROTEC-
TION OF CITIZENS ABROAD BY THE ARMED FORCES OF THE UNITED STATES (1928).
770 Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860).
771 M. Offutt, supra at 5.
ART. II—EXECUTIVE DEPARTMENT 631
§ 1621 et seq.
775 76 Stat. 260 (1962), 22 U.S.C. § 2370(e)(1).
776 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
777 78 Stat. 1013 (1964), as amended, 22 U.S.C. § 2370(e)(2), applied on remand
in Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), aff’d 383 F.2d
166 (2d Cir. 1967), cert. denied, 390 U.S. 956 (1968).
632 ART. II—EXECUTIVE DEPARTMENT
peal. 197 F.2d 582 (D.C. Cir. 1952). The Supreme Court decision bringing the action
up is at 343 U.S. 937 (1952). Justices Frankfurter and Burton dissented.
782 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In the major-
ity with Justice Black were Justices Frankfurter, Douglas, Jackson, Burton, and Clark.
Dissenting were Chief Justice Vinson and Justices Reed and Minton. For critical
consideration of the case, see Corwin, The Steel Seizure Case: A Judicial Brick With-
out Straw, 53 COLUM. L. REV. 53 (1953); Roche, Executive Power and Domestic Emer-
gency: The Quest for Prerogative, 5 WEST. POL. Q. 592 (1952). For a comprehensive
account, see M. MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF PRESIDENTIAL
POWER (1977).
783 Indeed, the breadth of the Government’s arguments in the district court may
well have contributed to the defeat, despite the much more measured contentions
set out in the Supreme Court. See A. WESTIN, THE ANATOMY OF A CONSTITUTIONAL LAW
CASE 56–65 (1958) (argument in district court).
ART. II—EXECUTIVE DEPARTMENT 633
larities with the present case, upon analysis, yield to distinctions so decisive that it
cannot be regarded as even a precedent, much less an authority for the present sei-
zure.” 343 U.S. at 648–49 (concurring opinion). His opinion opens with the sen-
tence: “That comprehensive and undefined presidential powers hold both practical
advantages and grave dangers for the country will impress anyone who has served
as legal adviser to a President in time of transition and public anxiety.” Id. at 634.
ART. II—EXECUTIVE DEPARTMENT 635
The dissent was also fortunate in that the steel companies’ chief
counsel, John W. Davis, a former Solicitor General of the United
States, had filed a brief in 1914 in defense of Presidential action,
which had taken precisely the view that the dissent now pre-
sented.796 “Ours,” the brief read, “is a self-sufficient Government within
its sphere. (Ex parte Siebold, 100 U.S. 371, 395; in re Debs, 158
U.S. 564, 578.) ‘Its means are adequate to its ends’ (McCulloch v.
Maryland, 4 Wheat., 316, 424), and it is rational to assume that
its active forces will be found equal in most things to the emergen-
cies that confront it. While perfect flexibility is not to be expected
in a Government of divided powers, and while division of power is
one of the principal features of the Constitution, it is the plain duty
of those who are called upon to draw the dividing lines to ascertain
the essential, recognize the practical, and avoid a slavish formal-
ism which can only serve to ossify the government and reduce its
efficiency without any compensating good. The function of making
laws is peculiar to Congress, and the Executive can not exercise
that function to any degree. But this is not to say that all of the
subjects concerning which laws might be made are perforce re-
moved from the possibility of Executive influence. The Executive may
act upon things and upon men in many relations which have not,
though they might have, been actually regulated by Congress. In
other words, just as there are fields which are peculiar to Congress
and fields which are peculiar to the Executive, so there are fields
which are common to both, in the sense that the Executive may
move within them until they shall have been occupied by legisla-
tive action. These are not the fields of legislative prerogative, but
fields within which the lawmaking power may enter and dominate
whenever it chooses. This situation results from the fact that the
President is the active agent, not of Congress, but of the Nation.
As such he performs the duties which the Constitution lays upon
him immediately, and as such, also, he executes the laws and regu-
lations adopted by Congress. He is the agent of the people of the
United States, deriving all his powers from them and responsible
directly to them. In no sense is he the agent of Congress. He obeys
and executes the laws of Congress, not because Congress is en-
throned in authority over him, but because the Constitution directs
him to do so.”
“Therefore it follows that in ways short of making laws or dis-
obeying them, the Executive may be under a grave constitutional
duty to act for the national protection in situations not covered by
the acts of Congress, and in which, even, it may not be said that
796 Brief for the United States at 11, 75–77, United States v. Midwest Oil Co.,
his action is the direct expression of any particular one of the inde-
pendent powers which are granted to him specifically by the Consti-
tution. Instances wherein the President has felt and fulfilled such
a duty have not been rare in our history, though, being for the pub-
lic benefit and approved by all, his acts have seldom been chal-
lenged in the courts.” 797
tutional powers of Congress over the matter. Courts can sustain ex-
clusive presidential control in such a case only by disabling the Con-
gress from acting upon the subject.” 801 The seizure in question was
placed in the third category “because Congress has not left seizure
of private property an open field but has covered it by three statu-
tory policies inconsistent with this seizure.” Therefore, “we can sus-
tain the President only by holding that seizure of such strike-
bound industries is within his domain and beyond control by
Congress.” 802 That holding was not possible.
Justice Burton, referring to the Taft-Hartley Act, said that “the
most significant feature of that Act is its omission of authority to
seize,” citing debate on the measure to show that the omission was
a conscious decision.803 Justice Clark relied on Little v. Barreme,804
in that Congress had laid down specific procedures for the Presi-
dent to follow, which he had declined to follow.805
Despite the opinion of the Court, therefore, it seems clear that
four of the six Justices in the majority were more moved by the
fact that the President had acted in a manner considered and re-
jected by Congress in a field in which Congress was empowered to
establish the rules—rules the President is to see faithfully executed—
than with the fact that the President’s action was a form of “law-
making” in a field committed to the province of Congress. The opin-
ion of the Court, therefore, and its doctrinal implications must be
considered with care, as it is doubtful that the opinion lays down a
constitutional rule. Whatever the implications of the opinions of the
individual Justices for the doctrine of “inherent” presidential powers—
and they are significant—the implications for the area here under
consideration are cloudy and have remained so from the time of the
decision.806
801 343 U.S. at 635–38. In Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006), Jus-
tice Kennedy, in a concurring opinion joined by three other Justices, endorsed “the
three-part scheme used by Justice Jackson” as “[t]he proper framework for assess-
ing whether Executive actions are authorized.” The Court in this case found “that
the military commission convened [by the President, in Guantanamo Bay, Cuba] to
try Hamdan lacks power to proceed because its structure and procedures violate [the
Uniform Code of Military Justice].” Id. at 567. Thus, as Justice Kennedy noted, “the
President has acted in a field with a history of congressional participation and regu-
lation.” Id. at 638.
802 343 U.S. at 639, 640.
803 343 U.S. at 657.
804 6 U.S. (2 Cr.) 170 (1804).
805 343 U.S. at 662, 663.
806 In Dames & Moore v. Regan, 453 U.S. 654, 668–69 (1981), the Court re-
curred to the Youngstown analysis for resolution of the presented questions, but one
must observe that it did so saying that “the parties and the lower courts . . . have
all agreed that much relevant analysis is contained in” Youngstown. See also id. at
661–62, quoting Justice Jackson’s Youngstown concurrence, “which both parties agree
638 ART. II—EXECUTIVE DEPARTMENT
dent of the United States may be required, by the process of this court, to perform a
purely ministerial act under a positive law, or may be held amenable, in any case,
otherwise than by impeachment for crime.” 71 U.S. at 498. See Franklin v. Massa-
chusetts, 505 U.S. 788, 825–28 (1992) (Justice Scalia concurring). In NTEU v. Nixon,
492 F.2d 587 (D.C. Cir. 1974), the court held that a writ of mandamus could issue to
compel the President to perform a ministerial act, although it said that if any other
officer were available to whom the writ could run it should be applied to him.
809 Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 484–85 (1867) (argument of
counsel).
ART. II—EXECUTIVE DEPARTMENT 639
context of congressional predominance following the Civil War. The Court’s restraint
was pronounced when it denied an effort to file a bill of injunction to enjoin enforce-
ment of the same acts directed to cabinet officers. Georgia v. Stanton, 73 U.S. (6
Wall.) 50 (1867). Before and since, however, the device to obtain review of the Presi-
dent’s actions has been to bring suit against the subordinate officer charged with
carrying out the President’s wishes. Kendall v. United States ex rel. Stokes, 37 U.S.
(12 Pet.) 524 (1838); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Congress has not provided pro-
cess against the President. In Franklin v. Massachusetts, 505 U.S. 788 (1992), resolv-
ing a long-running dispute, the Court held that the President is not subject to the
Administrative Procedure Act and his actions, therefore, are not reviewable in suits
under the Act. Inasmuch as some agency action, the acts of the Secretary of Com-
merce in this case, is preliminary to presidential action, the agency action is not
“final” for purposes of APA review. Constitutional claims would still be brought, how-
ever. See also, following Franklin, Dalton v. Specter, 511 U.S. 462 (1994).
811 United States v. Nixon, 418 U.S. 683 (1974).
812 418 U.S. at 706.
640 ART. II—EXECUTIVE DEPARTMENT
122; Nixon v. Sirica, 487 F.2d 700, 756–58 (D.C. Cir. 1973) (en banc) (Judge MacKin-
non dissenting). The Court had accepted the President’s petition to review the pro-
priety of the grand jury’s naming him as an unindicted coconspirator, but it dismissed
that petition without reaching the question. United States v. Nixon, 418 U.S. at 687
n.2.
817 Memorandum for the United States, Application of Spiro T. Agnew, Civil No.
constitutional scheme,” that is, it was derived from the Court’s in-
quiry of a “kind of ‘public policy’ analysis” of the “policies and prin-
ciples that may be considered implicit in the nature of the Presi-
dent’s office in a system structured to achieve effective government
under a constitutionally mandated separation of powers.” 819 Al-
though the Constitution expressly afforded Members of Congress im-
munity in matters arising from “speech or debate,” and although it
was silent with respect to presidential immunity, the Court none-
theless considered such immunity “a functionally mandated inci-
dent of the President’s unique office, rooted in the constitutional tra-
dition of the separation of powers and supported by our history.” 820
Although the Court relied in part upon its previous practice of find-
ing immunity for officers, such as judges, as to whom the Constitu-
tion is silent, although a long common-law history exists, and in
part upon historical evidence, which it admitted was fragmentary
and ambiguous,821 the Court’s principal focus was upon the fact that
the President was distinguishable from all other executive officials.
He is charged with a long list of “supervisory and policy responsi-
bilities of utmost discretion and sensitivity,” 822 and diversion of his
energies by concerns with private lawsuits would “raise unique risks
to the effective functioning of government.” 823 Moreover, the presi-
dential privilege is rooted in the separation-of-powers doctrine, coun-
seling courts to tread carefully before intruding. Some interests are
important enough to require judicial action; “merely private suit[s]
for damages based on a President’s official acts” do not serve this
“broad public interest” necessitating the courts to act.824 Finally, quali-
fied immunity would not adequately protect the President, because
judicial inquiry into a functional analysis of his actions would bring
with it the evil immunity was to prevent; absolute immunity was
required.825
sented. The Court reserved decision whether Congress could expressly create a dam-
ages action against the President and abrogate the immunity, id. at 748–49 n.27,
thus appearing to disclaim that the decision is mandated by the Constitution; Chief
Justice Burger disagreed with the implication of this footnote, id. at 763–64 n.7 (con-
curring opinion), and the dissenters noted their agreement on this point with the
Chief Justice. Id. at 770 & n.4.
642 ART. II—EXECUTIVE DEPARTMENT
Unofficial Conduct
In Clinton v. Jones,826 the Court, in a case of first impression,
held that the President did not have qualified immunity from civil
suit for conduct alleged to have taken place prior to his election,
and therefore denied the President’s request to delay both the trial
and discovery. The Court held that its precedents affording the Presi-
dent immunity from suit for his official conduct—primarily on the
basis that he should be enabled to perform his duties effectively
without fear that a particular decision might give rise to personal
liability—were inapplicable in this kind of case. Moreover, the
separation-of-powers doctrine did not require a stay of all private
actions against the President. Separation of powers is preserved by
guarding against the encroachment or aggrandizement of one of the
coequal branches of the government at the expense of another. How-
ever, a federal trial court tending to a civil suit in which the Presi-
dent is a party performs only its judicial function, not a function of
another branch. No decision by a trial court could curtail the scope
of the President’s powers. The trial court, the Supreme Court ob-
served, had sufficient powers to accommodate the President’s sched-
ule and his workload, so as not to impede the President’s perfor-
mance of his duties. Finally, the Court stated its belief that allowing
such suits to proceed would not generate a large volume of politi-
cally motivated harassing and frivolous litigation. Congress has the
power, the Court advised, if it should think necessary to legislate,
to afford the President protection.827
enjoin Secretary of Commerce to return steel mills seized on President’s order); Dames
& Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury to nullify
presidential orders on Iranian assets). See also Noble v. Union River Logging Rail-
road, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).
829 E.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (suit against Secretary of
ally brought in the United States District Court for the District of
Columbia.830 In suits under the common law, a subordinate execu-
tive officer may be held personally liable in damages for any act
done in excess of authority,831 although immunity exists for any-
thing, even malicious wrongdoing, done in the course of his du-
ties.832
Different rules prevail when such an official is sued for a “con-
stitutional tort” for wrongs allegedly in violation of our basic char-
ter,833 although the Court has hinted that in some “sensitive” areas
officials acting in the “outer perimeter” of their duties may be ac-
Stokes, 37 U.S. (12 Pet.) 524 (1838) (suit against Postmaster General to compel pay-
ment of money owed under act of Congress); Decatur v. Paulding, 39 U.S. (14 Pet.)
497 (1840) (suit to compel Secretary of Navy to pay a pension).
830 This was originally on the theory that the Supreme Court of the District of
Columbia had inherited, via the common law of Maryland, the jurisdiction of the
King’s Bench “over inferior jurisdictions and officers.” Kendall v. United States ex
rel. Stokes, 37 U.S. (12 Pet.) 524, 614, 620–21 (1838). Congress has now authorized
federal district courts outside the District of Columbia also to entertain such suits.
76 Stat. 744 (1962), 28 U.S.C. § 1361.
831 E.g., Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Bates v. Clark, 95 U.S. 204
(1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases (Poindexter
v. Greenhow), 114 U.S. 269 (1885); Belknap v. Schild, 161 U.S. 10 (1896).
832 Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Matteo, 360 U.S. 564 (1959).
See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature
as well as being within the scope of employment, before federal official is entitled to
absolute immunity). Following the Westfall decision, Congress enacted the Federal
Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act),
which authorized the Attorney General to certify that an employee was acting within
the scope of his office or employment at the time of the incident out of which a suit
arose; upon certification, the employee is dismissed from the action, and the United
States is substituted, the Federal Tort Claims Act (FTCA) then governing the ac-
tion, which means that sometimes the action must be dismissed against the govern-
ment because the FTCA has not waived sovereign immunity. United States v. Smith,
499 U.S. 160 (1991) (Westfall Act bars suit against federal employee even when an
exception in the FTCA bars suit against the government). Cognizant of the tempta-
tion of the government to immunize both itself and its employee, the Court in Gutier-
rez de Martinez v. Lamagno, 515 U.S. 417 (1995), held that the Attorney General’s
certification is subject to judicial review.
833 An implied cause of action against officers accused of constitutional viola-
tions was recognized in Bivens v. Six Unknown Named Agents of the Federal Bu-
reau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), a
Bivens action, the Court distinguished between common-law torts and constitu-
tional torts and denied high federal officials, including cabinet secretaries, absolute
immunity, in favor of the qualified immunity previously accorded high state officials
under 42 U.S.C. § 1983. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court de-
nied presidential aides derivative absolute presidential immunity, but it modified the
rules of qualified immunity, making it more difficult to hold such aides, other fed-
eral officials, and indeed state and local officials, liable for constitutional torts. In
Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity to
the Attorney General for authorizing a warrantless wiretap in a case involving do-
mestic national security. Although the Court later held such warrantless wiretaps
violated the Fourth Amendment, at the time of the Attorney General’s authorization
this interpretation was not “clearly established,” and the Harlow immunity pro-
tected officials exercising discretion on such open questions. See also Anderson v.
644 ART. II—EXECUTIVE DEPARTMENT
574, 90 Stat. 2721 (1976), and Pub. L. 96–486, 94 Stat. 2369 (1980). If such suits
are brought in state courts, they can be removed to federal district courts. 28 U.S.C.
§ 1442(a).
836 Marbury v. Madison, 5 U.S. (1 Cr.) 137, 157–58, 173 (1803). The doctrine
Article I, § 2, cl. 5, gives to the House of Representatives “the sole power of impeach-
ment.” Article I, § 3, cl. 6, gives to the Senate “the sole power to try all impeach-
ments,” requires that Senators be under oath or affirmation when sitting for that
purpose, stipulates that the Chief Justice of the United States is to preside when
the President of the United States is tried, and provides for conviction on the vote
ART. II—EXECUTIVE DEPARTMENT 645
Sec. 4—Impeachment
of two-thirds of the members present. Article I, § 3, cl. 7, limits the judgment after
impeachment to removal from office and disqualification from future federal office
holding, but it allows criminal trial following conviction upon impeachment. Article
II, § 2, cl. 1, deprives the President of the power to grant pardons or reprieves in
cases of impeachment. Article III,§ 2, cl. 3, excepts impeachment cases from the jury
trial requirement.
Although the word “impeachment” is sometimes used to refer to the process by
which any member of the House may “impeach” an officer of the United States un-
der a question of constitutional privilege (see 3 HINDS’ PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES OF THE UNITED STATES §§ 2398 (impeachment of President John Tyler
by a member) and 2469 (impeachment of Judge John Swayne by a member) (1907),
the word as used in Article II, § 4 refers to impeachment by vote of the House, the
consequence of which is that the Senate may then try the impeached officer.
840 1 W. HOLDSWORTH, HISTORY OF ENGLISH COURTS 379–85 (7th ed. 1956); Clarke,
Sec. 4—Impeachment
ior of the public officers.” 844 While the language of section 4 covers
any “civil officer” in the executive branch,845 and covers judges as
well,846 it excludes military officers,847 and the precedent was early
established that it does not apply to members of Congress.848
Judges.—Article III, section 1 specifically provides judges with
“good behavior” tenure, but the Constitution nowhere expressly vests
the power to remove upon bad behavior, and it has been assumed
that judges are made subject to the impeachment power through
being labeled “civil officers.” 849 The records in the Convention make
this a plausible though not necessary interpretation.850 And, in fact,
844 Id. at 372.
845 The term “civil officers of the United States” is not defined in the Constitu-
tion, although there may be a parallel with “officers of the United States” under the
Appointments Clause, Art. II, § 2, cl. 2, and it may be assumed that not all execu-
tive branch employees are “officers.” For precedents relating to the definition, see 3
HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 1785, 2022,
2486, 2493, and 2515 (1907). See also Ronald D. Rotunda, An Essay on the Constitu-
tional Parameters of Federal Impeachment, 76 KY. L. REV. 707, 715–18 (1988).
846 See the following section on Judges.
847 3 W. Willoughby, supra at 1448.
848 This point was established by a vote of the Senate holding a plea to this
effect good in the impeachment trial of Senator William Blount in 1797. 3 HINDS’
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2294–2318 (1907);
F. WHARTON, STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHING-
TON AND ADAMS 200–321 (1849); BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE
CONSTITUTION’S FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT (1998).
849 See NATIONAL COMM’N ON JUDICIAL DISCIPLINE & REMOVAL, REPORT OF THE NATIONAL
COMM’N ON JUDICIAL DISCIPLINE & REMOVAL 9–11 (1993). The Commission was charged
by Congress with investigating and studying problems and issues relating to disci-
pline and removal of federal judges, to evaluate the advisability of developing alter-
natives to impeachment, and to report to the three Government Branches. Pub. L.
101–650, 104 Stat. 5124. The report and the research papers produced for it contain
a wealth of information on the subject.
850 For practically the entire Convention, the plans presented and adopted pro-
vided that the Supreme Court was to try impeachments. 1 M. Farrand, supra, at
22, 244, 223–24, 231; 2 id. at 186. On August 27, it was successfully moved that the
provision in the draft of the Committee on Detail giving the Supreme Court jurisdic-
tion of trials of impeachment be postponed, id. at 430, 431, which was one of the
issues committed to the Committee of Eleven. Id. at 481. That Committee reported
the provision giving the Senate power to try all impeachments, id. at 497, which
the Convention thereafter approved. Id. at 551. It may be assumed that so long as
trial was in the Supreme Court, the Framers did not intend that the Justices, at
least, were to be subject to the process.
The Committee of Five on August 20 was directed to report “a mode for trying
the supreme Judges in cases of impeachment,” id. at 337, and it returned a provi-
sion making Supreme Court Justices triable by the Senate on impeachment by the
House. Id. at 367. Consideration of this report was postponed. On August 27, it was
proposed that all federal judges should be removable by the executive upon the ap-
plication of both houses of Congress, but the motion was rejected. Id. at 428–29.
The matter was not resolved by the report of the Committee on Style, which left in
the “good behavior” tenure but contained nothing about removal. Id. at 575. There-
fore, unless judges were included in the term “civil officers,” which had been added
without comment on September 8 to the impeachment clause, id. at 552, they were
not made removable.
ART. II—EXECUTIVE DEPARTMENT 647
Sec. 4—Impeachment
851 The following judges faced impeachment trials in the Senate: John Picker-
ing, District Judge, 1803 (convicted), 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTA-
TIVES OF THE UNITED STATES §§ 2319–2341 (1907); Justice Samuel Chase, 1804 (acquit-
ted), id. at §§ 2342–2363; James H. Peck, District Judge, 1830 (acquitted), id. at 2364–
2384; West H. Humphreys, District Judge, 1862 (convicted), id. at §§ 2385–2397; Charles
Swayne, District Judge, 1904 (acquitted), id. at §§ 2469–2485; Robert W. Archbald,
Judge of Commerce Court, 1912 (convicted), 6 CANNON’S PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES OF THE UNITED STATES §§ 498–512 (1936); Harold Louderback, District
Judge, 1932 (acquitted), id. at §§ 513–524; Halsted L. Ritter, District Judge, 1936
(convicted), Proceedings of the United States Senate in the Trial of Impeachment of
Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d Sess. (1936); Harry Claiborne,
District Judge, 1986 (convicted), Proceedings of the United States Senate in the Im-
peachment Trial of Harry E. Claiborne, S. Doc. 99–48, 99th Cong., 2d Sess. (1986);
Alcee Hastings, District Judge, 1989 (convicted), Proceedings of the United States
Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101–18, 101st Cong.,
1st Sess. (1989); Walter Nixon, District Judge, 1989 (convicted), Proceedings of the
United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101–
22, 101st Cong., 1st Sess. (1989). In addition, impeachment proceedings against dis-
trict judge George W. English were dismissed in 1926 following his resignation six
days prior to the scheduled start of his Senate trial. 68 CONG. REC. 344, 348 (1926).
See also ten Broek, Partisan Politics and Federal Judgeship Impeachments Since
1903, 23 MINN. L. REV. 185, 194–96 (1939). The others who have faced impeachment
trials in the Senate are Senator William Blount (acquitted); Secretary of War Wil-
liam Belknap (acquitted); President Andrew Johnson (acquitted); and President Wil-
liam J. Clinton (acquitted). For summary and discussion of the earlier cases, see
CONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS AND MATERIALS (A. Boyan ed., 1976);
and Paul S. Fenton, The Scope of the Impeachment Power, 65 NW. U. L. REV. 719
(1970) (appendix), reprinted in Staff of the House Committee on the Judiciary, 105th
Cong., Impeachment: Selected Materials 1818 (Comm. Print. 1998).
852 It has been argued that the impeachment clause of Article II is a limitation
on the power of Congress to remove judges and that Article III is a limitation on
the executive power of removal, but that it is open to Congress to define “good be-
havior” and establish a mechanism by which judges may be judicially removed. Shartel,
Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under
the Constitution, 28 MICH. L. REV. 485, 723, 870 (1930). Proposals to this effect were
considered in Congress in the 1930s and 1940s and revived in the late 1960s, stimu-
lating much controversy in scholarly circles. E.g., Kramer & Barron, The Constitu-
tionality of Removal and Mandatory Retirement Procedures for the Federal Judi-
ciary: The Meaning of “During Good Behavior,” 35 GEO. WASH. L. REV. 455 (1967);
Ziskind, Judicial Tenure in the American Constitution: English and American Prec-
edents, 1969 SUP. CT. REV. 135; Berger, Impeachment of Judges and “Good Behavior”
Tenure, 79 YALE L. J. 1475 (1970). Congress did in the Judicial Conduct and Disabil-
ity Act of 1980, Pub. L. 96–458, 94 Stat. 2035, 28 U.S.C. § 1 note, 331, 332, 372,
604, provide for disciplinary powers over federal judges, but it specifically denied
any removal power. The National Commission, supra at 17–26, found impeachment
to be the exclusive means of removal and recommended against adoption of an alter-
native. Congress repealed 28 U.S.C. § 372 in the Judicial Improvements Act of 2002,
648 ART. II—EXECUTIVE DEPARTMENT
Sec. 4—Impeachment
Pub. L. 107–273 and created a new chapter (28 U.S.C. §§ 351–64) dealing with judi-
cial discipline short of removal for Article III judges, and authorizing discipline in-
cluding removal for magistrate judges. The issue was obliquely before the Court as
a result of a judicial conference action disciplining a district judge, but it was not
reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966); 398 U.S. 74 (1970), ex-
cept by Justices Black and Douglas in dissent, who argued that impeachment was
the exclusive power.
853 See discussion supra of the differences between English and American im-
peachment.
854 3 DESCHLER’S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES ch. 14,
§ 13.9.
855 See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL
In the Humphreys trial the Senate determined that the issues of removal and dis-
qualification are divisible, 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2397
(1907), and in the Archbald trial the Senate imposed judgment of disqualification by
vote of 39 to 35. 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 512 (1936).
During the 1936 trial of Judge Ritter, a parliamentary inquiry as to whether a two-
thirds vote or a simple majority vote is required for disqualification was answered
by reference to the simple majority vote in the Archbald trial. 3 DESCHLER’S PREC-
EDENTS ch. 14, § 13.10. The Senate then rejected disqualification of Judge Ritter by
vote of 76–0. 80 CONG. REC. 5607 (1936).
ART. II—EXECUTIVE DEPARTMENT 649
Sec. 4—Impeachment
Impeachable Offenses
The Convention came to its choice of words describing the grounds
for impeachment after much deliberation, but the phrasing derived
directly from the English practice. On June 2, 1787, the framers
adopted a provision that the executive should “be removable on im-
peachment & conviction of mal-practice or neglect of duty.” 857 The
Committee of Detail reported as grounds “Treason (or) Bribery or
Corruption.” 858 And the Committee of Eleven reduced the phrase
to “Treason, or bribery.” 859 On September 8, Mason objected to this
limitation, observing that the term did not encompass all the con-
duct that should be grounds for removal; he therefore proposed to
add “or maladministration” following “bribery.” Upon Madison’s ob-
jection that “[s]o vague a term will be equivalent to a tenure dur-
ing pleasure of the Senate,” Mason suggested “other high crimes &
misdemeanors,” which was adopted without further recorded de-
bate.860
The phrase “high crimes and misdemeanors” in the context of
impeachments has an ancient English history, first turning up in
the impeachment of the Earl of Suffolk in 1388.861 Treason is de-
fined in the Constitution.862 Bribery is not, but it had a clear com-
mon law meaning and is now well covered by statute.863 “High crimes
and misdemeanors,” however, is an undefined and indefinite phrase,
which, in England, had comprehended conduct not constituting in-
dictable offenses.864 Use of the word “other” to link “high crimes
and misdemeanors” with “treason” and “bribery” is arguably indica-
tive of the types and seriousness of conduct encompassed by “high
crimes and misdemeanors.” Similarly, the word “high” apparently
carried with it a restrictive meaning.865
AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE PRESENT TIMES 90, 91 (1809); A. SIMPSON,
TREATISE ON FEDERAL IMPEACHMENTS 86 (1916).
862 Article III, § 3.
863 The use of a technical term known in the common law would require resort
to the common law for its meaning, United States v. Palmer, 16 U.S. (3 Wheat.)
610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. Cas.
653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the is-
sue of the cognizability of common law crimes in federal courts. See Act of April 30,
1790, § 21, 1 Stat. 117.
864 Berger, Impeachment for “High Crimes and Misdemeanors,” 44 S. CAL. L. REV.
for the delivering up of persons charged with “Treason[,] Felony or high Misdemean-
ors.” 2 M. Farrand, supra, at 174. But the phrase “high Misdemeanors” was re-
650 ART. II—EXECUTIVE DEPARTMENT
Sec. 4—Impeachment
placed with “other crimes” “in order to comprehend all proper cases: it being doubt-
ful whether ‘high misdemeanor’ had not a technical meaning too limited.” Id. at 443.
866 See id. at 64–69, 550–51.
867 E.g., 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE
CONSTITUTION 341, 498, 500, 528 (1836) (Madison); 4 id. at 276, 281 ©. C. Pinckney:
Rutledge): 3 id. at 516 (Corbin): 4 id. at 263 (Pendleton). Cf. THE FEDERALIST, No. 65
(J. Cooke ed. 1961), 439–45 (Hamilton).
868 1 ANNALS OF CONG. 372–73 (1789).
869 4 J. Elliot, supra at 126 (Iredell); 2 id. at 478 (Wilson). For a good account of
the debate at the Constitutional Convention and in the ratifying conventions, see
Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651, 676–95 (1916)
870 See generally CHARLES L. BLACK, IMPEACHMENT: A HANDBOOK (1974); RAOUL BERGER,
Sec. 4—Impeachment
COURT OF THE UNITED STATES (S. Smith & T. Lloyd eds., 1805). For analysis of the trial
and acquittal, see Lillich, The Chase Impeachment, 4 AMER. J. LEGAL HIST. 49 (1960);
and WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL
CHASE AND PRESIDENT ANDREW JOHNSON (1992). The proceedings against Presidents Ty-
ler and Johnson and the investigation of Justice Douglas are also generally viewed
as precedents that restrict the use of impeachment as a political weapon.
874 Some have argued that the constitutional requirement of “good behavior” and
“high crimes and misdemeanors” conjoin to allow the removal of judges who have
engaged in non-criminal conduct inconsistent with their responsibilities, or that the
standard of “good behavior”—not that of “high crimes and misdemeanors”—should
govern impeachment of judges. See 3 DESCHLER’S PRECEDENTS OF THE HOUSE OF REPRESEN-
TATIVES, ch. 14, §§ 3.10 and 3.13, H.R. Doc. No. 661, 94th Cong. 2d Sess. (1977) (sum-
marizing arguments made during the impeachment investigation of Justice William
O. Douglas in 1970). For a critique of these views, see Paul S. Fenton, The Scope of
the Impeachment Power, 65 NW. U. L. REV.719 (1970), reprinted in Staff of the House
Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1801–03
(Comm. Print. 1998).
875 See 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2319–2341 (1907)
876 Ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903,
23 MINN. L. REV. 185 (1939). Judge Ritter was acquitted on six of the seven articles
brought against him, but convicted on a seventh charge that summarized the first
six articles and charged that the consequence of that conduct was “to bring his court
into scandal and disrepute, to the prejudice of said court and public confidence in
the Federal judiciary, and to render him unfit to continue to serve as such judge.”
This seventh charge was challenged unsuccessfully on a point of order, but was ruled
to be a separate charge of “general misbehavior.”
652 ART. II—EXECUTIVE DEPARTMENT
Sec. 4—Impeachment
conduct for which he had been indicted and trial conduct. A sepa-
rate question was what effect the court acquittal should have had.877
Although the language of the Constitution makes no such dis-
tinction, some argue that, because of the different nature of their
responsibilities and because of different tenure, different standards
should govern impeachment of judges and impeachment of execu-
tive officers.878
Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. REV. 1209, 1229–
1233 (1991).
878 See, e.g., Frank O. Bowman, III and Stephen L. Sepinuck, “High Crimes and
147 (1868).
881 Id. at 409.
ART. II—EXECUTIVE DEPARTMENT 653
Sec. 4—Impeachment
INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHN-
SON (1992).
883 The only occasion before the Johnson impeachment when impeachment of a
President had come to a House vote was the House’s rejection in 1843 of an impeach-
ment resolution against President John Tyler. The resolution, which listed nine sepa-
rate counts and which was proposed by a member rather than by a committee, was
defeated by vote of 127 to 84. See 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES
§ 2398 (1907); CONG. GLOBE, 27th Cong. 3d Sess. 144–46 (1843).
884 The President’s resignation did not necessarily require dismissal of the im-
ment Inquiry Staff, House Judiciary Committee, 93d Cong., Constitutional Grounds
for Presidential Impeachments, (Comm. Print 1974); J. St. Clair, et al., Legal Staff
of the President, Analysis of the Constitutional Standard for Presidential Impeach-
ment (Washington: 1974); Office of Legal Counsel, Department of Justice, Legal As-
654 ART. II—EXECUTIVE DEPARTMENT
Sec. 4—Impeachment
come tax fraud, an essentially private crime not amounting to an abuse of power.
889 The question first arose during the grand jury investigation of former Vice
President Agnew, during which the United States, through the Solicitor General,
argued that the Vice President and all civil officers were not immune from the judi-
cial process and could be indicted prior to removal, but that the President for a num-
ber of constitutional and practical reasons was not subject to the ordinary criminal
process. Memorandum for the United States, Application of Spiro T. Agnew, Civil
No. 73–965 (D.Md., filed October 5, 1973). Courts have held that a federal judge
was indictable and could be convicted prior to removal from office. United States v.
Claiborne, 727 F.2d 842, 847–848 (9th Cir.), cert. denied, 469 U.S. 829 (1984); United
States v. Hastings, 681 F.2d 706, 710–711 (11th Cir.), cert. denied, 459 U.S. 1203
(1983); United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied sub nom. Kerner
v. United States, 417 U.S. 976 (1974).
890 The grand jury had named the President as an unindicted coconspirator in
the case of United States v. Mitchell, et al., No. 74–110 (D.D.C. 1974), apparently in
the belief that he was not actually indictable while in office. The Supreme Court
agreed to hear the President’s claim that the grand jury acted outside its authority,
but finding that resolution of the issue was unnecessary to decision of the executive
privilege claim it dismissed as improvidently granted the President’s petition for cer-
tiorari. United States v. Nixon, 418 U.S. 683, 687 n.2 (1974).
891 Approved by a vote of 228–206. 144 CONG. REC. H12,040 (daily ed. Dec. 19,
1998).
ART. II—EXECUTIVE DEPARTMENT 655
Sec. 4—Impeachment
the civil lawsuit and to the grand jury proceedings.892 Two addi-
tional articles of impeachment had been approved by the House Ju-
diciary Committee but were rejected by the full House.893 The Sen-
ate trial resulted in acquittal on both articles.894
A number of legal issues surfaced during congressional consid-
eration of the Clinton impeachment.895 Although the congressional
votes on the different impeachment articles were not neatly di-
vided between legal and factual matters and therefore cannot be
said to have resolved the legal issues,896 several aspects of the pro-
ceedings merit consideration for possible precedential significance.
The House’s acceptance of the grand jury perjury charge and its
rejection of the civil deposition perjury charge may reflect a belief
among some members that perjury in the criminal context is more
serious than perjury in the civil context. Acceptance of the obstruc-
tion of justice charge may also have been based in part on an as-
sessment of the seriousness of the charge. On the other hand, the
House’s rejection of the article relating to President Clinton’s al-
leged non-cooperation with the Judiciary Committee’s interrogato-
ries can be contrasted with the House’s 1974 “acceptance” of the
Judiciary Committee’s report recommending 897 a similar type of charge
against President Nixon, and raises the issue of whether the differ-
892 Approved by a vote of 221–212. 144 CONG. REC. H12,041 (daily ed. Dec. 19,
1998).
893 An article charging the President with perjury in the civil sexual harass-
ment suit brought against him was defeated by a vote of 229–205; another article
charging him with abuse of office by false responses to the House Judiciary Commit-
tee’s written request for factual admissions was defeated by vote of 285 to 148. 144
CONG. REC. H12,042 (daily ed. Dec. 19, 1998).
894 The vote for acquittal was 55 to 45 on the grand jury perjury charge, and 50
to 50 on the obstruction of justice charge. 145 CONG. REC. S1458–59 (daily ed. Feb.
12, 1999).
895 For analysis and different perspectives on the Clinton impeachment, see Back-
ground and History of Impeachment: Hearing Before the Subcomm. on the Constitu-
tion of the House Comm. on the Judiciary, 105th Cong., 2d Sess. (1998); and Staff of
the House Comm. on the Judiciary, 105th Cong., Impeachment: Selected Materials
(Comm. Print 1998). See also MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS:
A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000); RICHARD A. POSNER, AN AFFAIR OF
STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1999); LAURENCE
H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 181–202 (3d ed. 2000); and Michael Stokes
Paulsen, Impeachment (Update), 3 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1340–43
(2d ed. 2000). Much of the documentation can be found in Impeachment of William
Jefferson Clinton, President of the United States, H.R. REP. NO. 105–380 (1998); Staff
of the House Comm. on the Judiciary, 105th Cong., 2d Sess., Impeachment Inquiry:
William Jefferson Clinton, President of the United States; Consideration of Articles
of Impeachment (Comm. Print 1998); and Impeachment of President William Jeffer-
son Clinton: The Evidentiary Record Pursuant to S. Res. 16, S. Doc. No. 106–3 (1999)
(21-volume set).
896 Following the trial, a number of Senators placed statements in the record
explaining their votes. See 145 CONG. REC. S1462–1637 (daily ed. Feb. 12, 1999).
897 Note that the Judiciary Committee deleted from the article a charge based
Sec. 4—Impeachment
sponse to subpoenas from the Office of Independent Counsel. Similarly, the Commit-
tee in 1974 distinguished between President Nixon’s refusal to respond to congres-
sional subpoenas and his refusal to respond to those of the special prosecutor; only
the refusal to provide information to the impeachment inquiry was cited as an im-
peachable abuse of power.
898 The requirement was contained in the Ethics in Government Act, since lapsed,
and codified at 28 U.S.C. § 595(c). For commentary, see Ken Gormley, Impeachment
and the Independent Counsel: A Dysfunctional Union, 51 STAN. L. REV. 309 (1999).
899 For analysis of the issue, see Jack Maskell, Censure of the President by Con-
Sec. 4—Impeachment
professors, presented in a letter to the Speaker entered into the Congressional Re-
cord, arguing that high crimes and misdemeanors must involve “grossly derelict ex-
ercise of official power.” 144 CONG. REC. H9649 (daily ed. Oct. 6, 1998).
903 Some Senators who explained their acquittal votes rejected the idea that the
particular crimes that President Clinton was alleged to have committed amounted
to impeachable offenses (see, e.g., 145 CONG. REC. S1560 (daily ed. Feb. 12, 1999)
(statement of Sen. Moynihan); id. at 1601 (statement of Sen. Lieberman)), some al-
leged failure of proof (see, e.g., id. at 1539 (statement of Sen. Specter); id. at 1581
(statement of Sen. Akaka)), and some cited both grounds (see, e.g., id. at S1578–91
(statement of Sen. Leahy), and id. at S1627 (statement of Sen. Hollings)).
904 See, e.g., 145 CONG. REC. S1525 (daily ed. Feb. 12, 1999) (statement of Sen.
Cleland) (accepting the proposition that murder and other crimes would qualify for
impeachment and removal, but contending that “the current case does not reach the
necessary high standard”); id. at S1533 (statement of Sen. Kyl) (impeachment can-
not be limited to wrongful official conduct, but must include murder); and id. at S1592
(statement of Sen. Leahy) (acknowledging that “heinous” crimes such as murder would
warrant removal). This idea, incidentally, was not new; one Senator in the First Con-
gress apparently assumed that impeachment would be the first recourse if a Presi-
dent were to commit a murder. IX DOCUMENTARY HISTORY OF THE FIRST FEDERAL CON-
GRESS, 1789–1790, THE DIARY OF WILLIAM MACLAY AND OTHER NOTES ON SENATE DEBATES
168 (Kenneth R. Bowling and Helen E. Veit, eds. 1988).
905 One commentator, analogizing to the impeachment and conviction of Judge
Claiborne for income tax evasion, viewed the basic issue in the Clinton case as whether
his alleged misconduct was so outrageous as to “effectively rob[ ] him of the requi-
site moral authority to continue to function as President.” Gerhardt, supra n.817, at
619. Under this view, the Claiborne conviction established that income tax evasion
by a judge, although unrelated to official duties, reveals the judge as lacking the
unquestioned integrity and moral authority necessary to preside over criminal tri-
als, especially those involving tax evasion.
906 Senator Thompson propounded this theory in arguing that “abuse of power”
Sec. 4—Impeachment
907 Both judges challenged the use under Rule XI of a trial committee to hear
the evidence and report to the full Senate, which would then carry out the trial.
The rule was adopted in the aftermath of an embarrassingly sparse attendance at
the trial of Judge Louderback in 1935. National Comm. Report, supra at 50–53, 54–
57; Grimes, supra at 1233–37. In the Nixon case, the lower courts held the issue to
be non-justiciable (Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990), aff’d, 938
F.2d 239 (D.C. Cir. 1991), but a year later a district court initially ruled in Judge
Hastings’ favor. Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), vacated,
988 F.2d 1280 (D.C. Cir. 1993).
908 Nixon v. United States, 506 U.S. 224 (1993). Nixon at the time of his convic-
tion and removal from office was a federal district judge in Mississippi.
909 The Court listed “reasons why the Judiciary, and the Supreme Court in par-
ticular, were not chosen to have any role in impeachments,” and elsewhere agreed
with the appeals court 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.” 506 U.S. at 234, 236.
ARTICLE III
JUDICIAL DEPARTMENT
CONTENTS
Page
Section 1. Judicial Power, Courts, Judges ............................................................................... 663
Organization of Courts, Tenure, and Compensation of Judges ...................................... 663
One Supreme Court .................................................................................................... 664
Inferior Courts ............................................................................................................. 665
Abolition of Courts ............................................................................................... 666
Compensation .............................................................................................................. 667
Diminution of Salaries ......................................................................................... 667
Courts of Specialized Jurisdiction ............................................................................. 668
Legislative Courts ....................................................................................................... 670
Power of Congress Over Legislative Courts ...................................................... 672
Review of Legislative Courts by Supreme Court .............................................. 672
The “Public Rights” Distinction .......................................................................... 673
Constitutional Status of the Court of Claims and the Courts of Customs and
Patent Appeals .................................................................................................. 677
Status of Courts of the District of Columbia ..................................................... 678
Bankruptcy Courts ............................................................................................... 680
Agency Adjudication ............................................................................................. 683
Noncourt Entities in the Judicial Branch ................................................................. 685
Judicial Power .................................................................................................................... 686
Characteristics and Attributes of Judicial Power .................................................... 686
“Shall Be Vested” ................................................................................................. 688
Finality of Judgment as an Attribute of Judicial Power ......................................... 688
Award of Execution .............................................................................................. 690
Judicial Immunity from Suit ...................................................................................... 692
Ancillary Powers of Federal Courts .................................................................................. 694
The Contempt Power .................................................................................................. 694
Categories of Contempt ....................................................................................... 694
The Act of 1789 .................................................................................................... 696
An Inherent Power ............................................................................................... 697
First Amendment Limitations on the Contempt Power ................................... 698
Due Process Limitations on Contempt Power: Right to Notice and to a Hear-
ing Versus Summary Punishment .................................................................. 700
Due Process Limitations on Contempt Power: Right to Jury Trial ................. 702
Due Process Limitations on Contempt Powers: Impartial Tribunal ............... 703
Contempt by Disobedience of Orders ................................................................. 705
Contempt Power in Aid of Administrative Power ............................................. 705
Sanctions Other Than Contempt ............................................................................... 706
Power to Issue Writs: The Act of 1789 ...................................................................... 707
Common Law Powers of District of Columbia Courts ...................................... 708
Habeas Corpus: Congressional and Judicial Control ........................................ 709
Habeas Corpus: The Process of the Writ ........................................................... 713
Congressional Limitation of the Injunctive Power ................................................... 715
Injunctions Under the Emergency Price Control Act of 1942 .......................... 717
659
660 ART. III—JUDICIAL DEPARTMENT
ARTICLE III
663
664 ART. III—JUDICIAL DEPARTMENT
the latter appears in the Convention Journal, id. at 118, and in Yates’ notes, id. at
127, and when the Convention took up the draft reported by the Committee of the
Whole “appoint” is used even in Madison’s notes. 2 id. at 38, 45.
8 On offering their motion, Wilson and Madison “observed that there was a dis-
21.
10 See Article II, Judges, supra.
11 Id. at 121; 2 id. at 44–45, 429–430.
12 Article I, § 3, cl. 6.
13 Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act
and its working and amendments are FELIX FRANKFURTER & JAMES LANDIS, THE BUSI-
ART. III—JUDICIAL DEPARTMENT 665
Inferior Courts
Congress also provided in the Judiciary Act of 1789 for the cre-
ation of courts inferior to the Supreme Court. Thirteen district courts
were constituted to have four sessions annually,20 and three circuit
courts were established. The circuit courts were to consist of two
Supreme Court justices each and one of the district judges of such
districts, and were to meet twice annually in the various districts
comprising the circuit.21 This system had substantial faults in op-
eration, not the least of which was the burden imposed on the Jus-
tices, who were required to travel thousands of miles each year un-
der bad conditions.22 Despite numerous efforts to change this system,
NESS OF THE SUPREME COURT (1928); Charles Warren, New Light on the History of the
Federal Judicial Act of 1789, 37 HARV. L. REV. 49 (1923); see also J. Goebel, supra at
ch. 11.
14 Act of September 24, 1789, 1 Stat. 73, § 1.
15 12 Stat. 794, § 1.
16 Act of July 23, 1866, 14 Stat. 209, § 1.
17 Act of April 10, 1869, 16 Stat. 44.
18 Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judi-
ciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. For earlier proposals to
have the Court sit in divisions, see F. Frankfurter & J. Landis, supra at 74–85.
19 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 222–224 (rev.
ed. 1926).
20 Act of September 24, 1789, 1 Stat. 73, §§ 2–3.
21 Id. at 74, §§ 4–5
22 Cf.Frankfurter & Landis, supra at chs. 1–3; J. Goebel, supra at 554–560, 565–
569. Upon receipt of a letter from President Washington soliciting suggestions re-
garding the judicial system, WRITINGS OF GEORGE WASHINGTON, (J. Fitzpatrick ed., 1943),
666 ART. III—JUDICIAL DEPARTMENT
it persisted, except for one brief period, until 1891.23 Since then,
the federal judicial system has consisted of district courts with origi-
nal jurisdiction, intermediate appellate courts, and the Supreme Court.
Abolition of Courts.—That Congress “may from time to time
ordain and establish” inferior courts would seem to imply that the
system may be reoriented from time to time and that Congress is
not restricted to the status quo but may expand and contract the
units of the system. But if the judges are to have life tenure, what
is to be done with them when the system is contracted? Unfortu-
nately, the first exercise of the power occurred in a highly politi-
cized situation, and no definite answer emerged. By the Judiciary
Act of February 13, 1801,24 passed in the closing weeks of the Adams
Administration, the districts were reorganized, and six circuit courts
consisting of three circuit judges each were created. Although Adams
appointed deserving Federalists to these so-called “midnight judge”
positions just before the change in administration, the Jef-
fersonians soon set in motion plans to repeal the Act, which were
carried out.25 No provision was made for the displaced judges, how-
ever, apparently under the theory that if there were no courts there
could be no judges to sit on them.26 The validity of the repeal was
questioned on related grounds in Stuart v. Laird,27 but Justice Paterson
rejected the challenge without directly addressing the issue of the
displaced judges.
Not until 1913 did Congress again exercise its power to abolish
a federal court, this time the unfortunate Commerce Court, which
31, Chief Justice Jay prepared a letter for the approval of the other Justices, declin-
ing to comment on the policy questions but raising several issues of constitutional-
ity, that the same man should not be appointed to two offices, that the offices were
incompatible, and that the act invaded the prerogatives of the President and Sen-
ate. 2 G. MCREE, LIFE AND CORRESPONDENCE OF JAMES IREDELL 293–296 (1858). The letter
was apparently never forwarded to the President. Writings of Washington, supra at
31–32 n.58. When the constitutional issue was raised in Stuart v. Laird, 5 U.S. (1
Cr.) 299, 309 (1803), it was passed over with the observation that the practice was
too established to be questioned.
23 Act of March 3, 1891, 26 Stat. 826. The temporary relief came in the Act of
February 13, 1801, 2 Stat. 89, which was repealed by the Act of March 8, 1802, 2
Stat. 132.
24 Act of February 13, 1801, 2 Stat. 89.
25 Act of March 8, 1802, 2 Stat. 132. Frankfurter & Landis, supra at 25–32; 1
in Congress relied. W. CARPENTER, JUDICIAL TENURE IN THE UNITED STATES 63–64 (1918).
The controversy is recounted fully in id. at 58–78.
27 5 U.S. (1 Cr.) 299 (1803) (sustaining both the transfer of suits between cir-
cuits and the sitting of Supreme Court Justices on circuit courts without confirma-
tion to those courts).
ART. III—JUDICIAL DEPARTMENT 667
pealed by the Act of October 22, 1913, 38 Stat. 208, 219. See Frankfurter & Landis,
supra at 153–174; W. Carpenter, supra at 78–94.
29 United States v. Will, 449 U.S. 200, 217–18 (1980). Hamilton, writing in THE
FEDERALIST, No. 79 (J. Cooke ed., 1961), 531, emphasized that “[i]n the general course
of human nature, a power over a man’s subsistence amounts to a power over his
will.”
30 United States v. Will, 449 U.S. 200, 224–30 (1980). In one year, the increase
took effect on October 1, although the President signed the bill reducing the amount
during the day of October 1. The Court held that the increase had gone into effect
by the time the reduction was signed. Will is also authority for the proposition that
a general, nondiscriminatory reduction, affecting judges but not aimed solely at them,
is covered by the clause. Id. at 226.
31 O’Donoghue v. United States, 289 U.S. 516 (1933).
32 Williams v. United States, 289 U.S. 553 (1933). But see Glidden Co. v. Zdanok,
dent and the Senate and must hold office during good behavior sub-
ject to removal by impeachment only, and that the compensation of
their judges cannot be diminished during their continuance in of-
fice. One example of such a court was the Commerce Court created
by the Mann-Elkins Act of 1910,42 which was given exclusive juris-
diction to enforce, inter alia, orders of the Interstate Commerce Com-
mission (except those involving money penalties and criminal pun-
ishment). This court actually functioned for less than three years,
being abolished in 1913.
Another court of specialized jurisdiction, but created for a lim-
ited time only, was the Emergency Court of Appeals organized by
the Emergency Price Control Act of January 30, 1942.43 By the terms
of the statute, this court consisted of three or more judges desig-
nated by the Chief Justice from the judges of the United States dis-
trict courts and circuit courts of appeal. The Court was vested with
jurisdiction and the powers of a district court to hear appeals filed
within thirty days against denials of protests by the Price Adminis-
trator. The Court had exclusive jurisdiction to set aside regula-
tions, orders, or price schedules, in whole or in part, or to remand
the proceeding, but the court was tightly constrained in its treat-
ment of regulations. There was interplay with the district courts,
which were charged with authority to enforce orders issued under
the Act, although only the Emergency Court had jurisdiction to de-
termine the validity of such orders.44
Other specialized courts are the Court of Appeals for the Fed-
eral Circuit, which is in many respects like the geographic circuits.
Created in 1982,45 this court has exclusive jurisdiction to hear ap-
peals from the United States Court of Federal Claims, from the Fed-
eral Merit System Protection Board, the Court of International Trade,
42 Ch. 309, 36 Stat. 539.
43 56 Stat. 23, §§ 31–33.
44 In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of in-
junctions, except the prohibition against interlocutory decrees, was unanimously sus-
tained.
A similar court was created to be used in the enforcement of the economic con-
trols imposed by President Nixon in 1971. Pub. L. 92–210, 85 Stat. 743, 211(b). Al-
though controls ended in 1974, see 12 U.S.C. § 1904 note, Congress continued the
Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency
Petroleum Allocation Act of 1973, Pub. L. 93–159, 87 Stat. 633, 15 U.S.C. § 754,
incorporating judicial review provisions of the Economic Stabilization Act. The Court
was abolished, effective March 29, 1993, by Pub. L. 102–572, 106 Stat. 4506.
Another similar specialized court was created by § 209 of the Regional Rail Re-
organization Act, Pub. L. 93–226, 87 Stat. 999, 45 U.S.C. § 719, to review the final
system plan under the Act. Regional Rail Reorganization Act Cases (Blanchette v.
Connecticut Gen. Ins. Corp.), 419 U.S. 102 (1974).
45 By the Federal Courts Improvement Act of 1982, Pub. L. 97–164, 96 Stat. 37,
28 U.S.C. § 1295. Among other things, this Court assumed the appellate jurisdiction
of the Court of Claims and the Court of Customs and Patent Appeals.
670 ART. III—JUDICIAL DEPARTMENT
Legislative Courts
Legislative courts, so-called because they are created by Con-
gress pursuant to its general legislative powers, have comprised a
significant part of the federal judiciary.50 The distinction between
constitutional courts and legislative courts was first made in Ameri-
can Ins. Co. v. Canter,51 which involved the question of the admi-
ralty jurisdiction of the territorial court of Florida, the judges of
which were limited to a four-year term in office. Chief Justice Mar-
shall wrote for the Court: “These courts, then, are not constitu-
tional courts, in which the judicial power conferred by the constitu-
tion on the general government, can be deposited. They are incapable
of receiving it. They are legislative courts, created in virtue of the
general right of sovereignty which exists in the government, or in
46 Pub. L. 96–417, 94 Stat. 1727.
47 28 U.S.C. § 1407.
48 Pub. L. 95–511, 92 Stat. 1788, 50 U.S.C. § 1803.
49 Ethics in Government Act, Title VI, Pub. L. 95–521, 92 Stat. 1867, as amended,
28 U.S.C. §§ 591–599. The court is a “Special Division” of the United States Court
of Appeals for the District of Columbia; composed of three regular federal judges,
only one of whom may be from the D. C. Circuit, who are designated by the Chief
Justice. 28 U.S.C. § 49. The constitutionality of the Special Division was upheld in
Morrison v. Olson, 487 U.S. 654, 670–85 (1988). Authority for the court expired in
1999 under a sunset provision. Pub. L. 103–270, § 2, 108 Stat. 732 (1994).
50 In Freytag v. Commissioner, 501 U.S. 868 (1991), the Court held Article I courts
to be “Courts of Law” for purposes of the appointments clause. Art. II, § 2, cl. 2. See
id. at 888–892 (majority opinion), and 901–914 (Justice Scalia dissenting).
51 26 U.S. (1 Pet.) 511 (1828).
ART. III—JUDICIAL DEPARTMENT 671
established in Durousseau v. United States, 10 U.S. (6 Cr.) 307 (1810). See also Benner
v. Porter, 50 U.S. (9 How.) 235, 243 (1850); Clinton v. Englebrecht, 80 U.S. (13 Wall.)
434 (1872); Balzac v. Porto Rico, 258 U.S. 298 (1922).
672 ART. III—JUDICIAL DEPARTMENT
courts, and the U.S. Court of Federal Claims, considered infra, these include the
United States Tax Court, formerly an independent agency in the Treasury Depart-
ment, but by the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U.S.C. § 7441,
made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18,
1988, 102 Stat. 4105, 38 U.S.C. § 4051, and the courts of the territories of the United
States. Magistrate judges are adjuncts of the District Courts, see infra, and perform
a large number of functions, usually requiring the consent of the litigants. See Gomez
v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 (1991).
The U.S. Court of Military Appeals, strictly speaking, is not part of the judiciary
but is a military tribunal, 10 U.S.C. § 867, although Congress designated it an Ar-
ticle I tribunal and has given the Supreme Court certiorari jurisdiction over its de-
cisions.
58 McAllister v. United States, 141 U.S. 174 (1891).
59 United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289
originally been prepared by Chief Justice Taney, but, following his death and reargu-
ART. III—JUDICIAL DEPARTMENT 673
ment of the case, the Court issued the cited opinion. The Court later directed the
publishing of Taney’s original opinion at 117 U.S. 697. See also United States v. Jones,
119 U.S. 477, 478 (1886), in which the Court noted that the official report of Chief
Justice Chase’s Gordon opinion and the Court’s own record showed differences and
quoted the record.
64 72 U.S. (5 Wall.) 419 (1867). See also United States v. Jones, 119 U.S. 477
(1886).
65 E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Fed-
eral Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals
v. Feldman, 460 U.S. 462 (1983). See Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577–
579 (1962).
66 Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feld-
tary courts may, on the other hand, be a separate entity of the military having no
connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858).
75 285 U.S. 22 (1932).
76 285 U.S. at 51. On the constitutional problems of assignment to an adminis-
trative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones
& Laughlin Steel Corp., 301 U.S. 1, 48 (1937).
77 301 U.S. at 51–65.
ART. III—JUDICIAL DEPARTMENT 675
view of the agency fact finding upon the administrative record. Id. at 63–65. The
plurality opinion denied the validity of this approach in Northern Pipeline Constr.
Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982), although Justice White
in dissent accepted it. Id. at 115. The plurality, rather, rationalized Crowell and sub-
sequent cases on an analysis seeking to ascertain whether agencies or Article I tri-
bunals were “adjuncts” of Article III courts, that is, whether Article III courts were
sufficiently in charge to protect constitutional values. Id. at 76–87.
79 458 U.S. 50, 67–70 (1982) (plurality opinion). Thus, Justice Brennan ob-
serves that “a matter of public rights must at a minimum arise ‘between the govern-
ment and others,’ ” but “that the presence of the United States as a proper party to
the proceeding is a necessary but not sufficient means of distinguishing ‘private rights’
from ‘public rights.’ ” Id. at 69 & n.23. Crowell v. Benson, however, remained an em-
barrassing presence.
80 Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v.
Schor, 478 U.S. 833 (1986). The cases also abandoned the principle that the Federal
Government must be a party for the case to fall into the “public rights” category.
Thomas, 473 U.S. at 586; see also id. at 596–99 (Justice Brennan concurring).
81 “In essence, the public rights doctrine reflects simply a pragmatic understand-
ing that when Congress selects a quasi-judicial method of resolving matters that
‘could be conclusively determined by the Executive and Legislative Branches,’ the
danger of encroaching on the judicial powers is reduced.” Thomas v. Union Carbide
Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline, 458 U.S.
at 68 (plurality opinion)).
82 492 U.S. 33, 51–55 (1989). A Seventh Amendment jury-trial case, the decision
is critical to the Article III issue as well, because, as the Court makes clear what
was implicit before, whether Congress can submit a legal issue to an Article I tribu-
nal and whether it can dispense with a civil jury on that legal issue must be an-
676 ART. III—JUDICIAL DEPARTMENT
doing, however, the Court vitiated much of the core content of “pri-
vate” rights as a concept and left resolution of the central issue to
a balancing test. That is, “public” rights are, strictly speaking, those
in which the cause of action inheres in or lies against the Federal
Government in its sovereign capacity, the understanding since Mur-
ray’s Lessee. However, to accommodate Crowell v. Benson, Atlas Roof-
ing, and similar cases, seemingly private causes of action between
private parties will also be deemed “public” rights when Congress,
acting for a valid legislative purpose pursuant to its Article I pow-
ers, fashions a cause of action that is analogous to a common-law
claim and integrates it so closely into a public regulatory scheme
that it becomes a matter appropriate for agency resolution with lim-
ited involvement by the Article III judiciary.83
In Stern v. Marshall,84 the Court shifted away from the func-
tionalism of previous cases and back towards the formalism of North-
ern Pipeline. Specifically, the Stern Court held that Article III pro-
hibited a bankruptcy court from exercising jurisdiction over a common
law claim concerning fraudulent interference with a gift because it
did not fall under the public rights exception.85 The Court limited
the public rights exception to claims deriving from a “federal regu-
latory scheme” or claims in which “an expert Government agency
is deemed essential to a limited regulatory objective.” 86 In reject-
ing the application of the public rights exception to the fraudulent
interference claim, the Court observed that the claim was not one
that could be “pursued only by grace of the other branches” or could
have been “determined exclusively” by the executive or legislative
branches.87 Additionally, the underlying claim did not “flow from a
federal regulatory scheme” and was not limited to a “particularized
area of law.” 88 Because the claim involved the “most prototypical
exercise of judicial power,” adjudication of a common law cause of
swered by the same analysis. “[T]he question whether the Seventh Amendment per-
mits Congress to assign its adjudication to a tribunal that does not employ juries as
factfinders requires the same answer as the question whether Article III allows Con-
gress to assign adjudication of that cause of action to a non-Article III tribunal . . . .”
Id. at 52–53.
83 492 U.S. at 52–54. The Court reiterated that the government need not be a
action not created by federal law, the Court rejected the bank-
ruptcy courts’ exercise of jurisdiction over the claim as violating Ar-
ticle III.89
Constitutional Status of the Court of Claims and the Courts
of Customs and Patent Appeals.—Although the Supreme Court
long accepted the Court of Claims as an Article III court,90 it later
ruled that court to be an Article I court and its judges without con-
stitutional protection of tenure and salary.91 Then, in the 1950s, Con-
gress statutorily declared that the Court of Claims, the Customs
Court, and the Court of Customs and Patent Appeals were Article
III courts,92 a questionable act under the standards the Court had
used to determine whether courts were legislative or constitu-
tional.93 In Glidden Co. v. Zdanok,94 however, five of seven partici-
pating Justices united to find that indeed the Court of Claims and
the Court of Customs and Patent Appeals, at least, were constitu-
tional courts and their judges eligible to participate in judicial busi-
ness in other constitutional courts. Three Justices would have over-
ruled Bakelite and Williams and would have held that the courts
in question were constitutional courts.95 Whether a court is an Ar-
ticle III tribunal depends largely upon whether legislation establish-
ing it is in harmony with the limitations of that Article, specifi-
cally, “whether . . . its business is the federal business there specified
and its judges and judgments are allowed the independence there
expressly or impliedly made requisite.” When a court is created “to
carry into effect [federal] powers . . . over subject matter . . . and
not over localities,” a presumption arises that the status of such a
tribunal is constitutional rather than legislative.96 The other four
Justices expressly declared that Bakelite and Williams should not
89 Id.
90 De Groot v. United States, 72 U.S. (5 Wall.) 419 (1866); United States v. Union
Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925).
91 Williams v. United States, 289 U.S. 553 (1933); cf. Ex parte Bakelite Corp.,
§ 251 (Customs Court); 72 Stat. 848, § 1, 28 U.S.C. § 211 (Court of Customs and
Patent Appeals).
93 In Ex parte Bakelite Corp., 279 U.S. 438. 459 (1929), Justice Van Devanter
refused to give any weight to the fact that Congress had bestowed life tenure on the
judges of the Court of Customs Appeals because that line of thought “mistakenly
assumes that whether a court is of one class or the other depends on the intention
of Congress, whereas the true test lies in the power under which the court was cre-
ated and in the jurisdiction conferred.”
94 370 U.S. 530 (1962).
95 Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan,
and Stewart).
96 370 U.S. at 548, 552.
678 ART. III—JUDICIAL DEPARTMENT
be overruled,97 but two of them thought that the two courts had
attained constitutional status by virtue of the clear manifestation
of congressional intent expressed in the legislation.98 Two Justices
maintained that both courts remained legislative tribunals.99 Al-
though the result is clear, no standard for pronouncing a court leg-
islative rather than constitutional obtained the adherence of a ma-
jority of the Court.100
Status of Courts of the District of Columbia.—Through a
long course of decisions, the courts of the District of Columbia were
regarded as legislative courts upon which Congress could impose
nonjudicial functions. In Butterworth v. United States ex rel. Hoe,101
the Court sustained an act of Congress which conferred revisory
powers upon the Supreme Court of the District in patent appeals
and made its decisions binding only upon the Commissioner of Pat-
ents. Similarly, the Court later sustained the authority of Congress
to vest revisory powers in the same court over rates fixed by a pub-
lic utilities commission.102 Not long after this the same rule was
applied to the revisory powers of the District Supreme Court over
orders of the Federal Radio Commission.103 These rulings were based
on the assumption, express or implied, that the courts of the Dis-
trict were legislative courts, created by Congress pursuant to its
plenary power to govern the District of Columbia. In dictum in Ex
parte Bakelite Corp.,104 while reviewing the history and analyzing
the nature of the legislative courts, the Court stated that the courts
of the District were legislative courts.
In 1933, nevertheless, the Court abandoned all previous dicta
on the subject and found the courts of the District of Columbia to
be constitutional courts exercising the judicial power of the United
97 370 U.S. at 585 (Justice Clark and Chief Justice Warren concurring), 589 (Jus-
the rationale of Bakelite and Williams was based on a significant advisory and refer-
ence business of the two courts, which the two Justices now thought insignificant,
but what there was of it they thought nonjudicial and the courts should not enter-
tain it. Justice Harlan left that question open. Id. at 583.
100 Aside from doctrinal matters, Congress in 1982 created the United States
Court of Appeals for the Federal Circuit, giving it, inter alia, the appellate jurisdic-
tion of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat.
25, title 1, 28 U.S.C. § 41. At the same time Congress created the United States
Claims Court, now the United States Court of Federal Claims, as an Article I tribu-
nal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as amended,
§ 902(a)(1), 106 Stat. 4516, 28 U.S.C. §§ 171–180.
101 112 U.S. 50 (1884).
102 Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).
103 Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930).
104 279 U.S. 438, 450–455 (1929).
ART. III—JUDICIAL DEPARTMENT 679
365–365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v. Doyle, 434 U.S. 59
(1978). Under Swain, provision for hearing of motions for post-judgement relief by
convicted persons in the District, the present equivalent of habeas for federal con-
victs, is placed in Article I courts. That there are limits to Congress’s discretion is
asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 204 (1977).
110 Bankruptcy Act of 1978, Pub. L. 95–598, 92 Stat. 2549, codified in titles 11,
28. The bankruptcy courts were made “adjuncts” of the district courts by § 201(a),
28 U.S.C. § 151(a). For citation to the debate with respect to Article III versus Ar-
ticle I status for these courts, see Northern Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 61 n.12 (1982) (plurality opinion).
111 The statement of the holding is that of the two concurring Justices, 458 U.S.
at 89 (Justices Rehnquist and O’Connor), with which the plurality agreed “at the
least,” while desiring to go further. Id. at 87 n.40.
ART. III—JUDICIAL DEPARTMENT 681
and Stevens).
113 The plurality also rejected an alternative basis, a contention that as “ad-
juncts” of the district courts, the bankruptcy courts were like United States magis-
trates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932), to
which could be assigned fact-finding functions subject to review in Article III courts,
the fount of the administrative agency system. Northern Pipeline Constr. Co. v. Mara-
thon Pipe Line Co., 458 U.S. 50, 76–86 (1982). According to the plurality, the act
vested too much judicial power in the bankruptcy courts to treat them like agen-
cies, and it limited the review of Article III courts too much.
114 458 U.S. at 92, 105–13, 113–16 (Justice White, joined by Chief Justice Burger
refer certain pretrial motions and the trial of certain matters to persons appointed
to a specific term, was threatened. Pub. L. 90–578, 82 Stat. 1108, as amended, 28
U.S.C. §§ 631–639. See United States v. Radios, 447 U.S. 667 (1980); Mathews v.
Weber, 423 U.S. 261 (1976).
117 Pub. L. 98–353, 98 Stat. 333, judiciary provisions at 28 U.S.C. §§ 151 et seq.
118 See 28 U.S.C. § 157.
119 492 U.S. 33 (1989).
120 See Seventh Amendment, Cases at Common law, infra.
121 564 U.S. ___, No. 10–179, slip op. (2011).
122 The Court noted that the claim “. . . is not a matter that can be pursued
only by grace of the other branches . . . or one that ‘historically could have been
determined exclusively by’ those branches . . . . It does not ‘depend[] on the will of
Congress’s . . . ; Congress has nothing to do with it. [It] . . . does not flow from a
federal statutory scheme . . . . [And it] is not ‘completely dependent upon’ adjudica-
tion of a claim created by federal law . . . . ” 564 U.S. ___, No. 10–179, slip op. at
27 (2011) (citations omitted). The Court also noted that filing of a claim in bank-
ruptcy court (here, a defamation claim) did not constitute consent to a counter-
claim, as the claimant had nowhere else to go to obtain recovery. Id.
123 575 U.S. ___, No. 13–935, slip op. (2015).
ART. III—JUDICIAL DEPARTMENT 683
the more rigid approach enunciated in INS v. Chadha and Bowsher v. Synar, involv-
ing congressional incursions on executive power.
129 473 U.S. at 589.
130 CFTC v. Schor, 478 U.S. at 851 (summarizing the Thomas rule).
684 ART. III—JUDICIAL DEPARTMENT
to [a] difficult problem.” 131 The limited nature of judicial review was
seen as a plus in the sense that “no unwilling defendant is sub-
jected to judicial enforcement power.” On the other hand, availabil-
ity of limited judicial review of the arbitrator’s findings and deter-
mination for fraud, misconduct, or misrepresentation, and for due
process violations, preserved the “ ‘appropriate exercise of the judi-
cial function.’ ” 132 Thus, the Court concluded, Congress in exercise
of Article I powers “may create a seemingly ‘private’ right that is
so closely integrated into a public regulatory scheme as to be a mat-
ter appropriate for agency resolution with limited involvement by
the Article III judiciary.” 133
In Schor, the Court described Art. III, § 1 as serving a dual pur-
pose: to protect the role of an independent judiciary and to safe-
guard the right of litigants to have claims decided by judges free
from potential domination by the other branches of government. A
litigant’s Article III right is not absolute, the Court determined, but
may be waived. This the litigant had done by submitting to the ad-
ministrative law judge’s jurisdiction rather than independently seek-
ing relief as he was entitled to and then objecting only after ad-
verse rulings on the merits. But the institutional integrity claim,
not being personal, could not be waived, and the Court reached the
merits. The threat to institutional independence was “weighed” by
reference to “a number of factors.” The conferral on the CFTC of
pendent jurisdiction over common law counterclaims was seen as
more narrowly confined than was the grant to bankruptcy courts
at issue in Marathon, and as more closely resembling the “model”
approved in Crowell v. Benson. The CFTC’s jurisdiction, unlike that
of bankruptcy courts, was said to be confined to “a particularized
area of the law;” the agency’s orders were enforceable only by order
of a district court,134 and reviewable under a less deferential stan-
dard, with legal rulings being subject to de novo review; and the
agency was not empowered, as had been the bankruptcy courts, to
exercise “all ordinary powers of district courts.” 135
forts to distinguish between the context presented in that case and the bankruptcy
context, the Court, in Wellness International v. Sharif, extended Schor’s holding to
adjudications of private right claims by bankruptcy courts. See 575 U.S. ___, No.
13–935, slip op. (2015). Specifically, the Wellness International Court utilized the bal-
ART. III—JUDICIAL DEPARTMENT 685
JUDICIAL POWER
powers vested in the Special Division of the United States Court of Appeals for the
District of Columbia Circuit under the Ethics in Government Act in respect to the
independent counsel were administrative, but because the major nonjudicial power,
the appointment of the independent counsel, was specifically authorized in the ap-
pointments clause, the additional powers were miscellaneous and could be lodged
there by Congress. Implicit in the Court’s analysis was the principle that a line ex-
ists that Congress may not cross. Morrison v. Olson, 487 U.S. 654, 677–685 (1988).
139 JUSTICE SAMUEL MILLER, ON THE CONSTITUTION 314 (1891).
140 Muskrat v. United States, 219 U.S. 346, 361 (1911).
141 United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832).
142 General Investment Co. v. New York Central R.R., 271 U.S. 228, 230 (1926).
143 Williams v. United States, 289 U.S. 553, 566 (1933); Yakus v. United States,
75 (1807).
146 Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
ART. III—JUDICIAL DEPARTMENT 687
sion, and injustice, and to protect their own jurisdiction and offi-
cers in the protection of property in custody of law,147 to appoint
masters in chancery, referees, auditors, and other investigators,148
and to admit and disbar attorneys.149
As judicial power is the authority to render dispositive judg-
ments, Congress violates the separation of powers when it pur-
ports to alter final judgments of Article III courts.150 Once such in-
stance arose when the Court unexpectedly recognized a statute of
limitations for certain securities actions that was shorter than what
had been recognized in many jurisdictions, resulting in the dis-
missal of several suits, which then become final because they were
not appealed. Congress subsequently enacted a statute that, though
not changing the limitations period prospectively, retroactively ex-
tended the time for suits that had been dismissed and provided for
the reopening of these final judgments. In Plaut v. Spendthrift Farm,
Inc.,151 the Court invalidated the statute, holding it impermissible
for Congress to disturb a final judgment. “Having achieved finality,
. . . a judicial decision becomes the last word of the judicial depart-
ment with regard to a particular case or controversy, and Congress
may not declare by retroactive legislation that the law applicable
to that very case was something other than what the courts said it
was.” 152 In Miller v. French,153 by contrast, the Court ruled that
the Prison Litigation Reform Act’s automatic stay of ongoing injunc-
tions remedying violations of prisoners’ rights did not amount to
an unconstitutional legislative revision of a final judgment. Rather,
the automatic stay merely altered “the prospective effect” of injunc-
tions, and it is well established that such prospective relief “re-
mains subject to alteration due to changes in the underlying law.” 154
careful to delineate the difference between attempting to alter a final judgment, one
rendered by a court and either not appealed or affirmed on appeal, and legislatively
amending a statute so as to change the law as it existed at the time a court issued
a decision that was on appeal or otherwise still alive at the time a federal court
reviewed the determination below. A court must apply the law as revised when it
considers the prior interpretation. Id. at 226–27. Article III creates or authorizes
Congress to create not a collection of unconnected courts, but a judicial department
composed of “inferior courts” and “one Supreme Court.” “Within that hierarchy, the
decision of an inferior court is not (unless the time for appeal has expired) the final
word of the department as a whole.” Id. at 227.
151 514 U.S. 211 (1995).
152 514 U.S. at 227 (emphasis supplied by Court).
153 530 U.S. 327 (2000).
154 530 U.S. at 344.
688 ART. III—JUDICIAL DEPARTMENT
tice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story’s
argument appears in Amar, A Neo-Federalist View of Article III: Separating the Two
Tiers of Federal Jurisdiction, 65 B. U. L. REV. 205 (1985); see also Amar, Meltzer,
and Redish, Symposium: Article III and the Judiciary Act of 1789, 138 U. PA. L.
REV. 1499 (1990). Professor Amar argues from the text of Article III, § 2, cl. 1, that
the use of the word “all” in each of the federal question, admiralty, and public am-
bassador subclauses means that Congress must confer the entire judicial power to
cases involving those issues, whereas it has more discretion in the other six catego-
ries.
157 Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137
(1803), once the power of the Court to hold legislation unconstitutional was estab-
lished.
158 The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44
U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States
v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Constr. Co., 260
U.S. 226 (1922). Some judges, however, have expressed the opinion that Congress’s
authority is limited by provisions of the Constitution such as the Due Process Clause,
so that a limitation on jurisdiction that denied a litigant access to any remedy might
be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965–966 (D.C. Cir.
1949), rev’d on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950);
Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert. denied,
335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (N.D. Calif. 1968);
Murray v. Vaughn, 300 F. Supp. 688, 694–695 (D.R.I. 1969). The Supreme Court
has had no occasion to consider the question.
159 Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot,
3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell
v. Maurer, 293 U.S. 237 (1934).
ART. III—JUDICIAL DEPARTMENT 689
Act of February 28, 1793, 1 Stat. 324. The reason for the Court’s inaction may, on
the other hand, have been doubt about the proper role of the Attorney General in
the matter, an issue raised in the opinion. See Marcus & Teir, Hayburn’s Case: A
Misinterpretation of Precedent, 1988 WIS. L. REV. 4; Bloch, The Early Role of the At-
torney General in Our Constitutional Scheme: In the Beginning There was Pragma-
tism, 1989 DUKE L. J. 561, 590–618. Notice the Court’s discussion in Plaut v. Spend-
thrift Farm, Inc., 514 U.S. 211, 218, 225–26 (1995).
163 See United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United
States, 69 U.S. (2 Wall.) 561 (1865); In re Sanborn, 148 U.S. 222 (1893); cf. McGrath
v. Kritensen, 340 U.S. 162, 167–168 (1950).
690 ART. III—JUDICIAL DEPARTMENT
164 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948).
165 Connor v. Johnson, 402 U.S. 690 (1971). Under § 5 of the Voting Rights Act
of 1965, 79 Stat. 437, 42 U.S.C. § 1973e, no state may “enact or seek to administer”
any change in election law or practice different from that in effect on a particular
date without obtaining the approval of the Attorney General or the district court in
the District of Columbia, a requirement interpreted to reach reapportionment and
redistricting. Allen v. State Bd. of Elections, 393 U.S. 544 (1969); Perkins v. Mat-
thews, 400 U.S. 379 (1971). The issue in Connor was whether a districting plan drawn
up and ordered into effect by a federal district court, after it had rejected a legisla-
tively drawn plan, must be submitted for approval. Unanimously, on the papers with-
out oral argument, the Court ruled that, despite the statute’s inclusive language, it
did not apply to court-drawn plans.
166 Gordon v. United States, 117 U.S. 697 (1865) (published 1885). See United
States v. Jones, 119 U.S. 477 (1886). The Chief Justice’s initial effort was in United
States v. Ferreira, 54 U.S. (13 How.) 40 (1852).
167 69 U.S. (2 Wall.) 561 (1865).
168 Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963,
169 Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865). Following repeal of
the objectionable section, Act of March 17, 1866, 14 Stat. 9, the Court accepted ap-
pellate jurisdiction. United States v. Jones, 119 U.S. 477 (1886); De Groot v. United
States, 72 U.S. (5 Wall.) 419 (1867). But note that execution of the judgments was
still dependent upon congressional appropriations. On the effect of the requirement
for appropriations at a time when appropriations had to be made for judgments over
$100,000, see Glidden Co. v. Zdanok, 370 U.S. 530, 568–571 (1962). Cf. Regional Rail
Reorganization Act Cases (Blanchette v. Connecticut General Ins. Corp.), 419 U.S.
102, 148–149 & n.35 (1974).
170 Gordon v. United States, 117 U.S. 697 (1865) (published 1885). Subsequent
cases accepted the doctrine that an award of execution as distinguished from final-
ity of judgment was an essential attribute of judicial power. See In re Sanborn, 148
U.S. 122, 226 (1893); ICC v. Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Min-
ing Co. v. United States, 175 U.S. 423, 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908);
Muskrat v. United States, 219 U.S. 346, 355, 361–362 (1911); Postum Cereal Co. v.
California Fig Nut Co., 272 U.S. 693 (1927).
171 Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).
172 Liberty Warehouse Co. v. Burley Growers’ Coop. Marketing Ass’n, 276 U.S.
71 (1928).
173 Fidelity Nat’l Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927).
692 ART. III—JUDICIAL DEPARTMENT
Swope and Wallace removed all constitutional doubts previously shrouding a pro-
posed federal declaratory judgment act, which was enacted in 1934, 48 Stat. 955, 28
U.S.C. §§ 2201–2202, and unanimously sustained in Aetna Life Ins. Co. v. Haworth,
300 U.S. 227 (1937). Wallace and Haworth were cited with approval in Medimmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article III’s limitation of federal
courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected in the ‘actual controversy’
requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] re-
quire[ ] a patent licensee to terminate or be in breach of its license agreement be-
fore it can seek a declaratory judgment that the underlying patent is invalid, unen-
forceable, or not infringed,” id. at 120–21).
175 Randall v. Brigham, 74 U.S. 523, 537 (1869). Judicial immunity “is a gen-
example of the distinction. A judge of a probate court who held a criminal trial would
act in clear absence of all jurisdiction over the subject matter, whereas a judge of a
criminal court who held a criminal trial for an offense that was not illegal would
act merely in excess of his jurisdiction. Id. at 352.
ART. III—JUDICIAL DEPARTMENT 693
Powell, concluded that what Judge Stump did “was beyond the pale of anything that
could sensibly be called a judicial act.” Id. at 365. Indiana law, Justice Stewart wrote,
provided for administrative proceedings for the sterilization of certain people who
were institutionalized (which the girl in this case was not), and what Judge Stump
did “was in no way an act ‘normally performed by a judge.’ ” Id. at 367.
180 Supreme Court of Virginia v. Consumers Union of the United States, 446
ficers for injunctive relief are for all practical purposes suits against the State it-
self,” and, therefore, the state must “bear the burden of the counsel fees award.”
Hutto v. Finney, 437 U.S. 678, 700 (1978).
183 Consumers Union, 446 U.S. at 738–39. This is not the case, however, when
judges are sued in their legislative capacity for having issued a rule. Id. at 734.
694 ART. III—JUDICIAL DEPARTMENT
to preclude the award of attorneys’ fees in a suit against a judicial officer unless the
officer’s action “was clearly in excess of such officer’s jurisdiction.”
185 E.g., United States v. United Mine Workers, 330 U.S. 258 (1947).
186 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441–443 (1911); Ex parte
Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324,
327–328 (1904).
187 In Robertson v. United States ex rel. Watson, the Court had granted certio-
rari to consider a District of Columbia law that allowed a private individual to bring
a criminal contempt action in the congressionally established D.C. courts based on
a violation of a civil protective order. 560 U.S. ___, No. 08–6261, slip op. (2010). The
Court subsequently issued a per curiam order dismissing the writ of certiorari as
having been improvidently granted, but four Justices dissented. Writing in dissent,
Chief Justice Roberts thought it imperative to make clear that “[t]he terrifying force
of the criminal justice system may only be brought to bear against an individual by
society as a whole, through a prosecution brought of behalf of the government.” 560
U.S. ___, No. 08–6261, slip op. at 1 (2010) (Roberts, C.J., dissenting). Of particular
concern was how various protections in the Bill of Rights against government action
would play out in a privately brought action. Id. at 5–6.
188 267 U.S. 87, 119–120 (1925). In an analogous case, the Court was emphatic
in a dictum that Congress cannot require a jury trial where the contemnor has failed
to perform a positive act for the relief of private parties, Michaelson v. United States
ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65–66 (1924). But see Bloom v. Illi-
nois, 391 U.S. 194, 202 (1968).
ART. III—JUDICIAL DEPARTMENT 695
dicta that such pardon power did not extend to civil contempt. Not-
withstanding the importance of distinguishing between the two, there
have been instances where defendants have been charged with both
civil and criminal contempt for the same act.189
Long-standing doctrine regarding how courts should distin-
guish between civil and criminal contempt remains influential. In
Shillitani v. United States,190 defendants were sentenced by their
respective District Courts to two years imprisonment for contempt
of court, but the sentences contained a purge clause providing for
the unconditional release of the contemnors upon agreeing to tes-
tify before a grand jury. On appeal, the Supreme Court held that
the defendants were in civil contempt, notwithstanding their sen-
tence for a definite period of time, on the grounds that the test for
determining whether the contempt is civil or criminal is what the
court primarily seeks to accomplish by imposing sentence.191 Here,
the purpose was to obtain answers to the questions for the grand
jury, and the court provided for the defendants’ release upon com-
pliance; whereas, “a criminal contempt proceeding would be charac-
terized by the imposition of an unconditional sentence for punish-
ment or deterence.” 192
In International Union, UMW v. Bagwell,193 however, the Court
formulated a new test for drawing the distinction between civil and
criminal contempt in certain cases. Henceforth, the imposition of
non-compensatory contempt fines for the violation of any complex
injunction will require criminal proceedings. This case, as have so
many, involved the imposition of large fines (here, $52 million) upon
a union in a strike situation for violations of an elaborate court in-
junction restraining union activity during the strike. The Court was
vague with regard to the standards for determining when a court
order is “complex” and thus requires the protection of criminal pro-
ceedings.194
The Court has also recognized a second, but more subtle distinc-
tion between types of contempt, and that is the difference between
direct and indirect contempt. Direct contempt results when the con-
tumacious act is committed “in the presence of the Court or so near
189 See United States v. United Mine Workers, 330 U.S. 258, 299 (1947).
190 384 U.S. 364 (1966).
191 384 U.S. at 370.
192 384 U.S. at 370 n.6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for
occur in the presence of the court and that determinations of violations require elabo-
rate and reliable fact-finding. See esp. id. at 837–38.
696 ART. III—JUDICIAL DEPARTMENT
195 Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which
sued on the basis of the Supreme Court’s supervisory power over them rather than
upon a constitutional foundation, while, of course, the limitations imposed on state
courts necessarily are on constitutional dimensions. Indeed, it is often the case that
a limitation, which is applied to an inferior federal court as a superintending mea-
sure, is then transformed into a constitutional limitation and applied to state courts.
Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391
U.S. 194 (1968). In the latter stage, the limitations then bind both federal and state
courts alike. Therefore, in this section, Supreme Court constitutional limitations on
state court contempt powers are cited without restriction for equal application to
federal courts.
198 Fox, The King v. Almon, 24 L.Q. REV. 184, 194–195 (1908).
199 Fox, The Summary Power to Punish Contempt, 25 L.Q. REV. 238, 252 (1909).
200 1 Stat. 83, § 17 (1789).
ART. III—JUDICIAL DEPARTMENT 697
ground of the act of 1831, see Frankfurter and Landis, Power of Congress Over Pro-
cedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of
Powers, 37 HARV. L. REV. 1010, 1024–1028 (1924).
202 86 U.S. (19 Wall.) 505 (1874).
203 86 U.S. at 505–11.
204 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In
207 266 U.S. at 65–66. See Frankfurter and Landis, Power of Congress Over Pro-
ever, the Court, invoking its supervisory power, instructed the lower federal courts
first to request the United States Attorney to prosecute a criminal contempt and
only if refused should they appoint a private lawyer. Id. at 801–802. Still using its
supervisory power, the Court held that the district court had erred in appointing
counsel for a party that was the beneficiary of the court order; disinterested counsel
had to be appointed. Id. at 802–08. Justice Scalia contended that the power to pros-
ecute is not comprehended within Article III judicial power and that federal judges
had no power, inherent or otherwise, to initiate a prosecution for contempt or to
appoint counsel to pursue it. Id. at 815. See also United States v. Providence Jour-
nal Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested pri-
vate attorney. The Supreme Court dismissed the writ of certiorari after granting it,
however, holding that only the Solicitor General representing the United States could
bring the petition to the Court. See 28 U.S.C. § 518.
209 493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory
tions imposed by the First Amendment upon this judicial power and delineating the
requisite serious degree of harm to the administration of law necessary to justify
exercise of the contempt power to punish the publisher of an out-of-court statement
attacking a charge to the grand jury, absent any showing of actual interference with
the activities of the grand jury.
It is now clearly established that courtroom conduct to be punishable as con-
tempt “must constitute an imminent, not merely a likely, threat to the administra-
tion of justice. The danger must not be remote or even probable; it must immedi-
ately imperil.” Craig v. Harney, 331 U.S. 367, 376 (1947); In re Little, 404 U.S. 553,
555 (1972).
216 E.g., Estes v. Texas, 381 U.S. 532 (1965); Marshall v. United States, 360 U.S.
228 See Green v. United States, 356 U.S. 165 (1958); United States v. Barnett,
376 U.S. 681 (1964), and cases cited. The dissents of Justices Black and Douglas in
those cases prepared the ground for the Court’s later reversal. On the issue, see Frank-
furter and Landis, Power of Congress over Procedure in Criminal Contempts in ‘In-
ferior’ Federal Courts—A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1042–
1048 (1924).
229 384 U.S. 373 (1966).
230 Bloom v. Illinois, 391 U.S. 194 (1968). See also International Union, UMW v.
Bagwell, 512 U.S. 821 (1994) (refining the test for when contempt citations are crimi-
nal and thus require jury trials).
231 391 U.S. at 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974), the Court
held a jury trial to be required when the trial judge awaits the conclusion of the
proceeding and then imposes separate contempt sentences in which the total aggre-
gated more than six months even though no sentence for more than six months was
imposed for any single act of contempt. For a tentative essay at defining a petty
offense when a fine is levied, see Muniz v. Hoffman, 422 U.S. 454, 475–77 (1975). In
International Union, UMW v. Bagwell, 512 U.S. 821, 837 n.5 (1994), the Court con-
tinued to reserve the question of the distinction between petty and serious con-
tempt fines, because of the size of the fine in that case.
232 The Sixth Amendment is applicable only to criminal cases and the Seventh
to suits at common law, but the due process clause is available if needed.
ART. III—JUDICIAL DEPARTMENT 703
may be imprisoned for the term of the grand jury, which can be 36 months. 18 U.S.C.
§ 3331(a).
234 E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959); Dairy Queen v. Wood,
369 U.S. 469 (1962); Ross v. Bernhard, 396 U.S. 531 (1970). However, the Court’s
expansion of jury trial rights may have halted with McKeiver v. Pennsylvania, 403
U.S. 528 (1971).
235 267 U.S. 517, 539 (1925).
236 The Toledo Company case that the Court cited was affirmed in Toledo News-
240 400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 U.S. 212 (1971);
Holt v. Virginia, 381 U.S. 131 (1965). Even in the absence of a personal attack on a
judge that would tend to impair his detachment, the judge may still be required to
excuse himself and turn a citation for contempt over to another judge if the re-
sponse to the alleged misconduct in his courtroom partakes of the character of “marked
personal feelings” being abraded on both sides, so that it is likely the judge has felt
a “sting” sufficient to impair his objectivity. Taylor v. Hayes, 418 U.S. 488 (1974).
241 400 U.S. at 463. See Illinois v. Allen, 397 U.S. 337 (1970), in which the Court
affirmed that summary contempt or expulsion may be used to keep a trial going.
242 330 U.S. 258 (1947). See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994).
243 330 U.S. at 292–93.
244 330 U.S. at 293. See Walker v. City of Birmingham, 388 U.S. 307 (1967).
245 203 U.S. 563 (1906).
246 330 U.S. at 290–92.
247 330 U.S. at 299. But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and
tigatory Power: Contempt, supra, for a discussion of Congress’s power to cite an in-
dividual for contempt by virtue of its investigatory duties, which is applicable, at
least by analogy, to administrative agencies.
251 “Certain implied powers must necessarily result to our courts of justice, from
the nature of their institution. . . . To fine for contempt, imprison for contumacy,
enforce the observance of order, &c., are powers which cannot be dispensed with in
a court, because they are necessary to the exercise of all others: and so far our courts,
no doubt, possess powers not immediately derived from statute . . . .” United States
v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812).
252 See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821); Ex parte Robin-
son, 86 U.S. (19 Wall.) 505, 510 (1874); Link v. Wabash R.R., 370 U.S. 626, 630–631
(1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991); and id. at 58 (Justice
Scalia dissenting), 60, 62–67 (Justice Kennedy dissenting).
253 Chambers v. NASCO, Inc., 501 U.S. at 47.
ART. III—JUDICIAL DEPARTMENT 707
op. at 5–6 (2017) (holding that a court, “when using its inherent sanctioning author-
ity,” must “establish a causal link—between the litigant’s misbehavior and legal fees
paid by the opposing party”).
257 Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
258 Link v. Wabash R.R., 370 U.S. 626 (1962).
259 Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts
260 1 Stat. 73, 81. “Section 13 was a provision unique to the Court, granting
holding that the All Writs section of the Judicial Code, 28 U.S.C. § 1651(a), gives
federal courts the power to employ the ancient writ of coram nobis.
262 This proposition was recently reasserted in Pennsylvania Bureau of Correc-
tion v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal
district court lacked authority to order U.S. marshals to transport state prisoners,
such authority not being granted by the relevant statutes).
263 495 U.S. 33 (1990).
264 495 U.S. at 55, citing Griffin v. Prince Edward County School Bd., 377 U.S.
218, 233–34 (1964) (an order that local officials “exercise the power that is theirs” to
levy taxes in order to open and operate a desegregated school system “is within the
court’s power if required to assure . . . petitioners that their constitutional rights
will no longer be denied them”).
265 495 U.S. at 50–52.
ART. III—JUDICIAL DEPARTMENT 709
266 5 U.S. (1 Cr.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796).
267 McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); McClung v. Silliman, 19 U.S. (6
Wheat.) 598 (1821).
268 37 U.S. (12 Pet.) 524 (1838).
269 In 1962, Congress conferred upon all federal district courts the same power
pus ad subjiciendum, by which a court would inquire into the lawfulness of a deten-
tion of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 95 (1807). For other uses,
see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266
(1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in
seeking post-conviction relief, now the largest office of the writ, but proceed under
28 U.S.C. § 2255, on a motion to vacate judgment. Intimating that if § 2255 af-
forded prisoners a less adequate remedy than they would have under habeas cor-
pus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S.
205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States,
373 U.S. 1, 14 (1963). The claims cognizable under one are cognizable under the
other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas
corpus is used here to include the § 2255 remedy. There is a plethora of writings
about the writ. See, e.g., Hart & Wechsler (6th ed), supra at 1153–1310; Develop-
ments in the Law: Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970).
271 Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82.
272 INS v. St. Cyr, 533 U.S. 289, 301 (2001), quoted in Rasul v. Bush, 542 U.S.
ever, is the power to issue the writ vested in the federal courts,
which raises the question of whether Congress could suspend the
writ de facto by declining to authorize its issuance. In other words,
is a statute needed to make the writ available or does the right to
habeas corpus stem by implication from the Suspension Clause or
from the grant of judicial power? 273
Since Chief Justice Marshall’s opinion in Ex parte Bollman,274
it was generally 275 accepted that “the power to award the writ by
any of the courts of the United States, must be given by written
law.” 276 As Marshall explained, however, the suspension clause was
an “injunction,” an “obligation” to provide “efficient means by which
this great constitutional privilege should receive life and activity;
for if the means be not in existence, the privilege itself would be
lost, although no law for its suspension should be enacted.” 277 And
so it has been understood since,278 with only a few judicial voices
raised to suggest that what Congress could not do directly (by sus-
pension) it could not do by omission (by failing to provide for ha-
beas).279 But, because statutory authority had always existed autho-
rizing the federal courts to grant the relief they deemed necessary
under habeas corpus, the Court did not need to face the ques-
tion.280
Having determined in Bollman that a statute was necessary be-
fore the federal courts had power to issue writs of habeas corpus,
Chief Justice Marshall pointed to § 14 of the Judiciary Act of 1789
as containing the necessary authority.281 As the Chief Justice read
273 Professor Chafee contended that by the time of the Constitutional Conven-
tion the right to habeas corpus was so well established no affirmative authorization
was needed. The Most Important Human Right in the Constitution, 32 B.U.L. REV.
143, 146 (1952). But compare Collins, Habeas Corpus for Convicts: Constitutional
Right or Legislative Grace?, 40 CALIF. L. REV. 335, 344–345 (1952).
274 8 U.S. (4 Cr.) 75 (1807).
275 8 U.S. at 94. See also Ex parte Dorr, 44 U.S. (3 How.) 103 (1845).
276 8 U.S. at 64.
277 8 U.S. at 95. In quoting the clause, Marshall renders “shall not be sus-
other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that
habeas exists as an inherent common law right); see also Justice Black’s dissent, id.
at 791, 798: “Habeas corpus, as an instrument to protect against illegal imprison-
ment, is written into the Constitution. Its use by courts cannot in my judgment be
constitutionally abridged by Executive or by Congress.” And, in Jones v. Cun-
ningham, 371 U.S. 236, 238 (1963), the Court said: “The habeas corpus jurisdic-
tional statute implements the constitutional command that the writ of habeas cor-
pus be made available.” (Emphasis added).
280 Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).
281 Ex parte Bollman, 8 U.S. (4 Cr.) 75, 94 (1807). See Fay v. Noia, 372 U.S.
ing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a
state in violation of a treaty). See also Bankruptcy Act of April 4, 1800,§ 38, 2 Stat.
19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by
Act of December 19, 1803, 2 Stat. 248.
283 The act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts
“to grant writs of habeas corpus in all cases where any person may be restrained of
his or her liberty in violation of the constitution, or of any treaty or law of the United
States. . . .” On the law with respect to state prisoners prior to this statute, see Ex
parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493
(No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964
(No. 2278) (C.C.D. Pa. 1805) (Justice Washington).
284 Felker v. Turpin, 518 U.S. 651, 663–64 (1996). See INS v. St. Cyr, 533 U.S.
289, 300–01 (2001) (leaving open the question of whether post-1789 legal develop-
ments are protected); Swain v. Pressley, 430 U.S. 372 (1977) (finding “no occasion”
to define the contours of constitutional limits on congressional modification of the
writ).
285 Pub. L. 104–132, §§ 101–08, 110 Stat. 1214, 1217–26, amending, inter alia,
the federal habeas statute, applied to these detainees. Congress then removed all
court jurisdiction over these detainees under the Detainee Treatment Act of 2005,
712 ART. III—JUDICIAL DEPARTMENT
sion Clause. Although the Court did not explicitly identify whether
the underlying right to habeas that was at issue arose from stat-
ute, common law, or the Constitution itself, it did decline to infer
“too much” from the lack of historical examples of habeas being ex-
tended to enemy aliens held overseas.289 In Boumediene, the Court
instead emphasized a “functional” approach that considered the citi-
zenship and status of the detainee, the adequacy of the process through
which the status determination was made, the nature of the sites
where apprehension and detention took place, and any practical ob-
stacles inherent in resolving the prisoner’s entitlement to the writ.290
In further determining that the procedures afforded to the de-
tainees to challenge their detention in court were not adequate sub-
stitutes for habeas, the Court noted the heightened due process con-
cerns when a detention is based principally on Executive Branch
proceedings—here, Combatant Status Review Tribunals or (CSRTs)—
rather than proceedings before a court of law.291 The Court also ex-
pressed concern that the detentions had, in some cases, lasted as
long as six years without significant judicial oversight.292 The Court
further noted the limitations at the CSRT stage on a detainee’s abil-
ity to find and present evidence to challenge the government’s case,
the unavailability of assistance of counsel, the inability of a de-
tainee to access certain classified government records which could
contain critical allegations against him, and the admission of hear-
say evidence. While reserving judgment as to whether the CSRT
process itself comports with due process, the Court found that the
appeals process for these decisions, assigned to the United States
Court of Appeals for the District of Columbia, did not contain the
means necessary to correct errors occurring in the CSRT pro-
cess.293
Pub. L. 109–148, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction
to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien
detained . . . at Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld,
548 U.S. 557 (2006), that the Detainee Treatment Act did not apply to detainees
whose cases were pending at the time of enactment, it was amended by the Mili-
tary Commissions Act of 2006, Pub. L. 109–366, to also apply to pending cases where
a detainee had been determined to be an enemy combatant.
289 128 S. Ct. at 2251.
290 128 S. Ct. at 2258, 2259.
291 Under the Detainee Treatment Act, Pub. L. 109–148, Title X, Congress granted
admit and consider relevant exculpatory evidence that was not introduced in the
ART. III—JUDICIAL DEPARTMENT 713
prior proceeding. The Court also listed other potential constitutional infirmities in
the review process, including the absence of provisions empowering the D.C. Circuit
to order release from detention, and not permitting petitioners to challenge the Presi-
dent’s authority to detain them indefinitely.
294 28 U.S.C. §§ 2241(c), 2254(a). “Custody” does not mean one must be con-
whether “the custodian can be reached by service of process”). See also Rasul v. Bush,
542 U.S. 466 (2004) (federal district court for District of Columbia had jurisdiction
of habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba);
Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal district court in New York lacks
jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina;
the commander of the brig, not the Secretary of Defense, is the immediate custo-
dian and proper respondent).
296 McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960).
297 28 U.S.C. § 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng v.
574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), the Court overruled McNally v.
Hill, 293 U.S. 131 (1934), and held that a prisoner may attack on habeas the second
of two consecutive sentences while still serving the first. See also Walker v. Wain-
wright, 390 U.S. 335 (1968) (prisoner may attack the first of two consecutive sen-
tences although the only effect of a successful attack would be immediate confine-
ment on the second sentence). Braden v. 30th Judicial Circuit Court , 410 U.S. 484
(1973), held that one sufficiently in custody of a state could use habeas to challenge
the state’s failure to bring him to trial on pending charges.
714 ART. III—JUDICIAL DEPARTMENT
and id. at 500, 512–24 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509,
515–21 (1982). If a prisoner submits a petition with both exhausted and unexhausted
claims, the habeas court must dismiss the entire petition. Rose v. Lundy, 455 U.S.
at 518–519. Exhaustion first developed in cases brought by persons in state custody
prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. Brown,
205 U.S. 179 (1907).
300 Brown v. Allen, 344 U.S. 443, 447–450 (1953); id. at 502 (Justice Frank-
200 (1950).
303 28 U.S.C. § 2244(c). But an affirmance of a conviction by an equally divided
Court is not an adjudication on the merits. Neil v. Biggers, 409 U.S. 188 (1972).
304 28 U.S.C. § 2255.
305 28 U.S.C. § 2241(d). Cf. Braden v. 30th Judicial Circuit Court, 410 U.S. 484
(1973), overruling Ahrens v. Clark, 335 U.S. 188 (1948), and holding that a peti-
tioner may file in the district in which his custodian is located even though the pris-
oner may be located elsewhere.
306 Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Riddle v. Dyche, 262 U.S. 333,
335 (1923); Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311 (1946). But
compare Brown v. Allen, 344 U.S. 443, 558–560 (1953) (Justice Frankfurter dissent-
ing in part).
307 Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 764, 780
Justice Brewer, speaking for the Court, approached a theory of inherent equity ju-
risdiction when he declared: “The principles of equity exist independently of and an-
terior to all Congressional legislation, and the statutes are either enunciations of
those principles or limitations upon their application in particular cases.” It should
be emphasized, however, that the Court made no suggestion that it could apply pre-
existing principles of equity without jurisdiction over the subject matter. Indeed, the
inference is to the contrary. In a dissenting opinion in which Justices McKenna and
Van Devanter joined, in Paine Lumber Co. v. Neal, 244 U.S. 459, 475 (1917), Justice
Pitney contended that Article III, § 2, “had the effect of adopting equitable remedies
in all cases arising under the Constitution and laws of the United States where such
remedies are appropriate.”
310 Boyce’s Executors v. Grundy, 28 U.S. (3 Pet.) 210 (1830).
311 1 Stat. 333, 28 U.S.C. § 2283.
312 26 U.S.C. § 7421(a).
313 This provision was repealed in 1976, save for apportionment and districting
provides for such courts now, in order to expedite Supreme Court consideration of
constitutional challenges to critical federal laws. See Bowsher v. Synar, 478 U.S. 714,
716 ART. III—JUDICIAL DEPARTMENT
719–721 (1986) (3-judge court and direct appeal to Supreme Court in the Balanced
Budget and Emergency Deficit Control Act of 1985).
315 Repealed by Pub. L. 93–584, § 7, 88 Stat. 1918.
316 28 U.S.C. § 1342.
317 29 U.S.C. §§ 52, 101–110.
318 56 Stat. 31, 204 (1942).
319 The statute was part of an Omnibus Appropriations Act signed by the Presi-
dent on April 26, 1996. Pub. L. 104–134, §§ 801–10, 110 Stat. 1321–66—1321–77,
amending 18 U.S.C. § 3626.
320 530 U.S. 327 (2000).
321 530 U.S. at 348.
ART. III—JUDICIAL DEPARTMENT 717
311 U.S. 91, 100–103 (1940), and compare Sinclair Refining Co. v. Atkinson, 370
U.S. 195 (1962), with Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970).
327 319 U.S. 182 (1943).
718 ART. III—JUDICIAL DEPARTMENT
serted, derive their jurisdiction solely from the exercise of the au-
thority to ordain and establish inferior courts conferred on Con-
gress by Article III, § 1, of the Constitution. This power, which Congress
is left free to exercise or not, was held to include the power “ ‘of
investing them with jurisdiction either limited, concurrent, or exclu-
sive, and of withholding jurisdiction from them in the exact de-
grees and character which to Congress may seem proper for the pub-
lic good.’ ” 328 Although the Court avoided passing upon the
constitutionality of the prohibition against interlocutory decrees, the
language of the Court was otherwise broad enough to support it,
as was the language of Yakus v. United States,329 which sustained
a different phase of the special procedure for appeals under the Emer-
gency Price Control Act.330
See South Carolina v. Katzenbach, 383 U.S. 301, 331–332 (1966), upholding a provi-
sion of the Voting Rights Act of 1965 that made the district court for the District of
Columbia the only avenue of relief for States seeking to remove the coverage of the
Act.
329 321 U.S. 414 (1944). But compare Adamo Wrecking Co. v. United States, 434
U.S. 275 (1978) (construing statute in way to avoid the constitutional issue raised
in Yakus). In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Court held
that, when judicial review of a deportation order had been precluded, due process
required that the alien be allowed to make a collateral challenge to the use of that
proceeding as an element of a subsequent criminal proceeding.
330 Ch. 26, 56 Stat. 31, § 204 (1942).
331 Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629 (1924).
332 23 U.S. (10 Wheat.) 1 (1825).
333 106 U.S. 272, 280 (1882).
ART. III—JUDICIAL DEPARTMENT 719
334 See Miner v. Atlass, 363 U.S. 641 (1960), holding that a federal district court,
sitting in admiralty, has no inherent power, independent of any statute or the Su-
preme Court’s Admiralty Rules, to order the taking of deposition for the purpose of
discovery. See also Harris v. Nelson, 394 U.S. 286 (1969), in which the Court found
statutory authority in the “All Writs Statute” for a habeas corpus court to propound
interrogatories.
335 In the Act of June 19, 1934, 48 Stat. 1064, and contained in 28 U.S.C. § 2072,
339 Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629, 635,
636 (1924). It is not for the Supreme Court to prescribe how the discretion vested in
a Court of Appeals should be exercised. As long as the latter court keeps within the
bounds of judicial discretion, its action is not reviewable. In re Burwell, 350 U.S.
521 (1956).
340 McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 43 U.S. (2
How.) 244, 257 (1844). See Thomas v. Arn, 474 U.S. 140 (1985) (court of appeal rule
conditioning appeal on having filed with the district court timely objections to a mas-
ter’s report). In Rea v. United States, 350 U.S. 214, 218 (1956), the Court, citing
McNabb v. United States, 318 U.S. 332 (1943), asserted that this supervisory power
extends to policing the requirements of the Court’s rules with respect to the law
enforcement practices of federal agents. But compare United States v. Payner, 447
U.S. 727 (1980).
341 Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884);
reconvene after a formal discharge to correct an error and while such an exercise of
authority does not conflict with a rule or statute, the exercise of the inherent power
to rescind a discharge order needs to be “carefully circumscribed” to guarantee the
existence of an impartial jury); see also id. at 9–10 (holding that a court, in exercis-
ART. III—JUDICIAL DEPARTMENT 721
a preliminary motion resolved by a court prior to trial and generally regards the
admissibility of evidence. See BLACK’S LAW DICTIONARY 1171 (10th ed. 2014).
348 See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507–08 (1947). This doctrine is
called forum non conveniens. See BLACK’S LAW DICTIONARY 770 (10th ed. 2014) (defin-
ing forum non conveniens as the “doctrine that an appropriate forum—even though
competent under the law—may divest itself of jurisdiction if, for the convenience of
the litigants and the witnesses, it appears that the action should proceed in another
forum in which the action might also have been properly brought in the first place.”).
349 See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
350 Gagnon v. United States, 193 U.S. 451, 458 (1904).
351 See Dietz, slip op. at 11 (assuming that, even if courts at common law lacked
the inherent power to rescind a jury discharge order, a court’s exercise of its inher-
ent powers can depart from the common law). The term “common law” refers to the
body of English law that was “adopted as the law of the American colonies and supple-
mented with local enactments and judgments.” See BLACK’S LAW DICTIONARY 334 (10th
ed. 2014).
352 See Dietz, slip op. at 12.
353 69 U.S. (2 Wall.) 123, 128–129 (1864).
722 ART. III—JUDICIAL DEPARTMENT
U.S. 641 (1987), the Court exercised its supervisory power to invalidate a district
court rule respecting the admission of attorneys. See In re Sawyer, 360 U.S. 622
(1959), with reference to the extent to which counsel of record during a pending
case may attribute error to the judiciary without being subject to professional disci-
pline.
357 71 U.S. (4 Wall.) 333 (1867).
ART. III—JUDICIAL DEPARTMENT 723
“Mr. Madison doubted whether it was not going too far to extend
the jurisdiction of the Court generally to cases arising under the
Constitution, and whether it ought not to be limited to cases of a
Judiciary Nature. The right of expounding the Constitution in cases
not of this nature ought not to be given to that Department.” Con-
sequently, “[t]he motion of Docr. Johnson was agreed to nem : con :
it being generally supposed that the jurisdiction given was construc-
tively limited to cases of a Judiciary nature—.” 359
This passage, and the language of Article III, § 2, makes clear
that the Framers did not intend for federal judges to roam at large
in construing the Constitution and laws of the United States, but
rather preferred and provided for resolution of disputes arising in
a “judicial” manner. This interpretation is reenforced by the refusal
of the Convention to assign the judges the extra-judicial functions
which some members of the Convention—Madison and Wilson no-
tably—conceived for them. Thus, for instance, the Convention four
times voted down proposals for judges, along with executive branch
officials, to sit on a council of revision with the power to veto laws
passed by Congress.360 A similar fate befell suggestions that the Chief
Justice be a member of a privy council to assist the President 361
and that the President or either House of Congress be able to re-
quest advisory opinions of the Supreme Court.362 The intent of the
Framers in rejecting the latter proposal was early effectuated when
the Justices declined a request of President Washington to tender
him advice respecting legal issues growing out of United States neu-
trality between England and France in 1793.363 Moreover, the re-
fusal of the Justices to participate in a congressional plan for award-
ing veterans’ pensions 364 bespoke a similar adherence to the restricted
role of courts. These restrictions have been encapsulated in a se-
ries of principles or doctrines, the application of which determines
whether an issue is met for judicial resolution and whether the par-
ties raising it are entitled to have it judicially resolved. Constitu-
tional restrictions are intertwined with prudential considerations in
ported by the Committee on Detail, id. at 367, the Convention never took it up.
362 Id. at 340–41. The proposal was referred to the Committee on Detail and
JAY 633–635 (H. Johnston ed., 1893); Hart & Wechsler (6th ed.), supra at 50–52.
364 Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), discussed “Finality of Judgment
341, 345–348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 (1968); Rescue Army v. Mu-
nicipal Court, 331 U.S. 549, 568–575 (1947).
366 19 U.S. (6 Wheat.) 264 (1821).
367 19 U.S. at 378.
368 Muskrat v. United States, 219 U.S. 346, 356 (1911).
369 The two terms may be used interchangeably, inasmuch as a “controversy,” if
371 In re Pacific Ry. Comm’n, 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field).
stances which to the expert feel of lawyers constitute a ‘case or controversy.’ ” Joint
Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 150 (1951).
ART. III—JUDICIAL DEPARTMENT 727
Adverse Litigants
The presence of adverse litigants with real interests to contend
for is a standard which has been stressed in numerous cases,375 and
the requirement implicates a number of complementary factors mak-
ing up a justiciable suit. The requirement was one of the decisive
factors, if not the decisive one, in Muskrat v. United States,376 in
which the Court struck down a statute authorizing certain named
Indians to bring a test suit against the United States to determine
the validity of a law affecting the allocation of Indian lands. Attor-
ney’s fees of both sides were to be paid out of tribal funds depos-
ited in the United States Treasury. “The judicial power,” said the
Court, “. . . is the right to determine actual controversies arising
between adverse litigants, duly instituted in courts of proper juris-
diction. . . . It is true the United States is made a defendant to
this action, but it has no interest adverse to the claimants. The ob-
ject is not to assert a property right as against the government, or
to demand compensation for alleged wrongs because of action upon
its part. The whole purpose of the law is to determine the constitu-
tional validity of this class of legislation, in a suit not arising be-
tween parties concerning a property right necessarily involved in
the decision in question, but in a proceeding against the govern-
ment in its sovereign capacity, and concerning which the only judg-
ment required is to settle the doubtful character of the legislation
in question.” 377
Concerns regarding adversity also arise when the executive branch
chooses to enforce, but not defend in court, federal statutes that it
has concluded are unconstitutional. In United States v. Windsor,378
the Court considered the Defense of Marriage Act (DOMA), which
excludes same-sex partners from the definition of “spouse” as used
375 Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Chicago & Grand Trunk Ry. v.
Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining Co. v. Amador Medean
Gold Mining Co., 145 U.S. 300 (1892); California v. San Pablo & T.R.R., 149 U.S.
308 (1893); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896); Lampasas v.
Bell, 180 U.S. 276 (1901); Smith v. Indiana, 191 U.S. 138 (1903); Braxton County
Court v. West Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346
(1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 47 (1971).
376 219 U.S. 346 (1911).
377 219 U.S. at 361–62. The Indians obtained the sought-after decision the fol-
lowing year by the simple expedient of suing to enjoin the Secretary of the Interior
from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other cases
have involved similar problems, but they resulted in decisions on the merits. E.g.,
Cherokee Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v. United
States, 175 U.S. 423, 455–463 (1899); South Carolina v. Katzenbach, 383 U.S. 301,
335 (1966); but see id. at 357 (Justice Black dissenting). The principal effect of Musk-
rat was to put in doubt for several years the validity of any sort of declaratory judg-
ment provision in federal law.
378 570 U.S. ___, No. 12–307, slip op. (2013).
728 ART. III—JUDICIAL DEPARTMENT
ing the validity of any act of any legislature, State or federal, and
the decision necessarily rests on the competency of the legislature
to so enact, the court must . . . determine whether the act be con-
stitutional or not; but such an exercise of power is the ultimate and
supreme function of courts. It is legitimate only in the last resort,
and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by
means of a friendly suit, a party beaten in the legislature could trans-
fer to the courts an inquiry as to the constitutionality of the legis-
lative act.” 385 Yet several widely known constitutional decisions have
been rendered in cases in which friendly parties contrived to have
the actions brought and in which the suits were supervised and fi-
nanced by one side.386 There are also instances in which there may
not be in fact an adverse party at certain stages; that is, instances
when the parties do not actually disagree, but where the Supreme
Court and the lower courts are empowered to adjudicate.387
Stockholder Suits.—Moreover, adversity in parties has often
been found in suits by stockholders against their corporation in which
the constitutionality of a statute or a government action is drawn
in question, even though one may suspect that the interests of plain-
tiffs and defendant are not all that dissimilar. Thus, in Pollock v.
Farmers’ Loan & Trust Co.,388 the Court sustained the jurisdiction
of a district court which had enjoined the company from paying an
income tax even though the suit was brought by a stockholder against
the company, thereby circumventing a statute which forbade the main-
tenance in any court of a suit to restrain the collection of any tax.389
Subsequently, the Court sustained jurisdiction in cases brought by
385 Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892).
386 E.g., Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796); Fletcher v. Peck,
10 U.S. (6 Cr.) 87 (1810); Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); cf. 1 C.
Warren, supra at 147, 392–95; 2 id. at 279–82. In Powell v. Texas, 392 U.S. 514
(1968), the Court adjudicated on the merits a challenge to the constitutionality of
criminal treatment of chronic alcoholics although the findings of the trial court, agreed
to by the parties, appeared rather to be “the premises of a syllogism transparently
designed to bring this case” within the confines of an earlier enunciated constitu-
tional principle. But adversity arguably still existed.
387 Examples are naturalization cases, Tutun v. United States, 270 U.S. 568 (1926),
corporation from paying a tax was apparently Dodge v. Woolsey, 59 U.S. (18 How.)
331 (1856). See also Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916).
389 Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. Marks, 109 U.S.
189 (1883).
730 ART. III—JUDICIAL DEPARTMENT
390 Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).
391 Ashwander v. TVA, 297 U.S. 288 (1936). See id. at 341 (Justice Brandeis dis-
senting in part).
392 298 U.S. 238 (1936).
393 Stern, The Commerce Clause and the National Economy, 59 HARV. L. REV. 645,
of the present Court; see Allen v. Wright, 468 U.S. 737, 750, 752, 755–56, 759–61
(1984). In taxpayer suits, it is appropriate to look to the substantive issues to deter-
mine whether there is a logical nexus between the status asserted and the claim
sought to be adjudicated. Id. at 102; United States v. Richardson, 418 U.S. 166, 174–75
(1974); Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78–79 (1978).
395 Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have
490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adju-
dication of his claims must be evaluated “by reference to the Art. III notion that
federal courts may exercise power only ‘in the last resort, and as a necessity,’ . . .
and only when adjudication is ‘consistent with a system of separated powers and
[the dispute is one] traditionally thought to be capable of resolution through the
judicial process.’ ” Id. at 752 (quoting, respectively, Chicago & G.T. Ry. v. Wellman,
143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strength-
ening of the separation-of-powers barrier to standing, see Lujan v. Defenders of Wild-
life, 504 U.S. 555, 559–60, 571–78 (1992).
397 E.g., Valley Forge Christian College v. Americans United, 454 U.S. 464, 471–
sistency in all of the various cases decided by this Court . . . [and] this very fact is
probably proof that the concept cannot be reduced to a one-sentence or one-
paragraph definition.” Valley Forge Christian College v. Americans United, 454 U.S.
464, 475 (1982). “Generalizations about standing to sue are largely worthless as such.”
Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 (1970). For
extensive consideration of the doctrine, see Hart & Wechsler (6th ed.), supra at 100–
183.
400 Thus, state courts could adjudicate a case brought by a person who had no
standing in the federal sense. If the plaintiff lost, he would have no recourse in the
U.S. Supreme Court, because of his lack of standing, Tileston v. Ullman, 318 U.S.
44 (1943); Doremus v. Board of Education, 342 U.S. 429 (1952), but if plaintiff pre-
vailed, the losing defendant might be able to appeal, because he might be able to
assert sufficient injury to his federal interests. ASARCO Inc. v. Kadish, 490 U.S.
605 (1989).
732 ART. III—JUDICIAL DEPARTMENT
401 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974).
402 418 U.S. at 217. See also United States v. Richardson, 418 U.S. 166, 176–77
(1974); Valley Forge Christian College v. Americans United, 454 U.S. 464, 483 (1982);
Allen v. Wright, 468 U.S. 737, 754 (1984); Whitmore v. Arkansas, 495 U.S. 149 (1990);
Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–77 (1992); Lance v. Coffman, 549
U.S. 437, 441 (2007) (per curiam). Cf. Ex parte Levitt, 302 U.S. 633 (1937); Laird v.
Tatum, 408 U.S. 1 (1972).
403 Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 517, 522
(2007) (internal quotation marks omitted). In this case, “EPA maintain[ed] that be-
cause greenhouse gas emissions inflict widespread harm, the doctrine of standing
presents an insuperable jurisdictional obstacle.” The Court, however, found that “EPA’s
steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to
Massachusetts that is both ‘actual’ and ‘imminent.’ ” Id. at 517, 521.
404 Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits
127 S. Ct. 2553, 2559 (2007), the Court added that, “if every federal taxpayer could
sue to challenge any Government expenditure, the federal courts would cease to func-
tion as courts of law and would be cast in the role of general complaint bureaus.”
ART. III—JUDICIAL DEPARTMENT 733
Comm. to Stop the War, 418 U.S. 208, 227–28 (1974). Richardson in its generalized
grievance constriction does not apply when Congress confers standing on litigants.
FEC v. Akins, 524 U.S. 11 (1998). When Congress confers standing on “any person
aggrieved” by the denial of information required to be furnished them, it matters
734 ART. III—JUDICIAL DEPARTMENT
Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), the Court played down the “serious
and adversarial treatment” prong of standing and strongly reasserted the separation-
of-powers value of keeping courts within traditional bounds. The Court again took
this approach in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553,
2569 (2007), finding that “Flast itself gave too little weight to [separation-of-powers]
concerns.”
410 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347–49 (2006) (standing de-
nied to taxpayer claim that state tax credit given to vehicle manufacturer violated
the Commerce Clause).
411 Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007).
This decision does not affect Establishment Clause cases in which the plaintiff can
allege a personal injury. A plaintiff who challenges a government display of a reli-
gious object, for example, need not sue as a taxpayer but may have standing “by
alleging that he has undertaken a ‘special burden’ or has altered his behavior to
avoid the object that gives him offense. . . . [I]t is enough for standing purposes that
a plaintiff allege that he ‘must come into direct and unwelcome contact with the
religious display to participate fully as [a] citizen[ ] . . . and to fulfill . . . legal obli-
gations.’ ” Books v. Elkhart County, 401 F.3d 857, 861 (7th Cir. 2005). In Van Orden
v. Perry, 545 U.S. 677, 682 (2005), the Court, without mentioning standing, noted
that the plaintiff “has encountered the Ten Commandments monument during his
frequent visits to the [Texas State] Capitol grounds. His visits are typically for the
purpose of using the law library in the Supreme Court building, which is located
just northwest of the Capitol building.”
412 127 S. Ct. at 2568 (citations omitted). Justices Scalia and Thomas concurred
in the judgment but would have overruled Flast. Justice Souter, joined by three other
justices, dissented because he saw no logic in the distinction the plurality drew, as
the plurality did not and could not have suggested that the taxpayers in Hein “have
any less stake in the outcome than the taxpayers in Flast.” Id. at 2584.
ART. III—JUDICIAL DEPARTMENT 735
the Court held that a plaintiff ’s status as a municipal taxpayer does not give him
standing to challenge a state tax credit.
414 See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); Crampton v. Zabriskie,
101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 (1915). See also Illinois ex rel.
McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S.
306 (1952); Engel v. Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and tax-
payers).
415 342 U.S. 429 (1952). Compare Alder v. Board of Education, 342 U.S. 485 (1952).
quoted with approval in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006).
418 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Importantly, stand-
ing is not “dispensed in gross,” and, accordingly, a plaintiff must demonstrate stand-
ing for each claim “he seeks to press and for each form of relief that is sought.” See
Davis v. FEC, 554 U.S. 724, 734 (2008). Moreover, when there are multiple parties
to a lawsuit brought in federal court, “[f]or all relief sought, there must be a litigant
with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or
an intervenor as of right.” See Town of Chester v. Laroe Estates, Inc., 581 U.S. ___,
No. 16–605, slip. op. at 6 (2017).
736 ART. III—JUDICIAL DEPARTMENT
419 Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 151–152 (1951) (Justice Frankfurter
concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of Chi-
cago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958).
420 Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).
421 C. Wright, supra at 65–66.
422 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951)
v. Collins, 397 U.S. 159 (1970). The “zone of interest” test is a prudential rather
than constitutional standard. The Court sometimes uses other language to charac-
terize this test. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992),
the Court refers to injury in fact as “an invasion of a legally protected interest,” but
in context, here and in the cases cited, it is clear the reference is to any interest
that the Court finds protectable under the Constitution, statutes, or regulations.
424 Department of Commerce v. United States House of Representatives, 525 U.S.
316 (1999).
425 E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. Na-
tional Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Carolina
Environmental Study Group, 438 U.S. 59, 72–74 (1978); Village of Arlington Heights
v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261–263 (1977); Singleton v. Wulff,
428 U.S. 106, 112–113 (1976); Warth v. Seldin, 422 U.S. 490, 498–499 (1975); O’Shea
v. Littleton, 414 U.S. 488, 493–494 (1974); Linda R.S. v. Richard D., 410 U.S. 614,
617–618 (1973).
ART. III—JUDICIAL DEPARTMENT 737
Article III standing.” 426 Moreover, while Congress has the power to
define injuries and articulate “chains of causation” that will give
rise to a case or controversy, a plaintiff does not “automatically sat-
isf[y] the injury-in-fact requirement whenever a statute grants a per-
son a statutory right and purports to authorize a person to sue to
vindicate that right.” 427
The breadth of the “injury-in-fact” concept may be discerned in
a series of cases involving the right of private parties to bring ac-
tions under the Fair Housing Act to challenge alleged discrimina-
tory practices, even where discriminatory action was not directed
against parties to a suit, Theses case held that the subjective and
intangible interests of enjoying the benefits of living in integrated
communities were sufficient to permit them to attack actions that
threatened or harmed those interests.428 Or, there is important case
of FEC v. Akins,429 which addresses the ability of Congress to con-
fer standing and to remove prudential constraints on judicial re-
view. Congress had afforded persons access to Commission informa-
tion and had authorized “any person aggrieved” by the actions of
the FEC to sue. The Court found “injury-in-fact” present where plain-
tiff voters alleged that the Federal Election Commission had de-
nied them information respecting an organization that might or might
not be a political action committee.430 Another area where the Court
has interpreted this term liberally are injuries to the interests of
individuals and associations of individuals who use the environ-
ment, affording them standing to challenge actions that threatened
those environmental conditions.431
426 Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (environmen-
tal group that was denied the opportunity to file comments with the United States
Forest Service regarding a Forest Service action denied standing for lack of con-
crete injury). On the other hand, where a party has successfully established a legal
right, a threat to the enforcement of that legal right gives rise to a separate legal
injury. Salazar v. Buono, 559 U.S. ___, No. 08–472, slip op. at 8 (2010) (plurality
opinion) (“A party that obtains a judgment in its favor acquires a ‘judicially cogni-
zable’ interest in ensuring compliance with that judgment”).
427 See Spokeo, Inc. v. Robins, 578 U.S. ___, No. 13–1339, slip op. at 9 (2016).
altors v. Village of Bellwood, 441 U.S. 91 (1979); Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982).
429 524 U.S. 11 (1998).
430 That the injury was widely shared did not make the claimed injury a “gener-
alized grievance,” the Court held, but rather in this case, as in others, the denial of
the statutory right was found to be a concrete harm to each member of the class.
431 Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP,
412 U.S. 669, 687–88 (1973); Duke Power Co. v. Carolina Environmental Study Group,
738 ART. III—JUDICIAL DEPARTMENT
Even citizens who bring qui tam actions under the False Claims
Act—actions that entitle the plaintiff (“relator”) to a percentage of
any civil penalty assessed for violation—have been held to have stand-
ing, on the theory that the government has assigned a portion of
its damages claim to the plaintiff, and the assignee of a claim has
standing to assert the injury in fact suffered by the assignor.432 Cit-
ing this holding and historical precedent, the Court upheld the stand-
ing of an assignee who had promised to remit the proceeds of the
litigation to the assignor.433 The Court noted that “federal courts
routinely entertain suits which will result in relief for parties that
are not themselves directly bringing suit. Trustees bring suits to
benefit their trusts; guardians at litem bring suits to benefit their
wards; receivers bring suit to benefit their receiverships; assignees
in bankruptcy bring suit to benefit bankrupt estates; and so forth.” 434
Beyond these historical anomalies, the Court has indicated that,
for parties lacking an individualized injury to seek judicial relief
on behalf of an absent third party, there generally must be some
sort of agency relationship between the litigant and the injured party.
In Hollingsworth v. Perry,435 the Court considered the question of
whether the official proponents of Proposition 8,436 a state measure
that amended the California Constitution to define marriage as a
438 U.S. 59, 72–74 (1978). But the Court has refused to credit general allegations of
injury untied to specific governmental actions. E.g., Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). SCRAP
in particular is disfavored as too broad. Lujan v. Defenders of Wildlife, 504 U.S. at
566. Moreover, unlike the situation in taxpayer suits, there is no requirement of a
nexus between the injuries claimed and the constitutional rights asserted. In Duke
Power, 438 U.S. at 78–81, claimed environmental and health injuries grew out of
construction and operation of nuclear power plants but were not directly related to
the governmental action challenged, the limitation of liability and indemnification
in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citi-
zens for the Abatement of Aircraft Noise, 501 U.S. 252, 264–65 (1991); Friends of
the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).
432 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765
(2000). The Court confirmed its conclusion by reference to the long tradition of qui
tam actions, since the Constitution’s restriction of judicial power to “cases” and “con-
troversies” has been interpreted to mean “cases and controversies of the sort tradi-
tionally amenable to, and resolved by, the judicial process.” Id. at 774.
433 Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S. Ct. 2531 (2008)
to control the agent’s actions. Here, the proponents “decided what arguments to make
and how to make them.” Id. at 15. The Court also noted that the proponents were
not elected to their position, took no oath, had no fiduciary duty to the people of
California, and were not subject to removal. Id.
441 See “Generalized or Widespread Injuries,” supra.
442 Compare Warth v. Seldin, 422 U.S. 490, 499–500 (1975) (prudential), with
Valley Forge Christian College v. Americans United, 454 U.S. 464, 485, 490 (1982)
(apparently constitutional). In Allen v. Wright, 468 U.S. 737, 751 (1984), it is again
prudential.
740 ART. III—JUDICIAL DEPARTMENT
necessary to obtain such judicial remedy. First, the Court has been
hesitant to assume jurisdiction over matters in which the plaintiff
seeking relief cannot articulate a concrete harm.443 For example, in
Laird v. Tatum, the Court held that plaintiffs challenging a domes-
tic surveillance program lacked standing when their alleged injury
stemmed from a “subjective chill,” as opposed to a “claim of specific
present objective harm or a threat of specific future harm.” 444 And
in Spokeo, Inc. v. Robins, the Court explained that a concrete in-
jury requires that an injury must “actually exist” or there must be
a “risk of real harm,” such that a plaintiff who alleges nothing more
than a bare procedural violation of a federal statute cannot satisfy
the injury-in-fact requirement.445 Second, the Court has required plain-
tiffs seeking equitable relief to demonstrate that the risk of a fu-
ture injury is of a sufficient likelihood; past injury is insufficient to
create standing to seek prospective relief.446 The Court has articu-
lated the threshold of likelihood of future injury necessary for stand-
ing in such cases in various ways,447 generally refusing to find stand-
ing where the risk of future injury is speculative.448
More recently, in Clapper v. Amnesty International USA, the Court
held that, in order to demonstrate Article III standing, a plaintiff
seeking injunctive relief must prove that the future injury, which
is the basis for the relief sought, must be “certainly impending”; a
443 See generally Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]e-
privation of a . . . right without some concrete interest that is affected by the depri-
vation . . . is insufficient to create Article III standing.”); see, e.g., Cal. Bankers Ass’n
v. Shultz, 416 U.S. 21, 73 (1974) (plaintiffs alleged that Treasury regulations would
require them to report currency transactions, but made no additional allegation that
any of the information required by the Secretary will tend to incriminate them).
444 408 U.S. 1, 14–15 (1972).
445 See 578 U.S. ___, No. 13–1339, slip op. at 8–10 (2016). Nonetheless, the Spokeo
victim of a police chokehold seeking injunctive relief was unable to show sufficient
likelihood of recurrence as to him).
447 See Davis v. FEC, 554 U.S. 724, 734 (2008) (“[T]he injury required for stand-
ing need not be actualized. A party facing prospective injury has standing to sue
where the threatened injury is real, immediate, and direct.”).
448 See, e.g., Rizzo v. Goode, 423 U.S. 362, 372 (1976) (“[I]ndividual respondents’
claim to ‘real and immediate’ injury rests not upon what the named petitioners might
do to them in the future . . . but upon what one of a small, unnamed minority of
policemen might do to them in the future because of that unknown policeman’s per-
ception of departmental disciplinary procedures.”); O’Shea v. Littleton, 414 U.S. 488,
497 (1974) (no “sufficient immediacy and reality” to allegations of future injury that
rest on the likelihood that plaintiffs will again be subjected to racially discrimina-
tory enforcement and administration of criminal justice).
ART. III—JUDICIAL DEPARTMENT 741
449 568 U.S. ___, No. 11–205, slip op. at 10–11 (2013). In adopting a “certainly
impending” standard, the five-Justice majority observed that earlier cases had not
uniformly required literal certainty. Id. at 15 n.5. Amnesty International‘s limitation
on standing may be particularly notable in certain contexts, such as national secu-
rity, where evidence necessary to prove a “certainly impending” injury may be un-
available to a plaintiff.
450 Id. at 10–11. In Amnesty International, defense attorneys, human rights or-
that an allegation of future injury may suffice if the injury is “ ‘certainly impending’
or there is a ‘substantial risk’ that the harm may occur.” Id. at 8 (quoting Amnesty
Int’l, slip op. at 10, 15, n.5). Interestingly, while previous Court decisions have viewed
preenforcement challenges as a question of “ripeness,” see Article III: Section 2. Ju-
dicial Power and Jurisdiction: Clause 1. Cases and Controversies; Grants of Jurisdic-
tion: Judicial Power and Jurisdiction-Cases and Controversies: The Requirements of
a Real Interest: Ripeness, infra, Susan B. Anthony List held that the doctrine of
ripeness ultimately “boil[s] down to the same question” as standing and, therefore,
viewed the case through the lens of Article III standing. Susan B. Anthony List, slip
op. at 7 n.5.
742 ART. III—JUDICIAL DEPARTMENT
son” could file a complaint under the law, and any threat of
enforcement of the law could burden political speech.453
Of increasing importance are causation and redressability, the
second and third elements of standing, recently developed and held
to be of constitutional requisite. There must be a causal connection
between the injury and the conduct complained of; that is, the Court
insists that the plaintiff show that “but for” the action, she would
not have been injured. And the Court has insisted that there must
be a “substantial likelihood” that the relief sought from the court if
granted would remedy the harm.454 Thus, poor people who had been
denied service at certain hospitals were held to lack standing to
challenge IRS policy of extending tax benefits to hospitals that did
not serve indigents, because they could not show that alteration of
the tax policy would cause the hospitals to alter their policies and
treat them.455 Or, low-income persons seeking the invalidation of a
town’s restrictive zoning ordinance were held to lack standing, be-
cause they had failed to allege with sufficient particularity that the
complained-of injury—inability to obtain adequate housing within
their means—was fairly attributable to the ordinance instead of to
other factors, so that voiding of the ordinance might not have any
effect upon their ability to find affordable housing.456 Similarly, the
453 Susan B. Anthony List, slip op. at 14–17 (internal quotation marks omitted).
454 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 595 (1992); see also ASARCO
Inc. v. Kadish, 490 U.S. 605, 612–617 (1989) (plurality opinion); Allen v. Wright, 468
U.S. 737, 751 (1984); see, e.g., Wittman v. Personhuballah, 578 U.S. ___, No. 14–
1504, slip op. at 4–5 (2016) (dismissing a challenge to a redistricting plan by a con-
gressman, who conceded that regardless of the result of the case he would not run
in his old district, as any injury suffered could not be redressed by a favorable rul-
ing). Although “causation” and “redressability” were initially articulated as two fac-
ets of a single requirement, the Court now views them as separate inquiries. See
Sprint Commc’ns Co., L.P. v. APCC Servs., 554 U.S. 269, 286–87 (2008). To the ex-
tent there is a difference, it is that the former examines a causal connection be-
tween the allegedly unlawful conduct and the injury, whereas the latter examines
the causal connection between the alleged injury and the judicial relief requested.
Id.
455 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). See also
Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother of illegitimate child lacked
standing to contest prosecutorial policy of using child support laws to coerce sup-
port of legitimate children only, as it was “only speculative” that prosecution of fa-
ther would result in support rather than jailing). However, in Summers v. Earth
Island Inst., 129 S. Ct. 1142, 1151 (2009), the Court noted in dicta that, if a plaintiff
is denied a procedural right, the fact that the right had been accorded by Congress
“can loosen the strictures of the redressability prong of our standing inquiry.” Thus,
standing may exist even though a court’s enforcing a procedural right accorded by
Congress, such as the right to comment on a proposed federal agency action, will
not guarantee the plaintiff success in persuading the agency to adopt the plaintiff ’s
point of view.
456 Warth v. Seldin, 422 U.S. 490 (1975). In Village of Arlington Heights v. Met-
ropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1974), however, a person who al-
leged he was seeking housing in the community and that he would qualify if the
ART. III—JUDICIAL DEPARTMENT 743
link between fully integrated public schools and allegedly lax ad-
ministration of tax policy permitting benefits to discriminatory pri-
vate schools was deemed too tenuous, the harm flowing from pri-
vate actors not before the courts and the speculative possibility that
directing denial of benefits would result in any minority child be-
ing admitted to a school.457
But the Court did permit plaintiffs to attack the constitutional-
ity of a law limiting the liability of private utilities in the event of
nuclear accidents and providing for indemnification, on a showing
that “but for” the passage of the law there was a “substantial like-
lihood,” based upon industry testimony and other material in the
legislative history, that the nuclear power plants would not be con-
structed and that therefore the environmental and aesthetic harm
alleged by plaintiffs would not occur; thus, a voiding of the law would
likely relieve the plaintiffs of the complained of injuries.458 And in
a case where a creditor challenged a bankruptcy court’s structured
dismissal of a Chapter 11 case that denied the creditor the opportu-
nity to obtain a settlement or assert a claim with “litigation value,”
the Court held that a decision in the creditor’s favor was likely to
redress the loss.459 Operation of these requirements makes difficult
but not impossible the establishment of standing by persons indi-
rectly injured by governmental action, that is, action taken as to
third parties that is alleged to have injured the claimants as a con-
sequence.460
In a case permitting a plaintiff contractors’ association to chal-
lenge an affirmative-action, set-aside program, the Court seemed to
organizational plaintiff were not inhibited by allegedly racially discriminatory zon-
ing laws from constructing housing for low-income persons like himself was held to
have shown a “substantial probability” that voiding of the ordinance would benefit
him.
457 Allen v. Wright, 468 U.S. 737 (1984). But see Heckler v. Mathews, 465 U.S.
728 (1984), where persons denied equal treatment in conferral of benefits were held
to have standing to challenge the treatment, although a judicial order could only
have terminated benefits to the favored class. In that event, members would have
secured relief in the form of equal treatment, even if they did not receive benefits.
See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Orr v. Orr,
440 U.S. 268, 271–273 (1979).
458 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–78
1978). The likelihood of relief in some cases appears to be rather speculative at best.
E/g., Bryant v. Yellen, 447 U.S. 352, 366–368 (1980); Watt v. Energy Action Educa-
tional Foundation, 454 U.S. 151, 160–162 (1981).
459 See Czyzewski v. Jevic Holding Corp., 580 U.S. ___, No. 15–649, slip op. at
11 (2017) (holding that the “mere possibility” that a plaintiff ’s injury will not be
remedied by a favorable decision is insufficient to conclude the plaintiff lacks stand-
ing because of want of redressability); see also Clinton v. City of New York, 524 U.S.
417, 430–31 (1998) (holding that the imposition of a “substantial contingent liabil-
ity” qualifies as an injury for purposes of Article III standing).
460 Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 468 U.S. 737,
756–761 (1984).
744 ART. III—JUDICIAL DEPARTMENT
461 Thus, it appears that had the Court applied its standard in the current case,
the results would have been different in such cases as Linda R. S. v. Richard D.,
410 U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Ken-
tucky Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 468 U.S. 737 (1984).
462 Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jackson-
ville, 508 U.S. 656, 666 (1993). The Court derived the proposition from another set
of cases. Turner v. Fouche, 396 U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957
(1982); Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978).
463 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social
Services, Inc., 509 U.S. 43 (1993), in which the Court, over the dissent’s reliance on
Jacksonville, 509 U.S. at 81–82, denied the relevance of its distinction between en-
titlement to a benefit and equal treatment. Id. at 58 n.19.
464 Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 187 (2000).
465 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979) (“a plain-
tiff may still lack standing under the prudential principles by which the judiciary
seeks to avoid deciding questions of broad social import where no individual rights
would be vindicated and to limit access to the federal courts to those litigants best
suited to assert a particular claim”).
ART. III—JUDICIAL DEPARTMENT 745
manding,” 466 and it is clear that the Court feels free to disregard
any of these prudential rules when it sees fit.467 Congress is also
free to legislate away prudential restraints and confer standing to
the extent permitted by Article III.468 The Court has identified three
rules as prudential ones,469 only one of which has been a signifi-
cant factor in the jurisprudence of standing. The first two rules are
that the plaintiff ’s interest, to which she asserts an injury, must
come within the “zone of interest” arguably protected by the consti-
tutional provision or statute in question 470 and that plaintiffs may
not air “generalized grievances” shared by all or a large class of
citizens.471 The important rule concerns the ability of a plaintiff to
represent the constitutional rights of third parties not before the
court.
466 Match-E-Be-Nash-She-Wish Band Of Pottawatomi Indians v. Patchak, 567
193–194 (1976).
468 “Congress may grant an express right of action to persons who otherwise
would be barred by prudential standing rules. Of course, Art. III’s requirement re-
mains: the plaintiff still must allege a distinct and palpable injury to himself, even
if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin,
422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may ex-
ist solely by virtue of “statutes creating legal rights, the invasion of which creates
standing, even though no injury would exist without the statute.” Linda R.S. v. Rich-
ard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 n.2
(1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante
v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village of
Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n.4, 11–12
(1976). For a good example of the congressionally created interest and the injury to
it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–75 (1982) (Fair Housing
Act created right to truthful information on availability of housing; black tester’s
right injured through false information, but white tester not injured because he re-
ceived truthful information). It is clear, however, that the Court will impose separation-
of-powers restraints on the power of Congress to create interests to which injury
would give standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 571–78 (1992).
Justice Scalia, who wrote the opinion in Defenders of Wildlife, reiterated the separation-
of-powers objection to congressional conferral of standing in FEC v. Akins, 524 U.S.
11, 29, 36 (1998) (alleged infringement of President’s “take care” obligation), but this
time in dissent; the Court did not advert to this objection in finding that Congress
had provided for standing based on denial of information to which the plaintiffs, as
voters, were entitled.
469 Valley Forge Christian College v. Americans United, 454 U.S. 464, 474–75
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n.19 (1976); Valley
Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982); Clarke v.
Securities Industry Ass’n, 479 U.S. 388 (1987). See also Bennett v. Spear, 520 U.S.
154 (1997). The Court has indicated that
471 United States v. Richardson, 418 U.S. 166, 173, 174–76 (1974); Duke Power
Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 (1978); Allen v. Wright,
468 U.S. 737, 751 (1984). In United States v. SCRAP, 412 U.S. 669, 687–88 (1973),
a congressional conferral case, the Court agreed that the interest asserted was one
shared by all, but the Court has disparaged SCRAP, asserting that it “surely went
to the very outer limit of the law,” Whitmore v. Arkansas, 495 U.S. 149, 159 (1990).
746 ART. III—JUDICIAL DEPARTMENT
472 United States v. Raines, 362 U.S. 17, 21–23 (1960); Yazoo & M.V.R.R. v. Jack-
son Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School Dist.,
475 U.S. 534 (1986).
473 318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508–510 (1975) (chal-
lenged law did not adversely affect plaintiffs and did not adversely affect a relation-
ship between them and persons they sought to represent).
474 346 U.S. 249 (1953).
475 See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for
scribing contraceptives for married persons and as accessories to crime of using con-
traceptives have standing to raise constitutional rights of patients with whom they
had a professional relationship; although use of contraceptives was a crime, it was
doubtful any married couple would be prosecuted so that they could challenge the
statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception con-
victed of giving device to unmarried woman had standing to assert rights of unmar-
ried persons denied access; unmarried persons were not subject to prosecution and
were thus impaired in their ability to gain a forum to assert their rights).
ART. III—JUDICIAL DEPARTMENT 747
challenge abortion statute since it operates directly against them and they should
not have to await criminal prosecution to challenge it); Planned Parenthood v. Danforth,
428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192–197 (1976) (li-
censed beer distributor could contest sex discriminatory alcohol laws because it op-
erated on him, he suffered injury in fact, and was “obvious claimant” to raise issue);
Carey v. Population Services Int’l, 431 U.S. 678, 682–84 (1977) (vendor of contracep-
tives had standing to bring action to challenge law limiting distribution). Older cases
support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Bantam Books v. Sullivan, 372 U.S. 58 (1963).
478 Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise
a Sixth Amendment challenge to exclusion of blacks from his jury, since defendant
had a right to a jury comprised of a fair cross section of the community). The Court
has expanded the rights of non-minority defendants to challenge the exclusion of
minorities from petit and grand juries, both on the basis of the injury-in-fact to de-
fendants and because the standards for being able to assert the rights of third par-
ties were met. Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S.
392 (1998).
479 428 U.S. 106 (1976).
480 Compare 428 U.S. at 112–18 (Justices Blackmun, Brennan, White, and Mar-
shall), with id. at 123–31 (Justices Powell, Stewart, and Rehnquist, and Chief Jus-
tice Burger). Justice Stevens concurred with the former four Justices on narrower
grounds limited to this case.
481 Caplin & Drysdale v. United States, 491 U.S. 617, 623–624 n.3 (1989). Caplin
& Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 123, 131 (2004), the
Court’s finding that attorneys seeking to represent hypothetical indigent clients in
748 ART. III—JUDICIAL DEPARTMENT
challenging procedures for appointing appellate counsel had “no relationship at all”
with such potential clients, let alone a “close” relationship.
482 See Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); see also Powers v. Ohio,
499 U.S. 400, 411 (1991). The Court has held that a parent-child relationship “eas-
ily satisfies” the “close relationship” requirement for “next friend” standing. See Ses-
sions v. Morales-Santana, 582 U.S. ___, No. 15–1191, slip. op. at 7 (2017).
483 See Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (rejecting “next friend”
standing for a death row inmate who knowlingly, intelligently, and voluntarily chose
not to appeal his sentence); see also Morales-Santana, 582 U.S. ___, slip. op. at 7
(2017) (holding that the death of the real party in interest meets the “hindrance”
requirement for “next friend” standing).
484 United States v. Raines, 362 U.S. 17, 21–24 (1960).
485 Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S.
88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380
U.S. 479, 486–487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of
New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doc-
trine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601
(1973); Young v. American Mini Theatres, 427 U.S. 50, 59–60 (1976), and id. at 73
(Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 771–773 (1982). But
the exception as stated in the text remains strong. E.g., Secretary of State v. Joseph
H. Munson Co., 467 U.S. 947 (1984); Virginia v. American Booksellers Ass’n, 484
U.S. 383 (1988).
486 See, e.g., INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S.
488 The defendant, in an attempt to harass a woman who had become impreg-
nated by the defendant’s husband, had placed caustic substances on objects the woman
was likely to touch. The defendant was convicted under 18 U.S.C. § 229, a broad
prohibition against the use of harmful chemicals, enacted as part of the implemen-
tation of the 1997 Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction. The specifics of
the defendant’s Tenth Amendment argument was not before the Court.
489 564 U.S. ___, No. 09–1227, slip op. at 10.
490 Sierra Club v. Morton, 401 U.S. 727 (1972). An organization may, of course,
sue to redress injuries to itself. See Havens Realty Co. v. Coleman, 455 U.S. 363,
378–379 (1982).
491 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951);
NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); NAACP v. Button, 371
U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964);
United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967); United Trans-
portation Union v. State Bar of Michigan, 401 U.S. 576 (1971).
492 432 U.S. 333, 343 (1977). The organization here was not a voluntary mem-
bership entity but a state agency charged with furthering the interests of apple grow-
ers who were assessed annual sums to support the Commission. Id. at 341–45. See
also Warth v. Seldin, 422 U.S. 490, 510–17 (1975); Simon v. Eastern Kentucky Wel-
fare Rights Org., 426 U.S. 26, 39–40 (1976); Village of Arlington Heights v. Metro-
politan Housing Dev. Corp., 429 U.S. 252, 263–264 (1977); Harris v. McRae, 448 U.S.
297, 321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986).
493 United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). Geraghty
494 Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens
lina v. Katzenbach, 383 U.S. 301 (1966) (denying such standing to raise two consti-
tutional claims against the United States but deciding a third); Oregon v. Mitchell,
400 U.S. 112, 117 n.1 (1970) (no question raised about standing or jurisdiction; claims
adjudicated).
496 Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. Colorado, 206 U.S. 46
(1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); New York v. New Jer-
sey, 256 U.S. 296 (1921); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); North
Dakota v. Minnesota, 263 U.S. 365 (1923).
497 Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (antitrust); Maryland v.
Louisiana, 451 U.S. 725, 737–739 (1981) (discriminatory state taxation of natural
gas shipped to out-of-state customers); Alfred L. Snapp & Son v. Puerto Rico ex rel.
Barez, 458 U.S. 592 (1982) (discrimination by growers against Puerto Rican mi-
grant workers and denial of Commonwealth’s opportunity to participate in federal
employment service laws).
498 New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex rel. Johnson
v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277 (1911);
North Dakota v. Minnesota, 263 U.S. 365, 376 (1923); Pennsylvania v. New Jersey,
426 U.S. 660 (1976).
499 Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–08
(1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, ar-
gued that the Court’s standards should apply only in original actions and not in
actions filed in federal district courts, where, they contended, the prerogative of a
state to bring suit on behalf of its citizens should be commensurate with the ability
of private organizations to do so. Id. at 610. The Court admitted that different con-
siderations might apply between original actions and district court suits. Id. at 603
n.12.
500 Member standing has not fared well in other Circuits. Holtzman v. Schlesinger,
484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Harrington v. Schlesinger,
528 F.2d 455 (4th Cir. 1975).
ART. III—JUDICIAL DEPARTMENT 751
(1939), the Court had recognized that legislators can in some instances suffer an
injury in respect to the effectiveness of their votes that will confer standing. In Pressler
v. Blumenthal, 434 U.S. 1028 (1978), affg, 428 F. Supp. 302 (D.D.C. 1976) (three-
judge court), the Court affirmed a decision in which the lower court had found Mem-
ber standing but had then decided against the Member on the merits. The “unexplicated
affirmance” could have reflected disagreement with the lower court on standing or
agreement with it on the merits. Note Justice Rehnquist’s appended statement. Id.
In Goldwater v. Carter, 444 U.S. 996 (1979), the Court vacated a decision, in which
the lower Court had found Member standing, and directed dismissal, but none of
the Justices who addressed the question of standing. The opportunity to consider
Member standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), but
the expiration of the law in issue mooted the case.
502 Reuss v. Balles, 584 F.2d 461, 466 (D.C. Cir. 1978), cert. denied, 439 U.S.
997 (1978).
503 See, e.g., Wittman v. Personhuballah, 578 U.S. ___, No. 14–1504, slip op. at
6 (2016) (concluding that two congressmen could not invoke federal jurisdiction to
challenge a redistricting plan when they could not provide any evidence that the
plan might injure their reelection chances).
504 Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).
505 511 F.2d 430 (D.C. Cir. 1974). In Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985),
the court again found standing by Members challenging a pocket veto, but the Su-
preme Court dismissed the appeal as moot. Sub nom. Burke v. Barnes, 479 U.S.
361 (1987). Whether the injury was the nullification of the past vote on passage
only or whether it was also the nullification of an opportunity to vote to override
the veto has divided the Circuit, with the majority favoring the broader interpreta-
tion. Goldwater v. Carter, 617 F.2d 697, 702 n.12 (D.C. Cir. 1979), and id. at 711–12
(Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996
(1979)
506 Kennedy v. Sampson, 511 F.2d 430, 435–436 (D.C. Cir. 1974). See Har-
rington v. Bush, 553 F.2d 190, 199 n.41 (D.C. Cir. 1977). Harrington found no stand-
ing in a Member’s suit challenging CIA failure to report certain actions to Congress,
752 ART. III—JUDICIAL DEPARTMENT
in order that Members could intelligently vote on certain issues. See also Reuss v.
Balles, 584 F.2d 461 (D.C. Cir. 1978), cert. denied, 439 U.S. 997 (1978).
507 Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C. Cir. 1979) (en banc), va-
cated and remanded with instructions to dismiss, 444 U.S. 996 (1979). The failure
of the Justices to remark on standing is somewhat puzzling, since it has been stated
that courts “turn initially, although not invariably, to the question of standing to
sue.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974).
But see Harrington v. Bush, 553 F.2d 190, 207 (D.C. Cir. 1977). In any event, the
Supreme Court’s decision vacating Goldwater deprives the Circuit’s language of
precedential effect. United States v. Munsingwear, 340 U.S. 36, 39–40 (1950); O’Connor
v. Donaldson, 422 U.S. 563, 577 n.12 (1975).
508 Riegle v. FOMC, 656 F.2d 873 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082
(1981).
509 521 U.S. 811 (1997).
510 The Act itself provided that “[a]ny Member of Congress or any individual
adversely affected” could sue to challenge the law. 2 U.S.C. § 692(a)(1). After failure
of this litigation, the Court in the following Term, on suits brought by claimants
adversely affected by the exercise of the veto, held the statute unconstitutional. Clin-
ton v. City of New York, 524 U.S. 417 (1998).
511 521 U.S. at 819.
ART. III—JUDICIAL DEPARTMENT 753
bers did not claim that they had been deprived of anything to which
they were personally entitled. “[A]ppellees’ claim of standing is based
on loss of political power, not loss of any private right, which would
make the injury more concrete. . . . If one of the Members were to
retire tomorrow, he would no longer have a claim; the claim would
be possessed by his successor instead. The claimed injury thus runs
(in a sense) with the Member’s seat, a seat which the Member holds
. . . as trustee for his constituents, not as a prerogative of personal
power.” 512
So, there is no such thing as Member standing? Not necessar-
ily so, because the Court turned immediately to preserving (at least
a truncated version of) Coleman v. Miller,513 in which the Court had
found that 20 of the 40 members of a state legislature had stand-
ing to sue to challenge the loss of the effectiveness of their votes as
a result of a tie-breaker by the lieutenant governor. Although there
are several possible explanations for the result in that case, the Court
in Raines chose to fasten on a particularly narrow point. “[O]ur hold-
ing in Coleman stands (at most . . .) for the proposition that legis-
lators whose votes would have been sufficient to defeat (or enact) a
specific legislative Act have standing to sue if that legislative ac-
tion goes into effect (or does not go into effect), on the ground that
their votes have been completely nullified.” 514 Because these Mem-
bers could still pass or reject appropriations bills, vote to repeal the
Act, or exempt any appropriations bill from presidential cancella-
tion, the Act did not nullify their votes and thus give them stand-
ing.515
In a subsequent case, the Court reaffirmed the continued viabil-
ity of Coleman 516 in concluding that legislators, when authorized
by the legislature, could have standing to assert an “institutional
injury” to that legislative body.517 Specifically, the Court held in Ari-
zona State Legislature v. Arizona Independent Redistricting Com-
mission that the Arizona legislature had standing to challenge the
validity of the Arizona Independent Redistricting Commission and
the commission’s 2012 map of congressional districts because the
legislature had been “stripped” of what the plaintiff considered its
“exclusive constitutionally guarded role” in redistricting.518 Compar-
ing the Arizona legislature’s role to the “institutional injury” suf-
512 521 U.S. at 821.
513 307 U.S. 433 (1939).
514 521 U.S. at 823.
515 521 U.S. at 824–26.
516 See Coleman v. Miller, 307 U.S. 433 (1939).
517 Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. ___,
citing Flast v. Cohen, 392 U.S. 83, 101 (1968). “But where a dispute is otherwise
justiciable, the question whether the litigant is a ‘proper party to request an adjudi-
cation of a particular issue,’ [quoting Flast, supra, at 100], is one within the power
of Congress to determine.” Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972).
522 Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). See also
Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310
U.S. 113 (1940).
523 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951)
(Justice Frankfurter concurring). This was apparently the point of the definition of
“legal right” as “one of property, one arising out of contract, one protected against
tortious invasion, or one founded on a statute which confers a privilege.” Tennessee
Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).
524 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951)
(Justice Frankfurter concurring). The Court approached this concept in two interre-
lated ways. (1) It might be that a plaintiff had an interest that it was one of the
purposes of the statute in question to protect in some degree. Chicago Junction Case,
ART. III—JUDICIAL DEPARTMENT 755
Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky
Utilities Co., 390 U.S. 1, 7 (1968).
527 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow
v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injury-
in-fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry
Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But
see Lujan v. National Wildlife Federation, 497 U.S. 871, 885–889 (1990); Air Courier
Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these stan-
dards, the Court, once it determined that the litigant’s interests were “arguably pro-
tected” by the statute in question, proceeded to the merits without thereafter paus-
ing to inquire whether in fact the interests asserted were among those protected.
Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp,
401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318,
320 n.3 (1977). Almost contemporaneously, the Court also liberalized the ripeness
requirement in review of administrative actions. Gardner v. Toilet Goods Ass’n, Inc.,
387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See also
National Credit Union Administration v. First National Bank & Trust Co., 522 U.S.
479 (1998), in which the Court found that a bank had standing to challenge an agency
ruling expanding the role of employer credit unions to include multi-employer credit
unions, despite a statutory limit that any such union could be of groups having a
common bond of occupation or association. The Court held that a plaintiff did not
have to show it was the congressional purpose to protect its interests. It is sufficient
if the interest asserted is “arguably within the zone of interests to be protected . . .
by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the
Court divided 5-to-4 in applying the test. See also Bennett v. Spear, 520 U.S. 154
(1997).
756 ART. III—JUDICIAL DEPARTMENT
this case has been disparaged by the later Court. Lujan v. Defenders of Wildlife,
504 U.S. 555, 566–67 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158–160 (1990).
531 See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National
Wildlife Federation, 497 U.S. 871 (1990). But see Bennett v. Spear, 520 U.S. 154
(1997) (fact that citizen suit provision of Endangered Species Act is directed at em-
powering suits to further environmental concerns does not mean that suitor who
alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524
U.S. 11 (1998) (expansion of standing based on denial of access to information).
ART. III—JUDICIAL DEPARTMENT 757
532 Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945).
533 Giles v. Harris, 189 U.S. 475, 486 (1903).
534 258 U.S. 158 (1922).
535 258 U.S. at 162.
536 297 U.S. 288 (1936).
537 297 U.S. at 324. Chief Justice Hughes cited New York v. Illinois, 274 U.S.
488 (1927), in which the Court dismissed as presenting abstract questions a suit
about the possible effects of the diversion of water from Lake Michigan upon hypo-
thetical water power developments in the indefinite future, and Arizona v. Califor-
nia, 283 U.S. 423 (1931), in which it was held that claims based merely upon as-
sumed potential invasions of rights were insufficient to warrant judicial intervention.
See also Massachusetts v. Mellon, 262 U.S. 447, 484–485 (1923); New Jersey v. Sargent,
269 U.S. 328, 338–340 (1926); Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 76 (1867).
538 330 U.S. 75 (1947).
539 330 U.S. at 89–91. Justices Black and Douglas dissented, contending that
the controversy was justiciable. Justice Douglas could not agree that the plaintiffs
should have to violate the act and lose their jobs in order to test their rights. In
758 ART. III—JUDICIAL DEPARTMENT
CSC v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), the concerns ex-
pressed in Mitchell were largely ignored as the Court reached the merits in an an-
ticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).
540 1 C. Warren, supra at 108–111. The full text of the exchange appears in 3
CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486–489 (H. Johnston ed., 1893).
541 Jay Papers at 488.
542 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948).
543 See supra.
544 1 C. Warren, supra at 595–597.
545 Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judi-
ciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. See also Chief Justice
Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied
on the salaries of federal judges violated the Constitution. S. TYLER, MEMOIRS OF ROGER
B. TANEY 432–435 (1876).
546 E.g., Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 919
547 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113–114 (1948).
548 Muskrat v. United States, 219 U.S. 346 (1911).
549 United States v. Ferreira, 54 U.S. (13 How.) 40 (1852).
550 United Public Workers v. Mitchell, 330 U.S. 75 (1947).
551 Cf. Willing v. Chicago Auditorium Ass’n, 277 U.S. 274 (1928).
552 Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nash-
ville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). Wallace was cited with ap-
proval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article
III’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected
in the ‘actual controversy’ requirement of the Declaratory Judgment Act, 28 U.S.C.
§ 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its
license agreement before it can seek a declaratory judgment that the underlying pat-
ent is invalid, unenforceable, or not infringed,” id. at 120–21).
553 48 Stat. 955, as amended, 28 U.S.C. §§ 2201–2202.
760 ART. III—JUDICIAL DEPARTMENT
1027. The Tax Injunction Act of 1937, 50 Stat. 738, U.S.C. § 1341, prohibited federal
injunctive relief directed at state taxes but said nothing about declaratory relief. It
was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393
(1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943),
the Court had reserved the issue but held that considerations of comity should pre-
clude federal courts from giving declaratory relief in such cases. Cf. Fair Assess-
ment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981).
564 E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond Co. v. SEC, 303
U.S. 419 (1938); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Eccles v.
Peoples Bank, 333 U.S. 426 (1948); Rescue Army v. Municipal Court, 331 U.S. 549,
572–573 (1947).
565 United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367
U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshore-
men’s Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm’n v. Wycoff Co., 344
U.S. 237 (1952).
566 E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 307 U.S. 325 (1939);
Ashwander v. TVA, 297 U.S. 288 (1936); Evers v. Dwyer, 358 U.S. 202 (1958).
567 E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents,
385 U.S. 589 (1967); Turner v. City of Memphis, 369 U.S. 350 (1962); Powell v. Mc-
Cormack, 395 U.S. 486 (1969). But see Golden v. Zwickler, 394 U.S. 103 (1969).
568 389 U.S. 241 (1967).
569 380 U.S. 479 (1965).
762 ART. III—JUDICIAL DEPARTMENT
v. Harris, 401 U.S. 37 (1971), substantially undercut much of the Dombrowski lan-
guage and much of Zwickler was downgraded.
573 Hicks v. Miranda, 422 U.S. 332, 349 (1975).
574 Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered by Steffel, the
federal court may issue preliminary or permanent injunctions to protect its judg-
ments, without satisfying the Younger tests. Doran v. Salem Inn, 422 U.S. 922, 930–
931 (1975); Wooley v. Maynard, 430 U.S. 705, 712 (1977).
ART. III—JUDICIAL DEPARTMENT 763
575 United Public Workers v. Mitchell, 330 U.S. 75 (1947); International Long-
shoremen’s Union v. Boyd, 347 U.S. 222 (1954). For recent examples of lack of ripe-
ness, see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998); Texas v. United
States, 523 U.S. 296 (1998).
576 Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (cer-
(1978) (that plaintiffs suffer injury-in-fact and such injury would be redressed by
granting requested relief satisfies Article III ripeness requirement; prudential ele-
ment satisfied by determination that Court would not be better prepared to render
a decision later than now). But compare Renne v. Geary, 501 U.S. 312 (1991).
578 330 U.S. 75 (1947).
579 330 U.S. at 90. In CSC v. National Ass’n of Letter Carriers, 413 U.S. 548
(1973), without discussing ripeness, the Court decided on the merits anticipatory
attacks on the Hatch Act. Plaintiffs had, however, alleged a variety of more concrete
infringements upon their desires and intentions than the UPW plaintiffs had.
764 ART. III—JUDICIAL DEPARTMENT
the laws as they construed them.580 Of course, the Court was not
entirely consistent in applying the doctrine.581
It remains good general law that pre-enforcement challenges to
criminal and regulatory legislation will often be unripe for judicial
consideration because of uncertainty of enforcement,582 because the
plaintiffs can allege only a subjective feeling of inhibition or fear
arising from the legislation or from enforcement of it,583 or because
the courts need before them the details of a concrete factual situa-
tion arising from enforcement in order to engage in a reasoned bal-
ancing of individual rights and governmental interests.584 But one
who challenges a statute or possible administrative action need dem-
onstrate only a realistic danger of sustaining an injury to his rights
as a result of the statute’s operation and enforcement and need not
await the consummation of the threatened injury in order to ob-
tain preventive relief, such as exposing himself to actual arrest or
580 International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). See also
Electric Bond Co. v. SEC, 303 U.S. 419 (1938); Alabama State Federation of Labor
v. McAdory, 325 U.S. 450 (1945); Public Service Comm’n v. Wycoff Co., 344 U.S. 237
(1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).
581 In Adler v. Board of Educ., 342 U.S. 485 (1952), without discussing ripeness,
the Court decided on the merits a suit about a state law requiring dismissal of teach-
ers advocating violent overthrow of the government, over a strong dissent arguing
the case was indistinguishable from Mitchell. Id. at 504 (Justice Frankfurter dissent-
ing). In Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961), a state employee
was permitted to attack a non-Communist oath, although he alleged he believed he
could take the oath in good faith and could prevail if prosecuted, because the oath
was so vague as to subject plaintiff to the “risk of unfair prosecution and the poten-
tial deterrence of constitutionally protected conduct.” Id. at 283–84. See also Bag-
gett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589
(1967).
582 E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication of challenge to law
barring use of contraceptives because in 80 years of the statute’s existence the state
had never instituted a prosecution). But compare Epperson v. Arkansas, 393 U.S. 97
(1987) (merits reached in absence of enforcement and fair indication state would
not enforce it); Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, al-
though state asserted law would not be used, although local prosecutor had so threat-
ened; no discussion of ripeness, but dissent relied on Poe, id. at 317–18).
583 E.g., Younger v. Harris, 401 U.S. 37, 41–42 (1971); Boyle v. Landry, 401 U.S.
77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); O’Shea v. Littleton, 414 U.S. 488
(1974); Spomer v. Littleton, 414 U.S. 514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976).
In the context of the ripeness to challenge of agency regulations, as to which there
is a presumption of available judicial remedies, the Court has long insisted that fed-
eral courts should be reluctant to review such regulations unless the effects of ad-
ministrative action challenged have been felt in a concrete way by the challenging
parties, i.e., unless the controversy is “ripe.” See, of the older cases, Abbott Labora-
tories v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.
158 (1967); Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 (1967). More recent
cases include Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); Lujan v. Na-
tional Wildlife Federation, 497 U.S. 871, 891 (1990).
584 E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974); Hodel v. Vir-
ginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 294–297 (1981); Renne v. Geary,
501 U.S. 312, 320–323 (1991).
ART. III—JUDICIAL DEPARTMENT 765
707–708, 710 (1977); Babbitt v. United Farm Workers, 442 U.S. 289, 297–305 (1979)
(finding some claims ripe, others not). Compare Doe v. Bolton, 410 U.S. 179, 188–
189 (1973), with Roe v. Wade, 410 U.S. 113, 127–128 (1973). See also Planned Par-
enthood v. Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979).
586 Buckley v. Valeo, 424 U.S. 1, 113–118 (1976); Regional Rail Reorganization
Act Cases, 419 U.S. 102, 138–148 (1974) (holding some but not all the claims ripe).
See also Goldwater v. Carter, 444 U.S. 996, 997 (Justice Powell concurring) (parties
had not put themselves in opposition).
587 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81–82
(1978). The injury giving standing to plaintiffs was the environmental harm arising
from the plant’s routine operation; the injury to their legal rights was alleged to be
the harm caused by the limitation of liability in the event of a nuclear accident. The
standing injury had occurred, the ripeness injury was conjectural and speculative
and might never occur. See id. at 102 (Justice Stevens concurring in the result). It
is evident on the face of the opinion and expressly stated by the objecting Justices
that the Court used its standing/ripeness analyses in order to reach the merits, so
as to remove the constitutional cloud cast upon the federal law by the district court
decision. Id. at 95, 103 (Justices Rehnquist and Stevens concurring in the result).
588 E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler,
394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S.
403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393,
398–399 (1975); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980),
and id. at 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987);
Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 494 U.S.
472, 477–478 (1990); Camreta V. Greene, 563 U.S. ___, No. 09–1954, slip op. (2011);
United States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 4 (2011).
766 ART. III—JUDICIAL DEPARTMENT
Munsingwear has long stood for the proposition that the appropriate practice of the
Court in a civil case that had become moot while on the way to the Court or after
certiorari had been granted was to vacate or reverse and remand with directions to
dismiss. In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),
however, the Court held that when mootness occurs because the parties have reached
a settlement, vacatur of the judgment below is ordinarily not the best practice; in-
stead, equitable principles should be applied so as to preserve a presumptively cor-
rect and valuable precedent, unless a court concludes that the public interest would
be served by vacatur.
589 Lewis v. Continental Bank Corp., 494 U.S. 472, 477–78 (1990) (internal cita-
White concurring), 482 n.3 (Justice Rehnquist concurring) (on res judicata effect in
state court in subsequent prosecution). In any event, the statute authorizes the fed-
eral court to grant “[f]urther necessary or proper relief,” which could include enjoin-
ing state prosecutions.
591 Award of process and execution are no longer essential to the concept of ju-
dicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
592 Chafin v. Chafin, 568 U.S. ___, No. 11–1347, slip op. (2013) (appeal of dis-
trict court order returning custody of a child to her mother in Scotland not made
moot by physical return of child to Scotland and subsequent ruling of Scottish court
in favor of the mother continuing to have custody).
ART. III—JUDICIAL DEPARTMENT 767
593 E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518
(1852); United States v. Alaska Steamship Co., 253 U.S. 113 (1920); Hall v. Beals,
396 U.S. 45 (1969); Sanks v. Georgia, 401 U.S. 144 (1971); Richardson v. Wright,
405 U.S. 208 (1972); Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972);
Lewis v. Continental Bank Corp., 494 U.S. 481 (1990). But compare City of Mes-
quite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982) (case not mooted by
repeal of ordinance, since City made clear its intention to reenact it if free from
lower court judgment); see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ___, No.
11–338, slip op. (2013) (action to enforce penalty under former regulation not mooted
by change in regulation where violation occurred before regulation was changed).
Following Aladdin’s Castle, the Court in Northeastern Fla. Ch. of the Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 660–63 (1993), held that when a
municipal ordinance is repealed but replaced by one sufficiently similar so that the
challenged action in effect continues, the case is not moot. But see id. at 669 (Jus-
tice O’Connor dissenting) (modification of ordinance more significant and case is mooted).
594 Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in challenge to laws regulat-
ing labor of youths 14 to 16, Court held case two-and-one-half years after argument
and dismissed as moot since certainly none of the challengers was now in the age
bracket); Golden v. Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S.
312 (1974); Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S.
624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), with Vitek
v. Jones, 445 U.S. 480 (1980). In Arizonans For Official English v. Arizona, 520 U.S.
43 (1997), a state employee attacking an English-only work requirement had stand-
ing at the time she brought the suit, but she resigned following a decision in the
trial court, thus mooting the case before it was taken to the appellate court, which
should not have acted to hear and decide it.
595 E.g., Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919); Oil Workers
Local 8–6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling Barge Lines v. United
States, 368 U.S. 324 (1961); Preiser v. Newkirk, 422 U.S. 395 (1975); County of Los
Angeles v. Davis, 440 U.S. 625 (1979); Alvarez v. Smith, 558 U.S. ___, No. 08–351
(2009).
596 Sibron v. New York, 395 U.S. 40, 50–58 (1968). But compare Spencer v. Kemna,
gressed from leaning toward mootness to leaning strongly against. E.g., St. Pierre v.
United States, 319 U.S. 41 (1943); Fiswick v. United States, 329 U.S. 211 (1946);
United States v. Morgan, 346 U.S. 502 (1954); Pollard v. United States, 352 U.S.
354 (1957); Ginsberg v. New York, 390 U.S. 629, 633–634 n.2 (1968); Sibron v. New
York, 392 U.S. 40, 49–58 (1968).But see Lane v. Williams, 455 U.S. 624 (1982);United
States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 6 (2011) (per curiam)
(rejecting as too indirect a benefit that favorable resolution of a case might serve as
beneficial precedent for a future case involving the plaintiff). The exception permits
review at the instance of the prosecution as well as defendant. Pennsylvania v. Mimms,
768 ART. III—JUDICIAL DEPARTMENT
434 U.S. 106 (1977). When a convicted defendant dies while his case is on direct
review, the Court’s present practice is to dismiss the petition for certiorari. Dove v.
United States, 423 U.S. 325 (1976), overruling Durham v. United States, 401 U.S.
481 (1971).
598 Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v.
President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See Super Tire Engi-
neering Co. v. McCorkle, 416 U.S. 115 (1974) (holding that expiration of strike did
not moot employer challenge to state regulations entitling strikers to state welfare
assistance since the consequences of the regulations would continue).
599 United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897); Walling
v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 328 U.S. 246 (1946); United
States v. W.T. Grant Co., 345 U.S. 629 (1953); Gray v. Sanders, 372 U.S. 368 (1963);
United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 202–04 (1969);
DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. Davis, 440
U.S. 625, 631–34 (1979), and id. at 641–46 (Justice Powell dissenting); Vitek v. Jones,
445 U.S. 480, 486–487 (1980), and id. at 500–01 (Justice Stewart dissenting); Princ-
eton University v. Schmidt, 455 U.S. 100 (1982); City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283, 288–289 (1982).
600 United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United
States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d. Cir. 1945)).
601 Already, LLC v. Nike, Inc., 568 U.S. ___, No. 11–982, slip op. at 4 (2013)
603 577 U.S. ___, No. 14–857, slip op. at 7–9 (2016) (“[W]ith no settlement offer
still operative, the parties remained adverse; both retained the same stake in the
litigation that they had at the outset.”). The Campbell-Ewald decision was limited
to the question of whether an offer of complete relief moots a case. The Court left
open the question of whether the payment of complete relief by a defendant to a
plaintiff can render a case moot. Id. at 11.
604 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).
605 Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S.
478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125–26
(1974), and id. at 130–32 (Justice Stewart dissenting), Friends of the Earth v. Laidlaw
Envtl. Servs., 528 U.S. 167, 189–91 (2000),. The degree of expectation or likelihood
that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt,
with Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); compare Honig v. Doe,
484 U.S. 305, 318–23 (1988), with id. at 332 (Justice Scalia dissenting).
606 See, e.g., Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Rosario v. Rock-
efeller, 410 U.S. 752, 756 n.5 (1973); Moore v. Ogilvie, 394 U.S. 814, 816 (1969).
607 See Roe v. Wade, 410 U.S. 113, 124–125 (1973).
608 See, e.g., Sibron v. New York, 392 U.S. 40, 49–58 (1968). See also Gerstein v.
916, slip op. at 7 (2016) (“We have previously held that a period of two years is too
short to complete judicial review of the lawfulness of [a] procurement.”) (citing S.
Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–16 (1911)).
610 See, e.g., Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968).
See Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) (short-term court order restrict-
ing press coverage).
770 ART. III—JUDICIAL DEPARTMENT
and the other party exists.611 The Court was closely divided, how-
ever, with respect to the right of the named party, when the sub-
stantive controversy became moot as to him, to appeal as error the
denial of a motion to certify the class which he sought to represent
and which he still sought to represent. The Court held that in the
class action setting there are two aspects of the Article III moot-
ness question, the existence of a live controversy and the existence
of a personal stake in the outcome for the named class representa-
tive.612 Finding a live controversy, the Court determined that the
named plaintiff retained a sufficient interest, “a personal stake,” in
his claimed right to represent the class in order to satisfy the “im-
peratives of a dispute capable of judicial resolution;” that is, his con-
tinuing interest adequately assures that “sharply presented issues”
are placed before the court “in a concrete factual setting” with “self-
interested parties vigorously advocating opposing positions.” 613
The immediate effect of the decision is that litigation in which
class actions are properly certified or in which they should have
been certified will rarely ever be mooted if the named plaintiff (or
in effect his attorney) chooses to pursue the matter, even though
the named plaintiff can no longer obtain any personal relief from
611 Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman Transp. Co., 424 U.S.
747, 752–757 (1976). A suit which proceeds as a class action but without formal cer-
tification may not receive the benefits of this rule. Board of School Commr’s v. Ja-
cobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasa-
dena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization
of these cases in United States Parole Comm’n v. Geraghty, 445 U.S. 388, 400 n.7
(1980). Mootness is not necessarily avoided in properly certified cases, but the stan-
dards of determination are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977).
612 United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980).
613 445 U.S. at 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger
dissented, id. at 409, arguing there could be no Article III personal stake in a proce-
dural decision separate from the outcome of the case. In Deposit Guaranty Nat’l
Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, the Court
held that a class action was not mooted when defendant tendered to the named plain-
tiffs the full amount of recovery they had individually asked for and could hope to
retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those
who would share in its benefits if the class were certified was deemed to be a suffi-
cient “personal stake”. Cf. Genesis Healthcare Corp. v. Symczyk, 569 U.S. ___, No.
11–1059, slip op. (2013) (in the context of a “collective action” under the Fair Labor
Standards Act where a plaintiff ’s individual claim was moot and no other individu-
als had joined the suit, holding that a plaintiff had no personal stake in the case
that provided the court with subject matter jurisdiction). In a slightly different con-
text, the Court, in Campbell-Ewald Co. v. Gomez, held that neither an unaccepted
settlement offer or an offer of judgment provided prior to class certification would
moot a potential lead plaintiff ’s case. 577 U.S. ___, No. 14–857, slip op. at 11 (2016).
According to the majority opinion, this holding avoided placing defendants in the
“driver’s seat” with respect to class litigation wherein a defendant’s offer of settle-
ment could eliminate a court’s jurisdiction to adjudicate potentially costly class ac-
tions. Id.
ART. III—JUDICIAL DEPARTMENT 771
614 The named plaintiff must still satisfy the class action requirement of ad-
equacy of representation. United States Parole Comm’n v. Geraghty, 445 U.S. 388,
405–407 (1980). On the implications of Geraghty, which the Court has not returned
to, see Hart & Wechsler (6th ed.), supra at 194–198.
615 Geraghty, 445 U.S. at 404 & n.11.
616 569 U.S. ___, No. 11–1059, slip op. (2013).
617 For a masterful discussion of the issue in both criminal and civil contexts,
see Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104
HARV. L. REV. 1731 (1991).
618 Stovall v. Denno, 388 U.S. 293, 301 (1967).
619 England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 422 (1964);
James v. United States, 366 U.S. 213 (1961). See also Morrissey v. Brewer, 408 U.S.
471, 490 (1972).
620 Noncriminal constitutional cases included Lemon v. Kurtzman, 411 U.S. 192
(1973); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma,
395 U.S. 701 (1969). Indeed, in Buckley v. Valeo, 424 U.S. 1 (1976), and Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court post-
poned the effectiveness of its decision for a period during which Congress could re-
pair the flaws in the statute. Noncriminal, nonconstitutional cases include Chevron
Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State Board of Elections, 393 U.S. 544
(1969); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 (1968); Simpson
v. Union Oil Co., 377 U.S. 13 (1964).
621 Because of shifting coalitions of Justices, Justice Harlan complained, the course
Prior to 1965, “both the common law and our own decisions rec-
ognized a general rule of retrospective effect for the constitutional
decisions of this Court . . . subject to [certain] limited excep-
tions.” 622 Statutory and judge-made law have consequences, at least
to the extent that people must rely on them in making decisions
and shaping their conduct. Therefore, the Court was moved to rec-
ognize that there should be a reconciling of constitutional interests
reflected in a new rule of law with reliance interests founded upon
the old.623 In both criminal and civil cases, however, the Court’s dis-
cretion to do so has been constrained by later decisions.
In the 1960s, when the Court began its expansion of the Bill of
Rights and applied its rulings to the states, it became necessary to
determine the application of the rulings to criminal defendants who
had exhausted all direct appeals but who could still resort to ha-
beas corpus, to those who had been convicted but still were on di-
rect appeal, and to those who had allegedly engaged in conduct but
who had not gone to trial. At first, the Court drew the line at cases
in which judgments of conviction were not yet final, so that all per-
sons in those situations obtained retrospective use of decisions,624
but the Court later promulgated standards for a balancing process
that resulted in different degrees of retroactivity in different cases.625
Generally, in cases in which the Court declared a rule that was “a
clear break with the past,” it denied retroactivity to all defendants,
with the sometime exception of the appellant himself.626 With re-
spect to certain cases in which a new rule was intended to over-
come an impairment of the truth-finding function of a criminal trial 627
or to cases in which the Court found that a constitutional doctrine
barred the conviction or punishment of someone,628 full retroactiv-
a beast of prey in search of its intended victim.” Mackey v. United States, 401 U.S.
667, 676 (1971) (separate opinion).
622 Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule of retroactivity
derived from the Blackstonian notion “that the duty of the court was not to ‘pro-
nounce a new law, but to maintain and expound the old one.’ ” Linkletter v. Walker,
381 U.S. 618, 622–23 (1965) (quoting 1 W. Blackstone, Commentaries *69).
623 Lemon v. Kurtzman, 411 U.S. 192, 198–99 (1973).
624 Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott,
422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–36 (1980) (plurality opin-
ion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S.
537, 549–50, 551–52 (1982).
627 Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown
v. Louisiana, 447 U.S. 323, 328–30 (1980) (plurality opinion); Hankerson v. North
Carolina, 432 U.S. 233, 243 (1977).
628 United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971);
Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973).
ART. III—JUDICIAL DEPARTMENT 773
ity, even to habeas claimants, was the rule. Justice Harlan strongly
argued that the Court should sweep away its confusing balancing
rules and hold that all defendants whose cases are still pending on
direct appeal at the time of a law-changing decision should be en-
titled to invoke the new rule, but that no habeas claimant should
be entitled to benefit.629
The Court later drew a sharp distinction between criminal cases
pending on direct review and cases pending on collateral review.
For cases on direct review, “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or fed-
eral, pending on direct review or not yet final, with no exception
for cases in which the new rule constitutes a ‘clear break’ with the
past.” 630 Justice Harlan’s habeas approach was first adopted by a
plurality in Teague v. Lane 631 and then by the Court in Penry v.
Lynaugh.632 Thus, for collateral review in federal courts of state court
criminal convictions, the general rule is that “new rules” of consti-
tutional interpretation—those “not ‘dictated by precedent existing
at the time the defendant’s conviction became final’ ” 633—will not
be applied.634 However, “[a] new rule applies retroactively in a col-
lateral proceeding only if (1) the rule is substantive or (2) the rule
is a ‘watershed rul[e] of criminal procedure’ implicating the funda-
mental fairness and accuracy of the criminal proceeding.” 635 Put an-
other way, a new rule will be applied in a collateral proceeding only
if it places certain kinds of conduct “beyond the power of the crimi-
629 Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion); Desist
v. United States, 394 U.S. 244, 256 (1969) (dissenting). Justice Powell has also strongly
supported the proposed rule. Hankerson v. North Carolina, 432 U.S. 233, 246–248
(1977) (concurring in judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (con-
curring in judgment).
630 Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton
enough that a decision is “within the ‘logical compass’ of an earlier decision, or in-
deed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if
its result “was susceptible to debate among reasonable minds” and if it was not “an
illogical or even a grudging application” of the prior decision. Butler v. McKellar,
494 U.S. 407, 412–415 (1990). For additional elaboration on “new law,” see O’Dell v.
Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray
v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614
(1998).
634 For an example of the application of the Teague rule in federal collateral
review of a federal court conviction, see Chaidez v. United States, 568 U.S. ___, No.
11–820, slip op. (2013). See also Welch v. United States, 578 U.S. ___, No. 15–6418,
slip op. at 7 (2016) (assuming, without deciding, that the Teague framework “ap-
plies in a federal collateral challenge to a federal conviction as it does in a federal
collateral challenge to a state conviction”).
635 Whorton v. Bockting, 549 U.S. 406, 416 (2007).
774 ART. III—JUDICIAL DEPARTMENT
636 Teague v. Lane, 489 U.S. 288, 307, 311–313 (1989) (plurality opinion); see
(“If a State may not constitutionally insist that a prisoner remain in jail on federal
habeas review, it may not constitutionally insist on the same result in its own postconvic-
tion proceedings.”). The Court reasoned as such because new substantive rules con-
stitute wholesale prohibitions on the state’s power to convict or sentence a criminal
defendant under certain circumstances, making the underlying conviction or sen-
tence void and providing the state with no authority to leave the underlying judg-
ment in place during collateral review. Id. at 10–11; see also id. at 12 (“A penalty
imposed pursuant to an unconstitutional law is no less void because the prisoner’s
sentence became final before the law was held unconstitutional. There is no grand-
father clause that permits States to enforce punishments the Constitution for-
bids.”).
638 See Montgomery, slip op. at 8 (“[T]he Constitution requires substantive rules
(2004); Penry v. Lynaugh, 492 U.S. 302, 330 (1989). Accordingly, the Court has re-
jected the argument that the underlying “source” of a constitutional rule—i.e., the
fact that a constitutional rule on its face creates substantive or procedural rights—
can determine the retroactivity of a ruling. See Welch, slip op. at 10 (“[T]his Court
ART. III—JUDICIAL DEPARTMENT 775
Huson, 404 U.S. 97 (1971). Briefly, the question of retroactivity or prospectivity was
to be determined by a balancing of the equities. To be limited to prospectivity, a
decision must have established a new principle of law, either by overruling clear
past precedent on which reliance has been had or by deciding an issue of first im-
pression whose resolution was not clearly foreshadowed. The courts must look to
the prior history of the rule in question, its purpose and effect, and whether retro-
spective operation will further or retard its operation. Then, the courts must look to
see whether a decision to apply retroactively a decision will produce substantial in-
equitable results. Id. at 106–07. American Trucking Assn’s v. Smith, 496 U.S. 167,
179–86 (1990) (plurality opinion).
645 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American Truck-
refund, because in the earlier ruling the Court had applied the hold-
ing to the contesting company, and, once a new rule has been ap-
plied retroactively to the litigants in a civil case, considerations of
equality and stare decisis compel application to all.646 Although par-
tial or selective prospectivity is thus ruled out, neither pure retro-
activity nor pure prospectivity is either required or forbidden.
Four Justices adhered to the principle that new rules, as de-
fined above, may be applied purely prospectively, without violating
any tenet of Article III or any other constitutional value.647 Three
Justices argued that all prospectivity, whether partial or total, vio-
lates Article III by expanding the jurisdiction of the federal courts
beyond true cases and controversies.648 Apparently, the Court now
has resolved this dispute, although the principal decision was by a
five-to-four vote. In Harper v. Virginia Dep’t of Taxation,649 the Court
adopted the principle of the Griffith decision in criminal cases and
disregarded the Chevron Oil approach in civil cases. Henceforth, in
civil cases, the rule is: “When this Court applies a rule of federal
law to the parties before it, that rule is the controlling interpreta-
tion of federal law and must be given full retroactive effect in all
cases open on direct review and as to all events, regardless of whether
such events predate or postdate our announcement of the rule.” 650
646 The holding described in the text is expressly that of only a two-Justice plu-
rality. 501 U.S. at 534–44 (Justices Souter and Stevens). Justice White, Justice
Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) con-
curred, id. at 544, 547, 548 (respectively), but on other, and in the instance of the
three latter Justices, and broader justifications. Justices O’Connor and Kennedy and
Chief Justice Rehnquist dissented. Id. at 549.
647 501 U.S. at 549 (dissenting opinion of Justices O’Connor and Kennedy and
Chief Justice Rehnquist), and id. at 544 (Justice White concurring). See also Smith,
496 U.S. at 171 (plurality opinion of Justices O’Connor, White, Kennedy, and Chief
Justice Rehnquist).
648 501 U.S. at 547, 548 (Justices Blackmun, Scalia, and Marshall concurring).
In Smith, 496 U.S. at 205, these three Justices had joined the dissenting opinion of
Justice Stevens arguing that constitutional decisions must be given retroactive ef-
fect.
649 509 U.S. 86 (1993).
650 509 U.S. at 97. Although the conditional language in this passage might sug-
gest that the Court was leaving open the possibility that in some cases it might
rule purely prospectively, and not even apply its decision to the parties before it,
other language belies that possibility. “This rule extends Griffith’s ban against ‘selec-
tive application of new rules.’ ” (Citing Griffith, 479 U.S. at 323.) Because Griffith
rested in part on the principle that “the nature of judicial review requires that [the
Court] adjudicate specific cases,” 479 U.S. at 322, deriving from Article III’s case or
controversy requirement for federal courts and forbidding federal courts from acting
legislatively, “ ‘the Court has no more constitutional authority in civil cases than in
criminal cases to disregard current law or to treat similarly situated litigants differ-
ently.’ ” 509 U.S. at 97 (quoting Smith, 496 U.S. at 214 (Justice Stevens dissent-
ing)). The point is made more clearly in Justice Scalia’s concurrence, in which he
denounces all forms of nonretroactivity as “the handmaid of judicial activism.” Id.
at 105.
ART. III—JUDICIAL DEPARTMENT 777
Political Questions
In some cases, a court will refuse to adjudicate a case despite
the fact that it presents all the qualifications that we have consid-
ered to make it a justiciable controversy; it is in its jurisdiction,
presented by parties with standing, and it is a case in which ad-
verseness and ripeness exist. Such are cases that present a “politi-
cal question.” Although the Court has referred to the political ques-
tion doctrine as “one of the rules basic to the federal system and
this Court’s appropriate place within that structure,” 653 it has also
been remarked that “[i]t is, measured by any of the normal respon-
sibilities of a phrase of definition, one of the least satisfactory terms
known to the law. The origin, scope, and purpose of the concept have
eluded all attempts at precise statements.” 654
It has been suggested that it may be more useful to itemize the
categories of questions that have been labeled political rather than
to attempt to isolate the factors that a court will consider to iden-
tify such cases.655 The Court has to some extent agreed, noting that
the criteria applied by the Court in political questions cases can
vary depending on the issue involved.656 Regardless of which ap-
proach is taken, however, the Court’s narrowing of the rationale for
political questions in Baker v. Carr,657 discussed below, appears to
have changed the nature of the inquiry radically.
651 509 U.S. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Jus-
tice O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices dis-
agreed in this case about the proper application of Chevron Oil.
652 But see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside
a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation
of that state’s statute of limitations in certain suits, in an opinion by Justice Breyer,
Justice Blackmun’s successor); Ryder v. United States, 515 U.S. 177, 184–85 (1995)
(“whatever the continuing validity of Chevron Oil after” Harper and Reynoldsville
Casket).
653 Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr,
369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful ef-
fort at conceptualization of the doctrine is Scharpf, Judicial Review and the Politi-
cal Question: A Functional Analysis, 75 YALE L.J. 517 (1966). See Hart & Wechsler
(6th ed.), supra at 222–248.
654 Frank, Political Questions, in SUPREME COURT AND SUPREME LAW (E. Cahn, ed.,
1954), at 36.
655 The concept of political question is “more amenable to description by infinite
the Court, refusing an effort by mandamus to compel the Secretary of the Navy to
pay a pension, said: “The interference of the courts with the performance of the or-
dinary duties of the executive departments of the government, would be productive
of nothing but mischief; and we are quite satisfied, that such a power was never
intended to be given to them.” It therefore follows that mandamus will lie against
an executive official only to compel the performance of a ministerial duty, which ad-
mits of no discretion, and may not be invoked to control executive or political duties
which admit of discretion. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mis-
sissippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel.
Stokes, 37 U.S. (12 Pet.) 524 (1838).
662 48 U.S. (7 How.) 1 (1849).
663 Cf. Baker v. Carr, 369 U.S. 186, 218–22 (1962); id. at 292–97 (Justice Frank-
furter dissenting).
664 Luther, 48 U.S. (7 How.) at 40.
665 48 U.S. at 42 (citing Article IV, § 4).
ART. III—JUDICIAL DEPARTMENT 779
(1947).
672 South v. Peters, 339 U.S. 276 (1950) (county unit system for election of state-
wide officers with vote heavily weighted in favor of rural, lightly populated coun-
ties).
673 MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating peti-
tive); Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative and
referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state constitutional amendment
procedure); O’Neill v. Leamer, 239 U.S. 244 (1915) (delegation to court to form drain-
age districts); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of
legislation to referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917)
(workmen’s compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park District,
281 U.S. 74 (1930) (concurrence of all but one justice of state high court required to
invalidate statute); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937) (delega-
tion of legislative powers).
677 All the cases, however, predate the application of the doctrine in Pacific States
Tel. Co. v. Oregon, 223 U.S. 118 (1912). See Attorney General of the State of Michi-
gan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905) (legislative creation and altera-
tion of school districts “compatible” with a republican form of government); Forsyth
v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to court to deter-
mine municipal boundaries does not infringe republican form of government); Minor
v. Happersett, 88 U.S. (21 Wall.) 162, 175–176 (1875) (denial of suffrage to women
no violation of republican form of government).
678 Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air
246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S. 766 (1884).
681 United States v. The Three Friends, 166 U.S. 1 (1897); In re Baiz, 135 U.S.
403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
ART. III—JUDICIAL DEPARTMENT 781
Moreover, the courts have often determined for themselves what ef-
fect, if any, should be accorded the acts of foreign powers, recog-
nized or unrecognized.682
3. Treaties. Similarly, the Court, when dealing with treaties and
the treaty power, has treated as political questions whether the for-
eign party had constitutional authority to assume a particular obli-
gation 683 and whether a treaty has lapsed because of the foreign
state’s loss of independence 684 or because of changes in the territo-
rial sovereignty of the foreign state.685 On the other hand, the Court
will not only interpret the domestic effects of treaties,686 but it will
at times interpret the effects bearing on international matters.687
The Court has generally deferred to the President and Congress with
regard to the existence of a state of war and the dates of the begin-
ning and ending and of states of belligerency between foreign pow-
ers, but the deference has sometimes been forced.688
4. Enactment or Ratification of Laws. Ordinarily, the Court will
not look behind the fact of certification as to whether the stan-
dards requisite for the enactment of legislation 689 or ratification of
a constitutional amendment 690 have in fact been met, although it
682 United States v. Reynes, 50 U.S. (9 How.) 127 (1850); Garcia v. Lee, 37 U.S.
(12 Pet.) 511 (1838); Keene v. McDonough, 33 U.S. (8 Pet.) 308 (1834). See also Wil-
liams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839); Underhill v. Hernandez, 168
U.S. 250 (1897). But see United States v. Belmont, 301 U.S. 324 (1937). On the “act
of state” doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964),
with First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). See
also First National City Bank v. Banco Para el Comercio de Cuba, 462 U.S. 611
(1983); W.S. Kirkpatrick & Co. v. Environmental Tectronics Corp., U.S. 400 (1990).
683 Doe v. Braden, 57 U.S. (16 How.) 635 (1853).
684 Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947).
685 Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). On the effect of a viola-
tion by a foreign state on the continuing effectiveness of the treaty, see Ware v. Hylton,
3 U.S. (3 Dall.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913).
686 Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cf. Chinese Exclusion Case (Chae
Chan Ping v. United States), 130 U.S. 581 (1889) (conflict of treaty with federal law).
On the modern formulation, see Japan Whaling Ass’n v. American Cetacean Society,
478 U.S. 221, 229–230 (1986).
687 Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407
(1886).
688 Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. Cloyd W. Miller
Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924); Ludecke
v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358 U.S. 228 (1959); The Divina
Pastora, 17 U.S. (4 Wheat.) 52 (1819). The cases involving the status of Indian tribes
as foreign states usually but not always have presented political questions. The Chero-
kee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Sandoval, 231 U.S.
28 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
689 Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547
(1896); cf. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). See, for the mod-
ern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990).
690 Coleman v. Miller, 307 U.S. 433 (1939) (Congress’s discretion to determine
what passage of time will cause an amendment to lapse, and effect of previous rejec-
tion by legislature).
782 ART. III—JUDICIAL DEPARTMENT
232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Twin City Na-
tional Bank v. Nebeker, 167 U.S. 196 (1897); Lyons v. Woods, 153 U.S. 649 (1894);
United States v. Ballin, 144 U.S. 1 (1892) (statutes); United States v. Sprague, 282
U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368
(1921); Hawke v. Smith (No. 1), 253 U.S. 221 (1920); National Prohibition Cases,
253 U.S. 350 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (constitu-
tional amendments).
692 Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583
(1938).
693 See, e.g., Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103,
lar considerations underlay the opinion in Luther v. Borden, 48 U.S. (7 How.) 1 (1849),
in which Chief Justice Taney wondered how a court decision in favor of one faction
would be received with Congress seating the representatives of the other faction and
the President supporting that faction with military force.
695 Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id. at
DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962), but see esp. 23–
28, 69–71, 183–198. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frank-
furter dissenting.) The opposing view, which has been called the “classicist” view, is
that courts are duty bound to decide all cases properly before them. Cohens v. Vir-
ginia, 19 U.S. (6 Wheat.) 264, 404 (1821). See also H. WECHSLER, PRINCIPLES, POLITICS,
AND FUNDAMENTAL LAW: SELECTED ESSAYS 11–15 (1961).
697 369 U.S. 186 (1962).
ART. III—JUDICIAL DEPARTMENT 783
Hadley v. Junior College District, 397 U.S. 50 (1970) (apportionment and district-
ing, congressional, legislative, and local); Gray v. Sanders, 372 U.S. 368 (1963) (county
unit system weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) (geo-
graphic dispersion of persons signing nominating petitions).
699 See, e.g., Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doc-
cases like Moyer v. Peabody, 212 U.S. 78 (1909), in which the conclusion of the gov-
ernor of a state that insurrection existed or was imminent justifying suspension of
constitutional rights was deemed binding on the Court. Cf. Sterling v. Constantin,
287 U.S. 378 (1932). The political question doctrine was applied in cases challeng-
ing the regularity of enactments of territorial legislatures. Harwood v. Wentworth,
162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 (1894); Clough v. Curtis, 134
U.S. 361 (1890). See also In re Sawyer, 124 U.S. 200 (1888); Walton v. House of
Representatives, 265 U.S. 487 (1924).
701 369 U.S. at 210.
702 369 U.S. at 211.
784 ART. III—JUDICIAL DEPARTMENT
703 369 U.S. at 217. It remains unclear after Baker whether the political ques-
tion doctrine is applicable solely to intrafederal issues or only primarily, so that the
existence of one or more of these factors in a case involving, say, a state, might still
give rise to nonjusticiability. At one point, id. at 210, Justice Brennan says that
nonjusticiability of a political question is “primarily” a function of separation of pow-
ers but in the immediately preceding paragraph he states that “it is” the intrafederal
aspect “and not the federal judiciary’s relationship to the States” that raises politi-
cal questions. But subsequently, id. at 226, he balances the present case, which in-
volves a state and not a branch of the Federal Government, against each of the fac-
tors listed in the instant quotation and notes that none apply. His discussion of why
Guarantee Clause cases are political presents much the same difficulty, id. at 222–
26, because he joins the conclusion that the clause commits resolution of such is-
sues to Congress with the assertion that the clause contains no “criteria by which a
court could determine which form of government was republican,” id. at 222, a fac-
tor not present when the Equal Protection Clause is relied on. Id. at 226.
704 Bond v. Floyd, 385 U.S. 116 (1966).
705 395 U.S. 486 (1969).
706 Baker v. Carr, 369 U.S. 186, 217 (1962).
707 395 U.S. at 319.
ART. III—JUDICIAL DEPARTMENT 785
had not been reached from unambiguous evidence, the result would have followed
from other considerations. Id. at 547–48.
709 See H. Wechsler, supra at 11–12. Professor Wechsler believed that congres-
sional decisions about seating members were immune to review. Id. Chief Justice
Warren noted that “federal courts might still be barred by the political question doc-
trine from reviewing the House’s factual determination that a member did not meet
one of the standing qualifications. This is an issue not presented in this case and
we express no view as to its resolution.” Powell v. McCormack, 395 U.S. 486, 521
n.42 (1969). See also id. at 507 n.27 (reservation on limitations that might exist on
Congress’s power to expel or otherwise punish a sitting member).
710 395 U.S. at 548–549. With the formulation of Chief Justice Warren, compare
that of then-Judge Burger in the lower court. 395 F.2d 577, 591–96 (D.C. Cir. 1968).
786 ART. III—JUDICIAL DEPARTMENT
to underlay, though they did not provide the formal basis for, the decisions in O’Shea
v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality
League, 415 U.S. 605 (1974).
712 413 U.S. at 11. Other considerations of justiciability, however, id. at 10, pre-
clude using the case as square precedent on political questions. Notice that in Scheuer
v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. Morgan
holding barred adjudication of damage actions brought against state officials by the
estates of students killed in the course of the conduct that gave rise to both cases.
713 O’Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted
by the passage of time and was not thereafter considered on the merits by the Court.
Id. at 816 (remanding to dismiss as moot). It was also not before the Court in Cous-
ins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id. at 483 n.4,
and id. at 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S.
996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger
using political question analysis to dismiss a challenge to presidential action). But
see id. at 997, 998 (Justice Powell rejecting analysis for this type of case).
714 Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its deci-
715 Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 (1986).
See also Davis v. Bandemer, 478 U.S. 109 (1986) (challenge to political gerrymander-
ing is justiciable). But see Vieth v. Jubelirer, 541 U.S. 267 (2004) (no workable stan-
dard has been found for measuring burdens on representational rights imposed by
political gerrymandering).
716 United States v. Munoz-Flores, 495 U.S. 385 (1990).
717 495 U.S. at 390 (emphasis in original).
718 495 U.S. at 393.
719 495 U.S. at 393–95.
720 495 U.S. at 395–96.
788 ART. III—JUDICIAL DEPARTMENT
JUDICIAL REVIEW
CONSTITUTIONAL LAW 1–38 (12th ed. 1991); For expositions on the legitimacy of judicial
review, see L. HAND, THE BILL OF RIGHTS (1958); H. WECHSLER, PRINCIPLES, POLITICS, AND
FUNDAMENTAL LAW:SELECTED ESSAYS 1–15 (1961); A. BICKEL, THE LEAST DANGEROUS BRANCH:
THE SUPREME COURT AT THE BAR OF POLITICS 1–33 (1962); R. BERGER, CONGRESS V. THE SU-
PREME COURT (1969). For an extensive historical attack on judicial review, see 2 W.
CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES chs. 27–29
(1953), with which compare Hart, Book Review, 67 HARV. L. REV. 1456 (1954). A brief
review of the ongoing debate on the subject, in a work that now is a classic attack
on judicial review, is Westin, Introduction: Charles Beard and American Debate over
Judicial Review, 1790–1961, in C. BEARD, THE SUPREME COURT AND THE CONSTITUTION 1–34
(1962 reissue of 1938 ed.), and bibliography at 133–149. While much of the debate
focuses on judicial review of acts of Congress, the similar review of state acts has
occasioned much controversy as well.
727 5 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in
and prior to Marbury the power seems very generally to have been
assumed to exist by the Justices themselves.731 In enacting the Ju-
to make a law not warranted by any of the powers enumerated, it would be consid-
ered by the judge as an infringement of the Constitution which they are to guard
. . . They would declare it void . . . . To what quarter will you look for protection
from an infringement on the constitution, if you will not give the power to the judi-
ciary? There is no other body that can afford such a protection.” 3 id. at 553–54.
Both Madison and Hamilton similarly asserted the power of judicial review in their
campaign for ratification. THE FEDERALIST (J. Cooke ed. 1961). See Nos. 39 and 44, at
256, 305 (Madison), Nos. 78 and 81, at 524–530, 541–552 (Hamilton). The persons
supporting or at least indicating they thought judicial review existed did not consti-
tute a majority of the Framers, but the absence of controverting statements, with
the exception of the Mercer-Dickinson comments, indicates at least acquiescence if
not agreements by the other Framers.
To be sure, subsequent comments of some of the Framers indicate an understand-
ing contrary to those cited in the convention. See, e.g., Charles Pinckney in 1799:
“On no subject am I more convinced, than that it is an unsafe and dangerous doc-
trine in a republic, ever to suppose that a judge ought to possess the right of ques-
tioning or deciding upon the constitutionality of treaties, laws, or any act of the leg-
islature. It is placing the opinion of an individual, or of two or three, above that of
both branches of Congress, a doctrine which is not warranted by the Constitution,
and will not, I hope, long have many advocates in this country.” STATE TRIALS OF THE
UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 412 (F. Wharton
ed., 1849).
Madison’s subsequent changes of position are striking. His remarks in the Phila-
delphia Convention, in the Virginia ratifying convention, and in The Federalist, cited
above, all unequivocally favor the existence of judicial review. And in Congress argu-
ing in support of the constitutional amendments providing a bill of rights, he ob-
served: “If they are incorporated into the Constitution, independent tribunals of jus-
tice 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 Leg-
islature or Executive; they will be naturally led to resist every encroachment upon
rights expressly stipulated for in the Constitution by the declaration of rights,” 1
ANNALS OF CONGRESS 457 (1789); 5 WRITINGS OF JAMES MADISON 385 (G. Hunt ed., 1904).
Yet, in a private letter in 1788, he wrote: “In the state constitutions and indeed in
the federal one also, no provision is made for the case of a disagreement in expound-
ing them; and as the courts are generally the last in making the decision, it results
to them by refusing or not refusing to execute a law, to stamp it with the final char-
acter. This makes the Judiciary Department paramount in fact to the legislature,
which was never intended and can never be proper.” Id. at 294. At the height of the
dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately
passed by the Virginia legislature which, though milder, and more restrained than
one authored by Jefferson and passed by the Kentucky legislature, asserted the power
of the states, though not of one state or of the state legislatures alone, to “inter-
pose” themselves to halt the application of an unconstitutional law. 3 I. BRANT, JAMES
MADISON: FATHER OF THE CONSTITUTION, 1787–1800 460–464, 467–471 (1950); Report on
the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341–406. Embar-
rassed by the claim of the nullificationists in later years that his resolution sup-
ported their position, Madison distinguished his and their positions and again as-
serted his belief in judicial review. 6 I. Brant, supra, 481–485, 488–489.
The various statements made and positions taken by the Framers have been
culled and categorized and argued over many times. For a recent compilation review-
ing the previous efforts, see R. Berger, supra, chs. 3–4.
731 Thus, the Justices on circuit refused to administer a pension act on the grounds
of its unconstitutionally, see Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), and “Final-
ity of Judgment as an Attribute of Judicial Power,” supra. Chief Justice Jay and
other Justices wrote that the imposition of circuit duty on Justices was unconstitu-
ART. III—JUDICIAL DEPARTMENT 791
tional, although they never mailed the letter, supra, in Hylton v. United States, 3
U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was
argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3
Dall.) 199 (1797), a state law was overturned, and dicta in several opinions asserted
the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell),
and several Justices on circuit, quoted in J. Goebel, supra, at 589–592.
732 In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress chose not to vest
“federal question” jurisdiction in the federal courts but to leave to the state courts
the enforcement of claims under the Constitution and federal laws. In § 25, 1 Stat.
85, Congress provided for review by the Supreme Court of final judgments in state
courts (1) “. . . where is drawn in question the validity of a treaty or statute of, or
an authority exercised under the United States, and the decision is against their
validity;” (2) “. . . where is drawn in question the validity of a statute of, or an au-
thority exercised under any State, on the ground of their being repugnant to the
constitution, treaties or laws of the United States, and the decision is in favor of
their validity;” or (3) “. . . where is drawn in question the construction of any clause
of the constitution, or of a treaty, or statute of, or commission held under the United
States, and the decision is against the title, right, privilege or exemption specially
set up or claimed” thereunder. The ruling below was to be “re-examined and re-
versed or affirmed in the Supreme Court . . . .”
733 See in particular the debate on the President’s removal powers, discussed
supra, “The Removal Power” with statements excerpted in R. Berger, supra at 144–
150. Debates on the Alien and Sedition Acts and on the power of Congress to repeal
the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Con-
gress. C. Warren, supra at 107–124.
734 5 U.S. (1 Cr.) 137 (1803).
735 THE FEDERALIST, Nos. 78 and 81 (J. Cooke ed. 1961), 521–530, 541–552.
792 ART. III—JUDICIAL DEPARTMENT
described the Court’s appellate jurisdiction. Following and indeed attached to the
sentence on appellate jurisdiction, being separated by a semicolon, is the language
saying “and shall have power 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 Chief Justice could easily have
interpreted the authority to have been granted only in cases under appellate juris-
diction or as authority conferred in cases under both original and appellate jurisdic-
tion when the cases are otherwise appropriate for one jurisdiction or the other. Tex-
tually, the section does not compel a reading that Congress was conferring on the
Court an original jurisdiction to issue writs of mandamus per se.
739 Marbury v. Madison, 5 U.S. (1 Cr.) 137, 173–180 (1803). For a classic treat-
ment of Marbury, see Van Alstyne, A Critical Guide to Marbury v. Madison, 1969
DUKE L. J. 1.
740 5 U.S. at 176. One critic has written that by this question Marshall “had
already begged the question-in-chief, which was not whether an act repugnant to
the Constitution could stand, but who should be empowered to decide that the act
is repugnant.” A. Bickel, supra at 3. Marshall, however, soon reached this question,
though more by way of assertion than argument. 5 U.S. (1 Cr.) at 177–78.
ART. III—JUDICIAL DEPARTMENT 793
Art. III: “The judicial power shall extend to all Cases . . . arising under this Consti-
tution, the Laws of the United States, and Treaties made, or which shall be made,
under their Authority. . . .” Compare A. Bickel, supra at 5–6, with R. Berger, supra
at 189–222.
747 5 U.S. at 179.
794 ART. III—JUDICIAL DEPARTMENT
223–284.
750 E. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 75–78 (1914); Nelson, Changing
think the United States would come to an end if we lost our power to declare an Act
of Congress void. I do think the Union would be imperiled if we could not make
that declaration as the laws of the several States.” O. HOLMES, COLLECTED LEGAL PA-
PERS 295–296 (1921).
752 1 Stat. 73, 85, quoted supra.
753 Ware v. Hylton, 3 U.S. (3 Dall.) 190 (1796).
754 Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). The case came to the Court by
appeal from a circuit court and not from a state court under § 25. Famous early
cases coming to the Court under § 25 in which state laws were voided included Sturges
v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); and McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316 (1819).
755 14 U.S. (1 Wheat.) 304 (1816).
756 19 U.S. (6 Wheat.) 264 (1821).
ART. III—JUDICIAL DEPARTMENT 795
The six forms, or “modalities” as he refers to them, are drawn from P. BOB-
759
ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); L. TRIBE & M. DORF,
ON READING THE CONSTITUTION (1991); H. WELLINGTON, INTERPRETING THE CONSTITUTION (1990);
Symposium, Constitutional Adjudication and Democratic Theory, 56 N. Y. U. L. REV.
259 (1981); Symposium, Judicial Review and the Constitution: The Text and Be-
yond, 8 U. DAYTON L. REV. 43 (1983); Symposium, Judicial Review Versus Democracy,
42 OHIO ST. L.J. 1 (1981); Symposium, Democracy and Distrust: Ten Years Later, 77
VA. L. REV. 631 (1991). See also Farber, The Originalism Debate: A Guide for the
Perplexed, 49 OHIO ST. L.J. 1085 (1989).
761 This mode is most strongly association with C. BLACK, STRUCTURE AND RELATION-
762 E.g., Meese, The Attorney General’s View of the Supreme Court: Toward a
Jurisprudence of Original Intention, 45 PUB. ADMIN. REV. 701 (1985); Addresses: Con-
struing the Constitution, 19 U. C. DAVIS L. REV. 1 (1985), containing addresses by
Justice Brennan, id. at 2, Justice Stevens, id. at 15, and Attorney General Meese.
Id. at 22. See also Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV.
693 (1976).
763 5 U.S. (1 Cr.) 137 (1803).
764 19 U.S. (6 Wheat.) 264, 404, (1821).
765 See, e.g., Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525,
544 (1923), and Justice Roberts in United States v. Butler, 297 U.S. 1, 62 (1936).
766 “Judicial power, as contradistinguished from the powers of the law, has no
existence. Courts are the mere instruments of the law, and can will nothing.” Osborn
v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Mar-
shall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62–63 (1936).
767 The political question doctrine is another limitation arising in part out of
186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967).
798 ART. III—JUDICIAL DEPARTMENT
Supreme Court is not, and never has been, primarily concerned with the correction
of errors in lower court decisions. In almost all cases within the Court’s appellate
jurisdiction, the petitioner has already received one appellate review of his case . . . .
If we took every case in which an interesting legal question is raised, or our prima
facie impression is that the decision below is erroneous, we could not fulfill the Con-
stitutional and statutory responsibilities placed upon the Court. To remain effective,
the Supreme Court must continue to decide only those cases which present ques-
tions whose resolution will have immediate importance far beyond the particular
facts and parties involved.” Chief Justice Vinson, Address on the Work of the Fed-
eral Court, in 69 Sup. Ct. v, vi. It “is only accurate to a degree to say that our juris-
diction in cases on appeal is obligatory as distinguished from discretionary on certio-
rari.” Chief Justice Warren, quoted in Wiener, The Supreme Court’s New Rules, 68
HARV. L. REV. 20, 51 (1954).
770 See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288,
346 (1936). And contrast A. Bickel, supra at 111–198, with Gunther, The Subtle Vices
of the “Passive Virtues”: A Comment on Principle and Expediency in Judicial Re-
view, 64 COLUM. L. REV. 1 (1964).
771 Rescue Army v. Municipal Court, 331 U.S. 549, 568–75 (1947). See also Berea
College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & Nashville R.R., 213
U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman
v. Breeze Corp., 323 U.S. 316, 324–325 (1945); Spector Motor Service v. McLaughlin,
323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial
restraint as well as considerations of comity underlie the Court’s abstention doc-
trine when the constitutionality of state laws is challenged.
ART. III—JUDICIAL DEPARTMENT 799
tion for constitutionality. They are found in the delicacy of that func-
tion, particularly in view of possible consequences for others stem-
ming also from constitutional roots; the comparative finality of those
consequences; the consideration due to the judgment of other reposi-
tories of constitutional power concerning the scope of their author-
ity; the necessity, if government is to function constitutionally, for
each to keep within its power, including the courts; the inherent
limitations of the judicial process, arising especially from its largely
negative character and limited resources of enforcement; withal in
the paramount importance of constitutional adjudication in our sys-
tem.” 772
The Doctrine of Clear Mistake.—A precautionary rule early
formulated and at the base of the traditional concept of judicial re-
straint was expressed by Professor James Bradley Thayer to the
effect that a statute could be voided as unconstitutional only “when
those who have the right to make laws have not merely made a
mistake, but have made a very clear one,—so clear that it is not
open to rational question.” 773 Whether phrased this way or phrased
so that a statute is not to be voided unless it is unconstitutional
beyond all reasonable doubt, the rule is of ancient origin 774 and of
modern adherence.775 In operation, however, the rule is subject to
two influences, which seriously impair its efficacy as a limitation.
First, the conclusion that there has been a clear mistake or that
there is no reasonable doubt is that drawn by five Justices if a full
Court sits. If five Justices of learning and detachment to the Con-
stitution are convinced that a statute is invalid and if four others
of equal learning and attachment are convinced it is valid, the con-
victions of the five prevail over the convictions or doubts of the four.
Second, the Court has at times made exceptions to the rule in cer-
tain categories of cases. Statutory interferences with “liberty of con-
tract” were once presumed to be unconstitutional until proved to
be valid; 776 more recently, presumptions of invalidity have ex-
pressly or impliedly been applied against statutes alleged to inter-
fere with freedom of expression and of religious freedom, which have
772 Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947).
773 The Origin and Scope of the American Doctrine of Constitutional Law, in J.
THAYER, LEGAL ESSAYS 1, 21 (1908).
774 See Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 395,
399 (1798).
775 E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960).
776 “But freedom of contract is, nevertheless, the general rule and restraint the
exception; and the exercise of legislative authority to abridge it can be justified only
by the existence of exceptional circumstances.” Adkins v. Children’s Hospital, 261
U.S. 525, 546 (1923).
800 ART. III—JUDICIAL DEPARTMENT
777 Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter’s concurrence,
id. at 89–97, is a lengthy critique and review of the “preferred position” cases up to
that time. The Court has not used the expression in recent years but the worth it
attributes to the values of free expression probably approaches the same result. To-
day, the Court’s insistence on a “compelling state interest” to justify a governmental
decision to classify persons by “suspect” categories, such as race, Loving v. Virginia,
388 U.S. 1 (1967), or to restrict the exercise of a “fundamental” interest, such as the
right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right
to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports presumption of
unconstitutionality.
778 “We fully understand . . . the powerful argument that can be made against
the wisdom of this legislation, but on that point we have no concern.” Noble State
Bank v. Haskell, 219 U.S. 104 (1911) (Justice Holmes for the Court). See also Trop
v. Dulles, 356 U.S. 86, 120 (1958) (Justice Frankfurter dissenting).
A supposedly hallowed tenet is that the Court will not look to the motives of
legislators in determining the validity of a statute. Fletcher v. Peck, 10 U.S. (6 Cr.)
87 (1810); United States v. O’Brien, 391 U.S. 367 (1968); Palmer v. Thompson, 403
U.S. 217 (1971). Yet an intent to discriminate is a requisite to finding at least some
equal protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village of Ar-
lington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), and a secu-
lar or religious purpose is one of the parts of the tripartite test under the Establish-
ment Clause. Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S.
646, 653 (1980), and id. at 665 (dissent). Other constitutional decisions have also
turned upon the Court’s assessment of purpose or motive. E.g., Gomillion v. Lightfoot,
364 U.S. 339 (1960); Child Labor Tax Case, 259 U.S. 20 (1922).
779 Cf. Griswold v. Connecticut, 381 U.S. 479, 522 (1965) (Justice Black dissent-
ing). But note above the reference to the ethical mode of constitutional argument.
780 E.g., Lochner v. New York, 198 U.S. 45 (1905); United States v. Butler, 297
U.S. 1 (1936).
ART. III—JUDICIAL DEPARTMENT 801
781 Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827). See also Fletcher v.
Peck, 10 U.S. (6 Cr.) 87, 128 (1810); Legal Tender Cases (Knox v. Lee), 79 U.S. (12
Wall.) 457, 531 (1871).
782 Munn v. Illinois, 94 U.S. 113, 132 (1877); Lindsley v. Natural Carbonic Gas
Co., 220 U.S. 61, 78–79 (1911); Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580,
584 (1935).
783 E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v.
Illinois State Bar Ass’n, 389 U.S. 217 (1967). But see McGowan v. Maryland, 366
U.S. 420, 426 (1961). The development of the “compelling state interest” test in cer-
tain areas of equal protection litigation also bespeaks less deference to the legisla-
tive judgment.
784 Bond v. United States, 572 U.S. ___, No. 12–158, slip op. (2014); United States
v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); Rust v. Sullivan, 500 U.S. 173,
190–91 (1991); Public Citizen v. Department of Justice, 491 U.S. 440, 465–67 (1989)
(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo Corp. v.
Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
785 E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction
tice Blackmun dissenting), and 223–225 (Justice O’Connor dissenting). See also Peretz
v. United States, 501 U.S. 923, 929–930 (1991).
788 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers’
Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S.
678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971). In
802 ART. III—JUDICIAL DEPARTMENT
vide for separability, but it remains for the courts in the last resort
to determine whether the provisions are separable.789
Stare Decisis in Constitutional Law.—Adherence to prec-
edent ordinarily limits and shapes the approach of courts to deci-
sion of a presented question. “Stare decisis is usually the wise policy,
because in most matters it is more important that the applicable
rule of law be settled than that it be settled right . . . . This is com-
monly true even where the error is a matter of serious concern, pro-
vided correction can be had by legislation. But in cases involving
the Federal Constitution, where correction through legislative ac-
tion is practically impossible, this Court has often overruled its ear-
lier decisions. The Court bows to the lessons of experience and the
force of better reasoning, recognizing that the process of trial and
error, so fruitful in the physical sciences, is appropriate also in the
judicial function.” 790 Stare decisis is a principle of policy, not a me-
chanical formula of adherence to the latest decision “however re-
cent and questionable, when such adherence involves collision with
a prior doctrine more embracing in its scope, intrinsically sounder,
Kimbrough v. United States, 128 S. Ct. 558, 577 (2007), Justice Thomas, dissenting,
referred to “our longstanding presumption of the severability of unconstitutional ap-
plications of statutory provisions.”
789 See Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, No. 15–274, slip op.
at 37 (2016) (noting that while as a “general matter” courts will honor a legisla-
ture’s preference with regard to severability, severability clauses do not impose a
requirement on courts that are confronted with facially unconstitutional statutory
provisions, as such an approach would “inflict enormous costs on both courts and
litigants” in parsing out what remains of the statute); see also Ayotte v. Planned
Parenthood of N. New Eng., 546 U.S. 320, 329 (2006) (discussing how a severability
clause is not grounds for a court to “devise a judicial remedy that . . . entail[s] quint-
essentially legislative work.”); Reno v. ACLU, 521 U.S. 844, 884–85 n.49 (1997) (not-
ing the limits on how broadly a court can read a severability clause); see generally
Dorchy v. Kansas, 264 U.S. 286, 290 (1924) (concluding that a severability clause is
an “aid merely; not an inexorable command.”)
790 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–408 (1932) (Justice
Brandeis dissenting). For recent arguments with respect to overruling or not over-
ruling previous decisions, see the self-consciously elaborate opinion for a plurality
in Planned Parenthood v. Casey, 505 U.S. 833, 854–69 (1992) (Justices O’Connor,
Kennedy, and Souter) (acknowledging that as an original matter they would not have
decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they might
consider it wrongly decided, but nonetheless applying the principles of stare decisis—
they stressed the workability of the case’s holding, the fact that no other line of
precedent had undermined Roe, the vitality of that case’s factual underpinnings, the
reliance on the precedent in society, and the effect upon the Court’s legitimacy of
maintaining or overruling the case). See id. at 953–66 (Chief Justice Rehnquist con-
curring in part and dissenting in part), 993–1001 (Justice Scalia concurring in part
and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827–30 (1991)
(suggesting, inter alia, that reliance is relevant in contract and property cases), and
id. at 835, 842–44 (Justice Souter concurring), 844, 848–56 (Justice Marshall dissent-
ing).
ART. III—JUDICIAL DEPARTMENT 803
791 Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for Court).
See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger dissent-
ing). But see id. at 19 (Justice Harlan concurring in part and dissenting in part);
Williams v. Florida, 399 U.S. 78, 117–119 (1970) (Justice Harlan concurring in part
and dissenting in part). Recent discussions of and both applications of and refusals
to apply stare decisis may be found in Hohn v. United States, 524 U.S. 236, 251–52
(1998), and id. at 260–63 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 U.S.
3, 20–2 (1997); Agostini v. Felton, 521 U.S. 203, 235–36 (1997), and id. at 523–54
(Justice Souter dissenting); United States v. IBM Corp., 517 U.S. 843, 854–56 (1996)
(noting principles of following precedent and declining to consider overturning an
old precedent when parties have not advanced arguments on the point), with which
compare id. at 863 (Justice Kennedy dissenting) (arguing that the United States had
presented the point and that the old case ought to be overturned); Adarand Construc-
tors, Inc. v. Pena, 515 U.S. 200 (1995) (plurality opinion) (discussing stare decisis,
citing past instances of overrulings, and overruling 1990 decision), with which com-
pare the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 517 U.S.
44, 61–73 (1996) (discussing policy of stare decisis, why it should not be followed
with respect to a 1989 decision, and overruling that precedent), with which compare
the dissents, id. at 76, 100. Justices Scalia and Thomas have argued for various
departures from precedent. E.g., Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514
U.S. 175, 200–01 (1995) (Justice Scalia concurring) (negative commerce jurispru-
dence); Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 631 (1996) (Jus-
tice Thomas concurring in part and dissenting in part) (rejecting framework of Buckley
v. Valeo and calling for overruling of part of case). Compare id. at 626 (Court notes
those issues not raised or argued).
792 157 U.S. 429, 574–579 (1895).
793 See Appendix. The list encompasses both constitutional and statutory inter-
pretation decisions. The Court adheres, at least formally, to the principle that stare
decisis is a stricter rule for statutory interpretation, Patterson v. McLean Credit Union,
491 U.S. 164, 171–175 (1989), at least in part since Congress may much more eas-
ily revise those decisions, but compare id. at 175 n.1, with id. at 190–205 (Justice
Brennan concurring in the judgment in part and dissenting in part). See also Flood
v. Kuhn, 407 U.S. 258 (1972).
794 E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) (Justice Frank-
furter dissenting); Baker v. Carr, 369 U.S. 186, 339–340 (1962) (Justice Harlan dis-
senting); Gray v. Sanders, 372 U.S. 368, 383 (1963) (Justice Harlan dissenting). But
see Green v. United States, 356 U.S. 165, 195 (1958) (Justice Black dissenting). Com-
pare Justice Harlan’s views in Mapp v. Ohio, 367 U.S. 643 (1961) (dissenting), with
Glidden Co. v. Zdanok, 370 U.S. 530 (1962) (opinion of the Court).
795 Note that, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), while the
Court purported to uphold and retain the “central meaning” of Roe v. Wade, it over-
ruled several aspects of that case’s requirements. See also, e.g., the Court’s treat-
ment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn v. Blumstein, 405 U.S. 330,
337, n.7 (1972). See also id. at 361 (Justice Blackmun concurring.)
804 ART. III—JUDICIAL DEPARTMENT
senting).
800 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).
801 M. Farrand, supra at 22, 211–212, 220, 244; 2 id. at 146–47, 186–87.
802 Id. at 423–24, 430, 431.
ART. III—JUDICIAL DEPARTMENT 805
803 1 Stat. 73. The district courts were given cognizance of “suits for penalties
and forfeitures incurred, under the laws of the United States” and “of all causes
where an alien sues for a tort only in violation of the law of nations or a treaty of
the United States . . . .” Id. at 77. Plenary federal question jurisdiction was con-
ferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed by
the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for appeals
to the Supreme Court from state court constitutional decisions, see supra.
804 Act of April 10, 1790, § 5, 1 Stat. 111, as amended, Act of February 21, 1793,
§ 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also en-
acted.
805 Act of April 9, 1866, § 3, 14 Stat, 27; Act of May 31, 1870, § 8, 16 Stat. 142;
Act of February 28, 1871,§ 15, 16 Stat. 438; Act of April 20, 1871, §§ 2, 6, 17 Stat.
14, 15.
806 Act of March 3, 1875, § 1, 18 Stat. 470, now 28 U.S.C. § 1331(a). The classic
treatment of the subject and its history is F. Frankfurter & J. Landis, supra.
807 For a brief summary, see Hart & Wechsler (6th ed.), supra at 743–748.
808 28 U.S.C. § 1331(a). The original Act was worded slightly differently.
809 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See also
No. 14–1132, slip op. at 9–10 (2016) (“This Court has long read the words ‘arising
under’ in Article III to extend quite broadly, to all cases in which a federal question
is an ingredient of the action . . . In the statutory context, however, we . . . give
those same words a narrower scope in the light of § 1331’s history, the demands of
reason and coherence, and the dictates of sound judicial policy.”) (internal brackets,
citations, and quotations omitted).
806 ART. III—JUDICIAL DEPARTMENT
812 See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804
(1986); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983).
813 Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 576 (1904);
Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Binderup v. Pathe
Exchange, 263 U.S. 291, 305–308 (1923). If the complaint states a case arising un-
der the Constitution or federal law, then federal jurisdiction exists even though on
the merits the party may have no federal right. In such a case, the proper course
for the court is to dismiss for failure to state a claim on which relief can be granted
rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). Of course,
dismissal for lack of jurisdiction is proper if the federal claim is frivolous or obvi-
ously insubstantial. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933).
814 Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc.,
415 U.S. 125 (1974).
815 Such was the rule derived from Osborn v. Bank of the United States, 22 U.S.
(9 Wheat.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation
Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S.
804 (1986).
816 American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916).
Compare Albright v. Teas, 106 U.S. 613 (1883), and People of Puerto Rico v. Russell
& Co., 288 U.S. 476 (1933), with Feibelman v. Packard, 109 U.S. 421 (1883), and
The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913).
817 Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936).
ART. III—JUDICIAL DEPARTMENT 807
818 299 U.S. at 112–13. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also J. I. Case Co.
v. Borak, 377 U.S. 426 (1964); Smith v. Kansas City Title & Trust Co., 255 U.S. 180
(1921).
819 For an express acknowledgment, see Verlinden B. V. v. Central Bank of Nige-
ria, 461 U.S. 480, 495 (1983). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505
(1900); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n.51 (1959).
820 E.g., Pacific R.R. Removal Cases, 115 U.S. 1 (1885); see also id. at 24 (Chief
statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405–406 (1969),
and in Hart & Wechsler (6th ed.), supra at 396–398. See 28 U.S.C. §§ 1442, 1442a.
823 Act of March 3, 1875, § 2, 18 Stat. 471. The present pattern of removal juris-
diction was established by the Act of March 3, 1887, 24 Stat. 552, as amended, 25
Stat. 433.
824 28 U.S.C. § 1441.
825 28 U.S.C. § 1443.
808 ART. III—JUDICIAL DEPARTMENT
826 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347–351 (1816). Story
was not here concerned with the constitutionality of removal but with the constitu-
tionality of Supreme Court review of state judgments.
827 Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1872).
Removal here was based on diversity of citizenship. See also The Moses Taylor, 71
U.S. (4 Wall.) 411, 429–430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868).
828 100 U.S. 257 (1880).
829 100 U.S. at 263–64.
830 100 U.S. at 264–65.
ART. III—JUDICIAL DEPARTMENT 809
United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). The language, which Marshall
interpreted as conveying jurisdiction, was long construed simply to give a party the
right to sue and be sued without itself creating jurisdiction, Bankers Trust Co. v.
Texas & P. Ry., 241 U.S. 295 (1916), but, in American National Red Cross v. S. G.,
505 U.S. 247 (1992), a 5-to-4 decision, the Court held that, when a federal statutory
charter expressly mentions the federal courts in its “sue and be sued” provision, the
charter creates original federal-question jurisdiction as well, although a general au-
thorization to sue and be sued in courts of general jurisdiction, including federal
courts, without expressly mentioning them, does not confer jurisdiction.
835 115 U.S. 1 (1885).
836 § 4, 22 Stat. 162.
837 § 5, 38 Stat. 803.
838 See 28 U.S.C. § 1349.
839 § 301, 61 Stat. 156 (1947), 29 U.S.C. § 185.
810 ART. III—JUDICIAL DEPARTMENT
840 Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the
to be totally disregarded. “State law, if compatible with the purpose of § 301, may
be resorted to in order to find the rule that will best effectuate the federal policy
. . . . Any state law applied, however, will be absorbed as federal law and will not
be an independent source of private rights.” Textile Workers Union v. Lincoln Mills,
353 U.S. 448, 457 (1957).
843 For example, when federal statutes create new duties without explicitly cre-
ating private federal remedies for their violation, the willingness of the federal courts
to infer private causes will implicate the federal courts’ workload. During the mid-
20th century, the Court would imply causes of action that were not explicit in the
text of a statute as a routine matter. See, e.g., Allen v. State Bd. of Elections, 393
U.S. 544, 557 (1969) (“We have previously held that a federal statute passed to pro-
tect a class of citizens, although not specifically authorizing members of the pro-
tected class to institute suit, nevertheless implied a private right of action.”); Sulli-
van v. Little Hunting Park, 396 U.S. 229, 239 (1969) (“The existence of a statutory
right implies the existence of all necessary and appropriate remedies.”). In the late
1970s, the Court began to move away from such an approach, see Cannon v. Univer-
sity of Chicago, 441 U.S. 677, 717 (1979) (“When Congress intends private litigants
to have a cause of action to support their statutory rights, the far better course is
for it to specify as much when it creates those rights.”), and more recently has in-
stead held that for a court to recognize a statutory cause of action, the statute itself
must “displa[y] an intent to create” both a private right and a private remedy. See
Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
In the context of constitutional rights, the Court in 1971 recognized (in the ab-
sence of any federal statute) an implied damages remedy to compensate persons in-
jured by federal officers who violated the Fourth Amendment’s prohibition against
unreasonable searches and seizures. See Bivens v. Six Unknown Named Agents, 403
U.S. 388, 397 (1971). Since Bivens, the Court has recognized a similar remedy for a
violation of the equal protection component of the Fifth Amendment’s Due Process
Clause, see Davis v. Passman, 442 U.S. 228, 248–49 (1979), and an Eighth Amend-
ment Cruel and Unusual Punishment Clause violation, see Carlson v. Green, 446
U.S. 14, 19 (1980). However, these three cases are anomolous and represent the “only
instances in which the Court has approved of an implied damages remedy under
the Constitution itself.” See Ziglar v. Abbasi, 582 U.S. ___, No. 15–1358, slip op. at 7
(2017). Instead, in a series of cases, the Court has rejected extending the Bivens
remedy to other contexts. See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (rejecting
ART. III—JUDICIAL DEPARTMENT 811
applies is 42 U.S.C. § 1983, making liable and subject to other redress any person
who, acting under color of state law, deprives any person of any rights, privileges,
or immunities secured by the Constitution and laws of the United States. For dis-
cussion of the history and development of these two statutes, see Monroe v. Pape,
365 U.S. 167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell
v. New York City Dep’t of Social Services, 436 U.S. 658 (1978); Chapman v. Houston
Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980).
Although the two statutes originally had the same wording in respect to “the Con-
stitution and laws of the United States,” when the substantive and jurisdictional
aspects were separated and codified, § 1983 retained the all-inclusive “laws” provi-
812 ART. III—JUDICIAL DEPARTMENT
tional amount provision 845 (while the general federal question statute
at one time did) 846 and because the Court has held inapplicable the
judicially created requirement that a litigant exhaust his state rem-
edies before bringing federal action,847 the statute has been heavily
used, resulting in a formidable caseload, by plaintiffs attacking ra-
cial discrimination, malapportionment and suffrage restrictions, il-
legal and unconstitutional police practices, state restrictions on ac-
cess to welfare and other public assistance, and a variety of other
state and local governmental practices.848 Congress has encour-
aged use of the two statutes by providing for attorneys’ fees under
§ 1983,849 and by enacting related and specialized complementary
statutes.850 The Court in recent years has generally interpreted § 1983
and its jurisdictional statute broadly, but it has also sought to re-
strict the kinds of claims that may be brought in federal courts.851
Note that § 1983 and § 1343(3) need not always go together, as § 1983
actions may be brought in state courts.852
sion, while § 1343(3) read “any Act of Congress providing for equal rights.” The Court
has interpreted the language of the two statutes literally, so that while claims un-
der laws of the United States need not relate to equal rights but may encompass
welfare and regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewer-
age Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do
not spring from an act providing for equal rights may not be brought under § 1343(3).
Chapman v. Houston Welfare Rights Org., supra. This was important when there
was a jurisdictional amount provision in the federal question statute but is of little
significance today.
845 See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it was argued that
only cases involving personal rights, that could not be valued in dollars, could be
brought under § 1343(3), and that cases involving property rights, which could be so
valued, had to be brought under the federal question statute. This attempted distinc-
tion was rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546–48 (1972).
On the valuation of constitutional rights, see Carey v. Piphus, 435 U.S. 247 (1978).
See also Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986) (compen-
satory damages must be based on injury to the plaintiff, not on some abstract valu-
ation of constitutional rights).
846 28 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdic-
tional amount requirement. Pub. L. 94–574, 90 Stat. 2721; Pub. L. 96–486, 94 Stat.
2369.
847 Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). This had been the
rule since at least McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963). See also
Felder v. Casey, 487 U.S. 131 (1988) (state notice of claim statute, requiring notice
and waiting period before bringing suit in state court under § 1983, is preempted).
848 Thus, such notable cases as Brown v. Board of Education, 347 U.S. 483 (1954),
and Baker v. Carr, 369 U.S. 186 (1962), arose under the statutes.
849 Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94–559, 90 Stat.
2641, amending 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678 (1978); Maine
v. Thiboutot, 448 U.S. 1 (1980).
850 E.g., Civil Rights of Institutionalized Persons Act, Pub. L. 96–247, 94 Stat.
651 (1977).
852 Maine v. Thiboutot, 448 U.S. 1 (1980).
ART. III—JUDICIAL DEPARTMENT 813
Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289
U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
855 Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test of
Hurn v. Oursler, 289 U.S. 238, 245–46 (1933). See also Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both cases
using the new vernacular of “ancillary jurisdiction”).
856 Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louis-
ville & Interurban R.R., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546–
550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to
decide on an available state law ground instead of reaching the federal constitu-
tional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per
curiam). However, narrowing previous law, the Court held in Pennhurst State School
& Hosp. v. Halderman, 465 U.S. 89 (1984), held that, when a pendent claim of state
law involves a claim that is against a state for purposes of the Eleventh Amend-
ment, federal courts may not adjudicate it.
857 United Mine Workers v. Gibbs, 383 U.S. 715, 726–27 (1966).
858 The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in
admiralty when joined with a related claim on the law side of the
federal court, and in this way to give an injured seaman a right to
jury trial on all of his claims when ordinarily the claim cognizable
only in admiralty would be tried without a jury.860 And a colorable
constitutional claim has been held to support jurisdiction over a fed-
eral statutory claim arguably not within federal jurisdiction.861
Still another variant is the doctrine of “pendent parties,” under
which a federal court could take jurisdiction of a state claim against
one party if it were related closely enough to a federal claim against
another party, even though there was no independent jurisdic-
tional base for the state claim.862 Although the Supreme Court at
first tentatively found some merit in the idea,863 in Finley v. United
States,864 by a 5-to-4 vote the Court firmly disapproved of the pen-
dent party concept and cast considerable doubt on the other prongs
of pendent jurisdiction as well. Pendent party jurisdiction, Justice
Scalia wrote for the Court, was within the constitutional grant of
judicial power, but to be operable it must be affirmatively granted
by congressional enactment.865 Within the year, Congress supplied
the affirmative grant, adopting not only pendent party jurisdiction
but also codifying pendent jurisdiction and ancillary jurisdiction un-
der the name of “supplemental jurisdiction.” 866
Thus, these interrelated doctrinal standards now seem well-
grounded.
Protective Jurisdiction.—A conceptually difficult doctrine, which
approaches the verge of a serious constitutional gap, is the concept
of protective jurisdiction. Under this doctrine, it is argued that in
instances in which Congress has legislative jurisdiction, it can con-
fer federal jurisdiction, with the jurisdictional statute itself being
the “law of the United States” within the meaning of Article III,
even though Congress has enacted no substantive rule of decision
860 Romero v. International Terminal Operating Co., 358 U.S. 354, 380–81 (1959);
Inc., 441 F.2d 627 (2d Cir. 1971); Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d
800 (2d Cir. 1971).
863 Aldinger v. Howard, 427 U.S. 1 (1976).
864 490 U.S. 545 (1989).
865 490 U.S. at 553, 556.
866 Act of Dec. 1, 1990, Pub. L. 101–650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367.
In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998), the
Court, despite the absence of language making § 1367 applicable, held that the stat-
ute gave district courts jurisdiction over state-law claims in cases originating in state
court and then removed to federal court.
ART. III—JUDICIAL DEPARTMENT 815
867 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949); Tex-
tile Workers v. Lincoln Mills, 353 U.S. 448 (1957); see also the bankruptcy cases,
Schumacher v. Beeler, 293 U.S. 367 (1934), and Williams v. Austrian, 331 U.S. 642
(1947).
868 461 U.S. 480 (1983).
869 E.g., Mesa v. California, 489 U.S. 121, 136–37 (1989) (would present grave
constitutional problems).
870 On § 25, see “Judicial Review and National Supremacy,” supra. The present
871 28 U.S.C. § 1257(a). See R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE ch.
60, 62 (1960); Thompson v. City of Louisville, 362 U.S. 199, 202 (1960); Metlakatla
Indian Community v. Egan, 363 U.S. 555 (1960); Powell v. Texas, 392 U.S. 514, 516,
517 (1968); Koon v. Aiken, 480 U.S. 943 (1987). In Cohens v. Virginia, 19 U.S. (6
Wheat.) 264 (1821), the judgment reviewed was that of the Quarterly Session Court
for the Borough of Norfolk, Virginia.
873 Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 551 (1945). See also
San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981); Flynt v.
Ohio, 451 U.S. 619 (1981); Minnick v. California Dep’t of Corrections, 452 U.S. 105
(1981); Florida v. Thomas, 532 U.S. 774 (2001). The Court has developed a series of
exceptions permitting review when the federal issue in the case has been finally
determined but there are still proceedings to come in the lower state courts. Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 476–487 (1975). See also Fort Wayne Books,
Inc. v. Indiana, 489 U.S. 46 (1989); Duquesne Light Co. v. Barasch, 488 U.S. 299,
304 (1989); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n.42 (1982).
874 Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67–69 (1948); Radio Sta-
ers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 77 (1988); Webb v. Webb, 451
U.S. 493, 501 (1981). The same rule applies on habeas corpus petitions. E.g., Picard
v. Connor, 404 U.S. 270 (1972).
876 Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1874); Black v. Cutter
Laboratories, 351 U.S. 292 (1956); Wilson v. Loew’s, Inc., 355 U.S. 597 (1958).
ART. III—JUDICIAL DEPARTMENT 817
limitations of our own jurisdiction. Our only power over state judg-
ments is to correct them to the extent that they incorrectly ad-
judge federal rights. And our power is to correct wrong judgments,
not to revise opinions. We are not permitted to render an advisory
opinion, and if the same judgment would be rendered by the state
court after we corrected its views of Federal laws, our review could
amount to nothing more than an advisory opinion.” 877 The Court is
faced with two interrelated decisions: whether the state court judg-
ment is based upon a nonfederal ground and whether the nonfederal
ground is adequate to support the state court judgment. It is, of
course, the responsibility of the Court to determine for itself the
answer to both questions.878
The first question, whether there is a nonfederal ground, may
be raised by several factual situations. A state court may have based
its decision on two grounds, one federal, one nonfederal.879 It may
have based its decision solely on a nonfederal ground but the fed-
eral ground may have been clearly raised.880 Both federal and
nonfederal grounds may have been raised but the state court judg-
ment is ambiguous or is without written opinion stating the ground
relied on.881 Or the state court may have decided the federal ques-
tion although it could have based its ruling on an adequate, inde-
pendent non-federal ground.882 In any event, it is essential for pur-
poses of review by the Supreme Court that it appear from the record
that a federal question was presented, that the disposition of that
question was necessary to the determination of the case, that the
federal question was actually decided or that the judgment could
not have been rendered without deciding it.883
877 Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945). Whereas declining to review
Kaiser, 323 U.S. 471, 477 (1945); Durley v. Mayo, 351 U.S. 277, 281 (1956); Klinger
v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1872); cf. Department of Mental Hygiene v.
Kirchner, 380 U.S. 194 (1965).
882 Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 375–376 (1968).
883 Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S. 206 (1938); Raley v. Ohio,
360 U.S. 423, 434–437 (1959). When there is uncertainty about what the state court
818 ART. III—JUDICIAL DEPARTMENT
rule cannot be invented for the occasion in order to defeat the federal claim. E.g.,
Ford v. Georgia, 498 U.S. 411, 420–425 (1991).
885 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164
(1917); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 290 (1958).
886 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164
(1917); Ward v. Love County, 253 U.S. 17, 22 (1920); Staub v. City of Baxley, 355
U.S. 313 (1958).
887 Beard v. Kindler, 558 U.S. ___, No. 08–992, slip op. (2009) (firmly estab-
lished procedural rule adequate state ground even though rule is discretionary). Ac-
cord, Walker v. Martin, 562 ___, No. 09–996, slip op. (2010). See also Nickel v. Cole,
256 U.S. 222, 225 (1921); Wolfe v. North Carolina, 364 U.S. 177, 195 (1960). But see
Davis v. Wechsler, 263 U.S. 22 (1923); Brown v. Western Ry. of Alabama, 338 U.S.
294 (1949).
888 Davis v. Wechsler, 263 U.S. 22, 24–25 (1923); NAACP v. Alabama ex rel. Pat-
terson, 357 U.S. 449, 455–458 (1958); Barr v. City of Columbia, 378 U.S. 146, 149
(1964). This rationale probably explains Henry v. Mississippi, 379 U.S. 443 (1965).
See also in the criminal area, Edelman v. California, 344 U.S. 357, 362 (1953) (dis-
senting opinion); Brown v. Allen, 344 U.S. 443, 554 (1953) (dissenting opinion); Wil-
liams v. Georgia, 349 U.S. 375, 383 (1955); Monger v. Florida, 405 U.S. 958 (1972)
(dissenting opinion).
ART. III—JUDICIAL DEPARTMENT 819
889 United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C. Pa. 1793).
890 Bors v. Preston, 111 U.S. 252 (1884).
891 Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).
892 280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. § 1351.
893 24 U.S. (11 Wheat.) 467 (1826).
894 In re Baiz, 135 U.S. 403, 432 (1890).
895 Ex parte Gruber, 269 U.S. 302 (1925).
820 ART. III—JUDICIAL DEPARTMENT
original but not exclusive. Pub. L. 95–393, § 8(b), 92 Stat. 810, 28 U.S.C. § 1251(b)(1).
897 G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY ch. 1 (1957).
898 The records of the Convention do not shed light on the Framers’ views about
admiralty. The present clause was contained in the draft of the Committee on De-
tail. 2 M. Farrand, supra at 186–187. None of the plans presented to the Conven-
tion, with the exception of an apparently authentic Charles Pinckney plan, 3 id. at
601–04, 608, had mentioned an admiralty jurisdiction in national courts. See Putnam,
How the Federal Courts Were Given Admiralty Jurisdiction, 10 CORNELL L.Q. 460 (1925).
899 G. Gilmore & C. Black, supra at ch. 1. In DeLovio v. Boit, 7 Fed. Cas. 418
(No. 3776) (C.C.D. Mass 1815), Justice Story delivered a powerful historical and jur-
isprudential argument against the then-restrictive English system. See also Waring
v. Clarke, 46 U.S. (5 How.) 441, 451–59 (1847); New Jersey Steam Navigation Co. v.
Merchants’ Bank of Boston, 47 U.S. (6 How.) 34, 385–390 (1848).
ART. III—JUDICIAL DEPARTMENT 821
900 § 9, 1 Stat. 77 (1789), now 28 U.S.C. § 1333 in only slightly changed form.
For the classic exposition, see Black, Admiralty Jurisdiction: Critique and Sugges-
tions, 50 COLUM. L. REV. 259 (1950).
901 E.g., DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass. 1815) (Jus-
tice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D. Pa. 1829) (Justice
Washington).
902 The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2
Cr.) 406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Samuel, 14 U.S.
(1 Wheat.) 9 (1816); The Octavig, 14 U.S. (1 Wheat.) 20 (1816).
903 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6
How.) 334, 386 (1848); see also Waring v. Clarke, 46 U.S. (5 How.) 441 (1847).
904 Swift & Co. Packers v. Compania Columbiana Del Caribe, 339 U.S. 684, 690,
691 (1950); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282,
285 (1952); Romero v. International Terminal Operating Co., 358 U.S. 354, 360–61
822 ART. III—JUDICIAL DEPARTMENT
Transp. Co., 65 U.S. (24 How.) 1, 39 (1861); Providence & N.Y. S.S. Co. v. Hill Mfg.
Co., 109 U.S. 578 (1883); The Robert W. Parsons, 191 U.S. 17 (1903).
910 Butler v. Boston & S. S.S. Co., 130 U.S. 527 (1889); In re Garnett, 141 U.S.
1 (1891). The second prong of the Necessary and Proper Clause is the authorization
ART. III—JUDICIAL DEPARTMENT 823
244 U.S. 205, 215 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920);
Crowell v. Benson, 285 U.S. 22, 55 (1932). The Jones Act, under which injured sea-
men may maintain an action at law for damages, has been reviewed as an exercise
of legislative power deducible from the Admiralty Clause. Panama R.R. v. Johnson,
264 U.S. 375, 386, 388, 391 (1924); Romero v. International Terminal Operating Co.,
358 U.S. 354, 360–361 (1959). On the limits to the congressional power, see Panama
R.R. v. Johnson, 264 U.S. at 386–87; Detroit Trust Co. v. The Thomas Barlum, 293
U.S. 21, 43–44 (1934).
913 Thus, Justice McReynolds’ assertion of the paramountcy of congressional power
in Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917), was not disputed by the
four dissenters in that case and is confirmed in subsequent cases critical of Jensen
which in effect invite congressional modification of maritime law. E.g., Davis v. De-
partment of Labor and Industries, 317 U.S. 249 (1942). The nature of maritime law
has excited some relevant controversy. In American Ins. Co. v. Canter, 26 U.S. (1
Pet.) 516, 545 (1828), Chief Justice Marshall declared that admiralty cases do not
“arise under the Constitution or laws of the United States” but “are as old as navi-
gation itself; and the law, admiralty and maritime as it has existed for ages, is ap-
plied by our Courts to the cases as they arise.” In Romero v. International Terminal
824 ART. III—JUDICIAL DEPARTMENT
Operating Co., 358 U.S. 354 (1959), the plaintiff sought a jury trial in federal court
on a seaman’s suit for personal injury on an admiralty claim, contending that cases
arising under the general maritime law are “civil actions” that arise “under the Con-
stitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Five Justices in
an opinion by Justice Frankfurter disagreed. Maritime cases do not arise under the
Constitution or laws of the United States for federal question purposes and must,
absent diversity, be instituted in admiralty where there is no jury trial. The dissent-
ing four, Justice Brennan for himself and Chief Justice Warren and Justices Black
and Douglas, contended that maritime law, although originally derived from interna-
tional sources, is operative within the United States only by virtue of having been
accepted and adopted pursuant to Article III, and accordingly judicially originated
rules formulated under authority derived from that Article are “laws” of the United
States to the same extent as those enacted by Congress.
914 DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice
the government making a claim for wages cannot proceed in admiralty but must
bring his action under the Tucker Act in the Court of Claims or in the district court
if his claim does not exceed $10,000. Amell v. United States, 384 U.S. 158 (1966). In
Kossick v. United Fruit Co., 365 U.S. 731 (1961), an oral agreement between a sea-
man and a shipowner whereby the latter in consideration of the seaman’s forbear-
ance to press his maritime right to maintenance and cure promised to assume the
consequences of improper treatment of the seaman at a Public Health Service Hos-
pital was held to be a maritime contract. See also Archawski v. Hanioti, 350 U.S.
532 (1956).
916 Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 31 (1871); Wilburn Boat Co.
v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955). Whether admiralty jurisdiction ex-
ists if the vessel is not engaged in navigation or commerce when the insurance claim
arises is open to question. Jeffcott v. Aetna Ins. Co., 129 F.2d 582 (2d Cir. 1942),
cert. denied, 317 U.S. 663 (1942). Contracts and agreements to procure marine insur-
ance are outside the admiralty jurisdiction. Compagnie Francaise De Navigation A
Vapeur v. Bonnasse, 19 F.2d 777 (2d Cir. 1927).
917 Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900). For recent Court dif-
ficulties with exculpatory features of such contracts, see Bisso v. Inland Waterways
Corp., 349 U.S. 85 (1955); Boston Metals Co. v. The Winding Gulf, 349 U.S. 122
(1955); United States v. Nielson, 349 U.S. 129 (1955); Southwestern Sugar & Molas-
ses Co. v. River Terminals Corp., 360 U.S. 411 (1959); Dixilyn Drilling Corp. v. Cres-
cent Towage & Salvage Co., 372 U.S. 697 (1963).
918 Atlee v. Packet Co., 88 U.S. (21 Wall.) 389 (1875); Ex parte McNiel, 80 U.S.
(13 Wall.) 236 (1872). See also Sun Oil v. Dalzell Towing Co., 287 U.S. 291 (1932).
919 The Grapeshot, 76 U.S. (9 Wall.) 129 (1870); O’Brien v. Miller, 168 U.S. 287
(1897); The Aurora, 14 U.S. (1 Wheat.) 94 (1816); Delaware Mut. Safety Ins. Co. v.
ART. III—JUDICIAL DEPARTMENT 825
17 U.S. (4 Wheat.) 438 (1819). There is admiralty jurisdiction even though the re-
pairs are not to be made in navigable waters but, perhaps, in dry dock. North Pa-
cific SS. Co. v. Hall Brothers Marine R. & S. Co., 249 U.S. 119 (1919). But contracts
and agreements pertaining to the original construction of vessels are not within ad-
miralty jurisdiction. Peoples Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393 (1858);
North Pacific S.S. Co., 249 U.S. at 127.
921 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6
The Tilton, 23 Fed. Cas. 1277 (No. 14054) (C.C.D. Mass. 1830) (Justice Story).
925 Ex parte Easton, 95 U.S. 68, 72 (1877). See, for a clearing away of some con-
ceptual obstructions to the principle, Exxon Corp. v. Central Gulf Lines, Inc., 500
U.S. 603 (1991).
926 E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815)
(Justice Story); The Steamboat Orleans v. Phoebus, 36 U.S. (11 Pet.) 175, 183 (1837);
The People’s Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393, 401 (1858); New Eng-
land Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 26 (1870); Detroit Trust Co. v.
The Thomas Barlum, 293 U.S. 21, 48 (1934).
927 Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961).
928 The City of Panama, 101 U.S. 453 (1880). Reversing a long-standing rule,
the Court allowed recovery under general maritime law for the wrongful death of a
seaman. Moragne v. States Marine Lines, 398 U.S. 375 (1970); Miles v. Apex Marine
Corp., 498 U.S. 19 (1991).
929 The Raithmoor, 241 U.S. 166 (1916); Erie R.R. v. Erie Transportation Co.,
(holding, however, that there is no products liability action in admiralty for purely
826 ART. III—JUDICIAL DEPARTMENT
economic injury to the product itself, unaccompanied by personal injury, and that
such actions should be based on the contract law of warranty).
932 DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice
Story); Philadelphia, W. & B. R.R. v. Philadelphia & Havre De Grace Steam Tow-
boat Co., 64 U.S. (23 How.) 209, 215 (1859); The Plymouth, 70 U.S. (3 Wall.) 20,
33–34 (1865); Grant-Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476 (1922).
933 Executive Jet Aviation v. City of Cleveland, 409 U.S. 249 (1972) (plane crash
in which plane landed wholly fortuitously in navigable waters off the airport run-
way not in admiralty jurisdiction). However, so long as there is maritime activity
and a general maritime commercial nexus, admiralty jurisdiction exists. Foremost
Ins. Co. v. Richardson, 457 U.S. 668 (1982) (collision of two pleasure boats on navi-
gable waters is within admiralty jurisdiction); Sisson v. Ruby, 497 U.S. 358 (1990)
(fire on pleasure boat docked at marina on navigable water). See also Grubart v.
Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995), a tort claim arising out of
damages allegedly caused by negligently driving piles from a barge into the river-
bed, which weakened a freight tunnel that allowed flooding of the tunnel and the
basements of numerous buildings along the Chicago River. The Court found that
admiralty jurisdiction could be invoked. The location test was satisfied, because the
barge, even though fastened to the river bottom, was a “vessel” for admiralty tort
purposes; the two-part connection test was also satisfied, inasmuch as the incident
had a potential to disrupt maritime commerce and the conduct giving rise to the
incident had a substantial relationship to traditional maritime activity.
934 Thus, the courts have enforced seamen’s claims for maintenance and cure
for injuries incurred on land. O’Donnell v. Great Lakes Co., 318 U.S. 36, 41–42 (1943).
The Court has applied the doctrine of seaworthiness to permit claims by longshore-
men injured on land because of some condition of the vessel or its cargo. Gutierrez
v. Waterman S.S. Corp., 373 U.S. 206 (1963); Seas Shipping Co. v. Sieracki, 328 U.S.
85 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). But see Victory Carri-
ers v. Law, 404 U.S. 202 (1971). In the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688,
Congress gave seamen, or their personal representatives, the right to seek compen-
sation from their employers for personal injuries arising out of their maritime em-
ployment. Respecting who is a seaman for Jones Act purposes, see Southwest Ma-
rine, Inc. v. Gizoni, 502 U.S. 81 (1991); McDermott International, Inc. v. Wilander,
498 U.S. 337 (1991). The rights exist even if the injury occurred on land. O’Donnell
v. Great Lakes Co., 318 U.S. at 43; Swanson v. Mara Brothers, 328 U.S. 1, 4 (1946).
In the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C. § 740, Con-
gress provided an avenue of relief for persons injured in themselves or their prop-
erty by action of a vessel on navigable water which is consummated on land, as by
the collision of a ship with a bridge. By the 1972 amendments to the Longshore-
men’s and Harbor Workers’ Compensation Act, 86 Stat. 1251, amending 33 U.S.C.
§§ 901–950, Congress broadened the definition of “navigable waters” to include in
certain cases adjoining piers, wharfs, etc., and modified the definition of “employee”
to mean any worker “engaged in maritime employment” within the prescribed mean-
ART. III—JUDICIAL DEPARTMENT 827
From the earliest days of the Republic, the federal courts sit-
ting in admiralty have been held to have exclusive jurisdiction of
prize cases.935 Also, in contrast to other phases of admiralty juris-
diction, prize law as applied by the British courts continued to pro-
vide the basis of American law so far as practicable,936 and so far
as it was not modified by subsequent legislation, treaties, or execu-
tive proclamations. Finally, admiralty and maritime jurisdiction in-
cludes the seizure and forfeiture of vessels engaged in activities in
violation of the laws of nations or municipal law, such as illicit trade,937
infraction of revenue laws,938 and the like. 939
Admiralty Proceedings.—Procedure in admiralty jurisdiction
differs in few respects from procedure in actions at law, but the dif-
ferences that do exist are significant.940 Suits in admiralty tradition-
ally took the form of a proceeding in rem against the vessel, and,
with exceptions to be noted, such proceedings in rem are confined
exclusively to federal admiralty courts, because the grant of exclu-
sive jurisdiction to the federal courts by the Judiciary Act of 1789
has been interpreted as referring to the traditional admiralty ac-
tion, the in rem action, which was unknown to the common law.941
The savings clause in that Act under which a state court may en-
tertain actions by suitors seeking a common-law remedy preserves
to the state tribunals the right to hear actions at law where a common-
law remedy or a new remedy analogous to a common-law remedy
exists.942 Concurrent jurisdiction thus exists for the adjudication of
ings, thus extending the Act shoreward and changing the test of eligibility from “si-
tus” alone to the “situs” of the injury and the “status” of the injured.
935 Jennings v. Carson, 8 U.S. (4 Cr.) 2 (1807); Taylor v. Carryl, 61 U.S. (20 How.)
583 (1858).
936 Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cr.) 191 (1815); The Siren,
(4 Wall.) 555 (1867). But see Taylor v. Carryl, 61 U.S. (20 How.) 583 (1858). In Madruga
v. Superior Court, 346 U.S. 556 (1954), the jurisdiction of a state court over a parti-
tion suit at the instance of the majority shipowners was upheld on the ground that
the cause of action affected only the interest of the defendant minority shipowners
and therefore was in personam. Justice Frankfurter’s dissent argued: “If this is not
an action against the thing, in the sense which that has meaning in the law, then
the concepts of a res and an in rem proceeding have an esoteric meaning that I do
not understand.” Id. at 564.
942 After conferring “exclusive” jurisdiction in admiralty and maritime cases on
the federal courts, § 9 of the Judiciary Act of 1789, 1 Stat. 77, added “saving to suit-
828 ART. III—JUDICIAL DEPARTMENT
Cr.) 406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Whelan, 11 U.S.
(7 Cr.) 112 (1812); The Samuel, 14 U.S. (1 Wheat.) 9 (1816). If diversity of citizen-
ship and the requisite jurisdictional amounts are present, a suitor may sue on the
“law side” of the federal court and obtain a jury. Romero v. International Terminal
Operating Co., 358 U.S. 354, 362–363 (1959). Jones Act claims, 41 Stat. 1007 (1920),
46 U.S.C. § 688, may be brought on the “law side” with a jury, Panama R.R. Co. v.
Johnson, 264 U.S. 375 (1924), and other admiralty claims joined with a Jones Act
claim may be submitted to a jury. Romero, supra; Fitzgerald v. United States Lines
Co., 374 U.S. 16 (1963). There is no constitutional barrier to congressional provision
of jury trials in admiralty. Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851);
Fitzgerald v. United States Lines Co., 374 U.S. 16, 20 (1963).
946 C. J. Henry Co. v. Moore, 318 U.S. 133, 141 (1943).
947 23 U.S. (10 Wheat.) 428 (1825). On the political background of this decision,
Peyroux v. Howard, 32 U.S. (7 Pet.) 324 (1833); Waring v. Clarke, 46 U.S. (5 How.)
441 (1847).
ART. III—JUDICIAL DEPARTMENT 829
tion over the Great Lakes and connecting waters,949 and in The Genes-
see Chief v. Fitzhugh 950 Chief Justice Taney overruled The Thomas
Jefferson and dropped the tidal ebb and flow requirement. This rul-
ing laid the basis for subsequent judicial extension of jurisdiction
over all waters, salt or fresh, tidal or not, which are navigable in
fact.951 Some of the older cases contain language limiting jurisdic-
tion to navigable waters which form some link in an interstate or
international waterway or some link in commerce,952 but these date
from the time when it was thought the commerce power furnished
the support for congressional legislation in this field.
Admiralty and Federalism.—Extension of admiralty and mari-
time jurisdiction to navigable waters within a state does not, how-
ever, of its own force include general or political powers of govern-
ment. Thus, in the absence of legislation by Congress, the states
through their courts may punish offenses upon their navigable wa-
ters and upon the sea within one marine league of the shore.953
Determination of the boundaries of admiralty jurisdiction is a
judicial function, and “no State law can enlarge it, nor can an act
of Congress or a rule of court make it broader than the judicial power
may determine to be its true limits.” 954 But, as with other jurisdic-
tions of the federal courts, admiralty jurisdiction can only be exer-
cised under acts of Congress vesting it in federal courts.955
The boundaries of federal and state competence, both legisla-
tive and judicial, in this area remain imprecise, and federal judi-
cial determinations have notably failed to supply definiteness. Dur-
ing the last century, the Supreme Court generally permitted two
overlapping systems of law to coexist in an uneasy relationship. The
The Eagle, 75 U.S. (8 Wall.) 15 (1868); The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871).
The fact that the body of water is artificial presents no barrier to admiralty jurisdic-
tion. Ex parte Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S. 17 (1903).
In United States v. Appalachian Power Co., 311 U.S. 377 (1940), it was made clear
that maritime jurisdiction extends to include waterways which by reasonable im-
provement can be made navigable. “It has long been settled that the admiralty and
maritime jurisdiction of the United States includes all navigable waters within the
country.” Southern S.S. Co. v. NLRB, 316 U.S. 31, 41 (1942).
952 E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870); The Montello, 87
956 E.g., New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S.
(6 How.) 344 (1848); The Steamboat New York v. Rea, 59 U.S. (18 How.) 223 (1856);
The China, 74 U.S. (7 Wall.) 53 (1868); Ex parte McNiel, 80 U.S. (13 Wall.) 236 (1872);
La Bourgogne, 210 U.S. 95 (1908).
957 The General Smith, 17 U.S. (4 Wheat.) 438 (1819); The Lottawanna, 88 U.S.
(21 Wall.) 558 (1875) (enforcing state laws giving suppliers and repairmen liens on
ships supplied and repaired). Another example concerns state-created wrongful death
actions. The Hamilton, 207 U.S. 398 (1907).
958 E.g., Hazard’s Administrator v. New England Marine Ins. Co., 33 U.S. (8 Pet.)
557 (1834); The Belfast, 74 U.S. (7 Wall.) 624 (1869); American Steamboat Co. v.
Chase, 83 U.S. (16 Wall.) 522 (1872); Quebec Steamship Co. v. Merchant, 133 U.S.
375 (1890); Belden v. Chase, 150 U.S. 674 (1893); Homer Ramsdell Transp. Co. v. La
Compagnie Gen. Transatlantique, 182 U.S. 406 (1901).
959 244 U.S. 205 (1917). The worker here had been killed, but the same result
was reached in a case of nonfatal injury. Clyde S.S. Co. v. Walker, 244 U.S. 255
(1917). In Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918), the Jensen holding
was applied to preclude recovery in a negligence action against the injured party’s
employer under state law. Under The Osceola, 189 U.S. 158 (1903), the employee
had a maritime right to wages, maintenance, and cure.
960 Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917).
961 244 U.S. at 216.
962 244 U.S. at 218. There were four dissenters: Justices Holmes, Pitney, Brandeis,
and Clarke. The Jensen dissent featured such Holmesian epigrams as: “[J]udges do
and must legislate, but they can do so only interstitially; they are confined from
ART. III—JUDICIAL DEPARTMENT 831
ute was renamed the Longshore and Harbor Workers’ Compensation Act. Pub. L.
98–426.
968 E.g., Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954) (state direct
of federal and state bases of relief for injuries and death as af-
fected by the Longshoremen’s and Harbor Workers’ Compensation
Act; (2) the interpretation of federal and state bases of relief for
personal injuries by maritime workers as affected by the Jones Act;
and (3) the application of state law to permit recovery in maritime
wrongful death cases in which until recently there was no federal
maritime right to recover.969
(1) The principal difficulty here was that after Jensen the Su-
preme Court did not maintain the line between permissible and im-
permissible state-authorized recovery at the water’s edge, but cre-
ated a “maritime but local” exception, by which some injuries incurred
in or on navigable waters could be compensated under state work-
men’s compensation laws or state negligence laws.970 “The applica-
tion of the State Workmen’s Compensation Acts has been sustained
where the work of the employee has been deemed to have no direct
relation to navigation or commerce and the operation of the local
law ‘would work no material prejudice to the essential features of
the general maritime law.’ ” 971 Because Congress provided in the
Longshoremen’s and Harbor Workers’ Compensation Act for recov-
ery under the Act “if recovery . . . may not validly be provided by
State law,” 972 it was held that the “maritime but local” exception
had been statutorily perpetuated,973 thus creating the danger for
injured workers or their survivors that they might choose to seek
relief by the wrong avenue to their prejudice. This danger was sub-
sequently removed by the Court when it recognized that there was
731 (1961) (state statute of frauds inapplicable to oral contract for medical care be-
tween seaman and employer).
969 Jensen, though much criticized, is still the touchstone of the decisional pro-
cess in this area with its emphasis on the general maritime law. E.g., Pope & Talbot
v. Hawn, 346 U.S. 406 (1953); Kermarec v. Compagnie Generale Transatlantique,
358 U.S. 625 (1959). In Askew v. American Waterways Operators, 411 U.S. 325, 337–44
(1973), the Court, in holding that the states may constitutionally exercise their po-
lice powers respecting maritime activities concurrently with the Federal Govern-
ment, such as by providing for liability for oil spill damages, noted that Jensen and
its progeny, although still possessing vitality, have been confined to their facts; thus,
it is only with regard “to suits relating to the relationship of vessels, plying the high
seas and our navigable waters, and to their crews” that state law is proscribed. Id.
at 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980).
970 Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-Smith-Porter Ship
Co. v. Rohde, 257 U.S. 469 (1922); State Industrial Comm’n v. Nordenholt Corp.,
259 U.S. 263 (1922); Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59 (1926).
The exception continued to be applied following enactment of the Longshoremen’s
and Harbor Workers’ Compensation Act. See cases cited in Davis v. Department of
Labor and Industries, 317 U.S. 249, 253–254 (1942).
971 Crowell v. Benson, 285 U.S. 22, 39 n.3 (1932). The internal quotation is from
974 Davis v. Dept of Labor and Industries, 317 U.S. 249 (1942). The quoted phrases
appear at id. at 253, 256. See also Hahn v. Ross Island Sand & Gravel Co., 358 U.S.
272 (1959).
975 370 U.S. 114 (1962). In the 1972 amendments, § 2, 86 Stat. 1251, amending
33 U.S.C. § 903(a), Congress ratified Calbeck by striking out “if recovery . . . may
not validly be provided by State law.”
976 86 Stat. 1251, § 2, amending 33 U.S.C. § 902. The Court had narrowly turned
gous to other well known instances in our law. Derived from and shaped to meet
the hazards which performing the service imposes, the liability is neither limited by
conceptions of negligence nor contractual in character. . . . [T]he owner’s duty to fur-
nish a seaworthy ship is absolute and completely independent of his duty under the
Jones Act to exercise reasonable care.” Mitchell v. Trawler Racer, 362 U.S. 539, 549
(1960).
980 Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). See also Mitchell v. Trawler
Racer, 362 U.S. 539 (1960); Michalic v. Cleveland Tankers, 364 U.S. 325 (1960); Waldron
v. Moore-McCormack Lines, 386 U.S. 724 (1967).
834 ART. III—JUDICIAL DEPARTMENT
attributed either to the ship’s gear or its cargo.981 While these ac-
tions could have been brought in state court, federal law sup-
planted state law even with regard to injuries sustained in state
territorial waters.982 The 1972 LHWCA amendments, however, elimi-
nated unseaworthiness recoveries by persons covered by the Act and
substituted a recovery under the LHWCA itself for injuries caused
by negligence.983
(3) In The Harrisburg,984 the Court held that maritime law did
not afford an action for wrongful death, a position to which the Court
adhered until 1970.985 The Jones Act,986 the Death on the High Seas
Act,987 and the Longshoremen’s and Harbor Workers’ Compensa-
tion Act 988 created causes of action for wrongful death, but for cases
not falling within one of these laws the federal courts looked to state
wrongful death and survival statutes.989 Thus, in The Tungus v.
Skovgaard,990 the Court held that a state wrongful death statute
encompassed claims both for negligence and unseaworthiness in the
instance of a land-based worker killed when on board ship in navi-
gable water; the Court divided five-to-four, however, in holding that
the standards of the duties to furnish a seaworthy vessel and to
use due care were created by the state law as well and not fur-
981 Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Pope & Talbot v. Hawn,
346 U.S. 406 (1953); Alaska S.S. Co. v. Patterson, 347 U.S. 396 (1954); Gutierrez v.
Waterman S.S. Corp., 373 U.S. 206 (1963); But see Usner v. Luckenback Overseas
Corp., 400 U.S. 494 (1971); Victory Carriers v. Law, 404 U.S. 202 (1971).
982 Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942); McAllister v. Magno-
lia Petroleum Co., 357 U.S. 221 (1958); Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625 (1959).
983 86 Stat. 1263, § 18, amending 33 U.S.C. § 905. On the negligence standards
under the amendment, see Scindia Steam Navigation Co., v. De Los Santos, 451 U.S.
156 (1981).
984 119 U.S. 199 (1886). Subsequent cases are collected in Moragne v. States Ma-
by negligence occurring on the high seas beyond a marine league from the shore of
any state. In Rodrique v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969), a unani-
mous Court held that this Act did not apply in cases of deaths on the artificial is-
lands created on the continental shelf for oil drilling purposes but that the Outer
Continental Shelf Lands Act, 67 Stat. 462 (1953), 43 U.S.C. §§ 1331 et seq., incorpo-
rated the laws of the adjacent state, so that Louisiana law governed. See also Chev-
ron Oil Co. v. Huson, 404 U.S. 97 (1971); Gulf Offshore Co. v. Mobil Oil Corp., 453
U.S. 473 (1981). However, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986),
the Court held that the Act is the exclusive wrongful death remedy in the case of
OCS platform workers killed in a helicopter crash 35 miles off shore en route to
shore from a platform.
988 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901–950.
989 Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Just v. Chambers, 312 U.S.
las, argued that the extent of the duties owed the decedent while on board ship
should be governed by federal maritime law, though the cause of action originated
in a state statute, just as would have been the result had decedent survived his
injuries. See also United N.Y. & N.J. Sandy Hooks Pilot Ass’n v. Halecki, 358 U.S.
613 (1959).
992 361 U.S. 314 (1960). The four Tungus dissenters joined two of the Tungus
majority solely “under compulsion” of the Tungus ruling; the other three majority
Justices dissented on the ground that application of the state statute unacceptably
disrupted the uniformity of maritime law.
993 379 U.S. 148 (1964). The decision was based on dictum in Lindgren v. United
States, 281 U.S. 38 (1930), to the effect that the Jones Act remedy was exclusive.
994 398 U.S. 375 (1970).
995 398 U.S. at 396 n.12. For development of the law under Moragne, see Sea-
Land Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex Marine Corp., 498 U.S.
19 (1990); and Norfolk Shipbuilding and Drydock Co. v. Garris, 532 U.S. 811 (2001)
(maritime cause of action for death caused by violation of the duty of seaworthiness
is equally applicable to death resulting from negligence). But, in Yamaha Motor Corp.
v. Calhoun, 516 U.S. 199 (1996), a case involving a death in territorial waters from
a jet ski accident, the Court held that Moragne does not provide the exclusive rem-
edy in cases involving the death in territorial waters of a “nonseafarer”—a person
836 ART. III—JUDICIAL DEPARTMENT
(emphasis in original).
997 Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818).
998 United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v.
Beebe, 127 U.S. 338 (1888); United States v. Bell Telephone Co., 128 U.S. 315 (1888).
Whether without statutory authorization the United States may sue to protect the
constitutional rights of its citizens has occasioned conflict. Compare United States v.
Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y. 1970), and United States v. Brittain,
319 F. Supp. 1658 (S.D.Ala. 1970), with United States v. Mattson, 600 F.2d 1295
(9th Cir. 1979), and United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). The
result in Mattson and Solomon was altered by specific authorization in the Civil
Rights of Institutionalized Persons Act, Pub. L. 96–247, 94 Stat. 349 (1980), 42 U.S.C.
§§ 1997 et seq. See also United States v. City of Philadelphia, 644 F.2d 187 (3d Cir.
1980) (no standing to sue to correct allegedly unconstitutional police practices).
999 28 U.S.C. § 1345. By virtue of the fact that the original jurisdiction of the
Supreme Court extends only to those cases enumerated in the Constitution, jurisdic-
tion over suits brought by the United States against persons or corporations is vested
in the lower federal courts. Suits by the United States against a state may be brought
in the Supreme Court under its original jurisdiction, 28 U.S.C. § 1251(b)(2), al-
though such suits may also be brought in the district courts. Case v. Bowles, 327
U.S. 92, 97 (1946).
1000 United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).
ART. III—JUDICIAL DEPARTMENT 837
or safety was upheld on the grounds that the statute entrusts the
courts with the determination of a “case or controversy” on which
the judicial power can operate and does not impose any legislative,
executive, or non-judicial function. Moreover, the fact that the rights
sought to be protected were those of the public in unimpeded pro-
duction in industries vital to public health, as distinguished from
the private rights of labor and management, was held not to alter
the adversary (“case or controversy”) nature of the litigation insti-
tuted by the United States as the guardian of the aforementioned
rights.1001 Also, by reason of the highest public interest in the ful-
fillment of all constitutional guarantees, “including those that bear
. . . directly on private rights, . . . it [is] perfectly competent for
Congress to authorize the United States to be the guardian of that
public interest in a suit for injunctive relief.” 1002
Suits Against States.—Controversies to which the United States
is a party include suits brought against states as party defendants.
The first such suit occurred in United States v. North Carolina,1003
which was an action by the United States to recover upon bonds
issued by North Carolina. Although no question of jurisdiction was
raised, in deciding the case on its merits in favor of the state, the
Court tacitly assumed that it had jurisdiction of such cases. The
issue of jurisdiction was directly raised by Texas a few years later
in a bill in equity brought by the United States to determine the
boundary between Texas and the Territory of Oklahoma, and the
Court sustained its jurisdiction over strong arguments by Texas to
the effect that it could not be sued by the United States without its
consent and that the Supreme Court’s original jurisdiction did not
extend to cases to which the United States is a party.1004 Stressing
the inclusion within the judicial power of cases to which the United
States and a state are parties, the elder Justice Harlan pointed out
that the Constitution made no exception of suits brought by the United
States. In effect, therefore, consent to be sued by the United States
“was given by Texas when admitted to the Union upon an equal
footing in all respects with the other States.” 1005
1001 United Steelworkers v. United States, 361 U.S. 39, 43–44 (1960), citing In
the federal court over an action to enjoin state officials from discriminating against
African-American citizens seeking to vote in state elections. See also Oregon v. Mitch-
ell, 400 U.S. 112 (1970), in which two of the four cases considered were actions by
the United States to enjoin state compliance with the Voting Rights Act Amend-
ments of 1970.
1003 136 U.S. 211 (1890).
1004 United States v. Texas, 143 U.S. 621 (1892).
1005 143 U.S. at 642–46. This suit, it may be noted, was specifically authorized
by the Act of Congress of May 2, 1890, providing for a temporary government for
838 ART. III—JUDICIAL DEPARTMENT
the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81,
92, § 25. See also United States v. Louisiana, 339 U.S. 699, 701–02 (1950).
1006 United States v. Minnesota, 270 U.S. 181 (1926). For an earlier suit against
a state by the United States, see United States v. Michigan, 190 U.S. 379 (1903).
1007 295 U.S. 463 (1935).
1008 United States v. Utah, 283 U.S. 64 (1931).
1009 United States v. California, 332 U.S. 19 (1947).
1010 United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339
U.S. 707 (1950). See also United States v. Maine, 420 U.S. 515 (1975).
1011 2 U.S. (2 Dall.) 419, 478 (1793).
1012 19 U.S. (6 Wheat.) 264, 412 (1821).
1013 33 U.S. (8 Pet.) 436, 444 (1834).
ART. III—JUDICIAL DEPARTMENT 839
1014 United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States,
50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419,
431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren,
74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122,
126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United States, 98
U.S. 433, 437–439 (1879). It is also clear that the Federal Government, in the ab-
sence of its consent, is not liable in tort for the negligence of its agents or employ-
ees. Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); Peabody v. United
States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States,
260 U.S. 125, 127 (1922). The reason for such immunity, as stated by Justice Holmes
in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is that “there can be no
legal right as against the authority that makes the law on which the right de-
pends.” See also The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act
does not purport to authorize suits against the United States as such, the question
is whether the Authority—which is clearly an agency of the United States—
partakes of this sovereign immunity. The answer must be sought in the intention of
the Congress. Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922);
Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consider-
ation of the extent to which other government-owned corporations have been held
liable for their wrongful acts. 39 Ops. Atty. Gen. 559, 562 (1938).
1015 106 U.S. 196 (1882).
1016 Lonergan v. United States, 303 U.S. 33 (1938). Waivers of immunity must
be express. Library of Congress v. Shaw, 461 U.S. 273 (1983) (Civil Rights Act pro-
vision that “the United States shall be liable for costs the same as a private person”
insufficient to waive immunity from awards of interest). The result in Shaw was
overturned by a specific waiver. Civil Rights Act of 1991, Pub. L. 102–166, 106 Stat.
1079, § 113, amending 42 U.S.C. § 2000e–16. Immunity was waived, with limita-
tions, for contracts and takings claims in the Tucker Act, 28 U.S.C. § 1346(a)(2). Im-
munity of the United States for the negligence of its employees was waived, again
with limitations, in the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671–2680.
Other waivers of sovereign immunity include Pub. L. 94–574, § 1, 90 Stat. 2721 (1976),
amending 5 U.S.C. § 702 (waiver for nonstatutory review in all cases save for suits
for money damages); Pub. L. 87–748, § 1(a), 76 Stat. 744 (1962), 28 U.S.C. § 1361
(giving district courts jurisdiction of mandamus actions to compel an officer or em-
ployee of the United States to perform a duty owed to plaintiff); Westfall Act, 102
Stat. 4563, 28 U.S.C. § 2679(d) (torts of federal employees acting officially), and the
Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412 (making United States
liable for awards of attorneys’ fees in some instances when it loses an administra-
tive proceeding or a lawsuit). See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC’s “sue-
and-be-sued” clause waives sovereign immunity, but a Bivens implied cause of ac-
tion for constitutional torts cannot be used directly against FSLIC).
840 ART. III—JUDICIAL DEPARTMENT
United States from liability, officers of the United States are power-
less either to waive such immunity or to confer jurisdiction on a
federal court.1017 Even when authorized, suits may be brought only
in designated courts,1018 and this rule applies equally to suits by
states against the United States.1019 Congress may also grant or
withhold immunity from suit on behalf of government corpora-
tions.1020
Suits Against United States Officials.—United States v. Lee,
a 5-to-4 decision, qualified earlier holdings that a judgment affect-
ing the property of the United States was in effect against the United
States, by ruling that title to the Arlington estate of the Lee fam-
ily, then being used as a national cemetery, was not legally vested
in the United States but was being held illegally by army officers
under an unlawful order of the President. In its examination of the
sources and application of the rule of sovereign immunity, the Court
concluded that the rule “if not absolutely limited to cases in which
the United States are made defendants by name, is not permitted
to interfere with the judicial enforcement of the rights of plaintiff
when the United States is not a defendant or a necessary party to
the suit.” 1021 Except, nevertheless, for an occasional case like Kan-
sas v. United States,1022 which held that a state cannot sue the United
States, most of the cases involving sovereign immunity from suit
since 1883 have been cases against officers, agencies, or corpora-
tions of the United States where the United States has not been
named as a party defendant. Thus, it has been held that a suit against
the Secretary of the Treasury to review his decision on the rate of
duty to be exacted on imported sugar would disturb the whole rev-
enue system of the government and would in effect be a suit against
the United States.1023 Even more significant is Stanley v. Schwalby,1024
holding that an action of trespass against an army officer to try
title in a parcel of land occupied by the United States as a military
1017 United States v. New York Rayon Co., 329 U.S. 654 (1947).
1018 United States v. Shaw, 309 U.S. 495 (1940). Any consent to be sued will not
be held to embrace action in the federal courts unless the language giving consent
is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).
1019 Minnesota v. United States, 305 U.S. 382 (1939). The United States was
§ 1346(a)(2), now displaces the specific rule of the case, as it provides jurisdiction
against the United States for takings claims.
1022 204 U.S. 331 (1907).
1023 Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).
1024 162 U.S. 255 (1896). Justice Gray endeavored to distinguish between this
case and Lee. Id. at 271. It was Justice Gray who spoke for the dissenters in Lee.
ART. III—JUDICIAL DEPARTMENT 841
by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682 (1949).
1028 Larson, 337 U.S. at 708. Justice Frankfurter’s dissent also contains a use-
1032 337 U.S. at 701–02. This rule was applied in Goldberg v. Daniels, 231 U.S.
218 (1913), which also involved a sale of government surplus property. After the Sec-
retary of the Navy rejected the highest bid, plaintiff sought mandamus to compel
delivery. This suit was held to be against the United States. See also Perkins v. Lukens
Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts de-
rive no enforceable rights against a federal official for an alleged misinterpretation
of his government’s authority on the ground that an agent is answerable only to his
principal for misconstruction of instructions, given for the sole benefit of the princi-
pal. In Larson, the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536
(1926), but in effect overruled it. Goltra involved an attempt of the government to
repossess barges which it had leased under a contract reserving the right to repos-
sess in certain circumstances. A suit to enjoin repossession was held not to be a suit
against the United States on the ground that the actions were personal and in the
nature of a trespass. Also decided in harmony with the Larson decision are the fol-
lowing, wherein the suit was barred as being against the United States: (1) Malone
v. Bowdoin, 369 U.S. 643 (1962), a suit to eject a Forest Service Officer from land
occupied by him in his official capacity under a claim of title from the United States;
and (2) Hawaii v. Gordon, 373 U.S. 57 (1963), an original action by Hawaii against
the Director of the Budget for an order directing him to determine whether a parcel
of federal land could be conveyed to that state. In Dugan v. Rank, 372 U.S. 609
(1963), the Court ruled that inasmuch as the storing and diverting of water at the
Friant Dam resulted, not in a trespass, but in a partial, although a casual day-by-
day, taking of water rights of claimants along the San Joaquin River below the dam,
a suit to enjoin such diversion by Federal Bureau of Reclamation officers was an
action against the United States, for grant of the remedy sought would force aban-
donment of a portion of a project authorized and financed by Congress, and would
prevent fulfillment of contracts between the United States and local Water Utility
Districts. Damages were recoverable in a suit under the Tucker Act. 28 U.S.C. § 1346(a).
1033 337 U.S. at 703–04. Justice Frankfurter, dissenting, would have applied the
rule of the Lee case. See Pub. L. 94–574, 1, 90 Stat. 2721 (1976), amending 5 U.S.C.
§ 702 (action seeking relief, except for money damages, against officer, employee, or
agency not to be dismissed as action against United States).
1034 Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709–710 (1949) (dissent-
ing opinion).
1035 Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. McAdoo, 234 U.S. 627
(1914); Wells v. Roper, 246 U.S. 335 (1918). See also Belknap v. Schild, 161 U.S. 10
(1896); International Postal Supply Co. v. Bruce, 194 U.S. 601 (1904).
ART. III—JUDICIAL DEPARTMENT 843
Co. v. TVA, 306 U.S. 118 (1939) (holding that one threatened with direct and special
injury by the act of an agent of the government under a statute may challenge the
constitutionality of the statute in a suit against the agent).
1037 Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S.
606 (1918).
1038 United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536
(1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947). See
also Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959).
Butz v. Economou, 438 U.S. 478 (1978); Carlson v. Green, 446 U.S. 14 (1980); Har-
low v. Fitzgerald, 457 U.S. 800 (1982).
1039 306 U.S. 381 (1939).
1040 FHA v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a con-
1849. During the next 90 years, 1849–1939, at least twenty-nine such suits were
brought. Id. at 13, 14.
1044 New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1931).
1045 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838).
1046 37 U.S. at 736–37.
ART. III—JUDICIAL DEPARTMENT 845
1047 37 U.S. at 737. Chief Justice Taney dissented because of his belief that the
issue was not one of property in the soil, but of sovereignty and jurisdiction, and
hence political. Id. at 752–53. For different reasons, it should be noted, a suit be-
tween private parties respecting soil or jurisdiction of two states, to which neither
state is a party, does not come within the original jurisdiction of the Supreme Court.
Fowler v. Lindsey, 3 U.S. (3 Dall.) 411 (1799). For recent boundary cases, see United
States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985);
United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S. 93
(1985); United States v. Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497
U.S. 336 (1990); Mississippi v. Louisiana, 506 U.S. 73 (1992).
1048 180 U.S. 208 (1901).
1049 E.g. Montana v. Wyoming, 563 U.S. ___, No. 137, Orig., slip op. (2011).
1050 206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington,
States have real and substantial interests in the River that must
be reconciled as best they may be.” 1052
Other types of interstate disputes of which the Court has taken
jurisdiction include suits by a state as the donee of the bonds of
another to collect thereon,1053 by Virginia against West Virginia to
determine the proportion of the public debt of the original State of
Virginia which the latter owed the former,1054 by Arkansas to en-
join Texas from interfering with the performance of a contract by a
Texas foundation to contribute to the construction of a new hospi-
tal in the medical center of the University of Arkansas,1055 of one
state against another to enforce a contract between the two,1056 of
a suit in equity between states for the determination of a dece-
dent’s domicile for inheritance tax purposes,1057 and of a suit by two
states to restrain a third from enforcing a natural gas measure that
purported to restrict the interstate flow of natural gas from the state
in the event of a shortage.1058
In Texas v. New Jersey,1059 the Court adjudicated a multistate
dispute about which state should be allowed to escheat intangible
property consisting of uncollected small debts held by a corpora-
tion. Emphasizing that the states could not constitutionally pro-
vide a rule of settlement and that no federal statute governed the
1052 283 U.S. at 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho
ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals Corp.,
401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a state against
citizens of other states to abate a nuisance allegedly caused by the dumping of mer-
cury into streams that ultimately run into Lake Erie, but it declined to permit the
filing because the presence of complex scientific issues made the case more appropri-
ate for first resolution in a district court. See also Texas v. New Mexico, 462 U.S.
554 (1983); Nevada v. United States, 463 U.S. 110 (1983).
1053 South Dakota v. North Carolina, 192 U.S. 286 (1904).
1054 Virginia v. West Virginia, 220 U.S. 1 (1911).
1055 Arkansas v. Texas, 346 U.S. 368 (1953).
1056 Kentucky v. Indiana, 281 U.S. 163 (1930).
1057 Texas v. Florida, 306 U.S. 398 (1939). In California v. Texas, 437 U.S. 601
(1978), the Court denied a state leave to file an original action against another state
to determine the contested domicile of a decedent for death tax purposes, with sev-
eral Justices of the view that Texas v. Florida had either been wrongly decided or
was questionable. But, after determining that an interpleader action by the admin-
istrator of the estate for a determination of domicile was barred by the Eleventh
Amendment, Cory v. White, 457 U.S. 85 (1982), the Court over dissent permitted
filing of the original action. California v. Texas, 457 U.S. 164 (1982).
1058 Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The Court, in Mary-
land v. Louisiana, 451 U.S. 725 (1981), over strong dissent, relied on this case in
permitting suit contesting a tax imposed on natural gas, the incidence of which fell
on the suing state’s consuming citizens. And, in Wyoming v. Oklahoma, 502 U.S.
437 (1992), the Court permitted a state to sue another to contest a law requiring
that all in-state utilities burn a mixture containing at least 10% in-state coal, the
plaintiff state having previously supplied 100% of the coal to those utilities and thus
suffering a loss of coal-severance tax revenues.
1059 379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 U.S. 206 (1972).
ART. III—JUDICIAL DEPARTMENT 847
matter, the Court evaluated the possible rules and chose the one
easiest to apply and least likely to lead to continuing disputes.
In general, in taking jurisdiction of these suits, along with those
involving boundaries and the diversion or pollution of water re-
sources, the Supreme Court proceeded upon the liberal construc-
tion of the term “controversies between two or more States” enun-
ciated in Rhode Island v. Massachusetts,1060 and fortified by Chief
Justice Marshall’s dictum in Cohens v. Virginia,1061 concerning ju-
risdiction because of the parties to a case, that “it is entirely unim-
portant, what may be the subject of controversy. Be it what it may,
these parties have a constitutional right to come into the Courts of
the Union.” 1062
Cases of Which the Court Has Declined Jurisdiction.—In
other cases, however, the Court, centering its attention upon the
elements of a case or controversy, has declined jurisdiction. In Ala-
bama v. Arizona,1063 where Alabama sought to enjoin nineteen states
from regulating or prohibiting the sale of convict-made goods, the
Court went far beyond holding that it had no jurisdiction, and indi-
cated that jurisdiction of suits between states will be exercised only
when absolutely necessary, that the equity requirements in a suit
between states are more exacting than in a suit between private
persons, that the threatened injury to a plaintiff state must be of
great magnitude and imminent, and that the burden on the plain-
tiff state to establish all the elements of a case is greater than the
burden generally required by a petitioner seeking an injunction in
cases between private parties.
Pursuing a similar line of reasoning, the Court declined to take
jurisdiction of a suit brought by Massachusetts against Missouri and
certain of its citizens to prevent Missouri from levying inheritance
taxes upon intangibles held in trust in Missouri by resident trust-
ees. In holding that the complaint presented no justiciable contro-
versy, the Court declared that to constitute such a controversy, the
1060 37 U.S. (12 Pet.) 657 (1838).
1061 19 U.S. (6 Wheat.) 264 (1821).
1062 19 U.S. at 378. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71,
79–80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965); Pennsylvania v. New
York, 407 U.S. 206 (1972).
1063 291 U.S. 286 (1934). The Court in recent years, with a significant caseload
problem, has been loath to permit filings of original actions where the parties might
be able to resolve their disputes in other courts, even in cases in which the jurisdic-
tion over the particular dispute is exclusively original. Arizona v. New Mexico, 425
U.S. 794 (1976) (dispute subject of state court case brought by private parties); Cali-
fornia v. West Virginia, 454 U.S. 1027 (1981). But in Mississippi v. Louisiana, 506
U.S. 73 (1992), the Court’s reluctance to exercise original jurisdiction ran afoul of
the “uncompromising language” of 28 U.S.C. § 1251(a) giving the Court “original and
exclusive jurisdiction” of these kinds of suits.
848 ART. III—JUDICIAL DEPARTMENT
286 (1911), and Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 394 (1938). See
also New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76 (1883),
which held that a state cannot bring a suit on behalf of its citizens to collect on
bonds issued by another state, and Louisiana v. Texas, 176 U.S. 1 (1900), which held
that a state cannot sue another to prevent maladministration of quarantine laws.
1067 308 U.S. at 17, 19.
ART. III—JUDICIAL DEPARTMENT 849
The suit was begun in 1906, and a judgment was rendered against
West Virginia in 1915. Finally, in 1917, Virginia filed a suit against
West Virginia to show cause why, in default of payment of the judg-
ment, an order should not be entered directing the West Virginia
legislature to levy a tax for payment of the judgment.1068 Starting
with the rule that the judicial power essentially involves the right
to enforce the results of its exertion,1069 the Court proceeded to hold
that it applied with the same force to states as to other liti-
gants 1070 and to consider appropriate remedies for the enforcement
of its authority. In this connection, Chief Justice White declared:
“As the powers to render the judgment and to enforce it arise from
the grant in the Constitution on that subject, looked at from a ge-
neric point of view, both are federal powers and, comprehensively
considered, are sustained by every authority of the Federal Govern-
ment, judicial, legislative, or executive, which may be appropri-
ately exercised.” 1071 The Court, however, left open the question of
its power to enforce the judgment under existing legislation and sched-
uled the case for reargument at the next term. Before that could
occur, West Virginia accepted the Court’s judgment and entered into
an agreement with Virginia to pay it.1072
Enforcement Authority Includes Ordering Disgorgement and
Reformation of Certain Agreements.—More recently, the Court,
noting that proceedings under its original jurisdiction are “basi-
cally equitable,” has taken the view that its enforcement authority
encompasses ordering disgorgement of part of one state’s gain from
its breach of an interstate compact, as well as reforming certain
agreements adopted by the states.1073 In so doing, the Court empha-
sized that its enforcement authority derives both from its “inherent
1068 The various decisions in Virginia v. West Virginia are found at 206 U.S.
290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 222 U.S. 17 (1911); 231 U.S. 89
(1913); 234 U.S. 117 (1914); 238 U.S. 202 (1915); 241 U.S. 531 (1916); 246 U.S. 565
(1918).
1069 246 U.S. at 591.
1070 246 U.S. at 600.
1071 246 U.S. at 601.
1072 C. WARREN, THE SUPREME COURT AND SOVEREIGN STATES 78–79 (1924).
1073 Kansas v. Nebraska, 574 U.S. ___, No. 126, Orig., slip op. at 14–17 (2015).
Equity is “the system of law or body of principles originating in the English Court
of Chancery.” BLACK’S LAW DICTIONARY 656 (10th ed. 2014). Persons who sought equi-
table relief “sought to do justice in cases for which there was no adequate remedy
at common law,” A.H. MANCHESTER, MODERN LEGAL HISTORY OF ENGLAND AND WALES, 1750–
1950 135–36 (1980), i.e., cases in which the English courts of law could afford no
relief to a plaintiff. While eventually courts of law and courts providing equitable
relief merged into a single court in most jurisdictions, an equitable remedy refers to
a remedy that equity courts would have historically granted. See 1 DAN B. DOBBS,
DOBBS LAW OF REMEDIES: DAMAGES—EQUITY—RESTITUTION § 2.1(2), at 59–61 (2d ed. 1993).
Compensatory damages are a classic “legal” remedy, whereas an injunction is a clas-
sic “equitable” remedy. See RICHARD L. HASEN, REMEDIES 141 (2d ed. 2010).
850 ART. III—JUDICIAL DEPARTMENT
1074 See Kansas, slip op. at 8 (quoting Texas v. New Mexico, 462 U.S. 554, 567
(1983)).
1075 Id.
1076 Id.
1077 2 U.S. (2 Dall.) 419 (1793).
1078 See the discussion under the Eleventh Amendment.
1079 Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S.
Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184
U.S. 199 (1902).
1081 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
ART. III—JUDICIAL DEPARTMENT 851
Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Georgia v. Evans, 316 U.S.
159 (1942).
1090 South Dakota v. North Carolina, 192 U.S. 286 (1904).
852 ART. III—JUDICIAL DEPARTMENT
fused the right to sue.1091 Nor can a state sue the citizens of other
states on behalf of its own citizens to collect claims.1092
The State as Parens Patriae.—The distinction between suits
brought by states to protect the welfare of their citizens as a whole
and suits to protect the private interests of individual citizens is
not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,1093
the state was refused permission to sue to enjoin unreasonable rate
charges by a railroad on the shipment of specified commodities, be-
cause the state was not engaged in shipping these commodities and
had no proprietary interest in them. But, in Georgia v. Pennsylva-
nia R.Co.,1094 a closely divided Court accepted a suit by the state,
suing as parens patriae and in its proprietary capacity—the latter
being treated by the Court as something of a makeweight—seeking
injunctive relief against 20 railroads on allegations that the rates
were discriminatory against the state and its citizens and their eco-
nomic interests and that the rates had been fixed through coercive
action by the northern roads against the southern lines in violation
of the Clayton Antitrust Act. For the Court, Justice Douglas ob-
served that the interests of a state for purposes of invoking the origi-
nal jurisdiction of the Court were not to be confined to those which
are proprietary but rather “embrace the so called ‘quasi-sovereign’
interests which . . . are ‘independent of and behind the titles of its
citizens, in all the earth and air within its domain.’ ” 1095
Discriminatory freight rates, the Justice continued, may cause
a blight no less serious than noxious gases in that they may arrest
the development of a state and put it at a competitive disadvan-
tage. “Georgia as a representative of the public is complaining of a
wrong which, if proven, limits the opportunities of her people, shack-
les her industries, retards her development, and relegates her to
an inferior economic position among her sister States. These are
matters of grave public concern in which Georgia has an interest
apart from that of particular individuals who may be affected. Geor-
gia’s interest is not remote; it is immediate. If we denied Georgia
as parens patriae the right to invoke the original jurisdiction of the
Court in a matter of that gravity, we would whittle the concept of
1091 New Hampshire v. Louisiana, 108 U.S. 76 (1883).
1092 Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938).
1093 220 U.S. 277 (1911).
1094 324 U.S. 439 (1945).
1095 324 U.S. at 447–48 (quoting from Georgia v. Tennessee Copper Co., 206 U.S.
230, 237 (1907), in which the state was permitted to sue as parens patriae to enjoin
the defendant from emitting noxious gases from its works in Tennessee which caused
substantial damage in nearby areas of Georgia). In Alfred L. Snapp & Son v. Puerto
Rico ex rel. Barez, 458 U.S. 592, 607–08 (1982), the Court attempted to enunciate
the standards by which to recognize permissible parens patriae assertions. See also
Maryland v. Louisiana, 451 U.S. 725, 737–39 (1981).
ART. III—JUDICIAL DEPARTMENT 853
1096 Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). Chief Justice Stone
held that the state could not maintain an action for damages parens patriae under
the Clayton Act and limited the previous case to instances in which injunctive relief
is sought. Hawaii had brought its action in federal district court. The result in Ha-
waii was altered by Pub. L. 94–435, 90 Stat. 1383 (1976), 15 U.S.C. §§ 15c et seq.,
but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced the
significance of the law.
1098 Most of the cases, but see Georgia v. Tennessee Copper Co., 206 U.S. 230
(1907), concern suits by one state against another. Missouri v. Illinois, 180 U.S. 208
(1901); New York v. New Jersey, 256 U.S. 296 (1921); North Dakota v. Minnesota,
263 U.S. 365 (1923). Although recognizing that original jurisdiction exists when a
state sues a political subdivision of another state or a private party as parens patriae
for its citizens and on its own proprietary interests to abate environmental pollu-
tion, the Court has held that, because of the technical complexities of the issues
and the inconvenience of adjudicating them on its original docket, the cases should
be brought in federal district court under federal question jurisdiction founded on
the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 (1972); Washing-
ton v. General Motors Corp., 406 U.S. 109 (1972). The Court had earlier thought the
cases must be brought in state court. Ohio v. Wyandotte Chemicals Corp., 401 U.S.
493 (1971).
1099 262 U.S. 447, 486 (1923).
1100 383 U.S. 301 (1966). The state sued the Attorney General of the United States
as a citizen of New Jersey, thus creating the requisite jurisdiction, and avoiding the
problem that the States may not sue the United States without its consent. Minne-
sota v. Hitchcock, 185 U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kan-
sas v. United States, 204 U.S. 331 (1907). The expedient is, of course, the same de-
vice as is used to avoid the Eleventh Amendment prohibition against suing a state
by suing its officers. Ex parte Young, 209 U.S. 123 (1908).
1101 79 Stat. 437 (1965), 42 U.S.C. §§ 1973 et seq.
854 ART. III—JUDICIAL DEPARTMENT
der Clause of Article I,1102 the Court decided on the merits the state’s
claim that Congress had exceeded its powers under the Fifteenth
Amendment.1103 Was the Court here sub silentio permitting it to
assert its interest in the execution of its own laws, rather than those
enacted by Congress, or its interest in having Congress enact only
constitutional laws for application to its citizens, an assertion that
is contrary to a number of supposedly venerated cases? 1104 Either
possibility would be significant in a number of respects.1105
Controversies Between Citizens of Different States
The records of the Federal Convention are silent on why the
Framers included controversies between citizens of different states
among the judicial power of the United States,1106 but Congress has
given “diversity jurisdiction” in one form or another to the federal
courts since the Judiciary Act of 1789.1107 The traditional explana-
tion remains that offered by Chief Justice Marshall. “However true
1102 The Court first held that neither of these provisions were restraints on what
the Federal Government might do with regard to a state. It then added: “Nor does a
State have standing as the parent of its citizens to invoke these constitutional pro-
visions against the Federal Government, the ultimate parents patriae of every Ameri-
can citizen.” South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
1103 The Court did not indicate on what basis South Carolina could raise the
issue. At the beginning of its opinion, the Court noted that “[o]riginal jurisdiction is
founded on the presence of a controversy between a State and a citizen of another
State under Art. III, § 2, of the Constitution. See Georgia v. Pennsylvania R. Co.,
324 U.S. 439.” 383 U.S. at 307. But surely this did not refer to that case’s parens
patriae holding.
1104 See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273
U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 (1944). See especially
Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4
Wall.) 475 (1867). In Oregon v. Mitchell, 400 U.S. 112 (1970), four original actions
were consolidated and decided. Two were actions by the United States against States,
but the other two were suits by States against the Attorney General, as a citizen of
New York, seeking to have the Voting Rights Act Amendments of 1970 voided as
unconstitutional. South Carolina v. Katzenbach was uniformly relied on by all par-
ties as decisive of the jurisdictional question, and in announcing the judgment of
the Court Justice Black simply noted that no one raised jurisdictional or justiciabil-
ity questions. Id. at 117 n.1. See also id. at 152 n.1 (Justice Harlan concurring in
part and dissenting in part); South Carolina v. Baker, 485 U.S. 505 (1988); South
Carolina v. Regan, 465 U.S. 367 (1984).
1105 Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79, 80–93.
1106 Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483
(1928).
1107 1 Stat. 78, 11. The statute also created alienage jurisdiction of suits be-
tween a citizen of a state and an alien. See Holt, The Origins of Alienage Jurisdic-
tion, 14 OKLA. CITY L. REV. 547 (1989). Early versions of the statute conferred diver-
sity jurisdiction only when the suit was between a citizen of the state in which the
suit was brought and a citizen of another state. The Act of March 3, 1875, § 1. 18
Stat. 470, first established the language in the present statute, 28 U.S.C. § 1332(a)(1),
merely requiring diverse citizenship, so that a citizen of Maryland could sue a citi-
zen of Delaware in federal court in New Jersey. The statute also sets a threshold
amount at controversy for jurisdiction to attach; the jurisdictional amount was as
low as $3,000 in 1958, but set at $75,000 in 1996. 28 U.S.C. § 1332(a). Snyder v.
ART. III—JUDICIAL DEPARTMENT 855
the fact may be, that the tribunals of the states will administer jus-
tice as impartially as those of the nation, to parties of every descrip-
tion, it is not less true that the Constitution itself either entertains
apprehensions on this subject, or views with such indulgence the
possible fears and apprehensions of suitors, that it has established
national tribunals for the decision of controversies between aliens
and a citizen, or between citizens of different states.” 1108 Other ex-
planations have been offered and controverted,1109 but diversity cases
constitute a large bulk of cases on the dockets of the federal courts
today, though serious proposals for restricting access to federal courts
in such cases have been before Congress for some time.1110 The es-
sential difficulty with this type of jurisdiction is that it requires fed-
eral judges to decide issues of local import on the basis of their read-
ing of how state judges would decide them, an oftentimes laborious
process, which detracts from the time and labor needed to resolve
issues of federal import.
The Meaning of “State” and the District of Columbia Prob-
lem.—In Hepburn v. Ellzey,1111 Chief Justice Marshall for the Court
confined the meaning of the word “state” as used in the Constitu-
tion to “the members of the American confederacy” and ruled that
a citizen of the District of Columbia could not sue a citizen of Vir-
ginia on the basis of diversity of citizenship. Marshall noted that it
was “extraordinary that the courts of the United States, which are
open to aliens, and to the citizens of every state in the union, should
be closed upon them. But this is a subject for legislative, not for
judicial consideration.” 1112 The same rule was subsequently ap-
plied to citizens of the territories of the United States.1113
Whether the Chief Justice had in mind a constitutional amend-
ment or a statute when he spoke of legislative consideration re-
mains unclear. Not until 1940, however, did Congress attempt to
meet the problem by statutorily conferring on federal district courts
Harris, 394 U.S. 332 (1969), held that in a class action in diversity the individual
claims could not be aggregated to meet the jurisdictional amount. Zahn v. Interna-
tional Paper Co., 414 U.S. 291 (1974), extended Snyder in holding that even though
the named plaintiffs had claims of more than $10,000, the extant jurisdictional amount,
they could not represent a class in which many of the members had claims for less
than $10,000. A separate provision on diversity and class actions sets the jurisdic-
tional amount at $5 million. 28 U.S.C. § 1332(d).
1108 Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61, 87 (1809).
1109 Summarized and discussed in C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL
COURTS 23 (4th ed. 1983); AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION
BETWEEN STATE AND FEDERAL COURTS 99–110, 458–464 (1969).
1110 The principal proposals are those of the American Law Institute. Id. at 123–
34.
1111 6 U.S. (2 Cr.) 445 (1805).
1112 6 U.S. at 453.
1113 City of New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816).
856 ART. III—JUDICIAL DEPARTMENT
was sustained in Americana of Puerto Rico v. Kaplus, 368 F.2d 431 (3d Cir. 1966),
cert. denied, 386 U.S. 943 (1967), under Congress’s power to make rules and regula-
tions for United States territories. Cf. Examining Bd. v. Flores de Otero, 426 U.S.
572, 580–597 (1976) (discussing congressional acts with respect to Puerto Rico).
1118 Chicago & N.W.R.R. v. Ohle, 117 U.S. 123 (1886).
1119 Sun Printing & Pub. Ass’n v. Edwards, 194 U.S. 377 (1904).
1120 Knox v. Greenleaf, 4 U.S. (4 Dall.) 360 (1802); Shelton v. Tiffin, 47 U.S. (6
act, though diversity exists. Barber v. Barber, 62 U.S. (21 How.) 582 (1858); Ex parte
Burrus, 136 U.S. 586 (1890); In re Broderick’s Will, 88 U.S. (21 Wall.) 503 (1875).
These cases merely enunciated the rule, without justifying it; when the Court squarely
faced the issue quite recently, it adhered to the rule, citing justifications. Ankenbrandt
v. Richards, 504 U.S. 689 (1992).
1129 9 U.S. (5 Cr.) 61, 86 (1809).
1130 Commercial & Railroad Bank v. Slocomb, 39 U.S. (14 Pet.) 60 (1840).
858 ART. III—JUDICIAL DEPARTMENT
any defendant,1131 was working to close the doors of the federal courts
to corporations with stockholders in many states.
Deveaux was overruled in 1844, when, after elaborate argu-
ment, a divided Court held that “a corporation created by and do-
ing business in a particular state, is to be deemed to all intents
and purposes as a person, although an artificial person, an inhabit-
ant of the same state, for the purposes of its incorporation, capable
of being treated as a citizen of that state, as much as a natural
person.” 1132 Ten years later, the Court abandoned this rationale, but
it achieved the same result by “indulg[ing] in the fiction that, al-
though a corporation was not itself a citizen for diversity purposes,
its shareholders would be conclusively presumed citizens of the in-
corporating State.” 1133 “State of incorporation” remained the guid-
ing rule for determining the place of corporate citizenship until Con-
gress amended the jurisdictional statute in 1958. Concern over growing
dockets and companies incorporating in states of convenience then
led to a dual citizenship rule whereby “a corporation shall be deemed
to be a citizen of any State by which it has been incorporated and
of the State where it has its principal place of business.” 1134 The
right of foreign corporations to resort to federal courts in diversity
is not one that the states may condition as a qualification for doing
business in the state.1135
Unincorporated associations, such as partnerships, joint stock
companies, labor unions, governing boards of institutions, and the
like, do not enjoy the same privilege as a corporation; the actual
citizenship of each of its members must be considered in determin-
ing whether diversity exists.1136
1131 Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806).
1132 Louisville, C. & C.R.R. v. Letson, 43 U.S. (2 How.) 497, 558 (1844).
1133 United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 148 (1965), citing
Marshall v. Baltimore & Ohio R.R., 57 U.S. (16 How.) 314 (1854). See Muller v. Dows,
94 U.S. 444 (1877); St. Louis & S.F. Ry. v. James, 161 U.S. 545 (1896); Carden v.
Arkoma Associates, 494 U.S. 185, 189 (1990).
1134 28 U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend, 559 U.S. ___, No. 08–1107,
slip op. (2010), the Court recounted the development of the rules on corporate juris-
dictional citizenship in deciding that a corporation’s “principal place of business” un-
der the statute is its “nerve center,” the place where the corporation’s officers direct,
control, and coordinate the corporation’s activities.
The jurisdictional statute additionally deems the place of an insured’s citizen-
ship as an additional place of citizenship of an insurer being sued in a direct action
case.
1135 In Terral v. Burke Constr. Co., 257 U.S. 529 (1922), the Court resolved two
conflicting lines of cases and voided a state statute that required the cancellation of
the license of a foreign corporation to do business in the state upon notice that the
corporation had removed a case to a federal court.
1136 Chapman v. Barney, 129 U.S. 677 (1889); Great Southern Fire Proof Hotel
Co. v. Jones, 177 U.S. 449 (1900); Thomas v. Board of Trustees, 195 U.S. 207 (1904);
United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145 (1965); Carden v. Arkoma
ART. III—JUDICIAL DEPARTMENT 859
Associates, 494 U.S. 185 (1990). But compare People of Puerto Rico v. Russell & Co.,
288 U.S. 476 (1933), distinguished in Carden, 494 U.S. at 189–190, and Navarro
Savings Ass’n v. Lee, 446 U.S. 458 (1980), distinguished in Carden, 494 U.S. at 191–
192.
1137 Ch. XIX, § 11, 1 Stat. 78, sustained in Turner v. Bank of North America, 4
U.S. (4 Dall.) 8 (1799), and Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). The present
statute, 28 U.S.C. § 1359, provides that no jurisdiction exists in a civil action “in
which any party, by assignment or otherwise, has been improperly or collusively made
or joined to invoke the jurisdiction of such court.” See Kramer v. Caribbean Mills,
394 U.S. 823 (1969).
1138 Williamson v. Osenton, 232 U.S. 619 (1914); Morris v. Gilmer, 129 U.S. 315
(1889).
1139 Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931).
1140 Miller & Lux v. East Side Canal & Irrigation Co., 211 U.S. 293 (1908).
1141 E.g., Southern Realty Co. v. Walker, 211 U.S. 603 (1909).
1142 276 U.S. 518 (1928).
1143 276 U.S. at 532 (joined by Justices Brandeis and Stone). Justice Holmes
here presented his view that Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), had been
wrongly decided, but he preferred not to overrule it, merely “not allow it to spread
. . . into new fields.” 276 U.S. at 535.
860 ART. III—JUDICIAL DEPARTMENT
1144 The section provided that “the laws of the several states, except where the
constitution, treaties, or statutes of the United States shall otherwise require or pro-
vide, shall be regarded as rules of decision in trials at common law in the courts of
the United States in cases where they apply.” 1 Stat. 92. With only insubstantial
changes, the section now appears as 28 U.S.C. § 1652. For a concise review of the
entire issue, see C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS ch. 9 (4th ed.
1983).
1145 41 U.S. (16 Pet.) 1 (1842). The issue in the case was whether a pre-existing
debt was good consideration for an indorsement of a bill of exchange so that the
endorsee would be a holder in due course.
1146 41 U.S. at 19. The Justice concluded this portion of the opinion: “The law
City of Chicago v. Robbins, 67 U.S. (2 Bl.) 418 (1862), and Baltimore & Ohio R.R. v.
Baugh, 149 U.S. 368 (1893) (torts); Yates v. City of Milwaukee, 77 U.S. (10 Wall.)
497 (1870) (real estate titles and rights of riparian owners); Kuhn v. Fairmont Coal
Co., 215 U.S. 349 (1910) (mineral conveyances); Rowan v. Runnels, 46 U.S. (5 How.)
134 (1847) (contracts); Lake Shore & M.S. Ry. v. Prentice, 147 U.S. 101 (1893). It
was strongly contended that uniformity, the goal of Justice Story’s formulation, was
not being achieved, in great part because state courts followed their own rules of
decision even when prior federal decisions were contrary. Frankfurter, Distribution
of Judicial Power Between Federal and State Courts, 13 CORNELL L.Q. 499, 529 n.150
(1928). Moreover, the Court held that, although state court interpretations of state
statutes or constitutions were to be followed, federal courts could ignore them if they
conflicted with earlier federal constructions of the same statute or constitutional pro-
ART. III—JUDICIAL DEPARTMENT 861
Swift v. Tyson was almost always present, within and without the
Court,1148 it was the Court’s decision in Black & White Taxicab &
Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.1149 that brought
disagreement to the strongest point and perhaps precipitated the
overruling of Swift v. Tyson in Erie Railroad Co. v. Tompkins.1150
“It is impossible to overstate the importance of the Erie deci-
sion. It announces no technical doctrine of procedure or jurisdic-
tion, but goes to the heart of the relations between the Federal Gov-
ernment and the states, and returns to the states a power that had
for nearly a century been exercised by the federal government.” 1151
Erie was remarkable in a number of ways aside from the doctrine
it announced. It reversed a 96-year-old precedent, which counsel had
specifically not questioned; it reached a constitutional decision when
a statutory interpretation was available though perhaps less desir-
able; and it marked the only time in United States constitutional
vision, Rowan v. Runnels, 46 U.S. (5 How.) 134 (1847), or if they had been rendered
after the case had been tried in federal court, Burgess v. Seligman, 107 U.S. 20 (1883),
thus promoting lack of uniformity. See also Gelpcke v. City of Debuque, 68 U.S. (1
Wall.) 175 (1865); Williamson v. Berry, 49 U.S. (8 How.) 495 (1850); Pease v. Peck,
59 U.S. (18 How.) 595 (1856); Watson v. Tarpley, 59 U.S. (18 How.) 517 (1856).
1148 Extensions of the scope of Tyson frequently were rendered by a divided Court
over the strong protests of dissenters. E.g., Gelpcke v. City of Debuque, 68 U.S. (1
Wall.) 175 (1865); Lane v. Vick, 44 U.S. (3 How.) 463 (1845); Kuhn v. Fairmont Coal
Co., 215 U.S. 349 (1910). In Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401–04
(1893), Justice Field dissented in an opinion in which he expressed the view that
Supreme Court disregarding of state court decisions was unconstitutional, a view
endorsed by Justice Holmes in Black & White Taxicab & Transfer Co. v. Brown &
Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (dissenting opinion), and
adopted by the Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Numer-
ous proposals were introduced in Congress to change the rule.
1149 276 U.S. 518 (1928). B. & W. had contracted with a railroad to provide ex-
clusive taxi service at its station. B. & Y. began operating taxis at the same station
and B. & W. wanted to enjoin the operation, but it was a settled rule by judicial
decision in Kentucky courts that such exclusive contracts were contrary to public
policy and were unenforceable in court. Therefore, B. & W. dissolved itself in Ken-
tucky and reincorporated in Tennessee, solely in order to create diversity of citizen-
ship and enable itself to sue in federal court. It was successful and the Supreme
Court ruled that diversity was present and that the injunction should issue. In Mu-
tual Life Ins. Co. v. Johnson, 293 U.S. 335 (1934), the Court, in an opinion by Jus-
tice Cardozo, appeared to retreat somewhat from its extensions of Tyson, holding
that state law should be applied, through a “benign and prudent comity,” in a case
“balanced with doubt,” a concept first used by Justice Bradley in Burgess v. Selig-
man, 107 U.S. 20 (1883).
1150 304 U.S. 64 (1938). Judge Friendly has written: “Having served as the Jus-
tice’s [Brandeis’] law clerk the year Black & White Taxicab & Transfer Co. v. Brown
& Yellow Taxicab & Transfer Co. came before the Court, I have little doubt he was
waiting for an opportunity to give Swift v. Tyson the happy dispatch he thought it
deserved.” H. FRIENDLY, BENCHMARKS 20 (1967).
1151 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 355 (4th ed. 1983). See
Judge Friendly’s exposition, In Praise of Erie—And of the New Federal Common Law,
in H. FRIENDLY, BENCHMARKS 155 (1967).
862 ART. III—JUDICIAL DEPARTMENT
history when the Court has held that it had undertaken an uncon-
stitutional action.1152
Tompkins was injured by defendant’s train while he was walk-
ing along the tracks. He was a citizen of Pennsylvania, and the rail-
road was incorporated in New York. Had he sued in a Pennsylva-
nia court, state decisional law was to the effect that, because he
was a trespasser, the defendant owned him only a duty not to in-
jure him through wanton or willful misconduct; 1153 the general fed-
eral law treated him as a licensee who could recover for negli-
gence. Tompkins sued and recovered in federal court in New York
and the railroad presented the issue to the Supreme Court as one
covered by “local” law within the meaning of Swift v. Tyson. Jus-
tice Brandeis for himself and four other Justices, however, chose to
overrule the early case.
First, it was argued that Tyson had failed to bring about unifor-
mity of decision and that its application discriminated against citi-
zens of a state by noncitizens. Justice Brandeis cited recent re-
searches 1154 indicating that § 34 of the 1789 Act included court
decisions in the phrase “laws of the several States.” “If only a ques-
tion of statutory construction were involved we should not be pre-
pared to abandon a doctrine so widely applied throughout nearly a
century. But the unconstitutionality of the course pursued has now
been made clear, and compels us to do so.” 1155 For a number of rea-
sons, it would not have been wise to have overruled Tyson on the
basis of arguable new discoveries.1156
New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49
84–88 (1923). See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 353 (4th ed.
1983).
1155 304 U.S. at 77–78 (footnote citations omitted).
1156 Congress had re-enacted § 34 as § 721 of the Revised Statutes, citing Swift
v. Tyson in its annotation, thus presumably accepting the gloss placed on the words
by that ruling. But note that Justice Brandeis did not think even the re-enacted
statute was unconstitutional. 304 U.S. at 79–80. See H. FRIENDLY, BENCHMARKS 161–
163 (1967). Perhaps a more compelling reason of policy was that stated by Justice
Frankfurter rejecting for the Court a claim that the general grant of federal ques-
tion jurisdiction to the federal courts in 1875 made maritime suits cognizable on the
law side of the federal courts. “Petitioner now asks us to hold that no student of the
jurisdiction of the federal courts or of admiralty, no judge, and none of the learned
and alert members of the admiralty bar were able, for seventy-five years, to discern
the drastic change now asserted to have been contrived in admiralty jurisdiction by
the Act of 1875. In light of such impressive testimony from the past the claim of a
sudden discovery of a hidden latent meaning in an old technical phrase is surely
suspect.”
ART. III—JUDICIAL DEPARTMENT 863
“The history of archeology is replete with the unearthing of riches buried for
centuries. Our legal history does not, however, offer a single archeological discovery
of new, revolutionary meaning in reading an old judiciary enactment. [Here, the Jus-
tice footnotes: ‘For reasons that would take us too far afield to discuss, Erie Rail-
road Co. v. Tompkins, 304 U.S. 64, is no exception.’] The presumption is powerful
that such a far-reaching, dislocating construction as petitioner would now have us
find in the Act of 1875 was not uncovered by judges, lawyers or scholars for seventy-
five years because it is not there.” Romero v. International Terminal Operating Co.,
358 U.S. 354, 370–371 (1959).
1157 304 U.S. at 78. Justice Brandeis does not argue the constitutional issue and
does not cite either provisions of the Constitution or precedent beyond the views of
Justices Holmes and Field. Id. at 78–79. Justice Reed thought that Article III and
the Necessary and Proper Clause might contain authority. Id. at 91–92 (Justice Reed
concurring in the result). For a formulation of the constitutional argument in favor
of the Brandeis position, see H. FRIENDLY, BENCHMARKS 167–171 (1967). See also Bernhardt
v. Polygraphic Co. of America, 350 U.S. 198, 202, 208 (1956); Hanna v. Plumer, 380
U.S. 460, 471–472 (1965).
1158 304 U.S. at 79–80.
1159 304 U.S. at 78. Erie applies in equity as well as in law. Ruhlin v. New York
California v. Joint Highway District, 311 U.S. 180 (1940); Stoner v. New York Life
Ins. Co., 311 U.S. 464 (1940).
864 ART. III—JUDICIAL DEPARTMENT
stance,1161 even where the decisions bound no other state judge ex-
cept as they were persuasive on their merits. It has now retreated
from this position, concluding that federal judges are to give care-
ful consideration to lower state court decisions and to old, perhaps
outmoded decisions, but that they must find for themselves the state
law if the state’s highest court has not spoken definitively within a
period that would raise no questions about the continued viability
of the decision.1162 In the event of a state supreme court reversal of
an earlier decision, the federal courts are, of course, bound by the
later decision, and a judgment of a federal district court, correct
when rendered, must be reversed on appeal if the state’s highest
court in the meantime has changed the applicable law.1163 In diver-
sity cases that present conflicts of law problems, the Court has re-
iterated that the district court is to apply the law of the state in
which it sits, so that in a case in State A in which the law of State
B is applicable, perhaps because a contract was made there or a
tort was committed there, the federal court is to apply State A’s
conception of State B’s law.1164
The greatest difficulty in applying the Erie doctrine has been
in cases in which issues of procedure were important.1165 The pro-
cess was initiated in 1945 when the Court held that a state statute
of limitations, which would have barred suit in state court, would
bar it in federal court, although as a matter of federal law the case
still could have been brought in federal court.1166 The Court re-
garded the substance-procedure distinction as immaterial. “[S]ince
a federal court adjudicating a state-created right solely because of
1161 Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940).
1162 King v. Order of Commercial Travelers of America, 333 U.S. 153 (1948);
Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 (1956) (1910 decision
must be followed in absence of confusion in state decisions since there were “no de-
veloping line of authorities that cast a shadow over established ones, no dicta, doubts
or ambiguities . . . , no legislative development that promises to undermine the ju-
dicial rule”). See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967).
1163 Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538 (1941); Huddleston v.
Dwyer, 322 U.S. 232 (1944); Nolan v. Transocean Air Lines, 365 U.S. 293 (1961).
1164 Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487 (1941); Griffin v. Mc-
Coach, 313 U.S. 498 (1941); Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953);
Nolan v. Transocean Air Lines, 365 U.S. 293 (1961).
1165 Interestingly enough, 1938 marked what seemed to be a switching of posi-
tions vis-a-vis federal and state courts of substantive law and procedural law. Un-
der Tyson, federal courts in diversity actions were free to formulate a federal com-
mon law, while they were required by the Conformity Act, § 5, 17 Stat. 196 (1872),
to conform their procedure to that of the state in which the court sat. Erie then
ruled that state substantive law was to control in federal court diversity actions,
while by implication matters of procedure in federal court were subject to congres-
sional governance. Congress authorized the Court to promulgate rules of civil proce-
dure, 48 Stat. 1064 (1934), which it did in 1938, a few months after Erie was de-
cided. 302 U.S. 783.
1166 Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
ART. III—JUDICIAL DEPARTMENT 865
making unsuccessful plaintiffs liable for all expenses and requiring security for such
expenses as a condition of proceeding applicable in federal court); Woods v. Inter-
state Realty Co., 337 U.S. 535 (1949) (state statute barring foreign corporation not
qualified to do business in the state applies in federal court); Ragan v. Merchants
Transfer & Warehouse Co., 337 U.S. 530 (1949) (state rule determinative when an
action is begun for purposes of statute of limitations applicable in federal court al-
though a Federal Rule of Civil Procedure states a different rule).
1170 Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958).
1171 Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The decision
was five-to-four, so that the precedent may or may not be stable for future applica-
tion.
866 ART. III—JUDICIAL DEPARTMENT
1956). The contrary view was implied in Levinson v. Deupree, 345 U.S. 648, 651
(1953), and by Justice Jackson in D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447,
466–67, 471–72 (1942) (concurring opinion). See Wichita Royalty Co. v. City Na-
tional Bank, 306 U.S. 103 (1939).
1177 Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). See also Na-
tional Metropolitan Bank v. United States, 323 U.S. 454 (1945); D’Oench, Duhme &
Co. v. FDIC, 315 U.S. 447 (1942); United States v. Standard Rice Co., 323 U.S. 106
(1944); United States v. Acri, 348 U.S. 211 (1955); Ivanhoe Irrigation District v. Mc-
Cracken, 357 U.S. 275 (1958); Bank of America Nat’l Trust & Savings Ass’n v. Parnell,
352 U.S. 29 (1956). But see United States v. Yazell, 382 U.S. 341 (1966). But see
O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994).
1178 United States v. Standard Oil Co., 332 U.S. 301 (1947). Federal law applies
in maritime tort cases brought on the “law side” of the federal courts in diversity
cases. Pope & Talbot v. Hawn, 346 U.S. 406 (1953).
ART. III—JUDICIAL DEPARTMENT 867
1179 Howard v. Lyons, 360 U.S. 593 (1959). Matters concerned with our foreign
relations also are governed by federal law in diversity. Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398 (1964). Federal common law also governs a government con-
tractor defense in certain cases. Boyle v. United Technologies Corp., 487 U.S. 500
(1988).
1180 Free v. Bland, 369 U.S. 663 (1962); Yiatchos v. Yiatchos, 376 U.S. 306 (1964).
1181 The quoted Brandeis phrase is in Erie Railroad Co. v. Tompkins, 304 U.S.
64, 78 (1938). On the same day Erie was decided, the Court, in an opinion by Jus-
tice Brandeis, held that the issue of apportionment of the waters of an interstate
stream between two states “is a question of ‘federal common law.’ ” Hinderlider v.
La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938). On the matter,
see Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
1182 2 M. Farrand, supra at 162, 171, 184.
1183 Id. at 400–401.
1184 Id. at 431.
1185 See Pawlet v. Clark, 13 U.S. (9 Cr.) 292 (1815). Cf. City of Trenton v. New
Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 303
U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938).
868 ART. III—JUDICIAL DEPARTMENT
eign does not affect the continuity or rights of national sovereignty, including the
right to bring suit or to continue one that has been brought.
1192 Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938), citing Jones
v. United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R.R., 265 U.S.
573 (1924). Whether a government is to be regarded as the legal representative of a
foreign state is, of course, a political question.
1193 Ex parte Peru, 318 U.S. 578, 589 (1943), distinguishing Compania Espanola
v. The Navemar, 303 U.S. 68 (1938), which held that where the Executive Depart-
ment neither recognizes nor disallows the claim of immunity, the court is free to
examine that question for itself. Under the latter circumstances, however, a claim
that a foreign vessel is a public ship and immune from suit must be substantiated
to the satisfaction of the federal court.
ART. III—JUDICIAL DEPARTMENT 869
benefits which the Court cited as not extending to foreign states as litigant included
exemption from costs and from giving discovery. Decisions were also cited to the
effect that a sovereign plaintiff “should so far as the thing can be done, be put in
the same position as a body corporate.”
1195 National Bank v. Republic of China, 348 U.S. 356, 361 (1955), citing 26 Dept.
State Bull. 984 (1952), in which the Department “pronounced broadly against recog-
nizing sovereign immunity for the commercial operations of a foreign government.”
1196 Guaranty Trust Co. v. United States, 304 U.S. 126, 135, 137 (1938), citing
precedents to the effect that a sovereign plaintiff “should be put in the same posi-
tion as a body corporate.”
1197 30 U.S. (5 Pet.) 1, 16–20 (1831).
1198 Hodgson & Thompson v. Bowerbank, 9 U.S. (5 Cr.) 303 (1809).
870 ART. III—JUDICIAL DEPARTMENT
sagne v. Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had
jurisdiction over a proceeding to impeach its former decree, although the parties were
new and were both aliens.
1201 Browne v. Strode, 9 U.S. (5 Cr.) 303 (1809).
1202 But, in § 13 of the Judiciary Act of 1789, 1 Stat. 80, Congress did so pur-
port to convey the jurisdiction and the statutory conveyance exists today. 28 U.S.C.
§ 1251. It does not, however, exhaust the listing of the Constitution.
1203 2 U.S. (2 Dall.) 419 (1793). In an earlier case, the point of jurisdiction was
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
ton, 111 U.S. 252 (1884); Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884). Such
suits could be brought and maintained in state courts as well. Plaquemines Tropical
Fruit Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel. Popovici v. Agler, 280 U.S.
379 (1930).
1211 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
1212 127 U.S. at 297. See also the dictum in Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 398–99 (1821); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431–32 (1793).
872 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1213 Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). The Chief Justice declared
of the word “sparingly” in this context is all but ubiquitous. E.g., Wyoming v. Okla-
homa, 502 U.S. 437, 450 (1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981);
United States v. Nevada, 412 U.S. 534, 538 (1973).
1217 Texas v. New Mexico, 462 U.S. 554, 570 (1983).
1218 Illinois v. City of Milwaukee, 406 U.S. 91, 93–94 (1972). In this case, and in
Washington v. General Motors Corp., 406 U.S. 109 (1972), and Ohio v. Wyandotte
Chemicals Corp., 401 U.S. 493 (1971), the Court declined to permit adjudication of
environmental pollution cases manifestly within its original jurisdiction because the
nature of the cases required the resolution of complex, novel, and technical factual
questions not suitable for resolution at the Court’s level as a matter of initial deci-
sion, but which could be brought in the lower federal courts. Not all such cases,
however, were barred. Vermont v. New York, 406 U.S. 186 (1972) (granting leave to
file complaint). In other instances, notably involving “political questions,” cf. Massa-
ART. III—JUDICIAL DEPARTMENT 873
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
on the Supreme Court of the United States: A History of the Twenty-Fifth Section of
the Judiciary Act, 47 AM. L. REV. 1, 161 (1913). The most comprehensive consider-
ation of the constitutional issue is Hart, The Power of Congress to Limit the Juris-
diction of Federal Courts: An Exercise in Dialectic, 66 HARV, L. REV. 1362 (1953). See
Hart & Wechsler (6h ed.), supra at 287–305.
1221 3 U.S. (3 Dall.) 321 (1796).
1222 Judiciary Act of 1789, § 22, 1 Stat. 84.
874 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1223 Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321, 327 (1796). The dissent thought
that admiralty cases were not “civil actions” and thus that there was no appellate
review. Id. at 326–27. See also Clarke v. Bazadone, 5 U.S. (1 Cr.) 212 (1803); Turner
v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799).
1224 Durousseau v. United States, 10 U.S. (6 Cr.) 307, 313–314 (1810). “Courts
which are created by written law, and whose jurisdiction is defined by written law,
cannot transcend that jurisdiction.” Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807)
(Chief Justice Marshall). Marshall had earlier expressed his Durousseau thoughts
in United States v. More, 7 U.S. (3 Cr.) 159 (1805).
1225 Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847) (case held nonreviewable
able because certificate of division in circuit did not set forth questions in dispute
as provided by statute).
ART. III—JUDICIAL DEPARTMENT 875
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1227 73 U.S. (6 Wall.) 318 (1868). That Congress’s apprehensions might have had
a basis in fact, see C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES,
VOL. VI, PT. I: RECONSTRUCTION AND REUNION 1864–88 493–495 (1971). McCardle is fully
reviewed at pp. 433–514.
1228 By the Act of February 5, 1867, § 1, 14 Stat. 386, Congress had authorized
appeals to the Supreme Court from circuit court decisions denying habeas corpus.
Previous to this statute, the Court’s jurisdiction to review habeas corpus decisions,
based in § 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat fuzzily con-
ceived. Compare United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and Ex parte
Burford, 7 U.S. (3 Cr.) 448 (1806), with Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
The repealing statute was the Act of March 27, 1868, 15 Stat. 44. The repealed act
was reenacted March 3, 1885. 23 Stat. 437.
1229 Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). In the course of the opin-
ion, Chief Justice Chase speculated about the Court’s power in the absence of any
legislation in tones reminiscent of Marshall’s comments. Id. at 513.
1230 74 U.S. at 514.
1231 See, e.g., Justice Frankfurter’s remarks in National Mutual Ins. Co. v. Tide-
water Transfer Co., 337 U.S. 582, 655 (1948) (dissenting): “Congress need not give
this Court any appellate power; it may withdraw appellate jurisdiction once con-
ferred and it may do so even while a case is sub judice.” In The Francis Wright, 105
U.S. 381, 385–386 (1882), upholding Congress’s power to confine Supreme Court re-
view in admiralty cases to questions of law, the Court said: “[W]hile the appellate
power of this court under the Constitution extends to all cases within the judicial
power of the United States, actual jurisdiction under the power is confined within
such limits as Congress sees fit to prescribe. . . . What those powers shall be, and
to what extent they shall be exercised, are, and always have been, proper subjects
of legislative control. Authority to limit the jurisdiction necessarily carries with it
authority to limit the use of the jurisdiction. Not only may whole classes of cases be
kept out of the jurisdiction altogether, but particular classes of questions may be
subjected to reexamination and review, while others are not.” See also Luckenbuch
876 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
S. S. Co. v. United States, 272 U.S. 533, 537 (1926); American Construction Co. v.
Jacksonville, T. & K.W. Ry., 148 U.S. 372, 378 (1893); United States v. Bitty, 208
U.S. 393 (1908); United States v. Young, 94 U.S. 258 (1876). Numerous restrictions
on the exercise of appellate jurisdiction have been upheld. E.g., Congress for a hun-
dred years did not provide for a right of appeal to the Supreme Court in criminal
cases, except upon a certification of division by the circuit court: at first appeal was
provided in capital cases and then in others. F. Frankfurter & J. Landis, supra at
79, 109–120. Other limitations noted heretofore include minimum jurisdictional amounts,
restrictions of review to questions of law and to questions certified from the circuits,
and the scope of review of state court decisions of federal constitutional questions.
See Walker v. Taylor, 46 U.S. (5 How.) 64 (1847). Though McCardle is the only case
in which Congress successfully forestalled an expected decision by shutting off juris-
diction, other cases have been cut off while pending on appeal, either inadvertently,
Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866), or intentionally, Railroad Co.
v. Grant, 98 U.S. 398 (1878), by raising the requirements for jurisdiction without a
reservation for pending cases. See also Bruner v. United States, 343 U.S. 112 (1952);
District of Columbia v. Eslin, 183 U.S. 62 (1901).
1232 Supra, “One Supreme Court” and “Inferior Courts”.
1233 Article III, § 1, 2.
1234 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 374 (1816). For an effort
to reframe Justice Story’s position in modern analytical terms, see the writings of
Professors Amar and Clinton, supra and infra.
1235 Judiciary Act of 1789, 1 Stat. 73. See Warren, New Light on the History of
the Judiciary Act of 1789, 37 HARV. L. REV. 49 (1923). A modern study of the first
Judiciary Act that demonstrates the congressional belief in discretion to structure
jurisdiction is Casto, The First Congress’s Understanding of Its Authority over the
Federal Courts’ Jurisdiction, 26 B. C. L. REV. 1101 (1985).
1236 4 U.S. (4 Dall.) 8 (1799).
ART. III—JUDICIAL DEPARTMENT 877
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1237 “[N]or shall any district or circuit court have cognizance of any suit to re-
cover the contents of any promissory note or other chose in action in favour of an
assignee, unless a suit might have been prosecuted in such court to recover the said
contents if no assignment had been made, except in cases of foreign bills of ex-
change.” 1 Stat. 79.
1238 Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799).
1239 4 U.S. at 10.
1240 In Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807), Marshall observed that
“courts which are created by written law, and whose jurisdiction is defined by writ-
ten law, cannot transcend that jurisdiction.”
1241 United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812). Justice
Johnson continued: “All other Courts [besides the Supreme Court] created by the
general government possess no jurisdiction but what is given them by the power
that creates them, and can be vested with none but what the power ceded to the
general government will authorize them to confer.” See also Rhode Island v. Massa-
chusetts, 37 U.S. (12 Pet.) 657, 721–722 (1838).
1242 44 U.S. (3 How.) 236 (1845).
878 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
nals (inferior to the Supreme Court), for the exercise of the judicial
power, and of investing them with jurisdiction either limited, con-
current, or exclusive, and of withholding jurisdiction from them in
the exact degrees and character which to Congress may seem proper
for the public good.” 1243 Five years later, the validity of the as-
signee clause of the Judiciary Act of 1789 1244 was placed in issue
in Sheldon v. Sill,1245 in which diversity of citizenship had been cre-
ated by assignment of a negotiable instrument. It was argued that,
because the right of a citizen of any state to sue citizens of another
flowed directly from Article III, Congress could not restrict that right.
Unanimously, the Court rejected this contention and held that be-
cause the Constitution did not create inferior federal courts but rather
authorized Congress to create them, Congress was also empowered
to define their jurisdiction and to withhold jurisdiction of any of the
enumerated cases and controversies in Article III. The case and the
principle have been cited and reaffirmed numerous times,1246 includ-
ing in a case under the Voting Rights Act of 1965.1247
Congressional Control Over Writs and Processes.—The Ju-
diciary Act of 1789 contained numerous provisions relating to the
times and places for holding court, even of the Supreme Court, to
times of adjournment, appointment of officers, issuance of writs, ci-
tations for contempt, and many other matters which it might be
supposed courts had some authority of their own to regulate.1248 The
power to enjoin governmental and private action has frequently been
curbed by Congress, especially as the action has involved the power
1243 44 U.S. at 244–45. Justices McLean and Story dissented, arguing that the
right to construe the law in all matters of controversy is of the essence of judicial
power. Id. at 264.
1244 Supra.
1245 49 U.S. (8 How.) 441 (1850).
1246 E.g., Kline v. Burke Constr. Co., 260 U.S. 226, 233–234 (1922); Ladew v.
Tennessee Copper Co., 218 U.S. 357, 358 (1910); Venner v. Great Northern R. Co.,
209 U.S. 24, 35 (1908); Kentucky v. Powers, 201 U.S. 1, 24 (1906); Stevenson v. Fain,
195 U.S. 165, 167 (1904); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S.
511, 513–521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 251–252 (1868).
1247 By the Voting Rights Act of 1965, Congress required covered states that wished
to be relieved of coverage to bring actions to this effect in the District Court of the
District of Columbia. In South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966),
Chief Justice Warren for the Court said: “Despite South Carolina’s argument to the
contrary, Congress might appropriately limit litigation under this provision to a single
court in the District of Columbia, pursuant to its constitutional power under Art.
III, § 1, to ‘ordain and establish’ inferior federal tribunals.” See also Palmore v. United
States, 411 U.S. 389, 400–02 (1973); Swain v. Pressley, 430 U.S. 372 (1977); Taylor
v. St. Vincent’s Hosp., 369 F. Supp. 948 (D. Mont. 1973), aff’d, 523 F.2d 75 (9th Cir.),
cert. denied, 424 U.S. 948 (1976).
1248 1 Stat. 73. For a comprehensive discussion with itemization, see Frank-
furter & Landis, Power of Congress over Procedure in Criminal Contempts in ‘Infe-
rior’ Federal Courts: A Study in Separation of Powers, 37 HARV. L. REV. 1010 (1924).
ART. III—JUDICIAL DEPARTMENT 879
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1249 The Act of March 2, 1867, 10, 14 Stat. 475, as amended, now 26 U.S.C.
§ 7421 (federal taxes): Act of August 21, 1937, 50 Stat. 738, 28 U.S.C. § 1341 (state
taxes). See also Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 1342 (state rate-
making).
1250 Compare Snyder v. Marks, 109 U.S. 189 (1883), with Dodge v. Brady, 240
U.S. 122 (1916), with Allen v. Regents, 304 U.S. 439 (1938).
1251 F. FRANKFURTER & I. GREENE, THE LABOR INJUNCTION (1930).
1252 47 Stat. 70 (1932), 29 U.S.C. §§ 101–115.
1253 In Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938), the Court simply
declared: “There can be no question of the power of Congress thus to define and
limit the jurisdiction of the inferior courts of the United States.”
1254 E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); Broth-
erhood of Railroad Trainmen v. Chicago River & I. R.R., 353 U.S. 30 (1957); Boys
Markets v. Retail Clerks Union, 398 U.S. 235 (1970).
1255 56 Stat. 23 (1942).
1256 319 U.S. 182 (1943).
1257 321 U.S. 414 (1944).
1258 321 U.S. at 468. In United States v. Mendoza-Lopez, 481 U.S. 828 (1987),
purportedly in reliance on Yakus and other cases, the Court held that a collateral
880 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
14 U.S. (1 Wheat.) 304, 329–336 (1816). Nevertheless, Story apparently did not be-
lieve that the constitutional bestowal of jurisdiction was self-executing and accepted
the necessity of statutory conferral. White v. Fenner, 29 Fed. Cas. 1015 (No. 17,
547) (C.C.D.R.I. 1818) (Justice Story). In the present day, it has been argued that
the presence in the jurisdictional-grant provisions of Article III of the word “all” be-
fore the subject-matter grants—federal question, admiralty, public ambassadors –man-
dates federal court review at some level of these cases, whereas congressional discre-
tion exists with respect to party-defined jurisdiction, such as diversity. Amar, A Neo-
Federalist View of Article III: Separating the Two-Tiers of Federal Jurisdiction, 65
B.U. L. REV. 205 (1985); Amar, The Two-Tiered Structure of the Judiciary Act of 1789,
138 U. PA. L. REV. 1499 (1990). Rebuttal articles include Meltzer, The History and
Structure of Article III, id. at 1569; Redish, Text, Structure, and Common Sense in
the Interpretation of Article III, id. at 1633; and a response by Amar, id. at 1651.
An approach similar to Professor Amar’s is Clinton, A Mandatory View of Federal
Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U.
PA. L. REV. 741 (1984); Clinton, Early Implementation and Departures from the Con-
stitutional Plan, 86 COLUM. L. REV. 1515 (1986). Though perhaps persuasive as an
original interpretation, both theories confront a large number of holdings and dicta
as well as the understandings of the early Congresses revealed in their actions. See
Casto, The First Congress’s Understanding of its Authority over the Federal Court’s
Jurisdiction, 26 B.C. L. REV. 1101 (1985).
1260 Justice Brewer in his opinion for the Court in United States v. Detroit Tim-
ber & Lumber Co., 200 U.S. 321, 339 (1906), came close to asserting an indepen-
dent, inherent power of the federal courts, at least in equity. See also Paine Lumber
Co. v. Neal, 244 U.S. 459, 473, 475–476 (1917) (Justice Pitney dissenting). The ac-
ceptance by the Court of the limitations of the Norris-LaGuardia Act, among other
decisions, contradicts these assertions.
1261 The theory was apparently first developed in Ratner, Congressional Power
Over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157 (1960).
See also Ratner, Majoritarian Constraints on Judicial Review: Congressional Con-
trol of Supreme Court Jurisdiction, 27 VILL. L. REV. 929 (1981–82). The theory was
endorsed by Attorney General William French Smith as the view of the Department
of Justice. 128 CONG. REC. 9093–9097 (1982) (Letter to Hon. Strom Thurmond).
ART. III—JUDICIAL DEPARTMENT 881
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
fraction of which is touched on here. See Hart & Wechsler (6th ed.), supra at 275–
324.
1263 Johnson v. Robison, 415 U.S. 361, 366–367 (1974); Weinberger v. Salfi, 422
U.S. 749, 762 (1975); Bowen v. Michigan Academy of Family Physicians, 476 U.S.
667, 681 n.12 (1986); Webster v. Doe, 486 U.S. 592, 603 (1988). In the last cited
case, Justice Scalia attacked the reservation and argued for nearly complete congres-
sional discretion. Id. at 611–15 (concurring).
1264 74 U.S. (7 Wall) 506 (1869). For the definitive analysis of the case, see Van
of McCardle is strongly suggested by Felker v. Turpin, 518 U.S. 651 (1996). A 1996
congressional statute giving to federal courts of appeal a “gate-keeping” function over
the filing of second or successive habeas petitions limited further review, including
denying the Supreme Court appellate review of circuit court denials of motions to
file second or successive habeas petitions. Pub. L. 104–132, § 106, 110 Stat. 1214,
1220, amending 28 U.S.C. § 2244(b). Upholding the limitation, which was nearly iden-
tical to the congressional action at issue in McCardle and Yerger, the Court held
that its jurisdiction to hear appellate cases had been denied, but, just as in Yerger,
the statute did not annul the Court’s jurisdiction to hear habeas petitions filed as
original matters in the Supreme Court. No constitutional issue was thus presented.
1267 75 U.S. (8 Wall.) 85 (1869). Yerger is fully reviewed in C. FAIRMAN, HISTORY OF
THE SUPREME COURT OF THE UNITED STATES: VOL. VI, PT. I: RECONSTRUCTION AND REUNION,
1864–88 (New York: 1971), 558–618.
882 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
It thus remains unclear whether the Court would have followed its
language suggesting plenary congressional control if the effect had
been to deny absolutely an appeal from a denial of a writ of habeas
corpus.1268
Another Reconstruction Congress attempt to curb the judiciary
failed in United States v. Klein,1269 in which the Court voided a stat-
ute, couched in jurisdictional terms, which attempted to set aside
both the effect of a presidential pardon and the judicial effectua-
tion of such a pardon.1270 The statute declared that no pardon was
to be admissible in evidence in support of any claim against the
United States in the Court of Claims for the return of confiscated
property of Confederates nor, if already put in evidence in a pend-
ing case, should it be considered on behalf of the claimant by the
Court of Claims or by the Supreme Court on appeal. Proof of loy-
alty was required to be made according to provisions of certain con-
gressional enactments, and when judgment had already been ren-
dered on other proof of loyalty the Supreme Court on appeal should
have no further jurisdiction and should dismiss for want of jurisdic-
tion. Moreover, it was provided that the recitation in any pardon
which had been received that the claimant had taken part in the
rebellion was to be taken as conclusive evidence that the claimant
had been disloyal and was not entitled to regain his property.
The Court began by reaffirming that Congress controlled the ex-
istence of the inferior federal courts and the jurisdiction vested in
1268 Cf. Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C.Cir. 1949), rev’d on other
grounds sub nom. Johnson v. Eisentrager, 339 U.S. 763 (1950). Justice Douglas, with
whom Justice Black joined, said in Glidden Co. v. Zdanok, 370 U.S. 530, 605 n.11
(1962) (dissenting opinion): “There is a serious question whether the McCardle case
could command a majority view today.” Justice Harlan, however, cited McCardle with
apparent approval of its holding, id. at 567–68, while noting that Congress’s “author-
ity is not, of course, unlimited.” Id. at 568. McCardle was cited approvingly in Bruner
v. United States, 343 U.S. 112, 117 n.8 (1952), as illustrating the rule “that when a
law conferring jurisdiction is repealed without any reservation as to pending cases,
all cases fall with the law. . . .”
1269 80 U.S. (13 Wall.) 128 (1872). See C. Fairman, supra at 558–618. The semi-
of property of those persons in rebellion and authorized the President to issue par-
dons on such conditions as he deemed expedient, the latter provision being unneces-
sary in light of Article II, § 2, cl. 1. The President’s pardons all provided for restora-
tion of property, except slaves, and in United States v. Padelford, 76 U.S. (9 Wall.)
531 (1870), the Court held the claimant entitled to the return of his property on the
basis of his pardon. Congress thereupon enacted the legislation in question. 16 Stat.
235 (1870).
ART. III—JUDICIAL DEPARTMENT 883
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
them and the appellate jurisdiction of the Supreme Court. “But the
language of this provision shows plainly that it does not intend to
withhold appellate jurisdiction except as a means to an end. . . . It
is evident . . . that the denial of jurisdiction to this court, as well
as to the Court of Claims, is founded solely on the application of a
rule of decision, in causes pending, prescribed by Congress. The Court
has jurisdiction of the cause to a given point; but when it ascer-
tains that a certain state of things exists, its jurisdiction is to cease
and it is required to dismiss the cause for want of jurisdiction.”
“It seems to us that this is not an exercise of the acknowledged
power of Congress to make exceptions and prescribe regulations to
the appellate power.” 1271 The statute was void for two reasons; it
“infring[ed] the constitutional power of the Executive,” 1272 and it
“prescrib[ed] a rule for the decision of a cause in a particular way.” 1273
While the precise import of Klein—with its broad language prohib-
iting Congress prescribing a “rule of decision” that unduly invades
core judicial functions—has puzzled legal scholars,1274 it appears that
Klein broadly stands for the proposition that Congress may not usurp
the judiciary’s power to interpret and apply the law by directing a
court “how pre-existing law applies to particular circumstances” be-
fore it.1275 Few laws, however, have been struck down for improp-
erly prescribing a “rule of decision” that a court must follow, and
the Court has, in more recent years, declined to interpret Klein as
inhibiting Congress from “amend[ing] applicable law.” 1276 Instead,
the Court has recognized that Congress may, without running afoul
1271 United States v. Klein, 80 U.S. (13 Wall.) 128, 145–46 (1872).
1272 80 U.S. at 147.
1273 80 U.S. at 146.
1274 See Bank Markazi v. Peterson, No. 14–770, 578 U.S. ___, slip op. at 13 &
n.18 (2016) (noting various secondary sources describing the Klein opinion as being
“deeply puzzling,” “delphic,” and “baffling”).
1275 See id. at 12–13 & n.17. The Court in Bank Markazi noted that the precise
constitutional concern in Klein was tied to the President’s pardon power. Id. at 14–
15. Specifically, the Court viewed Klein as a case in which the Congress, lacking the
authority to impair directly the effect of a pardon, attempted to alter indirectly the
legal effect of a pardon by directing a court to a particular outcome, and, in so do-
ing, was compelling a court to a result that required the judiciary to act unconstitu-
tionally. See id. at 15 & n.19 (noting the constitutional infirmity identified by Klein
was that the challenged law “attempted to direct the result without altering the
legal standards governing the effect of a pardon—standards Congress was power-
less to prescribe.”).
1276 See, e.g., Bank Markazi, slip op. at 15 (holding that Klein’s prohibition “can-
not” be taken “at face value” because Congress has the power to “make valid stat-
utes retroactively applicable to pending cases”) (quoting R. FALLON, J. MANNING, D.
MELTZER, & D. SHAPIRO, HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYS-
TEM 324 (7th ed. 2015)); Plaut v. Spendthrift Farms, Inc., 514 U.S. 211, 218 (1995)
(noting that Klein’s “prohibition does not take hold when Congress ‘amend[s] appli-
cable law’ ”) (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441 (1992));
Robertson, 503 U.S. at 437–38, 441.
884 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1277 See Bank Markazi, slip op. at 16. While retroactive legislation, standing alone,
permitting timber harvesting, altering the outcome of pending litigation over the
permissibility of such harvesting).
1279 Bank Markazi, slip op. at 21.
1280 Id. The Court’s holding in Bank Markazi may have been influenced by the
case touching on foreign affairs, “a domain in which the controlling role of the politi-
cal branches is both necessary and proper.” Id. at 22. In concluding its opinion in
Bank Markazi, the Court, citing to long-established historical practices in the realm
of foreign affairs, “stress[ed]” that congressional regulation of claims over foreign-
state property generally does not “inva[de] upon the Article III judicial power.” Id.
at 22–23.
1281 See Bank Markazi, slip op. at 18–19. For example, the Bank Markazi Court
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920); St. Joseph Stock
Yards Co. v. United States, 298 U.S. 38 (1936).
1283 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.)
272 (1856).
1284 285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented.
1285 285 U.S. at 56, 60, 64.
1286 See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50
(1982) (plurality opinion), and id. at 100–03, 109–11 (Justice White dissenting) (dis-
cussing the due process/Article III basis of Crowell). Both the plurality and the dis-
sent agreed that later cases had “undermined” the constitutional/jurisdictional fact
analysis. Id. at 82, n.34; 110 n.12. For other discussions, see Jacobellis v. Ohio, 378
886 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
U.S. 184, 190 (1964) (Justice Brennan announcing judgment of the Court, joined by
Justice Goldberg); Pickering v. Board of Education, 391 U.S. 563, 578–79 (1968); Agosto
v. INS, 436 U.S. 748, 753 (1978); United States v. Raddatz, 447 U.S. 667, 682–84
(1980), and id. at 707–12 (Justice Marshall dissenting).
1287 Compare Permian Basin Area Rate Cases, 390 U.S. 747, 767, 792 (1968);
Cordillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947); South Chicago Coal & Dock
Co. v. Bassett, 309 U.S. 251 (1940). Justice Frankfurter was extremely critical of
Crowell. Estep v. United States, 327 U.S. 114, 142 (1946); City of Yonkers v. United
States, 320 U.S. 685 (1944).
1288 Williams v. Rhodes, 393 U.S. 23, 29 (1968). The elder Justice Harlan per-
haps had the same thought in mind when he said that, with regard to Congress’s
power over jurisdiction, “What such exceptions and regulations should be it is for
Congress, in its wisdom, to establish, having of course due regard to all the provi-
sions of the Constitution.” United States v. Bitty, 208 U.S. 393, 399–400 (1908).
1289 52 Stat. 1060, 29 U.S.C. § 201.
1290 Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied,
335 U.S. 887 (1948). See also Seese v. Bethlehem Steel Co., 168 F.2d 58, 65 (4th Cir.
1948). For later dicta, see Johnson v. Robison, 415 U.S. 361, 366–67 (1974); Weinberger
v. Salfi, 422 U.S. 749, 761–62 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201–
02, 204 (1977); Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978); Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 681 n.12 (1986); Webster v.
Doe, 486 U.S. 592, 603 (1988); but see id. at 611–15 (Justice Scalia dissenting). Note
the relevance of United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
1291 169 F.2d at 257.
ART. III—JUDICIAL DEPARTMENT 887
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1294 See 28 U.S.C. §§ 1251, 1331 et seq. Indeed, the presumption is that state
courts enjoy concurrent jurisdiction, and Congress must explicitly or implicitly con-
fine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co.
v. Mobil Oil Corp., 453 U.S. 473, 477–84 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990);
Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). Federal courts have
exclusive jurisdiction of the federal antitrust laws, even though Congress has not
spoken expressly or impliedly. See General Investment Co. v. Lake Shore & Michi-
gan Southern Ry., 260 U.S. 261, 287 (1922). Justice Scalia has argued that, inas-
much as state courts have jurisdiction generally because federal law is law for them,
Congress can provide exclusive federal jurisdiction only by explicit and affirmative
statement in the text of the statute, Tafflin v. Levitt, 493 U.S. at 469, but as can be
seen that is not now the rule.
1295 Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
1296 Through the “saving to suitors” clause, 28 U.S.C. § 1333(1). See Madruga v.
Supreme Court, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was over-
turned by the Eleventh Amendment; by suits in diversity or removal from state courts
where diversity existed, 1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 77,
and, subsequently, by removal from state courts of certain actions. 3 Stat. 198. And
for some unknown reason, Congress passed in 1793 a statute prohibiting federal
court injunctions against state court proceedings. See Toucey v. New York Life Ins.
Co., 314 U.S. 118, 120–32 (1941).
1299 Act of March 3, 1875, 18 Stat. 470.
ART. III—JUDICIAL DEPARTMENT 889
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1300 Civil Rights Act of 1871, § 1, 17 Stat. 13. The authorization for equitable
tin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); Cohens v. Virginia, 19 U.S. (6
Wheat.) 264 (1821); Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). For studies,
see Note, Final Disposition of State Court Decisions Reversed and Remanded by the
Supreme Court, October Term 1931 to October Term 1940, 55 HARV. L. REV. 1357 (1942);
Note, Evasion of Supreme Court Mandates in Cases Remanded to State Courts Since
1941, 67 HARV. L. REV. 1251 (1954); Schneider, State Court Evasion of United States
Supreme Court Mandates: A Reconsideration of the Evidence, 7 VALP. U. L. REV. 191
(1973).
1303 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). See 2 W. CROSSKEY,
POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 785–817 (1953); 1 C.
WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 442–453 (1926). For recent ex-
amples, see NAACP v. Alabama, 360 U.S. 240, 245 (1959); NAACP v. Alabama ex
rel. Flowers, 377 U.S. 288 (1964), after remand, 277 Ala. 89, 167 So.2d 171 (1964);
Stanton v. Stanton, 429 U.S. 501 (1977); General Atomic Co. v. Felter, 436 U.S. 493
(1978).
1304 It does not appear that mandamus has ever actually issued. See In re Blake,
175 U.S. 114 (1899); Ex parte Texas, 315 U.S. 8 (1942); Fisher v. Hurst, 333 U.S.
147 (1948); Lavender v. Clark, 329 U.S. 674 (1946); General Atomic Co. v. Felter,
436 U.S. 493 (1978).
1305 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); McCulloch v. Mary-
land, 17 U.S. (4 Wheat.) 316, 437 (1819); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
239 (1824); Williams v. Bruffy, 102 U.S. 248 (1880) (entry of judgment); Tyler v. Maguire,
84 U.S. (17 Wall.) 253 (1873) (award of execution); Stanley v. Schwalby, 162 U.S.
255 (1896); Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 (1885)
(remand with direction to enter a specific judgment). See 28 U.S.C. §§ 1651(a), 2106.
890 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1306 See 18 U.S.C. § 401. In United States v. Shipp, 203 U.S. 563 (1906), 214
U.S. 386 (1909); 215 U.S. 580 (1909), on action by the Attorney General, the Court
appointed a commissioner to take testimony, rendered judgment of conviction, and
imposed sentence on a state sheriff who had conspired with others to cause the lynch-
ing of a prisoner in his custody after the Court had allowed an appeal from a circuit
court’s denial of a petition for a writ of habeas corpus. A question whether a probate
judge was guilty of contempt of an order of the Court in failing to place certain
candidates on the ballot was certified to the district court, over the objections of
Justices Douglas and Harlan, who wished to follow the Shipp practice. In re Herndon,
394 U.S. 399 (1969). See In re Herndon, 325 F. Supp. 779 (M.D. Ala. 1971).
1307 1 C. Warren, supra at 729–79.
1308 Id. at 732–36.
1309 31 U.S. (6 Pet.) 515 (1832).
1310 See “Organization of Courts, Tenure, and Compensation of Judges,” supra.
1311 Judiciary Act of 1789, §§ 9, 11, 1 Stat. 76, 78; see also id. at § 25, 1 Stat. 85.
1312 E.g., Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine & Spirits
Act, 1 Stat. 376 (1794); Fugitive Slave Act, 1 Stat. 302 (1794); Naturalization Act of
1795, 1 Stat. 414; Alien Enemies Act of 1798, 1 Stat. 577. State courts in 1799 were
ART. III—JUDICIAL DEPARTMENT 891
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
the Embargo Acts, the Fugitive Slave Law, and other measures,1313
and, in Prigg v. Pennsylvania,1314 involving the Fugitive Slave Law,
the Court indicated that the states could not be compelled to en-
force federal law. After a long period, however, Congress resumed
its former practice,1315 which the Court sustained,1316 and it went
even further in the Federal Employers’ Liability Act by not only giv-
ing state courts concurrent jurisdiction but also by prohibiting the
removal of cases begun in state courts to the federal courts.1317
When Connecticut courts refused to enforce an FELA claim on
the ground that to do so was contrary to the public policy of the
state, the Court held on the basis of the Supremacy Clause that,
when Congress enacts a law and declares a national policy, that
policy is as much Connecticut’s and every other state’s as it is of
the collective United States.1318 The Court’s suggestion that the act
could be enforced “as of right, in the courts of the States when their
jurisdiction, as prescribed by local laws, is adequate to the occa-
sion,” 1319 leaving the impression that state practice might in some
instances preclude enforcement in state courts, was given body when
the Court upheld New York’s refusal to adjudicate an FELA claim
that fell in a class of cases in which claims under state law would
not be entertained.1320 “[T]here is nothing in the Act of Congress
that purports to force a duty upon such Courts as against an other-
wise valid excuse.” 1321 However, “[a]n excuse that is inconsistent
with or violates federal law is not a valid excuse: The Supremacy
Clause forbids state courts to dissociate themselves from federal law
vested with jurisdiction to try criminal offenses against the postal laws. 1 Stat. 733,
28. The Act of March 3, 1815, 3 Stat. 244, vested state courts with jurisdiction of
complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfei-
tures. See Warren, Federal Criminal Laws and State Courts, 38 HARV. L. REV. 545,
577–581 (1925).
1313 Embargo Acts, 2 Stat. 453, 473, 499, 506, 528, 550, 605, 707 (1808–1812); 3
rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950), with McKnett v. St. Louis & S.F.
Ry., 292 U.S. 230 (1934). It appears that generally state procedure must yield to
federal when it would make a difference in outcome. Compare Brown v. Western Ry.
of Alabama, 338 U.S. 294 (1949), and Dice v. Akron, C. & Y. R.R., 342 U.S. 359
(1952), with Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916).
892 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
ing down New York statute that gave the state’s supreme courts—its trial courts of
general jurisdiction—jurisdiction over suits brought under 42 U.S.C. § 1983, except
in the case of suits seeking money damages from corrections officers, whether brought
under federal or state law).
1324 556 U.S. ___, No. 07–10374, slip op. at 9 (New York statute found, “con-
trary to Congress’s judgment [in 42 U.S.C. § 1983,] that all persons who violate fed-
eral rights while acting under color of state law shall be held liable for damages”).
1325 330 U.S. 386 (1947).
1326 330 U.S. at 387.
1327 330 U.S. at 389. See, for a discussion as well as an extension of Testa, FERC
v. Mississippi, 456 U.S. 742 (1982). Cases since Testa requiring state court enforce-
ment of federal rights have generally concerned federal remedial laws. E.g., Charles
Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Sullivan v. Little Hunting Park,
396 U.S. 229 (1969). The Court has approved state court adjudication under 42 U.S.C.
§ 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980), but, curiously, in Martinez v.
California, 444 U.S. 277, 283 n.7 (1980) (emphasis by Court), it noted that it has
“never considered . . . the question whether a State must entertain a claim under
1983.” See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 234 n.7
(1987) (continuing to reserve question). But, with Felder v. Casey, 487 U.S. 131 (1988),
and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems dubious that state
courts could refuse. Enforcement is not limited to federal statutory law; federal com-
mon law must similarly be enforced. Free v. Bland, 369 U.S. 663 (1962).
ART. III—JUDICIAL DEPARTMENT 893
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
Harlan, Clark, and Stewart dissented, arguing that a state should have power to
enjoin vexatious, duplicative litigation which would have the effect of thwarting a
state-court judgment already entered. See also Baltimore & Ohio R.R. v. Kepner,
314 U.S. 44, 56 (1941) (Justice Frankfurter dissenting). In Riggs v. Johnson County,
73 U.S. (6 Wall.) 166 (1868), the general rule was attributed to the complete inde-
pendence of state and federal courts in their spheres of action, but federal courts, of
course may under certain circumstances enjoin actions in state courts.
1329 McKim v. Voorhies, 11 U.S. (7 Cr.) 279 (1812); Riggs v. Johnson County, 73
any power to release by habeas corpus persons in custody pursuant to federal author-
ity. Ableman v. Booth, 62 U.S. (21 How.) 506 (1859); Tarble’s Case, 80 U.S. (13 Wall.)
397 (1872).
1331 Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair Assessment in Real
Estate Ass’n v. McNary, 454 U.S. 100 (1981), with id. at 119–25 (Justice Brennan
concurring, joined by three other Justices).
1332 Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 458, 488 (1900).
Recent decisions emphasize comity as the primary reason for restraint in federal
court actions tending to interfere with state courts. E.g., O’Shea v. Littleton, 414
U.S. 488, 499–504 (1974); Huffman v. Pursue, Ltd., 420 U.S. 592, 599–603 (1975);
Trainor v. Hernandez, 431 U.S. 434, 441 (1977); Moore v. Sims, 442 U.S. 415, 430
(1979). The Court has also cited comity as a reason to restrict access to federal ha-
beas corpus. Francis v. Henderson, 425 U.S. 536, 541 and n.31 (1976); Wainwright
894 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
v. Sykes, 433 U.S. 72, 83, 88, 90 (1977); Engle v. Isaac, 456 U.S. 107, 128–29 (1982).
See also Rosewell v. LaSalle National Bank, 450 U.S. 503 (1981); Fair Assessment
in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981) (comity limits federal court
interference with state tax systems); Levin v. Commerce Energy, Inc., 560 U.S. ___,
No. 09–223, slip op. (2010) (comity has particular force in cases challenging consti-
tutionality of state taxation of commercial activities). And see Missouri v. Jenkins,
495 U.S. 33 (1990).
1333 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 13 (4th ed. 1983). The
basic doctrine was formulated by Justice Frankfurter for the Court in Railroad Comm’n
v. Pullman Co., 312 U.S. 496 (1941). Other strands of the doctrine are that a federal
court should refrain from exercising jurisdiction in order to avoid needless conflict
with a state’s administration of its own affairs, Burford v. Sun Oil Co., 319 U.S. 315
(1943); Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 341 (1951); Great
Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943); Martin v. Creasy, 360
U.S. 219 (1959); Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983);
New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S.
350 (1989) (carefully reviewing the scope of the doctrine), especially where state law
is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943); County of Al-
legheny v. Frank Mashuda Co., 360 U.S. 185 (1959); Louisiana Power & Light Co. v.
City of Thibodaux, 360 U.S. 25 (1959). See also Clay v. Sun Insurance Office Ltd.,
363 U.S. 207 (1960). Also, although pendency of an action in state court will not
ordinarily cause a federal court to abstain, there are “exceptional” circumstances in
which it should. Colorado River Water Conservation Dist. v. United States, 424 U.S.
800 (1976); Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978); Arizona v. San
Carlos Apache Tribe, 463 U.S. 545 (1983). But, in Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996), an exercise in Burford abstention, the Court held that federal
courts have power to dismiss or remand cases based on abstention principles only
where relief being sought is equitable or otherwise discretionary but may not do so
in common-law actions for damages.
1334 City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958); Zwickler v.
Koota, 389 U.S. 241, 249–51 (1967). See Babbitt v. United Farm Workers Nat’l. Union,
442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534–35 (1965)).
1335 Harman v. Forssenius, 380 U.S. 528, 534–35 (1965); Babbitt v. United Farm
Workers Nat’l., 442 U.S. 289, 305–12 (1979). Abstention is not proper simply to af-
ford a state court the opportunity to hold that a state law violates the federal Con-
stitution. Wisconsin v. Constantineau, 400 U.S. 433 (1971); Zablocki v. Redhail, 434
U.S. 374, 379 n.5 (1978); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271 n.4
(1977); City of Houston v. Hill, 482 U.S. 451 (1987) (“A federal court may not prop-
erly ask a state court if it would care in effect to rewrite a statute”). But if the
statute is clear and there is a reasonable possibility that the state court would find
it in violation of a distinct or specialized state constitutional provision, abstention
may be proper, Harris County Comm’rs Court v. Moore, 420 U.S. 77 (1975); Reetz v.
Bozanich, 397 U.S. 82 (1970), although not if the state and federal constitutional
provisions are alike. Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976).
ART. III—JUDICIAL DEPARTMENT 895
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1336 American Trial Lawyers Ass’n v. New Jersey Supreme Court, 409 U.S. 467,
469 (1973); Harrison v. NAACP, 360 U.S. 167 (1959). Dismissal may be necessary if
the state court will not accept jurisdiction while the case is pending in federal court.
Harris County Comm’rs v. Moore, 420 U.S. 77, 88 n.14 (1975).
1337 E.g., Spector Motor Service v. McLaughlin, 323 U.S. 101 (1944); Louisiana
Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); Harrison v. NAACP,
360 U.S. 167 (1959).
1338 McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963); Griffin v. School Board,
377 U.S. 218 (1964); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324
(1964); Baggett v. Bullitt, 377 U.S. 360 (1964); Davis v. Mann, 377 U.S. 678 (1964);
Dombrowski v. Pfister, 380 U.S. 479 (1965); Harman v. Forssenius, 380 U.S. 528
(1965); Zwickler v. Koota, 389 U.S. 241 (1967); Wisconsin v. Constanineau, 400 U.S.
433 (1971).
1339 England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 426 (1964)
(Justice Douglas concurring). See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS
305 (4th ed. 1983).
1340 Baggett v. Bullitt, 377 U.S. 360, 378–379 (1964). Both consequences may be
380 U.S. 479 (1965), with Younger v. Harris, 401 U.S. 37 (1971), and Samuels v.
Mackell, 401 U.S. 66 (1971). See Babbitt v. United Farm Workers, 442 U.S. 289,
305–312 (1979).
1343 401 U.S. 37 (1971). There is room to argue whether the Younger line of cases
represents the abstention doctrine at all, but the Court continues to refer to it in
those terms. E.g., Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992); Sprint Commc’ns,
Inc. v. Jacobs, 571 U.S. ___, No. 12–815, slip op. (2013).
896 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
son, 307 U.S. 268 (1939). But see Alabama Public Service Comm’n v. Southern Ry.,
341 U.S. 341 (1951). Exhaustion of state court remedies is required in habeas cor-
pus cases and usually in suits to restrain state court proceedings.
1346 Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). Where there are
pending administrative proceedings that fall within the Younger rule, a litigant must
exhaust. Younger v. Harris, 401 U.S. 37 (1971), as explicated in Ohio Civil Rights
Comm’n v. Dayton Christian School, Inc., 477 U.S. 619, 627 n.2 (1986). Under title
VII of the Civil Rights Act of 1964, barring employment discrimination on racial
and other specified grounds, the EEOC may not consider a claim until a state agency
having jurisdiction over employment discrimination complaints has had at least 60
days to resolve the matter. 42 U.S.C. § 2000e–5(c). See Love v. Pullman Co., 404
U.S. 522 (1972). The Civil Rights of Institutionalized Persons Act contains “a spe-
cific, limited exhaustion requirement for adult prisoners bringing actions pursuant
to § 1983.” Patsy, 457 U.S. at 508.
1347 Toucey v. New York Life Ins. Co., 314 U.S. 118, 130–32 (1941).
1348 “[N]or shall a writ of injunction be granted to stay proceedings in any court
of a state . . . .” Ch. XXII, § 5, 1 Stat. 335 (1793), now, as amended, 28 U.S.C. § 2283.
1349 Durfee & Sloss, Federal Injunctions Against Proceedings in State Courts:
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1352 Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511 (1955); At-
lantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281 (1970).
See M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER ch.
10 (1980).
1353 The greatest difficulty is with the “expressly authorized by Act of Congress”
exception. No other Act of Congress expressly refers to § 2283 and the Court has
indicated that no such reference is necessary to create a statutory exception. Amal-
gamated Clothing Workers v. Richman Bros., 348 U.S. 511, 516 (1955). Compare Capi-
tal Service, Inc. v. NLRB, 347 U.S. 501 (1954). Rather, “in order to qualify as an
‘expressly authorized’ exception to the anti-injunction statute, an Act of Congress
must have created a specific and uniquely federal right or remedy, enforceable in a
federal court of equity, that could be frustrated if the federal court were not empow-
ered to enjoin a state court proceeding.” Mitchum v. Foster, 407 U.S. 225, 237 (1972).
Applying this test, the Court in Mitchum held that a 42 U.S.C. § 1983 suit is an
exception to § 2283 and that persons suing under this authority may, if they satisfy
the requirements of comity, obtain an injunction against state court proceedings. The
exception is, of course, highly constrained by the comity principle. On the difficulty
of applying the test, see Vendo Co. v. Lektco-Vend Corp., 433 U.S. 623 (1977) (frag-
mented Court on whether Clayton Act authorization of private suits for injunctive
relief is an “expressly authorized” exception to § 2283).
On the interpretation of the § 2283 exception for injunctions to protect or effec-
tuate a federal-court judgment, see Chick Kam Choo v. Exxon Corp., 486 U.S. 140
(1988).
1354 Thus, the Act bars federal court restraint of pending state court proceed-
ings but not restraint of the institution of such proceedings. Dombrowski v. Pfister,
380 U.S. 479, 484 n.2 (1965). Restraint is not barred if sought by the United States
or an officer or agency of the United States. Leiter Minerals v. United States, 352
U.S. 220 (1957); NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). Restraint is not barred
if the state court proceeding is not judicial but rather administrative. Prentis v. At-
lantic Coast Line Co., 211 U.S. 210 (1908); Roudebush v. Hartke, 405 U.S. 15 (1972).
Compare Hill v. Martin, 296 U.S. 393, 403 (1935), with Lynch v. Household Finance
Corp., 405 U.S. 538, 552–56 (1972).
1355 The statute is to be applied “to prevent needless friction between state and
federal courts.” Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4,
9 (1940); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S.
281, 285–86 (1970).
1356 Article IV, § 1, of the Constitution; 28 U.S.C. § 1738.
898 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
gation and foster reliance on adjudication, but also promote the co-
mity between state and federal courts that has been recognized as
a bulwark of the federal system.” 1357 42 U.S.C. § 1983 is not an
exception to the mandate of the res judicata statute.1358 An excep-
tion to § 1738 “will not be recognized unless a later statute con-
tains an express or implied partial repeal.” 1359 Thus, a claimant who
pursued his employment discrimination remedies through state ad-
ministrative procedures, as the federal law requires her to do (within
limits), and then appealed an adverse state agency decision to state
court will be precluded from bringing her federal claim to federal
court, since the federal court is obligated to give the state court de-
cision “full faith and credit.” 1360
Closely related is the Rooker-Feldman doctrine, holding that fed-
eral subject-matter jurisdiction of federal district courts does not
extend to review of state court judgments.1361 The Supreme Court,
not federal district courts, has such appellate jurisdiction. The doc-
trine thus prevents losers in state court from obtaining district court
review, but “does not otherwise override or supplant preclusion doc-
trine or augment the circumscribed doctrines that allow federal courts
to stay or dismiss proceedings in deference to state-court ac-
tions.” 1362
Three-Judge Court Act.—When the Court in Ex parte Young 1363
held that federal courts were not precluded by the Eleventh Amend-
ment from restraining state officers from enforcing state laws deter-
mined to be in violation of the federal Constitution, serious efforts
were made in Congress to take away the authority thus asserted,
but the result instead was legislation providing that suits in which
an interlocutory injunction was sought against the enforcement of
state statutes by state officers were to be heard by a panel of three
federal judges, rather than by a single district judge, with appeal
413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
1362 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005)
(Rooker-Feldman has no application when federal court proceedings have been initi-
ated prior to state court proceedings; preclusion law governs in that situation).
1363 209 U.S. 123 (1908).
ART. III—JUDICIAL DEPARTMENT 899
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
for permanent injunctions, 43 Stat. 936, and again in 1937 to apply to constitu-
tional attacks on federal statutes. 50 Stat. 752.
1365 Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte Collins, 277
U.S.C. §§ 1973b(a), 1973c, 1973h(c), and to certain suits by the Attorney General
under public accommodations and equal employment provisions of the 1964 Civil
Rights Act. 42 U.S.C. §§ 2000a–5(b), 2000e–6(b).
1367 Pub. L. 94–381, 90 Stat. 1119, 28 U.S.C. § 2284. In actions still required to
be heard by three-judge courts, direct appeals are still available to the Supreme Court.
28 U.S.C. § 1253.
1368 For example, one of the cases decided in Brown v. Board of Education, 347
U.S. 483 (1954), came from the Supreme Court of Delaware. In Scott v. Germano,
381 U.S. 407 (1965), the Court set aside an order of the district court refusing to
defer to the state court which was hearing an apportionment suit and said: “The
power of the judiciary of a State to require valid reapportionment or to formulate a
valid redistricting plan has not only been recognized by this Court but appropriate
action by the States has been specifically encouraged.” See also Scranton v. Drew,
379 U.S. 40 (1964).
900 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
citizens of other states, but, in Hans v. Louisiana, 134 U.S. 1 (1890), the Court deemed
it to embody principles of sovereign immunity that applied to unconsented suits by
its own citizens.
1370 In re Ayers, 123 U.S. 443 (1887).
1371 209 U.S. 123 (1908).
1372 The fiction is that while the official is a state actor for purposes of suit against
him, the claim that his action is unconstitutional removes the imprimatur of the
state that would shield him under the Eleventh Amendment. 209 U.S. at 159–60.
1373 28 U.S.C. § 2283 may be inapplicable because no state court proceeding is
pending or because the action is brought under 42 U.S.C. § 1983. Its application
may never be reached because a court may decide that equitable principles do not
justify injunctive relief. Younger v. Harris, 401 U.S. 37, 54 (1971).
1374 See “Abstention,” supra.
1375 The quoted phrase setting out the general principle is from the Judiciary
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1376 The older cases are Fenner v. Boykin, 271 U.S. 240 (1926); Spielman Motor
Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri Pac. R.R., 312 U.S. 45 (1941);
Watson v. Buck, 313 U.S. 387 (1941); Williams v. Miller, 317 U.S. 599 (1942); Doug-
las v. City of Jeannette, 319 U.S. 157 (1943). There is a stricter rule against federal
restraint of the use of evidence in state criminal trials. Stefanelli v. Minard, 342
U.S. 117 (1951); Pugach v. Dollinger, 365 U.S. 458 (1961). The Court reaffirmed the
rule in Perez v. Ledesma, 401 U.S. 82 (1971). State officers may not be enjoined
from testifying or using evidence gathered in violation of federal constitutional re-
strictions, Cleary v. Bolger, 371 U.S. 392 (1963), but the rule is unclear with regard
to federal officers and state trials. Compare Rea v. United States, 350 U.S. 214 (1956),
with Wilson v. Schnettler, 365 U.S. 381 (1961).
1377 E.g., Douglas v. City of Jeannette, 319 U.S. 157, 163–164 (1943); Stefanelli
v. Minard, 342 U.S. 117, 122 (1951). See also Terrace v. Thompson, 263 U.S. 197,
214 (1923), Future criminal proceedings were sometimes enjoined. E.g., Hague v.
CIO, 307 U.S. 496 (1939).
1378 380 U.S. 479 (1965). Grand jury indictments had been returned after the
the State’s criminal prosecution will not assure adequate vindication of constitu-
tional rights. They suggest that a substantial loss of or impairment of freedoms of
expression will occur if appellants must await the state court’s disposition and ulti-
mate review in this Court of any adverse determination. These allegations, if true,
clearly show irreparable injury.” 380 U.S. at 485–86.
1380 That is, a statute that reaches both protected and unprotected expression
and conduct.
1381 380 U.S. at 486.
902 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
state court on state law grounds and no new charge had been instituted.
1385 It was clear that the statute could not be construed by a state court to ren-
Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); Dyson v.
Stein, 401 U.S. 200 (1971); Byrne v. Karalexis, 401 U.S. 216 (1971). Justice Black
wrote the majority opinion in the first four of these cases; the other two were per
curiam opinions.
ART. III—JUDICIAL DEPARTMENT 903
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
and Marshall generally concurred in a restrained fashion. Id. at 56, 75, 93.
1390 401 U.S. at 54. On bad faith enforcement, see id. at 56 (Justices Stewart
Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943).
904 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
to preserve status quo while court considers whether to grant declaratory relief);
Wooley v. Maynard, 430 U.S. 705 (1977) (when declaratory relief is given, perma-
nent injunction may be issued if necessary to protect constitutional rights). How-
ever, it may not be easy to discern when state proceedings will be deemed to have
been instituted prior to the federal proceeding. E.g., Hicks v. Miranda, 422 U.S. 332
(1975); Huffman v. Pursue. Ltd., 420 U.S. 592 (1975); see also Hawaii Housing Auth.
v. Midkiff, 467 U.S. 229 (1984).
1396 Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982);
Moore v. Sims, 442 U.S. 415 (1979); Trainor v. Hernandez, 431 U.S. 434 (1977); Juidice
v. Vail, 430 U.S. 327 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (state
action to close adult theater under the state’s nuisance statute and to seize and sell
personal property used in the theater’s operations).
1397 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (holding that federal absten-
tion was warranted in a federal court action to block a state court order issued un-
der the state’s “lien and bond” authority). It was “the State’s [particular] interest in
protecting ‘the authority of the judicial system, so that its orders and judgments are
not rendered nugatory’ ” that merited abstention, and not merely a general state
interest in protecting ongoing civil proceedings from federal interference. Id. at 14
n.12 (quoting Juidice, 430 U.S. at 336 n.12).
1398 Oh. Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986).
The “judicial in nature” requirement is more fully explicated in New Orleans Public
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989).
ART. III—JUDICIAL DEPARTMENT 905
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1399 See New Orleans Pub. Serv., Inc., 491 U.S. at 368.
1400 571 U.S. ___, No. 12–815, slip op. (2013).
1401 Id. at 2.
1402 Id. at 8.
1403 Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) (Chief Justice Marshall); cf.
Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. Noia, 372 U.S. 391, 404–415 (1963).
The expansive language used when Congress in 1867 extended the habeas power of
federal courts to state prisoners “restrained of . . . liberty in violation of the consti-
tution, or of any treaty or law of the United States . . . ,” 14 Stat. 385, could have
encouraged an expansion of the writ to persons convicted after trial.
1404 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
1405 Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall, 117 U.S. 241 (1886);
Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo v. Hopkins, 118 U.S. 356 (1886).
1406 Ex parte Wilson, 114 U.S. 417 (1885); In re Nielsen, 131 U.S. 176 (1889); In
re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876); Ex parte
Bigelow, 113 U.S. 328 (1885). It is possible that the Court expanded the office of the
writ because its reviewing power over federal convictions was closely limited. F. Frank-
furter & J. Landis, supra. Once such review was granted, the Court began to re-
strict the use of the writ. E.g., Glasgow v. Moyer, 225 U.S. 420 (1912); In re Lincoln,
202 U.S. 178 (1906); In re Morgan, 203 U.S. 96 (1906).
1407 237 U.S. 309 (1915).
906 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
that federal constitutional rights cannot be adequately protected only by direct Su-
preme Court review of state court judgments but that independent review, on ha-
beas, must rest with federal judges. It is, of course, true that Brown coincided with
the extension of most of the Bill of Rights to the states by way of incorporation and
expansive interpretation of federal constitutional rights; previously, there was not a
substantial corpus of federal rights to protect through habeas. See Wright v. West,
505 U.S. 277, 297–99 (1992) (Justice O’Connor concurring). In Fay v. Noia, 372 U.S.
391 (1963), Justice Brennan, for the Court, and Justice Harlan, in dissent, engaged
in a lengthy, informed historical debate about the legitimacy of Brown and its prem-
ises. Compare id. at 401–24, with id. at 450–61. See the material gathered and cited
in Hart & Wechsler (6th ed.), supra at 1220–1248.
ART. III—JUDICIAL DEPARTMENT 907
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
Townsend v. Sain, 372 U.S. 293 (1963). These cases dealt, respectively, with the treat-
ment to be accorded a habeas petition in the three principal categories in which
they come to the federal court: when a state court has rejected petitioner’s claims
on the merits, when a state court has refused to hear petitioner’s claims on the mer-
its because she has failed properly or timely to present them, or when the petition
is a second or later petition raising either old or new, or mixed, claims. Of course,
as will be demonstrated infra, these cases have now been largely drained of their
force.
1412 Townsend v. Sain, 372 U.S. 293, 310–12 (1963). If the district judge con-
cluded that the habeas applicant was afforded a full and fair hearing by the state
court resulting in reliable findings, the Court said, he may, and ordinarily should,
defer to the state factfinding. Id. at 318. Under the 1966 statutory revision, a ha-
beas court must generally presume correct a state court’s written findings of fact
from a hearing to which the petitioner was a party. A state finding cannot be set
aside merely on a preponderance of the evidence and the federal court granting the
writ must include in its opinion the reason it found the state findings not fairly
supported by the record or the existence of one or more listed factors justifying dis-
regard of the factfinding. Pub. L. 89–711, 80 Stat. 1105, 28 U.S.C. § 2254(d). See
Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591 (1982); Mar-
shall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467 U.S. 1025 (1984); Parker
v. Dugger, 498 U.S. 308 (1991); Burden v. Zant, 498 U.S. 433 (1991). The presump-
tion of correctness does not apply to questions of law or to mixed questions of law
and fact. Miller v. Fenton, 474 U.S. 104, 110–16 (1985). However, in Wright v. West,
505 U.S. 277 (1992), the Justices argued inconclusively whether deferential review
of questions of law or especially of law and fact should be adopted.
1413 Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
not adequately developed at the state hearing; or (6) for any rea-
son it appears that the state trier of fact did not afford the habeas
applicant a full and fair fact hearing.1414
Second, Sanders v. United States 1415 dealt with two interre-
lated questions: the effects to be given successive petitions for the
writ, when the second or subsequent application presented grounds
previously asserted or grounds not theretofore raised. Emphasizing
that “[c]onventional notions of finality of litigation have no place
where life or liberty is at stake and infringement of constitutional
rights is alleged,” 1416 the Court set out generous standards for con-
sideration of successive claims. As to previously asserted grounds,
the Court held that controlling weight may be given to a prior de-
nial of relief if (1) the same ground presented was determined ad-
versely to the applicant before, (2) the prior determination was on
the merits, and (3) the ends of justice would not be served by reach-
ing the merits of the subsequent application, so that the habeas court
might but was not obligated to deny relief without considering the
claim on the merits.1417 With respect to grounds not previously as-
serted, a federal court considering a successive petition could re-
fuse to hear the new claim only if it decided the petitioner had de-
liberately bypassed the opportunity in the prior proceeding to raise
it; if not, “[n]o matter how many prior applications for federal col-
lateral relief a prisoner has made,” the court must consider the mer-
its of the new claim.1418
1414 372 U.S. at 313–18. Congress in 1966 codified the factors in somewhat dif-
ferent form but essentially codified Townsend. Pub. L. 89–711, 80 Stat. 1105, 28 U.S.C.
§ 2254. The Court believes that Congress neither codified Townsend nor precluded
the Court from altering the Townsend standards. Keeney v. Tamayo-Reyes, 504 U.S.
1, 10, n.5 (1992). Compare id. at 20–21 (Justice O’Connor dissenting). Keeney for-
mally overruled part of Townsend. Id. at 5.
1415 373 U.S. 1 (1963). Sanders was a § 2255 case, a federal prisoner petitioning
for postconviction relief. The Court applied the same liberal rules with respect to
federal prisoners as it did for state. See Kaufman v. United States, 394 U.S. 217
(1969). As such, the case has also been eroded by subsequent cases. E.g., Davis v.
United States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152 (1982).
1416 373 U.S. at 8. The statement accorded with the established view that prin-
ciples of res judicata were not applicable in habeas. E.g., Price v. Johnston, 334 U.S.
266 (1948); Wong Doo v. United States, 265 U.S. 239 (1924); Salinger v. Loisel, 265
U.S. 224 (1924). Congress in 1948 had appeared to adopt some limited version of
res judicata for federal prisoners but not for state prisoners, Act of June 25, 1948,
62 Stat. 965, 967, 28 U.S.C. §§ 2244, 2255, but the Court in Sanders held the same
standards applicable and denied the statute changed existing caselaw. 373 U.S. at
11–14. But see id. at 27–28 (Justice Harlan dissenting).
1417 373 U.S. at 15. In codifying the Sanders standards in 1966, Pub. L. 89–711,
80 Stat. 1104, 28 U.S.C. § 2244(b), Congress omitted the “ends of justice” language.
Although it was long thought that the omission probably had no substantive effect,
this may not be the case. Kuhlmann v. Wilson, 477 U.S. 436 (1986).
1418 373 U.S. at 17–19.
ART. III—JUDICIAL DEPARTMENT 909
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
with Davis v. United States, 411 U.S. 233 (1973), a federal-prisoner post-conviction
relief case, and Wainwright v. Sykes, 433 U.S. 72 (1977), but it was not formally
overruled until Coleman v. Thompson, 501 U.S. 722, 744–51 (1991).
1420 E.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Herb v.
Pitcairn, 324 U.S. 117 (1945). In the habeas context, the procedural-bar rules are
ultimately a function of the requirement that petitioners first exhaust state av-
enues of relief before coming to federal court.
1421 344 U.S. 443 (1953).
1422 Fay v. Noia, 372 U.S. 391, 424–34 (1963).
1423 372 U.S. at 438–40.
910 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
a high (to date) of 9,063, in 1975, 7,843 in 1980, 8,534 in 1985, 9,045 in 1986. On
relief afforded, no reliable figures are available, but estimates indicate that at most
4 percent of the filings result in either release or retrial. C. WRIGHT, A. MILLER, & E.
COOPER, FEDERAL PRACTICE AND PROCEDURE (1988 & supps.), § 4261, at 284–91.
1425 Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The present Court’s emphasis
in habeas cases is, of course, quite different from that of the Court in the 1963 tril-
ogy. Now, the Court favors decisions that promote finality, comity, judicial economy,
and channeling the resolution of claims into the most appropriate forum. Keeney v.
Tamayo-Reyes, 504 U.S. 1, 8–10 (1992). Overall, federalism concerns are critical. See
Coleman v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism.”
First sentence of opinion). The seminal opinion on which subsequent cases have drawn
is Justice Powell’s concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973).
He suggested that habeas courts should entertain only those claims that go to the
integrity of the fact-finding process, thus raising questions of the value of a guilty
verdict, or, more radically, that only those prisoners able to make a credible show-
ing of “factual innocence” could be heard on habeas. Id. at 256–58, 274–75. As will
be evident infra, some form of innocence standard now is pervasive in much of the
Court’s habeas jurisprudence.
1426 433 U.S. at 83; Stone v. Powell, 428 U.S. 465, 495 n.37 (1976); Francis v.
Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 391, 438 (1963). The
dichotomy between power and discretion goes all the way back to the case imposing
the rule of exhaustion of state remedies. Ex parte Royall, 117 U.S. 241, 251 (1886).
ART. III—JUDICIAL DEPARTMENT 911
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
First, the Court in search and seizure cases has returned to the
standard of Frank v. Mangum, holding that where the state courts
afford a criminal defendant the opportunity for a full and adequate
hearing on his Fourth Amendment claim, his only avenue of relief
in the federal courts is to petition the Supreme Court for review
and that he cannot raise those claims again in a habeas peti-
tion.1427 Grounded as it is in the Court’s dissatisfaction with the
exclusionary rule, the case has not since been extended to other con-
stitutional grounds,1428 but the rationale of the opinion suggests the
likelihood of reaching other exclusion questions.1429
Second, the Court has formulated a “new rule” exception to ha-
beas cognizance. That is, subject to two exceptions,1430 a case de-
cided after a petitioner’s conviction and sentence became final may
not be the predicate for federal habeas relief if the case announces
or applies a “new rule.” 1431 A decision announces a new rule “if the
result was not dictated by precedent existing at the time the defen-
dant’s conviction became final.” 1432 If a rule “was susceptible to de-
bate among reasonable minds,” it could not have been dictated by
precedent, and therefore it must be classified as a “new rule.” 1433
1427 Stone v. Powell, 428 U.S. 465 (1976). The decision is based as much on the
Court’s dissatisfaction with the exclusionary rule as with its desire to curb habeas.
Holding that the purpose of the exclusionary rule is to deter unconstitutional searches
and seizures rather than to redress individual injuries, the Court reasoned that no
deterrent purpose was advanced by applying the rule on habeas, except to encour-
age state courts to give claimants a full and fair hearing. Id. at 493–95.
1428 Stone does not apply to a Sixth Amendment claim of ineffective assistance
of counsel in litigating a search and seizure claim. Kimmelman v. Morrison, 477 U.S.
365, 382–383 (1986). See also Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimi-
nation in selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307 (1979)
(insufficient evidence to satisfy reasonable doubt standard).
1429 Issues of admissibility of confessions (Miranda violations) and eyewitness
identifications are obvious candidates. See, e.g., Duckworth v. Eagan, 492 U.S. 195,
205 (1989) (Justice O’Connor concurring); Brewer v. Williams, 430 U.S. 387, 413–14
(1977) (Justice Powell concurring), and id. at 415 (Chief Justice Burger dissenting);
Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977) (reserving Miranda).
1430 The first exception permits the retroactive application on habeas of a new
rule if the rule places a class of private conduct beyond the power of the state to
proscribe or addresses a substantive categorical guarantee accorded by the Constitu-
tion. The rule must, to say it differently, either decriminalize a class of conduct or
prohibit the imposition of a particular punishment on a particular class of persons.
The second exception would permit the application of “watershed rules of criminal
procedure” implicating the fundamental fairness and accuracy of the criminal pro-
ceeding. Saffle v. Parks, 494 U.S. 484, 494–95 (1990) (citing cases); Sawyer v. Smith,
497 U.S. 227, 241–45 (1990).
1431 Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh,
492 U.S. 302, 314 (1989), which was quoting Teague v. Lane, 489 U.S. 288, 314 (1989).
This sentence was quoted again in Whorton v. Bockting, 549 U.S. 406, 416 (2007)).
1433 494 U.S. at 415. See also Stringer v. Black, 503 U.S. 222, 228–29 (1992).
This latter case found that two decisions relied on by petitioner merely drew on ex-
912 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
bypass” standard from Fay v. Noia, 372 U.S. 391, 438 (1963).
1435 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This standard is imported from
petitioner “deliberately withheld” a claim, the petition can be dismissed. See also 28
ART. III—JUDICIAL DEPARTMENT 913
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
ers, the federal courts had generally followed a rule excusing the
failure to raise claims in earlier petitions unless the failure was a
result of “inexcusable neglect” or of deliberate relinquishment. In
McClesky v. Zant,1440 the Court construed the “abuse of the writ”
language to require a showing of both “cause and prejudice” before
a petitioner may allege in a second or later petition a ground or
grounds not alleged in the first. In other words, to avoid subse-
quent dismissal, a petitioner must allege in his first application all
the grounds he may have, unless he can show cause, some external
impediment, for his failure and some actual prejudice from the er-
ror alleged. If he cannot show cause and prejudice, the petitioner
may be heard only if she shows that a “fundamental miscarriage of
justice” will occur, which means she must make a “colorable show-
ing of factual innocence.” 1441
Fifth, the Court abandoned the rules of Fay v. Noia, although
it was not until 1991 that it expressly overruled the case.1442 Fay,
it will be recalled, dealt with so-called procedural-bar circum-
stances; that is, if a defendant fails to assert a claim at the proper
time or in accordance with proper procedure under valid state rules,
and if the state then refuses to reach the merits of his claim and
rules against him solely because of the noncompliance with state
procedure, when may a petitioner present the claim in federal ha-
beas? The answer in Fay was that the federal court always had power
to review the claim but that it had discretion to deny relief to a
habeas claimant if it found that the prisoner had intentionally waived
his right to pursue his state remedy through a “deliberate bypass”
of state procedure.
That is no longer the law. “In all cases in which a state pris-
oner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas re-
view 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 miscarriage of justice. Fay was
based on a conception of federal/state relations that undervalued
the importance of state procedural rules.” 1443 The “miscarriage-of-
U.S.C. § 2254 Rule 9(b) (judge may dismiss successive petition raising new claims if
failure to assert them previously was an abuse of the writ).
1440 499 U.S. 467 (1991).
1441 499 U.S. at 489–97. The “actual innocence” element runs through the cases
developed in a long line of cases. Davis v. United States, 411 U.S. 233 (1973) (under
federal rules); Francis v. Henderson, 425 U.S. 536 (1976); Engle v. Isaac, 456 U.S.
914 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
107 (1982); Murray v. Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255
(1989). Coleman arose because the defendant’s attorney had filed his appeal in state
court three days late. Wainwright v. Sykes involved the failure of defendant to ob-
ject to the admission of inculpatory statements at the time of trial. Engle v. Isaac
involved a failure to object at trial to jury instructions.
1444 E.g., Smith v. Murray, 477 U.S. 527, 538–39 (1986); Murray v. Carrier, 477
U.S. 478, 496 (1986). In Bousley v. Brooks, 523 U.S. 614 (1998), a federal post-
conviction relief case, petitioner had pled guilty to a federal firearms offense. Subse-
quently, the Supreme Court interpreted more narrowly the elements of the offense
than had the trial court in Bousley’s case. The Court held that Bousley by his plea
had defaulted, but that he might be able to demonstrate “actual innocence” so as to
excuse the default if he could show on remand that it was more likely than not that
no reasonable juror would have convicted him of the offense, properly defined.
1445 Murray v. Carrier, 477 U.S. at 488. This case held that ineffective assis-
tance of counsel is not “cause” unless it rises to the level of a Sixth Amendment
violation. See also Coleman v. Thompson, 501 U.S. 722, 752–57 (1991) (because peti-
tioner had no right to counsel in state postconviction proceeding where error oc-
curred, he could not claim constitutionally ineffective assistance of counsel). The ac-
tual novelty of a constitutional claim at the time of the state court proceeding is
“cause” excusing the petitioner’s failure to raise it then, Reed v. Ross, 468 U.S. 1
(1984), although the failure of counsel to anticipate a line of constitutional argu-
ment then foreshadowed in Supreme Court precedent is insufficient “cause.” Engle
v. Isaac, 456 U.S. 107 (1982).
1446 United States v. Frady, 456 U.S. 152, 169 (1982) (under federal rules) (with
respect to erroneous jury instruction, inquiring whether the error “so infected the
entire trial that the resulting conviction violates due process”).
1447 506 U.S. 390 (1993).
1448 506 U.S. at 398–417.
ART. III—JUDICIAL DEPARTMENT 915
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
1449 506 U.S. at 417–419. Justices Scalia and Thomas would have unequivocally
never held that the Constitution forbids the execution of a convicted defendant who
has had a full and fair trial but is later able to convince a habeas court that he is
‘actually’ innocent.” He also wrote that the defendant’s “claim is a sure loser” and
that the Supreme Court was sending the District Court “on a fool’s errand.”
1452 513 U.S. 298 (1995).
1453 513 U.S. at 334 (Chief Justice Rehnquist dissenting, with Justices Kennedy
and Thomas), 342 (Justice Scalia dissenting, with Justice Thomas). This standard
was drawn from Sawyer v. Whitley, 505 U.S. 333 (1992).
916 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
able juror would have convicted him in the light of the new evi-
dence.” 1454
In the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA),1455 Congress imposed tight new restrictions on succes-
sive or abusive petitions, including making the circuit courts “gate
keepers” in permitting or denying the filing of such petitions, with
bars to appellate review of these decisions, provisions that in part
were upheld in Felker v. Turpin.1456 One important restriction in
AEDPA bars a federal habeas court from granting a writ to any per-
son in custody under a judgment of a state court “with respect to
any claim that was adjudicated on the merits in State court proceed-
ings unless the adjudication of the claim—(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States.” 1457 The Court has made the significance of
this restriction plain: Instead of assessing whether federal law was
correctly applied de novo, as would be the course under direct re-
view of a federal district court decision, the proper approach for fed-
eral habeas relief under AEDPA is the more deferential one of de-
termining whether the Court has established clear precedent on the
issue contested and, if so, whether the state’s application of the prec-
edent was reasonable, i.e., no fairminded jurist could find that the
state acted in accord with the Court’s established precedent.1458
For the future, barring changes in Court membership, other cur-
tailing of habeas jurisdiction can be expected. Perhaps the Court
will impose some form of showing of innocence as a predicate to
obtaining a hearing. More far-reaching would be an overturning of
Brown v. Allen itself and the renunciation of any oversight, save
for the extremely limited direct review of state court convictions in
1454 513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S.
478 (1986).
1455 Pub. L. 104–132, Title I, 110 Stat. 1217–21, amending 28 U.S.C. §§ 2244,
plied in Bell v. Cone, 535 U.S. 685 (2002). See also Renico v. Lett, 559 U.S. ___, No.
09–338, slip op. 9–12 (2010). For analysis of its constitutionality, see the various opin-
ions in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev’d on other grounds,
521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied,
520 U.S. 1107 (1997); Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); O’Brien v.
Dubois, 145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998),
cert. denied, 525 U.S. 1090 (1999).
1458 Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 10–14 (2011)
(overturning Ninth Circuit’s grant of relief, which was based on ineffective assis-
tance of counsel); accord Premo v. Moore, 562 U.S. ___, No. 09–658, slip op. (2011)
(same) and Cullen v. Pinholster, No. 09–1088, slip op. (2011) (same).
ART. III—JUDICIAL DEPARTMENT 917
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
tion jurisdiction on the inferior federal courts, provided for removal of such actions.
The constitutionality of congressional authorization for removal is well-established.
Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1871); Ten-
nessee v. Davis, 100 U.S. 257 (1880); Ames v. Kansas ex rel. Johnston, 111 U.S. 449
(1884). See City of Greenwood v. Peacock, 384 U.S. 808, 833 (1966).
1461 See 28 U.S.C. § 1442. This statute had its origins in the Act of February 4,
1815, § 8, 3 Stat. 198 (removal of civil and criminal actions against federal customs
officers for official acts), and the Act of March 2, 1833, § 3, 4 Stat. 633 (removal of
civil and criminal actions against federal officers on account of acts done under the
revenue laws), both of which grew out of disputes arising when certain states at-
tempted to nullify federal laws, and the Act of March 3, 1863, § 5, 12 Stat. 756 (re-
moval of civil and criminal actions against federal officers for acts done during the
existence of the Civil War under color of federal authority). In Mesa v. California,
489 U.S. 121 (1989), the Court held that the statute authorized federal officer re-
moval only when the defendant avers a federal defense. See Willingham v. Morgan,
395 U.S. 402 (1969).
1462 28 U.S.C. § 2679(d), enacted after Westfall v. Erwin, 484 U.S. 292 (1988).
1463 28 U.S.C. § 1443(1). Subsection (2) provides for the removal of state court
actions “[f]or any act under color of authority derived from any law providing for
equal rights, or for refusing to do any act on the ground that it would be inconsis-
tent with such law.” This subsection “is available only to federal officers and to per-
918 ART. III—JUDICIAL DEPARTMENT
Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction
this statute, however, the court narrowly construed the removal privi-
lege granted,1464 and recent decisions for the most part confirm this
restrictive interpretation,1465 so that instances of successful resort
to the statute are fairly rare.
Thus, the Court’s position holds, one may not obtain removal
simply by an assertion that he is being denied equal rights or that
he cannot enforce the law granting equal rights. Because the re-
moval statute requires the denial to be “in the courts of such State,”
the pretrial conduct of police and prosecutors was deemed irrel-
evant, because it afforded no basis for predicting that state courts
would not vindicate the federal rights of defendants.1466 Moreover,
in predicting a denial of rights, only an assertion founded on a fa-
cially unconstitutional state statute denying the right in question
would suffice. From the existence of such a law, it could be pre-
dicted that defendant’s rights would be denied.1467 Furthermore, the
removal statute’s reference to “any law providing for . . . equal rights”
covered only laws “providing for specific civil rights stated in terms
sons assisting such officers in the performance of their official duties.” City of Green-
wood v. Peacock, 384 U.S. 808, 815 (1966).
1464 Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives, 100 U.S.
313 (1880); Neal v. Delaware, 103 U.S. 370 (1881); Bush v. Kentucky, 107 U.S. 110
(1883); Gibson v. Mississippi, 162 U.S. 565 (1896); Smith v. Mississippi, 162 U.S.
592 (1896); Murray v. Louisiana, 163 U.S. 101 (1896); Williams v. Mississippi, 170
U.S. 213 (1898); Kentucky v. Powers, 201 U.S. 1 (1906).
1465 Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384
U.S. 808 (1966). There was a hiatus of cases reviewing removal from 1906 to 1966
because from 1887 to 1964 there was no provision for an appeal of an order of a
federal court remanding a removed case to the state courts. § 901 of the Civil Rights
Act of 1964, 78 Stat. 266, 28 U.S.C. § 1447(d).
1466 Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of Greenwood v. Peacock,
384 U.S. 808, 827 (1966). Justice Douglas in dissent, joined by Justices Black, Fortas,
and Chief Justice Warren, argued that “in the courts of such State” modified only
“cannot enforce,” so that one could be denied rights prior to as well as during a trial
and police and prosecutorial conduct would be relevant. Alternately, he argued that
state courts could be implicated in the denial prior to trial by certain actions. Id. at
844–55.
1467 Georgia v. Rachel, 384 U.S. 780, 797–802 (1966). Thus, in Strauder v. West
Virginia, 100 U.S. 303 (1880), African-Americans were excluded by statute from ser-
vice on grand and petit juries, and it was held that a black defendant’s criminal
indictment should have been removed because federal law secured nondiscrimina-
tory jury service and it could be predicted that he would be denied his rights before
a discriminatorily selected state jury. In Virginia v. Rives, 100 U.S. 313 (1880), there
was no state statute, but there was exclusion of Negroes from juries pursuant to
custom and removal was denied. In Neal v. Delaware, 103 U.S. 370 (1880), the state
provision authorizing discrimination in jury selection had been held invalid under
federal law by a state court, and a similar situation existed in Bush v. Kentucky,
107 U.S. 110 (1882). Removal was denied in both cases. The dissenters in City of
Greenwood v. Peacock, 384 U.S. 808, 848–52 (1966), argued that federal courts should
consider facially valid statutes which might be applied unconstitutionally and state
court enforcement of custom as well in evaluating whether a removal petitioner could
enforce his federal rights in state court.
ART. III—JUDICIAL DEPARTMENT 919
cock, 384 U.S. 808, 824–27 (1966), See also id. at 847–48 (Justice Douglas dissent-
ing).
1469 City of Greenwood v. Peacock, 384 U.S. at 824–27. See also Johnson v. Mis-
STITUTION 469 (1836) (James Wilson). Wilson was apparently the author of the clause
in the Committee of Detail and had some first hand knowledge of the abuse of trea-
son charges. J. HURST, THE LAW OF TREASON IN THE UNITED STATES: SELECTED ESSAYS 90–
91, 129–136 (1971).
1472 2 M. Farrand, supra at 345–50; 2 J. Elliot, supra at 469, 487 (James Wil-
son); 3 id. at 102–103, 447, 451, 466; 4 id. at 209, 219, 220; THE FEDERALIST No. 43
920 ART. III—JUDICIAL DEPARTMENT
Levying War
Early judicial interpretation of the meaning of treason in terms
of levying war was conditioned by the partisan struggles of the early
nineteenth century, which involved the treason trials of Aaron Burr
and his associates. In Ex parte Bollman,1479 which involved two of
Burr’s confederates, Chief Justice Marshall, speaking for himself and
three other Justices, confined the meaning of levying war to the
actual waging of war. “However flagitious may be the crime of con-
spiring to subvert by force the government of our country, such con-
spiracy is not treason. To conspire to levy war, and actually to levy
war, are distinct offences. The first must be brought into open ac-
tion by the assemblage of men for a purpose treasonable in itself,
(J. Cooke ed. 1961), 290 (Madison); id. at No. 84, 576–577 (Hamilton); THE WORKS OF
JAMES WILSON 663–69 (R. McCloskey ed. 1967). The matter is comprehensively stud-
ied in J. Hurst, supra at chs. 3, 4.
1473 25 Edward III, Stat. 5, ch. 2, See J. Hurst, supra at ch 2.
1474 Id. at 15, 31–37, 41–49, 51–55.
1475 Id. “[T]he record does suggest that the clause was intended to guarantee
nonviolent political processes against prosecution under any theory or charge, the
burden of which was the allegedly seditious character of the conduct in question.
The most obviously restrictive feature of the constitutional definition is its omission
of any provision analogous to that branch of the Statute of Edward III which pun-
ished treason by compassing the death of the king. In a narrow sense, this provi-
sion perhaps had no proper analogue in a republic. However, to interpret the si-
lence of the Treason Clause in this way alone does justice neither to the technical
proficiency of the Philadelphia draftsmen nor to the practical statecraft and knowl-
edge of English political history among the Framers and proponents of the Constitu-
tion. The charge of compassing the king’s death had been the principal instrument
by which ‘treason’ had been used to suppress a wide range of political opposition,
from acts obviously dangerous to order and likely in fact to lead to the king’s death
to the mere speaking or writing of views restrictive of the royal authority.” Id. at
152–53.
1476 The clause does not, however, prevent Congress from specifying other crimes
in open court.
1478 Cl. 2, infra, “Corruption of the Blood and Forfeiture”.
1479 8 U.S. (4 Cr.) 75 (1807).
ART. III—JUDICIAL DEPARTMENT 921
or the fact of levying war cannot have been committed. So far has
this principle been carried, that . . . it has been determined that
the actual enlistment of men to serve against the government does
not amount to levying war.” Chief Justice Marshall was careful, how-
ever, to state that the Court did not mean that no person could be
guilty of this crime who had not appeared in arms against the coun-
try. “On the contrary, if war be actually levied, that is, if a body of
men be actually assembled for the purpose of effecting by force a
treasonable purpose, all those who perform any part, however min-
ute, or however remote from the scene of action, and who are actu-
ally leagued in the general conspiracy, are to be considered as trai-
tors. But there must be an actual assembling of men, for the
treasonable purpose, to constitute a levying of war.” 1480
On the basis of these considerations and because no part of the
crime charged had been committed in the District of Columbia, the
Court held that Bollman and Swartwout could not be tried in the
District, and ordered their discharge. Marshall continued by saying
that “the crime of treason should not be extended by construction
to doubtful cases” and concluded that no conspiracy for overturn-
ing the Government and “no enlisting of men to effect it, would be
an actual levying of war.” 1481
The Burr Trial.—Not long afterward, the Chief Justice went
to Richmond to preside over the trial of Aaron Burr. His ruling 1482
denying a motion to introduce certain collateral evidence bearing
on Burr’s activities is significant both for rendering the latter’s ac-
quittal inevitable and for the qualifications and exceptions made to
the Bollman decision. In brief, this ruling held that Burr, who had
not been present at the assemblage on Blennerhassett’s Island, could
be convicted of advising or procuring a levying of war only upon
the testimony of two witnesses to his having procured the assem-
blage. This operation having been covert, such testimony was natu-
rally unobtainable. The net effect of Marshall’s pronouncements was
to make it extremely difficult to convict one of levying war against
the United States short of the conduct of or personal participation
in actual hostilities.1483
result of the Whiskey Rebellion, convictions of treason were obtained on the basis of
the ruling that forcible resistance to the enforcement of the revenue laws was a con-
structive levying of war. United States v. Vigol, 29 Fed. Cas. 376 (No. 16621) (C.C.D.
Pa. 1795); United States v. Mitchell, 26 Fed. Cas. 1277 (No. 15788) (C.C.D. Pa. 1795).
After conviction, the defendants were pardoned. See also for the same ruling in a
different situation the Case of Fries, 9 Fed. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D.
922 ART. III—JUDICIAL DEPARTMENT
Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half
century later participation in forcible resistance to the Fugitive Slave Law was held
not to be a constructive levying of war. United States v. Hanway, 26 Fed. Cas. 105
(No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded
the activities of the Confederate States as a levying of war, the President by Am-
nesty Proclamation of December 25, 1868, pardoned all those who had participated
on the southern side in the Civil War. In applying the Captured and Abandoned
Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the
foundation of the Confederacy was treason against the United States. Sprott v. United
States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.)
342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States,
97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy
and giving him aid and comfort, but these are not criminal cases and deal with at-
tempts to recover property under the Captured and Abandoned Property Act by per-
sons who claimed that they had given no aid or comfort to the enemy. These cases
are not, therefore, an interpretation of the Constitution.
1484 325 U.S. 1 (1945).
1485 89 Law. Ed. 1443–1444 (Argument of Counsel).
1486 325 U.S. at 35.
1487 325 U.S. at 34–35. Earlier, Justice Jackson had declared that this phase of
treason consists of two elements: “adherence to the enemy; and rendering him aid
and comfort.” A citizen, it was said, may take actions “which do aid and comfort the
enemy . . . but if there is no adherence to the enemy in this, if there is no intent to
betray, there is no treason.” Id. at 29. Justice Jackson states erroneously that the
requirement of two witnesses to the same overt act was an original invention of the
Convention of 1787. Actually it comes from the British Treason Trials Act of 1695. 7
Wm. III, c.3.
ART. III—JUDICIAL DEPARTMENT 923
States.1488 Here it was held that although the overt acts relied upon
to support the charge of treason—defendant’s harboring and shel-
tering in his home his son who was an enemy spy and saboteur,
assisting him in purchasing an automobile, and in obtaining employ-
ment in a defense plant—were all acts which a father would natu-
rally perform for a son, this fact did not necessarily relieve them of
the treasonable purpose of giving aid and comfort to the enemy. Speak-
ing for the Court, Justice Jackson said: “No matter whether young
Haupt’s mission was benign or traitorous, known or unknown to
the defendant, these acts were aid and comfort to him. In the light
of this mission and his instructions, they were more than casually
useful; they were aids in steps essential to his design for treason.
If proof be added that the defendant knew of his son’s instruction,
preparation and plans, the purpose to aid and comfort the enemy
becomes clear.” 1489
The Court held that conversation and occurrences long prior to
the indictment were admissible evidence on the question of defen-
dant’s intent. And more important, it held that the constitutional
requirement of two witnesses to the same overt act or confession in
open court does not operate to exclude confessions or admissions
made out of court, where a legal basis for the conviction has been
laid by the testimony of two witnesses of which such confessions or
admissions are merely corroborative. This relaxation of restrictions
surrounding the definition of treason evoked obvious satisfaction from
Justice Douglas, who saw in Haupt a vindication of his position in
Cramer. His concurring opinion contains what may be called a re-
statement of the law of treason and merits quotation at length:
“As the Cramer case makes plain, the overt act and the intent
with which it is done are separate and distinct elements of the crime.
Intent need not be proved by two witnesses but may be inferred
from all the circumstances surrounding the overt act. But if two
witnesses are not required to prove treasonable intent, two wit-
nesses need not be required to show the treasonable character of
the overt act. For proof of treasonable intent in the doing of the
overt act necessarily involves proof that the accused committed the
overt act with the knowledge or understanding of its treasonable
character.”
“The requirement of an overt act is to make certain a treason-
able project has moved from the realm of thought into the realm of
action. That requirement is undeniably met in the present case, as
it was in the case of Cramer.”
1488 330 U.S. 631 (1947).
1489 330 U.S. at 635–36.
924 ART. III—JUDICIAL DEPARTMENT
“The Cramer case departed from those rules when it held that
‘The two-witness principle is to interdict imputation of incriminat-
ing acts to the accused by circumstantial evidence or by the testi-
mony of a single witness.’ 325 U.S. p. 35. The present decision is
truer to the constitutional definition of treason when it forsakes that
test and holds that an act, quite innocent on its face, does not need
two witnesses to be transformed into a incriminating one.” 1490
The Kawakita Case.—Kawakita v. United States 1491 was de-
cided on June 2, 1952. The facts are sufficiently stated in the follow-
ing headnote: “At petitioner’s trial for treason, it appeared that origi-
nally he was a native-born citizen of the United States and also a
national of Japan by reason of Japanese parentage and law. While
a minor, he took the oath of allegiance to the United States; went
to Japan for a visit on an American passport; and was prevented
by the outbreak of war from returning to this country. During the
war, he reached his majority in Japan; changed his registration from
American to Japanese, showed sympathy with Japan and hostility
to the United States; served as a civilian employee of a private cor-
poration producing war materials for Japan; and brutally abused
American prisoners of war who were forced to work there. After Ja-
pan’s surrender, he registered as an American citizen; swore that
he was an American citizen and had not done various acts amount-
ing to expatriation; and returned to this country on an American
passport.” The question whether, on this record, Kawakita had in-
tended to renounce American citizenship, said the Court, in sustain-
ing conviction, was peculiarly one for the jury and their verdict that
he had not so intended was based on sufficient evidence. An Ameri-
can citizen, it continued, owes allegiance to the United States wher-
ever he may reside, and dual nationality does not alter the situa-
tion.1492
1490 330 U.S. at 645–46. Justice Douglas cites no cases for these propositions.
Justice Murphy in a solitary dissent stated: “But the act of providing shelter was of
the type that might naturally arise out of petitioner’s relationship to his son, as the
Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is
true even when the act is viewed in light of all the surrounding circumstances. All
that can be said is that the problem of whether it was motivated by treasonous or
non-treasonous factors is left in doubt. It is therefore not an overt act of treason,
regardless of how unlawful it might otherwise be.” Id. at 649.
1491 343 U.S. 717 (1952).
1492 343 U.S. at 732. For citations in the subject of dual nationality, see id. at
723 n.2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed
he was consistently demonstrating his allegiance to Japan. “As a matter of law, he
expatriated himself as well as that can be done.” Id. at 746.
ART. III—JUDICIAL DEPARTMENT 925
344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giv-
ing aid to a country, not an enemy, an offense distinct from treason, neither the
two-witness rule nor the requirement as to the overt act is applicable.
1498 Ex parte Bollman, 8 U.S. (4 Cr.) 126, 127 (1807). Justice Frankfurter ap-
pended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n.38 (1945), a list
taken from the government’s brief of all the cases prior to Cramer in which construc-
tion of the Treason Clause was involved. The same list, updated, appears in J. Hurst,
supra at 260–67. Professor Hurst was responsible for the historical research under-
lying the government’s brief in Cramer.
926 ART. III—JUDICIAL DEPARTMENT
Rebels” 1499 raised issues under Article III, § 3, cl. 2. Because of the
constitutional doubts of the President, the act was accompanied by
an explanatory joint resolution which stipulated that only a life es-
tate terminating with the death of the offender could be sold and
that at his death his children could take the fee simple by descent
as his heirs without deriving any title from the United States. In
applying this act, passed pursuant to the war power and not the
power to punish treason,1500 the Court in one case 1501 quoted with
approval the English distinction between a disability absolute and
perpetual and one personal or temporary. Corruption of blood as a
result of attainder of treason was cited as an example of the for-
mer and was defined as the disability of any of the posterity of the
attained person “to claim any inheritance in fee simple, either as
heir to him, or to any ancestor above him.” 1502
1499 12 Stat. 589. This act incidentally did not designate rebellion as treason.
1500 Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871).
1501 Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).
1502 Lord de la Warre’s Case, 11 Coke Rept. 1a, 77 Eng. Rept. 1145 (1597). A
number of cases dealt with the effect of a full pardon by the President of owners of
property confiscated under this act. They held that a full pardon relieved the owner
of forfeiture as far as the government was concerned but did not divide the interest
acquired by third persons from the government during the lifetime of the offender.
Illinois Cent. R.R. v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. United States, 95
U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 203 (1876); Armstrong’s Foundry,
73 U.S. (6 Wall.) 766, 769 (1868). There is no direct ruling on the question of whether
only citizens can commit treason. In Carlisle v. United States, 83 U.S. (16 Wall.)
147, 154–155 (1873), the Court declared that aliens while domiciled in this country
owe a temporary allegiance to it and may be punished for treason equally with a
native-born citizen in the absence of a treaty stipulation to the contrary. This case
involved the attempt of certain British subjects to recover claims for property seized
under the Captured and Abandoned Property Act, 12 Stat. 820 (1863), which pro-
vided for the recovery of property or its value in suits in the Court of Claims by
persons who had not rendered aid and comfort to the enemy. Earlier, in United States
v. Wiltberger, 18 U.S. (5 Wheat.) 76, 97 (1820), which involved a conviction for man-
slaughter under an act punishing manslaughter and treason on the high seas, Chief
Justice Marshall going beyond the necessities of the case stated that treason “is a
breach of allegiance, and can be committed by him only who owes allegiance either
perpetual or temporary.” However, see In re Shinohara, Court Martial Orders, No.
19, September 8, 1949, p. 4, Office of the Judge Advocate General of the Navy, re-
ported in 17 Geo. Wash. L. Rev. 283 (1949). In this case, an enemy alien resident in
United States territory (Guam) was found guilty of treason for acts done while the
enemy nation of which he was a citizen occupied such territory. Under English prec-
edents, an alien residing in British territory is open to conviction for high treason
on the theory that his allegiance to the Crown is not suspended by foreign occupa-
tion of the territory. DeJager v. Attorney General of Natal (1907), A.C., 96 L.T.R.
857. See also 18 U.S.C. § 2381.
ARTICLE IV
STATES’ RELATIONS
CONTENTS
Page
Section 1. Full Faith and Credit .............................................................................................. 929
Sources and Effect of Full Faith and Credit .................................................................... 929
Private International Law .......................................................................................... 929
Judgments: Effect to Be Given In Forum State .............................................................. 930
In General .................................................................................................................... 930
Jurisdiction: A Prerequisite to Enforcement of Judgments ..................................... 934
Judgments in Personam ...................................................................................... 935
Service on Foreign Corporations ......................................................................... 936
Service on Nonresident Motor Vehicle Owners ................................................. 937
Judgments in Rem ............................................................................................... 937
Divorce Decrees: Domicile as the Jurisdictional Prerequisite ................................. 938
Divorce Suit: In Rem or in Personam; Judicial Indecision .............................. 939
Williams I and Williams II .................................................................................. 940
Cases Following Williams II ............................................................................... 942
Claims for Alimony or Property in Forum State .............................................. 944
Decrees Awarding Alimony, Custody of Children .............................................. 946
Status of the Law ................................................................................................. 948
Other Types of Decrees ............................................................................................... 949
Probate Decrees .................................................................................................... 949
Adoption Decrees .................................................................................................. 950
Garnishment Decrees .......................................................................................... 950
Penal Judgments: Types Entitled to Recognition ..................................................... 951
Fraud as a Defense to Suits on Foreign Judgments ................................................ 952
Recognition of Rights Based Upon Constitutions, Statutes, Common Law .................. 952
Development of the Modern Rule .............................................................................. 952
Transitory Actions: Death Statutes .................................................................... 955
Actions Upon Contract ........................................................................................ 955
Stockholder Corporation Relationship ................................................................ 956
Fraternal Benefit Society: Member Relationship .............................................. 957
Insurance Company, Building and Loan Association: Contractual
Relationships ..................................................................................................... 958
Workers’ Compensation Statutes ........................................................................ 960
Full Faith and Credit and Statutes of Limitation ............................................ 962
Full Faith and Credit: Miscellany .................................................................................... 962
Full Faith and Credit in Federal Courts .................................................................. 962
Evaluation Of Results Under Provision .................................................................... 963
Scope of Powers of Congress Under Provision ................................................................. 964
Judgments of Foreign States ............................................................................................. 965
Section 2. Interstate Comity ..................................................................................................... 965
Clause 1. State Citizenship: Privileges and Immunities ................................................ 965
Origin and Purpose ..................................................................................................... 965
How Implemented ....................................................................................................... 969
Citizens of Each State ................................................................................................ 969
927
928 ART. IV—STATES’ RELATIONS
ARTICLE IV
929
930 ART. IV—STATES’ RELATIONS
So, even had the states of the Union remained in a mutual re-
lationship of entire independence, private claims originating in one
often would have been assured recognition and enforcement in the
others. The Framers felt, however, that the rules of private interna-
tional law should not be left among the states altogether on a basis
of comity and hence subject always to the overruling local policy of
the lex fori, but ought to be in some measure at least placed on the
higher plane of constitutional obligation. In fulfillment of this in-
tent, the Full Faith and Credit Clause was inserted, and Congress
was empowered to enact supplementary and enforcing legislation.2
In General
Article IV, § 1, has had its principal operation in relation to judg-
ments. Embraced within the relevant discussions are two principal
classes of judgments. First, those in which the judgment involved
was offered as a basis of proceedings for its own enforcement out-
side the state where rendered, as for example, when an action for
debt is brought in the courts of State B on a judgment for money
damages rendered in State A; second, those in which the judgment
involved was offered, in conformance with the principle of res judicata,
in defense in a new or collateral proceeding growing out of the same
facts as the original suit, as for example, when a decree of divorce
granted in State A is offered as barring a suit for divorce by the
other party to the marriage in the courts of State B.
The English courts and the different state courts in the United
States, while recognizing “foreign judgments in personam,” which
were reducible to money terms as affording a basis for actions in
debt, originally accorded them generally only the status of prima
facie evidence in support thereof, so that the merits of the original
controversy could always be opened. When offered in defense, on
the other hand, “foreign judgments in personam” were regarded as
conclusive upon everybody on the theory that, as stated by Chief
Justice Marshall, “it is a proceeding in rem, to which all the world
are parties.” 3 The pioneer case was Mills v. Duryee,4 decided in 1813.
In an action brought in the circuit court of the District of Colum-
bia, the equivalent of a state court for this purpose, on a judgment
from a New York court, the defendant endeavored to reopen the whole
2 Congressional legislation under the Full Faith and Credit Clause, insofar as it
said, shall have such faith and credit given to them in every court within the United
States, as they have by law or usage in the courts of the state from whence the said
records are or shall be taken”).
6 On the same basis, a judgment cannot be impeached either in or out of the
state by showing that it was based on a mistake of law. American Express Co. v.
Mullins, 212 U.S. 311, 312 (1909). Fauntleroy v. Lum, 210 U.S. 230 (1908); Hartford
Life Ins. Co. v. Ibs, 237 U.S. 662 (1915); Hartford Life Ins. Co. v. Barber, 245 U.S.
146 (1917).
7 16 U.S. (3 Wheat.) 234 (1818).
8 38 U.S. (13 Pet.) 312 (1839). See also Townsend v. Jemison, 50 U.S. (9 How.)
407, 413–20 (1850); Bank of Alabama v. Dalton, 50 U.S. (9 How.) 522, 528 (1850);
Bacon v. Howard, 61 U.S. (20 How.) 22, 25 (1858); Christmas v. Russell, 72 U.S. (5
Wall.) 290, 301 (1866); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292 (1888); Great
Western Tel. Co. v. Purdy, 162 U.S. 329 (1896); Wells v. Simonds Abrasive Co., 345
U.S. 514, 516–18 (1953). Subsequently, the Court reconsidered and adhered to the
rule of these cases, although the Justices divided with respect to rationales. Sun Oil
Co. v. Wortman, 486 U.S. 717 (1988). Acknowledging that in some areas it had treated
statutes of limitations as substantive rules, such as in diversity cases to insure uni-
formity with state law in federal courts, the Court ruled that such rules are proce-
dural for full-faith-and-credit purposes, since “[t]he purpose . . . of the Full Faith
and Credit Clause . . . is . . . to delimit spheres of state legislative competence.” Id.
at 727.
932 ART. IV—STATES’ RELATIONS
U.S. (6 How.) 44, 61 (1848); Milwaukee County v. White Co., 296 U.S. 268 (1935).
10 Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887); Hanley
v. Donoghue, 116 U.S. 1, 3 (1885). See also Green v. Van Buskirk, 74 U.S. (7 Wall.)
139, 140 (1869); Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912); Roche v.
McDonald, 275 U.S. 449 (1928); Ohio v. Chattanooga Boiler Co., 289 U.S. 439 (1933).
11 Sistare v. Sistare, 218 U.S. 1 (1910).
12 Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also Fall v. Eastin, 215
U.S. 1 (1909).
13 Milwaukee County v. White Co., 296 U.S. 268, 275–276 (1935).
ART. IV—STATES’ RELATIONS 933
Court in both cases, asserted in his opinion in the latter that the New York statute
was “directed to jurisdiction,” the Mississippi statute to “merits,” but four Justices
could not grasp the distinction.
21 Kenney v. Supreme Lodge, 252 U.S. 411 (1920), and cases there cited. Holmes
again spoke for the Court. See also Cook, The Powers of Congress under the Full
Faith and Credit Clause, 28 YALE L.J. 421, 434 (1919).
934 ART. IV—STATES’ RELATIONS
22 Broderick v. Rosner, 294 U.S. 629 (1935), approved in Hughes v. Fetter, 341
court which handed down the original decree.27 Records and pro-
ceedings of courts wanting jurisdiction are not entitled to credit.28
Judgments in Personam.—When the subject matter of a suit
is merely the defendant’s liability, it is necessary that it should ap-
pear from the record that the defendant has been brought within
the jurisdiction of the court by personal service of process, or by
his voluntary appearance, or that he had in some manner autho-
rized the proceeding.29 Thus, when a state court endeavored to ac-
quire jurisdiction of a nonresident defendant by an attachment of
his property within the state and constructive notice to him, its judg-
ment was defective for want of jurisdiction and hence could not af-
ford the basis of an action against the defendant in the court of
another state, although it bound him so far as the property at-
tached by virtue of the inherent right of a state to assist its own
citizens in obtaining satisfaction of their just claims.30
The fact that a nonresident defendant was only temporarily in
the state when he was served in the original action does not vitiate
the judgment thus obtained and later relied upon as the basis of
an action in his home state.31 Also a judgment rendered in the state
of his domicile against a defendant who, pursuant to the statute
thereof providing for the service of process on absent defendants,
was personally served in another state is entitled to full faith and
27 Cooper v. Reynolds, 77 U.S. (10 Wall.) 308 (1870); Western Union Tel. Co. v.
Pennsylvania, 368 U.S. 71 (1961). Full faith and credit extends to the issue of the
original court’s jurisdiction, when the second court’s inquiry discloses that the ques-
tion of jurisdiction had been fully and fairly litigated and finally decided in the court
which rendered the original judgment. Durfee v. Duke, 375 U.S. 106 (1963); Under-
writers Assur. Co. v. North Carolina Life Ins. Ass’n, 455 U.S. 691 (1982).
28 Board of Public Works v. Columbia College, 84 U.S. (17 Wall.) 521, 528 (1873).
See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Huntington v. At-
trill, 146 U.S. 657, 685 (1892); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908); Bigelow
v. Old Dominion Copper Co., 225 U.S. 111 (1912); Spokane Inland R.R. v. Whitley,
237 U.S. 487 (1915). However, a denial of credit, founded upon a mere suggestion of
want of jurisdiction and unsupported by evidence, violates the clause. See V.L. v.
E.L., 577 U.S. ___, No. 15–648, slip op. at 6 (2016) (per curiam) (holding that where
a Georgia judgment appeared on its face to have been issued by a court with juris-
diction and there was no established Georgia law to the contrary, the Alabama Su-
preme Court erred in refusing to grant the Georgia judgment full faith and credit);
see also Rogers v. Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. v. Ford,
238 U.S. 503 (1915).
29 Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890). See also Galpin
v. Page, 85 U.S. (18 Wall.) 350 (1874); Old Wayne Life Ass’n v. McDonough, 204 U.S.
8 (1907); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908).
30 Pennoyer v. Neff, 95 U.S. 714 (1878). See, for a reformulation of this case’s
32 Milliken v. Meyer, 311 U.S. 457, 463 (1940). In the pioneer case of D’Arcy v.
Ketchum, 52 U.S. (1 How.) 165 (1851), the question presented was whether a judg-
ment rendered by a New York court, under a statute which provided that, when
joint debtors were sued and one of them was brought into court on a process, a judg-
ment in favor of the plaintiff would entitle him to execute against all, must be ac-
corded full faith and credit in Louisiana when offered as a basis of an action in debt
against a resident of that state who had not been served by process in the New
York action. The Court ruled that the original implementing statute, 1 Stat. 122
(1790), did not reach this type of case, and hence the New York judgment was not
enforceable in Louisiana against defendant. Had the Louisiana defendant thereafter
ventured to New York, however, he could, as the Constitution then stood, have been
subjected to the judgment to the same extent as the New York defendant who had
been personally served. Subsequently, the disparity between operation of personal
judgment in the home state has been eliminated, because of the adoption of the Four-
teenth Amendment. In divorce cases, however, it still persists in some measure. See
infra.
33 Adam v. Saenger, 303 U.S. 59, 62 (1938).
34 Hancock Nat’l Bank v. Farnum, 176 U.S. 640 (1900).
35 Stacy v. Thrasher, 47 U.S. (6 How.) 44, 58 (1848).
36 Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912).
37 59 U.S. (18 How.) 404 (1856).
ART. IV—STATES’ RELATIONS 937
38 To the same effect is Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602
(1899).
39 Simon v. Southern Ry., 236 U.S. 115 (1915).
40 Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills v. Menefee, 237
county to which, by the statute under which it had acted, its juris-
diction was confined.
As previously explained, the plea of lack of privity cannot be
set up in defense in a sister state against a judgment in rem. In a
proceeding in rem, however, the presence of the res within the court’s
jurisdiction is a prerequisite, and this, it was urged, had not been
the case in Thompson v. Whitman. Could, then, the Court consider
this challenge with respect to a judgment which was offered, not as
the basis for an action for enforcement through the courts of a sis-
ter state but merely as a defense in a collateral action? As the law
stood in 1873, it apparently could not.45 All difficulties, neverthe-
less, to its consideration of the challenge to jurisdiction in the case
were brushed aside by the Court. Whenever, it said, the record of a
judgment rendered in a state court is offered “in evidence” by ei-
ther of the parties to an action in another state, it may be contra-
dicted as to the facts necessary to sustain the former court’s juris-
diction; “and if it be shown that such facts did not exist, the record
will be a nullity, notwithstanding the claim that they did exist.” 46
on the basis of an inadequate record, the Court did not here pass
upon the question whether North Carolina had the power to refuse
full faith and credit to a Nevada decree because it was based on
residence rather than domicile or because, contrary to the findings
of the Nevada court, North Carolina found that no bona fide domi-
cile had been acquired in Nevada.54
Presaging what ruling the Court would make when it did get
around to passing upon the latter question, Justice Jackson, dissent-
ing in Williams I, protested that “this decision repeals the divorce
laws of all the states and substitutes the law of Nevada as to all
marriages one of the parties to which can afford a short trip there. . . .
While a state can no doubt set up its own standards of domicile as
to its internal concerns, I do not think it can require us to accept
and in the name of the Constitution impose them on other states. . . .
The effect of the Court’s decision today—that we must give extra-
territorial effect to any judgment that a state honors for its own
purposes—is to deprive this Court of control over the operation of
the full faith and credit and the due process clauses of the Federal
Constitution in cases of contested jurisdiction and to vest it in the
first state to pass on the facts necessary to jurisdiction.” 55
Notwithstanding that one of the deserted spouses had died since
the initial trial and that another had remarried, North Carolina,
without calling into question the status of the latter marriage, be-
gan a new prosecution for bigamy; when the defendants appealed
the conviction resulting therefrom, the Supreme Court, in Williams
II,56 sustained the adjudication of guilt as not denying full faith and
credit to the Nevada divorce decree. Reiterating the doctrine that
jurisdiction to grant divorce is founded on domicile,57 the Court held
that a decree of divorce rendered in one state may be collaterally
impeached in another by proof that the court that rendered the de-
cree lacked jurisdiction (the parties not having been domiciled therein),
even though the record of proceedings in that court purports to show
jurisdiction.58
54 317 U.S. at 302.
55 317 U.S. at 312, 321, 315.
56 325 U.S. 226, 229 (1945).
57 Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 U.S. 14 (1903).
58 Strong dissents were filed, which have influenced subsequent holdings. Among
these was that of Justice Rutledge, which attacked both the consequences of the
decision as well as the concept of jurisdictional domicile on which it was founded:
“Unless ‘matrimonial domicil,’ banished in Williams I [by the overruling of Had-
dock v. Haddock], has returned renamed [‘domicil of origin’] in Williams II, every
decree becomes vulnerable in every state. Every divorce, wherever granted . . . may
now be reexamined by every other state, upon the same or different evidence, to
redetermine the ‘jurisdiction fact,’ always the ultimate conclusion of ‘domicil.’ . . . ”
325 U.S. at 248.
942 ART. IV—STATES’ RELATIONS
“The Constitution does not mention domicil. Nowhere does it posit the powers
of the states or the nation upon that amorphous, highly variable common law con-
ception. . . . No legal conception, save possibly ‘jurisdiction’ . . . affords such possi-
bilities for uncertain application. . . . Apart from the necessity for travel, [to effect
a change of domicile, the latter] criterion comes down to a purely subjective mental
state, related to remaining for a length of time never yet defined with clarity. . . .
When what must be proved is a variable, the proof and the conclusion which follows
upon it inevitably take on that character. . . . [The majority has] not held that de-
nial of credit will be allowed, only if the evidence [as to the place of domicile] is
different or depending in any way upon the character or the weight of the differ-
ence. The test is not different evidence. It is evidence, whether the same or different
and, if different, without regard to the quality of the difference, from which an op-
posing set of inferences can be drawn by the trier of fact ‘not unreasonably.’ . . . But
[the Court] does not define ‘not unreasonably.’ It vaguely suggests a supervisory func-
tion, to be exercised when the denial [of credit] strikes its sensibilities as wrong, by
some not stated standard. . . . There will be no ‘weighing’ [of evidence]. There will
be only examination for sufficiency, with the limits marked by ‘scintillas’ and the
like.” 325 U.S. at 255, 258, 259, 251.
No less disposed to prophesy undesirable results from this decision was Justice
Black whose dissenting opinion Justice Douglas joined:
“[T]oday, as to divorce decrees, [the Full Faith and Credit Clause] . . . has be-
come a nationally disruptive force. . . . [T]he Court has in effect [held] . . . that ‘the
full faith and credit clause does not apply to actions for divorce, and that the states
alone have the right to determine what effect shall be given to the decrees of other
states in this class of cases.’ . . . If the Court is today abandoning that principle
. . . that a marriage validly consummated under one state’s laws is valid in every
other state [, then a] . . . consequence is to subject people to criminal prosecutions
for adultery and bigamy merely because they exercise their constitutional right to
pass from a state in which they were validly married on to another state which
refuses to recognize their marriage. Such a consequence runs counter to the basic
guarantees of our federal union.” 325 U.S. at 264, 265.
59 334 U.S. 343 (1948).
ART. IV—STATES’ RELATIONS 943
applicable also to Coe v. Coe, Justice Frankfurter, with Justice Murphy concurring,
asserted his inability to accept the proposition advanced by the majority that “re-
gardless of how overwhelming the evidence may have been that the asserted domi-
cile in the State offering bargain-counter divorces was a sham, the home State of
the parties is not permitted to question the matter if the form of a controversy has
been gone through.” 334 U.S. at 377.
61 336 U.S. 674 (1949). Of four justices dissenting, Black, Douglas, Rutledge, and
Jackson, Justice Jackson alone filed a written opinion. To him the decision was “an
example of the manner in which, in the law of domestic relations, ‘confusion now
hath made his masterpiece,’ . . . I think that the judgment of the Connecticut court,
but for the first Williams case and its progeny, might properly have held that the
Rice divorce decree was void for every purpose because it was rendered by a state
court which never obtained jurisdiction of the nonresident defendant and which had
no power to reach into another state and summon her before it. But if we adhere to
the holdings that the Nevada court had power over her for the purpose of blasting
her marriage and opening the way to a successor, I do not see the justice of invent-
ing a compensating confusion in the device of divisible divorce by which the parties
are half-bound and half-free and which permits Rice to have a wife who cannot be-
come his widow and to leave a widow who was no longer his wife.” Id. at 676, 679–
680.
944 ART. IV—STATES’ RELATIONS
vorce decree, the presumption of Florida’s jurisdiction over the cause and the par-
ties not having been overcome by extrinsic evidence or the record of the case. Cook
v. Cook, 342 U.S. 126 (1951). Sherrer and Coe were relied upon. There seems, there-
fore, to be no doubt of their continued vitality.
A Florida divorce decree was also at the bottom of another case in which the
daughter of a divorced man by his first wife and his legatee under his will sought to
attack his divorce in the New York courts and thereby indirectly his third marriage.
The Court held that, because the attack would not have been permitted in Florida
under the doctrine of res judicata, it was not permissible under the Full Faith and
Credit Clause in New York. On the whole, it appears that the principle of res judicata
is slowly winning out against the principle of domicile. Johnson v. Muelberger, 340
U.S. 581 (1951).
63 325 U.S. 279 (1945).
ART. IV—STATES’ RELATIONS 945
“law” held that no “ex parte” divorce decree could terminate a prior New York sepa-
rate maintenance decree, or merely that no “ex parte” decree of divorce of another
State could, Justice Frankfurter dissented and recommended that the case be re-
manded for clarification. Justice Jackson dissented on the ground that under New
York law, a New York divorce would terminate the wife’s right to alimony, and if the
Nevada decree is good, it was entitled to no less effect in New York than a local
decree. However, for reasons stated in his dissent in the first Williams case, 317
U.S. 287, he would have preferred not to give standing to constructive service di-
vorces obtained on short residence. 334 U.S. 541, 549–54 (1948). These two Justices
filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557
(1948).
946 ART. IV—STATES’ RELATIONS
76 Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 62 U.S.
(21 How.) 582 (1859); Lynde v. Lynde, 181 U.S. 183, 186–187 (1901); Audubon v.
Shufeldt, 181 U.S. 575, 577 (1901); Bates v. Bodie, 245 U.S. 520 (1918); Yarborough
v. Yarborough, 290 U.S. 202 (1933); Loughran v. Loughran, 292 U.S. 216 (1934).
77 Griffin v. Griffin, 327 U.S. 220 (1946).
78 327 U.S. at 228. An alimony case of a quite extraordinary pattern was that of
Sutton v. Leib, 342 U.S. 402 (1952). Because of the diverse citizenship of the par-
ties, who had once been husband and wife, the case was brought by the latter in a
federal court in Illinois. Her suit was to recover unpaid alimony that was to con-
tinue until her remarriage. To be sure, she had, as she confessed, remarried in Ne-
vada, but the marriage had been annulled in New York on the ground that the man
was already married, because his divorce from his previous wife was null and void,
she having neither entered a personal appearance nor been personally served. The
Court, speaking by Justice Reed, held that the New York annulment of the Nevada
marriage must be given full faith and credit in Illinois but left Illinois to decide for
itself the effect of the annulment upon the obligations of petitioner’s first husband.
79 Halvey v. Halvey, 330 U.S. 610, 615 (1947).
948 ART. IV—STATES’ RELATIONS
80 May v. Anderson, 345 U.S. 528 (1953). Justices Jackson, Reed, and Minton
dissented.
81 356 U.S. 604 (1958). Rejecting the implication that recognition must be ac-
corded unless the circumstances have changed, Justice Frankfurter dissented on the
ground that in determining what is best for the welfare of the child, the forum court
cannot be bound by an absentee, foreign custody decree, “irrespective of whether
changes in circumstances are objectively provable.”
82 Ford v. Ford, 371 U.S. 187, 192–94 (1962). As part of a law dealing with pa-
rental kidnaping, Congress, in Pub. L. 96–611, 8(a), 94 Stat. 3569, 28 U.S.C. § 1738A,
required states to give full faith and credit to state court custody decrees provided
the original court had jurisdiction and is the home state of the child.
83 334 U.S. 541 (1948).
84 350 U.S. 568 (1956).
ART. IV—STATES’ RELATIONS 949
Court’s contention that the Florida decree contained no ruling on the wife’s entitle-
ment to alimony and mentioned that for want of personal jurisdiction over the wife,
the Florida court was not competent to dispose of that issue. 350 U.S. at 575.
86 Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). Two Justices dissented. Justice
Frankfurter was unable to perceive “why dissolution of the marital relation is not
so personal as to require personal jurisdiction over the absent spouse, while the de-
nial of alimony . . . is.” Justice Harlan maintained that, because the wife did not
become a domiciliary of New York until after the Nevada decree, she had no pre-
divorce rights in New York that the latter was obligated to protect.
87 Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232 U.S. 162 (1914).
88 Riley v. New York Trust Co., 315 U.S. 343 (1942).
89 Brown v. Fletcher’s Estate, 210 U.S. 82, 90 (1908). See also Stacy v. Thrasher,
47 U.S. (6 How.) 44, 58 (1848); McLean v. Meek, 59 U.S. (18 How.) 16, 18 (1856).
950 ART. IV—STATES’ RELATIONS
the estate, when under the law of the former state the order of the
probate court barring all creditors who had failed to bring in their
demand from any further claim against the executors was binding
upon all.90 What is more important, however, is that the res in such
a proceeding, that is, the estate, in order to entitle the judgment to
recognition under Article IV, 1, must have been located in the state
or legally attached to the person of the decedent. Such a judgment
is accordingly valid, generally speaking, to distribute the intan-
gible property of the decedent, though the evidences thereof were
actually located elsewhere.91 This is not so, on the other hand, as
to tangibles and realty. In order that the judgment of a probate court
distributing these be entitled to recognition under the Constitu-
tion, they must have been located in the state; as to tangibles and
realty outside the state, the decree of the probate court is entirely
at the mercy of the lex rei sitae.92 So, the probate of a will in one
state, while conclusive in that state, does not displace legal provi-
sions necessary to its validity as a will of real property in other
states.93
Adoption Decrees.—That a statute legitimizing children born
out of wedlock does not entitle them by the aid of the Full Faith
and Credit Clause to share in the property located in another state
is not surprising, in view of the general principle (to which there
are exceptions) that statutes do not have extraterritorial opera-
tion.94 For the same reason, adoption proceedings in one state are
not denied full faith and credit by the law of the sister state that
excludes children adopted by proceedings in other states from the
right to inherit land in the sister state.95
Garnishment Decrees.—Garnishment proceedings combine some
of the elements of both an in rem and an in personam action. Sup-
90 Tilt v. Kelsey, 207 U.S. 43 (1907). In the case of Borer v. Chapman, 119 U.S.
587, 599 (1887), involving a complicated set of facts, it was held that a judgment in
a probate proceeding, which was merely ancillary to proceedings in another State
and which ordered the residue of the estate to be assigned to the legatee and dis-
charged the executor from further liability, did not prevent a creditor, who was not
a resident of the State in which the ancillary judgment was rendered, from setting
up his claim in the state probate court which had the primary administration of the
estate.
91 Blodgett v. Silberman, 277 U.S. 1 (1928).
92 Kerr v. Moon, 22 U.S. (9 Wheat.) 565 (1824); McCormick v. Sullivant, 23 U.S.
(10 Wheat.) 192 (1825); Clarke v. Clarke, 178 U.S. 186 (1900). The controlling prin-
ciple of these cases is not confined to proceedings in probate. A court of equity “not
having jurisdiction of the res cannot affect it by its decree nor by a deed made by a
master in accordance with the decree.” Fall v. Eastin, 215 U.S. 1, 11 (1909).
93 Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also Darby v. Mayer, 23
U.S. (10 Wheat.) 465 (1825); Gasquet v. Fenner, 247 U.S. 16 (1918).
94 Olmstead v. Olmstead, 216 U.S. 386 (1910).
95 Hood v. McGehee, 237 U.S. 611 (1915).
ART. IV—STATES’ RELATIONS 951
pose that A owes B and B owes C, and that the two former live in
a different state from C. A, while on a brief visit to C’s state, is
presented with a writ attaching his debt to B and also a summons
to appear in court on a named day. The result of the proceedings
thus instituted is that a judgment is entered in C’s favor against A
to the amount of his indebtedness to B. Subsequently A is sued by
B in their home state and offers the judgment, which he has in the
meantime paid, in defense. It was argued on behalf of B that A’s
debt to him had a situs in their home state and furthermore that C
could not have sued B in this same state without formally acquir-
ing a domicile there. Both propositions were, however, rejected by
the Court, which held that the judgment in the garnishment pro-
ceedings was entitled to full faith and credit as against B’s ac-
tion.96
Penal Judgments: Types Entitled to Recognition
The Full Faith and Credit Clause has been interpreted in the
light of the “incontrovertible maxim” that “the courts of no country
execute the penal laws of another.” 97 In the leading case of Hun-
tington v. Attrill,98 however, the Court so narrowly defined “penal”
in this connection as to make it substantially synonymous with “crimi-
nal” and on this basis held a judgment which had been recovered
under a state statute making the officers of a corporation who signed
and recorded a false certificate of the amount of its capital stock
liable for all of its debts to be entitled under Article IV, § 1, to rec-
ognition and enforcement in the courts of sister states. Nor, in gen-
eral, is a judgment for taxes to be denied full faith and credit in
state and federal courts merely because it is for taxes. In Nelson v.
George,99 in which a prisoner was tried in California and North Caro-
lina and convicted and sentenced in both states for various felo-
nies, the Court determined that the Full Faith and Credit Clause
did not require California to enforce a penal judgment handed down
by North Carolina; California was free to consider what effect if any
it would give to the North Carolina detainer.100 Until the obliga-
tion to extradite matured, the Full Faith and Credit Clause did not
96 Harris v. Balk, 198 U.S. 215 (1905). See also Chicago, R.I. & P. Ry. v. Sturm,
174 U.S. 710 (1899); King v. Cross, 175 U.S. 396, 399 (1899); Louisville & Nashville
Railroad v. Deer, 200 U.S. 176 (1906); Baltimore & Ohio R.R. v. Hostetter, 240 U.S.
620 (1916). Harris itself has not survived the due process reformulation of Shaffer
v. Heitner, 433 U.S. 186 (1977). See Rush v. Savchuk, 444 U.S. 320 (1980).
97 The Antelope, 23 U.S. (10 Wheat.) 66, 123 (1825). See also Wisconsin v. Peli-
Moore v. Mitchell, 281 U.S. 18 (1930); Milwaukee County v. White Co., 296 U.S. 268
(1935).
99 399 U.S. 224 (1970).
100 399 U.S. at 229.
952 ART. IV—STATES’ RELATIONS
U.S. (21 Wall.) 71 (1875); Hanley v. Donoghue, 116 U.S. 1 (1885); Wisconsin v. Peli-
can Ins. Co., 127 U.S. 265 (1888); Simmons v. Saul, 138 U.S. 439 (1891); American
Express Co. v. Mullins, 212 U.S. 311 (1909).
102 Fauntleroy v. Lum, 210 U.S. 230 (1908).
103 Anglo-American Prov. Co. v. Davis Prov. Co., 191 U.S. 373 (1903).
104 133 U.S. 107 (1890).
ART. IV—STATES’ RELATIONS 953
105 See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (stat-
utes); and Smithsonian Institution v. St. John, 214 U.S. 19 (1909) (state constitu-
tional provision).
106 Baker v. General Motors Corp., 522 U.S. 222, 232 (1998), quoted in Fran-
chise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Justice Nelson, in the Dred
Scott case, drew an analogy to international law, concluding that states, as well as
nations, judge for themselves the rules governing property and persons within their
territories. Scott v. Sandford, 60 U.S. (19 How.) 393, 460 (1857). “One State cannot
exempt property from taxation in another,” the Court concluded in Bonaparte v. Tax
Court, 104 U.S. 592 (1882), holding that no provision of the Constitution, including
the Full Faith and Credit Clause, enabled a law exempting from taxation certain
debts of the enacting state to prevent another state (the state in which the creditor
resided) from taxing the debts. See also Bank of Augusta v. Earle, 38 U.S. (13 Pet.)
519, 589–96 (1839); Kryger v. Wilson, 242 U.S. 171 (1916); and Bond v. Hume, 243
U.S. 15 (1917).
107 Baker v. General Motors Corp., 522 U.S. at 232.
108 Alaska Packers Ass’n. v. Industrial Accident Comm’n, 294 U.S. 532 (1935);
Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). When, in a state court, the valid-
ity of an act of the legislature of another state is not in question, and the contro-
versy turns merely upon its interpretation or construction, no question arises under
the Full Faith and Credit Clause. See also Western Life Indemnity Co. v. Rupp, 235
U.S. 261 (1914), citing Glenn v. Garth, 147 U.S. 360 (1893); Lloyd v. Matthews, 155
U.S. 222, 227 (1894); Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900); Al-
len v. Alleghany Co., 196 U.S. 458, 465 (1905); Texas & N.O.R.R. v. Miller, 221 U.S.
408 (1911). See also National Mut. B. & L. Ass’n v. Brahan, 193 U.S. 635 (1904);
Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903); Pennsylvania Fire Ins.
Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917).
109 E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Nevada v. Hall, 440
U.S. 410 (1979); Carroll v. Lanza, 349 U.S. 408 (1955); Pacific Employers Ins. Co. v.
954 ART. IV—STATES’ RELATIONS
As such, a state need not “substitute for its own statute, appli-
cable to persons and events within it, the statute of another state
reflecting a conflicting and opposed policy,” so long as the state does
not adopt a “policy of hostility to the” public acts of that other state
in so doing.110 In recent years, the Court has, in protracted litiga-
tion by a Nevada citizen in a Nevada court over alleged abusive
practices by a California state agency, twice interpreted the “policy
of hostility” standard.111 In 2003, in Franchise Tax Board of Califor-
nia v. Hyatt, the Supreme Court held that the Nevada Supreme Court
did not exhibit “hostility” in declining to apply a California law af-
fording complete immunity to state agencies, because the state high
court had, in considering “comity principles with a healthy regard
for California’s sovereign status,” legitimately relied on “the con-
tours of Nevada’s own sovereign immunity from suit as a bench-
mark for its analysis.” 112 Thirteen years later, after the case had
been remanded and the Nevada Supreme Court had crafted a “spe-
cial rule” for damages in the matter wherein the California state
agency could not rely on the Nevada sovereign immunity statute
limiting liability to $50,000, the Supreme Court reviewed whether
the Nevada court’s ruling conflicted with the Full Faith and Credit
Clause.113 In contrast to the 2003 ruling, the 2016 ruling held that
the Nevada Supreme Court had acted in violation of the Full Faith
and Credit Clause. Specifically, the High Court concluded that up-
holding the Nevada Supreme Court’s “special rule”—which was sup-
ported by a “conclusory statement” respecting California’s lack of
oversight of its own agencies and was viewed by the Court as re-
flecting a “policy of hostility to the public Acts’ of a sister State”—
would allow for a “system of special and discriminatory rules” that
conflicted with the Constitution’s “vision of 50 individual and equally
dignified States.” 114 While the Franchise Tax Board litigation dem-
onstrates that the “policy of hostility” standard still exists as a thresh-
old inquiry into whether a state is providing full faith and credit to
the public acts of a sister state, ordinarily a state has significant
discretion in applying their own choice of law provisions in matters
arising in that state’s courts, and the Court will not engage in any
Industrial Accident Comm’n, 306 U.S. 493 (1939); Alaska Packers Ass’n v. Indus-
trial Accident Comm’n, 294 U.S. 532 (1935).
110 See Carroll, 349 U.S. at 412–13.
111 See Franchise Tax Bd. of Cal. v. Hyatt (Franchise Tax Bd. II), 578 U.S. ___,
No. 14–1175, slip op. (2016); Franchise Tax Bd. of Cal. v. Hyatt (Franchise Tax Bd.
I), 538 U.S. 488 (2003).
112 See Franchise Tax Bd. I, 538 U.S. at 499.
113 See Franchise Tax Bd. II, slip op. at 3–4.
114 See id. at 7.
ART. IV—STATES’ RELATIONS 955
conclude” that Nevada’s special rule violated the Constitution, the Court had “aban-
doned” any broader balancing test with respect to the Full Faith and Credit Clause
and “public acts”).
116 Dennick v. Railroad Co., 103 U.S. 11 (1881), was the first so-called “Death
Act” case to reach the Supreme Court. See also Stewart v. Baltimore & O.R.R., 168
U.S. 445 (1897). Even today the obligation of a state to furnish a forum for the de-
termination of death claims arising in another state under the laws thereof appears
to rest on a rather precarious basis. In Hughes v. Fetter, 341 U.S. 609 (1951), the
Court, by a narrow majority, held invalid under the full faith and credit clause a
statute of Wisconsin which, as locally interpreted, forbade its courts to entertain
suits of this nature; in First Nat’l Bank v. United Air Lines, 342 U.S. 396 (1952), a
like result was reached under an Illinois statute. More recently, the Court has ac-
knowledged that the Full Faith and Credit Clause does not compel the forum state,
in an action for wrongful death occurring in another jurisdiction, to apply a longer
period of limitations set out in the wrongful death statute of the state in which the
fatal injury was sustained. Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953). Jus-
tices Jackson, Black, and Minton, in dissenting, advanced the contrary principle that
the clause requires that the law where the tort action arose should follow said ac-
tion in whatever forum it is pursued.
117 119 U.S. 615 (1887).
956 ART. IV—STATES’ RELATIONS
standing which, this dictum is today the basis of “the settled rule”
that the defendant in a transitory action is entitled to all the ben-
efits resulting from whatever material restrictions the statute un-
der which plaintiff ’s rights of action originated sets thereto, except
that courts of sister states cannot be thus prevented from taking
jurisdiction in such cases.118
However, the modern doctrine permits a forum state with suffi-
cient contacts with the parties or the matter in dispute to follow
its own law. In Allstate Ins. Co. v. Hague,119 the decedent was a
Wisconsin resident who had died in an automobile accident within
Wisconsin near the Minnesota border in the course of his daily em-
ployment commute to Wisconsin. He had three automobile insur-
ance policies on three automobiles, each limited to $15,000. Follow-
ing his death, his widow and personal representative moved to
Minnesota, and she sued in that state. She sought to apply Minne-
sota law, under which she could “stack” or aggregate all three poli-
cies, permissible under Minnesota law but not allowed under Wis-
consin law, where the insurance contracts had been made. The Court,
in a divided opinion, permitted resort to Minnesota law, because of
the number of contacts the state had with the matter. On the other
hand, an earlier decision is in considerable conflict with Hague. There,
a life insurance policy was executed in New York, on a New York
insured, with a New York beneficiary. The insured died in New York,
and his beneficiary moved to Georgia and sued to recover on the
policy. The insurance company defended on the ground that the in-
sured, in the application for the policy, had made materially false
statements that rendered it void under New York law. The defense
was good under New York law, impermissible under Georgia law,
and Georgia’s decision to apply its own law was overturned, the Court
stressing the surprise to the parties of the resort to the law of an-
other state and the absence of any occurrence in Georgia to which
its law could apply.120
Stockholder Corporation Relationship.—The protections of
the Full Faith and Credit Clause extend beyond transitory actions.
Some legal relationships are so complex, the Court holds, that the
law under which they were formed ought always to govern them as
long as they persist.121 One such relationship is that of a stock-
holder and his corporation. Hence, if a question arises as to the li-
ability of the stockholders of a corporation, the courts of the forum
118 Northern Pacific R.R. v. Babcock, 154 U.S. 190 (1894); Atchison, T. & S.F.
state are required by the Full Faith and Credit Clause to deter-
mine the question in accordance with the constitution, laws and ju-
dicial decisions of the corporation’s home states.122 Illustrative ap-
plications of the latter rule are to be found in the following cases.
A New Jersey statute forbidding an action at law to enforce a stock-
holder’s liability arising under the laws of another state and provid-
ing that such liability may be enforced only in equity, and that in
such a case the corporation, its legal representatives, all its credi-
tors, and stockholders, should be necessary parties, was held not to
preclude an action at law in New Jersey by the New York superin-
tendent of banks against 557 New Jersey stockholders in an insol-
vent New York bank to recover assessments made under the laws
of New York.123 Also, in a suit to enforce double liability, brought in
Rhode Island against a stockholder in a Kansas trust company, the
courts of Rhode Island were held to be obligated to extend recogni-
tion to the statutes and court decisions of Kansas whereunder it is
established that a Kansas judgment recovered by a creditor against
the trust company is not only conclusive as to the liability of the
corporation but also an adjudication binding each stockholder therein.
The only defenses available to the stockholder are those which he
could make in a suit in Kansas.124
Fraternal Benefit Society: Member Relationship.—The same
principle applies to the relationship that is formed when one takes
out a policy in a “fraternal benefit society.” Thus, in Royal Arcanum
v. Green,125 in which a fraternal insurance association chartered un-
der the laws of Massachusetts had been sued in the courts of New
York by a citizen of the latter state on a contract of insurance made
in that state, the Court held that the defendant company was en-
titled under the full faith and credit clause to have the case deter-
mined in accordance with the laws of Massachusetts and its own
constitution and by-laws as these had been construed by the Mas-
sachusetts courts.
Nor has the Court manifested any disposition to depart from
this rule. In Sovereign Camp v. Bolin,126 it declared that a state in
which a certificate of life membership of a foreign fraternal benefit
association is issued, which construes and enforces the certificate
according to its own law rather than according to the law of the
122 Converse v. Hamilton, 224 U.S. 243 (1912); Selig v. Hamilton, 234 U.S. 652
U.S. 350, 356 (1900); Reynolds v. Stockton, 140 U.S. 254, 264 (1891).
124 Hancock Nat’l Bank v. Farnum, 176 U.S. 640 (1900).
125 237 U.S. 531 (1915), followed in Modern Woodmen v. Mixer, 267 U.S. 544
(1925).
126 305 U.S. 66, 75, 79 (1938).
958 ART. IV—STATES’ RELATIONS
state in which the association is domiciled, denies full faith and credit
to the association’s charter embodied in the status of the domicili-
ary state as interpreted by the latter’s court. “The beneficiary cer-
tificate was not a mere contract to be construed and enforced accord-
ing to the laws of the State where it was delivered. Entry into
membership of an incorporated beneficiary society is more than a
contract; it is entering into a complex and abiding relation and the
rights of membership are governed by the law of the State of incor-
poration. [Hence] another State, wherein the certificate of member-
ship was issued, cannot attach to membership rights against the
society which are refused by the law of domicile.” Consistent with
that, the Court also held, in Order of Travelers v. Wolfe,127 that South
Dakota, in a suit brought therein by an Ohio citizen against an Ohio
benefit society, must give effect to a provision of the constitution of
the society prohibiting the bringing of an action on a claim more
than six months after disallowance by the society, notwithstanding
that South Dakota’s period of limitation was six years and that its
own statutes voided contract stipulations limiting the time within
which rights may be enforced. Objecting to these results, Justice
Black dissented on the ground that fraternal insurance companies
are not entitled, either by the language of the Constitution, or by
the nature of their enterprise, to such unique constitutional protec-
tion.
Insurance Company, Building and Loan Association: Con-
tractual Relationships.—Whether or not distinguishable by na-
ture of their enterprise, stock and mutual insurance companies and
mutual building and loan associations, unlike fraternal benefit soci-
eties, have not been accorded the same unique constitutional pro-
tection; with few exceptions,128 they have had controversies arising
out of their business relationships settled by application of the law
of the forum state. In National Mutual B. & L. Ass’n v. Brahan,129
the principle applicable to these three forms of business organiza-
tions was stated as follows: where a corporation has become local-
ized in a state and has accepted the laws of the state as a condi-
tion of doing business there, it cannot abrogate those laws by
attempting to make contract stipulations, and there is no violation
of the Full Faith and Credit Clause in instructing a jury to find
according to local law notwithstanding a clause in a contract that
it should be construed according to the laws of another state.
130 New York Life Ins. Co. v. Cravens, 178 U.S. 389 (1900). See also American
Office, 363 U.S. 207 (1960), three dissenters, Justices Black, and Douglas, and Chief
Justice Warren, would have resolved the constitutional issue which the Court avoided,
and would have sustained application of the forum state’s statute of limitations fix-
ing a period in excess of that set forth in the policy.
960 ART. IV—STATES’ RELATIONS
133 314 U.S. 201, 206–08 (1941). However, a decree of a Montana Supreme Court,
over the place of injury.135 The same result was achieved in a sub-
sequent case, but the Court promulgated a new rule, applied there-
after, which emphasized a balancing of the governmental interests
of each jurisdiction, rather than the mere application of the statu-
tory rule of one or another state under full faith and credit.136 Thus,
the Court held that the clause did not preclude California from dis-
regarding a Massachusetts’s workmen’s compensation statute, mak-
ing its law exclusive of any common law action or any law of any
other jurisdiction, and applying its own act in the case of an injury
suffered by a Massachusetts employee of a Massachusetts em-
ployer while in California in the course of his employment.137 It is
therefore settled that an injured worker may seek a compensation
award either in the state in which the injury occurred or in the
state in which the employee resided, his employer was principally
located, and the employment relation was formed, even if one stat-
ute or the other purported to confer an exclusive remedy on the
workman.138
Less settled is the question whether a second state, with inter-
ests in the matter, may supplement a workers’ compensation award
provided in the first state. At first, the Court ruled that a Louisi-
ana employee of a Louisiana employer, who was injured on the job
in Texas and who received an award under the Texas act, which
did not grant further recovery to an employee who received compen-
sation under the laws of another state, could not obtain additional
compensation under the Louisiana statute.139 Shortly, however, the
Court departed from this holding, permitting Wisconsin, the state
of the injury, to supplement an award pursuant to the laws of Illi-
nois, where the worker resided and where the employment con-
tract had been entered into.140 Although the second case could have
been factually distinguished from the first,141 the Court instead chose
to depart from the principle of the first, saying that only if the laws
of the first state making an award contained “unmistakable lan-
135 Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932).
136 Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935).
The state where the employment contract was made was permitted to apply its work-
men’s compensation law despite the provision in the law of the state of injury mak-
ing its law the exclusive remedy for injuries occurring there. See id. at 547 (stating
the balancing test).
137 Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939).
138 In addition to Alaska Packers and Pacific Ins., see Carroll v. Lanza, 349 U.S.
408 (1955); Cardillo v. Liberty Mutual Co., 330 U.S. 469 (1947); Crider v. Zurich
Ins. Co., 380 U.S. 39 (1965); Nevada v. Hall, 440 U.S. 410, 421–24 (1979).
139 Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943).
140 Industrial Comm’n v. McCartin, 330 U.S. 622 (1947).
141 Employer and employee had entered into a contract of settlement under the
Illinois act, the contract expressly providing that it did not affect any rights the em-
ployee had under Wisconsin law. 330 U.S. at 624.
962 ART. IV—STATES’ RELATIONS
guage” to the effect that those laws were exclusive of any remedy
under the laws of any other state would supplementary awards be
precluded.142 Although the overwhelming number of state court de-
cisions since follow McCartin, and Magnolia has been little no-
ticed, all the Justices expressed dissatisfaction with the former case
as a rule of the Full Faith and Credit Clause, although a majority
of the Court followed it and permitted a supplementary award.143
Full Faith and Credit and Statutes of Limitation.—The Full
Faith and Credit Clause is not violated by a state statute provid-
ing that all suits upon foreign judgments shall be brought within
five years after such judgment shall have been obtained, where the
statute has been construed by the state courts as barring suits on
foreign judgments, only if the plaintiff could not revive his judg-
ment in the state where it was originally obtained.144
57 U.S. (16 How.) 65, 81 (1854); Cheever v. Wilson, 76 U.S. (9 Wall.) 108, 123 (1870);
Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift v. McPherson, 232
U.S. 51 (1914); Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522 (1931); American
Surety Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Fertilizer Works, 292 U.S.
190 (1934); Durfee v. Duke, 375 U.S. 106 (1963); Allen v. McCurry, 449 U.S. 90 (1980);
Kremer v. Chemical Const. Corp., 456 U.S. 461 (1982).
ART. IV—STATES’ RELATIONS 963
Grand View Ass’n, 203 U.S. 106 (1906); Louisville & Nashville R.R. v. Stock Yards
Co., 212 U.S. 132 (1909); Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55 (1909); West
Side R.R. v. Pittsburgh Const. Co., 219 U.S. 92 (1911); Knights of Pythias v. Meyer,
265 U.S. 30, 33 (1924).
149 Reviewing some of the cases treated in this section, a writer in 1926 said:
“It appears, then, that the Supreme Court has quite definitely committed itself to a
program of making itself, to some extent, a tribunal for bringing about uniformity
964 ART. IV—STATES’ RELATIONS
Faith and Credit Clause. Congress has the power under the clause
to decree the effect that the statutes of one state shall have in other
states. This being so, it does not seem extravagant to argue that
Congress may under the clause describe a certain type of divorce
and say that it shall be granted recognition throughout the Union
and that no other kind shall. Or to speak in more general terms,
Congress has under the clause power to enact standards whereby
uniformity of state legislation may be secured as to almost any mat-
ter in connection with which interstate recognition of private rights
would be useful and valuable.
to judgments of foreign states and nations. Aetna Life Ins. Co. v. Tremblay, 223 U.S.
185 (1912). See also Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a French judg-
ment offered in defense was held not a bar to the suit. Four Justices dissented on
the ground that “the application of the doctrine of res judicata does not rest in dis-
cretion; and it is for the Government, and not for its courts, to adopt the principle
of retorsion, if deemed under any circumstances desirable or necessary.” At the same
sitting of the Court, an action in a United States circuit court on a Canadian judg-
ment was sustained on the same ground of reciprocity, Ritchie v. McMullen, 159 U.S.
235 (1895). See also Ingenohl v. Olsen & Co., 273 U.S. 541 (1927), where a decision
of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a
judgment of the Supreme Court of the British colony of Hong Kong, which was ren-
dered “after a fair trial by a court having jurisdiction of the parties.” Another in-
stance of international cooperation in the judicial field is furnished by letters roga-
tory. See 28 U.S.C. § 1781. Several States have similar provisions, 2 J. MOORE, DIGEST
OF INTERNATIONAL LAW 108–109 (1906).
152 Toomer v. Witsell, 334 U.S. 385, 395 (1948).
966 ART. IV—STATES’ RELATIONS
153 THE FEDERALIST, No. 42 (J. Cooke ed. 1961), 285–286 (Madison).
154 1 F. Thorpe ed., The Federal and State Constitutions, H. DOC. NO. 357, 59th
Cong., 2d Sess. (1909), 10.
155 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 173, 187, 443
shall be entitled to all the privileges and immunities of citizens of the several States.’
And if it be a just principle that every government ought to possess the means of
executing its own provisions by its own authority, it will follow, that in order to the
inviolable maintenance of that equality of privileges and immunities to which the
citizens of the Union will be entitled, the national judiciary ought to preside in all
cases in which one State or its citizens are opposed to another State or its citizens.
To secure the full effect of so fundamental a provision against all evasion and sub-
terfuge, it is necessary that its construction should be committed to that tribunal
which, having no local attachments, will be likely to be impartial between the differ-
ent States and their citizens, and which, owing its official existence to the Union,
will never be likely to feel any bias inauspicious to the principles on which its is
founded.” THE FEDERALIST, No. 80 (J. Cooke ed. 1961), 537–538 (Hamilton).
157 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873).
158 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
159 60 U.S. at 518, 527–29.
160 Today, the Due Process Clause of the Fifth Amendment imposes equal protec-
tion standards on the Federal Government. Bolling v. Sharpe, 347 U.S. 497 (1954);
Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618,
641–42 (1969).
ART. IV—STATES’ RELATIONS 967
373 (Va. 1811); Livingston v. Van Ingen, 9 Johns. Case. 507 (N.Y. 1812); Douglas v.
Stephens, 1 Del. Ch. 465 (1821); Smith v. Moody, 26 Ind. 299 (1866).
162 6 Fed. Cas. 546, 550 (No. 3230) (C.C.E.D. Pa. 1823). (Justice Washington on
circuit), quoted infra, “All Privileges and Immunities of Citizens in the Several States.”
“At one time it was thought that this section recognized a group of rights which,
according to the jurisprudence of the day, were classed as ‘natural rights’; and that
the purpose of the section was to create rights of citizens of the United States by
guaranteeing the citizens of every State the recognition of this group of rights by
every other State. Such was the view of Justice Washington.” Hague v. CIO, 307
U.S. 496, 511 (1939) (Justice Roberts for the Court). This view of the clause was
asserted by Justices Field and Bradley, Slaughter House Cases, 83 U.S. (16 Wall.)
97, 117–18 (1873) (dissenting opinions); Butchers’ Union Slaughter-House and Live-
Stock Landing Co. v. Crescent City Live-Stock Landing and Slaughter-House Co.,
111 U.S. 746, 760 (1884) (Justice Field concurring), but see infra, and was possibly
understood so by Chief Justice Taney. Scott v. Sandford, 60 U.S. (19 How.) 393, 423
(1857). See also id. at 580 (Justice Curtis dissenting). The natural rights concept of
privileges and immunities was strongly held by abolitionists and their congressional
allies who drafted the similar clause into 1 of the Fourteenth Amendment. Graham,
Our ‘Declaratory’ Fourteenth Amendment, reprinted in H. GRAHAM, EVERYMAN’S CONSTI-
TUTION: HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE CONSPIRACY THEORY, AND AMERI-
CAN CONSTITUTIONALISM 295 (1968).
163 McKane v. Durston, 153 U.S. 684, 687 (1894); see also cases cited infra.
164 City of Detroit v. Osborne, 135 U.S. 492 (1890).
968 ART. IV—STATES’ RELATIONS
165 Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869) (Justice Field for the Court;
but see supra); see also Slaughter House Cases, 83 U.S. (16 Wall.) 36, 77 (1873);
Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S.
431 (1936).
166 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978). See
also Austin v. New Hampshire, 420 U.S. 656, 660–65 (1975) (clause “implicates not
only the individual’s right to nondiscriminatory treatment but also, perhaps more
so, the structural balance essential to the concept of federalism.” Id. at 662); Hicklin
v. Orbeck, 437 U.S. 518, 523–24 (1978).
167 Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281–82 (1985).
See also Doe v. Bolton, 410 U.S. 179, 200 (1973) (discrimination against out-of-state
residents seeking medical care violates clause).
168 Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg.
133 U.S. 107 (1890). But see Zobel v. Williams, 457 U.S. 55, 71 (1982) (Justice O’Connor
concurring).
170 United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208
(1984).
171 465 U.S. at 217. The holding illustrates what the Court has referred to as
the “mutually reinforcing relationship” between the Commerce Clause and the Privi-
leges and Immunities Clause. Supreme Court of New Hampshire v. Piper, 470 U.S.
ART. IV—STATES’ RELATIONS 969
How Implemented
The Privileges and Immunities Clause is self-executory, that is
to say, its enforcement is dependent upon the judicial process. It
does not authorize penal legislation by Congress. Federal statutes
prohibiting conspiracies to deprive any person of rights or privi-
leges secured by state laws,173 or punishing infractions by individu-
als of the right of citizens to reside peacefully in the several states
and to have free ingress into and egress from such states,174 have
been held void.
as a basis for disparate treatment is not a sufficient basis for rejecting [a] claim.”
Hillside Dairy, Inc. v. Lyons, 539 U.S. 59, 67 (2003).
173 United States v. Harris, 106 U.S. 629, 643 (1883). See also Baldwin v. Franks,
bound to look beyond the act of incorporation and see who were
the incorporators. If it found these to consist solely of citizens of
the incorporating state, it was bound to permit them through the
agency of the corporation to exercise in other states such privileges
and immunities as the citizens thereof enjoyed. In Bank of Au-
gusta v. Earle,178 this view was rejected. The Court held that the
comity clause was never intended “to give to the citizens of each
State the privileges of citizens in the several States, and at the same
time to exempt them from the liabilities which the exercise of such
privileges would bring upon individuals who were citizens of the
State. This would be to give the citizens of other States far higher
and greater privileges than are enjoyed by the citizens of the State
itself.” 179 A similar result was reached in Paul v. Virginia,180 but
by a different course of reasoning. The Court there held that a cor-
poration, in this instance, an insurance company, was “the mere cre-
ation of local law” and could “have no legal existence beyond the
limits of the sovereignty” 181 which created it; even recognition of
its existence by other states rested exclusively in their discretion.
Later recent cases held that this discretion is qualified by other pro-
visions of the Constitution notably the Commerce Clause and the
Fourteenth Amendment.182 By reason of its similarity to the corpo-
rate form of organization, a Massachusetts trust has been denied
the protection of this clause.183
the citizens of all free governments; and which have, at all times,
been enjoyed by the citizens of the several States which compose
this Union . . . .” 185 He specified the following rights as answering
this description: “Protection by the Government; the enjoyment of
life and liberty, with the right to acquire and possess property of
every kind, and to pursue and obtain happiness and safety; subject
nevertheless to such restraints as the government must justly pre-
scribe for the general good of the whole. The right of a citizen of
one State to pass through, or to reside in any other State, for pur-
poses of trade, agriculture, professional pursuits, or otherwise; to
claim the benefits of the writ of habeas corpus; to institute and main-
tain actions of any kind in the courts of the State; to take, hold
and dispose of property, either real or personal; and an exemption
from higher taxes or impositions than are paid by the other citi-
zens of the State . . . .” 186
After thus defining broadly the private and personal rights which
were protected, Justice Washington went on to distinguish them from
the right to a share in the public patrimony of the state. “[W]e can-
not accede” the opinion proceeds, “to the proposition . . . that, un-
der this provision of the Constitution, the citizens of the several
States are permitted to participate in all the rights which belong
exclusively to the citizens of any particular State, merely upon the
ground that they are enjoyed by those citizens; much less, that in
regulating the use of the common property of the citizens of such
State, the legislature is bound to extend to the citizens of all other
States the same advantages as are secured to their own citi-
zens.” 187 The right of a state to the fisheries within its borders he
then held to be in the nature of a property right, held by the state
“for the use of the citizens thereof;” the state was under no obliga-
tion to grant “co-tenancy in the common property of the State, to
the citizens of all the other States.” 188 The precise holding of this
case was confirmed in McCready v. Virginia; 189 the logic of Geer v.
Connecticut 190 extended the same rule to wild game, and Hudson
Water Co. v. McCarter 191 applied it to the running water of a state.
In Toomer v. Witsell,192 however, the Court refused to apply this rule
to free-swimming fish caught in the three-mile belt off the coast of
South Carolina. It held instead that “commercial shrimping in the
185 6 Fed. Cas. at 551–52.
186 6 Fed. Cas. at 552.
187 6 Fed. Cas. at 552.
188 6 Fed. Cas. at 552.
189 94 U.S. 391 (1877).
190 161 U.S. 519 (1896).
191 209 U.S. 349 (1908).
192 334 U.S. 385 (1948).
972 ART. IV—STATES’ RELATIONS
193 334 U.S. at 403. In Mullaney v. Anderson, 342 U.S. 415 (1952), an Alaska
statute providing for the licensing of commercial fishermen in territorial waters and
levying a license fee of $50.00 on nonresident and only $5.00 on resident fishermen
was held void under Art. IV, § 2 on the authority of Toomer v. Witsell.
194 The cases arose in the Commerce Clause context. See Douglas v. Seacoast
Products, Inc., 431 U.S. 265, 284 (1977) (dictum). Geer v. Connecticut, 161 U.S. 519
(1896), was overruled in Hughes v. Oklahoma, 441 U.S. 322 (1979); Hudson Water
Co. v. McCarter, 209 U.S. 349 (1908), was overruled in Sporhase v. Nebraska ex rel.
Douglas, 458 U.S. 941 (1982).
195 Although the clause specifically refers to “citizens,” the Court treats the terms
(1984).
ART. IV—STATES’ RELATIONS 973
further found that any incidental burden on a nonresident’s ability to earn a living,
own property, or exercise another “fundamental” activity could largely be amelio-
rated by using other available authorities. The Court emphasized that the primary
purpose of the state freedom of information act was to provide state citizens with a
means to obtain an accounting of their public officials.
200 Hicklin v. Orbeck, 437 U.S. 518 (1978). Activity relating to pursuit of an oc-
cupation or common calling the Court recognized had long been held to be protected
by the clause. The burden of showing constitutional justification was clearly placed
on the state, id. at 526–28, rather than giving the statute the ordinary presumption
of constitutionality. See Mullaney v. Anderson, 342 U.S. 415, 418 (1952).
201 Barnard v. Thorstenn, 489 U.S. 546 (1989); Supreme Court of Virginia v. Fried-
man, 487 U.S. 59 (1988); Supreme Court of New Hampshire v. Piper, 470 U.S. 274
(1985). For the application of this test, see Lunding v. New York Tax Appeals Tribu-
nal, 522 U.S. 287, 296–99 (1998).
202 Blake v. McClung, 172 U.S. 239, 256 (1898). Of course as to suffrage, see
Dunn v. Blumstein, 405 U.S. 330 (1972), but not as to candidacy, the principle is
now qualified under the Equal Protection Clause of the Fourteenth Amendment. Baldwin
v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978) (citing Kanapaux v.
Ellisor, 419 U.S. 891 (1974); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.), aff’d,
414 U.S. 802 (1973)).
974 ART. IV—STATES’ RELATIONS
Access to Courts
The right to sue and defend in the courts is one of the highest
and most essential privileges of citizenship and must be allowed by
each state to the citizens of all other states to the same extent that
it is allowed to its own citizens.210 The constitutional requirement
is satisfied if the nonresident is given access to the courts of the
state upon terms that, in themselves, are reasonable and adequate
for the enforcing of any rights he may have, even though they may
not be technically the same as those accorded to resident citi-
zens.211 The Supreme Court upheld a state statute of limitations
that prevented a nonresident from suing in the state’s courts after
203 La Tourette v. McMaster, 248 U.S. 465 (1919).
204 Doherty & Co. v. Goodman, 294 U.S. 623 (1935).
205 Hess v. Pawloski, 274 U.S. 352, 356 (1927).
206 Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922), followed in Ferry v. Corbett,
expiration of the time for suit in the place where the cause of ac-
tion arose 212 and another such statute which that suspended its
operation as to resident plaintiffs, but not as to nonresidents, dur-
ing the period of the defendant’s absence from the state.213 A state
law making it discretionary with the courts to entertain an action
by a nonresident of the state against a foreign corporation doing
business in the state was sustained because it was applicable alike
to citizens and noncitizens residing out of the state.214 A statute
permitting a suit in the courts of the state for wrongful death occur-
ring outside the state, only if the decedent was a resident of the
state, was sustained, because it operated equally upon representa-
tives of the deceased whether citizens or noncitizens.215 Being pa-
tently nondiscriminatory, a Uniform Reciprocal State Law to se-
cure the attendance of witnesses from within or without a state in
criminal proceedings, whereunder an Illinois resident, while tempo-
rarily in Florida, was summoned to appear at a hearing for deter-
mination as to whether he should be surrendered to a New York
officer for testimony in the latter state, does not violate this clause.216
Taxation
In the exercise of its taxing power, a state may not discrimi-
nate substantially between residents and nonresidents. In Ward v.
Maryland,217 the Court set aside a state law that imposed specific
taxes upon nonresidents for the privilege of selling within the state
goods that were produced in other states. Also found to be incom-
patible with the comity clause was a Tennessee license tax, the amount
of which was dependent upon whether the person taxed had his
chief office within or without the state.218 In Travis v. Yale & Towne
Mfg. Co.,219 the Court, although sustaining the right of a state to
tax income accruing within its borders to nonresidents,220 held the
particular tax void because it denied to nonresidents exemptions which
were allowed to residents. The “terms ‘resident’ and ‘citizen’ are not
212 252 U.S. at 563.
213 Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).
214 Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929).
215 Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907).
216 New York v. O’Neill, 359 U.S. 1 (1959). Justices Douglas and Black dis-
sented.
217 79 U.S. (12 Wall.) 418, 424 (1871). See also Downham v. Alexandria Council,
v. New Hampshire, 420 U.S. 656 (1975), the Court held void a state commuter in-
come tax, inasmuch as the State imposed no income tax on its own residents and
thus the tax fell exclusively on nonresidents’ income and was not offset even approxi-
mately by other taxes imposed upon residents alone.
976 ART. IV—STATES’ RELATIONS
U.S. 404 (1935), in which discriminatory taxation of bank deposits outside the state
owned by a citizen of the state was held to infringe a privilege of national citizen-
ship, in contravention of the Fourteenth Amendment. Colgate v. Harvey was over-
ruled by Madden v. Kentucky, 309 U.S. 83, 93 (1940).
229 1 Stat. 302 (1793), 18 U.S.C. § 3182. The Act requires rendition of fugitives
127 (1916). Justice Story wrote: “[T]he natural, if not the necessary conclusion is,
that the national government, in the absence of all positive provisions to the con-
trary, is bound, through its own proper departments, legislative, judicial, or execu-
tive, as the case may require, to carry into effect all the rights and duties imposed
upon it by the Constitution”; and again, “it has, on various occasions, exercised pow-
ers which were necessary and proper as means to carry into effect rights expressly
given, and duties expressly enjoined thereby.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.)
539, 616, 618–19 (1842).
978 ART. IV—STATES’ RELATIONS
the demands of those laws may be satisfied before the duty of obe-
dience to the requisition arises.231 But, in Kentucky v. Dennison,232
the Court held that this statute was merely declaratory of a moral
duty; that the Federal Government “has no power to impose on a
State officer, as such, any duty whatever, and compel him to per-
form it,” 233 and consequently that a federal court could not issue a
mandamus to compel the governor of one state to surrender a fugi-
tive to another. Long considered a constitutional derelict, Dennison
was finally formally overruled in 1987.234 Now, states and territo-
ries may invoke the power of federal courts to enforce against state
officers this and other rights created by federal statute, including
equitable relief to compel performance of federally imposed du-
ties.235
Fugitive From Justice Defined.—To be a fugitive from jus-
tice within the meaning of this clause, it is necessary that, in the
regular course of judicial proceedings, one have been charged with
a crime, but it is not necessary that one have left the state after
having been charged. It is sufficient that, having been charged with
a crime in one state, one is found in another state.236 And the mo-
tive that induced the departure is immaterial.237 Even if a fugitive
were brought involuntarily into the state where found by requisi-
tion from another state, he may be surrendered to a third state upon
an extradition warrant.238 A person indicted a second time for the
same offense is nonetheless a fugitive from justice by reason of the
fact that after dismissal of the first indictment, on which he was
originally indicted, he left the state with the knowledge of, or with-
out objection by, state authorities.239 But a defendant cannot be ex-
tradited if he was only constructively present in the demanding state
ated by this decision by making it unlawful for any person to flee from one state to
another for the purpose of avoiding prosecution in certain cases. 48 Stat. 782, 18
U.S.C. § 1073.
234 Puerto Rico v. Branstad, 483 U.S. 219 (1987). “Kentucky v. Dennison is the
product of another time. The conception of the relation between the States and the
Federal Government there announced is fundamentally incompatible with more than
a century of constitutional development.” Id. at 230.
235 483 U.S. at 230.
236 Roberts v. Reilly, 116 U.S. 80, 95 (1885). See also Strassheim v. Daily, 221
U.S. 280 (1911); Appleyard v. Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel,
114 U.S. 642, 650 (1885).
237 Drew v. Thaw, 235 U.S. 432, 439 (1914).
238 Innes v. Tobin, 240 U.S. 127 (1916).
239 Bassing v. Cady, 208 U.S. 386 (1908).
ART. IV—STATES’ RELATIONS 979
at the time of the commission of the crime charged.240 For the pur-
pose of determining who is a fugitive from justice, the words “trea-
son, felony or other crime” embrace every act forbidden and made
punishable by a law of a state,241 including misdemeanors.242
Procedure for Removal.—Only after a person has been charged
with a crime in the regular course of judicial proceedings is the gov-
ernor of a state entitled to make demand for his return from an-
other state.243 The person demanded has no constitutional right to
be heard before the governor of the state in which he is found on
the question whether he has been substantially charged with crime
and is a fugitive from justice.244 The constitutionally required sur-
render is not to be interfered with by habeas corpus upon specula-
tions as to what ought to be the result of a trial.245 Nor is it proper
thereby to inquire into the motives controlling the actions of the
governors of the demanding and surrendering states.246 Matters of
defense, such as the running of the statute of limitations,247 or the
contention that continued confinement in the prison of the demand-
ing state would amount to cruel and unjust punishment,248 cannot
be heard on habeas corpus but should be tested in the courts of the
demanding state, where all parties may be heard, where all perti-
nent testimony will be readily available, and where suitable relief,
if any, may be fashioned. A defendant will, however, be discharged
on habeas corpus if he shows by clear and satisfactory evidence that
he was outside the demanding state at the time of the crime.249 If,
however, the evidence is conflicting, habeas corpus is not a proper
proceeding to try the question of alibi.250 The habeas court’s role is,
therefore, very limited.251
Trial of Fugitives After Removal.—There is nothing in the
Constitution or laws of the United States that exempts an offender,
240 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903).
241 Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103 (1861).
242 Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 375 (1873).
243 Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104 (1861); Pierce v. Creecy,
210 U.S. 387 (1908). See also Matter of Strauss, 197 U.S. 324, 325 (1905); Marbles
v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911).
244 Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192
(1906).
245 Drew v. Thaw, 235 U.S. 432 (1914).
246 Pettibone v. Nichols, 203 U.S. 192 (1906).
247 Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). See also Rodman
482 U.S. 400 (1987), the Court reiterated that extradition is a “summary proce-
dure.”
980 ART. IV—STATES’ RELATIONS
brought before the courts of a state for an offense against its laws,
from trial and punishment, even though he was brought from an-
other state by unlawful violence,252 or by abuse of legal process,253
and a fugitive lawfully extradited from another state may be tried
for an offense other than that for which he was surrendered.254 The
rule is different, however, with respect to fugitives surrendered by
a foreign government, pursuant to treaty. In that case the offender
may be tried only “for the offense with which he is charged in the
proceedings for his extradition, until a reasonable time and oppor-
tunity 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.” 255
252 Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707,
215 (1906).
254 Lascelles v. Georgia, 148 U.S. 537, 543 (1893).
255 United States v. Rauscher, 119 U.S. 407, 430 (1886).
256 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842).
257 1 Stat. 302 (1793).
258 Jones v. Van Zandt, 46 U.S. (5 How.) 215, 229 (1847); Ableman v. Booth, 62
1937).
263 Id.
264 Id. The present provision was then adopted as a substitute. Id. at 455.
265 Pollard v. Hagan, 44 U.S. (3 How.) 212, 221 (1845). The Continental Con-
gress in responding in the Northwest Ordinance, on July 13, 1787, provided that
when each of the designated states in the territorial area achieved a population of
60,000 free inhabitants it was to be admitted “on an equal footing with the original
States, in all respects whatever.” An Ordinance for the Government of the Territory
of the United States Northwest of the River Ohio, Art. V, 5 JOURNALS OF CONGRESS 752–
754 (1823 ed.), reprinted in C. Tansill ed., Documents Illustrative of the Formation
of the Union of the American States, H. DOC. NO. 398, 69th Cong., 1st Sess. (1927),
47, 54.
982 ART. IV—STATES’ RELATIONS
admission a clause providing that the state enters the Union “on
an equal footing with the original States in all respects what-
ever.” 266 With the admission of Louisiana in 1812, the principle of
equality was extended to states created out of territory purchased
from a foreign power.267 By the Joint Resolution of December 29,
1845, Texas, then an independent Nation, “was admitted into the
Union on an equal footing with the original States in all respects
whatever.” 268
However, if the doctrine rested merely on construction of the
declarations in the admission acts, then the conditions and limita-
tions imposed by Congress and agreed to by the states in order to
be admitted would nonetheless govern, since they must be con-
strued along with the declarations. Again and again, however, in
adjudicating the rights and duties of states admitted after 1789,
the Supreme Court has referred to the condition of equality as if it
were an inherent attribute of the Federal Union.269 That the doc-
trine is of constitutional stature was made evident at least by the
time of the decision in Pollard’s Lessee, if not before.270 Pollard’s
Lessee involved conflicting claims by the United States and Ala-
bama of ownership of certain partially inundated lands on the shore
of the Gulf of Mexico in Alabama. The enabling act for Alabama
had contained both a declaration of equal footing and a reservation
to the United States of these lands.271 Rather than an issue of mere
land ownership, the Court saw the question as one concerning sov-
ereignty and jurisdiction of the states. Because the original states
retained sovereignty and jurisdiction over the navigable waters and
the soil beneath them within their boundaries, retention by the United
States of either title to or jurisdiction over common lands in the
new states would bring those states into the Union on less than an
equal footing with the original states. This, the Court would not
permit. “Alabama is, therefore, entitled to the sovereignty and ju-
risdiction over all the territory within her limits, subject to the com-
mon law, to the same extent that Georgia possessed it, before she
266 1 Stat. 491 (1796). Prior to Tennessee’s admission, Vermont and Kentucky
were admitted with different but conceptually similar terminology. 1 Stat. 191 (1791);
1 Stat. 189 (1791).
267 2 Stat. 701, 703 (1812).
268 Justice Harlan, speaking for the Court, in United States v. Texas, 143 U.S.
Atchison, T. & S.F. Ry., 235 U.S. 151 (1914); Illinois Cent. R.R. v. Illinois, 146 U.S.
387, 434 (1892); Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891); Weber v.
Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65 (1873).
270 Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). See Mayor of New
Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Permoli v. Municipality No. 1
of New Orleans, 44 U.S. (3 How.) 588 (1845).
271 3 Stat. 489, 492 (1819).
ART. IV—STATES’ RELATIONS 983
supplied). See also id. at 222–23. A unanimous Court explained the rule on state
ownership of navigable waters in PPL Montana, LLC v. Montana, 565 U.S. ___, No.
10–218, slip op. (2012). Under the equal footing doctrine, a State, upon entering the
Union, gains title to the beds of waters then navigable or tidally influenced, subject
only to federal powers under the Constitution (e.g., the Commerce Clause). By con-
trast, the United States retains any title vested in it to lands beneath waters not
then navigable or tidally influenced. For the distinct purpose of the equal footing
doctrine, “navigable waters” are those waters used, or susceptible to use, for trade
and travel by customary means at the time of statehood. Furthermore, the “naviga-
bility” of rivers is determined on a segment-by-segment basis, and lands under por-
tions of a stream that were impassable at statehood were not conveyed by force of
the doctrine.
273 Coyle v. Smith, 221 U.S. 559 (1911).
274 221 U.S. at 567.
275 See South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966). However, in
recent years the Court has relied on the general principle of “constitutional equal-
ity” among the states to strike down both federal and state laws. See, e.g., Fran-
chise Tax Bd. of Cal. v. Hyatt, 578 U.S. ___, No. 14–1175, slip op. at 7 (2016); Shelby
Cty. v. Holder, 570 U.S. ___, No. 12–96, slip op. at 9 (citing Nw. Austin Mun. Util.
Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
984 ART. IV—STATES’ RELATIONS
276 Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 224–25, 229–30 (1845); Coyle
v. Smith, 221 U.S. 559, 573–74 (1911). See also Bolln v. Nebraska, 176 U.S. 83, 89
(1900); Ward v. Race Horse, 163 U.S. 504, 514 (1895); Escanaba Co. v. City of Chi-
cago, 107 U.S. 678, 688 (1882); Withers v. Buckley, 61 U.S. (20 How.) 84, 92 (1857).
277 Coyle v. Smith, 221 U.S. 559, 574 (1911). Examples include Stearns v. Min-
nesota, 179 U.S. 223 (1900) (congressional authority to dispose of and to make rules
and regulations respecting the property of the United States); United States v. Sandoval,
231 U.S. 28 (1913) (regulating Indian tribes and intercourse with them); United States
v. Chavez, 290 U.S. 357 (1933) (same); Willamette Iron Bridge Co. v. Hatch, 125
U.S. 1, 9–10 (1888) (prevention of interference with navigability of waterways un-
der Commerce Clause).
278 United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179
282 Permoli v. First Municipality, 44 U.S. (3 How.) 589, 609 (1845); Sands v. Manistee
River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 61 U.S. (20
How.) 84, 92 (1858); Huse v. Glover, 119 U.S. 543 (1886); Willamette Iron Bridge
Co. v. Hatch, 125 U.S. 1, 9 (1888); Cincinnati v. Louisville & Nashville R.R., 223
U.S. 390 (1912).
283 Draper v. United States, 164 U.S. 240 (1896), following United States v.
(1912).
285 United States v. Sandoval, 231 U.S. 28 (1913).
286 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999)
abling act and the state constitution, the appellate procedure is gov-
erned by the state statutes and procedures.290
The new state, without the express or implied assent of Con-
gress, cannot enact that the records of the former territorial court
of appeals should become records of its own courts or provide by
law for proceedings based thereon.291
ceptible to use, for trade and travel at the time of statehood. PPL Montana, LLC v.
Montana, 565 U.S. ___, No. 10–218, slip op. at 11–13 (2012).
293 E.g., Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891).
294 44 U.S. (3 How.) 212, 223 (1845). See also Martin v. Waddell, 41 U.S. (16
der the three mile belt, Texas, which concededly did own this soil
before its annexation to the United States, was held to have surren-
dered its dominion and sovereignty over it, upon entering the Union
on terms of equality with the existing states. To this extent, the
earlier rule that unless otherwise declared by Congress the title to
every species of property owned by a territory passes to the state
upon admission 298 has been qualified. However, when Congress,
through passage of the Submerged Lands Act of 1953,299 surren-
dered its paramount rights to natural resources in the marginal seas
to certain states, without any corresponding cession to all states,
the transfer was held to entail no abdication of national sover-
eignty over control and use of the oceans in a manner destructive
of the equality of the states.300
While the territorial status continues, the United States has power
to convey property rights, such as rights in soil below the high-
water mark along navigable waters,301 or the right to fish in desig-
nated waters,302 which will be binding on the state.
las dissented.
301 Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S.
332 (1906).
302 United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. v. United
States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not
necessarily preclude the application to Indians of state game laws regulating the
time and manner of taking fish. New York ex rel. Kennedy v. Becker, 241 U.S. 556
(1916). See also Metlakatla Indians v. Egan, 369 U.S. 45, 54, 57–59 (1962); Kake
Village v. Egan, 369 U.S. 60, 64–65, 67–69, 75–76 (1962). But it has been held to be
violated by exacting a license fee that is both regulatory and revenue-producing. Tulee
v. Washington, 315 U.S. 681 (1942).
303 39 U.S. (14 Pet.) 526 (1840).
988 ART. IV—STATES’ RELATIONS
fornia v. Deseret Water, Oil & Irrigation Co., 243 U.S. 415 (1917); Utah Power &
Light Co. v. United States, 243 U.S. 389 (1917).
307 Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest
2792 (1976).
309 Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872); see also Irvine v. Mar-
shall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664
(1902).
310 Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. Seabury,
See also Maxwell Land-Grant Case, 121 U.S. 325, 366 (1887).
312 Ruddy v. Rossi, 248 U.S. 104 (1918).
ART. IV—STATES’ RELATIONS 989
rett, 45 U.S. (4 How.) 169 (1846); United States v. Waddell, 112 U.S. 76 (1884).
315 United States v. McGowan, 302 U.S. 535 (1938).
316 United States v. City of San Francisco, 310 U.S. 16 (1940).
317 Kleppe v. New Mexico, 426 U.S. 529 (1976).
318 California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987).
319 Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S.
474 (1946).
320 Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872). See also Irvine v. Mar-
shall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664
(1902).
321 Williams v. Lee, 358 U.S. 217 (1959).
990 ART. IV—STATES’ RELATIONS
consistent with the admission that the title passed and vested ac-
cording to the laws of the United States.” 322 In construing a convey-
ance by the United States of land within a state, the settled and
reasonable rule of construction of the state affords a guide in deter-
mining what impliedly passes to the grantee as an incident to land
expressly granted.323 But a state statute enacted subsequently to a
federal grant cannot operate to vest in the state rights that either
remained in the United States or passed to its grantee.324
165 U.S. 504, 510 (1897); El Paso & N.E. Ry. v. Gutierrez, 215 U.S. 87 (1909); First
Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1880).
326 Binns v. United States, 194 U.S. 486, 491 (1904). See also Sere v. Pitot, 10
U.S. (6 Cr.) 332, 336 (1810); Murphy v. Ramsey, 114 U.S. 15, 44 (1885).
327 Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 604 (1897); Simms v.
Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898).
328 24 Stat. 170 (1886).
329 Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also Mormon Church v.
United States, 136 U.S. 1, 14 (1890); ICC v. United States ex rel. Humboldt Steam-
ship Co., 224 U.S. 474 (1912).
330 Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138
(1904); Balzac v. Porto Rico, 258 U.S. 298 (1922) (collectively, the Insular Cases).
The guarantees of fundamental rights apply to persons in Puerto Rico, id. at 312–
13, but what these are and how they are to be determined, in light of Balzac’s hold-
ing that the right to a civil jury trial was not protected. The vitality of the Insular
Cases has been questioned by some Justices (Reid v. Covert, 354 U.S. 1, 14 (1957)
(plurality opinion); Torres v. Puerto Rico, 442 U.S. 465, 474, 475 (1979) (concurring
opinion of four Justices)), but there is no doubt that the Court adheres to it (United
States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Harris v. Rosario, 446 U.S.
651 (1980)). Applying stateside rights in Puerto Rico are Calero-Toledo v. Pearson
Yacht Leasing Co., 416 U.S. 663 (1974) (procedural due process); Examining Bd. v.
Flores de Otero, 426 U.S. 572 (1976) (equal protection principles); Torres v. Puerto
Rico, 442 U.S. 465 (1979) (search and seizure); Harris v. Rosario, supra (same); Ro-
driguez v. Popular Democratic Party, 457 U.S. 1, 7–8 (1982) (equality of voting rights);
ART. IV—STATES’ RELATIONS 991
ton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872); Hornbuckle v. Toombs, 85
U.S. (18 Wall.) 648, 655 (1874); Reynolds v. United States, 98 U.S. 145, 154 (1879);
The “City of Panama,” 101 U.S. 453, 460 (1880); McAllister v. United States, 141
U.S. 174, 180 (1891); United States v. McMillan, 165 U.S. 504, 510 (1897); Romeu v.
Todd, 206 U.S. 358, 368 (1907).
332 American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 545 (1828).
333 “Resd. that a Republican government . . . ought to be guaranteed by the United
States to each state.” 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787
22 (rev. ed. 1937). In a letter in April, 1787, to Randolph, who formally presented
the Virginia Plan to the Convention, Madison had suggested that “an article ought
to be inserted expressly guaranteeing the tranquility of the states against internal
as well as external danger. . . . Unless the Union be organized efficiently on repub-
lican principles innovations of a much more objectionable form may be obtruded.” 2
WRITINGS OF JAMES MADISON 336 (G. Hunt ed., 1900). On the background of the clause,
see W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 1 (1972).
334 Thus, on June 11, the language of the provision was on Madison’s motion
changed to: “Resolved that a republican constitution and its existing laws ought to
be guaranteed to each state by the United States.” 1 M. FARRAND, THE RECORDS OF THE
FEDERAL CONVENTION OF 1787 193–194, 206 (rev. ed. 1937). Then, on July 18, Gouverneur
Morris objected to this language on the ground that “[h]e should be very unwilling
that such laws as exist in R. Island ought to be guaranteed to each State of the
Union.” 2 id. at 47. Madison then suggested language “that the Constitutional au-
thority of the States shall be guaranteed to them respectively against domestic as
992 ART. IV—STATES’ RELATIONS
well as foreign violence,” whereas Randolph wanted to add to this the language “and
that no State be at liberty to form any other than a Republican Govt.” Wilson then
moved, “as a better expression of the idea,” almost the present language of the sec-
tion, which was adopted. Id. at 47–49.
335 Thus, Randolph on June 11, supporting Madison’s version pending then, said
that “a republican government must be the basis of our national union; and no state
in it ought to have it in their power to change its government into a monarchy.” 1
id. at 206. Again, on July 18, when Wilson and Mason indicated their understand-
ing that the object of the proposal was “merely” to protect states against violence,
Randolph asserted: “The Resoln. has 2 Objects. 1. to secure Republican government.
2. to suppress domestic commotions. He urged the necessity of both these provi-
sions.” 2 id. at 47. Following speakers alluded to the dangers of monarchy being
created peacefully as necessitating the provision. Id. at 48. See W. WIECEK, THE GUAR-
ANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 2 (1972).
336 See Article I, § 8, cl. 15.
337 See generally W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION (1972).
338 48 U.S. (7 How.) 1 (1849).
339 48 U.S. at 42.
340 74 U.S. (7 Wall.) 700, 729 (1869). In Georgia v. Stanton, 73 U.S. (6 Wall.) 50
(1868), the state attempted to attack Reconstruction legislation on the premise that
it already had a republican form of government and that Congress was thus not
authorized to act. The Court viewed the congressional decision as determinative.
341 Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. City of Port-
land, 223 U.S. 151 (1912); Davis v. Ohio, 241 U.S. 565 (1916); Ohio v. Akron Park
Dist., 281 U.S. 74 (1930); O’Neill v. Leamer, 239 U.S. 244 (1915); Highland Farms
Dairy v. Agnew, 300 U.S. 608 (1937). But in certain earlier cases the Court had dis-
posed of Guarantee Clause questions on the merits. Forsyth v. City of Hammond,
166 U.S. 506 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).
ART. IV—STATES’ RELATIONS 993
342 369 U.S. 186, 218–32 (1962). In the Court’s view, Guarantee Clause ques-
tions were nonjusticiable because resolution of them had been committed to Con-
gress and not because they involved matters of state governmental structure.
343 Subsequently, the Court, speaking through Justice O’Connor, raised without
deciding the possibility that the Guarantee Clause is justiciable and is a constraint
upon Congress’s power to regulate the activities of the states. New York v. United
States, 505 U.S. 144, 183–85 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991).
The opinions draw support from a powerful argument for using the Guarantee Clause
as a judicially enforceable limit on federal power. Merritt, The Guarantee Clause
and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988).
344 48 U.S. (7 How.) 1 (1849).
345 1 Stat. 424.
346 Luther v. Borden, 48 U.S. (7 How.) 1, 43 (1849).
ARTICLE V
MODE OF AMENDMENT
CONTENTS
Page
Amendment of the Constitution ............................................................................................... 997
Scope of the Amending Power ........................................................................................... 997
Proposing a Constitutional Amendment ........................................................................... 998
Proposals by Congress ................................................................................................ 999
The Convention Alternative ....................................................................................... 1000
Ratification ................................................................................................................... 1000
Authentication and Proclamation .............................................................................. 1011
Judicial Review Under Article V ....................................................................................... 1011
995
MODE OF AMENDMENT
ARTICLE V
The Congress, whenever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this Constitution, or,
on the Application of the Legislatures of two thirds of the sev-
eral States, shall call a Convention for proposing Amendments,
which in either Case, shall be valid to all Intents and Purposes,
as Part of this Constitution, when ratified by the Legislatures
of three fourths of the several States or by Conventions in three
fourths thereof, as the one or the other Mode of Ratification may
be proposed by the Congress; Provided that no Amendment which
may be made prior to the Year One thousand eight hundred and
eight shall in any Manner affect the first and fourth Clauses in
the Ninth Section of the first Article; and that no State, with-
out its Consent, shall be deprived of its equal Suffrage in the
Senate.
AMENDMENT OF THE CONSTITUTION
During the First Century of Its History, H. DOC. 353, pt. 2, 54th Congress, 2d Sess.
(1897), 363.
997
998 ART. V—MODE OF AMENDMENT
basis that the amending process could not be used to work such a
major change in the internal affairs of the states, but the protest
was in vain.4 Many years later the validity of both the Eighteenth
and Nineteenth Amendments was challenged because of their con-
tent. The arguments against the former took a wide range. Coun-
sel urged that the power of amendment is limited to the correction
of errors in the framing of the Constitution and that it does not
comprehend the adoption of additional or supplementary provi-
sions. They contended further that ordinary legislation cannot be
embodied in a constitutional amendment and that Congress cannot
constitutionally propose any amendment that involves the exercise
or relinquishment of the sovereign powers of a state.5 The Nine-
teenth Amendment was attacked on the narrower ground that a state
that had not ratified the amendment would be deprived of its equal
suffrage in the Senate because its representatives in that body would
be persons not of its choosing, i.e., persons chosen by voters whom
the state itself had not authorized to vote for Senators.6 Brushing
aside these arguments as unworthy of serious attention, the Su-
preme Court held both amendments valid.
and some thought that Congress would be the first to perceive the
need for amendment and that to leave the matter to the discretion
of the states would mean that no alterations but those increasing
the powers of the states would ever be proposed.12 Madison’s pro-
posal was adopted, empowering Congress to propose amendments
either on its own initiative or upon application by the legislatures
of two-thirds of the states.13 When this provision came back from
the Committee on Style, however, Gouverneur Morris and Gerry suc-
ceeded in inserting the language providing for a convention upon
the application of the legislatures of two-thirds of the states.14
Proposals by Congress.—Few difficulties of a constitutional na-
ture have arisen with regard to this method of initiating constitu-
tional change, the only method, as we noted above, so far success-
fully resorted to. When Madison submitted to the House of
Representatives the proposals from which the Bill of Rights evolved,
he contemplated that they should be incorporated in the text of the
original instrument.15 Instead, the House decided to propose them
as supplementary articles, a method followed since.16 It ignored a
suggestion that the two Houses should first resolve that amend-
ments are necessary before considering specific proposals.17 In the
National Prohibition Cases,18 the Court ruled that, in proposing an
amendment, the two Houses of Congress thereby indicated that they
deemed revision necessary. The same case also established the propo-
sition that the vote required to propose an amendment was a vote
of two thirds of the Members present—assuming the presence of a
quorum—and not a vote of two-thirds of the entire membership.19
The approval of the President is not necessary for a proposed amend-
ment.20
challenge to the Eleventh Amendment based on the argument that it had not been
submitted to the President for approval or veto. The Court’ s brief opinion merely
determined that the Eleventh Amendment was “constitutionally adopted.” Id. at 382.
Apparently during oral argument, Justice Chase opined that “[t]he negative of the
President applies only to the ordinary cases of legislation: He has nothing to do with
the proposition, or adoption, of amendments to the Constitution.” Id. at 381. See
1000 ART. V—MODE OF AMENDMENT
a Federal Constitutional Convention, 85th Congress, 1st Sess. (Comm. Print; House
Judiciary Committee) (1957). A thorough and critical study of activity under the pe-
tition method can be found in R. CAPLAN, CONSTITUTIONAL BRINKMANSHIP: AMENDING THE
CONSTITUTION BY NATIONAL CONVENTION (1988).
22 Id. See also Federal Constitutional Convention: Hearings Before the Senate Ju-
Congress, 1st sess. (Comm. Print; House Judiciary Committee) (1957), 7, 89.
24 Id. at 8–9, 89.
25 R. CAPLAN, CONSTITUTIONAL BRINKMANSHIP: AMENDING THE CONSTITUTION BY NATIONAL
ject matter, the effective date of congressional pay raises, the adop-
tion of this provision has unsettled much of the supposed learning
on the issue of the timeliness of pendency of constitutional amend-
ments.
It has been accepted that Congress may, in proposing an amend-
ment, set a reasonable time limit for its ratification. Beginning with
the Eighteenth Amendment, save for the Nineteenth, Congress has
included language in all proposals stating that the amendment should
be inoperative unless ratified within seven years.26 All the earlier
proposals had been silent on the question, and two amendments pro-
posed in 1789, one submitted in 1810 and another in 1861, and most
recently one in 1924 had gone to the states and had not been rati-
fied. In Coleman v. Miller,27 the Court refused to pass upon the ques-
tion whether the proposed child labor amendment, the one submit-
ted to the states in 1924, was open to ratification thirteen years
later. This it held to be a political question that Congress would
have to resolve in the event three-fourths of the states ever gave
their assent to the proposal.
In Dillon v. Gloss,28 the Court upheld Congress’s power to pre-
scribe time limitations for state ratifications and intimated that pro-
posals that were clearly out of date were no longer open for ratifi-
cation. Finding nothing express in Article V relating to time
constraints, the Court nevertheless found evidence that strongly sug-
gests that proposed amendments are not open to ratification for all
time or by states acting at widely separate times.29
Three related considerations were put forward. “First, proposal
and ratification are not treated as unrelated acts but as succeeding
steps in a single endeavor, the natural inference being that they
are not to be widely separated in time. Secondly, it is only when
there is deemed to be a necessity therefor that amendments are to
be proposed, the reasonable implication being that when proposed
they are to be considered and disposed of presently. Thirdly, as rati-
fication is but the expression of the approbation of the people and
is to be effective when had in three-fourths of the States, there is a
fair implication that it must be sufficiently contemporaneous in that
26 Seven-year periods were included in the texts of the proposals of the 18th,
20th, 21st, and 22d amendments. Apparently concluding in proposing the 23d that
putting the time limit in the text merely cluttered up the amendment, Congress in
it and in subsequent amendments included the time limits in the authorizing reso-
lution. After the extension debate over the Equal Rights proposal, Congress once
again inserted into the text of the amendment the time limit with respect to the
proposal of voting representation in Congress for the District of Columbia.
27 307 U.S. 433 (1939).
28 256 U.S. 368 (1921).
29 256 U.S. at 374.
1002 ART. V—MODE OF AMENDMENT
all Intents and Purposes, as part of this Constitution’ when ‘ratified’ by three-
fourths of the states—not that it might face a veto for tardiness. Despite the Su-
preme Court’s suggestion, no speedy ratification rule may be extracted from Article
V’s text, structure or history.” Laurence H. Tribe, The 27th Amendment Joins the
Constitution, WALL STREET JOURNAL, May 13, 1992, A15.
34 16 Ops. of the Office of Legal Coun. 102 (1992) (prelim. pr.).
35 Id. at 109–110. Coleman’s endorsement of the dictum in the Hughes opinion
was similarly pronounced dictum. Id. at 110. Both characterizations, as noted above,
are correct.
ART. V—MODE OF AMENDMENT 1003
posal and ratification are steps in a single process, the process must
be short rather than lengthy; the argument that an amendment should
reflect necessity says nothing about the length of time available, in
that the more recent ratifying states obviously thought the pay amend-
ment was necessary; and the fact that an amendment must reflect
consensus does not so much as intimate contemporaneous consen-
sus.36 Third, the OLC memorandum argued that the proper mode
of interpretation of Article V was to “provide a clear rule that is
capable of mechanical application, without any need to inquire into
the timeliness or substantive validity of the consensus achieved by
means of the ratification process. Accordingly, any interpretation that
would introduce confusion must be disfavored.” 37 The rule ought to
be, echoing Professor Tribe, that an amendment is ratified when
three-fourths of the states have approved it.38 The memorandum
vigorously pursues a “plain-meaning” rule of constitutional construc-
tion. Article V says nothing about time limits, and elsewhere in the
Constitution when the Framers wanted to include time limits they
did so. The absence of any time language means there is no require-
ment of contemporaneity or of a “reasonable” period.39
Now that the Amendment has been proclaimed and has been
accepted by Congress, where does this development leave the argu-
ment over the validity of proposals long distant in time? One may
assume that this precedent stands for the proposition that propos-
als remain viable forever. It may, on the one hand, stand for the
proposition that certain proposals, because they reflect concerns that
are as relevant today, or perhaps in some future time, as at the
time of transmission to the states, remain open to ratification. Cer-
tainly, the public concern with congressional pay made the Twenty-
seventh Amendment particularly pertinent. The other 1789 pro-
posal, relating to the number of representatives, might remain viable
under this standard, whereas the other proposals would not. On the
other hand, it is possible to argue that the precedent is an “aberra-
tion,” that its acceptance owed more to a political and philosophi-
cal argument between executive and legislative branches and to the
defensive posture of Congress in the political context of 1992 that
led to an uncritical acceptance of the Amendment. In that latter
light, the development is relevant to but not dispositive of the con-
troversy. And, barring some judicial interpretation, that is likely to
be where the situation rests.
36Id. at 111–112.
37Id. at 113.
38 Id. at 113–116.
39 Id. at 103–106. The OLC also referenced previous debates in Congress in which
Members had assumed this proposal and the others remained viable. Id.
1004 ART. V—MODE OF AMENDMENT
ciary Subcommittee on the Constitution, 95th Congress, 2d Sess. (1978); Equal Rights
Amendment Extension: Hearings Before the House Judiciary Subcommittee on Civil
and Constitutional Rights, 95th Congress, 1st/2d Sess. (1977–78).
41 H.J. Res. 638, 95th Congress, 2d Sess. (1978); 92 Stat. 3799.
42 Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455
U.S. 918 (1982), vacated and remanded to dismiss, 459 U.S. 809 (1982).
ART. V—MODE OF AMENDMENT 1005
8, 1977) all passed rescission resolutions without dispute about the actual passage.
The Kentucky rescission was attached to another bill and was vetoed by the Lieu-
tenant Governor, acting as Governor, citing grounds that included a state constitu-
tional provision prohibiting the legislature from passing a law dealing with more
than one subject and a senate rule prohibiting the introduction of new bills within
the last ten days of a session. Both the resolution and the veto message were sent
by the Kentucky Secretary of State to the General Services Administration. South
Dakota was the fifth state.
44 14 Stat. 428.
45 The Secretary was then responsible for receiving notices of ratification and
proclaiming adoption.
46 15 Stat. 706, 707.
47 15 Stat. 709.
48 307 U.S. 433, 488–50 (1939) (plurality opinion). For an alternative construc-
tion of the precedent, see Corwin & Ramsey, The Constitutional Law of Constitu-
tional Amendment, 27 NOTRE DAME LAW. 185, 201–204 (1951). The legislature of New
York attempted to withdraw its ratification of the 15th Amendment; although the
1006 ART. V—MODE OF AMENDMENT
H3505–06.
50 16 Ops. of the Office of Legal Coun. 102, 125 (1992) (prelim. pr.).
51 Id. at 118–121.
52 Id. at 121–126.
ART. V—MODE OF AMENDMENT 1007
What would be the result of adopting one view over the other?
First, finding that resolution of the question is committed to Con-
gress merely locates the situs of the power and says nothing about
what the resolution should be. That Congress in the past has re-
fused to accept rescissions is but the starting point, because, un-
like courts, Congress operates under no principle of stare decisis so
that the decisions of one Congress on a subject do not bind future
Congresses. If Congress were to be faced with a decision about the
validity of rescission, to what standards should it look?
That a question of constitutional interpretation may be “politi-
cal” in the sense of being committed to one or to both of the “politi-
cal” branches is not, of course, a judgment that in its resolution
the political branch may decide without recourse to principle. Reso-
lution of political questions is not subject to judicial review, so the
decisionmaker need not be troubled with the prospect of being over-
ruled. But both legislators and executive are bound by oath to ob-
serve the Constitution,53 and consequently the search for an an-
swer must begin with the original document.
It may be, however, that the Constitution does not speak to the
issue. Generally, in the exercise of judicial review, courts view the
actions of the legislative and executive branches in terms not of the
wisdom or desirability or propriety of their actions but in terms of
the comportment of those actions with the constitutional grants of
power and constraints upon those powers; if an action is within a
granted power and violates no restriction, the courts will not inter-
fere. How the legislature or the executive decides to deal with a
question within the confines of the powers each constitutionally have
is beyond judicial control.
Therefore, if the Constitution commits decision on an issue to,
say, Congress, and imposes no standards to govern or control the
reaching of that decision, Congress may be free to make a determi-
nation solely as a policy matter, restrained only by its sense of pro-
priety or wisdom or desirability. The reason that these issues are
not justiciable is not only that they are committed to a branch for
decision without intervention by the courts but also that the Con-
stitution does not contain an answer. This interpretation, in the con-
text of amending the Constitution, may be what Chief Justice Hughes
was deciding for the plurality of the Court in Coleman.54
53 Article VI, para. 3. “In the performance of assigned constitutional duties each
branch of the government must initially interpret the Constitution, and the interpre-
tation of its powers by any branch is due great respect from the others.” United
States v. Nixon, 418 U.S. 683, 703 (1974).
54 Coleman v. Miller, 307 U.S. 433, 450, 453 (1939) (plurality opinion). Thus,
considering the question of ratification after rejection, the Chief Justice found “no
1008 ART. V—MODE OF AMENDMENT
gested that the state approve the document on condition that certain amendments
the delegates thought necessary be adopted. Madison wrote: “The Constitution re-
quires an adoption in toto and for ever. It has been so adopted by the other states.
An adoption for a limited time would be as defective as an adoption of some of the
articles only. In short any condition whatever must vitiate the ratification.” 5 THE
PAPERS OF ALEXANDER HAMILTON 184 (H. Syrett ed., 1962).
58 256 U.S. 368 (1921). Of course, we recognize, as indicated at various points
above, that Dillon, and Coleman as well, insofar as they discuss points relied on
here, express dictum and are not binding precedent. They are discussed solely for
the persuasiveness of the views set out.
59 256 U.S. at 375.
60 256 U.S. at 374–75, quoted supra.
ART. V—MODE OF AMENDMENT 1009
power for itself to pass on the congressional decision, saying “[o]f the power of Con-
gress, keeping within reasonable limits, to fix a definite period for the ratification
we entertain no doubt” and noting later than no question existed that the seven-
year period was reasonable. Id.
62 307 U.S. 433, 452–54 (1939) (plurality opinion). It is, as noted above, not en-
tirely clear to what extent the Hughes plurality exempted from judicial review con-
gressional determinations made in the amending process. Justice Black’s concur-
rence thought the Court “treated the amending process of the Constitution in some
respects as subject to judicial review, in others as subject to the final authority of
Congress” and urged that the Dillon v. Gloss “reasonable time” construction be dis-
approved. Id. at 456, 458.
1010 ART. V—MODE OF AMENDMENT
aff’d mem. 257 U.S. 619 (1921); United States v. Sitka, 666 F. Supp. 19, 22 (D. Conn.
1987), aff’d, 845 F.2d 43 (2d Cir.), cert. denied, 488 U.S. 827 (1988). See 96 CONG.
REC. 3250 (Message from President Truman accompanying Reorg. Plan No. 20 of
1950); 16 Ops. of the Office of Legal Coun. 102, 117 (1992) (prelim. pr.).
64 16 Ops. of the Office of Legal Coun. at 116–118. Thus, OLC says that the
statute “clearly requires that, before performing this ministerial function, the Archi-
vist must determine whether he has received ‘official notice’ that an amendment has
been adopted ‘according to the provisions of the Constitution.’ This is the question
of law that the Archivist may properly submit to the Attorney General for resolu-
tion.” Id. at 118. But if his duty is “ministerial,” it seems, the Archivist may only
notice the fact of receipt of a state resolution; if he may, in consultation with the
Attorney General, determine whether the resolution is valid, that is considerably
more than a “ministerial” function.
65 No doubt under the Administrative Procedure Act, 5 U.S.C. §§ 701–706, al-
though there may well be questions about one possible exception—the “committed
to agency discretion” provision. Id. at § 701(a)(2).
66 282 U.S. 716 (1931).
ART. V—MODE OF AMENDMENT 1011
U.S.C. § 106b.
72 256 U.S. 368, 376 (1921).
73 Leser v. Garnett, 258 U.S. 130 (1922).
1012 ART. V—MODE OF AMENDMENT
74 307 U.S. 433 (1939). Cf. Fairchild v. Hughes, 258 U.S. 126 (1922), in which
the Court held that a private citizen could not sue in the federal courts to secure an
indirect determination of the validity of a constitutional amendment about to be ad-
opted.
75 Coleman v. Miller, 307 U.S. 433, 456, 459 (1939) (Justices Black, Roberts, Frank-
furter, and Douglas concurring). Because the four believed that the parties lacked
standing to bring the action, id. at 456, 460 (Justice Frankfurter dissenting on this
point, joined by the other three Justices), the further discussion of the applicability
of the political question doctrine is, strictly speaking, dicta. Justice Stevens, then a
circuit judge, also felt free to disregard the opinion because a majority of the Court
in Coleman “refused to accept that position.” Dyer v. Blair, 390 F. Supp. 1291, 1299–
1300 (N.D.Ill. 1975) (three-judge court). See also Idaho v. Freeman, 529 F. Supp.
1107, 1125–26 (D. Idaho, 1981), vacated and remanded to dismiss, 459 U.S. 809 (1982).
ART. V—MODE OF AMENDMENT 1013
76 Coleman v. Miller, 307 U.S. 433, 447–56 (1939) (Chief Justice Hughes joined
nonjusticiable too. 307 U.S. at 456. Although all nine Justices joined the rest of the
decision, see id. at 470, 474 (Justice Butler, joined by Justice McReynolds, dissent-
ing), one Justice did not participate in deciding the issue of the lieutenant gover-
nor’s participation; apparently, Justice McReynolds was the absent Member. Note,
28 Geo. L. J. 199, 200 n.7 (1940). Thus, Chief Justice Hughes and Justices Stone,
Reed, and Butler would have been the four finding the issue justiciable.
78 The strongest argument to the effect that constitutional amendment ques-
tions are justiciable is Rees, Throwing Away the Key: The Unconstitutionality of the
Equal Rights Amendment Extension, 58 TEX. L. REV. 875, 886–901 (1980), and his
student note, Comment, Rescinding Ratification of Proposed Constitutional Amend-
ments: A Question for the Court, 37 LA. L. REV. 896 (1977). Two perspicacious schol-
ars of the Constitution have come to opposite conclusions on the issue. Compare Del-
linger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process,
97 HARV. L. REV. 386, 414–416 (1983) (there is judicial review), with Tribe, A Consti-
tution We Are Amending: In Defense of a Restrained Judicial Role, 97 HARV. L. REV.
433, 435–436 (1983). Much of the scholarly argument, up to that time, is collected
in the ERA-time-extension hearings. Supra. The only recent judicial precedents di-
rectly on point found justiciability on at least some questions. Dyer v. Blair, 390 F.
Supp. 1291 (N.D.Ill., 1975) (three-judge court); Idaho v. Freeman, 529 F. Supp. 1107
(D. Idaho, 1981), vacated and remanded to dismiss, 459 U.S. 809 (1982).
79 In Baker v. Carr, 369 U.S. 186, 214 (1962), the Court, in explaining the politi-
cal question doctrine and categorizing cases, observed that Coleman “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 subsequent ratifica-
tion, were committed to congressional resolution and involved criteria of decision
that necessarily escaped the judicial grasp.” Both characteristics were features that
the Court in Baker, 369 U.S. at 217, identified as elements of political questions,
e.g., “a textually demonstrable constitutional commitment of the issue to a coordi-
nate political department; or a lack of judicially discoverable and manageable stan-
dards or resolving it.” Later formulations have adhered to this way of expressing
the matter. Powell v. McCormack, 395 U.S. 486 (1969); O’Brien v. Brown, 409 U.S. 1
1014 ART. V—MODE OF AMENDMENT
(1972); Gilligan v. Morgan, 413 U.S. 1 (1973). However, it could be argued that, what-
ever the Court may say, what it did, particularly in Powell but also in Baker, largely
drains the political question doctrine of its force. See Uhler v. AFL–CIO, 468 U.S.
1310 (1984) (Justice Rehnquist on Circuit) (doubting Coleman’s vitality in amend-
ment context). But see Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (opinion of
Justices Rehnquist, Stewart, Stevens, and Chief Justice Burger) (relying heavily upon
Coleman to find an issue of treaty termination nonjusticiable). Compare id. at 1001
(Justice Powell concurring) (viewing Coleman as limited to its context).
ARTICLE VI
CONTENTS
Page
Clause 1. Validity of Prior Debts and Engagements .............................................................. 1017
Prior Debts .......................................................................................................................... 1017
Clause 2. Supremacy of the Constitution, Laws and Treaties .............................................. 1017
National Supremacy ........................................................................................................... 1017
Marshall’s Interpretation of the National Supremacy Clause ................................ 1017
Task of the Supreme Court Under the Clause: Preemption ................................... 1018
The Operation of the Supremacy Clause .................................................................. 1019
Federal Immunity Laws and State Courts ........................................................ 1020
Priority of National Claims Over State Claims ................................................ 1020
Obligation of State Courts Under the Supremacy Clause ....................................... 1021
Supremacy Clause Versus the Tenth Amendment ................................................... 1022
Federal Instrumentalities and Personnel and State Police Power ......................... 1032
The Doctrine of Federal Exemption From State Taxation ...................................... 1034
McCulloch v. Maryland ........................................................................................ 1034
Applicability of Doctrine to Federal Securities ................................................. 1034
Taxation of Government Contractors ................................................................. 1036
Taxation of Salaries of Federal Employees ........................................................ 1038
Ad Valorem Taxes Under the Doctrine .............................................................. 1039
Federal Property and Functions ......................................................................... 1042
Federally Chartered Finance Agencies: Statutory Exemptions ....................... 1042
Royalties ................................................................................................................ 1043
Immunity of Lessees of Indian Lands ................................................................ 1044
Summation and Evaluation ........................................................................................ 1044
Clause 3. Oath of Office ............................................................................................................ 1045
Oath of Office ...................................................................................................................... 1045
Power of Congress in Respect to Oaths .................................................................... 1045
National Duties of State Officers ............................................................................... 1045
1015
PRIOR DEBTS, NATIONAL SUPREMACY, AND OATHS OF
OFFICE
ARTICLE VI
Clause 1. All Debts contracted and Engagements entered into,
before the Adoption of this Constitution, shall be as valid against
the United States under this Constitution, as under the Confed-
eration.
PRIOR DEBTS
There have been no interpretations of this clause.
1017
1018 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
3.
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1019
silent, however, the Court must itself decide whether the effect of
the federal legislation is to oust state jurisdiction.7
Liggett Group, Inc., 505 U.S. 504 (1992); Morales v. TWA, 504 U.S. 374 (1992); Mary-
land v. Louisiana, 451 U.S. 725, 746 (1981); Jones v. Rath Packing Co., 430 U.S.
519, 525 (1977).
9 By the Social Security Act of 1935, 49 Stat. 620, 42 U.S.C. §§ 301 et seq., Con-
gress established a series of programs operative in those states that joined the sys-
tem and enacted the requisite complying legislation. Although participation is volun-
tary, the underlying federal tax program induces state participation. See Steward
Machine Co. v. Davis, 301 U.S. 548, 585–98 (1937).
10 On the operation of federal spending programs upon state laws, see South
Dakota v. Dole, 483 U.S. 203 (1987) (under highway funding programs). On the pre-
emptive effect of federal spending laws, see Lawrence County v. Lead-Deadwood School
Dist., 469 U.S. 256 (1985). An early example of states being required to conform
their laws to the federal standards is King v. Smith, 392 U.S. 309 (1968). Private
parties may compel state acquiescence in federal standards to which they have agreed
by participation in the programs through suits under a federal civil rights law (42
U.S.C. § 1983). Maine v. Thiboutot, 448 U.S. 1 (1980). The Court has imposed some
federalism constraints in this area by imposing a “clear statement” rule on Con-
gress when it seeks to impose new conditions on states. Pennhurst State School &
Hosp. v. Halderman, 451 U.S. 1, 11, 17–18 (1981).
11 See Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107 (1989).
12 See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. ___, No. 14–15, slip
op. at 3 (2015).
1020 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
ment that notice of a federal tax lien be filed in conformity with state law in a state
office in order to be accorded priority was held to be controlling only insofar as Con-
gress by law had made it so. Remedies for collection of federal taxes are indepen-
dent of legislative action of the states. United States v. Union Central Life Ins. Co.,
368 U.S. 291 (1961). See also United States v. Buffalo Savings Bank, 371 U.S. 228
(1963) (state may not avoid priority rules of a federal tax lien by providing that the
discharge of state tax liens are to be part of the expenses of a mortgage foreclosure
sale); United States v. Pioneer American Ins. Co., 374 U.S. 84 (1963) (Matter of fed-
eral law whether a lien created by state law has acquired sufficient substance and
has become so perfected as to defeat a later-arising or later-filed federal tax lien).
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1021
have both the power and the duty to enforce obligations arising under federal law,
unless Congress gives the federal courts exclusive jurisdiction. Claflin v. Houseman,
93 U.S. 130 (1876); Second Employers’ Liability Cases, 223 U.S. 1 (1912); Testa v.
Katt, 330 U.S. 386 (1947).
24 Cooper v. Aaron, 358 U.S. 1 (1958); see also James v. City of Boise, 577 U.S.
___, No. 15–493, slip op. at 2 (2016) (“The Idaho Supreme Court, like any other state
or federal court, is bound by this Court’s interpretation of federal law.”); DIRECTV,
Inc. v. Imburgia, 577 U.S. ___, No. 14–462, slip op. at 5 (2015) (holding that the
Supreme Court’s interpretation of a federal law is an “authoritative interpretation
of that Act,” requiring the “judges of every State” to “follow it.”). Moreover, the Court
has interpreted the Supremacy Clause to require that a state court, when reviewing
a prisoner’s collateral claims that are controlled by federal law, “has a duty to grant
the relief that federal law requires.” See Montgomery v. Louisiana, 577 U.S. ___,
No. 14–280, slip op. at 13 (2016) (quoting Yates v. Aiken, 484 U.S. 211, 218 (1988)).
For an extended discussion on Montgomery and the obligations of state collateral
review courts when reviewing substantive constitutional rules, see supra Article III:
Section 2. Judicial Power and Jurisdiction: Clause 1. Cases and Controversies; Grants
of Jurisdiction: Judicial Power and Jurisdiction-Cases and Controversies: The Re-
quirements of a Real Interest: Retroactivity Versus Prospectivity.
25 In Haywood v. Drown, 556 U.S. ___, No. 07–10374, slip op. at 10 (2009), the
Court noted, “this case does not require us to decide whether Congress may compel
a State to offer a forum, otherwise unavailable under state law, to hear suits brought
pursuant to [a federal statute].”
1022 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
federal claims when the court entertains state law actions of a simi-
lar nature,26 or sometimes even when it does not entertain state
law actions of a similar nature.27 The existence of inferior federal
courts sitting in the states and exercising often concurrent jurisdic-
tion of subjects has created problems with regard to the degree to
which state courts are bound by their rulings. Though the Su-
preme Court has directed and encouraged the lower federal courts
to create a corpus of federal common law,28 it has not spoken to the
effect of such lower court rulings on state courts.
The Court’s re-emphasis upon “dual federalism” has not altered this principle. See,
e.g., Printz v. United States, 521 U.S. 898, 905–10 (1997).
27 See Haywood v. Drown, 556 U.S. ___, No. 07–10374, slip op. (2009), discussed
America v. Lincoln Mills, 353 U.S. 448 (1957); Illinois v. City of Milwaukee, 406 U.S.
91 (1972).
29 36 U.S. (11 Pet.) 102 (1837).
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1023
but the bounden and solemn duty of a state, to advance the safety,
happiness and prosperity of its people, and to provide for its gen-
eral welfare, by any and every act of legislation, which it may deem
to be conducive to these ends; where the power over the particular
subject, or the manner of its exercise is not surrendered or re-
strained, in the manner just stated. That all those powers which
relate to merely municipal legislation, or what may, perhaps, more
properly be called internal police, are not thus surrendered or re-
strained; and that, consequently, in relation to these, the authority
of a state is complete, unqualified, and exclusive.” 30 Justice Story,
in dissent, stated that Marshall had heard the previous argument
and reached the conclusion that the New York statute was uncon-
stitutional.31
The conception of a “complete, unqualified and exclusive” police
power residing in the states and limiting the powers of the na-
tional government was endorsed by Chief Justice Taney ten years
later in the License Cases.32 In upholding state laws requiring li-
censes for the sale of alcoholic beverages, including those imported
from other states or from foreign countries, he set up the Supreme
Court as the final arbiter in drawing the line between the mutu-
ally exclusive, reciprocally limiting fields of power occupied by the
national and state governments.33
Until recently, it appeared that in fact and in theory the Court
had repudiated this doctrine,34 but, in National League of Cities v.
Usery,35 it revived part of this state police power limitation upon
the exercise of delegated federal power. However, the decision was
by a closely divided Court and subsequent interpretations closely
cabined the development and then overruled the case.
Following the demise of the “doctrine of dual federalism” in the
1930s, the Court confronted the question whether Congress had the
power to regulate state conduct and activities to the same extent,
primarily under the Commerce Clause, as it did to regulate private
conduct and activities to the exclusion of state law.36 In United States
30 36 U.S. at 139.
31 36 U.S. at 161.
32 46 U.S. (5 How.) 504, 528 (1847).
33 46 U.S. at 573–74.
34 Representative early cases include NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v.
Davis, 301 U.S. 619 (1937); United States v. Darby, 312 U.S. 100 (1941). Among the
cases incompatible with the theory was Maryland v. Wirtz, 392 U.S. 183 (1968).
35 426 U.S. 833 (1976).
36 On the doctrine of “dual federalism,” see the commentary by the originator of
the phrase, Professor Corwin. E. CORWIN, THE TWILIGHT OF THE SUPREME COURT—A HIS-
TORY OF OUR CONSTITUTIONAL THEORY 10–51 (1934); THE COMMERCE POWER VERSUS STATES
RIGHTS 115–172 (1936); A CONSTITUTION OF POWERS IN A SECULAR STATE 1–28 (1951).
1024 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
ping terminal facilities owned by state); California v. Taylor, 353 U.S. 553 (1957)
(Railway Labor Act applies on state-owned railroad); Case v. Bowles, 327 U.S. 92
(1946); Hubler v. Twin Falls County, 327 U.S. 103 (1946) (federal wartime price regu-
lations applied to state transactions; Congress’s power effectively to wage war); Board
of Trustees v. United States, 289 U.S. 48 (1933) (state university required to pay
federal customs duties on imported educational equipment); Oklahoma ex rel. Phil-
lips v. Atkinson Co., 313 U.S. 508 (1941) (federal condemnation of state lands for
flood control project); Sanitary Dist. v. United States, 206 U.S. 405 (1925) (prohibi-
tion of state from diverting water from Great Lakes).
41 392 U.S. 183 (1968). Justices Douglas and Stewart dissented. Id. at 201.
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1025
tive constitutional barrier to congressional action. Id. at 552–53. That is, if one as-
serts only the absence of congressional authority, one’s chances of success are dim
because of the breadth of the commerce power. But when he asserts that, say, the
First or Fifth Amendment bars congressional action concededly within its commerce
power, one interposes an affirmative constitutional defense that has a chance of suc-
cess. It was the Justice’s view that the state was “asserting an affirmative constitu-
tional right, inherent in its capacity as a State, to be free from such congressionally
asserted authority.” Id. at 553. But whence the affirmative barrier? “[I]t is not the
Tenth Amendment by its terms. . . .” Id. at 557 (emphasis supplied). Rather, the Amend-
ment was an example of the Framers’ understanding that the sovereignty of the
states imposed an implied affirmative barrier to the assertion of otherwise valid con-
gressional powers. Id. at 557–59. But the difficulty with this construction is that the
equivalence that Justice Rehnquist sought to establish lies not between an indi-
vidual asserting a constitutional limit on delegated powers and a state asserting
the same thing, but is rather between an individual asserting a lack of authority
and a state asserting a lack of authority; this equivalence is evident on the face of
the Tenth Amendment, which states that the powers not delegated to the United
States “are reserved to the States respectively, or to the people.” (emphasis sup-
plied). The states are thereby accorded no greater interest in restraining the exer-
cise of nondelegated power than are the people. See Massachusetts v. Mellon, 262
U.S. 447 (1923).
45 National League of Cities v. Usery, 426 U.S. 833, 845 (1976).
46 426 U.S. at 845.
1026 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
57 In Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 n.13 (1981),
the Court suggested rather ambiguously that League of Cities may restrict the fed-
eral spending power, citing its reservation of the cases in League of Cities, 426 U.S.
852 n.17, but citing also spending clause cases indicating a rational basis standard
of review of conditioned spending. Earlier, the Court had summarily affirmed a deci-
sion holding that the spending power was not affected by the case. North Carolina
ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C. 1977) (three-judge court),
aff’d, 435 U.S. 962 (1978). No hint of such a limitation is contained in more recent
decisions (to be sure, in the aftermath of League of Cities’ demise). New York v. United
States, 505 U.S. 144, 167, 171–72, 185 (1992); South Dakota v. Dole, 483 U.S. 203,
210–12 (1987).
58 National League of Cities v. Usery, 426 U.S. 833, 846–51 (1976). The quota-
tion in the text is at 853 (one of the elements distinguishing the case from Fry).
59 426 U.S. at 856.
60 469 U.S. 528 (1985). The issue was again decided by a 5-to-4 vote, Justice
ture of Congress’s 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 Fed-
eral Government itself.” 469 U.S. at 550. The Court cited as prime examples the
role of states in selecting the President, and the equal representation of states in
the Senate. Id. at 551.
66 469 U.S. at 554.
67 469 U.S. at 556.
68 469 U.S. at 554.
69 485 U.S. 505 (1988).
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1029
dinary defects in the national political process” before the Court will
intervene.70 A claim that Congress acted on incomplete information
will not suffice, the Court noting that South Carolina had “not even
alleged that it was deprived of any right to participate in the na-
tional political process or that it was singled out in a way that left
it politically isolated and powerless.” 71 Thus, the general rule is that
“limits on Congress’s authority to regulate state activities . . . are
structural, not substantive—i.e., that States must find their protec-
tion from congressional regulation through the national political pro-
cess, not through judicially defined spheres of unregulable state ac-
tivity.” 72
Dissenting in Garcia, Justice Rehnquist predicted that the doc-
trine propounded by the dissenters and by those Justices in Na-
tional League of Cities “will . . . in time again command the sup-
port of a majority of the Court.” 73 As the membership of the Court
changed, it appeared that the prediction was proving true.74 Con-
fronted with the opportunity in New York v. United States,75 to re-
examine Garcia, the Court instead distinguished it,76 striking down
a federal law on the basis that Congress could not “commandeer”
the legislative and administrative processes of state government to
compel the administration of federal programs.77 The line of analy-
sis pursued by the Court makes clear, however, what the result will
be when a Garcia kind of federal law is reviewed.
That is, because the dispute involved the division of authority
between federal and state governments, Justice O’Connor wrote for
the Court in New York, one could inquire whether Congress acted
under a delegated power or one could ask whether Congress had
70 485 U.S. at 512.
71 485 U.S. at 513.
72 485 U.S. at 512.
73 Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 579–80 (1985).
74 The shift was pronounced in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which
the Court, cognizant of the constraints of Garcia, chose to apply a “plain statement”
rule to construction of a statute seen to be intruding into the heart of state au-
tonomy. Id. at 463. To do otherwise, said Justice O’Connor, was to confront “a poten-
tial constitutional problem” under the Tenth Amendment and the Guarantee Clause
of Article IV, § 4. Id. at 463–64.
75 505 U.S. 144 (1992).
76 The line of cases exemplified by Garcia was said to concern the authority of
wastes generated in the United States by government and industry. Placing various
responsibilities on the states, the provision sought to compel performance by requir-
ing that any state that failed to provide for the permanent disposal of wastes gener-
ated within its borders must take title to, take possession of, and assume liability
for the wastes, 505 U.S. at 161, obviously a considerable burden.
1030 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
continuing role of the state courts in the enforcement of federal law. Id. at 905–08.
87 521 U.S. at 919 (quoting THE FEDERALIST, No. 39 (Madison)).
88 521 U.S. at 918.
89 521 U.S. at 936 (citing 42 U.S.C. § 5779(a)) (requiring state and local law en-
the case was five-to-four, with a single Justice concurring with a plurality of four to
reach the result. Id. at 444. Presumably, the concurrence agreed with the rationale
set forth here, disagreeing only in other respects.
1034 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
104 495 U.S. at 435. Four dissenting Justices agreed with this principle, but they
also would invalidate a state law that “actually and substantially interferes with
specific federal programs.” Id. at 448, 451–52.
105 495 U.S. at 435. That is, only when the overall effect, when balanced against
other regulations applicable to similarly situated persons who do not deal with the
government, imposes a discriminatory burden will they be invalidated. Justice Scalia,
concurring, was doubtful of this standard. Id. at 444.
106 22 U.S. (9 Wheat.) 738 (1824).
107 22 U.S. at 865.
108 22 U.S. at 865.
109 22 U.S. at 866.
110 22 U.S. at 867.
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1035
which the Constitution requires. First Nat’l Bank v. Bartow County Bd. of Tax As-
sessors, 470 U.S. 583 (1985). The relationship of this statute to another, 12 U.S.C.
§ 548, governing taxation of shares of national banking associations, has occasioned
no little difficulty. American Bank & Trust Co. v. Dallas County, 463 U.S. 855 (1983);
Memphis Bank & Trust Co. v. Garner, 459 U.S. 392 (1983).
114 74 U.S. (7 Wall.) 26 (1868).
115 Hibernia Savings Society v. San Francisco, 200 U.S. 310, 315 (1906).
116 Smith v. Davis, 323 U.S. 111 (1944).
117 Plummer v. Coler, 178 U.S. 115 (1900); Blodgett v. Silberman, 277 U.S. 1, 12
(1928).
118 Accord, Rockford Life Ins. Co. v. Illinois Dep’t of Revenue, 482 U.S. 182 (1987)
(tax including in an investor’s net assets the value of federally-backed securities (“Gin-
nie Maes”) upheld, as it would have no adverse effect on Federal Government’s bor-
rowing ability).
119 Society for Savings v. Bowers, 349 U.S. 143 (1955).
120 Northwestern Mut. Life Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927).
1036 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
observed that the Court was overruling “a century of precedents.” See, e.g., Pan-
handle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928) (voiding a state privi-
lege tax on dealers in gasoline as applied to sales by a dealer to the Federal Govern-
ment for use by Coast Guard). It was in Panhandle that Justice Holmes uttered his
riposte to Chief Justice Marshall: “The power to tax is not the power to destroy while
this Court sits.” Id. at 223 (dissenting).
128 302 U.S. 134 (1937).
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1037
129 302 U.S. at 150 (quoting Willcuts v. Bunn, 282 U.S. 216, 225 (1931)).
130 Alabama v. King & Boozer, 314 U.S. 1 (1941), overruling Panhandle Oil Co.
v. Mississippi ex rel. Knox, 277 U.S. 218 (1928), and Graves v. Texas Co., 298 U.S.
393 (1936). See also Curry v. United States, 314 U.S. 14 (1941). “The Constitution
. . . does not forbid a tax whose legal incidence is upon a contractor doing business
with the United States, even though the economic burden of the tax, by contract or
otherwise, is ultimately borne by the United States.” United States v. Boyd, 378 U.S.
39, 44 (1964) (sustaining sales and use taxes on contractors using tangible personal
property to carry out government cost-plus contract).
131 Alward v. Johnson, 282 U.S. 509 (1931).
132 Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466 (1934).
133 United States v. Allegheny County, 322 U.S. 174 (1944) (voiding property tax
that included in assessment the value of federal machinery held by private party);
Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 (1954) (voiding gross receipts sales tax
applied to contractor purchasing article under agreement whereby he was to act as
agent for government and title to articles purchased passed directly from vendor to
United States).
134 United States v. New Mexico, 455 U.S. 720, 735 (1982). See South Carolina
the United States, or even because the Federal Government shoulders the entire
economic burden of the levy.” United States v. New Mexico, 455 U.S. 720, 734 (1982).
Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999) (the same rule
applies when the contractual services are rendered on an Indian reservation).
1038 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
136 James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937); Carson v. Roane-
Anderson Co., 342 U.S. 232, 234 (1952); United States v. New Mexico, 455 U.S. 720,
737 (1982). Roane-Anderson held that a section of the Atomic Energy Act barred the
collection of state sales and use taxes in connection with sales to private companies
of personal property used by them in fulfilling their contracts with the AEC. There-
after, Congress repealed the section for the express purpose of placing AEC contrac-
tors on the same footing as other federal contractors, and the Court upheld imposi-
tion of the taxes. United States v. Boyd, 378 U.S. 39 (1964).
137 306 U.S. 466 (1939), followed in State Comm’n v. Van Cott, 306 U.S. 511
(1939). This case was overruled by implication in Dobbins v. Erie County, 41 U.S.
(16 Pet.) 435 (1842), and New York ex rel. Rogers v. Graves, 299 U.S. 401 (1937),
which held the income of federal employees to be immune from state taxation.
138 306 U.S. at 487.
139 306 U.S. at 492.
140 4 U.S.C. § 111. The statute, part of the Public Salary Tax Act of 1939, was
nondiscriminatory taxes on the incomes of most state employees, and the 1939 Act
had as its primary purpose the imposition of federal income taxes on the salaries of
all state and local government employees. Feeling equity required it, Congress in-
cluded a provision authorizing nondiscriminatory state taxation of federal employ-
ees. Graves came down while the provision was pending in Congress. See Davis v.
Michigan Dep’t of Treasury, 489 U.S. 803, 810–14 (1989). For application of the Act
to salaries of federal judges, see Jefferson County v. Acker, 527 U.S. 423 (1999) (up-
holding imposition of a local occupational tax).
141 Davis v. Michigan Dept. of the Treasury, 489 U.S. at 813. This case struck
down, as violative of the provision, a state tax imposed on federal retirement ben-
efits but exempting state retirement benefits. See also Barker v. Kansas, 503 U.S.
594 (1992) (similarly voiding a state tax on federal military retirement benefits but
not reaching state and local government retirees).
142 17 U.S. (4 Wheat.) 316, 426 (1819).
143 Thomson v. Union Pac. R.R., 76 U.S. (9 Wall.) 579, 588 (1870); Union Pacific
In Offutt Housing Co. v. Sarpy County, 351 U.S. 253 (1956), a housing company
was held liable for county personal property taxes on the ground that the govern-
ment had consented to state taxation of the company’s interest as lessee. Upon its
completion of housing accommodations at an Air Force Base, the company had leased
the houses and the furniture therein from the Federal Government.
1040 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
title thereto had passed to the United States following his receipt
of installment payments.153
In sustaining the first tax, the Court held that it was imposed,
not on the government or on its property, but upon a private les-
see, that it was computed by the value of the use to the contractor
of the federally leased property, and that it was nondiscriminatory;
that is, it was designed to equalize the tax burden carried by pri-
vate business using exempt property with that of similar busi-
nesses using taxed property. Distinguishing Allegheny County, the
Court maintained that in that older decision, the tax invalidated
was imposed directly on federal property and that the question of
the legality of a privilege on use and possession of such property
had been expressly reserved. Also, insofar as the economic inci-
dents of such tax on private use curtails the net rental accruing to
the government, such burden was viewed as insufficient to vitiate
the tax.154
Deeming the second and third taxes similar to the first, the Court
sustained them as taxes on the privilege of using federal property
in the conduct of private business for profit. With reference to the
second, the Court emphasized that the government had reserved
no right of control over the contractor and, hence, the latter could
not be viewed as an agent of the government entitled to the immu-
nity derivable from that status.155 As to the third tax, the Court
asserted that there was no difference between taxing a private party
for the privilege of using property he possesses, and taxing him for
possessing property which he uses; for, in both instances, the use
was private profit. Moreover, the economic burden thrust upon the
government was viewed as even more remote than in the adminis-
tration of the first two taxes.156
153 United States v. City of Detroit, 355 U.S. 466 (1958). The Court more re-
cently has stated that Allegheny County “in large part was overruled” by Detroit.
United States v. New Mexico, 455 U.S. 720, 732 (1982).
154 United States v. City of Detroit, 355 U.S. 478, 482, 483 (1958). See also Cali-
County of Fresno, 429 U.S. 452 (1977), these cases were reaffirmed and applied to
sustain a tax imposed on the possessory interests of United States Forest Service
employees in housing located in national forests within the county and supplied to
the employees by the Forest Service as part of their compensation. A state or local
government may raise revenues on the basis of property owned by the United States
as long as it is in possession or use by the private citizen that is being taxed.
1042 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
157 Clallam County v. United States, 263 U.S. 341 (1923). See also Cleveland v.
United States, 323 U.S. 329, 333 (1945); United States v. Mississippi Tax Comm’n,
412 U.S. 363 (1973); United States v. Mississippi Tax Comm’n, 421 U.S. 599 (1975).
158 Mayo v. United States, 319 U.S. 441 (1943). A municipal tax on the privilege
of working within the city, levied at the rate of one percent of earnings, although
not deemed to be an income tax under state law, was sustained as such when col-
lected from employees of a naval ordinance plant by reason of federal assent to that
type of tax expressed in the Buck Act. 4 U.S.C. §§ 105–110. Howard v. Commission-
ers, 344 U.S. 624 (1953).
159 Telegraph Co. v. Texas, 105 U.S. 460, 464 (1882).
160 Des Moines Bank v. Fairweather, 263 U.S. 103, 106 (1923); Owensboro Nat’l
Bank v. Owensboro, 173 U.S. 664, 669 (1899); First Nat’l Bank v. Adams, 258 U.S.
362 (1922); Michigan Nat’l Bank v. Michigan, 365 U.S. 467 (1961).
161 Baltimore Nat’l Bank v. Tax Comm’n, 297 U.S. 209 (1936).
162 Maricopa County v. Valley Bank, 318 U.S. 357, 362, (1943).
163 308 U.S. 21 (1939).
164 314 U.S. 95 (1941).
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1043
history of the immunity lessees of Indian lands from state taxation, which he found
to stem from early rulings that tribal lands are themselves immune. The Kansas
Indians, 72 U.S. (5 Wall.) 737 (1867); The New York Indians, 72 U.S. (5 Wall.) 761
(1867). One of the first steps taken to curtail the scope of the immunity was Shaw
v. Oil Corp., 276 U.S. 575 (1928), which held that lands outside a reservation, though
purchased with restricted Indian funds, were subject to state taxation. Congress soon
upset the decision, however, and its act was sustained in Board of County Comm’rs
v. Seber, 318 U.S. 705 (1943).
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1045
Floyd, 385 U.S. 116 (1966), in which the Supreme Court held that antiwar state-
ments made by a newly elected member of the Georgia House of Representatives
were not inconsistent with the oath of office to support to the United States Consti-
tution.
1046 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
181 No. 27, (J. Cooke ed. 1961), 175 (emphasis in original). See also, id. at No.
1937).
183 See Article I, § 3, cl. 1; § 4, cl. 1; 10; Article II, § 1, cl. 2; Article III, 2, cl. 2;
Article IV, §§ 1, 2; Article V; Amendments 13, 14, 15, 17, 19, 25, and 26.
184 1 Stat. 73 (1789).
185 See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REV.
545 (1925); Holcomb, The States as Agents of the Nation, 3 SELECTED ESSAYS ON CON-
STITUTIONAL LAW 1187 (1938); Barnett, Cooperation Between the Federal and State Gov-
ernments, 7 ORE. L. REV. 267 (1928). See also J. CLARK, THE RISE OF A NEW FEDERALISM
(1938); E. CORWIN, COURT OVER CONSTITUTION 148–168 (1938).
186 1 Stat. 302 (1793).
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1047
With the rise of the doctrine of states’ rights and of the equal
sovereignty of the states with the National Government, the avail-
ability of the former as instruments of the latter in the execution
of its power came to be questioned.187 In Prigg v. Pennsylvania,188
decided in 1842, the constitutionality of the provision of the act of
1793 making it the duty of state magistrates to act in the return of
fugitive slaves was challenged; and in Kentucky v. Dennison,189 de-
cided on the eve of the Civil War, similar objection was leveled against
the provision of the same act which made it “the duty” of the chief
executive of a state to render up a fugitive from justice upon the
demand of the chief executive of the state from which the fugitive
had fled. The Court sustained both provisions, but upon the theory
that the cooperation of the state authorities was purely voluntary.
In Prigg, the Court, speaking by Justice Story, said that “while a
difference of opinion has existed, and may exist still on the point,
in different states, whether state magistrates are bound to act un-
der it, none is entertained by this Court, that state magistrates may,
if they choose, exercise that authority, unless prohibited by state
legislation.” 190 Subsequent cases confirmed the point that Con-
gress could authorize willing state officers to perform such federal
duties.191 Indeed, when Congress in the Selective Service Act of 1917
authorized enforcement to a great extent through state employees,
the Court rejected “as too wanting in merit to require further no-
tice” the contention that the Act was invalid because of this delega-
tion.192 State officials were frequently employed in the enforcement
of the National Prohibition Act, and suits to abate nuisances as de-
fined by the statute were authorized to be brought, in the name of
the United States, not only by federal officials, but also by “any pros-
ecuting attorney of any State or any subdivision thereof.” 193
187 For the development of opinion, especially on the part of state courts, ad-
verse to the validity of such legislation, see 1 J. KENT, COMMENTARIES ON AMERICAN LAW
396–404 (1826).
188 41 U.S. (16 Pet.) 539 (1842).
189 65 U.S. (24 How.) 66 (1861).
190 41 U.S. (16 Pet.) 539, 622 (1842). See also Kentucky v. Dennison, 65 U.S. (24
How.) 66, 108 (1861). The word “magistrates” in this passage does not refer solely to
judicial officers but reflects the usage in that era in which officers generally were
denominated magistrates; the power thus upheld is not the related but separate is-
sue of the use of state courts to enforce federal law.
191 United States v. Jones, 109 U.S. 513, 519 (1883); Robertson v. Baldwin, 165
U.S. 275, 280 (1897); Dallemagne v. Moisan, 197 U.S. 169, 174 (1905); Holmgren v.
United States, 217 U.S. 509, 517 (1910); Parker v. Richard, 250 U.S. 235, 239 (1919).
192 Selective Draft Law Cases, 245 U.S. 366, 389 (1918). The Act was 40 Stat.
76 (1917).
193 41 Stat. 314, § 22. In at least two States, the practice was approved by state
appellate courts. Carse v. Marsh, 189 Cal. 743, 210 Pac. 257 (1922); United States
v. Richards, 201 Wis. 130, 229 N.W. 675 (1930). On this and other issues under the
1048 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
foundation with which time and the currents of constitutional change have dealt
much less favorably”).
201 In including territories in the statute, Congress acted under the Territorial
Clause rather than under the Extradition Clause. New York ex rel. Kopel v. Bingham,
211 U.S. 468 (1909).
202 New York v. United States, 505 U.S. 144, 179 (1992). See also FERC v. Mis-
sissippi, 456 U.S. 742, 761–765 (1982); Washington v. Washington State Commercial
1050 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
Passenger Fishing Vessel Ass’n, 443 U.S. 658, 695 (1979); Illinois v. City of Milwau-
kee, 406 U.S. 91, 106–108 (1972).
203 The practice continues. See Pub. L. 94–435, title III, 90 Stat. 1394, 15 U.S.C.
§ 15c (authorizing state attorneys general to bring parens patriae antitrust actions
in the name of the state to secure monetary relief for damages to the citizens of the
state); Medical Waste Tracking Act of 1988, Pub. L. 100–582, 102 Stat. 2955, 42
U.S.C. § 6992f (authorizing states to impose civil and possibly criminal penalties for
violations of the Act); Brady Handgun Violence Prevention Act, Pub. L. 103–159, tit.
I, 107 Stat. 1536, 18 U.S.C. § 922s (imposing on chief law enforcement officer of each
jurisdiction to ascertain whether prospective firearms purchaser his disqualifying re-
cord).
204 New York v. United States, 505 U.S. 144 (1992).
RATIFICATION
ARTICLE VII
The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the
States so ratifying the Same.
IN GENERAL
In Owings v. Speed 1 the question at issue was whether the Con-
stitution operated upon an act of Virginia passed in 1788. The Court
held it did not, stating in part:
“The Conventions of nine States having adopted the Constitu-
tion, Congress, in September or October, 1788, passed a resolution
in conformity with the opinions expressed by the Convention, and
appointed the first Wednesday in March of the ensuing year as the
day, and the then seat of Congress as the place, ‘for commencing
proceedings under the Constitution.’ ”
“Both Governments could not be understood to exist at the same
time. The New Government did not commence until the old Govern-
ment expired. It is apparent that the government did not com-
mence on the Constitution being ratified by the ninth State; for these
ratifications were to be reported to Congress, whose continuing ex-
istence was recognized by the Convention, and who were requested
to continue to exercise their powers for the purpose of bringing the
new Government into operation. In fact, Congress did continue to
act as a Government until it dissolved on the 1st of November, by
the successive disappearance of its Members. It existed potentially
until the 2d of March, the day proceeding that on which the Mem-
bers of the new Congress were directed to assemble.”
“The resolution of the Convention might originally have sug-
gested a doubt, whether the government could be in operation for
every purpose before the choice of a President; but this doubt has
been long solved, and were it otherwise, its discussion would be use-
less, since it is apparent that its operation did not commence be-
fore the first Wednesday in March 1789 . . . .”
1051
AMENDMENTS TO THE CONSTITUTION
FIRST THROUGH TENTH AMENDMENTS
1053
BILL OF RIGHTS
CONTENTS
Page
History ........................................................................................................................................ 1057
Formation and Adoption .................................................................................................... 1057
Bill of Rights and the States ............................................................................................. 1059
The Fourteenth Amendment and Incorporation .............................................................. 1059
1055
AMENDMENTS TO THE CONSTITUTION
BILL OF RIGHTS
First Through Tenth Amendments
On September 12, five days before the Convention adjourned,
Mason and Gerry raised the question of adding a bill of rights to
the Constitution. Mason said: “It would give great quiet to the people;
and with the aid of the State declarations, a bill might be prepared
in a few hours.” But the motion of Gerry and Mason to appoint a
committee for the purpose of drafting a bill of rights was rejected.1
Again, on September 14, Pinckney and Gerry sought to add a pro-
vision “that the liberty of the Press should be inviolably ob-
served—.” But after Sherman observed that such a declaration was
unnecessary, because “[t]he power of Congress does not extend to
the Press,” this suggestion too was rejected.2 It cannot be known
accurately why the Convention opposed these suggestions. Perhaps
the lateness of the Convention, perhaps the desire not to present
more opportunity for controversy when the document was for-
warded to the states, perhaps the belief, asserted by the defenders
of the Constitution when the absence of a bill of rights became criti-
cal, that no bill was needed because Congress was delegated none
of the powers which such a declaration would deny, perhaps all these
contributed to the rejection.3
In any event, the opponents of ratification soon made the ab-
sence of a bill of rights a major argument,4 and some friends of the
document, such as Jefferson,5 strongly urged amendment to in-
1 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 587–88 (rev. ed.
1937).
2 Id. at 617–618.
3 The argument most used by proponents of the Constitution was that inas-
much as Congress was delegated no power to do those things which a bill of rights
would proscribe no bill of rights was necessary and that it might be dangerous be-
cause it would contain exceptions to powers not granted and might therefore afford
a basis for claiming more than was granted. THE FEDERALIST No. 84 at 555–67 (Alex-
ander Hamilton) (Modern Library ed. 1937).
4 Substantial excerpts from the debate in the country and in the ratifying con-
ventions are set out in 1 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 435–620 (B. Schwartz
ed., 1971); 2 id. at 627–980. The earlier portions of volume 1 trace the origins of the
various guarantees back to the Magna Carta.
5 In a letter to Madison, Jefferson indicated what he did not like about the pro-
posed Constitution. “First the omission of a bill of rights providing clearly and with-
out the aid of sophisms for freedom of religion, freedom of the press, protection against
standing armies, restriction against monopolies, the eternal and unremitting force
of the habeas corpus laws, and trials by jury in all matters of the fact triable by the
laws of the land and not by the law of Nations. . . . Let me add that a bill of rights
1057
1058 AMENDMENTS—RESTRICTING FEDERAL POWER
is what the people are entitled to against every government on earth, general or
particular, and what no just government should refuse, or rest on inference.” 12 THE
PAPERS OF THOMAS JEFFERSON 438, 440 (J. Boyd ed., 1958). He suggested that nine States
should ratify and four withhold ratification until amendments adding a bill of rights
were adopted. Id. at 557, 570, 583. Jefferson still later endorsed the plan put for-
ward by Massachusetts to ratify and propose amendments. 14 id. at 649.
6 Thus, George Washington observed in letters that a ratified Constitution could
be amended but that making such amendments conditions for ratification was ill-
advised. 11 THE WRITINGS OF GEORGE WASHINGTON 249 (W. Ford ed., 1891).
7 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 627–980 (B. Schwartz ed., 1971).
has always been in favor of a bill of rights,” still “I have never thought the omission
a material defect, nor been anxious to supply it even by subsequent amend-
ment. . . .” 5 THE WRITINGS OF JAMES MADISON 269 (G. Hunt ed., 1904). His reasons
were four. (1) The Federal Government was not granted the powers to do what a
bill of rights would proscribe. (2) There was reason “to fear that a positive declara-
tion of some of the most essential rights could not be obtained in the requisite lati-
tude. I am sure that the rights of conscience in particular, if submitted to public
definition would be narrowed much more than they are likely ever to be by an as-
sumed power.” (3) A greater security was afforded by the jealousy of the States of
the national government. (4) “[E]xperience proves the inefficacy of a bill of rights on
those occasions when its controul is most needed. Repeated violations of these parch-
ment barriers have been committed by overbearing majorities in every State. . . .
Wherever the real power in a Government lies, there is the danger of oppression. In
our Governments the real power lies in the majority of the Community, and the
invasion of private rights is chiefly to be apprehended, not from acts of Government
contrary to the sense of its constituents, but from acts in which the government is
the mere instrument of the major number of the Constituents. . . . Wherever there
is a interest and power to do wrong, wrong will generally be done, and not less read-
ily by a powerful & interested party than by a powerful and interested prince.” Id.
at 272–73. Jefferson’s response acknowledged the potency of Madison’s reservations
and attempted to answer them, in the course of which he called Madison’s attention
to an argument in favor not considered by Madison “which has great weight with
me, the legal check which it puts into the hands of the judiciary. This is a body,
which if rendered independent, and kept strictly to their own department merits
great confidence for their learning and integrity.” 14 THE PAPERS OF THOMAS JEFFERSON
659 (J. Boyd ed., 1958). Madison was to assert this point when he introduced his
proposals for a bill of rights in the House of Representatives. 1 ANNALS OF CONGRESS
439 (June 8, 1789).
In any event, following ratification, Madison in his successful campaign for a
seat in the House firmly endorsed the proposal of a bill of rights. “[I]t is my sincere
opinion that the Constitution ought to be revised, and that the first Congress meet-
ing under it ought to prepare and recommend to the States for ratification, the most
satisfactory provisions for all essential rights, particularly the rights of Conscience
in the fullest latitude, the freedom of the press, trials by jury, security against gen-
eral warrants & c.” 5 THE WRITINGS OF JAMES MADISON 319 (G. Hunt ed., 1904).
AMENDMENTS—RESTRICTING FEDERAL POWER 1059
at pp. 433–36. The Members of the House were indisposed to moving on the propos-
als.
10 Debate in the House began on July 21, 1789, and final passage was had on
August 24, 1789. 1 ANNALS OF CONGRESS 660–779. The Senate considered the propos-
als from September 2 to September 9, but no journal was kept. The final version
compromised between the House and Senate was adopted September 24 and 25. See
2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 983–1167 (B. Schwartz ed., 1971).
11 The two not ratified dealt with the ratio of population to representatives and
Pet.) 469 (1833); Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845);
Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); Smith v. Maryland, 59 U.S. (18 How.) 71
(1855); Withers v. Buckley, 61 U.S. (20 How.) 84 (1858); Pervear v. Massachusetts,
72 U.S. (5 Wall.) 475 (1867); Twitchell v. Commonwealth, 74 U.S. (7 Wall.) 321 (1869).
15 Thus, Justice Miller for the Court in Loan Ass’n v. Topeka, 87 U.S. (20 Wall.)
655, 662, 663 (1875): “It must be conceded that there are . . . rights in every free
government beyond the control of the State . . . There are limitations on [govern-
mental] power which grow out of the essential nature of all free governments. Im-
plied reservations of individual rights, without which the social compact could not
exist, and which are respected by all governments entitled to the name.”
16 Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
1060 AMENDMENTS—RESTRICTING FEDERAL POWER
542 (1876); Hurtado v. California, 110 U.S. 516 (1884); Presser v. Illinois, 116 U.S.
252 (1886). In Hurtado, in which the Court held that indictment by information rather
than by grand jury did not offend due process, the elder Justice Harlan entered a
long dissent arguing that due process preserved the fundamental rules of proce-
dural justice as they had existed in the past, but he made no reference to the possi-
bility that the Fourteenth Amendment due process clause embodied the grand jury
indictment guarantee of the Fifth Amendment.
18 Spies v. Illinois, 123 U.S. 131 (1887).
19 In re Kemmler, 136 U.S. 436 (1890); McElvaine v. Brush, 142 U.S. 155 (1891);
Brewer concurring, argued “that since the adoption of the Fourteenth Amendment,
no one of the fundamental rights of life, liberty or property, recognized and guaran-
teed by the Constitution of the United States, can be denied or abridged by a State
in respect to any person within its jurisdiction. These rights are, principally, enumer-
ated in the earlier Amendments of the Constitution.” Justice Field took the same
position. Id. at 337. Thus, he said: “While therefore, the ten Amendments, as limita-
tions on power, and so far as they accomplish their purpose and find their fruition
in such limitations, are applicable only to the Federal government and not to the
States, yet, so far as they declare or recognize the rights of persons, they are rights
belonging to them as citizens of the United States under the Constitution; and the
Fourteenth Amendment, as to all such rights, places a limit upon state power by
ordaining that no State shall make or enforce any law which shall abridge them.”
Id. at 363. Justice Harlan reasserted this view in Maxwell v. Dow, 176 U.S. 581,
605 (1900) (dissenting opinion), and in Twining v. New Jersey, 211 U.S. 78, 114 (1908)
(dissenting opinion). Justice Field was no longer on the Court and Justice Brewer
did not in either case join Justice Harlan as he had done in O’Neil.
21 Cf. Palko v. Connecticut, 302 U.S. 319, 323 (1937), in which Justice Cardozo
for the Court, including Justice Black, said: “We have said that in appellant’s view
the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth.
His thesis is even broader. Whatever would be a violation of the original bill of rights
(Amendments I to VIII) if done by the Federal Government is now equally unlawful
by force of the Fourteenth Amendment if done by a state. There is no such general
rule.” See Frankfurter, Memorandum on ‘Incorporation,’ of the Bill of Rights Into
the Due Process Clause of the Fourteenth Amendment, 78 HARV. L. REV. 746 (1965).
According to Justice Douglas’ calculations, ten Justices had believed that the Four-
teenth Amendment incorporated the Bill of Rights, but a majority of the Court at
any one particular time had never been of that view. Gideon v. Wainwright, 372
U.S. 335, 345–47 (1963) (concurring opinion). See also Malloy v. Hogan, 378 U.S. 1,
4 n.2 (1964). It must be said, however, that many of these Justices were not consis-
AMENDMENTS—RESTRICTING FEDERAL POWER 1061
tent in asserting this view. Justice Goldberg probably should be added to the list.
Pointer v. Texas, 380 U.S. 400, 410–14 (1965) (concurring opinion).
22 332 U.S. 46 (1947).
23 Id. at 74, Justice Black’s contentions, id. at 68–123, were concurred in by Jus-
tice Douglas. Justices Murphy and Rutledge also joined this view but went further.
“I agree that the specific guarantees of the Bill of Rights should be carried over
intact into the first section of the Fourteenth Amendment. But I am not prepared to
say that the latter is entirely and necessarily limited by the Bill of Rights. Occa-
sions may arise where a proceeding falls so far short of conforming to fundamental
standards of procedure as to warrant constitutional condemnation in terms of a lack
of due process despite the absence of a specific provision in the Bill of Rights.” Id. at
124. Justice Black rejected this extension as an invocation of “natural law due pro-
cess.” For examples in which he and Justice Douglas split over the application of
nonspecified due process limitations, see, e.g., Griswold v. Connecticut, 381 U.S. 479
(1965); In re Winship, 397 U.S. 358 (1970).
24 The leading piece is Fairman, Does the Fourteenth Amendment Incorporate
WISC. L. REV. 479, 610; Graham, Our ‘Declaratory’ Fourteenth Amendment, 7 STAN. L.
REV. 3 (1954); J. TENBROEK, EQUAL UNDER LAW (1965 enlarged ed.). The argument of
these scholars tends to support either a “selective incorporation” theory or a funda-
mental rights theory, but it emphasized the abolitionist stress on speech and press
as well as on jury trials as included in either construction.
26 Williams v. Florida, 399 U.S. 78, 130–32 (1970) (Justice Harlan concurring in
part and dissenting in part). The language of this process is somewhat abstruse.
Justice Frankfurter objected strongly to “incorporation” but accepted other terms.
“The cases say the First [Amendment] is ‘made applicable’ by the Fourteenth or that
it is taken up into the Fourteenth by ‘absorption,’ but not that the Fourteenth ‘incor-
1062 AMENDMENTS—RESTRICTING FEDERAL POWER
had its beginnings in an 1897 case in which the Court, without men-
tioning the Just Compensation Clause of the Fifth Amendment, held
that the Fourteenth Amendment’s Due Process Clause forbade the
taking of private property without just compensation.27 Then, in Twin-
ing v. New Jersey 28 the Court observed that “it is possible that some
of the personal rights safeguarded by the first eight Amendments
against National action may also be safeguarded against state ac-
tion, because a denial of them would be a denial of due process of
law . . . . If this is so, it is not because those rights are enumer-
ated in the first eight Amendments, but because they are of such
nature that they are included in the conception of due process of
law.” And, in Gitlow v. New York,29 the Court in dictum said: “For
present purposes we may and do assume that freedom of speech
and of the press—which are protected by the First Amendment from
abridgment by Congress—are among the fundamental personal rights
and ‘liberties’ protected by the due process clause of the Four-
teenth Amendment from impairment by the States.” After quoting
the language set out above from Twining v. New Jersey, the Court
in 1932 said that “a consideration of the nature of the right and a
review of the expressions of this and other courts, makes it clear
that the right to the aid of counsel is of this fundamental charac-
ter.” 30 The doctrine of this period was best formulated by Justice
Cardozo, who observed that the Due Process Clause of the Four-
teenth Amendment might proscribe a certain state procedure, not
because the proscription was spelled out in one of the first eight
amendments, but because the procedure “offends some principle of
justice so rooted in the traditions and conscience of our people as
porates’ the First. This is not a quibble. The phrase ‘made applicable’ is a neutral
one. The concept of ‘absorption’ is a progressive one, i.e., over the course of time
something gets absorbed into something else. The sense of the word ‘incorporate’
implies simultaneity. One writes a document incorporating another by reference at
the time of the writing. The Court has used the first two forms of language, but
never the third.” Frankfurter, Memorandum on ‘Incorporation’ of the Bill of Rights
Into the Due Process Clause of the Fourteenth Amendment, 78 HARV. L. REV. 746, 747–48
(1965). It remains true that no opinion of the Court has used “incorporation” to de-
scribe what it is doing, cf. Washington v. Texas, 388 U.S. 14, 18 (1967); Benton v.
Maryland, 395 U.S. 784, 794 (1969), though it has regularly been used by dissent-
ers. E.g., Pointer v. Texas, 380 U.S. 400, 408 (1965) (Justice Harlan); Williams v.
Florida, 399 U.S. 78, 130 (1970) (Justice Harlan); Williams v. Florida, 399 U.S. at
143 (Justice Stewart).
27 Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).
28 211 U.S. 78, 99 (1908).
29 268 U.S. 652, 666 (1925).
30 Powell v. Alabama, 287 U.S. 45, 68 (1932).
AMENDMENTS—RESTRICTING FEDERAL POWER 1063
14, 18 (1967), Chief Justice Warren for the Court said that the Court has “increas-
ingly looked to the specific guarantees of the [Bill of Rights] to determine whether a
state criminal trial was conducted with due process of law.” And, in Benton v. Mary-
land, 395 U.S. 784, 794 (1969), Justice Marshall for the Court wrote: “[W]e today
find that the double jeopardy prohibition of the Fifth Amendment represents a fun-
damental ideal in our constitutional heritage, and that it should apply to the States
through the Fourteenth Amendment.” In this process, the Court has substantially
increased the burden carried by those who would defend a departure from the re-
quirement of the Bill of Rights of showing that a procedure is fundamentally fair.
That is, previously the Court had asked whether a civilized system of criminal jus-
tice could be imagined that did not accord the particular procedural safeguard. E.g.,
Palko v. Connecticut, 302 U.S. 319, 325 (1937). The present approach is to ascertain
whether a particular guarantee is fundamental in the light of the system existent
in the United States; the use of this approach can make a substantial difference.
Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). See also Williams v. Florida,
399 U.S. 78 (1970); Apodaca v. Oregon, 406 U.S. 404 (1972); McDonald v. Chicago,
561 U.S. ___, No. 08–1521, slip op. (2010) (plurality opinion).
1064 AMENDMENTS—RESTRICTING FEDERAL POWER
Clark wrote: “First, this Court has decisively settled that the First
Amendment’s mandate that ‘Congress shall make no law respect-
ing an establishment of religion, or prohibiting the free exercise thereof’
has been made wholly applicable to the States by the Fourteenth
Amendment.” 35 Similar language asserting that particular provi-
sions of the Bill of Rights have been applied to the states through
the Fourteenth Amendment’s Due Process Clause may be found in
numerous cases.36 Most of the provisions have now been so ap-
plied.37
35 Abington School Dist. v. Schempp, 374 U.S. 203, 215 (1963). Similar formula-
tions for the speech and press clauses appeared early. E.g., West Virginia State Bd.
of Educ. v. Barnette, 319 U.S. 624, 639 (1943); Schneider v. Irvington, 308 U.S. 147,
160 (1939). In Griffin v. California, 380 U.S. 609, 615 (1965), Justice Douglas stated
“that the Fifth Amendment, in its direct application to the Federal Government, and,
in its bearing on the States by reason of the Fourteenth Amendment, forbids” the
state practice at issue.
36 E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Klopfer v. North Carolina, 386 U.S.
213 (1967); Duncan v. Louisiana, 391 U.S. 145 (1968); Ashe v. Swenson, 397 U.S.
436 (1970); Baldwin v. New York, 399 U.S. 66 (1970).
37 The following list does not attempt to distinguish between those Bill of Rights
provisions that have been held to have themselves been incorporated or absorbed by
the Fourteenth Amendment and those provisions that the Court indicated at the
time were applicable against the states because they were fundamental and not merely
because they were named in the Bill of Rights. Whichever formulation was origi-
nally used, the former is now the one used by the Court. Duncan v. Louisiana, 391
U.S. 145, 148 (1968).
First Amendment—
Religion—
Free exercise: Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Con-
necticut, 310 U.S. 296, 300, 303 (1940).
Establishment: Everson v. Board of Education, 330 U.S. 1, 3, 7, 8 (1947); Illi-
nois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948).
Speech—Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. Kansas, 274
U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931).
Press—Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 (1931).
Assembly—DeJonge v. Oregon, 299 U.S. 353 (1937).
Petition—DeJonge v. Oregon, 299 U.S. at 364, 365; Hague v. CIO, 307 U.S. 496
(1939); Bridges v. California, 314 U.S. 252 (1941).
Second Amendment
Right to keep and bear arms—McDonald v. Chicago, 561 U.S. ___, No. 08–1521,
slip op. (2010).
Fourth Amendment—
Search and seizure—Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367
U.S. 643 (1961).
Fifth Amendment—
Double jeopardy—Benton v. Maryland, 395 U.S. 784 (1969); Ashe v. Swenson,
397 U.S. 436 (1970) (collateral estoppel).
Self-incrimination—Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380
U.S. 609 (1965).
Just compensation—Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).
Sixth Amendment—
Speedy trial—Klopfer v. North Carolina, 386 U.S. 213 (1967).
AMENDMENTS—RESTRICTING FEDERAL POWER 1065
Griffin v. California, 380 U.S. 609 (1965); Baldwin v. New York, 399 U.S. 66 (1970);
Williams v. Florida, 399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1978); First
Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (specifically the First
Amendment speech and press clauses); Crist v. Bretz, 437 U.S. 28 (1978); Burch v.
Louisiana, 441 U S. 130 (1979).
39 Williams v. Florida, 399 U.S. 78, 106–107 (1970) (Justice Black concurring in
part and dissenting in part), quoting Malloy v. Hogan, 378 U.S. 1, 10–11 (1964).
1066 AMENDMENTS—RESTRICTING FEDERAL POWER
40 Justice Harlan first took this position in Roth v. United States, 354 U.S. 476,
496 (1957) (concurring in part and dissenting in part). See also Ker v. California,
374 U.S. 23, 45–46 (1963) (concurring). His various opinions are collected in Wil-
liams v. Florida, 399 U.S. 78, 129–33 (1970) (concurring in part and dissenting in
part).
41 Williams v. Florida, 399 U.S. 78, 143–45 (1970) (concurring in part and dis-
senting in part); Duncan v. Louisiana, 391 U.S. 145, 173–83 (1968) (Justices Harlan
and Stewart dissenting). But see Apodaca v. Oregon, 406 U.S. 404, 414 (1972) (dis-
senting). See also Crist v. Bretz, 437 U.S. 28 (1978) (Justice Stewart writing opinion
of the Court).
42 Bloom v. Illinois, 391 U.S. 194, 211 (1968) (concurring).
43 Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (concurring); Crist v. Bretz,
437 U.S. 28, 52–53 (1978) (dissenting, joined by Chief Justice Burger and Justice
Rehnquist). But see First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16
(1978) (rejecting theory in First Amendment context in opinion for the Court, joined
by Chief Justice Burger).
44 Buckley v. Valeo, 424 U.S. 1, 290 (1976) (concurring in part and dissenting in
part); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 822 (1978) (dissenting).
See also Crist v. Bretz, 437 U.S. 28, 52–53 (1978) (joining Justice Powell’s dissent).
Justice Jackson also apparently held this view. Beauharnais v. Illinois, 343 U.S. 250,
288 (1952) (dissenting).
45 E.g., Williams v. Florida, 399 U.S. 78, 129–38 (1970) (Justice Harlan concur-
ring in part and dissenting in part); Bloom v. Illinois, 391 U.S. 194, 213–215 (1968)
(Justice Fortas concurring). But see Williams v. Florida, 399 U.S. at 106–08 (Justice
Black concurring in part and dissenting in part).
46 Williams v. Florida, 399 U.S. 78 (1970); Apodaca v. Oregon, 406 U.S. 404 (1972).
CONTENTS
Page
Religion ....................................................................................................................................... 1071
An Overview ....................................................................................................................... 1071
Scholarly Commentary ................................................................................................ 1072
Court Tests Applied to Legislation Affecting Religion ............................................. 1074
Government Neutrality in Religious Disputes ......................................................... 1078
Establishment of Religion .................................................................................................. 1080
Financial Assistance to Church-Related Institutions ............................................... 1081
Governmental Encouragement of Religion in Public Schools: Released Time ...... 1101
Governmental Encouragement of Religion in Public Schools: Prayers and Bible
Reading ..................................................................................................................... 1102
Governmental Encouragement of Religion in Public Schools: Curriculum
Restriction ................................................................................................................ 1106
Access of Religious Groups to Public Property ......................................................... 1107
Tax Exemptions of Religious Property ...................................................................... 1109
Exemption of Religious Organizations from Generally Applicable Laws ............... 1110
Sunday Closing Laws .................................................................................................. 1111
Conscientious Objection .............................................................................................. 1112
Regulation of Religious Solicitation ........................................................................... 1113
Religion in Governmental Observances .................................................................... 1113
Religious Displays on Government Property ............................................................ 1114
Miscellaneous ............................................................................................................... 1119
Free Exercise of Religion ................................................................................................... 1120
The Belief-Conduct Distinction .................................................................................. 1123
The Mormon Cases ..................................................................................................... 1125
The Jehovah’s Witnesses Cases ................................................................................. 1126
Free Exercise Exemption From General Governmental Requirements ................. 1128
Religious Test Oaths ................................................................................................... 1138
Religious Disqualification ........................................................................................... 1138
Freedom of Expression—Speech and Press ............................................................................. 1140
Adoption and the Common Law Background .................................................................. 1140
Freedom of Expression: The Philosophical Basis ............................................................ 1146
Freedom of Expression: Is There a Difference Between Speech and Press? ................ 1147
The Doctrine of Prior Restraint ........................................................................................ 1150
Injunctions and the Press in Fair Trial Cases ......................................................... 1153
Obscenity and Prior Restraint ................................................................................... 1155
Subsequent Punishment: Clear and Present Danger and Other Tests ......................... 1156
Clear and Present Danger .......................................................................................... 1158
The Adoption of Clear and Present Danger .............................................................. 1160
Contempt of Court and Clear and Present Danger ................................................. 1162
Clear and Present Danger Revised: Dennis .............................................................. 1164
Balancing ..................................................................................................................... 1165
The “Absolutist” View of the First Amendment, With a Note on “Preferred
Position” .................................................................................................................... 1170
1067
1068 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
FIRST AMENDMENT
RELIGION
An Overview
Madison’s original proposal for a bill of rights provision concern-
ing religion read: “The civil rights of none shall be abridged on ac-
count of religious belief or worship, nor shall any national religion
be established, nor shall the full and equal rights of conscience be
in any manner, or on any pretence, infringed.” 1 The language was
altered in the House to read: “Congress shall make no law estab-
lishing religion, or to prevent the free exercise thereof, or to in-
fringe the rights of conscience.” 2 In the Senate, the section adopted
read: “Congress shall make no law establishing articles of faith, or
a mode of worship, or prohibiting the free exercise of reli-
gion. . . .” 3 It was in the conference committee of the two bodies,
chaired by Madison, that the present language was written with
THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1153 (B. Schwartz ed., 1971). It was at
this point that the religion clauses were joined with the freedom of expression clauses.
1071
1072 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
4 1 ANNALS OF CONGRESS 913 (September 24, 1789). The Senate concurred the same
day. See I. BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION 1787–1800 at 271–72
(1950).
5 During House debate, Madison told his fellow Members that “he apprehended
the meaning of the words to be, that Congress should not establish a religion, and
enforce the legal observation of it by law, nor compel men to worship God in any
Manner contrary to their conscience.” 1 ANNALS OF CONGRESS 730 (August 15, 1789).
That his conception of “establishment” was quite broad is revealed in his veto as
President in 1811 of a bill which in granting land reserved a parcel for a Baptist
Church in Salem, Mississippi; the action, explained President Madison, “comprises
a principle and precedent for the appropriation of funds of the United States for the
use and support of religious societies, contrary to the article of the Constitution which
declares that ‘Congress shall make no law respecting a religious establishment.’ ” 8
THE WRITINGS OF JAMES MADISON (G. Hunt, ed.) 132–33 (1904). Madison’s views were
no doubt influenced by the fight in the Virginia legislature in 1784–1785 in which
he successfully led the opposition to a tax to support teachers of religion in Virginia
and in the course of which he drafted his “Memorial and Remonstrance against Re-
ligious Assessments” setting forth his thoughts. Id. at 183–91; I. BRANT, JAMES MADI-
SON: THE NATIONALIST 1780–1787 at 343–55 (1948). Acting on the momentum of this
effort, Madison secured passage of Jefferson’s “Bill for Religious Liberty”. Id. at 354;
D. MALONE, JEFFERSON THE VIRGINIAN 274–280 (1948). The theme of the writings of both
was that it was wrong to offer public support of any religion in particular or of reli-
gion in general.
6 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1865 (1833).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1073
14 See Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793
(2000); and Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The fullest critique of
the Court’s broad interpretation of the Establishment Clause was given by then-
Justice Rehnquist in dissent in Wallace v. Jaffree, 472 U.S. 38, 91 (1985).
15 Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
16 397 U.S. at 668.
17 16 THE WRITINGS OF THOMAS JEFFERSON 281 (A. Libscomb ed., 1904).
18 98 U.S. 145, 164 (1879).
19 Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCol-
lum v. Board of Education, 333 U.S. 203, 211, 212 (1948); cf. Zorach v. Clauson, 343
U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S.
602, 614 (1971), Chief Justice Burger remarked that “the line of separation, far from
being a ‘wall,’ is a blurred, indistinct and variable barrier depending on all the cir-
cumstances of a particular relationship.” In his opinion for the Court, the Chief Jus-
tice repeated similar observations in Lynch v. Donnelly, 465 U.S. 668, 673 (1984)
(the metaphor is not “wholly accurate”; the Constitution does not “require complete
separation of church and state [but] affirmatively mandates accommodation, not merely
tolerance, of all religions, and forbids hostility toward any”).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1075
20 Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421
(1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp,
374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax Comm’n, 397
U.S. 664, 694–97 (1970) (Justice Harlan concurring). In the opinion of the Court in
Walz, Chief Justice Burger wrote: “The course of constitutional neutrality in this
area cannot be an absolutely straight line; rigidity could well defeat the basic pur-
pose of these provisions, which is to insure that no religion be sponsored or favored,
none commanded, and none inhibited. The general principle deducible from the First
Amendment and all that has been said by the Court is this: that we will not toler-
ate either governmentally established religion or governmental interference with re-
ligion. Short of those expressly proscribed governmental acts there is room for play
in the joints productive of a benevolent neutrality which will permit religious exer-
cise to exist without sponsorship and without interference.” Id. at 669.
21 Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concur-
ring).
22 Abington School District v. Schempp, 374 U.S. 203, 222 (1963).
23 Walz v. Tax Comm’n, 397 U.S. 664, 674–75 (1970).
24 403 U.S. 602, 612–13 (1971).
25 E.g., Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646,
653 (1980), and id. at 665 (dissenting opinion); Stone v. Graham, 449 U.S. 39, 40
(1980), and id. at 43 (dissenting opinion).
26 The tests provide “helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973),
and are at best “guidelines” rather than a “constitutional caliper”; they must be used
to consider “the cumulative criteria developed over many years and applying to a
wide range of governmental action.” Inevitably, “no ‘bright line’ guidance is af-
forded.” Tilton v. Richardson, 403 U.S. 672, 677–78 (1971). See also Committee for
Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31 (1973);
1076 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
Committee for Public Educ. and Religious Liberty v. Regan, 444 U.S. 646, 662 (1980),
and id. at 663 (Justice Blackmun dissenting).
27 See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636–40 (1987) (Justice Scalia,
on the basis of historical practice); Lee v. Weisman, 505 U.S. 577, 587 (1992) (reject-
ing a request to reconsider Lemon because the practice of invocations at public high
school graduations was invalid under established school prayer precedents). The Court
has also held that the tripartite test is not applicable when law grants a denomina-
tional preference, distinguishing between religions; rather, the distinction is to be
subjected to the strict scrutiny of a suspect classification. Larson v. Valente, 456 U.S.
228, 244–46 (1982). See also Zobrest v. Catalina Foothills School Dist., 509 U.S. 1
(1993) (upholding provision of sign-language interpreter to deaf student attending
parochial school); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994)
(invalidating law creating special school district for village composed exclusively of
members of one religious sect); Rosenberger v. University of Virginia, 515 U.S. 819
(1995) (upholding the extension of a university subsidy of student publications to a
student religious publication).
29 Agostini v. Felton, 521 U.S. 203 (1997) (upholding under the Lemon tests the
(Justice Kennedy concurring in part and dissenting in part); and Lee v. Weisman,
505 U.S. 577 (1992).
31 Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Independent School Dis-
and the Free Exercise Clause and make the former a “virtual nul-
lity.” 32 Justice O’Connor has suggested “endorsement” as a clarifi-
cation of the Lemon test; i.e., that the Establishment Clause is vio-
lated if the government intends its action to endorse or disapprove
of religion or if a “reasonable observer” would perceive the govern-
ment’s action as such an endorsement or disapproval.33 But others
have criticized that test as too amorphous to provide adequate guid-
ance.34 Justice O’Connor has also suggested that it may be inappro-
priate to try to shoehorn all Establishment Clause cases into one
test, and has called instead for recognition that different contexts
may call for different approaches.35 In two Establishment Clause
decisions, the Court employed all three tests in one decision 36 and
relied primarily on a modified version of the Lemon tests in the other.37
In interpreting and applying the Free Exercise Clause, the Court
has consistently held religious beliefs to be absolutely immune from
governmental interference.38 But it has used a number of stan-
dards to review government action restrictive of religiously moti-
vated conduct, ranging from formal neutrality 39 to clear and pres-
ent danger 40 to strict scrutiny.41 For cases of intentional governmental
discrimination against religion, the Court still employs strict scru-
tiny 42 But for most other free exercise cases it has now reverted to
a standard of formal neutrality. “[T]he right of free exercise,” it has
stated, “does not relieve an individual of the obligation to comply
with a ‘valid and neutral law of general applicability on the ground
32 Lee v. Weisman, 505 U.S. 577, 621 (Souter, J., concurring). See also County
of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (O’Connor, J.,
concurring in part and concurring in the judgment).
33 Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (concurring); Allegheny County
v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (concurring); Board of Educ.
of Kiryas Joel Village v. Grumet, 512 U.S. 687, 712 (1994) (concurring).
34 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989)
(Justice Kennedy, concurring in the judgment in part and dissenting in part); and
Capitol Square Review Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (Justice Scalia).
35 Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 718–723 (1994)
cut, 310 U.S. 296 (1940); Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S.
520 (1993).
39 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879); Braunfeld v. Brown,
the law proscribes (or prescribes) conduct that his religion pre-
scribes (or proscribes).’ ” 43
Government Neutrality in Religious Disputes.—One value
that both religion clauses serve is to enforce governmental neutral-
ity in deciding controversies arising out of religious disputes. Schisms
sometimes develop within churches or between a local church and
the general church, resulting in secession or expulsion of one fac-
tion or of the local church. A dispute over which body is to control
the property of the church will then often be taken into the courts.
It is now established that both religion clauses prevent governmen-
tal inquiry into religious doctrine in settling such disputes, and in-
stead require courts simply to look to the decision-making body or
process in the church and to give effect to whatever decision is offi-
cially and properly made.
The first such case was Watson v. Jones,44 which was decided
on common-law grounds in a diversity action without explicit reli-
ance on the First Amendment. A constitutionalization of the rule
was made in Kedroff v. St. Nicholas Cathedral,45 in which the Court
held unconstitutional a state statute that recognized the autonomy
and authority of those North American branches of the Russian Or-
thodox Church that had declared their independence from the gen-
eral church. Recognizing that Watson v. Jones had been decided on
nonconstitutional grounds, the Court thought nonetheless that the
opinion “radiates . . . a spirit of freedom for religious organiza-
tions, and independence from secular control or manipulation—in
short, power to decide for themselves, free from state interference,
matters of church government as well as those of faith and doc-
trine.” 46 The power of civil courts to resolve church property dis-
putes was severely circumscribed, the Court held, because to per-
mit resolution of doctrinal disputes in court was to jeopardize First
Amendment values. What a court must do, it held, is to look at the
church rules: if the church is a hierarchical one that reposes deter-
mination of ecclesiastical issues in a certain body, the resolution by
that body is determinative, whereas if the church is a congrega-
tional one that prescribes action by a majority vote, that determina-
43 Employment Div. v. Smith, 494 U.S. 872, 879 (1990), quoting United States v.
Lee, 455 U.S. 252, 263, n.3 (1982) (Justice Stevens concurring in the judgment).
44 80 U.S. (13 Wall.) 679 (1872).
45 344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at
116. But the subsequent cases used a collective “First Amendment” designation.
46 344 U.S. at 116. On remand, the state court adopted the same ruling on the
merits but relied on a common-law rule rather than the statute. This too was struck
down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1079
447, 450–51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church
of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in an-
other context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant
charged with mail fraud through dissemination of purported religious literature the
right to present to the jury evidence of the truthfulness of the religious views he
urged).
48 Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440,
449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of
God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368–70 (Justice Bren-
nan concurring).
49 The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697,
720–25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permit-
ted limited inquiry into the legality of the actions taken under church rules. In Ser-
bian Eastern the Court disapproved of this inquiry with respect to concepts of “arbi-
trariness,” although it reserved decision on the “fraud” and “collusion” exceptions.
426 U.S. at 708–20.
50 443 U.S. 595 (1979). In the majority were Justices Blackmun, Brennan, Mar-
shall, Rehnquist, and Stevens. Dissenting were Justices Powell, Stewart, White, and
Chief Justice Burger.
51 443 U.S. at 602–06.
1080 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
Establishment of Religion
“[F]or the men who wrote the Religion Clauses of the First Amend-
ment the ‘establishment’ of a religion connoted sponsorship, finan-
cial support, and active involvement of the sovereign in religious
activity.” 55 “[The] Court has long held that the First Amendment
reaches more than classic, 18th-century establishments.” 56 How-
ever, the Court’s reading of the clause has never resulted in the
barring of all assistance that aids, however incidentally, a religious
institution. Outside this area, the decisions generally have more rig-
orously prohibited what may be deemed governmental promotion
of religious doctrine.57
52 443 U.S. at 606–10. Because it was unclear whether the state court had ap-
stantly in motion to abridge, in the name of education, the complete division of reli-
gion and civil authority which our forefathers made. One is to introduce religious
education and observances into the public schools. The other, to obtain public funds
for the aid and support of various private religious schools . . . . In my opinion both
avenues were closed by the Constitution.” Everson v. Board of Education, 330 U.S.
1, 63 (1947) (Justice Rutledge dissenting).
56 Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 709 (1994)
58 Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington School District v. Schempp,
374 U.S. 203, 246 (1963) (Justice Brennan concurring). In Cochran v. Louisiana Board
of Education, 281 U.S. 370 (1930), a state program furnishing textbooks to paro-
chial schools was sustained under a due process attack without reference to the First
Amendment. See also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation
on expenditures of public funds for sectarian education does not apply to treaty and
trust funds administered by the government for Indians).
59 Everson v. Board of Education, 330 U.S. 1, 15–16 (1947).
60 330 U.S. at 16.
1082 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
the matter, held that the Establishment Clause applied to the states through the
Fourteenth Amendment and limited both national and state governments equally.
Id. at 8, 13, 14–16. The issue is discussed at some length by Justice Brennan in
Abington School Dist. v. Schempp, 374 U.S. 203, 253–58 (1963).
62 See also Zorach v. Clauson, 343 U.S. 306, 312–13 (1952) (upholding program
supra.
65 392 U.S. at 243–44 (1968).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1083
schools. Indeed, in its most recent decisions the Court has over-
turned several of the most restrictive school aid precedents from
its earlier jurisprudence. Throughout, the Court has allowed greater
discretion with respect to aid programs benefiting religiously affili-
ated colleges and social services agencies.
A secular purpose is the first requirement of the Lemon tripar-
tite test to sustain the validity of legislation touching upon reli-
gion, and upon this standard the Justices display little disagree-
ment. There are adequate legitimate, non-sectarian bases for legislation
to assist nonpublic, religious schools: preservation of a healthy and
safe educational environment for all school children, promotion of
pluralism and diversity among public and nonpublic schools, and
prevention of overburdening of the public school system that would
accompany the financial failure of private schools.66
The primary secular effect and no excessive entanglement as-
pects of the Lemon test, however, have proven much more divisive.
As a consequence, the Court’s applications of these tests have not
always been consistent, and the rules guiding their application have
not always been easy to decipher. Moreover, in its most recent deci-
sions the Court has substantially modified the strictures these tests
have previously imposed on public aid to pervasively sectarian en-
tities.
In applying the primary effect and excessive entanglement tests,
the Court has drawn a distinction between public aid programs that
directly aid sectarian entities and those that do so only indirectly.
Aid provided directly, the Court has said, must be limited to secu-
lar use lest it have a primary effect of advancing religion. The Es-
tablishment Clause “absolutely prohibit[s] government-financed or
government-sponsored indoctrination into the beliefs of a particu-
lar religious faith.” 67 The government may provide direct support
to the secular services and programs sponsored by religious enti-
ties, but it cannot directly subsidize such organizations’ religious
activities or proselytizing.68 Thus, the Court struck down as uncon-
stitutional a program providing grants for the maintenance and re-
pair of sectarian elementary and secondary school facilities, be-
cause the grants had no restrictions to prevent their use for such
purposes as defraying the costs of building or maintaining chapels
66 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773
(1973). See also id. at 805 (Chief Justice Burger dissenting), 812–13 (Justice Rehnquist
dissenting), 813 (Justice White dissenting). See also Wolman v. Walter, 433 U.S. 229,
240 (1977) (plurality opinion); Committee for Public Educ. and Religious Liberty v.
Regan, 444 U.S. 646, 653–54 (1980), and id. at 665 (Justice Blackmun dissenting).
67 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).
68 Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Educ. & Reli-
gious Liberty v. Nyquist, 413 U.S. 756 (1973); Mitchell v. Helms, 530 U.S. 793 (2000).
1084 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
decision the Court also cited as important the factor that the program was not likely
to provide “any significant portion of the aid expended under the . . . program” for
religious education. Id. at 488.
74 Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1085
secular subjects) and Aguilar v. Felton, 473 U.S. 402 (1985) (provision of remedial
and enrichment services by public school teachers to eligible children attending sec-
tarian elementary and secondary schools on the premises of those schools).
78 See cases cited in the preceding two footnotes.
1086 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
79 Bradfield v. Roberts, 175 U.S. 291 (1899) (public subsidy of the construction
of a wing of a Catholic hospital on condition that it be used to provide care for the
poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971) (program of grants to col-
leges, including religiously affiliated ones, for the construction of academic buildings
upheld); Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976) (program of
general purpose grants to colleges in the state, including religiously affiliated ones,
upheld); and Bowen v. Kendrick, 487 U.S. 589 (1988) (program of grants to public
and private nonprofit organizations, including religious ones, for the prevention of
adolescent pregnancies upheld).
80 521 U.S. 203 (1997).
81 530 U.S. 793 (2000).
82 473 U.S. 402 (1985).
83 421 U.S. 349 (1975).
84 433 U.S. 229 (1977).
85 473 U.S. 373 (1985).
86 521 U.S. 203 (1994).
87 530 U.S. 793 (2000).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1087
U.S. 192 (1973), the Court held that a state could reimburse schools for expenses
incurred in reliance on the voided program up to the date the Supreme Court held
the statute unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125
(1977).
93 421 U.S. 349 (1975). Chief Justice Burger and Justices Rehnquist and White
gion. This holding was based on the fact that 75 percent of the quali-
fying schools were church-related or religiously affiliated educa-
tional institutions, and that the assistance was available without
regard to the degree of religious activity of the schools. The materi-
als and equipment loaned were religiously neutral, but the substan-
tial assistance necessarily constituted aid to the sectarian school en-
terprise as a whole and thus had a primary effect of advancing
religion.94 Second, the provision of auxiliary services—remedial and
accelerated instruction, guidance counseling and testing, speech and
hearing services—by public employees on nonpublic school prem-
ises was invalidated because the Court found that, even though the
teachers under this program—unlike those under one of the pro-
grams struck down in Lemon v. Kurtzman—were public employees
rather than employees of the religious schools, the continuing sur-
veillance necessary to ensure that the teachers remained reli-
giously neutral gave rise to a constitutionally intolerable degree of
entanglement between church and state.95
In two 1985 cases, the Court again struck down programs of
public subsidy of instructional services provided on the premises of
sectarian schools, and relied on the effects test as well as the en-
tanglement test. In Grand Rapids School District v. Ball,96 the Court
invalidated two programs conducted in leased private school class-
rooms, one taught during the regular school day by public school
teachers,97 and the other taught after regular school hours by part-
time “public” teachers otherwise employed as full-time teachers by
the sectarian school.98 Both programs, the Court held, had the ef-
fect of promoting religion in three distinct ways. The teachers might
be influenced by the “pervasively sectarian nature” of the environ-
ment and might “subtly or overtly indoctrinate the students in par-
ticular religious tenets at public expense”; use of the parochial school
classrooms “threatens to convey a message of state support for reli-
gion” through “the symbolic union of government and religion in
94 421 U.S. at 362–66. See also Wolman v. Walter, 433 U.S. 229, 248–51 (1977).
The Court in Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S.
646, 661–62 (1980), held that Meek did not forbid all aid that benefited religiously
pervasive schools to some extent, so long as it was conferred in such a way as to
prevent any appreciable risk of being used to transmit or teach religious views. See
also Wolman v. Walter, 433 U.S. at 262 (Justice Powell concurring in part and dis-
senting in part).
95 Meek v. Pittenger, 421 U.S. 349, 367–72 (1975). But see Wolman v. Walter,
Justice Brennan being joined by Justices Marshall, Blackmun, Powell, and Stevens.
The Chief Justice, and Justices White, Rehnquist, and O’Connor dissented.
98 The vote on this “Community Education” program was 7–2, Chief Justice Burger
Justice White dissented, id. at 482. The most expensive service to be reimbursed for
nonpublic schools was the “administration, grading and the compiling and reporting
of the results of tests and examinations.” Id. at 474–75. In New York v. Cathedral
Academy, 434 U.S. 125 (1977), the Court struck down a new statutory program en-
titling private schools to obtain reimbursement for expenses incurred during the school
year in which the prior program was voided in Levitt.
103 Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756,
774–80 (1973). Chief Justice Burger and Justice Rehnquist concurred, id. at 798,
and Justice White dissented, id. at 820.
104 Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980).
Justices Blackmun, Brennan, Marshall, and Stevens dissented. Id. at 662, 671. The
1090 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
dissenters thought that the authorization of direct reimbursement grants was distin-
guishable from previously approved plans that had merely relieved the private schools
of the costs of preparing and grading state-prepared tests. See Wolman v. Walter,
433 U.S. 229, 238–41 (1977).
105 433 U.S. 229 (1977). The Court deemed the situation in which these services
were performed and the nature of the services to occasion little danger of aiding
religious functions and thus requiring little supervision that would give rise to en-
tanglement. All the services fell “within that class of general welfare services for
children that may be provided by the States regardless of the incidental benefit that
accrues to church-related schools.” Id. at 243, quoting Meek v. Pittenger, 421 U.S.
349, 371 n.21 (1975). Justice Brennan would have voided all the programs because,
considered as a whole, the amount of assistance was so large as to constitute assis-
tance to the religious mission of the schools. 433 U.S. at 255. Justice Marshall would
have approved only the diagnostic services, id. at 256, while Justice Stevens would
generally approve closely administered public health services. Id. at 264.
106 Meek v. Pittenger, 421 U.S. 349, 359–72 (1975); Wolman v. Walter, 433 U.S.
229, 236–38 (1977). Allen was explained as resting on “the unique presumption” that
“the educational content of textbooks is something that can be ascertained in ad-
vance and cannot be diverted to sectarian uses.” There was “a tension” between Ny-
quist, Meek, and Wolman, on the one hand, and Allen on the other; although Allen
was to be followed “as a matter of stare decisis,” the “presumption of neutrality”
embodied in Allen would not be extended to other similar assistance. Id. at 251 n.18.
A later Court majority revived the Allen presumption, however, applying it to up-
hold tax deductions for tuition and other school expenses in Mueller v. Allen, 463
U.S. 388 (1983). Justice Rehnquist wrote the Court’s opinion, joined by Justices White,
Powell, and O’Connor, and by Chief Justice Burger.
107 433 U.S. at 248–51. See also id. at 263–64 (Justice Powell concurring in part
tral, secular criteria that neither favor nor disfavor religion, and is
made available to both religious and secular beneficiaries on a non-
discriminatory basis.” 116 Finding the Title I program to meet that
test, the Court concluded that “accordingly, we must acknowledge
that Aguilar, as well as the portion of Ball addressing Grand Rap-
ids’ Shared Time program, are no longer good law.” 117
Later, in Mitchell v. Helms 118 the Court abandoned the presump-
tions that religious elementary and secondary schools are so perva-
sively sectarian that they are constitutionally ineligible to partici-
pate in public aid programs directly benefiting their educational
functions and that direct aid to such institutions must be subject
to an intrusive and constitutionally fatal monitoring. At issue in the
case was a federal program that distributed funds to local educa-
tional agencies to provide instructional materials and equipment,
such as computer hardware and software, library books, movie pro-
jectors, television sets, VCRs, laboratory equipment, maps, and cas-
sette recordings, to public and private elementary and secondary
schools. Virtually identical programs had previously been held un-
constitutional by the Court in Meek v. Pittenger 119 and Wolman v.
Walter.120 But in this case the Court overturned those decisions and
held the program to be constitutional.
Mitchell had no majority opinion. The opinions of Justice Thomas,
joined by Chief Justice Rehnquist and Justices Scalia and Ken-
nedy, and of Justice O’Connor, joined by Justice Breyer, found the
program constitutional. They agreed that to pass muster under the
primary effect prong of the Lemon test direct public aid has to be
secular in nature and distributed on the basis of religiously neu-
tral criteria. They also agreed, in contrast to past rulings, that sec-
tarian elementary and secondary schools should not be deemed con-
stitutionally ineligible for direct aid on the grounds that their secular
educational functions are “inextricably intertwined” with their reli-
gious educational functions, i.e., that they are pervasively sectar-
ian. But their rationales for the program’s constitutionality then di-
116 In Agostini, the Court nominally eliminated entanglement as a separate prong
of the Lemon test. “[T]he factors we use to assess whether an entanglement is ‘ex-
cessive,’ ” the Court stated, “are similar to the factors we use to examine ‘effect.’ ”
“Thus,” it concluded, “it is simplest to recognize why entanglement is significant and
treat it—as we did in Walz—as an aspect of the inquiry into a statute’s effect.” 521
U.S. at 232, 233.
117 Justice Souter, joined by Justices Stevens and Ginsburg, dissented from the
Court’s ruling, contending that the Establishment Clause mandates a “flat ban on
[the] subsidization” of religion (521 U.S. at 243) and that the Court’s contention that
recent cases had undermined the reasoning of Aguilar was a “mistaken reading” of
the cases. Id. at 248. Justice Breyer joined in the second dissenting argument.
118 530 U.S. 793 (2000).
119 421 U.S. 349 (1975).
120 433 U.S. 229 (1977).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1093
121 Justice O’Connor also cited several other factors as “sufficient” to ensure the
122 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756,
789–798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825 (1973) (Pennsylvania).
The Court distinguished Everson and Allen on the grounds that in those cases the
aid was given to all children and their parents and that the aid was in any event
religiously neutral, so that any assistance to religion was purely incidental. 413 U.S.
at 781–82. Chief Justice Burger thought that Everson and Allen were controlling.
Id. at 798.
123 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756,
790–91 (1973).
124 413 U.S. at 791–94. Principally, Walz was said to be different because of the
longstanding nature of the property tax exemption it dealt with, because the Walz
exemption was granted in the spirit of neutrality whereas the tax credit under con-
sideration was not, and the fact that the Walz exemption promoted less entangle-
ment whereas the credit would promote more.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1095
ciple.125 The second subsidiary argument that the Court rejected was
that, because the Pennsylvania program reimbursed parents who
sent their children to nonsectarian schools as well as to sectarian
ones, the portion respecting the former parents was valid and “par-
ents of children who attended sectarian schools are entitled to the
same aid as a matter of equal protection.” 126 The Court found the
argument “thoroughly spurious,” adding, “The Equal Protection Clause
has never been regarded as a bludgeon with which to compel a State
to violate other provisions of the Constitution.” 127
In 1983, the Court clarified the limits of the Nyquist holding.
In Mueller v. Allen,128 the Court upheld a Minnesota deduction from
state income tax available to parents of elementary and secondary
school children for expenses incurred in providing tuition, transpor-
tation, textbooks, and various other school supplies. Because the Min-
nesota deduction was available to parents of public and private school-
children alike, the Court termed it “vitally different from the scheme
struck down in Nyquist,” and more similar to the benefits upheld
in Everson and Allen as available to all schoolchildren.129 The Court
declined to look behind the “facial neutrality” of the law and con-
sider empirical evidence of its actual impact, citing a need for “cer-
tainty” and the lack of “principled standards” by which to evaluate
such evidence.130 Also important to the Court’s refusal to consider
125 413 U.S. at 788–89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (Free
fusal to sever the program and save that portion as to children attending non-
sectarian schools on the basis that, because so large a portion of the children ben-
efited attended religious schools, it could not be assumed the legislature would have
itself enacted such a limited program.
In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that states receiving
federal educational funds were required by federal law to provide “comparable” but
not equal services to both public and private school students within the restraints
imposed by state constitutional restrictions on aid to religious schools. In the ab-
sence of specific plans, the Court declined to review First Amendment limitations
on such services.
128 463 U.S. 388 (1983).
129 463 U.S. at 398. Nyquist had reserved the question of “whether the signifi-
cantly religious character of the statute’s beneficiaries might differentiate the pres-
ent cases from a case involving some form of public assistance (e.g., scholarships)
made available generally without regard to the sectarian-nonsectarian, or public-
nonpublic nature of the institution benefitted.” 413 U.S. at 783 n.38.
130 463 U.S. at 401. Justice Marshall’s dissenting opinion, joined by Justices Bren-
nan, Blackmun, and Stevens, argued that the tuition component of the deduction,
unavailable to parents of most public schoolchildren, was by far the most signifi-
cant, and that the deduction as a whole “was little more that a subsidy of tuition
masquerading as a subsidy of general educational expenses.” 463 U.S. at 408–09.
Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985), where the Court empha-
sized that 40 of 41 nonpublic schools at which publicly funded programs operated
1096 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
the individual, not by the State.” Finally, the Court concluded, there
was no evidence that “any significant portion of the aid expended
under the Washington program as a whole will end up flowing to
religious education.” 135
In Zobrest v. Catalina Foothills School District 136 the Court re-
affirmed this line of reasoning. The case involved the provision of a
sign language interpreter pursuant to the Individuals with Disabili-
ties Education Act (IDEA) 137 to a deaf high school student who wanted
to attend a Catholic high school. In upholding the assistance as con-
stitutional, the Court emphasized that “[t]he service at issue in this
case is part of a general government program that distributes ben-
efits neutrally to any child qualifying as ‘disabled’ under the IDEA,
without regard to the ‘sectarian-nonsectarian, or public-nonpublic
nature’ of the school the child attends.” Thus, it held that the pres-
ence of the interpreter in the sectarian school resulted not from a
decision of the state but from the “private decision of individual par-
ents.” 138
Finally, in Zelman v. Simmons-Harris 139 the Court reinter-
preted the genuine private choice criterion in a manner that seems
to render most voucher programs constitutional. At issue was an
Ohio program that provided vouchers to the parents of children in
failing public schools in Cleveland for use at private schools in the
city. The Court upheld the program notwithstanding that, as in Ny-
quist, most of the schools at which the vouchers could be redeemed
were religious and most of the voucher students attended such schools.
But the Court found that the program nevertheless involved “true
private choice.” 140 “Cleveland schoolchildren,” the Court said, “en-
joy a range of educational choices: They may remain in public school
as before, remain in public school with publicly funded tutoring aid,
obtain a scholarship and choose a religious school, obtain a scholar-
ship and choose a nonreligious private school, enroll in a commu-
nity school, or enroll in a magnet school. That 46 of the 56 private
schools now participating in the program are religious schools does
not condemn it as a violation of the Establishment Clause. The Es-
tablishment Clause question is whether Ohio is coercing parents
into sending their children to religious schools, and that question
must be answered by evaluating all options Ohio provides Cleve-
the Court found that a religious use then would be an unconstitutional aid to reli-
gion, and it struck down the period of limitation. 403 U.S. at 682–84.
144 It was no doubt true, Chief Justice Burger conceded, that construction grants
to religious-related colleges did in some measure benefit religion, because the grants
freed money that the colleges would be required to spend on the facilities for which
the grants were made. Bus transportation, textbooks, and tax exemptions similarly
benefited religion and had been upheld. “The crucial question is not whether some
benefit accrues to a religious institution as a consequence of the legislative pro-
gram, but whether its principal or primary effect advances religion.” 403 U.S. at
679.
145 Hunt v. McNair, 413 U.S. 734, 743 (1973).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1099
146 413 U.S. at 743–44. Justices Brennan, Douglas, and Marshall, dissenting,
rejected the distinction between elementary and secondary education and higher edu-
cation and foresaw a greater danger of entanglement than did the Court. Id. at 749.
147 Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976). Justice Blackmun’s
plurality opinion was joined only by Chief Justice Burger and Justice Powell. Jus-
tices White and Rehnquist concurred on the basis of secular purpose and no pri-
mary religious benefit, rejecting entanglement. Id. at 767. Four justices dissented.
148 426 U.S. at 755. In some of the schools mandatory religion courses were taught,
the significant factor in Justice Stewart’s view, id. at 773, but overweighed by other
factors in the plurality’s view.
149 426 U.S. at 755–66. The plurality also relied on the facts that the student
body was not local but diverse, and that large numbers of non-religiously affiliated
institutions received aid. A still further broadening of governmental power to ex-
tend aid affecting religious institutions of higher education occurred in several sub-
sequent decisions. First, the Court summarily affirmed two lower-court decisions up-
holding programs of assistance—scholarships and tuitions grants—to students at college
and university as well as vocational programs in both public and private—including
religious—institutions; one of the programs contained no secular use restriction at
all and in the other one the restriction seemed somewhat pro forma. Smith v. Board
of Governors of Univ. of North Carolina, 434 U.S. 803 (1977), aff ’g 429 F. Supp. 871
(W.D.N.C. 1977); Americans United v. Blanton, 434 U.S. 803 (1977), aff ’g 433 F. Supp.
97 (M.D. Tenn. 1977). Second, in Witters v. Washington Dep’t of Services for the
Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational rehabilitation schol-
arship at a religious college, emphasizing that the religious institution received the
public money as a result of the “genuinely independent and private choices of the
aid recipients,” and not as the result of any decision by the state to sponsor or sub-
sidize religion. Third, in Rosenberger v. The Rector and Visitors of the University of
Virginia, 515 U.S. 819 (1995), the Court held that a public university cannot ex-
clude a student religious publication from a program subsidizing the printing costs
1100 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
lished that religious organizations may receive direct aid for support of secular social-
welfare cases.
154 487 U.S. at 621.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1101
261–63 (1963) (Justice Brennan concurring) (suggesting that the important distinc-
tion was that “the McCollum program placed the religious instruction in the public
school classroom in precisely the position of authority held by the regular teachers
of secular subjects, while the Zorach program did not”).
160 Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1103
161 370 U.S. at 430. Justice Black for the Court rejected the idea that the prohi-
are requiring the selection and reading at the opening of the school day of verses
from the Holy Bible and the recitation of the Lord’s Prayer by the students in uni-
son. These exercises are prescribed as part of the curricular activities of students
who are required by law to attend school. They are held in the school buildings un-
der the supervision and with the participation of teachers employed in those schools.
None of these factors, other than compulsory school attendance, was present in the
program upheld in Zorach v. Clausen.” Id.
163 374 U.S. at 223–24. The Court thought the exercises were clearly religious.
164 374 U.S. at 225. “We agree of course that the State may not establish a ‘re-
he attempted to rationalize the decisions of the Court on the religion clauses and to
delineate the principles applicable. He concluded that what the Establishment Clause
foreclosed “are those involvements of religious with secular institutions which (a)
serve the essentially religious activities of religious institutions; (b) employ the or-
gans of government for essentially religious purposes; or (c) use essentially religious
1104 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
means to serve governmental ends, where secular means would suffice.” Id. at 230,
295. Justice Stewart again dissented alone, feeling that the claims presented were
essentially free exercise contentions which were not supported by proof of coercion
or of punitive official action for nonparticipation.
While numerous efforts were made over the years to overturn these cases, through
constitutional amendment and through limitations on the Court’s jurisdiction, the
Supreme Court itself has had no occasion to review the area again. But see Stone v.
Graham, 449 U.S. 39 (1980) (summarily reversing state court and invalidating stat-
ute requiring the posting of the Ten Commandments, purchased with private contri-
butions, on the wall of each public classroom, on the grounds the Ten Command-
ments are “undeniably a sacred text” and the “pre-eminent purpose” of the posting
requirement was “plainly religious in nature”).
166 472 U.S. 38 (1985).
167 472 U.S. at 59.
168 Justice O’Connor’s concurring opinion is notable for its effort to synthesize
and refine the Court’s Establishment and Free Exercise tests (see also the Justice’s
concurring opinion in Lynch v. Donnelly), and Justice Rehnquist’s dissent for its ef-
fort to redirect Establishment Clause analysis by abandoning the tripartite test, dis-
carding any requirement that government be neutral between religion and “irreli-
gion,” and confining the scope to a prohibition on establishing a national church or
otherwise favoring one religious group over another.
169 505 U.S. 577 (1992).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1105
in the elementary and secondary school setting.170 The state “in ef-
fect required participation in a religious exercise,” since the option
of not attending “one of life’s most significant occasions” was no real
choice. “At a minimum,” the Court concluded, the Establishment
Clause “guarantees that government may not coerce anyone to sup-
port or participate in religion or its exercise.”
In Santa Fe Independent School District v. Doe 171 the Court held
a school district’s policy permitting high school students to vote on
whether to have an “invocation and/or prayer” delivered prior to home
football games by a student elected for that purpose to violate the
Establishment Clause. It found the policy to violate each of the tests
it has formulated for Establishment Clause cases. The preference
given for an “invocation” in the text of the school district’s policy,
the long history of pre-game prayer led by a student “chaplain” in
the school district, and the widespread perception that “the policy
is about prayer,” the Court said, made clear that its purpose was
not secular but was to preserve a popular state-sponsored religious
practice in violation of the first prong of the Lemon test. Moreover,
it said, the policy violated the coercion test by forcing unwilling stu-
dents into participating in a religious exercise. Some students—the
cheerleaders, the band, football players—had to attend, it noted, and
others were compelled to do so by peer pressure. “The constitu-
tional command will not permit the District ‘to exact religious con-
formity from a student as the price’ of joining her classmates at a
varsity football game,” the Court held.172 Finally, it said, the speech
sanctioned by the policy was not private speech but government-
sponsored speech that would be perceived as a government endorse-
ment of religion. The long history of pre-game prayer, the bias to-
ward religion in the policy itself, the fact that the message would
be “delivered to a large audience assembled as part of a regularly
scheduled, school-sponsored function conducted on school prop-
170 The Court distinguished Marsh v. Chambers, 463 U.S. 783, 792 (1983), hold-
ing that the opening of a state legislative session with a prayer by a state-paid chap-
lain does not offend the Establishment Clause. The Marsh Court had distinguished
Abington on the basis that state legislators, as adults, are “presumably not readily
susceptible to ‘religious indoctrination’ or ‘peer pressure’ ” and the Lee Court reiter-
ated this distinction. 505 U.S. at 596–97. This distinction was again relied on by a
plurality of Justices in Town of Greece v. Galloway, see 572 U.S. ___, No. 12–696,
slip op. at 18–24 (2014), in a decision upholding the use of legislative prayer at a
town board meeting. Justice Kennedy, on behalf of himself and Chief Justice Rob-
erts and Justice Alito, distinguished the situation in Lee, in that with legislative
prayer, at least in the context of Town of Greece, those claiming offense at the prayer
were “mature adults” who are not “susceptible to religious indoctrination or peer
pressure” and were free to leave a town meeting during the prayer without any ad-
verse implications. Id. at 22–23 (quoting Marsh, 463 U.S. at 792).
171 530 U.S. 290 (2000).
172 530 U.S. at 312.
1106 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
erty” 173 and over the school’s public address system, the Court as-
serted, all meant that the speech was not genuine private speech
but would be perceived as “stamped with [the] school’s seal of ap-
proval.” 174 The Court concluded that “[t]he policy is invalid on its
face because it establishes an improper majoritarian election on re-
ligion, and unquestionably has the purpose and creates the percep-
tion of encouraging the delivery of prayer at a series of important
school events.” 175
Governmental Encouragement of Religion in Public Schools:
Curriculum Restriction.—In Epperson v. Arkansas,176 the Court
struck down a state statute that made it unlawful for any teacher
in any state-supported educational institution “to teach the theory
or doctrine that mankind ascended or descended from a lower or-
der of animals,” or “to adopt or use in any such institution a text-
book that teaches” this theory. Agreeing that control of the curricu-
lum of the public schools was largely in the control of local officials,
the Court nonetheless held that the motivation of the statute was
a fundamentalist belief in the literal reading of the Book of Gen-
esis and that this motivation and result required the voiding of the
law. “The law’s effort was confined to an attempt to blot out a par-
ticular theory because of its supposed conflict with the Biblical ac-
count, literally read. Plainly, the law is contrary to the mandate of
the First . . . Amendment to the Constitution.” 177
Similarly invalidated as having the improper purpose of advanc-
ing religion was a Louisiana statute mandating balanced treat-
ment of “creation-science” and “evolution-science” in the public schools.
“The preeminent purpose of the Louisiana legislature,” the Court
found in Edwards v. Aguillard, “was clearly to advance the reli-
gious viewpoint that a supernatural being created humankind.” 178
The Court viewed as a “sham” the stated purpose of protecting aca-
demic freedom, and concluded instead that the legislature’s pur-
pose was to narrow the science curriculum in order to discredit evo-
lution “by counterbalancing its teaching at every turn with the teaching
of creation science.” 179
term ‘creation science,’ as used by the legislature . . . embodies the religious belief
that a supernatural creator was responsible for the creation of humankind.” Id. at
592.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1107
Act requires secondary schools that receive federal financial assistance to allow stu-
dent religious groups to meet in school facilities during noncurricular time to the
same extent as other student groups and had been enacted by Congress in 1984 to
apply the Widmar principles to the secondary school setting.
183 There was no opinion of the Court on Establishment Clause issues, a plural-
ity of four led by Justice O’Connor applying the three-part Lemon test, and concur-
ring Justices Kennedy and Scalia proposing a less stringent test under which “neu-
tral” accommodations of religion would be permissible as long as they do not in effect
establish a state religion, and as long as there is no coercion of students to partici-
pate in a religious activity.
184 496 U.S. at 242.
185 508 U.S. 384 (1993).
1108 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
186 508 U.S. at 395. Concurring opinions by Justice Scalia, joined by Justice Thomas,
and by Justice Kennedy, criticized the Court’s reference to Lemon. Justice Scalia
lamented that “[l]ike some ghoul in a late-night horror movie that repeatedly sits
up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon
stalks our Establishment Clause jurisprudence once again, frightening the little chil-
dren and school attorneys of Center Moriches Union Free School District.” Id. at
398. Justice White pointedly noted, however, that “Lemon . . . has not been over-
ruled.” Id at 395 n.7.
187 533 U.S. 98 (2001).
188 515 U.S. 819 (1995).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1109
religious character. For religious institutions simply share benefits which govern-
ment makes generally available to educational, charitable, and eleemosynary groups.”
Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring opinion).
190 Walz v. Tax Comm’n, 397 U.S. 664 (1970). Justice Douglas dissented.
191 397 U.S. at 672–74.
192 See discussion under “Court Tests Applied to Legislation Affecting Religion,”
supra.
1110 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ernment itself has advanced religion through its own activities and influence.” 483
U.S. at 337. Justice O’Connor’s concurring opinion suggests that practically any ben-
efit to religion can be “recharacterized as simply ‘allowing’ a religion to better ad-
vance itself,” and that a “necessary second step is to separate those benefits to reli-
gion that constitutionally accommodate the free exercise of religion from those that
provide unjustifiable awards of assistance to religious organizations.” Id. at 347, 348.
202 The history is recited at length in the opinion of the Court in McGowan v.
Maryland, 366 U.S. 420, 431–40 (1961), and in Justice Frankfurter’s concurrence.
Id. at 459, 470–551 and appendix.
203 366 U.S. 420 (1961). Decision on the establishment question in this case also
controlled the similar decision on that question in Two Guys from Harrison-
Allentown v. McGinley, 366 U.S. 582 (1961), Braunfeld v. Brown, 366 U.S. 599 (1961),
and Gallagher v. Crown Kosher Super Market, 366 U.S. 617 (1961). On free exer-
cise in Sunday Closing cases, see “Free Exercise Exemption From General Govern-
mental Requirements,” infra.
204 McGowan v. Maryland, 366 U.S. 420, 444 (1961).
205 366 U.S. at 445.
206 366 U.S. at 449–52.
1112 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
207 366 U.S. at 449–52. Justice Frankfurter, with whom Justice Harlan con-
curred, arrived at the same conclusions by a route that did not require approval of
Everson v. Board of Education, from which he had dissented.
208 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).
209 In United States v. Seeger, 380 U.S. 163 (1965), a unanimous Court con-
strued the language of the exemption limiting the status to those who by “religious
training and belief ” (that is, those who believed in a “Supreme Being”), to mean
that a person must have some belief which occupies in his life the place or role which
the traditional concept of God occupies in the orthodox believer. After the “Supreme
Being” clause was deleted, a plurality in Welsh v. United States, 398 U.S. 333 (1970),
construed the religion requirement as inclusive of moral, ethical, or religious grounds.
Justice Harlan concurred on constitutional grounds, believing that the statute was
clear that Congress had intended to restrict conscientious objection status to those
persons who could demonstrate a traditional religious foundation for their beliefs
and that this was impermissible under the Establishment Clause. Id. at 344. The
dissent by Justices White and Stewart and Chief Justice Burger rejected both the
constitutional and the statutory basis. 398 U.S. at 367.
210 401 U.S. 437 (1971).
211 401 U.S. at 449.
212 401 U.S. at 450.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1113
ernment has drawn” 213 in order that it be held to violate the Estab-
lishment Clause. The classification here was not religiously based
“on its face,” and served “a number of valid purposes having noth-
ing to do with a design to foster or favor any sect, religion, or clus-
ter of religions.” 214 These purposes, related to the difficulty in sepa-
rating sincere conscientious objectors to particular wars from others
with fraudulent claims, included the maintenance of a fair and effi-
cient selective service system and protection of the integrity of demo-
cratic decision-making.215
Regulation of Religious Solicitation.—Although the solicita-
tion cases have generally been decided under the free exercise or
free speech clauses,216 in one instance the Court, intertwining es-
tablishment and free exercise principles, voided a provision in a state
charitable solicitations law that required only those religious orga-
nizations that received less than half their total contributions from
members or affiliated organizations to comply with the registration
and reporting sections of the law.217 Applying strict scrutiny equal
protection principles, the Court held that, by distinguishing be-
tween older, well-established churches that had strong member-
ship financial support and newer bodies lacking a contributing con-
stituency or that may favor public solicitation over general reliance
on financial support from the members, the statute granted denomi-
national preference forbidden by the Establishment Clause.218
Religion in Governmental Observances.—The practice of open-
ing legislative sessions with prayers by paid chaplains was upheld
in Marsh v. Chambers,219 a case involving prayers in the Nebraska
legislature. The Court relied almost entirely on historical practice.
Congress had paid a chaplain and opened sessions with prayers for
almost 200 years; the fact that Congress had continued the prac-
tice after considering constitutional objections in the Court’s view
strengthened rather than weakened the historical argument. Simi-
larly, the practice was well rooted in Nebraska and in most other
213 401 U.S. at 452.
214 401 U.S. at 452.
215 401 U.S. at 452–60.
216 See discussion under “Door-to-Door Solicitation and Charitable Solicitation,”
infra.
217 Larson v. Valente, 456 U.S. 228 (1982). Two Justices dissented on the mer-
its, id. at 258 (Justices White and Rehnquist), while two other Justices dissented on
a standing issue. Id. at 264 (Chief Justice Burger and Justice O’Connor).
218 456 U.S. at 246–51. Compare Heffron v. ISKCON, 452 U.S. 640, 652–53 (1981),
and id. at 659 n.3 (Justice Brennan, concurring in part and dissenting in part) (deal-
ing with a facially neutral solicitation rule distinguishing between religious groups
that have a religious tenet requiring peripatetic solicitation and those who do not).
219 463 U.S. 783 (1983). Marsh was a 6–3 decision, with Chief Justice Burger’s
opinion for the Court being joined by Justices White, Blackmun, Powell, Rehnquist,
and O’Connor, and with Justices Brennan, Marshall, and Stevens dissenting.
1114 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
legislatures that sponsor prayers and the courts that are asked to decide these cases
to act as supervisors and censors of religious speech, a rule that would involve gov-
ernment in religious matters to a far greater degree than is the case under the town’s
current practice . . . .”).
225 Id. at 17.
226 Id.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1115
227 465 U.S. 668 (1984). Lynch was a 5–4 decision, with Justice Blackmun, who
voted with the majority in Marsh, joining the Marsh dissenters in this case. Again,
Chief Justice Burger wrote the opinion of the Court, joined by the other majority
Justices, and again Justice Brennan wrote a dissent, joined by the other dissenters.
A concurring opinion was added by Justice O’Connor, and a dissenting opinion was
added by Justice Blackmun.
228 492 U.S. 573 (1989).
229 465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306, 313 (1952).
230 465 U.S. at 680.
231 465 U.S. at 681–82. Although the extent of benefit to religion was an impor-
tant factor in earlier cases, it was usually balanced against the secular effect of the
same practice rather than the religious effects of other practices.
1116 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
vote that obscured continuing disagreement over analytical approach. The portions
of Justice Scalia’s opinion that formed the opinion of the Court were joined by Chief
Justice Rehnquist and by Justices O’Connor, Kennedy, Souter, Thomas, and Breyer.
A separate part of Justice Scalia’s opinion, joined only by the Chief Justice and by
Justices Kennedy and Thomas, disputed the assertions of Justices O’Connor, Souter,
and Breyer that the “endorsement” test should be applied. Dissenting Justice Ste-
vens thought that allowing the display on the Capitol grounds did carry “a clear
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1117
gious displays on public property. There the Court ruled that Ohio
violated free speech rights by refusing to allow the Ku Klux Klan
to display an unattended cross in a publicly owned plaza outside
the Ohio Statehouse. Because the plaza was a public forum in which
the state had allowed a broad range of speakers and a variety of
unattended displays, the state could regulate the expressive con-
tent of such speeches and displays only if the restriction was neces-
sary, and narrowly drawn, to serve a compelling state interest. The
Court recognized that compliance with the Establishment Clause
can be a sufficiently compelling reason to justify content-based re-
strictions on speech, but saw no need to apply this principle when
permission to display a religious symbol is granted through the same
procedures, and on the same terms, required of other private groups
seeking to convey non-religious messages.
Displays of the Ten Commandments on government property oc-
casioned two decisions in 2005. As in Allegheny County, a closely
divided Court determined that one display violated the Establish-
ment Clause and one did not. And again, context and imputed pur-
pose made the difference. The Court struck down display of the Ten
Commandments in courthouses in two Kentucky counties,239 but held
that a display on the grounds of the Texas State Capitol was per-
missible.240 The displays in the Kentucky courthouses originally “stood
alone, not part of an arguably secular display.” 241 Moreover, the his-
tory of the displays revealed “a predominantly religious purpose”
that had not been eliminated by steps taken to give the appear-
ance of secular objectives.242
There was no opinion of the Court in Van Orden. Justice Breyer,
the swing vote in the two cases,243 distinguished the Texas Capitol
grounds display from the Kentucky courthouse displays. In some
contexts, the Ten Commandments can convey a moral and histori-
image of endorsement” (id. at 811), and Justice Ginsburg’s brief opinion seemingly
agreed with that conclusion.
239 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).
240 Van Orden v. Perry, 545 U.S. 677 (2005).
241 545 U.S. at 868. The Court in its previous Ten Commandments case, Stone
v. Graham, 449 U.S. 39, 41 (1980) (invalidating display in public school classrooms)
had concluded that the Ten Commandments are “undeniably a sacred text,” and the
2005 Court accepted that characterization. McCreary, 545 U.S. at 859.
242 545 U.S. at 881. An “indisputable” religious purpose was evident in the reso-
lutions authorizing a second display, and the Court characterized statements of pur-
pose accompanying authorization of the third displays as “only . . . a litigating posi-
tion.” 545 U.S. at 870, 871.
243 Only Justice Breyer voted to invalidate the courthouse displays and uphold
the capitol grounds display. The other eight Justices were split evenly, four (Chief
Justice Rehnquist and Justices Scalia, Kennedy, and Thomas) voting to uphold both
displays, and four (Justices Stevens, O’Connor, Souter, and Ginsburg) voting to in-
validate both.
1118 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
tions bill forbidding the use of governmental funds to remove the cross, designating
the cross and its adjoining land as a “national memorial,” prohibitng the spending
of governmental funds to remove the cross, and directing the Secretary of the Inte-
rior to transfer the land to the Veterans of Foreign Wars (VFW) as long as the prop-
erty was maintained as a memorial commemorating World War I veterans. A fed-
eral court of appeals ordered the removal of the cross, holding that a reasonable
observer would perceive a cross on federal land as governmental endorsement of re-
ligion, Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), and the government did not
seek review of this decision. Subsequently, the court of appeals affirmed a lower court
injunction against the transfer of land to the VFW, holding that the underlying stat-
ute was an invalid attempt to keep the cross in its existing location. Buono v.
Kempthorne, 502 F.3d 1069 (9th Cir. 2007).
248 Justice Kennedy, joined in full by Chief Justice Roberts and in part by Jus-
tice Alito, found that the plaintiff, based on the existing injunction, had standing to
challenge the land transfer. The case, however, was remanded to the district court
to consider the legitimate congressional interest in reconciling Establishment Clause
concerns with respect for the commemoration of military veterans, id. at 10–13, and
to evaluate whether the land transfer would lead a “reasonable observer” to per-
ceive government endorsement of religion. Id. at 16–17. Justice Alito would have
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1119
Ginsburg) thought that the Grendel’s Den principle applied; in their view the distinc-
tion that the delegation was to a village electorate rather than to a religious body
“lack[ed] constitutional significance” under the peculiar circumstances of the case.
1120 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
way to review such state action” for conformity with the neutrality
principle. Because the village did not receive its governmental au-
thority simply as one of many communities eligible under a gen-
eral law, the Court explained, there was no way of knowing whether
the legislature would grant similar benefits on an equal basis to
other religious and nonreligious groups.
253 Abington School District v. Schempp, 374 U.S. 203, 222–23 (1963).
254 Sherbert v. Verner, 374 U.S 398, 402 (1963) (emphasis in original).
255 Braunfeld v. Brown, 366 U.S. 599, 607 (1961).
256 Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. Watkins, 367 U.S.
488 (1961).
257 Academics as well as the Justices grapple with the extent to which religious
practices as well as beliefs are protected by the Free Exercise Clause. For contrast-
ing academic views of the origins and purposes of the Free Exercise Clause, com-
pare McConnell, The Origins and Historical Understanding of Free Exercise of Reli-
gion, 103 HARV. L. REV. 1410 (1990) (concluding that constitutionally compelled exemptions
from generally applicable laws are consistent with the Clause’s origins in religious
pluralism) with Marshall, The Case Against the Constitutionally Compelled Free Ex-
ercise Exemption, 40 CASE W. RES. L. REV. 357 (1989–90) (arguing that such exemp-
tions establish an invalid preference for religious beliefs over non-religious beliefs).
258 E.g., Reynolds v. United States, 98 U.S. 145 (1879); Jacobson v. Massachu-
setts, 197 U.S. 11 (1905); Prince v. Massachusetts, 321 U.S. 158 (1944); Braunfeld v.
Brown, 366 U.S. 599 (1961); United States v. Lee, 455 U.S. 252 (1982); Employment
Division v. Smith, 494 U.S. 872 (1990).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1121
Clauses, both of which are cast in absolute terms, and either of which, if expanded
to a logical extreme, would tend to clash with the other.” Walz v. Tax Comm’n, 397
U.S. 668–69 (1970).
260 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45 (1987).
261 Walz v. Tax Comm’n, 397 U.S. at 669. See also Locke v. Davey, 540 U.S. 712,
450 U.S. 707, 719–20 (1981). Dissenting in Thomas, Justice Rehnquist argued that
Sherbert and Thomas created unacceptable tensions between the Establishment and
Free Exercise Clauses, and that requiring the states to accommodate persons like
Sherbert and Thomas because of their religious beliefs ran the risk of “establishing”
religion under the Court’s existing tests. He argued further, however, that less ex-
pansive interpretations of both clauses would eliminate this artificial tension. Thus,
Justice Rehnquist would have interpreted the Free Exercise Clause as not requiring
government to grant exemptions from general requirements that may burden reli-
gious exercise but that do not prohibit religious practices outright, and would have
interpreted the Establishment Clause as not preventing government from volun-
tarily granting religious exemptions. 450 U.S. at 720–27. By 1990 these views had
apparently gained ascendancy, Justice Scalia’s opinion for the Court in the “peyote”
1122 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
emptions not held to have been required by the Free Exercise Clause
has been upheld against Establishment Clause challenge,263 al-
though it is also possible for legislation to go too far in promoting
free exercise.264 Government need not, however, offer the same ac-
commodations to secular entities that it extends to religious practi-
tioners in order to facilitate their religious exercise; “[r]eligious ac-
commodations . . . need not ‘come packaged with benefits to secular
entities.’ ” 265
“Play in the joints” can work both ways, the Court ruled in Locke
v. Davey upholding a state’s exclusion of theology students from a
college scholarship program.266 Although the state could have in-
cluded theology students in its scholarship program without offend-
ing the Establishment Clause, its choice “not to fund” religious train-
ing did not offend the Free Exercise Clause even though that choice
singled out theology students for exclusion.267 Refusal to fund reli-
gious training, the Court observed, was “far milder” than restric-
tions on religious practices that have been held to offend the Free
Exercise Clause.268
case suggesting that accommodation should be left to the political process, i.e., that
states could constitutionally provide exceptions in their drug laws for sacramental
peyote use, even though such exceptions are not constitutionally required. Employ-
ment Div. v. Smith, 494 U.S. 872, 890 (1990).
263 See, e.g., Walz v. Tax Comm’n, 397 U.S. 664 (upholding property tax exemp-
tion for religious organizations); Corporation of the Presiding Bishop v. Amos, 483
U.S. 327 (1987) (upholding Civil Rights Act exemption allowing religious institu-
tions to restrict hiring to members of religion); Gillette v. United States, 401 U.S.
437, 453–54 (1971) (interpreting conscientious objection exemption from military ser-
vice); Cutter v. Wilkinson, 544 U.S. 709 (2005) (upholding a provision of the Reli-
gious Land Use and Institutionalized Persons Act of 2000 that prohibits govern-
ments from imposing a “substantial burden on the religious exercise” of an
institutionalized person unless the burden furthers a “compelling governmental in-
terest”).
264 See, e.g., Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.
756, 788–89 (1973) (tuition reimbursement grants to parents of parochial school chil-
dren violate Establishment Clause in spite of New York State’s argument that pro-
gram was designed to promote free exercise by enabling low-income parents to send
children to church schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state
sales tax exemption for religious publications violates the Establishment Clause) (plu-
rality opinion); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 706–07
(1994) (“accommodation is not a principle without limits;” one limit is that “neutral-
ity as among religions must be honored”).
265 Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (quoting Corporation of the
for other professions was permissible, the Court explained, because “[t]raining some-
one to lead a congregation is an essentially religious endeavor,” and the Constitu-
tion’s special treatment of religion finds “no counterpart with respect to other call-
ings or professions.” Id. at 721.
268 540 U.S. at 720–21 (distinguishing Church of the Lukumi Babalu Aye v. City
of Hialeah, 508 U.S. 520 (1993) (law aimed at restricting ritual of a single religious
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1123
group); McDaniel v. Paty, 435 U.S. 618 (1978) (law denying ministers the right to
serve as delegates to a constitutional convention); and Sherbert v. Verner, 374 U.S.
398 (1963) (among the cases prohibiting denial of benefits to Sabbatarians)).
269 See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___,
to the choice between being a church and receiving a government benefit. The rule
is simple: No churches need apply.”) (emphasis added).
273 Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
274 Reynolds v. United States, 98 U.S. 145, 166 (1879). “Crime is not the less
odious because sanctioned by what any particular sect may designate as ‘religion.’ ”
Davis v. Beason, 133 U.S. 333, 345 (1890). In another context, Justice Sutherland in
United States v. Macintosh, 283 U.S. 605, 625 (1931), suggested a plenary govern-
mental power to regulate action in denying that recognition of conscientious objec-
tion to military service was of a constitutional magnitude, saying that “unqualified
allegiance to the Nation and submission and obedience to the laws of the land, as
well those made for war as those made for peace, are not inconsistent with the will
of God.”
1124 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
v. Massachusetts, 321 U.S. 158 (1944) (child labor); Cleveland v. United States, 329
U.S. 14 (1946) (polygamy). In Sherbert v. Verner, 374 U.S. 398, 403 (1963), Justice
Brennan asserted that the “conduct or activities so regulated [in the cited cases]
have invariably posed some substantial threat to public safety, peace or order.”
276 Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205
(1972); cf. Braunfeld v. Brown, 366 U.S. 599, 607 (1961): “[I]f the State regulates
conduct by enacting a general law within its power, the purpose and effect of which
is to advance the State’s secular goals, the statute is valid despite its indirect bur-
den on religious observance unless the State may accomplish its purpose by means
which do not impose such a burden.”
277 Sherbert v. Verner, 374 U.S. 398, 403, 406–09 (1963). In Wisconsin v. Yoder,
406 U.S. 205 (1972), the Court recognized compelling state interests in provision of
public education, but found insufficient evidence that those interests (preparing chil-
dren for citizenship and for self-reliance) would be furthered by requiring Amish chil-
dren to attend public schools beyond the eighth grade. Instead, the evidence showed
that the Amish system of vocational education prepared their children for life in
their self-sufficient communities.
278 United States v. Lee, 455 U.S. 252 (1982) (holding mandatory participation
in the Social Security system by an Amish employer religiously opposed to such so-
cial welfare benefits to be “indispensable” to the fiscal vitality of the system); Bob
Jones Univ. v. United States, 461 U.S. 754 (1983) (holding government’s interest in
eradicating racial discrimination in education to outweigh the religious interest of a
private college whose racial discrimination was founded on religious beliefs); and
Hernandez v. Commissioner, 490 U.S. 680 (1989) (holding that government has a
compelling interest in maintaining a uniform tax system “free of ‘myriad exceptions
flowing from a wide variety of religious beliefs’ ”)
279 Goldman v. Weinberger, 475 U.S. 503 (1986); O’Lone v. Estate of Shabazz,
329 U.S. 14 (1946) (no religious-belief defense to Mann Act prosecution for transport-
ing a woman across state line for the “immoral purpose” of polygamy).
284 Murphy v. Ramsey, 114 U.S. 15 (1885).
1126 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ral marriage and its advocacy as equal evils.285 And, finally, the Court
sustained the revocation of the charter of the Mormon Church and
confiscation of all church property not actually used for religious
worship or for burial.286
The Jehovah’s Witnesses Cases.—In contrast to the Mor-
mons, the sect known as Jehovah’s Witnesses, in many ways as un-
settling to the conventional as the Mormons were,287 provoked from
the Court a lengthy series of decisions 288 expanding the rights of
religious proselytizers and other advocates to use the streets and
parks to broadcast their ideas, though the decisions may be based
more squarely on the speech clause than on the Free Exercise Clause.
The leading case is Cantwell v. Connecticut.289 Three Jehovah’s Wit-
nesses were convicted under a statute that forbade the unlicensed
soliciting of funds for religious or charitable purposes, and also un-
der a general charge of breach of the peace. The solicitation count
was voided as an infringement on religion because the issuing offi-
cer was authorized to inquire whether the applicant’s cause was “a
religious one” and to decline to issue a license if he determined that
it was not.290 Such power amounted to a prior restraint upon the
exercise of religion and was invalid, the Court held.291 The breach
of the peace count arose when the three accosted two Catholics in
285 Davis v. Beason, 133 U.S. 333 (1890). “Bigamy and polygamy are crimes by
the laws of all civilized and Christian countries. . . . To call their advocacy a tenet
of religion is to offend the common sense of mankind. If they are crimes, then to
teach, advise and counsel their practice is to aid in their commission, and such teach-
ing and counseling are themselves criminal and proper subjects of punishment, as
aiding and abetting crime are in all other cases.” Id. at 341–42.
286 The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v.
United States, 136 U.S. 1 (1890). “[T]he property of the said corporation . . . [is to
be used to promote] the practice of polygamy—a crime against the laws, and abhor-
rent to the sentiments and feelings of the civilized world. . . . The organization of a
community for the spread and practice of polygamy is, in a measure, a return to
barbarism. It is contrary to the spirit of Christianity and of the civilization which
Christianity has produced in the Western world.” Id. at 48–49.
287 For later cases dealing with other religious groups discomfiting to the main-
stream, see Heffron v. ISKCON, 452 U.S. 640 (1981) (Hare Krishnas); Larson v. Valente,
456 U.S. 228 (1982) (Unification Church). Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993) (Santeria faith).
288 Most of the cases are collected and categorized by Justice Frankfurter in
preserve the enforcement of that protection [of society]. In every case the power to
regulate must be so exercised as not, in attaining a permissible end, unduly to in-
fringe the protected freedom. . . . [A] State may by general and non-discriminatory
legislation regulate the times, the places, and the manner of soliciting upon its streets,
and of holding meetings thereon; and may in other respects safeguard the peace,
good order and comfort of the community, without unconstitutionally invading the
liberties protected by the Fourteenth Amendment.” Id. at 304.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1127
292 310 U.S. at 307–11. “In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields the tenets of one man may seem the
rankest error to his neighbor. To persuade others to his own point of view, the pleader,
as we know, at times, resorts to exaggeration, to vilification of men who have been,
or are, prominent in church or state, and even to false statement. But the people of
this nation have ordained in the light of history, that, in spite of the probabilities of
excesses and abuses, these liberties are in the long view, essential to enlightened
opinion and right conduct on the part of the citizens of a democracy.” Id. at 310.
293 Jones v. Opelika, 316 U.S. 584 (1942).
294 Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S.
105 (1943). See also Follett v. Town of McCormick, 321 U.S. 573 (1944) (invalidating
a flat licensing fee for booksellers). Murdock and Follett were distinguished in Jimmy
Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 389 (1990), as
applying “only where a flat license fee operates as a prior restraint”; upheld in Swag-
gart was application of a general sales and use tax to sales of religious publications.
295 Martin v. City of Struthers, 319 U.S. 141 (1943). But cf. Breard v. City of
Alexandria, 341 U.S. 622 (1951) (similar ordinance sustained in commercial solicita-
tion context).
296 Prince v. Massachusetts, 321 U.S. 158 (1944).
297 E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S.
290 (1951); Fowler v. Rhode Island, 345 U.S. 67 (1953); Poulos v. New Hampshire,
345 U.S. 395 (1953). See also Larson v. Valente, 456 U.S. 228 (1982) (solicitation on
state fair ground by Unification Church members).
1128 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
the town and obtain a solicitation permit.298 The Court stated that
the requirement was “offensive . . . to the very notion of a free so-
ciety.”
Free Exercise Exemption From General Governmental Re-
quirements.—As described above, the Court gradually abandoned
its strict belief-conduct distinction, and developed a balancing test
to determine when a uniform, nondiscriminatory requirement by gov-
ernment mandating action or nonaction by citizens must allow ex-
ceptions for citizens whose religious scruples forbid compliance. Then,
in 1990, the Court reversed direction in Employment Division v.
Smith,299 confining application of the “compelling interest” test to a
narrow category of cases.
In early cases the Court sustained the power of a state to ex-
clude from its schools children who because of their religious be-
liefs would not participate in the salute to the flag,300 only within a
short time to reverse itself and condemn such exclusions, but on
speech grounds rather than religious grounds.301 Also, the Court
seemed to be clearly of the view that government could compel those
persons religiously opposed to bearing arms to take an oath to do
so or to receive training to do so,302 only in later cases to cast doubt
on this resolution by statutory interpretation,303 and still more re-
cently to leave the whole matter in some doubt.304
298 Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150 (2002).
299 494 U.S. 872 (1990).
300 Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).
301 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). On the
same day, the Court held that a state may not forbid the distribution of literature
urging and advising on religious grounds that citizens refrain from saluting the flag.
Taylor v. Mississippi, 319 U.S. 583 (1943). In 2004, the Court rejected for lack of
standing an Establishment Clause challenge to recitation of the Pledge of Alle-
giance in public schools. Elk Grove Unified School District v. Newdow, 542 U.S. 1
(2004).
302 See United States v. Schwimmer, 279 U.S. 644 (1929); United States v. Ma-
cintosh, 283 U.S. 605 (1931); and United States v. Bland, 283 U.S. 636 (1931) (all
interpreting the naturalization law as denying citizenship to a conscientious objec-
tor who would not swear to bear arms in defense of the country), all three of which
were overruled by Girouard v. United States, 328 U.S. 61 (1946), on strictly statu-
tory grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) (uphold-
ing expulsion from state university for a religiously based refusal to take a required
course in military training); In re Summers, 325 U.S. 561 (1945) (upholding refusal
to admit applicant to bar because as conscientious objector he could not take re-
quired oath).
303 United States v. Seeger, 380 U.S. 163 (1965); see id. at 188 (Justice Douglas
concurring); Welsh v. United States, 398 U.S. 333 (1970); see also id. at 344 (Justice
Harlan concurring).
304 Gillette v. United States, 401 U.S. 437 (1971) (holding that secular consider-
Braunfeld v. Brown 305 held that the Free Exercise Clause did
not mandate an exemption from Sunday Closing Laws for an Ortho-
dox Jewish merchant who observed Saturday as the Sabbath and
was thereby required to be closed two days of the week rather than
one. This requirement did not prohibit any religious practices, the
Court’s plurality pointed out, but merely regulated secular activity
in a manner making religious exercise more expensive.306 “If the
State regulates conduct by enacting a general law within its power,
the purpose and effect of which is to advance the State’s secular
goals, the statute is valid despite its indirect burden on religious
observance unless the State may accomplish its purpose by means
which do not impose such a burden.” 307
Within two years the Court in Sherbert v. Verner 308 reversed
this line of analysis to require a religious exemption from a secu-
lar, regulatory piece of economic legislation. Sherbert was disquali-
fied from receiving unemployment compensation because, as a Sev-
enth Day Adventist, she would not accept Saturday work; according
to state officials, this meant she was not complying with the statu-
tory requirement to stand ready to accept suitable employment. If
this denial of benefits is to be upheld, the Court said, “it must be
either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free exer-
cise, or because any incidental burden on the free exercise of appel-
lant’s religions may be justified by a ‘compelling state interest in
the regulation of a subject within the State’s constitutional power
to regulate . . . .’ ” 309 First, the disqualification was held to impose
a burden on the free exercise of Sherbert’s religion; it was an indi-
rect burden and it did not impose a criminal sanction on a reli-
gious practice, but the disqualification derived solely from her prac-
tice of her religion and constituted a compulsion upon her to forgo
that practice.310 Second, there was no compelling interest demon-
strated by the state. The only interest asserted was the prevention
of the possibility of fraudulent claims, but that was merely a bare
assertion. Even if there was a showing of demonstrable danger, “it
would plainly be incumbent upon the appellees to demonstrate that
305 366 U.S. 599 (1961). See “Sunday Closing Laws,” supra, for application of
disadvantage suffered by the Sabbatarians against the important interest of the state
in securing its day of rest regulation. McGowan v. Maryland, 366 U.S. at 512–22.
Three Justices dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S.
at 610 (Justice Brennan), 616 (Justice Stewart).
308 374 U.S. 398 (1963).
309 374 U.S. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 (1963).
310 374 U.S. at 403–06.
1130 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
factor which finds no equivalent in the instant case—a strong state interest in pro-
viding one uniform day of rest for all workers.” That secular objective could be achieved,
the Court found, only by declaring Sunday to be that day of rest. Requiring exemp-
tions for Sabbatarians, while theoretically possible, appeared to present an adminis-
trative problem of such magnitude, or to afford the exempted class so great a com-
petitive advantage, that such a requirement would have rendered the entire statutory
scheme unworkable. Id. at 408–09. Other Justices thought that Sherbert overruled
Braunfeld. Id. at 413, 417 (Justice Stewart concurring), 418 (Justice Harlan and White
dissenting).
312 450 U.S. 707 (1981).
313 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987).
314 Frazee v. Illinois Dep’t of Employment Security, 489 U.S. 829 (1989). Cf. United
States v. Seeger, 380 U.S. 163 (1965) (interpreting the religious objection exemption
from military service as encompassing a broad range of formal and personal reli-
gious beliefs).
315 406 U.S. 205 (1972).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1131
and of great antiquity.316 Next, the Court rejected the state’s argu-
ments that the Free Exercise Clause extends no protection because
the case involved “action” or “conduct” rather than belief, and be-
cause the regulation, neutral on its face, did not single out reli-
gion.317 Instead, the Court analyzed whether a “compelling” govern-
mental interest required such “grave interference” with Amish belief
and practices.318 The governmental interest was not the general pro-
vision of education, as the state and the Amish agreed as to educa-
tion through the first eight grades and as the Amish provided their
children with additional education of a primarily vocational na-
ture. The state’s interest was really that of providing two addi-
tional years of public schooling. Nothing in the record, the Court
found, showed that this interest outweighed the great harm that it
would do to traditional Amish religious beliefs to impose the com-
pulsory ninth and tenth grade attendance.319
But a subsequent decision involving the Amish reached a con-
trary conclusion. In United States v. Lee,320 the Court denied the
Amish exemption from compulsory participation in the Social Secu-
rity system. The objection was that payment of taxes by Amish em-
ployers and employees and the receipt of public financial assis-
tance were forbidden by their religious beliefs. Accepting that this
was true, the Court nonetheless held that the governmental inter-
est was compelling and therefore sufficient to justify the burdening
of religious beliefs.321 Compulsory payment of taxes was necessary
for the vitality of the system; either voluntary participation or a
pattern of exceptions would undermine its soundness and make the
program difficult to administer.
“A compelling governmental interest” was also found to out-
weigh free exercise interests in Bob Jones University v. United
States,322 in which the Court upheld the I.R.S.’s denial of tax exemp-
tions to church-run colleges whose racially discriminatory admis-
sions policies derived from religious beliefs. The Federal Govern-
ment’s “fundamental, overriding interest in eradicating racial
316 406 U.S. at 215–19. Why the Court felt impelled to make these points is
unclear, as it is settled that it is improper for courts to inquire into the interpreta-
tion of religious belief. E.g., United States v. Lee, 455 U.S. 252, 257 (1982).
317 406 U.S. at 219–21.
318 406 U.S. at 221.
319 406 U.S. at 221–29.
320 455 U.S. 252 (1982).
321 The Court’s formulation was whether the limitation on religious exercise was
391 (1990). See also Tony and Susan Alamo Found. v. Secretary of Labor, 471 U.S.
290 (1985) (the Court failing to perceive how application of minimum wage and over-
time requirements would burden free exercise rights of employees of a religious foun-
dation, there being no assertion that the amount of compensation was a matter of
religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989) (questioning
but not deciding whether any burden was imposed by administrative disallowal of a
deduction for payments deemed to be for commercial rather than religious or chari-
table purposes).
327 Jimmy Swaggart Ministries, 493 U.S. at 392.
328 485 U.S. 439 (1988).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1133
ment’s action into violating their religious beliefs; nor would either governmental
action penalize religious activity.” Lyng, 485 U.S. at 449.
332 Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
333 Congress reacted swiftly by enacting a provision allowing military personnel
342 This much was made clear by Church of Lukumi Babalu Aye v. City of Hia-
leah, 508 U.S. 520 (1993), which struck down a city ordinance that prohibited ritual
animal sacrifice but that allowed other forms of animal slaughter.
343 508 U.S. 520, 531 (1993).
344 This latter condition derives from the fact that the Court in Swaggart distin-
guished earlier decisions by characterizing them as applying only to flat license fees.
493 U.S. at 386. See also Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV.
1, 39–41.
345 Justice O’Connor, concurring in Smith, argued that “the Free Exercise Clause
protects values distinct from those protected by the Equal Protection Clause.” 494
U.S. at 901.
346 Although neutral laws affecting expressive conduct are not measured by a
“compelling interest” test, they are “subject to a balancing, rather than categorical,
approach.” Smith, 494 U.S. at 902 (O’Connor, J., concurring).
347 494 U.S. at 902–03.
348 565 U.S. ___, No. 10–553, slip op. (2012).
1136 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
had been fired in retaliation for threatening to bring a legal action against the church
under the Americans with Disabilities Act, 104 Stat. 327, 42 U.S.C. § 12101 et seq.
350 An important issue in the case was determining when an employee of a reli-
gious institution was a “minister.” The Court declined to create a uniform standard,
but suggested deference to the position of the religious institution in making such a
determinination. In this case, a “called” elementary school teacher (as opposed to a
“contract” teacher) was found to be a “minister” based on her title, the religious edu-
cation qualifications required for the position, how the church and the employee rep-
resented her position to others, and the religious functions performed by the em-
ployee as part of her job responsibilities. 565 U.S. ___, No. 10–553, slip op. at 15–
20.
351 565 U.S. ___, No. 10–553, slip op. at 15.
352 Pub. L. 103–141, 107 Stat. 1488 (1993); 42 U.S.C. §§ 2000bb to 2000bb–4.
353 Pub. L. 103–141, § 2(b)(1) (citations omitted). Congress also avowed a pur-
but substantively altered that right. “Congress,” the Court said, “does
not enforce a constitutional right by changing what the right is.” 355
Moreover, it said, RFRA “reflects a lack of proportionality or congru-
ence between the means adopted and the legitimate end to be achieved
. . . [and] is a considerable congressional intrusion into the States’
traditional prerogatives and general authority to regulate for the
health and welfare of their citizens.” 356 “RFRA,” the Court con-
cluded, “contradicts vital principles necessary to maintain separa-
tion of powers and the federal balance.” 357
Boerne did not close the books on Smith, however, or even on
RFRA. Although Boerne held that RFRA was not a valid exercise of
Fourteenth Amendment enforcement power as applied to restrict states,
it remained an open issue whether RFRA may be applied to the
Federal Government, and whether its requirements could be im-
posed pursuant to other powers. Several lower courts answered these
questions affirmatively,358 and the Supreme Court has applied RFRA
to the Federal Government without addressing any constitutional
questions.359
Congress responded to Boerne by enacting a new law purport-
ing to rest on its commerce and spending powers. The Religious Land
Use and Institutionalized Persons Act (RLUIPA) 360 imposes the same
strict scrutiny test struck down in Boerne but limits its application
to certain land use regulations and to religious exercise by persons
in state institutions.361 In Cutter v. Wilkinson,362 the Court upheld
355 521 U.S. at 519.
356 521 U.S. at 533–34.
357 521 U.S. at 536.
358 See, e.g., In re Young, 141 F.3d 854 (8th Cir. 1998), cert. denied, 525 U.S. 811
that RFRA applied to for-profit corporations and that a mandate that certain employ-
ers provide their employees with “[a]ll Food and Drug Administration approved con-
traceptive methods, sterilization procedures, and patient education and counseling
for women with reproductive capacity” violated RFRA’s general provisions); See
alsoGonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006)
(affirming preliminary injunction issued under RFRA against enforcement of the Con-
trolled Substances Act to prevent the drinking of a sacramental tea that contains a
hallucinogen regulated under the Act).
360 Pub. L. 106–274, 114 Stat. 804 (2000); 42 U.S.C. §§ 2000cc et seq.
361 The Act requires that state and local zoning and landmark laws and regula-
program that receives federal financial assistance, or if the burden or its removal
would affect commerce.
362 544 U.S. 709 (2005).
363 544 U.S. at 714.
364 544 U.S. at 720.
365 Torcaso v. Watkins, 367 U.S. 488, 494 (1961).
366 See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 506 U.S. 520, 533, 542
(1993).
367 435 U.S. 618, 620 (1978).
368 See Id. at 626 (plurality opinion). A plurality opinion by Chief Justice Burger,
joined by Justices Powell, Rehnquist, and Stevens noted that the absolute prohibi-
tion on the government regulating religious beliefs (as established by Torasco v. Watkins,
367 U.S. 488 (1961)) was inapplicable to the case because the Tennessee disqualifi-
cation was a prohibition based on religious “status,” not belief. See id. at 626–27.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1139
theran Church v. Comer, the Court held that a church that ran a
preschool and daycare center could not be disqualified from partici-
pating in a Missouri program that offered funding for the resurfac-
ing of playgrounds because of the church’s religious affiliation.369
Specifically, Chief Justice Roberts, on behalf of the Court,370 noted
that Missouri’s policy of excluding an otherwise eligible recipient
from a public benefit solely because of its religious character im-
posed an unlawful penalty on the free exercise of religion trigger-
ing the “most exacting scrutiny.” 371 In so holding, the Court re-
jected the State of Missouri’s argument that declining to extend funds
to the church did not prohibit it from engaging in any religious con-
duct or otherwise exercising its religious rights.372 Relying on McDaniel,
Chief Justice Roberts concluded that because the Free Exercise Clause
protects against “indirect coercion or penalties on the free exercise
of religion,” as well as “outright” prohibitions on religious exercise,
Trinity Lutheran had a right to participate in a government ben-
efit program without having to disavow its religious status.373 More-
over, the Court held that Missouri’s policy of requiring organiza-
tions like the plaintiff to renounce its religious character in order
to participate in the public benefit program could not be justified
by a policy preference to achieve greater separation of church and
Nonetheless, the plurality opinion concluded that the (1) Tennessee law was gov-
erned by the balancing test established under Sherbert v. Verner, 374 U.S. 498, 406
(1963), and (2) the law’s regulation of religious status could not be justified based
on the state’s outmoded views of the dangers of clergy participation in the political
process. Id. at 627–28. Justice Brennan, joined by Justice Marshall, relying on Torasco,
argued that the challenged provision, by establishing as a “condition of office the
willingness to eschew certain protected religious practices,” violated the Free Exer-
cise Clause. Id. at 632 (Brennan, J., concurring). Justice Brennan’s concurrence also
maintained that the exclusion created by the Tennessee law could violate the Estab-
lishment Clause. Id. at 636. In a separate opinion, Justice Stewart noted his agree-
ment with Justice Brennan’s conclusion that Torasco controlled the case. Id. at 642
(Stewart, J., concurring). Rather than relying on the Free Exercise Clause to invali-
date the Tennessee law, Justice White’s concurrence suggested that the law was un-
constitutional under the Equal Protection Clause of the Fourteenth Amendment. Id.
at 643 (White, J., concurring).
369 See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___,
tire opinion, while Justices Thomas and Gorsuch joined in all but a single footnote
of the decision. The footnote that Justices Thomas and Gorsuch declined to join was
a footnote that claimed that the instant case was examining “express discrimination
based on religious identity with respect to playground resurfacing” and did not “ad-
dress religious uses of funding or other forms of discrimination.” Id. at 18 n.3.
371 Id. at 10.
372 Id.
373 Id. at 10–11. As a result, the Court characterized the church’s injury not so
much as being the “denial of a grant” itself, but rather the “refusal to allow the
Church . . . to compete with secular organizations for a grant.” Id. at 11.
1140 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ment Clause did not prevent Missouri from including the church in the state’s grant
program. Id. at 6.
375 Id. at 14–15.
376 1 ANNALS OF CONGRESS 434 (1789). Madison had also proposed language limit-
ing the power of the states in a number of respects, including a guarantee of free-
dom of the press. Id. at 435. Although passed by the House, the amendment was
defeated by the Senate. See “Amendments to the Constitution, Bill of Rights and
the States,” supra.
377 Id. at 731 (August 15, 1789).
378 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1148–49 (B. Schwartz ed. 1971).
379 Id. at 1153.
380 The House debate insofar as it touched upon this amendment was con-
cerned almost exclusively with a motion to strike the right to assemble and an amend-
ment to add a right of the people to instruct their Representatives. 1 ANNALS OF CON-
GRESS 731–749 (August 15, 1789). There are no records of debates in the states on
ratification.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1141
meet with but little difficulty.” 381 That the “simple, acknowledged
principles” embodied in the First Amendment have occasioned con-
troversy without end both in the courts and out should alert one to
the difficulties latent in such spare language.
Insofar as there is likely to have been a consensus, it was no
doubt the common law view as expressed by Blackstone. “The lib-
erty of the press is indeed essential to the nature of a free state;
but this consists in laying no previous restraints upon publications,
and not in freedom from censure for criminal matter when pub-
lished. Every freeman has an undoubted right to lay what senti-
ments he pleases before the public; to forbid this, is to destroy the
freedom of the press: but if he publishes what is improper, mischie-
vous, or illegal, he must take the consequences of his own temerity.
To subject the press to the restrictive power of a licenser, as was
formerly done, both before and since the Revolution, is to subject
all freedom of sentiment to the prejudices of one man, and make
him the arbitrary and infallible judge of all controverted points in
learning, religion and government. But to punish as the law does
at present any dangerous or offensive writings, which, when pub-
lished, shall on a fair and impartial trial be adjudged of a perni-
cious tendency, is necessary for the preservation of peace and good
order, of government and religion, the only solid foundations of civil
liberty. Thus, the will of individuals is still left free: the abuse only
of that free will is the object of legal punishment. Neither is any
restraint hereby laid upon freedom of thought or inquiry; liberty of
private sentiment is still left; the disseminating, or making public,
of bad sentiments, destructive to the ends of society, is the crime
which society corrects.” 382
Whatever the general unanimity on this proposition at the time
of the proposal of and ratification of the First Amendment,383 it ap-
381 Id. at 738.
382 4 W. BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 151–52 (T. Cooley, 2d
rev. ed. 1872). See 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
1874–86 (1833). The most comprehensive effort to assess theory and practice in the
period prior to and immediately following adoption of the Amendment is L. LEVY,
LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY (1960),
which generally concluded that the Blackstonian view was the prevailing one at the
time and probably the understanding of those who drafted, voted for, and ratified
the Amendment.
383 It would appear that Madison advanced libertarian views earlier than his
over the people.” 4 ANNALS OF CONGRESS 934 (1794). On the other hand, the early Madi-
son, while a member of his county’s committee on public safety, had enthusiastically
promoted prosecution of Loyalist speakers and the burning of their pamphlets dur-
ing the Revolutionary period. 1 PAPERS OF JAMES MADISON 147, 161–62, 190–92 (W.
Hutchinson & W. Rachal, eds., 1962). There seems little doubt that Jefferson held to
the Blackstonian view. Writing to Madison in 1788, he said: “A declaration that the
Federal Government will never restrain the presses from printing anything they please,
will not take away the liability of the printers for false facts printed.” 13 PAPERS OF
THOMAS JEFFERSON 442 (J. Boyd ed., 1955). Commenting a year later to Madison on
his proposed amendment, Jefferson suggested that the free speech-free press clause
might read something like: “The people shall not be deprived or abridged of their
right to speak, to write or otherwise to publish anything but false facts affecting
injuriously the life, liberty, property, or reputation of others or affecting the peace of
the confederacy with foreign nations.” 15 PAPERS, supra, at 367.
384 The Act, 1 Stat. 596 (1798), punished anyone who would “write, print, utter
or publish . . . any false, scandalous and malicious writing or writings against the
government of the United States, or either house of the Congress of the United States,
or the President of the United States, with intent to defame the said government,
or either house of the said Congress, or the said President, or to bring them, or
either of them, into contempt or disrepute.” See J. SMITH, FREEDOM’S FETTERS: THE ALIEN
AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (1956).
385 Id. at 159 et seq.
386 L. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN
HISTORY ch. 6 (1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964).
But compare L. LEVY, EMERGENCE OF A FREE PRESS (1985), a revised and enlarged edi-
tion of LEGACY OF EXPRESSION, in which Professor Levy modifies his earlier views, ar-
guing that while the intention of the Framers to outlaw the crime of seditious libel,
in pursuit of a free speech principle, cannot be established and may not have been
the goal, there was a tradition of robust and rowdy expression during the period of
the framing that contradicts his prior view that a modern theory of free expression
did not begin to emerge until the debate over the Alien and Sedition Acts.
387 L. LEVY, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE (1963). Thus President
388 New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal
doctrinal justification for the development, although the results had long since been
fully applied by the Court. In Sullivan, Justice Brennan discerned in the controver-
sies over the Sedition Act a crystallization of “a national awareness of the central
meaning of the First Amendment,” id. at 273, which is that the “right of free public
discussion of the stewardship of public officials . . . [is] a fundamental principle of
the American form of government.” Id. at 275. This “central meaning” proscribes
either civil or criminal punishment for any but the most maliciously, knowingly false
criticism of government. “Although the Sedition Act was never tested in this Court,
the attack upon its validity has carried the day in the court of history. . . . [The
historical record] reflect[s] a broad consensus that the Act, because of the restraint
it imposed upon criticism of government and public officials, was inconsistent with
the First Amendment.” Id. at 276. Madison’s Virginia Resolutions of 1798 and his
Report in support of them brought together and expressed the theories being devel-
oped by the Jeffersonians and represent a solid doctrinal foundation for the point of
view that the First Amendment superseded the common law on speech and press,
that a free, popular government cannot be libeled, and that the First Amendment
absolutely protects speech and press. 6 WRITINGS OF JAMES MADISON, 341–406 (G. Hunt
ed., 1908).
389 Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis in original, cita-
tion omitted). Justice Frankfurter had similar views in 1951: “The historic anteced-
ents of the First Amendment preclude the notion that its purpose was to give un-
qualified immunity to every expression that touched on matters within the range of
political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty
years ago, ‘that the first ten amendments to the Constitution, commonly known as
the Bill of Rights, were not intended to lay down any novel principles of govern-
ment, but simply to embody certain guaranties and immunities which we had inher-
ited from our English ancestors, and which had from time immemorial been subject
to certain well-recognized exceptions arising from the necessities of the case. In in-
corporating these principles into the fundamental law there was no intention of dis-
regarding the exceptions, which continued to be recognized as if they had been for-
mally expressed.’ Robertson v. Baldwin, 165 U.S. 275, 281. That this represents the
authentic view of the Bill of Rights and the spirit in which it must be construed has
been recognized again and again in cases that have come here within the last fifty
years.” Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opin-
ion).
390 Patterson v. Colorado, 205 U.S. 454, 461 (1907).
1144 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
357 (1927). The Brandeis and Holmes dissents in both cases were important formu-
lations of speech and press principles.
394 274 U.S. 380 (1927).
395 283 U.S. 359 (1931). By contrast, it was not until 1965 that a federal statute
was held unconstitutional under the First Amendment. Lamont v. Postmaster Gen-
eral, 381 U.S. 301 (1965). See also United States v. Robel, 389 U.S. 258 (1967).
396 See also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Herndon v.
Lowry, 301 U.S. 242 (1937); DeJonge v. Oregon, 299 U.S. 353 (1937); Lovell v. City
of Griffin, 303 U.S. 444 (1938).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1145
tections for speech, press, and religion beyond those enjoyed under
English common law.397
Development over the years since has been uneven, but by 1964
the Court could say with unanimity: “we consider this case against
the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-
open, and that it may well include vehement, caustic, and some-
times unpleasantly sharp attacks on government and public offi-
cials.” 398 And, in 1969, the Court said that the cases “have fashioned
the principle that the constitutional guarantees of free speech and
free press do not permit a State to forbid or proscribe advocacy of
the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely
to incite or produce such action.” 399 This development and its myriad
applications are elaborated in the following sections.
The First Amendment by its terms applies only to laws enacted
by Congress and not to the actions of private persons.400 As such,
the First Amendment is subject to a “state action” (or “governmen-
tal action”) limitation similar to that applicable to the Fifth and
Fourteenth Amendments.401 The limitation has seldom been liti-
gated in the First Amendment context, but there appears to be no
obvious reason why the analysis should differ markedly from Fifth
or Fourteenth Amendment governmental action analysis.402 Both con-
texts require “cautious analysis of the quality and degree of Govern-
ment relationship to the particular acts in question.” 403 In holding
that the National Railroad Passenger Corporation (Amtrak) is a gov-
ernmental entity for purposes of the First Amendment, the Court
397 Bridges v. California, 314 U.S. 252, 263–68 (1941) (overturning contempt con-
victions of newspaper editor and others for publishing commentary on pending cases).
398 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
399 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
400 Through interpretation of the Fourteenth Amendment, the prohibition ex-
tends to the states as well. See Bill of Rights: The Fourteenth Amendment and In-
corporation, infra. Of course, the First Amendment also applies to the non-
legislative branches of government—to every “government agency—local, state, or
federal.” Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).
401 See Fourteenth Amendment: Equal Protection of the Laws: Scope and Appli-
ing that, with respect to Amtrak, because “the Government creates a corporation by
special law, for the furtherance of governmental objectives, and retains for itself per-
manent authority to appoint a majority of the directors of that corporation, [Amtrak]
is part of the Government for purposes of the First Amendment”) with, Dep’t of Transp.
v. Ass’n of Am. R.R., 575 U.S. ___, No. 13–1080, slip op. at 11 (2015) (extending the
holding of Lebron, such that Amtrak is considered a governmental entity “for pur-
poses of ” the Fifth Amendment Due Process and separation of powers claims pre-
sented by the case).
403 CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973).
1146 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
used herein, first, as a shorthand term for the freedoms of speech, press, assembly,
petition, association, and the like, that are covered by the Amendment, and, second,
as a recognition of the fact that judicial interpretation of the clauses of the First
Amendment has greatly enlarged the definition commonly associated with “speech,”
as the following discussion will reveal. The term seems well settled, see, e.g., T. EM-
ERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970), although it has been criticized. F.
SCHAUER, FREE SPEECH: A PHILOSOPHICAL INQUIRY 50–52 (1982). The term also, as used
here, conflates the speech and press clauses, explicitly assuming they are governed
by the same standards of interpretation and that, in fact, the press clause itself
adds nothing significant to the speech clause as interpreted, an assumption briefly
defended in the next topic.
406 T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 15 (1970). The practice in
the Court is largely to itemize all the possible values the First Amendment has been
said to protect. See, e.g., Consolidated Edison Co. v. PSC, 447 U.S. 530, 534–35 (1980);
First Nati’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978).
407 T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6–7 (1970). For Emerson,
the four values are (1) assuring individuals self-fulfillment, (2) promoting discovery
of truth, (3) providing for participation in decisionmaking by all members of society,
and (4) promoting social stability through discussion and compromise of differences.
For a persuasive argument in favor of an “eclectic” approach, see Shriffrin, The First
Amendment and Economic Regulation: Away From a General Theory of the First Amend-
ment, 78 NW. U.L. REV. 1212 (1983). A compressive discussion of all the theories may
be found in F. SCHAUER, FREE SPEECH: A PHILOSOPHICAL INQUIRY (1982).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1147
Some First Amendment Problems, 47 IND. L.J. 1 (1971); BeVier, The First Amend-
ment and Political Speech: An Inquiry Into the Substance and Limits of Principle,
30 STAN. L. REV. 299 (1978). This contention does not reflect the Supreme Court’s
view. “It is no doubt true that a central purpose of the First Amendment ‘was to
protect the free discussion of governmental affairs.’ . . . But our cases have never
suggested that expression about philosophical, social, artistic, economic, literary, or
ethical matters—to take a nonexclusive list of labels—is not entitled to full First
Amendment protection.” Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
409 The “marketplace of ideas” metaphor is attributable to Justice Holmes’ opin-
ion in Abrams v. United States, 250 U.S. 616, 630 (1919). See Scanlon, Freedom of
Expression and Categories of Expression, 40 U. PITT. L. REV. 519 (1979). The theory
has been the dominant one in scholarly and judicial writings. Baker, Scope of the
First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 967–74 (1978).
410 E.g., C. Edwin Baker, The Process of Change and the Liberty Theory of the
First Amendment, 55 S. CAL. L. REV. 293 (1982); C. Edwin Baker, Realizing Self-
Realization: Corporate Political Expenditures and Redish’s The Value of Free Speech,
130 U. PA. L. REV. 646 (1982).
411 Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982).
1148 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S.
817 (1974); Nixon v. Warner Communications, 435 U.S. 589 (1978). The trial access
cases, whatever they may precisely turn out to mean, recognize a right of access of
both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980);
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
415 Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony be newspa-
per reporter); Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newspaper
offices); Herbert v. Lando, 441 U.S. 153 (1979) (defamation by press); Cohen v. Cowles
Media Co., 501 U.S. 663 (1991) (newspaper’s breach of promise of confidentiality).
416 Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).
417 E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974); Landmark Com-
munications v. Virginia, 435 U.S. 829 (1978). See also Zurcher v. Stanford Daily,
436 U.S. 547, 563–67 (1978), and id. at 568 (Justice Powell concurring); Branzburg
v. Hayes, 408 U.S. 665, 709 (1972) (Justice Powell concurring). Several concurring
opinions in Richmond Newspapers v. Virginia, 448 U.S. (1980), imply recognition of
some right of the press to gather information that apparently may not be wholly
inhibited by nondiscriminatory constraints. Id. at 582–84 (Justice Stevens), 586 n.2
(Justice Brennan), 599 n.2 (Justice Stewart). Yet the Court has also suggested that
the press is protected in order to promote and to protect the exercise of free speech
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1149
mation,” infra.
419 Stewart, Or of the Press, 26 HASTINGS L. J. 631, 633–35 (1975).
420 In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979), the Court noted
that it has never decided whether the Times standard applies to an individual defen-
dant. Some think they discern in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),
intimations of such leanings by the Court.
421 435 U.S. 765 (1978). The decision, addressing a question not previously con-
fronted, was 5-to-4. Justice Rehnquist would have recognized no protected First Amend-
ment rights of corporations because, as entities entirely the creation of state law,
they were not to be accorded rights enjoyed by natural persons. Id. at 822. Justices
White, Brennan, and Marshall thought the First Amendment implicated but not disposi-
tive because of the state interests asserted. Id. at 802. Previous decisions recogniz-
ing corporate free speech had involved either press corporations, id. at 781–83; see
also id. at 795 (Chief Justice Burger concurring), or corporations organized espe-
cially to promote the ideological and associational interests of their members. E.g.,
NAACP v. Button, 371 U.S. 415 (1963).
422 Commercial speech when engaged in by a corporation is subject to the same
York Times Co. v. United States, 403 U.S. 713, 714 (1971).
426 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931); Lovell v. Grif-
296 (1940); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S.
268 (1951); Staub v. City of Baxley, 355 U.S. 313 (1958). For other applications, see
Grosjean v. American Press Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319
U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944).
433 Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New Hampshire, 345
U.S. 395 (1953). In Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175
(1968), the Court held invalid the issuance of an ex parte injunction to restrain the
holding of a protest meeting, holding that usually notice must be given the parties
to be restrained and an opportunity for them to rebut the contentions presented to
justify the sought-for restraint. In Organization for a Better Austin v. Keefe, 402
U.S. 415 (1971), the Court held invalid as a prior restraint an injunction preventing
the petitioners from distributing 18,000 pamphlets attacking respondent’s alleged
“blockbusting” real estate activities; he was held not to have borne the “heavy bur-
den” of justifying the restraint. “No prior decisions support the claim that the inter-
est of an individual in being free from public criticism of his business practices in
pamphlets or leaflets warrants use of the injunctive power of a court. Designating
the conduct as an invasion of privacy . . . is not sufficient to support an injunction
against peaceful distribution of informational literature of the nature revealed by
this record.” Id. at 419–20. See also City of Lakewood v. Plain Dealer Publishing
Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to
grant or deny annual permit for location of newsracks on public property is facially
invalid as prior restraint).
The necessity of immediate appellate review of orders restraining the exercise
of First Amendment rights was strongly emphasized in National Socialist Party v.
Village of Skokie, 432 U.S. 43 (1977), and seems to explain the Court’s action in
1152 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
The most recent Court encounter with the doctrine in the na-
tional security area occurred when the government attempted to en-
join press publication of classified documents pertaining to the Viet-
nam War 435 and, although the Court rejected the effort, at least
five and perhaps six Justices concurred on principle that, in some
circumstances, prior restraint of publication would be constitu-
tional.436 But no cohesive doctrine relating to the subject, its appli-
cations, and its exceptions has emerged.
The Supreme Court has written that “[t]he special vice of a prior
restraint is that communication will be suppressed . . . before an
adequate determination that it is unprotected by the First Amend-
ment.” 437 The prohibition on prior restraint, thus, is essentially a
limitation on restraints until a final judicial determination that the
restricted speech is not protected by the First Amendment. It is a
limitation, for example, against temporary restraining orders and
preliminary injunctions pending final judgment, not against perma-
Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978). But see Moreland v. Sprecher,
443 U.S. 709 (1979) (party can relinquish right to expedited review through failure
to properly request it).
434 DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (“[a]
6-to-3, with Justices Black, Douglas, Brennan, Stewart, White, and Marshall in the
majority and Chief Justice Burger and Justices Harlan and Blackmun in the minor-
ity. Each Justice issued an opinion.
436 The three dissenters thought such restraint appropriate in this case. Id. at
748, 752, 759. Justice Stewart thought restraint would be proper if disclosure “will
surely result in direct, immediate, and irreparable damage to our Nation or its people,”
id. at 730, while Justice White did not endorse any specific phrasing of a standard.
Id. at 730–33. Justice Brennan would preclude even interim restraint except upon
“governmental allegation and proof that publication must inevitably, directly, and
immediately cause the occurrence of an event kindred to imperiling the safety of a
transport already at sea.” Id. at 712–13.
The same issues were raised in United States v. Progressive, Inc., 467 F. Supp.
990 (W.D. Wis. 1979), in which the United States obtained an injunction prohibiting
publication of an article it claimed would reveal information about nuclear weap-
ons, thereby increasing the dangers of nuclear proliferation. The injunction was lifted
when the same information was published elsewhere and thus there was no appel-
late review of the order.
With respect to the right of the Central Intelligence Agency to prepublication
review of the writings of former agents and its enforcement through contractual re-
lationships, see Snepp v. United States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v.
Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975); United States v.
Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
437 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S.
376, 390 (1973); see also Vance v. Universal Amusement Co., 445 U.S. 308, 315–316
(1980) (“the burden of supporting an injunction against a future exhibition [of alleg-
edly obscene motion pictures] is even heavier than the burden of justifying the im-
position of a criminal sanction for a past communication”).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1153
438 See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions
ginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748,
772 n.24 (1976).
440 Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004).
441 New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123,
131 (2d Cir. 1998), cert. denied, 525 U.S. 824 (1998), citing Desert Outdoor Adver. v.
City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996); In re Search of Kitty’s
East, 905 F.2d 1367, 1371–72 & n.4 (10th Cir. 1990).
442 See Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004). See
also Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in In-
tellectual Property Cases, 48 Duke Law Journal 147 (1998) (arguing that intellec-
tual property should have the same First Amendment protection from preliminary
injunctions that other speech does).
443 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).
444 427 U.S. at 562, quoting Dennis v. United States, 183 F.2d 201, 212 (2d Cir.
Justice Burger, concurred in by Justices Blackmun and Rehnquist, and, also writing
brief concurrences, Justices White and Powell). Applying the tests, the Chief Justice
agreed that (a) there was intense and pervasive pretrial publicity and more could
1154 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
be expected, but that (b) the lower courts had made little effort to assess the pros-
pects of other methods of preventing or mitigating the effects of such publicity and
that (c) in any event the restraining order was unlikely to have the desired effect of
protecting the defendant’s rights. Id. at 562–67.
446 427 U.S. at 569–70. The Court distinguished between reporting on judicial
proceedings held in public and reporting of information gained from other sources,
but found that a heavy burden must be met to secure a prior restraint on either. Id.
at 570. See also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting
aside injunction restraining news media from publishing name of juvenile involved
in pending proceeding when name has been learned at open detention hearing that
could have been closed but was not); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979).
447 427 U.S. at 572, 588. Justices Stewart and Marshall joined this opinion and
Justice Stevens noted his general agreement except that he reserved decision in par-
ticularly egregious situations, even though stating that he might well agree with
Justice Brennan there also. Id. at 617. Justice White, while joining the opinion of
the Court, noted that he had grave doubts that “gag orders” could ever be justified
but he would refrain from so declaring in the Court’s first case on the issue. Id. at
570.
448 427 U.S. at 599.
449 One such alternative is the banning of communication with the press on trial
issues by prosecution and defense attorneys, police officials, and court officers. This,
of course, also raises First Amendment issues. See, e.g., Chicago Council of Lawyers
v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976).
450 467 U.S. 20 (1984).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1155
451 467 U.S. at 36. The decision was unanimous, all other Justices joining Jus-
tice Powell’s opinion for the Court, but Justices Brennan and Marshall noting addi-
tionally that under the facts of the case important interests in privacy and religious
freedom were being protected. Id. at 37, 38.
452 See discussion of “Obscenity,” infra. See also Justice Brennan’s concurrence
(1976) (zoning ordinance prescribing distances adult theaters may be located from
residential areas and other theaters is not an impermissible prior restraint).
455 Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957).
456 Freedman v. Maryland, 380 U.S. 51 (1965); Teitel Film Corp. v. Cusack, 390
U.S. 139 (1968); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968); Blount v.
Rizzi, 400 U.S. 410 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363,
367–375 (1971); Southeastern Promotions v. Conrad, 420 U.S. 546 (1975); Erznoznik
v. City of Jacksonville, 422 U.S. 205 (1975); FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 229 (1990) (ordinance requiring licensing of “sexually oriented business” “does
not provide for an effective limitation on the time within which the licensor’s deci-
sion must be made [and] also fails to provide an avenue for prompt judicial re-
view”); City of Littleton v. Z.J. Gifts D–4, L.L.C., 541 U.S. 774, 784 (2004) (“Where
(as here and as in FW/PBS) the regulation simply conditions the operation of an
adult business on compliance with neutral and nondiscretionary criteria . . . and
does not seek to censor content, an adult business is not entitled to an unusually
speedy judicial decision of the Freedman type”); Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46 (1989) (seizure of books and films based on ex parte probable cause hear-
ing under state RICO law’s forfeiture procedures constitutes invalid prior restraint;
instead, there must be a determination in an adversarial proceeding that the mate-
rials are obscene or that a RICO violation has occurred). But cf. Alexander v. United
States, 509 U.S. 544 (1993) (RICO forfeiture of the entire adult entertainment book
1156 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
LEGISLATIVE POWERS OF THE STATES OF THE AMERICAN UNION 885–86 (8th ed. 1927).
458 New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). See also Speiser
v. Randall, 357 U.S. 513, 526 (1958); Smith v. California, 361 U.S. 147, 153–54 (1959);
Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1157
and want a certain result with all your heart you naturally express
your wishes in law and sweep away all opposition. To allow opposi-
tion by speech seems to indicate that you think the speech impo-
tent, as when a man says that he has squared the circle, or that
you do not care whole-heartedly for the result, or that you doubt
either your power or your premises. But when men have realized
that time has upset many fighting faiths, they may come to believe
even more than they believe the very foundations of their own con-
duct that the ultimate good desired is better reached by free trade
in ideas—that the best test of truth is the power of the thought to
get itself accepted in the competition of the market, and that truth
is the only ground upon which their wishes safely can be carried
out. That at any rate is the theory of our Constitution.” 459 “Those
who won our independence believed that the final end of the State
was to make men free to develop their faculties; and that in its
government the deliberative forces should prevail over the arbi-
trary. They valued liberty both as an end and as a means. They
believed liberty to be the secret of happiness and courage to be the
secret of liberty. They believed that freedom to think as you will
and to speak as you think are means indispensable to the discov-
ery and spread of political truth; that without free speech and as-
sembly discussion would be futile; that with them, discussion af-
fords ordinarily adequate protection against the dissemination of
noxious doctrine; that the greatest menace to freedom is an inert
people; that public discussion is a political duty; and that this should
be a fundamental principle of the American government. They rec-
ognized the risks to which all human institutions are subject. But
they knew that order cannot be secured merely through fear of pun-
ishment for its infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path
of safety lies in the opportunity to discuss freely supposed griev-
ances and proposed remedies; and that the fitting remedy for evil
counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law—
the argument of force in its worst form. Recognizing the occasional
tyrannies of governing majorities, they amended the Constitution
so that free speech and assembly should be guaranteed.” 460
“But, although the rights of free speech and assembly are fun-
damental, they are not in their nature absolute. Their exercise is
459 Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice Holmes dissent-
ing).
460 Whitney v. California, 274 U.S. 357, 375–76 (1927) (Justice Brandeis concur-
ring).
1158 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ence with free speech.” 466 And, in Debs v. United States,467 Justice
Holmes upheld a conviction because “the natural and intended ef-
fect” and the “reasonably probable effect” of the speech for which
the defendant was prosecuted was to obstruct military recruiting.
In Abrams v. United States,468 however, Justices Holmes and
Brandeis dissented upon affirmance of the convictions of several alien
anarchists who had printed leaflets seeking to encourage discon-
tent with the United States’ participation in World War I. The ma-
jority simply referred to Schenck and Frohwerk to rebut the First
Amendment argument, but the dissenters urged that the govern-
ment had made no showing of a clear and present danger. Another
affirmance by the Court of a conviction, the majority simply saying
that “[t]he tendency of the articles and their efficacy were enough
for the offense,” drew a similar dissent.469 Moreover, in Gitlow v.
New York,470 a conviction for distributing a manifesto in violation
of a law making it criminal to advocate, advise, or teach the duty,
necessity, or propriety of overthrowing organized government by force
or violence, the Court affirmed in the absence of any evidence re-
garding the effect of the distribution and in the absence of any con-
tention that it created any immediate threat to the security of the
state. In so doing, the Court discarded Holmes’ test. “It is clear that
the question in such cases [as this] is entirely different from that
involved in those cases where the statute merely prohibits certain
acts involving the danger of substantive evil, without any reference
to language itself, and it is sought to apply its provisions to lan-
guage used by the defendant for the purpose of bringing about the
prohibited results. . . . In such cases it has been held that the gen-
eral provisions of the statute may be constitutionally applied to the
specific utterance of the defendant if its natural tendency and prob-
able effect was to bring about the substantive evil which the legis-
lative body might prevent. . . . And the general statement in the
Schenck Case . . . was manifestly intended . . . to apply only in cases
of this class, and has no application to those like the present, where
the legislative body itself has previously determined the danger of
substantive evil arising from utterances of a specified charac-
ter.” 471 Thus, a state legislative determination “that utterances ad-
vocating the overthrow of organized government by force, violence
and unlawful means, are so inimical to the general welfare and in-
466 Frohwerk v. United States, 249 U.S. 204, 206 (1919) (citations omitted).
467 249 U.S. 211, 215–16 (1919).
468 250 U.S. 616 (1919).
469 Schaefer v. United States, 251 U.S. 466, 479 (1920). See also Pierce v. United
472 268 U.S. at 668. Justice Holmes dissented. “If what I think the correct test
economic injury to the employer, but found such injury “neither so serious nor so
imminent” as to justify restriction. The doctrine of clear and present danger was
not to play a future role in the labor picketing cases.
480 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
481 337 U.S. 1 (1949).
1162 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
494 (1951).
486 Patterson v. Colorado, 205 U.S. 454 (1907); Toledo Newspaper Co. v. United
. . . .” 489 As for “[t]he other evil feared, disorderly and unfair ad-
ministration of justice, [it] is more plausibly associated with restrict-
ing publications which touch upon pending litigation.” But the “de-
gree of likelihood” of the evil being accomplished was not “sufficient
to justify summary punishment.” 490 In dissent, Justice Frankfurter
accepted the application of the clear and present danger, but he in-
terpreted it as meaning no more than a “reasonable tendency” test.
“Comment however forthright is one thing. Intimidation with re-
spect to specific matters still in judicial suspense, quite an-
other. . . . A publication intended to teach the judge a lesson, or to
vent spleen, or to discredit him, or to influence him in his future
conduct, would not justify exercise of the contempt power. . . . It
must refer to a matter under consideration and constitute in effect
a threat to its impartial disposition. It must be calculated to create
an atmospheric pressure incompatible with rational, impartial ad-
judication. But to interfere with justice it need not succeed. As with
other offenses, the state should be able to proscribe attempts that
fail because of the danger that attempts may succeed.” 491
A unanimous Court next struck down the contempt conviction
arising out of newspaper criticism of judicial action already taken,
although one case was pending after a second indictment. Specifi-
cally alluding to clear and present danger, while seeming to regard
it as stringent a test as Justice Black had in the prior case, Justice
Reed wrote that the danger sought to be averted, a “threat to the
impartial and orderly administration of justice,” “has not the clear-
ness and immediacy necessary to close the door of permissible pub-
lic comment.” 492 Divided again, the Court a year later set aside con-
tempt convictions based on publication, while a motion for a new
trial was pending, of inaccurate and unfair accounts and an edito-
rial concerning the trial of a civil case. “The vehemence of the lan-
guage used is not alone the measure of the power to punish for con-
tempt. The fires which it kindles must constitute an imminent, and
not merely a likely, threat to the administration of justice. The dan-
ger must not be remote or even probable; it must immediately im-
peril.” 493
furter, the decisive consideration was whether the judge or jury is, or presently will
be, pondering a decision that comment seeks to affect. Id. at 369.
493 Craig v. Harney, 331 U.S. 367, 376 (1947). Dissenting with Chief Justice Vinson,
Justice Frankfurter said: “We cannot say that the Texas Court could not properly
find that these newspapers asked of the judge, and instigated powerful sections of
the community to ask of the judge, that which no one has any business to ask of a
1164 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
that the charges made by the defendant could well have influenced the grand jurors
in their deliberations and that the fact that laymen rather than judicial officers were
subject to influence should call forth a less stringent test than when the latter were
the object of comment. Id. at 395.
496 In re Little, 404 U.S. 553, 555 (1972). The language from Craig v. Harney,
331 U.S. 367, 376 (1947), is quoted in the previous paragraph of text, supra.
497 341 U.S. 494 (1951).
498 54 Stat. 670 (1940), 18 U.S.C. § 2385.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1165
the interest which the State was attempting to protect was itself
too insubstantial to warrant restriction of speech.” 499
Here, by contrast, “[o]verthrow of the government by force and
violence is certainly a substantial enough interest for the govern-
ment to limit speech.” 500 And in combating that threat, the govern-
ment need not wait to act until the putsch is about to be executed
and the plans are set for action. “If Government is aware that a
group aiming at its overthrow is attempting to indoctrinate its mem-
bers and to commit them to a course whereby they will strike when
the leaders feel the circumstances permit, action by the govern-
ment is required.” 501 Therefore, what does the phrase “clear and
present danger” import for judgment? “Chief Judge Learned Hand,
writing for the majority below, interpreted the phrase as follows:
‘In each case [courts] must ask whether the gravity of the “evil,”
discounted by its improbability, justifies such invasion of free speech
as is necessary to avoid the danger.’ 183 F.2d at 212. We adopt this
statement of the rule. As articulated by Chief Judge Hand, it is as
succinct and inclusive as any other we might devise at this time. It
takes into consideration those factors which we deem relevant, and
relates their significances. More we cannot expect from words.” 502
The “gravity of the evil, discounted by its improbability” was found
to justify the convictions.503
Balancing.—Clear and present danger as a test, it seems clear,
was a pallid restriction on governmental power after Dennis, and it
virtually disappeared from the Court’s language over the next twenty
id. at 517, discussed in the next topic. Justice Jackson appeared to proceed on a
conspiracy approach rather than one depending on advocacy. Id. at 561. Justices Black
and Douglas dissented, reasserting clear and present danger as the standard. Id. at
579, 581. Note the recurrence to the Learned Hand formulation in Nebraska Press
Ass’n v. Stuart, 427 U.S. 539, 562 (1976), although the Court appeared in fact to
apply balancing.
503 In Yates v. United States, 354 U.S. 298 (1957), the Court substantially lim-
ited both the Smith Act and the Dennis case by interpreting the Act to require advo-
cacy of unlawful action, to require the urging of doing something now or in the fu-
ture, rather than merely advocacy of forcible overthrow as an abstract doctrine, and
by finding the evidence lacking to prove the former. Of Dennis, Justice Harlan wrote:
“The essence of the Dennis holding was that indoctrination of a group in prepara-
tion for future violent action, as well as exhortation to immediate action, by advo-
cacy found to be directed to ‘action for the accomplishment’ of forcible overthrow, to
violence as ‘a rule or principle of action,’ and employing ‘language of incitement,’ id.
at 511–12, is not constitutionally protected when the group is of sufficient size and
cohesiveness, is sufficiently oriented towards action, and other circumstances are such
as reasonably to justify apprehension that action will occur.” Id. at 321.
1166 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
years.504 Its replacement for part of this period was the much dis-
puted “balancing” test, which made its appearance the year before
Dennis in American Communications Ass’n v. Douds.505 There the
Court sustained a law barring from access to the NLRB any labor
union if any of its officers failed to file annually an oath disclaim-
ing membership in the Communist Party and belief in the violent
overthrow of the government.506 Chief Justice Vinson, for the Court,
rejected reliance on the clear and present danger test. “Govern-
ment’s interest here is not in preventing the dissemination of Com-
munist doctrine or the holding of particular beliefs because it is feared
that unlawful action will result therefrom if free speech is prac-
ticed. Its interest is in protecting the free flow of commerce from
what Congress considers to be substantial evils of conduct that are
not the products of speech at all. Section 9(h), in other words, does
not interfere with speech because Congress fears the consequences
of speech; it regulates harmful conduct which Congress has deter-
mined is carried on by persons who may be identified by their po-
litical affiliations and beliefs. The Board does not contend that po-
litical strikes, the substantive evil at which § 9(h) is aimed, are the
present or impending products of advocacy of the doctrines of Com-
munism or the expression of belief in overthrow of the Government
by force. On the contrary, it points out that such strikes are called
by persons who, so Congress has found, have the will and power to
do so without advocacy or persuasion that seeks acceptance in the
competition of the market.” 507
The test, rather, must be one of balancing of interests. “When
particular conduct is regulated in the interest of public order, and
the regulation results in an indirect, conditional, partial abridge-
ment of speech, the duty of the courts is to determine which of these
two conflicting interests demands the greater protection under the
particular circumstances presented.” 508 As the interest in the re-
504 Cf. Brennan, The Supreme Court and the Meiklejohn Interpretation of the
First Amendment, 79 HARV. L. REV. 1, 8 (1965). See Garner v. Louisiana, 368 U.S.
157, 185–207 (1961) (Justice Harlan concurring).
505 339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846 (1950). Balanc-
ing language was used by Justice Black in his opinion for the Court in Martin v.
City of Struthers, 319 U.S. 141, 143 (1943), but it seems not to have influenced the
decision. Similarly, in Schneider v. Irvington, 308 U.S. 147, 161–62 (1939), Justice
Roberts used balancing language that he apparently did not apply.
506 The law, § 9(h) of the Taft-Hartley Act, 61 Stat. 146 (1947), was repealed, 73
Stat. 525 (1959), and replaced by a section making it a criminal offense for any per-
son “who is or has been a member of the Communist Party” during the preceding
five years to serve as an officer or employee of any union. § 504, 73 Stat. 536 (1959);
29 U.S.C. § 504. It was held unconstitutional in United States v. Brown, 381 U.S.
437 (1965).
507 American Communications Ass’n v. Douds, 339 U.S. 382, 396 (1950).
508 339 U.S. at 399.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1167
Thereafter, during the 1950s and the early 1960s, the Court used
the balancing test in a series of decisions in which the issues were
not, as they were not in Douds and Dennis, matters of expression
or advocacy as a threat but rather were governmental inquiries into
associations and beliefs of persons or governmental regulation of
associations of persons, based on the idea that beliefs and associa-
tions provided adequate standards for predicting future or in-
tended conduct that was within the power of government to regu-
late or to prohibit. Thus, in the leading case on balancing, Konigsberg
v. State Bar of California,517 the Court upheld the refusal of the
state to certify an applicant for admission to the bar. Required to
satisfy the Committee of Bar Examiners that he was of “good moral
character,” Konigsberg testified that he did not believe in the vio-
lent overthrow of the government and that he had never know-
ingly been a member of any organization that advocated such ac-
tion, but he declined to answer any question pertaining to membership
in the Communist Party.
For the Court, Justice Harlan began by asserting that freedom
of speech and association were not absolutes but were subject to
various limitations. Among the limitations, “general regulatory stat-
utes, not intended to control the content of speech but incidentally
limiting its unfettered exercise, have not been regarded as the type
of law the First or Fourteenth Amendment forbade Congress or the
States to pass, when they have been found justified by subordinat-
ing valid governmental interests, a prerequisite to constitutionality
which has necessarily involved a weighing of the governmental in-
terest involved.” 518 The governmental interest involved was the as-
surance that those admitted to the practice of law were committed
to lawful change in society and it was proper for the state to be-
lieve that one possessed of “a belief, firm enough to be carried over
into advocacy, in the use of illegal means to change the form” of
government did not meet the standard of fitness.519 On the other
hand, the First Amendment interest was limited because there was
“minimal effect upon free association occasioned by compulsory dis-
closure” under the circumstances. “There is here no likelihood that
deterrence of association may result from foreseeable private ac-
tion . . . for bar committee interrogations such as this are con-
ducted in private. . . . Nor is there the possibility that the State
may be afforded the opportunity for imposing undetectable arbi-
trary consequences upon protected association . . . for a bar appli-
cant’s exclusion by reason of Communist Party membership is sub-
517 366 U.S. 36 (1961).
518 366 U.S. at 50–51.
519 366 U.S. at 52.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1169
of these two cases is in doubt after Baird v. State Bar, 401 U.S. 1 (1971), and In re
Stolar, 401 U.S. 23 (1971), in which neither the plurality nor the concurring Justice
making up the majority used a balancing test.
521 Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. Wyman, 360 U.S.
72 (1959); Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States,
365 U.S. 431 (1961).
522 Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961);
bama ex rel. Flowers, 377 U.S. 288 (1964); Gibson v. Florida Legislative Investiga-
tion Committee, 372 U.S. 539 (1963).
524 Pickering v. Board of Education, 391 U.S. 563 (1968).
525 Lamont v. Postmaster General, 381 U.S. 301 (1965).
526 E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2 cases); Edwards v.
South Carolina, 372 U.S. 229 (1963); Adderley v. Florida, 385 U.S. 39 (1966); Brown
v. Louisiana, 383 U.S. 131 (1966). But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972),
where balancing reappears and in which other considerations overbalance the First
Amendment claims.
527 389 U.S. 258 (1967).
528 Subversive Activities Control Act of 1950, § 5(a)(1)(D), 64 Stat. 992, 50 U.S.C.
§ 784(a)(1)(D).
1170 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
words, whereas economic regulation need have merely a rational basis to be consti-
tutional, legislation of the sort to which Chief Justice Stone referred might be sub-
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1171
ject to “more exacting judicial scrutiny under the general prohibitions of the Four-
teenth Amendment . . . .” Id. Justice Powell later wrote that footnote 4 “is recognized
as a primary source of ‘strict scrutiny’ judicial review.” Lewis F. Powell, Jr., Carolene
Products Revisited, 82 Columbia L. Rev. 1087, 1088 (1982).
533 319 U.S. 105, 115 (1943). See also West Virginia State Bd. of Educ. v. Barnette,
ion). See also Braden v. United States, 365 U.S. 431, 441 (1961) (dissenting); Wilkinson
v. United States, 365 U.S. 399, 422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S.
388, 392 (1960) (dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959)
(dissenting); American Communications Ass’n v. Douds, 339 U.S. 382, 445 (1950);
Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting); Beauharnais v. Illi-
nois, 343 U.S. 250, 267 (1952) (dissenting); New York Times Co. v. Sullivan, 376
U.S. 254, 293 (1964) (concurring); New York Times Co. v. United States, 403 U.S.
713, 714 (1971) (concurring). For Justice Douglas’ position, see New York Times Co.
v. United States, 403 U.S. at 720 (concurring); Roth v. United States, 354 U.S. 476,
508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450 (1969) (concurring).
537 Konigsberg v. State Bar of California, 366 U.S. 36, 60–61 (1961).
1172 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
538 Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) (concurring).
539 Cox v. Louisiana, 379 U.S. 559, 578 (1965) (dissenting) (emphasis in origi-
nal).
540 These cases involving important First Amendment issues are dealt with infra,
under “Speech Plus.” See Brown v. Louisiana, 383 U.S. 131 (1966); Adderley v. Florida,
385 U.S. 39 (1966).
541 The vagueness doctrine generally requires that a statute be precise enough
to give fair warning to actors that contemplated conduct is criminal, and to provide
adequate standards to enforcement agencies, factfinders, and reviewing courts. See,
e.g., Connally v. General Const. Co., 269 U.S. 385 (1926); Lanzetta v. New Jersey,
306 U.S. 451 (1939); Colautti v. Franklin, 439 U.S. 379 (1979); Village of Hoffman
Estates v. The Flipside, 455 U.S. 489 (1982).
542 E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961); Baggett v.
Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967).
See also Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney discipline,
extrajudicial statements).
543 E.g., Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wil-
son, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968);
Reno v. ACLU, 521 U.S. 844, 870–874 (1997). In National Endowment for the Arts
v. Finley, 524 U.S. 569 (1998), the Court held that a “decency” criterion for the award-
ing of grants, which “in a criminal statute or regulatory scheme . . . could raise sub-
stantial vagueness concerns,” was not unconstitutionally vague in the context of a
condition on public subsidy for speech.
544 E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory v. City of Chi-
cago, 394 U.S. 111 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also
Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New
Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1173
378 U.S. 500 (1964); United States v. Robel, 389 U.S. 258 (1967); Zwickler v. Koota,
389 U.S. 241 (1967); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Massachu-
setts v. Oakes, 491 U.S. 576, 581 (1989). But see Washington State Grange v. Wash-
ington State Republican Party, 128 S. Ct. 1184, 1190 (2008) (facial challenge to bur-
den on right of association rejected “where the statute has a ‘plainly legitimate sweep’ ”).
547 Virginia v. Hicks, 539 U.S. 113, 119–20, 124 (2003) (italics in original; cita-
548 Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002).
549 Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989).
550 Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 790 (1994) (parenthe-
ses omitted). The Court, however, applied a rational basis standard to uphold a state
statute that banned the sale of sexually explicit material to minors. Ginsberg v. New
York, 390 U.S. 629, 641 (1968). Of course, governmental restrictions on some speech,
such as obscenity and fighting words, receive no First Amendment scrutiny, except
that particular instances of such speech may not be discriminated against on the
basis of hostility “towards the underlying message expressed.” R.A.V. v. City of St.
Paul, 505 U.S. 377, 386 (1992).
551 E.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988) (time, place, and manner
ing); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986) (upholding zoning of
“adult motion picture theaters”). Zoning and nude dancing cases are discussed be-
low under “Non-obscene But Sexually Explicit and Indecent Expression.”
554 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984).
555 United States v. Edge Broadcasting Co., 509 U.S. 418, 430 (1993).
556 Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (federal “must-
carry” provisions, which require cable television systems to devote a portion of their
channels to the transmission of local broadcast television stations, upheld as a content-
neutral, incidental restriction on speech, not subject to strict scrutiny). The Court
has applied the same principle in weighing the constitutionality of two other types
of speech restrictions to which it does not apply strict scrutiny: restrictions on com-
mercial speech, Edenfield v. Fane, 507 U.S. 761, 770–771 (1993) (“a governmental
body seeking to sustain a restriction on commercial speech must demonstrate that
the harms it recites are real”), and restrictions on campaign contributions, Nixon v.
Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (“We have never ac-
cepted mere conjecture as adequate to carry a First Amendment burden”).
557 Ginsberg v. New York, 390 U.S. 629, 641 (1968) (upholding a ban on sale to
minors of “girlie” magazines, and noting that, although “studies all agree that a causal
1176 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
J., dissenting).
560 Thus, obscenity, by definition, is outside the coverage of the First Amend-
ment, Roth v. United States, 354 U.S. 476 (1957); Paris Adult Theatre I v. Slaton,
413 U.S. 49 (1973), as are malicious defamation, New York Times Co. v. Sullivan,
376 U.S. 254 (1964), and “fighting words,” Chaplinsky v. New Hampshire, 315 U.S.
568 (1942). The Court must, of course, decide in each instance whether the ques-
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1177
tioned expression, as a matter of definition, falls within one of these or another cat-
egory. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974); Gooding v. Wilson, 405 U.S.
518 (1972).
561 E.g., the multifaceted test for determining when commercial speech is pro-
tected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566 (1980); the
standard for determining when expressive conduct is protected, United States v. O’Brien,
391 U.S. 367, 377 (1968); the elements going into decision with respect to access at
trials, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–10 (1982); and the
test for reviewing press “gag orders” in criminal trials, Nebraska Press Ass’n v. Stu-
art, 427 U.S. 539, 562–67 (1976), are but a few examples.
562 395 U.S. 444 (1969).
563 Yates v. United States, 354 U.S. 298 (1957); Scales v. United States, 367 U.S.
203 (1961); Noto v. United States, 367 U.S. 290 (1961). See also Bond v. Floyd, 385
U.S. 116 (1966); Watts v. United States, 394 U.S. 705 (1969).
564 395 U.S. at 447. Subsequent cases relying on Brandenburg indicate the stan-
dard has considerable bite, but do not elaborate sufficiently enough to begin filling
in the outlines of the test. Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 928 (1982). But see Haig v. Agee, 453 U.S. 280, 308–09
(1981).
565 In Stewart v. McCoy, 537 U.S. 993 (2002), Justice Stevens, in a statement
Freedom of Belief
The First Amendment does not expressly speak in terms of lib-
erty to hold such beliefs as one chooses, but in both the religion
and the expression clauses, it is clear, liberty of belief is the foun-
dation of the liberty to practice what religion one chooses and to
express oneself as one chooses.566 “If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion,
or other matters of opinion or force citizens to confess by word or
act their faith therein.” 567 Speaking in the context of religious free-
dom, the Court said that, although the freedom to act on one’s be-
liefs could be limited, the freedom to believe what one will “is abso-
lute.” 568 But matters are not so simple.
Flag Salutes and Other Compelled Speech.—One question
that has arisen is whether the government may compel a person to
publicly declare or affirm a personal belief. In Minersville School
District v. Gobitis,569 the Court had upheld the power of Pennsylva-
nia to expel from its schools certain children—Jehovah’s Witnesses—
who refused upon religious grounds to join in a flag salute cer-
emony and recite the pledge of allegiance. “Conscientious scruples
have not, in the course of the long struggle for religious toleration,
relieved the individual from obedience to a general law not aimed
at the promotion or restriction of religious beliefs.” 570 But three years
later, in West Virginia State Bd. of Educ. v. Barnette,571 a six-to-
three majority of the Court overturned Gobitis.572 Justice Jackson,
involve speech that should not be glibly characterized as mere ‘advocacy’ and cer-
tainly may create significant public danger. Our cases have not yet considered whether,
and if so to what extent, the First Amendment protects such instructional speech.”
Id. at 995.
566 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Cantwell
v. Connecticut, 310 U.S. 296, 303–04 (1940); United States v. Ballard, 322 U.S. 78
(1944); Torcaso v. Watkins, 367 U.S. 488 (1961); American Communications Ass’n v.
Douds, 339 U.S. 382, 408 (1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v.
Randall, 357 U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5–6 (1971),
and id. at 9–10 (Justice Stewart concurring).
567 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
568 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
569 310 U.S. 586 (1940).
570 310 U.S. at 594. Justice Stone alone dissented, arguing that the First Amend-
ment religion and speech clauses forbade coercion of “these children to express a
sentiment which, as they interpret it, they do not entertain, and which violates their
deepest religious convictions.” Id. at 601.
571 319 U.S. 624 (1943).
572 Justice Frankfurter dissented at some length, denying that the First Amend-
ment authorized the Court “to deny to the State of West Virginia the attainment of
that which we all recognize as a legitimate legislative end, namely, the promotion of
good citizenship, by employment of the means here chosen.” 319 U.S. at 646, 647.
Justices Roberts and Reed simply noted their continued adherence to Gobitis. Id. at
642.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1179
writing for the Court, chose to ignore the religious argument and
to ground the decision upon freedom of speech. The state policy, he
said, constituted “a compulsion of students to declare a belief. . . .
It requires the individual to communicate by word and sign his ac-
ceptance of the political ideas [the flag] bespeaks.” 573 The power of
a state to follow a policy that “requires affirmation of a belief and
an attitude of mind,” however, is limited by the First Amendment,
which, under the standard then prevailing, required the state to
prove that for the students to remain passive during the ritual “cre-
ates a clear and present danger that would justify an effort even to
muffle expression.” 574
The rationale of Barnette became the basis for the Court’s deci-
sion in Wooley v. Maynard,575 which voided a requirement by the
state of New Hampshire that motorists display passenger vehicle
license plates bearing the motto “Live Free or Die.” 576 Acting on
the complaint of a Jehovah’s Witness, the Court held that the plain-
tiff could not be compelled by the state to display a message mak-
ing an ideological statement on his private property. In a subse-
quent case, however, the Court found that compelling property owners
to facilitate the speech of others by providing access to their prop-
erty did not violate the First Amendment.577 Nor was there a con-
stitutional violation where compulsory fees were used to subsidize
the speech of others.578
on his property, compare the Court’s opinion in PruneYard Shopping Center v. Rob-
ins, 447 U.S. 74, 85–88 (1980) (upholding a state requirement that privately owned
shopping centers permit others to engage in speech or petitioning on their property)
with Justice Powell’s concurring opinion in the same case, id. at 96 (would limit the
holding to situations where a property owner did not feel compelled to disassociate
themselves from the permitted speech).
578 The First Amendment does not preclude a public university from charging
its students an activity fee that is used to support student organizations that en-
gage in extracurricular speech, provided that the money is allocated to those groups
by use of viewpoint-neutral criteria. Board of Regents of the Univ. of Wisconsin Sys-
tem v. Southworth, 529 U.S. 217 (2000) (upholding fee except to the extent a stu-
dent referendum substituted majority determinations for viewpoint neutrality in al-
locating funds). Nor does the First Amendment preclude the government from
“compel[ling] financial contributions that are used to fund advertising,” provided that
such contributions do not finance “political or ideological” views. Glickman v. Wile-
man Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Ag-
riculture’s marketing orders that assessed fruit producers to cover the expenses of
generic advertising of California fruit). But, for compelled financial contributions to
be constitutional, the advertising they fund must be, as in Glickman, “ancillary to a
more comprehensive program restricting marketing autonomy” and not “the princi-
1180 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003),
the Supreme Court held that a fundraiser who has retained 85 percent of gross re-
ceipts from donors, but falsely represented that “a significant amount of each dollar
donated would be paid over to” a charitable organization, could be sued for fraud.
580 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas
& Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986), a Court plurality held
that a state could not require a privately owned utility company to include in its
billing envelopes views of a consumer group with which it disagrees.
581 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
582 Hurley v. Irish-American Gay Group, 514 U.S. 334 (1995).
583 Cole v. Richardson, 405 U.S. 676 (1972); Connell v. Higginbotham, 403 U.S.
207 (1971); Bond v. Floyd, 385 U.S. 116 (1966); Knight v. Board of Regents, 269 F.
Supp. 339 (S.D.N.Y. 1967) (three-judge court), aff’d, 390 U.S. 36 (1968); Hosack v.
Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three-judge court), aff’d, 390 U.S. 744
(1968); Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge court),
aff’d, 397 U.S. 317 (1970); Law Students Civil Rights Research Council v. Wadmond,
401 U.S. 154, 161 (1971); Fields v. Askew, 279 So. 2d 822 (Fla. 1973), aff’d per curiam,
414 U.S. 1148 (1974).
584 Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law Students Civil Rights
See Milavetz, Gallop, & Milavetz v. United States, 559 U.S. ___, No. 08–1119 (2010),
slip op. at 19–23 (requiring advertisement for certain “debt relief ” businesses to dis-
close that the services offered include bankruptcy assistance).
586 Meese v. Keene, 481 U.S. 465, 480 (1987).
587 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
588 The issue has also arisen in the context of criminal sentencing. Evidence that
racial hatred was a motivation for a crime may be taken into account, Barclay v.
Florida, 463 U.S. 939, 949 (1983); Wisconsin v. Mitchell, 508 U.S. 476 (1993) (crimi-
nal sentence may be enhanced because the defendant intentionally selected his vic-
tim on account of the victim’s race), but evidence of the defendant’s membership in
a racist group is inadmissible where race was not a factor and no connection had
been established between the defendant’s crime and the group’s objectives. Dawson
v. Delaware, 503 U.S. 159 (1992). See also United States v. Abel, 469 U.S. 45 (1984)
(defense witness could be impeached by evidence that both witness and defendant
belonged to group whose members were sworn to lie on each other’s behalf).
1182 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
589 Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950). The premise of the deci-
sion was that government employment is a privilege rather than a right and that
access thereto may be conditioned as the government pleases. But this basis, as the
Court has said, “has been thoroughly undermined in the ensuing years.” Board of
Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). For the vitiation of the right-
privilege distinction, see “Government as Employer: Free Speech Generally,” infra.
590 Bailey v. Richardson, 341 U.S. 918 (1951). See also Washington v. McGrath,
341 U.S. 923 (1951), aff ’g by an equally divided Court, 182 F.2d 375 (D.C. Cir. 1950).
Although no opinions were written in these cases, several Justices expressed them-
selves on the issues in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123
(1951), decided the same day.
591 339 U.S. 382 (1950). In a later case raising the same point, the Court was
Justice Black, joined by Justice Douglas and Chief Justice Warren, dissented on the
ground that the refusal to admit the two to the state bars was impermissibly based
upon their beliefs. Id. at 56, 97.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1183
Right of Association
“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. . . . Of course, it
is immaterial whether the beliefs sought to be advanced by associa-
tion pertain to political, economic, religious or cultural matters, and
state action which may have the effect of curtailing the freedom to
associate is subject to the closest scrutiny.” 601 It appears from the
Court’s opinions that the right of association is derivative from the
First Amendment guarantees of speech, assembly, and petition,602
597 Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23
(1971); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).
598 401 U.S. at 5–8; 401 U.S. at 28–29 (plurality opinions of Justices Black, Doug-
las, Brennan, and Marshall in Baird and Stolar, respectively); 401 U.S. at 174–76,
178–80 (Justices Black and Douglas dissenting in Wadmond), 186–90 (Justices Mar-
shall and Brennan dissenting in Wadmond).
599 401 U.S. at 17–19, 21–22 (Justices Blackmun, Harlan, and White, and Chief
Stolar, respectively). How far Justice Stewart would permit government to go is not
made clear by his majority opinion in Wadmond. 401 U.S. at 161–66.
601 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460–61 (1958).
602 357 U.S. at 460; Bates v. City of Little Rock, 361 U.S. 516, 522–23 (1960);
United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 578–79 (1971);
Healy v. James, 408 U.S. 169, 181 (1972).
1184 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
v. Button, 371 U.S. 415, 429–30 (1963); Cousins v. Wigoda, 419 U.S. 477, 487 (1975);
In re Primus, 436 U.S. 412, 426 (1978); Democratic Party v. Wisconsin, 450 U.S.
107, 121 (1981).
604 See “Maintenance of National Security and the First Amendment,” infra.
605 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
606 357 U.S. at 461.
607 361 U.S. 516 (1960).
608 364 U.S. 479 (1960).
609 Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961).
610 NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1185
tions might not have been, the state could not infringe on the “right
of association” by ousting the organization altogether.611
A state order prohibiting the NAACP from urging persons to
seek legal redress for alleged wrongs and from assisting and repre-
senting such persons in litigation opened up new avenues when the
Court struck the order down as violating the First Amendment.612
“[A]bstract discussion is not the only species of communication which
the Constitution protects; the First Amendment also protects vigor-
ous advocacy, certainly of lawful ends, against governmental intru-
sion. . . . In the context of NAACP objectives, litigation is not a tech-
nique of resolving private differences; it is a means for achieving
the lawful objectives of equality of treatment by all government, fed-
eral, state and local, for the members of the Negro community in
this country. It is thus a form of political expression. . . .”
“We need not, in order to find constitutional protection for the
kind of cooperative, organizational activity disclosed by this record,
whereby Negroes seek through lawful means to achieve legitimate
political ends, subsume such activity under a narrow, literal concep-
tion of freedom of speech, petition or assembly. For there is no lon-
ger any doubt that the First and Fourteenth Amendments protect
certain forms of orderly group activity.” 613 This decision was fol-
lowed in three cases in which the Court held that labor unions en-
joyed First Amendment protection in assisting their members in pur-
suing their legal remedies to recover for injuries and other actions.
In the first case, the union advised members to seek legal advice
before settling injury claims and recommended particular attor-
neys; 614 in the second the union retained attorneys on a salaried
611 377 U.S. at 308, 309.
612 NAACP v. Button, 371 U.S. 415 (1963).
613 371 U.S. at 429–30. Button was applied in In re Primus, 436 U.S. 412 (1978),
in which the Court found foreclosed by the First and Fourteenth Amendments the
discipline visited upon a volunteer lawyer for the American Civil Liberties Union
who had solicited someone to use the ACLU to bring suit to contest the sterilization
of Medicaid recipients. Both the NAACP and the ACLU were organizations that en-
gaged in extensive litigation as well as lobbying and educational activities, all of
which were means of political expression. “[T]he efficacy of litigation as a means of
advancing the cause of civil liberties often depends on the ability to make legal as-
sistance available to suitable litigants.” Id. at 431. “[C]ollective activity undertaken
to obtain meaningful access to the courts is a fundamental right within the protec-
tion of the First Amendment.” Id. at 426. However, ordinary law practice for commer-
cial ends is not given special protection. “A lawyer’s procurement of remunerative
employment is a subject only marginally affected with First Amendment concerns.”
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 (1978). See also Bates v. State
Bar of Arizona, 433 U.S. 350, 376 n.32 (1977), and see the comparison of Ohralik
and Bates in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551
U.S. 291, 296–98 (2007) (“solicitation ban was more akin to a conduct regulation
than a speech restriction”).
614 Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964).
1186 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
certed activities of group protesting racial bias); Healy v. James, 408 U.S. 169 (1972)
(denial of official recognition to student organization by public college without justi-
fication abridged right of association). The right does not, however, protect the deci-
sion of entities not truly private to exclude minorities. Runyon v. McCrary, 427 U.S.
160, 175–76 (1976); Norwood v. Harrison, 413 U.S. 455, 469–70 (1973); Railway Mail
Ass’n v. Corsi, 326 U.S. 88 (1945); Roberts v. United States Jaycees, 468 U.S. 609
(1984).
619 City of Dallas v. Stanglin, 490 U.S. 19, 24, 25 (1989). The narrow factual
York City’s Human Rights Law, which prohibits race, creed, sex, and
other discrimination in places “of public accommodation, resort, or
amusement,” and applies to clubs of more than 400 members pro-
viding regular meal service and supported by nonmembers for trade
or business purposes. In Roberts, both the Jaycees’ nearly indiscrimi-
nate membership requirements and the state’s compelling interest
in prohibiting discrimination against women were important to the
Court’s analysis. The Court found that “the local chapters of the
Jaycees are large and basically unselective groups,” age and sex be-
ing the only established membership criteria in organizations oth-
erwise entirely open to public participation. The Jaycees, therefore,
“lack the distinctive characteristics [e.g., small size, identifiable pur-
pose, selectivity in membership, perhaps seclusion from the public
eye] that might afford constitutional protection to the decision of
its members to exclude women.” 623 Similarly, the Court deter-
mined in Rotary International that Rotary Clubs, designed as com-
munity service organizations representing a cross section of busi-
ness and professional occupations, also do not represent “the kind
of intimate or private relation that warrants constitutional protec-
tion.” 624 And, in New York City, the fact “that the antidiscrimina-
tion provisions of the Human Rights Law certainly could be consti-
tutionally applied at least to some of the large clubs, under the Court’s
decisions in Rotary and Roberts,” and the fact that the clubs were
“ ‘commercial’ in nature,” helped to defeat the facial challenge.625
Some amount of First Amendment protection is still due such
organizations; the Jaycees had taken public positions on a number
of issues, and, the Court in Roberts noted, “regularly engage[d] in
a variety of civic, charitable, lobbying, fundraising, and other activi-
ties worthy of constitutional protection under the First Amend-
ment. There is, however, no basis in the record for concluding that
admission of women as full voting members will impede the organi-
zation’s ability to engage in these protected activities or to dissemi-
nate its preferred views.” 626 Moreover, the state had a “compelling
interest to prevent . . . acts of invidious discrimination in the dis-
tribution of publicly available goods, services, and other advan-
tages. . . .” 627
Because of the near-public nature of the Jaycees and Rotary
Clubs—the Court in Roberts likening the situation to a large busi-
ness attempting to discriminate in hiring or in selection of customers—
623 468 U.S. at 621.
624 481 U.S. at 546.
625 487 U.S. at 11–12.
626 468 U.S. at 626–27 (citations omitted).
627 468 U.S. at 628.
1188 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
628 The Court in Rotary rejected an assertion that Roberts had recognized that
include being “morally straight” and “clean.” 636 The Court “ac-
cept[ed] the Boy Scouts’ assertion” that the organization teaches that
homosexual conduct is not morally straight.637 The Court also gave
“deference to [the] association’s view of what would impair its ex-
pression.” 638 Allowing a gay rights activist to serve in the Scouts
would “force the organization to send a message . . . that the Boy
Scouts accepts homosexual conduct as a legitimate form of behav-
ior.” 639
Political Association.—The major expansion of the right of as-
sociation has occurred in the area of political rights. “There can no
longer be any doubt that freedom to associate with others for the
common advancement of political beliefs and ideas is a form of ‘or-
derly group activity’ protected by the First and Fourteenth Amend-
ments. The right to associate with the political party of one’s choice
is an integral part of this basic constitutional freedom.” 640 Usually
in combination with an equal protection analysis, the Court since
Williams v. Rhodes 641 has passed on numerous state restrictions that
limit the ability of individuals or groups to join one or the other of
the major parties or to form and join an independent political party
to further political, social, and economic goals.642 Of course, the right
is not absolute. The Court has recognized that there must be sub-
stantial state regulation of the election process, which will necessar-
ily burden the individual’s right to vote and to join with others for
political purposes. The validity of governmental regulation must be
Inc., 547 U.S. 47, 69 (2006), the Court held that the Solomon Amendment’s forcing
law schools to allow military recruiters on campus does not violate the schools’ free-
dom of expressive association because “[r]ecruiters are, by definition, outsiders who
come onto campus for the limited purpose of trying to hire students—not to become
members of the school’s expressive association. This distinction is critical. Unlike
the public accommodations law in Dale, the Solomon Amendment does not force a
law school ‘to accept members it does not desire.’ ” Rumsfeld is discussed below un-
der “Government and the Power of the Purse.” See also ANDREW KOPPELMAN AND TO-
BIAS BARRINGTON WOLFF, A RIGHT TO DISCRIMINATE?: HOW THE CASE OF BOY SCOUTS OF AMERI-
CAN V. JAMES DALE WARPED THE LAW OF FREE ASSOCIATION (Yale University Press, 2009).
640 Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973) (citation omitted).
641 393 U.S. 23 (1968).
642 E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time deadline for enroll-
ment in party in order to vote in next primary); Kusper v. Pontikes, 414 U.S. 51
(1973) (barring voter from party primary if he voted in another party’s primary within
preceding 23 months); American Party of Texas v. White, 415 U.S. 767 (1974) (bal-
lot access restriction); Illinois State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173 (1979) (number of signatures to get party on ballot); Citizens Against Rent
Control v. City of Berkeley, 454 U.S. 290 (1981) (limit on contributions to associa-
tions formed to support or oppose referendum measure); Clements v. Fashing, 457
U.S. 957 (1982) (resign-to-run law).
1190 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
134, 142–143 (1972); Storer v. Brown, 415 U.S. 724, 730 (1974); Illinois State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979).
644 Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974), the Court found “compel-
ling” the state interest in achieving stability through promotion of the two-party sys-
tem, and upheld a bar on any independent candidate who had been affiliated with
any other party within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31–32
(1968) (casting doubt on state interest in promoting Republican and Democratic vot-
ers). The state interest in protecting the integrity of political parties was held to
justify requiring enrollment of a person in the party up to eleven months before a
primary election, Rosario v. Rockefeller, 410 U.S. 752 (1973), but not to justify re-
quiring one to forgo one election before changing parties. Kusper v. Pontikes, 414
U.S. 51 (1973). See also Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413
U.S. 548 (1973) (efficient operation of government justifies limits on employee politi-
cal activity); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (permitting
political party to designate replacement in office vacated by elected incumbent of
that party serves valid governmental interests). Storer v. Brown was distinguished
in Anderson v. Celebrezze, 460 U.S. 780 (1983), holding invalid a requirement that
independent candidates for President and Vice-President file nominating petitions
by March 20 in order to qualify for the November ballot; state interests in assuring
voter education, treating all candidates equally (candidates participating in a party
primary also had to declare candidacy in March), and preserving political stability,
were deemed insufficient to justify the substantial impediment to independent can-
didates and their supporters. See also Tashjian v. Republican Party of Connecticut,
479 U.S. 208 (1986) (state interests are insubstantial in imposing “closed primary”
under which a political party is prohibited from allowing independents to vote in its
primaries); California Democratic Party v. Jones, 530 U.S. 567, 577 (2000) (require-
ment of a “blanket” primary, in which all registered voters, regardless of political
affiliation, may participate, unconstitutionally “forces political parties to associate
with—to have their nominees, and hence their positions, determined by—those who,
at best, have refused to affiliate with the party, and, at worst, have expressly affili-
ated with a rival.”); Clingman v. Beaver, 544 U.S. 581 (2005) (Oklahoma statute
that allowed only registered members of a political party, and registered indepen-
dents, to vote in the party’s primary does not violate freedom of association; Oklaho-
ma’s “semiclosed primary system” distinguished from Connecticut’s closed primary
that the Court struck down in Tashjian).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1191
become state action that violates the Fifteenth Amendment. And then
also the State acquires a legitimate governmental interest in assur-
ing the fairness of the party’s nominating process, enabling it to
prescribe what that process must be.” 645
A political party’s First Amendment right to limit its member-
ship as it wishes does not render invalid a state statute that al-
lows a candidate to designate his party preference on a ballot, even
when the candidate “is unaffiliated with, or even repugnant to, the
party” he designates.646 This is because the statute in question “never
refers to the candidates as nominees of any party, nor does it treat
them as such”; it merely allows them to indicate their party prefer-
ence.647 The Court acknowledged that “it is possible that voters will
misinterpret the candidates’ party-preference designations as reflect-
ing endorsement by the parties,” but “whether voters will be con-
fused by the party-preference designations will depend in signifi-
cant part on the form of the ballot.” 648 If the form of the ballot used
in a particular election is such as to confuse voters, then an as-
applied challenge to the statute may be appropriate, but a facial
challenge, the Court held, is not.649
A significant extension of First Amendment association rights
in the political context occurred when the Court curtailed the al-
645 New York State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 797–98 (2008)
(citations omitted). In Lopez Torres, the Court upheld a state statute that required
political parties to select judicial candidates at a convention of delegates chosen by
party members in a primary election, rather than to select candidates in direct pri-
mary elections. The statute was challenged by party members who had not been
selected and who claimed “that the convention process that follows the delegate elec-
tion does not give them a realistic chance to secure the party’s nomination.” Id. at
799. The Court rejected their challenge, holding that, although a state may require
“party-candidate selection through processes more favorable to insurgents, such as
primaries,” id. at 799, the Constitution does not demand that a state do so. “Party
conventions, with their attendant ‘smoke-filled rooms’ and domination by party lead-
ers, have long been an accepted manner of selecting party candidates.” Id. at 799.
The plaintiffs had an associational right to join the party but not to have a certain
degree of influence in the party. Id. at 798.
646 Washington State Grange v. Washington State Republican Party, 128 S. Ct.
1184, 1189 (2008). This was a 7-to-2 decision written by Justice Thomas, with Jus-
tices Scalia and Kennedy dissenting.
647 128 S. Ct. at 1192.
648 128 S. Ct. at 1193. The Court saw “simply no basis to presume that a well-
claimers explaining that party preference reflects only the self-designation of the
candidate and not an official endorsement by the party.” 128 S. Ct. at 1194. Justice
Scalia, joined by Justice Kennedy in dissent, wrote that “[a]n individual’s endorse-
ment of a party shapes the voter’s view of what the party stands for,” and that it is
“quite impossible for the ballot to satisfy a reasonable voter that the candidate is
‘not associated’ with the party for which he has expressed a preference.” Id. at 1200.
1192 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
art and Blackmun provided the qualification for an otherwise expansive plurality
opinion. Id. at 374.
651 Branti v. Finkel, 445 U.S. 507, 518 (1980). On the same page, the Court re-
fers to a position in which “party membership was essential to the discharge of the
employee’s governmental responsibilities.” (Emphasis added.) A great gulf separates
“appropriate” from “essential,” so that much depends on whether the Court was us-
ing the two words interchangeably or whether the stronger word was meant to char-
acterize the position noted and not to particularize the standard.
652 Justice Powell’s dissents in both cases contain lengthy treatments of and de-
the Court’s opinion. The four dissenters indicated, in an opinion by Justice Scalia,
that they would not only rule differently in Rutan, but that they would also over-
rule Elrod and Branti.
654 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (allegation
that city removed petitioner’s company from list of those offered towing business on
a rotating basis, in retaliation for petitioner’s refusal to contribute to mayor’s cam-
paign, and for his support of mayor’s opponent, states a cause of action under the
First Amendment); Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996) (ter-
mination or non-renewal of a public contract in retaliation for the contractor’s speech
on a matter of public concern can violate the First Amendment).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1193
655 Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981). See
also Cousins v. Wigoda, 419 U.S. 477 (1975) (party rules, not state law, governed
which delegation from state would be seated at national convention; national party
had protected associational right to sit delegates it chose).
656 Buckley v. Valeo, 424 U.S. 1, 60–84 (1976).
657 424 U.S. at 64 (footnote citations omitted).
658 424 U.S. at 66–68.
659 424 U.S. at 68–74. Such a showing, based on past governmental and private
hostility and harassment, was made in Brown v. Socialist Workers ’74 Campaign
Comm., 459 U.S. 87 (1982).
660 424 U.S. at 74–84.
1194 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
661 The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537,
29 U.S.C. §§ 411–413, enacted a bill of rights for union members, designed to pro-
tect, among other things, freedom of speech and assembly and the right to partici-
pate in union meetings on political and economic subjects.
662 Section 8(a)(3) of the Labor-Management Relations Act of 1947, 61 Stat. 140,
29 U.S.C. § 158(a)(3), permits the negotiation of union shop agreements. Such agree-
ments, however, may be outlawed by state “right to work” laws. Section 14(b), 61
Stat. 151, 29 U.S.C. § 164(b). See Lincoln Fed. Labor Union v. Northwestern Iron &
Metal Co., 335 U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538
(1949). In industries covered by the Railway Labor Act, union shop agreements may
be negotiated regardless of contrary state laws. 64 Stat. 1238, 45 U.S.C. § 152, Elev-
enth; see Railway Employes’ Dep’t v. Hanson, 351 U.S. 225 (1956).
663 351 U.S. 225, 238 (1956).
664 367 U.S. 740, 749–50 (1961). Justices Douglas, Black, Frankfurter, and Har-
lan would have reached the constitutional issue, with differing results. On the same
day that it decided Street, the Court, in Lathrop v. Donohue, 367 U.S. 820 (1961),
declined to reach the constitutional issues presented by roughly the same fact situ-
ation in a suit by lawyers compelled to join an “integrated bar.” These issues, how-
ever, were faced squarely in Keller v. State Bar of California, 496 U.S. 1, 14 (1990),
which held that an integrated state bar may not, against a members’ wishes, devote
compulsory dues to ideological or other political activities not “necessarily or reason-
ably related to the purpose of regulating the legal profession or improving the qual-
ity of legal service available to the people of the State.”
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1195
bership, to pay a fee to the union that reflects the union’s efforts in obtaining em-
ployment benefits through collective bargaining. The Court in Abood noted that it is
the “practical equivalent” of a union shop agreement. 431 U.S. at 217 n.10.
668 431 U.S. at 217–23. For a similar argument over the issue of corporate po-
litical contributions and shareholder rights, see First National Bank v. Bellotti, 435
U.S. 765, 792–95 (1978), and id. at 802, 812–21 (Justice White dissenting).
669 431 U.S. at 232–37.
670 431 U.S. at 237–42. On the other hand, nonmembers may be charged for
such general union expenses as contributions to state and national affiliates, ex-
penses of sending delegates to state and national union conventions, and costs of a
union newsletter. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991). A local union
may also charge nonmembers a fee that goes to the national union to pay for litiga-
tion expenses incurred on behalf of other local units, but only if (1) the litigation is
related to collective bargaining rather than political activity, and (2) the litigation
charge is reciprocal in nature, i.e., other locals contribute similarly. Locke v. Karass,
129 S. Ct. 798, 802 (2009).
1196 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
444 (1984).
672 Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
673 475 U.S. at 309.
674 551 U.S. 177 (2007).
675 551 U.S. at 181, citing 475 U.S. 292, 302, 304–310.
676 551 U.S. at 185, quoting Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990),
680 Id. at 17 (Alito, J., joined by Roberts, C.J., and by Scalia, Kennedy, and Thomas,
JJ.).
681 567 U.S. ___, No. 10–1121, slip op. (2012) (Sotomayor, J., joined by Ginsburg,
J., concurring).
682 573 U.S. ___, No. 11–681, slip op. (2014).
683 Id. at 8–20.
684 Id. at 24–27.
685 Id. at 27.
1198 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
vided on the question of whether to overrule Abood, signaling that Abood’s contin-
ued viability may be a subject of future debate at the Supreme Court. 578 U.S. ___,
No. 14–915, slip op. at 1 (2016).
687 129 S. Ct. 1093 (2009).
688 129 S. Ct. at 1098. The unions had argued that, even if the limitation was
valid as applied at the state level, it violated their First Amendment rights when
applied to local public employers. The Court held that a political subdivision, “cre-
ated by the state for the better ordering of government, has no privileges or immu-
nities under the federal constitution which it may invoke in opposition to the will of
its creator.” Id. at 1101, quoting Williams v. Mayor of Baltimore, 289 U.S. 36, 40
(1933).
689 Madison School Dist. v. WERC, 429 U.S. 167 (1976).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1199
of 1798 690 and prosecutions under the federal espionage laws 691 and
state sedition and criminal syndicalism laws 692 in the 1920s and
early 1930s have been alluded to earlier.693 But it was in the 1950s
and the 1960s that the Supreme Court confronted First Amend-
ment concepts fully in determining the degree to which govern-
ment could proceed against persons and organizations that it be-
lieved were plotting and conspiring both to advocate the overthrow
of government and to accomplish that goal.
The Smith Act of 1940 694 made it a criminal offense to know-
ingly or willfully to advocate, abet, advise, or teach the duty, neces-
sity, desirability, or propriety of overthrowing the government of the
United States or of any state by force or violence, or to organize
any association that teaches, advises, or encourages such an over-
throw, or to become a member of or to affiliate with any such asso-
ciation. No case involving prosecution under this law was reviewed
by the Supreme Court until, in Dennis v. United States,695 it consid-
ered the convictions of eleven Communist Party leaders on charges
of conspiracy to violate the advocacy and organizing sections of the
statute. Chief Justice Vinson’s plurality opinion applied a revised
clear and present danger test 696 and concluded that the evil sought
to be prevented was serious enough to justify suppression of speech.
“If, then, this interest may be protected, the literal problem which
690 Ch. 74, 1 Stat. 596 (1798).
691 The cases included Schenck v. United States, 249 U.S. 47 (1919) (affirming
conviction for attempting to disrupt conscription by circulation of leaflets bitterly
condemning the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming convic-
tion for attempting to create insubordination in armed forces based on one speech
advocating socialism and opposition to war, and praising resistance to the draft);
Abrams v. United States, 250 U.S. 616 (1919) (affirming convictions based on two
leaflets, one of which attacked President Wilson as a coward and hypocrite for send-
ing troops into Russia and the other of which urged workers not to produce materi-
als to be used against their brothers).
692 The cases included Gitlow v. New York, 268 U.S. 652 (1925) (affirming con-
viction based on publication of “manifesto” calling for the furthering of the “class
struggle” through mass strikes and other mass action); Whitney v. California, 274
U.S. 357 (1927) (affirming conviction based upon adherence to party which had plat-
form rejecting parliamentary methods and urging a “revolutionary class struggle,”
the adoption of which defendant had opposed).
693 See discussion under “Adoption and the Common Law Background,” and “Clear
and Present Danger,” supra. See also Taylor v. Mississippi, 319 U.S. 583 (1943), set-
ting aside convictions of three Jehovah’s Witnesses under a statute that prohibited
teaching or advocacy intended to encourage violence, sabotage, or disloyalty to the
government after the defendants had said that it was wrong for the President “to
send our boys across in uniform to fight our enemies” and that boys were being killed
“for no purpose at all.” The Court found no evil or sinister purpose, no advocacy of
or incitement to subversive action, and no threat of clear and present danger to gov-
ernment.
694 54 Stat. 670, 18 U.S.C. § 2385.
695 341 U.S. 494 (1951).
696 341 U.S. at 510.
1200 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
is presented is what has been meant by the use of the phrase ‘clear
and present danger’ of the utterances bringing about the evil within
the power of Congress to punish. Obviously, the words cannot mean
that before the government may act, it must wait until the putsch
is about to be executed, the plans have been laid and the signal is
awaited. If Government is aware that a group aiming at its over-
throw is attempting to indoctrinate its members and to commit them
to a course whereby they will strike when the leaders feel the cir-
cumstances permit, action by the government is required.” 697 “The
mere fact that from the period 1945 to 1948 petitioners’ activities
did not result in an attempt to overthrow the Government by force
and violence is of course no answer to the fact that there was a
group that was ready to make the attempt. The formation by peti-
tioners of such a highly organized conspiracy, with rigidly disci-
plined members subject to call when the leaders, these petitioners,
felt that the time had come for action, coupled with the inflam-
mable nature of world conditions, similar uprisings in other coun-
tries, and the touch-and-go nature of our relations with countries
with whom petitioners were in the very least ideologically attuned,
convince us that their convictions were justified on this score.” 698
Justice Frankfurter in concurrence developed a balancing test,
which, however, he deferred to the congressional judgment in apply-
ing, concluding that “there is ample justification for a legislative
judgment that the conspiracy now before us is a substantial threat
to national order and security.” 699 Justice Jackson’s concurrence was
based on his reading of the case as involving “a conviction of con-
spiracy, after a trial for conspiracy, on an indictment charging con-
spiracy, brought under a statute outlawing conspiracy.” Here the gov-
ernment was dealing with “permanently organized, well-financed,
semi-secret, and highly disciplined organizations” plotting to over-
throw the Government; under the First Amendment “it is not for-
bidden to put down force and violence, it is not forbidden to punish
its teaching or advocacy, and the end being punishable, there is no
doubt of the power to punish conspiracy for the purpose.” 700 Jus-
tices Black and Douglas dissented separately, the former viewing
the Smith Act as an invalid prior restraint and calling for reversal
of the convictions for lack of a clear and present danger, the latter
applying the Holmes-Brandeis formula of clear and present danger
to conclude that “[t]o believe that petitioners and their following
Smith Act unconstitutional. Id. at 339. Justice Harlan’s formulation of the standard
by which certain advocacy could be punished was noticeably stiffened in Brandenburg
v. Ohio, 395 U.S. 444 (1969).
705 Ch. 1024, 64 Stat. 987. Sections of the Act requiring registration of Communist-
action and Communist-front organizations and their members were repealed in 1968.
Pub. L. 90–237, § 5, 81 Stat. 766.
1202 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
on the self-incrimination claims raised by the Party. The registration provisions ul-
timately floundered on this claim. Albertson v. SACB, 382 U.S. 70 (1965).
707 367 U.S. at 102.
708 367 U.S. at 170–75 (Justice Douglas dissenting on other grounds), 191 (Jus-
tice Brennan and Chief Justice Warren dissenting on other grounds). Justice Black’s
dissent on First Amendment grounds argued that “Congress has [no] power to out-
law an association, group or party either on the ground that it advocates a policy of
violent overthrow of the existing Government at some time in the distant future or
on the ground that it is ideologically subservient to some foreign country.” Id. at
147.
709 367 U.S. 203 (1961). Justices Black and Douglas dissented on First Amend-
ment grounds, id. at 259, 262, while Justice Brennan and Chief Justice Warren dis-
sented on statutory grounds. Id. at 278
710 367 U.S. at 229.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1203
711 367 U.S. at 220. In Noto v. United States, 367 U.S. 290 (1961), the Court
reversed a conviction under the membership clause because the evidence was insuf-
ficient to prove that the Party had engaged in unlawful advocacy. “[T]he mere ab-
stract teaching of Communist theory, including the teaching of the moral propriety
or even moral necessity for a resort to force and violence, is not the same as prepar-
ing a group for violent action and steeling it to such action. There must be some
substantial direct or circumstantial evidence of a call to violence now or in the fu-
ture which is both sufficiently strong and sufficiently pervasive to lend color to the
otherwise ambiguous theoretical material regarding Communist Party teaching, and
to justify the inference that such a call to violence may fairly be imputed to the
Party as a whole, and not merely to some narrow segment of it.” Id. at 297–98.
712 See 66 Stat. 205 (1952), 8 U.S.C. § 1251(a)(6). “Innocent” membership in an
The section was declared unconstitutional in Aptheker v. Secretary of State, 378 U.S.
500 (1964), as an infringement of the right to travel, a liberty protected by the Due
Process Clause of the Fifth Amendment. But the Court considered the case as well
in terms of its restrictions on “freedom of association,” emphasizing that the statute
reached membership whether it was with knowledge of the organization’s illegal aims
or not, whether it was active or not, and whether the member intended to further
the organization’s illegal aims. Id. at 507–14. But see Zemel v. Rusk, 381 U.S. 1,
16–17 (1965), in which the Court denied that State Department area restrictions in
its passport policies violated the First Amendment, because the policy inhibited ac-
tion rather than expression, a distinction the Court continued in Haig v. Agee, 453
U.S. 280, 304–10 (1981).
714 This part of the oath was sustained in American Communications Ass’n v.
Douds, 339 U.S. 382 (1950), and Osman v. Douds, 339 U.S. 846 (1950).
715 Konigsberg v. State Bar of California, 366 U.S. 36 (1961); In re Anastaplo,
366 U.S. 82 (1961); Law Students Civil Rights Research Council v. Wadmond, 401
U.S. 154 (1971). Membership alone, however, appears to be an inadequate basis on
1204 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
nist Control Act of 1954 was designed to keep the Communist Party
off the ballot in all elections.716 The most recent interpretation of
this type of disability is United States v. Robel,717 in which the Court
held unconstitutional under the First Amendment a section of the
Internal Security Act that made it unlawful for any member of an
organization compelled to register as a “Communist-action” or
“Communist-front” organization to work in any defense facility. For
the Court, Chief Justice Warren wrote that a statute that so in-
fringed upon freedom of association must be much more narrowly
drawn to take precise account of the evils at which it permissibly
could be aimed. One could be disqualified from holding sensitive po-
sitions on the basis of active, knowing membership with a specific
intent to further the unlawful goals of an organization, but that
membership that was passive or inactive, or by a person unaware
of the organization’s unlawful aims, or by one who disagreed with
those aims, could not be grounds for disqualification, certainly not
for a non-sensitive position.718
A somewhat different matter is disqualifying a person for pub-
lic benefits of some sort because of membership in a proscribed or-
ganization or because of some other basis ascribable to doubts about
his loyalty. The First Amendment was raised only in dissent when
in Flemming v. Nestor 719 the Court sustained a statute that re-
quired the termination of Social Security old-age benefits to an alien
who was deported on grounds of membership in the Communist Party.
Proceeding on the basis that no one was “entitled” to Social Secu-
rity benefits, Justice Harlan for the Court concluded that a ratio-
nal justification for the law might be the deportee’s inability to aid
the domestic economy by spending the benefits locally, although a
passage in the opinion could be read to suggest that termination
was permissible because alien Communists are undeserving of ben-
efits.720 Of considerable significance in First Amendment jurispru-
which to deny admission. Id. at 165–66; Baird v. State Bar of Arizona, 401 U.S. 1
(1971); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).
716 Ch. 886, § 3, 68 Stat. 775, 50 U.S.C. § 842. The section was at issue without
a ruling on the merits in Mitchell v. Donovan, 290 F. Supp. 642 (D. Minn. 1968)
(ordering names of Communist Party candidates put on ballot); 300 F. Supp. 1145
(D. Minn. 1969) (dismissing action as moot); 398 U.S. 427 (1970) (dismissing appeal
for lack of jurisdiction).
717 389 U.S. 258 (1967).
718 389 U.S. at 265–66. See also Schneider v. Smith, 390 U.S. 17 (1968).
719 363 U.S. 603 (1960).
720 363 U.S. at 612. The passage reads: “Nor . . . can it be deemed irrational for
Congress to have concluded that the public purse should not be utilized to contrib-
ute to the support of those deported on the grounds specified in the statute.” Id. But
see Sherbert v. Verner, 374 U.S. 398, 404–05, 409 n.9 (1963). Although the right-
privilege distinction is all but moribund, Flemming was strongly reaffirmed in later
cases by emphasis on the noncontractual nature of such benefits. Richardson v. Belcher,
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1205
404 U.S. 78, 80–81 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S.
166, 174 (1980).
721 357 U.S. 513 (1958).
722 357 U.S. at 526. For a possible limiting application of the principle, see Law
Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 162–64 (1971),
and id. at 176–78 (Justices Black and Douglas dissenting), id. at 189 n.5 (Justices
Marshall and Brennan dissenting).
723 The federal program is primarily grounded in two Executive Orders by Presi-
dent Truman and President Eisenhower, E.O. 9835, 12 Fed. Reg. 1935 (1947), and
1206 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
First encountered 725 was a loyalty oath for candidates for pub-
lic office rather than one for public employees. Accepting the state
court construction that the law required each candidate to “make
oath that he is not a person who is engaged ‘in one way or another
in the attempt to overthrow the government by force or violence,’
and that he is not knowingly a member of an organization engaged
in such an attempt,” the Court unanimously sustained the provi-
sion in a one-paragraph per curiam opinion.726 Less than two months
later, the Court upheld a requirement that employees take an oath
that they had not within a prescribed period advised, advocated, or
taught the overthrow of government by unlawful means, nor been
a member of an organization with similar objectives; every em-
ployee was also required to swear that he was not and had not been
a member of the Communist Party.727 For the Court, Justice Clark
perceived no problem with the inquiry into Communist Party mem-
bership but cautioned that no issue had been raised whether an
employee who was or had been a member could be discharged merely
for that reason.728 With regard to the oath, the Court did not dis-
cuss First Amendment considerations but stressed that it believed
the appropriate authorities would not construe the oath adversely
E.O. 10450, 18 Fed. Reg. 2489 (1953), and a significant amendatory Order issued by
President Nixon, E.O. 11605, 36 Fed. Reg. 12831 (1971). Statutory bases include 5
U.S.C. §§ 7311, 7531–32. Cases involving the program were decided either on lack
of authority for the action being reviewed, e.g., Cole v. Young, 351 U.S. 536 (1956);
and Peters v. Hobby, 349 U.S. 331 (1955), or on procedural due process grounds,
Greene v. McElroy, 360 U.S. 474 (1959); Cafeteria & Restaurant Workers Union v.
McElroy, 367 U.S. 886 (1961). But cf. United States v. Robel, 389 U.S. 258 (1967);
Schneider v. Smith, 390 U.S. 17 (1968). A series of three-judge district court deci-
sions, however, invalidated federal loyalty oaths and inquiries. Soltar v. Postmaster
General, 277 F. Supp. 579 (N.D. Calif. 1967); Haskett v. Washington, 294 F. Supp.
912 (D.D.C. 1968); Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969); National
Ass’n of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C. 1969) (no-strike oath).
724 So-called negative oaths or test oaths are dealt with in this section; for the
positive oaths, see “Imposition of Consequences for Holding Certain Beliefs,” supra.
725 Test oaths had first reached the Court in the period following the Civil War,
at which time they were voided as ex post facto laws and bills of attainder. Cum-
mings v. Missouri, 71 U.S. (4 Wall.) 277 (1867); Ex parte Garland, 71 U.S. (4 Wall.)
333 (1867).
726 Gerende v. Board of Supervisors of Elections, 341 U.S. 56 (1951) (emphasis
original). In Indiana Communist Party v. Whitcomb, 414 U.S. 411 (1974), a require-
ment that parties and candidates seeking ballot space subscribe to a similar oath
was voided because the oath’s language did not comport with the advocacy stan-
dards of Brandenburg v. Ohio, 395 U.S. 444 (1969). Four Justices concurred more
narrowly. 414 U.S. at 452 n.3. See also Whitcomb v. Communist Party of Indiana,
410 U.S. 976 (1973).
727 Garner v. Board of Pub. Works, 341 U.S. 716 (1951)). Justice Frankfurter
dissented in part on First Amendment grounds, id. at 724, Justice Burton dissented
in part, id. at 729, and Justices Black and Douglas dissented completely, on bill of
attainder grounds, id. at 731.
728 341 U.S. at 720. Justices Frankfurter and Burton agreed with this ruling.
because he thought no party had standing. Id. at 497. Justices Black and Douglas
dissented on First Amendment grounds. Id. at 508.
732 342 U.S. at 492.
733 342 U.S. at 492.
734 342 U.S. at 494–96.
1208 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
his every associational tie is to impair that teacher’s right of free association, a right
closely allied to freedom of speech and a right which, like free speech, lies at the
foundation of a free society.” Id. at 485–86. Justices Frankfurter, Clark, Harlan, and
Whittaker dissented. Id. at 490, 496.
738 368 U.S. 278 (1961). For further proceedings on this oath, see Connell v. Hig-
ginbotham, 305 F. Supp. 445 (M.D. Fla. 1970), aff’d in part and rev’d in part, 403
U.S. 207 (1971).
739 377 U.S. 360 (1964). Justices Clark and Harlan dissented. Id. at 380
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1209
unlawful purposes and who do not participate in its unlawful activities pose no threat,
either as citizens or public employees.” Id. at 17.
743 385 U.S. 589 (1967). Justices Clark, Harlan, Stewart, and White dissented.
Id. at 620.
744 Adler v. Board of Education, 342 U.S. 485 (1952).
745 Keyishian v. Board of Regents, 385 U.S. 589, 597–604 (1967).
746 385 U.S. at 608. The statement here makes specific intent or active member-
62.
1210 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
354 U.S. 178, 197–98 (1957); Sweezy v. New Hampshire, 354 U.S. 234, 249–51 (1957).
Concurring in the last case, Justices Frankfurter and Harlan would have ruled that
the inquiry there was precluded by the First Amendment. Id. at 255.
752 Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. Wyman, 360 U.S.
72 (1959); Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States,
365 U.S. 431 (1961). Chief Justice Warren and Justices Black, Douglas, and Bren-
nan dissented in each case.
753 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963).
Justices Harlan, Clark, Stewart, and White dissented. Id. at 576, 583. See also
DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1211
First Amendment rights to speak out against the draft was no greater than neces-
sary to further the government’s interests in “prosecutorial efficiency,” obtaining suf-
ficient proof prior to prosecution, and promoting general deterrence (or not appear-
ing to condone open defiance of the law). See also United States v. Albertini, 472
U.S. 675 (1985) (order banning a civilian from entering military base upheld as ap-
plied to attendance at base open house by individual previously convicted of destroy-
ing military property).
1212 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
759 381 U.S. 301 (1965). The statute, 76 Stat. 840, was the first federal law the
Court ever struck down as an abridgment of the First Amendment speech and press
clauses.
760 381 U.S. at 307. Justices Brennan, Harlan, and Goldberg concurred, spelling
out in some detail the rationale of the protected right to receive information as the
basis for the decision.
761 Meese v. Keene, 481 U.S. 465 (1987).
762 481 U.S. at 480.
763 The right to receive information has been prominent in the rationale of sev-
eral cases, e.g., Martin v. City of Struthers, 319 U.S. 141 (1943); Thomas v. Collins,
323 U.S. 516 (1945); Stanley v. Georgia, 394 U.S. 557 (1969).
764 By §§ 212(a)(28)(D) and (G) of the Immigration and Nationality Act of 1952,
8 U.S.C. §§ 1182(a)(28)(D) and (G), aliens who advocate or write and publish “the
economic, international, and governmental doctrines of world communism” are made
ineligible to receive visas and are thus excluded from the United States. Upon the
recommendation of the Secretary of State, however, the Attorney General is autho-
rized to waive these provisions and to admit such an alien temporarily into the coun-
try. INA § 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A).
765 Kleindienst v. Mandel, 408 U.S. 753 (1972).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1213
intermediate scrutiny test applied in cases in which conduct, rather than the con-
tent of speech, is the primary target of regulation. 561 U.S. ___, No. 08–1498, slip
op. at 22–23 (2010). The dissent found the majority’s analysis to be too deferential
and insufficiently exacting, and also thought the case might be susceptible to resolu-
tion on statutory grounds if remanded. 561 U.S. ___, No. 08–1498, slip op. 7–22 (2010)
(Breyer, J., dissenting).
1214 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
769 Highly relevant in this and subsequent sections dealing with governmental
incidental restraints upon expression is the distinction the Court has drawn be-
tween content-based and content-neutral regulations—a distinction between regula-
tions that serve legitimate governmental interests and those that are imposed be-
cause of disapproval of the content of particular expression. Compare Police Dep’t of
Chicago v. Mosle, 408 U.S. 92 (1972); Erznoznik v. City of Jacksonville, 422 U.S.
205 (1975); and Schacht v. United States, 398 U.S. 58 (1970), with Greer v. Spock,
424 U.S. 828 (1976); Civil Service Commission v. National Association of Letter Car-
riers, 413 U.S. 548 (1973); and United States v. O’Brien, 391 U.S. 367 (1968). Content-
based regulations are subject to strict scrutiny, but content-neutral regulations are
subject to lesser scrutiny. See “Modern Tests and Standards: Vagueness, Overbreadth,
Strict Scrutiny, Intermediate Scrutiny, and Effectiveness of Speech Restrictions,” su-
pra.
770 19 Stat. 143, § 6, 18 U.S.C. §§ 602–03, sustained in Ex parte Curtis, 106 U.S.
773 330 U.S. 75, 94–104 (1947). The decision was 4-to-3, with Justice Frank-
furter joining the Court on the merits only after arguing that the Court lacked juris-
diction.
774 330 U.S. at 94–95.
775 330 U.S. at 101–02.
776 The Act was held unconstitutional by a divided three-judge district court.
National Ass’n of Letter Carriers v. Civil Service Comm’n, 346 F. Supp. 578 (D.D.C.
1972).
777 413 U.S. 548 (1973). In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Court
activities were (1) the interest in the efficient and fair operation of governmental
activities and the appearance of such operation, (2) the interest in fair elections,
and (3) the interest in protecting employees from improper political influences. 413
U.S. at 557–67.
779 413 U.S. at 556.
780 413 U.S. at 554, 570 n.17.
1216 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ness, plaintiffs contended and the lower court had held that the quoted
proscription was inadequate to provide sufficient guidance and that
the only further elucidation Congress had provided was in a sec-
tion stating that the forbidden activities were the same activities
that the Commission had as of 1940, and reaching back to 1883,
“determined are at the time of the passage of this act prohibited on
the part of employees . . . by the provisions of the civil-service
rules. . . .” 781 This language had been included, it was contended,
to deprive the Commission of power to alter thousands of rulings it
had made that were not available to employees and that were in
any event mutually inconsistent and too broad.
The Court held, on the contrary, that Congress had intended to
confine the Commission to the boundaries of its rulings as of 1940
but had further intended the Commission by a process of case-by-
case adjudication to flesh out the prohibition and to give content to
it. The Commission had done that. It had regularly summarized in
understandable terms the rules that it applied, and it was autho-
rized as well to issue advisory opinions to employees uncertain of
the propriety of contemplated conduct. “[T]here are limitations in
the English language with respect to being both specific and man-
ageably brief,” said the Court, but it thought the prohibitions as
elaborated in Commission regulations and rulings were “set out in
terms that the ordinary person exercising ordinary common sense
can sufficiently understand and comply with, without sacrifice to
the public interests.” 782 There were conflicts, the Court conceded,
between some of the things forbidden and some of the protected ex-
pressive activities, but these were at most marginal. Thus, some
conduct arguably protected did under some circumstances so par-
take of partisan activities as to be properly proscribable. But the
Court would not invalidate the entire statute for this degree of
overbreadth.783 Subsequently, in Bush v. Lucas 784 the Court held
that the civil service laws and regulations constitute a sufficiently
“elaborate, comprehensive scheme” to afford federal employees an
adequate remedy for deprivation of First Amendment rights as a
result of disciplinary actions by supervisors, and that therefore there
is no need to create an additional judicial remedy for the constitu-
tional violation.
The Hatch Act cases were distinguished in United States v. Na-
tional Treasury Employees Union (NTEU),785 in which the Court struck
781 413 U.S. at 570 n.17.
782 413 U.S. at 578–79.
783 413 U.S. at 580–81.
784 462 U.S. 367, 385 (1983).
785 513 U.S. 454 (1995).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1217
786 See 513 U.S. at 471. The plaintiff class consisted of all Executive Branch
employees below grade GS–16. Also covered by the ban were senior executives, Mem-
bers of Congress, and other federal officers, but the possibility of improprieties by
these groups did not justify application of the ban to “the vast rank and file of fed-
eral employees below grade GS–16.”Id. at 472.
787 513 U.S. at 477.
788 McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 2d 517 (1892).
789 Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an evenly divided
Court, 341 U.S. 918 (1951). The appeals court majority, upholding the dismissal of a
government employee against due process and First Amendment claims, asserted
that “the plain hard fact is that so far as the Constitution is concerned there is no
prohibition against the dismissal of Government employees because of their politi-
cal beliefs, activities or affiliations. . . . The First Amendment guarantees free speech
and assembly, but it does not guarantee Government employ.” Id. at 59. Although
the Supreme Court issued no opinion in Bailey, several Justices touched on the is-
sues in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). Jus-
tices Douglas and Jackson in separate opinions rejected the privilege doctrine as
applied by the lower court in Bailey. Id. at 180, 185. Justice Black had previously
rejected the doctrine in United Public Workers v. Mitchell, 330 U.S. 75, 105 (1947)
(dissenting opinion).
1218 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
790 Adler v. Board of Education, 342 U.S. 458, 492–93 (1952). Justices Douglas
and Black dissented, again rejecting the privilege doctrine. Id. at 508. Justice Frank-
furter, who dissented on other grounds, had previously rejected the doctrine in an-
other case, Garner v. Board of Public Works, 341 U.S. 716, 725 (1951) (concurring in
part and dissenting in part).
791 Wieman v. Updegraff, 344 U.S. 183, 190–91, 192 (1952). Some earlier cases
had used a somewhat qualified statement of the privilege. United Public Workers v.
Mitchell, 330 U.S. 75, 100 (1947); Garner v. Board of Public Works, 341 U.S. 716,
722 (1951).
792 Perry v. Sindermann, 408 U.S. 593, 597 (1972) (citation omitted). In a com-
panion case, the Court noted that the privilege basis for the appeals court’s due pro-
cess holding in Bailey “has been thoroughly undermined in the ensuing years.” Board
of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). The test now in due process and
other such cases is whether government has conferred a property right in employ-
ment which it must respect, but the inquiry when it is alleged that an employee
has been penalized for the assertion of a constitutional right is that stated in the
text. A finding, however, that protected expression or conduct played a substantial
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1219
However, the fact that government does not have carte blanche
in dealing with the constitutional rights of its employees does not
mean that it has no power at all. “[I]t cannot be gainsaid,” the Court
said in Pickering v. Board of Education, “that the State has inter-
ests as an employer in regulating the speech of its employees that
differ significantly from those it possesses in connection with regu-
lation of the speech of the citizenry in general.” 793 Pickering con-
cerned the dismissal of a high school teacher who had written a
critical letter to a local newspaper reflecting on the administration
of the school system. The letter also contained several factual er-
rors. “The problem in any case,” Justice Marshall wrote for the Court,
“is to arrive at a balance between the interests of the teacher, as a
citizen, in commenting upon matters of public concern and the in-
terest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.” 794 The Court
laid down no general standard, but undertook a suggestive analy-
sis. Dismissal of a public employee for criticism of his superiors was
improper, the Court indicated, where the relationship of employee
to superior was not so close, such as day-to-day personal contact,
that problems of discipline or of harmony among coworkers, or prob-
lems of personal loyalty and confidence, would arise.795 The school
board had not shown that any harm had resulted from the false
statements in the letter, and it could not proceed on the assump-
tion that the false statements were per se harmful, inasmuch as
the statements primarily reflected a difference of opinion between
the teacher and the board about the allocation of funds. Moreover,
the allocation of funds is a matter of important public concern about
which teachers have informed and definite opinions that the com-
munity should be aware of. “In these circumstances we conclude
that the interest of the school administration in limiting teachers’
opportunities to contribute to public debate is not significantly greater
part in the decision to dismiss or punish does not conclude the case; the employer
may show by a preponderance of the evidence that the same decision would have
been reached in the absence of the protected expression or conduct. Mt. Healthy
City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Givhan v. Western Line Consol.
Sch. Dist., 439 U.S. 410, 416 (1979). See Amendment 14, “The Property Interest,”
infra.
793 391 U.S. 563, 568 (1968).
794 391 U.S. at 568.
795 391 U.S. at 568–70. Contrast Connick v. Myers, 461 U.S. 138 (1983), where
Pickering was distinguished on the basis that the employee, an assistant district
attorney, worked in an environment where a close personal relationship involving
loyalty and harmony was important. “When close working relationships are essen-
tial to fulfilling public responsibilities, a wide degree of deference to the employer’s
judgment is appropriate.” Id. at 151–52.
1220 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
employee’s views to the employer in Givhan v. Western Line Consol. Sch. Dist., 439
U.S. 410 (1979), although the Court recognized that different considerations might
arise in different contexts. That is, with respect to public speech, content may be
determinative in weighing impairment of the government’s interests, whereas, with
private speech, as “[w]hen a government employee personally confronts his immedi-
ate superior, . . . the manner, time, and place in which it is delivered” may also be
relevant. Id. at 415 n.4. As discussed below, however, in Garcetti v. Ceballos, 547
U.S. 410 (2006), the Court held that there is no First Amendment protection at all
for government employees when they make statements pursuant to their official du-
ties.
797 416 U.S. 134 (1974). The quoted language is from 5 U.S.C. § 7501(a).
798 Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 578–79
(1973).
799 Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974).
800 416 U.S. at 162. In dissent, Justice Marshall argued: “The Court’s answer is
admittedly relevant in balancing interests, into the threshold issue of public con-
cern.
804 461 U.S. at 151–52.
805 461 U.S. at 150. The Court explained that “a stronger showing [of interfer-
ence with governmental interests] may be necessary if the employee’s speech more
substantially involve[s] matters of public concern.” Id. at 152.
806 This conclusion was implicit in Givhan, 439 U.S. 410 (1979), characterized
ion of the Court being joined by Justices Brennan, Blackmun, Powell, and Stevens,
and with Justice Scalia’s dissent being joined by Chief Justice Rehnquist and by
Justices White and O’Connor. Justice Powell added a separate concurring opinion.
1222 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
tact role, the danger to the agency’s successful function from that employee’s pri-
vate speech is minimal.” 483 U.S. at 390–91.
809 543 U.S. 77 (2004) (per curiam).
810 543 U.S. at 84.
811 513 U.S. 454 (1995) (discussed under “Government as Employer: Political and
duties, the employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate their commu-
nications from employer discipline.” 815 The fact that the employee’s
speech occurred inside his office, and the fact that the speech con-
cerned the subject matter of his employment, were not sufficient to
foreclose First Amendment protection.816 Rather, the “controlling fac-
tor” was “that his expressions were made pursuant to his du-
ties.” 817 Therefore, another employee in the office, with different du-
ties, might have had a First Amendment right to utter the speech
in question, and the deputy district attorney himself might have
had a First Amendment right to communicate the information that
he had in a letter to the editor of a newspaper. In these two in-
stances, a court would apply Pickering balancing.
In distinguishing between wholly unprotected “employee speech”
and quasi-protected “citizen speech,” sworn testimony outside of the
scope of a public employee’s ordinary job duties appears to be “citi-
zen speech.” In Lane v. Franks,818 the director of a state govern-
ment program for underprivileged youth was terminated from his
job following his testimony regarding the alleged fraudulent activi-
ties of a state legislator that occurred during the legislator’s employ-
ment in the government program. The employee challenged the ter-
mination on First Amendment grounds. The Court held generally
that testimony by a subpoenaed public employee made outside the
scope of his ordinary job duties is to be treated as speech by a citi-
zen, subject to the Pickering-Connick balancing test.819 The Court
noted that “[s]worn testimony in judicial proceedings is a quintes-
sential example of speech as a citizen for a simple reason: Anyone
who testifies in court bears an obligation to the court and society
at large, to tell the truth.” 820 In so holding, the Court confirmed
that Garcetti‘s holding is limited to speech made in accordance with
815 547 U.S. at 421. However, “[s]o long as employees are speaking as citizens
about matters of public concern, they must face only those speech restrictions that
are necessary for their employers to operate efficiently and effectively.” Id. at 419.
Such necessity, however, may be based on a “common-sense conclusion” rather than
on “empirical data.” Tennessee Secondary School Athletic Ass’n v. Brentwood Acad-
emy, 551 U.S. 291, 300 (2007) (citing Garcetti).
816 The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979),
for these points. In Givhan, the Court had upheld the First Amendment right of a
public school teacher to complain to the school principal about “employment policies
and practices at [the] school which [she] conceived to be racially discriminatory in
purpose or effect.” Id. at 413. The difference between Givhan and Ceballos was ap-
parently that Givhan’s complaints were not made pursuant to her job duties, whereas
Ceballos’ were. Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a
government employee. See Ceballos, 547 U.S. at 420–21.
817 547 U.S. at 421.
818 573 U.S. ___, No. 13–483, slip op. (2014).
819 Id. at 9.
820 Id.
1224 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
an employee’s official job duties and does not extend to speech that
merely concerns information learned during that employment.
The Court in Lane ultimately found that the plaintiff ’s speech
deserved protection under the Pickering-Connick balancing test be-
cause the speech was both a matter of public concern (the speech
was testimony about misuse of public funds) and the testimony did
not raise concerns for the government employer.821 After Lane, some
question remains about the scope of protection for public employ-
ees, such as police officers or official representatives of an agency
of government, who testify pursuant to their official job duties, and
whether such speech falls within the scope of Garcetti.
The protections applicable to government employees have been
extended to independent government contractors, the Court announc-
ing that “the Pickering balancing test, adjusted to weigh the govern-
ment’s interests as contractor rather than as employer, determines
the extent of their protection.” 822
In sum, although a public employer may not muzzle its employ-
ees or penalize them for their expressions and associations to the
same extent that a private employer can,823 the public employer none-
theless has broad leeway in restricting employee speech. If the em-
ployee speech does not relate to a matter of “public concern,” then
Connick applies and the employer is largely free of constitutional
821 Id. at 12–13.The Court, however, held that because no relevant precedent in
the lower court or in the Supreme Court clearly established that the government
employer could not fire an employee because of testimony the employee gave, the
defendant was entitled to qualified immunity. Id. at 13–17.
822 Board of County Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996). See also O’Hare
Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 715 (1996) (government may
not “retaliate[ ] against a contractor, or a regular provider of services, for the exer-
cise of rights of political association or the expression of political allegiance”).
823 See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S.
507 (1980) (political patronage systems impermissibly infringe protected belief and
associational rights of employees); Madison School Dist. v. WERC, 429 U.S. 167 (1977)
(school teacher may not be prevented from speaking at a public meeting in opposi-
tion to position advanced by union with exclusive representation rights). The public
employer may, as may private employers, permit collective bargaining and confer on
representatives of its employees the right of exclusive representation, Abood v. De-
troit Bd. of Educ., 431 U.S. 209, 223–32 (1977), but the fact that its employees may
speak does not compel government to listen to them. See Smith v. Arkansas State
Highway Employees, 441 U.S. 463 (1979) (employees have right to associate to pres-
ent their positions to their employer but employer not constitutionally required to
engage in collective bargaining). See also Minnesota State Bd. for Community Col-
leges v. Knight, 465 U.S. 271 (1984) (public employees not members of union have
no First Amendment right to meet separately with public employers compelled by
state law to “meet and confer” with exclusive bargaining representative). Govern-
ment may also inquire into the fitness of its employees and potential employees, but
it must do so in a manner that does not needlessly endanger the expression and
associational rights of those persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1225
824 In Connick, the Court noted that it did not suggest “that Myers’ speech, even
if not touching upon a matter of public concern, is totally beyond the protection of
the First Amendment.” Rather, it was beyond First Amendment protection “absent
the most unusual of circumstances.” 461 U.S. at 147. In Ceballos, however, the Court,
citing Connick at 147, wrote that, if an employee did not speak as a citizen on a
matter of public concern, then “the employee has no First Amendment cause of ac-
tion based on his or her employer’s reaction to the speech.” 547 U.S. at 418.
825 In some contexts, the governmental interest is more far-reaching. See Snepp
v. United States, 444 U.S. 507, 509 n.3 (1980) (interest in protecting secrecy of for-
eign intelligence sources).
826 For analysis of efforts of lower courts to apply Pickering and Connick, see
salute); Meyer v. Nebraska, 262 U.S. 390 (1923) (limitation of language curriculum
to English); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (compulsory school at-
tendance in public rather than choice of public or private schools).
829 In re Gault, 387 U.S. 1 (1967). Of course, children are in some respects sub-
ject to restrictions that could not constitutionally be applied to adults. E.g., Ginsberg
v. New York, 390 U.S. 629 (1968) (access to material deemed “harmful to minors,”
although not obscene as to adults).
830 393 U.S. 503 (1969).
831 393 U.S. at 506, 507.
832 393 U.S. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966).
See also Papish v. Board of Curators, 410 U.S. 667 (1973) (state university could not
expel a student for using “indecent speech” in campus newspaper). However, offen-
sive “indecent” speech in the context of a high school assembly is punishable by school
authorities. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (uphold-
ing 2-day suspension, and withdrawal of privilege of speaking at graduation, for stu-
dent who used sophomoric sexual metaphor in speech given to school assembly).
833 408 U.S. 169 (1972).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1227
does not violate the Establishment Clause, and, even if the Missouri Constitution
“has gone further than the Federal Constitution in proscribing indirect state sup-
port for religion, . . . the state interest asserted here—in achieving greater separa-
tion of church and State than is already ensured under the Establishment Clause of
the Federal Constitution—is limited by the Free Exercise Clause and in this case
by the Free Speech Clause as well.” Id. at 275–276.
1228 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
837 454 U.S. at 274 n.14; see Brandon v. Board of Education, 635 F.2d 971 (2d
Stat. 1302, 20 U.S.C. §§ 4071–74, Congress applied the same “limited open [public]
forum” principles to public high schools, and the Court upheld the Act against First
Amendment challenge. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226
(1990).
839 Christian Legal Society v. Martinez, 561 U.S. ___, No. 08–1371, slip op. (2010).
The Court did not address the more difficult question raised by the school’s written
policy, which forbade discrimination, among other things, based on religion or sexual
orientation, because the parties stipulated that in practice student groups were re-
quired to accept all students who complied with neutral membership requirements
(e.g., payment of dues). Id. at 11–12. Thus, the Court did not address whether the
application of the narrower written anti-discrimination policies constituted view-
point discrimination against a student group that required its members to adhere
to its religious tenets, including the belief that sexual activity should only occur in
the context of marriage between a man and a woman. Id. at 21–23 (Alito, J., dissent-
ing).
840 Board of Education v. Pico, 457 U.S. 853 (1982).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1229
at 885 (Chief Justice Burger), 893 (Justice Powell), 921 (Justice O’Connor).
843 484 U.S. 260 (1988).
844 484 U.S. at 273.
845 484 U.S. at 270–71.
846 484 U.S. at 270.
847 484 U.S. at 271. Selection of materials for school libraries may fall within
this broad category, depending upon what is meant by “designed to impart particu-
1230 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
Access Act; in this context the Court seemed to step back from Kuhlmeier’s broad
concept of curriculum-relatedness, seeing no constitutionally significant danger of
perceived school sponsorship of religion arising from application of the Act’s require-
ment that high schools provide meeting space for student religious groups on the
same basis that they provide such space for student clubs. Westside Community Bd.
of Educ. v. Mergens, 496 U.S. 226 (1990).
850 127 S. Ct. 2618 (2007).
851 127 S. Ct. at 2624.
852 127 S. Ct. at 2625.
853 127 S. Ct. at 2636.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1231
424 U.S. 1, 14, 19 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765,
776–78 (1978); Brown v. Hartlage, 456 U.S. 45, 52–54 (1982).
857 See Republican Party of Minn. v. White, 536 U.S. 765 (2002). In the only
case post-White concerning speech restrictions on candidates for judicial office, how-
ever, the Court in Williams-Yulee v. Florida Bar, upheld a more narrow restriction
on candidate speech. See 575 U.S. ___, No. 13–1499, slip op. (2015). The Williams-
Yulee Court held that a provision within Florida’s Code of Judicial Conduct that pro-
hibited judicial candidates from personally soliciting campaign funds served a com-
pelling interest in preserving public confidence in the judiciary through a means
that was “narrowly tailored to avoid unnecessarily abridging speech.” Id. at 8–9.
858 Brown v. Hartlage, 456 U.S. 45 (1982). See also Mills v. Alabama, 384 U.S.
214 (1966) (setting aside a conviction and voiding a statute that punished election-
eering or solicitation of votes for or against any proposition on the day of the elec-
tion, applied to publication of a newspaper editorial on election day supporting an
issue on the ballot); Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975) (three-
judge court), aff’d, 423 U.S. 1041 (1976) (statute barring malicious, scurrilous, and
false and misleading campaign literature is unconstitutionally overbroad).
1232 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
859 Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989).
Cf. Burson v. Freeman, 504 U.S. 191 (1992) (upholding Tennessee law prohibiting
solicitation of votes and distribution of campaign literature within 100 feet of the
entrance to a polling place; plurality found a “compelling” interest in preventing voter
intimidation and election fraud).
860 Timmons v. Twin City Area New Party, 520 U.S. 351 (1997).
861 520 U.S. at 538 (internal quotation marks omitted).
862 520 U.S. at 369–70.
863 424 U.S. 1 (1976).
864 The Court’s lengthy opinion was denominated per curiam, but five Justices
struck down the contribution limitations. Id. at 235, 241–46, 290. See also Califor-
nia Medical Ass’n v. FEC, 453 U.S. 182 (1981), sustaining a provision barring indi-
viduals and unincorporated associations from contributing more than $5,000 per year
to any multicandidate political action committee, on the basis of the standards ap-
plied to contributions in Buckley; and FEC v. National Right to Work Comm., 459
U.S. 197 (1982), sustaining a provision barring nonstock corporations from solicit-
ing contributions from persons other than their members when the corporation uses
the funds for designated federal election purposes.
1234 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
dissenting opinion joined by Justices Souter, Ginsburg, and Breyer, found that the
Millionaire’s Amendment does not cause self-funding candidates “any First Amend-
ment injury whatsoever. The Millionaire’s Amendment quiets no speech at all. On
the contrary, it does no more than assist the opponent of a self-funding candidate in
his attempts to make his voice heard. . . . Enhancing the speech of the millionaire’s
opponent, far from contravening the First Amendment, actually advances its core
principles.” Id. at 2780.
877 128 S. Ct. at 2773–74. The Court also struck down the disclosure require-
ments in § 319(b) of BCRA because they “were designed to implement the asymmetri-
cal contribution limits provided for in § 319(a), and . . . § 319(a) violates the First
Amendment.” Id. at 2775.
1236 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
739.
881 Slip op. 10–11 (Kagan, J., dissenting).
882 Slip op. at 17.
883 424 U.S. at 64, 66. See also Amendment I, “Political Association,” supra.
884 424 U.S. at 66, 67, 68.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1237
of this case to find that a legislator’s vote was a form of expression protected by the
First Amendment. Nevada Comm’n on Ethics v. Carrigan, 564 U.S. ___, No. 10–568,
slip op. (2011) (upholding law prohibiting legislator with a conflict of interest from
voting on a proposal or advocating its passage or failure).
890 Reed, No. 09–559, slip op. at 7. Five Justices joined the majority opinion writ-
ten by Chief Justice Roberts—Justices Kennedy, Ginsburg, Breyer, Alito and Sotomayor.
One might question, however, what level of scrutiny Justice Breyer would support,
since he also joined a concurrence by Justice Stevens, which suggested that the dis-
closure of the name and addresses on the petitions is not “a regulation of pure speech,”
and consequently should be subjected to a lesser standard of review. Slip op. at 1
(Stevens, J., concurring in part and in judgment). Justice Breyer, in his own concur-
rence, suggests that “in practice [the standard articulated in both the majority and
Justice Steven’s concurrence] has meant asking whether the statute burdens any
one such interest in a manner out of proportion to the statute’s salutary effects upon
the others.” Slip op. at 1 (Breyer, J., concurring). Justice Scalia, on the other hand,
questioned whether “signing a petition that has the effect of suspending a law fits
within ‘freedom of speech’ at all.” Slip op. at 1 (Scalia, J., concurring in judgement).
1238 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
Kennedy and Alito. Justice Thomas, concurring in the judgment, declined to join
the reasoning of the plurality, arguing that, to the extent that Buckley afforded a
lesser standard of review to restrictions on contributions than to expenditures, it
should be overruled.
900 The Court declined to revisit the differing standards between contributions
and expenditures established in Buckley, holding that the issue in question, aggre-
gate spending limits, did not meet the demands of either test. 572 U.S. ___, slip op.
at 10.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1239
901 In 2014, these aggregate limits capped total contributions per election cycle
to $48,600 to all federal candidates and $74,600 to all other political committees, of
which only $48,600 could be contributed to state or local party committees and PACs.
2 U.S.C. § 441a(a)(3) (2012); 78 Fed. Reg. 8,532 (Feb. 6, 2013).
902 572 U.S. ___, No. 12–536, slip op. at 19.
903 Id. at 15.
904 Id. at 21–22.
905 Id. at 21–30.
906 Id. at 30.
907 Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1980). It is
not clear from the opinion whether the Court was applying a contribution or an ex-
penditure analysis to the ordinance, see id. at 301 (Justice Marshall concurring), or
whether it makes any difference in this context.
1240 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
908 Meyer v. Grant, 486 U.S. 414 (1988). The Court subsequently struck down a
senting, Justices White, Brennan, and Marshall argued that while corporations were
entitled to First Amendment protection, they were subject to more regulation than
were individuals, and substantial state interests supported the restrictions. Id. at
802. Justice Rehnquist went further in dissent, finding no corporate constitutional
protection. Id. at 822.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1241
tory interpretation, apparently informed with some constitutional doubts. United States
v. CIO, 335 U.S. 106 (1948); United States v. United Automobile Workers, 352 U.S.
567 (1957); Pipefitters v. United States, 407 U.S. 385 (1972).
912 Bellotti, 435 U.S. at 811–12 (Justice White dissenting). The majority opin-
ion, however, saw several distinctions between the federal law and the law at issue
in Bellotti. The Court emphasized that Bellotti was a referendum case, not a case
involving corporate expenditures in the context of partisan candidate elections, in
which the problem of corruption of elected representatives was a weighty problem.
“Congress might well be able to demonstrate the existence of a danger of real or
apparent corruption in independent expenditures by corporations to influence candi-
date elections.” Id. at 787–88 & n.26.
913 558 U.S. ___, No. 08–205, slip op. (2010).
914 459 U.S. 197 (1982).
915 459 U.S. at 210–11.
916 479 U.S. 238 (1986). Justice Brennan’s opinion for the Court was joined by
Justices Marshall, Powell, O’Connor, and Scalia; Chief Justice Rehnquist, author of
the Court’s opinion in National Right to Work Comm., dissented from the constitu-
tional ruling, and was joined by Justices White, Blackmun, and Stevens.
1242 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
between the two organizations, NRWC and MCFL; Chief Justice Rehnquist’s dis-
sent suggested that there was not. See 479 U.S. at 266.
920 494 U.S. 652 (1990).
921 Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) Austin
found the law helped prevent “the corrosive and distorting effects of immense aggre-
gations 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.”
494 U.S. at 660.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1243
cal views.” 922 Also, the Court concluded that the Chamber of Com-
merce was unlike the MCFL in each of the three distinguishing fea-
tures that had justified an exemption from operation of the federal
law. Unlike MCFL, the Chamber was not organized solely to pro-
mote political ideas; although it had no stockholders, the Cham-
ber’s members had similar disincentives to forgo benefits of mem-
bership in order to protest the Chamber’s political expression; and,
by accepting corporate contributions, the Chamber could serve as a
conduit for corporations to circumvent prohibitions on direct corpo-
rate contributions and expenditures.923
In FEC v. Beaumont,924 the Court held that the federal law that
bars corporations from contributing directly to candidates for fed-
eral office, but allows contributions though PACs, may constitution-
ally be applied to nonprofit advocacy corporations. The Court in Beau-
mont wrote that, in National Right to Work, it had “specifically rejected
the argument . . . that deference to congressional judgments about
proper limits on corporate contributions turns on details of corpo-
rate form or the affluence of particular corporations.” 925 Though non-
profit advocacy corporations, the Court held in Massachusetts Citi-
zens for Life, have a First Amendment right to make independent
expenditures, the same is not true for direct contributions to candi-
dates.
In McConnell v. FEC,926 the Court upheld against facial consti-
tutional challenges key provisions of the Bipartisan Campaign Re-
form Act of 2002 (BCRA). A majority opinion coauthored by Jus-
tices Stevens and O’Connor upheld two major provisions of BCRA:
(1) the prohibition on “national party committees and their agents
from soliciting, receiving, directing, or spending any soft money,” 927
which is money donated for the purpose of influencing state or lo-
cal elections, or money for “mixed-purpose activities—including get-
out-the-vote drives and generic party advertising,” 928 and (2) the
prohibition on corporations and labor unions’ using funds in their
treasuries to finance “electioneering communications,” 929 which BCRA
defines as “any broadcast, cable, or satellite communication” that
“refers to a clearly identified candidate for Federal Office,” made
within 60 days before a general election or 30 days before a pri-
dorsed by the Court in McConnell, which stated that “[t]he justifications for the regu-
lation of express advocacy apply equally to ads aired during those periods if the ads
are intended to influence the voters’ decisions and have that effect.” 540 U.S. at 206.
While acknowledging that an evaluation of the “intent and effect” had been relevant
to the rejection of a facial challenge, Chief Justice Roberts’ opinion in WRTL II de-
nied that such a standard had been endorsed for as-applied challenges. 127 S. Ct.
at 2664–66.
941 127 S. Ct. at 2667.
942 558 U.S. ___, No. 08–205, slip op. (2010).
943 See Buckley, 424 U.S. at 49 (First Amendment’s protections do not depend
ditures, including those made by corporations, do not give rise to corruption or the
appearance of corruption.”, slip op. at 42. The State of Montana had had a long-
standing bar on independent political expenditures by corporations founded on a re-
cord that those expenditures in fact could lead to corruption or the appearance of
corruption. In a per curiam opinion, with four justices dissenting, the Court struck
down the Montana law as contrary to Citizens United. American Tradition Partner-
ship, Inc. v. Bullock, 567 U.S. ___, No. 11–1179, slip op. (2012).
945 Slip. op. at 35–37.
946 558 U.S. ___, slip op. at 21. For example, a PAC must appoint a treasurer,
keep detailed records of persons making donations, preserve receipts for three years,
must report changes to its organizational statement within 10 days, and must file
detailed monthly reports with the FEC. Id.
947 For instance, while the Court in National Right to Work allowed restrictions
on corporate solicitation of other corporations for PAC funds, the Court might be
disinclined to allow restrictions on corporations soliciting other corporations for funds
to use for direct independent expenditures.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1247
Chief Justice Roberts joining it in full. Justice Alito joined the opinion as to the
contribution limitations but not as to the expenditure limitations. Justice Alito and
three other Justices concurred in the judgment as to the limitations on both expen-
ditures and contributions, and three Justices dissented.
950 548 U.S. at 248 (citation omitted).
951 Although, as here, limits on contributions may be so low as to violate the
dollars (i.e., adjusting for inflation),” they were lower still. Id. at 250.
953 548 U.S. at 253.
1248 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
633. They thought the Court’s interpretation too narrow and would have struck the
statute down as being too broad and too vague, but would not have denied Congress
the power to enact narrow legislation to get at the substantial evils of the situation.
See also United States v. Rumely, 345 U.S. 41 (1953).
959 Cammarano v. United States, 358 U.S. 498 (1959).
960 Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961).
Justices Stewart and Brennan thought that joining to induce administrative and
judicial action was as protected as the concert in Noerr but concurred in the result
because the complaint could be read as alleging that defendants had sought to fore-
stall access to agencies and courts by plaintiffs. Id. at 516.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1249
Railway Employees Dep’t v. Hanson, 351 U.S. 225 (1956); International Ass’n of Ma-
chinists v. Street, 367 U.S. 740 (1961); see also Abood v. Detroit Bd. of Educ., 431
U.S. 209 (1977) (public employees), restrictions on picketing and publicity cam-
paigns, Babbitt v. United Farm Workers, 442 U.S. 289 (1979), and application of
collective bargaining laws in sensitive areas, NLRB v. Yeshiva Univ., 444 U.S. 672
(1980) (faculty collective bargaining in private universities); NLRB v. Catholic Bishop,
440 U.S. 490 (1979) (collective bargaining in religious schools).
963 NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941).
964 61 Stat. 142, § 8(c) (1947), 29 U.S.C. § 158(c).
965 Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 616–20 (1969).
966 8 J. WIGMORE, EVIDENCE 2192 (3d ed. 1940). See Blair v. United States, 250
U.S. 273, 281 (1919); United States v. Bryan, 339 U.S. 323, 331 (1950).
967 408 U.S. 665 (1972). “The claim is, however, that reporters are exempt from
these obligations because if forced to respond to subpoenas and identify their sources
or disclose other confidences, their informants will refuse or be reluctant to furnish
newsworthy information in the future. This asserted burden on news gathering is
said to make compelled testimony from newsmen constitutionally suspect and to re-
quire a privileged position for them.” Id. at 682.
1250 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
the Court’s opinion. Justice Powell, despite having joined the majority opinion, also
submitted a concurring opinion in which he suggested a privilege might be avail-
able if, in a particular case, “the newsman is called upon to give information bear-
ing only a remote and tenuous relationship to the subject of the investigation, or if
he has some other reason to believe that his testimony implicates confidential source
relationships without a legitimate need of law enforcement.” 408 U.S. at 710. Jus-
tice Stewart’s dissenting opinion in Branzburg referred to Justice Powell’s concur-
ring opinion as “enigmatic.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, “Though
providing the majority’s essential fifth vote, he [Powell] wrote separately to outline
a ‘case-by-case’ approach that fits uncomfortably, to say the least, with the Branzburg
majority’s categorical rejection of the reporters’ claims.” In re: Grand Jury Sub-
poena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (cita-
tion omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005 (Tatel, J., con-
curring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438
F.3d 1141 (D.C. Cir. 2006).
“[C]ourts in almost every circuit around the country interpreted Justice Pow-
ell’s concurrence, along with parts of the Court’s opinion, to create a balancing test
when faced with compulsory process for press testimony and documents outside the
grand jury context.” Association of the Bar of the City of New York, The Federal
Common Law of Journalists’ Privilege: A Position Paper (2005) at 4–5
[http://www.abcny.org/pdf/report/White%20paper%20on%20reporters%20privilege.pdf]
(citing examples).
970 408 U.S. at 706.
971 The 33rd state statute enacted was the State of Washington’s, which took
effect on July 22, 2007. See the website of the Reporters Committee for Freedom of
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1251
the Press for information on the state laws. The greatest difficulty these laws expe-
rience is the possibility of a constitutional conflict with the Fifth and Sixth Amend-
ment rights of criminal defendants. See Matter of Farber, 78 N.J. 259, 394 A.2d 330,
cert. denied sub nom. New York Times v. New Jersey, 439 U.S. 997 (1978). See also
New York Times v. Jascalevich, 439 U.S. 1301, 1304, 1331 (1978) (applications to
Circuit Justices for stay), and id. at 886 (vacating stay).
972 Rule 501 also provides that, in civil actions and proceedings brought in fed-
eral court under state law, the availability of a privilege shall be determined in ac-
cordance with state law.
973 See, e.g., In re: Grand Jury Subpoena. Judith Miller, 397 F.3d 964, 972 (D.C.
Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405
F.3d 17 (D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005),
reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Ap-
peals for the District of Columbia “is not of one mind on the existence of a common
law privilege”).
974 Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978). Justice Powell thought
it appropriate that “a magistrate asked to issue a warrant for the search of press
offices can and should take cognizance of the independent values protected by the
First Amendment” when he assesses the reasonableness of a warrant in light of all
the circumstances. Id. at 568 (concurring). Justices Stewart and Marshall would have
imposed special restrictions upon searches when the press was the object, id. at 570
(dissenting), and Justice Stevens dissented on Fourth Amendment grounds. Id. at
577.
975 Congress enacted the Privacy Protection Act of 1980, Pub. L. 96–440, 94 Stat.
1879, 42 U.S.C. § 2000aa, to protect the press and other persons having material
intended for publication from federal or state searches in specified circumstances,
and creating damage remedies for violations.
1252 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
rules restricting extrajudicial comments by attorneys are void for vagueness, but such
attorney speech may be regulated if it creates a “substantial likelihood of material
prejudice” to the trial of a client); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)
(press, as party to action, restrained from publishing information obtained through
discovery).
980 Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
981 DePasquale rested solely on the Sixth Amendment, the Court reserving judg-
ment on whether there is a First Amendment right of public access. 443 U.S. at
392.
982 448 U.S. 555 (1980). The decision was 7 to 1, with Justice Rehnquist dissent-
ing, id. at 604, and Justice Powell not participating. Justice Powell, however, had
taken the view in Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (concurring),
that the First Amendment did protect access to trials.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1253
vens concurring).
984 448 U.S. at 564–69. The emphasis on experience and history was repeated
by the Chief Justice in his opinion for the Court in Press-Enterprise Co. v. Superior
Court, 478 U.S. 1 (1986) (Press-Enterprise II).
985 448 U.S. at 587–88 (emphasis in original, citations omitted).
986 457 U.S. 596 (1982). Joining Justice Brennan’s opinion of the Court were
Justices White, Marshall, Blackmun, and Powell. Justice O’Connor concurred in the
judgment. Chief Justice Burger, with Justice Rehnquist, dissented, arguing that the
tradition of openness that underlay Richmond Newspapers, was absent with respect
1254 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
lic and the press from trials during the testimony of a sex-crime
victim under the age of 18. For the Court, Justice Brennan wrote
that the First Amendment guarantees press and public access to
criminal trials, both because of the tradition of openness 987 and be-
cause public scrutiny of a criminal trial serves the valuable func-
tions of enhancing the quality and safeguards of the integrity of
the factfinding process, of fostering the appearance of fairness, and
of permitting public participation in the judicial process. The right
is not absolute, but in order to close all or part of a trial govern-
ment must show that “the denial is necessitated by a compelling
governmental interest, and [that it] is narrowly tailored to serve
that interest.” 988 The Court was explicit that the right of access
was to criminal trials,989 so that the question of the openness of
civil trials remains.
The Court next applied and extended the right of access in sev-
eral other areas, striking down state efforts to exclude the public
from voir dire proceedings, from a suppression hearing, and from a
preliminary hearing. The Court determined in Press-Enterprise I 990
that historically voir dire had been open to the public, and that “[t]he
presumption of openness may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” 991 No such
findings had been made by the state court, which had ordered closed,
in the interest of protecting the privacy interests of some prospec-
tive jurors, 41 of the 44 days of voir dire in a rape-murder case.
The trial court also had not considered the possibility of less restric-
tive alternatives, e.g., in camera consideration of jurors’ requests for
protection from publicity. In Waller v. Georgia,992 the Court held that
“under the Sixth Amendment any closure of a suppression hearing
over the objections of the accused must meet the tests set out in
to sex crimes and youthful victims and that Richmond Newspapers was unjustifi-
ably extended. Id. at 612. Justice Stevens dissented on the ground of mootness. Id.
at 620.
987 That there was no tradition of openness with respect to the testimony of mi-
nor victims of sex crimes was irrelevant, the Court argued. As a general matter, all
criminal trials have been open. The presumption of openness thus attaches to all
criminal trials and to close any particular kind or part of one because of a particu-
lar reason requires justification on the basis of the governmental interest asserted.
457 U.S. at 605 n.13.
988 457 U.S. at 606–07. Protecting the well-being of minor victims was a compel-
ling interest, the Court held, and might justify exclusion in specific cases, but it did
not justify a mandatory closure rule. The other asserted interest—encouraging mi-
nors to come forward and report sex crimes—was not well served by the statute.
989 The Court throughout the opinion identifies the right as access to criminal
trials, even italicizing the words at one point. 457 U.S. at 605.
990 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984).
991 464 U.S. at 510.
992 467 U.S. 39 (1984).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1255
Press Enterprise,” 993 and noted that the need for openness at sup-
pression hearings “may be particularly strong” because the conduct
of police and prosecutor is often at issue.994 And, in Press Enter-
prise II,995 the Court held that there is a similar First Amendment
right of the public to access to most criminal proceedings (here a
preliminary hearing) even when the accused requests that the pro-
ceedings be closed. Thus, an accused’s Sixth Amendment-based re-
quest for closure must meet the same stringent test applied to gov-
ernmental requests to close proceedings: there must be “specific
findings . . . demonstrating that first, there is a substantial prob-
ability that the defendant’s right to a fair trial will be prejudiced
by publicity that closure would prevent, and second, reasonable al-
ternatives to closure cannot adequately protect the defendant’s fair
trial rights.” 996 Openness of preliminary hearings was deemed im-
portant because, under California law, the hearings can be “the fi-
nal and most important step in the criminal proceeding” and there-
fore may be “the sole occasion for public observation of the criminal
justice system,” and also because the safeguard of a jury is unavail-
able at preliminary hearings.997
Government as Administrator of Prisons.—A prison inmate
retains only those First Amendment rights that are not inconsis-
tent with his status as a prisoner or with the legitimate penologi-
cal objectives of the corrections system.998 The identifiable govern-
mental interests at stake in administration of prisons are the
preservation of internal order and discipline, the maintenance of
institutional security against escape or unauthorized entry, and the
rehabilitation of the prisoners.999 In applying these general stan-
dards, the Court at first arrived at somewhat divergent points in
993 Gannett Co. v. DePasquale, 443 U.S. 368 (1979), did not involve assertion by
the accused of his 6th Amendment right to a public trial; instead, the accused in
that case had requested closure. “[T]he constitutional guarantee of a public trial is
for the benefit of the defendant.” Id. at 381.
994 467 U.S. at 47.
995 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
996 478 U.S. at 14.
997 478 U.S. at 12.
998 Pell v. Procunier, 417 U.S. 817, 822 (1974).In a related, but distinct context,
however, state laws that restrict the First Amendment rights of former prisoners
that are still under the supervision of the state appear to be subject to strict scru-
tiny. For example, in Packingham v. North Carolina, the Court struck down a North
Carolina law making it a felony for registered sex offenders to use commercial so-
cial networking websites that allow minor children to be members, such as Facebook.
582 U.S. ___, No. 15–1194, slip op. (2017). The Court held that the North Carolina
law impermissibly restricted lawful speech because it was not narrowly tailored to
serve the significant government interest in protecting minors from registered sex
offenders. Id. at 8 (holding that it was “unsettling to suggest that only a limited set
of websites can be used even by persons who have completed their sentences.”).
999 Procunier v. Martinez, 416 U.S. 396, 412 (1974).
1256 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
U.S. 119 (1977), in which the Court sustained prison regulations barring solicitation
of prisoners by other prisoners to join a union, banning union meetings, and deny-
ing bulk mailings concerning the union from outside sources. The reasonable fears
of correctional officers that organizational activities of the sort advocated by the union
could impair discipline and lead to possible disorders justified the regulations.
1001 416 U.S. at 396.
1002 482 U.S. 78 (1987).
1003 482 U.S. at 89. In Overton v. Bazzetta, 539 U.S. 126 (2003), the Court ap-
mental interest put forward to justify it? Second, are there alterna-
tive means of exercising the right that remain open to prison in-
mates? Third, what impact will accommodation of the asserted
constitutional right . . . have on guards and other inmates, and on
the allocation of prison resources generally? And, fourth, are ready
alternatives for furthering the governmental interest avail-
able?” 1005 Two years after Turner v. Safley, in Thornburgh v. Ab-
bott, the Court restricted Procunier v. Martinez to the regulation of
outgoing correspondence, finding that the needs of prison security
justify a more deferential standard for prison regulations restrict-
ing incoming material, whether those incoming materials are corre-
spondence from other prisoners, correspondence from nonprisoners,
or outside publications.1006
In Beard v. Banks, a plurality of the Supreme Court upheld “a
Pennsylvania prison policy that ‘denies newspapers, magazines, and
photographs’ to a group of specially dangerous and recalcitrant in-
mates.” 1007 These inmates were housed in Pennsylvania’s Long Term
Segregation Unit and one of the prison’s penological rationales for
its policy, which the plurality found to satisfy the four Turner fac-
tors, was to motivate better behavior on the part of the prisoners
by providing them with an incentive to move back to the regular
prison population.1008 Applying the four Turner factors to this ratio-
nale, the plurality found that (1) there was a logical connection be-
tween depriving inmates of newspapers and magazines and provid-
ing an incentive to improve behavior; (2) the Policy provided no
alternatives to the deprivation of newspapers and magazines, but
this was “not ‘conclusive’ of the reasonableness of the Policy”; (3)
the impact of accommodating the asserted constitutional right would
be negative; and (4) no alternative would “fully accommodate the
prisoner’s rights at de minimis cost to valid penological inter-
ests.” 1009 The plurality believed that its “real task in this case is
not balancing these factors, but rather determining whether the Sec-
retary shows more than simply a logical relation, that is, whether
he shows a reasonable relation” between the Policy and legitimate
1005 Beard v. Banks, 548 U.S. 521, 529 (2006) (citations and internal quotation
marks omitted; this quotation quotes language from Turner v. Safley, 482 U.S. at
89–90).
1006 490 U.S. 401, 411–14 (1989). Thornburgh v. Abbott noted that, if regula-
tions deny prisoners publications on the basis of their content, but the grounds on
which the regulations do so is content-neutral (e.g., to protect prison security), then
the regulations will be deemed neutral. Id. at 415–16.
1007 548 U.S. 521, 524–25 (2006). This was a 4–2–2 decision, with Justice Alito,
ington Post, 417 U.S. 843 (1974). Dissenting, Justices Powell, Brennan, and Mar-
shall argued that “at stake here is the societal function of the First Amendment in
preserving free public discussion of governmental affairs,” that the press’s role was
to make this discussion informed, and that the ban on face-to-face interviews uncon-
stitutionally fettered this role of the press. Id. at 850, 862.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1259
1016 438 U.S. 1 (1978). The decision’s imprecision of meaning is partly attribut-
able to the fact that there was no opinion of the Court. A plurality opinion repre-
sented the views of only three Justices; two Justices did not participate, three Jus-
tices dissented, and one Justice concurred with views that departed somewhat from
the plurality.
1017 438 U.S. at 15–16.
1018 438 U.S. at 16.
1019 The dissenters, Justices Stevens, Brennan, and Powell, believed that the
Constitution protects the public’s right to be informed about conditions within the
prison and that total denial of access, such as existed prior to institution of the suit,
was unconstitutional. They would have sustained the more narrowly drawn injunc-
tive relief to the press on the basis that no member of the public had yet sought
access. 438 U.S. at 19. It is clear that Justice Stewart did not believe that the Con-
stitution affords any relief. Id. at 16. Although the plurality opinion of the Chief
Justice Burger and Justices White and Rehnquist may be read as not deciding whether
any public right of access exists, overall it appears to proceed on the unspoken basis
that there is none. The second question, when Justice Stewart’s concurring opinion
and the dissenting opinion are combined, appears to be answerable qualifiedly in
the direction of constitutional constraints upon the nature of access limitation once
access is granted.
1260 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
tion With Representation was easily distinguishable because its restriction was on
all lobbying activity regardless of content or viewpoint. Id. at 208–09.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1261
1026 500 U.S. at 196 (emphasis in original). Dissenting Justice Blackmun wrote:
“Under the majority’s reasoning, the First Amendment could be read to tolerate any
governmental restriction is limited to the funded workplace. This is a dangerous
proposition, and one the Court has rightly rejected in the past.” Id. at 213 (empha-
sis in original).
1027 The Court attempted to minimize the potential sweep of its ruling in Rust.
“This is not to suggest that funding by the Government, even when coupled with
the freedom of the fund recipient to speak outside the scope of the Government-
funded project, is invariably sufficient to justify government control over the content
of expression.” 500 U.S. at 199. The Court noted several possible exceptions to the
general principle: government ownership of a public forum does not justify restric-
tions on speech; the university setting requires heightened protections through ap-
plication of vagueness and overbreadth principles; and the doctor-patient relation-
ship may also be subject to special First Amendment protection. (The Court denied,
however, that the doctor-patient relationship was significantly impaired by the regu-
latory restrictions at issue.) Lower courts were quick to pick up on these sugges-
tions. See, e.g., Stanford Univ. v Sullivan, 773 F. Supp. 472, 476–78 (D.D.C. 1991)
(confidentiality clause in federal grant research contract is invalid because, inter alia,
of application of vagueness principles in a university setting); Gay Men’s Health Cri-
sis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992) (“offensiveness” guidelines restrict-
ing Center for Disease Control grants for preparation of AIDS-related educational
materials are unconstitutionally vague).
1028 524 U.S. 569, 572 (1998).
1029 524 U.S. at 587.
1030 524 U.S. at 581. Justice Scalia, in a concurring opinion joined by Justice
Thomas, claimed that this interpretation of the statute “gutt[ed] it.” Id. at 590. He
believed that the statute “establishes content- and viewpoint-based criteria upon which
grant applications are to be evaluated. And that is perfectly constitutional.” Id.
1031 524 U.S. at 585.
1262 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
sion are discussed under “Non-obscene But Sexually Explicit and Indecent Expres-
sion” and “The Public Forum.”
1043 547 U.S. 47, 51 (2006).
1264 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1044 547 U.S. at 60. The Court stated that Congress’s authority to directly re-
quire campus access for military recruiters comes from its Article I, section 8, pow-
ers to provide for the common defense, to raise and support armies, and to provide
and maintain a navy. Id. at 58.
1045 547 U.S. at 60.
1046 547 U.S. at 64, 65.
1047 547 U.S. at 67.
1048 547 U.S. at 61, 62.
1049 547 U.S. at 63.
1050 547 U.S. at 65.
1051 547 U.S. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644
(2000).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1265
less, while the First Amendment’s Free Speech Clause has no applicability with re-
gard to government speech, it is important to note that other constitutional provisions—
such as the Equal Protection principles of the Fifth and Fourteenth Amendments—
may constrain what the government can say. Id. at 468–69.
1057 See id. at 468 (“Indeed, it is not easy to imagine how government could func-
The doctrine was one of the bases upon which the banning of all commercials for
cigarettes from radio and television was upheld. Capital Broadcasting Co. v. Mitch-
ell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff’d per curiam, 405 U.S.
1000 (1972).
1075 Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959);
Ginzburg v. United States, 383 U.S. 463, 474–75 (1966), advertisements dealing with
political and social matters which newspapers carry for a fee, New York Times Co.
v. Sullivan, 376 U.S. 254, 265–66 (1964), motion pictures which are exhibited for an
admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Jo-
seph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02 (1952), were all during this pe-
1268 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ban commercial speech related to illegal activity. Central Hudson Gas & Electric
Co. v. PSC, 447 U.S. 557, 563–64 (1980).
1079 Bigelow v. Virginia, 421 U.S. 809 (1975).
1080 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425
1081 425 U.S. at 763–64 (consumers’ interests), 764–65 (social interest), 766–70
and Justices Powell, Stewart, and Rehnquist dissented. Id. at 386, 389, 404.
1084 433 U.S. at 368–79. See also In re R.M.J., 455 U.S. 191 (1982) (invalidating
sanctions imposed on attorney for deviating in some respects from rigid prescrip-
tions of advertising style and for engaging in some proscribed advertising practices,
because the state could show neither that his advertising was misleading nor that
any substantial governmental interest was served by the restraints).
1085 Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988). Shapero was distin-
guished in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), a 5–4 decision up-
holding a prohibition on targeted direct-mail solicitations to victims and their rela-
tives for a 30-day period following an accident or disaster. “Shapero dealt with a
broad ban on all direct mail solicitations” (id. at 629), the Court explained, and was
not supported, as Florida’s more limited ban was, by findings describing the harms
to be prevented by the ban. Dissenting Justice Kennedy disagreed that there was a
valid distinction, pointing out that in Shapero the Court had said that “the mode of
communication [mailings versus potentially more abusive in-person solicitation] makes
all the difference,” and that mailings were at issue in both Shapero and Florida
Bar. 515 U.S. at 637 (quoting Shapero, 486 U.S. at 475).
1270 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
Primus, 426 U.S. 412 (1978). The distinction between in-person and other attorney
advertising was continued in Zauderer v. Office of Disciplinary Counsel, 471 U.S.
626 (1985) (“print advertising . . . in most cases . . . will lack the coercive force of
the personal presence of the trained advocate”).
1093 Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S.
and quoted in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551
U.S. 291, 298 (2007).
1096 507 U.S. at 777.
1097 Friedman v. Rogers, 440 U.S. 1 (1979).
1098 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980). See also
Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980) (voiding a
ban on utility’s inclusion in monthly bills of inserts discussing controversial issues
of public policy). However, the linking of a product to matters of public debate does
not thereby entitle an ad to the increased protection afforded noncommercial speech.
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
1099 Commercial speech is viewed by the Court as usually hardier than other
speech; because advertising is the sine qua non of commercial profits, it is less likely
to be chilled by regulation. Thus, the difference inheres in both the nature of the
speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy
v. Virginia Citizens Consumer Council, 425 U.S. 748, 771–72 n.24 (1976); Ohralik v.
Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978). It is, of course, important to
develop distinctions between commercial speech and other speech for purposes of
determining when broader regulation is permissible. The Court’s definitional state-
ments have been general, referring to commercial speech as that “proposing a com-
mercial transaction,” Ohralik v. Ohio State Bar Ass’n, supra, or as “expression re-
lated solely to the economic interests of the speaker and its audience.” Central Hudson
Gas & Electric Co. v. PSC, 447 U.S. 557, 561 (1980). It has simply viewed as non-
commercial the advertising of views on public policy that would inhere to the eco-
nomic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm’n, 447
U.S. 530 (1980). So too, the Court has refused to treat as commercial speech chari-
table solicitation undertaken by professional fundraisers, characterizing the commer-
cial component as “inextricably intertwined with otherwise fully protected speech.”
Riley v. National Fed’n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing
of home economics information with a sales pitch at a “Tupperware” party did not
remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S.
469 (1989). In Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002), cert. dismissed, 539 U.S.
1272 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
654 (2003), Nike was sued for unfair and deceptive practices for allegedly false state-
ments it made concerning the working conditions under which its products were manu-
factured. The California Supreme Court ruled that the suit could proceed, and the
Supreme Court granted certiorari, but then dismissed it as improvidently granted,
with a concurring and two dissenting opinions. The issue left undecided was whether
Nike’s statements, though they concerned a matter of public debate and appeared
in press releases and letters rather than in advertisements for its products, should
be deemed “ ‘commercial speech’ because they might affect consumers’ opinions about
the business as a good corporate citizen and thereby affect their purchasing deci-
sions.” Id. at 657 (Stevens, J., concurring). Nike subsequently settled the suit.
1100 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980). In one case,
the Court referred to the test as having three prongs, referring to its second, third,
and fourth prongs, as, respectively, its first, second, and third. The Court in that
case did, however, apply Central Hudson’s first prong as well. Florida Bar v. Went
For It, Inc., 515 U.S. 618, 624 (1995).
1101 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563, 564 (1980).
Within this category fall the cases involving the possibility of deception through such
devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicita-
tion of business by lawyers, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), as
well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Commission
on Human Relations, 413 U.S. 376 (1973).
1102 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 568–69 (1980).
The Court deemed the state’s interests to be clear and substantial. The pattern here
is similar to much due process and equal protection litigation as well as expression
and religion cases in which the Court accepts the proffered interests as legitimate
and worthy. See also San Francisco Arts & Athletics, Inc. v. United States Olympic
Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC’s exclusive
use of word “Olympic” is substantial); Rubin v. Coors Brewing Co., 514 U.S. 476
(1995) (government’s interest in curbing strength wars among brewers is substan-
tial, but interest in facilitating state regulation of alcohol is not substantial). Con-
trast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), finding a substan-
tial federal interest in facilitating state restrictions on lotteries. “Unlike the situation
in Edge Broadcasting,” the Coors Court explained, “the policies of some states do
not prevent neighboring states from pursuing their own alcohol-related policies within
their respective borders.” 514 U.S. at 486. However, in Bolger v. Youngs Drug Prod-
ucts Corp., 463 U.S. 60 (1983), the Court deemed insubstantial a governmental in-
terest in protecting postal patrons from offensive but not obscene materials. For def-
erential treatment of the governmental interest, see Posadas de Puerto Rico Associates
v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto Rico’s “substantial” inter-
est in discouraging casino gambling by residents justifies ban on ads aimed at resi-
dents even though residents may legally engage in casino gambling, and even though
ads aimed at tourists are permitted).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1273
1103 447 U.S. at 569. The ban here was found to directly advance one of the
proffered interests. Contrast this holding with Bates v. State Bar of Arizona, 433
U.S. 350 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Coun-
cil, 425 U.S. 748 (1976); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983);
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on display of alcohol
content on beer labels does not directly and materially advance government’s inter-
est in curbing strength wars among brewers, given the inconsistencies and “overall
irrationality” of the regulatory scheme); and Edenfield v. Fane, 507 U.S. 761 (1993)
(Florida’s ban on in-person solicitation by certified public accountants does not di-
rectly advance its legitimate interests in protecting consumers from fraud, protect-
ing consumer privacy, and maintaining professional independence from clients), where
the restraints were deemed indirect or ineffectual.
1104 United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) (“this ques-
tion cannot be answered by limiting the inquiry to whether the governmental inter-
est is directly advanced as applied to a single person or entity”).
1105 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565, 569–71 (1980).
This test is, of course, the “least restrictive means” standard. Shelton v. Tucker, 364
U.S. 479, 488 (1960). In Central Hudson, the Court found the ban more extensive
than was necessary to effectuate the governmental purpose. See also Bolger v. Youngs
Drug Products Corp., 463 U.S. 60 (1983), where the Court held that the governmen-
tal interest in not interfering with parental efforts at controlling children’s access to
birth control information could not justify a ban on commercial mailings about birth
control products; “[t]he level of discourse reaching a mailbox simply cannot be lim-
ited to that which would be suitable for a sandbox.” Id. at 74. See also Rubin v.
Coors Brewing Co., 514 U.S. 476 (1995) (there are less intrusive alternatives—e.g.,
direct limitations on alcohol content of beer—to prohibition on display of alcohol con-
tent on beer label). Note, however, that, in San Francisco Arts & Athletics, Inc. v.
United States Olympic Comm., 483 U.S. 522, 539 (1987), the Court applied the test
in a manner deferential to Congress: “the restrictions [at issue] are not broader than
Congress reasonably could have determined to be necessary to further these inter-
ests.”
1106 Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). In a 1993 opinion the
Court elaborated on the difference between reasonable fit and least restrictive alter-
native. “A regulation need not be ‘absolutely the least severe that will achieve the
desired end,’ but if there are numerous and obvious less-burdensome alternatives to
the restriction . . . , that is certainly a relevant consideration in determining whether
the ‘fit’ between ends and means is reasonable.” City of Cincinnati v. Discovery Net-
work, Inc., 507 U.S. 410, 417 n.13 (1993). But see Thompson v. Western States Medi-
cal Center, 535 U.S. 357, 368 (2002), in which the Court quoted the fourth prong of
the Central Hudson test without mentioning its reformulation by Fox, and added,
again without reference to Fox, “In previous cases addressing this final prong of the
1274 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
however, does “not equate this test with the less rigorous obstacles
of rational basis review; . . . the existence of ‘numerous and obvi-
ous less-burdensome alternatives to the restriction on commercial
speech . . . is certainly a relevant consideration in determining whether
the ‘between ends and means is reasonable.’ ” 1107
The “reasonable fit” standard has some teeth, the Court made
clear in City of Cincinnati v. Discovery Network, Inc.,1108 striking
down a city’s prohibition on distribution of “commercial handbills”
through freestanding newsracks located on city property. The city’s
aesthetic interest in reducing visual clutter was furthered by reduc-
ing the total number of newsracks, but the distinction between pro-
hibited “commercial” publications and permitted “newspapers” bore
“no relationship whatsoever” to this legitimate interest.1109 The city
could not, the Court ruled, single out commercial speech to bear
the full onus when “all newsracks, regardless of whether they con-
tain commercial or noncommercial publications, are equally at
fault.” 1110 By contrast, the Court upheld a federal law that prohib-
ited broadcast of lottery advertisements by a broadcaster in a state
that prohibits lotteries, while allowing broadcast of such ads by sta-
tions in states that sponsor lotteries. There was a “reasonable fit”
between the restriction and the asserted federal interest in support-
ing state anti-gambling policies without unduly interfering with poli-
cies of neighboring states that promote lotteries.1111 The prohibi-
tion “directly served” the congressional interest, and could be applied
to a broadcaster whose principal audience was in an adjoining lot-
tery state, and who sought to run ads for that state’s lottery.1112
In 1999, the Court struck down a provision of the same statute
as applied to advertisements for private casino gambling that are
broadcast by radio and television stations located in a state where
such gambling is legal.1113 The Court emphasized the interrelated-
ness of the four parts of the Central Hudson test: “Each [part] raises
a relevant question that may not be dispositive to the First Amend-
Central Hudson test, we have made clear that if the government could achieve its
interests in a manner that does not restrict speech, or that restricts less speech, the
government must do so.” Id. at 371.
1107 Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995).
1108 507 U.S. 410 (1993). See also Edenfield v. Fane, 507 U.S. 761 (1993), de-
cided the same Term, relying on the “directly advance” third prong of Central Hud-
son to strike down a ban on in-person solicitation by certified public accountants.
1109 507 U.S. at 424.
1110 507 U.S. at 426. The Court also noted the “minute” effect of removing 62
173 (1999).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1275
ment inquiry, but the answer to which may inform a judgment con-
cerning the other three.” 1114 For example, although the govern-
ment has a substantial interest in reducing the social costs of gambling,
the fact that the Congress has simultaneously encouraged gam-
bling, because of its economic benefits, makes it more difficult for
the government to demonstrate that its restriction on commercial
speech materially advances its asserted interest and constitutes a
reasonable “fit.” 1115 In this case, “[t]he operation of [18 U.S.C.] § 1304
and its attendant regulatory regime is so pierced by exemptions and
inconsistencies that the Government cannot hope to exonerate it.” 1116
Moreoever, “the regulation distinguishes among the indistinct, per-
mitting a variety of speech that poses the same risks the Govern-
ment purports to fear, while banning messages unlikely to cause
any harm at all.” 1117
In Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico,
the Court asserted that “the greater power to completely ban ca-
sino gambling necessarily includes the lesser power to ban advertis-
ing of casino gambling.” 1118 Subsequently, however, the Court es-
chewed reliance on Posadas,1119 and it seems doubtful that the Court
would again embrace the broad principle that government may ban
all advertising of an activity that it permits but has power to pro-
hibit. Indeed, the Court’s very holding in 44 Liquormart, Inc. v. Rhode
Island,1120 striking down the state’s ban on advertisements that pro-
vide truthful information about liquor prices, is inconsistent with
the general proposition. A Court plurality in 44 Liquormart squarely
rejected Posadas, calling it “erroneous,” declining to give force to
its “highly deferential approach,” and proclaiming that a state “does
not have the broad discretion to suppress truthful, nonmisleading
information for paternalistic purposes that the Posadas majority was
willing to tolerate.” 1121 Four other Justices concluded that Posadas
de Puerto Rico v. Tourism Company: “’Twas Strange, ‘Twas Passing Strange; ‘Twas
Pitiful, ‘Twas Wondrous Pitiful,” 1986 SUP. CT. REV. 1.
1119 In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal
ban on revealing alcohol content on malt beverage labels), the Court rejected reli-
ance on Posadas, pointing out that the statement in Posadas had been made only
after a determination that the advertising could be upheld under Central Hudson.
The Court found it unnecessary to consider the greater-includes-lesser argument in
United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993), upholding through
application of Central Hudson principles a ban on broadcast of lottery ads.
1120 517 U.S. 484 (1996).
1121 517 U.S. at 510 (opinion of Stevens, joined by Justices Kennedy, Thomas,
was inconsistent with the “closer look” that the Court has since re-
quired in applying the principles of Central Hudson.1122
The “different degree of protection” accorded commercial speech
has a number of consequences as regards other First Amendment
doctrine. For instance, somewhat broader times, places, and man-
ner regulations are to be tolerated,1123 and the rule against prior
restraints may be inapplicable.1124 Further, disseminators of com-
mercial speech are not protected by the overbreadth doctrine.1125
On the other hand, there are circumstances in which the nature of
the restriction placed on commercial speech may alter the First Amend-
ment analysis, and even result in the application of a heightened
level of scrutiny.
For instance, in Sorrell v. IMS Health, Inc.,1126 the Court struck
down state restrictions on pharmacies and “data-miners” selling or
leasing information on the prescribing behavior of doctors for mar-
keting purposes and related restrictions limiting the use of that in-
formation by pharmaceutical companies.1127 These prohibitions, how-
ever, were subject to a number of exceptions, including provisions
allowing such prescriber-identifying information to be used for health
care research. Because the restrictions only applied to the use of
this information for marketing and because they principally ap-
plied to pharmaceutical manufacturers of non-generic drugs, the Court
found that these restrictions were content-based and speaker-
based limits and thus subject to heightened scrutiny.1128
lesser argument” as “inconsistent with both logic and well-settled doctrine,” point-
ing out that the First Amendment “presumes that attempts to regulate speech are
more dangerous than attempts to regulate conduct.” Id. at 511–512.
1122 517 U.S. at 531–32 (concurring opinion of O’Connor, joined by Chief Justice
U.S. 748, 771 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But,
in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93–94 (1977), the
Court refused to accept a times, places, and manner defense of an ordinance prohib-
iting “For Sale” signs on residential lawns. First, ample alternative channels of com-
munication were not available, and second, the ban was seen rather as a content
limitation.
1124 Central Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 571 n.13 (1980), cit-
ing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.
748, 772 n.24 (1976). See “The Doctrine of Prior Restraint,” supra.
1125 Bates v. State Bar of Arizona, 433 U.S. 350, 379–81 (1977); Central Hudson
Gas & Electric Co. v. PSC, 447 U.S. 557, 565 n.8 (1980).
1126 564 U.S. ___, No. 10–779, slip op. (2011).
1127 “Detailers,” marketing specialists employed by pharmaceutical manufactur-
ers, used the reports to refine their marketing tactics and increase sales to doctors.
1128 Although the state put forward a variety of proposed governmental inter-
ests to justify the regulations, the Court found these interests (expectation of physi-
cian privacy, discouraging harassment of physicians, and protecting the integrity of
the doctor-physician relationship) were ill-served by the content-based restrictions.
564 U.S. ___, No. 10–779, slip op. at 17–21. The Court also rejected the argument
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1277
that the regulations were an appropriate way to reduce health care costs, noting
that “[t]he State seeks to achieve its policy objectives through the indirect means of
restraining certain speech by certain speakers—that is, by diminishing detailers’ abil-
ity to influence prescription decisions. Those who seek to censor or burden free ex-
pression often assert that disfavored speech has adverse effects. But the ‘fear that
people would make bad decisions if given truthful information’ cannot justify content-
based burdens on speech.” Id. at 21–22.
1129 Bates v. State Bar of Arizona, 433 U.S. 350, 383–84 (1977); Ohralik v. Ohio
State Bar Ass’n, 436 U.S. 447, 456 (1978). Requirements that advertisers disclose
more information than they otherwise choose to are upheld “as long as [they] are
reasonably related to the State’s interest in preventing deception of consumers,” the
Court explaining that “[t]he right of a commercial speaker not to divulge accurate
information regarding his services is not . . . a fundamental right” requiring strict
scrutiny of the disclosure requirement. Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626, 651 & n.14 (1985) (upholding requirement that attorney’s contingent
fees ad mention that unsuccessful plaintiffs might still be liable for court costs).
1130 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996).
1131 See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 465 (1978) (uphold-
ing ban on in-person solicitation by attorneys due in part to the “potential for over-
reaching” when a trained advocate “solicits an unsophisticated, injured, or dis-
tressed lay person”).
1132 Compare United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) (up-
holding federal law supporting state interest in protecting citizens from lottery infor-
mation) and Florida Bar v. Went For It, Inc., 515 U.S. 618, 631 (1995) (upholding a
30-day ban on targeted, direct-mail solicitation of accident victims by attorneys, not
because of any presumed susceptibility to overreaching, but because the ban “fore-
stall[s] the outrage and irritation with the . . . legal profession that the [banned]
solicitation . . . has engendered”) with Rubin v. Coors Brewing Co., 514 U.S. 476
(1995) (striking down federal statute prohibiting display of alcohol content on beer
labels) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down
state law prohibiting display of retail prices in ads for alcoholic beverages).
1278 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1133 “[S]everal Members of the Court have expressed doubts about the Central
Hudson analysis and whether it should apply in particular cases.” Thompson v. West-
ern States Medical Center, 535 U.S. 357, 367 (2002). Justice Stevens has criticized
the Central Hudson test because it seemingly allows regulation of any speech pro-
pounded in a commercial context regardless of the content of that speech. “[A]ny
description of commercial speech that is intended to identify the category of speech
entitled to less First Amendment protection should relate to the reasons for permit-
ting broader regulation: namely, commercial speech’s potential to mislead.” Rubin v.
Coors Brewing Co., 514 U.S. 476, 494 (1995) (concurring opinion). The Justice re-
peated these views in 1996: “when a State entirely prohibits the dissemination of
truthful, nonmisleading commercial messages for reasons unrelated to the preserva-
tion of a fair bargaining process, there is far less reason to depart from the rigorous
review that the First Amendment generally demands.” 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 501 (1996) (a portion of the opinion joined by Justices Ken-
nedy and Ginsburg). Justice Thomas, similarly, wrote that, in cases “in which the
government’s asserted interest is to keep legal users of a product or service igno-
rant in order to manipulate their choices in the marketplace, the Central Hudson
test should not be applied because such an interest’ is per se illegitimate. . . .” Greater
New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 197 (1999)
(Thomas, J., concurring) (internal quotation marks omitted). Other decisions in which
the Court majority acknowledged that some Justices would grant commercial speech
greater protection than it has under the Central Hudson test include United States
v. United Foods, Inc., 533 U.S. 405, 409–410 (2001) (mandated assessments, used
for advertising, on handlers of fresh mushrooms struck down as compelled speech,
rather than under Central Hudson), and Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 554 (2001) (various state restrictions on tobacco advertising struck down under
Central Hudson as overly burdensome).
1134 Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).
1135 297 U.S. at 245–48.
1136 297 U.S. at 250–51. Grosjean was distinguished on this latter basis in Min-
neapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1279
self,1137 these tests seem to permit general business taxes upon receipts
of businesses engaged in communicating protected expression with-
out raising any First Amendment issues.1138
Ordinarily, a tax singling out the press for differential treat-
ment is highly suspect, and creates a heavy burden of justification
on the state. This is so, the Court explained in 1983, because such
“a powerful weapon” to single out a small group carries with it a
lessened political constraint than do those measures affecting a broader
based constituency, and because “differential treatment, unless jus-
tified by some special characteristic of the press, suggests that the
goal of the regulation is not unrelated to suppression of expres-
sion.” 1139 The state’s interest in raising revenue is not sufficient jus-
tification for differential treatment of the press. Moreover, the Court
refused to adopt a rule permitting analysis of the “effective bur-
den” imposed by a differential tax; even if the current effective tax
burden could be measured and upheld, the threat of increasing the
burden on the press might have “censorial effects,” and “courts as
institutions are poorly equipped to evaluate with precision the rela-
tive burdens of various methods of taxation.” 1140
Also difficult to justify is taxation that targets specific sub-
groups within a segment of the press for differential treatment. An
Arkansas sales tax exemption for newspapers and for “religious, pro-
fessional, trade, and sports journals” published within the state was
struck down as an invalid content-based regulation of the press.1141
Entirely as a result of content, some magazines were treated less
favorably than others. The general interest in raising revenue was
again rejected as a “compelling” justification for such treatment, and
the measure was viewed as not narrowly tailored to achieve other
1137 Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321
U.S. 573 (1944) (license taxes upon Jehovah’s Witnesses selling religious literature
invalid).
1138 Cf. City of Corona v. Corona Daily Independent, 115 Cal. App. 2d 382, 252
P.2d 56 (1953), cert. denied, 346 U.S. 833 (1953) (Justices Black and Douglas dissent-
ing). See also Cammarano v. United States, 358 U.S. 498 (1959) (no First Amend-
ment violation to deny business expense tax deduction for expenses incurred in lob-
bying about measure affecting one’s business); Leathers v. Medlock, 499 U.S. 439
(1991) (no First Amendment violation in applying general gross receipts tax to cable
television services while exempting other communications media).
1139 Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S.
575, 585 (1983) (invalidating a Minnesota use tax on the cost of paper and ink prod-
ucts used in a publication, and exempting the first $100,000 of such costs each cal-
endar year; Star & Tribune paid roughly two-thirds of all revenues the state raised
by the tax). The Court seemed less concerned, however, when the affected group
within the press was not so small, upholding application of a gross receipts tax to
cable television services even though other segments of the communications media
were exempted. Leathers v. Medlock, 499 U.S. 439 (1991).
1140 460 U.S. at 588, 589.
1141 Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987).
1280 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
vision systems within the state, but not to other segments of the communications
media).
1143 Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 (1991).
1144 502 U.S. at 122.
1145 301 U.S. 103, 132 (1937).
1146 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1281
ment between two newspapers violates antitrust laws; First Amendment argument
that one paper will fail if arrangement is outlawed rejected). In response to this
decision, Congress enacted the Newspaper Preservation Act to sanction certain joint
arrangements where one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C.
§§ 1801–1804.
1282 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
Co. v. FCC, 395 U.S. 367, 375–79, 387–89 (1969); FCC v. National Citizens Comm.
for Broadcasting, 436 U.S. 775, 798–802 (1978).
1151 NBC v. United States, 319 U.S. 190 (1943); Federal Radio Comm’n v. Nel-
son Bros. Bond & Mortgage Co., 289 U.S. 266 (1933; FCC v. Pottsville, 309 U.S. 134
(1940); FCC v. ABC, 347 U.S. 284 (1954); Farmers Union v. WDAY, 360 U.S. 525
(1958).
1152 “But Congress did not authorize the Commission to choose among appli-
cants upon the basis of their political, economic or social views or upon any other
capricious basis. If it did, or if the Commission by these regulations proposed a choice
among applicants upon some such basis, the issue before us would be wholly differ-
ent.” NBC v. United States, 319 U.S. 190, 226 (1943).
1153 395 U.S. 367, 373 (1969). “The Federal Communications Commission has
for many years imposed on radio and television broadcasters the requirement that
discussion of public issues be presented on broadcast stations, and that each side of
those issues must be given fair coverage. This is known as the fairness doc-
trine. . . .” Id. at 369. The two issues passed on in Red Lion were integral parts of
the doctrine.
1154 395 U.S. at 386.
1155 395 U.S. at 389.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1283
the Court had confirmed it in assuming, too much authority under the congressio-
nal enactment. In its view, Congress had not meant to do away with the traditional
deference to the editorial judgments of the broadcasters. Id. at 397 (Justices White,
Rehnquist, and Stevens).
1160 468 U.S. 364 (1984), holding unconstitutional § 399 of the Public Broadcast-
ing Act of 1967, as amended. The decision was 5–4, with Justice Brennan’s opinion
for the Court being joined by Justices Marshall, Blackmun, Powell, and O’Connor,
and with Justices White, Rehnquist (joined by Chief Justice Burger and by Justice
White), and Stevens filing dissenting opinions.
1284 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
area, the Court reaffirmed that Congress may regulate in ways that
would be impermissible in other contexts, but indicated that broad-
casters are entitled to greater protection than may have been sug-
gested by Red Lion. “[A]lthough the broadcasting industry plainly
operates under restraints not imposed upon other media, the thrust
of these restrictions has generally been to secure the public’s First
Amendment interest in receiving a balanced presentation of views
on diverse matters of public concern. . . . [T]hese restrictions have
been upheld only when we were satisfied that the restriction is nar-
rowly tailored to further a substantial governmental interest.” 1161
However, the earlier cases were distinguished. “[I]n sharp contrast
to the restrictions upheld in Red Lion or in [CBS v. FCC], which
left room for editorial discretion and simply required broadcast edi-
tors to grant others access to the microphone, § 399 directly prohib-
its the broadcaster from speaking out on public issues even in a
balanced and fair manner.” 1162 The ban on all editorializing was
deemed too severe and restrictive a means of accomplishing the gov-
ernmental purposes—protecting public broadcasting stations from
being coerced, through threat or fear of withdrawal of public fund-
ing, into becoming “vehicles for governmental propagandizing,” and
also keeping the stations “from becoming convenient targets for cap-
ture by private interest groups wishing to express their own parti-
san viewpoints.” 1163 Expression of editorial opinion was described
as a “form of speech . . . that lies at the heart of First Amendment
protection,” 1164 and the ban was said to be “defined solely on the
basis of . . . content,” the assumption being that editorial speech is
speech directed at “controversial issues of public importance.” 1165
Moreover, the ban on editorializing was both overinclusive, apply-
ing to commentary on local issues of no likely interest to Congress,
and underinclusive, not applying at all to expression of controver-
sial opinion in the context of regular programming. Therefore, the
Court concluded, the restriction was not narrowly enough tailored
to fulfill the government’s purposes.
Sustaining FCC discipline of a broadcaster who aired a record
containing a series of repeated “barnyard” words, considered “inde-
cent” but not obscene, the Court posited a new theory to explain
why the broadcast industry is less entitled to full constitutional pro-
1161 468 U.S. at 380. The Court rejected the suggestion that only a “compelling”
(Justice Powell concurring) (“The Court today reviews only the Commission’s hold-
ing that Carlin’s monologue was indecent ‘as broadcast’ at two o’clock in the after-
noon, and not the broad sweep of the Commission’s opinion.”).
1169 438 U.S. at 750. Subsequently, the FCC began to apply its indecency stan-
dard to fleeting uses of expletives in non-sexual and non-excretory contexts. The U.S.
Court of Appeals for the Second Circuit found this practice arbitrary and capricious
under the Administrative Procedure Act, but the Supreme Court disagreed and up-
held the FCC policy without reaching the First Amendment question. FCC v. Fox
Television Stations, Inc., 556 U.S. ___, No. 07–582 (2009). See also CBS Corp. v. FCC,
535 F.3d 167 (3d Cir. 2008), vacated and remanded, 129 S. Ct. 2176 (2009) (invali-
dating, on non-constitutional grounds, a fine against CBS for broadcasting Janet Jack-
son’s exposure of her breast for nine-sixteenths of a second during a Super Bowl
halftime show). The Supreme Court vacated and remanded this decision to the Third
Circuit for further consideration in light of FCC v. Fox Television Stations, Inc. De-
cisions regarding legislation to ban “indecent” expression in broadcast and cable me-
dia as well as in other contexts are discussed under “Non-obscene But Sexually Ex-
plicit and Indecent Expression,” infra.
1170 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).
1286 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
pelled printing of replies but this seemed secondary to the quoted conclusion. The
Court has also held that a state may not require a privately owned utility company
to include in its billing envelopes views of a consumer group with which it dis-
agrees. Although a plurality opinion to which four Justices adhered relied heavily
on Tornillo, there was no Court majority consensus as to rationale. Pacific Gas &
Elec. v. Public Utilities Comm’n, 475 U.S. 1 (1986). See also Hurley v. Irish-
American Gay Group, 514 U.S. 334 (1995) (state may not compel parade organizer
to allow participation by a parade unit proclaiming message that organizer does not
wish to endorse).
1172 City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986) (leav-
ing for future decision how the operator’s interests are to be balanced against a com-
munity’s interests in limiting franchises and preserving utility space); Turner Broad-
casting System v. FCC, 512 U.S. 622, 636 (1994).
1173 Turner Broadcasting System v. FCC, 512 U.S. 622, 638–39 (1994).
1174 512 U.S. at 661 (referring to the “bottleneck monopoly power” exercised by
cable operators in determining which networks and stations to carry, and to the re-
sulting dangers posed to the viability of broadcast television stations). See also Leath-
ers v. Medlock, 499 U.S. 439 (1991) (application of state gross receipts tax to cable
industry permissible even though other segments of the communications media were
exempted).
1175 512 U.S. 622 (1994).
1176 512 U.S. at 645. “Deciding whether a particular regulation is content-based
or content-neutral is not always a simple task,” the Court confessed. Id. at 642. In-
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1287
findings relevant to the O’Brien test. On remand, the district court upheld the must-
carry provisions, and the Supreme Court affirmed, concluding that it “cannot dis-
place Congress’s judgment respecting content-neutral regulations with our own, so
long as its policy is grounded on reasonable factual findings supported by evidence
that is substantial for a legislative determination.” Turner Broadcasting System v.
FCC, 520 U.S. 180, 224 (1997).
1178 518 U.S. 727, 755 (1996) (invalidating § 10(b) of the Cable Television Con-
cent material on leased access channels; and striking down § 10(c), which permits a
cable operator to prevent transmission of “sexually explicit” programming on public
access channels. In upholding § 10(a), Justice Breyer’s plurality opinion cited FCC
v. Pacifica Foundation, 438 U.S. 726 (1978), and noted that cable television “is as
‘accessible to children’ as over-the-air broadcasting, if not more so.” 518 U.S. at 744.
1180 This section of Justice Breyer’s opinion was joined by Justices Stevens, O’Connor,
U.S. at 791, and took the plurality to task for its “evasion of any clear legal stan-
dard.” 518 U.S. at 784.
1182 Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, advo-
v. City of Jacksonville, 422 U.S. 205, 208–12 (1975); First National Bank of Boston
v. Bellotti, 435 U.S. 765 (1978); Carey v. Brown, 447 U.S. 455 (1980); Metromedia v.
City of San Diego, 453 U.S. 490 (1981) (plurality opinion); Widmar v. Vincent, 454
U.S. 263 (1981); Regan v. Time, Inc., 468 U.S. 641 (1984).
1188 United States v. Playboy Entertainment Group, Inc., 529 U.S. 801, 818 (2000).
The distinction between, on the one hand, directly regulating, and, on the other hand,
incidentally affecting, the content of expression was sharply drawn by Justice Har-
lan in Konigsberg v. State Bar of California, 366 U.S. 36, 49–51 (1961): “Through-
out its history this Court has consistently recognized at least two ways in which
constitutionally protected freedom of speech is narrower than an unlimited license
to talk. On the one hand, certain forms of speech, or speech in certain contexts, has
been considered outside the scope of constitutional protection. . . . On the other hand,
general regulatory statutes, not intended to control the content of speech but inci-
dentally limiting its unfettered exercise, have not been regarded as the type of law
the First or Fourteenth Amendments forbade Congress or the States to pass, when
they have been found justified by subordinating valid governmental interests, a pre-
requisite to constitutionality which has necessarily involved a weighing of the gov-
ernmental interest involved.” The Court set forth the test for “incidental limitations
on First Amendment freedoms” in United States v. O’Brien, 391 U.S. 367, 376 (1968).
See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483
U.S. 522, 537 (1987).
1189 Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1289
Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 537 (1980)).
1193 See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); see also Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (holding that content-neutral “speech
regulations are those that are justified without reference to the content of the regu-
lated speech.”) (internal quotations and citations omitted).
1194 See 485 U.S. 312, 315 (1988).
1195 See Ward, 491 U.S. at 791.
1196 See 564 U.S. 552, 566 (2011).
1197 See Turner Broad. Sys. v. FCC, 512 U.S. 622, 642–43 (1994) (“Nor will the
there is no need for a court to look into the purpose of the underly-
ing law being challenged under the First Amendment; instead, that
law is automatically subject to strict scrutiny.1198 As such, in Reed
v. Town of Gilbert, the Court, in invalidating provisions of a munici-
pality’s sign code that imposed more stringent restrictions on signs
directing the public to an event than on signs conveying political
or ideological messages, determined the sign code to be content-
based and subject to strict scrutiny, notwithstanding the town’s “be-
nign,” non-speech related motives for enacting the code.1199 In so
holding, the Court reasoned that the First Amendment, by target-
ing the “abridgement of speech,” is centrally concerned with the op-
erations of laws and not the motivations of those who enacted the
laws.1200 In this vein, the Court concluded that the “vice” of content-
based legislation is not that it will “always” be used for invidious
purposes, but rather that content-based restrictions necessarily lend
themselves to such purposes.1201
Nonetheless, as discussed below, the Supreme Court has recog-
nized that the First Amendment permits restrictions upon the con-
tent of speech in a “few limited areas,” including obscenity, defama-
tion, fraud, incitement, fighting words, and speech integral to criminal
conduct.1202 This “two-tier” approach to content-based regulations
of speech derives from Chaplinsky v. New Hampshire, wherein the
Court opined that there exist “certain well-defined and narrowly lim-
ited classes of speech [that] are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth” such
that the government may prevent those utterances and punish those
uttering them without raising any constitutional issues.1203 As the
Court has generally applied Chaplinsky over the past several de-
cades, if speech fell within one of the “well-defined and narrowly
limited” categories, it was unprotected, regardless of its effect. If it
did not, it was covered by the First Amendment, and the speech
was protected unless the restraint was justified by some test relat-
ing to harm, such as the clear and present danger test or the more
1198 See Reed v. Town of Gilbert, 576 U.S. ___, No. 13–502, slip op. at 8 (2015)
rowly tailored to further the justifications for the law—aesthetics and traffic safety—
because the code did allow many signs that threatened the beauty of the town and
because the town could not demonstrate that directional signs posed a greater threat
to safety than other types of signs that were treated differently under the code. Id.
at 14–15.
1200 Id. at 10.
1201 Id.
1202 See United States v. Stevens, 559 U.S. 460, 468 (2010).
1203 315 U.S. 568, 571–72 (1942).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1291
1210 Ch. 74, 1 Stat. 596. Note also that the 1918 amendment of the Espionage
Act of 1917, ch. 75, 40 Stat. 553, reached “language intended to bring the form of
government of the United States . . . or the Constitution . . . or the flag . . . or the
uniform of the Army or Navy into contempt, scorn, contumely, or disrepute.” Cf. Abrams
v. United States, 250 U.S. 616 (1919). For a brief history of seditious libel here and
in Great Britain, see Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 19–35, 497–516 (1941).
1211 376 U.S. 254, 273–76 (1964). See also Abrams v. United States, 250 U.S.
three-judge district courts pursuant to the latitude prescribed by this case. E.g., Ware
v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967) (criminal syndicalism law); Carmichael
v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966) (insurrection statute); McSurely v. Ratliff,
282 F. Supp. 848 (E.D. Ky. 1967) (criminal syndicalism). This latitude was then cir-
cumscribed in cases attacking criminal syndicalism and criminal anarchy laws. Younger
v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971).
1213 395 U.S. 444 (1969). See also Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton
District Court, 407 U.S. 297 (1972), a government claim to be free to wiretap in
national security cases was rejected on Fourth Amendment grounds in an opinion
that called attention to the relevance of the First Amendment.
1215 315 U.S. 568 (1942).
1216 315 U.S. at 573.
1217 315 U.S. at 571–72.
1218 Cohen v. California, 403 U.S. 15, 20 (1971). Cohen’s conviction for breach of
the peace, occasioned by his appearance in public with an “offensive expletive” let-
tered on his jacket, was reversed, in part because the words were not a personal
insult and there was no evidence of audience objection.
1294 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1219 The cases hold that government may not punish profane, vulgar, or oppro-
brious words simply because they are offensive, but only if they are “fighting words”
that have a direct tendency to cause acts of violence by the person to whom they
are directed. Gooding v. Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105
(1973); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416
U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of Cincinnati,
416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 (1974); see also Eaton v. City
of Tulsa, 416 U.S. 697 (1974).
1220 Feiner v. New York, 340 U.S. 315 (1951). See also Milk Wagon Drivers v.
Meadowmoor Dairies, 312 U.S. 287 (1941), in which the Court held that a court
could enjoin peaceful picketing because violence occurring at the same time against
the businesses picketed could have created an atmosphere in which even peaceful,
otherwise protected picketing could be illegally coercive. But compare NAACP v.
Claiborne Hardware Co., 458 U.S. 886 (1982).
1221 The principle actually predates Feiner. See Cantwell v. Connecticut, 310 U.S.
296 (1940); Terminiello v. Chicago, 337 U.S. 1 (1949). For subsequent application,
see Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536
(1965); Brown v. Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394
U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is Justice
Harlan’s statement of the principle reflected by Feiner. “Nor do we have here an
instance of the exercise of the State’s police power to prevent a speaker from inten-
tionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340
U.S. 315 (1951).” Cohen v. California, 403 U.S. 15, 20 (1970).
1222 Cohen v. California, 403 U.S. 15 (1971); Bachellar v. Maryland, 397 U.S.
564 (1970); Street v. New York, 394 U.S. 576 (1969); Schacht v. United States, 398
U.S. 58 (1970); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Kingsley Pic-
tures Corp. v. Regents, 360 U.S. 684 (1959); Stromberg v. California, 283 U.S. 359
(1931).
1223 Coates v. City of Cincinnati, 402 U.S. 611 (1971); Cohen v. California, 403
citing Watts, upheld a statute that outlawed cross burnings done with the intent to
intimidate. A cross burning done as “a statement of ideology, a symbol of group soli-
darity,” or “in movies such as Mississippi Burning,” however, would be protected speech.
Id. at 365–366.
1229 458 U.S. 886 (1982). Claiborne is also discussed below under “Public Issue
1233 Brandenburg v. Ohio, 395 U.S. 444 (1969). Brandenburg is discussed above
bodily harm. . . .” 1241 “The difference between a true threat and pro-
tected expression,” Judge Kozinski wrote, “is this: A true threat warns
of violence or other harm that the speaker controls. . . . Yet the opin-
ion points to no evidence that defendants who prepared the posters
would have been understood by a reasonable listener as saying that
they will cause the harm. . . . Given this lack of evidence, the post-
ers can be viewed, at most, as a call to arms for other abortion pro-
testers to harm plaintiffs. However, the Supreme Court made it clear
that under Brandenburg, encouragement or even advocacy of vio-
lence is protected by the First Amendment. . . .” 1242 Moreover, the
Court held in Claiborne that “[t]he mere fact the statements could
be understood ‘as intending to create a fear of violence’ was insuffi-
cient to make them ‘true threats’ under Watts.” 1243
Group Libel, Hate Speech.—In Beauharnais v. Illinois,1244 re-
lying on dicta in past cases,1245 the Court upheld a state group li-
bel law that made it unlawful to defame a race or class of people.
The defendant had been convicted under this statute after he had
distributed a leaflet, part of which was in the form of a petition to
his city government, taking a hard-line white-supremacy position,
and calling for action to keep African Americans out of white neigh-
borhoods. Justice Frankfurter for the Court sustained the statute
along the following reasoning. Libel of an individual, he estab-
lished, was a common-law crime and was now made criminal by
statute in every state in the Union. These laws raise no constitu-
tional difficulty because libel is within that class of speech that is
not protected by the First Amendment. If an utterance directed at
an individual may be the object of criminal sanctions, then no good
reason appears to deny a state the power to punish the same utter-
ances when they are directed at a defined group, “unless we can
say that this is a willful and purposeless restriction unrelated to
the peace and well-being of the State.” 1246 The Justice then re-
viewed the history of racial strife in Illinois to conclude that the
legislature could reasonably have feared substantial evils from un-
restrained racial utterances. Nor did the Constitution require the
state to accept a defense of truth, because historically a defendant
had to show not only truth but publication with good motives and
for justifiable ends.1247 “Libelous utterances not being within the
1241 290 F.3d at 1089 (quoting majority opinion at 1077 and adding emphasis).
1242 290 F.3d at 1089, 1091, 1092 (emphasis in original).
1243 290 F.3d at 1094 (citation omitted).
1244 343 U.S. 250 (1952).
1245 Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942); Near v. Minne-
sume, from the fact that a defendant burned a cross, that he had an intent to intimi-
date. The state must prove that he did, as “a burning cross is not always intended
to intimidate,” but may constitute a constitutionally protected expression of opinion.
Id. at 365–66.
1254 538 U.S. at 362–63.
1255 582 U.S. ___, No. 15–1293, slip op. (2017).
1256 Id. at 1.
1257 Id. at 1–2.
1258 376 U.S. 254 (1964).
1300 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1259 376 U.S. at 269. Justices Black, Douglas, and Goldberg, concurring, would
petitions to the government, the Court having rejected the argument that the peti-
tion clause requires absolute immunity. McDonald v. Smith, 472 U.S. 479 (1985).
1266 Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952).
1267 379 U.S. 64 (1964).
1268 384 U.S. 195 (1966).
1269 Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
1302 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ation area employed by and responsible to the county commissioners may be public
official within Times rule); Garrison v. Louisiana, 379 U.S. 64 (1964) (elected munici-
pal judges); Henry v. Collins, 380 U.S. 356 (1965) (county attorney and chief of po-
lice); St. Amant v. Thompson, 390 U.S. 727 (1968) (deputy sheriff); Greenbelt Coop-
erative Pub. Ass’n v. Bresler, 398 U.S. 6 (1970) (state legislator who was major real
estate developer in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain).
The categorization does not, however, include all government employees. Hutchinson
v. Proxmire, 443 U.S. 111, 119 n.8 (1979).
1271 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner Co. v.
inefficient, took excessive vacations, opposed official investigations of vice, and were
possibly subject to “racketeer influences.” The Court rejected an attempted distinc-
tion that these criticisms were not of the manner in which the judges conducted
their courts but were personal attacks upon their integrity and honesty. “Of course,
any criticism of the manner in which a public official performs his duties will tend
to affect his private, as well as his public, reputation. . . . The public-official rule
protects the paramount public interest in a free flow of information to the people
concerning public officials, their servants. To this end, anything which might touch
on an official’s fitness for office is relevant. Few personal attributes are more ger-
mane to fitness for office than dishonesty, malfeasance, or improper motivation, even
though these characteristics may also affect the official’s private character.” Id. at
76–77.
1274 In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274–75 (1971), the Court said:
“The principal activity of a candidate in our political system, his ‘office,’ so to speak,
consists in putting before the voters every conceivable aspect of his public and pri-
vate life that he thinks may lead the electorate to gain a good impression of him. A
candidate who, for example, seeks to further his cause through the prominent dis-
play of his wife and children can hardly argue that his qualities as a husband or
father remain of ‘purely private’ concern. And the candidate who vaunts his spotless
record and sterling integrity cannot convincingly cry ‘Foul’ when an opponent or an
industrious reporter attempts to demonstrate the contrary. . . . Given the realities
of our political life, it is by no means easy to see what statements about a candidate
might be altogether without relevance to his fitness for the office he seeks. The clash
of reputations is the staple of election campaigns and damage to reputation is, of
course, the essence of libel. But whether there remains some exiguous area of defa-
mation against which a candidate may have full recourse is a question we need not
decide in this case.”
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1303
1275 Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Chief Justice War-
ren concurring in the result). Curtis involved a college football coach, and Associ-
ated Press v. Walker, decided in the same opinion, involved a retired general active
in certain political causes. The suits arose from reporting that alleged, respectively,
the fixing of a football game and the leading of a violent crowd in opposition to en-
forcement of a desegregation decree. The Court was extremely divided, but the rule
that emerged was largely the one developed in the Chief Justice’s opinion. Essen-
tially, four Justices opposed application of the Times standard to “public figures,”
although they would have imposed a lesser but constitutionally based burden on
public figure plaintiffs. Id. at 133 (plurality opinion of Justices Harlan, Clark, Stew-
art, and Fortas). Three Justices applied Times, id. at 162 (Chief Justice Warren),
and 172 (Justices Brennan and White). Two Justices would have applied absolute
immunity. Id. at 170 (Justices Black and Douglas). See also Greenbelt Cooperative
Pub. Ass’n v. Bresler, 398 U.S. 6 (1970).
1276 Public figures “[f]or the most part [are] those who . . . have assumed roles
of especial prominence in the affairs of society. Some occupy positions of such persua-
sive power and influence that they are deemed public figures for all purposes. More
commonly, those classed as public figures have thrust themselves to the forefront of
particular public controversies in order to influence the resolution of the issues in-
volved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
1277 Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Rosenbloom had been prefig-
ured by Time, Inc. v. Hill, 385 U.S. 374 (1967), a “false light” privacy case consid-
ered infra
1278 418 U.S. 323 (1974).
1304 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
tices Rehnquist and O’Connor, and Chief Justice Burger and Justice White, both of
whom had dissented in Gertz, added brief concurring opinions agreeing that the Gertz
1306 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
fendant rather than a private defendant has been sued is left un-
clear. The plurality in Dun & Bradstreet declined to follow the lower
court’s rationale that Gertz protections are unavailable to nonmedia
defendants, and a majority of Justices agreed on that point.1289 In
Philadelphia Newspapers, however, the Court expressly reserved the
issue of “what standards would apply if the plaintiff sues a nonmedia
defendant.” 1290
Other issues besides who is covered by the Times privilege are
of considerable importance. The use of the expression “actual mal-
ice” has been confusing in many respects, because it is in fact a
concept distinct from the common law meaning of malice or the mean-
ings common understanding might give to it.1291 Constitutional “ac-
tual malice” means that the defamation was published with knowl-
edge that it was false or with reckless disregard of whether it was
false.1292 Reckless disregard is not simply negligent behavior, but
publication with serious doubts as to the truth of what is ut-
tered.1293 A defamation plaintiff under the Times or Gertz standard
has the burden of proving by “clear and convincing” evidence, not
merely by the preponderance of evidence standard ordinarily borne
in civil cases, that the defendant acted with knowledge of falsity or
with reckless disregard.1294 Moreover, the Court has held, a Gertz
plaintiff has the burden of proving the actual falsity of the defama-
tory publication.1295 A plaintiff suing the press 1296 for defamation
standard should not apply to credit reporting. Justice Brennan, joined by Justices
Marshall, Blackmun, and Stevens, dissented, arguing that Gertz had not been lim-
ited to matters of public concern, and should not be extended to do so.
1289 472 U.S. at 753 (plurality); id. at 773 (Justice White); id. at 781–84 (dis-
sent).
1290 475 U.S. at 779 n.4. Justice Brennan added a brief concurring opinion ex-
senting).
1292 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Garrison v. Loui-
siana, 379 U.S. 64, 78 (1964); Cantrell v. Forest City Publishing Co., 419 U.S. 245,
251–52 (1974).
1293 St. Amant v. Thompson, 390 U.S. 727, 730–33 (1968); Beckley Newspapers
Corp. v. Hanks, 389 U.S. 81 (1967). A finding of “highly unreasonable conduct consti-
tuting an extreme departure from the standards of investigation and reporting ordi-
narily adhered to by responsible publishers” is alone insufficient to establish actual
malice. Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989) (none-
theless upholding the lower court’s finding of actual malice based on the “entire re-
cord”).
1294 Gertz v. Robert Welch, Inc., 418 U.S. 323, 331–32 (1974); Beckley Newspa-
pers Corp. v. Hanks, 389 U.S. 81, 83 (1967). See New York Times Co. v. Sullivan,
376 U.S. 254, 285–86 (1964) (“convincing clarity”). A corollary is that the issue on
motion for summary judgment in a New York Times case is whether the evidence is
such that a reasonable jury might find that actual malice has been shown with con-
vincing clarity. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
1295 Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) (leaving open the
1296 Because the defendants in these cases have typically been media defen-
dants (but see Garrison v. Louisiana, 379 U.S. 64 (1964); Henry v. Collins, 380 U.S.
356 (1965)), and because of the language in the Court’s opinions, some have argued
that only media defendants are protected under the press clause and individuals
and others are not protected by the speech clause in defamation actions. See discus-
sion, supra, under “Freedom of Expression: Is There a Difference Between Speech
and Press?”
1297 Herbert v. Lando, 441 U.S. 153 (1979).
1298 New York Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964). See, e.g., NAACP
v. Claiborne Hardware Co., 458 U.S. 886, 933–34 (1982). Harte-Hanks Communica-
tions v. Connaughton, 491 U.S. 657, 688 (1989) (“the reviewing court must consider
the factual record in full”); Bose Corp. v. Consumers Union of United States, 466
U.S. 485 (1984) (the “clearly erroneous” standard of Federal Rule of Civil Procedure
52(a) must be subordinated to this constitutional principle).
1299 See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (“under the
implications in a newspaper sports column that a high school wrestling coach had
committed perjury in testifying about a fight involving his team.
1308 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
statements of fact are particularly valueless [because] they interfere with the truth-
seeking function of the marketplace of ideas.” ); Virginia State Bd. of Pharmacy Vir-
ginia Citizens Consumer Council, 425 U.S. at 771 (“Untruthful speech, commercial
or otherwise, has never been protected for its own sake.”).
1308 567 U.S. ___, No. 11–210, slip op. (2012).
1309 18 U.S.C. § 704.
1310 Alvarez, slip op. at 8–12 (Kenndy, J.). Justice Kennedy was joined by Chief
was also concerned about the breadth of the act, his opinion went
on to suggest that a similar statute, more finely tailored to situa-
tions where a specific harm is likely to occur, could withstand legal
challenge.1312
Invasion of Privacy.—Governmental power to protect the pri-
vacy interests of its citizens by penalizing publication or authoriz-
ing causes of action for publication implicates directly First Amend-
ment rights. Privacy is a concept composed of several aspects.1313
As a tort concept, it embraces at least four branches of protected
interests: protection from unreasonable intrusion upon one’s seclu-
sion, from appropriation of one’s name or likeness, from unreason-
able publicity given to one’s private life, and from publicity which
unreasonably places one in a false light before the public.1314
Although the Court has variously recognized valid governmen-
tal interests in extending protection to privacy,1315 it has neverthe-
less interposed substantial free expression interests in the balance.
Thus, in Time, Inc. v. Hill,1316 the Times privilege was held to pre-
clude recovery under a state privacy statute that permitted recov-
ery for harm caused by exposure to public attention in any publica-
tion which contained factual inaccuracies, although not necessarily
defamatory inaccuracies, in communications on matters of public in-
terest. Since Gertz held that the Times privilege did not limit the
recovery of compensatory damages for defamation by private per-
sons, the question arose whether Hill applies to all “false-light” cases
or only such cases involving public officials or public figures.1317 And,
more important, Gertz left unresolved the issue “whether the State
may ever define and protect an area of privacy free from unwanted
publicity in the press.” 1318
In Cox Broadcasting, the Court declined to pass on the broad
question, holding instead that the accurate publication of informa-
1312 Alvarez, slip op. at 8–9 (Breyer, J).
1313 See, e.g., WILLIAM PROSSER, LAW OF TORTS 117 (4th ed. 1971); Prosser, Privacy,
48 CALIF. L. REV. 383 (1960); J. THOMAS MCCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY
(1987); THOMAS EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 544–61 (1970). Note
that we do not have here the question of the protection of one’s privacy from govern-
mental invasion.
1314 Restatement (Second), of Torts §§ 652A–652I (1977). These four branches
Harlan, concurring in part and dissenting in part), 411, 412–15 (Justice Fortas dis-
senting); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487–89 (1975).
1316 385 U.S. 374 (1967). See also Cantrell v. Forest City Publishing Co., 419
are maintained in connection with a public prosecution and which themselves are
open to public inspection.” 420 U.S. at 491. There was thus involved both the First
Amendment and the traditional privilege of the press to report the events of judi-
cial proceedings. Id. at 493, 494–96.
1320 Thus, Justice White for the Court noted that the defense of truth is consti-
tutionally required in suits by public officials or public figures. But “[t]he Court has
nevertheless carefully left open the question whether the First and Fourteenth Amend-
ments require that truth be recognized as a defense in a defamatory action brought
by a private person as distinguished from a public official or public figure.” 420 U.S.
at 490. If truth is not a constitutionally required defense, then it would be possible
for the states to make truthful defamation of private individuals actionable and, more
important, truthful reporting of matters that constitute invasions of privacy action-
able. See Brasco v. Reader’s Digest, 4 Cal.3d 520, 483 P.2d 34, 93 Cal. Rptr. 866
(1971); Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E.2d 610 (1969), cert. de-
nied, 398 U.S. 960 (1970). Concurring in Cohn, 420 U.S. at 497, Justice Powell con-
tended that the question of truth as a constitutionally required defense was long
settled in the affirmative and that Gertz itself, which he wrote, was explainable on
no other basis. But he too would reserve the question of actionable invasions of pri-
vacy through truthful reporting. “In some instances state actions that are denomi-
nated actions in defamation may in fact seek to protect citizens from injuries that
are quite different from the wrongful damage to reputation flowing from false state-
ments of fact. In such cases, the Constitution may permit a different balance. And,
as today’s opinion properly recognizes, causes of action grounded in a State’s desire
to protect privacy generally implicate interests that are distinct from those pro-
tected by defamation actions.” 420 U.S. at 500.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1311
1321 The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the ques-
tion “whether, in cases where information has been acquired unlawfully by a news-
paper or by a source, the government may ever punish not only the unlawful acqui-
sition, but the ensuing publication as well.” Id. at 535 n.8 (emphasis in original). In
Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that a content-neutral stat-
ute prohibiting the publication of illegally intercepted communications (in this case
a cell phone conversation) violates free speech where the person who publishes the
material did not participate in the interception, and the communication concerns a
public issue.
1322 485 U.S. 46 (1988).
1323 485 U.S. at 47, 48.
1324 485 U.S. at 53.
1325 485 U.S. at 55.
1326 485 U.S. at 53, 56.
1312 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1327 562 U.S. ___, No. 09–751, slip op. (March 2, 2011).
1328 Signs displayed at the protest included the phrases “God Hates the USA/Thank
God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,”
“Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,”
“You’re Going to Hell,” and “God Hates You.” Slip op. at 2.
1329 Slip op. at 8 (citations omitted).
1330 Justice Alito, in dissent, argued that statements made by the defendants
on signs and on a website could have been reasonably interpreted as directed at the
plaintiffs, and that even if public themes were a dominant theme at the protest,
that this should not prevent a suit from being brought on those statements argu-
ably directed at private individuals. Slip op. at 9–11 (Alito, J., dissenting).
1331 433 U.S. 562 (1977). The “right of publicity” tort is conceptually related to
one of the privacy strands: “appropriation” of one’s name or likeness for commercial
purposes. Id. at 569–72. Justices Powell, Brennan, and Marshall dissented, finding
the broadcast protected, id. at 579, and Justice Stevens dissented on other grounds.
Id. at 582.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1313
1332 433 U.S. at 573–74. Plaintiff was not seeking to bar the broadcast but rather
considering how copyright laws in particular are to be reconciled with the First Amend-
ment. The Court emphasizes that copyright laws encourage the production of work
for the public’s benefit.
1334 Landmark Communications v. Virginia, 435 U.S. 829 (1978). The decision
by Chief Justice Burger was unanimous, Justices Brennan and Powell not partici-
pating, but Justice Stewart would have limited the holding to freedom of the press
to publish. Id. at 848. See also Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979).
1335 435 U.S. at 838–42. The Court disapproved of the state court’s use of the
clear-and-present-danger test: “Mr. Justice Holmes’ test was never intended ‘to ex-
press a technical legal doctrine or to convey a formula for adjudicating cases.’ ” Id.
at 842, quoting from Pennekamp v. Florida, 328 U.S. 331, 353 (1946) (Frankfurter,
J. concurring).
1336 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), in the context of a
civil proceeding, had held that the First Amendment did not permit the imposition
of liability on the press for truthful publication of information released to the public
in official court records, id. at 496, but had expressly reserved the question “whether
the publication of truthful information withheld by law from the public domain is
similarly privileged,” id. at 497 n.27, and Landmark on its face appears to answer
1314 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
the question affirmatively. Caution is impelled, however, by the Court’s similar res-
ervation. “We need not address all the implications of that question here, but only
whether in the circumstances of this case Landmark’s publication is protected by
the First Amendment.” 435 U.S. at 840.
1337 See Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).
1338 Butterworth v. Smith, 494 U.S. 624 (1990).
1339 Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative of the general
343 U.S. 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954);
Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The last case involved the
banning of the movie Lady Chatterley’s Lover on the ground that it dealt too sympa-
thetically with adultery. “It is contended that the State’s action was justified be-
cause the motion picture attractively portrays a relationship which is contrary to
the moral standards, the religious precepts, and the legal code of its citizenry. This
argument misconceives what it is that the Constitution protects. Its guarantee is
not confined to the expression of ideas that are conventional or shared by a major-
ity. It protects advocacy of the opinion that adultery may sometimes be proper no
less than advocacy of socialism or the single tax. And in the realm of ideas it pro-
tects expression which is eloquent no less than that which is unconvincing.” Id. at
688–89.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1315
ion was Alberts v. California, involving, of course, a state obscenity law. The Court’s
first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957), con-
sidered infra. Earlier the Court had divided four-to-four and thus affirmed a state
court judgment that Edmund Wilson’s Memoirs of Hecate County was obscene. Doubleday
& Co. v. New York, 335 U.S. 848 (1948).
1343 Roth v. United States, 354 U.S. 476, 481 (1957). Justice Brennan later changed
his mind on this score, arguing that, because the Court had failed to develop a work-
able standard for distinguishing the obscene from the non-obscene, regulation should
be confined to the protection of children and non-consenting adults. See Paris Adult
Theatre v. Slaton, 413 U.S. 49 (1973).
1344 354 U.S. at 482–83. The reference is to Beauharnais v. Illinois, 343 U.S.
250 (1952).
1345 354 U.S. at 484. There then followed the well-known passage from Chaplinsky
e.g., in art, literature and scientific works, is not itself sufficient rea-
son to deny material the constitutional protection of freedom of speech
and press . . . . It is therefore vital that the standards for judging
obscenity safeguard the protection of freedom of speech and press
for material which does not treat sex in a manner appealing to pru-
rient interest.” 1347 The standard that the Court thereupon adopted
for the designation of material as unprotected obscenity was “whether
to the average person, applying contemporary community stan-
dards, the dominant theme of the material taken as a whole ap-
peals to prurient interest.” 1348 The Court defined material appeal-
ing to prurient interest as “material having a tendency to excite
lustful thoughts,” and defined prurient interest as “a shameful or
morbid interest in nudity, sex, or excretion.” 1349
In the years after Roth, the Court struggled with many obscen-
ity cases with varying degrees of success. The cases can be grouped
topically, but, with the exception of those cases dealing with protec-
tion of children, 1350 unwilling adult recipients, 1351 and proce-
dure,1352 these cases are best explicated chronologically.
lasciviousness or lust” covers more than obscenity, the Court later indicated in Brockett
v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985); obscenity consists in appeal to
“a shameful or morbid” interest in sex, not in appeal to “normal, healthy sexual de-
sires.” Brockett involved a facial challenge to the statute, so the Court did not have
to explain the difference between “normal, healthy” sexual desires and “shameful”
or “morbid” sexual desires.
1350 In Butler v. Michigan, 352 U.S. 380 (1957), the Court unanimously re-
397 U.S. 728 (1970), which upheld a scheme by which recipients of objectionable
mail could put their names on a list and require the mailer to send no more such
material. But, absent intrusions into the home, FCC v. Pacifica Foundation, 438 U.S.
726 (1978), or a degree of captivity that makes it impractical for the unwilling viewer
or auditor to avoid exposure, government may not censor content, in the context of
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1317
Manual Enterprises v. Day 1353 upset a Post Office ban upon the
mailing of certain magazines addressed to homosexual audiences,
but resulted in no majority opinion of the Court. Nor did a major-
ity opinion emerge in Jacobellis v. Ohio, which reversed a convic-
tion for exhibiting a motion picture.1354 Chief Justice Warren’s con-
currence in Roth 1355 was adopted by a majority in Ginzburg v. United
States,1356 in which Justice Brennan for the Court held that in “close”
cases borderline materials could be determined to be obscene if the
of obscene materials provide for expedited consideration, for placing the burden of
proof on government, and for hastening judicial review. Additionally, Fourth Amend-
ment search and seizure law has been suffused with First Amendment principles,
so that the law governing searches for and seizures of allegedly obscene materials is
more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717
(1961); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Heller v. New York, 413
U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973); Lo-Ji Sales v. New York,
442 U.S. 319 (1979); see also Walter v. United States, 447 U.S. 649 (1980). Scienter—
that is, knowledge of the nature of the materials—is a prerequisite to conviction,
Smith v. California, 361 U.S. 147 (1959), but the prosecution need only prove the
defendant knew the contents of the material, not that he knew they were legally
obscene. Hamling v. United States, 418 U.S. 87, 119–24 (1974). See also Vance v.
Universal Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of show-
ing future films on basis of past exhibition of obscene films constitutes impermis-
sible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defen-
dants may not be bound by a finding of obscenity of materials in prior civil proceeding
to which they were not parties). None of these strictures applies, however, to forfei-
tures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S.
544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and
film business of an individual convicted of obscenity and racketeering offenses). Jus-
tice Kennedy, dissenting in Alexander, objected to the “forfeiture of expressive mate-
rial that had not been adjudged to be obscene.” Id. at 578.
1353 370 U.S. 478 (1962).
1354 378 U.S. 184 (1964). Without opinion, citing Jacobellis, the Court reversed
a judgment that Henry Miller’s Tropic of Cancer was obscene. Grove Press v. Gerstein,
378 U.S. 577 (1964). Jacobellis is best known for Justice Stewart’s concurrence, con-
tending that criminal prohibitions should be limited to “hard-core pornography.” The
category “may be indefinable,” he added, but “I know it when I see it, and the mo-
tion picture involved in this case is not that.” Id. at 197. The difficulty with this
visceral test is that other members of the Court did not always “see it” the same
way; two years later, for example, Justice Stewart was on opposite sides in two ob-
scenity decisions decided on the same day. A Book Named “John Cleland’s Memoirs
of a Woman of Pleasure” v. Attorney Genera, 383 U.S. 413 (1966) (concurring on
basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966)
(dissenting from finding that material was obscene).
1355 Roth v. United States, 354 U.S. 476, 494 (1957).
1356 383 U.S. 463 (1966). Pandering remains relevant in pornography cases. Splawn
v. California, 431 U.S. 595 (1977); Pinkus v. United States, 436 U.S. 293, 303–04
(1978).
1318 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
of the legal issue raised by the limited appeal of the material. The Court relied on
Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977).
1358 A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attor-
ion, see Marks v. United States, 430 U.S. 188, 192–94 (1977).
1360 386 U.S. 767 (1967).
1361 386 U.S. at 771.
1362 386 U.S. at 770–71. The majority was thus composed of Chief Justice War-
ren and Justices Black, Douglas, Brennan, Stewart, White, and Fortas.
1363 See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82–83 & n.8 (1973) (Jus-
tice Brennan dissenting) (describing Redrup practice and listing 31 cases decided on
the basis of it).
1364 See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dis-
rials from baggage of travelers are constitutional). In Grove Press v. Maryland State
Bd. of Censors, 401 U.S. 480 (1971), a state court determination that the motion
picture “I Am Curious (Yellow)” was obscene was affirmed by an equally divided Court,
Justice Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560–64,
568 (1969), had insisted that Roth remained the governing standard.
1365 Paris Adult Theatre I v. Slaton, 408 U.S. 921 (1972); Alexander v. Virginia,
tice Brennan argued that the Court’s Roth approach allowing the suppression of por-
nography was a failure, that the Court had not and could not formulate standards
by which protected materials could be distinguished from unprotected materials, and
that the First Amendment had been denigrated through the exposure of numerous
persons to punishment for the dissemination of materials that fell close to one side
of the line rather than the other, but more basically by deterrence of protected ex-
pression caused by the uncertainty. Id. at 73. “I would hold, therefore, that at least
in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults,
the First and Fourteenth Amendments prohibit the State and Federal Governments
from attempting wholly to suppress sexually oriented materials on the basis of their
allegedly ‘obscene’ contents.” Id. at 113. Justices Stewart and Marshall joined this
1320 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
opinion; Justice Douglas dissented separately, adhering to the view that the First
Amendment absolutely protected all expression. Id. at 70.
1368 413 U.S. 15 (1973).
1369 Miller v. California, 413 U.S. 15, 27 (1973). The Court stands ready to read
into federal statutes the standards it has formulated. United States v. 12 200–Ft.
Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes
proscribing materials that are “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” and
“immoral” as limited to the types of “hard core” pornography reachable under the
Miller standards). For other cases applying Miller standards to federal statutes, see
Hamling v. United States, 418 U.S. 87, 110–16 (1974) (use of the mails); United States
v. Orito, 413 U.S. 139 (1973) (transportation of pornography in interstate com-
merce). The Court’s insistence on specificity in state statutes, either as written by
the legislature or as authoritatively construed by the state court, appears to have
been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431
U.S. 767 (1977).
1370 Miller v. California, 413 U.S. at 24.
1371 It is the unprotected nature of obscenity that allows this inquiry; offensive-
ness to local community standards is, of course, a principle completely at odds with
mainstream First Amendment jurisprudence. See, e.g., Texas v. Johnson, 491 U.S.
397 (1989); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
1372 413 U.S. at 30–34. “A juror is entitled to draw on his knowledge of the views
of the average person in the community or vicinage from which he comes for mak-
ing the required determination, just as he is entitled to draw on his knowledge of
the propensities of a ‘reasonable’ person in other areas of the law.” Hamling v. United
States, 418 U.S. 87, 104 (1974). The holding does not compel any particular circum-
scribed area to be used as a “community.” In federal cases, it will probably be the
judicial district from which the jurors are drawn, id. at 105–106. Indeed, the jurors
may be instructed to apply “community standards” without any definition being given
of the “community.” Jenkins v. Georgia, 418 U.S. 153, 157 (1974). In a federal pros-
ecution for use of the mails to transmit pornography, the fact that the legislature of
the state within which the transaction takes place has abolished pornography regu-
lation except for dealings with children does not preclude permitting the jurors in
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1321
Hamling v. United States, 418 U.S. 87, 114 (1974), the Court reiterated that it was
only “hard-core” material that was unprotected. “While the particular descriptions
there contained were not intended to be exhaustive, they clearly indicate that there
is a limit beyond which neither legislative draftsmen nor juries may go in conclud-
ing that particular material is ‘patently offensive’ within the meaning of the obscen-
ity test set forth in the Miller cases.” Referring to this language in Ward v. Illinois,
431 U.S. 767 (1977), the Court upheld a state court’s power to construe its statute
to reach sadomasochistic materials not within the confines of the Miller language.
1375 Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1984).
1376 Kaplan v. California, 413 U.S. 115 (1973).
1377 413 U.S. at 25.
1378 418 U.S. 153 (1974).
1322 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
U.S. 188 (1977); Smith v. United States, 431 U.S. 291 (1977); Splawn v. California,
431 U.S. 595 (1977); and Ward v. Illinois, 431 U.S. 767 (1977).
1382 Stanley v. Georgia, 394 U.S. 557 (1969).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1323
of unprotected material for private use may be prohibited, United States v. Orito,
413 U.S. 139 (1973), and the mails may be closed, United States v. Reidel, 402 U.S.
351 (1971), as may channels of international movement, United States v. Thirty-
seven Photographs, 402 U.S. 363 (1971); United States v. 12 200–Ft. Reels of Film,
413 U.S. 123 (1973).
1387 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–70 (1973) (commercial show-
ing of obscene films to consenting adults); Barnes v. Glen Theatre, Inc., 501 U.S.
560 (1991) (regulation of non-obscene, nude dancing restricted to adults).
1388 Osborne v. Ohio, 495 U.S. 103 (1990).
1324 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
acted the PROTECT Act, Pub. L. 108–21, 117 Stat. 650 (2003), which, despite the
decision in that case, defined “child pornography” so as to continue to prohibit computer-
generated child pornography (but not other types of child pornography produced with-
out an actual minor). 18 U.S.C. § 2256(8)(B). In United States v. Williams, 128 S.
Ct. 1830, 1836 (2008), the Court, without addressing the PROTECT Act’s new defi-
nition, cited Ashcroft v. Free Speech Coalition with approval.
1402 128 S. Ct. 1830 (2008).
1403 18 U.S.C. § 2252A(a)(3)(B).
1326 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
cast speech, which, because of its pervasive presence in the home and its accessibil-
ity to children, is accorded “the most limited First Amendment protection” of all me-
dia; non-obscene but indecent language and nudity may be curtailed, with the time
of day and other circumstances determining the extent of curtailment. FCC v. Pacifica
Foundation, 438 U.S. 726, 748 (1978). However, efforts by Congress and the FCC to
extend the indecency ban to 24 hours a day were rebuffed by an appeals court. Ac-
tion for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating
regulations promulgated pursuant to Pub. L. 100–459, § 608), cert. denied, 503 U.S.
913 (1992). Earlier, the same court had invalidated an FCC restriction on indecent,
non-obscene broadcasts from 6 a.m. to midnight, finding that the FCC had failed to
adduce sufficient evidence to support the restraint. Action for Children’s Television
v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988). In 1992, however, Congress imposed a
6 a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight excep-
tion for public radio and television stations that go off the air at or before midnight.
Pub. L. 102–356, § 16 (1992), 47 U.S.C. § 303 note. This time, after a three-judge
panel found the statute unconstitutional, the en banc court of appeals upheld it,
except for its 10 p.m.-to-midnight ban on indecent material on non-public stations.
Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert.
denied, 516 U.S. 1043 (1996). See also “Broadcast Radio and Television,” supra.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1327
1408 Justice Scalia, concurring in Sable Communications v. FCC, 492 U.S. 115,
132 (1989), suggested that there should be a “sliding scale” taking into account the
definition of obscenity: “The more narrow the understanding of what is ‘obscene,’
and hence the more pornographic what is embraced within the residual category of
‘indecency,’ the more reasonable it becomes to insist upon greater assurance of insu-
lation from minors.” Barnes v. Glen Theatre, 501 U.S. 560 (1991), upholding regula-
tion of nude dancing even in the absence of a threat to minors, may illustrate a
general willingness by the Court to apply soft rather than strict scrutiny to regula-
tion of more sexually explicit expression.
1409 See Sable Communications v. FCC, 492 U.S. 115 (1989) (FCC’s “dial-a-porn”
rules imposing a total ban on “indecent” speech are unconstitutional, given less re-
strictive alternatives—e.g., credit cards or user IDs—of preventing access by chil-
dren). Pacifica Foundation is distinguishable, the Court reasoned, because that case
did not involve a “total ban” on broadcast, and also because there is no “captive
audience” for the “dial-it” medium, as there is for the broadcast medium. 492 U.S.
at 127–28. Similar rules apply to regulation of cable TV. In Denver Area Educa-
tional Telecommunications Consortium v. FCC, 518 U.S. 727, 755 (1996), the Court,
acknowledging that protection of children from sexually explicit programming is a
“compelling” governmental interest (but refusing to determine whether strict scru-
tiny applies), nonetheless struck down a requirement that cable operators segregate
and block indecent programming on leased access channels. The segregate-and-
block restrictions, which included a requirement that a request for access be in writ-
ing, and which allowed for up to 30 days’ delay in blocking or unblocking a channel,
were not sufficiently protective of adults’ speech and viewing interests to be consid-
ered either narrowly or reasonably tailored to serve the government’s compelling in-
terest in protecting children. In United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803 (2000), the Supreme Court, explicitly applying strict scrutiny to a content-
based speech restriction on cable TV, struck down a federal statute designed to “shield
children from hearing or seeing images resulting from signal bleed.” Id. at 806.
The Court seems to be becoming less absolute in viewing the protection of all
minors (regardless of age) from all indecent material (regardless of its educational
value and parental approval) to be a compelling governmental interest. In striking
down the Communications Decency Act of 1996, the Court would “neither accept
nor reject the Government’s submission that the First Amendment does not forbid a
blanket prohibition on all ‘indecent’ and ‘patently offensive’ messages communicated
to a 17-year-old—no matter how much value the message may have and regardless
of parental approval. It is at least clear that the strength of the Government’s inter-
est in protecting minors is not equally strong throughout the coverage of this broad
statute.” Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). In Playboy
Entertainment Group, 529 U.S. at 825, the Court wrote: “Even upon the assumption
that the government has an interest in substituting itself for informed and empow-
ered parents, its interest is not sufficiently compelling to justify this widespread re-
striction on speech.” The Court also would “not discount the possibility that a graphic
1328 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
image could have a negative impact on a young child” (id. at 826), thereby suggest-
ing again that it may take age into account when applying strict scrutiny.
1410 521 U.S. 844 (1997).
1411 The other provision the Court struck down would have prohibited indecent
is not necessarily obscene under the Miller test. In Ginsberg v. New York, 390 U.S.
629, 641 (1968), the Supreme Court, applying a rational basis standard, upheld New
York’s harmful-to-minors statute.
1416 ACLU v. Reno, 217 F.3d 162, 166 (3d Cir. 2000).
1417 Ashcroft v. ACLU, 535 U.S. 564, 585 (2002) (emphasis in original).
1418 Ashcroft v. ACLU, 542 U.S. 656, 667 (2004). Justice Breyer, dissenting, wrote
that blocking and filtering software is not a less restrictive alternative because “it is
part of the status quo” and “[i]t is always less restrictive to do nothing than to do
something.” Id. at 684. The majority opinion countered that Congress “may act to
encourage the use of filters,” and “[t]he need for parental cooperation does not auto-
matically disqualify a proposed less restrictive alternative.” Id. at 669.
1419 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa.
2007), aff’d sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d
Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009).
1330 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ies do not have the capacity to unblock specific Web sites or to disable the filter . . .
that would be the subject for an as-applied challenge, not the facial challenge made
in this case.” 539 U.S. at 215. Justice Souter, dissenting, noted that “the statute
says only that a library ‘may’ unblock, not that it must.” 539 U.S. at 233.
1425 539 U.S. at 212.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1331
jority Justices thought the speech involved deserved less First Amendment protec-
tion than other expression, id. at 63–71, while Justice Powell, concurring, thought
the ordinance was sustainable as a measure that served valid governmental inter-
ests and only incidentally affected expression. Id. at 73. Justices Stewart, Brennan,
Marshall, and Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton
v. Playtime Theatres, 475 U.S. 41 (1986), upholding a city ordinance prohibiting lo-
cation of adult theaters within 1,000 feet of residential areas, churches, or parks,
and within one mile of any school. Rejecting the claim that the ordinance regulated
content of speech, the Court indicated that such time, place and manner regulations
are valid if “designed to serve a substantial governmental interest” and if “allow-
[ing] for reasonable alternative avenues of communication.” Id. at 50. The city had
a substantial interest in regulating the “undesirable secondary effects” of such busi-
nesses. And, although the suitability for adult theaters of the remaining 520 acres
within the city was disputed, the Court held that the theaters “must fend for them-
selves in the real estate market,” and are entitled only to “a reasonable opportunity
to open and operate.” Id. at 54. The Supreme Court also upheld zoning of sexually
oriented businesses in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), and City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
1427 Arcara v. Cloud Books, 478 U.S. 697, 707 (1986).
1428 Erznoznik v. City of Jacksonville, 422 U.S. 204 (1975).
1429 Sable Communications of California v. FCC, 492 U.S. 115 (1989).
1430 501 U.S. 560 (1991).
1431 501 U.S. at 568 (Chief Justice Rehnquist, joined by Justices O’Connor and
Kennedy).
1432 501 U.S. at 581 (Justice Souter).
1332 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1433 501 U.S. at 572 (Justice Scalia). The Justice thus favored application of the
109, 118 (1972); Southeastern Promotions v. Conrad, 420 U.S. 546, 557–58 (1975);
Doran v. Salem Inn, 422 U.S. 922, 932 (1975); Schad v. Borough of Mount Ephraim,
452 U.S. 61, 66 (1981); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 716,
718 (1981). Presumably, then, the distinction between barroom erotic dancing, en-
titled to minimum protection, and social “ballroom” dancing, not expressive and hence
not entitled to First Amendment protection (see City of Dallas v. Stanglin, 490 U.S.
19, 24 (1989)), still hangs by a few threads. Justice Souter, concurring in Barnes,
501 U.S. 560, 587 (1991), recognized the validity of the distinction between ball-
room and erotic dancing, a validity that had been questioned by a dissent in the
lower court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128–29 (7th Cir.
1990) (Easterbrook, J.).
1435 Although Justice Souter relied on what were essentially zoning cases (Young
tions v. Conrad, 420 U.S. 546 (1975) (invalidating the denial of use of a public audi-
torium for a production of the musical “Hair,” in the absence of procedural safe-
guards that must accompany a system of prior restraint). Presumably the Barnes
plurality’s public-morality rationale would apply equally to the “adult” stage and to
the operatic theater, while Justice Souter’s secondary effects rationale would not.
But the plurality ducked this issue, reinterpreting the lower court record to deny
that Indiana had distinguished between “adult” and theatrical productions. 501 U.S.
at 564 n.1 (Chief Justice Rehnquist); id. at 574 n.2 (Justice Scalia). On the other
hand, the fact that the state authorities disclaimed any intent to apply the statute
to theatrical productions demonstrated to dissenting Justice White (who was joined
by Justices Marshall, Blackmun, and Stevens) that the statute was not a general
prohibition on public nudity, but instead was targeted at “the communicative aspect
of the erotic dance.” Id. at 591.
1437 The Court had only recently affirmed that music is entitled to First Amend-
ment protection independently of the message conveyed by any lyrics (Ward v. Rock
Against Racism, 491 U.S. 781 (1989)), so it seems implausible that the Court was
signaling a narrowing of protection to only ideas and opinions. Rather, the Court
seems willing to give government the benefit of the doubt when it comes to legiti-
mate objectives in regulating expressive conduct that is sexually explicit. For an ex-
tensive discourse on the expressive aspects of dance and the arts in general, and
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1333
the striptease in particular, see Judge Posner’s concurring opinion in the lower court’s
disposition of Barnes. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th
Cir. 1990).
1438 529 U.S. 277 (2000).
1439 529 U.S. at 292, 291.
1440 529 U.S. 310–311.
1441 529 U.S. at 316.
1442 529 U.S. at 301. The plurality said that, though nude dancing is “expres-
sive conduct,” we think that it falls “only within the outer ambit of the First Amend-
ment’s protection.” Id. at 289. The opinion also quotes Justice Stevens to the same
effect with regard to erotic materials generally. Id. at 294. In United States v. Play-
boy Entertainment Group, Inc., 529 U.S. 803, 826 (2000), however, the Court wrote
that it “cannot be influenced . . . by the perception that the regulation in question
is not a major one because the speech [‘signal bleed’ of sexually oriented cable pro-
gramming] is not very important.”
1443 529 U.S. at 301.
1334 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1444 Commonwealth v. Davis, 162 Mass. 510, 511 (1895). “For the Legislature
The Roberts view was called into question in the 1960s, how-
ever, when the Court seemed to leave the issue open,1448 and when
a majority endorsed an opinion by Justice Black asserting his own
narrower view of speech rights in public places.1449 Later decisions
restated and quoted the Roberts language from Hague, and that is
now the position of the Court.1450 Public streets and parks,1451 in-
cluding those adjacent to courthouses 1452 and foreign embas-
sies,1453 as well as public libraries 1454 and the grounds of legisla-
tive bodies,1455 are open to public demonstrations, although the uses
to which public areas are dedicated may shape the range of permis-
sible expression and conduct that may occur there.1456 Moreover, not
1448 Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of this case in the
broader context, see Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965
SUP. CT. REV. 1.
1449 Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47–48; Cox v. Louisiana,
379 U.S. 559, 578 (1965) (Justice Black concurring in part and dissenting in part);
Jamison v. Texas, 318 U.S. 413, 416 (1943) (Justice Black for the Court).
1450 E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 (1969); Grayned
v. City of Rockford, 408 U.S. 104, 115 (1972); Carey v. Brown, 447 U.S. 455, 460
(1980).
1451 Hague v. CIO, 307 U.S. 496 (1939); Niemotko v. Maryland, 340 U.S. 268
(1951); Kunz v. New York, 340 U.S. 290 (1951); Shuttlesworth v. City of Birming-
ham, 394 U.S. 147 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Grayned
v. City of Rockford, 408 U.S. 104 (1972); Greer v. Spock, 424 U.S. 828, 835–36 (1976);
Carey v. Brown, 447 U.S. 455 (1980).
1452 Narrowly drawn statutes that serve the state’s interests in security and in
based a District of Columbia law prohibiting the display of any sign within 500 feet
of a foreign embassy if the sign tends to bring the foreign government into “public
odium” or “public disrepute.” However, another aspect of the District’s law, making
it unlawful for three or more persons to congregate within 500 feet of an embassy
and refuse to obey a police dispersal order, was upheld; under a narrowing construc-
tion, the law had been held applicable only to congregations directed at an embassy,
and reasonably believed to present a threat to the peace or security of the embassy.
1454 Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library reading room).
1455 Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette Rankin Brigade
v. Capitol Police Chief, 342 F. Supp. 575 (D.C. 1972) (three-judge court), aff’d, 409
U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United
States Capitol grounds).
1456 E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining ordi-
all public properties are public forums. “[T]he First Amendment does
not guarantee access to property simply because it is owned or con-
trolled by the government.” 1457 “The crucial question is whether the
manner of expression is basically compatible with the normal activ-
ity of a particular place at a particular time.” 1458 Thus, by the na-
ture of the use to which the property is put or by tradition, some
sites are simply not as open for expression as streets and parks
are.1459 But if government does open non-traditional forums for ex-
pressive activities, it may not discriminate on the basis of content
or viewpoint in according access.1460 The Court, however, remains
divided with respect to the reach of the public forum doctrine.1461
Speech in public forums is subject to time, place, and manner
regulations that take into account such matters as control of traffic
in the streets, the scheduling of two meetings or demonstrations at
the same time and place, the preventing of blockages of building
entrances, and the like.1462 Such regulations are closely scrutinized
in order to protect free expression, and, to be valid, must be justi-
fied without reference to the content or subject matter of speech,1463
any residence or dwelling, narrowly construed as prohibiting only picketing that tar-
gets a particular residence, upheld as furthering significant governmental interest
in protecting the privacy of the home).
1457 United States Postal Serv. v. Council of Greenburgh Civic Assn’s, 453 U.S.
114 (1981).
1458 Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
1459 E.g., Adderley v. Florida, 385 U.S. 39 (1966) (jails); Lehman v. City of Shaker
Heights, 418 U.S. 298 (1974) (advertising space in city rapid transit cars); Greer v.
Spock, 424 U.S. 828 (1976) (military bases); United States Postal Service v. Council
of Greenburgh Civic Ass’ns, 453 U.S. 114 (1981) (private mail boxes); Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (interschool mail system);
ISKCON v. Lee, 505 U.S. 672 (1992) (publicly owned airport terminal).
1460 E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (munici-
pal theater); Madison School District v. WERC, 429 U.S. 167 (1976) (school board
meeting); Heffron v. ISKCON, 452 U.S. 640 (1981) (state fair grounds); Widmar v.
Vincent, 454 U.S. 263 (1981) (university meeting facilities).
1461 Compare United States Postal Service v. Council of Greenburgh Civic Ass’ns,
454 U.S. 114, 128–31 (1981), with id. at 136–40 (Justice Brennan concurring), and
142 (Justice Marshall dissenting). For evidence of continuing division, compare ISKCON
v. Lee, 505 U.S. 672 (1992) with id. at 693 (Justice Kennedy concurring).
1462 See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647–50 (1981), and id. at 656
(Justice Brennan concurring in part and dissenting in part) (stating law and discuss-
ing cases); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (pro-
hibition of sleep-in demonstration in area of park not designated for overnight camp-
ing).
1463 Niemotko v. Maryland, 340 U.S. 268 (1951); Cox v. Louisiana, 379 U.S. 536
(1965); Police Dep’t of Chicago v. Mosle, 408 U.S. 92 (1972); Madison School District
v. WERC, 429 U.S. 167 (1976); Carey v. Brown, 447 U.S. 455 (1980); Widmar v. Vin-
cent, 454 U.S. 263 (1981). In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974),
a divided Court permitted the city to sell commercial advertising space on the walls
of its rapid transit cars but to refuse to sell political advertising space.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1337
public forum, Heffron v. ISKCON, 452 U.S. 640, 650 (1981); the interest in preserva-
tion of a learning atmosphere in school, Grayned v. City of Rockford, 408 U.S. 104,
115 (1972); and the interest in protecting traffic and pedestrian safety in the streets,
Cox v. Louisiana, 379 U.S. 536, 554–55 (1965); Kunz v. New York, 340 U.S. 290,
293–94 (1951); Hague v. CIO, 307 U.S. 496, 515–16 (1939).
1465 Heffron v. ISKCON, 452 U.S. 640, 654–55 (1981); Consolidated Edison Co.
barred all picketing around school building except labor picketing); Carey v. Brown,
447 U.S. 455 (1980) (same); Widmar v. Vincent, 454 U.S. 263 (1981) (striking down
college rule permitting access to all student organizations except religious groups);
Niemotko v. Maryland, 340 U.S. 268 (1951) (striking down denial of permission to
use parks for some groups but not for others); R.A.V. v. City of St. Paul, 505 U.S.
377 (1992) (striking down ordinance that prohibited symbols, such as burning crosses,
that constituted fighting words that insult on the basis of some factors, such as race,
but not on the basis of other factors). These principles apply only to the traditional
public forum and to the governmentally created “limited public forum.” Government
may, without creating a limited public forum, place “reasonable” restrictions on ac-
1338 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
cess to nonpublic areas. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 48 (1983) (use of school mail system); and Cornelius v. NAACP Legal
Defense and Educational Fund, 473 U.S. 788 (1985) (charitable solicitation of fed-
eral employees at workplace). See also Lehman v. City of Shaker Heights, 418 U.S.
298 (1974) (city may sell commercial advertising space on the walls of its rapid tran-
sit cars but refuse to sell political advertising space); Capitol Square Review Bd. v.
Pinette, 515 U.S. 753 (1995) (denial of permission to Ku Klux Klan, allegedly in
order to avoid Establishment Clause violation, to place a cross in plaza on grounds
of state capitol); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (Univer-
sity’s subsidy for printing costs of student publications, available for student “news,
information, opinion, entertainment, or academic communications,” could not be with-
held because of the religious content of a student publication); Lamb’s Chapel v. Cen-
ter Moriches School Dist., 508 U.S. 384 (1993) (school district rule prohibiting after-
hours use of school property for showing of a film presenting a religious perspective
on child-rearing and family values, but allowing after-hours use for non-religious
social, civic, and recreational purposes).
1471 E.g., Hague v. CIO, 307 U.S. 496, 516 (1939); Schneider v. Town of Irvington,
308 U.S. 147, 164 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v.
New Hampshire, 345 U.S. 395 (1953); Staub v. City of Baxley, 355 U.S. 313, 321–25
(1958); Cox v. Louisiana, 379 U.S. 536, 555–58 (1965); Shuttlesworth v. City of Bir-
mingham, 394 U.S. 147, 150–53 (1969). Justice Stewart for the Court described these
and other cases as “holding that a law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license without narrow, objective, and definite
standards to guide the licensing authority is unconstitutional.” Id. at 150–51. A per-
son faced with an unconstitutional licensing law may ignore it, engage in the de-
sired conduct, and challenge the constitutionality of the permit system upon a sub-
sequent prosecution for violating it. Id. at 151; Jones v. Opelika, 316 U.S. 584, 602
(1942) (Chief Justice Stone dissenting), adopted per curiam on rehearing, 319 U.S.
103 (1943). See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750
(1988) (upholding facial challenge to ordinance vesting in the mayor unbridled dis-
cretion to grant or deny annual permit for location of newsracks on public prop-
erty); Riley v. National Fed’n of the Blind, 487 U.S. 781 (1988) (invalidating as per-
mitting “delay without limit” licensing requirement for professional fundraisers); Forsyth
County v. Nationalist Movement, 505 U.S. 123 (1992). But see Walker v. City of Bir-
mingham, 388 U.S. 307 (1967) (same rule not applicable to injunctions).
1472 In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), the Court re-
affirmed the holdings of the earlier cases, and, additionally, both Justice Stewart,
for the Court, id. at 155 n.4, and Justice Harlan concurring, id. at 162–64, asserted
that the principles of Freedman v. Maryland, 380 U.S. 51 (1965), governing systems
of prior censorship of motion pictures, were relevant to permit systems for parades
and demonstrations. The Court also voided an injunction against a protest meeting
that was issued ex parte, without notice to the protestors and with, of course, no
opportunity for them to rebut the representations of the seekers of the injunction.
Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175 (1968).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1339
1473 The only precedent is Kunz v. New York, 340 U.S. 290 (1951). The holding
was on a much narrower basis, but in dictum the Court said: “The court below has
mistakenly derived support for its conclusions from the evidence produced at the
trial that appellant’s religious meetings had, in the past, caused some disorder. There
are appropriate public remedies to protect the peace and order of the community if
appellant’s speeches should result in disorder and violence.” Id. at 294. A different
rule applies to labor picketing. See Milk Wagon Drivers Local 753 v. Meadowmoor
Dairies, 312 U.S. 287 (1941) (background of violence supports prohibition of all peace-
ful picketing). The military may ban a civilian, previously convicted of destroying
government property, from reentering a military base, and may apply the ban to
prohibit the civilian from reentering the base for purposes of peaceful demonstra-
tion during an Armed Forces Day “open house.” United States v. Albertini, 472 U.S.
675 (1985).
1474 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (a fee based
Hague v. CIO, 307 U.S. 496, 502 (1939); Cox v. Louisiana, 379 U.S. 536, 551 (1965);
Bachellar v. Maryland, 397 U.S. 564, 567 (1970), and one holding appears to point
this way. Gregory v. City of Chicago, 394 U.S. 111 (1969). Yet the Court upheld a
breach of the peace conviction of a speaker who refused to cease speaking upon the
demand of police who feared imminent violence. Feiner v. New York, 340 U.S. 315
(1951). In Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion), Jus-
tice Frankfurter wrote: “It is not a constitutional principle that, in acting to pre-
serve order, the police must proceed against the crowd whatever its size and temper
and not against the speaker.”
1476 “[A]lthough a park is a traditional public forum for speeches and other tran-
sitory expressive acts, the display of a permanent monument in a public park is not
a form of expression to which forum analysis applies. Instead, the placement of a
permanent monument in a public park is best viewed as a form of government speech
and is therefore not subject to scrutiny under the Free Speech Clause.” Pleasant
Grove City, Utah v. Summum, 555 U.S. at 464..
1340 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
(school board business),” 1477 but, within the framework of such le-
gitimate limitations, “a content-based prohibition must be nar-
rowly drawn to effectuate a compelling state interest.” 1478 Third,
with respect to “[p]ublic property which is not by tradition or desig-
nation a forum for public communication,” the government “may re-
serve the forum for its intended purposes, communicative or other-
wise, as long as the regulation on [sic] speech is reasonable and
not an effort to suppress expression merely because public officials
oppose the speaker’s view.” 1479 The distinction between the first and
second categories, on the one hand, and third category, on the other,
can therefore determine the outcome of a case, because speakers
may be excluded from the first and second categories only for a “com-
pelling” governmental interest, whereas exclusion from the third cat-
egory need only be “reasonable.”
The Court held that a school system did not create a limited
public forum by opening an interschool mail system to use by se-
lected civic groups “that engage in activities of interest and educa-
tional relevance to students,” and that, in any event, if a limited
public forum had thereby been created a teachers union rivaling
the exclusive bargaining representative could still be excluded as
not being “of a similar character” to the civic groups.1480 Less prob-
lematic was the Court’s conclusion that utility poles and other mu-
nicipal property did not constitute a public forum for the posting of
signs.1481 More problematic was the Court’s conclusion that the Com-
bined Federal Campaign, the Federal Government’s forum for coor-
dinated charitable solicitation of federal employees, is not a limited
1477 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 46 n.7
(1983).
1478 460 U.S. at 46.
1479 460 U.S. at 46. Candidate debates on public television are an example of
this third category of public property: the “nonpublic forum.” Arkansas Educational
Television Comm’n v. Forbes, 523 U.S. 666, 679 (1998). “Although public broadcast-
ing as a general matter does not lend itself to scrutiny under the forum doctrine
[i.e., public broadcasters ordinarily are entitled to the editorial discretion to engage
in viewpoint discrimination], candidate debates present the narrow exception to this
rule.” Id. at 675. A public broadcaster, therefore, may not engage in viewpoint dis-
crimination in granting or denying access to candidates. Under the third type of
forum analysis, however, it may restrict candidate access for “a reasonable, viewpoint-
neutral” reason, such as a candidate’s “objective lack of support.” Id. at 683.
1480 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983). This
was a 5–4 decision, with Justice White’s opinion of the Court being joined by Chief
Justice Burger and by Justices Blackmun, Rehnquist, and O’Connor, and with Jus-
tice Brennan’s dissent being joined by Justices Marshall, Powell, and Stevens. See
also Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (student newspaper
published as part of journalism class is not a public forum).
1481 City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding an
outright ban on use of utility poles for signs). The Court noted that “it is of limited
utility in the context of this case to focus on whether the tangible property itself
should be deemed a public forum.” Id. at 815 n.32.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1341
1482 Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985).
The precedential value of Cornelius may be subject to question, because it was de-
cided by 4–3 vote, the non-participating Justices (Marshall and Powell) having dis-
sented in Perry. Justice O’Connor wrote the opinion of the Court, joined by Chief
Justice Burger and by Justices White and Rehnquist. Justice Blackmun, joined by
Justice Brennan, dissented, and Justice Stevens dissented separately.
1483 473 U.S. at 802. Justice Blackmun criticized “the Court’s circular reasoning
that the CFC is not a limited public forum because the Government intended to
limit the forum to a particular class of speakers.” Id. at 813–14.
1484 Justice Kennedy criticized this approach in ISKCON v. Lee, 505 U.S. 672,
ment has not dedicated its property to First Amendment activity is examined only
for reasonableness.”).
1486 505 U.S. 672 (1992).
1342 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1487 Id. at 683 (“[N]either by tradition nor purpose can the terminals be de-
scribed as satisfying the standards we have previously set out for identifying a pub-
lic forum.”).
1488 539 U.S. 194, 205–06 (2003) (“We have ‘rejected the view that traditional
public forum status extends beyond its historic confines.’ The doctrines surrounding
traditional public forums may not be extended to situations where such history is
lacking.” (quoting Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 679 (1998))). While
decided on constitutional vagueness grounds, in Reno v. American Civil Liberties Union,
the Court struck down a provision of the Communications Decency Act of 1996 that
prohibited the use of an “interactive computer service” (i.e., the Internet) to display
indecent material “in a manner available to a person under 18 years of age.” 521
U.S. 844, 860 (1997). The Court did not consider the Internet’s status as a forum for
free speech, but observed that the Internet “constitutes a vast platform from which
to address and hear from a world-wide audience of millions of readers, viewers, re-
searchers, and buyers. Any person or organization with a computer connected to the
Internet can ‘publish’ information.” Id. at 853.
1489 American Library Association, 539 U.S. at 199; see also id. at 206 (“A pub-
lic library does not acquire Internet terminals in order to create a public forum for
Web publishers to express themselves, any more than it collects books in order to
provide a public forum for the authors of books to speak.”).
1490 Packingham v. North Carolina582 U.S. ___, No. 15–1194, slip op. at 4–5 (2017)
(quoting Am. Civil Liberties Union, 521 at 868); see also id. at ___, slip op. at 6
(“This case is one of the first this Court has taken to address the relationship be-
tween the First Amendment and the modern Internet. As a result, the Court must
exercise extreme caution before suggesting that the First Amendment provides scant
protection for access to vast networks in that medium.”).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1343
North Carolina statute at issue, it might well bar access not only to commonplace
social media websites but also to websites as varied as Amazon.com, Washingtonpost.com,
and Webmd.com.”). The Court was careful to point out, however, that its opinion
should not be read as barring states from enacting laws more specific than that of
North Carolina, noting that “[s]pecific criminal acts are not protected speech even if
speech is the means for their commission.” Id. (citing Brandenburg v. Ohio 395 U.
S. 444, 447–49 (1969)). Indeed, “it can be assumed that the First Amendment per-
mits a State to enact specific, narrowly tailored laws that prohibit a sex offender
from engaging in conduct that often presages a sexual crime, like contacting a mi-
nor or using a website to gather information about a minor.” Id.
1492 521 U.S. at 853. A federal court of appeals wrote: “Aspects of cyberspace
may, in fact, fit into the public forum category, although the Supreme Court has
also suggested that the category is limited by tradition. Compare Forbes, 523 U.S.
at 679 (‘reject[ing] the view that traditional public forum status extends beyond its
historic confines’ [to a public television station]) with Reno v. ACLU, 521 U.S. 844,
851–53 (1997) (recognizing the communicative potential of the Internet, specifically
the World Wide Web).” Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 843 (6th
Cir. 2000) (alternate citations to Forbes and Reno omitted). In Putnam Pit, the city
denied a private Web site’s request that the city’s Web site establish a hyperlink to
it, even though the city’s Web site had established hyperlinks to other private Web
sites. The court of appeals found that the city’s Web site was a nonpublic forum, but
that even nonpublic forums must be viewpoint neutral, so it remanded the case for
trial on the question of whether the city’s denial of a hyperlink had discriminated
on the basis of viewpoint.
1493 In Garner v. Louisiana, 368 U.S. 157, 185, 201–07 (1961), Justice Harlan,
concurring, would have reversed breach of the peace convictions of “sit-in” demon-
1344 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
property that private owners may not forbid expression upon it. In
Marsh v. Alabama,1494 the Court held that the private owner of a
company town could not forbid distribution of religious materials
by a Jehovah’s Witness on a street in the town’s business district.
The town, wholly owned by a private corporation, had all the attri-
butes of any American municipality, aside from its ownership, and
was functionally like any other town. In those circumstances, the
Court reasoned, “the more an owner, for his advantage, opens up
his property for use by the public in general, the more do his rights
become circumscribed by the statutory and constitutional rights of
those who use it.” 1495 This precedent lay unused for some twenty
years until the Court first indicated a substantial expansion of it,
and then withdrew to a narrow interpretation.
First, in Food Employees Union v. Logan Valley Plaza,1496 the
Court held constitutionally protected the picketing of a store lo-
cated in a shopping center by a union objecting to the store’s em-
ployment of nonunion labor. Finding that the shopping center was
the functional equivalent of the business district involved in Marsh,
the Court announced there was “no reason why access to a busi-
ness district in a company town for the purpose of exercising First
Amendment rights should be constitutionally required, while ac-
cess for the same purpose to property functioning as a business dis-
trict should be limited simply because the property surrounding the
‘business district’ is not under the same ownership.” 1497 “[T]he State,”
said Justice Marshall, “may not delegate the power, through the use
of its trespass laws, wholly to exclude those members of the public
wishing to exercise their First Amendment rights on the premises
in a manner and for a purpose generally consonant with the use to
strators who conducted their sit-in at lunch counters of department stores. He as-
serted that the protesters were sitting at the lunch counters where they knew they
would not be served in order to demonstrate that segregation at such counters ex-
isted. “Such a demonstration . . . is as much a part of the ‘free trade in ideas’ . . .
as is verbal expression, more commonly thought of as ‘speech.’ ” Conviction for breach
of peace was void in the absence of a clear and present danger of disorder. The Jus-
tice would not, however protect “demonstrations conducted on private property over
the objection of the owner . . . , just as it would surely not encompass verbal expres-
sion in a private home if the owner has not consented.” He had read the record to
indicate that the demonstrators were invitees in the stores and that they had never
been asked to leave by the owners or managers. See also Frisby v. Schultz, 487 U.S.
474 (1988) (government may protect residential privacy by prohibiting altogether pick-
eting that targets a single residence).
1494 326 U.S. 501 (1946).
1495 326 U.S. at 506.
1496 Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308
(1968).
1497 391 U.S. at 319. Justices Black, Harlan, and White dissented. Id. at 327,
333, 337.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1345
which the property is actually put.” 1498 The Court observed that it
would have been hazardous to attempt to distribute literature at
the entrances to the center and it reserved for future decision “whether
respondents’ property rights could, consistently with the First Amend-
ment, justify a bar on picketing which was not thus directly re-
lated in its purpose to the use to which the shopping center prop-
erty was being put.” 1499
Four years later, the Court answered the reserved question in
the negative.1500 Several members of an antiwar group had at-
tempted to distribute leaflets on the mall of a large shopping cen-
ter, calling on the public to attend a protest meeting. Center guards
invoked a trespass law against them, and the Court held that they
could rightfully be excluded. The center had not dedicated its prop-
erty to a public use, the Court said; rather, it had invited the pub-
lic in specifically to carry on business with those stores located in
the center. Plaintiffs’ leafleting, not directed to any store or to the
customers qua customers of any of the stores, was unrelated to any
activity in the center. Unlike the situation in Logan Valley Plaza,
there were reasonable alternatives by which plaintiffs could reach
those who used the center. Thus, in the absence of a relationship
between the purpose of the expressive activity and the business of
the shopping center, the property rights of the center owner will
overbalance the expressive rights to persons who would use their
property to communicate.
Then, the Court formally overruled Logan Valley Plaza, hold-
ing that shopping centers are not functionally equivalent to the com-
pany town involved in Marsh.1501 Suburban malls may be the “new
town squares” in the view of sociologists, but they are private prop-
erty in the eye of the law. The ruling came in a case in which a
union of employees engaged in an economic strike against one store
in a shopping center was barred from picketing the store within
the mall. The rights of employees in such a situation are generally
to be governed by federal labor laws 1502 rather than the First Amend-
ment, although there is also the possibility that state constitu-
tional provisions may be interpreted more expansively by state courts
to protect some kinds of public issue picketing in shopping centers
Court asserted that Logan Valley had in fact been overruled by Lloyd Corp., 424
U.S. at 517–18, but Justice Powell, the author of the Lloyd Corp. opinion, did not
believe that to be the case, id. at 523.
1502 But see Sears, Roebuck & Co. v. Carpenters, 436 U.S. U.S. 180 (1978).
1346 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1503 In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Court held
nication was recognized in Senn v. Tile Layers Union, 301 U.S. 468 (1937).
1507 310 U.S. at 102.
1508 310 U.S. at 104–05. See also Carlson v. California, 310 U.S. 106 (1940). In
AFL v. Swing, 312 U.S. 321 (1941), the Court held unconstitutional an injunction
against peaceful picketing based on a state’s common-law policy against picketing
in the absence of an immediate dispute between employer and employee.
1509 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1347
1510 Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942); Carpenters &
Joiners Union v. Ritter’s Cafe, 315 U.S. 722 (1942); Cafeteria Employees Union v.
Angelos, 320 U.S. 293 (1943).
1511 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (upholding on
curring opinion).
1513 International Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293 (1957). See also
American Radio Ass’n v. Mobile Steamship Ass’n, 419 U.S. 215, 228–32 (1974); NLRB
v. Retail Store Employees, 447 U.S. 607 (1980); International Longshoremens’ Ass’n
v. Allied International, 456 U.S. 212, 226–27 (1982).
1514 The dissenters in Vogt asserted that the Court had “come full circle” from
Thornhill. 354 U.S. at 295 (Justice Douglas, joined by Chief Justice Warren and Jus-
tice Black).
1515 NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 63 (1964) (requiring—and
(1941); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268
(1951).
1517 Cantwell v. Connecticut, 310 U.S. 296 (1940); Chaplinsky v. New Hamp-
shire, 315 U.S. 568 (1942); Terminiello v. City of Chicago, 337 U.S. 1 (1949); Feiner
v. New York, 340 U.S. 315 (1951).
1518 See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Na-
tional Socialist Party v. Village of Skokie, 432 U.S. 43 (1977); Carroll v. President &
Commr’s of Princess Anne, 393 U.S. 175 (1968).
1519 Hughes v. Superior Court, 339 U.S. 460 (1950). This ruling, allowing content-
536 (1965); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland,
397 U.S. 564 (1970). See also Collin v. Smith, 447 F. Supp. 676 (N.D.Ill.), aff’d, 578
F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953, cert. denied, 439 U.S. 916 (1978).
1525 487 U.S. 474 (1988).
1526 An earlier case involving residential picketing had been resolved on equal
protection rather than First Amendment grounds, the ordinance at issue making an
exception for labor picketing. Carey v. Brown, 447 U.S. 455 (1980).
1527 339 U.S. 460 (1950).
1528 458 U.S. 886 (1982).
1529 376 U.S. 254 (1964).
1350 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
a labor picketing case, and Organization for a Better Austin v. Keefe, 402 U.S. 415,
419 (1971), a public issues picketing case, which had also relied on the labor cases.
Compare NLRB v. Retail Store Employees, 447 U.S. 607, 618–19 (1980) (Justice Ste-
vens concurring) (labor picketing that coerces or “signals” others to engage in activ-
ity that violates valid labor policy, rather than attempting to engage reason, prohibitable).
To the contention that liability could be imposed on “store watchers” and on a group
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1351
known as “Black Hats” who also patrolled stores and identified black patronizers of
the businesses, the Court did not advert to the “signal” theory. “There is nothing
unlawful in standing outside a store and recording names. Similarly, there is noth-
ing unlawful in wearing black hats, although such apparel may cause apprehension
in others.” 458 U.S. at 925.
1533 See, e.g., FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990)
has an incidental effect on expression, the Court applied the standards of United
States v. O’Brien, which permits a regulation “if it is within the constitutional power
of the Government; if it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of free expression; and
if the incidental restiction on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest.” 458 U.S. at 912, n.47, quoting O’Brien,
391 U.S. 367, 376–77 (1968) (footnotes omitted).
1535 458 U.S. at 916–17.
1536 458 U.S. at 917–18.
1352 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
activities association cases, e.g., Scales v. United States, 367 U.S. 203 (1961), and
Noto v. United States, 367 U.S. 290 (1961).
1538 458 U.S. at 920–26. The Court distinguished Milk Wagon Drivers Union v.
Meadowmoor Dairies, 312 U.S. 287 (1941), in which an injunction had been sus-
tained against both violent and nonviolent activity, not on the basis of special rules
governing labor picketing, but because the violence had been “pervasive.” 458 U.S.
at 923.
1539 458 U.S. at 926–29. The field secretary’s “emotionally charged rhetoric . . .
did not transcend the bounds of protected speech set forth in Brandenburg v. Ohio,
395 U.S. 444 (1969).”
1540 458 U.S. at 931. In ordinary business cases, the rule of liability of an entity
for actions of its agents is broader. E.g., American Soc’y of Mech. Eng’rs v. Hydrolevel
Corp., 456 U.S. 556 (1982). The different rule in cases of organizations formed to
achieve political purposes rather than economic goals appears to require substantial
changes in the law of agency with respect to such entities. Note, 96 HARV. L. REV.
171, 174–76 (1982).
1541 “Concerted action is a powerful weapon. History teaches that special dan-
gers are associated with conspiratorial activity. And yet one of the foundations of
our society is the right of individuals to combine with other persons in pursuit of a
common goal by lawful means.”
“[P]etitioners’ ultimate objectives were unquestionably legitimate. The charge of
illegality . . . derives from the means employed by the participants to achieve those
goals. The use of speeches, marches, and threats of social ostracism cannot provide
the basis for a damages award. But violent conduct is beyond the pale of constitu-
tional protection.”
“The taint of violence colored the conduct of some of the petitioners. They, of
course, may be held liable for the consequences of their violent deeds. The burden
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1353
of demonstrating that it colored the entire collective effort, however, is not satisfied
by evidence that violence occurred or even that violence contributed to the success
of the boycott. [The burden can be met only] by findings that adequately disclose
the evidentiary basis for concluding that specific parties agreed to use unlawful means,
that carefully identify the impact of such unlawful conduct, and that recognizes the
importance of avoiding the imposition of punishment for constitutionally protected
activity. . . . A court must be wary of a claim that the true color of a forest is better
revealed by reptiles hidden in the weeds than by the foliage of countless freestand-
ing trees.” 458 U.S. at 933–34.
1542 512 U.S. 753 (1994).
1543 The Court rejected the argument that the injunction was necessarily content-
noted that the right to distribute leaflets was subject to certain obvious regulations,
id. at 160, and called for a balancing, with the weight inclined to the First Amend-
ment rights. See also Jamison v. Texas, 318 U.S. 413 (1943).
1567 362 U.S. 60 (1960).
1568 362 U.S. at 64, 65.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1357
place, and manner regulation, the Court observed: “If overamplifled loudspeakers
assault the citizenry, government may turn them down.” Id. at 116.
1581 Ward v. Rock Against Racism, 491 U.S. 781 (1989).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1359
(1980). See also Larson v. Valente, 456 U.S. 228 (1982) (state law distinguishing be-
tween religious organizations and their solicitation of funds on basis of whether or-
ganizations received more than half of their total contributions from members or
from public solicitation violates the Establishment Clause). Meyer v. Grant, 486 U.S.
414 (1988) (criminal penalty on use of paid circulators to obtain signatures for bal-
lot initiative suppresses political speech in violation of First and Fourteenth Amend-
ments).
1360 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
between 20 and 35% was permissible if the solicitation involved advocacy or the dis-
semination of information, and a fee in excess of 35% was presumptively unreason-
able, but could be upheld upon one of two showings: that advocacy or dissemination
of information was involved, or that otherwise the charity’s ability to collect money
or communicate would be significantly diminished.
1588 487 U.S. at 793.
1589 487 U.S. at 800. North Carolina’s requirement for licensing of professional
fundraisers was also invalidated in Riley, id. at 801–02. In Illinois ex rel. Madigan
v. Telemarketing Assocs., 538 U.S. 600 (2003), the Court held unanimously that the
First Amendment does not prevent a state from bringing fraud actions against chari-
table solicitors who falsely represent that a “significant” amount of each dollar do-
nated would be used for charitable purposes.
1590 536 U.S. 150 (2002).
1591 536 U.S. at 165–66.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1361
ful, silent stand-in in a segregated public library. Speaking of speech and assembly,
Justice Fortas said for the Court: “As this Court has repeatedly stated, these rights
are not confined to verbal expression. They embrace appropriate types of action which
certainly include the right in a peaceable and orderly manner to protest by silent
and reproachful presence, in a place where the protestant has every right to be, the
unconstitutional segregation of public facilities.” Id. at 141–42. See also Garner v.
Louisiana, 368 U.S. 157, 185, 201 (1961) (Justice Harlan concurring). On a different
footing is expressive conduct in a place where such conduct is prohibited for reasons
other than suppressing speech. See Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984) (upholding Park Service restriction on overnight sleeping as
applied to demonstrators wishing to call attention to the plight of the homeless).
1599 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).
1362 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
did not preclude a flat proscription of flag burning or flag desecration for expressive
purposes. Id. at 594 (Chief Justice Warren), 609 (Justice Black), 610 (Justice White),
and 615 (Justice Fortas). In Radich v. New York, 401 U.S. 531 (1971), aff’g, 26 N.Y.2d
114, 257 N.E.2d 30 (1970), an equally divided Court, Justice Douglas not participat-
ing, sustained a flag desecration conviction of one who displayed sculptures in a gal-
lery, using the flag in apparently sexually bizarre ways to register a social protest.
Defendant subsequently obtained his release on habeas corpus, United States ex rel.
Radich v. Criminal Court, 459 F.2d 745 (2d Cir. 1972), cert. denied, 409 U.S. 115
(1973).
1604 415 U.S. 566 (1974).
1605 415 U.S. at 578.
1606 418 U.S. 405 (1974).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1363
attached or superimposed; Spence had hung his flag from his apart-
ment window upside down with a peace symbol taped to the front
and back. The act, the Court thought, was a form of communica-
tion, and because of the nature of the act, and the factual context
and environment in which it was undertaken, the Court held it to
be protected. The context included the fact that the flag was pri-
vately owned, that it was displayed on private property, and that
there was no danger of breach of the peace. The nature of the act
was that it was intended to express an idea and it did so without
damaging the flag. The Court assumed that the state had a valid
interest in preserving the flag as a national symbol, but left un-
clear whether that interest extended beyond protecting the physi-
cal integrity of the flag.1607
The underlying assumption that flag burning could be prohib-
ited as a means of protecting the flag’s symbolic value was later
rejected. Twice, in 1989 and again in 1990, the Court held that pros-
ecutions for flag burning at a public demonstration violated the First
Amendment. First, in Texas v. Johnson 1608 the Court rejected a state
desecration statute designed to protect the flag’s symbolic value, and
then in United States v. Eichman 1609 rejected a more limited fed-
eral statute purporting to protect only the flag’s physical integrity.
Both cases were decided by 5-to-4 votes, with Justice Brennan writ-
ing the Court’s opinions.1610 The Texas statute invalidated in John-
son defined the prohibited act of “desecration” as any physical mis-
treatment of the flag that the actor knew would seriously offend
other persons. This emphasis on causing offense to others meant
that the law was not “unrelated to the suppression of free expres-
sion” and that consequently the deferential standard of United States
v. O’Brien was inapplicable. Applying strict scrutiny, the Court ruled
that the state’s prosecution of someone who burned a flag at a po-
1607 418 U.S. at 408–11, 412–13. Subsequently, the Court vacated, over the dis-
sents of Chief Justice Burger and Justices White, Blackmun, and Rehnquist, two
convictions for burning flags and sent them back for reconsideration in the light of
Goguen and Spence. Sutherland v. Illinois, 418 U.S. 907 (1974); Farrell v. Iowa, 418
U.S. 907 (1974). The Court, however, dismissed, “for want of a substantial federal
question,” an appeal from a flag desecration conviction of one who, with no appar-
ent intent to communicate but in the course of “horseplay,” blew his nose on a flag,
simulated masturbation on it, and finally burned it. Van Slyke v. Texas, 418 U.S.
907 (1974).
1608 491 U.S. 397 (1989).
1609 496 U.S. 310 (1990).
1610 In each case Justice Brennan’s opinion for the Court was joined by Justices
Marshall, Blackmun, Scalia, and Kennedy, and in each case Chief Justice Rehnquist
and Justices White, Stevens, and O’Connor dissented. In Johnson the Chief Jus-
tice’s dissent was joined by Justices White and O’Connor, and Justice Stevens dis-
sented separately. In Eichman Justice Stevens wrote the only dissenting opinion, to
which the other dissenters subscribed.
1364 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
litical protest was not justified under the state’s asserted interest
in preserving the flag as a symbol of nationhood and national unity.
The Court’s opinion left little doubt that the existing federal stat-
ute, 18 U.S.C. § 700, and the flag desecration laws of 47 other states
would suffer a similar fate in a similar case. Doubt remained, how-
ever, as to whether the Court would uphold a “content-neutral” stat-
ute protecting the physical integrity of the flag.
Immediately following Johnson, Congress enacted a new flag pro-
tection statute providing punishment for anyone who “knowingly mu-
tilates, defaces, physically defiles, burns, maintains on the floor or
ground, or tramples upon any flag of the United States.” 1611 The
law was designed to be content-neutral and to protect the “physical
integrity” of the flag.1612 Nonetheless, in overturning convictions of
flag burners, the Court found that the law suffered from “the same
fundamental flaw” as the Texas law in Johnson. The government’s
underlying interest, characterized by the Court as resting upon “a
perceived need to preserve the flag’s status as a symbol of our Na-
tion and certain national ideals,” 1613 still related to the suppres-
sion of free expression. Support for this interpretation was found
in the fact that most of the prohibited acts are usually associated
with disrespectful treatment of the flag; this suggested to the Court
“a focus on those acts likely to damage the flag’s symbolic value.” 1614
As in Johnson, such a law could not withstand “most exacting scru-
tiny” analysis.
The Court’s ruling in Eichman rekindled congressional efforts,
postponed with enactment of the Flag Protection Act, to amend the
Constitution to authorize flag desecration legislation at the federal
and state levels. In both the House and the Senate these measures
failed to receive the necessary two-thirds vote.1615
favor to 177 against (136 CONG. REC. H4086 (daily ed. June 21, 1990), and the Sen-
ate defeated S.J. Res. 332 by vote of 58 in favor to 42 against (136 CONG. REC. S8737
(daily ed. June 26, 1990). In every Congress since then (though the 111th in 2009),
constitutional amendments to allow Congress or the states to prohibit flag desecra-
tion have been proposed. In each Congress from the 104th through the 109th (1995–
2006), the House passed such a proposal, but the Senate either rejected it or did not
vote on it.
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1365
(1972). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913–15 (1982);
Missouri v. NOW, 620 F.2d 1301 (8th Cir. 1980), cert. denied, 449 U.S. 842 (1980)
(because of its political nature, a boycott of states not ratifying the Equal Rights
Amendment may not be subjected to antitrust suits).
1622 The account is told in many sources. E.g., SAMUEL FLAGG BEMIS, JOHN QUINCY
ADAMS AND THE UNION, chs. 17, 18 and pp. 446–47 (1956); WILLIAM LEE MILLER, ARGUING
ABOUT SLAVERY: THE GREAT BATTLE IN THE UNITED STATES CONGRESS (1996), 465–487; DAVID
P. CURRIE, THE CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM, 1829–1861 (2005),
3–23.
1623 Rule 22, ¶ 1, Rules of the House of Representatives, H.R. Doc. No. 256, 101st
1625 See, however, Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868), in which the
Court gave as one of its reasons for striking down a tax on persons leaving the state
its infringement of the right of every citizen to come to the seat of government and
to transact any business he might have with it.
1626 92 U.S. 542 (1876).
1627 Act of May 31, 1870, ch. 114, 16 Stat. 141 (1870).
1628 United States v. Cruikshank, 92 U.S. 542, 552–53 (1876).
1368 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1629 DeJonge v. Oregon, 299 U.S. 353 (1937); Hague v. CIO, 307 U.S. 496 (1939);
Bridges v. California, 314 U.S. 252 (1941); Thomas v. Collins, 323 U.S. 516 (1945).
1630 307 U.S. 496 (1939).
1631 307 U.S. at 515. For another holding that the right to petition is not abso-
lute, see McDonald v. Smith, 472 U.S. 479 (1985) (the fact that defamatory state-
ments were made in the context of a petition to government does not provide abso-
lute immunity from libel).
1632 307 U.S. at 525.
1633 E.g., United States v. Harriss, 347 U.S. 612 (1954); Eastern R.R. Presidents
Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961); BE & K Construction Co. v. NLRB,
536 U.S. 516 (2002).
1634 E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971).
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1369
1635 See, e.g., Borough of Duryea, Pennsylvania v. Guarnieri, 564 U.S. ___, No.
09–1476, slip op. at 7 (2011) (“It is not necessary to say that the [Speech and Peti-
tion] Clauses are identical in their mandate or their purpose and effect to acknowl-
edge that the rights of speech and petition share substantial common ground”); But
see id. (“Courts should not presume there is always an essential equivalence in the
[Speech and Petition] Clauses or that Speech Clause precedents necessarily and in
every case resolve Petition Clause claims”).
1636 Connick v. Myers, 461 U.S. 138 (1983).
1637 564 U.S. ___, No. 09–1476, slip op. (2011).
1638 Justice Scalia, in dissent, disputed the majority’s suggestion that a petition
need be of “public concern” to be protected, noting that the Petition Clause had his-
torically been a route for seeking relief of private concerns. Slip op. at 5–7 (2011)
(Scalia, J., dissenting). Justice Scalia also suggested that the Clause should be lim-
ited to petitions directed to an executive branch or legislature, and that grievances
submitted to an adjuciatory body are not so protected. Id. at 1–3.
BEARING ARMS
SECOND AMENDMENT
A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms shall
not be infringed.
IN GENERAL
For over 200 years, despite extensive debate and much legisla-
tive action with respect to regulation of the purchase, possession,
and transportation of firearms, as well as proposals to substan-
tially curtail ownership of firearms, there was no definitive resolu-
tion by the courts of just what right the Second Amendment pro-
tects. The Second Amendment is naturally divided into two parts:
its prefatory clause (“A well regulated Militia, being necessary to
the security of a free State”) and its operative clause (“the right of
the people to keep and bear Arms shall not be infringed”). To per-
haps oversimplify the opposing arguments, the “states’ rights” the-
sis emphasized the importance of the prefatory clause, arguing that
the purpose of the clause was to protect the states in their author-
ity to maintain formal, organized militia units. The “individual rights”
thesis emphasized the operative clause, so that individuals would
be protected in the ownership, possession, and transportation of fire-
arms.1 Whatever the Amendment meant, it was seen as a bar only
to federal action, not state 2 or private 3 restraints.
1 A sampling of the diverse literature in which the same historical, linguistic,
and case law background shows the basis for strikingly different conclusions in-
cludes: STAFF OF SUBCOMM. ON THE CONSTITUTION, SENATE COMMITTEE ON THE JUDICIARY, 97th
Congress, 2d Sess., THE RIGHT TO KEEP AND BEAR ARMS (Comm. Print 1982); DON B.
KATES, HANDGUN PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT (1984);
GUN CONTROL AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE SECOND AMENDMENT
(Robert J. Cottrol ed., 1993); STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE
EVOLUTION OF A CONSTITUTIONAL RIGHT (1984); Symposium, Gun Control, 49 LAW & CONTEMP.
PROBS. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 YALE
L.J. 637 (1989); JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-
AMERICAN RIGHT (1994); Glenn Harlan Reynolds, A Critical Guide to the Second Amend-
ment, 62 TENN. L. REV. 461 (1995); William Van Alystyne, The Second Amendment
and the Personal Right to Bear Arms, 43 DUKE L.J. 1236 (1994); Symposium, Sympo-
sium on the Second Amendment: Fresh Looks, 76 CHI.-KENT L. REV. 3 (2000).
2 Presser v. Illinois, 116 U.S. 252, 265 (1886). See also Miller v. Texas, 153 U.S.
535 (1894); Robertson v. Baldwin, 165 U.S. 275, 281–82 (1897). The non-application
of the Second Amendment to the states was reaffirmed in Quilici v. Village of Mor-
ton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
3 United States v. Cruikshank, 92 U.S. 542 (1876).
1371
1372 AMENDMENT 2—BEARING ARMS
One of the Second Amendment cases that the Court has heard,
and until recently the only case challenging a congressional enact-
ment, seemed to affirm individual protection but only in the con-
text of the maintenance of a militia or other such public force. In
United States v. Miller,4 the Court sustained a statute requiring reg-
istration under the National Firearms Act of sawed-off shotguns.
After reciting the original provisions of the Constitution dealing with
the militia, the Court observed that “[w]ith obvious purpose to as-
sure the continuation and render possible the effectiveness of such
forces the declaration and guarantee of the Second Amendment were
made. It must be interpreted with that end in view.” 5 The signifi-
cance of the militia, the Court continued, was that it was composed
of “civilians primarily, soldiers on occasion.” It was upon this force
that the states could rely for defense and securing of the laws, on a
force that “comprised all males physically capable of acting in con-
cert for the common defense,” who, “when called for service . . . were
expected to appear bearing arms supplied by themselves and of the
kind in common use at the time.” 6 Therefore, “[i]n the absence of
any evidence tending to show that possession or use of a ‘shotgun
having a barrel of less than 18 inches in length’ at this time has
some reasonable relationship to the preservation or efficiency of a
well-regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Cer-
tainly it is not within judicial notice that this weapon is any part
of the ordinary military equipment or that its use could contribute
to the common defense.” 7
4 307 U.S. 174 (1939). The defendants had been released on the basis of the
trial court determination that prosecution would violate the Second Amendment and
no briefs or other appearances were filed on their behalf; the Court acted on the
basis of the government’s representations.
5 307 U.S. at 178.
6 307 U.S. at 179.
7 307 U.S. at 178. In Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942),
cert. denied, 319 U.S. 770 (1943), the court, upholding a similar provision of the
Federal Firearms Act, said, “Apparently, then, under the Second Amendment, the
Federal Government can limit the keeping and bearing of arms by a single indi-
vidual as well as by a group of individuals, but it cannot prohibit the possession or
use of any weapon which has any reasonable relationship to the preservation or ef-
ficiency of a well-regulated militia.” See Lewis v. United States, 445 U.S. 55, 65 n.8
(1980) (dictum: Miller holds that the “Second Amendment guarantees no right to
keep and bear a firearm that does not have ‘some reasonable relationship to the
preservation or efficiency of a well regulated militia’ ”). See also Hickman v. Block,
81 F.3d 98 (9th Cir.) (plaintiff lacked standing to challenge denial of permit to carry
concealed weapon, because Second Amendment is a right held by states, not by pri-
vate citizens), cert. denied, 519 U.S. 912 (1996); United States v. Gomez, 92 F.3d
770, 775 n.7 (9th Cir. 1996) (interpreting federal prohibition on possession of fire-
arm by a felon as having a justification defense “ensures that [the provision] does
not collide with the Second Amendment”). United States v. Wright, 117 F.3d 1265
(11th Cir.), cert. denied, 522 U.S. 1007 (1997) (member of Georgia unorganized mili-
AMENDMENT 2—BEARING ARMS 1373
§§ 921–928. The Supreme Court’s dealings with these laws have all arisen in the
context of prosecutions of persons purchasing or obtaining firearms in violation of
prohibitions against such conduct by convicted felons. Lewis v. United States, 445
U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United
States, 431 U.S. 563 (1977); United States v. Bass, 404 U.S. 336 (1971).
9 E.g., NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, WORKING PAPERS
ies § 1890, p. 746 (1833)). Justice Scalia, in extra-judicial writing, has sided with
the individual rights interpretation of the Amendment. See ANTONIN SCALIA, A MATTER
OF INTERPRETATION, FEDERAL COURTS AND THE LAW, 136–37 n.13 (A. Gutmann, ed., 1997)
(responding to Professor Tribe’s critique of “my interpretation of the Second Amend-
ment as a guarantee that the Federal Government will not interfere with the indi-
vidual’s right to bear arms for self-defense”).
11 E. Volokh, The Commonplace Second Amendment, 73 N. Y.U. L. Rev. 793 (1998);
R. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Or-
ganized Militia?, 83 Tex. L. Rev. 237 (2004); E. Volokh, “Necessary to the Security of
a Free State,” 83 Notre Dame L. Rev. 1 (2007); What Did “Bear Arms” Mean in the
Second Amendment?, 6 Georgetown J. L. & Pub. Policy (2008).
12 554 U.S. 570 (2008).
13 The “right of the people,” for instance, was found in other places in the Con-
stitution to speak to individual rights, not to collective rights (those that can only
be exercised by participation in a corporate body). Id. at 578–80.
1374 AMENDMENT 2—BEARING ARMS
ited to those contexts.14 Further, the Court found that the phrase
“well regulated Militia” referred not to formally organized state or
federal militias, but to the pool of “able-bodied men” who were avail-
able for conscription.15 Finally, the Court reviewed contemporane-
ous state constitutions, post-enactment commentary, and subse-
quent case law to conclude that the purpose of the right to keep
and bear arms extended beyond the context of militia service to in-
clude self-defense.
Using this “individual rights theory,” the Court struck down a
District of Columbia law that banned virtually all handguns, and
required that any other type of firearm in a home be dissembled or
bound by a trigger lock at all times. The Court rejected the argu-
ment that handguns could be banned as long as other guns (such
as long-guns) were available, noting that, for a variety of reasons,
handguns are the “most popular weapon chosen by Americans for
self-defense in the home.” 16 Similarly, the requirement that all fire-
arms be rendered inoperable at all times was found to limit the
“core lawful purpose of self-defense.” 17 However, the Court specifi-
cally stated (albeit in dicta) that the Second Amendment did not
limit prohibitions on the possession of firearms by felons and the
mentally ill, penalties for carrying firearms in schools and govern-
ment buildings, or laws regulating the sales of guns.18 The Court
also noted that there was a historical tradition of prohibiting the
carrying of “dangerous and unusual weapons” that would not be af-
fected by its decision.19 The Court, however, declined to establish
14 Id. at 580–91. In so doing, the Heller Court rejected the argument that “only
those weapons useful in warfare are protected” by the Second Amendment, as the
“traditional militia was formed from a pool of men bringing arms ‘in common use at
the time’ for lawful purposes like self-defense.” Id. at 624–25 (quoting United States
v. Miller, 307 U.S. 174, 179 (1939)) (“We therefore read Miller to say only that the
Second Amendment does not protect those weapons not typically possessed by law-
abiding citizens for lawful purposes, such as short-barreled shotguns.”); see also Caetano
v. Massachusetts, 577 U.S. ___, No. 14–10078, slip op. at 2 (2016) (vacating a ruling
by a state court that a ban on stun guns did not violate the Second Amendment
because such weapons were not “readily adaptable to use in the military.”).
15 Heller, 554 U.S. at 594–96. Similarly, the phrase “security of a free state” was
found to refer not to the defense of a particular state, but to the protection of the
national polity. Id. at 596–98.
16 Id. at 628–29. Subsequently, in Caetano v. Massachusetts, the Court empha-
sized that, under Heller, the protections of the Second Amendment extend to fire-
arms that were not in existence at the time of the Framers. See Caetano, slip op. at
2 (per curiam) (vacating and remanding a Massachusetts state court ruling uphold-
ing a state law that prohibited the possession of stun guns, in part, on the grounds
that stun guns were not in common use when the Second Amendment was ad-
opted).
17 Heller, 554 U.S. at 630.
18 Id. at 626.
19 Id. at 627 (2008). But see Caetano, slip op. at 2 (rejecting, as inconsistent
with Heller, the view that a weapon may be deemed “unusual” if it was not in com-
AMENDMENT 2—BEARING ARMS 1375
mon use at the time when the Second Amendment was adopted, as well as the view
that the Second Amendment only protects weapons that are “useful in warfare”).
20 Heller, 554 U.S. at 629 n.27 (discussing the non-application of rational basis
review).
21 561 U.S. ___, No. 08–1521, slip op. (2010).
22 The portion of the opinion finding incorporation was authored by Justice Alito,
and joined by Chief Justice Roberts, Justice Scalia and Justice Kennedy. Justice Thomas
declined to join the plurality’s opinion as regards incorporation under the Due Pro-
cess Clause. Instead, Justice Thomas, alone among the Justices, would have found
that the Second Amendment is applicable to the states under the Privileges or Im-
munities Clause. For a more detailed discussion of incorporation and the Privileges
or Immunities Clause, see supra Bill of Rights, Fourteenth Amendment and Four-
teenth Amendment, Privileges or Immunities.
23 Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
24 Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks
omitted).
25 McDonald, 561 U.S. ___, No. 08–1521, slip op. at 20 (noting that Blackstone
had asserted that the right to keep and bear arms was “one of the fundamental
rights of Englishmen”).
26 561 U.S. ___, No. 08–1521, slip op. at 20–22.
27 561 U.S. ___, No. 08–1521, slip op. at 23–24 (Breyer, J., dissenting).
1376 AMENDMENT 2—BEARING ARMS
litia to conclude that the right to bear arms was also intended to
protect against generally-applicable state regulation.
QUARTERING SOLDIERS
THIRD AMENDMENT
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.
IN GENERAL
There has been no Supreme Court explication of this Amend-
ment, which was obviously one guarantee indicating a preference
for the civilian over the military.1
1 In fact, save for the curious case of Engblom v. Carey, 677 F.2d 957 (2d Cir.
1982), on remand, 572 F. Supp. 44 (S.D.N.Y. 1983), aff’d per curiam, 724 F.2d 28 (2d
Cir. 1983), there has been no judicial explication of the Amendment at all.
1377
FOURTH AMENDMENT
CONTENTS
Page
Search and Seizure .................................................................................................................... 1381
History and Scope of the Amendment .............................................................................. 1381
History .......................................................................................................................... 1381
Scope of the Amendment ............................................................................................ 1382
The Interest Protected ................................................................................................ 1387
Arrests and Other Detentions .................................................................................... 1393
Searches and Inspections in Noncriminal Cases ...................................................... 1397
Searches and Seizures Pursuant to Warrant ................................................................... 1403
Issuance by Neutral Magistrate ................................................................................ 1403
Probable Cause ............................................................................................................ 1404
Particularity ................................................................................................................. 1408
First Amendment Bearing on Probable Cause and Particularity ........................... 1409
Property Subject to Seizure ........................................................................................ 1411
Execution of Warrants ................................................................................................ 1414
Valid Searches and Seizures Without Warrants .............................................................. 1418
Detention Short of Arrest: Stop and Frisk ............................................................... 1419
Search Incident to Arrest ........................................................................................... 1425
Vehicular Searches ...................................................................................................... 1431
Vessel Searches ............................................................................................................ 1436
Consent Searches ........................................................................................................ 1437
Border Searches ........................................................................................................... 1439
“Open Fields” ............................................................................................................... 1440
“Plain View” ................................................................................................................. 1441
Public Schools .............................................................................................................. 1442
Government Workplace ............................................................................................... 1444
Prisons and Regulation of Probation and Parole ..................................................... 1444
Drug Testing ................................................................................................................ 1446
Electronic Surveillance and the Fourth Amendment ...................................................... 1450
The Olmstead Case ..................................................................................................... 1450
Federal Communications Act ..................................................................................... 1450
Nontelephonic Electronic Surveillance ...................................................................... 1451
The Berger and Katz Cases ....................................................................................... 1452
Warrantless “National Security” Electronic Surveillance ........................................ 1455
Enforcing the Fourth Amendment: The Exclusionary Rule ........................................... 1457
Alternatives to the Exclusionary Rule ...................................................................... 1457
Development of the Exclusionary Rule ..................................................................... 1459
The Foundations of the Exclusionary Rule ............................................................... 1463
Narrowing Application of the Exclusionary Rule ..................................................... 1465
Operation of the Rule: Standing ................................................................................ 1473
1379
SEARCH AND SEIZURE
FOURTH AMENDMENT
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures, shall not be violated, and no Warrants shall issue but upon
probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched, and the persons or things
to be seized.
SEARCH AND SEIZURE
zures appeared in The Rights of the Colonists and a List of Infringements and Vio-
lations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B.
SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 199, 205–06 (1971).
2 5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful
expressions of the maxim was that of William Pitt in Parliament in 1763: “The poor-
est man may in his cottage bid defiance to all the force of the crown. It may be
frail—its roof may shake—the wind may blow through it—the storm may enter, the
rain may enter—but the King of England cannot enter—all his force dares not cross
the threshold of the ruined tenement.”
3 19 Howell’s State Trials 1029, 95 Eng. 807 (1705).
1381
1382 AMENDMENT 4—SEARCHES AND SEIZURE
Rep. 768 (K.B. 1763), aff’d 19 Howell’s State Trials 1002, 1028; 97 Eng. Rep. 1075
(K.B. 1765).
5 95 Eng. 817, 818.
6 Boyd v. United States, 116 U.S. 616, 626 (1886).
7 The arguments of Otis and others as well as much background material are
on its passage through the Congress, and it is possible that the changes
reflected more than a modest significance in the interpretation of
the relationship of the two clauses. Madison’s introduced version
provided “The rights to be secured in their persons, their houses,
their papers, and their other property, from all unreasonable searches
and seizures, shall not be violated by warrants issued without prob-
able cause, supported by oath or affirmation, or not particularly de-
scribing the places to be searched, or the persons or things to be
seized.” 8 As reported from committee, with an inadvertent omis-
sion corrected on the floor,9 the section was almost identical to the
introduced version, and the House defeated a motion to substitute
“and no warrant shall issue” for “by warrants issuing” in the com-
mittee draft. In some fashion, the rejected amendment was in-
serted in the language before passage by the House and is the lan-
guage of the ratified constitutional provision.10
As noted above, the noteworthy disputes over search and sei-
zure in England and the colonies revolved about the character of
warrants. There were, however, lawful warrantless searches, pri-
marily searches incident to arrest, and these apparently gave rise
to no disputes. Thus, the question arises whether the Fourth Amend-
ment’s two clauses must be read together to mean that the only
searches and seizures which are “reasonable” are those which meet
the requirements of the second clause, that is, are pursuant to war-
rants issued under the prescribed safeguards, or whether the two
clauses are independent, so that searches under warrant must com-
ply with the second clause but that there are “reasonable” searches
under the first clause that need not comply with the second clause.11
This issue has divided the Court for some time, has seen several
reversals of precedents, and is important for the resolution of many
8 1 ANNALS OF CONGRESS 434–35 (June 8, 1789).
9 The word “secured” was changed to “secure” and the phrase “against unreason-
able searches and seizures” was reinstated. Id. at 754 (August 17, 1789).
10 Id. It has been theorized that the author of the defeated revision, who was
sertion of the defeated amendment to the language which changed the text into two
clauses and arguably had the effect of extending the protection against unreason-
able searches and seizures beyond the requirements imposed on the issuance of war-
rants. It is also possible to read the two clauses together to mean that some sei-
zures even under warrants would be unreasonable, and this reading has indeed been
effectuated in certain cases, although for independent reasons. Boyd v. United States,
116 U.S. 616 (1886); Gouled v. United States, 255 U.S. 298 (1921), overruled by War-
den v. Hayden, 387 U.S. 294 (1967); but see id. at 303 (reserving the question whether
“there are items of evidential value whose very nature precludes them from being
the object of a reasonable search and seizure.”)
1384 AMENDMENT 4—SEARCHES AND SEIZURE
in several cases. Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United
States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925).
Whether or not there is to be a rule or a principle generally preferring or requiring
searches pursuant to warrant to warrantless searches, however, has ramifications
far beyond the issue of searches pursuant to arrest. United States v. United States
District Court, 407 U.S. 297, 320 (1972).
13 Compare Marron v. United States, 275 U.S. 192 (1927), with Go-Bart Import-
ing Co. v. United States, 282 U.S. 344 (1931), and United States v. Lefkowitz, 285
U.S. 452 (1932).
14 331 U.S. 145 (1947).
15 Trupiano v. United States, 334 U.S. 699, 705 (1948). See also McDonald v.
trict Court, 407 U.S. 297, 321 (1972), Justice Powell explained that the “very heart”
of the Amendment’s mandate is “that where practical, a governmental search and
seizure should represent both the efforts of the officer to gather evidence of wrong-
ful acts and the judgment of the magistrate that the collected evidence is sufficient
AMENDMENT 4—SEARCHES AND SEIZURE 1385
incident to arrest). See also United States v. United States District Court, 407 U.S.
297 (1972) (rejecting argument that it was “reasonable” to allow President through
Attorney General to authorize warrantless electronic surveillance of persons thought
to be endangering the national security); Katz v. United States, 389 U.S. 347 (1967)
(although officers acted with great self-restraint and reasonably in engaging in elec-
tronic seizures of conversations from a telephone booth, a magistrate’s antecedent
judgment was required); Preston v. United States, 376 U.S. 364 (1964) (warrantless
search of seized automobile not justified because not within rationale of exceptions
to warrant clause). There were exceptions, e.g., Cooper v. California, 386 U.S. 58
(1967) (warrantless search of impounded car was reasonable); United States v. Har-
ris, 390 U.S. 234 (1968) (warrantless inventory search of automobile).
20 See, e.g., Almighty-Sanchez v. United States, 413 U.S. 266 (1973), Justices
Stewart, Douglas, Brennan, and Marshall adhered to the warrant-based rule, while
Justices White, Blackmun, and Rehnquist, and Chief Justice Burger placed greater
emphasis upon the question of reasonableness without necessary regard to the war-
rant requirement. Id. at 285. Justice Powell generally agreed with the former group
of Justices, id. at 275 (concurring).
21 E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 352–53 (1977) (unani-
mous); Marshall v. Barrow’s, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436
U.S. 499, 506 (1978); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous); Ar-
kansas v. Sanders, 442 U.S. 743 (1979) (1979); United States v. Ross, 456 U.S. 798,
824–25 (1982).
22 E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless search of automo-
bile taken to police station); Texas v. White, 423 U.S. 67 (1975) (same); New York v.
Belton, 453 U.S. 454 (1981) (search of vehicle incident to arrest); United States v.
Ross, 456 U.S. 798 (1982) (automobile search at scene); Brigham City, Utah v. Stu-
art, 547 U.S. 398 (2006) (warrantless entry into a home when police have an objec-
tively reasonable basis for believing that an occupant is seriously injured or immi-
nently threatened with such injury); Michigan v. Fisher, 558 U.S. ___, No. 09–91
(2009) (applying Brigham City). On the other hand, the warrant-based standard did
preclude a number of warrantless searches. E.g., Almighty-Sanchez v. United States,
413 U.S. 266 (1973) (warrantless stop and search of auto by roving patrol near bor-
der); Marshall v. Barrow’s, Inc., 436 U.S. 307 (1978) (warrantless administrative in-
spection of business premises); Mincey v. Arizona, 437 U.S. 385 (1978) (warrantless
search of home that was “homicide scene”); Arizona v. Gant, 556 U.S. ___, No. 07–
542 (2009) (search of vehicle incident to arrest where arrestee had no access to ve-
hicle).
1386 AMENDMENT 4—SEARCHES AND SEIZURE
U.S. ___, No. 11–1425, slip op. (2013) (rejecting a per se exception for obtaining war-
rants in DWI cases and requiring that exigent circumstances be evaluated under a
“totality of the circumstances” test).
AMENDMENT 4—SEARCHES AND SEIZURE 1387
28 Kentucky v. King, 563 U.S. ___, No. 09–1272, slip op. (2011) (police justified
no “seizure” of the defendant as he fled from police before being tackled, the drugs
that he abandoned in flight could not be excluded as the fruits of an unreasonable
seizure).
31 19 Howell’s State Trials 1029, 1035, 95 Eng. Reg. 807, 817–18 (1765).
1388 AMENDMENT 4—SEARCHES AND SEIZURE
fruits of crime, its instrumentalities, or contraband, turned upon the question of the
right of the public to possess the materials or the police power to make possession
by the possessor unlawful. Gouled v. United States, 255 U.S. 298 (1921), overruled
by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v. United States, 328
U.S. 582 (1946). Standing to contest unlawful searches and seizures was based upon
property interests, United States v. Jeffers, 342 U.S. 48 (1951); Jones v. United States,
362 U.S. 257 (1960), as well as decision upon the validity of a consent to search.
Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376 U.S. 483
(1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).
34 277 U.S. 438 (1928). See also Goldman v. United States, 316 U.S. 129 (1942)
and recording device placed on outside of phone booth violates Fourth Amendment).
See also Kyllo v. United States, 533 U.S. 27, 32–33 (2001) (holding presumptively
unreasonable the warrantless use of a thermal imaging device to detect activity within
a home by measuring heat outside the home, and noting that a contrary holding
would permit developments in police technology “to erode the privacy guaranteed by
the Fourth Amendment”.
38 389 U.S. at 353. Justice Harlan, concurring, formulated a two pronged test
for determining whether the privacy interest is paramount: “first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the expecta-
tion be one that society is prepared to recognize as ‘reasonable.’ ” Id. at 361.
AMENDMENT 4—SEARCHES AND SEIZURE 1389
392 U.S. 1, 19 (1968); Rakas v. Illinois, 439 U.S. 128, 143–144 n.12 (1978); Smith v.
Maryland, 442 U.S. 735, 740–41 (1979); United States v. Salvucci, 448 U.S. 83, 91–92
1390 AMENDMENT 4—SEARCHES AND SEIZURE
U.S. 735, 740 n.5 (1979) (government could not condition “subjective expectations”
by, say, announcing that henceforth all homes would be subject to warrantless en-
try, and thus destroy the “legitimate expectation of privacy”).
45 Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).
46 E.g., Alderman v. United States, 394 U.S. 165 (1969); Mincey v. Arizona, 437
U.S. 385 (1978); Payton v. New York, 445 U.S. 573 (1980); Kyllo v. United States,
533 U.S. 27, 31 (2001).
47 E.g., United States v. Ross, 456 U.S. 798 (1982). See also Donovan v. Dewey,
452 U.S. 594 (1981) (commercial premises); Maryland v. Macon, 472 U.S. 463 (1985)
(no legitimate expectation of privacy in denying to undercover officers allegedly ob-
scene materials offered to public in bookstore).
48 E.g., United States v. Chadwick, 433 U.S. 1, 11 (1977); Katz v. United States,
389 U.S. 347, 352 (1967). But cf. South Dakota v. Opperman, 428 U.S. 364 (1976)
(no legitimate expectation of privacy in automobile left with doors locked and win-
dows rolled up). In Rawlings v. Kentucky, 448 U.S. 98 (1980), the fact that defen-
dant had dumped a cache of drugs into his companion’s purse, having known her
for only a few days and knowing others had access to the purse, was taken to estab-
lish that he had no legitimate expectation the purse would be free from intrusion.
49 E.g., United States v. Miller, 425 U.S. 435 (1976) (bank records); Smith v.
Maryland, 442 U.S. 735 (1979) (numbers dialed from one’s telephone); Hudson v.
Palmer, 468 U.S. 517 (1984) (prison cell); Illinois v. Andreas, 463 U.S. 765 (1983)
(shipping container opened and inspected by customs agents and resealed and deliv-
ered to the addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in sealed
plastic bags left at curb for collection).
AMENDMENT 4—SEARCHES AND SEIZURE 1391
Court cautioned that “[a] broad holding concerning employees’ privacy expectations
vis-a-vis employer-provided technological equipment might have implications for fu-
ture cases that cannot be predicted.” Id. at 11–12.
51 United States v. White, 401 U.S. 745, 786–87 (1971) (Justice Harlan dissent-
ing).
52 E.g., Robbins v. California, 453 U.S. 420, 429, 433–34 (1981) (Justice Powell
concurring), quoted with approval in United States v. Ross, 456 U.S. 798, 815–16 &
n.21 (1982).
53 Katz v. United States, 389 U.S. 347, 351–52 (1967).
54 Terry v. Ohio, 392 U.S. 1, 19 (1968).
55 The prime example is the home, so that for entries either to search or to ar-
rest, “the Fourth Amendment has drawn a firm line at the entrance to the house.
Absent exigent circumstances, that threshold may not reasonably be crossed with-
out a warrant.” Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United
States, 451 U.S. 204, 212 (1981); Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam).
See also Mincey v. Arizona, 437 U.S. 385 (1978). Privacy in the home is not limited
to intimate matters. “In the home all details are intimate details, because the en-
tire area is held safe from prying government eyes.” Kyllo v. United States, 533 U.S.
27, 37 (2001).
56 One has a diminished expectation of privacy in automobiles. Arkansas v. Sand-
ers, 442 U.S. 753, 761 (1979) (collecting cases); United States v. Ross, 456 U.S. 798,
1392 AMENDMENT 4—SEARCHES AND SEIZURE
bile existed at scene, it can be removed to station and searched without warrant);
United States v. Robinson, 414 U.S. 218 (1973) (once an arrest has been validly made,
search pursuant thereto is so minimally intrusive in addition that scope of search is
not limited by necessity of security of officer); United States v. Edwards, 415 U.S.
800 (1974) (incarcerated suspect; officers need no warrant to take his clothes for test
because little additional intrusion). But see Ybarra v. Illinois, 444 U.S. 85 (1979)
(officers on premises to execute search warrant of premises may not without more
search persons found on premises).
58 565 U.S. ___, No. 10–1259, slip op. (2012).
59 Id. at 3–7. The physical trespass analysis was reprised in subsequent opin-
ions. In its 2013 decision in Florida v. Jardines, the Court assessed whether a law
enforcement officer had the legal authority to conduct a drug sniff with a trained
canine on the front porch of a suspect’s home. Reviewing the law of trespass, the
Court observed that visitors to a home, including the police, must have either ex-
plicit or implicit authority from the homeowner to enter upon and engage in various
activities in the curtilage (i.e., the area immediately surrounding the home). Find-
ing that the use of the dog to find incriminating evidence exceeded “background so-
cial norms” of what a visitor is normally permitted to do on another’s property, the
Court held that the drug sniff constituted a search. 569 U.S. ___, No. 11–564, slip
op. at 5–8 (2013). Similarly, in its 2015 per curiam opinion in Grady v. North Caro-
lina, the Court emphasized the “physical intru[sion]” on a person when it found that
attaching a device to a person’s body, without consent, for the purpose of tracking
the person’s movements, constitutes a search within the meaning of the Fourth Amend-
ment. 575 U.S. ___, No. 14–593, slip op. at 4–5 (2015). Neither the majority in Jardines
AMENDMENT 4—SEARCHES AND SEIZURE 1393
(“It appears as though a five-Justice majority is willing to accept the principle that
government surveillance over time can implicate an individual’s reasonable expecta-
tion of privacy.”), aff’d, ___ F.3d ___, No. 12–4659, slip op. at 31 (4th Cir. 2015); In
re Application for Telephone Information Needed for a Criminal Investigation, 119
F. Supp. 3d. 1011, 1021–22 (N.D. Cal. 2015) (discussing the import of the two con-
curring opinions from Jones); United States v. Brooks, 911 F. Supp. 2d 836, 842 (D.
Ariz. 2012) (noting that “[w]hile it does appear that in some future case, a five jus-
tice ‘majority’ is willing to accept the principle that Government surveillance can
implicate an individual’s reasonable expectation of privacy over time, Jones does not
dictate the result of the case at hand . . . ”); but see United States v. Graham, ___
F.3d ___, No. 12–4659, 2016 WL 3068018, at *10 (4th Cir. May 31, 2016) (arguing
that Justice Alito’s Jones concurrence should be read more narrowly so as to not
implicate government access to information collected by third-party actors, no mat-
ter the quantity of information collected); In re Application of FBI, No. BR 14–01,
2014 WL 5463097, at *10 (FISA Ct. Mar. 20, 2014) (“While the concurring opinions
in Jones may signal that some or even most of the Justices are ready to revisit cer-
tain settled Fourth Amendment principles, the decision in Jones itself breaks no new
ground . . .”).
62 See generally Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111
64 Giordenello v. United States, 357 U.S. 480, 485–86 (1958); United States v.
Watson, 423 U.S. 411, 416–18 (1976); Payton v. New York, 445 U.S. 573, 583–86
(1980); Steagald v. United States, 451 U.S. 204, 211–13 (1981).
65 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 193 (1883). At common
law warrantless arrest was also permissible for some misdemeanors not involving a
breach of the peace. See the lengthy historical treatment in Atwater v. City of Lago
Vista, 532 U.S. 318, 326–45 (2001).
66 United States v. Watson, 423 U.S. 411 (1976). See also United States v. Santana,
427 U.S. 38 (1976) (sustaining warrantless arrest of suspect in her home when she
was initially approached in her doorway and then retreated into house). However, a
suspect arrested on probable cause but without a warrant is entitled to a prompt,
nonadversary hearing before a magistrate under procedures designed to provide a
fair and reliable determination of probable cause in order to keep the arrestee in
custody. Gerstein v. Pugh, 420 U.S. 103 (1975). A “prompt” hearing now means a
hearing that is administratively convenient. See County of Riverside v. McLaughlin,
500 U.S. 44, 56 (1991) (authorizing “as a general matter” detention for up to 48
hours without a probable-cause hearing, after which time the burden shifts to the
government to demonstrate extraordinary circumstances justifying further deten-
tion).
67 Payton v. New York, 445 U.S. 573 (1980) (voiding state law authorizing police
‘seized’ within the meaning of the Fourth Amendment only if, in view of all the cir-
cumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave”). See also Reid v. Georgia, 448 U.S. 438 (1980); United
States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Terry v. Ohio, 392 U.S. 1, 16–19
(1968); Kaupp v. Texas, 538 U.S. 626 (2003). Apprehension by the use of deadly force
is a seizure subject to the Fourth Amendment’s reasonableness requirement. See,
e.g., Tennessee v. Garner, 471 U.S. 1 (1985) (police officer’s fatal shooting of a flee-
ing suspect); Brower v. County of Inyo, 489 U.S. 593 (1989) (police roadblock de-
signed to end car chase with fatal crash); Scott v. Harris, 550 U.S. 372 (2007) (po-
lice officer’s ramming fleeing motorist’s car from behind in attempt to stop him); Plumhoff
v. Rickard, 572 U.S. ___, No. 12–1117, slip op. (2014) (police use of 15 gunshots to
end a police chase).
The Court has also made clear that the Fourth Amendment applies to pre-trial
detention. See Manuel v. Joliet, 580 U.S. ___, No. 14–9496, slip op. at 1 (2017) (hold-
ing that a petitioner who “was held in jail for seven weeks after a judge relied on
AMENDMENT 4—SEARCHES AND SEIZURE 1395
allegedly fabricated evidence to find probable cause that he had committed a crime”
could “challenge his pretrial detention on the ground that it violated the Fourth Amend-
ment”).
69 The justification must be made to a neutral magistrate, not to the arrestee.
stop an automobile . . . for the purpose of checking the driving license of the opera-
tor and the registration of the car, where there is neither probable cause to believe
nor reasonable suspicion” that a law was violated); Brown v. Texas, 443 U.S. 47, 51
(1979) (detaining a person for the purpose of requiring him to identify himself con-
stitutes a seizure requiring a “reasonable, articulable suspicion that a crime had
just been, was being, or was about to be committed”); Reid v. Georgia, 448 U.S. 438,
441 (1980) (requesting ticket stubs and identification from persons disembarking from
plane not reasonable where stated justifications would apply to “a very large cat-
egory of innocent travelers,” e.g., travelers arrived from “a principal place of origin
of cocaine”); Michigan v. Summers, 452 U.S. 692, 705 (1981) (“it is constitutionally
reasonable to require that [a] citizen . . . remain while officers of the law execute a
valid warrant to search his home”); Illinois v. McArthur, 531 U.S. 326 (2001) (approv-
ing “securing” of premises, preventing homeowner from reentering, while a search
warrant is obtained); Los Angeles County v. Rettele, 550 U.S. 609 (2007) (where depu-
ties executing a search warrant did not know that the house being searched had
recently been sold, it was reasonable to hold new homeowners, who had been sleep-
ing in the nude, at gunpoint for one to two minutes without allowing them to dress
or cover themselves, even though the deputies knew that the homeowners were of a
different race from the suspects named in the warrant).
71 532 U.S. 318 (2001).
72 532 U.S. at 346–47.
73 532 U.S. at 352.
74 500 U.S. 44 (1991).
1396 AMENDMENT 4—SEARCHES AND SEIZURE
75 Virginia v. Moore, 128 S. Ct. 1598 (2008). See also Heien v. North Carolina,
574 U.S. ___, No. 13–604, slip op. at 5 (2014) (holding that a mistake of law can
give rise to the reasonable suspicion necessary to uphold the seizure of a vehicle).
The law enforcement officer in Heien had stopped the vehicle because it had only
one working brake light, which the officer understood to be a violation of the North
Carolina vehicle code. Id. at 2. However, a North Carolina court subsequently held,
in a case of first impression, that the vehicle code only requires one working brake
light. Id. at 3. In holding that reasonable suspicion can rest on a mistaken under-
standing of a legal prohibition, a majority of the Supreme Court noted prior cases
finding that mistakes of fact do not preclude reasonable suspicion and concluded
that “reasonable men make mistakes of law, too.” Id. at 5–6 (citing Illinois v. Rodri-
guez, 497 U.S. 177, 183–86 (1990), and Hill v. California, 401 U.S. 797, 802–05 (1971),
as cases involving mistakes of fact).
76 Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht v. United States,
of the poisonous tree,” Nardone v. United States, 308 U.S. 338, 341 (1939), that is,
evidence derived from the original illegality. Previously, if confessions were volun-
tary for purposes of the self-incrimination clause, they were admissible notwithstand-
ing any prior official illegality. Colombe v. Connecticut, 367 U.S. 568 (1961).
78 Although there is a presumption that the illegal arrest is the cause of the
that the suspect had been taken before a magistrate who advised him of his rights
and set bail, after which he confessed, established a sufficient intervening circum-
stance.
79 Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687
(1982). In United States v. Crews, 445 U.S. 463 (1980), the Court, unanimously but
for a variety of reasons, held proper the identification in court of a defendant, who
had been wrongly arrested without probable cause, by the crime victim. The court
identification was not tainted by either the arrest or the subsequent in-custody iden-
tification. See also Hayes v. Florida, 470 U.S. 811, 815 (1985), suggesting in dictum
that a “narrowly circumscribed procedure for fingerprinting detentions on less than
probable cause” may be permissible.
80 In re Strouse, 23 Fed. Cas. 261 (No. 13,548) (D. Nev. 1871); In re Meador, 16
(1959); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
82 Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See v. City of Se-
v. Biswell, 406 U.S. 311 (1972). Colonnade, involving liquor, was based on the long
history of close supervision of the industry. Biswell, involving firearms, introduced
factors that were subsequently to prove significant. Thus, although the statute was
of recent enactment, firearms constituted a pervasively regulated industry, so that
dealers had no reasonable expectation of privacy, because the law provides for regu-
lar inspections. Further, warrantless inspections were needed for effective enforce-
ment of the statute.
1398 AMENDMENT 4—SEARCHES AND SEIZURE
Blackmun, argued that not the warrant clause but the reasonableness clause should
govern administrative inspections. Id. at 325.
86 Administrative warrants issued on the basis of less than probable cause but
only on a showing that a specific business had been chosen for inspection on the
basis of a general administrative plan would suffice. Even without a necessity for
probable cause, the requirement would assure the interposition of a neutral officer
to establish that the inspection was reasonable and was properly authorized. 436
U.S. at 321, 323. The dissenters objected that the warrant clause was being consti-
tutionally diluted. Id. at 325. Administrative warrants were approved also in Camara
v. Municipal Court, 387 U.S. 523, 538 (1967). Previously, one of the reasons given
for finding administrative and noncriminal inspections not covered by the Fourth
Amendment was the fact that the warrant clause would be as rigorously applied to
them as to criminal searches and seizures. Frank v. Maryland, 359 U.S. 360, 373
(1959). See also Almeida-Sanchez v. United States, 413 U.S. 266, 275 (1973) (Justice
Powell concurring) (suggesting a similar administrative warrant procedure empow-
ering police and immigration officers to conduct roving searches of automobiles in
areas near the Nation’s borders); id. at 270 n.3 (indicating that majority Justices
were divided on the validity of such area search warrants); id. at 288 (dissenting
Justice White indicating approval); United States v. Martinez-Fuerte, 428 U.S. 543,
547 n.2, 562 n.15 (1976).
87 452 U.S. 594 (1981).
AMENDMENT 4—SEARCHES AND SEIZURE 1399
four times a year and surface mines at least twice a year, pursuant
to extensive regulations as to standards of safety. The statute spe-
cifically provides for absence of advanced notice and requires the
Secretary of Labor to institute court actions for injunctive and other
relief in cases in which inspectors are denied admission. Sustain-
ing the statute, the Court proclaimed that government had a “greater
latitude” to conduct warrantless inspections of commercial prop-
erty than of homes, because of “the fact that the expectation of pri-
vacy that the owner of commercial property enjoys in such prop-
erty differs significantly from the sanctity accorded an individual’s
home, and that this privacy interest may, in certain circumstances,
be adequately protected by regulatory schemes authorizing warrant-
less inspections.” 88
Dewey was distinguished from Barlow’s in several ways. First,
Dewey involved a single industry, unlike the broad coverage in
Barlow’s. Second, the OSHA statute gave minimal direction to in-
spectors as to time, scope, and frequency of inspections, while FMSHA
specified a regular number of inspections pursuant to standards.
Third, deference was due Congress’s determination that unan-
nounced inspections were necessary if the safety laws were to be
effectively enforced. Fourth, FMSHA provided businesses the oppor-
tunity to contest the search by resisting in the civil proceeding the
Secretary had to bring if consent was denied.89 The standard of a
long tradition of government supervision permitting warrantless in-
spections was dispensed with, because it would lead to “absurd re-
sults,” in that new and emerging industries posing great hazards
would escape regulation.90
Dewey was applied in New York v. Burger 91 to inspection of au-
tomobile junkyards and vehicle dismantling operations, a situation
where there is considerable overlap between administrative and pe-
nal objectives. Applying the Dewey three-part test, the Court con-
cluded that New York has a substantial interest in stemming the
tide of automobile thefts, that regulation of vehicle dismantling rea-
sonably serves that interest, and that statutory safeguards pro-
88 Donovan v. Dewey, 452 U.S. 594, 598–99 (1981).
89 452 U.S. at 596–97, 604–05. Pursuant to the statute, however, the Secretary
has promulgated regulations providing for the assessment of civil penalties for de-
nial of entry and Dewey had been assessed a penalty of $1,000. Id. at 597 n.3. It
was also true in Barlow’s that the government resorted to civil process upon refusal
to admit. 436 U.S. at 317 & n.12.
90 Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of regulation will now
only occur in those “rare instances” where a hotel owner objects to turning over the
registry, and that the Court has never “attempted to prescribe” the exact form of
such review. Id. at 10–11.
96 Id. at 14.
AMENDMENT 4—SEARCHES AND SEIZURE 1401
in ensuring that hotel operators not falsify their records, as they could if given an
opportunity for pre-compliance review, applied to every recordkeeping requirement.
Id. The Court similarly noted that there were other ways to further the city’s inter-
est in warrantless inspections (e.g., ex parte warrants) and that the ordinance failed
to sufficiently constrain a police officer’s discretion as to which hotels to search and
under what circumstances. Id.
100 436 U.S. 499 (1978).
101 The Court also held that, after the fire was extinguished, if fire investiga-
tors were unable to proceed at the moment, because of dark, steam, and smoke, it
was proper for them to leave and return at daylight without any necessity of com-
plying with its mandate for administrative or criminal warrants. 436 U.S. at 510–
1402 AMENDMENT 4—SEARCHES AND SEIZURE
jority used. It appears to have proceeded on the assumption that a “home visit” was
not a search and that the Fourth Amendment does not apply when criminal prosecu-
tion is not threatened. Neither premise is valid under Camara and its progeny, al-
though Camara preceded Wyman. Presumably, the case would today be analyzed
under the expectation of privacy/need/structural protection theory of the more re-
cent cases.
103 Soldal v. Cook County, 506 U.S. 56, 61 (1992) (home “was not only seized, it
literally was carried away, giving new meaning to the term ‘mobile home’ ”).
104 City of Ontario v. Quon, 560 U.S. ___, No. 08–1332, slip op. (2010) (reason-
ableness test for obtaining and reviewing transcripts of on-duty text messages of
police officer using government-issued equipment); Griffin v. Wisconsin, 483 U.S. 868,
873 (1987) (administrative needs of probation system justify warrantless searches of
probationers’ homes on less than probable cause); Hudson v. Palmer, 468 U.S. 517,
526 (1984) (no Fourth Amendment protection from search of prison cell); New Jer-
sey v. T.L.O., 469 U.S. 325 (1985) (simple reasonableness standard governs searches
of students’ persons and effects by public school authorities); O’Connor v. Ortega,
480 U.S. 709 (1987) (reasonableness test for work-related searches of employees’ of-
fices by government employer); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S.
602 (1989) (neither probable cause nor individualized suspicion is necessary for man-
datory drug testing of railway employees involved in accidents or safety violations).
All of these cases are discussed infra under the general heading “Valid Searches
and Seizures Without Warrants.”
105 Skinner, 489 U.S. at 627.
AMENDMENT 4—SEARCHES AND SEIZURE 1403
been developed in the contexts of automobile stops at fixed points or by roving pa-
trols in border situations. Almeida-Sanchez v. United States, 413 U.S. 266 (1973);
United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Ortiz, 422
U.S. 891 (1975); United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
107 428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S. 433 (1973) (sus-
rants, the requirements for the issuance of the two are the same. Aguilar v. Texas,
378 U.S. 108, 112 n.3 (1964). Also, the standards by which the validity of warrants
are to be judged are the same, whether federal or state officers are involved. Ker v.
California, 374 U.S. 23 (1963).
109 Most often, in the suppression hearings, the defendant will challenge the suf-
States, 357 U.S. 480, 486 (1958); Jones v. United States, 362 U.S. 257, 270 (1960);
Katz v. United States, 389 U.S. 347, 356 (1967); United States v. United States Dis-
trict Court, 407 U.S. 297, 321 (1972); United States v. Chadwick, 433 U.S. 1, 9 (1977);
Lo-Ji Sales v. New York, 442 U.S. 319 (1979).
1404 AMENDMENT 4—SEARCHES AND SEIZURE
state attorney general who was leading investigation and who as a justice of the
peace was authorized to issue warrants); Mancusi v. DeForte, 392 U.S. 364, 370–72
(1968) (subpoena issued by district attorney could not qualify as a valid search war-
rant); Lo-Ji Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued open-
ended search warrant for obscene materials, accompanied police during its execu-
tion, and made probable cause determinations at the scene as to particular items).
114 Jones v. United States, 362 U.S. 257, 270–71 (1960) (approving issuance of
warrants by United States Commissioners, many of whom were not lawyers and
none of whom had any guarantees of tenure and salary); Shadwick v. City of Tampa,
407 U.S. 345 (1972) (approving issuance of arrest warrants for violation of city ordi-
nances by city clerks who were assigned to and supervised by municipal court judges).
The Court reserved the question “whether a State may lodge warrant authority in
someone entirely outside the sphere of the judicial branch. Many persons may not
qualify as the kind of ‘public civil officers’ we have come to associate with the term
‘magistrate.’ Had the Tampa clerk been entirely divorced from a judicial position,
this case would have presented different considerations.” Id. at 352.
115 407 U.S. at 350–54 (placing on defendant the burden of demonstrating that
the issuing official lacks capacity to determine probable cause). See also Connally v.
Georgia, 429 U.S. 245 (1977) (unsalaried justice of the peace who receives a sum of
money for each warrant issued but nothing for reviewing and denying a warrant is
not sufficiently detached).
AMENDMENT 4—SEARCHES AND SEIZURE 1405
116 Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). “[T]he term ‘prob-
able cause’ . . . means less than evidence which would justify condemnation.” Lock
v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267
U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in
a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not
be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S.
160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An
“anticipatory” warrant does not violate the Fourth Amendment as long as there is
probable cause to believe that the condition precedent to execution of the search
warrant will occur and that, once it has occurred, “there is a fair probability that
contraband or evidence of a crime will be found in a specified place.” United States
v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983).
“An anticipatory warrant is ‘a warrant based upon an affidavit showing probable
cause that at some future time (but not presently) certain evidence of a crime will
be located at a specified place.’ ” 547 U.S. at 94.
117 Brinegar v. United States, 338 U.S. 160, 175 (1949).
118 United States v. Ventresca, 380 U.S. 102, 108–09 (1965).
119 Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the prefer-
ence for proceeding by warrant leads to a stricter rule for appellate review of trial
court decisions on warrantless stops and searches than is employed to review prob-
able cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (deter-
minations of reasonable suspicion to stop and probable cause to search without a
warrant should be subjected to de novo appellate review).
120 Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the
issuing party “must judge for himself the persuasiveness of the facts relied on by a
[complainant] to show probable cause.” Giordenello v. United States, 357 U.S. 480,
486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issu-
ance concerning information possessed by the affiant but not disclosed to the magis-
trate. Whiteley v. Warden, 401 U.S. 560 (1971).
1406 AMENDMENT 4—SEARCHES AND SEIZURE
121 Byars v. United States, 273 U.S. 28 (1927) (affiant stated he “has good rea-
son to believe and does believe” that defendant has contraband materials in his pos-
session); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated
his conclusion that defendant had committed a crime). See also Nathanson v. United
States, 290 U.S. 41 (1933).
122 380 U.S. 102 (1965).
123 380 U.S. at 109.
124 358 U.S. 307 (1959). For another case applying essentially the same prob-
able cause standard to warrantless arrests as govern arrests by warrant, see Mc-
Cray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met
Aguilar probable cause standard). See also Whitely v. Warden, 401 U.S. 560, 566
(1971) (standards must be “at least as stringent” for warrantless arrest as for obtain-
ing warrant).
125 362 U.S. 257 (1960).
AMENDMENT 4—SEARCHES AND SEIZURE 1407
(approving warrantless stop of motorist based on informant’s tip that “may have been
insufficient” under Aguilar and Spinelli as basis for warrant).
1408 AMENDMENT 4—SEARCHES AND SEIZURE
129 462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by
Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Bren-
nan, Marshall, and Stevens dissented.
130 462 U.S. at 213.
131 462 U.S. at 238. For an application of the Gates “totality of the circum-
stances” test to the warrantless search of a vehicle by a police officer, see, e.g. Florida
v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013).
132 Marron v. United States, 275 U.S. 192, 196 (1927). See Stanford v. Texas,
379 U.S. 476 (1965). Of course, police who are lawfully on the premises pursuant to
a warrant may seize evidence of crime in “plain view” even if that evidence is not
described in the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 464–71 (1971).
133 In Terry v. Ohio, 392 U.S. 1, 17–19, (1968), the Court wrote: “This Court has
held in the past that a search which is reasonable at its inception may violate the
Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United
States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344,
356–58 (1931); see United States v. Di Re, 332 U.S. 581, 586–87 (1948). The scope
of the search must be ‘strictly tied to and justified by’ the circumstances which ren-
dered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Jus-
tice Fortas concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367–368
(1964); Agnello v. United States, 296 U.S. 20, 30–31 (1925).” See also Andresen v.
Maryland, 427 U.S. 463, 470–82 (1976), and id. at 484, 492–93 (Justice Brennan
dissenting). In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Bren-
nan, and White would have based the decision on the principle that a valid warrant
for gambling paraphernalia did not authorize police upon discovering motion pic-
ture films in the course of the search to project the films to learn their contents.
AMENDMENT 4—SEARCHES AND SEIZURE 1409
134 Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did
not describe the items to be seized was “plainly invalid”; particularity contained in
supporting documents not cross-referenced by the warrant and not accompanying
the warrant is insufficient); United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (be-
cause the language of the Fourth Amendment “specifies only two matters that must
be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the per-
sons or things to be seized[,]’ . . . the Fourth Amendment does not require that the
triggering condition for an anticipatory warrant be set forth in the warrant itself.”
135 Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas,
379 U.S. 476, 485 (1965). For First Amendment implications of seizures under the
Federal Racketeer Influenced and Corrupt Organizations Act (RICO), see First Amend-
ment: Obscenity and Prior Restraint.
136 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957).
137 Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).
1410 AMENDMENT 4—SEARCHES AND SEIZURE
(1986), rejecting the defendant’s assertion, based on Heller, that only a single copy
rather than all copies of allegedly obscene movies should have been seized pursuant
to warrant.
141 Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji Sales v. New York,
442 U.S. 319 (1979); Walter v. United States, 447 U.S. 649 (1980). These special
constraints are inapplicable when obscene materials are purchased, and there is con-
sequently no Fourth Amendment search or seizure. Maryland v. Macon, 472 U.S.
463 (1985).
142 Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam).
143 New York v. P.J. Video, Inc., 475 U.S. 868, 873–74 (1986) (quoting Marcus v.
(1961).
147 Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing
suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more ex-
pressly adopting that position). In the Privacy Protection Act, Pub. L. 96–440, 94
Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection against
searches and seizures not only of the news media and news people but also of oth-
ers engaged in disseminating communications to the public, unless there is prob-
able cause to believe the person protecting the materials has committed or is com-
mitting the crime to which the materials relate.
148 United States v. Lefkowitz, 285 U.S. 452, 465–66 (1932). Of course, evidence
plied the rule in a warrantless search of premises. The rule apparently never ap-
plied in case of a search of the person. Cf. Schmerber v. California, 384 U.S. 757
(1966).
150 Gouled v. United States, 255 U.S. 298, 306 (1921).
1412 AMENDMENT 4—SEARCHES AND SEIZURE
ises that historically the right to search for and seize property de-
pended upon the assertion by the Government of a valid claim of
superior interest, and that it was not enough that the purpose of
the search and seizure was to obtain evidence to use in apprehend-
ing and convicting criminals.” 151 More evaded than followed, the
“mere evidence” rule was overturned in 1967.152 It is now settled
that such evidentiary items as fingerprints, 153 blood, 154 urine
samples,155 fingernail and skin scrapings,156 voice and handwriting
exemplars,157 conversations,158 and other demonstrative evidence may
be obtained through the warrant process or without a warrant where
“special needs” of government are shown.159
However, some medically assisted bodily intrusions have been
held impermissible, e.g., forcible administration of an emetic to in-
duce vomiting,160 and surgery under general anesthetic to remove
a bullet lodged in a suspect’s chest.161 Factors to be weighed in de-
termining which medical tests and procedures are reasonable in-
clude the extent to which the procedure threatens the individual’s
safety or health, “the extent of the intrusion upon the individual’s
dignitary interests in personal privacy and bodily integrity,” and the
importance of the evidence to the prosecution’s case.162
151 Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. United States,
255 U.S. 298, 309 (1921). The holding was derived from dicta in Boyd v. United
States, 116 U.S. 616, 624–29 (1886).
152 Warden v. Hayden, 387 U.S. 294 (1967).
153 Davis v. Mississippi, 394 U.S. 721 (1969).
154 Schmerber v. California, 384 U.S. 757 (1966); Skinner v. Railway Labor Ex-
ecutives’ Ass’n, 489 U.S. 602 (1989) (warrantless blood testing for drug use by rail-
road employee involved in accident).
155 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrant-
ings from defendant’s fingernails at the station house, on the basis that it was a
very limited intrusion and necessary to preserve evanescent evidence).
157 United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S.
19 (1973) (both sustaining grand jury subpoenas to produce voice and handwriting
exemplars, as no reasonable expectation of privacy exists with respect to those items).
158 Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107–08
pected of culpability in crime are subject to the issuance and execution of warrants
for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553–60
(1978). Justice Stevens argued for a stiffer standard for issuance of warrants to
nonsuspects, requiring in order to invade their privacy a showing that they would
not comply with a less intrusive method, such as a subpoena. Id. at 577 (dissent-
ing).
160 Rochin v. California, 342 U.S. 165 (1952).
161 Winston v. Lee, 470 U.S. 753 (1985).
162 Winston v. Lee, 470 U.S. 753, 761–63 (1985). Chief Justice Burger concurred
on the basis of his reading of the Court’s opinion “as not preventing detention of an
individual if there are reasonable grounds to believe that natural bodily functions
AMENDMENT 4—SEARCHES AND SEIZURE 1413
will disclose the presence of contraband materials secreted internally.” Id. at 767.
Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
163 387 U.S. 294, 302–03 (1967). Seizure of a diary was at issue in Hill v. Cali-
fornia, 401 U.S. 797, 805 (1971), but it had not been raised in the state courts and
was deemed waived.
164 116 U.S. 616 (1886).
165 Act of June 22, 1874, § 5, 18 Stat. 187.
166 Boyd v. United States, 116 U.S. 616, 622 (1886).
167 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765).
168 Boyd v. United States, 116 U.S. 616, 630 (1886).
1414 AMENDMENT 4—SEARCHES AND SEIZURE
proved to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976).
175 E.g., United States v. Miller, 425 U.S. 435, 440, 444 (1976); Fisher v. United
States, 425 U.S. 391, 401 (1976); California Bankers Ass’n v. Shultz, 416 U.S. 21,
78–79 (1974) (Justice Powell concurring).
176 See, Note, Formalism, Legal Realism, and Constitutionally Protected Privacy
Under the Fourth and Fifth Amendments, 90 HARV. L. REV. 945 (1977).
177 United States v. Ramirez, 523 U.S. 65, 71 (1998).
178 Rule 41(c), Federal Rules of Criminal Procedure, provides, inter alia, that
the warrant shall command its execution in the daytime, unless the magistrate “for
AMENDMENT 4—SEARCHES AND SEIZURE 1415
law that before an officer could break and enter he must give no-
tice of his office, authority, and purpose and must in effect be re-
fused admittance,179 and until recently this has been a statutory
requirement in the federal system 180 and generally in the states.
In Ker v. California,181 the Court considered the rule of announce-
ment as a constitutional requirement, although a majority there found
circumstances justifying entry without announcement.
In Wilson v. Arkansas,182 the Court determined that the com-
mon law “knock and announce” rule is an element of the Fourth
Amendment reasonableness inquiry. The rule is merely a presump-
tion, however, that yields under various circumstances, including
those posing a threat of physical violence to officers, those in which
a prisoner has escaped and taken refuge in his dwelling, and those
in which officers have reason to believe that destruction of evi-
dence is likely. The test, articulated two years later in Richards v.
Wisconsin,183 is whether police have “a reasonable suspicion that
knocking and announcing their presence, under the particular cir-
cumstances, would be dangerous or futile, or that it would inhibit
the effective investigation of the crime.” In Richards, the Court held
that there is no blanket exception to the rule whenever officers are
executing a search warrant in a felony drug investigation; instead,
a case-by-case analysis is required to determine whether no-knock
entry is justified under the circumstances.184 Similarly, if officers
choose to knock and announce before searching for drugs, circum-
stances may justify forced entry if there is not a prompt re-
sponse.185 Recent federal laws providing for the issuance of war-
rants authorizing in certain circumstances “no-knock” entries to execute
reasonable cause shown” directs in the warrant that it be served at some other time.
See Jones v. United States, 357 U.S. 493, 498–500 (1958); Gooding v. United States,
416 U.S. 430 (1974). A separate statutory rule applies to narcotics cases. 21 U.S.C.
§ 879(a).
179 Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604).
180 18 U.S.C. § 3109. See Miller v. United States, 357 U.S. 301 (1958); Wong Sun
for differentiating search warrants. Eight Justices agreed that federal standards should
govern and that the rule of announcement was of constitutional stature, but they
divided 4-to-4 whether entry in this case had been pursuant to a valid exception.
Justice Harlan who had dissented from the federal standards issue joined the four
finding a justifiable exception to carry the result.
182 514 U.S. 927 (1995).
183 520 U.S. 385, 394 (1997).
184 The fact that officers may have to destroy property in order to conduct a
no-knock entry has no bearing on the reasonableness of their decision not to knock
and announce. United States v. Ramirez, 523 U.S. 65 (1998).
185 United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible af-
ter officers executing a warrant to search for drugs knocked, announced “police search
warrant,” and waited 15–20 seconds with no response).
1416 AMENDMENT 4—SEARCHES AND SEIZURE
if they find there is probable cause to believe (1) the property sought may, and if
notice is given, will be easily and quickly destroyed or (2) giving notice will endan-
ger the life or safety of the executing officer or another person. 21 U.S.C. § 879(b).
See also D.C. Code, § 23–591.
187 Sgro v. United States, 287 U.S. 206 (1932).
188 Sgro v. United States, 287 U.S. 206 (1932).
189 Wilson v. Layne, 526 U.S. 603 (1999). Accord, Hanlon v. Berger, 526 U.S.
808 (1999) (media camera crew “ride-along” with Fish and Wildlife Service agents
executing a warrant to search respondent’s ranch for evidence of illegal taking of
wildlife).
190 Ybarra v. Illinois, 444 U.S. 85 (1979) (patron in a bar), relying on and reaf-
firming United States v. Di Re, 332 U.S. 581 (1948) (occupant of vehicle may not be
searched merely because there are grounds to search the automobile). But see Mary-
land v. Pringle, 540 U.S. 366 (2003) (distinguishing Ybarra on basis that passengers
in car often have “common enterprise,” and noting that the tip in Di Re implicated
only the driver.
191 452 U.S. 692 (1981).
AMENDMENT 4—SEARCHES AND SEIZURE 1417
192 452 U.S. at 701–06. Ybarra was distinguished on the basis of its greater in-
trusiveness and the lack of sufficient connection with the premises. Id. at 695 n.4.
By the time Summers was searched, police had probable cause to do so. Id. at 695.
The warrant here was for contraband, id. at 701, and a different rule may apply
with respect to warrants for other evidence, id. at 705 n.20. In Los Angeles County
v. Rettele, 550 U.S. 609 (2007), the Court found no Fourth Amendment violation
where deputies did not know that the suspects had sold the house that the deputies
had a warrant to search. The deputies entered the house and found the new own-
ers, of a different race from the suspects, sleeping in the nude. The deputies held
the new owners at gunpoint for one to two minutes without allowing them to dress
or cover themselves. As for the difference in race, the Court noted that, “[w]hen the
deputies ordered [Caucasian] respondents from their bed, they had no way of know-
ing whether the African-American suspects were elsewhere in the house.” Id. at 613.
As for not allowing the new owners to dress or cover themselves, the Court quoted
its statement in Michigan v. Summers that “[t]he risk of harm to both the police
and the occupants is minimized if the officers routinely exercise unquestioned com-
mand of the situation.” Id. at 1993 (quoting 452 U.S. at 702–03).
193 Muehler v. Mena, 544 U.S. 93, 98–99 (2005) (also upholding questioning the
was only one “third floor apartment” in city row house when in fact there were two).
195 568 U.S. ___, No. 11–770, slip op. (2013). In Bailey, the police obtained a
warrant to search Bailey’s residence for firearms and drugs Id. at 2. Meanwhile,
detectives staked out the residence, saw Bailey leave and drive away, and then called
in a search team. Id. While the search was proceeding, the detectives tailed Bailey
for about a mile before stopping and detaining him. Id. at 2–3.
196 As an alternative ground, the district court had found that stopping Bailey
was lawful as an investigatory stop under Terry v. Ohio, 392 U.S. 1, 20 (1968), but
the Supreme Court offered no opinion on whether, assuming the stop was valid un-
der Terry, the resulting interaction between law enforcement and Bailey could inde-
pendently have justified Bailey’s detention. Bailey, slip op. at 14.
197 Bailey, slip op. at 13–14.
1418 AMENDMENT 4—SEARCHES AND SEIZURE
States, 335 U.S. 451, 453 (1948); Camara v. Municipal Court, 387 U.S. 523, 528–29
(1967); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352–53, 355 (1977).
201 American Law Institute, A Model Code of Pre-Arraignment Procedure, Tent.
United States, 389 U.S. 347, 357 (1967)); G.M. Leasing Corp. v. United States, 429
U.S. 338, 352–53, 358 (1977).
203 Jones v. United States, 357 U.S. 493, 499 (1958).
204 McDonald v. United States, 335 U.S. 451, 456 (1948). In general, with re-
gard to exceptions to the warrant clause, conduct must be tested by the reasonable-
AMENDMENT 4—SEARCHES AND SEIZURE 1419
U.S. 10, 16–17 (1948); Sibron v. New York, 392 U.S. 40, 62–63 (1968).
207 “The police may not arrest upon mere suspicion but only on ‘probable cause.’ ”
at hand and that both an investigative stop and a “frisk” was re-
quired.210 Because the conduct witnessed by the police officer rea-
sonably led him to believe that an armed robbery was in prospect,
he was as reasonably led to believe that the men were armed and
probably dangerous and that his safety required a “frisk.” Because
the object of the “frisk” is the discovery of dangerous weapons, “it
must therefore be confined in scope to an intrusion reasonably de-
signed to discover guns, knives, clubs, or other hidden instruments
for the assault of the police officer.” 211
In a later case, the Court held that an officer may seize an ob-
ject if, in the course of a weapons frisk, “plain touch” reveals the
presence of the object, and the officer has probable cause to believe
it is contraband.212 The Court viewed the situation as analogous to
that covered by the “plain view” doctrine: obvious contraband may
be seized, but a search may not be expanded to determine whether
an object is contraband.213 Also impermissible is physical manipula-
tion, without reasonable suspicion, of a bus passenger’s carry-on lug-
gage stored in an overhead compartment.214
Terry did not rule on a host of problems, including the grounds
that could permissibly lead an officer to momentarily stop a person
on the street or elsewhere in order to ask questions rather than
frisk for weapons, the right of the stopped individual to refuse to
cooperate, and the permissible response of the police to that re-
210 392 U.S. at 20, 21, 22.
211 392 U.S. at 23–27, 29. See also Sibron v. New York, 392 U.S. 40 (1968) (after
policeman observed defendant speak with several known narcotics addicts, he ap-
proached him and placed his hand in defendant’s pocket, thus discovering narcotics;
this was impermissible, because he lacked a reasonable basis for the frisk and in
any event his search exceeded the permissible scope of a weapons frisk); Adams v.
Williams, 407 U.S. 143 (1972) (stop and frisk based on informer’s in-person tip that
defendant was sitting in an identified parked car, visible to informer and officer, in
a high crime area at 2 a.m., with narcotics and a gun at his waist); Pennsylvania v.
Mimms, 434 U.S. 106 (1977) (after validly stopping car, officer required defendant
to get out of car, observed bulge under his jacket, and frisked him and seized weapon;
while officer did not suspect driver of crime or have an articulable basis for safety
fears, safety considerations justified his requiring driver to leave car); Maryland v.
Wilson, 519 U.S. 408, 413 (1997) (after validly stopping car, officer may order pas-
sengers as well as driver out of car; “the same weighty interest in officer safety is
present regardless of whether the occupant of the stopped car is a driver or passen-
ger”); Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (after validly stopping car, offi-
cer may frisk (patdown for weapons) both the driver and any passengers whom he
reasonably concludes “might be armed and presently dangerous”).
212 Minnesota v. Dickerson, 508 U.S. 366 (1993).
213 508 U.S. at 375, 378–79. In Dickerson the Court held that seizure of a small
plastic container that the officer felt in the suspect’s pocket was not justified; the
officer should not have continued the search, manipulating the container with his
fingers, after determining that no weapon was present.
214 Bond v. United States, 529 U.S. 334 (2000) (bus passenger has reasonable
expectation that, although other passengers might handle his bag in order to make
room for their own, they will not “feel the bag in an exploratory manner”).
AMENDMENT 4—SEARCHES AND SEIZURE 1421
tempted to capture the “elusive concept” of the basis for permitting a stop. Officers
must have “articulable reasons” or “founded suspicions,” derived from the totality of
the circumstances. “Based upon that whole picture the detaining officer must have
a particularized and objective basis for suspecting the particular person stopped of
criminal activity.” Id. at 417–18. The inquiry is thus quite fact-specific. In the anony-
mous tip context, the same basic approach requiring some corroboration applies re-
gardless of whether the standard is probable cause or reasonable suspicion; the dif-
ference is that less information, or less reliable information, can satisfy the lower
standard. Alabama v. White, 496 U.S. 325 (1990).
218 E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual’s presence in high crime
area gave officer no articulable basis to suspect him of crime); Delaware v. Prouse,
440 U.S. 648 (1979) (reasonable suspicion of a license or registration violation is
necessary to authorize automobile stop; random stops impermissible); United States
v. Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random automobile
stop solely on basis of Mexican appearance of occupants); Reid v. Georgia, 448 U.S.
438 (1980) (no reasonable suspicion for airport stop based on appearance that sus-
pect and another passenger were trying to conceal the fact that they were traveling
together). But cf. United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting ve-
hicles at fixed checkpoints to question occupants as to citizenship and immigration
status permissible, even if officers should act on basis of appearance of occupants).
219 Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New York, 442 U.S.
200 (1979). Illinois v. Wardlow, 528 U.S. 119 (2000) (unprovoked flight from high
crime area upon sight of police produces “reasonable suspicion”).
220 Florida v. J.L., 529 U.S. 266 (2000) (reasonable suspicion requires that a tip
(2014) (anonymous 911 call reporting an erratic swerve by a particular truck travel-
ing in a particular direction held to be sufficient to justify stop); United States v.
Sokolow, 490 U.S. 1, 9 (1989) (airport stop based on drug courier profile may rely
1422 AMENDMENT 4—SEARCHES AND SEIZURE
It took the Court some time to settle on a test for when a “sei-
zure” has occurred, and the Court has recently modified its ap-
proach. The issue is of some importance, since it is at this point
that Fourth Amendment protections take hold. The Terry Court rec-
ognized in dictum that “not all personal intercourse between police-
men and citizens involves ‘seizures’ of persons,” and suggested that
“[o]nly when the officer, by means of physical force or show of au-
thority, has in some way restrained the liberty of a citizen may we
conclude that a ‘seizure’ has occurred.” 222 Years later Justice Stew-
art proposed a similar standard—that a person has been seized “only
if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave.” 223 A majority of the Justices subsequently endorsed this rea-
sonable perception standard 224 and applied it in several cases in
which admissibility of evidence turned on whether a seizure of the
person not justified by probable cause or reasonable suspicion had
occurred prior to the uncovering of the evidence. No seizure oc-
curred, for example, when INS agents seeking to identify illegal aliens
conducted workforce surveys within a garment factory; while some
agents were positioned at exits, others systematically moved through
the factory and questioned employees.225 This brief questioning, even
with blocked exits, amounted to “classic consensual encounters rather
than Fourth Amendment seizures.” 226 The Court also ruled that no
seizure had occurred when police in a squad car drove alongside a
suspect who had turned and run down the sidewalk when he saw
the squad car approach. Under the circumstances (no siren, flash-
ing lights, display of a weapon, or blocking of the suspect’s path),
the Court concluded, the police conduct “would not have communi-
cated to the reasonable person an attempt to capture or otherwise
intrude upon [one’s] freedom of movement.” 227
Soon after, however, the Court departed from the Mendenhall
reasonable-perception standard and adopted a more formalistic ap-
proach, holding that an actual chase with evident intent to capture
did not amount to a “seizure” because the suspect had not com-
ion of the Court, but in which the test was used by the plurality of four, id. at 502,
and also endorsed by dissenting Justice Blackmun, id. at 514.
225 INS v. Delgado, 466 U.S. 210 (1984).
226 466 U.S. at 221.
227 Michigan v. Chesternut, 486 U.S. 567, 575 (1988).
AMENDMENT 4—SEARCHES AND SEIZURE 1423
plied with the officer’s order to halt. The Court in California v. Hodari
D. wrote that Mendenhall stated a “necessary” but not a “suffi-
cient” condition for a seizure of the person through show of author-
ity.228 A Fourth Amendment “seizure” of the person, the Court de-
termined, is the same as a common law arrest; there must be either
application of physical force (or the laying on of hands), or submis-
sion to the assertion of authority.229 Indications are, however, that
Hodari D. did not signal the end of the reasonable perception stan-
dard, but merely carved an exception applicable to chases and per-
haps other encounters between suspects and police.
Later in the same term the Court ruled that the Mendenhall
“free-to-leave” inquiry was misplaced in the context of a police sweep
of a bus, but that a modified reasonable perception approach still
governed.230 In conducting a bus sweep, aimed at detecting illegal
drugs and their couriers, police officers typically board a bus dur-
ing a stopover at a terminal and ask to inspect tickets, identifica-
tion, and sometimes luggage of selected passengers. The Court did
not focus on whether an “arrest” had taken place, as adherence to
the Hodari D. approach would have required, but instead sug-
gested that the appropriate inquiry is “whether a reasonable per-
son would feel free to decline the officers’ requests or otherwise ter-
minate the encounter.” 231 “When the person is seated on a bus and
has no desire to leave,” the Court explained, “the degree to which a
reasonable person would feel that he or she could leave is not an
accurate measure of the coercive effect of the encounter.” 232
A Terry search need not be limited to a stop and frisk of the
person, but may extend as well to a protective search of the passen-
ger compartment of a car if an officer possesses “a reasonable be-
lief, based on specific and articulable facts . . . that the suspect is
228 499 U.S. 621, 628 (1991). As in Michigan v. Chesternut, supra, the suspect
tion that Fourth Amendment protections extend to “seizures that involve only a brief
detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S. 873,
878 (1975), quoted in INS v. Delgado, 466 U.S. 210, 215 (1984).
230 Florida v. Bostick, 501 U.S. 429 (1991).
231 501 U.S. at 436.
232 501 U.S. at 436. The Court asserted that the case was “analytically indistin-
guishable from Delgado. Like the workers in that case [subjected to the INS ‘sur-
vey’ at their workplace], Bostick’s freedom of movement was restricted by a factor
independent of police conduct—i.e., by his being a passenger on a bus.” Id. See also
United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold a bus
search in which one officer stationed himself in the front of the bus and one in the
rear, while a third officer worked his way from rear to front, questioning passengers
individually. Under these circumstances, and following the arrest of his traveling
companion, the defendant had consented to the search of his person.
1424 AMENDMENT 4—SEARCHES AND SEIZURE
influence of drugs, officer spied hunting knife exposed on floor of front seat and searched
remainder of passenger compartment). Similar reasoning has been applied to up-
hold a “protective sweep” of a home in which an arrest is made if arresting officers
have a reasonable belief that the area swept may harbor another individual posing
a danger to the officers or to others. Maryland v. Buie, 494 U.S. 325 (1990).
234 United States v. Sharpe, 470 U.S. 675, 686 (1985). A more relaxed standard
has been applied to detention of travelers at the border, the Court testing the rea-
sonableness in terms of “the period of time necessary to either verify or dispel the
suspicion.” United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (ap-
proving warrantless detention for more than 24 hours of traveler suspected of ali-
mentary canal drug smuggling).
235 United States v. Place, 462 U.S. 696, 709 (1983).
236 462 U.S. at 706.
237 462 U.S. at 707. However, the search in Place was not expeditious, and hence
exceeded Fourth Amendment bounds, when agents took 90 minutes to transport lug-
gage to another airport for administration of the canine sniff. The length of a deten-
tion short of an arrest has similarly been a factor in other cases. Compare Illinois v.
Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of a car following
a routine traffic stop does not offend the Fourth Amendment if the duration of the
stop is justified by the traffic offense) with Rodriguez v. United States, 575 U.S. ___,
No. 13–9972, slip op. at 3, 5–6 (2015) (finding that the stop in question had been
prolonged for seven to eight minutes beyond the time needed to resolve the traffic
offense in order to conduct a canine sniff).
AMENDMENT 4—SEARCHES AND SEIZURE 1425
238 Florida v. Royer, 460 U.S. 491 (1983). On this much the plurality opinion of
Justice White (id. at 503), joined by three other Justices, and the concurring opin-
ion of Justice Brennan (id. at 509) were in agreement.
239 United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
240 Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United States,
267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925).
241 Virginia v. Moore, 128 S. Ct. 1598 (2008) (holding that, where an arrest for
a minor offense is prohibited by state law, the arrest will not violate the Fourth
Amendment if it was based on probable cause).
242 Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762,
763 (1969). The Court, in Birchfield v. North Dakota, 579 U.S. ___, No. 14–1468,
slip op. (2016), explained that the precedent allowing for a warrantless search of an
arrestee in order to prevent the destruction of evidence applies to both evidence that
could be actively destroyed by a suspect and to evidence that can be destroyed due
to a natural process, such as the natural dissipation of the alcohol content in a sus-
pect’s blood. Id. at 30–31.
243 United States v. Robinson, 414 U.S. 218, 235 (1973). See also id. at 237–38
(Justice Powell concurring). The Court applied the same rule in Gustafson v. Florida,
414 U.S. 260 (1973), involving a search of a motorist’s person following his custodial
arrest for an offense for which a citation would normally have issued. Unlike the
1426 AMENDMENT 4—SEARCHES AND SEIZURE
ment differs from other exceptions to the warrant requirement, such as the exigent
circumstances exception. See Birchfield, slip op. at 15–16 (noting that while “other
exceptions to the warrant requirement ‘apply categorically’,” the exigent circum-
stances exception to the warrant requirement applies on a case-by-case basis) (quot-
ing Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. at 7 n.3 (2013)).
245 573 U.S. ___, No. 13–132, slip op. (2014).
246 “Cell phones differ in both a quantitative and a qualitative sense from other
est in the air in his lungs, as air in one’s lungs is not a part of one’s body and is
regularly exhaled from the lungs as a natural process. Id. at 21.
253 “Blood tests are a different matter.” Id. at 22.
254 Id. at 21–23.
255 Id. at 24–25.
256 Id. at 33.
257 Id. at 25–28. The Birchfield Court also rejected “more costly” and previously
tried alternatives to penalties for refusing a breath test, such as sobriety check-
points, ignition interlocks, and the use of treatment programs. Id. at 29–30.
1428 AMENDMENT 4—SEARCHES AND SEIZURE
258 Id. at 33. In so doing, the Court rejected the argument that warrantless blood
ing Co. v. United States, 282 U.S. 344 (1931), and United States v. Lefkowitz, 285
U.S. 452 (1932).
261 331 U.S. 145 (1947).
262 334 U.S. 699 (1948).
263 334 U.S. at 708.
264 339 U.S. 56 (1950).
265 339 U.S. at 64.
AMENDMENT 4—SEARCHES AND SEIZURE 1429
men v. United States, 353 U.S. 346 (1957), the Court held that the seizure of the
entire contents of a house and the removal to F.B.I. offices 200 miles away for exami-
nation, pursuant to an arrest under warrant of one of the persons found in the house,
was unreasonable. In decisions contemporaneous to and subsequent to Chimel, ap-
plying pre-Chimel standards because that case was not retroactive, Williams v. United
States, 401 U.S. 646 (1971), the Court has applied Rabinowitz somewhat restric-
tively. See Von Cleef v. New Jersey, 395 U.S. 814 (1969), which followed Kremen;
Shipley v. California, 395 U.S. 818 (1969), and Vale v. Louisiana, 399 U.S. 30 (1970)
(both involving arrests outside the house with subsequent searches of the house);
Coolidge v. New Hampshire, 403 U.S. 443, 455–57 (1971). Substantially extensive
searches were, however, approved in Williams v. United States, 401 U.S. 646 (1971),
and Hill v. California, 401 U.S. 797 (1971).
267 395 U.S. 752 (1969).
268 395 U.S. at 762–63.
269 See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 492, 493, 510 (1971), in
which the four dissenters advocated the reasonableness argument rejected in Chimel.
1430 AMENDMENT 4—SEARCHES AND SEIZURE
and resealed during a valid customs inspection, and officers had maintained surveil-
lance through a “controlled delivery” to the suspect, there is no reasonable expecta-
tion of privacy in the contents of the container and officers may search it, upon the
arrest of the suspect, without having obtained a warrant. Illinois v. Andreas, 463
U.S. 765 (1983).
273 Illinois v. LaFayette, 462 U.S. 640, 645 (1983) (inventory search) (following
South Dakota v. Opperman, 428 U.S. 364 (1976)). Similarly, an inventory search of
an impounded vehicle may include the contents of a closed container. Colorado v.
Bertine, 479 U.S. 367 (1987). Inventory searches of closed containers must, how-
ever, be guided by a police policy containing standardized criteria for exercise of dis-
cretion. Florida v. Wells, 495 U.S. 1 (1990).
274 Maryland v. Buie, 494 U.S. 325, 334 (1990). This “sweep” is not to be a full-
blown, “top-to-bottom” search, but only “a cursory inspection of those spaces where
a person may be found.” Id. at 335–36.
275 453 U.S. 454, 460 n.3 (1981).
AMENDMENT 4—SEARCHES AND SEIZURE 1431
this particular instance, Belton had been removed from the automobile and hand-
cuffed, but the Court wished to create a general rule removed from the fact-specific
nature of any one case. “ ‘Container’ here denotes any object capable of holding an-
other object. It thus includes closed or open glove compartments, consoles, or other
receptacles located anywhere within the passenger compartment, as well as lug-
gage, boxes, bags, clothing, and the like. Our holding encompasses only the interior
of the passenger compartment of an automobile and does not encompass the trunk.”
453 U.S. at 460–61 n.4.
277 Arizona v. Gant, 556 U.S. ___, No. 07–542, slip op. at 8 (2009).
278 556 U.S. ___, No. 07–542 (2009).
279 “To read Belton as authorizing a vehicle search incident to every recent occu-
pant’s arrest would . . . untether the rule from the justifications underlying the Chimel
exception . . . .” Slip op. at 9.
280 556 U.S. ___, No. 07–542, slip op. at 18. Justice Alito, in a dissenting opin-
ion joined by Chief Justice Roberts and Justice Kennedy and in part by Justice Breyer,
wrote that “there can be no doubt that” the majority had overruled Belton. Slip op.
at 2.
281 267 U.S. 132 (1925). Carroll was a Prohibition-era liquor case, whereas a
v. United States, 305 U.S. 251 (1938); Brinegar v. United States, 338 U.S. 160 (1949).
All of these cases involved contraband, but in Chambers v. Maroney, 399 U.S. 42
(1970), the Court, without discussion, and over Justice Harlan’s dissent, id. at 55,
62, extended the rule to evidentiary searches.
1432 AMENDMENT 4—SEARCHES AND SEIZURE
the opinion had the adherence of a plurality only, Justice Harlan concurring on other
grounds, and there being four dissenters. Id. at 493, 504, 510, 523.
284 Preston v. United States, 376 U.S. 364 (1964); Dyke v. Taylor Implement Mfg.
United States v. Chadwick, 433 U.S. 1, 12 (1977). See also United States v. Ortiz,
422 U.S. 891, 896 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976);
South Dakota v. Opperman, 428 U.S. 364, 367–68 (1976); Robbins v. California, 453
U.S. 420, 424–25 (1981); United States v. Ross, 456 U.S. 798, 807 n.9 (1982).
287 California v. Carney, 471 U.S. 386, 393 (1985) (leaving open the question of
whether the automobile exception also applies to a “mobile” home being used as a
residence and not “readily mobile”).
288 Almeida-Sanchez v. United States, 413 U.S. 266 (1973) (roving patrols); United
States v. Ortiz, 422 U.S. 891 (1975). Cf. Colorado v. Bannister, 449 U.S. 1 (1980).
An automobile’s “ready mobility [is] an exigency sufficient to excuse failure to ob-
tain a search warrant once probable cause is clear”; there is no need to find the
presence of “unforeseen circumstances” or other additional exigency. Pennsylvania v.
Labron, 527 U.S. 465 (1996). Accord, Maryland v. Dyson, 527 U.S. 465 (1999) (per
curiam). Cf. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013).
AMENDMENT 4—SEARCHES AND SEIZURE 1433
motorists to check driver’s license and automobile registration constitute Fourth Amend-
ment violation); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (violation for
roving patrols on lookout for illegal aliens to stop vehicles on highways near inter-
national borders when only ground for suspicion is that occupants appear to be of
Mexican ancestry). But cf. United States v. Arvizu, 534 U.S. 266 (2002) (reasonable
suspicion justified stop by border agents of vehicle traveling on unpaved backroads
in an apparent effort to evade a border patrol checkpoint on the highway). In Prouse,
the Court cautioned that it was not precluding the states from developing methods
for spot checks, such as questioning all traffic at roadblocks, that involve less intru-
sion or that do not involve unconstrained exercise of discretion. 440 U.S. at 663.
290 An officer who observes a traffic violation may stop a vehicle even if his real
motivation is to investigate for evidence of other crime. Whren v. United States, 517
U.S. 806 (1996). The existence of probable cause to believe that a traffic violation
has occurred establishes the constitutional reasonableness of traffic stops regardless
of the actual motivation of the officers involved, and regardless of whether it is cus-
tomary police practice to stop motorists for the violation observed. Similarly, pretextual
arrest of a motorist who has committed a traffic offense is permissible. Arkansas v.
Sullivan, 532 U.S. 769 (2001) (per curiam) (upholding search of the motorist’s car
for a crime not related to the traffic offense).
291 Brendlin v. California, 551 U.S. 249, 263 (2007).
292 Arizona v. Johnson, 129 S. Ct. 781, 786 (2009).
293 Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (upholding a so-
briety checkpoint at which all motorists are briefly stopped for preliminary question-
ing and observation for signs of intoxication).
294 United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (upholding border pa-
trol checkpoint, over 60 miles from the border, for questioning designed to appre-
hend illegal aliens). See also United States v. Flores-Montano, 541 U.S. 149 (2004)
(upholding a search at the border involving disassembly of a vehicle’s fuel tank).
295 City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (vehicle checkpoint set
up for the “primary purpose [of] detect[ing] evidence of ordinary criminal wrongdo-
ing” (here interdicting illegal narcotics) does not fall within the highway safety or
border patrol exception to the individualized suspicion requirement, and hence vio-
lates the Fourth Amendment). Edmond was distinguished in Illinois v. Lidster, 540
U.S. 419 (2004), upholding use of a checkpoint to ask motorists for help in solving a
recent hit-and-run accident that had resulted in death. The public interest in solv-
ing the crime was deemed “grave,” while the interference with personal liberty was
deemed minimal.
1434 AMENDMENT 4—SEARCHES AND SEIZURE
able privacy interest in the vehicle identification number, required by law to be placed
on the dashboard so as to be visible through the windshield, police may reach into
the passenger compartment to remove items obscuring the number and may seize
items in plain view while doing so. New York v. Class, 475 U.S. 106 (1986). Because
there also is no legitimate privacy interest in possessing contraband, and because
properly conducted canine sniffs are “generally likely[] to reveal only the presence
of contraband,” police may conduct a canine sniff around the perimeter of a vehicle
stopped for a traffic offense so long as the stop is not prolonged beyond the time
needed to process the traffic violation. Compare Illinois v. Caballes, 543 U.S. 405
(2005) (a canine sniff around the perimeter of a car following a routine traffic stop
does not offend the Fourth Amendment if the duration of the stop is justified by the
traffic offense) with Rodriguez v. United States, 575 U.S. ___, No. 13–9972, slip op.
at 3, 5–6 (2015) (finding that the stop in question had been prolonged for seven to
eight minutes beyond the time needed to resolve the traffic offense in order to con-
duct a canine sniff).
298 Knowles v. Iowa, 525 U.S. 113 (1998) (invalidating an Iowa statute permit-
discretion, may arrest a motorist for a minor traffic offense rather than issuing a
citation); New York v. Belton, 453 U.S. 454 (1981) (officers who arrest an occupant
of a vehicle may make a contemporaneous search of the entire passenger compart-
ment, including closed containers); Thornton v. United States, 541 U.S. 615 (2004)
(the Belton rule applies regardless of whether the arrestee exited the car at the offi-
cer’s direction, or whether he did so prior to confrontation); Arizona v. Gant, 556
U.S. ___, No. 07–542 (U.S. Apr. 21 (2009), slip op. at 18 (the Belton rule applies
“only if the arrestee is within reaching distance of the passenger compartment at
the time of the search or it is reasonable to believe that the vehicle contains evi-
dence of the offense of arrest”); Arkansas v. Sullivan, 532 U.S. 769 (2001) (pretextual
arrest of motorist who has committed a traffic offense is permissible even if purpose
is to search vehicle for evidence of other crime).
300 Michigan v. Thomas, 458 U.S. 259 (1982). The same rule applies if it is the
vehicle itself that is forfeitable contraband; police, acting without a warrant, may
seize the vehicle from a public place. Florida v. White, 526 U.S. 559 (1999).
AMENDMENT 4—SEARCHES AND SEIZURE 1435
ticular case that the car would have been driven away, or that its
contents would have been tampered with, during the period re-
quired for the police to obtain a warrant.” 301 Because of the less-
ened expectation of privacy, inventory searches of impounded auto-
mobiles are justifiable in order to protect public safety and the owner’s
property, and any evidence of criminal activity discovered in the course
of the inventories is admissible in court.302 The Justices were evenly
divided, however, on the propriety of warrantless seizure of an ar-
restee’s automobile from a public parking lot several hours after his
arrest, its transportation to a police impoundment lot, and the tak-
ing of tire casts and exterior paint scrapings.303
Police in undertaking a warrantless search of an automobile may
not extend the search to the persons of the passengers therein 304
unless there is a reasonable suspicion that the passengers are armed
and dangerous, in which case a Terry patdown is permissible,305 or
unless there is individualized suspicion of criminal activity by the
passengers.306 But because passengers in an automobile have no rea-
sonable expectation of privacy in the interior area of the car, a war-
rantless search of the glove compartment and the spaces under the
seats, which turned up evidence implicating the passengers, in-
vaded no Fourth Amendment interest of the passengers.307 Lug-
gage and other closed containers found in automobiles may also be
subjected to warrantless searches based on probable cause, regard-
less of whether the luggage or containers belong to the driver or to
a passenger, and regardless of whether it is the driver or a passen-
ger who is under suspicion.308 The same rule now applies whether
301 Michigan v. Thomas, 458 U.S. at 261. See also Chambers v. Maroney, 399
U.S. 42 (1970); Texas v. White, 423 U.S. 67 (1975); United States v. Ross, 456 U.S.
798, 807 n.9 (1982).
302 Cady v. Dombrowski, 413 U.S. 433 (1973); South Dakota v. Opperman, 428
U.S. 364 (1976). See also Cooper v. California, 386 U.S. 58 (1967); United States v.
Harris, 390 U.S. 234 (1968). Police, in conducting an inventory search of a vehicle,
may open closed containers in order to inventory contents. Colorado v. Bertine, 479
U.S. 367 (1987).
303 Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell concurred on other
grounds.
304 United States v. Di Re, 332 U.S. 581 (1948);Ybarra v. Illinois, 444 U.S. 85,
94–96 (1979).
305 Knowles v. Iowa, 525 U.S. 113, 118 (1998).
306 Maryland v. Pringle, 540 U.S. 366 (2003) (probable cause to arrest passen-
gers based on officers finding $783 in glove compartment and cocaine hidden be-
neath back seat armrest, and on driver and passengers all denying ownership of
the cocaine).
307 Rakas v. Illinois, 439 U.S. 128 (1978).
308 Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (“police officers with prob-
able cause to search a car may inspect passengers’ belongings found in the car that
are capable of concealing the object of the search”).
1436 AMENDMENT 4—SEARCHES AND SEIZURE
the police have probable cause to search only the containers 309 or
whether they have probable cause to search the automobile for some-
thing capable of being held in the container.310
Vessel Searches.—Not only is the warrant requirement inap-
plicable to brief stops of vessels, but also none of the safeguards
applicable to stops of automobiles on less than probable cause are
necessary predicates to stops of vessels. In United States v. Villamonte-
Marquez,311 the Court upheld a random stop and boarding of a ves-
sel by customs agents, lacking any suspicion of wrongdoing, for pur-
pose of inspecting documentation. The boarding was authorized by
statute derived from an act of the First Congress,312 and hence had
“an impressive historical pedigree” carrying with it a presumption
of constitutionality. Moreover, “important factual differences be-
tween vessels located in waters offering ready access to the open
sea and automobiles on principal thoroughfares in the border area”
justify application of a less restrictive rule for vessel searches. The
reason why random stops of vehicles have been held impermissible
under the Fourth Amendment, the Court explained, is that stops
at fixed checkpoints or roadblocks are both feasible and less sub-
ject to abuse of discretion by authorities. “But no reasonable claim
can be made that permanent checkpoints would be practical on wa-
ters such as these where vessels can move in any direction at any
time and need not follow established ‘avenues’ as automobiles must
do.” 313 Because there is a “substantial” governmental interest in en-
forcing documentation laws, “especially in waters where the need
to deter or apprehend smugglers is great,” the Court found the “lim-
ited” but not “minimal” intrusion occasioned by boarding for docu-
mentation inspection to be reasonable.314 Dissenting Justice Bren-
nan argued that the Court for the first time was approving “a
completely random seizure and detention of persons and an entry
309 California v. Acevedo, 500 U.S. 565 (1991) (overruling Arkansas v. Sanders,
in an automobile need not occur soon after its seizure. United States v. Johns, 469
U.S. 478 (1985) (three-day time lapse). See also Florida v. Jimeno, 500 U.S. 248 (1991)
(consent to search automobile for drugs constitutes consent to open containers within
the car that might contain drugs).
311 462 U.S. 579 (1983).
312 19 U.S.C. § 1581(a), derived from § 31 of the Act of Aug. 4, 1790, ch. 35, 1
Stat. 164.
313 462 U.S. at 589. Justice Brennan’s dissent argued that a fixed checkpoint
was feasible in this case, involving a ship channel in an inland waterway. Id. at 608
n.10. The fact that the Court’s rationale was geared to the difficulties of law enforce-
ment in the open seas suggests a reluctance to make exceptions to the general rule.
Note as well the Court’s later reference to this case as among those “reflect[ing]
longstanding concern for the protection of the integrity of the border.” United States
v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).
314 462 U.S. at 593.
AMENDMENT 4—SEARCHES AND SEIZURE 1437
Robinette, 519 U.S. 33 (1996) (officer need not always inform a detained motorist
that he is free to go before consent to search auto may be deemed voluntary); United
States v. Drayton, 536 U.S. 194, 207 (2002) (totality of circumstances indicated that
bus passenger consented to search even though officer did not explicitly state that
passenger was free to refuse permission).
320 Amos v. United States, 255 U.S. 313 (1921); Johnson v. United States, 333
U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States,
385 U.S. 206 (1966); United States v. White, 401 U.S. 745 (1971). Cf. Osborn v. United
States, 385 U.S. 323 (1966) (prior judicial approval obtained before wired informer
sent into defendant’s presence). Problems may be encountered by police, however, in
special circumstances. See Massiah v. United States, 377 U.S. 201 (1964); United
States v. Henry, 447 U.S. 264 (1980); United States v. Karo, 468 U.S. 705 (1984)
(installation of beeper with consent of informer who sold container with beeper to
suspect is permissible with prior judicial approval, but use of beeper to monitor pri-
vate residence is not).
1438 AMENDMENT 4—SEARCHES AND SEIZURE
322 See, e.g., Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. at 18 (2013)
(plurality opinion) (discussing implied consent laws that “require motorists, as a con-
dition of operating a motor vehicle, . . . to consent to [blood alcohol concentration]
testing if they are arrested or otherwise detained on suspicion of a drunk-driving
offense” or risk losing their license); South Dakota v. Neville, 459 U.S. 553, 554,
563–64 (1983).
323 See Birchfield v. North Dakota, 579 U.S. ___, No. 14–1468, slip op. at 36–37
(2016).
324 United States v. Matlock, 415 U.S. 164, 171 (1974) (valid consent by woman
with whom defendant was living and sharing the bedroom searched). See also Chap-
man v. United States, 365 U.S. 610 (1961) (landlord’s consent insufficient); Stoner v.
California, 376 U.S. 483 (1964) (hotel desk clerk lacked authority to consent to search
of guest’s room); Frazier v. Culp, 394 U.S. 731 (1969) (joint user of duffel bag had
authority to consent to search).
325 Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida v. Jimeno, 500
U.S. 248, 251 (1991) (it was “objectively reasonable” for officer to believe that sus-
pect’s consent to search his car for narcotics included consent to search containers
found within the car).
326 Georgia v. Randolph, 547 U.S. 103 (2006) (warrantless search of a defen-
dant’s residence based on his estranged wife’s consent was unreasonable and in-
valid as applied to a physically present defendant who expressly refused to permit
entry). The Court in Randolph admitted that it was “drawing a fine line,” id. at
121, between situations where the defendant is present and expressly refuses con-
sent, and that of United States v. Matlock, 415 U.S. 164, 171 (1974), and Illinois v.
Rodriguez, 497 U.S. 177 (1990), where the defendants were nearby but were not
asked for their permission. In a dissenting opinion, Chief Justice Roberts observed
that the majority’s ruling “provides protection on a random and happenstance basis,
protecting, for example, a co-occupant who happens to be at the front door when the
other occupant consents to a search, but not one napping or watching television in
the next room.” 547 U.S. at 127.
AMENDMENT 4—SEARCHES AND SEIZURE 1439
coming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs
inspector of locked container shipped from abroad).
329 Act of July 31, 1789, ch. 5, §§ 23, 24, 1 Stat. 43. See 19 U.S.C. §§ 507, 1581,
1582.
330 Carroll v. United States, 267 U.S. 132, 154 (1925); United States v. Thirty-
seven Photographs, 402 U.S. 363, 376 (1971); Almeida-Sanchez v. United States, 413
U.S. 266, 272 (1973).
331 United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (approving war-
tice Burger would have found the search reasonable upon the congressional determi-
nation that searches by such roving patrols were the only effective means to police
border smuggling. Id. at 285. Justice Powell, concurring, argued in favor of a gen-
eral, administrative warrant authority not tied to particular vehicles, much like the
type of warrant suggested for noncriminal administrative inspections of homes and
commercial establishments for health and safety purposes, id. at 275, but the Court
has not yet had occasion to pass on a specific case. See United States v. Martinez-
Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).
1440 AMENDMENT 4—SEARCHES AND SEIZURE
ciple, but all such doubts were cast away in Oliver v. United States.339
Invoking Hester’s reliance on the literal wording of the Fourth Amend-
ment (open fields are not “effects”) and distinguishing Katz, the Court
ruled that the open fields exception applies to fields that are fenced
and posted. “[A]n individual may not legitimately demand privacy
for activities conducted out of doors in fields, except in the area im-
mediately surrounding the home.” 340 Nor may an individual de-
mand privacy for activities conducted within outbuildings and vis-
ible by trespassers peering into the buildings from just outside.341
Even within the curtilage and notwithstanding that the owner has
gone to the extreme of erecting a 10-foot high fence in order to screen
the area from ground-level view, there is no reasonable expectation
of privacy from naked-eye inspection from fixed-wing aircraft flying
in navigable airspace.342 Similarly, naked-eye inspection from heli-
copters flying even lower contravenes no reasonable expectation of
privacy.343 And aerial photography of commercial facilities secured
from ground-level public view is permissible, the Court finding such
spaces more analogous to open fields than to the curtilage of a dwell-
ing.344
“Plain View”.—Somewhat similar in rationale is the rule that
objects falling in the “plain view” of an officer who has a right to be
in the position to have that view are subject to seizure without a
warrant 345 or that, if the officer needs a warrant or probable cause
to search and seize, his lawful observation will provide grounds there-
339 466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing signs
and around locked gate, to view field not visible from outside property).
340 466 U.S. at 178. See also California v. Greenwood, 486 U.S. 35 (1988) (approv-
ing warrantless search of garbage left curbside “readily accessible to animals, chil-
dren, scavengers, snoops, and other members of the public”).
341 United States v. Dunn, 480 U.S. 294 (1987) (space immediately outside a
barn, accessible only after crossing a series of “ranch-style” fences and situated one-
half mile from the public road, constitutes unprotected “open field”).
342 California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are
nonetheless still entitled to some Fourth Amendment protection. The Court has de-
scribed four considerations for determining whether an area falls within the curtilage:
proximity to the home, whether the area is included within an enclosure also sur-
rounding the home, the nature of the uses to which the area is put, and the steps
taken by the resident to shield the area from view of passersby. United States v.
Dunn, 480 U.S. 294 (1987) (barn 50 yards outside of fence surrounding home, used
for processing chemicals, and separated from public access only by a series of live-
stock fences, by a chained and locked driveway, and by one-half mile’s distance, is
not within curtilage).
343 Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of green-
house).
344 Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial
may seize marijuana seeds and pipe in open view); United States v. Santana, 427
U.S. 38 (1976) (“plain view” justification for officers to enter home to arrest after
observing defendant standing in open doorway); Harris v. United States, 390 U.S.
1442 AMENDMENT 4—SEARCHES AND SEIZURE
234 (1968) (officer who opened door of impounded automobile and saw evidence in
plain view properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers entered
premises without warrant to make arrest because of exigent circumstances seized
evidence in plain sight). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 464–73 (1971),
and id. at 510 (Justice White dissenting). Maryland v. Buie, 494 U.S. 325 (1990)
(items seized in plain view during protective sweep of home incident to arrest); Texas
v. Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of officer who
had stopped car and asked for driver’s license); New York v. Class, 475 U.S. 106
(1986) (evidence seen while looking for vehicle identification number). There is no
requirement that the discovery of evidence in plain view must be “inadvertent.” See
Horton v. California, 496 U.S. 128 (1990) (in spite of Amendment’s particularity re-
quirement, officers with warrant to search for proceeds of robbery may seize weap-
ons of robbery in plain view).
346 Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in
view through open doorway; had probable cause to procure warrant). Cf. Taylor v.
United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in ga-
rage, warrantless entry to seize was unconstitutional).
347 Arizona v. Hicks, 480 U.S. 321 (1987) (police lawfully in apartment to inves-
tigate shooting lacked probable cause to inspect expensive stereo equipment to re-
cord serial numbers).
348 Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker customs agents had opened,
and which was subsequently traced). Accord, United States v. Jacobsen, 466 U.S.
109 (1984) (inspection of package opened by private freight carrier who notified drug
agents).
349 469 U.S. 325 (1985).
350 469 U.S. at 336.
351 469 U.S. at 340.
352 This single rule, the Court explained, will permit school authorities “to regu-
late their conduct according to the dictates of reason and common sense.” 469 U.S.
at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was “unwill-
AMENDMENT 4—SEARCHES AND SEIZURE 1443