Schultz D. Encyclopedia of the United States Constitution

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For more information: Bauer, B. More Soft

Money Hard Law. 2d ed. Washington, D.C.: Per-

kins Coie, 2004; Malbin, M. J. The Election After

Reform: Money, Politics, and Bipartisan Cam-

paign Reform Act. Lanham, Md.: Rowman &

Littleﬁ eld, 2006.

—Jason Torchinsky

Burdick v. Takushi 504 U.S. 428 (1992)

In Burdick v. Takushi, the U.S. Supreme Court

considered a Hawaii election law that barred

write-in voting on election day. Alan B. Burdick

challenged the statute, arguing that it unconsti-

tutionally restricted the casting, tabulation, and

publication of write-in votes. Speciﬁ cally, the reg-

istered voter asserted the limitations constituted

an infringement of his First and Fourteenth

Amendments rights. The district court upheld

the voter’s position, but the Court of Appeals for

the Ninth Circuit disagreed. The U.S. Supreme

Court, in an opinion authored by Justice Byron

White, held that Hawaii’s prohibition of same-day

write-in voting is constitutional.

The Court began by noting that voting is of

fundamental significance. At the same time, it

noted states are permitted to make reasonable

regulations to administer elections. When states

impose severe restrictions, they must justify the

interference by a compelling interest, but if the

restrictions are reasonable and nondiscriminatory,

Justice White noted, a lower degree of justiﬁ cation

would be necessary.

With that basic understanding, the Court

turned to classifying the regulation at hand. In

Hawaii, there exist three methods to secure access

to the ballot: a party petition, an established party

nomination, or nonpartisan nominating papers.

In each case, there exist time limits, nominat-

ing papers, and sometimes a required number of

voter signatures. The Court argued the burdens

from these requirements are limited and do not

seriously restrict the right to make free choices.

Every requirement, to some degree, restricts the

individual right to vote and, as such, interferes

with the right to associate for political reasons;

however, outlawing reasonable, nondiscriminatory

limitations would tie the hands of the states. Jus-

tice White thus argued write-in candidates have

no inherent superior right to await the 11th hour

and thereby avoid those requirements imposed by

the traditional ballot access.

The Court raised a series of legitimate policy

concerns that favored this state regulation; for

example, write-ins could be a sore-loser device

to further challenge the winner of the primary.

This could create factionalism in the general elec-

tion. States have a recognized legitimate concern

against this. Additionally, Hawaii conducts an

open primary in which voters from one party can

vote for primary candidates from another party.

However, the candidates for a particular nomina-

tion must certify their membership in that party.

Write-ins could undermine this principle. This

write-in procedure would allow individuals to run

for a party nomination without certifying mem-

bership in that party.

In sum, the Court felt the state’s overall ballot

access scheme provided ample opportunities for

participation by would-be candidates. Thus, pro-

hibitions against write-in voting are presumptively

valid. In many instances, the write-ins are mere

protests against the nominated candidates, and,

for Justice White, the state need not ﬁ nance the

counting and publishing of such protest votes.

For more information: Hasen, Richard. The

Supreme Court and Election Law: Judging Equal-

ity from Baker v. Carr to Bush v. Gore. New York:

New York University Press, 2003.

—Daniel M. Katz

Burger, Warren E. (1907–1995) Supreme

Court chief justice

Warren E. Burger was appointed by President

Richard Nixon in 1969 to succeed Earl War-

ren and become the 15th chief justice of the U.S.

Supreme Court. Burger served in that capacity

until 1986, when he resigned and was replaced

by William Hubbs Rehnquist. While Burger

himself tended to vote more conservatively than

his predecessor, his legacy as a chief justice was

one as an able administrator but not as a leader

92 Burdick v. Takushi

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who dramatically turned the Court toward a

new ideological and legal direction as many had

hoped.

Burger was born in St. Paul, Minnesota, in

1907. He was a boyhood friend of Harry Black-

mun, who would eventually serve with him on the

Supreme Court with the latter’s appointment to

the Court in 1970. Burger attended and graduated

John A. Johnson High School in 1925, lettering in

four sports. He attended the University of Min-

nesota and then the St. Paul College of Law, now

known as William Mitchell College of Law. Upon

graduation from law school, in 1931, he worked in

a local law ﬁ rm and also taught for several years at

the St. Paul College of Law.

Active in Minnesota Republican Party poli-

tics, Burger helped Harold Stassen in his suc-

cessful gubernatorial bid of 1948. Burger gained

prominence in the 1952 presidential convention

by arranging for Stassen’s delegates (from his

unsuccessful presidential bid) to be transferred

to Dwight D. Eisenhower. This political maneu-

vering caught the attention of Herbert Brownell,

Eisenhower’s campaign manager. After Eisen-

hower’s election, Burger was appointed to head

the civil division of the Justice Department. He

was then offered a position, in 1955, to serve on

the Court of Appeals for the District of Colum-

bia Circuit. As a judge there, he voted conser-

vatively, especially on criminal due process

matters, and was very critical of Warr en Court

decisions such as M

IRANDA V. ARIZONA, 384 U.S.

436 (1966).

Burger’s elevation to chief justice of the

Supreme Court was the product of luck and cir-

cumstance. When President Lyndon B. Johnson

announced in 1968 that he was not running for

reelection, Chief Justice Warren announced his

retirement, hoping that the outgoing president

would be able to replace him before leaving ofﬁ ce.

Johnson sought to elevate Justice Abe Fortas to

Chief Justice, but his liberal views, close friend-

ship with the president, and personal financial

improprieties doomed his appointment, giving

Nixon the opportunity to nominate Burger when

he took ofﬁ ce in 1969. Burger was quickly con-

ﬁ rmed and took ofﬁ ce the same year.

Burger served as chief justice from 1969 to

1986. Burger was acknowledged to be an excel-

lent administrator for the Court and brought

many reforms to it, including the introduction of

photocopiers. A tireless advocate for pay raises

for federal judges, he often spoke out in support

of the judiciary. The latter led him to help found

the National Center for State Courts in 1971.

However, his major idea to create an intermedi-

ate court of appeals between the Supreme Court

and the federal courts of appeals, to address the

exploding workload of the former and handle

what he saw as more mundane appeals, was

rejected.

While Burger was considered a good admin-

istrator, few if any consider him an intellectual

leader for the Court in the mold of other chief

justices such as John Marshall or even Earl

Warren. Burger presided over what can be

described as a transitional Court—one that

stood between the liberal Court of Warren and

then the more conservative Court of Rehnquist.

Nixon had hoped that his four appointments

to the Court—Blackmun, Lewis Franklin

Powell, Jr., Rehnquist, and Burger—would

turn the Court in a more conservative direction

and reverse many Warren Court precedents,

especially those dealing with the rights of the

accused. However, while the Burger Court may

have limited some precedents, such as Miranda

or even Mapp v. Ohio, 367 U.S. 643 (1961),

which upheld the application of the exclusion-

ary rule to the states, ultimately the Court did

not overturn them. In addition, in criminal mat-

ters, the Court both invalidated and then upheld

death penalty statutes in F

URMAN V. GEORGIA, 408

U.S. 238 (1972), and G

REGG V. GEORGIA, 428 U.S.

153 (1976), respectively.

Under Burger, the Court issued many impor-

tant opinions. For example, in R

OE V. WADE, 410

U.S. 113 (1973), it upheld a woman’s right to an

abortion. The Court in cases such as Frontiero

v. Richardson, 411 U.S. 677 (1973) struck down

laws discriminating against women. In R

EGENTS

OF THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438

U.S. 265 (1978), it upheld the use of affirma-

tive action, and in BUCKLEY V. VALEO, 424 U.S.

Burger, Warren E. 93

xviii+446_EofUSConsti-v1.indd 93 3/12/09 3:04:05 PM

1 (1976), it upheld many provisions of a federal

law imposing contribution limits on candidates

for federal office, while rejecting expenditure

caps.

Among Burger’s most notable decisions is the

unanimous U

NITED STATES V. NIXON, 418 U.S. 683

(1974), where the Court ordered the president

to turn over to a special prosecutor his taped

White House conversations. This decision led

to the president’s resignation. He also wrote the

majority opinion in B

OWSHER V. SYNAR, 462 U.S.

919 (1983), invalidating the one-house legisla-

tive veto, and in S

WANN V. CHARLOTTE-MECK-

LENBURG BOARD OF EDUCATION, 402 U.S. 1 (1971),

he upheld the use of mandatory busing to achieve

integration.

In 1986, Burger resigned from the Supreme

Court to oversee activities surrounding the Amer-

ican Bicentennial of the Constitution. He died in

1995.

For more information: Maltz, Earl M. The

Chief Justiceship of Warren Burger, 1969–1986.

Columbia: University of South Carolina Press,

2000; Trowbridge, Ronald L. With Sweet Maj-

esty: Warren E. Burger. Washington, D.C.: Trust

for the Bicentennial of the United States Consti-

tution, 2000; White, G. Edward. The American

Judicial Tradition: Proﬁ les of Leading American

Judges. New York: Oxford University Press, 1988.

—David Schultz

Bush v. Gore 531 U.S. 98 (2000)

In Bush v. Gore, the Supreme Court settled the

disputed recount of votes in Florida for the presi-

dential election of 2000. The Court’s decision ulti-

mately resulted in George W. Bush winning the

state’s electoral votes and the presidency.

Following one of the closest elections in

U.S. history, presidential candidates George W.

Bush (Republican) and Albert Gore (Democrat)

looked to the courts for assistance in determin-

ing the ultimate outcome of the election. The

U.S. Supreme Court played a major role in deter-

mining the outcome of the election, despite

many criticisms that the Court had forgotten the

separation of power tenet of American democ-

racy. Bush v. Gore, 531 U.S. 98 (2000) played a

decisive role in determining who would become

the next president.

Bush v. Gore actually involves a series of three

cases that came before the Supreme Court fol-

lowing the 2000 presidential election. The first

of these cases was Bush v. Palm Beach County

Canvassing Board, 531 U.S. 70. This case was

remanded to the Florida Supreme Court to deter-

mine if the postelection decision of the Florida

court violated the due process clause due to the

ballot certiﬁ cation process. The next two opinions

came in Bush v. Gore.

The electoral votes in the state of Florida were

in question, and these votes would determine the

election outcome. Days after the election, many

voting precincts scrambled to recount their votes.

When the date for election results certification

established by Florida law arrived, the precinct

votes favored Bush; however, Gore contested the

results of the election, and the case went before

the Florida Supreme Court. On December 8,

2000, the Florida Supreme Court ordered that

the Circuit Court of Leon County hand-count

about 9,000 contested ballots from Miami-Dade

County, while it required all other districts in

the state to recount by hand any ballot that did

not indicate a vote for president. Bush and vice

presidential running mate Dick Cheney wanted a

Gore and Bush supporters face off during a protest

outside the U.S. Supreme Court in Washington,

D.C., December 11, 2000.

(Wong/Newsmakers)

94 Bush v. Gore

xviii+446_EofUSConsti-v1.indd 94 3/12/09 3:04:06 PM

stay or a delay of the Florida Supreme Court deci-

sion and ﬁ led an emergency petition to the U.S.

Supreme Court the next day. The Supreme Court

accepted the emergency petition, granting certio-

rari, or review, to the case. Oral arguments began

for Bush v. Gore in the U.S. Supreme Court on

December 11, 2000.

The question of the law that the Supreme Court

sought to answer in Bush v. Gore was whether the

Florida Supreme Court violated Article II, Sec-

tion 1, Clause 2, of the Constitution by allowing

the manual recounts. Were the recounts in viola-

tion of the equal protection and due process

clauses of the Constitution?

By a majority of 7-2, the Court ruled that the

Florida recount was unconstitutional because it

violated the equal protection clause owing to the

signiﬁ cant problems in the uneven way the votes

were being recounted throughout the state of

Florida. Some counties had to do partial recounts,

while others had to perform full manual recounts

of the ballots. In addition, in the second opinion

in Bush v. Gore, a 5-4 majority ruled that the state

of Florida would not be able to complete a consti-

tutionally valid recount that could be completed

by the December 12 deadline. As there was no

formal statewide standard for certifying the votes,

the recount was ceased since it was determined

that it was a violation of the equal protection

clause.

The decision was very controversial because the

justices’ decisions were mainly along party lines.

The decision was also written so that it was very

specific to the current circumstances, suggest-

ing the justices knew this decision would never

become precedent.

For more information: Dionne, E. J., and Wil-

liam Kristol, eds. Bush v. Gore: The Court Cases

and Commentary. Washington, D.C.: Brook-

ings Institution Press, 2001; Jarvis, Robert. Bush

v. Gore: The Fight for Florida Vote. New York:

Kluwer Law International, 2001; Urofsky, Mel-

vin I., ed. The Public Debate over Controversial

Supreme Court Decisions. Washington, D.C.: CQ

Press, 2006.

—Carol Walker

Butchers’ Benevolent Association of New

Orleans v. Crescent City Live-Stock

Landing and Slaughter-House Co.

Wall. (83 U.S.) 36 (Slaughterhouse

Cases)

(1873)

In Butchers’ Benevolent Association of New

Orleans v. Crescent City Live-Stock Landing

and Slaughter-House Co., or the Slaughterhouse

Cases, the Supreme Court upheld a Louisiana

statute that gave a 25-year monopoly to a single

slaughterhouse for the city of New Orleans and

surrounding parishes (counties). The purpose of

the statute was to control and limit slaughterhouse

waste polluting the Mississippi River and spread-

ing cholera. The Butchers’ Benevolent Associa-

tion, a group of independent butchers, challenged

the statute as an abridgement of their privileges

and immunities, equal protection, and due

process rights under the Fourteenth Amend-

ment and as a form of involuntary servitude under

the Thirteenth Amendment. In this landmark

case, in which the Supreme Court offered its

interpretation of the Thirteenth and Fourteenth

Amendments for the ﬁ rst time, the Court rejected

the independent butchers’ argument on all points,

upholding the authority of Louisiana to enact the

statute. The signiﬁ cance of this case comes not

from the majority opinion but instead from the

seed of an idea of a new conception of Fourteenth

Amendment due process protections that the dis-

senting justices on the Court planted in this case.

The 5-4 majority argued that the purpose of

the Thirteenth and Fourteenth Amendments

was to bring freed slaves and “Negroes” as a

class within the fold of constitutional protections

already enjoyed by other Americans. The majority

opinion rejected the argument that these amend-

ments applied broadly to all citizens or that new

rights were established for anyone under them.

The majority held that the Fourteenth Amend-

ment’s privileges and immunities clause required

no more than that states treat their own citizens

and those from other states the same. The Court

also rejected summarily the argument that equal

protection and due process rights were abridged

by the statute or that awarding a monopoly butch-

ering license to some and not others imposed

Butchers’ Benevolent Association of New Orleans v. Crescent City Live-Stock Landing . . . 95

xviii+446_EofUSConsti-v1.indd 95 3/12/09 3:04:06 PM

involuntary servitude on anyone under the provi-

sions of the Thirteenth Amendment.

The dissenting justices, however, embraced

the argument put forward by the lawyer for the

independent butchers. This argument asserted

that the Fourteenth Amendment does offer new

constitutional protections against government

interference in business. Under this reading of the

Fourteenth Amendment, the due process clause

could be understood to be a check on state regula-

tion of business when such regulation amounts to

a deprivation of the liberty of individuals to par-

ticipate in their chosen profession or limits other

economic choices.

The interpretation of due process by the dis-

senting justices in this case came to be the major-

ity opinion in future cases and served to introduce

a framework of analysis of the Fourteenth Amend-

ment due process clause that evolved into the

doctrine of substantive due process. This

doctrine, still utilized by the Supreme Court today,

enables the Court to review the substance of duly

enacted legislation and strike it down when, in the

Court’s judgment, it unconstitutionally infringes

an individual right under the Bill of Rights

and the Fourteenth Amendment.

For more information: Corwin, Edwin S. The

Higher Law Background of American Constitu-

tional Law. Ithaca, N.Y.: Cornell University Press,

1955; O’Brien, David M. Storm Center: The

Supreme Court in American Politics. 7th ed. New

York: W.W. Norton & Co., 2005.

—Phyllis Farley Rippey

96 Butchers’ Benevolent Association of New Orleans v. Crescent City Live-Stock Landing . . .

xviii+446_EofUSConsti-v1.indd 96 3/12/09 3:04:07 PM

ﱶﱷﱸ

C & A Carbone, Inc., et al. v. Town of

Clarkstown, New York

511 U.S. 383

(1994)

In C & A Carbone, Inc., et al. v. Town of Clark-

stown, New York, the Supreme Court ruled that a

law mandating all contractors handling solid waste

had to use a speciﬁ c facility for disposal violated

the commerce clause. The case is important

because it affected the ability of local govern-

ments to regulate waste and garbage.

Clarkstown, New York, permitted a contractor

to construct and operate a waste processing facil-

ity within city limits. In order to assist the facil-

ity ﬁ nancially, the town made a promise that the

plant would receive 120,000 tons of solid waste

each year and allowed the contractor to charge a

special fee for each ton of solid waste received for

processing. In order to ensure that the facility met

the 120,000-ton quota, Clarkstown passed a ﬂ ow

control ordinance that required all solid waste

ﬂ owing into and originating in the town to pass

through the new facility.

C & A Carbone operated a similar facility in

Clarkstown and in an attempt to avoid paying

the $81 fee per ton of solid waste, decided that

it would truck its processed waste via trucks to

a landfill in another state (Indiana). In 1991, a

C & A Carbone truck crashed, spilling its illegal

cargo, exposing C & A Carbone’s violation of the

ﬂ ow control ordinance. Clarkstown sued C & A

Carbone in a New York supreme court, and in

return, C & A Carbone sued Clarkstown in a fed-

eral district court, claiming that the ﬂ ow control

ordinance violated the commerce clause of the

Constitution. The New York supreme court ruled

in favor of Clarkstown.

The case was appealed to the U.S. Supreme

Court. The question before the Court in this

case was whether the Clarkstown flow control

ordinance violated the commerce clause of the

Constitution by impeding commerce for waste

processing plants in other states. In a 6-3 decision

delivered by Justice Anthony M. Kennedy, the

Court concluded that the ordinance did violate

the commerce clause. According to Kennedy,

The ﬂ ow control ordinance does serve a central

purpose that a nonprotectionist regulation would

not: It ensures that the town-sponsored facility

will be proﬁ table, so that the local contractor can

build it and Clarkstown can buy it back at nomi-

nal cost in ﬁ ve years. In other words, as the most

candid of amici and even Clarkstown admit, the

ﬂ ow control ordinance is a ﬁ nancing measure. By

itself, of course, revenue generation is not a local

interest that can justify discrimination against

interstate commerce. Otherwise States

could impose discriminatory taxes against solid

waste originating outside the State. See Chemi-

cal Waste Management, Inc. v. Hunt, 504 U.S.

334 (1992), (striking down Alabama statute that

imposed additional fee on all hazardous waste

generated outside the State and disposed of

within the State); Oregon Waste Systems, Inc. v.

Department of Environmental Quality of Ore.,

(striking down Oregon statute that imposed

additional fee on solid waste generated outside

the State and disposed of within the State).

Clarkstown maintained that special financing

was necessary to ensure the long-term survival of

the designated facility. If so, the town could have

xviii+446_EofUSConsti-v1.indd 97 3/12/09 3:04:07 PM

subsidized the facility through general taxes or

municipal bonds (as in New Energy Co. of Ind. v.

Limbach, 486 U.S. 269 [1988]). But having elected

to use the open market to earn revenues for its

project, the town could not employ discriminatory

regulation to give that project an advantage over

rival businesses from out of state.

For more information: Langran, Robert W.

The Supreme Court: A Concise History. New

York: Peter Lang, 2004; Waltenburg, Eric N., and

Bill Swinford. Litigating Federalism: The States

Before the U.S. Supreme Court. Westport, Conn.:

Greenwood Press, 1999.

—Dan Krejci

Calder v. Bull 3 U.S. 386 (1798)

In Calder v. Bull, the Supreme Court issued an

opinion clarifying what constituted ex post facto

law in Article I, Section 9, of the Constitution.

An ex post facto law is a law that makes ille-

gal behavior or actions that were previously legal

and thus now subject to legal ramiﬁ cations due

to the change in interpretation of the behavior or

actions. This is the underlying principle of retro-

active laws, or laws that look backward with their

interpretations.

In Calder v. Bull, the rights to an estate were

in dispute, and the original inheritor, Calder,

was given the property and the Bull family was

denied the ability to appeal. The Bulls were

unhappy with the decision and were successful

in having the Connecticut legislature overturn

the restrictions. Calder then pushed the case to

the Supreme Court for resolution and to interpret

the Constitution as it related to ex post facto laws.

Calder’s position offered that the Connecticut

law should be considered void because the law

had violated Section 9 of Article I of the U.S.

Constitution. The ex post facto clause in

this article prohibited states from enacting any ex

post facto laws.

The Supreme Court upheld the Connecticut

law, ruling that the constitutional prohibition

against ex post facto laws applied only to crimi-

nal and not civil laws. Thus, as the state had ret-

roactively changed a civil law regarding property

rights, the Constitution did not prevent it.

Calder v. Bull is important for two reasons.

First, its clariﬁ cation of the ex post facto clause is

signiﬁ cant, and second, it is one of the important

Supreme Court opinions prior to Chief Justice

John Marshall’s Court (1801–35).

For more information: Bork, Robert H. The

Tempting of America: The Political Seduction of

the Law. New York: Free Press, 1990; Langran,

Robert W. The Supreme Court: A Concise His-

tory. New York: Peter Lang, 2004.

—Ernest Gomez

Calhoun, John C. (1782–1850) secretary of

state, secretary of war, U.S. vice president

John C. Calhoun was a famous statesman, writer,

and vice president of the United States who

advocated and developed an important concept

of constitutional interpretation that gave

states the right to veto federal legislation. This

theory is known as his concurrent majority thesis.

Calhoun was born in 1782 and served as a sena-

tor of South Carolina (1832–43; 1845–50). He was

vice president from 1825 to 1832 and an original

War Hawk at the outbreak of the War of 1812. He

is also one of the more interesting political think-

ers in American history. His work contributed to a

discussion of the proper relationship of the states

to the national government and to the protection

of rights. Hence, whatever one thinks of his moti-

vation (protecting sectional interests, including

slavery), his voice must be considered as a part of

the ongoing constitutional discussion in the United

States regarding the allocation of constitutional

power between states and the national govern-

ment. Two major works of his on this subject are

his well-known A Disquisition on Government

and A Discourse on the Constitution and Govern-

ment of the United States. Both were published in

1853, after Calhoun’s death in 1850.

Calhoun’s key concern was the threat of an

oppressive national government. He argued: “. . .

government, although intended to protect and

preserve society, has itself a strong tendency to

98 Calder v. Bull

xviii+446_EofUSConsti-v1.indd 98 3/12/09 3:04:07 PM

disorder and abuse of its powers, as all experience

and almost every page of history testify” (1953,

7). Calhoun claimed that societies are made up of

numerous groupings, each with its own interest.

In Calhoun’s estimation, “[There is] nothing more

easy than to pervert its powers into instruments

to aggrandize and enrich one or more interests

by oppressing and impoverishing the others. . . .”

(1953, 13). Somehow or another, then, some instru-

mentality must be developed “. . . to prevent any

one interest or combination of interests from using

the powers of government to aggrandize itself at

the expense of others” (1953, 20). Furthermore,

he wrote: “There is but one certain mode in which

this result can be secured, and that is by the adop-

tion of some restriction or limitation which shall

so effectively prevent any one interest or combina-

tion of interests from obtaining the exclusive con-

trol of the government as to render hopeless all

attempts directed to that end” (1953, 20).

Use of the “numerical majority” to make deci-

sions essentially can suppress minorities, and

Calhoun argued that the use of numerical majori-

ties as the mechanism of decision making forces

a country “to regard the numerical majority as in

effect the entire people; that is, the greater part as

the whole, and the government of the greater part

as the government of the whole” (1953, 24). He

believed that the idea of the “concurrent major-

ity” would reduce the possibility of tyranny. In

Calhoun’s own words, the essence of the concur-

rent majority is:

The necessary consequence of taking the sense

of the community as the concurrent majority is

. . . to give each interest or portion of the com-

munity a negative on the others. It is this mutual

negative among its various conﬂ icting interests

which invests each with the power of protecting

itself, and places the rights and safety of each

where only they can be securely placed, under

its own guardianship (1953, 28).

The concurrent majority gave an absolute veto

power over national government legislation to any

territorial or regional majority or the majority of

any large nonterritorial interest.

Numerically, absolute majorities would not be

able to exercise tyrannical power over minorities

that were, however deﬁ ned, fairly large and sub-

stantial. Again, in Calhoun’s terms, “. . . the gov-

ernment of the concurrent majority . . . excludes

the possibility of oppression by giving to each

interest, or portion, or order . . . the means of pro-

tecting itself by its negatives against all measures

calculated to advance the peculiar interests of

others at its expense” (1953, 30). The use of the

veto was termed nulliﬁ cation, the right of states

(or other interests) to veto national laws.

Critics, of course, would contend that the con-

current majority would make it very difﬁ cult to

take any signiﬁ cant action; however, Calhoun felt

that this plan would actually foster unity rather

than making it impossible to accomplish anything.

In a key passage, Calhoun stated:

The concurrent majority . . . tends to unite the

most opposite and conflicting interests and to

blend the whole in one common attachment to

the country. By giving to each interest, or por-

tion, the power of self-protection, all strife and

struggle between them for ascendancy is pre-

vented, and thereby not only every feeling cal-

culated to weaken the attachment to the whole

is suppressed, but the individual and the social

feelings are made to unite in one common devo-

tion to country. Each sees and feels that it can

best promote its own prosperity by conciliating

the good will and promoting the prosperity of

the others (1953, 37–38).

Calhoun’s relevance for constitutional prin-

ciples in the United States is that it directly

addresses the Constitution’s concept of feder-

alism. Calhoun’s vision was far different from

that enunciated by the Supreme Court over time.

Whereas the Supreme Court emphasized the

supremacy clause, Calhoun rejected that con-

cept as violating his understanding of the Consti-

tution and its origins. His conclusion was that the

United States was a confederation, as quoted from

his Discourse: “. . . I have thus established, con-

clusively, that these States, in ratifying the Con-

stitution, did not lose the confederated character

Calhoun, John C. 99

xviii+446_EofUSConsti-v1.indd 99 3/12/09 3:04:08 PM

which they possessed when they ratiﬁ ed it” (1953,

99). His vision was one that did not carry the day,

but it offers an alternative perspective to the issue

of the division of power between states and the

national government.

For more information: Bartlett, Irving H. John

C. Calhoun: A Biography. New York: W.W. Nor-

ton, 1993; Calhoun, John C. A Disquisition on

Government and Selections from the Discourse.

Edited by G. Gordon Post. Indianapolis, Ind.:

Bobbs-Merrill Co., 1953; Current, Richard N.

John C. Calhoun. New York: Washington Square

Press, 1963.

—Steven A. Peterson

campaign ﬁ nance

Campaign ﬁ nance refers to the ways campaigns

and elections are funded in the United States.

Efforts to limit or regulate political contributions

and candidate, party, or independent expendi-

tures by third-party groups raise important First

Amendment free speech issues.

Fair and honest elections serve as a vehicle for

promoting values of democracy and give mean-

ing to the notion of “consent of the governed.”

Political campaigns have become the means by

which candidates run for ofﬁ ce in elections and

disseminate information, positions, and ideas to

the American public. Campaign financing has

been an integral part of the election process and

a documented phenomenon since the pre-Con-

stitution days. For instance, George Washington,

long before becoming the first U.S. president,

was chastised for exchanging whiskey for votes

during the 1757 race for the Virginia House of

Burgesses. The trend was even more blatantly

apparent throughout the 1800s, but political par-

ties were miniscule in the late 18th and early 19th

centuries when compared to today. Campaigns

have become increasingly complex, larger in size

and scope, and more expensive over time. The

costs associated with political campaigning have

risen dramatically, and television advertising is

the medium of choice, particularly for national

ofﬁ ce seekers.

The framers of the U.S. Constitution did not

address the role that political parties would play,

let alone campaign ﬁ nance, in the system of poli-

tics. This has resulted in varying interpretations

over what the Founding Fathers had intended for

these elements and has given new signiﬁ cance to

viewing the Constitution as a living document. The

trend toward raising and spending money in an

election cycle has prompted both lawmakers and

citizens to scrutinize more carefully the campaign

ﬁ nance environment. Americans have always been

wary that contributions may buy inﬂ uence in the

government, and lawmakers have over time been

forced to respond to these valid concerns voiced

by their constituents.

Until the Watergate Scandal (1972), which

toppled the presidency of Republican Richard

Nixon, campaign ﬁ nance was controlled by politi-

cal parties and “fat cats” who raised large sums of

money for their war chests. However, secret dona-

tions and other events surrounding Nixon’s 1972

reelection campaign became catalysts for the cre-

ation of the Federal Election Commission (FEC).

The FEC is the primary enforcer of election pro-

cedures and laws and was speciﬁ cally created to

enforce the provisions of the Federal Election

Campaign Act (FECA) of 1971. Amendments to

the act in 1974 placed limits on the amounts that

could be contributed by nonparty groups and cre-

ated the federal matching criteria used in presi-

dential elections. The contribution limits were set

so that individuals could give up to $1,000 to fed-

eral candidates for both the primary and general

elections and up to $25,000 in all contributions in

a single calendar year, with sublimits of $20,000

per year to national party committees and $5,000

per year to a political action committee (PAC) or

any other party committee. Limits up to $5,000 in

both the primary and general elections were also

set for PACs and other party committees ($10,000

total for the election cycle).

One of the leading constitutional challenges

to individual spending limits came in the U.S.

Supreme Court case B

UCKLEY V. VALEO, 424 U.S.

1 (1976). In this case, the Court ruled that can-

didates (and associated independent organiza-

tions) have the right to express their views and run

100 campaign ﬁ nance

xviii+446_EofUSConsti-v1.indd 100 3/12/09 3:04:08 PM

campaigns without being constrained by spending

limits. This landmark case associated unlimited

spending with freedom of speech and the protec-

tions afforded under First Amendment rights pro-

tected by the U.S. Constitution. The Court’s ruling

struck down several of the individual spending

limits established in the 1974 FECA amendments.

Since then, the courts have tended to scrutinize

and deem many types of campaign ﬁ nance restric-

tions as inherent threats to the First Amendment.

Contemporary political campaigns have moved

from being party centered to candidate cen-

tered. Election costs have grown to approximately

$900,000 for candidates seeking a seat in the

House of Representatives, and from $5 to

$6 million for candidates for the Senate. While

this average depends on individual spending pat-

terns and geographic location, it still suggests that

a large sum of money is used to campaign for a

congressional seat. Spending in presidential races

has also grown. Spending by all presidential can-

didates was more than $500 million in 2000 and

more than $700 million in 2004.

The lobbying power of PACs, along with the

increase in “soft money” contributions, which

have been largely unregulated, have stiﬂ ed many

reform efforts over time, as have other loopholes in

the system. So has the U.S. Supreme Court’s incli-

nation to view certain restrictions as violations of

the First Amendment. However, the most recently

successful reform initiative was implemented with

the Bipartisan Campaign Finance Reform Act

(BCRA), passed in 2002. The BCRA raised the

old limits on individual spending set by the FECA

amendments of 1974 from $1,000 to $2,000 for

hard money. Other limits included $5,000 per year

for each party or political committee, $20,000 per

year to a national party, and a limit of $95,000

over a two-year cycle for contributions to individ-

ual candidates and committees. The $5,000 limit

for PACs to a candidate remained the same, but

consideration is now granted for inflation rates

when determining limits for future elections. The

BCRA was challenged but deemed constitutional

by the U.S. Supreme Court in 2003. Irrespective,

campaign ﬁ nance will undoubtedly continue to be

an issue of contention in times to come.

For more information: Alexander, Herbert E.

Campaign Money: Reform and Reality in the

States. New York: Free Press, 1976; Magleby,

David B. Financing the 2000 Election. Wash-

ington, D.C.: Brookings Institution Press, 2002;

Malbin, Michael J., ed. Money and Politics in the

United States. Chatham, N.J.: Chatham House

Publishers, 1984; Sorauf, Frank. Inside Cam-

paign Finance. New Haven, Conn.: Yale Univer-

sity Press, 1992.

—Daniel Baracskay

Camps Newfound/Owatonna, Inc. v. Town

of Harrison

520 U.S. 564 (1997)

In Camps Newfound/Owatonna, Inc. v. Town of

Harrison, the Supreme Court ruled that a state

tax exemption for the use of a park that favored

organizations incorporated in the state was found

to be a violation of the commerce clause.

An operator of a children’s church camp

in Maine, Camps Newfound/Owatonna, Inc.,

ﬁ nanced its camp operations using a $400 per week

camper tuition charge. Most of the campers who

used the facilities were from out of state. Maine

created a tax scheme that allowed an exemption

for charitable organizations that were incorpo-

rated in the state yet provided a limited beneﬁ t

to those organizations that catered to nonresidents

as long as their fee did not exceed $30 per person.

Camps Newfound/Owatonna, Inc., due to cater-

ing to nonresidents and charging a $400 fee, did

not qualify for any exemptions. Camps Newfound/

Owatonna filed suit in a Maine superior court,

which sided with Camps Newfound/Owatonna,

yet the Maine Supreme Judicial Court reversed

the lower court’s decision.

Camps Newfound/Owatonna appealed to the

Supreme Court, and in a 5-4 decision delivered

by Justice John Paul Stevens, the Court con-

cluded that the Maine tax exemption did violate

the commerce clause of the Constitution. The

Court noted that the exemption was a violation

because it was selective in nature when awarding

tax beneﬁ ts. In effect, Maine was engaging in a

form of protectionism that favored local consum-

ers and business operators over those consumers

Camps Newfound/Owatonna, Inc. v. Town of Harrison 101

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