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which the clinics had brought suit did not provide

a private cause of action against people obstruct-

ing access to abortion clinics. The federal statute

required that the protesters discriminate against

the women seeking an abortion because of their

sex. The Court determined that the protesters did

not have a generalized animus toward women but

instead intended to protect fetuses by prevent-

ing women from seeking abortions. Furthermore,

the Court explained that the protesters’ activities

were not aimed speciﬁ cally at the women’s right

to travel across state lines to receive an abortion

but were rather aimed at all women who sought

an abortion.

In a dissent, Justice John Paul Stevens

argued that the federal statute under which the

abortion clinics brought suit provided a private

cause of action to the abortion clinics. In his view,

the anti-abortion rights protesters were engaged

in exactly the kind of “massive, organized, law-

lessness” that the statute was originally enacted

to punish. Rather than accepting what he saw as

Justice Scalia’s too “abstract question of logical

deduction,” Justice Stevens argued that the major-

ity’s decision ignored Congress’s intent to protect

“this Nation’s citizens from what amounts to the

theft of their constitutional rights by organized

and violent mobs across the country.” Because the

abortion clinics were merely asserting the private

cause of action that Congress sought to provide

private litigants, the clinics should have been per-

mitted to proceed with their suit.

For more information: Eisenstein, Laurence J.,

and Semeraro, Steven. “Abortion Clinic Protest

and the First Amendment.” Saint Louis Univer-

sity Public Law Review 13 (1993): 221; McCam-

mond, Lisa. “Bray v. Alexandria’s Women’s Clinic:

Narrowing the Scope of 42 U.S.C. 1985(3).” Gon-

zaga Law Review 29 (1994): 645.

—Winston E. Calvert

Brennan, William J., Jr. (1906–1997)

Supreme Court justice

William Joseph Brennan, Jr., was an associate jus-

tice of the U.S. Supreme Court from 1956 until

1990. He was one of the most inﬂ uential liberal

forces on the high court of the 20th century.

Brennan was born in Newark, New Jersey, on

April 25, 1906, the second of William and Agnes

McDermott Brennan’s eight children. His parents

were both Irish immigrants who met and married

in the United States. William Brennan, Sr., was

initially a laborer but rose to the position of New-

ark’s director of public safety. He was an active

labor leader at a time when many signs still hung

on shop doors indicating that “no Irish need apply.”

Brennan, Sr., would play an enormously inﬂ uen-

tial role in Brennan, Jr.’s life. It was his father’s

idea, in fact, that young William become a lawyer.

This pro-labor, pro–common man inﬂ uence of his

father would help Brennan to become a leader of

constitutional revolution on the Supreme Court.

Brennan graduated from Barringer High

School in Newark in 1924, capturing most of the

academic awards that were available. He then

went on to the University of Pennsylvania’s under-

graduate Wharton School of Finance and Com-

merce. Although he graduated with honors in

economics in 1928, his academic career was solid

but somewhat unremarkable. He eloped with

Marjorie Leonard right before his college gradu-

ation but made sure to have a Catholic wedding

in Baltimore Cathedral. They remained married

and deeply devoted to one another for 54 years,

until her death. They had three children (William

Brennan III, Hugh, and Nancy).

Marjorie stayed and worked in Newark to help

pay tuition while Brennan attended Harvard Law

School. His father died of pneumonia in 1930 dur-

ing Brennan’s second year. He nearly was forced

to drop out but was granted a scholarship and

supplemented by waiting tables and working odd

jobs. Brennan was a member of Harvard’s Legal

Aid Society and represented the poor in various

civil cases. He hoped to represent unions after

his graduation in 1931, but with his wife, mother,

and six siblings to support, he opted instead for a

position with Pitney, Hardin & Skinner, Newark’s

premier law ﬁ rm. He had clerked there during

law school and became their ﬁ rst Catholic law-

yer. He would later go on to become a partner in

1937. During his time with the ﬁ rm, he repre-

82 Brennan, William J., Jr.

xviii+446_EofUSConsti-v1.indd 82 3/12/09 3:04:02 PM

sented management in labor affairs—180 degrees

from his inclinations. He became an expert labor

negotiator, and as an associate justice of the U.S.

Supreme Court, he would become one of the

most famous legal negotiators of all time. He

would also end up becoming a great proponent of

the individual worker through his Supreme Court

opinions.

In 1942, Brennan accepted a post in the U.S.

Army to help with labor issues during World War

II. He eventually became chief of the Ordinance

Department’s Civilian Personnel Division and

retired from the army in 1946 as a full colonel.

He then headed back to his old law ﬁ rm. In 1949,

he acquiesced and agreed to become a trial judge

and was appointed by the Republican governor of

New Jersey. Brennan took a substantial pay cut

with this position but still managed to support his

extended family. After two other judicial promo-

tions, he was quickly appointed to the New Jersey

Supreme Court in 1952 by the same governor.

The year 1956 held a number of fortuitous

events for Brennan. Associate Justice Sherman

Minton resigned, which opened a seat on the high

court. Several important supporters of Brennan

suggested to President Dwight D. Eisenhower

that he appoint him to the Supreme Court. It

was an election year, and having an Irish Catholic

Democrat appointed seemed to be a shrewd polit-

ical move for Eisenhower. Later, President Eisen-

hower would say that appointing Justice Brennan

was one of the worst mistakes he had made as

president. At the time of Brennan’s appointment,

there were certainly inklings of his later clear lib-

eral leanings, but his real inﬂ uence would be on

the Supreme Court.

Justice Brennan was characterized by a love of

humanity. He was deeply religious and extremely

close to his family. Notably, he was just as inter-

ested in the life of the Supreme Court’s janitor as

he was in the lives of the other justices. Even his

critics noted his great warmth, charm, and abil-

ity to come up with a compromise if at all pos-

sible. He was driven by a desire to protect human

dignity through democracy, the Bill of Rights,

and the Fifth, Thirteenth, and Fourteenth

Amendments. The increasingly liberal Warren

Court, which was headed by Chief Justice Earl

Warren from 1953 to 1969, was the perfect soil in

which Justice Brennan’s ideals could be planted.

He masterfully drafted compromise opinions and

authored the second most opinions of any Supreme

Court justice: 1,360 in all.

Justice Brennan’s long career on the Court

includes many landmark and controversial cases. It

is impossible to recite a full listing here, but some

of his opinions particularly stand out. In B

AKER V.

CARR, 369 U.S. 186 (1962), Brennan’s opinion of

the Court stated that apportionment (voting dis-

tributions) was an appropriate question for federal

courts. This set the stage for later cases ensuring

“one person, one vote.”

In Jencks v. United States, 353 U.S. 657 (1957),

he wrote the majority opinion, which required

prosecutors to release statements that would be

used by witnesses at trial. He continued to ﬁ ght

for the constitutional rights of criminal defendants

throughout his career.

Justice Brennan also was very involved in pro-

tecting the rights of free speech and the First

Amendment. Brennan took his seat on the

Supreme Court around the time of the McCar-

thy era and fought to keep Americans free to voice

their political opinion. He also penned the opinion

of the Court in N

EW YORK TIMES V. SULLIVAN, 376

Brennan, William J., Jr. 83

Associate Justice William Joseph Brennan, Jr. (U.S.

Supreme Court)

xviii+446_EofUSConsti-v1.indd 83 3/12/09 3:04:02 PM

U.S. 254 (1964), which pushed back politicians’

ability to stiﬂ e free press through libel laws.

Brennan is most remembered as a bulwark of

civil rights (and one of the most activist judges

of all times). In G

REEN V. COUNTY SCHOOL BOARD OF

EW KENT COUNTY, VIRGINIA, 391 U.S. 430 (1968)

and Keyes v. School District No. 1, 413 U.S.

189 (1973), Justice Brennan furthered the cause

of school desegregation. In PLYLER V. DOE,

457 U.S. 202 (1982), his well-negotiated major-

ity opinion ensured access to public schools for

undocumented alien children. He also staunchly

supported the rights of women. He remained ada-

mantly pro-choice and voted with the majority in

OE V. WADE, 410 U.S. 113 (1973).

After the death of his wife, Marjorie, in 1982,

he married his secretary of 25 years. Brennan was

77 at the time. The marriage came as a surprise to

others at the Supreme Court, who found out about

it after the fact. Justice Brennan sent out a memo

that simply said, “Mary Fowler and I were married

yesterday and we have gone to Bermuda.” They

remained married until Justice Brennan’s death.

The more conservative Rehnquist Court

decisions were challenging for a liberal, but Bren-

nan remained a bridge builder between liberals

and conservatives. He continued to write impor-

tant opinions until the end of his career as a Jus-

tice in 1990, when he retired due to failing health.

For example, in T

EXAS V. JOHNSON, 491 U.S. 397

(1989), and United States v. Eichman, 496 U.S.

310 (1990), Justice Brennan wrote powerful major-

ity opinions protecting free speech rights. After

his retirement, his seat on the Supreme Court was

ﬁ lled by Associate Justice David H. Souter.

After his retirement from the Court, he taught

seminars on constitutional law and theory and

often visited his friends in the Court. He died in

an Arlington, Virginia, nursing home, where he

was recuperating from a broken hip.

The core, if not all, of his constitutional philoso-

phy is likely to be a lasting legacy in constitutional

law as society and civil rights continue to evolve.

For more information: Eisler, Kim Isaac. The

Last Liberal: Justice William J. Brennan, Jr. and

the Decisions That Transformed America. Fred-

erick, Md.: Beard Books, 2003; Sepinuck, Stephen

L., ed. The Conscience of the Court: Selected

Opinions of Justice William J. Brennan, Jr. on

Freedom and Equality. Carbondale: Southern

Illinois University Press, 1999.

—Maria Collins Warren

Breyer, Stephen G. (1938– ) Supreme Court

justice

Stephen G. Breyer has been an associate justice

of the U.S. Supreme Court since August 3, 1994,

after a distinguished career that included lengthy

tenure as a professor at Harvard Law School and

a judge on the U.S. Court of Appeals for the First

Circuit.

He was born on August 15, 1938, in San Fran-

cisco, earned his undergraduate degree from Stan-

ford University, and obtained his law degree from

Harvard Law School. He served as a law clerk to

Supreme Court justice Arthur Goldberg and then

as an assistant in the Antitrust Division of the U.S.

Department of Justice before joining the Harvard

Law School faculty in 1967, where he became an

expert in regulation and administrative law. In

the 1970s, he did stints as an assistant prosecu-

tor on the staff of the Watergate Special Prosecu-

tor and as special counsel and then chief counsel

to the Senate Judiciary Committee. In 1980, he

was sworn in as a federal appeals court judge on

the First Circuit and served as chief judge from

1990 to 1994. While on the appeals court, he also

served as a founding member of the U.S. Sentenc-

ing Commission, which rewrote the federal crimi-

nal sentencing guidelines. He was nominated

to the Supreme Court by President Bill Clinton to

replace Justice Harry A. Blackmun.

On the bench, Breyer generally slipped into

the liberal or moderate wing of the Court that

regularly included Justices John Paul Stevens,

David H. Souter, and Ruth Bader Ginsburg.

He wrote the Court’s 5-4 decision in Stenberg

v. Carhart, 530 U.S. 914 (2000), striking down a

Nebraska law banning a form of late-term abor-

tion. Although his decision was eclipsed by G

ON-

ZALES, ATTORNEY GENERAL V. CARHART, ___ U.S. ___

(2007), which upheld a similar federal law, Breyer

84 Breyer, Stephen G.

xviii+446_EofUSConsti-v1.indd 84 3/12/09 3:04:02 PM

made his position on abortion clear that govern-

ments should not impose obstacles in the path of

women seeking abortions.

His decisions are often described as pragmatic

and not as predictable as some other liberal jus-

tices. When the Supreme Court upheld one display

of the Ten Commandments and struck down

another, it was Breyer alone who saw all-impor-

tant factual distinctions between the unlawful

Kentucky display, M

CCREARY COUNTY, KENTUCKY

V. AMERICAN CIVIL LIBERTIES UNION, 545 U.S. 844

(2005), and the lawful Texas one, V

AN ORDEN V.

PERRY, 545 U.S. 677 (2005).

He was a solid member of the liberal wing that

dissented from the Court’s several rulings curtail-

ing the powers of Congress in relation to the states.

He wrote a dissent in U

NITED STATES V. LOPEZ, 514

U.S. 549 (1995), when the Court invalidated a

federal restriction on guns near schools. Breyer

offered a list of reasons why it was appropriate for

Congress to feel that guns near schools had a sub-

stantial effect on interstate commerce.

Breyer has had unusual visibility for at least two

reasons. First, in 2005, he wrote Active Liberty:

Interpreting Our Democratic Constitution, a book

in which he analyzed his own judicial decision-

making patterns and concluded that the Constitu-

tion must be understood as promoting active citizen

participation in democracy. He also engaged in a

series of debates with Justice Antonin Gregory

Scalia, first in 2005 over the relevance of for-

eign law to decisions of the U.S. Supreme Court

and then in 2006 over the differences in their

approaches to constitutional interpreta-

tion. Breyer argued in the ﬁ rst instance that for-

eign courts could inﬂ uence the evolution of U.S.

court decisions, while Scalia was adamant that for-

eign law has no relevance to interpreting the U.S.

Constitution. In the second engagement, Breyer

took the position that the Constitution must be

understood not just as a set of words but also as a

set of goals and ideals; Scalia argued that it was the

words of the Constitution that mattered when it

was drafted in 1787 and that still matter today.

For more information: Breyer, Stephen G.

Active Liberty: Interpreting Our Democratic

Constitution. New York: Alfred A. Knopf, 2005;

Gewirtz, Paul. “The Pragmatic Passion of Stephen

G. Breyer.” Yale Law Journal 115 (2006): 1,675;

Urofsky, Melvin I., ed. Biographical Encyclope-

dia of the Supreme Court. Washington, D.C.: CQ

Press, 2006.

—Stephen Wermiel

Broadrick v. Oklahoma 413 U.S. 601 (1973)

In Broadrick v. Oklahoma, the Supreme Court

issued an important First Amendment ruling

that clariﬁ ed what is known as the “overbreadth”

doctrine.

Broadrick v. Oklahoma involved three appel-

lants who were employees of the state of Okla-

homa. Charges were filed against these state

employees for having violated Section 818 of the

Oklahoma Merit System of Personnel Administra-

tion Act. According to paragraph six of this act,

no classiﬁ ed state employee “shall directly or indi-

rectly, solicit, receive, or in any manner be con-

cerned in soliciting or receiving any assessment

. . . or contribution for any political organization,

candidacy or other political purpose.” Paragraph

seven of this act states that no employee shall be a

member of “any national, state or local committee

of a political party.” In other words, an Oklahoma

state employee may not be involved in politics

“except to exercise his right as a citizen privately to

express his opinion and . . . vote.”

In 1970, employees of the Oklahoma Corpo-

ration Commission had been actively involved

in the reelection campaign of a state corpora-

tion commissioner who was their superior. They

allegedly asked other employees to take part in

the campaign. One individual was charged with

distributing campaign posters, and two of the

appellants were charged with soliciting cam-

paign contributions from commission employees.

The appellants claimed in the federal district

court that the act was overly broad when applied;

therefore, the act may deprive people of pro-

tected forms of free speech, such as using cam-

paign button or bumper stickers. The district

court upheld the law, and the case made its way

to the U.S. Supreme Court.

Broadrick v. Oklahoma 85

xviii+446_EofUSConsti-v1.indd 85 3/12/09 3:04:03 PM

In a 5-4 decision, written by Justice Byron

White, the Court upheld the law under the First

Amendment of the Constitution. The Court noted

the following:

Although such laws, if too broadly worded, may

deter protected speech to some unknown extent

there comes a point where that effect—at best

a prediction—cannot, with conﬁ dence, justify

invalidating a statute on its face and so prohib-

iting a State from enforcing the statute against

conduct that is admittedly within its power to

proscribe. . . . To put the matter another way, par-

ticularly where conduct and not merely speech

is involved, we believe that the overbreadth

[emphasis added] of a statute must not only be

real, but substantial as well, judged in relation

to the statute’s plainly legitimate sweep. . . . It is

our view that 818 is not substantially overbroad

and that whatever overbreadth may exist should

be cured through case-by-case . . . analysis of the

fact situations to which its sanctions, assertedly,

may not be applied.

The Court noted two key points to this doctrine

of overbreadth. A law that focuses on conduct and

not just mere speech must (1) be real and (2) be

substantial. In this case, the Court determined

the law focused on conduct and not merely speech

and that the law was not substantial enough to

be overbroad. However, the Court appears to

have left the issue open with the comment, “that

whatever overbreadth may exist should be cured

through case-by-case . . . analysis.”

For more information: Farber, Daniel A., Wil-

liam N. Eskridge, Jr., and Philip P. Frickey. Cases

and Materials on Constitutional Law: Themes for

the Constitution’s Third Century. St. Paul, Minn.:

West Publishing, 1993.

—Dan Krejci

Brown v. Board of Education of Topeka

347 U.S. 483 (1954)

In Brown v. Board of Education of Topeka, the

Supreme Court struck down the “separate but

equal” doctrine as it applied to primary and sec-

ondary education. The 1954 decision was the

culmination of decades of work by civil rights

activists including the National Association for

the Advancement of Colored People (NAACP),

which had been working in the federal courts

for decades to desegregate the nation’s schools.

Arguably, the Brown decision is one of the most

important cases and opinions ever issued by the

Supreme Court.

In the 1930s and 1940s, some progress was

made toward desegregation in higher edu-

cation. Then, in 1950, the Supreme Court held

in Sweatt v. Painter, 339 U.S. 629, that the

equal protection clause of the Fourteenth

Amendment required a black man, Herman

Marion Sweatt, be admitted to the University of

Texas Law School because the available schooling

for blacks was grossly unequal to that for whites.

Also in 1950, in McLaurin v. Oklahoma, 339 U.S.

637, the Court held that allowing blacks into the

school for whites (the University of Oklahoma)

and providing them with separate spaces within

that school created an unequal situation.

About the time those decisions were being

handed down, in the early 1950s, Linda Brown,

a third grader in Topeka, Kansas, was walking six

blocks to her school bus stop to ride to Monroe

Elementary, her segregated black school one mile

away, while Sumner Elementary, a white school,

was only seven blocks from her house. Her father

contacted a local attorney, who, in turn, referred

him to the local chapter of the NAACP. It asked

parents of black students to attempt enrolling

their children in the closest neighborhood school

in the fall of 1951. Each was refused enrollment

and directed to segregated schools.

A class-action suit was ﬁ led against the Board

of Education of the City of Topeka, Kansas, in

the U.S. District Court for the District of Kan-

sas on behalf of these parents and their chil-

dren. Eventually, the case made its way to the

Supreme Court, which combined ﬁ ve cases under

the heading of Brown v. Board of Education

because each sought the same legal remedy. The

combined cases originated in Delaware, Kansas,

South Carolina, Virginia, and Washington, D.C.

86 Brown v. Board of Education of Topeka

xviii+446_EofUSConsti-v1.indd 86 3/12/09 3:04:03 PM

Four of the cases were to be argued on the basis

of the equal protection clause of the Fourteenth

Amendment. The District of Columbia case,

OLLING V. SHARPE, was covered by the equal pro-

tection clause of the Fifth Amendment, not of the

Fourteenth.

The cases were initially argued in December

1952, but a decision was never handed down

because, under Chief Justice Frederick Moore

Vinson’s leadership, the Court attempted to

decide the case both on the merits and remedy.

The Court was divided not on the merits but on

relief. In summer 1953, Vinson died and President

Dwight D. Eisenhower appointed Earl Warren to

succeed him. The case was reargued on Decem-

ber 8, 1953, and the Court handed down a unani-

mous decision on May 17, 1954.

Warren had convinced the members of the Court

to decide the case on just the merits and defer the

question of relief to a second opinion following re-

argument. It was the decision on the merits that

was handed down in May 1954. The decision was

just 11 pages: Warren wanted an opinion that the

layperson could read and understand and one that

the newspapers could print in its entirety. The deci-

sion did not expressly overturn P

LESSY V. FERGUSON

as it applied only to primary and secondary educa-

tion. It stated that segregation of children in pub-

lic schools solely on the basis of race deprives the

children of the minority group of equal educational

opportunities and that the separate but equal doc-

trine had no place in the ﬁ eld of public education.

When the state undertook to provide education, it

had to do so on equal terms to all.

A newspaper headline announcing that the U.S. Supreme Court has abolished segregation in public

schools

(Schomburg Center for Research in Black Culture)

Brown v. Board of Education of Topeka 87

xviii+446_EofUSConsti-v1.indd 87 3/12/09 3:04:03 PM

A controversial portion of the opinion was

footnote 11 in which Warren applied sociological

views to the case instead of interpreting the law.

Northern newspapers, for the most part, hailed

the decision as “momentous,” while the black com-

munity took a mixed wait-and-see reaction.

One year after Brown, the Court handed down

its decision dealing with relief. The decision states

that school districts should desegregate “with all

deliberate speed.” This ambiguous decision mud-

died the waters more than it cleared them, and

it took many years for consistent progress to be

made in the implementation of Brown. With no

federal leadership, implementation of Brown

was deliberately slow and uneven. By the mid-

1960s, the Departments of Justice and Health,

Education, and Welfare had assumed leadership

in implementing Brown. But whatever the weak-

nesses were in the Brown decision, it was still a

signiﬁ cant step toward attempting to bring about

equality among the races.

For more information: Klarman, Michael J.

From Jim Crow to Civil Rights. New York: Oxford

University Press, 2004; Kluger, Richard. Simple

Justice: The History of Brown v. Board of Educa-

tion and Black America’s Struggle for Equality.

New York: Vintage Books, 2004; Urofsky, Melvin,

and Paul Finkelman. A Constitutional History of

the United States. Vol. 2: A March of Liberty. New

York: Oxford University Press, 2002.

—Mark Alcorn

Buchanan v. Warley 245 U.S. 60 (1917)

In Buchanan v. Warley, the Supreme Court ruled

that residential segregation laws violated the prop-

erty rights of individuals. Such laws were enacted

in a number of communities in the upper South

during the second decade of the 20th century.

These measures were justiﬁ ed as an exercise of

police power to prevent racial conﬂ ict by man-

dating separate residential areas for blacks and

whites.

In 1914, Louisville, Kentucky, passed an ordi-

nance prohibiting whites and blacks from living

in houses on blocks where a majority of homes

were occupied by individuals of the other race. To

arrange a test case challenging the ordinance, a

white seller and a black purchaser entered a con-

tract for the sale of property on a majority white

block. The purchaser then refused to complete the

transaction on grounds that he could not occupy

the premises under the ordinance. The Kentucky

Court of Appeals sustained the ordinance as a

valid police power regulation to promote racial

harmony and safeguard racial purity. It therefore

ruled that the ordinance constituted a defense to

an action for speciﬁ c performance of the contract

by the seller.

The Supreme Court, in a unanimous opinion

by Justice William R. Day, held that the ordinance

amounted to a deprivation of property without due

process of law in violation of the Fourteenth

Amendment. Justice Day declared: “Property is

more than the mere thing which a person owns. It

is elementary that it includes the right to acquire,

use and dispose of it.” He was skeptical about the

racial purity rationale, pointedly observing that

“the employment of colored servants in white fam-

ilies [was] permitted.” Day was also unconvinced

that racial segregation would preserve property

values. He noted that nearby property might

be acquired “by undesirable white neighbors.”

Cutting to the heart of the matter, Justice Day

asserted: “The right which the ordinance annulled

was the civil right of a white man to dispose of his

property if he saw ﬁ t to do so to a person of color

and of a colored person to make such disposition

to a white person.” It followed that this restriction

on the right to alienate land constituted an uncon-

stitutional deprivation of an essential attribute of

property. Day concluded that the goal of racial

harmony could not be accomplished by destroy-

ing the right to dispose of property.

Decided in an era when segregationist atti-

tudes were widely shared, Buchanan linked judi-

cial solicitude for the rights of property owners

with concern for racial minorities. This landmark

decision halted the movement to enact residential

segregation laws in American cities and was the

most signiﬁ cant victory for civil rights in the

early decades of the 20th century. Justice Day’s

opinion rested squarely on the premise that the

88 Buchanan v. Warley

xviii+446_EofUSConsti-v1.indd 88 3/12/09 3:04:04 PM

due process clause of the Fourteenth Amendment

imposed substantive limits on state governments.

Buchanan was a powerful reminder that a prin-

cipled defense of individual property rights may

safeguard the interests of vulnerable segments of

society.

For more information: Ely, James W., Jr.

“Reflections on Buchanan v. Warley, Property

Rights, and Race.” Vanderbilt Law Review 51

(1998): 953; Klarman, Michael J. From Jim Crow

to Civil Rights: The Supreme Court and the

Struggle for Racial Equality. New York: Oxford

University Press, 2004.

—James W. Ely, Jr.

Buck v. Bell 274 U.S. 200 (1927)

In Buck v. Bell, the U.S. Supreme Court upheld

a Virginia statute providing for compulsory ster-

ilization of the mentally retarded for the protec-

tion and general welfare of the state. The effect of

the case was to legitimize eugenic sterilization in

the United States. While many states already had

sterilization statutes in effect at the time of the

ruling, the Court’s decision led many other states

to create new sterilization statutes or update their

current ones to resemble more closely the Virginia

statute upheld by the Court.

The case began when, on September 10, 1924,

the superintendent of the Virginia State Colony

for Epileptics and Feebleminded petitioned to the

board of directors of the Virginia State Colony to

have Carrie Buck, an 18-year-old patient at the

institution, sterilized. The statute required that

a hearing be conducted prior to the sterilization

procedure to determine whether it was necessary.

The board of directors granted the petition and

the guardian of Buck appealed the case to the Cir-

cuit Court of Amherst County, which upheld the

decision of the board. The case then moved to the

Supreme Court of Appeals of Virginia, where the

board’s decision was again upheld. Following the

decision of the lower courts to uphold the steril-

ization statute as compliant with both state and

federal constitutions, the case moved to the U.S.

Supreme Court. The question presented by the

case was whether the Virginia statute that called

for compulsory sterilization denied Buck the due

process of law as guaranteed under the Four-

teenth Amendment.

The Supreme Court held, in an 8-1 ruling, that

the statute did not violate the due process clause

of the Fourteenth Amendment. The Court deter-

mined that given the fact that before the steril-

ization procedure could take place a hearing, at

which the patient and a parent or guardian could

be present, must be conducted and the fact that

the appeals process allowed the case to reach the

circuit court of the county as well as the supreme

court of appeals of the state, Buck’s Fourteenth

Amendment rights had not been violated. Writ-

ing for the majority, Justice Oliver Wendell

Holmes, Jr., stated that the interests of the state

in preventing the birth of mentally underdevel-

oped children was sufﬁ cient to justify the statute

and added, in words that have become infamous,

“Three generations of imbeciles are enough.”

For more information: Kevles, Daniel J. In

the Name of Eugenics: Genetics and the Uses of

Human Heredity. New York: Knopf, 1985; Lom-

bardo, Paul A. “Three Generations, No Imbeciles:

New Light on Buck v. Bell.” New York University

Law Review 60, no. 1 (1985): 50–62.

—Marc Rufﬁ nengo

Buckley v. American Constitutional Law

Foundation

525 U.S. 182 (1999)

In Buckley v. American Constitutional Law Foun-

dation (ACLF), the Supreme Court held that por-

tions of Colorado’s restrictions on initiative petition

circulators violated the First Amendment. The

case demonstrates the Supreme Court’s delicate

balance between First Amendment protections

and proper regulations to ensure fair elections.

Colorado’s initiative process allows its resi-

dents to add proposed laws to the ballot by

submitting petitions with a required number of

valid signatures. In Meyer v. Grant, 486 U.S.

414 (1988), the Supreme Court had struck down

Colorado’s ban on paid initiative petition circula-

tors, ﬁ nding that initiative petitioning was “core

Buckley v. American Constitutional Law Foundation 89

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political speech.” The state’s subsequent limita-

tions on petition circulators were challenged in

federal court by the ACLF and several individu-

als. The district court upheld requirements that

circulators submit affidavits with their names

and addresses, a six-month time limit for peti-

tions, and requirements that circulators be 18

years or older and be registered to vote. How-

ever, the court held the requirement that circula-

tors wear name badges, as well as portions of the

requirements for reporting the names of payors

and payments made to circulators, to be in viola-

tion of the First Amendment in ACLF v. Meyer,

870 F. Supp. 995 (Colo. 1994). The Tenth Cir-

cuit agreed but added that the voter registration

requirement unduly limited political expression

(ACLF v. Meyer, 120 F.3d 1092 [1997]).

The Supreme Court’s majority decision, writ-

ten by Justice Ruth Bader Ginsburg and joined

by Justices John Paul Stevens, Antonin

Gregory Scalia, Anthony M. Kennedy, and

David H. Souter, afﬁ rmed the Tenth Circuit’s

balance between valid ballot-access regulations

and undue limitations on First Amendment rights,

noting that there can be “no litmus paper test.”

The Court found that the state’s interest in polic-

ing circulators who might break election laws was

fulﬁ lled by the afﬁ davit requirement and, there-

fore, did not justify the voter registration or name

badge requirements. The Court found that voter

registration requirements substantially decreased

the number of eligible circulators and noted that

the refusal to register to vote might be an act of

political expression. The Court argued that the

name badge requirement overly burdened the

circulator’s interest in anonymous speech at the

moment of contact, which might limit the number

of people willing to circulate petitions on volatile

issues. The Court also found that the state’s inter-

est in disclosure of special interest inﬂ uence was

served by reporting the names and amounts of

payors of petition circulators, but requiring disclo-

sure of payments to individual circulators failed to

survive the “exacting scrutiny” required by B

UCK-

LEY V. VALEO, 424 U.S. 1 (1976).

Justice Clarence Thomas concurred but

argued that the Court should have used strict

scrutiny analysis to find that the require-

ments were not narrowly tailored to serve the

state’s interests. Chief Justice William Hubbs

Rehnquist, dissenting, argued that voter reg-

istration and residency requirements were not

unduly burdensome and that states should be

able to limit those circulating petitions to those

who can ultimately vote on them. Sandra Day

O’Connor and Stephen G. Breyer, concur-

ring in part and dissenting in part, agreed with

Rehnquist’s analysis of voter registration require-

ments but argued that the disclosure require-

ments reasonably advanced state interests in

public disclosure and deterring fraud, similar to

campaign contributor requirements previously

upheld under Buckley v. Valeo.

The effect of Buckley v. American Constitu-

tional Law Foundation was to afﬁ rm that direct

democracy petition campaigns are “core political

speech” that cannot be unduly burdened and to

distinguish these undue burdens from necessary

election regulations, as in Storer v. Brown, 415

U.S. 724 (1974); Anderson v. Celebrezze, 460 U.S.

780 (1983); and T

IMMONS V. TWIN CITIES AREA NEW

PARTY, 520 U.S. 351 (1997).

For more information: Braunstein, Richard.

Initiative and Referendum Voting: Governing

Through Direct Democracy in the United States.

New York: LFB Scholarly Publishing, 2004; Ryden,

David. The U.S. Supreme Court and the Electoral

Process. 2d ed. Washington, D.C.: Georgetown

University Press, 2002; Urofsky, Melvin I. Money

and Free Speech: Campaign Finance Reform and

the Courts. Lawrence: University Press of Kansas,

2005; Zimmerman, Joseph F. The Initiative: Citi-

zen Law-Making. Oxford: Praeger, 1999.

—Julie Lantrip

Buckley v. Valeo 424 U.S. 1 (1976)

Buckley v. Valeo is the key campaign finance

ruling of the U.S. Supreme Court. At its broad-

est level, Buckley v. Valeo held that limits on

spending by candidates are unconstitutional but

that campaign contributions could be limited to

prevent corruption or the appearance of corrup-

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xviii+446_EofUSConsti-v1.indd 90 3/12/09 3:04:04 PM

tion. The issues raised in Buckley continue to be

litigated in federal courts and before the Supreme

Court, and campaign ﬁ nance remains an emerg-

ing and changing area of constitutional law.

In 1974, in the wake of the Watergate scandal,

the U.S. Congress passed the Federal Election

Campaign Act (FECA). The primary provisions of

the FECA imposed expenditure limits for candi-

dates, established contribution limits set at $1,000

per election, created public disclosure require-

ments, established the Federal Election Commis-

sion (FEC), and created the presidential campaign

public ﬁ nancing system.

The Court addressed the constitutionality of

the contribution limits and upheld them. The

Court found that contribution limits implicate

both the freedom of association and freedom of

expression provisions of the First Amendment.

Despite the infringement on protected rights, the

Court held that the prevention of corruption or

the appearance of corruption was a sufﬁ cient and

constitutional justiﬁ cation for limiting campaign

contributions from an individual to a candidate

for federal ofﬁ ce to $1,000. On balance, the Court

concluded, the $1,000 contribution limit was

allowed to stand; however, the Court created an

exemption from the contribution limit for contri-

butions from the candidate’s own personal funds.

The Court reasoned that a candidate’s own money

could not corrupt the candidate.

Litigation has continued to challenge the con-

stitutionality of contribution limits, and such lim-

its were upheld in cases such as N

IXON V. SHRINK

ISSOURI GOVERNMENT PAC, 528 U.S. 377 (2000),

which dealt with candidates for state ofﬁ ce in Mis-

souri, but were ruled unconstitutional in Randall

v. Sorrell, 126 S. Ct. 1184, 163L. Ed. 2d 1126

(2006), which dealt with candidates for state ofﬁ ce

in Vermont.

In contrast to the contribution limits, the Court

found that expenditure limits imposed “direct and

substantial restraints on the quantity of political

speech.” These limits, the Court held, did not

address the “corruption or appearance of corrup-

tion” that justified contribution limits because

there is no legitimate government interest in

reducing the quantity of political speech.

The Court did uphold, however, expenditure

limits contained within the voluntary public

financing system established by the FECA for

candidates for president. The Court reasoned that

the exchange of government money for restrictions

on spending did not violate the First Amendment.

The Court upheld the public disclosure provisions

of the FECA, which required that both contri-

butions and expenditures by candidates, politi-

cal parties, and political committees be publicly

disclosed.

The Court, nonetheless, appeared to narrow

the scope of the FECA so that “expenditures”

for public communications were covered by the

FECA only if they contained words of “express

advocacy” such as elect, support, defeat, or vote

for. This led to the rise of so-called issue ads that

were run by political parties and other interest

groups that would say “Call candidate Smith and

tell him to support lower taxes” and, as a result,

were outside of the regulation of the FECA.

This apparent narrowing of the FECA has been

at issue since that time. The FEC litigated numer-

ous cases against speech it felt was covered by the

FECA, but the courts, with one exception, have uni-

formly rejected the FEC’s view of the scope of the

FECA. However, in 2002, the U.S. Congress passed

the Bi-Partisan Campaign Reform Act (BCRA),

which sought to limit so-called issue advocacy by

requiring disclosure and limiting the source of funds

that could be used to air broadcast advertisements

mentioning or referring to federal candidates within

a certain period of time before an election. The

Supreme Court ultimately upheld this limitation and

cast doubt on the validity of the apparent narrow-

ing construction of Buckley when the Court decided

CCONNELL V. FEC, 540 U.S. 93 (2003).

Buckley v. Valeo continues to be the most

important of the Supreme Court’s campaign

ﬁ nance opinions. When legislatures consider cre-

ating or modifying campaign finance schemes,

the Supreme Court’s ruling in Buckley must be

reviewed and incorporated into the legislation

or the scheme risks invalidation under the First

Amendment. Litigation over the meaning of

Buckley continues to this day and is expected to

continue for years to come.

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